Plug v Markham - [2018] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PLUG -v- MARKHAM [2018] WASC 152
CORAM:   SMITH AJ
HEARD:   10 MAY 2018
DELIVERED          :   22 MAY 2018
FILE NO/S:   SJA 1062 of 2017
MATTER:   Criminal Appeals Act 2004 Part 2
Prosecution Notice Number FR 6655 of 2017 in the Magistrates Court of Western Australia at Fremantle

BETWEEN: JASON PLUG
Appellant
AND
DUNCAN MARKHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S R MALLEY
File Number             :   FR 6655 of 2017

Catchwords:

Criminal law - Application for leave to appeal against sentence out of time - Indecent act in public place - Relevance of mental impairment to sentencing - Whether suspended sentence of imprisonment manifestly excessive - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 10(3), s 14(5), s 40(1)(e)
Criminal Code (WA), s 203(1)(a)
Sentencing Act 1995 (WA), s 6(4), s 39, s 76, s 81

Result:

Application for extension of time dismissed
Leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr A D Sullivan
Respondent	:	Ms G Beggs

Solicitors:

Appellant	:	Legal Aid Western Australia
Respondent	:	Director of Public Prosecutions (WA)

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)
DC v The State of Western Australia [2014] WASCA 121
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
ENR v The State of Western Australia [2018] WASCA 9
Krijestorac v The State of Western Australia [2010] WASCA 35
Mason v The State of Western Australia [2018] WASCA 43
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Robertson v The State of Western Australia [2009] WASCA 83
Samuel v The State of Western Australia [2004] WASCA 154
Suleiman v The State of Western Australia [2017] WASCA 26
The State of Western Australia v Malone [2015] WASCA 188
Watkins v Pagels [2015] WASC 388
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
Wimbridge v The State of Western Australia [2009] WASCA 196
Winmar v Clark [2015] WASC 314

SMITH AJ:

The disposition of the appeal

After hearing counsel for the parties on 10 May 2018, I found that the appellant's ground of appeal had no real prospect of success and made the following orders:
1.The affidavit of Anthony Doug Sullivan sworn on 24 January 2018 together with the neuropsychological assessment report annexed to the affidavit be admitted into evidence in the appeal.
2.The application for an extension of time to appeal is dismissed.
3.Leave to appeal is dismissed.
4.The appeal against sentence given by the Magistrate on 28 July 2017 in FR 6655 of 2017 is dismissed.

These reasons for decision set out the reasons why the orders were made.

