Nannup v The State of Western Australia
[2021] WASCA 140
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NANNUP -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 140
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 2 MARCH 2021
DELIVERED : 11 AUGUST 2021
FILE NO/S: CACR 100 of 2020
BETWEEN: ANTHONY FRANCIS NANNUP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 746 of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on guilty pleas to one count of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) and one count of stealing contrary to s 378 - Where the appellant suffers from Foetal Alcohol Spectrum Disorder and other impairments - Whether sentence on home burglary count of 2 years' imprisonment, conditionally suspended for 15 months, manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 41(3)(c)
Criminal Code (WA), s 378, s 401(2)(a)
Sentencing Act 1995 (WA), s 9AA, s 11, s 76(1), s 81(1)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | T Bourbon |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brindley v The State of Western Australia [2019] WASCA 153
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Churnside v The State of Western Australia [2016] WASCA 146
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eldridge v The State of Western Australia [2020] WASCA 66
Hume v The State of Western Australia [2017] WASCA 205
Kabambi v The State of Western Australia [2019] WASCA 44
LCM v The State of Western Australia [2016] WASCA 164
Mason v The State of Western Australia [2018] WASCA 43
SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310
Ugle v The State of Western Australia [2018] WASCA 97
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 25 June 2020 the appellant pleaded guilty in the District Court to two offences, both of which occurred in the early hours of 16 December 2019 at a house in Huntingdale. Count 1 alleged that the appellant, while in the place of N without her consent, committed the offence of stealing, and that immediately before the commission of the offence he knew or ought to have known that there was another person in the place.
Count 2 alleged that the appellant stole house keys, car keys, a wallet, a Medicare card and a credit card, the property of N.
Count 1 is contrary to s 401(2)(a) of the Criminal Code (WA) (the Code) and carries a maximum penalty of 20 years' imprisonment. Count 2 is contrary to s 378 of the Code and carries a maximum penalty of 7 years' imprisonment.
Troy DCJ sentenced the appellant on count 1 to 2 years' imprisonment suspended for 15 months on conditions that he comply with supervision and program requirements. On count 2, his Honour imposed no further punishment, pursuant to s 11 of the Sentencing Act 1995 (WA).[1]
[1] ts 26 - 27.
The appellant relies on one ground of appeal being that the sentence on count 1 was manifestly excessive. Originally, the appellant claimed that the sentence was manifestly excessive as to type and length. However, at the hearing of the appeal, counsel for the appellant effectively abandoned the claim as to type and confined the claim to one of length, as to the term of imprisonment only.[2] The question of whether leave to appeal should be granted was referred to the hearing of the appeal.[3]
[2] Appeal ts 3, 8.
[3] Order of Mitchell JA dated 23 September 2020; AB 4.
For the reasons which follow, we would allow the appeal and resentence the appellant.
The facts
The appellant was 18 years of age at the time of the commission of the offences. He suffers from Foetal Alcohol Spectrum Disorder (FASD) and other impairments. At the time of the commission of the offences, he was subject to a youth conditional release order (YCRO) which had been imposed in the Perth Children's Court on 30 August 2019.
The facts of the offending were not, and are not, in dispute. At about 2.30 am on 16 December 2019, the appellant went to N's house in Huntingdale. At the time, she and her three children aged between two and six years were asleep.[4]
[4] ts 6.
The appellant entered the open carport and approached the kitchen window at the side of the house. He removed the flyscreen from the window, slid the window open and entered the house through it. He searched for items to steal and took various items including a wallet and a set of house and vehicle keys from the kitchen bench.[5]
[5] ts 6.
N and her children were awoken by noises coming from the kitchen. Upon hearing one of the children crying, the appellant fled the dwelling via the kitchen window. Police officers were called to the premises and commenced an investigation. The appellant was later identified as the offender as a result of a forensic examination of the scene.[6]
[6] ts 6.
Early on 25 December 2019, the appellant was arrested and taken to the Gosnells Police Station. He declined to participate in a video record of interview.[7]
[7] ts 6.
The appellant was remanded in custody between 6 January 2020 and the date of sentencing.
Other offences
The offending on 16 December 2019 was not isolated. Between September and December 2019, the appellant committed 27 summary offences, including offences of stealing, trespass and common assault. All of these matters were before the Armadale Magistrates Court. At the sentencing hearing on 25 June 2020, defence counsel, in the course of her plea in mitigation, told his Honour that the appellant was due to appear the following day in relation to these matters, having pleaded guilty to them.[8]
[8] ts 10.
