Jetta v Director of Public Prosecutions for Western Australia - [2021] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JETTA -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2021] WASC 234
CORAM:   DERRICK J
HEARD:   1 JULY 2021
DELIVERED          :   19 JULY 2021
FILE NO/S:   SJA 1034 of 2021
BETWEEN:   JAKE JOSEPH JETTA
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number            :   AR 4558 of 2021

Catchwords:

Criminal law - Appeal against sentence - Sentence of immediate imprisonment imposed for offence of assaulting a public officer - Appellant serving term of imprisonment for other offences at time of being sentenced - Whether magistrate erred by failing to take into account relevant factors - Whether miscarriage of justice arose from absence of evidence at sentencing - Application to admit additional evidence in an appeal against sentence - Whether sentence imposed infringed totality principle

Appeal - Power of appeal court to admit additional evidence in an appeal against sentence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Abduramanoski v The State of Western Australia [2019] WASCA 216
Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420
Bradbury v The State of Western Australia [2020] WASCA 214
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cox v Whitehead & Ors [1999] WASCA 277
Crossley v Cole [2006] WASC 43
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Drage v Power (Unreported, SCt of WA, Library No 940400, 2 August 1994)
Fletcher v The State of Western Australia [2014] WASCA 219
Fordham v The Queen (1997) 98 A Crim R 359
Forrest v The State of Western Australia [2019] WASCA 172
Gok v The Queen [2010] WASCA 185
GSO v The State of Western Australia [2021] WASCA 58
Harper v Page [2004] WASCA 267
Hiemstra v The State of Western Australia [2021] WASCA 96
Juma v The State of Western Australia [2011] WASCA 54
Law v The Queen [2019] WASCA 81
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
M v The Queen [2004] WASCA 236
Maroney v The State of Western Australia [2006] WASCA 30
Mason v The State of Western Australia [2018] WASCA 43
McNamara v The State of Western Australia [2013] WASCA 63
Mead v Skinner & Anor (Unreported, SCt of WA, Library No 940132, 18 March 1994)
Merritt v The State of Western Australia [2019] WASCA 203
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moran v Baker [2019] WASC 251
Nolan v The State of Western Australia [2013] WASCA 235
Pearman v The State of Western Australia [2021] WASCA 106
Peterson v The State of Western Australia [2019] WASCA 207
Quigley v The State of Western Australia [2013] WASCA 9
R v Araya (1992) 63 A Crim R 123
R v Brady [2005] SASC 277; (2005) 92 SASR 135
R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115
Vlek v The Queen (Unreported, CCA, SCt of WA, Library No 990153C, 29 March 1999)
Walker v Jarvis [2021] WASC 182
Wellstead v The State of Western Australia [2019] WASCA 130
Wheeler v The Queen [No 2] [2010] WASCA 105
Whitby v The State of Western Australia [2019] WASCA 11
Willenberg v Downey [2015] WASC 282
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

DERRICK J:

Introduction

On 25 May 2021 the appellant pleaded guilty to, and was convicted of, one offence of unlawfully assaulting a public officer who was performing a function of his office contrary to s 318(1)(d) of the Criminal Code (WA) (Code) (AR 4558/2021). On the same date the appellant was sentenced by Magistrate Malley to 9 months imprisonment for the offence. His Honour ordered that the appellant was to be eligible for release on parole. His Honour further ordered that the sentence was to be served cumulatively on a total effective sentence of 8 months imprisonment that was already being served by the appellant. The sentence of 8 months imprisonment had been imposed on the appellant on 14 December 2020 for one offence of doing an obscene act in a public place contrary to s 202(1)(a) of the Code (PE 44801/2020) and one offence of doing an obscene act in a police station contrary to s 202(1)(b) of the Code (PE 44802/2020).[1] The expiry date of the 8 month sentence was 29 May 2021.[2]
[1] ts 8 - 9, 14 December 2020. The appellant was sentenced to 8 months imprisonment for the offence of doing an obscene act in a public place and 4 months imprisonment for the offence of doing an obscene act in a police station with the sentences being ordered to be served concurrently giving the total effective sentence of 8 months imprisonment.
[2] ts 9, 14 December 2020. The commencement date of the 8 month sentence was backdated to 30 September 2020 and was therefore, at the time of the appellant's sentencing for the assault public officer offence, due to expire on 29 May 2021.
The appellant now applies for leave to appeal against the sentence imposed for the offence of unlawfully assaulting a public officer (offence) on grounds the details of which are set out below.[3]
[3] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 4 June 2021 a registrar of this court made an urgent appeal order in respect of the appeal and an order that the application for leave to appeal be heard together with the appeal. The registrar made the urgent appeal order because the appellant will be eligible for release on parole in respect of the sentence imposed for the offence on 25 September 2021.
On 1 July 2021 I heard the appellant's application for leave to appeal and the appeal, as well as the appellant's application to admit additional evidence on the appeal.
For the reasons that follow I am of the opinion that the appeal should be allowed.

Leave to appeal

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CAA, s 9(3).

The sentencing hearing

The facts of the offence

The facts of the offence were read to the magistrate by the prosecutor during the hearing before his Honour on 25 May 2021.[7] The facts as read were admitted by the appellant.[8] The facts as read were as follows.
[7] ts 2 - 3, 25 May 2021.
[8] ts 3, 25 May 2021.
At approximately 1.10 pm on Monday 28 December 2020 the appellant was in the C wing of Hakea Prison. The appellant was a sentenced prisoner within the prison at this time. The victim of the offence was a prison officer on shift within the prison.
The victim was in C wing conducting duties in company with another officer. The appellant demanded from the victim his regime paperwork which he had not previously been given due to him having abused staff. The appellant was handed his paperwork through the hatch which he snatched. The appellant then lowered his head to the hatch and snarled at the victim, 'Fuck you. Come in here and I will fucking kill you'.
Immediately after making this statement the appellant spat at the victim. The appellant's spit sprayed the entirety of the victim's face. Some of the spittle went into the victim's eyes and inside his mouth. The majority of the spittle landed on the victim's neck, right shoulder and right arm. The victim immediately spat the appellant's spittle out of his mouth into a nearby bin.
The victim was photographed and decontaminated. He was required to undertake blood tests due to the risks associated with the nature of the assault.
The assault was captured on closed circuit television within the prison.

The psychiatric reports[9]

[9] The reports were provided to this court by the Magistrates Court in response to a request made by this court under s 10(7) of the CAA.

The magistrate had before him two psychiatric reports relating to the appellant, one dated 20 March 2018 (first psychiatric report) and the second dated 16 May 2019 (second psychiatric report). The two reports were prepared by different psychiatrists.
The first psychiatric report was before the magistrate by reason of it being referred to in, and attached to, the second psychiatric report. It is apparent from the face of the reports that the first psychiatric report was prepared for use in the sentencing of the appellant for a number of offences for which he was dealt with by the Magistrates Court on 26 April 2018, and that the second psychiatric report was prepared for use in the sentencing of the appellant for a number of offences for which he was dealt with by the District Court on 1 November 2019.[10]
[10] Although the second psychiatric report is addressed to the Magistrates Court, it is apparent from the appellant's criminal record that the offences in relation to which it was prepared were offences for which the appellant was ultimately dealt with by the District Court on 1 November 2019.
In the first psychiatric report the psychiatrist made the following statements and expressed the following opinions:
1.The report had been requested for the purpose of addressing the possibility of the appellant suffering from undiagnosed Foetal Alcohol Spectrum Disorder (FASD);
2.She interviewed the appellant on 28 February 2018;
3.The appellant had recently been diagnosed with Schizophrenia and was being managed by the comorbidity team at Hakea Prison;
4.The appellant reported that he had no interest in receiving any type of help, denied that he had ever been diagnosed with a mental disorder or treated with medications and indicated that he did not mind being in prison;
5.The appellant's father was a violent alcoholic who engaged in significant domestic violence. It had been reported that both the appellant's father and mother drank alcohol and used illicit substances around children;
6.The appellant, as a child, had been subjected to severe violence and severe emotional and physical neglect. He had lived with various family members. He had been placed in foster care, mostly within his family. He had led a highly transient lifestyle. He had spent most of his formative years in detention or on the streets;
7.The appellant's school attendance and education suffered due to his parents' lifestyle and chaotic foster arrangements. The appellant's academic performance had been poor and he had at times been referred to as intellectually impaired. However, no formal assessment of his cognitive ability had ever been attempted;
8.The appellant had a psychiatric history dating back to his early adolescence;
9.The appellant had a long history of illicit drug use with a clear causal association between his offending and being intoxicated with illicit substances;
10.The appellant presents with psychotic symptoms the duration and persistence of which support the diagnosis of Schizophrenia;
11.The suggestion that the appellant's mother used alcohol during her pregnancy with the appellant and had been exposed to domestic violence, the appellant's academic struggles and consistent descriptions of him as being cognitively impaired, and the appellant's small stature and congenital cleft lip/palate is highly suggestive of the presence of FASD;
12.The appellant's early behavioural problems which persisted into adulthood had developed against the background of a likely biological (genetic) predisposition and adverse life events such as exposure to domestic violence, exposure to drugs and alcohol, and an unstable family situation. The appellant presents as impulsive, craving immediate gratification, and lacking remorse and empathy with no motivation to adhere to any societal norms and expectations. A diagnosis of Antisocial Personality Disorder is warranted. The appellant also fulfils the criteria for Substance Use Disorder; and
13.The appellant would benefit from a formal FASD assessment.
In the second psychiatric report the statements made by the psychiatrist as to the appellant's personal circumstances and background were broadly consistent with those made in the first psychiatric report.
In the second psychiatric report the psychiatrist made the following statements and expressed the following opinions:
1.He interviewed the appellant on 13 May 2019;
2.He had been made aware that the appellant was 'listed' as a 'prolific spitter';
3.The appellant denied having any mental health problems in the past;
4.On assessment the appellant’s thoughts were logical, sequential and goal directed. He had no delusions, hallucinations or other psychotic phenomena. His insight and judgment were not impaired;
5.There was no clinical evidence of cognitive deficit although he did not undertake a formal cognitive assessment of the appellant;
6.His psychiatric diagnoses for the appellant were Cluster B Personality Disorder (primarily antisocial), Substance Use Disorder (primarily methylamphetamine) which the appellant was abstinent from due to his incarceration, and Substance Induced Psychotic Disorder which was in remission probably due to the appellant's abstinence from methylamphetamine and him recently being on antipsychotic depot injections;
7.At the time of his assessment of the appellant, the appellant had no symptoms indicative of Schizophrenia;
8.From the information provided by the appellant and from his mental state examination of the appellant the diagnosis of Substance Induced Psychotic Disorder more adequately reflected the appellant's past psychiatric symptoms and psychopathology 'which [appeared] to be primarily related to his use of methylamphetamine';
9.He was not in a position to completely exclude Schizophrenia as a potential differential diagnosis for the appellant;
10.The appellant's offending behaviour appeared to be related to the diagnoses of Cluster B Personality Disorder, Substance Use Disorder and Substance Induced Psychotic Disorder;
11.The appellant's Antisocial Personality Disorder and drug dependency appeared to have been the driving force behind the appellant's offences; and
12.After his interview with the appellant and upon reviewing all of the available documentation including the appellant's criminal record, he believed that the appellant 'might be in the range of high to very high risk of being charged or convicted of another similar offence in the future.'

