MacCauley v The State of Western Australia [No 2]
[2017] WASCA 65
•11 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MacCAULEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 65
CORAM: BUSS P
NEWNES JA
MAZZA JA
HEARD: 17 MARCH 2017
DELIVERED : 23 MARCH 2017
PUBLISHED : 11 APRIL 2017
FILE NO/S: CACR 183 of 2016
BETWEEN: SARAH LEE-ANNE MacCAULEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAUDE DCJ
File No :IND KAL 49 of 2016
Catchwords:
Criminal law - Appeal against sentence - Application to adduce expert evidence indicating that appellant was suffering a moderately severe major depressive disorder at the time of offending and that this impaired her judgment and was causative of the offending - Sentencing judge sentenced on the basis of incorrect expert evidence that the appellant was suffering an adjustment disorder - Whether appellant should be resentenced on the basis of additional expert evidence
Legislation:
Nil
Result:
Leave to appeal on ground 2 refused
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr B M Murray
Solicitors:
Appellant: Paul Vale Criminal Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Gok v The Queen [2010] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
R v Tsiaris (1996) 1 VR 398
Suleiman v The State of Western Australia [2017] WASCA 26
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilson v The State of Western Australia [2010] WASCA 82
REASONS OF THE COURT: This appeal against sentence was heard on 17 March 2017. On 23 March 2017, the court unanimously made the following orders:
1.Leave to appeal on ground 2 refused.
2.Appeal allowed.
3.The primary judge's sentencing decision is set aside.
4.The appellant is resentenced to individual terms of immediate imprisonment as follows:
(a)count 1: 6 months;
(b)count 2: 18 months;
(c)count 3: 9 months.
5.The new individual sentences for counts 1 and 3 are to be served concurrently with each other and concurrently with the new individual sentence for count 2.
6.The new total effective sentence of 18 months' immediate imprisonment is to be taken to have taken effect on 7 November 2016.
7.The appellant remains eligible for parole.
On that day the court advised that its reasons for the making of the orders would be published at a later date. These are our reasons for the orders that were made.
Background
The appellant was charged in the District Court on indictment with:
(a)one count of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) (count 1);
(b)one count of aggravated burglary contrary to s 401(2) of the Criminal Code (count 2); and
(c)one count of making a threat to kill contrary to s 338B(a) of the Criminal Code (count 3).
On 30 June 2016, the appellant entered fast‑track pleas of guilty to these charges in the Magistrates Court. She was committed for sentence to the District Court at Kalgoorlie on 7 November 2016.
On this date, the appellant requested that she be sentenced with respect to three other offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA), being:
(a)one count of aggravated assault contrary to s 313(1)(a) of the Criminal Code;
(b)one count of breaching a violence restraining order (VRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA); and
(c)one count of breaching bail contrary to s 51(1) of the Bail Act 1982 (WA).
All of the appellant's offending, save for the breach of bail, occurred on 3 June 2015.
On 7 November 2016, the appellant was sentenced by Staude DCJ as follows:
| Indictment Count | Offence | Sentence |
| 1 | Criminal damage | 9 months' imprisonment, concurrent with sentence imposed for count 2 |
| 2 | Aggravated burglary | 2 years' imprisonment |
| 3 | Threat to kill | 12 months' imprisonment concurrent with the sentence imposed for count 2 |
| Section 32 | Offence | Sentence |
| 1 | Aggravated assault | No further penalty |
| 2 | Breach violence restraining order | No further penalty |
| 3 | Breach of bail | 1 month's imprisonment, concurrent |
Thus the total effective sentence imposed upon the appellant was 2 years' immediate imprisonment. She was made eligible for parole. The sentence commenced on 7 November 2016.
The appellant relies on two grounds of appeal. Ground 1 alleges that, since the appellant was sentenced, new evidence has been discovered which shows the true significance of facts which were in existence at the time of sentence and, had that evidence been known to the sentencing judge, a different sentence would have been imposed. The new evidence upon which the ground relies is the diagnosis by Dr Mark Hall, a psychiatrist, that at the time of the offending the appellant was suffering from an untreated 'moderately severe major depressive disorder' which was causally related to the offences. Ground 2 is an allegation that the total effective sentence infringed the first limb of the totality principle. This ground only needs to be decided in the event that ground 1 is dismissed.[1]
[1] Appellant's written submissions, par 45; appeal ts 19 - 20.
