Korhonen v HUGO
[2012] WASC 5
•6 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KORHONEN -v- HUGO [2012] WASC 5
CORAM: EM HEENAN J
HEARD: 6 DECEMBER 2011
DELIVERED : 6 DECEMBER 2011
PUBLISHED : 6 JANUARY 2012
FILE NO/S: SJA 1084 of 2011
BETWEEN: KYM MARIE KORHONEN
Appellant
AND
SHANE MARK HUGO
First RespondentSTUART GODFREY MICHAEL PELLETIER
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 56963 of 2009, PE 56964 of 2009, MI 8426 of 2010, MI 8427 of 2010, MI 8431 of 2010, MI 11823 of 2010, MI 11824 of 2010, MI 11825 of 2010, PE 19240 of 2011
Catchwords:
Appeal - Application for leave to appeal - 3 years for burglary - Other concurrent sentences - Chronic mental condition reduces culpability - Excessive period
Legislation:
Criminal Code (WA), s 5
Sentencing Act 1995 (WA), s 81
Sentence Administration Act 2003 (WA), s 76
Result:
Leave to appeal granted on certain grounds but not others
Appeal allowed
Sentences varied
3 years' imprisonment varied to 18 months' imprisonment wholly suspended on conditions
Other sentences of imprisonment be varied by being wholly suspended on conditions
Category: B
Representation:
Counsel:
Appellant: Mr S A Gabriel
First Respondent : Ms C A Fletcher
Second Respondent : Ms C A Fletcher
Solicitors:
Appellant: Stephen Gabriel
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Lynch v The State of Western Australia [2011] WASCA 243
EM HEENAN J: This is an appeal against a sentence of 3 years' imprisonment with parole eligibility for burglary with concurrent sentences of imprisonment for 6 months for stealing a motor vehicle and for threats to injure, and concurrent sentences of 4 months for a series of breaches of bail conditions and for carrying an article with intent. There are nine proposed grounds of appeal in the appeal notice filed on 17 August 2011.
On 19 September 2011 Hall J gave directions extending time, giving leave to appeal in respect of the first ground listed in the appeal notice and referring the application for leave to appeal in respect of the other grounds for hearing at the same time as the appeal.
The first ground of appeal in respect of which leave has been granted is that the sentence imposed by the learned sentencing magistrate for the charge of burglary was, in all the circumstances, including the offending conduct viewed as a whole and with regard to matters personal to the appellant, manifestly excessive. Eight sets of particulars are given in support of that ground.
The second ground is that there was a miscarriage of justice in that the learned sentencing magistrate failed to suspend any term of imprisonment that was otherwise properly imposed in respect of the appellant.
The third ground is that there was a miscarriage of justice in that the learned sentencing magistrate failed to impose a community based order in lieu of any order of imprisonment that was otherwise improperly imposed in respect of the appellant.
The fourth ground is that there was a miscarriage of justice in that the learned sentencing magistrate received materials that should not have properly been before the court and there are particulars given.
The fifth ground is that there was a miscarriage of justice in that the learned sentencing magistrate found that the offending associated with the burglary had occurred over approximately 90 minutes, when the plea in mitigation indicated that such behaviour had not been continuous for that period.
The sixth ground of appeal is that there was a miscarriage of justice in that the learned sentencing magistrate properly saw the burglary and associated offending as being aggravated by the appellant having breached a community based order, but erred in failing to take into account, or adequately to take into account, the role that the supervision of the appellant played in circumstances where an intimate personal relationship had been allowed to develop between the appellant and supervisor which, whilst acknowledged to have been inappropriate, was seen as being benign in certain respects and one which the appellant had willingly entered into, suggesting that she was in a position of empowerment and able to give informed consent to commencing and pursuing such a relationship with her mental health case worker.
The seventh ground of appeal is that there was a miscarriage of justice in that the learned sentencing magistrate took the view that the appellant's children were in the process of being returned to her care and that this would only be delayed if imprisonment were imposed, whereas the children had been returned to her care in January 2010, some 18 months earlier.
The eighth ground of appeal is that there was a miscarriage of justice where the learned sentencing magistrate found that the circumstances associated with the burglary would justify a sentence of imprisonment in excess of 3 years, but failed to commit the appellant to be sentenced on indictment pursuant to s 5 of the Criminal Code (WA).
The ninth ground of appeal is that there was a miscarriage of justice associated with the learned sentencing magistrate failing to take into account the time spent in custody after the appellant was arrested for breaching the protective bail conditions.
In relation to the application for leave to appeal, I would give leave to appeal also in respect of grounds 2, 6 and 8 only. It follows that I refuse leave to appeal on ground 3 and on ground 4 notwithstanding the written submissions, because I do not consider that that has been influential in the result. I do not consider ground 5, ground 7 or ground 9 to be arguable and I refuse leave to appeal in regard to them.