The plea in mitigation

After hearing the facts of the offence the magistrate heard the appellant's counsel's plea in mitigation. In his plea in mitigation counsel made the following points and advanced the following contentions:[11]
[11] ts 3 - 4, 25 May 2021.
1.It was not clear why it had taken so long for the appellant to be charged;[12]
[12] The appellant was charged with the offence on 22 April 2021.
2.At the time of committing the offence the appellant was still 'coming down' from drug use;
3.The appellant had felt as though the victim had been treating him unfairly. The appellant had been angry and had lashed out at the victim. However, it was accepted that the appellant's feelings were likely exacerbated by his paranoia associated with his mental health issues;
4.The appellant accepted his wrongdoing, had expressed his remorse at the time to prison officers and had demonstrated his remorse by entering his plea of guilty 'at the first hearing';[13]
[13] The hearing on 25 May 2021 was the appellant's first appearance in relation to the offence.
5.The appellant had already been punished for the offence within the prison regime by having his benefits reduced and by losing his grants for two weeks, grants being payments made to prisoners for work done by them within the prison;
6.The psychiatric report 'provided today' which he believed was 'actually older than the one that [he] had notes on' confirms that the appellant has substantial mental health issues, a diagnosis of FASD, Substance Use Disorder, Antisocial Personality Disorder and chronic Schizophrenia;
7.The 'more recent report' (this being an apparent reference to the more recent report that counsel had made notes about) stated that the appellant's cognitive functioning was deteriorating and that he was at a high risk of reoffending;
8.'It' (this also being an apparent reference to the more recent report that counsel had made notes about) goes into the appellant's personal history. The appellant had suffered developmental trauma due to him having a violent father. The appellant's mother had been an alcoholic. The appellant's childhood had been chaotic with 'Department of Communities being involved'. The appellant had not had stable accommodation or prosocial supports. The appellant had turned to substance use 'early', had left school before he was 10 and had limited literacy skills;
9.There was a 'clear nexus' between the appellant's history and 'at least' his previous offending;
10.'It' (this again being an apparent reference to the more recent psychiatric report which counsel had made notes about) 'did say' that the appellant's 'medical diagnoses impair his judgment and capacity to restrain his impulses which … would be very relevant to the offences [sic] today';
11.The appellant had 'dried out from drugs and alcohol' and was in a much more stable position than he had been in at the time of committing the offence. The appellant intended to reside with his father and sister. The appellant's family was supporting his efforts to obtain accommodation with Homeswest;
12.The appellant had a 6-year-old daughter who was residing with the appellant's ex-partner. The appellant did not have current contact with his daughter but intended to resume contact;
13.The appellant intended to look for any type of work, wanted to earn money and keep busy, and was willing to comply with any community treatment for his mental health issues;
14.The appellant was 24 years old and was therefore still relatively young;
15.The principles in Bugmy v The Queen[14] were 'enlivened' and the appellant's significant mental health issues made him a 'less suitable vehicle for deterrence';
16.The appellant had been transferred to Acacia Prison (Acacia) and had not had any issues while in custody at Acacia since the commission of the offence; and
17.Given that the appellant had almost completed serving his existing sentence, the laying of the charge against him 'so late in the piece' was 'going to have a significant effect on him in terms of totality'.
[14] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
The appellant's counsel concluded his plea in mitigation by stating, in effect, that it was accepted that the appellant's conduct, given his record, meant that the 'point of imprisonment' had been reached.[15] However, counsel submitted that in the circumstances any sentence of imprisonment imposed should be made 'largely concurrent and reduced significantly' to take into account the time that the appellant had been in custody since committing the offence.[16]
[15] ts 4, 25 May 2021.
[16] ts 4, 25 May 2021.

It would appear from the appellant's counsel's assertions as to what the psychiatric report 'provided today' confirmed, that counsel was referring in this context to the first psychiatric report. Assuming this to be the case, counsel’s assertion that the first psychiatric report confirmed a diagnosis of FASD was simply incorrect. In the first psychiatric report the psychiatrist went no further than saying that there were certain features of the appellant's history and presentation that were 'highly suggestive' of FASD and that the appellant would benefit from a formal FASD assessment.

The magistrate's sentencing remarks

After hearing the appellant's counsel's plea in mitigation the magistrate, without inviting the prosecutor to make submissions, proceeded to sentence the appellant.
The magistrate found that the appellant had pleaded guilty at an 'early opportunity'.[17]
[17] ts 4 - 5, 25 May 2021.
The magistrate 'acknowledged' the appellant's 'significant mental health difficulties and matters personal to him, relevant to his background'.[18]
[18] ts 4, 25 May 2021.
The magistrate found that the appellant, by reason of his personality, was 'certainly not suitable' for community supervision.[19] His Honour went on to say that 'even if that was an option, given the obvious health risks associated with spitting in anybody's face, particularly in the present climate, is something which would normally attract an immediate custodial sentence [sic].'
[19] ts 4, 25 May 2021.
The magistrate referred to the appellant's 'appalling' history of violence towards police.[20]
[20] ts 4, 25 May 2021.
The magistrate found that given that the offence was committed in a prison environment there was a need for personal and general deterrence.[21] However, his Honour immediately went on to say that there was 'probably' more of a need for general deterrence than personal deterrence.[22]
[21] ts 5, 25 May 2021.
[22] ts 5, 25 May 2021.
The magistrate stated that a term of imprisonment was appropriate because he considered the offence to be 'very serious'. His Honour, after stating that he normally would have imposed a sentence of 18 months imprisonment for the offence as a 'starting point', concluded his sentencing remarks in the following terms:[23]
In 9AA I will give him 25 percent discount on that figure, and taking into account matters personal to the [appellant], I reduce it further down from 18 months after the 25 percent discount, down to nine months imprisonment. That will be cumulative on existing terms, and in doing what I've done, I have taken into account that he has been in custody on other matters. And so, it's nine months imprisonment cumulative on existing term, eligible for parole. Thank you.
[23] ts 5, 25 May 2021.
A 25% discount from a 'starting point' of 18 months imprisonment equates to a discount of 4½ months. It therefore necessarily follows that the magistrate, after reducing the sentence that he would otherwise have imposed by 4½ months to take account of the appellant's guilty plea, further reduced the sentence that he would otherwise have imposed (a sentence of 13½ months) by another 4½ months to take account of 'matters personal' to the appellant and the fact that the appellant had been in custody for other matters. The magistrate's imposition of a cumulative 9 month term compels the conclusion that his Honour's statement that 'in doing what I've done I have taken into account that he has been in custody on other matters' must be interpreted as meaning that his Honour had taken into account the appellant’s time in custody together with 'matters personal' to the appellant in further reducing the sentence by 4½ months after allowing the reduction for the guilty plea. I note in this regard that in my opinion the magistrate's reference to the appellant having 'been in custody for other matters' can only be sensibly interpreted as a reference to the offences for which the appellant was sentenced on 14 December 2020. I do not accept the suggestion made by the appellant that the magistrate could have been referring to sentences of imprisonment that the appellant had served in the past.

Ground 1

Ground 1 of the appellant's grounds of appeal is expressed in the following terms:
1.The learned sentencing Magistrate erred in fact and law by failing to acknowledge the following relevant sentencing factors that occasioned a substantial miscarriage of justice:
a)the internal punishment regime within the prison for the assault of a public officer MC AR4558/2021;
b)         delay by police in bringing the charge;
c)         remorse; and
d)         young age.[24]
[24] An appeal may be made on a ground that a sentencing judicial officer made an error of law and fact pursuant to s 8(1)(a)(i) of the CAA.
Thus the ground alleges an express error by the magistrate constituted by the magistrate's asserted failure to 'acknowledge' a number of factors. I take the reference in the pleaded ground to the magistrate's failure to 'acknowledge' the factors to be an assertion that the magistrate failed to take the factors into account in determining the sentence to be imposed on the appellant.