Leave to appeal has been granted on ground 1. The question of leave to appeal on ground 2 was referred to the hearing of the appeal.[2] Given the relatively short sentence and the appellant's personal circumstances, an urgent appeal order was made.[3]
[2] Order Mazza JA, 22 February 2017.
[3] Order Mazza JA, 22 February 2017.
In support of ground 1, the appellant filed two applications to adduce additional evidence on 13 February 2017 and 10 March 2017 respectively. At the hearing of the appeal, the court was informed by senior counsel for the appellant that the later application, in effect, superseded the earlier one. The evidence sought to be adduced by the application filed 10 March 2017 was, in substance, Dr Hall's report dated 2 February 2017 and his supplementary report dated 15 February 2017.
At the hearing of the appeal, counsel for the respondent did not object to the application to adduce additional evidence. Leave was granted to the appellant to rely on the additional evidence of Dr Hall in the form of his reports.[4] The respondent did not require Dr Hall to attend at the hearing for cross‑examination. The respondent did not challenge Dr Hall's opinions.
[4] Appeal ts 19.
The factual background
The appellant had been in a relationship with Tyrone John Parker. They have a young son. In September 2014, the appellant and Mr Parker separated. At the time, they were living in Darwin. The appellant moved to Kalgoorlie with their child. Mr Parker began proceedings against the appellant to recover custody of the child. An order was made in Mr Parker's favour, with the result that he was granted custody.
On 3 June 2015, Mr Parker was living with the child and his mother, Janette Rosemary Geagea, in the small town of Gibson, near Esperance. At the time, the appellant was subject to a violence restraining order (VRO) protecting Ms Geagea, which had been served on the appellant on 18 April 2015. That order prohibited the appellant from, amongst other things:
(1)causing or attempting to cause damage to any property in the possession of Ms Geagea;
(2)behaving in an intimidatory, offensive or emotionally abusive manner towards Ms Geagea;
(3)attempting to communicate with Ms Geagea by any means whatsoever;
(4)entering, remaining upon or loitering near the Gibson property or being within 100 m of the nearest boundary of that property;
(5)approaching or remaining within 50 m of Ms Geagea.[5]
[5] Sentencing ts 3 ‑ 4; statement of material facts.
It is not in dispute that the appellant encountered difficulties having access to her son. The reasons for this do not require determination. What is clear is that, as time wore on, the appellant became increasingly distressed by being unable to see her son.
On 2 June 2015, the appellant attended at Headspace in Kalgoorlie. There she saw a general practitioner, Dr Kearns. According to notes prepared by Dr Kearns, which were tendered during the sentencing proceedings, the appellant presented with the following issues:
Panic attacks, low mood, emotionally labile, poor sleep, poor concentration, fatigue, low mood.[6]
She gave a history to Dr Kearns which focused primarily upon her breakup with Mr Parker and the difficulty she had obtaining access to their child. Dr Kearns diagnosed:
Panic disorder, social anxiety and stress/adjustment disorder.[7]
Dr Kearns also noted:
Experiencing stress secondary to custody battle with ex‑partner over son.
Poor sleep/fatigue.[8]
[6] WAB 80.
[7] WAB 80.
[8] WAB 81.
Dr Kearns prescribed mirtazapine and placed her on a treatment plan with a review to be carried out on 3 August 2015.[9]
[9] WAB 81.
On 3 June 2015, the appellant travelled to Gibson. Ostensibly, the appellant wanted to retrieve a motor vehicle which she believed was hers. She had also heard that Mr Parker was intending to relocate to Karratha with their child and she wanted to prevent this.[10]
[10] Sentencing ts 3, 6.
As she was subject to the VRO in favour of Ms Geagea, she sought the assistance of the police to obtain possession of the motor vehicle. The police accompanied her to the Gibson property. However, because there was a dispute over the ownership of the vehicle, the police decided that they could not assist the appellant. The appellant became upset. They offered to take her back to Esperance and even offered to find accommodation for her. The appellant refused these offers and remained in the vicinity of the Gibson property.
