SBJ v Brookes
[2019] WASC 143
•3 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SBJ -v- BROOKES [2019] WASC 143
CORAM: ARCHER J
HEARD: 19 FEBRUARY 2019 & FURTHER SUBMISSIONS FILED 28 FEBRUARY 2019
DELIVERED : 3 MAY 2019
FILE NO/S: SJA 1026 of 2018
BETWEEN: SBJ
Appellant
AND
NEIL BROOKES
First Respondent
TOMMY COLLINS
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE F ZEMPILAS
File Number : BUN 5680 of 2016
BUN 5684 of 2016
BUN 5682 of 2016
MGR 146 of 2016
MGR 146 of 2016
Catchwords:
Criminal law - Appeal against sentence - Manifest excessive - Suspended imprisonment - Mental illness
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 39, s 87(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | K C Cook |
| Second Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Samuels v The State of Western Australia [2005] WASCA 193
Bennier v Millar [2016] WASC 393
Corpus v Roseveare [2015] WASC 165
Gangemi v The State of Western Australia [2014] WASCA 39
Gaskell v The State of Western Australia [2018] WASCA 8
KWLD v The State of WA [No 4] [2013] WASCA 185
Lauritsen v The Queen [2000] WASCA 203
Law v The State of Western Australia [2009] WASCA 193
Ninyette v Holmes [2015] WASC 287
O'Brien v Narang [2018] WASC 376
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
SBJ v The State of Western Australia [2019] WASCA 32
Strahan v Brennan [2014] WASC 190
Suleiman v The State of Western Australia [2017] WASCA 26
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
ARCHER J:
Introduction
On 7 March 2018, the appellant was sentenced by her Honour Magistrate Zempilas in relation to nine offences. The learned magistrate imposed conditionally suspended terms of imprisonment in relation to five offences. The magistrate imposed no penalty in relation to the remaining four offences. The total effective sentence imposed was 8 months imprisonment, conditionally suspended for a period of 10 months.
The appellant seeks leave to appeal against the conditionally suspended terms of imprisonment.
The application for leave to appeal was ordered to be heard at the same time as the appeal.
Grounds of appeal
The single ground of appeal is that the sentence was manifestly excessive. This is, on its face, an assertion of implied error.
Despite the ground of appeal, the appellant did not contend that an implied error could be inferred from the sentences themselves. Rather, he contended, in his written submissions, that the learned magistrate had made the following express errors:
1.Her Honour erred in law by imposing a suspension period that was greater than the term of imprisonment imposed, contrary to s 81(2) of the Sentencing Act.
2.Her Honour erred in law by failing to back‑date the sentence completely.
3.Her Honour erred in law by failing to properly consider the appellant's efforts of rehabilitation.
4.Her Honour erred in fact and law by failing to properly consider the causal link [between] the appellant's mental illness [and the offences] in terms of its effect on moral culpability and the determination of the seriousness of the offending conduct.
The appellant represented himself in this appeal. Counsel for the respondents did not object to those alleged errors being argued, and indeed had addressed them in her written submissions. I advised the appellant that, if I considered that any of them had a reasonable prospect of success, I would add them as grounds of appeal.[1] In relation to the last two alleged errors, some amendment would be required to frame them as proper grounds of appeal.
[1] Criminal Appeals Act 2004 (WA), s 40(1)(k).
Further, I advised the parties that I would still consider the actual ground of appeal, even though the appellant had not made submissions in support of the ground. The respondents had also not addressed the ground in their written submissions, assuming it had been abandoned. Accordingly, I gave the parties leave to file further submissions in relation to any potentially comparable cases. The respondents filed further submissions, but the appellant did not.
In addition, at the commencement of the hearing of the appeal, the appellant sought leave to add a new ground of appeal. He submitted that, because the Court of Appeal had set aside a sentence imposed on him by the District Court,[2] he should be given more credit for time in custody than he received when he was sentenced by the magistrate. Counsel for the respondents pointed out that, to the extent this was relevant, it could be taken into account under s 14(5) of the Criminal Appeals Act 2004 (WA), without the need for an amendment to the Appeal Notice. Section 14(5) permits the court to have regard to any relevant matter that has occurred between when the appellant was convicted and when the appeal was heard. After hearing from the appellant orally, I gave the appellant leave to file submissions on the issue of time in custody and the respondents leave to file responsive submissions. The appellant advised that he was content to have the issue determined on the papers without a further oral hearing.[3] The appellant did not file written submissions on the issue and, as a result, the respondents did not file responsive submissions.
