Powell v The State of Western Australia
[2010] WASC 54 (S)
•17 MARCH 2010
POWELL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 54 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 54 (S) | |
| Case No: | SJA:1098/2009 | 17 FEBRUARY 2010 | |
| Coram: | SIMMONDS J | 17/03/10 | |
| 17/03/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | On re-sentencing, imprisonment for a term of 7 months, backdated to date commenced to serve sentence for offence which was set aside | ||
| B | |||
| PDF Version |
| Parties: | RODRICK CHRISTIAN POWELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Assault on public officer (bus driver) |
Legislation: | Criminal Code (WA), s 318 |
Case References: | Powell v The State of Western Australia [2010] WASC 54 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 17 MARCH 2010 FILE NO/S : SJA 1098 of 2009 BETWEEN : RODRICK CHRISTIAN POWELL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE W G TARR
File No : PE 48233 of 2009
Catchwords:
Assault on public officer (bus driver)
(Page 2)
Legislation:
Criminal Code (WA), s 318
Result:
On re-sentencing, imprisonment for a term of 7 months, backdated to date commenced to serve sentence for offence which was set aside
Category: B
Representation:
Counsel:
Appellant : Mr S A Walker & Mr F P Hill
Respondent : Ms S Markham
Solicitors:
Appellant : Mental Health Law Centre (WA) Inc
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Powell v The State of Western Australia [2010] WASC 54
(Page 3)
1 SIMMONDS J: (This judgment is edited from the transcript). Mr Powell, I am re-sentencing you following the determination of your appeal against the sentence imposed by a magistrate on the one offence, namely an assault on a public officer, for which the re-sentencing as well as the original sentencing was conducted.
2 The offence was one against the Criminal Code (WA) (the Code) s 318. By the operation of amendments to the Code over the last few years up to the time of your offending, which was as I understand it 31 July 2009, the maximum penalty was one of 7 years' immediate imprisonment.
3 I can be relatively brief in my remarks in this supplementary judgment because there are, with the exceptions I will reach, no major differences between the circumstances both of the offending and of yourself that I describe in my judgment on the appeal, Powell v The State of Western Australia [2010] WASC 54.
4 The circumstances of the offending on 31 July 2009 were that you hit a bus driver when, as I understand it from the facts, the vehicle had been stopped following an earlier exchange between you and the bus driver about the bus driver's expression of difficulty with the fact that you were asleep. You awoke when she complained about this to you, and she then returned to the driver's seat and indicated that you should get off the bus.
5 The circumstances of the offending, I am satisfied on what I have been told by both counsel, involved you hitting the bus driver two or three times. I do not consider that it makes a significant difference to sentencing whether it was three or two. It is not in dispute that as a result of hitting the bus driver as you had done with a clenched fist, the bus driver suffered injuries, partly the result of the dark glasses she was wearing, that necessitated medical treatment including five stitches.
6 This was a significant assault. In sentencing you for this offence, as in my reasons on the appeal I had indicated, I must consider all the sentencing options realistically open to me. Having regard to the instruction in the sentencing legislation I may not use a more severe penalty unless it is not appropriate to resort to one of the less severe ones.
(Page 4)
7 In sentencing you I have to have regard to the purposes of sentencing, which are: general deterrence, being deterrence of other persons, sometimes colloquially put as making an example of the offender; special deterrence, being deterring yourself; punishment; protection of the public; and rehabilitation. In all of this, it seems to me that I must particularly note the evidence before me as to your mental health condition at the time of the offending.
8 I am satisfied your mental health condition is one under which you have been labouring for some time. You described it to the magistrate as bipolar (ts 3). The evidence I have from psychiatrists and medical officers was put in terms of paranoid schizophrenia; regardless of its precise nature, the illness is such that you had been under treatment for it for some time. That treatment included medication and it was a change of medication on the relevant day, with the effects of that on that day, that, in my view, contributed, together with the underlying condition itself, to the offending.
