SKL v The State of Western Australia
[2024] WASCA 32
•27 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SKL -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 32
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 9 FEBRUARY 2024
DELIVERED : 27 MARCH 2024
FILE NO/S: CACR 66 of 2023
BETWEEN: SKL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 2133 of 2022
Catchwords:
Criminal law - Appeal against sentence - Whether sentence was manifestly excessive - Where the appellant's mental illness impaired her ability to control her actions - Reduction of moral culpability - Protection of the community
Legislation:
Criminal Code (WA), s 27, s 304(2)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | S H King & F E Sellers |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bogers v The State of Western Australia [2020] WASCA 174
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433
Cheeseman v The State of Western Australia [2023] WASCA 78
Chikonga v The State of Western Australia [2017] WASCA 34
Coutts v The State of Western Australia [2023] WASCA 38
Forrest v The State of Western Australia [2019] WASCA 172
Gleeson v The State of Western Australia [2019] WASCA 100
Gomboc v The State of Western Australia [2023] WASCA 115
Hayward v The State of Western Australia [2020] WASCA 57
Hill v The State of Western Australia [No 2] [2022] WASCA 149
Hinkley v The State of Western Australia [2014] WASCA 122
Kabambi v The State of Western Australia [2019] WASCA 44
Kaokula v The State of Western Australia [2016] WASCA 198
Lawrence v The State of Western Australia [2015] WASCA 187
Lindsay v The State of Western Australia [2010] WASCA 142
McAllister v The State of Western Australia [2017] WASCA 183
Meadowcroft v The State of Western Australia [2023] WASCA 98
Penny v The State of Western Australia [2016] WASCA 52
Sophiadakis v The State of Western Australia [2016] WASCA 203
Starr v The State of Western Australia [2011] WASCA 170
Swift v The State of Western Australia [2024] WASCA 23
The State of Western Australia v Darroch [2018] WASCA 114
Ugle v The State of Western Australia [2018] WASCA 16
Vander Waide v The State of Western Australia [2019] WASCA 148
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
MAZZA & HALL JJA:
Much of the relevant background, including the facts of the offending, the appellant's personal circumstances, the expert psychiatric evidence, the sentencing remarks, and the parties' submissions in this appeal, is contained in the reasons of Vandongen JA. These reasons assume familiarity with those reasons.
His Honour has held that while the sentence of 4 years 4 months' immediate imprisonment for the offence committed by the appellant is high, it is not manifestly excessive. We have reached a different conclusion. With great respect to the sentencing judge, who was faced with a complex and difficult task, in our opinion the sentence imposed was manifestly excessive. We would allow the appeal and resentence the appellant to 3 years 3 months' immediate imprisonment, with eligibility for parole, backdated to commence on 16 August 2022.
The offending and the impact on the victim
Without question, the appellant's offending conduct was very serious. The victim was vulnerable and, as her victim impact statement vividly describes, she has suffered physically, psychologically, and financially. Further, the appellant's actions had the potential to cause even more serious injury or the victim's death.
The mitigating circumstances apart from the appellant's mental health
Putting to one side, for the moment, the appellant's mental health issues, there were a number of substantial mitigating factors. The sentencing judge found that the appellant:[1]
(a)cooperated with police by making full and frank admissions when interviewed;
(b)pleaded guilty at the earliest reasonable opportunity, for which she received a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA);
(c)had no prior criminal record and was a person of prior good character;
(d)was genuinely remorseful for her offending; and
(e)had taken steps towards her rehabilitation after her arrest, and her prospects of rehabilitation were enhanced by the significant family support she has.
[1] ts 55 - 56.
The appellant's mental health
It is not disputed that at the time of the commission of the offence the appellant was suffering from anorexia nervosa and obsessive‑compulsive disorder. Her obsessive‑compulsive disorder is of central importance in this case. It was this disorder which drove her irrational and obsessional belief that to save herself from killing her husband, her children, and herself, she had to stab someone else and then act upon it in the way she did. Absent this disorder, the appellant would not have committed the offence.
The psychiatric evidence
The expert psychiatric evidence before the sentencing judge comprised of two reports prepared by Dr Gosia Wojnarowska, an experienced forensic psychiatrist who was retained by defence counsel at sentencing. Dr Wojnarowska's main report is dated 12 March 2023. Her second report is dated 27 April 2023 and is headed 'Addendum Psychiatric Report'. The contents of these reports were largely unchallenged by the State.
In her report dated 12 March 2023, Dr Wojnarowska described the characteristic symptoms of obsessive‑compulsive disorder. That description is set out in [77] of Vandongen JA's reasons and need not be repeated.
In the same report, Dr Wojnarowska expressed the opinions set out at [79] of Vandongen JA's reasons.
Dr Wojnarowska addressed the criteria for the defence of insanity in s 27(1) of the Criminal Code (WA) (the Code).[2] She found that while the appellant was not deprived of the capacities to understand what she was doing and to know that she ought not do the act that constituted the offence, her ability to control her actions was significantly impaired by the presence of her serious and pre‑existing mental illness (her obsessive‑compulsive disorder).[3] Dr Wojnarowska noted that the appellant did not exhibit any antisocial attitudes, had no history of previous violence or substance misuse, and her actions on the day were directly related to the presence of her mental illness, which was treatable.[4]
[2] The appellant did not seek to avail herself of a defence under s 27(1) of the Code. Accordingly, the appellant was sentenced on the basis that she was not legally insane at the time of the offending. It was not suggested, either at first instance or on appeal, that a defence under s 27(1) of the Code was available.
[3] Report of Dr Wojnarowska, 12 March 2023, pars 56 - 57.
[4] Report of Dr Wojnarowska, 12 March 2023, par 57.
Further, Dr Wojnarowska noted that in interviews she conducted with the appellant on 12 September and 12 October 2022, the appellant had continued to have intrusive thoughts of the kind and with the intensity that led to her offending.[5] However, in her subsequent addendum report dated 27 April 2023, Dr Wojnarowska reported on the appellant's obsessional thoughts following an interview conducted on 11 April 2023.[6] In Dr Wojnarowska's opinion, the appellant's obsessional thoughts had abated to the point where the appellant's risk to others '[had] markedly reduced'. Dr Wojnarowska wrote:[7]
[5] See [75] and [76] of the joint reasons.
