McRae v The State of Western Australia - [2012] WASCA 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McRAE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 243

CORAM: McLURE P
MAZZA JA

HEARD: 9 NOVEMBER 2012

DELIVERED : 27 NOVEMBER 2012

FILE NO/S: CACR 117 of 2012

BETWEEN: ROBERT ASHLEY McRAE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND 75 of 2012

Catchwords:

Criminal law - Appeal against sentence - Manifest excess - Totality - Whether failure to consider certain 'facts' - Whether failure to consider mental impairment - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Damiani v The State of Western Australia [2006] WASCA 47

McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his fast‑track pleas of guilty of one count of aggravated burglary in a dwelling (count 1), one count of stealing a motor vehicle (count 2), three counts of aggravated dangerous driving causing bodily harm (counts 3 ‑ 5) and one count of failing to ensure an injured victim received assistance (count 6). He also pleaded guilty to an offence the subject of a s 32 notice of obstructing a public officer.
On 20 April 2012 the appellant was sentenced by Stone DCJ to immediate terms of imprisonment of 2 years 6 months (count 1), 18 months (count 2), 2 years (on each of counts 3, 4 and 5), 2 years 6 months (count 6) and 1 month for obstructing a public officer. The sentencing judge ordered that the sentences on counts 1 and 6 be served cumulatively and the balance concurrently, producing a total effective sentence of 5 years' imprisonment. The appellant was made eligible for parole.
The appellant claims that the individual sentences are manifestly excessive, the total effective sentence infringes the first limb of the totality principle, and that the sentencing judge erred by failing to 'correctly take into account' his mental impairment and his actions following the traffic incident. As to the latter, the appellant claims the sentencing judge failed to take into account that 'the appellant had stayed at a nearby service station after the traffic incident' and that he was experiencing hallucinations.
The appellant was legally represented in the sentencing proceedings. Although he was unrepresented in the appeal, it is apparent that the appellant's case was prepared with input from a person with legal training.
The facts of the offending are as follows. At about 7 am on 22 October 2011 the appellant burgled a dwelling while the complainant and his wife were asleep in bed. He stole a wallet, a purse, cash, a pair of sunglasses and the complainant's car keys. The appellant used the car keys to steal the complainant's vehicle. Whilst the appellant was driving the stolen vehicle in Guilford, he overtook another vehicle when travelling at about 80 km per hour in a 60 km per hour zone and drove over a speed hump, causing the stolen vehicle to become momentarily airborne. The appellant continued at speed through a stop sign and collided with a white Toyota van. The impact caused the van to spin almost 360 degrees before coming to a stop. The sole occupant of the van received bruising to his knees and heavy bruising to his chest and shoulder. After hitting the van, the stolen vehicle continued across the intersection and collided with a Holden utility. The force of the impact caused the utility to veer off the road and crash into a nearby brick wall. The passenger in the utility received heavy bruising to his stomach and chest as well as a stiff neck. The driver of the utility received a broken right collarbone, heavy bruising to his chest and pain to his shoulder blades and neck. The utility was damaged beyond repair, as was the stolen vehicle. The appellant got out of the stolen car and ran from the crash scene to an adjacent service station. The appellant failed to render assistance to the persons in the vehicles that had collided with the stolen vehicle driven by him. Police later located the appellant at the service station. As two police officers were attempting to handcuff the appellant, he pushed them away and ran from police. Over the next 10 minutes police searched for the appellant who evaded them by hiding in nearby yards. He was eventually apprehended.
The appellant was aged 27 at the time of the offending. He had an extensive history of prior offending in New South Wales, Victoria and Western Australia. After arriving in Western Australia in 2007, he had amassed a large number of convictions for offences including aggravated burglary in a dwelling, attempted aggravated burglary, burglary, attempted burglary, stealing a motor vehicle, reckless driving, stealing and fraud. As a result, the appellant has spent the majority of his time in Western Australia in prison.
The appellant has a significant and continuing history of substance abuse problems (drugs and alcohol) that contribute to his offending. He committed the offences the subject of this appeal within a month or two of being released from a lengthy term of imprisonment for which he was not made eligible for parole.
The psychological report before the sentencing judge refers to a diagnosis of attention deficit disorder as a child, for which he was never medicated. The appellant reported suffering significant anxiety and adjustment difficulties on the occasions following his release from custody.
The psychological report strikes a pessimistic tone. It states:
Reviewing the potential for sound risk management, [the appellant] has no feasible plans for his future. There is also a high probability that he will be exposed to destabilisers and stress in the future and that he will struggle to cope with such challenges due to his poor stress resilience and coping skills. Additionally, he is likely to lack support from others and he is highly likely to be non‑compliant with remediation attempts just as he has been in the past. Considering this information, he was assessed as being a high risk of reoffending in a violent and generalist manner in the future if he is unable to make the substantial attitudinal and behavioural changes required to lead a pro‑social lifestyle.
…
Due to [the appellant's] lack of compliance with past orders and his lack of responsiveness to past treatments, his ability to make the required changes is highly questionable.
The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of an error from the individual sentence itself. A claim of breach of the totality principle depends upon establishing the implication of an error from the total effective sentence.
The appellant requires the leave of this court for each ground of appeal and leave must not be granted unless the court is satisfied the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 27.
I propose to commence with ground 3 which asserts a failure by the sentencing judge to 'correctly take into account' certain facts. The first 'fact' relied on is that the appellant stayed at a nearby service station after the traffic incident. There is no merit in this ground. The sentencing judge adopted the prosecutor's statement of the facts which were, on this topic, admitted on behalf of the appellant. There was nothing mitigatory in those facts.
At the hearing of the appeal the appellant referred to matters that were not put before the sentencing judge. First, he said that he had waited for police to come to the service station. Even if that is so, it is not material when considered in the context of his state of mind and the circumstances of the offence of obstructing a public officer. Secondly, he said he fled from the scene of the accident because he thought he had killed his partner in the accident (who was not present in the stolen vehicle). The appellant's counsel had informed the sentencing judge that he had taken a mixture of amphetamines and a hallucinogenic drug which caused him to suffer delusions and hallucinations which prevented him from providing assistance to the victims (ts 10 ‑ 11). The sentencing judge accepted that the appellant was affected by drugs throughout the period of his offending. Neither of the additional matters (even if