[2] SBJ v The State of Western Australia [2019] WASCA 32.
[3] ts 13 ‑ 14.
In the Court of Appeal judgment, the appellant's name was anonymised because one of his grounds of appeal involved alleged assistance to law enforcement authorities. As it is necessary to refer to the Court of Appeal decision in these reasons, the appellant's name has also been anonymised in this judgment.
Finally, I record my appreciation for the conduct of the respondents' counsel. Although the appellant was very articulate, he was unrepresented. Ms Cook did not object to the appellant being given leave to argue the matters that were not covered by the ground of appeal in his Appeal Notice, or to add the new ground, or, as discussed later, to adduce new evidence. In the circumstances, this was very fair and facilitated the process considerably.
The offences and sentences
Attached to these reasons as Annexure A is a table setting out the details of each of the five offences for which the appellant received a penalty on 7 March 2018.[4] In these reasons, I will refer to those offences collectively as 'the Five Offences'.
The facts
[4] The table was helpfully provided by counsel for the respondents.
The first two offences, of criminal damage and trespass, occurred at the same time, on 9 March 2016. On that day, the appellant went to the Karriview Lodge in Cowaramup and inquired about accommodation. He decided against staying there as the cost was too high. Despite this, he went into several unoccupied rooms, without the consent of the proprietors. The appellant caused considerable damage in the rooms, including pulling a television from its glass wall mount, which smashed the wall mount and damaged the television screen. He forced a bedside lamp through a balcony window causing it to smash. He also slept in one of the rooms. The cost of repairing the damage, cleaning the rooms and replacing items was approximately $5,000.
The remaining three of the Five Offences were burglary offences of being in the place of another without consent and committing an offence. In each case, the offence committed was stealing. The appellant was separately charged with stealing in each case. The learned magistrate, rightly with respect, did not impose a penalty in relation to the stealing offences.
All three burglaries occurred on 17 September 2016.
In relation to the first, the appellant went into the Caves House Hotel in Yallingup through a guest door. He went into the lounge area and stole various items of electronic equipment.
The second burglary occurred when the appellant went to a building which housed the ticket office and shop of the Ngilgi Cave tourist attraction in Yallingup. He forced open a wall‑mounted safe next to the rear door which contained spare keys. He then used the keys to enter the building. He stole a hand‑held EFTPOS machine from the shop area.
The third burglary occurred when, about an hour later, the appellant went back to the Ngilgi Cave tourist attraction, getting into the building using the keys he had already stolen. On this occasion, he stole various items of electronic equipment from the office area.
Sentences
The learned magistrate imposed conditionally suspended terms of imprisonment of 6 months in relation to the three burglary offences. Her Honour imposed a conditionally suspended term of imprisonment of 2 months in relation to each of the criminal damage and trespass offences. The penalty for the criminal damage was made cumulative, and each other penalty was concurrent. The total effective sentence was 8 months imprisonment, conditionally suspended for a period of 10 months.
Appeals from magistrates' decisions
Section 8(1) of the Criminal Appeals Act permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[5]
[5] Criminal Appeals Act, s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[6] This means that the ground is required to have a real, rational and logical prospect of succeeding.[7]
[6] Criminal Appeals Act, s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[8] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[9]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[8] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[9] Strahan v Brennan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[10] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[11]
[10] Ninyette v Holmes [2015] WASC 287 [56.3].
[11] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
Consideration
Suspension period
The appellant alleged that the magistrate erred by imposing a suspension period that was greater than the term of imprisonment imposed, contrary to s 81(2) of the Sentencing Act 1995 (WA). In effect, the appellant submitted that 10 months imprisonment would not have been an appropriate sentence and therefore the magistrate erred in suspending the sentence for 10 months.
Section 81(2) provides:
CSI is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
'CSI' means conditionally suspended imprisonment imposed under pt 12 div 1 of the Sentencing Act.[12]
[12] Definition in s 4 of the Sentencing Act.
Her Honour did not breach s 81(2).
The appellant appeared to misunderstand the different components of conditionally suspended terms of imprisonment. In simple terms, there is the period of time during which, if the offender breaches a CSI requirement or commits a relevant offence, the offender will be liable to be sent to jail for the original offence (risk period). There is also the length of time that the offender will have to spend in jail (jail period) if he or she breaches a CSI requirement or commits a relevant offence during the risk period. One is the period of risk of being sent to jail, the other is the length of time in jail.