The sentences which were imposed and which are the subject of these applications were all sentences imposed in the Magistrates Court in Perth on 5 July 2011. They are set out in the following table, conveniently provided in the written submissions for the respondent.
| Charge No | Offence | Offence | Max Penalty | Sentence |
| MI | Burglary | 30/5/10 | Indictable: 18 years' imprisonment | 3 years' imprisonment |
| MI 8427/10 | Assault | 30/5/10 | 18 months' imprisonment and $18,000 fine | No penalty pursuant to s 11 Sentencing Act 1995 |
| MI 8431/10 | Steal MV | 30/5/10 | Indictable: 7 years' imprisonment | 6 months' imprisonment |
| PE 19240/11 | Threats to Injure | 30/5/10 | Indictable: 3 years' imprisonment | 6 months' imprisonment |
| MI 11823/10 | Breach of Protective Bail | 18/9/10 | $10,000 fine or 3 years' imprisonment or both | 4 months' imprisonment |
| MI 11824/10 | Breach of Protective Bail | 23/9/10 | $10,000 fine or 3 years' imprisonment or both | 4 months' imprisonment |
| MI 11825/10 | Breach of Protective Bail | 3/10/10 | $10,000 fine or 3 years' imprisonment or both | 4 months' imprisonment |
| PE 56963/09 | Breach of CBO Criminal Damage | 22/9/09 | Indictable: 10 years' imprisonment | $250.00 fine |
| PE 56964/09 | Breach of CBO | 22/9/09 | 2 years' imprisonment and $24,000 fine | 4 months' imprisonment |
The circumstances of the first four offences, committed on 30 May 2010, are as follows. At the time, the appellant was a 34 year old with a history of mental health issues, drug and alcohol problems, and a criminal history including violent offences. The victim was a mental health worker aged 59 years, who had been the appellant's mental health case worker for approximately two years before the commission of the offences. The appellant and the victim had also been in an intimate relationship for the previous 18 months.
The victim recently ended the relationship, and on the night of 30 May 2010 the appellant was upset and wanted to speak with her. She attended the victim's home around midnight and, after being refused entry, entered without permission. The appellant was in the victim's flat for approximately the next 90 minutes, during which time she physically assaulted the victim and threatened her with further violence. The appellant then stole car keys and used them to take the victim's work vehicle. This car was subsequently returned undamaged a short time later at the request of police.
The next three offences relate to unlawful conduct on a subsequent occasion in September and October of 2010, whereby the appellant persistently contacted the victim in breach of her protective bail conditions. The first breach involved the appellant attending the complainant's house for some four hours (albeit with the complainant's consent), the second breach was a short telephone conversation in relation to an upcoming court case, and the third breach was an episode where the appellant attended the complainant's house uninvited, but was refused entry, and left after a short verbal exchange.
At the time of the offending on 30 May 2010 the appellant was on a community based order, imposed previously on 22 September 2009, for causing criminal damage to a glass window the property of Homeswest and for carrying an article, namely a kitchen steak knife, with intent to cause fear. As a result of breaching that community based order the appellant was sentenced for each of these two offences and, respectively, a fine of $250 and a period of 4 months' imprisonment, concurrent, was imposed.
The result is that the aggregate effect of all sentences is 3 years' imprisonment plus a $250 fine. There is no complaint against the fine and in relation to the shorter sentences, the appellant's complaint essentially is that if sentences of imprisonment were warranted, and I am satisfied that they were, that these should have been suspended. Most of the submissions, both oral and written, have been directed to the sentence of three years' imprisonment for the burglary offence.
Keeping in mind that a sentence outside the range of sentences customarily imposed is not necessarily manifestly excessive (see Lynch v The State of Western Australia [2011] WASCA 243 [10] (McLure P)) I am nonetheless satisfied that, having regard to sentences handed down in comparable cases to which I have been referred, the longest of which was 18 months' immediate imprisonment, the sentence of 3 years' imprisonment for the burglary offence was in all the circumstances excessive. It has been acknowledged in the submissions for the respondent that this sentence is outside the range of sentences usually imposed for comparable offences, even offences involving aggravated burglary, of which this is not one. For that reason alone it discloses an error in the exercise of the sentencing discretion by the learned magistrate which both permits and requires this court to intervene.
I am satisfied, however, that there is also a second error latent in his Honour's reasons for decision and that appears in the treatment given to the long history of the appellant's mental and psychological health and to her diagnosed mental condition which prompts her to lose control and resort to violence in stressful and other situations.
His Honour did not entirely ignore this condition. It is evident from his Honour's reasons for decision that he was fully informed of the condition and the history and specifically of the favourable reports tendered on the sentencing exercise by social workers, medical practitioners, psychologists and other therapists. However, his Honour, while acknowledging the existence of this mental condition, appears to have given it only very limited weight. At page 28 of the transcript of his Honour's reasons there is a passage which suggests that it was not recognised as being a material mitigating factor. Notwithstanding that his Honour expressly said:
There is no doubt that the mental condition contributed to the assault on the victim, but it is clear that the main motive and consideration for this assault was the fact that she had been rejected by her lover.
