Saveka v The Queen
[2001] WASCA 312
•9 OCTOBER 2001
SAVEKA -v- THE QUEEN [2001] WASCA 312
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 312 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:224/2000 | 21 SEPTEMBER 2001 | |
| Coram: | WALLWORK J ANDERSON J EINFELD AJ | 9/10/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence reduced | ||
| B | |||
| PDF Version |
| Parties: | TERANCE EROA SAVEKA THE QUEEN |
Catchwords: | Criminal law Sentencing Offender in receipt of disability pension Mental problems Previous treatment for depression Whether relevant to sentence |
Legislation: | Nil |
Case References: | Hurd v The Queen (1988) 38 A Crim R 454 Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February 1992 R v Champion (1992) 64 A Crim R 244 R v Clarke [1996] 2 VR 520 R v Kiltie [1974] SASR 452 R v Tsiaras [1996] 1 VR 398 Hinchliffe v R [2001] WASCA 15 Redenbach [1991] 52 A Crim R 95 Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SAVEKA -v- THE QUEEN [2001] WASCA 312 CORAM : WALLWORK J
- ANDERSON J
EINFELD AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Offender in receipt of disability pension - Mental problems - Previous treatment for depression - Whether relevant to sentence
Legislation:
Nil
Result:
Appeal allowed
Sentence reduced
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Ms J A Girdham
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hurd v The Queen (1988) 38 A Crim R 454
Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February 1992
R v Champion (1992) 64 A Crim R 244
R v Clarke [1996] 2 VR 520
R v Kiltie [1974] SASR 452
R v Tsiaras [1996] 1 VR 398
Case(s) also cited:
Hinchliffe v R [2001] WASCA 15
Redenbach [1991] 52 A Crim R 95
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
(Page 3)
1 WALLWORK J: On 22 September 2000, the applicant was sentenced to an aggregate term of 3-1/2 years' imprisonment for offences arising from assaults he committed on another man whom he thought was associating with the applicant's former de facto wife. The applicant was charged with three counts - assault occasioning bodily harm for which he was sentenced to 12 months' imprisonment; aggravated burglary for which he was sentenced to 3-1/2 years' imprisonment; and wilful damage for which he was sentenced to 6 months' imprisonment.
2 The three terms of imprisonment were all ordered to be served concurrently and to be backdated to 7 September 2000. The applicant was declared eligible for parole.
3 When sentencing the applicant, the learned Judge said that the applicant had been living with Miss J. She had left him and had been staying with a Mr Servent and his girlfriend. The Judge said that for some reason the applicant had thought Miss J had left him for Mr Servent, which was untrue. On the afternoon of 30 January 1999, the applicant had been walking down a street and had observed people drinking in the front of a unit. The people there had included Mr Servent and Miss J. Miss J had called the applicant over. The Judge said that the applicant had seen Mr Servent and had evidently become enraged. The applicant had entered the front yard of the premises and assaulted Mr Servent severely, punching him with his fists, throwing him to the ground and kicking him in the head while he was down.
4 His Honour said Mr Servent had then been taken into the unit and, whilst he was being attended to, the applicant had come back. He had then forced his way into the unit and pushed over a bamboo shelf which had contained a number of valuable ornaments, some of which fell and broke. He was apparently yelling out "that you wanted your woman or words to that effect". He had then again assaulted Mr Servent by hitting him on the face with his fists. He had then dragged him out the front of the unit by his shirt. The Judge said that the assault had been premeditated and had been of considerable violence.
5 The learned Judge said that the applicant was 35 years of age and had apparently been diagnosed with bipolar affective disorder. He had spent time in Graylands. His Honour said:
"Whilst you were aware that people with this condition should not drink alcohol, you continued to abuse alcohol to a considerable degree. You have a bad record, which record
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- includes many offences of violence … I have not seen any evidence of contrition and no particular cooperation with the police and it cannot be said that you pleaded guilty at the earliest opportunity although of course you did plead guilty and you must receive credit for that. Crimes of violence are increasing in their prevalence in our community and there is a need for a strong general deterrent sentence, in my opinion. The same applies to crimes of aggravated burglary and wilful damage. In your case there is a need for a specific deterrent for you and a need to punish you for your crimes. I think there is a need to protect the complainants in this matter and the community generally."