After the police left, and in breach of the VRO, the appellant approached the house which was, at the time, being occupied by Ms Geagea, Mr Parker and the child. Using a metal chair, she smashed six windows at the front of the house and, in the process, damaged the curtains.[11] She then entered the house through the back door. The appellant attempted to strike Mr Parker with a glass mirror she had removed from a wall. She then woke her son and picked him up. This gave rise to an altercation between the appellant, Mr Parker and Ms Geagea. The appellant was restrained and the child removed from the appellant.
[11] Sentencing ts 4.
Mr Parker tried to eject the appellant from the house. The appellant then threatened to kill him, his mother and herself. She picked up a shard of glass from one of the broken windows and threatened him with it, lunging at him a number of times before Mr Parker caused her to drop the piece of glass.
Eventually, the appellant went outside. There, she picked up a shovel and threw it at Ms Geagea's vehicle, damaging its rear window. At this point, the appellant left the premises, but Mr Parker followed her and, out of fear that she might be run over, restrained her for her own safety. The police arrived and arrested the appellant. She was later observed by the police to tie a shoelace or two shoelaces around her neck. After they were cut from her, she was taken for medical treatment. Initially, she was admitted to the Esperance hospital. Later, she was transferred to the Kalgoorlie hospital where she was admitted as an involuntary patient for two nights, expressing suicidal intent. While at the Kalgoorlie hospital she was seen by a psychiatrist, Dr Wikitoria Puriri. On 8 June 2015, Dr Puriri wrote a report addressed to Headspace Kalgoorlie. This report was tendered to the sentencing judge.[12] The report noted that, upon arrival at the Kalgoorlie hospital, the appellant continued to express suicidal intent. She was sedated and monitored in the High Dependency Unit. The history she gave Dr Puriri was essentially the same as she had given to Dr Kearns. Dr Puriri diagnosed:
Adjustment disorder with mixed disturbance of emotions and behaviour; and child custody stressors.[13]
[12] WAB 82 ‑ 83.
[13] WAB 82.
The appellant was charged with offences arising out of the incident at Gibson. On 16 July 2015, she appeared in the Kalgoorlie Magistrates Court. She was bailed to appear again on 13 August 2015. She failed to do so. A warrant for her arrest was issued. On 4 April 2016, the arrest warrant was executed. There was no dispute that the appellant failed to appear on 13 August 2015 because she went to New Zealand to be with her sister. The appellant claimed that she had forgotten her court appearance.
The appellant's background
The appellant was born on 10 May 1992 in New Zealand. Her parents separated when she was 5 years old. She came with her mother to Western Australia. As a child, she lived what was described by his Honour as 'a transient life'.[14]
[14] Sentencing ts 11.
As a result of her mother's substance abuse, the appellant left home at the age of 14. The relationship with her mother is tenuous at best, although she does have a close relationship with her two sisters.
The appellant has a history of cannabis abuse.
As an adult, she has a short criminal history comprising a conviction in 2015 for possession of a prohibited weapon and in 2016 for breaching a violence restraining order.
In 2016, the appellant relocated to Melbourne,[15] where she formed a new relationship.[16]
[15] Sentencing ts 5.
[16] Sentencing ts 12.
The sentencing proceedings - the submissions
The appellant was represented by experienced counsel at first instance who, as we have mentioned, provided the sentencing judge with the reports of Dr Kearns and Dr Puriri. No forensic psychological or psychiatric report was tendered on the appellant's behalf.
Defence counsel made submissions referring to the appellant suffering 'a brain snap'[17] and to her 'psychological difficulties'.[18] Defence counsel referred to the principles relevant to the sentencing of offenders suffering from mental impairment falling short of insanity. She referred to such authorities as Krijestorac v The State of Western Australia [2010] WASCA 35 and R v Tsiaris [1996] 1 VR 398.[19] At one point in the plea in mitigation, defence counsel said:
In retrospect, I probably should have asked for a psychological report and I take that on board.[20]
[17] ts 6.
[18] ts 10.
[19] WAB 79.
[20] ts 10.
Defence counsel submitted that the appropriate sentence was a term of suspended imprisonment.