[6] Incorrectly dated 11 April 2024 in Dr Wojnarowska's report.
[7] Dr Wojnarowska's report, 27 April 2023, pars 3 - 10.
3.[The appellant] confirmed that she has been relocated to a main stream unit at the Bandyup Prison and has continued with her treatment with medications. She engages in regular reviews conducted by the mental health team. [The appellant] reported that her mental state is currently stable, and she is engaging in psychological counselling.
4.[The appellant] reported that she has continued to experience obsessional thoughts, albeit to a lesser degree of frequency or intensity, which she is addressing through therapy. The content of the thoughts relates to self harm rather than any violent thoughts directed to others. She manages those thoughts without having to resort to compensatory compulsive behaviours. She is not currently having symptoms of anxiety around gaining weight and her calorie intake is adequate.
5.[The appellant] appeared to have developed a good insight into the fact that stabbing a stranger in order to save her children was driven by an irrational belief. She was accepting and understanding that she would require ongoing assertive management of her mental illness and compliance was crucial to her stability.
6.Her current medications are Clomipramine (an antidepressant routinely used to treat Obsessive‑Compulsive Disorder) supplemented by, Mirtazapine, an antidepressant that facilitates sleep and Prazosin, used to treat [her] PTSD symptoms (nightmares) and anxiety.
7.Her mood has improved, and she reportedly engages well with staff and other prisoners. She has gained employment in the library and made future plans to study when she is released. She denied any thoughts of harm to others, with the last occasion being four weeks prior to the interview. However, she continues to occasionally self harm.
8.She maintains close contact with her husband, children and parents who remain supportive of her and reportedly understand that she would require an indefinite at this stage treatment by the mental health services.
Summary and Recommendations
9.In my view, [the appellant's] risk to others has markedly reduced for the reasons outlined above. She has gained an insight into her condition and associated symptoms which paired with close, pro‑social family and lack of antisocial attitudes constitutes a good prognosis. I understand that she is willing to continue with treatment and her mental health would be managed in the community by the local mental health services.
10.If the court considers that an appropriate sentence would include a period of parole, I respectfully recommend that [the appellant] undergo a psychiatric review prior to her release with a report being provided to the Parole Board.
Dr Wojnarowska described the history of the disorders suffered by the appellant, and the treatment she received for them. It is clear that the appellant has suffered from the disorders for much of her life, and continues to do so. As mentioned, both disorders are treatable. At and before the time of the offending the appellant was receiving treatment for her disorders, including her obsessive‑compulsive disorder. Her mental health was being managed by one of the metropolitan community mental health services. Dr Wojnarowska reported that in the five months prior to the commission of the offence the appellant described her symptoms as worsening. Despite this, in the three weeks immediately prior to the offence her anti‑anxiety medication was reduced, twice. In her plea in mitigation, Ms Farley SC, defence counsel at sentencing, informed the sentencing judge that the appellant's symptoms tended to escalate when the appellant's medication was changed, and her history revealed that previously she would be hospitalised when a change occurred.[8] Senior counsel's statements from the bar table were not challenged by the prosecutor or the sentencing judge. No explanation was given as to why the appellant's medication was reduced during a period when she considered her symptoms to be worsening, or as to why she had not been hospitalised for the adjustment period. However, it appears that around the time of the offending, and through no fault of the appellant, her psychiatric care was suboptimal.
[8] ts 20.
The sentencing remarks
The appellant does not allege that the sentencing judge made any express error of fact or principle. We note two aspects of the sentencing remarks relevant to the appellant's mental illness, both of which are referred to in Vandongen JA's reasons. First, the State took issue with Dr Wojnarowska's opinion that the appellant's ability to control her actions was significantly impaired at the time she committed the offence. The State submitted, and his Honour ultimately found, that the appellant's ability to control her actions was impaired but not significantly impaired by her mental illness. His Honour's explanation for accepting the State's submission is set out at [87] of Vandongen JA's reasons.
We share the reservation expressed by Vandongen JA at [88] of his reasons, that it is not apparent why the appellant's capacity to control her actions was undermined by the fact that she was able to form an intention to harm the victim, or because she was able to appreciate the wrongfulness of her actions.
The second aspect arises from the portion of the sentencing remarks where his Honour elaborated on his finding that one of the main sentencing considerations was the protection of the community. His Honour said:[9]
I am satisfied there is a significant need to protect the community. I accept that although you initially told Dr Wojnarowska the job was not done and that if you were released you would kill your husband, your children and yourself, those issues have abated by virtue of what I've seen in the addendum report, but I do find there is still a significant need to protect the community. The fact that you got yourself into this state and these are the obsessional thoughts you had led you to commit this act with the intent that you did satisfies me that there is that significant need to protect the community. (emphasis added)
[9] ts 60.
With respect to his Honour, the words '[t]he fact that you got yourself into this state …' are puzzling. In context, the 'state' referred to appears to be the appellant's disordered state of mind which led to the formation of the obsessional thoughts. This part of the sentencing remarks is apt to be understood as suggesting that the appellant was somehow responsible for the state of mind that led to the obsessional thoughts. That suggestion is inconsistent with the nature of the appellant's mental condition and was unsupported by the evidence before his Honour.
The sentencing judge's approach to the appellant's mental illness was to acknowledge that the appellant suffered from a serious pre‑existing mental illness which reduced her moral culpability for the offending, and made the service of any sentence of imprisonment more onerous. His Honour considered that it also reduced the need for both general and personal deterrence. However, his Honour ultimately found that the mitigatory effects of her mental illness had to be balanced against the need to protect the community, provide some degree of general and personal deterrence, and reflect the seriousness of the offending.[10]
[10] ts 60.
Legal principles
The legal principles applicable to the ground of appeal relied upon by the appellant, the effect of an offender's mental impairment, and the need to ensure that a sentence designed to reflect public protection must remain proportionate to the offence are described in Vandongen JA's reasons.