Applicable general principles

Section 8(4) of the Sentencing Act 1995 (WA) provides that if a court reduces the sentence it would otherwise have imposed because of a mitigating factor, the court must state this fact in open court. However, a failure to comply with s 8(4) is not an appealable error. Non‑compliance with s 8(4) does not invalidate the sentence.[25]
[25] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59]; Nolan v The State of Western Australia [2013] WASCA 235 [44]; Bradbury v The State of Western Australia [2020] WASCA 214 [76].
The failure by a sentencing judicial officer to refer to a particular factor in their sentencing remarks will ordinarily be an indication that the sentencing judicial officer has overlooked the factor and/or failed to take the factor into account in determining the sentence to be imposed on the offender. Having said this, it is well recognised that in determining an allegation that a magistrate has failed to take a factor into account it is important, having regard to the circumstances in which magistrates' sentencing remarks are delivered (most often on an ex tempore basis as in this case) and the very busy workload of the Magistrates Court, to ensure that the sentencing remarks are read as a whole, in context and not with an eye finally tuned for error.[26]
[26] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].
Clearly, the failure by a judicial officer to take a factor into account in determining a sentence to be imposed on an offender will only constitute a material error if the factor is one that ought to have been taken into account in the determination of the sentence, that is, is a factor to which some weight needed to be given. [27]

The parties' submissions - summary

[27] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14]; Whitby v The State of Western Australia [2019] WASCA 11 [172].

The appellant submits that the magistrate did not, in his sentencing remarks, expressly refer to any of the factors identified in the ground of appeal and that the only inference that can reasonably be drawn from his Honour's failure to do so is that his Honour did not take the factors into account. The appellant submits that each of the factors specified in the ground of appeal was relevant to the magistrate's determination of the sentence to be imposed on him; that is, was relevant to the determination of the sentence that was commensurate with the seriousness of the offence.[28] Therefore, the appellant submits, the magistrate's failure to take the factors into account constituted an error of law and fact.
[28] Sentencing Act 1995 (WA), s 6(1).
The respondent does not concede that any of the factors identified by the appellant were, in the circumstances of the appellant's case, mitigating factors or factors that were otherwise materially relevant to the determination of the sentence to be imposed on the appellant. That is, the respondent does not concede that any of the factors were factors to which some weight needed to be given in the exercise by the magistrate of his sentencing discretion. Therefore, the respondent submits, even if the magistrate did fail to take any one or more of the factors into account this did not amount to a material error of law. The respondent further submits that it is apparent from the magistrate’s reference to 'matters personal' to the appellant that his Honour, in any event, took the appellant's age and asserted remorse into account in determining the sentence to be imposed on the appellant.

Were the identified factors relevant to the determination of the sentence to be imposed on the appellant for the offence?

The first question to address, in determining the ground of appeal, is whether any of the four factors identified in the ground of appeal was relevant or material to the magistrate's determination of the sentence to be imposed on the appellant for the offence.

The imposition of the prison regime punishment

The appellant does not attempt to argue that the prison regime punishment was relevant to the magistrate's determination of the sentence to be imposed on the appellant for the offence because it was a mitigating factor within the meaning of s 8(1) of the Sentencing Act. Rather, the appellant contends that the imposition of the prison regime punishment was relevant to the magistrate's determination of the sentence for the offence because the fact of its imposition meant that less weight needed to be placed by his Honour on the sentencing considerations of personal and general deterrence. More specifically, the appellant contends, in substance, that the imposition of the prison regime punishment for the conduct the subject of the offence should have been treated by the magistrate as having a personal deterrent effect on him and a general deterrent effect on the prison population, and that therefore the weight that the magistrate needed to give to the sentencing considerations of personal and general deterrence was reduced.
The position adopted by the appellant that the imposition on him of the prison regime punishment was not a mitigating factor is based on the statement made by Buss JA in Milenkovski v The State of Western Australia[29] that punitive action taken against an offender because of their breaches of prison rules or disciplinary requirements is not a matter which a sentencing judge is required to take into account.[30]
[29] Milenkovski v The State of Western Australia [106]. It would appear that McLure P [15] and Mazza JA [211] agreed with Buss JA on this point.
[30] See also R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 [118] - [119] and R v Brady [2005] SASC 277; (2005) 92 SASR 135 [46]. R v Brady was cited by Buss JA in Milenkovski v The State of Western Australia.
In the present situation the prison regime punishment was imposed on the appellant not for some breach of prison rules or disciplinary requirements that occurred independently of the conduct the subject of the offence, but rather for the very conduct that was the subject of the offence. In these circumstances it may, in my view, have been open for the magistrate, in the exercise of his discretion, to take into account that the appellant had received this extra-curial prison regime punishment as a mitigating factor within the meaning of s 8(1) of the Sentencing Act. However, it is clear from Buss JA's statement in Milenkovski v The State of Western Australia that the magistrate was not required to do so. Accordingly, the position that is in substance taken by the appellant, specifically that the magistrate was not required to take into account the prison regime punishment as a mitigating factor and that therefore any failure by him to do so, if there was such a failure, did not amount to a material error is, in my view, correct.
I turn to the appellant's contention that the imposition of the prison regime punishment was relevant to the magistrate's determination of the sentence for the offence because the fact of its imposition meant that less weight needed to be placed by his Honour on the sentencing considerations of personal and general deterrence. I do not accept this contention. I do not do so for the following two reasons.
First, I am not persuaded on the material before me that the apparently very modest punishment imposed on the appellant, comprised of a short term reduction in benefits and a short term loss of grants, was in fact capable of acting as either a personal deterrent or a general deterrent. I note in this regard that at the sentencing hearing, although the appellant's counsel referred to the fact that the appellant had already been punished within the prison by a reduction of his benefits and a loss of his grants, counsel did not attempt to link this circumstance to considerations of personal and general deterrence. Counsel did not submit that the imposition of the prison regime punishment had had a deterrent effect on the appellant. Nor did counsel submit that the imposition of the prison regime punishment should be viewed by the magistrate as having had a general deterrent effect on other prisoners.
Second, even if contrary to my above expressed view, the prison regime punishment imposed on the appellant was in fact capable of being treated as having some very limited deterrent effect on the appellant and/or some very limited general deterrent effect on the prison population, this did not to my mind reduce to any material extent the need for the magistrate, assuming for the moment that in the sentencing of the appellant the need existed, to impose a penalty that was capable of deterring the appellant from future similar offending and/or other members of the prison population from engaging in conduct of the type engaged in by the appellant.
For the reasons I have given I am not persuaded that the imposition on the appellant of the prison regime punishment was a factor that was relevant or material to the magistrate's determination of the sentence to be imposed on the appellant for the offence. It was not, in my opinion, a factor which the magistrate was required to take into account and to give some weight to in determining the sentence to be imposed on the appellant.

Delay

There are cases in which delay and the totality principle interact.[31] However, delay may also be a relevant sentencing consideration independently of the totality principle.[32] Thus in Scook v The Queen[33] Buss JA said the following:
[31] Fletcher v The State of Western Australia [2014] WASCA 219 [35].
[32] Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [33]; Fletcher v The State of Western Australia [40].
[33] Scook v The Queen [57] - [65], Miller JA agreeing [66]. See Fletcher v The State of Western Australia [40].
The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. Like her Honour, I put to one side those authorities in which issues of delay and totality intersect.
First, delay is not, of itself, a mitigating factor.
Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.
Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.
Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.
Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.
Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:
(a)the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or
(b)during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.
Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.
The guiding principles I have stated are not intended to be exhaustive or inflexible.
As the respondent points out, it was not suggested to the magistrate that during the period between the date of the commission of the offence and the date of the laying of the charge the appellant experienced any stress associated with being left in a state of 'uncertain suspense', or that the appellant had come to expect that he was not going to be charged. There was therefore no basis on which the magistrate could have made such a finding. However, and as is apparent from Buss JA's statements, undue or unreasonable delay not attributable to the conduct of an offender can, in appropriate circumstances, be mitigating. In particular, unreasonable delay attributable to the conduct of prosecuting authorities or investigatory bodies can mitigate.[34]
[34] Fletcher v The State of Western Australia[40].
The appellant committed the offence on 28 December 2020. He was not charged with the offence until 22 April 2021, almost four months later. Accordingly, a quite lengthy period of time elapsed between the commission of the offence and the laying of the charge. Further, the nature of the offence and the circumstances in which it was committed were not such as to give rise to any particular complexity associated with the investigation into the offence or the commencement of the prosecution of the appellant for the offence. The incident was, as the facts of the offence as stated to the magistrate reveal, recorded on the prison's closed circuit television system. The prosecution of the appellant for the offence, as subsequent events revealed, was very straight forward.
At the sentencing hearing the prosecutor did not give an explanation for the delay in the laying of the charge. However, there was no reason for the prosecutor to have done so. The submissions made by the appellant's counsel in relation to the issue of delay, which did not include any assertion that the delay was due to the dilatory or neglectful conduct of the investigating police or the prosecution, did not call for an explanation. Further, the magistrate did not ask the prosecutor for an explanation.
The question whether the delay in the charging of the appellant operated as a mitigating factor is not entirely free from difficulty. The delay was, as the respondent's counsel conceded, 'unfortunate'.[35] However, when I take into account the extent of the delay, and the matters referred to in the preceding paragraph, I do not consider that it is safe to infer that there was no reasonable explanation for the time that it took to lay the charge against the appellant. In other words, I do not consider that it is safe to infer from the length of the delay itself that the delay in charging the appellant was due to the dilatory or neglectful conduct of the investigating police or the prosecution. It necessarily follows that I am not persuaded that the delay in charging the appellant with the offence was of itself a mitigating factor.
[35] ts 39, 1 July 2021.

For these reasons I am not satisfied that the delay associated with charging the appellant with the offence was a factor that was relevant or material to the magistrate's determination of the sentence to be imposed on the appellant for the offence. It was not, in my opinion, a factor which the magistrate was required to take into account and to give some weight to in determining the sentence to be imposed on the appellant.