The appellant was not liable to spend 10 months in jail for the Five Offences. He was liable to spend 8 months in jail, if he breached a requirement of the CSI or committed a relevant offence, in the 10 month period following the sentencing date.
If the alleged error had been made a ground of appeal, it would have had no reasonable prospect of success and I would not have given leave to appeal on this ground.
Back‑dating
The appellant alleged that the magistrate erred by failing to back‑date the sentence.
As a matter of law, it was not open to the magistrate to back‑date the commencement of the conditionally suspended imprisonment.[13]
[13] SBJ [136].
The magistrate gave the appellant credit for the time he had spent in custody. His counsel in the sentencing proceedings advised the magistrate that the appellant had spent 50 days in custody in relation to the matters before her Honour.[14] Her Honour gave the appellant credit for approximately two months.[15]
[14] Transcript of the sentencing proceedings before the magistrate on 7 March 2018 (Sentencing transcript) page 21. See also pages 23 ‑ 24.
[15] Transcript of the sentencing remarks of the magistrate on 7 March 2018 (Sentencing remarks) page 5.
If the alleged error had been made a ground of appeal, it would have had no reasonable prospect of success and I would not have given leave to appeal on this ground.
Rehabilitation
The appellant alleged that the magistrate erred in law by failing to properly consider his efforts to rehabilitate himself. The appellant supported this submission by, in effect, submitting:
(a)he had completed programs in prison;
(b)the completion of those programs suggested that personal deterrence might be of less importance than usual;
(c)the magistrate did not take that into account, as her Honour did not mention that the programs were mitigating; and
(d)the magistrate did not give notice that she was not prepared to act on that mitigating factor, contrary to what was said in Law v The State of Western Australia.[16]
[16] Law v The State of Western Australia [2009] WASCA 193 [32].
In relation to the programs, the appellant referred to par 6 of the written submissions filed on his behalf for the sentencing (Sentencing Submissions).[17] That paragraph stated 'The Offender has completed prison programmes'. The Sentencing Submissions gave no details of such programs, did not assert that the appellant had made efforts to rehabilitate himself and did not contend that any mitigation arose from rehabilitation. The Sentencing Submissions expressly addressed matters of mitigation and the relevance of general deterrence. They said nothing about personal deterrence.
[17] Sentence Submissions filed on behalf of [the appellant] dated March 2018.
In oral submissions in the sentencing proceedings, the appellant's counsel did not submit that the appellant should be given credit for attempts to rehabilitate himself or that personal deterrence was of less importance than usual because of the courses he had completed, or for any other reason.
Her Honour was aware that the appellant had completed courses while in custody.[18]
[18] Sentencing remarks page 5.
To the extent that the appellant's completion of programs had any mitigating effect, it was minimal.
In the circumstances, it cannot be inferred from the magistrate's failure to mention the programs that her Honour failed to take them into account in the sentencing process.
Further, it was open to her Honour to conclude that there was a need for personal deterrence.
Her Honour noted that the appellant asserted that his substance misuse issues 'were in the past'. Her Honour said she found it hard to accept this was entirely accurate, noting that one of the offences she was dealing with involved possession of methamphetamine, which had been found in the appellant's wallet on 8 February 2016.[19] Her Honour's observations are supported by a report of Dr Bala.[20]
[19] Sentencing remarks pages 3 ‑ 4 and Sentencing transcript page 20.
[20] Dr Bala's report, dated 3 November 2017, was to the District Court, but was part of the materials before the magistrate. See Dr Bala's report [7], [17] ‑ [18] and [31]. (While it is immaterial to the point, it appears that the 2016 offence to which he refers was not one of the offences before the learned magistrate in this case. Dr Bala records that the drug in that offence was found in a bag. The drug offence before her Honour was found in the appellant's wallet. It seems likely that the 2016 offence referred to by Dr Bala was the one that was dealt with in Busselton on 13 September 2016.)
Her Honour considered that the Five Offences warranted terms of imprisonment. However, her Honour said that a conditional suspended imprisonment order would give the appellant the support to continue the mental health treatment that had been given to him in custody and the support to 'start really accepting your situation and start showing responsibility for it in the community, and enjoying potentially some years while you're not on that endless cycle in and out of prison'.[21]
[21] Sentencing remarks page 4.
