Knott v Roberts - [2010] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KNOTT -v- ROBERTS [2010] WASC 267

CORAM: MURRAY J

HEARD: 16 SEPTEMBER 2010

DELIVERED : 16 SEPTEMBER 2010

PUBLISHED : 4 OCTOBER 2010

FILE NO/S: SJA 1092 of 2010

BETWEEN: TREVOR KNOTT
Appellant
AND
WAYDE GRIFFITH ROBERTS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LAWRENCE
Citation  :KNOTT -v- ROBERTS
File No  :PE 29151-29154 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LAWRENCE
Citation  :KNOTT -v- ROBERTS
File No  :PE 31946 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Whether magistrate failed to give sufficient weight to circumstances of mitigation - Disability of defendant - Totality principle

Legislation:

Nil

Result:

Extension of time granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Ms K Gorski
Respondent: Ms C Thatcher

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Butler v The State of Western Australia [2010] WASCA 104
F v The State of Western Australia [2008] WASCA 100
Hodder v Skamp [No 2] [2009] WASC 53
Knott v Moriarty [2010] WASC 36
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Sheedy v Riolo [2010] WASC 170
Wheeler v The Queen [No 2] [2010] WASCA 105

MURRAY J:

The material proceedings

This was an urgent application for leave to appeal. The urgency arose from circumstances concerning the sentences of imprisonment imposed upon the applicant, and the timing of the service of those terms. The application for leave to appeal was made on 25 August 2010. I heard it on 16 September.
The appeal was against sentences of imprisonment imposed for five offences of failing to comply with a prohibition order contrary to s 101(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (the Act). The sentences were imposed on 17 March 2010. The appellant had 28 days within which to institute an appeal: Criminal Appeals Act 2004 (WA), s 10(3). It can be seen, therefore, that the application for leave to appeal was made well out of time, and an extension of time was required to enable it to be heard.
The applicant made an affidavit in support of the application for the extension of time. In that document he describes himself as a 25‑year‑old person suffering from autism and having a borderline intellectual disability. He is registered with the Disability Services Commission. He was represented by a lawyer when he was sentenced. He says that he does not remember speaking to his lawyer about an appeal, but he concedes that his disability makes it difficult for him to stay focused on a problem, and he readily becomes confused.
An order of eligibility for parole was made, but a few days after he became eligible for parole on 22 May 2010, the Prisoners Review Board denied parole. He was advised of that decision on 25 May, and says he immediately spoke to the Legal Aid Commission's prison visiting service lawyer about making an application for a review of the Board's decision. It was then that he was advised that he might appeal against the sentences imposed. He gave those instructions once legal aid was granted, and the appeal was instituted on that very day.
In those circumstances, I made the order extending time for the appeal to 25 August 2010. At the hearing of the appeal I granted leave to appeal, allowed the appeal and re‑sentenced the applicant. I shall give the detail of the orders made in due course. These are my reasons for that decision.

A relevant chronology

The five counts of failing to comply with a prohibition order under the Community Protection (Offender Reporting) Act were the subject of prosecution notices dated 5 May 2009 and 15 May 2009. They were before the court for some time before, on 7 January 2010, the applicant pleaded guilty.
At that time, the applicant was a sentenced prisoner. On 25 September 2009, he had been sentenced in the Magistrates Court for an offence of indecent assault committed on 16 July 2009. In addition, at that time, two sentences of suspended imprisonment imposed in the Magistrates Court on 21 August 2008 for breaches of a violence restraining order, committed on 23 June 2008 and 1 July 2008, were activated. They were concurrent sentences of 6 months and 1 day imprisonment suspended for 18 months. As can be seen, those orders were breached about a year later on 16 July 2009 when the indecent assault offence was committed.
On 29 September 2009, the magistrate imposed, for the indecent assault, a sentence of 18 months imprisonment with eligibility for parole. That sentence was backdated to 7 August 2009, the date upon which the applicant had been taken into custody. The activated terms of 6 months and 1 day imprisonment were ordered to be served concurrently, and therefore each of those terms of imprisonment commenced to be served on 7 August 2009.
By 7 January 2010, an appeal against the severity of those sentences had been lodged. It was heard by Simmonds J on 18 January 2010, and on 24 February 2010 his Honour delivered judgment allowing the appeal, setting aside the sentences and re‑sentencing the applicant: Knott v Moriarty [2010] WASC 36. The grounds upon which that appeal was pursued are unimportant for present purposes, as are the facts of the matters with which his Honour had to deal.
The result of the appeal was that the sentence of 18 months imprisonment for the indecent assault was reduced to a term of 7 months imprisonment and that was ordered to be served cumulatively upon the activated terms of 6 months and 1 day which were not interfered with and therefore started on 7 August 2009. Eligibility for parole was ordered in respect of the total effective sentence of 13 months and 1 day.
As I have said, shortly after the earliest eligibility date, which was 22 May 2010, in fact on 25 May 2010, parole was denied. If the applicant was to serve that term in full, it would expire on 8 September 2010, hence the urgency attendant upon the disposition of this appeal.
The applicant was sentenced on 17 March 2010 to five concurrent terms of imprisonment of 6 months, but those terms were made cumulative upon the sentences imposed by Simmonds J on the earlier appeal. I hasten to add that that was a perfectly understandable decision. The offences were concerned with matters entirely unconnected with the indecent assault offence and the earlier breaches of a violence restraining order. Again, eligibility for parole was ordered and the effect of that sentencing, as at 17 March 2010, was to give the aggregate term an expiry date of 7 March 2011, following eligibility for parole on 22 May 2010.