Remorse

In TheState of Western Australia v Egeland[36] Buss P made the following observations concerning remorse as a mitigating factor (citations omitted):
[36] The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77 [39]. Buss JA's observations in The State of Western Australia v Egeland were cited with approval by the court in Bradbury v The State of Western Australia [53].
Numerous propositions in relation to remorse as a mitigating factor are well established, namely that:
(a)the offender bears the onus of establishing remorse on the balance of probabilities;
(b)remorse is not to be equated with sorrow for being caught or regret by the offender that he or she will be imprisoned or subject to some other punishment;
(c) an assertion of remorse by or on behalf of the offender need not be accepted by the sentencing judge if the existence of remorse is put in issue by the prosecutor or if the sentencing judge indicates that he or she may not be prepared to accept that the offender is remorseful;
(d)if remorse is to be mitigating, it requires a realisation by the offender that what he or she did was morally wrong and a sign of some sorrow for the impact or consequences or the potential impact or consequences of the offence;
(e)in determining whether the offender is remorseful, the sentencing judge is entitled to have regard to the offender's conduct as a whole;
(f)a plea of guilty will not, of itself, establish remorse although, together with other relevant evidence, the plea may be a relevant factor in enabling an inference of remorse to be drawn; and
(g)if the offender is genuinely remorseful, the remorse will usually be an important consideration in sentencing.
Remorse is a strong emotion experienced by a person:
1.who is sorry for their previous actions and the adverse impact those actions have had upon others; and
2.who has resolved to reform and rehabilitate themselves.[37]
[37] Bradbury v The State of Western Australia [53].
The appellant's counsel informed the magistrate that the appellant accepted his wrongdoing, had expressed his remorse to prison officers at the time of his commission of the offence, and had demonstrated his remorse by pleading guilty at the first opportunity. In short, the appellant's counsel submitted that the appellant was remorseful for the offence. The appellant's counsel also told the magistrate that the appellant had not had any issues while he had been in custody since the commission of the offence.
The prosecution did not attempt to challenge the appellant's counsel's assertion that the appellant was remorseful. The existence of the appellant's remorse was not put in issue by the prosecution.
The appellant has a bad criminal record which includes a significant number of convictions for offences of assaulting public officers. The appellant's criminal record warrants the exercise of considerable caution before concluding that the magistrate ought to have found that the appellant was remorseful for the offence. Nonetheless, in my opinion, in light of the appellant's statement of contrition to the prison officers following his commission of the offence, the appellant's apparently good behaviour within the prison environment over the approximate five month period following his commission of the offence, the appellant's entry of his guilty plea at the first reasonable opportunity and the prosecution’s failure to take issue with the appellant's counsel's assertion that the appellant was remorseful, the magistrate ought to have found on the balance of probabilities that the appellant was remorseful.
The appellant's remorse was a mitigating factor that needed to be taken into account by the magistrate in determining the sentence to be imposed on the appellant for the offence. It was a factor to which some weight needed to be given.

Age

The appellant submits that his age was a mitigating factor and was therefore relevant to the magistrate's determination of the sentence to be imposed on him for the offence. I do not accept this submission.
Ordinarily the 'relative youth' of a young adult is a mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender.[38] However, in those cases in which the offender is no longer a very young adult, the question whether their age carries with it any mitigatory value depends very much on the facts of the particular case.
[38] Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 [71]; Quigley v The State of Western Australia [2013] WASCA 9 [20].
The appellant was 24 years old at the time of committing the offence. He was certainly not a very young adult. Indeed, I think it is fair to say that he only just fell within the 'young adult' category. Further, the material that was put before the magistrate did not provide any basis for his Honour to conclude that the appellant's commission of the offence was the result of immaturity resulting from his age.[39] In addition, the appellant was not an inexperienced offender in respect of whom determined rehabilitative efforts had not previously been made.[40]
[39] Juma v The State of Western Australia [2011] WASCA 54 [44].
[40] Ugle v The State of Western Australia [71]; Quigley v The State of Western Australia [20].
I accept that in some cases an offender who is 24 years old may derive some limited mitigatory benefit from their age. However, given the circumstances that I have referred to in the previous paragraph the appellant is not, in my view, such an offender. In my opinion the appellant's age did not, in all the circumstances, operate as a mitigating factor of any significance. The appellant's age was not, in my opinion, a factor that was of any material relevance to the magistrate's determination of the sentence to be imposed on the appellant for the offence.

Did the magistrate fail to take the appellant's remorse into account?

I have found that the magistrate ought to have found that the appellant was remorseful and that the appellant's remorse was a mitigating factor that needed to be taken into account by his Honour in determining the sentence to be imposed on the appellant for the offence. The question which remains is whether the magistrate failed to take the appellant's remorse into account.
As the respondent accepts, the magistrate did not, in his brief sentencing remarks, make any express reference to the appellant's remorse.
I am very conscious of the fact that the magistrate delivered his sentencing remarks immediately following the appellant's counsel's plea in mitigation. I am very conscious of the fact that the magistrate delivered his sentencing remarks ex tempore. I am also very conscious of the nature of the Magistrates Court jurisdiction and the consequential inability of magistrates to routinely refer expressly and individually to every matter advanced on behalf of an offender by their counsel. Nonetheless, even making full allowance for these considerations, the magistrate's failure to make a clear reference to the appellant's remorse leads me to conclude that his Honour either overlooked this factor or, if he did not overlook it, failed to give it any weight as a mitigating factor. His Honour's failure to take account of the appellant's remorse as a mitigating factor, or failure to give any weight to this factor, was a material error of law.
As is apparent from the conclusion I have expressed in the previous paragraph, I do not accept the respondent's submission that the magistrate's reference to 'matters personal' to the appellant can reasonably be construed as encompassing the appellant's remorse. I do not accept this submission for two reasons.
First, in my experience the phrase 'matters personal' to an offender, or substantially similar phrases, are routinely used by judicial officers to refer to an offender's background, current personal circumstances (including any health and illicit drug related issues) and occasionally their prior record. The phrase is not, in my experience, commonly used to encompass an offender’s remorse (even though remorse might be considered as something 'personal' to an offender).
Second, and more significantly, at the beginning of his sentencing remarks the magistrate 'acknowledged' the appellant's 'significant mental health disabilities and matters personal to [the appellant], relevant to his background' (emphasis added). Thus, read in the context of the brief sentencing remarks as a whole, it seems to me more than likely that the magistrate's reference to 'matters personal' to the appellant towards the end of his Honour's sentencing remarks was a reference back to those matters personal to him 'relevant to his background'. Clearly, the appellant's remorse was not 'relevant to [the appellant's] background'.
Given that I have found that the appellant's prison regime punishment, the appellant's age and the delay in charging the appellant were not factors that the magistrate was required to take into account in determining the sentence to be imposed on the appellant, it is not necessary for me to make a finding as to whether these factors were taken into account by his Honour. Nonetheless, I state for purposes of completeness that if I had found that these factors were material to the magistrate's determination of the sentence to be imposed on the appellant I would have found, substantially for the reasons that I have given in relation to the remorse factor, that his Honour did not take these factors into account or, if he did, that he failed to give them any weight.

Disposition

For the reasons I have given error has been established. The ground of appeal has been made out.

Ground 3

It is convenient to at this point deal with ground 3 of the appellant's grounds of appeal. Ground 3 is expressed in the following terms:
The appellant has suffered a miscarriage of justice as the sentence imposed failed to reflect a significant mitigating factor, being the severity of FAS-D, which was not known at the time of sentencing.
This ground of appeal can only succeed if an application made by the appellant to admit additional evidence on the appeal in support of the ground is allowed.