The available evidence indicated that the appellant had previously not been compliant with his medication. Dr Bala reported that, on his release from custody (in July 2015), the appellant stopped taking medications due to their side effects, and had intermittently taken oral antipsychotic medications.[22] This was a choice made by the appellant. Dr Bala said that the appellant was stable on his release from custody and had been made aware of the need to stay on the medication, but that he chose not to do so.[23] Further, as will be seen, the new evidence adduced by the appellant was to similar effect.
[22] Dr Bala's report [21]. See also [37(c)] and [38(b)].
[23] Dr Bala's report [38(b)].
In Law, the court said that a sentencing court is obliged to give notice to an offender if it is not prepared to act on an alleged matter of mitigation which is unchallenged by the prosecution. The magistrate did not breach this requirement. It was not alleged that personal deterrence was of less importance than usual because of the courses the appellant had completed, or for any other reason. Similarly, it was not alleged that the appellant had made efforts to rehabilitate himself or that this was a mitigating factor.
I therefore do not accept the appellant's submissions on this matter. If the alleged error had been reframed as a proper ground of appeal and added as a ground, it would have had no reasonable prospect of success and I would not have given leave to appeal on such a ground.
Mental illness
The appellant alleged that the magistrate erred in fact and law by failing to properly consider the causal link between the appellant's mental illness and the offences in terms of its effect on moral culpability and the determination of the seriousness of the offending conduct.
It is not in dispute that the appellant suffers from a mental illness, being chronic paranoid schizophrenia. The issue in dispute is whether the magistrate made the error alleged.
Did the magistrate err?
It is well‑settled that mental illness may reduce an offender's moral culpability. However, before it can do so, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence. The offender must prove that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour.[24]
[24] Suleiman v The State of Western Australia [2017] WASCA 26 [60].
The appellant did not prove this in the sentencing proceedings before the magistrate. Indeed, his counsel in the sentencing proceedings conceded that the evidence did not establish a causal link.
The District Court report
Part of the materials before the learned magistrate included the previously mentioned report of Dr Bala. The report had been prepared for the District Court in relation to an offence for which the appellant was to be sentenced in that court - an aggravated burglary and commit offence in a dwelling (District Court offence).
The circumstances of the District Court offence were strongly suggestive of psychosis.[25] The facts of the District Court offence were as follows. The appellant turned off the power at the Quality Inn and then knocked on the door of one of the rooms. He was holding a framed painting and was in a highly agitated state. He told the occupants that there were people outside trying to kill him. He picked up a nearby mug which contained a number of teaspoons and began throwing the items down the corridor. He yelled at the occupants to call the police, and the female occupant did so. He became further agitated when the male occupant tried to calm him down. The appellant picked up a wine bottle and began to swing it around in a threatening manner towards the male occupant.
[25] The transcript of the District Court sentencing on 16 January 2018 (District Court transcript) was provided to the magistrate by way of an annexure to the Sentencing Submissions. See, in particular, page 108 of the District Court transcript.
Dr Bala's opinion was that the appellant was mentally unwell at the time of the District Court offence. He said that the appellant's psychotic symptoms had a direct bearing on the offending behaviour.[26]
[26] Dr Bala's report [6].
It was not in dispute in the District Court that the appellant was suffering from a severe psychosis at the time of embarking on the District Court offence.[27]
Exchange with counsel
[27] District Court transcript pages 110 ‑ 111.
The learned magistrate specifically asked the appellant's counsel in the sentencing proceedings to identify what he said was the mitigatory effect of the appellant's mental illness. Her Honour noted that Dr Bala's report addressed the question of whether there was a causal link between the appellant's mental illness and the offence before the District Court. Her Honour noted that the report did not address the Five Offences. Her Honour then said:[28]
And by their nature, [the Five Offences] don't necessarily suggest behaviour that … was occurring under psychosis. They seemed to be more driven by perhaps … funding drug use or getting money for that, or … getting accommodation when it couldn't be afforded. So do you say that there's material that I should take into account that suggests some particular mitigation?
[28] Sentencing transcript page 24.
The appellant's counsel in the sentencing proceedings responded that the available material did not permit him to submit that there was a causal link between the appellant's mental illness and the Five Offences.[29]
Evaluation
[29] Sentencing transcript pages 24 ‑ 25.