The facts

I will return later to a discussion of the provisions of the Community Protection (Offender Reporting) Act. It is sufficient at this stage to note that his Honour the magistrate was told that the appellant was the subject of an interim child protection prohibition order made by the District Court on 14 August 2008.
The appellant's first offence of failure to comply with such an order was a breach of the terms of the interim order which, among other things, prohibited the appellant from travelling on or being in the vicinity of public transport between 7.30 am and 9.00 am and between 3.00 pm and 4.30 pm on weekdays, excluding public and school holidays. The offence was committed on 3 November 2008 when the appellant was found sitting on the ground within 20 m of a railway station at 4.25 pm, just within a prohibited period. For how long he had been there and why he was there the magistrate was not told.
The interim order was in accordance with the processes of the Act, converted into a 2 year child protection prohibition order by the District Court on 28 November 2008. The terms of the prohibitions to which the appellant was subject were changed and made more extensive. The appellant was prohibited from travelling on any form of public transport or from being within 50 m of any bus, ferry or train station, except during the hours of 10.00 am and 2.00 pm on weekdays, excluding public and school holidays and excluding occasions when he was travelling to or from work and medical appointments. A further exception arose when permission for the travel was given by a responsible or authorised police officer on the ground that it was reasonably necessary that it be undertaken.
It can be seen that the purpose of the prohibitions imposed by the interim order and the 2 year order was to keep the appellant away from public transport and places where people might catch a bus, ferry or a train during periods when children and young people might be expected to travel to and from school and elsewhere on public transport. The interim order was clearly more targeted, being confined to two periods on weekdays. The second form of order was much more encompassing, only allowing travel between 10.00 am and 2.00 pm on weekdays (the weekends apparently not being covered by the order) or outside of those hours when the travel was for an authorised purpose.
Four of the offences committed by the appellant when he failed to comply with the order, involved breaches of the final child protection prohibition order. They were committed upon the following dates and in the following circumstances.
On 3 April, a Friday, at 6.30 pm the appellant was at the Perth railway station. The court was not told why he was there. On Wednesday, 29 April he was again seen at the Perth railway station at 9.25 am. He arrived there by train and so presumably he had come to the city for some reason.
On Tuesday, 5 May 2009 at 8.35 am the appellant caught a bus at the Morley bus depot. He travelled to William Street, Perth where he alighted. He walked to the Esplanade bus port on Mount's Bay Road, arriving there at about 9.52 am. He must have been observed and of course his travel was prohibited. He stayed at the bus port until 11.20 am when he was arrested as he attempted to board a bus bound for Cottesloe.
I did not understand this matter completely because from 10.00 am it was lawful for him to be at the bus port and his travel by bus to Cottesloe at about 11.20 am would no doubt have been lawful travel. I presume the appellant was kept under surveillance to see what he would do and then was arrested in respect of his travel from Morley to the city by bus at the earlier time, when it appeared that he was proposing to leave the bus port.
Finally, on Wednesday 6 May 2009 the appellant apparently had to attend the Perth Magistrates Court for an appearance in respect of what were described as 'other matters'. What they were does not appear from the papers but apparently after what must have been a short appearance he was remanded on bail. He was said then to have remained in the city (whether he was under surveillance by police officers is not clear), until at 1.55 pm he was seen to enter the Esplanade bus port. That of course would leave no time for lawful transport.