Disposition
The maximum penalty for an offence against s 304(2) of the Code is 20 years' imprisonment.
The reasons of Vandongen JA list the large number of cases cited by the parties. They offer little assistance. There is no tariff for offences against s 304(2). Moreover, the facts and circumstances of this case are unusual and make a comparison with other cases at the least difficult, if not futile.
As we have said, the offending was very serious. The adverse impact on the victim is great. However, the appellant's offending was driven by her long‑standing, but treatable, mental illness, for which she is not responsible. The obsessive thoughts which led to her offending were not triggered by self‑induced intoxication or any other such behaviour. At the time of the offending the appellant was receiving treatment and was compliant with that treatment. However, to the extent that we have previously described, it appears that the treatment was suboptimal
The appellant's moral culpability for the offence was reduced by reason of her mental illness. The appellant was cooperative with police, is genuinely remorseful, and pleaded guilty at the first reasonable opportunity. She has embarked on a program of rehabilitation and she has the ongoing support of her husband and family. By reason of her illness, the sentencing objectives of general and personal deterrence were moderated. Additionally, time in prison will be more onerous for her.
In combination, these factors pointed towards the imposition of a more lenient sentence within the range of sentences that could properly be imposed.
A key sentencing consideration stemming from the appellant's illness was the risk of reoffending and the need for public protection. His Honour emphasised the need for public protection. We infer that the sentence he imposed was increased to accommodate this factor.
The sentencing of an offender requires the sentencer to embark on a process of intuitive synthesis that takes into account all relevant factors to reach a single result which balances many different and conflicting features.[11]
[11] Swift v The State of Western Australia [2024] WASCA 23 [60], citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75] (Gaudron, Gummow & Hayne JJ).
Public protection, along with general and personal deterrence, retribution and reform, is one of the recognised purposes of criminal punishment. These purposes overlap and cannot be considered in isolation.[12]
[12] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson & Toohey JJ).
The weight to be given to public protection, and any other sentencing consideration, depends upon the facts and circumstances of each case. In some cases, it will be necessary to give primacy to public protection, always bearing in mind that the overriding principle is that any sentence must be commensurate with the seriousness of the offence. 'A sentence cannot be increased beyond what is proportionate to the crime in order to merely extend the period of protection of society'.[13]
[13] Veen (No 2) (472).
For an offender with a mental health condition, the condition can give rise to competing considerations. As Professor Warner put it in Sentencing in Tasmania:[14]
Mental disorder may on the one hand suggest mitigation, but on the other a longer sentence to satisfy either the offender's need for treatment or the protection of society from one who is perceived as likely to offend again.
[14] Warner K, Sentencing in Tasmania (2nd ed, 2002) [3.516].
The task of balancing the competing effects of mental illness has been described as 'inevitably difficult'.[15] Central to the task is an assessment of the risk of reoffending and how that risk may be ameliorated.
[15] Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433, 436 (Brennan J, as he then was).
In some circumstances, the protection of the public may only be achieved by a longer period of incarceration, but this is not always the case. Public protection may also be achieved through rehabilitation programs and treatment, whether administered within the prison system or in the community.
Apart from the present offence, there is no evidence that the appellant had ever acted in a violent manner in the past. Generally, she has been compliant with her treatment, including while in custody awaiting sentence, where the appellant engaged in the treatment referred to in Dr Wojnarowska's addendum psychiatric report.
Significantly, the addendum psychiatric report revealed that although the appellant still experiences obsessional thoughts, they are less frequent and not as intense. The content of these thoughts is no longer directed towards others, and she has been able to manage them by not engaging in compensating compulsive behaviours, although she has self‑harmed. Further, she has developed a good insight into the fact that stabbing a stranger in order to save her children, her husband, and herself was irrational. The appellant accepts that she requires ongoing assertive management of her mental illness, and that compliance is crucial to her stability.
At the time she was sentenced, the appellant was medicated and was willing to continue with treatment. There is no reason to believe that she would not continue her regime of medication and treatment once she is released. It would therefore follow that her mental health is capable of being managed in the community.
In Dr Wojnarowska's opinion, the appellant's risk to others was markedly reduced. While it is true that Dr Wojnarowska did not go so far as to conclude that the appellant posed no risk to others, her prognosis is good. We note that Dr Wojnarowska has recommended that before the appellant is released on parole, a psychiatric review should take place.[16] This is plainly a sensible recommendation.
[16] Report of Dr Wojnarowska, 27 April 2023, pars 9 - 10.
His Honour found that notwithstanding the contents of the addendum psychiatric report, there remained a significant need to protect the public. Nevertheless, all of the signs point to the appellant's mental health improving, which, in turn, reduces her risk of reoffending. Further, the appellant's mental illness can continue to be treated upon her release. While there were aspects of her treatment prior to the commission of the offence that were suboptimal, it would be expected that particular care would be taken to ensure that if the appellant's medication was reduced in the future, it would be under care in hospital. In our opinion, the evidence before the sentencing judge showed that the significant need to protect the public could be managed, to an acceptable level, within the community.
After evaluating all of the relevant facts and circumstances, we have concluded that the sentence of 4 years 4 months' immediate imprisonment imposed upon the appellant was not merely high, but was manifestly excessive. Inferred error has been established. The ground of appeal should be upheld and the appeal allowed.
Resentencing
The court has all the materials necessary to resentence the appellant.
By application in an appeal dated 6 March 2024, the appellant filed an application to adduce as further evidence, in the event of a resentencing, a further psychiatric report by Dr Wojnarowska dated 5 March 2024.
Dr Wojnarowska's further report is very comprehensive. Dr Wojnarowska interviewed the appellant on 20 February 2024. According to Dr Wojnarowska, the appellant has been compliant with her medications and is no longer prescribed anti‑psychotic medications. The appellant understands that her offending behaviour was irrational, stating, 'How could I even think something like that, it's absolutely absurd'. The appellant has gained considerable insight into her illness and its causal connection with the offence. She presents as stable, with her obsessive‑compulsive disorder being in full remission.[17]
[17] Report of Dr Wojnarowska, 5 March 2024, pars 25 - 26.
