Leeder v Moss
[2011] WASC 196
•12 AUGUST 2011
LEEDER -v- MOSS [2011] WASC 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 196 | |
| 12/08/2011 | |||
| Case No: | SJA:1050/2011 | 3 AUGUST 2011 | |
| Coram: | EM HEENAN J | 3/08/11 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed to extent of directing that all time spent in custody on remand be counted towards service of sentences but, otherwise, appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER PAUL LEEDER BENNET JEFFERY MOSS BERNADETTE MOLLIE VENNING |
Catchwords: | Appeal Sentence Aggravated assault and aggravated assault occasioning bodily harm Breach of ISO Offences committed while on previous suspended sentence Aggregate term 27 months Totality Failure to allow for all time spent in custody on remand |
Legislation: | Nil |
Case References: | McDonald v White [2007] WASCA 213 Morgan v Kazandzis [2010] WASC 377 Williams v The State of Western Australia [2010] WASCA 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
BENNET JEFFERY MOSS
First Respondent
BERNADETTE MOLLIE VENNING
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BS 1902 of 2009, BS 1903 of 2009, BS 2240 of 2009, BU 1140 of 2011, BU 1141 of 2011
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Catchwords:
Appeal - Sentence - Aggravated assault and aggravated assault occasioning bodily harm - Breach of ISO - Offences committed while on previous suspended sentence - Aggregate term 27 months - Totality - Failure to allow for all time spent in custody on remand
Legislation:
Nil
Result:
Appeal allowed to extent of directing that all time spent in custody on remand be counted towards service of sentences but, otherwise, appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D Hunter
First Respondent : Mr M Seaman
Second Respondent : Mr M Seaman
Solicitors:
Appellant : Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
McDonald v White [2007] WASCA 213
Morgan v Kazandzis [2010] WASC 377
Williams v The State of Western Australia [2010] WASCA 102
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1 EM HEENAN J: This is an appeal by leave granted by Hall J on 20 June 2011 from a decision of his Honour Magistrate Fisher in the Magistrates Court at Bunbury on 28 March 2011. On that date, his Honour imposed a series of sentences upon the appellant, Christopher Paul Leeder, for a variety of offences to which Mr Leeder had previously pleaded guilty.
2 The charges and the sentences were as follows: first, a charge of aggravated common assault against a woman, Adelle Francis Allan, a de facto partner of the appellant, committed on 13 February 2011, 8 months' imprisonment to be served immediately; second, a charge of aggravated assault occasioning bodily harm to Sophia Clements, again committed on 13 February 2011, 12 months' imprisonment to be served immediately and cumulative upon the first sentence; thirdly, for breach of an intensive supervision order imposed for the offence of aggravated common assault concerning the same Adelle Francis Allan committed earlier on 25 September 2009, which was constituted by the two offences committed on 13 February 2011, 4 months' imprisonment which was to be served concurrently with the first two sentences which I have already described. Fourthly, for a breach of a suspended imprisonment order which had been imposed because of the commission of an assault occasioning bodily harm on a woman, Kimberly Jayne Allan, on 25 September 2009, again the breach being the two offences committed on 13 February 2011, 7 months' imprisonment. The 7 months' imprisonment was the sentence which had been imposed by the court for that offence but which had been suspended, and the whole of that term was thereby activated and it was ordered to be served cumulatively upon the first and second sentences which I have already described. Fifthly, for breach of an intensive supervision order imposed for an offence of criminal damage committed on 20 November 2009, a period of 4 months' imprisonment to be served concurrently with the three terms of imprisonment imposed for offences 1, 2 and 4, as I have described.
3 The result of this was that the appellant was ordered to serve an aggregate term of 27 months' imprisonment and was ordered to be eligible for parole in respect of each of the convictions. From those sentences he appeals to this court on the following grounds: First, that the learned sentencing magistrate erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole and with insufficient regard to matters personal to the appellant. The following eight paragraphs of particulars were included in the notice of appeal in support of that ground.
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- (a) The Appellant had never before been sentenced to a term of imprisonment to be immediately served.
(b) As outlined in the written Pre-Sentence Report the Appellant had taken steps towards his rehabilitation through attending supervision and counselling sessions after he was placed on an intensive supervision order on 5 January 2011.
