Mason v The State of Western Australia - [2018] WASCA 43

No judgment structure available for this case.

[2018] WASCA 43

JURISDICTION

: SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION

CORAM

: MASON -v- THE STATE OF WESTERN

AUSTRALIA [2018] WASCA 43

: MAZZA JA

BEECH JA

ALLANSON J

HEARD

: 16 MARCH 2018

: 4 APRIL 2018

DELIVERED

FILE NO/S

BETWEEN

: CACR 158 of 2017

: DAMON ROY MASON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction

Coram

: DISTRICT COURT OF WESTERN AUSTRALIA

: PARRY DCJ

File Number

: IND 14 of 2017

Catchwords:

Criminal law and sentencing - Offence of aggravated burglary - Mentally

impaired offender - Sentence of conditionally suspended imprisonment -

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[2018] WASCA 43

Whether implied error - Whether open to conclude that no lesser sentence was

appropriate

Legislation:

Criminal Code (WA), s 401

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant

: Ms N R Sinton

Respondent : Ms A L Forrester SC

Solicitors:

Appellant

: Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim

R 34

Churnside v The State of Western Australia [2016] WASCA 146

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

Gok v The Queen [2010] WASCA 185

Hume v The State of Western Australia [2017] WASCA 205

Krijestorac v The State of Western Australia [2010] WASCA 35

McIntyre v The State of Western Australia [2016] WASCA 150

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7

R v Tsiaras [1996] 1 VR 398

Squance v The State of Western Australia [2018] WASCA 25

The State of Western Australia v Malone [2015] WASCA 188

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

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[2018] WASCA 43

Wheeler v The Queen [No 2] [2010] WASCA 105

Williams v The State of Western Australia [2016] WASCA 232

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[2018] WASCA 43

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT:

1

The appellant appeals against the suspended term of imprisonment

imposed upon him on his conviction, following his plea of guilty, of an

offence of aggravated burglary. The appellant contends that it was not

open to the sentencing judge to conclude that a sentence of

imprisonment was the only appropriate sentencing decision.

2

In our opinion, for the reasons that follow, the appellant has not

demonstrated error in the sentencing judge's decision. The appeal must

be dismissed.

The facts

3

4

The facts were not, and are not, in dispute, and may be shortly stated.

At 3.30 am on Saturday 27 February 2016, the appellant entered a

home in Gosnells without the consent of the owner. The owner lived

there with her children.

5

6

7

8

While in the house, the appellant took a bottle of Powerade from the

fridge and drank some of it. That amounted to stealing the contents.

The appellant went into the bedroom of the owner's 12-year-old

daughter. She woke up and screamed. The appellant fled.

Police attended the home. The appellant's DNA was found on the

Powerade bottle.

The appellant was interviewed and could not explain why his DNA was

on the bottle. The judge accepted that the appellant did not recall these

events.

1

The appellant's personal circumstances

9

The appellant was 32 years old when he committed the offence and 33

at the time of sentencing.

10

The appellant was born in Thailand. He was abandoned when he was

about 5 months old and was raised in an orphanage for girls until he

was adopted by Australian parents at the age of 7.

2

1

2

ts 38.

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[2018] WASCA 43

JUDGMENT OF THE COURT

11

The appellant had what he described as a very supportive upbringing

with his parents in Perth. The appellant has an older brother and two

younger sisters.

12

13

The appellant's parents separated when he was in his late teens.

The appellant has maintained a strong and supportive relationship with

his mother.

14

The appellant was diagnosed with ADHD at the age of 9 or 10 and

prescribed dexamphetamine, which he took until the middle of high

school. The appellant had significant difficulties in his schooling

because of his intellectual disabilities. Nevertheless, he completed

year 12. He obtained qualifications as a welder and also did a carpentry

apprenticeship.

3

15

16

The appellant led a relatively stable life from the ages of 18 to 24.

When he was 24 years of age he commenced a relationship in which he

was introduced to methylamphetamine. In the years following this, his

drug use escalated. The sentencing judge observed that this led to a

downward spiral in his life that brought him to committing the offence

for which he was to be sentenced.