On examination by Dr Wojnarowska, the appellant did not reveal any delusional beliefs and had very good insight into her current situation. The appellant denied experiencing homicidal thoughts, and although she still experienced suicidal thoughts, she is now capable of controlling them as a result of skills she has learnt through psychological counselling.[18]
[18] Report of Dr Wojnarowska, 5 March 2024, par 27.
In Dr Wojnarowska's opinion, the appellant now fulfils the criteria for obsessive‑compulsive disorder with insight, and anorexia nervosa.[19] Both disorders are currently well managed and in remission, albeit in the controlled environment of prison. Adequate and continuous treatment with medications and psychological counselling are said to be imperative in order to avoid significant deterioration in the appellant's mental state or relapse of her mental illness. No doubt, if the appellant is released on parole her treatment will be monitored.
[19] Report of Dr Wojnarowska, 5 March 2024, par 69.
The appellant was assessed using the Historical, Clinical and Risk Management 20, Version 3 risk assessment tool for risk of violence. This assessment indicated that the appellant is currently at low risk of future violence. Any acts of violence are unlikely to be imminent, and their severity is likely to be low to moderate, but could escalate to life‑threatening if they involve the use of a weapon. Significantly, any acts of violence are likely to be preceded by signs that the appellant is preoccupied with restricting her diet and/or excessive obsessional thinking regarding tasks. She is likely to discuss these difficulties with her treating team and/or her husband.
Dr Wojnarowska's summary and recommendations are as follows:[20]
[20] Report of Dr Wojnarowska, 5 March 2024, pars 79 - 80.
SUMMARY AND RECOMMENDATIONS
79.[The appellant] was experiencing repetitive images and thoughts of wanting to kill her family and self. In order to neutralize those thoughts, she periodically used starvation as this provided her with a sense of control and achievement. When her mental state deteriorated further, she committed the violent offence to avoid hurting her family.
80.[The appellant's] mental state is currently well managed; she presents as insightful and as such she poses low risk of violence to self, her family and the community at large.
In our opinion, the overall effect of Dr Wojnarowska's report, dated 5 March 2024, shows that the appellant's mental health has continued to improve since she was sentenced. Her current risk of reoffending is low, and although there remains a risk of violence, that risk appears to be manageable within the community.
As for the appellant's plea of guilty, we would give a discount of 25% under s 9AA of the Sentencing Act.
Having regard to the maximum penalty, the aggravating and mitigating circumstances, including the appellant's mental illness and her risk of reoffending, we would sentence the appellant to 3 years 3 months' immediate imprisonment with eligibility for parole backdated to commence on 16 August 2022.
The suppression order
As will be noted, the identity of the appellant has been anonymised.
On 16 March 2023, a judge of the District Court ordered the prohibition of any information tending to identify the appellant, her family, including her children and husband, and the victim until further order. This order remains in place in the District Court.
By application in this appeal filed 24 January 2024, the appellant sought a suppression order in these terms:
1.An order that any hearing in connection with the appeal and the publication of any judgment be anonymised of all information which may identify the appellant, any of the appellant's family (including the appellant's children and husband) and the complainant, including their names and occupations.
The application was opposed by the respondent. At the hearing of the appeal, this court unanimously granted the order sought by the appellant. Our reasons for making the order may be briefly explained.
Ordinarily, in accordance with the open justice principle, this court would not anonymise the appellant's name. Such an order would not be justified merely because publication of the appellant's name would be embarrassing to her and her family.
At common law, a superior court may in the exercise of its inherent jurisdiction make orders that limit or restrict the application of the open court or open justice principle. This jurisdiction may be exercised only where it is reasonably necessary for the proper administration of justice. The open court or open justice principle ordinarily includes the publication of the name of the accused in criminal proceedings by that first instance and on appeal. Section 171 of the Criminal Procedure Act 2004 (WA) makes provision for proceedings in a court to be in open court and for the courtroom where the court sits to be open to the public. Nothing in s 171 is relevantly inconsistent with the features of the open court or open justice principle at common law that have been mentioned.[21]
[21] See Hill v The State of Western Australia [No 2] [2022] WASCA 149 [2], [3].
The appellant's application was supported by an affidavit sworn by the appellant's lawyer, Ms Sellers, on 18 January 2024. It is unnecessary to refer to that affidavit in detail other than to state that the identification of the appellant's name runs the very real risk of exposing the appellant to serious psychiatric harm, and exposing her family, particularly her children, to a similar degree of psychological and physical harm. It is relevant that the appellant in substance seeks no more than the order originally made by the District Court judge, which was not opposed at first instance by the State.
In the circumstances, it is in the interests of justice for the name of the appellant to be anonymised. As for the names of the appellant's husband, her children, and the victim, as will have been seen, they have been referred to in these reasons in a generic way as it was not necessary to do otherwise.
Orders
The orders we would make are as follows:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The appellant's application to adduce additional evidence in the apperal filed 6 March 2024 is allowed.
4.The sentence imposed in the District Court by Massey DCJ on 3 May 2023 is set aside and in lieu thereof, the appellant is resentenced to 3 years 3 months' immediate imprisonment with eligibility for parole to commence on 16 August 2022.
VANDONGEN JA:
Introduction
On 16 August 2022, in circumstances in which she had been suffering from poor mental health throughout adulthood, and at a time when she was experiencing intrusive thoughts about killing herself as well as the other members of her immediate family, the appellant stabbed a woman in her lower back while she was stacking shelves in a suburban shopping centre. Later that day, when she was arrested at her home, the appellant told police that she had been having thoughts about hurting her family and that she had stabbed the victim because she wanted to get arrested, apparently to stop her acting on those thoughts.
On 3 May 2023, after previously pleading guilty in the District Court on 21 March 2023 to one count of unlawfully doing an act with intent to harm, as a result of which the life, health or safety of a person was endangered, contrary to s 304(2)(b) of the Criminal Code (WA) (Code), the appellant was sentenced to 4 years and 4 months' immediate imprisonment.
The appellant now seeks leave to appeal against that sentence, relying on one ground of appeal that asserts that the sentence was manifestly excessive.