The application to admit additional evidence in support of the ground of appeal

On 18 June 2021 the appellant filed an application to admit additional evidence on the appeal in support of ground 3. The application was filed pursuant to s 40(1)(e) of the CAA.
At a directions hearing held on 21 June 2021 I ordered that the application to admit the additional evidence was to be dealt with at the hearing of the application for leave to appeal.
The additional evidence that the appellant seeks by the application to admit on the appeal consists of a FASD Adult Assessment Report prepared by a paediatrician and a clinical neuropsychology registrar in relation to the appellant dated 31 May 2019 (FASD Report) and an Adult Community Corrections pre-sentence report dated 8 December 2020 (PSR) also prepared in relation to the appellant. The FASD Report was prepared for use by the District Court in the sentencing of the appellant on 1 November 2019 for an offence of indecently dealing with a child between the ages of 13 and 16,[41] this being one of a number of offences for which the appellant was sentenced in the District Court on that date. The PSR was prepared for use by the Magistrates Court in the sentencing of the appellant for the previously referred to two offences for which he was serving the term of 8 months imprisonment at the time of being sentenced for the offence.
[41] FASD Report, page 1.
The application to admit the additional evidence is supported by an affidavit sworn by the appellant's counsel on 18 June 2021. In his affidavit the appellant's counsel deposes to the following matters:
1.On 14 June 2021 he was provided with the first psychiatric report and the second psychiatric report;[42]
2.Upon reviewing the matter 'and after discussing this with the legal practitioner who appeared first' (this being a reference to counsel who appeared for the appellant at the sentencing hearing for the offence) it was brought to his attention that 'there were other reports that were previously inspected'. His attention was drawn to 'this because of the absence of discussion of [FASD] in those two reports';[43]
3.On 17 June 2021 the respondent requested clarification of his submissions (this being a reference to the written submissions filed by the appellant's counsel in support of the appeal on 16 June 2021);[44]
4.'As a result of all that' on 17 June 2021 he requested 'previous reports from registries and information release at the Department of Justice regarding the reports that had been prepared';[45]
5.On 18 June 2021 he 'called up Information Release'. As a result of the phone call he understood that in order to obtain the reports he would need to make a freedom of information request which would take up to 45 days to deal with; [46]
6.'Following all of this' he received from this court the PSR;[47] and
7.After liaising with the District Court he was provided with the FASD Report.[48]
[42] Appellant's counsel's affidavit, par 5.
[43] Appellant's counsel's affidavit, par 5.
[44] Appellant's counsel's affidavit, par 6.
[45] Appellant's counsel's affidavit, par 7.
[46] Appellant's counsel's affidavit, par 8.
[47] Appellant's counsel's affidavit, par 9. The PSR together with a copy of the transcript of the sentencing remarks of the magistrate who sentenced the appellant on 14 December 2020 for the offences of doing an obscene act in public and doing an obscene act in a police station were, at my direction, obtained and forwarded to the parties by my associate by email dated 18 June 2021. The documents were obtained from the court's Integrated Courts Management System. The documents were forwarded to the parties in response to an email sent by the respondent's counsel in which he indicated, in substance, that in order to respond to the 'totality issue' raised by the appellant's submissions he had sought the transcript of the 14 December 2020 sentencing proceedings but that he had 'no idea' when it would become available. The documents were also forwarded to the parties in an attempt to facilitate the appeal being able to proceed on the allocated hearing date in accordance with the urgent appeal order.
[48] Appellant's counsel's affidavit, par 10.
The appellant's counsel's affidavit does not clearly deal with the question whether the appellant's counsel at the sentencing hearing was in possession of, or had knowledge of, the FASD Report at the time of the appellant's sentencing. In his affidavit the appellant's counsel deposes only that upon review of the matter and after discussing the matter with counsel who appeared for the appellant at the sentencing hearing it was brought to his attention 'that there were other reports that were previously inspected.'
In light of the ambiguity in the appellant's counsel's affidavit I asked him during the course of the hearing of the application for leave to appeal to tell me if it was the appellant's submission that I should find on the basis of the affidavit that counsel at the sentencing hearing was not aware of the existence of the FASD Report at the time of the appellant's sentencing.[49] In response to this question counsel told me, without objection from the respondent's counsel, that the position was as follows:[50]
1.The appellant's counsel at the sentencing hearing had, at the time of the sentencing, knowledge that the appellant had previously been diagnosed with FASD;
2.He is not sure if the appellant's counsel at the sentencing hearing had, prior to the sentencing hearing, ever seen the FASD Report; and
3.The appellant's counsel at the sentencing hearing did not have the FASD Report before him at the time of the appellant's sentencing.
[49] ts 30, 1 July 2021.
[50] ts 30 - 31, 1 July 2021.
In the understandable absence of any objection by the respondent's counsel to me accepting the appellant's counsel's above statements made from the bar table, I will accept, and to the extent necessary act upon, the statements as made in determining the application to admit the additional evidence.

The content of the FASD Report and the PSR

The FASD Report reveals, among other things, the following:
1.The appellant was assessed in May 2019;
2.The appellant was told that the purpose of the assessment was to see if he had a condition called FASD that happens if a mother drinks alcohol when she is pregnant with a baby;
3.The appellant reported that he had been told by his father that his mother, while pregnant with him, drank alcohol at high risk levels and used cannabis and methylampthetamine;
4.Formal neuropsychological testing of the appellant showed a pattern of global severe cognitive impairment across all assessed areas well below age expectations. The vast majority of the appellant's scores fell within the extremely low to very low range. The appellant's full-scale intelligence quotient, which was assessed with the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV), was within the extremely low range and consistent with him having an intellectual disability (also known as Intellectual Development Disorder);
5.In regards to executive functioning, the appellant's performance was variable. The appellant demonstrated significant impairment in terms of his verbal fluency/generativity, divided attention and inhibition (impulse control). He is likely to be prone to acting on impulse and failing to think through the consequences of his actions;
6.The appellant exhibits two of the three 'sentinel facial features' for FASD;
7.The appellant's history and performance on standardised testing was in keeping with a diagnosis of FASD. The appellant has significant impairments in the domains of cognition, memory, language, attention, executive functions and adaptive functioning;
8.The appellant has a complex background including exposure to domestic violence, personal substance use from teenage years, Hepatitis C and psychiatric illness all of which may have cognitive, behavioural and emotional consequences. However, the appellant's 'exposure to alcohol in-utero (and subsequent FASD diagnosis) also appears to be a significant contributing factor to [his] impairments';
9.The appellant appears to meet the criteria for 'neurological disability based on a diagnosis of intellectual disability and FASD within the context of significant mental illness';
10.The appellant has an extremely low intelligence quotient, a level of cognitive ability consistent with intellectual disability and as a result is likely to lack understanding of appropriate social rules and boundaries; and
11.The appellant has a significant impairment in executive functioning which will impact on his ability to plan, reason and think through the consequences of his actions. The appellant struggles with impulse control and is likely to fail to inhibit his impulses at times.
In the PSR the writer briefly summarises the appellant's offending history, the circumstances of the offences for which he was to be sentenced, and his previous response to supervision in the community. The writer's brief summary of the circumstances of the offences for which the appellant was to be sentenced (the offences of doing an obscene act in a public place and doing an obscene act in a police station) is as follows:
[The appellant] entered a clothing store, wearing a mask, and proceeded to enter the change room area where he masturbated in front of a female customer. He then continued to masturbate when placed in the police station.

Under the heading 'Relevant Background Information' the writer states that the appellant has been diagnosed with FASD, Schizophrenia, Antisocial Personality Disorder and Substance Use Disorder, that he lacks support in the community and that he fails to engage with agencies who are funded to provide him with support. Under the heading 'Assessment' the writer states that the appellant's offending is underpinned by his poor mental health which is exacerbated by illicit substance use. Under the same heading the writer states that homelessness, intellectual impairment and lack of prosocial supports are also contributing factors to the appellant's offending behaviour. Further, it is under this heading that the writer makes reference to a psychiatric report dated 3 December 2020 which she describes as identifying the appellant as being 'in the well above average risk range for being charged or convicted of another sexual offence'.

The principles to be applied in determining the application to admit the additional evidence

The principles to be applied in determining an application to admit additional evidence in an appeal against sentence in circumstances where the relevant ground of appeal alleges, in substance, that a miscarriage of justice occurred because the additional evidence was not before the primary court at the time of sentencing may be stated as follows:
1.Before additional evidence can be admitted on an appeal against sentence the court must conclude that if the additional evidence had been before the primary court a different sentence should have been imposed. However, the fact that the additional evidence demonstrates that a different sentence should have been imposed is not of itself sufficient to justify the admission of the evidence. It must also be demonstrated that the absence of the evidence before the primary court has given rise to a miscarriage of justice;[51]
2.Although a miscarriage of justice may arise from the absence of material evidence before the primary court, a miscarriage of justice will not arise in all such cases because the process of identifying a miscarriage in such circumstances must be undertaken consistently with the nature of an appeal and in a manner that does not have the practical effect of obliterating the distinction between original and appellate jurisdiction;[52]
3.Although as a matter of practice the courts customarily adopt a more flexible approach to the determination of applications to admit additional evidence on appeals against sentence than on appeals against conviction, there is a need to consider the particular circumstances in which the evidence was not adduced before the primary court at the sentencing in order to determine whether there was a miscarriage of justice;[53]
4.A miscarriage of justice may more readily arise in an appeal against sentence from the absence of evidence which was not known to, or reasonably obtainable by, an appellant at the time of sentence;[54]
5.In general terms a miscarriage of justice will be difficult to establish where evidence was actually known to an appellant at the time of sentencing, and was reasonably obtainable by the appellant at the time of sentencing, but was not used in the sentencing hearing;[55] and
6.It has been recognised that consistently with the role of an appellate court evidence of events subsequent to the time of sentencing may be received to show facts relevant to the sentencing process which were in existence at the time of sentencing but either not known to the sentencing judge or not properly appreciated at the time. This may occur, for example, where a mental health impairment which existed prior to sentencing is diagnosed, or its significance is appreciated, after sentencing has occurred. A miscarriage of justice may arise from the absence of evidence of this kind at the sentencing hearing.[56]

Should a different sentence have been imposed if the additional evidence had been before the magistrate?

FASD Report

[51] Wheeler v The Queen [No 2] [2010] WASCA 105 [53]; Wellstead v The State of Western Australia [2019] WASCA 130 [82] - [86], [88], [90]; LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1 [120], [124]; Abduramanoski v The State of Western Australia [2019] WASCA 216 [50(a)].

[52] Wellstead v The State of Western Australia [91]; Abduramanoski v The State of Western Australia [50(b)].

[53] R v Araya (1992) 63 A Crim R 123, 129 - 130; Wheeler v The Queen [2] [53]; Wellstead v The State of Western Australia [90], [97].

[54] Wellstead v The State of Western Australia [95].

[55] Fordham v The Queen (1997) 98 A Crim R 359, 377; M v The Queen [2004] WASCA 236 [7]; Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10]; Wellstead v The State of Western Australia [90]; Pearman v The State of Western Australia [2021] WASCA 106 [16].

[56] Wellstead v The State of Western Australia [29] [93]; Abduramanoski v The State of Western Australia [50(d)].