4

17

By the time of sentence, the appellant had been in a residential

rehabilitation program to treat his methylamphetamine dependency for

a period of about six weeks.

Reports

18

19

The sentencing judge had before him a neuropsychological report and a

pre-sentence report.

The neuropsychological report included the following:

1.

Developmental difficulties were noted from an early stage after

the appellant's adoption. Despite being two years older than his

peers, in year 2 he required 'extraordinary support' to cope with

a mainstream educational setting.

5

3

4

5

ts 39.

Report of Dr Vidovich, page 2.

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[2018] WASCA 43

JUDGMENT OF THE COURT

2.

3.

4.

5.

The appellant's intellectual functioning, assessed by the Full

Scale Intelligence Quotient, placed him in the extremely low

range.

6

The appellant disclosed having experienced auditory and visual

hallucinations in the past, including voices telling him to be

violent.

7

Dr Vidovich described it as 'somewhat extraordinary' that the

appellant has managed in the past to remain gainfully

employed.

8

In relation to the appellant's offending, the author expressed the

view that:

9

notwithstanding the impact of any substance abuse on his

thought processes and behaviour, his limited reasoning and

problem solving would translate into difficulties generating

solutions to situations, and reflecting on the consequences of

potential outcomes. He is more susceptible to impulsive

decision-making and behaviours.

20

The pre-sentence report included the following:

1.

The appellant explained that when he committed the offences,

he was transient, and was 'in a bad way and smoking meth'.

10

2.

The appellant accepted responsibility for his actions and said

that if he were to find himself in a similar situation in the future,

he would avoid associating with negative peers who consume

illicit substances.

11

3.

4.

The appellant demonstrated victim empathy during the

interview, saying that the victim would have been shocked and

scared.

12

The appellant had been on conditional bail on two previous

His compliance with reporting for supervision

appointments was erratic due to poor timekeeping.

occasions.

13

6

7

8

9

Report of Dr Vidovich, page 7.

Report of Dr Vidovich, page 5.

Report of Dr Vidovich, page 10.

10

11

12

13

Pre-sentence report, page 1.

Pre-sentence report, page 2.

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[2018] WASCA 43

JUDGMENT OF THE COURT

5.

The appellant's illicit substance abuse was a direct pathway to

the current offences as he was under the influence of

methylamphetamine at the time he committed them.

Rehabilitation of his substance abuse issues will reduce his risk

of reoffending.

14

Sentencing submissions

21

Written sentencing submissions were filed before the hearing on behalf

of both the appellant and the State. The appellant's sentencing

submissions emphasised the appellant's early plea of guilty, remorse

and, in particular, his intellectual impairment. The submissions

concluded by submitting that the court should impose a disposition

other than a term of immediate imprisonment.

15

22

The State's written submissions expressed their agreement with the

submissions filed on behalf of the defence. The written submissions

accepted that the appellant's intellectual and mental impairments,

coupled with substance abuse, significantly impacted on the appellant's

ability to appreciate the wrongfulness of his conduct and contributed

causally to the commission of the offence.

that the offender was not an appropriate vehicle for general deterrence,

and that specific deterrence would be difficult to achieve.

16

Further, the State accepted

17

23

The State's submissions concluded by submitting that a community

based disposition was appropriate.

18

24

25

The oral sentencing submissions included the following.

In relation to general deterrence, defence counsel submitted:19

Your Honour, the State, I understand, also agree that Mr Mason is

someone who is not a suitable vehicle for general deterrence as a result

of his intellectual disability, evidence of which has been provided to the

court in the form of the neuropsychological report.

14

15

16

17

Pre-sentence report, page 4.

White AB 63.

White AB 57.

White AB 57, referring to Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

[53] - [55].

18

White AB 58.

ts 29.

19

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[2018] WASCA 43

JUDGMENT OF THE COURT

26

As to the appropriate disposition, defence counsel submitted:20

Your Honour, the usual disposition, we accept, for offending of this

nature is a term of imprisonment. However, in my submission, in this

case, primarily because of Mr Mason's intellectual disability but also

because of his lack of similar offending and his early plea of guilty, it is

my submission that there are other options open to the court that will

hopefully allow him to address his treatment needs and in doing so, to

protect the community.