6 After having said that assaulting a person and occasioning him bodily harm and then breaking into another person's home in order to repeat the assault and causing criminal damage in the meantime were acts of considerable violence which needed strong deterrent action both generally and specifically, the learned Judge sentenced the applicant to the sentences referred to above. Having done that, his Honour said:
"I ask the prison authorities to give you immediate psychiatric assessment and support which I know is available through the psychiatric services of the Ministry of Justice and the Ministry of Health."
7 It is not apparent from the sentencing remarks of the learned Judge that he regarded the applicant's mental condition as in any way mitigatory, although from his recommendation to the prison authorities to give the applicant immediate psychiatric assessment and support, it can be seen that his Honour recognised the need for assessment.
8 The pre-sentence report which the learned Judge had received advised, under the heading "occupation", that the applicant had a disability pension. It also advised that the applicant claimed he could not remember specific details of the offences "because he was under the influence of alcohol which had a great effect, given that he was on anti-depressant medication". It also said:
"Saveka reports that he is remorseful for committing the offences and claims it was out of character for him to do such a thing. He claims the alcohol mixed with his medication affected his reasoning and his behaviour."
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9 It was also stated in the pre-sentence report that: "… Saveka attended the Aboriginal Medical Service on a regular basis for assistance with depression and other health issues". Further on in the report, under the heading "Education and Employment", it was stated: "Saveka has had no formal employment for approximately five years. He has been on a disability pension since 1995."
10 It was stated further on in the resport that the applicant was in receipt of a disability pension prior to his remand in custody. Under the heading "Health", it was stated: "Saveka reported that he suffers from manic depression and Hepatitis B. He has been admitted to Graylands previously approximately four years ago. Since then, Saveka claims he has been on and off medication. He has tried a few, but believes he has yet to find suitable medication for his depression."
11 In the summary in the pre-sentence report it was stated, amongst other things:
"Saveka is a 35 year old male whose criminal record reveals offences of a traffic and violent nature. Saveka claims that he is very remorseful about committing the present offences. He believes that he needs psychological intervention and admits that he deals with anger inappropriately. Saveka is unemployed and has been on a disability pension for a few years."
12 Finally, it was stated: "Should the court deem an intensive supervision order a suitable disposition, it is requested that a programme requirement to include psychological counselling and anger management be included."
13 It is apparent from the record of convictions accompanying the pre-sentence report that the applicant has previously been convicted of offences involving assault. However the last of those was in 1995. There was then an offence described as "damage" in 1997, and a further offence of the same nature in 1998, for which the applicant was fined the sum of $350.
14 In the course of his plea in mitigation, counsel had advised the learned Judge that the applicant had been in receipt of a disability pension since 1997 and that he was instructed that the applicant suffered from manic depression for which he takes medication. Counsel said:
"He has been receiving ongoing treatment for that condition, I believe, since 1995 and there have been periods in which he has
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- undergone treatment at Graylands as well, but that is some time ago now and not recently. But nevertheless he still suffers from this condition for which he is required to take ongoing medication. … He knows quite well that he shouldn't drink. In fact he acknowledges to me that in the past he has had a severe drinking problem and that is certainly borne out by the record."
15 Counsel advised the Judge that the applicant had taken steps to deal with his alcohol problem and his regular abuse of alcohol, and that it would appear that his dealing with this alcohol problem was the reason why he had been able not to re-offend since 1998.
16 Counsel advised the Judge:
"Unfortunately on this occasion he did elect to drink and he had been drinking at his house since receiving the note and before he left the house. He tells me that he hadn't had a great deal of drink but it would appear that it doesn't take very much alcohol before he feels the effects in quite a drastic way. But normally my client tells me he abstains from alcohol. It was the combination of events on this occasion that led him to drink and unfortunately that alcohol certainly had its impact on him. My client has been attempting to get employment. However his medical condition makes it difficult for him to do that."
