Mitchell v The Queen
[2003] WASCA 25
•4 MARCH 2003
MITCHELL -v- THE QUEEN [2003] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 25 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:149/2002 | 4 NOVEMBER 2002 | |
| Coram: | TEMPLEMAN J WHEELER J MCKECHNIE J | 4/03/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIANE CLARE MITCHELL THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Good character, grief and depression mitigating factors Turns on own facts |
Legislation: | Nil |
Case References: | R v Lauritson (2000) 114 A Crim R 333 Dinsdale v The Queen (1999) 202 CLR 321 Grubb v The Queen [2002] WASCA 158 Latham v The Queen [2000] WASCA 338 R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993 R v Western [2001] WASCA 194 Yardley v Betts (1979) 22 SASR 108 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MITCHELL -v- THE QUEEN [2003] WASCA 25 CORAM : TEMPLEMAN J
- WHEELER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Good character, grief and depression mitigating factors - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms G A Archer
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Lauritson (2000) 114 A Crim R 333
Case(s) also cited:
Dinsdale v The Queen (1999) 202 CLR 321
Grubb v The Queen [2002] WASCA 158
Latham v The Queen [2000] WASCA 338
R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993
R v Western [2001] WASCA 194
Yardley v Betts (1979) 22 SASR 108
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1 TEMPLEMAN J: There were three grounds on which the applications for leave to appeal against sentence were based. They were:
"1. The learned Judge erred in finding that a connection between the offending and the applicant's mental disorder was not more than possible.
2. The learned Judge erred in imposing an immediate term of imprisonment.
Particulars
(a) The learned Judge did not expressly consider suspending the sentence.
(b) The learned Judge placed too much weight on the view of the community.
(c) The learned Judge placed insufficient weight on the mitigating factors, in particular, the Applicant's mental state at the time of the offences.
3. The learned Judge erred in imposing the sentences in respect of counts 2 and 3, and the total sentence, which was manifestly excessive in all of the circumstances.
Particulars
(a) The learned Judge placed too much weight on the views of the community.
(b) The learned Judge placed insufficient weight on the mitigating factors, in particular, the Applicant's mental state at the time of the offences."
3 As to ground 1: I accept that on one view, the author of the psychologist's report dated 25 May 2002 was more definite than the learned sentencing Judge in his opinion about the cause of the applicant's criminal behaviour. The psychologist's opinion was that the applicant had
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- developed a Post Traumatic Stress Disorder as a result of the death of her dog: this adding to her pre-existing depression and anxiety.
4 The psychologist said that the Post Traumatic Stress Disorder "quite possibly clouded [the applicant's] judgement and led her to engage in an impulsive act while under the influence of alcohol".
5 The combination of the applicant's grief, and her consumption of alcohol in these circumstances, was said to have been a "significant contributing factor" to the commission of the offences. The psychologist said also that the applicant's psychological condition "led to" her criminal behaviour: and that these were "psychological factors active in [the applicant] perpetrating the offence".
6 The Judge referred to the psychologist's view that it was quite possible that the applicant's Post Traumatic Stress Disorder clouded her judgment. His Honour said:
"In reciting that he said it is quite possible, of course, it is clear that the language that Mr Devine uses suggests that the connection between the offending and the disorder is no more than possible, it is a hypothesis, it is a possibility, it is surmise."
7 As I have observed above, on one view, the Judge might appear to have placed less weight on the psychologist's report than it deserved. However, it is important not to take the Judge's remarks out of context. Overall, I think, it is clear that the Judge well understood the contents of the psychologist's report, which, his Honour said, he had "read carefully and re-read".
8 In any event, as the Judge noted, there were several factors which he had to take into account in fixing the sentence. His Honour referred to the pre-sentence report, the psychological report, and the fact of the many telephone calls the applicant had made on the day her dog died, and on subsequent days. These were said to be calls for help to get her out of Condingup "before she did something stupid".
9 The Judge accepted that the applicant had been very distressed by the death of her dog and that she honestly (albeit unreasonably) thought the complainant was responsible. The Judge had regard also to the large number of personal references given in support of the applicant.
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10 The Judge was clearly entitled to place considerable weight on the "significant role" alcohol had played in the applicant's conduct. This was the view of the psychologist.