And I understand that the State agrees that some form of supervision in

the community would be the appropriate disposition with Mr Mason,

and perhaps the advantage of that sentencing approach would be that

Community Corrections could oversee the process of this referral to the

Disability Services Commission.

27

The sentencing judge responded:21

Would that be not through a program requirement? I mean, if I were to

impose a program requirement, that would give the authority to the

State or a Community Corrections officer to take on board the referral

to Disability Services and embrace that. … I don't want to set up Mr

Mason to fail, which I accept, because of his disabilities, there has been

a concern about compliance with the kind of strict regime of

supervision in the community that is normally and understandably

imposed and there is very little flexibility.

28

Invited to make submissions about program or supervision

requirements, defence counsel said:

22

Could I just note for the record that I share your Honour's concern? And

when I filed my written submissions, I was fairly open-ended as to

disposition because I found it really difficult to contemplate the

appropriate sentencing disposition for Mr Mason for that reason,

because he is someone who, it seems, shouldn't be sentenced in the

usual way because of his impairment.

But as your Honour has said, we don't want to set him up to fail and Dr

Vidovich expresses that concern. What I wanted to say about that is of

course it's entirely a matter for your Honour, that if your Honour

imposes some form of community disposition, what form that takes.

But in my submission, I'd ask your Honour to consider imposing a less

intensive form because the more frequent the sort of requirements and

obligations that are placed on Mr Mason, the more difficult, in my

submission, just sort of logically it would be for him to comply.

20

21

22

ts 33.

ts 34.

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JUDGMENT OF THE COURT

…

So for that reason, I'd ask your Honour to consider imposing perhaps a less

intensive form of supervision in the community. And I'd also ask your

Honour to take that into account when considering the duration of any

order because that compliance with an order of this kind is likely to be far

more onerous for Mr Mason than for other offenders and he will need

support to get through it. (emphasis added)

29

The sentencing judge then said:23

I must say, I mean, subject to hearing the State's submissions, if there

was already in place a program for the Disability Services Commission,

then there would be a strong argument made if the appropriate

disposition is a suspension to effectively embrace that. And my concern

is I'm not quite sure whether I can dictate to the - if I impose a

supervision requirement - - (emphasis added)

Counsel replied 'Right'.24

The sentencing judge then discussed

30

supervision requirements, which he said should be 'as limited as

possible' and program requirements, which he said would benefit the

appellant because of a 'mandatory element to that'.

then said 'No, I mean that seems - think your Honour has identified the

ideal outcome'. When called upon, counsel for the State submitted

25

Defence counsel

26

that:

27

[A] community based disposition is the most appropriate way of dealing

with this matter … The State agree that at the very least there needs to

be a program requirement on any order that would assist the

Community Corrections officers to make appropriate referrals.

The State would submit a supervision order is also appropriate.

31

It can be seen from these exchanges that the sentencing judge

mentioned that he was contemplating the imposition of a suspended

term of imprisonment. Neither defence counsel nor counsel for the

State made any submission to the contrary. However, the position was

less than crystal clear. It may be that, in this respect, counsel and the

judge were at cross-purposes. Counsel's reference to some form of

supervision in the community may have been intended to refer to an

intensive supervision order rather than to conditionally suspended

imprisonment.

23

24

25

26

27

ts 35.

ts 25.

ts 36 - 37.

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JUDGMENT OF THE COURT

Sentencing remarks

32

The sentencing judge recognised that the court could not impose

imprisonment unless that was the only sentence that could be justified

or that the protection of the community required it.

28

33

The judge observed that the maximum penalty for the offence of

aggravated burglary is 20 years' imprisonment because it is regarded as

a very serious crime, not just because of the theft of property from

people, but also because of the sense of violation that people have if

someone comes into their home.

29

34

35

The judge observed that the appellant's criminal history, which included

traffic, property and illicit drug offences, meant that he did not have the

benefit of the mitigation brought by good character. Nonetheless, he

stated that the appellant did not have any previous conviction for

burglary.

