Minton v McAlinden
[2017] WASC 99
•31 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MINTON -v- McALINDEN [2017] WASC 99
CORAM: MARTINO J
HEARD: 31 MARCH 2017
DELIVERED : 31 MARCH 2017
FILE NO/S: SJA 1105 of 2016
BETWEEN: LUKE CHARLES MINTON
Appellant
AND
TIFFANY McALINDEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R BAYLY
File No :PE 20717 of 2016, PE 20718 of 2016, PE 20719 of 2016, PE 20720 of 2016
Catchwords:
Criminal law - Sentencing - Assault public officer - Mental illness - Reduction for plea of guilty
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14
Criminal Code (WA), s 318
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P Yovich SC
Respondent: Ms G Beggs
Solicitors:
Appellant: Nigams Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Franchina v The State of Western Australia [2017] WASCA 56
Gok v The State of Western Australia [2010] WASCA 185
IEB v The State of Western Australia [2015] WASCA 207
Krijestorac v The State of Western Australia [2010] WASCA 35
Lesay v The State of Western Australia [2011] WASCA 154
Moirv The State of Western Australia [2014] WASCA 25
Powell v The State of Western Australia [2010] WASCA 54
Quinn v The Sate of Western Australia [2006] WASCA 99
Roncevic v The State of Western Australia [2012] WASCA 43
Winmar v The State of Western Australia [2016] WASCA 184
Woods v The Queen (1994) 14 WAR 341
MARTINO J: The appellant, Mr Minton, appeared in the Magistrates Court on 12 December 2016 and was sentenced on his pleas of guilty to four charges. He had entered his pleas of guilty at an earlier appearance, which was to be the first day of the trial of the charges. The offences for which he was sentenced were one offence of assaulting a public officer who was performing a function of his employment in prescribed circumstances namely the public officer was a police officer and the public officer suffered bodily harm and three offences of assaulting a public officer who was performing a function of the public officer's employment. All offences were committed on 10 April 2016. The maximum penalty for all those offence is 7 years imprisonment. The maximum summary penalty is 3 years' imprisonment and a fine of $36,000 – s 318(1) Criminal Code. The mandatory minimum penalty for the first offence is 6 months' imprisonment to be served – s 318(4) Criminal Code.
Mr Minton was sentenced to 14 months' imprisonment to be served on the first charge and 7 months imprisonment on the remaining charges. All of the terms were ordered to be served concurrently. Mr Minton was made eligible for parole.
In his appeal Mr Minton applied for leave to appeal against those sentences on four grounds. On 2 February 2017 I ordered that the application for leave to appeal be heard with the appeal. The first ground was amended and an additional ground of appeal was added at the hearing of the appeal today. The grounds of appeal as amended are:
1.The learned sentencing magistrate failed to properly take into account the offender's mental health condition.
2.The learned sentencing magistrate failed to take into account for the purposes of sentencing, as a mitigating factor, the offender's fear of police as a factor in the commission of the offence.
3.The learned sentencing magistrate erred as a matter of fact by concluding that there was no evidence of remorse for the purpose of sentencing.
4.In all the circumstances the sentence imposed is manifestly excessive.
5.The sentencing magistrate erred in law in failing to apply the discount for the appellant's pleas of guilty to the head sentence, as defined in s 9AA(1) of the Sentencing Act, as is required by s 9AA(2) of that Act.
Ground 5 was added after the issue was raised in the respondent's submissions.
Mr Minton requires leave of the Supreme Court for each ground of appeal ‑ s 9(1) Criminal Appeals Act 2004 (WA), which must not be given unless the court is satisfied that the ground of appeal has a reasonable prospect of succeeding ‑ s 9(2). Unless the Supreme Court gives leave to appeal on at least one ground of appeal the appeal is to be taken to have been dismissed ‑ s 9(3).
The facts of the offending
The learned Magistrate described the facts of Mr Minton's offending as follows:
At 3.40 on 10 April 2016, the accused called police because he had argued with his partner and she had been drinking, and he said that he was concerned about her driving.