17 Counsel also advised the Judge that the applicant really did not have a clear recollection of the events which had taken place on that day. He said that about midday on the day in question, the applicant had found a note in his unit from his de facto wife, with whom he had been in a relationship for about two years. From that note the applicant had gained the impression that his de facto was leaving him to commence a relationship with the complainant, Mr Servent. He had been on his way to a friend's place to speak with him and to try and gain some support for dealing with the situation when, unfortunately, he had walked down Coode Street and, without intending any contact with his de facto, he had noticed some people drinking. One of them happened to be his de facto who had called out to him and invited him to approach her and the others outside that residence. It was then that he saw Mr Servent. The assault took place shortly afterwards.
18 Counsel told the learned Judge that Mr Servent had been having a relationship with the applicant's cousin and there had been a history of bad blood between the two of them. What had happened on this day was the
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- double impact of just learning that his relationship with his de facto had ended and being under the impression that she was leaving him for Mr Servent. Those had been the factors which had resulted in the offences.
19 It was submitted on this application for leave to appeal by counsel for the applicant that the material before the learned Judge had not only contained an assertion from the Bar table of the existence of a mental condition but that had been verified in some way by the pre-sentence report. It was conceded that there had not been sufficient detail before the learned Judge for him to assess the extent to which the condition had impacted upon the applicant's culpability, but it was submitted that the condition having been flagged by counsel and borne out in the pre-sentence report, was something which ought to have been taken into account in sentencing.
20 It was submitted that the learned Judge had not taken the information concerning the mental condition into account but had spoken of the need for a strong general deterrent sentence against the background of an offender with a history of psychiatric illness and treatment; that the mental condition was a matter which the learned Judge should have taken into account. However, he had been more concerned with matters relevant to the seriousness of the offending rather than matters personal to the applicant. It was submitted that the material which the learned Judge had, showed that there were real issues of a psychiatric nature relevant to the applicant at the time of his offending. However, there had been no regard paid to the applicant's mental condition in the sentencing exercise and that matters personal to the applicant had not been accorded sufficient weight.
21 It is my opinion that when a sentencing Judge is given information both by the client's lawyer and a pre-sentence report which reveals that there is a history of some kind of mental disorder in a person whom the Judge is thinking of sentencing to a term of imprisonment, the Judge should make inquiries into the situation to find out whether the mental condition could mitigate the relevant offence or offences.
22 In the decision of R v Kiltie [1974] SASR 452, Chief Justice Bray said at 453 of his reasons:
"I think these must be mitigating factors. There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilt of the particular defendant in the dock
(Page 8)
- were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to dessert. The purpose of the law is to give every man his due, says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves. (Salmond on Jurisprudence (8th ed) (1930) p117)."
23 In Hurd v The Queen (1988) 38 A Crim R 454 where the offender had suffered from a combination of brain damage, paranoia and intoxication from Valium and alcohol, Cox J said at 465:
"The dilemma in a case like this is to determine how much responsibility the mentally disordered applicant should bear. Ex hypothesi he is responsible for his actions - he has not reached that state where he is afflicted with mental disease to such an extent as to render him incapable of knowing that his act is one which he ought not to do, and his acts are voluntary and intentional. In respect of the third count, his plea acknowledged that they were in addition wilful. Nevertheless, the medical evidence clearly demonstrates that he had far less perception of the wrongness of his actions and less capacity to control his behaviour generally than a person unafflicted with any kind of mental disease. For that reason he should have been treated as far less morally responsible and deserving of less punishment."
24 In Scognamiglio (1991) 56 A Crim R 81 in which a sentence for attempted murder and two associated offences was considered by the Court of Criminal Appeal of New South Wales, Grove J, with whom Clarke JA and Newman J agreed, said at 84:
"That mental handicap, short of providing a defence on the ground of mental illness, is a basis for reduction of sentence has long been recognised: see eg Smith (1958) 75 WN (NSW) 198. Even if the offender is suffering from a condition which predicates further violence, the potential loss of reduced sentence on that account does not justify increase either for personal deterrence of the offender or general deterrence. Kocan [1966] 2 NSWR 565. The present is not a case where future misconduct is specifically feared."
(Page 9)
25 In his paper "Sentencing the Mentally Disordered Offender in Australia" in the International Journal of Law and Psychiatry, vol 4, at 107 - 122, 1981, Mr Ivan Potas wrote:
"Society is more likely to understand and excuse, and therefore less likely to blame a mentally disordered person who has committed a proscribed act than if that act were to be committed by a 'normal person'."