The appellant's personal circumstances
The appellant was 18 years old when he committed the offences on 16 December 2019 and at sentencing. The appellant had what his Honour described as 'a very difficult background'.[9] When the appellant was aged about 4 years, he and his twin brother were taken into the care of the Department for Child Protection. Between the ages of 4 and 10 years, he was brought up by his step‑grandmother, to whom he referred as 'nan'. He then returned to live with his mother. In his childhood, the appellant was exposed to violence, substance abuse and offending behaviours by those close to him.[10] Since about the age of 15 he has been drinking alcohol. He is also a cannabis user.[11]
[9] ts 23.
[10] ts 13.
[11] ts 14.
The appellant has a lengthy criminal history beginning in the Children's Court at the age of 13 years. The appellant's Children's Court record is extensive and includes convictions recorded on 4 February 2019 for one count of aggravated burglary, one count of aggravated home burglary, one count of attempted home burglary and two counts of home burglary. For these offences, the appellant was placed on a 9‑month intensive youth supervision order. He has a poor record of compliance with rehabilitation orders made by the Children's Court. The appellant was not, at the time he was sentenced for the current offending, a repeat offender as defined in s 401B of the Code, but one further conviction for aggravated home burglary will have this consequence.
The appellant has also accumulated an adult record in the Magistrates Court for offences including multiple convictions for stealing, trespass and possession of cannabis.
In addition to FASD, the appellant has microcephaly, a mild intellectual disability, attention deficit hyperactivity disorder (ADHD), a significant language impairment and bipolar disorder.
At the time of sentencing, the appellant's mother had been appointed as his guardian and, as will be seen, a plan was in place (for which NDIS funding had been approved) to provide for, in particular, his accommodation, behavioural therapy and occupational therapy.
Reports and other documents
His Honour was provided with a multi‑disciplinary FASD assessment report (FASD report) dated 15 March 2018, written by a paediatrician, a speech pathologist and a clinical neuropsychologist. This report was prepared in respect of offences then before the Perth Children's Court. His Honour also had before him a pre‑sentence report dated 26 March 2020, a draft NDIS plan dated 16 June 2020 and an NDIS plan dated 19 June 2020. It is unnecessary to refer to the draft NDIS plan, but it is necessary to summarise the content of the other material that we have mentioned.
The following matters were included in the FASD report:
(1)The appellant has pre‑existing diagnoses of bipolar disorder and ADHD.[12]
[12] FASD report, page 7.
(2)The appellant meets the diagnostic criteria for conduct disorder with unspecified onset.[13]
[13] FASD report, page 7.
(3)The appellant's overall non‑verbal intelligence was within the borderline range, with a full‑scale IQ in the 4th percentile and within the range of 69 ‑ 78.[14]
[14] FASD report, page 6.
(4)The appellant continues to meet the diagnostic criteria for a mild intellectual disability with significant impairments in the domains of cognition, attention, academic achievement, language, memory, affect regulation, and adaptive functioning.[15]
[15] FASD report, page 7.
(5)The appellant's exposure to domestic violence, offending behaviour and alcohol and substance abuse by others close to him, as well as transiency and possible homelessness, and his alcohol and cannabis use, may have resulted in adverse cognitive, behavioural and emotional consequences. A further significant contributing factor to his impairments is his FASD.[16]
[16] FASD report, pages 7 - 8.
(6)The appellant meets 9 of the 10 diagnostic criteria for FASD. The appellant has impaired brain structure/neurology, cognition, attention, academic achievement, language, memory, adaptive behaviour, social skills or social communication, motor skills, and affect regulation. The only diagnostic criterion for FASD that he did not meet was executive functioning, including impulse control and hyperactivity.[17] As FASD is caused by prenatal abnormalities of the central nervous system, sufferers have a permanent neurological disability, which is not 'outgrown' and cannot be 'cured'.[18]
[17] FASD report, page 9.
[18] FASD report, page 9.
(7)As a result of his FASD and intellectual disability, the appellant requires assistance to understand complex language, and to process and recall long instructions or directions. He is at risk of being easily led, and requires support to know how to assess a social situation. He is unable to perform many activities of daily living without constant support, prompts, reminders, planning and organising.[19]
[19] FASD report, page 8.
(8)The appellant is not always aware of his own emotions and behaviours. He has significant memory impairment, and will be unable to remember verbal and visual information without supporting context and recognition cues.[20]
[20] FASD report, page 8.
