Lepoidevin v The State of Western Australia
[2020] WASCA 142
•28 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEPOIDEVIN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 142
CORAM: BUSS P
HEARD: 28 AUGUST 2020
DELIVERED : 28 AUGUST 2020
FILE NO/S: CACR 92 of 2020
BETWEEN: LUKE DAVID LEPOIDEVIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND 1532 of 2019
Catchwords:
Criminal law - Appeal against sentence - Application for bail pending hearing of the appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Application for bail dismissed
Programming orders made
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Mark Andrews Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Serukai v The State of Western Australia [2020] WASCA 127
BUSS P:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
The appellant was charged on indictment with three counts.
Count 1 alleged that on 28 January 2019, at Mirrabooka, the appellant made a threat with intent to compel Alan Joel Falkson to do an act he was lawfully entitled to abstain from doing, contrary to s338A(d) and (f) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place, the appellant wilfully and unlawfully damaged a garage roller door, the property of Mr Falkson, contrary to s 444(1)(b) of the Code.
Count 3 alleged that on the same date and at the same place, the appellant wilfully and unlawfully damaged a window, the property of Mr Falkson, contrary to s 444(1)(b) of the Code.
The appellant was convicted, on his pleas of guilty, of the charged offences.
The maximum penalty for count 1 is 7 years' imprisonment and the maximum penalty for each of counts 2 and 3 is 10 years' imprisonment.
On 12 June 2020, MacLean DCJ sentenced the appellant to 18 months' immediate imprisonment for count 1, 6 months' immediate imprisonment for count 2 and 6 months' immediate imprisonment for count 3. His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentence for count 3 be served concurrently with the sentence for count 1. The total effective sentence was therefore 2 years' immediate imprisonment. The sentence for count 1 and the total effective sentence were backdated to 11 June 2020. A parole eligibility order was made.
The appellant has appealed against sentence to this court.
On 10 August 2020, the appellant filed his appellant's case.
The appellant relies upon three grounds of appeal. Ground 1 alleges that the sentencing judge erred in fact and law by finding that the appellant's psychiatric illness, which was undiagnosed and untreated at the time of the offending, did not cause or contribute to the offending in any meaningful way or reduce his moral culpability. Ground 2 alleges that his Honour erred in finding that the appellant's psychiatric illness did not in any way reduce the significance of general deterrence. Ground 3 alleges that his Honour erred in law by failing to allow the appellant a reasonable opportunity to adduce further evidence as to how the appellant's psychiatric illness contributed to the offending and the extent to which it contributed to the offending.
The facts and circumstances of the offending were, in summary, as follows.
At about 5.45 pm on 28 January 2019, the appellant was at home with his wife, Candice Lepoidevin, their twin daughters (who were then aged 7) and Mrs Lepoidevin's son (who was then aged 14). The appellant and Mrs Lepoidevin were separated but at the time remained living in the same house. The appellant was endeavouring to watch television and became upset that the children were being disruptive.
At about 6.30 pm on 28 January 2019, the appellant had been shouting at the children and acting in a manner that caused Mrs Lepoidevin to become concerned for herself and the childrens' welfare. Mrs Lepoidevin decided to take the children to her parents' home in Mirrabooka for their safety. They arrived at about 6.45 pm.
At about 7.00 pm, the appellant realised that Mrs Lepoidevin and the children had departed. He telephoned his father‑in‑law, Mr Falkson, to confirm that the children were at Mr Falkson's home. During the telephone call, Mr Falkson told the appellant not to come to his home and to leave the children where they were for the night.
Before he went to Mr Falkson's home, the appellant sent a text message to Mrs Lepoidevin in which he asserted:
You include my sick mum in this. I promise to take everything you love in this world. You wanted this. It's over. Don’t make me come for them. You'll never get them back after your court history and the way you have manipulated Centrelink. They are putting away your type for 6 months as an example for others. Test me, please. I'll destroy everything that you know to be existence. Don’t fuck with those who have nothing to lose for you will lose life itself.
The appellant was enraged and drove his motor vehicle to Mr Falkson's home. The appellant drove into the driveway and began to sound the vehicle's horn. When there was no response, the appellant walked to a wall and saw that Mr Falkson was inside the residence.