11 In short, I am not persuaded that the Judge misunderstood the psychologist's report, as the applicant contends in ground 1.
12 But if I am wrong in my view, it must be remembered that under s 689(3) of the Criminal Code, the Court of Criminal Appeal may quash a sentence, and re-sentence, only:
"… if they think that a different sentence should have been passed."
13 In the present case, the sentence imposed by the Judge was, in my view, well within the range of a sound discretion, having regard to all the factors which his Honour was obliged to, and did, take into account.
14 This proposition not only answers ground 1: it provides an answer to grounds 2 and 3 as well. I emphasise that the weight to be given to each of the relevant factors, including mitigating factors, is very much a matter of judicial discretion.
15 In the present case, the Judge gave the applicant a substantial discount for a number of mitigating factors to which I have referred above. I am not persuaded that his Honour gave insufficient weight to these factors. I would therefore refuse leave to appeal.
16 WHEELER J: This is an application for leave to appeal against sentence. The facts relating to the offence are set out in the remarks of the sentencing Judge, and what follows is summarised from those remarks. The applicant pleaded guilty on 30 July 2002 to an indictment containing three counts: count one alleging that on 26 March she wilfully and unlawfully damaged vehicle and boat trailer tyres and flyscreens; count two that on 27 March while in the place of Mr Saville without his consent she committed the offence of damage, the place being ordinarily used for human habitation; and count three that on the same date and as at the same place as count 2 she wilfully and unlawfully damaged a house and its contents by fire.
17 The applicant was, at the time of sentencing, a 44-year-old single woman. On 1 March, or thereabouts, her dog Beau had suddenly died at about 6 years of age. Beau had gone out of her house and returned. He then fell ill and died in circumstances that suggested that he may have
(Page 6)
- taken a poison bait. It was the applicant's belief that he had been poisoned. For a number of reasons, the applicant formed the view - whether immediately upon the death of the dog or some time thereafter is not clear - that the complainant had deliberately poisoned the dog. There was no evidence that that was in fact the case.
18 It is clear from the materials before the sentencing Judge that the applicant had a very close attachment to the dog; a psychologist in a report which was before his Honour commented that in his view the applicant was "virtually obsessive" in relationships with her pets. A schedule before his Honour indicated that on the day of the dog's death the applicant made 25 telephone calls and in the days following made between two and five calls on a number of days. It was submitted by the applicant that prior to the offences she had telephoned a number of people seeking assistance to get out of the place in which she was then living before she did "something stupid".
19 Some three weeks after the death of the dog, the applicant had been at home drinking alcohol. She then went to the complainant's property, which was two doors away, took some herbicide from his shed and using the herbicide wrote the words "Shit happens" on the lawn so that those words would appear legible once the herbicide had killed the grass. That related to a remark which the applicant believed Mr Saville had made upon hearing of the death of the dog. Then, using some shears apparently taken from the same shed, she slashed various items including the clothes line, the flywire around the house, the tyres of the motor vehicle and the boat trailer. She then left the property.
20 On the following day, having again consumed alcohol to excess, the applicant went back to the complainant's house in order to do more damage. She broke a number of windows with rocks and then entered the house without his consent. He and his family were not apparently then living in the house. The applicant appears to have instructed her counsel that she believed the house was a holiday house, but the victim impact statement reveals that it was the "dream home" which the complainant had constructed for himself and his family. The house was completed and had been occupied but, according to the victim impact statement, was not able to be insured because no one was at that time occupying it regularly.
21 Once in the house, the applicant cut the phone line, broke and damaged numerous items and then decided to burn the house. She went out to the shed and got a container of fuel, re-entered the house, splashed the fuel about and lit the fire. She then left. Seeing the police at the house, she later approached them - it appears this was on the following
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- day - and informed them that she was responsible for the fire. She entered a plea of guilty at the earliest opportunity.