(9)The diagnostic implications for the appellant's offending behaviour were:[21]
(a)The appellant's low intellect and cognitive deficits suggest that he may be easily led or influenced by others and may lack awareness of the consequences of certain behaviours.
(b)The appellant's executive dysfunction may predispose him to struggle to comprehend the nature of his behaviours and how they may affect others.
(c)The appellant may tend to act without much aforethought.
(d)The appellant will likely struggle to remember information, even if it is presented repeatedly.
(e)The appellant's ongoing cannabis use places him at high risk of 'drug‑fuelled recidivism'.
(f)The appellant is at risk of 'recidivism at the urging of others'.
(10)Among the recommendations made by the authors of the report were that the appellant re‑engage with Child and Adolescent Mental Health Services, engage in ongoing clinical psychology support, and that there be a medical or psychiatric review of his ADHD.[22]
[21] FASD report, pages 9 - 10.
[22] FASD report, page 11.
The pre‑sentence report included the following:
(1)A multi‑agency approach is required to address the appellant's substance abuse issues - specifically alcohol consumption, as well as his unaddressed mental health and pro‑criminal attitudes.[23]
(2)The appellant requires daily assistance and support with regard to social interaction and self‑care. He displays a limited capacity to manage his emotions and behaviour.[24]
(3)Departmental records indicate a limited capacity to recall and retain information due to the appellant's intellectual disability, along with his vulnerability to the influence of others.[25]
(4)Since the age of 13 years, there have been no significant gaps in the appellant's offending behaviour, and there had been an increase in frequency and severity of the appellant's offending 'over the past two years'.[26]
(5)According to the authors of the pre‑sentence report, the appellant's offending behaviour appears to be largely impulsive, financially motivated, and often committed when in the company of others.[27]
(6)Despite the appellant's poor prior compliance with orders imposed in the Children's Court, as well as his reoffending, it was considered that he may benefit from an opportunity to engage with adult community corrections and be subject to an order with program and supervision requirements. The authors stated that the appellant has 'clear treatment needs, and these treatment needs may be more adequately addressed in the community'.[28] The authors pointed out that the appellant requires significant support from external service providers, including the NDIS.[29]
[23] Pre‑sentence report, page 2.
[24] Pre‑sentence report, page 2.
[25] Pre‑sentence report, page 2.
[26] Pre-sentence report, page 3.
[27] Pre‑sentence report, page 3.
[28] Pre-sentence report, page 2.
[29] Pre‑sentence report, page 2.
The NDIS plan has these features:
(1)The appellant was approved for an NDIS plan to commence on 18 June 2020. The plan was to be reviewed on 17 September 2020.[30]
(2)It was planned that, upon the appellant's release from prison, he would move into supported accommodation, rather than moving back into his family home.[31]
(3)The appellant planned to develop his daily living skills.[32]
(4)On a medium or long‑term basis, the appellant planned to find and maintain meaningful employment, and to learn to drive a vehicle.[33]
(5)The NDIS would financially support the plan, including for the cost of accommodation and support for 24 hours a day, 7 days a week, over a period of 12 weeks. In addition, the NDIS would fund occupational therapy, specialist behavioural intervention support, and social and community participation.
(6)Further financial support would be made to provide the appellant with support and coordination to implement the NDIS plan, including to liaise with services provided by the Department of Justice, the Department of Health, and the Disability Service commission.
[30] NDIS plan, page 1.
[31] NDIS plan, page 2.
[32] NDIS plan, page 1.
[33] NDIS plan, pages 3 - 4.
The sentencing proceedings
The sentencing submissions
At the outset of her plea in mitigation, defence counsel said that her ultimate submission would be that his Honour should impose a CBO.[34] His Honour responded that, were it not for the mitigation, the inevitable sentence would be one of immediate imprisonment. His Honour expressed the view that the real question for him to answer was whether it was open to him to impose a suspended term of imprisonment 'in light of the principles set out in [Churnside v The State of Western Australia [2016] WASCA 146]'.[35]
[34] ts 8.
[35] ts 8.
In response, defence counsel, while acknowledging that the aggravated burglary involved 'objectively serious offending' and was committed while the appellant was on a YCRO, emphasised the appellant's personal circumstances, primarily his FASD.[36]
[36] ts 10.
Defence counsel acknowledged that the appellant's vulnerabilities put him at 'great risk' of committing offences when he consumes alcohol.[37]
[37] ts 10.