Background

The appellant seeks to appeal against a sentence imposed on him on 28 July 2017. The appellant, who was 36 years old at the time of the offending, pleaded guilty in the Fremantle Magistrates Court of doing an indecent act in a public place and in sight of any person who was in a public place, contrary to s 203(1)(a) of the Criminal Code (WA).
He was sentenced to 7 months' imprisonment suspended for 12 months.
On the same day, the appellant was also convicted on pleas of guilty of two charges of possession of synthetic cannabis, and four charges of being in possession of a smoking implement used to smoke synthetic cannabis. For these offences, the appellant was fined a global amount of $1,000. There is no appeal against the drug offence convictions or sentence.
The facts of the indecent act were that as a result of a complaint made to the police by a member of the public, the appellant was found naked and masturbating outside the old police station in Fremantle where he could be clearly seen from a public road where members of the public were present. He had a magazine next to him with green leaf material spread on it that he admitted was synthetic cannabis. At the time of his appearance before the sentencing magistrate, the appellant had a reasonably extensive history of minor offences, the majority of which involved drugs for personal use. The appellant had been recently dealt with by the sentencing magistrate for some of these offences.
The appellant also had a history of two prior convictions for indecent conduct. One conviction was in March 2013 for unlawful and indecent assault in circumstances of aggravation. The other conviction was in December 2015 for indecent acts in public. The appellant was also convicted in June 2016 for an offence of obscene acts in public. The sentencing magistrate was aware of the appellant's criminal history but not the facts of these offences.
In mitigation, counsel for the appellant made the following submissions to the sentencing magistrate:
(a)the appellant uses synthetic cannabis (kronic) for his pain;
(b)he has been homeless for seven years and relies upon goodwill and donations to get by; and
(c)the previous two weeks had been the worst in his life. He was cold and had only slept three hours over a number of weeks.
Counsel for the appellant also informed the sentencing magistrate that the appellant's circumstances were unlikely to change and that a community based order would not be a suitable sentencing option as the appellant was 'likely to end up in a breach' because of reoffending and an inability to keep appointments. However, counsel also made a submission that the appellant was not at the stage where a term of imprisonment was appropriate.
The sentencing magistrate directed his sentencing remarks to the appellant. His Honour told the appellant that it was his opinion that the indecent acts in public were serious offences, highly inappropriate and repetitive behaviour. His Honour then said in the following exchange with the appellant:
This is the third offence since 2013. I have to impose upon you what I consider to be at least a deterrent penalty personal to you to say, look, your behaviour has to cease. In that regard I otherwise would have imposed nine months. I've reduced it to seven by reason of your plea of guilty. Seven months imprisonment. That will be suspended for a period of 12 months. So you're now on a suspended jail term, Mr Plug. You understand that.
ACCUSED: Yes, your Honour.
HIS HONOUR: So, technically, any offence, including drug offences, and if you get caught in the next 12 months, and I appreciate that that possibility is very high, but you've got to understand that it might be time to change your circumstances.
ACCUSED: Yes.
HIS HONOUR: Because you get caught and you get convicted, then I anticipate that you may well end up in prison.
ACCUSED: Yes, your Honour.
HIS HONOUR: Okay. Thank you very much.
ACCUSED: Thank you, your Honour.

Should an extension of time be granted?

An appeal against sentence in the Magistrates Court cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[1]
[1] Criminal Appeals Act 2004 (WA) s 10(3).
The appeal notice was lodged on 3 November 2017. Therefore, the appeal is two and a half months out of time.
Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[2]
[2] Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA).
Exceptional circumstances are not closed. A compelling explanation for the delay will generally constitute exceptional circumstances.[3]
[3] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA).
Merely showing that there are reasonable prospects of demonstrating that the conviction was a miscarriage of justice is not sufficient. Something more has to be shown, otherwise there would be no practical consequence ever flowing from a failure to appeal within time.[4]
[4] Wimbridge v The State of Western Australia [2009] WASCA 196 [21] (Wheeler JA); Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] ‑ [114].
Before determining whether an extension of time should be granted the merits of the appeal must be considered.

The appeal

The appellant seeks to appeal the suspended term of imprisonment out of time on grounds that the imposition of a suspended term of imprisonment was manifestly excessive in light of the maximum penalty prescribed by the law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender.
The appellant requires leave to appeal on the proposed ground of appeal. Leave should be granted if the ground has reasonable prospects of success.

Application to adduce further evidence

Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing decision‑maker, a different sentence should have been imposed.[5]
[5] Suleiman v The State of Western Australia [2017] WASCA 26 [53] (Buss P, Mazza & Mitchell JA agreeing).
When an appeal is against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.[6]
[6] Criminal Appeals Act s 14(5).
The appellant sought to admit into evidence a neuropsychological assessment report of the appellant made on 8 December 2017 by a clinical neuropsychologist, Dr Mandy Vidovich.
The respondent did not consent or object to the report being admitted into evidence in the appeal, but says the report does not contain material that would lead this court to the conclusion that the suspended sentence imposed on the appellant was manifestly excessive, or plainly unreasonable or unjust.
It is, however, clear from Dr Vidovich's report that the appellant suffers from a neurological impairment, the cause of which is uncertain. This information is relevant to the matters to be considered by the court in the appeal. For this reason, I was of the opinion that the report should be admitted into evidence in the appeal.