26 Having referred to the philosophies of Beccaria, Bentham and Montesquieu, Mr Potas quoted Sir Rupert Cross, who said:
"The infliction of punishment although tending towards crime reduction is unjustified if it is not also morally deserved." R Cross, 'The English Sentencing System' 1975, 118.
- Mr Potas said, at 122:
"Modern sentencing practice has allowed into this scheme of things an individualised approach enabling factors personal to the offender as well as factors relating to the circumstances of the particular offence to be taken into account. This individualisation has been imported into the system of sentencing for reasons of justice and humanity."
"Sentencers reserve the right to mitigate a sentence as an act of mercy or compassion. They also insist that mercy be granted in a principled way and not randomly. One justification for mitigation is that general deterrence needs to be given little weight because the mentally disordered offender is not 'an appropriate medium for making an example to others'." Mooney, Full Court of Victoria, unreported, 21 June 1978.
- Professor Fox continued:
"Sir George Lush, whilst on the Victorian Supreme Court, emphasised the moral basis of this approach when he said:
'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the
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- community'." Mooney, op cit. See also Anderson (1981) VR 155, 160 - 161.
28 In R v Champion (1992) 64 A Crim R 244, Kirby P considered the relevance of deterrence in the case of a person with an intellectual handicap. At 254, his Honour said:
"In Letteri [unreported, Court of Criminal Appeal, NSW, 18 March 1992], Badgery-Parker J (with the concurrence of Gleeson CJ and Sheller JA) said (at p 14):
'The principle … is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result [that] considerations of general deterrence are totally outweighed by other factors.'
The reason for this variation on the usual theme is not hard to find. It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child. Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the Judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates: see Roadley (at 343). It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."
(Page 11)
- See further R v Tsiaras [1996] 1 VR 398 per Charles, Callaway JJA and Vincent AJA at 400; R v Clarke [1996] 2 VR 520 per Charles JA at 116 - 118.
29 In Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February 1992, Malcolm CJ, with whom Seaman and Ipp JJ agreed, when dealing with an appeal involving a sentence for robbery in company when the appellant was said to be intellectually handicapped, said:
"In view of the conclusion which I have reached that the sentencing discretion miscarried, it falls to this Court to exercise that discretion anew. For that purpose we now have the advantage of a pre-sentence report together with a psychological report which has been obtained."
30 It is apparent from that last mentioned decision that where a sentencing discretion has miscarried, this Court may take notice of medical information which was not communicated to the learned sentencing Judge. In my view, in this case, the sentencing discretion did miscarry because, with the sentencing Judge being aware that there was something wrong with the applicant, the situation was not further investigated and was not taken into account in sentencing.
31 On the hearing of this application, the Court was provided with two reports. The first was a discharge summary from Graylands Hospital which reveals on its face that the applicant had been admitted to that hospital on 28 February 1997 and discharged on 5 March 1997. He had then further been admitted on 31 March 1997 and discharged on 21 April 1997. The final diagnosis on the front page of that summary is: "Adjustment disorder with depressed mood, 309.0."
32 In the body of the report under the heading "Past Psychiatric History", it is said that the applicant had been admitted in November 1996 "with similar diagnosis; also hanging attempt in 1996 and overdose. Polysubstance and alcohol abuse, but not recently."
33 It is also revealed in the body of the report that the applicant had presented to Alma Street Clinic on 28 March 1997 feeling depressed and suicidal again, intoxicated and wanting to return to Graylands.
34 The second medical report which was given to this Court is dated 25 November 1999 and reveals that the applicant has been a patient with
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- the Aboriginal Health Service since 1996. One of his persistent problems has been that of a depressed mood. The resport says:
"He has been diagnosed with major depression with some paranoid features. He has had several admissions to Graylands with discharge diagnoses, including adjustment disorder with depressed mood in 1997 and another admission in the same year with the same diagnosis and polysubstance use, mainly alcohol and cannabis. He has complained of suicidal thoughts on several occasions. He has been seen at Mirrabooka Psychiatric Clinic regarding his depression. He has been treated with anti-depressants."
"I have noted his depression in our medical file notes on the last two occasions I have seen him, namely 16/12/1998 and 4 March 1999. At the consultation on 16/12/1998 I noted that he was recovering from a stab wound to his abdomen. He had discharged himself against medical advice - probably in part related to his depression."
