Knox-Cumming v Macdonald - [2018] WASC 164

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Knox-Cumming v Macdonald

Details

AGLC: Knox-Cumming v Macdonald [2018] WASC 164
Case: [2018] WASC 164
Decision Date: 1 JUNE 2018

CaseChat Overview and Summary

The case of Knox-Cumming versus Macdonald was heard in the Court of Appeal. The appellant, Knox-Cumming, sought to appeal his sentence for a crime he had committed. The case turned on the interplay between the appellant's mental illness and the sentence imposed upon him, with an additional focus on the principles of general deterrence and the potential for a conditional release order. The appeal was based on the argument that the original sentence did not adequately consider the appellant's mental health condition and whether a conditional release order should have been imposed.

The primary legal issues the court had to address were whether the original sentencing decision adequately accounted for the appellant's mental illness and if the sentence was appropriate in terms of general deterrence. The court was also required to consider whether a conditional release order should have been applied. The appeal hinged on whether the original sentencing judge had erred in failing to properly consider the appellant's mental health status and the implications this had for the imposition of an appropriate sentence.

In delivering the judgment, the court held that the original sentencing decision had indeed failed to properly consider the appellant's mental illness. The court found that the original sentence did not sufficiently address the appellant's mental health issues and that a conditional release order should have been considered. The appeal was allowed on the grounds that the original sentence did not adequately reflect the appellant's mental health condition and that the principles of general deterrence had not been appropriately balanced with the appellant's personal circumstances. The court subsequently ordered a re-sentencing hearing to be conducted with due regard to the appellant's mental health.

Orders