Papas v The State of Western Australia

[2011] WASCA 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PAPAS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 3

CORAM:   McLURE P

MAZZA J

HEARD:   26 NOVEMBER 2010

DELIVERED          :   10 JANUARY 2011

FILE NO/S:   CACR 166 of 2010

BETWEEN:   ARGIRIS JOHN PAPAS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAUDE DCJ

File No  :IND BUN 40 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether appellant's depression and anxiety reduced his moral culpability and the need for general deterrence - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), pt 12

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Max Owens & Co

Respondent:     Director of Public Prosecutions (WA)

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

Krijestorac v The State of Western Australia [2010] WASCA 35

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Wheeler v The Queen [No 2] [2010] WASCA 105

1. McLURE P:  The appellant seeks leave to appeal against sentence.  He was convicted on his fast‑track plea of guilty of two counts of aggravated burglary, one count of assault occasioning bodily harm, one count of criminal damage, one count of obstructing a public officer and one count of breaching protective bail.

2. On 23 September 2010 Staude DCJ sentenced the appellant to a total effective sentence of 12 months' imprisonment and ordered that he be eligible for parole.  The appellant contends that a sentence of immediate imprisonment is manifestly excessive (ground 1) and that the sentencing judge erred in concluding that the appellant's mental health issues did not diminish his moral culpability or lessen the need for general deterrence (ground 2).

3. The facts are as follows.  At 8.30 pm on 6 February 2010 the appellant went to the home of the complainant, John O'Neill, in Bunbury.  His daughter, Kate O'Neill, also resided at the address.  The appellant had previously been in a relationship with Ms O'Neill.  The appellant entered the property through a partially enclosed carport and removed a hidden set of house keys.  He used the keys to unlock the front door and obtain entry into the house.  The appellant was confronted by Mr O'Neill who demanded that he leave.  A verbal altercation took place and Mr O'Neill followed the appellant out of the house (count 1).  Ms O'Neill came to the aid of her father at the front of the house.  The appellant grabbed her by the hand and bent her middle index finger by twisting it, causing it to fracture and dislocate (count 2).  Medical treatment was required.

4. On 7 February 2010 the appellant returned to Mr O'Neill's house and knocked on the front door.  When no one answered, he gained entry to the rear yard of the property by clambering along the carport roof.  Once in the yard, he picked up a pot plant and threw it at the house, causing it to break.  He picked up a second pot plant and threw it at the rear glass sliding door causing a large hole, allowing the appellant to access the house (count 3).  Ms O'Neill locked herself and her 2‑year‑old son in Mr O'Neill's bedroom and attempted to barricade the door with a chest of drawers.  The appellant picked up a table and began ramming that through the bedroom door causing a significant hole which enabled him to unlock the bedroom door (count 4).  Ms O'Neill managed to flee the bedroom and ran from the house carrying her son.  She ran to the next door neighbour's house.  The appellant followed her.  A neighbour held the appellant on the ground until the police arrived.  When police arrived and took hold of either arm of the appellant, he began to thrash about and struggle against police efforts to restrain him (count 5).  The breach of a bail condition was the subject of a s 32 notice.

5. The individual sentences were as follows:

Count 1	Aggravated burglary	3 months' imprisonment
Count 2	Assault occasioning bodily harm	6 months' imprisonment
Count 3	Aggravated burglary	12 months' imprisonment
Count 4	Criminal damage	3 months' imprisonment
Count 5	Obstructing police officers	3 months' imprisonment

1. No penalty was imposed for the breach of the bail condition.  The sentencing judge ordered that all the sentences of imprisonment be served concurrently, producing the total effective sentence of 12 months.

2. The appellant was aged 27 at the time of offending.  He had no relevant prior offences.  In 2008 the appellant was diagnosed as suffering from depression and anxiety for which he was being treated with medication.  After the commission of the offences he was referred for psychological counselling.  The psychologist noted that the appellant reported mild symptoms of depression which was being treated with medication.  The appellant admitted that excessive alcohol consumption at the time of the offences was a contributing factor. 