I agree with her Honour that the circumstances of the Five Offences did not suggest behaviour occurring under psychosis. By contrast, the circumstances of the District Court offence were strongly suggestive of psychosis.
In her sentencing remarks, her Honour said that she accepted that the appellant had an underlying mental illness that may make his judgment impaired at times. However, her Honour noted that the appellant's mental illness did not appear to have had any direct link with any of the Five Offences.[30]
[30] Sentencing remarks page 2.
There was no expert evidence before the magistrate of any causal link, and the circumstances of the Five Offences did not suggest a causal link. The appellant's counsel conceded the evidence did not permit him to submit that there was a causal link.
Her Honour did not err in failing to find a causal link.
If the alleged error had been made a ground of appeal, it would have had no reasonable prospect of success and I would not have given leave to appeal on this ground.
New evidence
The appellant's submissions on the appeal referred to an expert report of Dr Brett. The learned magistrate did not have Dr Brett's report. Accordingly, the magistrate cannot be criticised for not having regard to it.
The appellant did not provide a copy of Dr Brett's report on this appeal and the respondents did not have a copy of it. Dr Brett's report was privately commissioned by the appellant's previous solicitors to assess the appellant's fitness to plead and mental state at the time of the District Court offence. The District Court was able to provide a copy of Dr Brett's report to this court.
The appellant did not make an application to adduce new evidence. However, he was unrepresented. Counsel for the respondents did not object to the appellant being given leave to adduce Dr Brett's report as new evidence.
Dr Brett's report was dated 12 January 2017. He set out the appellant's account of the offences he committed in March 2016 to September 2016, including what the appellant told him about the Five Offences.
In relation to the trespass and criminal damage offences, Dr Brett wrote:[31]
He stated that this offence occurred at Karri Valley Resort. He stated that he was experiencing auditory and visual hallucinations. He described conversing with 'an old lady' who had told him he could stay. He also believed that he had seen ghosts.
[31] Dr Brett's report [4].
In relation to the three burglary offences, Dr Brett wrote:[32]
[The appellant] stated that he believed that his car had been hidden in some caves. He stated that he believed that it had been stolen. He described some ongoing beliefs about a conspiracy and the 'Pepsi drinking program'.
[32] Dr Brett's report [19].
Dr Brett summarised the appellant's previous psychiatric history. This included that the appellant had achieved sustained remission from his condition while in custody. However, in April 2013, after he had been released from custody, he stopped taking his antipsychotic medication (due to side effects) and started to relapse. He reoffended and was returned to prison.[33] At some time after his next release, the appellant reduced and then stopped his medication altogether.[34]
[33] Dr Brett's report [27].
[34] Dr Brett's report [32].
Dr Brett said that, during his interview with the appellant:[35]
[The appellant] appeared to have insight into his mental health, his offending behaviour and his treatment needs. However, his previous behaviour does not reflect this and it appears that he quickly loses insight when he is unwell.
My clinical impression was that the appellant remained somewhat guarded and concerned about the input of mental health services. I do not believe that he was [sic] intellectual insight into his mental health and remains a long term risk of non‑compliance.
[35] Dr Brett's report [49] ‑ [50].
Dr Brett said:[36]
I believe that his past behaviour and personality characteristics are consistent with antisocial personality traits. This is closely linked to his psychosis, however, I do not believe that his psychosis alone explains his behaviour.
[36] Dr Brett's report page 11 [4].
In relation to the various offences the appellant was then facing, Dr Brett said that the District Court offence had 'the best information'. In his opinion, the appellant was psychotic at the time of committing that offence. Dr Brett said:[37]
The evidence for this was from his history, the witness statement, the police video and his subsequent psychiatric assessment in prison. It appears that he was acting secondary to his psychotic phenomena. He believed that he was participating in a game and that the other participants were trying to kill him.
Evaluation
[37] Dr Brett's report page 11 [6].
The appellant was represented by counsel in the sentencing proceedings before the magistrate. His counsel had also acted for him in the District Court sentencing two months earlier. His counsel accepted that the material before the magistrate did not indicate a causal link between the appellant's mental illness and the Five Offences. His counsel did not tender Dr Brett's report and did not seek an opportunity to obtain any other evidence.
The circumstances of the District Court offence were bizarre. They strongly indicated the appellant was acting in direct response to psychotic delusions. The circumstances of the Five Offences did not.
