Moir v The State of Western Australia

[2014] WASCA 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MOIR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 25

CORAM:   NEWNES JA

MAZZA JA

HEARD:   11 DECEMBER 2013

DELIVERED          :   4 FEBRUARY 2014

FILE NO/S:   CACR 80 of 2013

BETWEEN:   KELLY FAY MOIR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BRADDOCK DCJ

File No  :IND 1144 of 2012

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

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):

Moran v The State of Western Australia [2011] WASCA 137

Powell v Tickner [2010] WASCA 224

Wilson v The State of Western Australia [2010] WASCA 82

1. REASONS OF THE COURT:    This is an application for leave to appeal against sentence. 

2. On 21 March 2013 in the District Court, the appellant pleaded guilty to one count of unlawful wounding contrary to s 301(1) of the Criminal Code (WA) and one count of stealing contrary to s 378 of the Criminal Code. She also pleaded guilty to offences contained in a notice under s 32 of the Sentencing Act 1995 (WA) of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code, trespass contrary to s 70A(2) of the Criminal Code and obstructing public officers contrary to s 172(2) of the Criminal Code. At the time she committed these offences, she was subject to an 18‑month intensive supervision order which had been imposed by the Magistrates Court for an offence of aggravated unlawful wounding, contrary to s 301(1) of the Criminal Code. 

3. The learned sentencing judge imposed the following sentences of immediate imprisonment for the offences in the indictment and the s 32 notice:

Count 1 on indictment	Unlawful wounding	16 months
Count 2 on indictment	Stealing	6 months
Count 1 on s 32 notice	Assault public officer	6 months
Count 2 on s 32 notice	Trespass	3 months
Count 3 on s 32 notice	Obstructing public officers	3 months

1. As a consequence of the breach of intensive supervision order, her Honour resentenced the appellant for the offence of aggravated unlawful wounding to 9 months' imprisonment.

2. Her Honour ordered that the sentences for the two offences of unlawful wounding and for the offence of assaulting a public officer be served cumulatively.  Thus the total effective sentence was 2 years 7 months' immediate imprisonment.  The appellant was made eligible for parole and the sentences were backdated to commence on 24 April 2012. 

3. The appellant represented herself in this appeal, as she had done at first instance.  Her proposed grounds of appeal are, with respect to her, unclear.  In her oral submissions, it emerged that she alleges that the individual sentences she received for the offences of trespass and the aggravated unlawful wounding for which she was originally placed on an intensive supervision order were excessive.  Further, she alleges that the total effective term of imprisonment of 2 years 7 months infringed the first limb of the totality principle. 

The facts

1. We will outline the appellant's offending in chronological order. 

2. First in time was the offence for which she was placed on an intensive supervision order.

3. In the early hours of 14 May 2011, the appellant was drinking at a nightclub in Northbridge where she encountered the victim and his partner.  During a conversation with them, she threw the contents of her glass over the victim's partner.  Either the victim or his partner then threw the contents of their drink at the appellant.  She reacted by throwing the rest of the contents of her glass at the victim and, in doing so, the glass she was holding left her hand and struck the victim just above his left eye with such force that the glass broke and inflicted a 5 cm cut to the victim's forehead. 

4. On 11 November 2011, she was placed on an intensive supervision order for a period of 18 months.  She breached the order, not only by reoffending, but also by not complying with its supervision requirement. 

5. The offences in the indictment and the s 32 notice all occurred in the late afternoon or early evening of 3 April 2012. At about 5.45 pm that day, the victim, accompanied by her 10‑year‑old son, were doing some research at the Rockingham Community Library. The appellant, who was intoxicated, was seated at a computer station a couple of seats away from them. It became evident to the victim that the appellant was in an agitated state, so she sent her son to look for some books. Without warning, the appellant approached the victim and struck her to the left side of her face with a partially filled bottle of whisky which broke on impact. As a result, the victim suffered a 10 cm cut to her left eyebrow and damage to the retina of her left eye. The victim's son and members of the public ran to help the victim. The appellant was seen standing with a broken whisky bottle neck in her hand. She then fled the library after stealing a purse from the victim's handbag (counts 1 and 2 in the indictment).

6. The appellant then went to an acquaintance's address in Orelia.  There, in his absence and without his consent, she entered his house.  At about 6.40 pm, he returned home to find the appellant sitting in the living room.  He requested her to leave, but the appellant ignored that request.  The victim continued to make requests for her to leave and eventually contacted the police for assistance. 

7. Instead of leaving, the appellant entered the bathroom and took a bath. She then hid herself beneath the victim's bed. She refused all requests by the police and the victim to leave the house. Eventually, she climbed out of the bathroom window and stood in the garden, pleading with the victim to allow her to stay. At that point, she was arrested. She became violent and obstructive; kicking out at the officers and throwing herself to the ground. She physically resisted being placed into a police van and struggled with the arresting officers for some minutes. Reinforcements were called. Six police officers were involved in placing her into the van. While this was occurring, the appellant kicked a police officer in the face. She then kicked the same officer in the leg (counts 1, 2 and 3 on the s 32 notice).