It should be noted that both her – the partner and the accused resided in the house to which the police came. I accept that he had been living there for a period of time but, as a matter of law of course, the house, as I understand it, was her house. They had had some dispute, and eventually she was excluded from the house. Because she was unable to get back into the house as a result of the accused having used tools – I'm not quite sure exactly what, it's not clear – to ensure that the front door could not be opened. It doesn't matter much in relation to the matter. That is by way of a factual background.
The police arrived. They spoke to the partner in the vicinity of the house and, as I understand it, she was in fact charged with some sort of drink driving offence. She then advised the police – and it seems to be common ground that that is so – that she was concerned that the accused who was inside the house was cause damage to the house. It might have been a concern to himself and also that he may be killing or injuring some chickens.
The police then went to the house, as indeed I have already expressed the view, they were obliged to and had to. It was her house and they had a complaint. It was necessary for them to take some action. They could have been severely criticised for not doing anything. In any event, they knocked on the door. The accused wouldn’t open it. They got permission to enter, as I say, from the partner. They got a key but the key would not open the door, so they had to use some force to break through the barrier which had been erected.
Upon opening the door the accused then attacked Constable Lawrence Plowright, and punched him in the face, causing a laceration to the nose which required stitches. I have a medical report that indicates that initially it was said the nose was broken, but that’s not correct. I understand that he had to have stitches. The accused then continued with his behaviour. He then punched Detective Baker, I think it was, next, to the head. He suffered a bloody graze and a lump to his head.
He then struck Constables Vines several times to the head and cheek. He had general soreness. The accused was then taken to the ground by a female detective, and she is the complainant in respect to the fourth charge. He grabbed her around the neck and applied pressure to her throat, according to the facts which don’t seem to be in dispute. Eventually the accused was tasered and eventually subdued and arrested (ts 25 ‑ 26)
As his Honour acknowledged the victim who suffered bodily harm suffered a laceration that required suturing. He did not suffer a broken nose.
Other facts of the offending that were provided to his Honour by the prosecutor were that before the police officers used force to open the door they identified themselves as police officers. Mr Minton made a number of telephone calls including a call to the police assessment centre. He spoke to a despatcher to whom he said aggressively that he was not willing to open doors to police.
Mr Minton spoke with detectives and said that he wished to speak with a Ronnie Adams and there was further conversation which could not be heard by the police officers. Mr Minton then remained silent.
Mr Minton's personal circumstances
Mr Minton was represented by a solicitor who made a plea in mitigation and provided a psychiatric report, a psychological report and character references for Mr Minton. The learned magistrate also had the benefit of a pre‑sentence report.
Mr Minton was aged 35 at the time of the offences. He had a record of offending as an adult for traffic offences, reckless driving, disorderly conduct and resisting arrest. He had not previously been convicted of assault or sentenced to prison. He had a good employment history.
Mr Minton was first seen by his psychiatrist Dr Wu on 19 October 2010. Dr Wu diagnosed Mr Minton as having a cyclical mood disorder, characteristic of a Bipolar II mood disorder. He prescribed treatment with mood stabilisers. The medication improved Mr Minton's condition and he was able to maintain employment.
On 24 April 2012 Mr Minton and a friend were assaulted by a police officer. Mr Minton was charged with obstructing police officers, unlawful damage and assaulting a public officer in respect of that incident. He was acquitted of those charges.
The assault of Mr Minton and his friend was investigated by police. The investigating officer was Mr Ron Adams. The police officer was charged with four counts of assault on Mr Minton and two counts of assault on his friend. The trial of the police officer took place in June 2016. The police officer was convicted of the assaults in November 2016. The assaults on Mr Minton consisted of the police officer pushing him twice, tripping him and eye and ear gouging.
In 2014, after six months' absence of follow up at Dr Wu's practice, Mr Minton returned to see Dr Wu. Mr Minton had a depressed mood. He told Dr Wu that he became unemployed after having lost his job and he was beset with problems following the problems he had with police. Apparently Mr Minton had not been fully compliant with his medication and he had been drinking alcohol quite heavily at times. Mr Minton wished to change his medication as he felt that the medication that Dr Wu had prescribed had interfered with his employment. Dr Wu prescribed a different medication, although he did not consider it as effective as the first medication that he had prescribed.