The three burglary offences appeared to have been conducted methodically and with some deliberation. In particular, the breaking of the outdoor safe to obtain the keys in the second of the burglaries indicated a level of rationality and planning. The motivation for the three burglary offences appeared to have been financial gain.
In relation to the first two of the Five Offences, the trespass and criminal damage, financial gain did not appear to be the motivator, other than a free night of accommodation. In addition, the damage appeared wanton. However, there was nothing in the circumstances to indicate the appellant's mental illness contributed to his conduct.
In the appellant's account to Dr Brett of the Five Offences, the appellant asserted that he was affected by his mental illness. I would not accept that at face‑value for two reasons.
First, the appellant's claim that he ceased using illicit drugs in 2009 is inconsistent with his criminal history. He has two convictions for simple drug offences committed on the same date in July 2013 (possession of a prohibited drug and possession of drug paraphernalia) and two convictions of possessing a prohibited drug committed on two different dates in 2016. One of these was one of the offences before the learned magistrate on 7 March 2018.
Second, the appellant's account of the burglary offences does not sit well with what he actually did in those three instances.
That said, the first two of the Five Offences, the criminal damage and the trespass, were committed two days before the appellant committed the District Court offence, when he was clearly unwell. The last three of the Five Offences were committed five months later. Given the appellant's history of poor compliance with medication when in the community, it is likely he was unwell then too.
This of course does not establish a causal link. Given I could not accept the appellant's account to Dr Brett at face value, I considered whether it was necessary to give the appellant the opportunity to seek to prove his account was genuine and to prove that there was a causal connection. I have concluded that it is not necessary, as it would make no difference. This is because, even if there was a causal link between any or all of the Five Offences and the appellant's mental illness, it would not have an overall mitigating effect.
In my view, if a causal connection did exist, the mitigating value of this would be entirely offset by the need to protect the community.[38] The appellant's mental illness is chronic and he has repeatedly been non‑compliant with his medication when in the community. He has limited insight. He has not abstained from using illicit substances, at least not entirely. He has an extensive criminal history. I accept Dr Bala's opinion that his risk of reoffending is moderate to high.[39]
Manifest excess
[38] KWLD v The State of Western Australia [No 4] [2013] WASCA 185 [127]; Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [50]. See also Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 [41] and Suleiman [62].
[39] Dr Bala's report [40(b)].
A ground of appeal that alleges a sentence was manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[40]
[40] Gaskell [127(1)].
In determining whether a sentence is manifestly excessive, the sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.[41]
Maximum penalties
[41] Gaskell [127(2)].
The maximum penalty for the burglary offences is 14 years imprisonment. The maximum summary conviction penalty is 2 years imprisonment and a fine of $24,000. A summary conviction penalty is a jurisdictional limit, but regard may be had to the maximum statutory penalty even though the offender cannot be given a penalty that exceeds the jurisdictional limit.[42]
[42] Wiltshire v Mafi [2010] WASCA 111 [26] ‑ [33].
The maximum penalty for criminal damage is 10 years. The maximum summary conviction penalty is 3 years imprisonment and a fine of $36,000.
The maximum penalty for trespass is 12 months imprisonment and a fine of $12,000.
Comparable cases
Ordinarily, a substantial penalty is imposed for burglary. However, due to the widely differing circumstances in which burglaries occur, there is no tariff for the offence.[43]
[43] Gangemi v The State of Western Australia [2014] WASCA 39 [19].
For similar reasons, there is no established range of sentences for criminal damage.[44]
[44] Corpus v Roseveare [2015] WASC 165 [50] (Hall J).
There are few decisions in relation to the offence of trespass and a customary range of sentencing cannot be discerned. Short terms of imprisonment have been found to be appropriate.[45]
Seriousness of the offences
[45] Bennier v Millar [2016] WASC 393 [27]. See also O'Brien v Narang [2018] WASC 376 [55] ‑ [56].
The facts of each offence are set out above.
The burglary offences were not committed in a dwelling or in circumstances of aggravation. However, this is why the maximum penalty is 'only' 14 years imprisonment for these types of burglaries. The burglary offences were serious examples of this type.
The damage was particularly serious, causing a significant cost. The trespass was part of the same offence (and appropriately dealt with by a concurrent penalty).
Personal circumstances
The appellant pleaded guilty at the first reasonable opportunity. He spent 50 days in custody in relation to these offences.
The appellant suffers a significant mental illness, being chronic paranoid schizophrenia. He has previously not been compliant with his medication.