He was approached by Perth Transport Authority staff and was asked why he was there. I presume it would have been clear that after 2.00 pm he was there contrary to the terms of the prohibition order. Apparently the appellant said he needed to get home, but he was told to leave. He did not do so. When the facts were given to the Magistrates Court his Honour was told that the appellant boarded a bus at 2.49 pm, from which he alighted in St George's Terrace, Perth, where it was said he caught another bus at 2.44 pm, upon which he travelled to Bentley, which I was told was where the appellant's father worked.
Of course the times must be wrong, but nobody seems to have noticed. In any event it would seem to be clear that this was prohibited travel. His Honour the magistrate was told that later, when asked, presumably by the police upon his arrest, the appellant said he had caught the buses to go to his father's work place to get a lift home.
The appellant was a young man of 23 years when the offences were committed between 3 November 2008 and 6 May 2009. More significantly he is accepted to be a sufferer of autism and to be of borderline intellectual capacity having an IQ of just under 70, the accepted cut‑off for intellectual disability. Before the magistrate the prosecution, represented by counsel, made extensive submissions on sentence, observing that these were close to the first charges of offences of this kind which had been brought under the Act.
In relation to the appellant's intellectual disability prosecuting counsel observed that she was aware of a psychiatric report to the court dated 17 August 2009, which apparently pronounced the appellant fit to plead. Although the offences before the court involved breaches of interim and final prohibition orders made on 14 August 2008 and 28 November 2008 respectively, the magistrate was informed that the appellant had been a 'reportable offender' within the meaning of the Act following his conviction on 18 August 2004 of two offences of aggravated indecent assault, presumably offences committed against a child or children. It seems that he had been subject to prohibition orders of some kind since 31 March 2005.
The appellant has a criminal history as an adult dating from the convictions incurred in August 2004. It is a rather odd criminal history, no doubt reflecting the appellant's autism and mental disability. For example there is only one conviction in March 2005, for creating a false belief; a bomb hoax. Similar convictions were incurred in 2006 mingled with occasional offences of public indecency, disorderly behaviour and minor violence. More seriously in October 2007 the appellant was convicted of stalking and he was involved in breaches of a violence restraining order and community based orders in 2008.
The 2009 offence of indecent assault for which the appellant was sentenced to imprisonment and which was the subject of the appeal to Simmonds J, is certainly the most serious of the offences committed by the appellant, but it is the only sexual offence of any seriousness committed since 2004. Otherwise, although it may be said that there is some escalation of the offending behaviour and an increased tendency to breach orders of the court, the record could not be described as being particularly serious.
It is noteworthy also that, although the appellant has apparently been a registered reportable offender since 31 March 2005, the offences for which he was dealt with by his Honour the magistrate on 17 March 2010 were the only offences of that kind committed by him, and it may be significant that the terms of the prohibition orders made in 2008 were severe and substantially restricted the appellant's capacity to use public transport, which it seems he was in the habit of doing.