(c) The Appellant had for 9 months complied with a suspended sentence of imprisonment imposed on 28 April 2010 until 13 February 2011 when he committed the offences for which he has now been imprisoned.
(d) The psychological report considered by the sentencing Magistrate detailed the Appellant suffered from complex mental health issues, and when faced with stresses such as the breakdown or cessation of a relationship, dealt with such stresses in an inappropriate, emotionally immature manner, reverting to aggressive and impulsive behaviour as a means of regaining a sense of control of his life exacerbated by the use of disinhibiting substances such as alcohol.
(e) The psychological report detailed in the Appellant's record of violent offences occurred only when he was in a committed relationship resulting from the Appellant's complex mental health issues.
(f) The offences of Aggravated Assault and Aggravated Assault Occasioning Bodily Harm (on which cumulative sentences of imprisonment were imposed) committed on the Appellant's then partner and his then partner's mother on 13 February 2011 occurred in the one transaction in the one continuing incident.
(g) The Learned Magistrate in sentencing the Appellant placed too much emphasis on general deterrence in view of the Appellant's complex mental health issues and their contribution to the offences as outlined in the psychological and pre-sentence reports.
(h) The Learned Magistrate in sentencing the Appellant only considered whether the sentence imposed would be crushing. The learned magistrate did not have a last look at the total effective sentence imposed and whether it was proportionate to the Appellant's offending conduct viewed as a whole considered together with matters personal to the Appellant.
4 The second ground is that the learned magistrate in sentencing the appellant erred in not taking into account the time the appellant spent in custody from when he was arrested on 13 February 2011 to when he was sentenced on 28 March 2011. The circumstances are that the appellant
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- was taken into custody by the police immediately following the offences committed on 13 February 2011, has remained in custody from then on until the time he was ultimately sentenced, and has been in custody since then. He appears to have come before the Magistrates Court on 14 February 2011 and was remanded in custody without bail. He came before the court again on 1 March 2011, when he was remanded in custody for sentence and a verbal pre-sentence report was ordered, and then he came before the court for sentence on 28 March 2011, when the sentences which I have already described were imposed.
5 On that occasion, the learned magistrate had available to him two reports upon the appellant. One was a psychological report prepared by a very experienced psychologist from the South-West Psychology, Counselling and Training Services, which runs to some six pages; and the second was the substance of a verbal pre-sentence report presented to the court by an officer of the Department of Corrective Services Community, and Youth Justice.
6 These materials showed that the appellant, Christopher Paul Leeder, who was then aged 26 years, having been born on 7 October 1985, was separated from the woman with whom he had been living and by whom he had children, and that he has a reported history of mental illness and an asserted diagnosis of bipolar disorder. There was no independent medical confirmation of such a condition, and the account of the diagnosis was the report from Mr Leeder himself.
7 It also emerged that Mr Leeder had quite a significant record of prior offending, resulting in many convictions in the Busselton Magistrates Court, Fremantle Magistrates Court, and its predecessor, the Fremantle Court of Petty Sessions, dating back to February 2004, and before that, in the Fremantle Children's Court in 2003. He had been placed on a suspended imprisonment order on 28 April 2010 and two intensive supervision orders on 5 January 2011, as I have already described. His offences on 13 February 2011 constituted breaches of those respective sentences. His Honour recorded, and it has not been challenged, that Mr Leeder had a total of four convictions for assault.
8 I will deal firstly with the second ground of appeal; that is, failing to backdate the sentence to the time when the appellant was first in custody. There is nothing in his Honour's reasons for decision that addresses or deals with periods spent in custody prior to the ultimate sentence, although it is evident from the court record that, although the sentence was imposed, as I have said, on 28 March 2011, it was directed to take
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- effect from 1 March 2011. The question arises as to why it was not directed to take effect from 13 February 2011, a period a little over two weeks beforehand, when the appellant was first taken into custody.
9 It is not at all clear why this occurred. One possible explanation is that it was simply overlooked that the appellant had been in custody since 13 February 2011. Another possibility is that it was a deliberate decision to deny credit for the period spent in custody for those 15 days. We do not know the reasons, none having been given. There do not seem to be any other possibilities.