The appellant began to threaten and make gestures at Mr Falkson. The appellant wanted Mr Falkson to come outside. Mr Falkson refused. The appellant returned to his vehicle and drove the vehicle deliberately into the roller door of the garage. This caused the roller door to buckle.
The appellant was aware that there were several people inside the residence including Mrs Lepoidevin and the children. However, the appellant refused to accept that he was unwelcome. The appellant also refused to accept that Mrs Lepoidevin wanted to be away from him and wanted to keep the children with her because of his erratic behaviour earlier that evening.
The appellant went to a bedroom window at the front of the residence and used a brick paver or a similar object to smash the window. The appellant reached through the broken window and pulled the blinds through the broken window. While the appellant was carrying out these actions he shouted threats at Mr Falkson and called out to Mrs Lepoidevin and the children. When the appellant smashed the window, Mr Falkson ran into the bedroom. The appellant shouted at Mr Falkson that he was going to kill him. The appellant continued with his efforts to break into the residence and continued to threaten to kill Mr Falkson.
It appearing that the appellant was about to carry out his threats, Mr Falkson sprayed the appellant with pepper spray. The appellant returned to his vehicle. Police arrived shortly afterwards and arrested the appellant. The appellant threatened Mr Falkson for the purpose of compelling him to let the appellant into his home.
The information before the sentencing judge included a report dated 14 December 2019 from Christian Hetebry, a clinical psychologist, and a report dated 12 February 2020 from Dr Mathew Samuel, a consultant psychiatrist.
In his report, Mr Hetebry said:
(a)The appellant had attended sessions with Mr Hetebry on 2 February 2019, 9 February 2019, 16 March 2019 and 22 June 2019.
(b)During his assessment of the appellant, Mr Hetebry 'developed the impression that [the appellant] was suffering from a Post‑Traumatic Stress Disorder, dating back to an incident when [the appellant] was an ambulance service volunteer at approximately age 19'.
(c)Mr Hetebry also noted that several aspects of '[the appellant's] account' led Mr Hetebry 'to consider PTSD as a diagnosis'. Mr Hetebry referred to the appellant's history of sustained sleeping difficulty for some years, nightmares regarding the incident when the appellant was an ambulance service volunteer and hyper‑vigilance regarding his daughters. Mr Hetebry also noted the appellant's history included the appellant drinking heavily to manage his anxiety and tension.
(d)Mr Hetebry expressed the view that a feature of the appellant's history that seemed 'most likely to be linked to his behaviour leading up to his arrest' was the appellant's preoccupation and hyper‑vigilance regarding his children's safety. The appellant had described to Mr Hetebry 'a build‑up of anxiety and tension leading up to the incident'. Mr Hetebry was of the view that it seemed 'conceivable that this [led] to some poor judgment'. Mr Hetebry added that it was 'conceivable' that the appellant's hyper‑vigilance regarding his children's safety combined with reported fatigue from poor sleep 'led to such a state of hyper‑arousal that his sense of reality was skewed'.
(e)Mr Hetebry concluded that 'it was, and remains [his] leading hypothesis that [the appellant's] behaviour … was an extreme manifestation of a long‑standing and undiagnosed PTSD'.
In his report, Dr Samuel said the appellant had no psychotic symptoms. The appellant denied any suicidal or homicidal thoughts. He had reasonable insight. Dr Samuel diagnosed the appellant as suffering from Post‑Traumatic Stress Disorder and alcohol dependence.
The sentencing judge found that the appellant's offending conduct was 'calculated, deliberate and sustained' (ts 59). The appellant's persistent efforts to gain entry to Mr Falkson's home demonstrated that the appellant had the capacity to realise the threats that he was making.
His Honour said that those who were subject to the appellant's threats, principally Mr Falkson, believed that the appellant had every intent of carrying out those threats. His Honour also said that the appellant's overall offending represented a serious example of domestic violence. His Honour had no doubt that the appellant's behaviour terrified all those who were witness to it.
The sentencing judge noted that the appellant did not at any point give any indication that he would voluntarily desist from his course of conduct. He stopped because Mr Falkson sprayed him with pepper spray.
His Honour allowed the appellant a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in respect of the individual sentences on account of the appellant's pleas of guilty.