For the following reasons, while I would grant leave to appeal on the sole ground of appeal, I would dismiss the appeal.
Circumstances of the offence
The following summary of the circumstances of the offence is largely based on the sentencing judge's unchallenged findings.
The appellant suffered from poor mental health throughout adulthood. In the months leading up to the commission of the offence, she had been experiencing intrusive thoughts that she should kill herself and her husband and children. The appellant did not actually want to kill anyone. However, the appellant had been having these thoughts because, illogically, she wanted to keep her family safe.[22] The appellant decided to stab a stranger so she would be arrested and kept in custody, which would stop her from acting on her thoughts.
[22] ts 48.
On the morning of 16 August 2022, the appellant bought a large filleting knife from a camping store. A short while later, the appellant told her husband and her mental health coordinator, in separate conversations, that she was not coping. However, she did not tell either of them that she had bought a knife, or that she was planning to stab a stranger.
Later that day, the appellant took the knife to a shopping centre in a northern suburb of Perth. She entered a shop and saw the victim stacking shelves. The victim was alone and was not known to the appellant. The appellant approached the victim from behind and, without warning, stabbed her once to her lower right back, just above the hip. The knife went into the victim's body to the hilt. The victim turned to find the knife stuck in her side, and she saw the appellant running away.
The knife was removed from the victim's side after she was taken to hospital. She suffered a laceration to her right buttock which cut through all of the layers of her skin and which could potentially have endangered her life because, without medical intervention, it would have remained a bleeding wound. The injury interfered with the victim's health and comfort.[23]
[23] ts 49.
Immediately after committing the offence, the appellant drove to a nearby service station where she bought a packet of cigarettes to settle her nerves. She then went home and, when clearly upset, called her mental health coordinator and told her that she had 'stuffed up badly'. She told the coordinator something about hurting or harming a stranger to protect or save her loved ones, and then told her that she had stabbed someone.[24] The coordinator called the appellant's husband and police. The appellant's husband tried calling the appellant, and when he eventually got through to her, the appellant told him that she thought she had stabbed someone.
[24] ts 49.
Police attended the appellant's home that evening. The appellant was arrested and then taken to hospital. At the hospital, the appellant made several admissions to police. She told them that she had been having intrusive thoughts that she should kill herself and her family, but that she wanted herself and her family to be safe. Later, she again made several admissions to police, including by telling them that she had been thinking about hurting her family and that she had stabbed the victim because she wanted to be arrested.
Two days after she stabbed the victim, the appellant told a mental health practitioner that she had consistently sought out professional advice to help her deal with her mental health issues. She also told the practitioner that she did not experience any external thoughts or voices, but that the night before the stabbing took place she had thought about cutting the throats of her husband and children and hanging herself. She said that a song called 'Killing Strangers', which included the lyric 'to protect the ones you love', had resonated with her. The appellant said she was sorry the stabbing had happened and that she hoped the victim received medical assistance.
Victim impact statement
The sentencing judge was provided with a victim impact statement. In that statement, the victim said that her physical injuries rendered her immobile for a number of weeks, and she suffered from stiffness and pain in her lower back, right hip and hand. The victim did not sleep well after the offence, partly due to discomfort and pain. She also said that the appellant's behaviour led to her suffering her own mental health issues, including experiencing panic attacks which have required medication. The sentencing judge found that the appellant's actions impacted on the victim's financial affairs, as her worker's compensation only covered part of her income.
Appellant's personal circumstances
The appellant was 35 years of age at the time of offending and at sentencing. She was born in Western Australia and is the middle child of three siblings. After completing year 10, the appellant left school and began working. The appellant has been in a relationship with her husband since the age of 18 and they have two children together. The appellant also has an adult stepson, whom she regards as her own child. The appellant completed a university degree after studying part‑time while caring for her children, and she was employed at the time of the offending.
The appellant has no criminal history or history of violence or substance misuse, and the sentencing judge found that the offending was out of character.[25] However, the appellant has a complex psychiatric history. In that regard, a psychiatric report authored by Dr Gosia Wojnarowska, dated 12 March 2023, was before the sentencing judge. Given the significance of the appellant's mental state at the time of her offending to the ultimate sentence that was imposed, it is necessary to refer to the contents of Dr Wojnarowska's report in some detail.
[25] ts 55.
Psychiatric report
Dr Wojnarowska reported that the appellant had told her that she had been struggling for approximately five months before she committed the offence.[26] The appellant told her that her working hours had been reduced, and on the days that she did not go to work, she sat at home and ruminated about suicide and killing her family. At that time, the appellant was under the care of community mental health services. She reported that she had told her treating psychiatrist and case manager about her ruminations.
[26] Report of Dr Wojnarowska, 12 March 2023, par 14.
The appellant also told Dr Wojnarowska that she had been struggling with anxiety and intrusive thoughts in the days preceding the offence. The appellant reported experiencing urges to kill her family by cutting their throats while they slept. She said that those thoughts centred around her children and then extended to her husband, and that she felt the natural outcome of her intrusive thoughts would be for her to kill herself or wait to be arrested and receive punishment by spending the rest of her life in prison. The appellant said she struggled to contain those thoughts and self‑harmed to try to divert those urges.
The appellant's husband told Dr Wojnarowska that he knew that his wife had struggled with her mental health. In the past he had been closely involved with her psychiatric admissions and mental health follow‑ups but more recently, on her request, he had allowed her to manage her treatment more independently. The appellant's husband was acutely aware of the appellant's mental state in the weeks leading to the alleged offence, and he had noted that there had been a marked deterioration in that time. He told Dr Wojnarowska that there had been an incident shortly before the offence in which he found her choking herself in the bathroom. Given her mental state at the time, he continued to monitor her, but was not aware of the intensity of her thoughts or her obsession with homicidal thoughts until after the offence occurred.
The appellant told Dr Wojnarowska that eventually she felt that she could no longer resist her urges to kill her family and so she decided that she had to kill someone else to save her children and her husband. She chose the victim at random and had no previous connections to her.