The learned magistrate's sentencing remarks
His Honour described the Mr Minton's offending as a serious attack on police officers carrying out their duties. His Honour noted that police officers are obliged to attend domestic disputes when called upon to do so.
His Honour referred to the assault upon Mr Minton by a police officer in 2012. His Honour noted Dr Wu's report and his diagnosis and treatment of Mr Minton and the psychologist's assessment that Mr Minton suffered post‑traumatic stress disorder after the assault upon him and his friend by a police officer.
His Honour then referred to the submissions made on Mr Minton's behalf that at the time of his offending Mr Minton reacted in the way that he did as a result of the fear he had for police, arising out of the incident in 2012.
His Honour noted that Mr Minton, perhaps with considerable justification he said, had a distrust for the police.
However, his Honour noted, that it was Mr Minton who telephoned the police because his girlfriend had been drink driving. His Honour said that he found it a little odd that Mr Minton called the police because his partner was drink driving when Mr Minton had convictions for reckless driving, disorderly conduct and resisting arrest. His Honour considered that there might have been an aspect of vindictiveness in calling the police. His Honour noted that Mr Minton had sealed up the front door to stop her getting in to her own house.
His Honour said that it was clear that Mr Minton was a good worker who had references which spoke highly of him.
His Honour noted that it was necessary to sentence Mr Minton to a term of imprisonment to be served and that the question was what the length of the term should be.
His Honour then referred to the pre‑sentence report, the psychological report and the psychiatric report. His Honour said that Mr Minton's views of police may well be founded in the fact he was charged for an offence for which he was acquitted. His Honour then said:
There are psychological – psychiatric reasons why he has had difficulty coping with it.
But at the end of the day, the police have to be protected when they go about their duty. And this was a – as I have indicated before, a severe attack on four police officers who came to do their duty at night, in circumstances where he, the accused had called them not to come into the house – but he, the accused, had called them to come into the vicinity relating to – in matters relating to his partner or ex-partner – they’re no longer together – with whom he had a dispute.
And so a degree of deterrence has to enter into any sentence which is imposed. The general public need to know that – they generally need to know that you can’t just attack police officers when they come into – well, not in your house but the house you live in, because you're – for whatever reason, and particularly in the severe way that this occurred. (ts 28 ‑ 29)
His Honour then referred to the plea of guilty and the sentence that he would impose:
Ultimately he pleaded guilty, although certainly not at the first opportunity.
The maximum allowable for a discount for pleading guilty is 25 per cent but I will give him a discount of slightly less than 25 per cent, but still give him a – what I consider to be a substantial discount in relation to the matters in question. In my view the appropriate penalty prior to taking into account the plea of guilty, but taking into account the surrounding factors, would be in my view a sentence of 18 months. I would reduce that to a sentence of 14 months, having regard to the plea of guilty and it seems to me that the appropriate sentence is one of 14 month.
His Honour then imposed the sentences against which Mr Minton seeks to appeal.
Ground of Appeal 1
By ground 1 Mr Minton contends that the learned magistrate did not take into account Mr Minton's mental illness in determining whether Mr Minton's moral culpability for the offending was reduced.
A mental or psychological condition falling short of insanity may be relevant to sentencing in a number of ways. First, it may reduce the moral culpability of the offence. 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 offender's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, an offender 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. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Fifth, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. These principles are not confined to offenders who suffer serious psychiatric illness, but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness: Krijestorac v The State of Western Australia [2010] WASCA 35 [17] ‑ [18] (Wheeler JA).
It is also necessary to bear in mind, as Mazza J said in Gok v The State of Western Australia [2010] WASCA 185 [58] ‑ [61], that while the existence of a mental impairment will almost always be relevant to the sentencing of an offender and will often result in a lower sentence, this is not always the case. The existence of a mental impairment is one of the factors which must be balanced with other factors to produce a just sentence. It is wrong to assume that the existence of a mental impairment will automatically result in a lesser sentence. 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 with a mental impairment but its effect is 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. 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.