The decision of the magistrate

As I have said prosecuting counsel made lengthy submissions upon the statutory scheme, its purpose and significance. What she said may be summarised, I hope without doing injustice to her useful address, by saying that the legislation was particularly directed towards sexual offenders and most particularly towards paedophilia. Offenders are to be supervised and monitored once released into the community after serving the sentences imposed upon them.
The child protection prohibition orders are a mechanism designed to reduce the risk of re‑offence by reducing the opportunity for unsupervised contact between such offenders and children. Preventative orders of that kind, counsel observed, 'are worthless if they are not complied with and strictly enforced'. Although the offences committed by the appellant were simple offences under s 101(1) of the Act, punishable summarily, the maximum penalty for each such offence was a fine of $12,000 and imprisonment for 2 years.
Counsel argued that here the repetition of the offences was serious and showed an unwillingness to be bound by a prohibition order, and that the pleas of guilty were not early pleas, having been made on a day when the matters were listed for trial. Counsel conceded that the offending was causally related to the appellant's mental disability and that that would have an effect on the sentence to be imposed, reducing the suitability of the case for purposes of general deterrence.
But at the same time, counsel observed, the appellant needed to be deterred from further such offending and the court should have regard to the legitimate concerns in respect of the need to protect the community. Imprisonment to be immediately served cumulatively upon the existing terms was, she argued, the appropriate disposition in each case.
Defence counsel agreed that imprisonment was the only available option, given that the appellant was already serving a term of imprisonment for indecent assault, but he argued that if there was to be some accumulation of the terms, nonetheless the effective sentence should be as short as possible given that the nature of the offences was, 'lower down the scale' of such offences and given the disability of the offender, leading to a reduced capacity to comply with such an order.
Unfortunately, it seems that towards the end of the plea in mitigation the audio recording system failed and his Honour's remarks when passing sentence were not recorded. However, I received in evidence an affidavit by Ms Pedersen, a lawyer employed in the office of the State Solicitor. She was the prosecuting counsel before the magistrate and she noted his Honour's sentencing remarks. Her affidavit puts the matter as follows:
10.Based on those notes I am able to say that Magistrate Lawrence accepted the prosecution's submission that the 5 counts of failure to comply with a prohibition order without reasonable excuse were serious breaches. He said that they were also deliberate breaches. He recognised that the prohibition orders were protective orders and required strict compliance.
11.In sentencing Mr Knott, Magistrate Lawrence expressly took into account the following mitigatory factors:
•      Mr Knott did not have any additional contact with any person while breaching the orders and that the breaches were 'general' breaches;
•      that Mr Knott has a limited ability to comply and comprehend the orders because of his mental impairment; and
•      that Mr Knott pleaded guilty, albeit at a late stage.
12.Magistrate Lawrence also expressly took into account the following additional factors:
•      Mr Knott's previous conduct, by reason that the prohibition orders were imposed as a result of that conduct;
•      that the sentence should have both a general and a specific deterrent effect;
•      that limited consideration is given to the need for general deterrence by reason that Mr Knott's limited intelligence and his mental impairment do not make him an appropriate example to others;
•      that there is a need to protect the community; and
•      that there is a need to ensure that orders are complied with.
I may say immediately that his Honour does not appear to me to have overlooked any matter relevant to the sentencing exercise. The sentences he imposed, with eligibility for parole, were five terms of 6 months imprisonment to be served concurrently with each other but cumulatively upon the existing terms. His Honour rejected the prosecution submission that separate cumulative terms of imprisonment for the separate breaches would be appropriate. He did so on totality grounds.
The effect of his Honour's sentences and the additional term of 6 months imprisonment with eligibility for parole was an aggregate term of 19 months and 1 day imprisonment dating from 7 August 2009. As I have observed, that term would expire on 7 March 2011, parole having been denied on 25 May 2010.

Having granted the necessary extension of time and having heard argument on the appeal I granted leave to appeal on both of the grounds of appeal and allowed the appeal. I set aside the sentences imposed by his Honour the magistrate. In relation to the first four offences, those committed on 3 November 2008, 3 April 2009, 29 April 2009 and 5 May 2009 I imposed sentences of 3 months imprisonment. For the last of the offences, that committed on 6 May 2009, I reimposed a sentence of 6 months imprisonment. I ordered all of those sentences to be served concurrently with a commencement date of 17 March 2010, the date upon which the appellant was sentenced in the Magistrates Court. No question of eligibility for parole arose. That having been done the appellant would be discharged from those terms on 17 September 2010, the day after I heard the appeal.

The grounds of appeal

They are set out in the appeal notice as follows:
1.The Learned Magistrate erred in law in imposing a sentence that was manifestly excessive in light of the circumstances of the offending, the personal circumstances of the Appellant, particularly his disability, his pleas of guilty, and sentencing standards.
2.The Learned Magistrate erred in law by failing to adequately take into account the totality principle in making the sentence of 6 months imprisonment cumulative on the Appellant's prior sentence, in that the total sentence did not bear a proper relationship to the overall criminality involved in all the offences.