36 The final paragraph of that report states:
"In my opinion he remains at high risk of suicide and self-harm. For this reason I think a prison term would put him at risk. I do however recommend that he gets psychiatric help and probably some counselling on ways to help himself and control his drug use, emotions and behaviour."
37 The learned Judge in this case, whilst recognising that the applicant had apparently been diagnosed with bipolar affective disorder and had spent time in Graylands, stated that there was a need for a strong general deterrent sentence and a need for a specific deterrent sentence for the applicant "and a need to punish you for your crimes". His Honour apparently did not think there was any mitigation present due to the applicant's mental condition and, of course, he was not fully informed of the background in that regard.
38 I note that the applicant has been in prison since 7 September 2000, which is over 12 months and which, providing he was released when he became eligible for parole, is equivalent to a 3 year sentence. I would order that the sentence of 3-1/2 years be reduced to one of 18 months'
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imprisonment, with parole. The effect of that would be that, if the Parole Board agrees, he could be released on parole almost immediately.
39 ANDERSON J: I agree that the aggregate sentence of 3-1/2 years' imprisonment is too severe.
40 These were serious offences. They involved a violent attack on the complainant which was completely unprovoked by anything done by him. It would appear that the applicant simply suffered a fit of jealous rage in the mistaken belief that the complainant was responsible for the applicant's de facto leaving him. The applicant approached the complainant who was seated, called him a "dog" and pulled him up by the front of his shirt. There was a struggle, but the applicant, a powerful man, easily overcame the complainant's resistance and then hit the complainant in the face a number of times with his clenched fists, threw him to the ground, placed his knee on the complainant's chest and struck the complainant several more times in the face. The applicant then kicked the complainant in the head before another person intervened.
41 After this violent attack, the complainant was taken by one of his friends into his friend's flat. The complainant's eyes had been blackened and his face was bruised, and one of his teeth had been chipped.
42 As the complainant was being attended to in his friend's flat, the applicant smashed the lounge room window of the flat with his arm, reached inside and pushed over a bamboo shelf which was in front of the window, breaking a number of ornaments. He then moved to his right and pulled a metal security door off its hinges, entered the unit and chased the complainant into the kitchen, grabbed the complainant and struck him to the face with his fists. He then dragged the complainant by the shirt from the kitchen, through the lounge room to the outside of the front of the flat and struck the complainant again to the face. He then made off.
43 Although the applicant suffers a depressive illness, for which from time to time he requires institutional treatment, it is difficult to see any direct connection between that and the offending in question. The other point to be made is that the applicant's general condition is such that if he takes alcohol, he reacts badly to it. He knows this and he knows that he should abstain, but on the occasion in question he had been drinking.
44 On any objective view of the facts, this was a violent, unprovoked physical assault on a person unable to defend himself involving also a home invasion. The kicking of the complainant in the head while he was down and helpless was very dangerous and is a bad feature of the case. I
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agree with the sentencing Judge's comment that "assaulting a person occasioning them bodily harm and then breaking into another person's home in order to repeat the assault causing criminal damage in the meantime are acts of considerable violence which need strong deterrent action both generally and specifically".
45 The offences were not out of character. The applicant has a history of violent offences. In 1993 he was twice convicted of common assault and breach of a restraint order. In 1994 he was convicted of assault occasioning bodily harm and resisting arrest. In 1995 he was again convicted of assault occasioning bodily harm. In 1997 he was convicted of causing damage to property and in 1998 he was again convicted of causing damage to property.
46 In my opinion, however, the sentences imposed in this case were, in the aggregate, much too heavy. The applicant acted alone. There was little, if any, premeditation. The home invasion was part of the assault which had commenced outside. Violent though the attack was, the complainant suffered no lasting injury except for a chipped tooth. He was neither very young nor very old. No weapon was involved.
47 The learned sentencing Judge was right, with respect, to impose a significant custodial penalty, but the aggregate sentence should have been in the order of 18 months.
48 I agree with the orders proposed by Wallwork J.
49 EINFELD AJ: I also agree that the sentencing Judge fell into the error identified in the judgment of Justice Wallwork. I concur with the proposed substituted sentence of 18 months' imprisonment with parole.
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