The question which must first be considered in determining the application to admit the additional evidence on the appeal comprised of the FASD Report is whether if the FASD Report been before the magistrate a different sentence should have been imposed.
In any sentencing exercise blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Attention must be directed to the details of the particular diagnosis of FASD including the nature and extent of the specific impairments and how they bear upon considerations relevant to sentence.[57] Nonetheless, it is well established that impairments associated with FASD, which is itself a mental impairment, may be relevant to sentencing in a number of ways.[58] Impairments associated with FASD may reduce an offender's moral culpability for the offence. They may have a bearing on the kind of sentence imposed and the conditions on which it is to be served. A person suffering from FASD impairments may not be an appropriate vehicle for general deterrence, and personal deterrence may be more difficult to achieve and may not be worth pursuing. Further, a sentence imposed on a person with FASD may weigh more heavily on that person then it would on a person who otherwise has normal health.
[57] LCM v The State of Western Australia [8], [123]; Hiemstra v The State of Western Australia [2021] WASCA 96 [69].
[58] LCM v The State of Western Australia [10], [70], [121]; Hiemstra v The State of Western Australia [55] - [86]; Abduramanoski v The State of Western Australia [51] - [52].
Against the background of the above statements as to how a diagnosis of FASD may impact on the sentencing process, I turn to expressing my findings in relation to the facts that are established by the FASD Report.
The FASD Report establishes that the appellant suffered from FASD at the time of committing the offence and at the time of being sentenced for the offence.
The FASD Report establishes that the appellant's FASD has substantially contributed to him suffering from significant impairments in a number of domains including the domains of executive functions and cognition. The impairment to the appellant's executive functioning impacts adversely on his ability to control his impulses and to think through the consequences of his actions. The impairment to the appellant's cognition impacts adversely on his ability to understand social rules and boundaries.
On the basis of the FASD Report, I am satisfied that the appellant's FASD was causally connected to his commission of the offence. More specifically, on the basis of the FASD Report I am satisfied that the appellant’s FASD contributed to his commission of the offence in the sense that his impaired executive functions resulting from his FASD impacted adversely on his ability to resist the impulse to engage in the conduct the subject of the offence, or to put the matter another way, impacted on his ability to make a calm and rational decision in relation to how he should deal with his feelings (likely unfounded) that he had been treated unfairly by the victim. The causal connection between the appellant's FASD and his commission of the offence reduced his culpability or moral blameworthiness for committing the offence.[59]
[59] Smith v The State of Western Australia [2010] WASCA 176 [69]-[71]; McNamara v The State of Western Australia [2013] WASCA 63 [34]-[35]; Mason v The State of Western Australia [2018] WASCA 43 [69]; LCM v The State of Western Australia [70]; Hiemstra v The State of Western Australia [59 - [60], [69] - [70], [86]; Abduramanoski v The State of Western Australia [51] - [52].
In making the finding that the appellant's FASD was causally connected to his commission of the offence, I am not finding that the appellant's FASD was the sole cause of his conduct in committing the offence. It is more than likely, as is recognised in the FASD Report, that there were other causal factors at play such as the appellant’s other mental health problems and illicit substance use from which he was, on his account, at the time of committing the offence still 'coming down' from. However, I am satisfied on the basis of the FASD Report that the appellant's FASD was a material cause of him engaging in the conduct the subject of the offence.
Further, in making the finding that the appellant's FASD was causally connected to his commission of the offence I am conscious of the fact, as is pointed out by the respondent, that the FASD Report, which was not prepared for use by the Magistrates Court in the sentencing of the appellant for the offence, does not directly address the question whether there was a causal relationship between the appellant's FASD and his commission of the offence. However, nor does the FASD Report directly address the question whether there was a causal relationship between the appellant's FASD and his commission of the offence for which he was to be sentenced in the District Court and in relation to which the FASD Report was requested and prepared. Rather, the FASD Report is limited to addressing the question whether the appellant meets the criteria for a diagnosis of FASD and also the issue of the extent of the impairments that he suffers from as a result of the condition. The fact that the FASD Report does not, for obvious reasons, directly address the question whether there was a causal relationship between the appellant's FASD and his commission of the offence does not preclude a finding, on the basis of what is contained in the report, that such a relationship did exist.
On the basis of the FASD Report I am satisfied that the appellant's FASD means that any attempt to give effect to personal deterrence in the sentencing of the appellant is unlikely to be successful. More specifically, on the basis of the FASD report I am satisfied that the appellant's impaired executive functions and impaired cognition resulting from his FASD, and his consequential difficulties in relation to planning and thinking through the consequences of his actions and understanding social rules and boundaries, means that personal deterrence is unlikely to be achieved in relation to the appellant through the sentencing process. The appellant clearly has a very limited capacity to undertake the reasoning process required to connect his offending with the likelihood and severity of punishment.
On the basis of the FASD Report I am satisfied that the appellant's FASD renders him an unsuitable vehicle for the imposition of a sentence designed to give full effect to the sentencing consideration of general deterrence. More specifically, on the basis of the FASD report I am satisfied that the number and the extent of the appellant's impairments resulting from his FASD, in particular his intellectual disability, means that in sentencing the appellant for any offence the weight that would otherwise be placed on the sentencing consideration of general deterrence needs to be 'sensibly moderated'.[60]
[60] Gok v The Queen [2010] WASCA 185 [59] - [60].
Having made the above findings I come back to the question posed above, specifically whether if the additional evidence comprised of the FASD Report had been before the magistrate a different sentence should have been imposed. In my opinion this question must be answered affirmatively. It is the case that the appellant's counsel at the sentencing hearing informed the magistrate that the psychiatric report that was before the court confirmed that the appellant had a diagnosis of FASD and that the 'more recent psychiatric report' (which was not before the court but which counsel had apparently made some notes about) did say that the appellant's 'medical diagnoses impair his judgment and capacity to restrain his impulses'. However, these statements fell well short of fully describing to the magistrate not only the nature, extent and severity of the appellant's FASD associated impairments but also the extent to which the appellant's FASD associated impairments, as opposed to his impairments arising from his 'medical diagnoses' generally, impacted on his ability to control his actions, reason and function in a general sense. Further and in any event, counsel's statement that the psychiatric report that was before the court confirmed that the appellant had a diagnosis of FASD was simply incorrect. Neither the first psychiatric report nor the second psychiatric report confirmed that the appellant has FASD. In these circumstances, and given my above stated findings as to the matters established by the FASD report, I am satisfied that if the FASD Report had been before the magistrate at the time of the appellant's sentencing for the offence a different sentence should have been imposed for the offence. This is particularly so bearing in mind the emphasis that the magistrate placed on general deterrence in determining the sentence for the offence.

PSR

The PSR, as I have pointed out, contains a very brief statement of the facts of the offences in relation to which it had been prepared. Otherwise, the PSR does not add materially to the information that was put before the magistrate by the appellant's counsel and by way of the two psychiatric reports that were in fact before his Honour. Nor does the PSR contain any substantive additional information in relation to the appellant's FASD to that which is contained in the FASD Report. In these circumstances I am not satisfied that if the PSR had been before the magistrate at the time of the sentencing of the appellant for the offence a different sentence should have been imposed for the offence. In particular, I am not satisfied that the fact that the PSR reveals in the briefest of terms the facts of the offences in respect of which it had been prepared warrants the conclusion that if it had been before the magistrate a different sentence should have been imposed. My conclusion in this regard is sufficient to dispose of the application to admit additional evidence on the appeal to the extent that it relates to the PSR.

Did a miscarriage of justice arise from the fact that the FASD Report was not before the magistrate at the time of sentencing?

As my above outline of the relevant principles reveals, my conclusion that if the FASD Report had been before the magistrate a different sentence should have been imposed is not of itself sufficient to justify the granting of the application to admit the FASD Report as evidence on the appeal. It is necessary for the appellant to also establish that the absence of the FASD Report at the time of the sentencing hearing resulted in a miscarriage of justice.
During the hearing of the application for leave to appeal the respondent's counsel (very fairly to the appellant) informed me, in substance, that if I found that if the FASD Report had been before the sentencing magistrate a different sentence for the offence should have been imposed, the respondent would, in the interests of doing justice, and taking into account the particular circumstances of the appellant and the more flexible approach adopted by the courts to applications to admit additional evidence in sentencing appeals, not oppose the application to admit the FASD Report on the appeal.
Contrary to submissions made by the appellant, this is not a case in which evidence of events subsequent to the time of the sentencing hearing are such as to show facts relevant to the sentencing process which were in existence at the time of sentencing but which were either not known to the magistrate or not properly appreciated at the time. The evidence of the appellant's FASD diagnosis and of the nature and extent of the impairments that he suffers from as a result thereof comprised of the FASD Report was in existence at the time of the sentencing hearing. Moreover, and as is apparent from his plea in mitigation, the appellant's counsel at the sentencing hearing was clearly aware of the existence of the FASD diagnosis at the time of the sentencing hearing (this having been confirmed by the appellant's counsel on the appeal). Having said this, counsel's references to a 'more recent' report to the psychiatric report that was before the court and his assertions as to the contents of the 'more recent' report suggest that his knowledge of the FASD diagnosis was derived not from the FASD Report but rather from a more recent psychiatric report (in all probability the report dated 3 December 2020 referred to in the PSR).
In light of:
1.the appellant's sentencing hearing counsel's apparent references to a more recent psychiatric report;
2.the failure by the appellant's sentencing hearing counsel to actually refer to the more recent report as a FASD Assessment Report;
3.the appellant's sentencing hearing counsel's assertions as to the contents of the more recent report;
4.the fact that the FASD Report had been prepared approximately two years prior to the sentencing hearing (only a very short time after the second report) and was therefore hardly 'more recent' than the first report; and
5.the fact that the FASD Report had been prepared for the District Court and was, it would appear from the appellant's counsel's affidavit in the possession of the District Court prior to it being provided to the appellant's counsel,
I am, despite the appellant's counsel's affidavit evidence that there were 'other reports' that were previously inspected, satisfied on the balance of probabilities that the appellant's sentencing hearing counsel did not know of the FASD Report at the time of the sentencing hearing. I note that this finding is not inconsistent with the previously referred to statements made by the appellant's counsel on the appeal as to whether the appellant's sentencing counsel knew of the existence of the FASD Report.
In light of my finding that if the FASD report had been before the magistrate a different sentence should have been imposed for the offence, and in light also of my finding that the appellant's sentencing hearing counsel did not know of the FASD report at the time of the sentencing hearing, I am satisfied, consistently with the above set out applicable legal principles, that the fact that the FASD Report was not before the magistrate at the time of the sentencing of the appellant for the offence has given rise to a miscarriage of justice.
In arriving at my above expressed conclusion I have not overlooked that it was of course the appellant that was the subject of the FASD assessment the subject of the FASD Report, that the FASD Report was presumably referred to in the presence of the appellant during the course of the sentencing proceedings that took place in the District Court in relation to the offences for which he was sentenced by that court on 1 November 2019, and that it might therefore be said that the appellant must have known of the existence of the FASD Report at least at the time of the sentencing proceedings in the District Court. However, in my view, even if one accepts that the appellant must have gained at least some limited knowledge of the existence and contents of the FASD Report at around the time of his sentencing in the District Court it would, given his various significant deficits, be completely unrealistic to conclude that he therefore, approximately 18 months later, recalled and had knowledge of the report, and made a deliberate decision not to use the report at his sentencing hearing and not to reveal the existence of the report to his counsel.

