Knox-Cumming v Macdonald
[2018] WASC 164
•1 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: KNOX-CUMMING -v- MACDONALD [2018] WASC 164
CORAM: ARCHER J
HEARD: 3 - 4 MAY 2018
DELIVERED : 4 MAY 2018
PUBLISHED : 1 JUNE 2018
FILE NO/S: SJA 1033 of 2018
BETWEEN: HARMONY KNOX-CUMMING
Appellant
AND
GUY MACDONALD
First Respondent
GREGORY BOXSHALL
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G SMITH
File Number : PE 4060/2018, PE 68080/2017
Catchwords:
Appeal against sentence - Mental illness and general deterrence - Re sentencing - Conditional Release Order
Legislation:
Mental Health Act 2014 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr F Merenda |
| First Respondent | : | Mr B Murray |
| Second Respondent | : | Mr B Murray |
Solicitors:
| Appellant | : | Mental Health Law Centre |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gok v The Queen [2010] WASCA 185
Harris v The State of Western Australia [2016] WASCA 34
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
Lauritsen v The Queen [2000] WASCA 203
Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1
Ninyette v Holmes [2015] WASC 287
Paparone v R (2000) 112 A Crim R 190; [2013] WASCA 127
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Smith v The State of Western Australia [2010] WASCA 176
Strahan v Brennan [2014] WASC 190
Suleiman v The State of Western Australia [2017] WASCA 26
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494
ARCHER J:
(The judgment on appeal was delivered extemporaneously on 3 May 2018 and has been edited from the transcript and citations added. The reasons for the new sentence imposed were delivered on 3 and 4 May 2018 and have been edited from the transcript and citations added).
Introduction
On 17 April 2018 the appellant was sentenced in relation to multiple offences in the Magistrates Court. She was sentenced to imprisonment in relation to two of the offences, being an assault public officer (Assault Police) and a trespass. She received a global fine in relation to the other offences. The appellant seeks leave to appeal against the two sentences of imprisonment.
The appellant alleges, among other things, that the learned magistrate made an express error in finding that the appellant's significant mental health issues did not impact on the need for general deterrence.
The respondent concedes that the magistrate made this error. As I will explain, that concession was rightly made.
The appeal should be allowed
The appellant has a long‑standing serious mental illness. It was not disputed that her mental illness materially contributed to the offences.
Her counsel submitted to the magistrate that the appellant was not a suitable vehicle for general deterrence due to her mental illness. Her counsel at that time was Mr McDonald.
The magistrate expressly rejected this submission. The magistrate said that everybody is a suitable vehicle for general deterrence in offences of assaulting police officers. The magistrate considered that the appellant's mental illness could only be relevant to specific deterrence. [1]
[1] See transcript of 17 April 2018 page 20 – 21. See also page 30.
While this was said by the magistrate in the course of an exchange with counsel, it is clear that this is how the magistrate dealt with the issue in sentencing the appellant. This is apparent from the transcript from the last paragraph of page 29 to the first paragraph on page 31. In particular the magistrate said on page 30:
General deterrence in relation to assault public officer is an important consideration and in this particular case my view is that specific deterrence is also important.
His Honour did reduce the length of the term for the Assault Police offence from 7 months to 5 months to take into account the 'particular difficulties which Ms Knox‑Cumming faces, and which she has to deal with'.[2]
[2] ts 31.
However, at no point did the magistrate consider whether the appellant's mental illness made her an unsuitable vehicle for general deterrence. His Honour expressly found that general deterrence was an important consideration in this case. It is apparent that his Honour considered that a mental illness could not operate in such a way as to make a person an unsuitable vehicle for general deterrence.
This was an error of law. The existence of a mental illness (that has not been self‑induced) may reduce or, in an extreme case, eliminate general deterrence as a sentencing consideration.[3]
[3] Smith v The State of Western Australia [2010] WASCA 176 [73]. Smith was recently cited with approval in Suleiman v The State of Western Australia [2017] WASCA 26 [59]. See also Gok v The Queen [2010] WASCA 185 [54] and [59].
The error of law was express. It was not merely infelicity of language caused by the large volume of cases magistrates are required to deal with every day.[4]
[4] See Strahan v Brennan [2014] WASC 190 [89] – [90].
The respondent did not contend that the appeal should be dismissed on the ground that no substantial miscarriage of justice has occurred. This was, with respect, appropriate. The error was not immaterial or inconsequential.[5]
[5] Ninyette v Holmes [2015] WASC 287 [65]; WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [239] ‑ [241].
Accordingly, it is appropriate to grant leave to appeal and allow the appeal.
The parties agreed it was appropriate for me to set aside the sentences imposed by the magistrate, and re‑exercise the sentencing discretion.