Defence counsel explained that, at the time of the commission of the aggravated burglary, the appellant was, because the police were looking for him, 'living everywhere'.[38] On the night in question, the appellant had been drinking Jack Daniel's at his uncle's house. After he left that house, he wandered the streets on his own, came across N's house and broke into it. According to defence counsel, the appellant had no plan to take the victim's car, but the combination of his mental impairments and his consumption of alcohol meant that he had 'very little thought process or consequential thinking happening'.[39] He threw away the keys he had taken.
[38] ts 10.
[39] ts 11.
Defence counsel acknowledged that the offending would have been very frightening for the victim.[40]
[40] ts 10 - 11.
Defence counsel referred to the FASD report in some detail, emphasising the significant impairments that the authors identified.[41]
[41] ts 13 - 15.
Defence counsel also referred to the NDIS plan, noting that the appellant had been approved for supported accommodation, occupational therapy, specialist behaviour, intervention support and mentoring.[42]
[42] ts 15.
Defence counsel submitted, in effect, that by reason of the appellant's mental impairments, general and personal deterrence were moderated.[43] She said the appellant was aware that alcohol gets him into trouble.[44]
[43] ts 17.
[44] ts 16.
Defence counsel accepted that a significant sentencing consideration was the protection of the community and submitted that the long‑term protection of the community was best served by the appellant being rehabilitated in the community.[45]
[45] ts 15 - 17.
Defence counsel observed that the appellant had spent just over 5 1/2 months (in fact 173 days) in custody and that, while he had been in custody, he had been picked on and teased about his disability. She asserted that the appellant was someone who was 'very vulnerable in custody'.[46]
[46] ts 16.
Defence counsel referred to the mitigating effects of the appellant's youth and his plea of guilty.[47]
[47] ts 12 - 13, 17.
Finally, defence counsel submitted that, until housing had been found for the appellant, he intended to temporatily live with his mother who had informed defence counsel that drugs and alcohol were not permitted in her house.[48]
[48] ts 18.
The prosecutor emphasised the aggravating features of the offence, in particular, that it had been committed at night on a home occupied by a mother and her three small children, and would have been a very frightening experience.[49]
[49] ts 18.
The prosecutor acknowledged the mitigating circumstances, including the appellant's youth, his very early plea of guilty, his deprived background and his 'cognitive difficulties'.[50] The prosecutor accepted that general deterrence 'played a much lesser role'.[51]
[50] ts 18 - 19.
[51] ts 19.
The prosecutor sought to distinguish Churnside from the circumstances of the present case. She pointed out that, unlike the offender in Churnside, who had not been subject to a community based disposition for four years, the appellant had been provided with a number of opportunities in the Children's Court, but had breached orders designed to facilitate his rehabilitation and reoffended.[52] The prosecutor submitted that only an immediate term of imprisonment was appropriate because the appellant had failed to comply with, and had failed to achieve, 'any sort of rehabilitation on all of these previous orders'.[53] The prosecutor submitted that the appellant would not be able to comply with a suspended term of imprisonment (with or without conditions).[54] The prosecutor submitted that, having regard to the seriousness of the offence and the need to both protect the community and deter the appellant, only an immediate term of imprisonment was appropriate.[55]
[52] ts 19.
[53] ts 20.
[54] ts 20.
[55] ts 20.
The prosecutor said that personal deterrence still had a role to play and that the protection of the community was 'a very live sentencing consideration'.[56]
The sentencing remarks
[56] ts 21.
His Honour said that the aggravated burglary committed by the appellant involved a serious invasion of the victim's home and her privacy and security. He said that the appellant's presence would have been 'absolutely terrifying'.[57]
[57] ts 22.
His Honour referred to the decision in Eldridge v The State of Western Australia,[58] in which this court stated that home burglaries were serious offences that were ordinarily met with terms of imprisonment.[59]
[58] Eldridge v The State of Western Australia [2020] WASCA 66.
[59] Eldridge [64].
His Honour recognised the following mitigating factors:[60]
(a)The plea of guilty, which was entered at an early stage, albeit not at the first reasonable opportunity. His Honour allowed a discount of 20% from the head sentence, pursuant to s 9AA of the Sentencing Act for the appellant's guilty plea.
(b)The appellant's youth at the time of the offence. His Honour acknowledged that it was a serious step for a court to impose an immediate term of imprisonment on a young or youthful offender. However, he said there were circumstances where the seriousness of the offending required the imposition of an immediate term of imprisonment even on a young offender.
(c)The appellant's time in custody on remand had been the first time he had been in an adult prison. This period had been more onerous for him than for other remand prisoners because of his cognitive difficulties.