Relevance of mental impairment to sentencing

If an offender is shown to be suffering from a mental disorder, abnormality or impairment of mental function at the time of the offence or sentencing (whether or not the condition can be labelled as serious mental illness), the impaired mental functioning may reduce the offender's moral culpability if it had the effect, among other matters, of:[7]
(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.
[7] Krijestorac v The State of Western Australia [2010] WASCA 35 [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [26].
The general principles explaining the relevance of mental impairment to the sentencing process were recently summarised in Mason v The State of Western Australia.[8] These are:
(a)If an offender contends that their moral culpability is lessened by mental impairment, the offender must prove, on the balance of probabilities, a causal connection between the impairment and commission of the offence.[9]
(b)Mental impairment that is not causative of the offence may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.[10]
(c)Mental illness is a matter that may be relevant in the exercise of the sentencing discretion, but it is not the case that it will always result in a lesser sentence. For example, the existence of a causal connection between the mental impairment on the one hand and the offending behaviour on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public.[11]
(d)The existence of a mental impairment is but one factor that must be balanced with all other factors to produce an appropriate sentence. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance.[12]
[8] Mason v The State of Western Australia [2018] WASCA 43 [57] ‑ [63].
[9] Mason v The State of Western Australia [2018] WASCA 43 [60].
[10] Mason v The State of Western Australia [2018] WASCA 43 [61].
[11] The State of Western Australia v Malone [2015] WASCA 188 [74].
[12] The State of Western Australia v Malone [2015] WASCA 188 [74].
At the time Dr Vidovich prepared her report, the appellant was in custody in relation to other matters. Dr Vidovich describes the appellant as follows:
At the time of his appointments, Mr Plug presented as a pleasant, yet distressed man, who described difficulty coping in prison and accepting the circumstances associated with his imprisonment. Neurological symptoms were evident with respect to his speech, fine motor co‑ordination and gait. He was diagnosed in childhood with 'pancerebellar disturbance' however it would appear that he did not receive neurological follow‑up and it remains unclear as to whether any aetiology for his cerebellar disorder was established. Mr Plug states that he suffered a cerebellar stroke, and that, because of this, he experienced significant difficulty continuing his academic studies, needing to repeat Yr 8 and then subsequently leaving prior to the completion of Yr 9. Employment experience has been extremely limited, and he was placed on a DSP in his late teenage years. Attempts to live independently outside the home environment were unsuccessful and Mr Plug has been living on the streets for the last five years. …
Mr Plug disclosed a preference for living on the streets, feeling as though he is not well understood by others and having historically experienced difficulties in establishing and maintaining relationships. …
Inspection of his neuropsychological profile revealed a broad range of performances, though results mostly within normal limits, and with weaker scores associated with his neurological disorder. Consistent with his self‑report, fragility in his attentional abilities, slowed processing speed, and subtle executive disturbance was evident on testing. These deficits also likely contribute to his concerns regarding his memory capacity, at a day‑to‑day level. His speech had a mildly dysarthric quality and there were indications of reduced motor control and gait disturbance. Emotionally, he was clearly distressed, with a degree of lability evident.
As to whether the impairment of the appellant had any causal connection with his indecent act, Dr Vidovich said:
Some of his self‑perceptions impressed as distorted and features of his personality structure appeared more relevant with regard to his inappropriate behaviours, rather than such necessarily being due to significant mental health issues or cognitive impairment. From discussion, his offending seemed intertwined with his homelessness and difficulties with interpersonal interactions, rather than sexual deviance. Psychiatric assessment may however be helpful in further delineating this, as well as qualifying any psychopathology. Certainly, and with respect to his offending, the latter is the more salient mitigating influence, rather than his neuropsychological functioning.
The appellant's counsel made a submission that Dr Vidovich's report refers to clear indicators of treatment needs that could be addressed in a sentencing option other than imprisonment. In her report, Dr Vidovich said:
Mr Plug was accepting of the idea of a referral to the Disability Services Commission (DSC, now referred to as the Department of Communities) and he would benefit from assistance to obtain accommodation that balanced his need for social interaction, though privacy and solitude. Whilst psychotherapy would also be very useful, such would likely be a somewhat protracted process with respect to establishing therapeutic rapport, addressing his childhood circumstances and disability, and helping to develop interpersonal skills. An updated neurological review and brain imaging is also recommended, and Mr Plug would benefit from reinforcement regarding the detrimental effects of his substance abuse in the context of his already vulnerable neurological status.