30

The judge identified the following aggravating factors:

1.

The appellant entered the complainant's home in the early hours

of a Saturday morning when it was likely, and the appellant

knew or ought to have known, that there would be people in the

house and that they would be asleep and vulnerable.

31

2.

3.

Consequently, there was potential for confrontation with the

home owner.

The appellant woke and, no doubt, terrified a 12-year-old girl.

32

36

The judge identified the following mitigating factors:

1.

2.

3.

The appellant pleaded guilty at the first reasonable opportunity.

The judge accepted that the plea reflected genuine remorse.

33

Generally, the appellant had exhibited genuine remorse and

victim empathy.

34

The appellant cooperated with police by making admissions.

35

28

29

30

31

32

33

34

ts 37.

ts 38.

ts 41.

ts 42.

ts 41 - 42.

ts 42.

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[2018] WASCA 43

JUDGMENT OF THE COURT

4.

The appellant's significant intellectual disability, including his

extremely low intellectual functioning and psychiatric

diagnoses.

36

5.

The appellant left the house when the victim woke.

37

The judge referred to the State's acceptance that the appellant's

intellectual impairments were causally relevant to the commission of

the offence. The judge accepted Dr Vidovich's opinion that the

appellant was more susceptible to impulsive decision-making and

would have trouble initiating or sourcing assistance to manage complex

problems.

38

The judge also observed that the appellant's low mental

functioning was relevant to his not appreciating, at the time, the

wrongfulness of his conduct.

39

38

The judge then said as follows:40

[G]enerally speaking, a term of imprisonment is imposed and, generally

speaking, it is made immediate. The circumstances of your case,

however, are exceptional. And I accept that.

Given the offence that you’ve committed, I must impose a term of

imprisonment. However, for reasons to which I’ll come, I consider that

that term of imprisonment should be suspended and you should be

required to comply with program requirements and also some

supervision requirements in the community.

But the seriousness of the crime means that a term of imprisonment

must be imposed.

…

I also take into account that general deterrence - that is to say, deterring

other people from committing this type of offence - is a very important

sentencing consideration in this type of offending. And personal

deterrence - that is, deterring the offender from doing this again - by the

sentence I impose, is also an important sentencing consideration.

Generally speaking, personal matters, matters personal to an offender,

carry less weight, they carry diminished weight, because of the

dominant sentencing considerations of general deterrence, deterring

35

36

37

38

39

40

ts 42.

ts 42 - 43.

ts 43.

ts 43 - 44.

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[2018] WASCA 43

JUDGMENT OF THE COURT

other people, and personal deterrence, deterring the offender from ever

committing such an offence again.

This case, however, is exceptional. The State concedes, quite properly,

that your - that this case does not provide an appropriate vehicle for

general deterrence. That is because of your intellectual disability and

other mental health considerations.

In addition, in terms of personal deterrence, I do not consider that a

term of imprisonment is particularly beneficial, in terms of personally

deterring you, given your mental health issues and your intellectual

disability.

Far more important, in terms of deterring you from

committing this offence again, is appropriate treatment mechanisms.

The State has accepted that, and quite properly so.

39

40

The judge said that he gave the maximum 25% discount for the plea of

guilty. He fixed the term of imprisonment as 12 months, observing that

while this was a very low term for an offence of this kind, it reflected

all the circumstances of the case.

41

Turning to the question of whether the term of imprisonment should be

suspended, the judge said as follows:

42

Your lawyer has made a very strong submission that I should suspend

that term, rather than make you go to prison today. The State has

accepted that that is in the public interest. And I accept that, without

any question. It would not be in the public interest to send you to prison

today.

What I am going to do is suspend the term of imprisonment.

41

42

The judge concluded that it was appropriate to suspend the term of

imprisonment.

The judge imposed a program requirement and a supervision

requirement. His Honour made the following additional observations:

43

However, I encourage the Community Corrections officer who sets that

program to give careful consideration to your intellectual disability and

to impose a program that is sufficiently flexible and sufficiently - and

not onerous so that you are able to comply.