(d)The appellant's 'very difficult background', albeit his Honour was not satisfied that his background constituted extreme childhood deprivation of the kind contemplated by the High Court in Bugmy v The Queen.[61]
(e)The appellant's mental impairments, particularly his FASD, which had been set out in the FASD report. His Honour said that the appellant's mental impairments reduced his moral culpability.
(f)The appellant's mental impairment meant that any further time the appellant spent in custody would be more onerous for him than a person in normal health.
[60] ts 22 - 24.
[61] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
His Honour said that, by reason of the appellant's impairments, general deterrence was to be 'sensibly moderated' and denunciation was not an 'acute sentencing objective'.[62] His Honour recognised that, given the appellant's 'cognitive difficulties', personal deterrence was 'more difficult to achieve', but his Honour accepted that the appellant had some intellectual capacity to be deterred, as he had articulated to his counsel that he did not wish to return to an adult prison.[63]
[62] ts 23.
[63] ts 24.
His Honour noted that, as a matter of sentencing principle, a mental impairment may lead to a more lenient sentence. However, it may also operate to increase the need to protect the public. His Honour said that this was 'an important consideration' in the appellant's case, given his offending history.[64]
[64] ts 24.
As to Churnside, his Honour said:[65]
The reasoning of the Court of Appeal in Churnside requires sentencing judges like me to make every possible effort and take very step consistent with the interests of justice to engage the services of governmental and non‑governmental agencies to change the living circumstances and behaviour of an Aboriginal offender such as you in a way that will reduce your risk of reoffending and thereby protect the community.
[65] ts 25.
His Honour concluded that a sentence other than imprisonment was inappropriate. He said:[66]
Of course, I have to make a determination as to the appropriate sentence and the seriousness of the offence seems to me, notwithstanding your age, your cognitive difficulties and your guilty plea, that the objective seriousness of a dwelling house burglary in an occupied premises at night is such that I would be failing in my public duty if I imposed a sentence other than imprisonment. I am clearly of that view.
[66] ts 25.
His Honour then considered whether it was open to him to suspend or conditionally suspend the term of imprisonment.[67] His Honour said that, having regard to the rationale of Churnside and notwithstanding the points of difference between the facts of that case and the appellant's case, he was 'required', having regard to the appellant's circumstances:[68]
… to look at an alternative which would not arise ordinarily when one is dealing with an offence of this seriousness.
[67] ts 25.
[68] ts 26.
His Honour concluded that it was appropriate to suspend the sentence of imprisonment on count 1 conditionally.[69] His Honour then imposed the sentences referred to in [5] of these reasons.
[69] ts 26.
In the process of explaining the conditionally suspended imprisonment order and the consequences to the appellant in the event that he reoffended, his Honour said:[70]
I add that part of the rationale for suspending this sentence is that you have spent a significant period, almost six months, in custody. You only get the benefit of that once. If you find yourself back at this court because you've reoffended or you've breached the terms of this order you will not be able to rely upon the time you've spent in custody to argue against the activation of the suspended sentence of imprisonment.
[70] ts 27.
In fixing the length of the sentence, the judge did not refer to the period already spent in custody by the appellant.
Ground of appeal - appellant's submissions
The appellant accepted that the offending was objectively serious. However, he submitted that it was less serious than other examples of aggravated home burglary because it was unplanned, unsophisticated in its execution and did not involve features such as confrontation with the occupants of the house, the possession of weapons or the presence of co‑offenders.[71]
[71] Appeal ts 4.
The appellant emphasised the combination of mitigating factors in the case, most particularly the appellant's FASD and other mental impairments, but also the appellant's youth, his early plea of guilty, his disadvantaged upbringing and the 5 1/2 months the appellant had spent in custody on remand prior to sentencing.
The appellant noted his Honour's finding that the appellant's FASD reduced his moral culpability for the offending and reduced the need for general and personal deterrence.
The appellant submitted that, when all of the abovementioned matters were taken into account, this court should conclude that something had gone wrong in the sentencing process and that the length of the sentence of imprisonment imposed on count 1 was manifestly excessive.
Ground of appeal - respondent's submissions
The respondent submitted, in substance, that the length of the term of imprisonment imposed by his Honour was not manifestly excessive. The respondent acknowledged the mitigating factors and, in particular, that the appellant has FASD and other mental impairments. However, it was submitted that, as defence counsel acknowledged in the court below, these vulnerabilities put him at great risk of committing offences, particularly when he consumes alcohol. The respondent noted that the present offences were committed by the appellant under the influence of alcohol. It was submitted that public protection was a significant consideration and that, while general and personal deterrence were moderated having regard to the appellant's FASD and other mental impairments, deterrence was not an irrelevant sentencing consideration.[72]
[72] Appeal ts 14.