The sentences were excessive

I should start by discussing the provisions of the Community Protection (Offender Reporting) Act. The long title of the Act expresses the policy to which the Act is concerned to give effect. It is:
An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re‑offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.
Prohibition orders may be made to apply to a person who is a 'reportable offender' within the meaning of s 6 of the Act. The appellant is a reportable offender under s 6(2)(b)(i) in that before the commencement day, in fact on 18 August 2004, he was sentenced for two offences of aggravated indecent assault. Indecent assault, if the person against whom the offences is committed is a child, which as I have said I assume to be the case here, is a reportable offence. It is a class 2 offence within sch 2 to the Act by virtue of s 9(b) and s 11(a).
Section 6(2)(b) of the Act was proclaimed to come into effect on 1 July 2005 (Government Gazette, 24 December 2004, page 6266). Under s 6(2)(b) at least one of the two reportable offences has to have been committed within eight years before the commencement day. I assume that is the case here, but I note in passing that since then, until the indecent assault of which the appellant was convicted on 29 September 2009, he committed no other reportable offence.
An interim child protection prohibition order, for which provision is made in s 92 of the Act, was made in this case and breached. The final order was a child protection prohibition order made under s 90. Section 90(1) provides:
(1)A court may make a child protection prohibition order prohibiting a person from engaging in conduct specified in the order only if the court is satisfied that the person is a reportable offender and -
(a)that the person poses a risk to the lives or sexual safety of one or more children, or children generally; and
(b)that making the order will reduce that risk.
Without limiting what may be the proper subject of a prohibition order s 93(1) provides:
(1)A prohibition order may prohibit conduct of any of the following kinds -
(a)associating with or other contact with specified persons or kinds of persons;
(b)being in specified locations or kinds of locations;
(c)engaging in specified behaviour;
(d)being in specified employment or employment of a specified kind.
It is therefore the case that the nature of the offence of failing to comply with a prohibition order must be considered having regard to the fact that such an order is directed towards governing the behaviour of the reportable offender to the extent considered necessary, in the view of the court, to reduce a risk posed by the person who is the subject of the order, 'to the lives or sexual safety of one or more children, or children generally'.
That being the case a primary focus for a sentencing court in determining the seriousness of the failure to comply with such an order must be the nature of the failure and whether it is established that the motivation was to provide an opportunity to commit a further sexual offence involving children or a child, or whether the motivation was innocent, even though it might not constitute a reasonable excuse for the failure: s 101(1). The breaches of the order here seem to have involved an innocent and otherwise lawful activity.
The appellant is clearly a regular user of public transport. He tends to occupy himself by coming into the city. The first offence simply involved him being in the vicinity of a railway station. It was just before 4.30 pm. There was no evidence as to why the appellant was there or what his intentions were. The second offence again simply involved the appellant's presence on the Perth railway station at a prohibited time, 6.30 pm. This was not a time when children would be expected to be unaccompanied on a train in vulnerable circumstances. There was no evidence about why the appellant was there or where he was going.
Again, in relation to the travel from Morley to Perth early in the morning of 5 May 2009 there is no evidence to suggest that there was anything more to mark the seriousness of that offence than that it constituted a breach of the prohibition order. The facts would suggest that this was simply an aimless journey. There was no evidence to suggest that the appellant was motivated by any purpose of providing an increased opportunity for the commission of a sexual offence against a child, or any other person.
The most serious of the offences, was the last offence, committed on 6 May 2009. It was serious because the appellant was questioned at the bus port just before the expiry of the period during which his presence there and travel would be lawful. He was told to leave, presumably having regard to the prohibition order, but he deliberately remained and caught the two buses which took him to Bentley, close to his father's place of work. There was a deliberate flouting of the terms of the order, but not, it should be said, apparently for any unlawful purpose. There is nothing to suggest that he was not genuinely travelling to meet his father to get a lift home.
As to the pleas of guilty made on the morning of the trial, it is not simply the case that these were belated pleas. At earlier stages of the progress of these charges consideration was given to fitness to plead and the suitability of the enrolment of the appellant in an intellectual disability diversion programme. Reports about that were provided to the court, I was told.
Adjournments were occasioned when the appellant's legal representatives were considering the question of the appellant's guilt. The question was whether he had a reasonable excuse for any of the travel which would prevent it being an offence, although contrary to the terms of the prohibition order, and whether the terms of the order lacked clarity.