I would also urge the Community Corrections officer, if you do fail to

comply, to give very careful consideration as to whether in fact there is

a breach that is to be reported. It is not in the public interest for you to

41

42

43

ts 44 - 45.

ts 45.

ts 46.

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[2018] WASCA 43

JUDGMENT OF THE COURT

be reported for a breach of the supervision requirement and certainly

not without considerable warning to you and support mechanisms to

you.

Ground of appeal

43

The sole ground of appeal asserts implied error. The ground contends

that, having regard to all the relevant circumstances, it was not the case

that only a sentence of imprisonment could be justified.

44

Leave to appeal and an extension of time to appeal have both been

granted.

44

The appellant's submissions

45

In essence, the appellant submits that, having regard to all relevant

sentencing factors, the appropriate disposition was not a sentence of

imprisonment, suspended or otherwise.

that imprisonment is a sentence of last resort and cannot be imposed

unless the court is satisfied that only imprisonment can be justified.

He submits that this offence was towards the lower end of the scale,

given the following features:

45

The appellant emphasises

46

47

(1)

(2)

(3)

he went through an open door, rather than breaking in;

he stole only one item of very low value; and

this was unplanned, opportunistic offending.

46

47

The appellant further emphasises his mental impairments which were

accepted to have been causally relevant to his offence. The appellant

submits that those impairments substantially limited the role of

deterrence, both general and personal, such that imprisonment was not

justified.

48

The appellant pointed to some cases49

in which sentences other than

imprisonment were imposed for one or more offences of aggravated

burglary.

50

44

45

46

Order of Mazza JA, 15 September 2017.

Appellant's submissions [19]; appeal ts 50.

Appellant's submissions [22] - [28], referring to the Sentencing Act 1995 (WA), s 6(4) and AH v The State

of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [125].

47

48

49

50

Appeal ts 52.

Appellant's submissions [46] - [48]; appeal ts 53.

AH and Churnside v The State of Western Australia [2016] WASCA 146.

Appeal ts 53 - 54.

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JUDGMENT OF THE COURT

Sentences of imprisonment: general principles

48

Two provisions of the Sentencing Act give statutory expression to the

long-established precept that a sentence of imprisonment can only be

imposed as a last resort.

49

Section 6(4) of the Sentencing Act provides that a court must not

impose a sentence of imprisonment on an offender unless it decides

that:

(a)

the seriousness of the offence is such that only imprisonment

can be justified; or

(b)

the protection of the community requires it.

50

Section 39(2) provides that a court sentencing an offender may either

impose no sentence and order the release of the offender or may impose

any of seven forms of sentence, the last three of which are suspended

imprisonment, conditional suspended imprisonment and a sentence of

immediate imprisonment. Section 39(3) provides that a court must not

use a sentencing option in subsection (2) unless satisfied, having regard

to div 1 of pt 2, that it is not appropriate to use any of the options listed

before that option.

51

Section 76 provides, so far as material, that:

76.

When imprisonment may be suspended

(1) A court that sentences an offender to a term of imprisonment, or

to an aggregate of terms of imprisonment, of 60 months or less
may order that the term or terms be suspended for a period set
by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless

imprisonment for a term or terms equal to that suspended would,
if it were not possible to suspend imprisonment, be appropriate
in all the circumstances.

52

Section 81 provides, so far as material, that:

81.

Certain courts may suspend imprisonment conditionally

(1) A prescribed court that sentences an offender to a term of

imprisonment, or to an aggregate of terms of imprisonment, of
60 months or less may order that the whole of the term or terms
be suspended for a period set by the court, but not more than
24 months, subject to the following conditions -

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JUDGMENT OF THE COURT

(a)

(b)

the standard obligations in section 83; and

one or more of the primary requirements in section 84,

as decided by the court.

(2) CSI is not to be imposed unless imprisonment for a term or

terms equal to that suspended would, if it were not possible to
suspend imprisonment, be appropriate in all the circumstances.

CSI is the abbreviation used for 'conditional suspended imprisonment'.