His Honour found that the appellant had a diagnosed mental illness. He also noted that Mr Minton distrusted police perhaps with considerable justification and that his views about police may be well founded. His Honour then said 'But you have to get over these things, in my view', and referred to the need to protect police officers performing their duty and the need for general deterrence.
Senior counsel submitted that the learned magistrate did not have regard to Mr Minton's mental health condition properly. He submitted that his Honour failed to have regard to the reduction in moral culpability that followed from the mental illnesses from which Mr Minton suffered. Senior counsel referred to the learned magistrate saying 'at the end of the day the police have to be protected' (ts 28) after saying that there were psychological and psychiatric reasons why Mr Minton has had difficulty coping with it. I do not understand the learned magistrate's remarks in that way. In my view his Honour was referring to the situation immediately before the offending. In my view his Honour had appropriate regard to Mr Minton's mental illness.
Mr Minton's mental illness was a relevant factor. It did reduce his moral culpability to some extent. However it did not remove the need to have regard to both general and personal deterrence.
In my view this ground has no reasonable prospect of success.
Ground of Appeal 2
The second ground of appeal is that the learned magistrate failed to take into account as a mitigating factor Mr Minton's fear of police as a factor in the commission of the offence. I have referred to relevant matters on this ground when dealing with the first ground of appeal. The learned magistrate did take into account Mr Minton's fear of police and the source of that fear. He expressly referred to those matters.
This ground of appeal has no reasonable prospect of success.
Ground of Appeal 3
The third ground of appeal is that the learned magistrate erred as a matter of fact by concluding that there was no evidence of remorse for the purpose of sentencing.
The learned magistrate did not refer to remorse in his sentencing remarks. I infer that he did not regard remorse as a mitigating factor.
The magistrate referred to the issue in the plea in mitigation. He raised with counsel that in both the psychiatric report and the pre-sentence report Mr Minton did not appear to accept responsibility for his offending behaviour (ts 13). Counsel for Mr Minton submitted that Mr Minton accepted responsibility and expressed remorse and regret in his conferences with him. The learned magistrate referred to the fact that the plea was entered very late. Counsel for Mr Minton said that the matter was complex and referred to the references which spoke of Mr Minton's regret and remorse (ts 13 ‑ 14).
The prosecutor submitted that there was no genuine remorse (ts 22). Counsel for Mr Minton responded to that submission, referring to the reference from Mr Minton's mother as an example of the evidence of remorse (ts 23).
Mr Minton and his counsel were therefore aware that whether or not remorse was a mitigating factor was a live issue and his counsel addressed his Honour on the issue.
There was a sound basis for the learned magistrate to conclude that remorse was not a mitigating factor. In the psychiatric and psychological reports the authors answered a number of questions asked of them. One of those questions was whether there was evidence of remorse. Both answered that there was, however both were qualified. Dr Wu, the psychiatrist, said at page 6:
Yes, your client had told me that he was remorseful of what had happened.
He also said that he had regretted the incident and the use of force. He wished that the police had negotiated with him for a different outcome at the time of the incident.
Ms Smith the psychologist said at page 18:
Mr Minton is remorseful in that he acknowledges that the two Police officers who were victims of the alleged assault did not deserve it. However, Mr Minton thinks that the incident could have been handled better by everyone. Mr Minton believes that the system is not fair.
The author of the pre‑sentence report said at page 2:
Mr [Minton] believed that he was the victim of the current offending and displayed no victim empathy, blaming police corruption and their aggressive behaviours towards him.
It was open to the learned magistrate to conclude that there was no remorse. Having reviewed the materials I have reached the same conclusion as his Honour.
This ground has no reasonable prospect of success.
Ground of Appeal 4
The fourth ground of appeal is that the sentence was manifestly excessive.
The principles to be applied in an appeal on the ground that the sentence imposed was manifestly excessive were explained in Franchina v The State of Western Australia [2017] WASCA 56 [38]:
Manifest excess
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Senior counsel for Mr Minton on the hearing of this appeal said that this ground was to be regarded as an allegation that the sentence breached the first limb of the totality principle. He submitted that the offending was part of one transaction.