The prosecutor submitted that the only appropriate disposition was a sentence of immediate imprisonment.[21] In respect of the appellant's emotional state, the prosecutor said to his Honour:
There is no evidence, strictly speaking, before the court in that regard other than what my learned friend has attached to her submissions as to her admission to hospital afterwards and her state around this time. But this is a woman, the State would say, who was very angry about the fact that her partner had her child. She was very angry about the fact that she wanted the car, for whatever reason that was, and whilst she didn't take a knife with her, that anger caused her to act out that anger by smashing the windows around the house and barging in.[22]
[21] WAB 89.
[22] ts 22.
The sentencing remarks
His Honour described the offending on 3 June 2015 as 'very serious'.[23] He described the aggravating factors in these terms:
They were committed during a period of a loss of self‑control by you, which caused real and immediate danger to the occupants of the house. Your behaviour exposed your son to potentially traumatic circumstances. The breach of the restraining order shows contempt for the authority of the court, and the persistence of your intrusion and the acts that accompanied the threats that you made constitute grave and potentially injurious offending behaviour. These are aggravating factors.[24]
[23] Sentencing ts 6.
[24] Sentencing ts 7.
His Honour also identified as an aggravating factor that the appellant attempted to recover her son, in breach of a court order.[25]
[25] Sentencing ts 8.
His Honour identified a number of mitigating factors, including that the appellant was remorseful,[26] and had pleaded guilty. His Honour reduced the sentences he imposed by 20%, pursuant to s 9AA of the Sentencing Act.[27]
[26] Sentencing ts 8.
[27] Sentencing ts 3.
His Honour accepted that at the time of the offences on 3 June 2015, the appellant was suffering from an adjustment disorder and that she was 'clearly experiencing stress'.[28] He noted that she had consulted Headspace on 2 June 2015 and, also, that after the commission of the offences on 3 June 2015, she was admitted to hospital as an involuntary patient.[29]
[28] Sentencing ts 10.
[29] Sentencing ts 9.
His Honour dealt with the question of the appellant's mental impairment as follows:
The question has been raised by your counsel as to whether your culpability is reduced by reason of the mental disorder which has been diagnosed. I accept the diagnosis of an adjustment disorder, but I note that when Dr Ke[a]rns saw you the day before the incident she observed that you presented as being well, able to maintain good eye contact. You were euthymic, which means that you had a normal, non‑depressed, positive mood. You had no thoughts of suicide or self‑harm at that time. There is no evidence before the court that you currently suffer any recognised psychiatric disorder of that nature that would cause a sentence of imprisonment to weigh more heavily upon you than another or a disorder that should affect the form or term of sentence.
The available information provides an explanation for your aberrant behaviour, but does not suggest that you were labouring under any psychotic illness or otherwise affected in your ability to make moral decisions. I accept nonetheless that in your emotional state you had difficulty in thinking clearly. The court has experience of reading a large number of psychiatric and psychological reports in the course of (indistinct) I have no reason to think that if your doctors were asked they would say that you lacked an ability to make moral decisions at the time of your offending.
So the highest that I can put it on the evidence is that there is a basis for an inferential finding, on the balance of probabilities, that you found it difficult to make calm and rational choices and was disinhibited in your behaviour due to your heightened emotional state, but I do not consider that that emotional state reduces your moral culpability, and I do not consider that you were unable to appreciate the wrongfulness of your conduct. I do not think in the circumstances of this case that your mental state affects the need for specific deterrence or makes this case an inappropriate vehicle for general deterrence. I am satisfied that the nature of these offences is such that imprisonment is the only appropriate disposition as they constitute serious and persistent violent offending.[30]
[30] Sentencing ts 12 ‑ 13.
His Honour said that the offending was so serious that a suspended term of imprisonment was 'wholly inappropriate'.[31]
[31] Sentencing ts 14.
The proposed additional evidence from Dr Mark Hall
After the appellant was sentenced, she was referred to Dr Mark Hall, a consultant forensic psychiatrist. Dr Hall interviewed her on 10 December 2016 at Eastern Goldfields Regional Prison. The appellant's solicitors provided him with, amongst other things:
(a)a transcript of the proceedings in the District Court on 7 November 2016;
(b)the reports of Dr Kearns and Dr Puriri;
(c)the hospital records relating to her admission to Kalgoorlie Regional Hospital between 5 and 7 June 2015; and
(d)the prosecution brief.