With respect to the period spent by the appellant in custody on remand prior to him being sentenced, counsel for the respondent, properly, drew the court's attention to the fact that his Honour did not expressly state that he had taken into account the time the appellant spent in custody on remand in setting the length of the term of imprisonment, although his Honour expressly took this matter into account in deciding whether to suspend the term of imprisonment he imposed. Counsel acknowledged that time spent on remand in custody would ordinarily have been taken into account in fixing the term of imprisonment to be imposed.[73]
[73] Appeal ts 17.
Ground of appeal - disposition
The decision whether to impose a sentence of imprisonment and the length of that term is made in the sentencing process before any decision is made as to whether it should be suspended.[74] It is not a relevant consideration in determining the length of a sentence of imprisonment that it will ultimately be suspended, although it must not be overlooked that a suspended imprisonment order cannot be made if the term or aggregate terms of imprisonment exceed 5 years: s 76(1) and s 81(1) of the Sentencing Act. The imposition of a suspended term of imprisonment involves, of course, a discretionary exercise. The exercise of this discretion, including as to the length of the term of imprisonment, the length of the suspension period and whether or not it should be subject to conditions, is susceptible to appellate intervention under the rubric of manifest excess.
[74] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
The principles relevant to an allegation that a sentence is manifestly excessive are well established. They were summarised in Kabambi v The State of Western Australia.[75] The relevant portions of that summary are repeated below:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)…
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
[75] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In LCM v The State of Western Australia,[76] Mazza JA and Beech J set out the legal principles that apply to mental impairments including FASD. Given the prominence of the appellant's FASD (and his other mental impairments), it is helpful to repeat what their Honours wrote in LCM:[77]
[76] LCM v The State of Western Australia [2016] WASCA 164.
[77] LCM [121] ‑ [123].
FASD is a mental impairment. The relevant legal principles with respect to mental impairment in sentencing are well settled and uncontroversial, and were explained by Wheeler JA in Krijestorac v The State of Western Australia [2010] WASCA 35:
'So far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. Counsel for the appellant also drew the court's attention to the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269. That case contains a useful survey of decisions from a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] 1 VR 398 and applied in a number of Australian jurisdictions since that date continue to apply. They are that 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, 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 pursuing as such. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. [Verdins at [1], quoting Tsiaras]"
Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to "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 (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State [17] ‑ [19].'
In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 Steytler P said [53] - [55]:
'Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne (2002) 131 A Crim R 432 at [40]. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed, as it often has been: see, for example, R v Juli (1990) 50 A Crim R 31 at 37; R v Hurd (1988) 38 A Crim R 454 at 461, 465; Tsiaras, above, at 400; R v Balchin (1974) 9 SASR 64 at 68; R v Reynolds (1983) 10 A Crim R 30; and Lauritsen v The Queen (2000) 22 WAR 442 at 456 - 459.
As to personal deterrence, as is implicit from what was said in Tsiaras, much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person's ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person: see Payne, above, at [43].
As to general deterrence, this is a factor which should often be given little weight in the case of an offender suffering from a mental disorder, such an offender not being an appropriate medium for making an example to others: R vScognamiglio (1991) 56 A Crim R 81 at 86; Anderson v The Queen [1981] VR 155 at 159. In an extreme case, considerations of general deterrence might be totally outweighed by other factors. However, in every case, the relevant factors must be balanced in a manner no different from that which is involved in every sentencing exercise: R v Letteri, unreported; CCA SCt of NSW; Library No 60497 of 1991; 18 March 1992 at 14, per Badgery‑Parker J and R v Engert (1995) 84 A Crim R 67 at 70-71, per Gleeson CJ.'
By its nature, and as its name indicates, FASD involves a spectrum of disorders. The particular disorder of an individual with FASD may be severe, it may be minor. FASD may lead to a varying number of deficits of varying intensity. Thus blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence.
This court's decision in Churnside v The State of Western Australia[78] was cited in the sentencing proceedings and in the parties' written submissions in this court. It is unnecessary to refer to it in detail. This is because it was cited in this court to support the proposition, now abandoned, that the sentence imposed by his Honour was manifestly excessive as to type.[79] However, we note that, unlike in Churnside, the evidence before the sentencing judge in the present case indicated that the courts and the services of governmental agencies had been employed and were operating so as to assist the appellant to live and behave in a way which would reduce the risk of his reoffending in regard to his FASD and other intellectual impairments.[80]
[78] Churnside v The State of Western Australia [2016] WASCA 146.