51

53

54

It may be inferred from these sections that suspended imprisonment or

conditional suspended imprisonment are only to be available where,

first, the court has concluded that a sentence to a term of imprisonment

is warranted and the term imposed is not more than 5 years.

injunction in s 6(4) applies to that first step.

52

The

53

Thus, a court cannot impose a suspended imprisonment unless it has

first determined that none of the other less serious options provided for

by the Sentencing Act is appropriate, and unless the requirements of

s 6(4) are met.

The test for implied error

55

The appellant contends that the judge erred in concluding that none of

the less serious sentencing options was appropriate. That gives rise to a

question as to the proper approach for an appellate court to identify

error in this context. The following observations by McLure P, made in

the context of the question of whether the only appropriate disposition

was a sentence of immediate imprisonment, apply equally to the present

context. That is because her Honour's reasoning is founded on the

evaluative character inherent in the term 'appropriate' in s 39(3). In

Fogg v The State of Western Australia, her Honour said as follows:

54

Section 39(2) of the Sentencing Act sets out the sentencing options.

The ultimate option is a term of immediate imprisonment and the two

preceding it are conditional suspended imprisonment and suspended

imprisonment respectively. Under s 39(3) a court must not use a

sentencing option in subs (2) unless satisfied that it is not appropriate to

use any of the options listed before that option. Thus, a sentencing

judge has to be positively satisfied that suspension of the term of

imprisonment is not appropriate before a term of immediate

51

52

53

54

Sentencing Act, s 4(2).

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] - [79], see also [15].

Dinsdale [77].

Fogg v The State of Western Australia [2011] WASCA 11 [8] - [10].

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[2018] WASCA 43

JUDGMENT OF THE COURT

imprisonment can be imposed. The term 'appropriate' in its statutory

context signifies the conclusion reached by the decision-maker after the

exercise of the sentencing discretion. The concept of a discretion is

explained by the High Court in Coal and Allied Operations v

Australian Industrial Relations Commission (2000) 203 CLR 194.

Gleeson CJ, Gaudron and Hayne JJ said:

'Discretion' is a notion that 'signifies a number of different legal

concepts'.

In general terms, it refers to a decision-making

process in which 'no one [consideration] and no combination of

[considerations] is necessarily determinative of the result.'

Rather, the decision-maker is allowed some latitude as to the

choice of the decision to be made. The latitude may be

considerable as, for example, where the relevant considerations

are confined only by the subject matter and object of the

legislation which confers the discretion. On the other hand, it

may be quite narrow where, for example, the decision-maker is

required to make a particular decision if he or she forms a

particular opinion or value judgment [19].

Reasonable people may legitimately differ as to what is an appropriate

sentence within the sound discretionary range. In some (limited)

circumstances such as in borderline cases, different types of sentence

may be reasonably open. That can be so even though the actual

decision-maker has to be positively satisfied that a lesser sentence is not

appropriate.

In the absence of express error, the sentencing judge's latitude as to the

choice of sentence is preserved from appellate intervention by the

requirement that the outcome not be unreasonable or unjust. Thus the

State is correct in its submission that the question for this court is

whether the sentencing judge impliedly erred in concluding that a term

of immediate imprisonment was the appropriate sentencing option.

56

In our view, the question is whether it was open to the sentencing judge

to form the view that the only appropriate disposition was the

imposition of a term of imprisonment (albeit suspended). In other

words, the question is: was it open to the judge to find that the less

serious sentencing option of an intensive supervision order was not

appropriate?

The relevance of mental impairment: general principles

57

58

The general principles explaining the relevance of mental impairment

to the sentencing process have been explained in many cases.

Mental impairment may be relevant to sentencing in a number of ways,

as explained in R v Tsiaras:

55

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JUDGMENT OF THE COURT

First, it may reduce the moral culpability of the offence, as distinct from

the prisoner's legal responsibility. Where that is so, it affects the

punishment that is just in all the circumstances and denunciation of the

type of conduct in which the offender engaged is less likely to be a

relevant sentencing objective. Second, the prisoner's illness may have a

bearing on the kind of sentence that is imposed and the conditions in

which it should be served. Third, a prisoner suffering from serious

psychiatric illness is not an appropriate vehicle for general deterrence,

whether or not the illness played a part in the commission of the

offence. The illness may have supervened since that time. Fourth,

specific deterrence may be more difficult to achieve and is often not

worth pursing as such. Finally, psychiatric illness may mean that a

given sentence will weigh more heavily on the prisoner than it would on

a person in normal health.