Dr Hall noted the appellant's 'troubled early life characterised by chaos, neglect and parental rejection'.[32] He described her personality structure as 'generally consistent with the presence of borderline and histrionic traits … [S]uch individuals are prone to depression, anxiety, unhealthy intimate relationships and substance abuse disorders'.[33] Dr Hall noted that the appellant commenced abusing alcohol and illicit substances at an early age and has had ongoing problems with alcohol and drugs.
[32] Report, 2 February 2017, par 41.
[33] Report, 2 February 2017, par 41.
Dr Hall observed that the appellant was under stress during her relationship with Mr Parker, but, after she lost access to her son, her mental state deteriorated significantly resulting in the 'reactivation' of her past abuse of cannabis, methamphetamines and hallucinogens and an escalation in her use of alcohol.[34]
[34] Report, 2 February 2017, par 42.
Dr Hall's key findings were:
(1)Dr Puriri's diagnosis of adjustment disorder was incorrect. Rather, the appellant was suffering from a moderately severe major depressive disorder.[35]
(2)There is no good evidence to suggest that the appellant's ability to appreciate the wrongfulness of her actions or to form an intent was impaired by this disorder.[36]
(3)The onset of her depressive disorder predated her relapse into substance abuse. In his opinion, it continued and deepened over time between losing access to her son and the offending in June 2015.[37]
(4)There was a 'considerable causal relationship' between the depressive disorder and her offending.[38] This finding was also explained in Dr Hall's report dated 15 February 2017 in which he wrote that, at the time of the offending in June 2015, the appellant was in a state in which she was unable to exercise appropriate judgment or make calm and rational choices.[39] Also in his 15 February 2017 report, Dr Hall said that the depressive disorder was not the sole cause of the appellant's impaired ability to make calm and rational choices, given her history of substance abuse and emotionally unstable personality traits, but it was a necessary factor in her conduct to the extent that she is unlikely to have exhibited that impairment without the depressive disorder being present.[40]
[35] Report, 2 February 2017, par 43.
[36] Report, 2 February 2017, par 47.
[37] Report, 2 February 2017, par 49.
[38] Report, 2 February 2017, par 14.
[39] Report, 15 February 2017, par 3.
[40] Report, 15 February 2017, par 4.
Ground 1 - submissions
The appellant submitted that, in the proceedings before the primary judge, there was an issue as to whether the appellant's mental state at the time she committed the offences in June 2015 was a mitigating factor. Based on the material that was before him, the sentencing judge concluded that the appellant's mental state did not affect her moral culpability or the need for general and specific deterrence. However, Dr Hall's report shows that, in fact, the appellant was suffering from a moderately severe major depressive disorder which impaired the appellant's ability to exercise appropriate judgment and 'was causally related to the offending'. The appellant submitted that had this evidence been before the primary judge, a different sentence would have been imposed. It was submitted that this court, acting on Dr Hall's evidence, should now intervene and impose a different sentence. It was submitted that this court should impose a suspended imprisonment order, with or without conditions.
Ground 1 - legal principles
The general principles applicable to an appeal against sentence are well‑established, and were accurately described by McLure P and Owen JA in Wilson v The State of Western Australia.[41] It is unnecessary to repeat what was written on that occasion.
[41] Wilson v The State of Western Australia [2010] WASCA 82 [2].
The general rule is that an appeal court must decide an appeal on the evidence and material before the lower court.[42] However, this court has broad powers to admit other evidence.[43] In determining whether additional evidence should be admitted, the general test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed.[44]
[42] Section 39(1) of the Criminal Appeals Act 2004 (WA).
[43] Section 40(1)(e) of the Criminal Appeals Act.
[44] Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]; Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28].
An appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. However, evidence may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but were either not known to the sentencing judge, or not properly appreciated at the time.[45] It is accepted that the additional evidence of Dr Hall falls into this category.
[45] Colwell [No 2] [30].
The legal principles concern the effect of mental illness or psychological difficulties falling short of insanity on the kind or length of sentence to be imposed. They have been considered by this court, and its predecessor, on numerous occasions, most recently in Suleiman v The State of Western Australia.[46] There, Buss P, with whom Mazza and Mitchell JJA agreed, said:[47]
It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Smith v The State of Western Australia [2010] WASCA 176; The State of Western Australia v Khasay [2014] WASCA 58; IEB v The State of Western Australia [2015] WASCA 207.