I was told that ultimately those matters were resolved after discussion between lawyers for the prosecution and the defence and that the appellant made the pleas of guilty when he was advised to do so. In those circumstances it seems to me that the pleas were to be given weight as evincing a willingness to cooperate with the processes of the court and an acceptance of responsibility for the offending behaviour. The pleas of guilty had some real mitigatory power on that basis.
Then there was the question of the appellant's mental disability, to be carefully considered. This case is unusual in that regard because in his Honour's judgment given on 24 February 2010, and which was before the magistrate on 17 March 2010, Simmonds J held that the combination of the appellant's autism and intellectual disability was causally related to the offending at issue in that case, the indecent assault committed on 16 July 2009, during the period of the commission of the offences with which his Honour the magistrate was concerned on 17 March 2010.
Simmonds J held that this combination of conditions with which the appellant was afflicted would, although leaving the appellant's criminal responsibility intact, reduce his moral culpability. In addition, there was evidence before Simmonds J which caused his Honour to hold that imprisonment as a punishment would be more difficult for the appellant than would ordinarily be the case and should be regarded as a more severe punishment.
In Knott v Moriarty Simmonds J reviewed the relevant authorities. His Honour rightly mentioned the decision of the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398, 400 and the later decision of the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [5] where the court expressed the view that what was said in Tsiaras in relation to a serious mental illness would equally have application where an offender was shown to have been suffering at the time of the commission of the offence and/or at the time of sentencing, from a mental disorder or abnormality, or an impairment of mental function, whether or not the condition in question was properly to be described as a mental illness.
To his discussion of those decisions Simmonds J added a reference to the judgment of Steytler P (McLure & Miller JJA agreeing) in F v The State of Western Australia [2008] WASCA 100 [38] ‑ [41]. Of course the seminal Western Australian decision is Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 in which the leading judgment was that of Malcolm CJ (Wallwork J agreeing). In that case I differed from the majority in relation to the application of principle affecting the disposition of the appeal, but I concurred in their Honour's statements of principle.
There have been other cases in this court where the generally applicable principles have been reaffirmed more recently. Wheeler v The Queen [No 2] [2010] WASCA 105 was a case which primarily concerned the question whether new evidence in relation to a psychiatric condition suffered by an offender, but not diagnosed until after he was sentenced, should be admitted before the Court of Appeal. In the course of their judgments McLure P (Newnes JA agreeing) and Owen JA restated the principles in consistent terms.
Their Honours did that also in a decision delivered on the same day, Butler v The State of Western Australia [2010] WASCA 104. That was an unsuccessful appeal against a sentence passed by Johnson J for the crime of wilful murder. Her Honour sentenced the offender to life imprisonment with a minimum term of 19 years. The question on appeal was whether the minimum term exceeded the bounds of an acceptable exercise of discretion. The appellant was not mentally ill but at the time of the commission of the offence he suffered from a drug induced psychosis. However the general principles in relation to the impact on sentencing of mental disorder were applied, despite the fact that the psychosis resulted from drug abuse voluntarily inflicted upon himself by the offender.
In this case, as I have said, his Honour the magistrate adverted to the fact that he had regard to the impact on the sentencing process of the conditions from which the appellant suffered. The question is whether he placed sufficient weight on these considerations, and to arrive at a decision about that it is necessary to have a clear understanding of how in this case the sentencing process would be affected by the appellant's condition.
In the first place it was clear that, at least in a general sense, the commission of the offences was causally related to the appellant's condition. He seems to have been unable readily to grasp the importance of abiding by the terms of the prohibition order. It seems he had difficulty in grasping the fact that he could not simply set aside the order and undertake travel for any legitimate purpose which he wanted to pursue, despite the fact that to do so would cause him to breach the order.
His moral culpability was reduced and this was a case where punishment was to be mitigated by reason of that reduced state. The question of particular deterrence was not to be disregarded but no more severe punishment was to be imposed than might be supposed to be sufficient to bring home to the appellant that there could be dire consequences for him if he continued to offend in this way.
However the appellant was an offender of a kind which made the issue of general deterrence substantially irrelevant to the sentencing process. The best chance of protection for that element of the community regarded as being substantially at risk from the offender lay in preventing further offending by him, albeit not at the expense of what Malcolm CJ described as the overarching principle of proportionality. Further, in that regard, it was not to be overlooked that even if imprisonment was thought to be required, the appellant would suffer in the prison environment to a greater extent than an ordinary offender subjected to that punishment would experience.