3. The pre‑sentence report notes that the appellant presented as remorseful for his actions and had made efforts to address his anger management, relationship and substance abuse issues.  The appellant was in full‑time employment at the time of the offences.  He had a close and supportive relationship with his immediate family.  A number of favourable references were tendered on the appellant's behalf.  The victim impact statements tended to neutralise each other.  Based on information received from the appellant and his family, the psychologist came to the view that the appellant was not at risk of re‑offending.

4. The sentencing judge found it difficult to reconcile the appellant's reputation as a person of good character with the violent offences of which he had been convicted.  He continued:

   Whilst your psychiatric condition may have been an underlying feature of your behaviour, it does not, in my opinion, diminish your moral culpability to any extent.  I accept that your judgment may have been clouded but this appears to have been as a result of drinking to a point of intoxication on both days.

   No mitigation can be found in depriving yourself of judgment and self control by voluntary intoxication.  This is particularly so when your alcohol abuse is not a cause of or a symptom of your mental illness (ts 30).

5. I propose to commence with ground 2.

Mental state

1. The thrust of ground 2 is that the sentencing judge erred in failing to find that the appellant's depression and anxiety reduced his moral culpability and the need for general deterrence.

2. The legal principles on this subject have been comprehensively addressed in this jurisdiction in the past five years:  see Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35 (approving R v Verdins [2007] VSCA 102; (2007) 16 VR 269) and Wheeler v The Queen [No 2] [2010] WASCA 105.

3. I rely on what I said in Wheeler:

   The effect of mental impairment on culpability depends upon the nature, effect and severity of the condition and its symptoms:  Verdins [25]. Of particular significance is the magnitude of the effect of the condition on the ability to appreciate the wrongfulness of the act or to control his or her actions or emotions or to make reasonable (or reasoned) judgments. The magnitude of the effect of a mental impairment is important because … it is the nature of the human condition that even in the absence of mental impairment, a person may have heightened anxiety or emotions which impair judgment or control.

   A person seeking to rely on mental impairment as reducing his or her moral culpability is required to prove on the balance of probabilities that [the condition] impaired his mental functioning to such an extent as to reduce the blameworthiness or culpability of his conduct [9] ‑ [10].

4. The evidence in this case does not justify a finding that the appellant's depression or anxiety materially ameliorated his culpability for

the offending.  His condition pre‑dated the offending, was described by the appellant as causing mild symptoms, and was being treated with medication.  Nor is it such as to have any material impact on the weight to be given to general deterrence.  The appellant's offending is primarily attributable to the level of his intoxication.  There is no merit in ground 2.

Manifest excess

1. The appellant contends that the sentencing judge erred in imposing a term of immediate imprisonment instead of ordering its conditional suspension under pt 12 of the Sentencing Act 1995 (WA). In order to succeed, the appellant has to demonstrate that the imposition of a term of immediate imprisonment was unreasonable or unjust.

2. The offence of aggravated burglary, the maximum penalty for which is 20 years' imprisonment, is serious.  The seriousness of the circumstances of the offending as a whole in this case is heightened by the level of violence, actual and threatened, perpetrated by the appellant.  The second aggravated burglary offence on 7 February 2010 is clearly the most serious individual offence, involving as it does a repetition and escalation of the offending of the previous day.  The seriousness of the offending is not reduced because it occurred in the context of a failed or failing domestic relationship.  It is necessary to protect actual and potential victims of domestic violence. 

3. The mitigating factors in this case including the appellant's fast‑track plea of guilty, his remorse and his prior good character, have clearly been given significant weight as reflected in the short terms of imprisonment imposed by the sentencing judge.  That course was appropriate.  However, the appellant has fallen well short of demonstrating that the sentence of immediate imprisonment in the circumstances of this case was manifestly excessive.

4. For these reasons, I would refuse leave to appeal and dismiss the appeal.

5. MAZZA J:  I agree with the reasons of McLure P.