22 There was a pre-sentence report and a psychological report. Perhaps the only noteworthy aspect of the pre-sentence report was that it appeared that the applicant may have been socially somewhat isolated, having worked in many different remote locations, such as Leonora and Laverton, mostly in the mining and hospitality industry. She had also lived in other States. She was single with no dependants and appeared not to be close to her family. Those factors might help to explain, in part, the extremely close attachment to her pets. The pre-sentence report also stated that the applicant said that she consumed alcohol at a level of approximately three to four glasses of wine every evening and that she "does not see this level of consumption as problematic". It is to be noted, however, that her record of criminal convictions reveals a pattern of offending which, although the number of offences is relatively small and the offences themselves not significant, is a pattern often seen in relation to those persons who consume alcohol to excess (.08% offences, disorderly conduct, and the like).
23 The psychological report contains, inter alia, the following observations. First, it is suggested that after the poisoning of her dog the applicant "developed post-traumatic stress disorder and this quite possibly clouded her judgement and led her to engage in an impulsive act while under the influence of alcohol". The psychologist asserts his belief that "the grief, her pre-existing depression and anxiety, as well as the onset of PTSD led to Ms Mitchell's behaviour". Finally, it is observed that "The type of irrational behaviour that Ms Mitchell engaged in is not uncommon for someone who has PTSD. This condition requires careful and, in many cases, long-term treatment to overcome. At the time of the offences Ms Mitchell had consumed an excessive amount of alcohol and this further impacted upon her ability to manage her behaviour".
24 In dealing with the psychologist's report, his Honour stated that the language used suggested that the connection between the offending and the post-traumatic stress disorder was no more than possible and that it was an hypothesis or possibility. The pre-existing depression and anxiety were noted by his Honour, as was the excessive consumption of alcohol. His Honour concluded that he had no difficulty in accepting that the dog's tragic death had a very distressing affect upon the applicant and that she honestly, although irrationally, believed that the complainant was in some way responsible.
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25 His Honour referred to other factors personal to the applicant, including references from friends. His conclusions were essentially as follows:
"Without going on too long about it, I think that what you did on the two days in question was absolutely appalling and has caused immense damage to property and harm to people who had done nothing to you. Having considered everything your counsel has said and all of the materials placed before me, I cannot see how you can be forgiven. Your excessive and voluntary consumption of alcohol had a very significant role and it cannot excuse you from the consequence of your acts, although it might help to explain them.
These offences are just too serious and the community would be outraged, I think, if you walked free from this Court having admitted them. Nevertheless, you surrendered to police and you have pleaded guilty. I think the conduct is worthy of a sentence of 5 years' imprisonment, but having regard to your personal situation and your plea and the matters relied upon by your counsel I shall reduce that sentence to one of 3½ years' imprisonment."
26 No complaint is made about the structuring of the sentence; that is, it is not suggested that his Honour erred in referring first to an aggregate sentence reflective of total criminality, rather than first imposing a sentence commensurate with each particular count in the indictment. Rather, it is argued on behalf of the applicant that the total sentence, and in particular the sentences in respect of counts 2 and 3, were manifestly excessive in all of the circumstances. It is also submitted that his Honour erred in imposing an immediate term of imprisonment, rather than suspending it. In relation to both the question of suspension and the question of the length of sentence, it is submitted that his Honour placed too much weight on the views of the community and insufficient weight on the mitigating factors and in particular on the applicant's mental state.
27 It is also one of the grounds of appeal that his Honour erred in finding that a connection between the offending and the applicant's mental disorder was no more than possible. As to this ground, it is true that pre-existing depression and post-traumatic stress disorder are at one point suggested by the psychologist to have "led to" the applicant's behaviour. The difficulty for a sentencing Judge arises however from the fact that the psychologist also identifies the entirely normal reaction of grief as being
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- one of the factors which "led to" the behaviour, without any explanation of the way in which these matters may have interacted. The only explanation for the way in which the applicant's mental condition could have directly caused the offending is the observation that post-traumatic stress disorder "quite possibly" clouded her judgment; there too however, the influence of alcohol is referred to as a factor acting in combination with that possibility.
28 It may be that, despite the apparent internal inconsistencies in the psychologist's report, it is correctly to be understood as suggesting that the applicant's depression and post-traumatic stress disorder were causative of the offences. However, even if this means that his Honour was in error in the conclusion of fact which he appears to have drawn, it has not to my mind been demonstrated that the error led to any relevant error in the sentencing process.