The sentencing judge found that the appellant was remorseful for his actions, but was not satisfied that the remorse was 'entire or complete' (ts 9).
His Honour accepted that the appellant had some degree of insight into his offending behaviour because he had engaged in counselling.
The appellant has a prior criminal record. In February 2019 (shortly after the commission of the offences in question and while on bail for those offences), the appellant breached a violence restraining order and protective bail conditions by contacting his wife by text message. He was convicted of those breaches and fined. The appellant was convicted in 2006 of assaulting a public officer, disorderly behaviour and obstructing a public officer. He also has some convictions for driving offences.
The sentencing judge referred to written references in which the authors spoke well of the appellant.
His Honour accepted that the appellant suffers from Post‑Traumatic Stress Disorder and that this disorder was a mitigating factor.
However, the sentencing judge did not accept that 'in any meaningful way' the Post‑Traumatic Stress Disorder explained the appellant's offending or reduced the appellant's culpability for the offending or reduced the significance of general deterrence (ts 12).
His Honour was not satisfied that any mental illness suffered by the appellant was causative of his offending conduct.
The sentencing judge was of the opinion that Mr Hetebry's diagnosis was put forward 'on a tentative basis without condescending into either his reasoning process, his experience, [his] qualifications or how [the disorder] operated in [the appellant's] particular case'. His Honour made similar observations in relation to Dr Samuel's report (ts 13).
His Honour referred to a report from Dr Johan Brink, a general medical practitioner, who stated that the appellant suffers from significant cirrhosis of the liver as a result of long-term heavy alcohol use. His Honour said that this medical condition would make it more onerous for the appellant to serve a term of immediate imprisonment than for a person in good health.
On 7 August 2020, the appellant filed an application in the appeal for an order that he be granted bail pending the determination of his appeal, alternatively that he be granted an expedited hearing. The application is supported by an affidavit of his lawyer, Trent Mark Andrews, sworn 6 August 2020.
The appellant's application relies upon three broad submissions. First, the asserted strength of his grounds of appeal. Secondly, if the appeal is allowed, the likely resentencing will result in a suspended term of imprisonment. Thirdly, if bail is not granted or an order for an expedited hearing is not made, the appellant will have served a significant portion of his sentence before the appeal is heard and determined.
The State opposes a grant of bail, but does not oppose the granting of an expedited hearing of the appeal.
The principles relating to the granting of bail pending the determination of an appeal against sentence are well established. They are summarised in Serukai v The State of Western Australia.[1] It is unnecessary to repeat them.
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
On 24 August 2020, the appellant filed another application in the appeal for leave to rely upon additional evidence in support of the application for bail, namely the affidavit of Mr Andrews sworn 21 August 2020. Mr Andrews' affidavit annexed, relevantly, detailed reports from Mr Hetebry and Dr Samuels that were prepared after the sentencing judge sentenced the appellant.
At the hearing, I dismissed the application in the appeal filed on 24 August 2020 for these reasons. First, grounds 1 and 2 of the appeal allege express errors by his Honour. However, his Honour cannot have made any error by failing to take into account material that was not before him. Secondly, ground 3 of the appeal alleges, in effect, a denial of procedural fairness by his Honour. This ground is weak. The ground is not relevantly advanced, for present purposes, by the proposed additional evidence.
I have considered the material relied upon by the appellant in support of his application for bail which is properly admissible in support of that application, including Mr Andrews' affidavit sworn 6 August 2020 and the appellant's written submissions. I have also taken into account the oral submissions made by counsel for the appellant today.
I am not satisfied, at this stage, that the merits of the appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail should be dismissed.
However, I am persuaded that orders should be made expediting, to some extent, the hearing of the appeal.
Accordingly, I will make orders as follows:
(1)The appellant's application in the appeal filed on 24 August 2020 for leave to rely upon additional evidence in support of the application for bail is dismissed.
(2)The respondent is to file and serve a respondent's answer by 4.00 pm on 25 September 2020.
(3)The appeal is listed for hearing at 10.30 am on 6 November 2020.
(4)Otherwise, the appellant's application in the appeal filed on 7 August 2020 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss31 AUGUST 2020