The appropriate disposition
The appellant has significant mental health issues, including cognitive impairment. It is apparent from the transcript of the Magistrates Court proceedings and the bail application in this court that the appellant has very limited capacity to endure sitting in court, and to follow what is being said.
On that basis, it would be open to me to direct that the sentencing proceed in her absence. However, I have decided that the best approach is to deal with much of the sentencing remarks in her absence, but then to actually sentence her by video link. This will ensure that her concentration is only imposed upon for a short time, and will give me the opportunity to explain to her what I need to explain:
•Why I have reached the view that I should impose a CRO;
•Why she needs to go to the first appointment at the Midland Community Mental Health Centre; and
•The consequences if she breaches the CRO.
The facts
The two offences for which the appellant was sentenced to imprisonment were an assault public officer (the Assault Police offence) and a trespass (the Trespass offence).
The Assault Police offence occurred on 15 December 2017. The appellant stepped towards a female police officer and punched the officer to the officer's upper back. The officer was not injured[6] and felt it as a thud. It is relevant to note that the appellant is apparently of slight build.
[6] ts 5, 7, 17 April 2018.
The officer was in full uniform. Despite this, the appellant apparently thought that the officer was someone called Amy, and said that she (Amy) had 'ruined the show' and that she (Amy), and Amy's husband had raped her (the appellant).
The trespass offence occurred on 20 December 2017. The appellant climbed over a locked side gate into the rear yard of a home. She did not know the occupants. While there, she committed a further offence of damage, by throwing a garden rock through a rear glass window. She did not intend to go inside.
Personal circumstances
I have been provided with a psychiatric report of Dr Schineanu dated 6 December 2017 and a psychiatric report of Dr Corbu in relation to a review on 24 February 2016. I have also been invited to have regard to an oral pre‑sentence report from a Community Corrections officer, given on 17 April 2018, for the purposes of the sentencing that day, the subject of this appeal. I have also had regard to the plea in mitigation made to the magistrate on that day, and the oral submissions made to me today. I have also received a copy of the appellant's criminal history. From this, I have taken the following information about her personal circumstances.
The appellant is now 26 years old. She had a difficult childhood, spending times in foster care and being subjected to sexual abuse. She has suffered mental health issues since her adolescence, and I will talk more about that later.
She has a long‑standing history of illicit drug use. No doubt this contributes to her mental health problems, but her drug use is not the dominant cause of her mental health issues, and she would still be significantly unwell even if she used no drugs at all.
The appellant has spent a lot of time living on the streets.
Apart from a few months' work as a receptionist shortly after she left school after year 10, the only work she has had is as a sex‑worker. She is now unemployable and receives a disability support pension.
The appellant is under a guardianship order at the moment.
Mental health
Doctor Schineanu saw her in Bandyup Prison on 5 December 2017, shortly before these two offences were committed. At the time he saw her, he considered that she was suffering from a major mental illness with active psychopathology, despite the fact that she had been under treatment and protected from using illicit drugs since being in prison.
I make the observation that while being on remand does not necessarily guarantee that the appellant was not using illicit drugs, it has not been suggested that she was. Certainly, no urinalysis reports have been adduced. I am prepared to accept that the appellant was clean and yet despite that, and despite the fact she had been under treatment, she was still suffering active psychopathology.
Doctor Schineanu's report recorded his diagnosis on page 7 and 8 of his report:
Axis 1 Clinical diagnoses – this axis is for reporting all psychiatric disorders:
•Chronic schizophrenia, treatment resistant;
•Mental and behaviour disorder due to psychoactive substance abuse with past episodes of drug induced psychosis;
•Acquired cognitive damage due to substance abuse and chronic schizophrenia;
•Huntington chorea, preclinical stage (No specific active symptoms at the present time).
Axis II Disabilities – This axis is for reporting current disabilities/impairments such as personal care, occupation, family and household, and the broader social context.
•Personal care: major disability due to lack of insight with regard to her problems and the need for treatment;
•Occupation: major disability. She is not fit for employment; she is on a Disability Support Pension;
•Broader social context: She does not have appropriate and consistent family support from her family. Her financial affairs are managed by the Public Trustee.
Axis III Contextual factors - This axis is for reporting factors of significant influence on occurrence, presentation and outcome of disorders recorded on Axis I.
•Criminal proceedings related to criminal offences;
•Unemployable;
•History of substance abuse;
•History of poor treatment compliance.
Doctor Schineanu noted the issues that were relevant to her future functioning at a personal and social level and her future re‑offending risk at [35] of his report:
(a)Treatment resistant schizophrenia in poor clinical remission even when treated for long periods in hospital;
(b)Her entranced [sic] history of noncompliance with treatment whilst in the community;
(c)The comorbid substance abuse problems for which she has refused treatment/rehabilitation in the past;
(d)Her lack of insight into her mental, personal and social problems;
(e)The evidence of frontal lobe dysfunction secondary to both her substance abuse and her mental illness;
(f)The possibility that she will develop a Huntington chorea which would exacerbate her underlying mental illness.