[79] See appellant's written submissions pars 52 - 54; AB 14.
[80] Churnside [7].
The maximum penalty for the offence committed by the appellant is 20 years' imprisonment.
The offence committed by the appellant was, by no means, the most serious aggravated burglary. The appellant did not damage any property (gaining access by removing a flyscreen and sliding a window), ransack the home or seek to confront the victims (although the risk of confrontation was inherent in his conduct). However, the offending was serious enough. The appellant broke into the victim's house in the dead of night, looking for items to steal. The appellant woke the victim and her children. The appellant then fled the house, taking with him the wallet and keys. As counsel for the appellant accepted, the offence would have been frightening for the occupants of the house. Although it may be accepted that the burglary was unsophisticated and unplanned, these aspects of it do not make the victim's experience less frightening and were not, again as counsel for the appellant accepted, mitigating.[81]
[81] Appeal ts 4.
There is no tariff for home burglary offences, whether aggravated or non‑aggravated. Given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them, this is hardly surprising.[82] What is clear is that home burglaries are serious offences which are ordinarily met with terms of imprisonment in order to recognise their prevalence and to provide personal and general deterrence.[83] As this court recognised in Mason v The State of Western Australia,[84] home burglaries are apt to create a sense of intrusion and fear for people whose home is the subject of a burglary.
[82] Eldridge [63].
[83] Brindley v The State of Western Australia [2019] WASCA 153 [39].
[84] Mason v The State of Western Australia [2018] WASCA 43 [68].
The standards of sentences customarily imposed were recently discussed in Eldridge v The State of Western Australia and Brindley v The State of Western Australia. Examples of sentences of between 18 months' and 3 years' imprisonment for aggravated home burglaries where there was no violence or threat of violence to persons in the residence or significant damage to the property, in circumstances where a substantial discount was given for an early plea of guilty, may be found in Hume v The State of Western Australia,[85] and cases there cited, and Ugle v The State of Western Australia.[86]
[85] Hume v The State of Western Australia [2017] WASCA 205.
[86] Ugle v The State of Western Australia [2018] WASCA 97. See also Garlett v The State of Western Australia [2016] WASCA 80.
Having regard to these cases, it might be thought that the sentence imposed upon the appellant was within the range of sentences customarily imposed and could be characterised as lenient. However, despite the fact that the appellant's risk of reoffending is elevated, some leniency was justified in this case, having regard to the combination of mitigating circumstances identified by the sentencing judge and, in particular, the appellant's FASD and his other mental impairments, his youth and early guilty plea. The appellant's FASD and other mental impairments diminished his moral culpability. These conditions also reduced the significance to be attached to general and specific deterrence.
While we would have concluded that the length of the term of suspended imprisonment was high, we would not have interfered with it, but for the time already spent in custody by the appellant. It appears from the sentencing remarks that his Honour took into account the period spent by the appellant in custody on remand as a factor relevant only to the question of whether any sentence of imprisonment should be suspended and not in his assessment of the length of that term. The matter was raised as a mitigating factor by defence counsel and there is no reason why his Honour should not have given the appellant full credit for the time the appellant had spent in custody. As the sentencing judge was not able to backdate a conditionally suspended imprisonment order,[87] time in custody could only be accounted for by reducing the length of the term to be imposed. In our opinion, this factor, considered together with all of the other mitigating factors, compelled the imposition of a term of imprisonment shorter than the term actually imposed. We are persuaded that the length of imprisonment was manifestly excessive. We would grant leave to appeal. The ground has been made out. This court must now resentence the appellant.
[87] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 [136]. This is in contrast to the position of this court in dealing with a sentence appeal, where s 41(3)(c) of the Criminal Appeals Act 2004 (WA) gives this court power to order that a sentence be taken to have taken effect on a date before this court's order resentencing the offender.
Resentencing
It is unnecessary to repeat the circumstances of the offending, the details of the appellant's personal circumstances as they were at the time of sentencing or the effect of the various reports before the primary judge. We have considered these matters in addition to the materials referred to below.
By application in an appeal dated 25 February 2021, the respondent sought an order that, if the appeal was allowed and the appellant resentenced, the respondent have leave to adduce as evidence relevant to the resentencing the affidavit of Lawrence Anthony Burlo, sworn 25 February 2021.