10 Whether it be one or the other, I am satisfied that in the absence of substantial reasons to deny credit for that period, it was an error to deny any credit for that period, and to the extent that the sentence was not backdated to 13 February 2011 I am satisfied that that was an error and that in this regard the appeal should succeed. I will make an order to the effect that the appeal on this ground should succeed to the extent of directing that the sentences to be served should commence on 13 February 2011 rather than on 1 March 2011 as had been ordered.
11 In relation to the appeal on ground 1 against the aggregate sentences of 27 months' imprisonment, the position as the appeal was developed, both in the written submissions and in the oral submissions, was that it was not submitted that any of the individual constituent sentences of eight months, 12 months or seven months, which represented that aggregate, was in itself erroneous or excessive. No challenge was made to the two 4-month terms of imprisonment which were to be served concurrently. Nor was it submitted that having regard to the gravity of the offences or the fact that the offences of 13 February 2011 had been committed while the appellant was subject to a suspended term of imprisonment and to an intensive supervision order for comparable offences committed previously on 25 September 2009, that sentences of imprisonment for each of those offences was an erroneous disposition for any one of them.
12 Rather, the submissions for the appellant were to the effect that the combination of the sentences in aggregate was excessive and offended the first limb of the totality principle. It was further submitted that, in imposing the sentences and in deciding upon the cumulation of three of them, his Honour had erroneously failed to give any, or any sufficient, recognition to the appellant's history of mental illness, which, while it did not excuse the commission of the offences, was nevertheless a factor which reduced the degree of culpability on his behalf and which rendered
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- the significance of deterrence on a personal level, or for that matter on a general level, less than it would otherwise have been.
13 It was also submitted that this was the first occasion upon which the 26-year-old appellant had been sentenced to a term of immediate imprisonment and that the combination of the sentences was excessive. I have been referred to a series of decisions, including Morgan v Kazandzis [2010] WASC 377, McDonald v White [2007] WASCA 213 and Williams v The State of Western Australia [2010] WASCA 102, in support of a series of submissions that a sentence of two years or more for assault, or assault occasioning bodily harm of the degree at issue in these proceedings, would, in those circumstances, be excessive. I have to say, however, that there were factors of some severity and aggravation about these particular offences, and I am speaking of the offences of 13 February 2011 which resulted in the 8 months and 12 months periods of imprisonment to be served cumulatively. The first was a repeat assault committed against the de facto partner, Adelle Francis Allan; it was committed while the appellant was under the influence of alcohol; and it was followed in short measure by a very serious assault on Ms Allan's mother who, quite naturally, had attempted to intervene and come to her daughter's protection when she was being assaulted in the kitchen of the house.
14 Both these assaults were committed by the appellant when he was subject, as I have already said, to a period of suspended imprisonment and to an intensive supervision order for like offences. Those are factors which, to my mind, were properly regarded by the learned magistrate as serious aggravating factors. In relation to the period of 7 months' imprisonment, that was the term which had been imposed for an earlier offence committed and sentenced on 28 April 2010 and it was an entirely separate and distinct matter and I do not consider that the learned magistrate was in error in deciding that it should be served cumulatively upon one or other or both of the two other sentences which were imposed for the offences committed of 13 February 2011.
15 Sentencing on this occasion was a difficult matter and it called for an exercise of discretion by his Honour taking into account many factors. As I have said, the appellant submits that his Honour was in error in failing to give any or any sufficient credit to the appellant's alleged mental condition of bipolar disorder. As to that, his Honour did recognise that the appellant had mental issues, as is clear from the following passage of his Honour's sentencing remarks:
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- I am not persuaded that these caused you to behave in the manner that I have indicated in those stressful times. It is something that, in my respectful view, is but a make-up of your personality and I would think in many respects is reflective, despite the seriousness of these allegations, of your endeavours knowingly or unknowingly to minimise your involvement or your culpability and provide some justification for your behaviour.