General appellate sentencing principles

The general principles applicable on appeal against sentence are well established. Where, as in this appeal, there is an allegation of implied error in the sentencing process, an appellate court will not intervene simply because the court might have imposed a different sentence. Rather, an appellate intervention is only warranted where the court is satisfied that a different sentence should have been imposed at the original hearing.[13]
[13] Wilson v The State of Western Australia [2010] WASCA 82 [2].

Manifestly excessive ‑ legal principles

The legal principles relevant to a claim of manifest excess are well known. In determining whether or not a sentence is manifestly excessive, as particularised in the ground of appeal, the sentence must be viewed in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.[14]
[14] DC v The State of Western Australia [2014] WASCA 121 [39] ‑ [41].

Sentences of imprisonment ‑ general principles

Section 6(4) of the Sentencing Act 1995 (WA) provides:
(4)A court must not impose a sentence of imprisonment on an offender unless it decides that ‑
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
It can be inferred from s 76 and s 81 of the Sentencing Act that suspended imprisonment or conditional suspended imprisonment terms are only to be available where:[15]
(a)the court has concluded that a sentence to a term of imprisonment is warranted;
(b)the pre‑conditions in s 6(4) are met; and
(c)the term imposed is not more than five years.
[15] Mason v The State of Western Australia [2018] WASCA 43 [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] ‑ [79].
In an appeal that alleges that the imposition of a suspended term of imprisonment was manifestly excessive because the wrong type of sentence was imposed, the question is whether it was open to the sentencing judge to form the view that the only appropriate disposition was the imposition of a term of imprisonment. In other words, was it open to the judge to find that a less serious sentencing option was not appropriate?[16]
[16] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; ENR v The State of Western Australia [2018] WASCA 9 [12].
When arriving at a decision regarding the appropriate sentencing option, a judge must give proper consideration to all sentencing options in s 39 of the Sentencing Act.[17] However, a judge is not required to expressly refer to a sentencing option if that option is not realistically open.[18] If in the circumstances of a case two or more options may be realistically open, a judge should necessarily make reference to why the less severe option (or options) is not appropriate.[19]
[17] Samuel v The State of Western Australia [2004] WASCA 154 [34] (Roberts-Smith J, Malcolm CJ & Murray J agreeing).
[18] Samuel v The State of Western Australia [2004] WASCA 154 [31] ‑ [34] (Roberts-Smith J, Malcolm CJ & Murray J agreeing) citing Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998).
[19] Samuel v The State of Western Australia [2004] WASCA 154 [34] (Roberts-Smith J, Malcolm CJ & Murray J agreeing).

Is error established?