properly proved and the subject of a grant of leave) are capable of reducing the appellant's culpability.

The appellant is under the continuing misapprehension that committing offences while under the influence of drugs or other mind‑altering substances is somehow mitigatory in reducing his responsibility, and/or culpability, for his conduct. It is not. See Damiani v The State of Western Australia [2006] WASCA 47 [41]. Unless and until the appellant understands that and takes full responsibility for his actions, his future will look much like his past. Ground 3 is without merit.
The appellant claims in ground 2 that the sentencing judge erred in not taking into account his mental impairment. The appellant's counsel informed the sentencing judge that the appellant was experiencing panic attacks, could not cope with large groups of people, struggled to complete everyday tasks and had been diagnosed in custody with depression and anxiety for which he was, at the time of sentencing, on medication. The psychological report recorded the appellant's claims that on his previous releases from prison he had experienced significant anxiety and adjustment difficulties. It is clear from the sentencing judge's reasons that he had paid careful attention to, and took into account, the psychological report. It is also clear that the appellant's continuous cycle of substance abuse, offending and imprisonment could be expected to contribute to anxiety, coping difficulties and even depression. However, such consequences will not be mitigatory when they are associated with a continuous cycle of offending. There is no merit in ground 2.
Finally, the appellant has no reasonable prospect of succeeding in his claims that the individual sentences are manifestly excessive and that the total effective sentence breached the totality principle. The sentencing judge had no alternative but to give great weight to personal deterrence, having regard to the very significant risk the appellant poses to the community. General deterrence was also a weighty consideration. It was appropriate in the circumstances to order partial cumulation of the sentences.
I would refuse leave to appeal on all grounds and dismiss the appeal.
MAZZA JA: I agree with McLure P.