The appellant's use of illicit drugs is longstanding. His claim to have ceased using illicit drugs in 2009 is inconsistent with his criminal history.
The appellant has limited community support.[46]
[46] Sentencing remarks page 4.
The appellant was not considered suitable for community supervision[47] by the author of the pre‑sentence report. The author of the report for the District Court offence, which report her Honour also had,[48] had expressed the same view.
[47] Sentencing remarks page 4.
[48] Sentencing transcript page 21.
The appellant does not have the mitigating factors of youth or good antecedents. He has an extensive criminal record. His record includes convictions for 16 burglaries, multiple dishonesty offences, simple drug offences, an assault occasioning bodily harm and arson. He has breached bail, an ISO, a CBO, a suspended sentence and parole. He has never successfully completed a community supervision order,[49] although, as the learned magistrate noted, his last opportunity was 10 years ago.[50] He has been sentenced to numerous terms of imprisonment.
[49] In relation to parole breaches, these are set out in the pre‑sentence report page 2.
[50] Sentencing remarks page 4.
The appellant is at a moderate to high risk of reoffending.
It is for the appellant to establish the sentences were, or total sentence was, manifestly excessive. I am not satisfied of this. On the contrary, I consider, with respect, that each sentence was well within the range of an appropriate disposition, as was the total sentence.
Time in custody
As was noted earlier, the appellant argued that, because the Court of Appeal set aside the sentence imposed by the District Court,[51] he should be given credit for more time in custody.
[51] SBJ.
The appellant was sentenced in the District Court on 16 January 2018. The learned Chief Judge imposed a partly suspended sentence. His Honour took into account the time the appellant had spent in custody, and back‑dated the sentence to 2 July 2016.[52]
[52] District Court transcript page 116.
The appellant submitted, in effect, that because the Court of Appeal had set aside the District Court sentence, he had lost the benefit of the back‑dating that took into account his time in custody prior to being sentenced for the District Court offence. He submitted that this time in custody should be taken into account in relation to the Five Offences.[53] He submitted that there was no express reference in the Court of Appeal judgment 'to a backdating of sentence or taking [his time in custody] into consideration in terms of s 87'[54] of the Sentencing Act. The appellant argued that 'nowhere does it say that the time served was actually considered'.[55]
[53] ts 11.
[54] ts 3. See also ts 5. Section 87 of the Sentencing Act relevantly permits a sentencing court to take into account time spent in custody in respect of the offence for which the offender is being sentenced or in respect of another offence while on bail for the offence for which the offender is being sentenced.
[55] ts 4.
The Court of Appeal set aside the District Court sentence because it held that there was no power to back‑date a partly suspended sentence.[56] Having set it aside, the Court of Appeal resentenced the appellant. In doing so, the Court of Appeal expressly took into account the time spent in custody. It was the reason the court decided to suspend the term of imprisonment it imposed.[57]
[56] SBJ [139].
[57] SBJ [142] ‑ [144].
I therefore do not accept that the appellant should be given additional credit for time in custody.
Conclusion
I grant leave to appeal on the sole ground of appeal but dismiss the appeal.
ANNEXURE A
Table of offences and penalties
| Charge Number | Date | Charge | Summary conviction penalty | Sentence |
| MGR 145/16 | 09.03.2016 | Criminal damage s 444(1)(b) Code | 3 years' imp/ $36K fine | 2 months' imp cumulative conditionally suspended for 10 months |
| MGR 146/16 | 09.03.2016 | Trespass s 70A(2) Code | 12 mths imp/ $12K fine | 2 months' imp concurrent conditionally suspended for 10 months |
| BUN 5680/16 | 17.09.2016 | Burglary & commit offence in place s 401(2)(c) Criminal Code 1913 (WA) | 2 years' imp/ $24K fine | 6 months' imp concurrent conditionally suspended for 10 months |
| BUN 5684/16 | 17.09.2016 | Burglary & commit offence in place s 401(2)(c) Code | 2 years' imp/ $24K fine | 6 months' imp concurrent conditionally suspended for 10 months |
| BUN 5682/16 | 17.09.2016 | Burglary & commit offence in place s 401(2)(c) Code | 2 years' imp/ $24K fine | 6 months' imp concurrent conditionally suspended for 10 months |
| TES: 8 months' imprisonment conditionally suspended for 10 months | ||||
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Archer2 MAY 2019
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