29 In R v Lauritson (2000) 114 A Crim R 333, Malcolm CJ at 346 - 349 analysed in detail the way in which considerations of deterrence and punishment are approached in relation to mentally ill or impaired offenders. His Honour noted that mental illness is relevant to assessing culpability and is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated.
30 The way in which mental illness affects culpability will depend upon the way in which it can be said that the mental illness has produced the offence. As I understand the report in this case, while post-traumatic stress disorder and possibly depression are factors which have in some way, in the psychologist's view, led to the commission of the offence, they are but factors operating in combination with others. The way in which those factors operated is not explained and it is therefore very difficult to understand how they could in this case reduce culpability, since there is no suggestion, as I understand it, that the applicant was incapable of understanding in any respect what she did, or that she did not have the understanding which a normal person would have of the likely consequences of her actions and the likely effects upon the complainant and his family. Indeed, her prompt approach to the police the following day demonstrates that she clearly understood that what she had done was wrong. So far as questions of deterrence and protection of the community are concerned, the observation that the type of behaviour engaged in by the applicant is "not uncommon" for someone who has post-traumatic stress disorder, is a consideration which tends to suggest that protection of
(Page 10)
- the community from the applicant might well require a sentence of imprisonment.
31 In the end, I think that his Honour appreciated the true significance of the report when he referred to the effect which the dog's death had on the applicant. In a person who was not "obsessive" in relationships with her pets, the degree of grief experienced by the applicant would not be felt. The mental conditions from which she suffered "caused" the offending in the sense that a person not suffering from those mental conditions would not even consider the possibility that the poisoning of a dog, even if it had occurred, called for revenge in the form of serious damage to property. Nothing in his Honour's sentencing remarks suggests to me that he failed to understand that factor. It is therefore my view that the first of the grounds of appeal, while the factual assertion which it contains may be made out, does not assist the applicant.
32 Turning to the weight which his Honour placed on the views of the community, I would not accept the submission made in respect of this matter. There is nothing in the sentencing remarks of his Honour to suggest that he was improperly swayed by the thought of any likely reaction to the sentence which he might impose. Rather, it seems to me that his references to hypothetical community reaction were simply another way of restating the view that he had already expressed, that the conduct in question was "absolutely appalling". It was but another way of suggesting that the offences were so serious that only a sentence of immediate imprisonment would adequately punish the applicant for them.
33 The ground which has given me most difficulty is that which suggests that the learned Judge placed insufficient weight on the mitigating factors. There is nothing in his Honour's sentencing remarks which suggest that he placed insufficient weight on those factors, since he considered them with care. However, the way in which the sentence was announced does give rise to a concern that his Honour may have made insufficient allowance for the mitigating factors in this case, other than for the plea of guilty. The concern arises in this way. His Honour first announced a view that the conduct was worthy of a sentence of 5 years' imprisonment (ie, 60 months). He then reduced it to one of 3-1/2 years' imprisonment (ie, 42 months) because of both the applicant's "personal situation" and her plea of guilty. If one assumes that a plea of guilty at the earliest opportunity will generally attract a discount of between 25 and 30 per cent, then the plea alone would have justified a reduction in the overall sentence to 45 months or less.
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34 In the circumstances of this case, it is apparent that the plea is one which should attract a very substantial discount. Not only did the applicant by her plea of guilty save the State the expense of a trial and the potential witnesses the inconvenience of giving evidence, but her early approach and confession to the police saved also the expense and inconvenience of investigation which might otherwise have been required. Further, the early approach to the police suggests that the plea was one proceeding from remorse rather than merely an acknowledgment of the inevitable.
35 Despite the concern which I have expressed about the manner in which his Honour arrived at the sentence, I am not persuaded that the sentence imposed did fail to give sufficient weight to mitigating factors. The offences were very serious ones. They were not committed immediately following the death of the dog but some weeks later, and they involved not only one act of revenge but a second series of acts of revenge separated from the first by approximately 24 hours. An accelerant was used, increasing the likelihood of significant property damage.
36 Despite the mitigating factors, it is my view that a sentence of 3-1/2 years imprisonment, for an offence committed in these circumstances, cannot be said to be excessive. I would dismiss the application.
37 MCKECHNIE J: For the reasons expressed by Wheeler J, I too would dismiss the application.
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