59

60

Those principles apply to any offender who has, either at the time of

offending or at sentence, a mental disorder, abnormality or impairment

of mental function.

56

If an offender contends that their moral culpability is lessened by

mental impairment, the offender must prove, on the balance of

probabilities, a causal connection between the impairment and the

commission of the offence.

57

61

Mental impairment that is not causative of the offence may still be

relevant to issues such as the offender's rehabilitation, treatment,

deterrence and the question of whether any sentence of immediate

imprisonment would weigh more heavily on the offender than a person

in normal health.

58

62

Mental impairment which has a causal relationship to the offence can

significantly affect considerations of personal and general deterrence, in

addition to reducing the moral culpability of the offender, as explained

by Mazza J, with whom McLure P and Buss JA agreed, in Gok v The

Queen:

59

The impact of general deterrence is something which is often

misunderstood. It is not the law that once it is demonstrated that an

offender has a mental impairment that general deterrence is irrelevant.

General deterrence still operates when a court is sentencing an offender

55

56

R v Tsiaras [1996] 1 VR 398, 400.

Krijestorac v The State of Western Australia [2010] WASCA 35 [18]; Gok v The Queen [2010] WASCA

185 [55].

57

Wheeler v The Queen [No 2] [2010] WASCA 105 [59] - [60]; Gok [56].

58

Wheeler [No 2] [6] - [7]; Gok [57].

Gok [59] - [61].

59

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[2018] WASCA 43

JUDGMENT OF THE COURT

with a mental impairment but its effect is, to use a phrase sometimes

used in the cases, 'sensibly moderated'. In many cases, general

deterrence will be given less weight because the offender is simply an

inappropriate medium for making an example to others. However, it is

an extreme case where considerations of general deterrence are

eliminated entirely …

The degree to which general deterrence is moderated very much

depends on the facts of the case. At one end of the spectrum stands the

case where the offender is so afflicted by his or her mental impairment

or impairments that general deterrence plays virtually no part. At the

other end are cases where the moderation of general deterrence is small

because the offender knows what he or she is doing and appreciates the

gravity of his or her actions.

With respect to personal deterrence, again much depends upon the

circumstances. The law assumes that an offender has the intellectual

capacity to be deterred from committing an offence by the prospect of

being punished if the offence is committed and detected. Where an

offender's mental impairment affects that person's ability to understand

this, the effect of personal deterrence will be moderated. The extent to

which it is moderated will depend upon the extent to which the offender

has the ability to reason in the way I have described. In some cases …

personal deterrence has little point whereas in other cases it would be

more significant. (citations omitted)

63

The complex and, at times, conflicting manner in which mental

impairment may influence the sentencing process was explained by

Buss JA, with whom McLure P and Mazza JA agreed, in The State of

Western Australia v Malone:

60

although a mental disorder, intellectual disability or psychological

difficulties (falling short of insanity and which have not been self-

induced) will often tend to diminish moral blameworthiness or

culpability and, consequently, tend to diminish the otherwise

appropriate sentence, it may in some circumstances have other effects.

For example, the existence of a causal connection between the mental

disorder, intellectual disability or psychological difficulties, on the one

hand, and the offending behaviour, on the other, might reduce the

importance of general deterrence but increase the importance of

personal deterrence or the need to protect the public. A sentencing

factor may be relevant in a number of respects and not affect the

sentencing outcome because the factor weighs both positively and

negatively in the balance.

60

The State of Western Australia v Malone [2015] WASCA 188 [74].

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JUDGMENT OF THE COURT

Disposition

64

As we have said, the question is not whether we would have imposed

suspended imprisonment. It is whether it was open, on a proper

exercise of the sentencing discretion, to do so.