Finally, I note for the sake of completeness, that even if I had found that the appellant's sentencing hearing counsel did know of the existence of the FASD Report at the time of the sentencing of the appellant for the offence, I would still have concluded that the fact that the FASD Report was not before the magistrate at the time of the sentencing of the appellant for the offence has given rise to a miscarriage of justice. I would have done so in light of the flexibility in approach of the courts to applications to admit additional evidence on appeals against sentence, the particular circumstances of the appellant, the need to ensure that justice is done to the appellant, and the respondent's above referred to (and in my view appropriately made) concession as to how the application should be resolved in the event that I find that if the FASD Report had been before the magistrate it should have resulted in a different sentence being imposed.

Decision on the application to admit additional evidence and on the ground of appeal

On the basis of my above expressed findings and conclusions, I am satisfied that the application to admit on the appeal the additional evidence comprised of the FASD Report should be allowed. I refuse the application to admit on the appeal the additional evidence comprised of the PSR.
On the basis of my above expressed findings and conclusions, I am also satisfied that the absence of the evidence comprised of the FASD Report at the time of the appellant's sentencing for the offence gave rise to the miscarriage of justice alleged in this ground of appeal. Accordingly, the ground of appeal has been made out.

Ground 2

Ground 2 of the appellant's grounds of appeal is expressed in the following terms:
1. The learned sentencing Magistrate's decision to impose a wholly cumulative sentence for assault of a public officer MC AR4558/2021 on a prison sentence already being served, resulted in an aggregate sentence that did not bare a proper relationship to the overall criminality having regard to:
a)the circumstances in which assault of a public officer MC AR4558/2021 was committed;
b)plea of guilty at the first reasonable opportunity;
c)the appellants' diagnosis of FAS-D, chronic schizophrenia along with general mental health issues;
d)the internal punishment regime within the prison for assault of a public officer MC AR4558/2021;
e)delay by police in bringing the charge;
f)young age; and
g)factors in Bugmy v R [2013] HCA 37; (2013) 248 CLR 571.
The appellant by this ground does not assert that the sentence of 9 months imprisonment for the offence was of itself manifestly excessive. Rather, by this ground the appellant contends that the magistrate, by sentencing him to 9 months imprisonment to be served cumulatively on the term that he was already serving, imposed a term of imprisonment that contravened the first limb of the totality principle and that the term imposed was for this reason manifestly excessive. Thus the ground asserts implied error.
Given my conclusions in relation to grounds 1 and 3 it is unnecessary and inappropriate for me to consider the merits of ground 2. I would consequently refuse leave to appeal on this ground.

Resentencing of the appellant for the offence

Sentencing principles to be applied

Given that I have upheld grounds 1 and 3 the magistrate's sentencing decision must be set aside and the appellant must be resentenced.[61]
[61] CAA, s 14(1)(c); Hiemstra v The State of Western Australia [120].
I have before me the material necessary to enable me to resentence the appellant.[62]
[62] CAA, s 14(1)(d).
In resentencing the appellant it of course falls to me to exercise the sentencing discretion afresh in accordance with the principles embodied in the Sentencing Act and the totality principle. These principles, so far as is relevant in the present context, may be stated in brief terms as follows. [63]
[63] Hiemstra v The State of Western Australia [120].
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[64] In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[65] Aggravating factors are factors that are in the court's opinion increase the offender's culpability or moral blameworthiness.[66] Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished.[67]
[64] Sentencing Act s 6(1).
[65] Sentencing Act, s 6 (2).
[66] Sentencing Act, s 7(1).
[67] Sentencing Act, s 8(1).
In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment.[68]
[68] Sentencing Act, s 6(4).
If the court reaches the conclusion that a sentence of imprisonment (as opposed to a sentence of immediate imprisonment) of not more than five years is the only appropriate disposition, the court must then consider whether or not that sentence of imprisonment should be suspended or whether a sentence of imprisonment to be immediately served is required.[69] The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment. In order to decide if the term of imprisonment imposed can be suspended the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.
[69] Sentencing Act, s 39(3), s 76(1), s 76(2), s 81(1), s 81(2); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] - [79]; Mason v The State of Western Australia [48] - [54].
In a case such as the present where an offender, at the time of being sentenced, is already serving a term of imprisonment for other offences, the totality principle must be applied. The totality principle is a common law sentencing principle that is acknowledged in this state by s 6(3)(b) of the Sentencing Act.
The totality principle comprises two limbs. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bares a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment) viewed in their entirety having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[70] The second limb of the totality principle is that the court should not impose a crushing sentence. The word crushing in this context denotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.[71]
[70] Roffey v The State of Western Australia [2007] WASCA 246 [25]; GSO v The State of Western Australia [2021] WASCA 58 [44(3)].
[71] Roffey v The State of Western Australia [25].
In the situation where at the time of sentencing an offender is serving a term of imprisonment for another offence or other offences, the proper approach in giving effect to the totality principle is to ask what would have been the likely effective head sentence if the offender had been sentenced at the one time.[72]
[72] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-63; Merritt v The State of Western Australia [2019] WASCA 203 [47] - [50].
The rationale for the totality principle was explained by Anderson J in Vlek v The Queen[73] as follows:
[W]hen a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately … Furthermore, … the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude … Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case.

Relevant sentencing considerations

Maximum penalty

[73] Vlek v The Queen (Unreported, CCA, SCt of WA, Library No 990153C, 29 March 1999), 10; see also Roffey v The State of Western Australia [26] and Merritt v The State of Western Australia [52].

The maximum sentence that could be imposed by the magistrate for the offence, being the maximum summary conviction penalty, is 3 years imprisonment. However, the maximum summary conviction penalty is only a jurisdictional limit. It is not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of resentencing the appellant, is 7 years imprisonment.[74]

The seriousness of the offence

[74] Code s 318(1)(m); Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [24] - [33].

The offence was serious. The act of spitting in the victim's face was completely unprovoked. It was also a vile act particularly given that some of the appellant's spittle went into the victim's mouth. In addition, the offence no doubt caused the victim trauma and distress by reason of him being worried about whether he had contracted any transmissible disease from the appellant's spittle.

Mitigating factors

There are a number of mitigating factors present in the appellant's case, although some of the factors carry considerably more weight than others.
First, the appellant had had a very deprived and dysfunctional childhood. The appellant's deprived and dysfunctional childhood was such as to leave its mark on the appellant throughout his life and to impair his capacity to mature, to learn from experience and to reform. The appellant's deprived and dysfunctional childhood clearly contributed to him embarking on a lifestyle which involved using illicit drugs and engaging in significant criminal behaviour. There is therefore a clear causal link between the appellant's deprived and dysfunctional childhood and his commission over time of numerous offences including the offence. It follows that the appellant's deprived and dysfunctional childhood, which must be given full weight in the sentencing process, operates so as to reduce his culpability or moral blameworthiness for committing the offence.[75]
[75] Bugmy v The Queen [44], [47]; Peterson v The State of Western Australia [2019] WASCA 207 [52] ‑ [55].
Second, the appellant has, and at the time of committing the offence had, FASD. I have already identified, in dealing with ground 3, how the appellant's FASD reduces his culpability for the offence.
Third, the appellant is remorseful.
Fourth, the appellant pleaded guilty at the first reasonable opportunity.
Fifth, for the period of approximately five months between committing the offence and being sentenced for the offence, the appellant had not engaged in any further bad behaviour while in custody.

Criminal record, protection of the public, personal deterrence

The appellant has a very bad criminal record.
As a juvenile the appellant was convicted of numerous offences including multiple offences of stealing, damaging property, burglary, aggravated burglary on a dwelling, breaching bail and possessing drug paraphernalia. Further, in September 2012 when he was 16 years old, the appellant was convicted of an offence of aggravated armed robbery.
As an adult the appellant's offending has continued unabated. Without intending to be in anyway exhaustive, the appellant has been convicted of multiple offences of stealing, burglary in a dwelling, indecent assault, unlawful assault and breach of bail. In addition, and of particular relevance in the present context, are the appellant's six convictions since April 2018 for assaulting a public officer, not including the appellant's conviction for the offence.
The appellant's criminal record does not increase the seriousness of the offence. However, the nature and extent of the appellant's record, particularly given that it includes offences of violence committed against public officers, is obviously such as to prevent the appellant from being afforded any leniency for good character.[76]
[76] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].
The nature and extent of the appellant's criminal record, particularly when viewed in light of his FASD related diminished ability to control his impulses and to think through his actions, also reveals that there is a need, in deciding the sentence to be imposed on him, to place weight on the sentencing consideration of protection of the public.
Given the nature and extent of the appellant's criminal record it would ordinarily be appropriate to place significant weight on the sentencing consideration of personal deterrence, that is, on the need to impose a sentence on the appellant that is capable of deterring him from committing similar offences in the future. However, and for the reasons that I have expressed in dealing with ground 3, personal deterrence, despite the nature and extent of the appellant's record, does not, in my view, have a material role to play in the sentencing of the appellant for the offence.