Doctor Schineanu concluded, in relation to the offences the appellant was then facing (not these charges):
at the time of the index offences she was suffering from an active mental illness (chronic schizophrenia) which together with her other co‑morbid problems (substance abuse, personality issues/brain dysfunction) have impaired her ability to exercise adequate judgment and control upon her decisions and actions. However, I do not believe that at the time of committing the offences she was deprived of knowing that what she was doing was wrong and unlawful.
There is no psychiatric report in relation to the offences the subject of her appeal. However, I am prepared to infer that the same conclusion can be drawn, and should be drawn, in relation to these offences. The State accepts that this is the appropriate inference to be drawn.
Time in custody
The appellant has been in custody for some time in relation to these offences. On the day of her sentencing, 17 April 2018, her sentence was backdated to 12 February 2018, reflecting 10 weeks in custody. She has also been in custody since then, being a further two weeks and two days.
Prior offending
The appellant has an extensive criminal history.
Much, but not all, of her record relates to relatively minor offences. These include stealing, summary drug offences, disorderly conduct, damage and trespass. However, she has prior convictions for three assaults public officer, three assaults occasioning bodily harm, an aggravated common assault, and four common assaults.
Her record indicates that she has not complied with a variety of court orders, including an intensive supervision order, community based orders, police orders, prohibited behaviour orders and bail conditions.
At the time of committing the Assault Police offence (on 15 December 2017), the appellant was on an ISO, although it was due to expire the next day.
It is common ground that she is not suitable for community supervision.[7]
[7] See ts 8, 17 April 2018 (Community Corrections officer) and ts 8 (counsel for the appellant in the Magistrates Court).
Because she has a criminal record, she is not entitled to the leniency that is given to first offenders. But she does not get more of a penalty because of it. She can only be, and will be, given a sentence that corresponds to the seriousness of the offences for which she is being sentenced. While this is something that is commonly said to offenders in the course of sentencing simply to reassure them that that is the fact, it has particular resonance in this case because the only justification for imprisoning the appellant here is the protection of the community. However, ultimately the punishment must fit the crime. I do acknowledge that her record suggests that the protection of society may be more important in sentencing her than a person with no criminal record, but still, the punishment must fit the crime.
Victim vulnerability
In determining the seriousness of the offences, I am required to take into account the vulnerability of any victim of the offences.
The police officer was vulnerable in the sense that police officers are required to present a public face of law enforcement, and may be targets of aggression for that reason. Police officers play an important role in our community. While it is unrealistic to expect that police officers will be able to discharge their duties without being subjected to random acts of violence, they are nevertheless vulnerable by the very nature of their duties. The community depends on police officers being willing to shoulder that risk, and police officers deserve to be protected from it to the extent that is possible, consistent with sentencing rules.
In relation to the trespass, it can be expected that the occupants of the home would have been disturbed by her trespass, particularly as it was combined with her act of throwing a rock through a window. While the damage was a separate offence, it was this that made the magistrate, understandably, view this trespass as serious.
Mitigating facts
Plea of guilty
The appellant pleaded guilty to both charges on the day she was sentenced. While this was not a plea of guilty at the first reasonable opportunity, I consider it is significantly mitigating. Her mental health would inevitably make it difficult for the appellant and her representatives to make the decision that is required by such a plea. Her plea has saved the victims and other witnesses from having to give evidence. Her plea also meant the State did not have to prove the charges.
Mental health
Mental health may be mitigating where it is not self‑induced and I am satisfied that the appellant’s mental illness is not self‑induced.
There are at least six ways in which mental impairment may be relevant to mitigation.[8]
[8] Smith v The State of Western Australia [73], citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
In her case, three apply.
First, I accept that her mental illness reduces her moral culpability. I am satisfied that her mental illness materially contributed to these offences. This affects the punishment that is just in all the circumstances. Further, denunciation of the type of conduct in which she engaged is less likely to be a relevant sentencing objective.
Second, I accept that general deterrence should be moderated to a significant degree. She obviously has a significant mental illness and I accept that it significantly affects her mental capacity. Further, while she is herself resistant to treatment, her illness is resistant to treatment, even when she is hospitalised. It also seems likely that her personal resistance to treatment is due to her lack of insight, which in turn is likely to be due to her mental illness and cognitive impairments.
Third, I accept that specific deterrence should be moderated to a significant degree. In her case, I doubt that any punishment would actually operate as a deterrent on her. I also doubt that any punishment would make it more likely she would comply with treatment. In my view, her resistance is rooted in her lack of insight, which will not be improved by punishment.