65

The offence of aggravated burglary carries a maximum sentence of

20 years' imprisonment, reflecting its seriousness. Home burglaries are

viewed as being particularly serious offences, and are generally seen as

requiring substantial penalties in order to recognise considerations of

personal and general deterrence, and to reflect the prevalence of the

offence.

61

Ordinarily, the offence of aggravated burglary attracts a term

of immediate imprisonment.

62

66

The appellant has pointed to cases in which sentences other than

imprisonment were imposed for one or more offences of aggravated

burglary.

63

The circumstances of the offenders in those cases were

markedly different from the circumstances of the appellant. In any

event, the fact that, as with many serious offences, examples can be

found where a non-custodial sentence is imposed, does not demonstrate

that the penalty of imprisonment in this case was outside the range of a

sound sentencing discretion.

67

While considerably more serious examples of aggravated burglary can

readily be imagined, the appellant's offence was not without serious

features. He entered a home at 3.30 am when, as was to be expected,

the occupants were sleeping. In doing so, the appellant created the real

potential for confrontation and the possibility of unintended injury and

damage. That was magnified by the fact that the appellant was under

the influence of drugs when he committed the offence. Further, the

appellant disturbed a 12-year-old girl who was asleep in her bedroom.

61

McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Hume v The State of Western

Australia [2017] WASCA 205 [31].

62

63

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 [14].

AH; Churnside.

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[2018] WASCA 43

JUDGMENT OF THE COURT

68

These features of the appellant's offence engage considerations that

underpin the seriousness of home burglary offences in general,

reflected in the maximum penalty. Home burglaries are apt to create a

sense of intrusion and fear for people whose home is the subject of a

burglary. Those responses are liable to be heightened where, as here,

the occupants are present when the offence is committed.

69

We accept that the appellant had significant mitigating factors in his

favour. These included his plea of guilty at the first reasonable

opportunity, his remorse, his cooperation with the police, and his

significant intellectual disability which was causally relevant to the

offence. However, to our minds, it was open to the sentencing judge to

form the view that, when these were weighed against the seriousness of

the offence, a conditionally suspended imprisonment was the

appropriate disposition. In other words, we think it was open to

conclude, as the sentencing judge did, that any lesser option than

imprisonment, including an intensive supervision order, would not have

been commensurate with the seriousness of the offence. While the

appellant's mental impairment meant that the significance of general

deterrence was substantially reduced, it could not be said to be

eliminated, particularly bearing in mind that the appellant was acting

under the influence of prohibited drugs when he committed his offence.

Moreover, the appellant's use of illicit drugs was relevant to his risk of

reoffending.

64

Further, we accept, as the respondent submits, that a

number of the appellant's answers in his video record of interview

demonstrate that he understood that it was wrong to enter someone's

house without consent. Personal deterrence was a material factor in the

sentencing process.

70

For these reasons, we are not persuaded that the appellant has

demonstrated error. Consequently, the appeal must be dismissed.

Conclusion

71

For the reasons we have given, we would dismiss the appeal.

64

Squance v The State of Western Australia [2018] WASCA 25 [48]; Williams v The State of Western

Australia [2016] WASCA 232 [39].

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[2018] WASCA 43

JUDGMENT OF THE COURT

I certify that the preceding paragraph(s) comprise the reasons for decision of

the Supreme Court of Western Australia.

LW

RESEARCH ASSOCIATE/ORDERLY TO BEECH JA

4 APRIL 2018

Page 21

Citations

Mason v The State of Western Australia [2018] WASCA 43

Most Recent Citation

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27

SANDBANK HOLDINGS PTY LTD -v- DURKAN (as Administrator of the Estate of MARTIN DURKAN) & ANOR [2009] WADC 11

LSG Sky Chefs New Zealand Limited v Pacific Flight Catering Limited [2012] NZHC 1996

Beynon v The State of Western Australia [2021] WASCA 153

Cases Cited

16

Statutory Material Cited

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AH v The State of Western Australia [2014] WASCA 228

Churnside v The State of Western Australia [2016] WASCA 146

Dinsdale v The Queen [2000] HCA 54

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