It seems from his Honour's analysis of the processes which led the appellant to commit these crimes that his Honour took the view that they were clear and deliberate crimes and to that extent not explained, or in any way reduced in culpability, by her mental condition. In my respectful view, his Honour has failed to give effect to the medical evidence in that respect, which indicates that this long, chronic mental condition caused the appellant to behave in an irrational and uncontrolled manner when faced with certain difficult moments in her life, and that it was almost certainly a powerful factor in her behaviour when she committed these offences.
It seems, therefore, that there has been inadequate attention given to this previous history of medical disorder which, so the medical reports and evidence from the referees reveal, is prone to encouraging control and treatment by a variety of therapies. The very situation in which these crimes commenced was itself peculiar. Without in any way implying any criticism of the victim, the situation was that the victim was a person who, as a mental health worker appointed to assist the appellant cope with her difficulties, had unwittingly contributed to a situation which made the appellant's control of those problems all the more difficult. It is extremely unfortunate for the victim that this was so and that she has suffered as extensively as she has, but the mechanisms at play meant that the kind of protection and treatment which the appellant was expected to receive in order to avoid the kind of behaviour which had caused her trouble in the past was less adequate than it might have been, again without in any way attaching blame or culpability, because of the relationship which developed between these two people.
The appellant does have a history of prior offending, including offences for violence, admittedly relatively minor violence. She had never previously been sentenced to a sentence of imprisonment, whether suspended or otherwise, but she had been placed on community based orders. There are convictions for minor offences of assault and damage resulting in small fines, and other offences for assault and a series of disorderly conduct type offences. These show an unfortunate history but it is significant that the last offences before these were in September 2009, resulting in the community based order. Before that there had been no offences since 2004 and the latest offence involving any form of violence was a conviction for assault occasioning bodily harm in January 2001. This is not to downgrade the importance of those convictions or how they reflect upon the appellant, but they do indicate that, with suitable supervision and management, she is capable of avoiding the commission of more serious offences.
It seems that, error having been shown in the sentencing process, this court should proceed to resentence. The circumstances of the appellant as detailed in these reasons and the cases to which I have been referred in the written submissions lead me to the conclusion that an appropriate sentence for the burglary offence is a sentence of 18 months' imprisonment.
In relation to all the other offences, except for those involving no penalty or a fine, the shorter periods of imprisonment imposed by the learned magistrate appear to me to be unexceptionable. So for the third offence, 6 months, the fourth, 6 months, the fifth, 4 months, the sixth, 4 months, the seventh, 4 months and the ninth, 4 months are all within an acceptable sentencing discretion. I consider that all those sentences should stand.
However, having regard to the factors which I have already mentioned and the prospects for satisfactory management of the appellant in the community, I consider that each of those sentences, the 18 months' imprisonment sentence and all the others, should be suspended on conditions under s 81 of the Sentencing Act 1995 (WA). Accordingly, I would substitute for the sentence imposed on the first offence a sentence of 18 months' imprisonment wholly suspended on conditions, and for each of the other sentences of imprisonment I would direct that it should be wholly suspended, again on conditions.
There should be the standard obligations required under s 83 of the Sentencing Act; that is, the offender should report to a Community Corrections centre within 72 hours of being released by this court, she must notify a Community Corrections officer of any change of address or place of employment within two clear working days; she must not leave the state except with, and in accordance with, the permission of the Community Corrections Department and she must comply with s 76 of the Sentence Administration Act 2003 (WA).
I consider also that there should be primary requirements under s 84 of the Sentencing Act; namely, a programme requirement under s 84A to allow for personal factors which contributed to the appellant's criminal behaviour to be assessed and to provide an opportunity for her to recognise, to take steps to control, and if necessary to receive appropriate treatment for those factors.
There should also be a supervision requirement under s 84B to allow for the appellant to be regularly monitored in the community and to receive regular counselling in a way and to an extent decided by a Community Corrections officer for the purpose of either or both rehabilitation or ensuring compliance with directions given.
I consider that these periods of suspended imprisonment should last for a total period of 18 months, but that that should date from the dates of the original sentence of 5 July 2011.
Each of the sentences, therefore, will be suspended for 18 months and that period shall commence from 5 July 2011 which will give credit for some time already served. I also direct that if a circumstance ever arises in which it is necessary for a court to give consideration to whether or not the appellant should serve part or all of those sentences in the event of future breaches, then the court should take into account the fact that she has been in custody from 5 July 2011 to 18 November 2011 under the sentence which has been varied, and that in addition she served 1 day of imprisonment after her arrest and charge in September 2010.