The appellant told Dr Wojnarowska that she had been compliant with taking her medications. However, the dosage of her medication was reduced about two to three weeks before, and then again two to three days before, she offended. The appellant's husband told Dr Wojnarowska that, historically, her mental state tended to deteriorate whenever there were any changes made to her medications.
Dr Wojnarowska said in her report that in one of her interviews with the appellant:
[The appellant] proclaimed that she wishes to remain in prison until she is 'fixed, no-one took me seriously'. [The appellant] said that she felt she needed to reset her mind and could still improve before she dies. She added that 'I feel like a monster because I'm a danger, I did what I did for a reason, I didn't do it properly, I need to kill someone, should I commit more killings and save my children?' [The appellant] also reported that she had considered getting a job in prison to obtain a knife but she then became scared that she would kill someone. Her level of distress in relation to those thoughts and urges was visible.[27]
[27] Report of Dr Wojnarowska, 12 March 2023, par 45.
Dr Wojnarowska went on to note that in a subsequent interview on 12 October 2022, the appellant said:
that she was concerned about the possibility of being released on bail and that she believed she was a danger to society and should not be released. She was aware that she could possibly receive a life imprisonment if she killed someone in prison but she believed it was necessary to keep her family safe until she was 'fixed'. [The appellant] reported that she had advised her lawyer that she did not want bail saying, 'I am a danger to society. The job is not done. If they release me I will kill my husband, my kids and myself'. On specific questioning she advised that her intrusive thoughts were of a high intensity and that she had been refusing treatment. [The appellant] added that she had 'lost hope' that the medications will assist her because of the alleged offence occurring despite receiving follow-up in the community and being compliant with medications.[28]
[28] Report of Dr Wojnarowska, 12 March 2023, par 48.
In her report, Dr Wojnarowska expressed the opinion that the appellant fulfilled the criteria for 'anorexia nervosa' and 'obsessive‑compulsive disorder' with 'absent insight and delusional beliefs', as set out in the revised fifth edition of the Diagnostic and Statistical Manual of Mental Disorders.[29] Dr Wojnarowska explained that:
[t]he characteristic symptoms of [obsessive-compulsive disorder] are obsessions and compulsions. Obsessions are repetitive and persistent thoughts, images for example of violent or horrific scenes, for example to stab someone. Importantly symptoms are not pleasurable or experienced voluntarily. They are intrusive and unwanted and cause marked distress or anxiety. The affected person attempts to ignore or suppress these obsessions by avoiding triggers or to neutralise them with another thought or actions such as performing a compulsion. Compulsions are repetitive behaviors [sic] or mental acts that the individual feels driven to perform in response to an obsession. The compulsions are performed to reduce the distress triggered by obsessions or to prevent a feared event.[30]
[29] ts 53.
[30] Report of Dr Wojnarowska, 12 March 2023, par 50.
Dr Wojnarowska also opined that the appellant presented with traits of dependent personality characterised by self‑doubt and low self‑esteem, and she appeared to be dependent on her husband to manage her fears and self‑harming behaviours.
Dr Wojnarowska reached the following conclusions:
[The appellant] knew what she was doing when she made the decision when she brought the knife and went to the to the shopping Centre. She was not delirious, and her consciousness was not clouded or compromised at that time. She understood that it was wrong and she was prepared for the consequences of her actions.
…
However, on that day, her ability to control her actions was significantly impaired by the presence of her serious and pre-existing mental illness characterised by obsessional thoughts and delusions. Specifically, she believed that if she did not stab a person, she would be compelled to kill her children, her husband and herself. After committing the alleged offence, she was remorseful, furthermore, she does not exhibit any antisocial attitudes, has no history of previous violence or substance misuse. Her actions on that day were directly related to the presence of a treatable mental illness.[31] (emphasis added)
[31] Report of Dr Wojnarowska, 12 March 2023, pars 56 ‑ 57.
At the hearing before the sentencing judge on 21 March 2023, counsel representing the state indicated that while it was accepted that the appellant's moral culpability was reduced on account of her mental health at the time she committed the offence, the state challenged Dr Wojnarowska's opinion that the appellant's capacity to control her actions was 'significantly impaired'.[32] A further issue was also raised about Dr Wojnarowska's report, namely, whether the information in that report was sufficiently up to date for the sentencing judge to properly take into account the need to protect the public. As a consequence, the sentencing hearing was adjourned to 3 May 2023 so that a further report could be obtained from Dr Wojnarowska.
[32] ts 27 - 29.
When the sentencing hearing resumed on 3 May 2023, Dr Wojnarowska had prepared an addendum psychiatric report, dated 27 April 2023. Although the addendum report did not directly deal with the question about the degree to which the appellant's ability to control her actions had been impaired by her mental illness, Dr Wojnarowska did express the opinion that the appellant's risk to others had 'markedly reduced'.[33] This opinion appeared to have been based on the fact that the appellant had continued with her treatment with medications while in custody, and because she had also been engaging in psychological counselling. Further, although Dr Wojnarowska reported that the appellant continued to experience obsessional thoughts, she said that those thoughts related to self‑harm rather than violent thoughts directed to others. Dr Wojnarowska also said that the appellant had been able to manage those thoughts without having to resort to compulsive behaviours, they were less frequent and less intense, and were being addressed through therapy.
[33] Addendum report of Dr Wojnarowska, 27 April 2023, par 9.
Dr Wojnarowska said the appellant appeared to have developed good insight into the fact that it was irrational to stab a to 'save' her family, that she accepted and understood she needed ongoing management of her mental illness, and that compliance was crucial to her stability. She also noted that the appellant had maintained close contact with her husband, children and parents, all of whom remain supportive of her.
Sentencing remarks
As the sole ground of appeal asserts that error should be inferred from the sentence imposed and no express error is relied on, it is unnecessary to refer to the sentencing judge's remarks in detail.
His Honour found that the appellant's offending was serious and concluded that it was 'above mid-range [of] offending',[34] and noted that the maximum penalty for the offence is 20 years' imprisonment. In determining the seriousness of the offending, the sentencing judge took into account the fact that the victim was at work at the time of the offence, a place where she was entitled to feel safe. His Honour also took into account the physical vulnerability of the victim; with her back being to the appellant when she was stabbed, the victim was in no position to defend herself.[35] He found the appellant's conduct had not only had effects on the victim, but her actions had also affected the public's perception about safety and security in a more general sense.