The totality principle

I have already observed that this was a difficult sentencing task in which it was important to ensure that the final outcome was properly proportionate to the culpability of the offending behaviour, having regard to the particular circumstances of the appellant. The question of cumulative punishment or the necessity to abandon accumulation having regard to the application of the totality principle was the particular aspect of the sentencing process which raised the question of totality in an acute form.
In my opinion, proportionality is in any event the proper application of the totality principle. I recently restated my views in that regard in Sheedy v Riolo [2010] WASC 170, referring to earlier authorities. The question in this case was not whether accumulation of the terms was 'crushing' in the sense that it would result in an aggregate term so severe as to destroy all reasonable expectation of a useful life upon the completion of its service. The question was whether accumulation of the sentences to be imposed, wholly or partially, would result in an aggregate term which in all the circumstances should be regarded as disproportionately severe.
I am rather inclined to the view that, although his Honour the magistrate referred to this consideration, his conclusion that total accumulation of the terms he proposed to impose would have a crushing effect on the appellant and should be rejected, distracted his Honour from the more useful consideration of total proportionality, when the imposition of sentences of imprisonment for the offences before him were considered in the context of service of the term of imprisonment (without regard to the question of eligibility for parole) previously imposed.
I was asked by the appellant, by way of counsel's submissions, to measure this sentencing process and its outcome against sentences imposed in other cases. Counsel had gone to considerable trouble to collect a series of what might be regarded as comparable cases. I have read the judgments to which she referred and in the end the exercise does not seem to me to be useful, because this is a case substantially unlike many of the other cases to which reference was made.
A good example is Hodder v Skamp [No 2] [2009] WASC 53 (Johnson J), a case concerning four offences of failure to report to police and two associated offences of obstructing a police officer and escaping lawful custody. In the end, on appeal, for those six offences a global fine of $3,000 was set aside and a global fine of $1,500 was substituted. Reference to this case did not assist me.
A number of cases of breaches of violence restraining orders were referred to. They seem to me to be different in essence from this case and often from each other. The same observation may be made about cases decided in Queensland and New South Wales under comparable legislation in those States.

My conclusion summarised

I have set out what I regard as the significant features of the commission of these offences. There is no evidence that they were offences committed in an effort by the appellant to position himself so that he might have the opportunity to commit a sexual offence against a child, or indeed any person. So far as his purposes were known they appear to have involved lawful activities, made offences only by reason of the terms of the prohibition orders which were breached.
Their seriousness was, however, elevated by their repetition. But again it seems to me that the moral culpability of the appellant in that regard was reduced because he was the sort of person he is and he would have difficulty grasping the seriousness of his behaviour and the importance of abiding by the orders of the District Court.
He accepted responsibility for his behaviour by the pleas of guilty entered. They mitigated punishment. Given that the legitimate aims of sentencing in this case, to which I have extensively referred above, could only be achieved by imposing the punishment of imprisonment to be immediately served (a legitimate view, in my opinion) it was still necessary, I think, to differentiate between the relative seriousness of the offences in the length of the terms of imprisonment chosen.
They could be reduced, and should have been reduced, in the first four cases, below the effective minimum of 6 months and 1 day under the Sentencing Act 1995 (WA) s 86, because they were to be imposed in the context of the other terms to be served. As has been seen, I thought the relative seriousness of the last offence should be recognised by the greater term. It was, in my view, about twice as serious as the relatively minor infractions involved in the commission of the first four offences.
Then the question of the totality principle loomed large. Ordinarily there could be no argument with the imposition of cumulative terms of imprisonment. These were separate breaches of the law, separate from each other and separate from the offence committed in July 2009 for which the appellant had previously been sentenced. However, having regard to the particular circumstances personal to the appellant, his autism and his intellectual disability, and the impact of imprisonment upon him, in my opinion accumulation of the terms had to be abandoned and they should have been imposed to be served concurrently from the date of their imposition.
The imposition of terms of imprisonment would be calculated to make clear to the appellant that if he was to continue to offend in this way he might expect to be punished by imprisonment of some substance and of course, if he were not otherwise required to serve a term of imprisonment, such punishment would take effect immediately. If that lesson was able to be leaned the aim of particular deterrence would be well served.
It was for those reasons that I allowed the appeal, set aide the sentences imposed and resentenced the appellant in the terms set out above.