The facts of the offences for which the appellant was serving a sentence

A review of the transcript of the sentencing of the appellant for the offences of doing an obscene act in a public place and doing an obscene act in a police station for which he was sentenced to the 8 month term of imprisonment that he was serving at the time of being sentenced for the offence reveals the facts of the two offences to be as follows.[77]
[77] ts 2 - 3, 14 December 2020.
On 30 September 2020 the appellant walked into a clothing store in Perth. Once in the store the appellant selected a 'skeleton' mask. The appellant then entered a change room. Once in the change room the appellant put the mask on, laid on the floor, put his head under the adjacent change room, watched a female customer take her pants off, took his own pants down, and commenced to masturbate. The customer alerted a staff member and the appellant was arrested.
After the appellant had been arrested he was taken to a police station. While at the police station and 'under lockup' the appellant took out his erect penis and began to masturbate.

General deterrence

Given the nature of the offence committed by the appellant the sentencing consideration of general deterrence would ordinarily loom large in determining the appropriate sentence for the offence. Prison officers work in a potentially dangerous environment. Discipline and order in prisons depends on prison officers being able to carry out their work without being assaulted. It is therefore ordinarily necessary, in determining the sentence for an offence of assaulting a prison officer, to place significant weight on the need to impose a penalty that is capable of acting as a deterrent to members of the prison population who might be tempted to engage in such behaviour.[78] However, for the reasons I have expressed in dealing with ground 3, it is my view that the weight that would ordinarily be placed on general deterrence in sentencing an offender for an offence of the type committed by the appellant must be sensibly moderated in determining the sentence to be imposed on the appellant. The sentencing consideration of general deterrence is not irrelevant to the determination of the sentence to be imposed on the appellant. However, general deterrence does, in my view, in the case of the appellant assume less weight than would be the case in the sentencing of an offender for a similar offence to that committed by the appellant who did not suffer from the type of impairments that the appellant suffers from as a result of his FASD.

Standards of sentencing customarily observed - comparable cases

[78] Moran v Baker [2019] WASC 251 [57], [79].

As to the standards of sentencing customarily observed, the parties have drawn my attention to a number of cases in which appeals against sentence to single judges of this court against sentences imposed by magistrates for offences of assaulting a public officer performing a function of their office by spitting have been dealt with.[79] As both parties acknowledge, a review of these cases does not reveal that there is any tariff or established range of sentences for such an offence. Indeed, a review of these cases reveals that they all turn very much on their individual facts and circumstances and that in a number of them considerations of totality came into play. Ultimately, the most that can be said from a review of these cases, it seems to me, is that absent totality considerations a sentence of 9 months imprisonment for conduct involving spitting in the face of a prison officer is not outside the range of sentences commonly imposed for such offences.
[79] Mead v Skinner & Anor (Unreported, SCt of WA, Library No 940132, 18 March 1994); Drage v Power (Unreported, SCt of WA, Library No 940400, 2 August 1994); Cox v Whitehead & Ors [1999] WASCA 277; Crossley v Cole [2006] WASC 43; Walker v Jarvis [2021] WASC 182. At the time of the decisions in Drage v Power and Mead v Skinner the maximum penalty for the offence of assaulting a public officer performing a function of their office was 5 years imprisonment. At the time of the decisions in Cox v Whitehead and Crossley v Cole the maximum penalty for the offence of assaulting a public officer performing a function of their office was 10 years imprisonment, the penalty having been increased from 5 years to 10 years by the Criminal Law Amendment Act 1994 (WA).
There is one decision of the Court of Appeal to which reference can, I think, be usefully made in this context.
In Maroney v The State of Western Australia[80] the offender appealed against a sentence of 10 months imprisonment imposed on him by the Magistrates Court for an offence of assaulting a public officer who was performing a function of his office. The sentence was ordered by the Magistrates Court to be served cumulatively on a lengthy sentence imposed on the offender by the Supreme Court for a number of other offences.
[80] Maroney v The State of Western Australia [2006] WASCA 130. At the time of this decision the maximum penalty for assaulting a public officer performing a function of their office was 10 years.
The facts of the offender's assault public officer offence were as follows.
At approximately 6.30 pm on 16 August 2004 the appellant, while in custody in the Supreme Court holding cells, was being escorted towards a waiting secure vehicle by two prison officers. As he was being escorted the offender became abusive towards the complainant who was one of the prison officers. Just before he was placed into the rear of the secure vehicle the offender began to throw himself from side to side in an attempt to break free. Two other prison officers who were nearby came to assist the complainant. After the offender had been calmed down following a struggle, the complainant leaned forward in order to release the offender's handcuffs at which time the offender spat at the complainant. The offender's spittle hit the complainant in the left eye. The offender then kicked at one of the officers and one of the kicks hit the complainant on the left side of his face.

On the appeal the offender argued that the sentence imposed for the assault public officer offence should be ordered to be served concurrently with the term of imprisonment imposed for the other offences (which totalled 13 years). Martin CJ, with whom Wheeler JA and Buss JA agreed, rejected this submission. In doing so Martin CJ said:[81]
I do not accept that proposition. The offence was a significant assault upon a prison officer performing his duty of escorting the prisoner from Court. If sentences for offences of that kind are made concurrent with sentences already imposed, they provide no deterrent effect upon persons in custody, either specific to the offender or generally to those persons in custody who might be minded to commit such offences. The Courts are, and must be mindful of the need to impose sentences which deter those who might be minded to jeopardise the safety of public officers discharging important and occasionally dangerous duties relating to law enforcement. However, the length of the term of imprisonment to be imposed cumulatively upon the sentences presently being served by the appellant must reflect the fact that the appellant will not commence to serve that term until a long time in the future.
[81] Maroney v The State of Western Australia [29].
A little later in his judgment Martin CJ said:[82]
Turning to the sentence imposed by the Magistrate's Court, I have already expressed the view that I do not accept the submission that such sentence should be concurrent with the other terms of imprisonment imposed. However, the fact that any sentence which we impose on that charge will not commence to be served until the period of 13 years total imprisonment has been served is relevant to the length of the term to be imposed and leads me to the conclusion that the term appropriately imposed is a period of 6 months. …
[82] Maroney v The State of Western Australia [31].
Accordingly, the court allowed the appeal from the decision of the magistrate and substituted a sentence of 6 months imprisonment to be served cumulatively upon the other terms of imprisonment being served by the offender.
In my view Maroney v The State of Western Australia, like the other cases to which I have referred, supports the proposition that absent totality considerations a sentence of 9 months imprisonment for conduct involving spitting in the face of a prison officer is not outside the range of sentences commonly imposed for such offences. However, the case also demonstrates, the perhaps obvious point, that sentences of lesser length for such conduct may be imposed depending on all the circumstances including totality considerations.

The parties' submissions and conclusion as to the appropriate sentence for the offence

The appellant does not dispute that the offence was of such seriousness as to warrant the imposition of an immediate term of imprisonment. However, the appellant submits that given the sentencing considerations to which I have referred a sentence of lesser length should be imposed and/or any sentence imposed should, given totality issues, be ordered to be served at least partly concurrently with the sentence imposed on the appellant for the offences for which he was dealt with on 14 December 2020.
The respondent submits that taking into account all relevant sentencing considerations the sentence imposed by the magistrate was appropriate.
The appellant committed a serious offence and he has a very bad criminal record. However, after taking into account;
1.the maximum penalty for the offence;
2.the facts and circumstances of the offence;
3.the seriousness of the offence;
4.the mitigating factors that I have identified, most significantly the appellant's deprived and dysfunctional childhood, the appellant's FASD and its causal connection with the offence, and the appellant’s plea of guilty at the first reasonable opportunity;
5.the absence of the need to place any material weight on the sentencing consideration of personal deterrence;
6.the reduced weight to be placed on general deterrence; and
7.the very broadly comparable cases to which I have referred,
it is my opinion that the appropriate sentence for the offence, leaving aside for the moment the issue of totality, is 8 months imprisonment. In arriving at this individual sentence I have, under s 9AA of the Sentencing Act, reduced by 25% the sentence that I would have imposed if the appellant had not pleaded guilty and there had been no other mitigatory factors.
I turn to the issue of totality. Taking into account all of the factors that I have identified in the previous paragraph as well as the facts of the two offences for which the appellant was serving the 8 month sentence at the time of being sentenced for the offence, it is my opinion that a sentence of 6 months imprisonment to be served cumulatively on the 8 month sentence results in a total sentence that appropriately reflects the appellant's overall criminality in committing the offences viewed in their entirety having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
Given that the 6 month sentence that I have imposed is to be served cumulatively on the 8 month sentence imposed on 14 December 2020 it is open to me to make an order that the appellant is to be eligible for release on parole in respect of the sentence that I have imposed.[83] I will make an order that the appellant is eligible for release on parole.
[83] Sentencing Act, s 89(2).

Orders

For the reasons that I have stated I would make orders in the following terms:
1.The application to admit evidence under s 40(1)(e) of the CAA dated 18 June 2021 is allowed;
2.Leave to appeal on ground 2 is refused;
3.Leave to appeal on grounds 1 and 3 is granted;
4.The appeal is allowed;
5.The sentence of 9 months immediate imprisonment imposed by Magistrate Malley for the offence the subject of charge AR 4558/2021 is set aside; and
6.The appellant is sentenced for the offence the subject of charge AR 4558/2021 to 6 months imprisonment with eligibility for parole, the sentence to be served cumulatively on the total effective sentence of 8 months imprisonment imposed on the appellant on 14 December 2020 for the two offences the subject of charges PER 44801/2020 and 44802/2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
20 JULY 2021