Sentences for offences against s 318 of the Code were reviewed in Quinn v The Sate of Western Australia [2006] WASCA 99 and in Powell v The State of Western Australia [2010] WASCA 54. It is necessary to bear in mind, as Simmonds J noted in Powell, that in many of those cases the sentence was imposed when the maximum sentence for the offence was 10 years' imprisonment.
In Quinn McLure JA said at [19] that the authorities endorse the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence.
Since those cases there have been the decisions of Roncevic v The State of Western Australia [2012] WASCA 43; Moir v The State of Western Australia [2014] WASCA 25 and Winmar v The State of Western Australia [2016] WASCA 184. The highest sentences imposed were sentences of 2 years and 4 months in Quinn and Roncevic. In Quinn the offender was sentenced after trial. In Roncevic there were two offences of assaulting a public officer. For each of those offences the sentence of 2 years and 4 months was to be served cumulatively as part of a total sentence of 9 years and 2 months for offences including serious drug offences. Those sentences were imposed following late pleas of guilty. The facts of the offences in Quinn and Roncevic were more serious than the facts of this case.
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341. The one transaction rule can be a useful guide in some cases, but it is not a fixed rule which operates independently of the first limb of the totality principle. In Lesay v The State of Western Australia [2011] WASCA 154 [21] Mazza JA said:
As has been said many times, the one transaction rule is not a rule at all. It will not always be the case that individual offences, when committed as part of one episode, will attract concurrent sentences. This is because the ultimate requirement, when sentencing a person who has committed multiple offences, is to impose punishment which is a just and proper reflection of the offender's total criminality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623; and Walgar v The State of Western Australia [2007] WASCA 241 [9]. This may mean that some accumulation is required, even when offences are committed as part of one episode of criminal conduct.
In his submissions Senior Counsel for Mr Minton pointed to evidence that Mr Minton suffered a fractured skull in the incident. However there is no evidence that this injury had any significant consequences. Mr Minton does not seek the opportunity to adduce evidence that it did. I do not regard the injury as being a matter of significant relevance to the appeal.
I have referred earlier in these reasons to the facts of the offending and the matters personal to Mr Minton. The learned magistrate was correct to describe the offending as serious. There were assaults on four police officers, one of whom suffered bodily harm. In my view the sentence imposed did not offend the first limb of the totality principle. Having regard to the relevant sentencing principles and all the circumstances of the case including matters personal to Mr Minton it is my view that the total sentence imposed for the four offences was not manifestly excessive. In my view the sentence was not unreasonable or plainly unjust. On the contrary, I regard the total sentence as appropriate.
This ground has no reasonable prospect of success.
Ground of Appeal 5
The fifth ground of appeal concerns the learned magistrate's application of s 9AA of the Sentencing Act 1995 (WA). The process his Honour followed was to arrive at a sentence of 18 months' imprisonment for the offence of assaulting a public officer in prescribed circumstances after taking into account 'the surrounding factors' but before taking into account the plea of guilty. His Honour then reduced that sentence under s 9AA by reason of the plea of guilty to a sentence of 14 months' imprisonment.
Section 9AA requires that any discount under that section is to be applied to the head sentence, which is defined as being the sentence that the court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors: IEB v The State of Western Australia [2015] WASCA 207 [9] (McLure P).
It is clear in my view that the 'surrounding factors' which his Honour took into account in arriving at the sentence before making the reduction under s 9AA included mitigating factors. That is because his Honour did not say that there were no mitigating factors and he did not reduce the sentence by reason of mitigating factors after making the reduction under s 9AA.
His Honour made the error of law raised in ground of appeal 5. The express error of law requires a resentencing exercise. Notwithstanding the error the appeal could be dismissed if no substantial injustice occurred: s 14(2) Criminal Appeals Act 2004 (WA).
I have reviewed the sentence in my review of the previous grounds of appeal. His Honour made an error of law in applying s 9AA, but the reduction he allowed was very generous. Following the review of the sentence I am satisfied that notwithstanding the error of law made by his Honour in applying s 9AA an appropriate sentence was imposed and there was no substantial injustice.
I grant leave to appeal on this ground but dismiss the appeal.
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