[34] ts 52.
[35] ts 50.
The sentencing judge found that the offence was aggravated because it was premeditated and senseless, and because the appellant intended to at least endanger the victim's health or safety. He found that the appellant appreciated that what she was doing was wrong, yet she did not seek help from her mental health care coordinator or from her husband or tell either of them that she had bought a knife, despite having spoken to them both before the attack.
The sentencing judge also accepted that the appellant was suffering from a mental health crisis when she offended, and that as a result she had formed an illogical belief she had to kill her husband, her children, and herself in order to save her family from the pain they might experience in the forthcoming years from the stressors of life. His Honour said that the appellant had formed a further illogical belief that she thought she could avoid killing the members of her family by getting herself arrested for stabbing someone else, and that this had occurred in circumstances in which the appellant's mental health may have been affected by the reduction in her medication.
Although the State accepted at sentencing that the appellant's ability to control her actions was impaired at the time she committed the offence, the State took issue with Dr Wojnarowska's opinion that the appellant's ability was significantly impaired. In that regard, his Honour ultimately accepted the State's contention:
I accept that [the appellant's ability to control her actions] was impaired and that it has affected your moral culpability, but it seems to me that, contrary to what Dr Wojnarowska says, there was at least an ability, impaired though it might have been, to control your actions because you were able to form the intent to harm. That intent to harm is as a result of your actions and given that you did those actions with the intent to cause harm, it seems to me that it follows that there was, therefore, an extent of you being able to control your actions.
I accept that your ability to control your actions, in short, was impaired, but I'm not sure I get to the stage that it was significantly impaired. You knew that stabbing a stranger was wrong. You knew it would cause you to be arrested. You knew that those were the inevitable consequences of you doing what you did and, in fact, that's what you wanted to occur.[36]
[36] ts 58.
It is not immediately apparent why Dr Wojnarowska's opinion as to the degree to which the appellant's capacity to control her actions had been impaired by her mental illness was undermined by the fact that the appellant was able to form an intention to harm the victim, or because she was able to appreciate the wrongfulness of her actions. However, there is no challenge to the sentencing judge's findings.
Ultimately, the sentencing judge accepted that the appellant's mental health issues mitigated the extent to which she should be punished because her moral culpability was reduced on the basis of her impaired ability to control her actions.[37] His Honour also concluded that the need for general deterrence was 'sensibly moderated',[38] and that there remained some need for some personal deterrence, though it was lessened given her impaired ability to control her actions. His Honour noted in this regard that the appellant knew that there would be a consequence for her act and chose to do it anyway.
[37] ts 50.
[38] ts 59.
The sentencing judge also said that the appellant's mental health issues meant that the community needed to be protected from the risk she presented. His Honour held that although the risk the appellant posed to others had been, according to Dr Wojnarowska's addendum report, 'markedly reduced', it had not reached the stage where it was non‑existent. This was despite the fact that the appellant also had the benefit of the significant protective factor of family support.
The sentencing judge allowed the maximum available discount of 25% from the head sentence he would otherwise have imposed on account of the appellant's plea of guilty, in accordance with s 9AA of the Sentencing Act 1995 (WA). He also took into account the fact that the appellant was genuinely remorseful and had insight into the seriousness of her offending and empathy for the victim. He also noted that the appellant wanted to write a letter of apology to the victim.
His Honour had regard to the fact that the appellant had fully cooperated with the police during her interview. He also took into account the fact that her experience of obsessive thoughts would make any time in custody more onerous (bearing in mind that she was receiving appropriate treatment), that she had no prior criminal record, and that the offending was out of character. His Honour also found that the appellant had good prospects of rehabilitation, although those prospects were dependent on the appellant complying with mental health treatment.
His Honour identified the main sentencing considerations as being the seriousness of the offending, the need to protect the public, and a need for general and personal deterrence, although it was noted that there was a reduced need for deterrence. He concluded that a term of imprisonment to be immediately served was the only appropriate disposition before finally imposing a sentence of 4 years and 4 months' imprisonment. An order was made that the appellant be eligible to be considered for parole in respect of that term, and the sentence was backdated to commence on 16 August 2022.
Ground of appeal
The appellant relies on one ground of appeal in which she asserts that the sentence of 4 years and 4 months' imprisonment was manifestly excessive.
Appellant's submissions
The appellant's written submissions focus on previous decisions of this court which considered appeals against the severity of sentences imposed for offences contrary to s 304(2) of the Code. The appellant argues, in effect, that there are features of this case which distinguish it from more serious cases in which sentences within a range of 4 years ‑ 5 years' imprisonment were imposed. Those features include the impact of the appellant's mental illness, the short duration of her offending behaviour, the lack of any intention to endanger life, and the presence of various mitigating factors. In that regard, counsel for the appellant referred to Cheeseman v The State of Western Australia;[39] Gomboc v The State of Western Australia;[40] Lawrence v The State of Western Australia;[41] Hayward v The State of Western Australia;[42] Hinkley v The State of Western Australia;[43] Meadowcroft v The State of Western Australia;[44] and Starr v The State of Western Australia.[45]
[39] Cheeseman v The State of Western Australia [2023] WASCA 78.
[40] Gomboc v The State of Western Australia [2023] WASCA 115.
[41] Lawrence v The State of Western Australia [2015] WASCA 187.
[42] Hayward v The State of Western Australia [2020] WASCA 57.
[43] Hinkley v The State of Western Australia [2014] WASCA 122.
[44] Meadowcroft v The State of Western Australia [2023] WASCA 98.
[45] Starr v The State of Western Australia [2011] WASCA 170.