The appellant's antecedents

1. At the time she was sentenced, the appellant was 32 years old.  Although she was a not entirely accurate historian to the authors of the reports before her Honour, there is no doubt that she has suffered very significant trauma in her life, both as a child and as an adult.  It is clear that she has abused alcohol for many years.  She has a history of severe sexual abuse and domestic violence.  Dr Sophie Davison, a consultant psychiatrist, diagnosed the appellant as suffering from attention deficit and hyperactivity disorder (ADHD) and some of the diagnostic criteria for post‑traumatic stress disorder.  Dr Davison was also of the opinion that the appellant has a personality disorder with emotionally unstable paranoid and antisocial features.  Dr Davison noted that the appellant has great difficulty trusting others and, when stressed, tends to act impulsively.  Although it is clear that the appellant requires treatment for her alcohol abuse, ADHD and her personality disorder, that treatment is problematic because of her difficulties in trusting anyone and the effects of the ADHD. 

2. The appellant has prior convictions for burglary, dishonesty, traffic offences and breaking court orders.  She cannot be said to be a person of good character. 

The sentencing proceedings

1. In her plea in mitigation (as she did in this court) the appellant told the learned sentencing judge that she intended to re‑engage in rehabilitation programs at Cyrenian House.  She explained that on 3 April 2012 she was adversely affected by the effects of her medication.  She expressed her sorrow for all that she had done.

2. Her Honour was aware of the subjective factors when she sentenced the appellant and plainly gave them due weight.  The primary focus of her Honour's sentencing remarks was on the seriousness of each of the unlawful wounding offences.  Her Honour pointed out the similarities in them.  Each involved the use of a weapon and, in each case, significant injury was caused to the victim.  She noted that these offences were unprovoked, unexpected and unjustified.  With respect to her behaviour at the house on the evening of 3 April 2012, her Honour observed that the appellant had fought off the police in a determined and sustained way and injured one of the officers.   She said that the appellant's intoxication was no excuse for her behaviour. 

3. Her Honour gave particular weight to the sentencing objectives of personal and general deterrence and public protection.  Her Honour, in effect, concluded that no other disposition apart from terms of immediate imprisonment was appropriate.

Merit of the appeal

1. An allegation that an individual sentence is manifestly excessive or that a number of sentences infringe the totality principle are species of implied error.  This court cannot intervene unless it is satisfied that the individual sentence or the total effective sentence is unjust or unreasonable:  Wilson v The State of Western Australia [2010] WASCA 82 [2].

2. None of the individual sentences challenged by the appellant could reasonably be said to be manifestly excessive. 

3. The maximum penalty for aggravated unlawful wounding is 7 years' imprisonment.  Fuelled by alcohol and out of anger and frustration, the appellant used a glass in such a way to wound the victim by cutting his eyebrow.  The point of impact was dangerously close to the victim's eye.  The learned magistrate gave the appellant an opportunity to address the causes of her offending and imposed an intensive supervision order.  Within a short period of the order being made, the appellant failed to attend for supervision and reoffended, including by wounding another victim.  Her Honour's decision to resentence the appellant to a term of immediate imprisonment was entirely justified.  The offence was serious.  Deterrence (both personal and general) and the protection of the public were the predominant sentencing considerations and, apart from the plea of guilty, there was little that could mitigate the offending.  The length of the term imposed was not inconsistent with sentences imposed in other cases:  see Powell v Tickner [2010] WASCA 224 [57] ‑ [80] (Buss JA) and Moran v The State of Western Australia [2011] WASCA 137 [20], [28].

4. As far as the trespass charge is concerned, the maximum penalty for that offence is 12 months' imprisonment and a fine of $12,000.  The appellant had no right to be at the victim's house on the evening of 3 April 2012.  She deliberately remained there for a considerable period of time, defying the requests of the owner and of the police to leave.  Considerable police resources had to be allocated to remove her.  There are no relevant sentencing cases from this court with respect to sentences imposed for this offence, but, having regard to the maximum penalty and all of the circumstances, including the plea of guilty, the sentence imposed by her Honour was within a sound sentencing discretion.

5. We now turn to the allegation that the total effective sentence infringed the totality principle.  The totality principle comprises two limbs.  The appellant, in effect, alleges a breach of the first limb which requires a judicial officer who is sentencing an offender for more than one offence to ensure that the total effective sentence bears a proper relationship to the overall criminality of all the offences viewed in their entirety and having regard to all the circumstances of the case, including those referable to the offender personally.

6. When viewed as a whole, the appellant's offending was unquestionably serious.  On two separate occasions she, without any justification, unlawfully wounded her victims.  The incident in the Rockingham Community Library was particularly serious.  At the time, the appellant was subject to an intensive supervision order.  The offending occurred in the public library in the presence of the victim's 10‑year‑old son.  The victim sustained an injury which was bad enough, but very easily could have had much worse consequences.

7. After fleeing the scene she went to her friend's house where she committed the trespass offence.  She resisted attempts to arrest her and then obstructed and assaulted a police officer in execution of that officer's duties.

8. The only significant mitigatory factor was the appellant's pleas of guilty.  Because of the need to emphasise deterrence (particularly personal deterrence) and public protection, less weight can be given to the appellant's unfortunate personal circumstances.  Her rehabilitation prospects are, as Dr Davison concluded, at this stage, problematic.

9. It is not reasonably arguable that the total effective sentence imposed upon the appellant, having regard to all of the circumstances of the case, infringed the first limb of the totality principle.

Conclusion and orders

1. None of the appellant's proposed grounds of appeal have any reasonable prospect of succeeding.  Accordingly, the appeal must be taken to be dismissed:  Criminal Appeals Act s 27(1), (2) and (3). The orders that we would make are:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.