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).
In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self‑induced), general deterrence should ordinarily be given relatively less weight:
'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].'
See also R vWright (1997) 93 A Crim R 48, 50 - 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).
In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) 14, adopted and emphasised by Gleeson CJ in Engert (71).
[46] Suleiman v The State of Western Australia [2017] WASCA 26.
[47] Suleiman [58] ‑ [63].
Ground 1 - disposition
We are satisfied that, had Dr Hall's evidence been before his Honour at first instance, a different and lower sentence should have been imposed.
The evidence before the sentencing judge was that the appellant was suffering from an adjustment disorder, with mixed disturbance of emotions and behaviour and child custody stressors. There was insufficient evidence before his Honour that this condition reduced the appellant's moral culpability or impaired her judgment, or that there was a causal connection between the condition and the offences she committed in June 2015. In the absence of this evidence, there was no basis upon which his Honour could properly reduce the significance of general and specific deterrence.
Dr Hall's evidence puts a different complexion upon the appellant's mental functioning at the time the offences were committed in June 2015. The appellant was suffering from a moderately severe major depressive disorder, which impaired her judgment and was a cause of her offending and should be assessed as having impacted on the significance of personal and general deterrence.
Although the disorder did not deprive the appellant of her ability to discern right from wrong, or of her ability to form an intent, it is now apparent that the appellant's mental state was a mitigating factor of greater significance than the sentencing judge was in the position to assess.
Ground 1 has been made out. Accordingly, it is unnecessary to consider ground 2.
The resentencing of the appellant
This court has all the material necessary to resentence the appellant. The maximum penalties for the offences committed by the appellant are set out in the table at [7] of these reasons. Without question, the offences that were committed by the appellant were, individually and collectively, very serious. Accepting, as we do, that her judgment was impaired by the disorder, it did not deprive her of the ability to discern right from wrong. When she attended at Ms Geagea's premises, she did so with the police; plainly with the knowledge that she was not permitted to be in or about the premises by herself. Upon being told by the police that they could not assist her to recover the motor vehicle, she was given the opportunity to return to Esperance with the attending officers, but she refused to do so, even after having been offered the option of overnight accommodation.
The appellant then proceeded to embark on a rampage, which included threats to kill, property damage and burglary. The offending instilled fear into the occupants of the house, and was done in the presence of the appellant's very young child. As we have said, the appellant, despite her mental impairment, went onto the property apparently appreciating the existence of a violence restraining order and, as his Honour found, with the intention of breaching a court order relating to the custody of her son.
We would not impose any penalty in respect of counts 1 and 2 in the s 32 notice.
In respect of those offences for which we would impose a penalty, for the pleas of guilty we would reduce the head sentence we would have otherwise imposed by 20%, pursuant to s 9AA of the Sentencing Act.
We take into account as additional mitigating factors the appellant's remorse, her prospects of rehabilitation and, to a minor extent, her age. In regard to her prospects of rehabilitation, we have had regard to the information in Dr Hall's reports, and that the appellant has undertaken regular counselling in Melbourne. We regard the evidence of Dr Hall as being mitigatory because the appellant's judgment was impaired - although not completely impaired - at the time of the offending. In our opinion, general and personal deterrence were, to some extent, moderated, but not greatly.[48] Accordingly, we would resentence the appellant to individual terms of imprisonment as follows:
Count 1 6 months.
Count 2 18 months.
Count 3 9 months.
[48] Gok v The Queen [2010] WASCA 185 [59] ‑ [61].
We would not interfere with the sentence imposed on count 3 in the s 32 notice. It is not said that that offence was in any way affected by the appellant's mental impairment.
All of the individual sentences should be served concurrently. The new total effective sentence of 18 months' imprisonment is to be taken to have taken effect on 7 November 2016.
We have considered whether the sentences of imprisonment should be suspended with or without conditions. We have had regard to all of the relevant facts and circumstances and all of the relevant sentencing factors again for this purpose. In our view, the seriousness of the offending is such that the only appropriate disposition is that the terms of imprisonment should be served immediately. The appellant remains eligible for parole.
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