9 The effect of that is that it is much less important to approach sentencing with a view to making an example of you by reference to general deterrence. At the same time, general deterrence is not entirely irrelevant. That is because it is not in dispute that you were aware that what you were doing was wrong; however, it is undoubtedly true that the level of control you had over your behaviour, the result of sleep deprivation and the underlying mental health issue, was such that general deterrence has the diminished role I have described.
10 At the same time I must take into account considerations of special deterrence and protection of the public. For that purpose I have carefully considered the medical reports that I have.
11 I have particularly noted the length of time you have been under treatment and the fact that this incident occurred after you had been released with some indication that your condition was under effective management. It is a concern that the offending occurred notwithstanding that. At the same time, however, I note that as a result of medical evaluation of you, while in prison under the sentence which I set aside in this matter as a result of the appeal, there have been rather more favourable indications, if I can put it that way, having to do with a change in drug regime to lithium and an indication that sleep apnoea clinic treatment is an option that you should attend to.
(Page 5)
12 It was not suggested to me that you had not been attending to that sleep treatment regime. In my view, then, the importance I might otherwise have attached to special deterrence and protection of the public is significantly moderated, although not entirely eliminated. As your counsel properly conceded, given your history, it cannot be assumed that all risks have been eliminated; however, it seems to me that substantially the risks which matured on 31 July 2009 have been addressed, and addressed as a result of the period in custody that you have undergone under the prior sentence which I set aside.
13 In re-sentencing you I note your plea of guilty, which I accept was at the earliest opportunity, and for that you are entitled to significant credit. I have regard also to the signs of remorse that clearly emerge from the material before me, being the apology to the bus driver and your acceptance of responsibility which went beyond simply the plea of guilty but included an offer to the learned magistrate to pay hospitalisation costs for the bus driver (ts 4).
14 In imposing any sentence of imprisonment in relation to this offending it seems to me that a discount at least in the order of 30% is appropriate, and that would be the number upon which I would settle. The plea of guilty of course is relevant to considering all of the sentencing options that are realistically open in this case.
15 I have noted your personal circumstances otherwise.
16 You were 49 at the time of the offending.
17 Your criminal history was one in which there had been prior offences of assault including one for assault on a public officer, although for the most recent assaults you had not received sentences of imprisonment. You had received sentences of imprisonment for prior assaults of a different character described in my reasons for judgment in the appeal.
18 I have anxiously weighed all of this material in order to arrive at my sentencing disposition in this case. It seems to me that having reviewed all of the options realistically open (including ones of a community based order and an intensive supervision order character), the seriousness of what occurred here and the other factors that I have described, weighed with and in some cases against
(Page 6)
- that seriousness, mean that only a sentence of imprisonment is appropriate.
19 I have had to weigh all of those factors again to see whether suspension of the term of imprisonment would be appropriate. It seems to me on balance, reviewing all of those matters, that it is a close question whether suspension is appropriate but on balance, in my view, suspension is not appropriate in this case.
20 That then takes me to the length of the term of imprisonment, a matter which precedes a determination of whether or not to suspend such a term. It seems to me that a sentence of 7 months' imprisonment is the appropriate disposition in this case.
21 I have noted in that regard the period of time you have already spent in custody. It seems to me that I can in the particular circumstances of this case, as well as having regard to the changes to the sentencing legislation in this state in relation to the abolition of the transition period, have regard to time spent in custody. However, it seems to me that I must make my determination primarily based upon all of the factors that I have previously described - that there is, in other words, no fixed reference point represented by the period that you happen to have served in custody while awaiting the disposition of this appeal as well as the period preceding the commencement of the appeal.
22 All of those matters having been weighed, in my view, a sentence of imprisonment of 7 months backdated to the date at which you entered into custody in relation to this offence is the appropriate period of time to apply. The calculation of that period so backdated may well mean - and I will hear from counsel on this subject - that you have now completed the term of that period and are entitled to immediate release.
0