Section 203(1)(a) of the Criminal Code provides that a person who does an indecent act in a public place or in the sight of any person who is in a public place is guilty of a crime and is liable to imprisonment for two years. If the person is convicted of the offence by way of a summary court conviction the maximum penalty is imprisonment for nine months and a fine of $9,000. However, it is the statutory maximum penalty of 2 years' imprisonment that is relevant to the assessment of the seriousness of the offending.[20]
[20] Watkins v Pagels [2015] WASC 388 [11]; citing Winmar v Clark [2015] WASC 314 [36]; Wiltshire v Mafi [2010] WASCA 111.
There is no established sentencing range or tariff for offences contrary to s 203(1)(a) of the Criminal Code.
The appellant cited Watkins v Pagels[21] in support of the proposition that the sentence imposed upon the appellant was manifestly excessive. The respondent submitted the facts and circumstances of that case are so dissimilar from the present case as to render that case unhelpful. I respectfully agree with this submission.
[21] Watkins v Pagels [2015] WASC 388.
The offender in Watkins was sentenced to a term of immediate imprisonment. It was conceded that a term of immediate imprisonment was manifestly excessive. Significantly, unlike the appellant in the present case, the offender in Watkins had participated in the pre‑sentence opportunity programme and completed five treatment sessions. He had also taken steps towards rehabilitation by abstaining from the use of illicit drugs (which were found to be relevant to his offending) and by engaging in treatment with the South Metropolitan Community Alcohol and Drug Service. A pre‑sentence report assessed the offender in Watkins as being suitable for inclusion in the Sex Offender Treatment Program and Pathways Program under an order for a term of at least 18 months.
Therefore, there was significant mitigation available to the offender in Watkins and it could be clearly shown that alternative sentencing options were open which is not the case in the present matter.
In this matter, counsel for the appellant informed the sentencing magistrate that any community based order (by inference a community based order or an intensive supervision order) was not an appropriate sentencing disposition.
Provision for a maximum penalty of 2 years' imprisonment indicates Parliament does not consider this to be a trivial offence.[22] This was the appellant's fourth conviction of offences of this kind.[23]
[22] Watkins v Pagels [2015] WASC 388 [12].
[23] The sentencing magistrate however referred to the conviction as the third of its kind.
The appellant has been fined on numerous occasions for offending which has not deterred him from re‑offending. The offence of committing an indecent act in public was serious and, as the sentencing magistrate properly found, was a repetition of inappropriate behaviour. In these circumstances, the appellant presented as a person for whom specific deterrence was a significant sentencing factor.
Although the sentencing magistrate did not expressly make reference to all the sentencing options in s 39 of the Sentencing Act, given the appellant's counsel's submissions regarding his likely inability to attend appointments and his repeated behaviour and previous convictions, it appears the sentencing magistrate determined that the only sentencing option that was realistically open in the circumstances was a term of imprisonment that was to be suspended.
The neuropsychological report does not contain any information that would lead this court to conclude that the sentencing magistrate should have imposed a different sentence.
Counsel for the appellant pointed out that in her report Dr Vidovich states that the appellant had a low average score for auditory immediate attention and working memory abilities, with clear fragility evident in his ability to hold auditory information in mind. From this information a submission was made that the appellant may not understand the consequences of being fined for offences.
The issue with this submission is it is difficult to see that such an inference is open to be drawn from the report of Dr Vidovich.
The report does not establish a causal link between the appellant's offending and any mental impairment. Dr Vidovich attributes part of the cause of his inappropriate or indecent behaviour as being his substance abuse. This is a problem of his own making and it does not appear that any steps have been taken by him or are likely to be taken by him to address that problem. The other cause identified for the appellant's offending relates to his self-perception and personality structure.
Although the neuropsychological report establishes that there are clear indicators of treatment needs of the appellant to address his behaviour and that these needs could be addressed with an appropriate court order, the difficulty with this is that the appellant's homelessness and drug offending are such that any prospect of his rehabilitation by a community based order or an intensive supervision order, or the likelihood of compliance with the conditions of any such order, are very poor.
To the contrary, whilst the neuropsychological report suggests that the appellant was accepting of the idea of a referral to the Department of Communities, there is nothing before the court to suggest that the appellant would be willing, or able, to participate in any therapeutic treatment to address the causes of his offending.
In these circumstances, I am not satisfied that the ground of appeal has a rational and logical prospect of succeeding, or a real prospect of success.
In any event, the appellant's brief explanation for the late filing of the appeal, that he was not aware that steps could be taken to appeal the sentence, was embarrassed by the offence and considered he was not going to do anything else wrong to breach the suspended sentence, is not particularly satisfactory given the length of the delay. However, even if this explanation is accepted, taking into account that he is homeless, the main difficulty the appellant faces is that he has not been able to demonstrate that there is a viable ground of appeal. Accordingly, I formed the opinion that:
(a)there will not be a miscarriage of justice if an extension of time to institute an appeal is not granted;
(b)the appropriate order is that the application for an extension of time within which to appeal be dismissed; and
(c)it follows that the appeal fails.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH
22 MAY 2018