The appellant did not oppose the respondent's application and at the hearing of the appeal the application was granted.[88]
[88] Appeal ts 2.
Mr Burlo's affidavit reveals that, since he was sentenced by Troy DCJ on 25 June 2020, the appellant has committed a number of offences, including offences which appear to breach the conditionally suspended imprisonment order made by his Honour. On 6 August 2020, the appellant committed an offence of being armed or pretending to be armed in a way that may cause fear, contrary to s 68. On 2 December 2020, the appellant pleaded guilty to this offence in the Perth Magistrates Court. He is yet to be sentenced. On 20 October 2020, at Thornlie, the appellant committed an offence that he entered or was in the place of the victim without her consent, with intent to commit an offence therein, contrary to s 401(1)(c) of the Code. On 18 December 2020, the appellant pleaded guilty to this offence in the Perth Magistrates Court. He is yet to be sentenced.
It appears from the updated criminal history annexed to Mr Burlo's affidavit that, in addition to the offences referred to above, the appellant committed other offences in breach of the conditionally suspended imprisonment order, including offences of stealing, for which the appellant has been fined in the Magistrates Court.
At the hearing of the appeal, counsel for the appellant informed the court that, on 3 December 2020, the NDIS approved a new plan in relation to the appellant. The appellant was given leave to file and serve an affidavit setting out the new NDIS plan. In accordance with this order, an affidavit affirmed by his lawyer, Alana Antoinette Woldan, on 5 March 2021 was filed. In Ms Woldan's affidavit she stated that the appellant was remanded in custody on 21 October 2020 after his arrest for the burglary charge referred to above. Based on information provided to this court by counsel for the respondent at the hearing of the appeal, he remains on remand in custody.
Annexed to Ms Woldan's affidavit is the new NDIS plan in respect of the appellant. This plan commenced on 3 December 2020, but the document itself is dated 11 January 2021. The new plan is to be reviewed on 3 December 2021. The NDIS continues to support the appellant but, as he is incarcerated, his accommodation needs (including his transitional accommodation needs when he is released) have become the responsibility of the Department of Justice. Presently, the NDIS is providing the appellant with 'capacity building supports' designed to assist him to transition into the community and live safely in supported accommodation, develop daily living skills and find meaningful employment. The coordination of these supports will be provided by the National Disability Insurance Agency.
In resentencing the appellant, this court is entitled to take into account events which have occurred since the imposition of the suspended imprisonment order. These events confirm, unfortunately, that the appellant remains at a high risk of reoffending and underscores the need to impose a sentence which provides public protection. However, the appellant will be dealt with for the later offending when sentenced for those offences, and the commission of later offences does not aggravate the seriousness of the offence with which this court is currently dealing. The court remains concerned with the sentence that should have been imposed in the proceedings before the sentencing judge. Further, having regard to his youth, FASD and other mental impairments, and the continued support the appellant will receive via the NDIS, hope that the appellant can be induced to stop offending should not, at this stage, be abandoned. As this court recognised in Churnside,[89] long-term community protection may be promoted where arrangements in the community can offer a better prospect than imprisonment for breaking the tragic cycle of offending and imprisonment which threatens to characterise the life of a young Aboriginal offender with a significant mental impairment and severely disadvantaged background.
[89] Churnside [6].
It has not been suggested that on resentencing the appellant this court should impose an immediate term of imprisonment. Like the sentencing judge, we would allow a discount of 20% under s 9AA of the Sentencing Act.In our opinion, in all the circumstances of this case, and in particular having regard to the facts of the aggravated burglary, that the appellant was only 18 years old when the offence was committed and his mental impairment, a term of 14 months' imprisonment is commensurate with the seriousness of the offence. We would order this term of imprisonment to be conditionally suspended for 12 months. Pursuant to s 41(3)(c) of the Criminal Appeals Act2004 (WA), the new sentence is taken to have taken effect on 25 June 2020.
The effect of this is that the appellant's suspension period is completed at the time these orders are made. However, the sentence may be relevant if the appellant is subsequently dealt with for any alleged breach of the conditionally suspended imprisonment order. Whether and how that may occur is not a matter for resolution by this court at this stage.
Orders
The orders that we would make are:
(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)The sentence imposed by Troy DCJ on 25 June 2020 is set aside and the appellant is sentenced to 14 months' imprisonment suspended for 12 months on conditions that he comply with supervision and program requirements to be taken to have taken effect from 25 June 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
11 AUGUST 2021
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