However, the mitigating value of a mental illness may be limited by the risk of re‑offending, lack of insight into the mental illness and entrenched drug use.[9]
[9] Harris v The State of Western Australia [2016] WASCA 34 [28].
In addition, a mental health issue may be aggravating (or offset[10]) because, for example, it leads to a conclusion that the offender will represent a continuing danger to the community by reason of further offending.[11]
[10] KWLD v The State of Western Australia [No 4] [2013] WASCA 185 [127].
[11] Paparone v R (2000) 112 A Crim R 190; [2013] WASCA 127 [50]. See also Lauritsen v The Queen [2000] WASCA 203 [41]. See also Suleiman [62], citing Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1.
In my view, her mental health does make it likely that she is, in the absence of special measures, an ongoing risk to the community. I accept that the vast majority of her offending is not serious. Nevertheless, in all of the circumstances relating to her mental health, it is appropriate to have regard to the protection of the community in considering the appropriate penalty. The circumstances include her mental illness' resistance to treatment, her personal resistance to treatment, her use of illicit drugs, and her risk of re‑offending in the absence of special measures.
However, my overall assessment is that her mental illness is significantly mitigating. In particular, as I have said, while the protection of the community is an important sentencing goal, the punishment must fit the crime. The total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to her personally. In her case, it is significant, in determining the overall criminality, that her moral culpability is significantly reduced by her mental illness.
Other mitigating factors
I also take into account her general antecedents, including her very sad history and the position she finds herself in now. She has little support and she is unemployable.
Disposition
Under the Sentencing Act 1995 (WA) I must not use a sentencing option in s 39(2) unless it is not appropriate to use any of the options listed before that option.
It is not appropriate to impose no sentence under s 46. To do so, I would need to be satisfied that the offences were trivial or technical.
I next consider if it is open to me to impose a conditional release order, in the unusual circumstances of this case.
If I was to impose a conditional release order, there is no minimum term required. The appellant has spent over 12 weeks in custody. She will be eligible for parole on 18 May 2018. In those circumstances, I consider one month would be the appropriate length for a CRO.
Section 47 permits me to impose a CRO if I consider two things: first, that there are reasonable grounds for expecting that the offender will not re‑offend during the term of the CRO; and second, that the offender does not need supervising by a community corrections officer during the term of the CRO.
Doctor Schineanu concluded that the appellant is a high risk of future re‑offending. He noted that the risk factors he had identified are unlikely to be effectively controlled after her release to the community. I agree that, in the absence of special measures, there is a risk of future re‑offending. However, special measures have been proposed and are in place.
The plan
The appellant has been made subject to a Community Treatment order (CTO) by Dr de Klerk, the Consultant Psychiatrist responsible for the appellant's care at the Melaleuca Remand and Reintegration Facility.
Dr de Klerk also arranged for a referral to be made to the Midland Community Mental Health Service, so that her care could be transferred to them if and when the appellant was released from custody.
The Midland Community Mental Health Service made an appointment for the appellant to be reviewed by Dr Singh, a consultant psychiatrist, and the social worker tomorrow. If, at that meeting, Dr Singh determined that the appellant needed to be placed in hospital they have the ability to detain her for an assessment in hospital on a Form 1A under the Mental Health Act 2014 (WA).
I have been provided with a helpful table of the relevant provisions of the Mental Health Act 2014 (WA) that set out the powers of relevant health professionals to make involuntary treatment orders. This includes the CTO that has been made and the terms that can be included, such as a mandatory condition that the patient must comply with all of the psychiatrist's directions about the treatment. The Act also gives powers to a psychiatrist, including the power to make the patient an in‑patient under s 123. The Act also provides for what happens if the patient is non‑compliant, and gives the psychiatrist powers to make orders for attendance and transport orders for police to convey the patient.
Two employees of the Mental Health Law Centre have agreed to collect the appellant from custody and take her to the appointment if she is released.
In my view, with all of this in place, subject to the appellant herself, there are reasonable grounds for expecting that the appellant will not re‑offend during the one month of the CRO. Further, the appellant does not need supervising by a CCO during that time, as she will be under the CTO.
During the video link with the appellant, I explained to her what a CRO involves. She confirmed that she was willing to attend the appointment. Accordingly, I am satisfied that there are reasonable grounds for expecting that she will not re‑offend during the one month of the CRO.
I therefore order that the appellant be placed on a Conditional Release Order for 1 month.
Orders
(1)Leave to appeal granted.
(2)Appeal allowed.
(3)The appellant to be placed on a Conditional Release Order in relation to charges PE 68080/2017 and PE 4060/2018 for the duration of 1 month.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER1 JUNE 2018
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