16 Read out of context, that passage is perhaps a little difficult to follow, but it is clear in the light of the content of the psychological report and the pre-sentence report both of which, as I have already mentioned, were before his Honour at the time of sentence. In the oral pre-sentence report the officer reported that Mr Leeder appears to have struggled with unstable mental health throughout his adult life. His most recent psychiatric report dated 14 September 2010 notes he was discharged from South-West Mental Health Services in September 2010 for failing to attend three follow-up review appointments since July 2010. His psychiatrist stated that he was not convinced about an earlier diagnosis of bipolar disorder, being more inclined towards a diagnosis of mood instability and social anxiety on the background of a vulnerable personality. At his most recent contact with South-West Mental Health Services, Mr Leeder was advised that he should address his substance abuse issues before coming back to their services again.
17 The oral pre-sentence report then went on to relate that Mr Leeder had been on the methadone program, had a problematic history of alcohol, cannabis and amphetamine use and in the past had used heroin, morphine and cannabis. It seems, however, that his use of those narcotic drugs and more serious illegal substances was less prominent than his history of alcohol use, and that he was affected by alcohol at the time of these offences.
18 Significantly, there was no evidence before his Honour that Mr Leeder was in the grip of, or suffering the effects of, any bipolar disorder or other mental disorder at the time of the commission of the two offences on 13 February 2011. There is no record of admission to a hospital and no medical treatment or diagnosis of such a disorder at or about that time, despite the fact that on previous occasions following the commission of offences he had been admitted to hospitals or mental health establishments in connection with associated problems.
19 In the psychological report the psychiatrist appears to associate the disinhibited behaviour, the inability to control emotions and habitual resort to aggression as the appellant's response to episodes of stress or crisis such as typically might be associated with the break-up of an
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- intimate relationship or access to children, and advances the view that the use of force on these occasions was the result of Mr Leeder's inability to deal with such stressors in an appropriate emotionally mature manner, advancing the opinion that instead Mr Leeder might revert to more aggressive and impulsive behaviour as a means of regaining a sense of control in his life.
20 The psychologist referred to Mr Leeder's use of the disinhibiting substance of alcohol as likely to exacerbate this process, although elsewhere in the report he referred to the use of alcohol as a means of self-medication for an underlying problem, whether depression or bipolar disorder. There is also a suggestion that Mr Leeder was not taking his psychotropic medication for bipolar disorder at the time of the offences of 13 February 2011.
21 In relation to the condition of bipolar disorder, the psychologist did not make or attempt to make any such diagnosis himself. Nor is there any evidence from a psychiatrist or other medical practitioner of such a diagnosis. In fact, the evidence on that point is to the contrary in the verbal pre-sentence report that I have already summarised. The source of the reference to the bipolar disorder diagnosis is the report of Mr Leeder himself. There is no reason, however, to doubt that he was at some time or other informed that he had a bipolar condition or that he was prescribed lithium for that condition; rather, the question is whether or not that diagnosis is accurate or should be accepted having regard to the various factors which I have mentioned.
22 Because of the state of the evidence and of the circumstances of the commission of the offences on 13 February 2011 and the absence of any medical evidence as to the cause of those behaviours when the appellant was being sentenced, I do not consider that there was any error demonstrated by the learned magistrate in taking a view that although there was an underlying mental condition, it was not established that these offences were due to that condition as opposed to disinhibited and uncontrolled behaviour.
23 A different magistrate or judicial officer dealing with this case could well have made a different disposition. If one or more of the three sentences of 7 months, 8 months and 12 months had been ordered to be concurrent with the other two or with each other, the possibilities are that the sentence could have been as low as 15 months or as high as 20 months in aggregate. However, for myself, I am inclined to the view that an aggregate of 20 months' imprisonment for this series of offending, bearing
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- in mind the aggravating factors which I have described, would have been an inadequate sentence. It would be possible to have directed that one or more of the components be partly cumulative and partly concurrent, but that would be unlikely to have reduced the aggregate sentence to below 24 months rather than the 27 months imposed. I do not consider that having regard to the discretionary component of the sentencing process, it could be said that a sentence plus or minus three months would constitute error. I am not satisfied that any error has been demonstrated in relation to the sentencing process undertaken by the learned magistrate or in the combination by way of cumulation of the three components of the sentences. Accordingly, I would dismiss ground 1 of the appeal.
24 It follows that I would be prepared on the appellant's motion to make an order allowing the appeal in part, to direct that the starting point for the five sentences should be 13 February 2011 rather than 1 March 2011, thus reducing the overall period by some 15 days, but otherwise I would dismiss the appeal.
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