At the hearing of the appeal, counsel concentrated on the appellant's mental illness and its significance in the context of an argument that the sentence imposed was manifestly excessive. Counsel accepted that the offence was 'horrific',[46] as it involved the premeditated use of a knife on a defenceless stranger. However, counsel submitted that the seriousness of the offending needed to be understood in the context that at the time the appellant was suffering from a mental illness that impaired her ability to control her actions. It was contended that this reduced the appellant's moral culpability and diminished the role that deterrence, retribution and punishment should properly play in the sentencing process. While counsel did accept that the protection of the public was a relevant consideration, she relied on the fact that the appellant had taken steps towards rehabilitation, including by participating in counselling and by complying with a medication regime while in custody, to allay those concerns. Counsel also relied on the fact that the appellant had insight into her offending, had demonstrated remorse, and that she had very good supports in the community, to bolster a submission that the need for community protection did not justify a sentence of 4 years and 4 months' immediate imprisonment.
Respondent's submissions
[46] Appeal ts 9.
It was submitted on behalf of the respondent that none of the cases referred to in the appellant's written submissions are truly comparable, and that they do not support a contention that the sentence of 4 years and 4 months' immediate imprisonment was manifestly excessive. The respondent submits that, having regard to the maximum penalty, the victim's vulnerability, the circumstances of the offence, all mitigating and aggravating factors and the need for community protection, a significant period of imprisonment was warranted and the sentence that was imposed was not manifestly excessive.
Legal principles
The principles that are to be applied in the context of a ground of appeal that asserts that error should be implied or inferred from the sentence that was imposed are well‑established. As this court explained in Kabambi v The State of Western Australia:[47]
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
...
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range. (footnotes omitted)
[47] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also important to appreciate that consideration of a ground of appeal which contends error should be inferred from the sentence imposed at first instance proceeds on the basis of the findings of fact made at first instance.
It is well established that although an offender's mental impairment will often be a mitigating factor, it will not always result in a lower sentence. The existence of a mental impairment is only one of the factors that must be balanced with other factors to produce a just sentence. The existence of a causal relationship between a mental illness and offending will not automatically result in a lesser sentence because, for example, the existence of such a connection may, on the one hand, reduce the importance of general deterrence but, on the other hand, it may increase the importance of personal deterrence or the need to protect the public.[48] As was observed in Lindsay v The State of Western Australia:[49]
[M]ental illness may weigh in the balance both positively and negatively with the consequence that it has no effect or significant effect on the sentence ultimately imposed.
[48] Bogers v The State of Western Australia [2020] WASCA 174 [82].
[49] Lindsay v The State of Western Australia [2010] WASCA 142 [23].
It is also important to bear firmly in mind that although the protection of the community is a material factor in fixing an appropriate sentence:[50]
a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. There is a distinction in principle between an exercise of sentencing discretion having regard to the protection of society among other factors, which is permissible, and an extension of a sentence merely to effect preventative detention, which is not.
[50] Coutts v The State of Western Australia [2023] WASCA 38 [75].
Determination of appeal
An offence contrary to s 304(2) of the Code carries a maximum penalty of 20 years' imprisonment. This indicates the serious view that Parliament takes of such offending. However, the significant maximum penalty also caters for the fact that this type of offence can be committed in a wide range of circumstances.
In Meadowcroft,[51] the court stated:
As regards the circumstances of the offence, there are generally three factors that are relevant to sentencing for an offence under 304(2) of the Code, namely (1) the nature and seriousness of the offender's intent to harm, (2) the nature and seriousness of the bodily harm caused to the particular victim or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety as the case may be, and (3) the potential (as distinct from actual) consequences of the offender's conduct.
[51] Meadowcroft [115], citing Hinkley [18].
The offence committed by the appellant was, objectively, very grave. The appellant used a large knife that she bought for the purpose of stabbing a complete stranger. The potential for a knife to inflict a catastrophic injury when used as a weapon is obvious, and the appellant used this knife with such force that it entered the victim's body up to its hilt. Although the facts relied on by the prosecution only alleged that the victim suffered a laceration through all the layers of her skin, the knife must have also penetrated muscle and other tissue deeper within the victim's buttock. It is very fortunate that the victim did not appear to have suffered any permanent physical injuries apart from ongoing pain and stiffness. The treating doctor said that the injury was potentially life threatening, as the wound would have continued bleeding had it not been for medical intervention. The sentencing judge found that the victim could have suffered far worse injuries. He also concluded that, at the very least, the appellant intended to endanger the victim's health or safety.
Understandably, the victim suffered psychological distress and financial hardship because of the appellant's criminal behaviour, the effect of which cannot be underestimated. The victim was in an extremely vulnerable position. She was at work, and she was entitled to feel safe in that environment, free from any prospect of becoming the target of what would have appeared to her at the time to have been senseless violence. The victim had no chance to defend herself. In any event, she had absolutely no reason to think that she would have needed to take any defensive measures against the possibility of being stabbed by a stranger. Quite apart from the deleterious effects of the appellant's offending behaviour on the victim, there was a real potential for it to also undermine the general community's sense of safety and security.
I have already referred to the appellant's personal circumstances earlier in these reasons. Those circumstances relevantly reveal that by the time the appellant committed the offence, at the age of 35 years, she was in a long‑term relationship and had children, she had been consistently employed throughout her life and, more recently, she had completed a university degree.
The appellant enjoyed the benefit of several significant mitigating factors, including her early plea of guilty which attracted a 25% discount from the head sentence his Honour would otherwise have imposed. Further, the sentencing judge found the offending was mitigated because it was out of character, she was genuinely remorseful, she cooperated with police and made admissions, and she had taken steps towards her rehabilitation while in custody awaiting sentencing.
However, a very significant issue that the sentencing judge was required to grapple with was the state of the appellant's mental health at the time she committed the offence. In that regard, his Honour found that the appellant suffered from a mental impairment at the relevant time, and that she continued to suffer from that impairment at the time of sentencing. However, the sentencing judge was not prepared to accept Dr Wojnarowska's opinion that the appellant's mental illness 'significantly impaired' her ability to control her actions, seemingly on the basis that the appellant was able to form an intent to harm the victim and because she knew that stabbing the victim was wrong. Although it is not immediately clear why the appellant's ability to form an intention to harm the victim, or why her appreciation of the wrongfulness of her actions, was relevant to an assessment of the degree to which her ability to control her actions was impaired, there is no challenge to the sentencing judge's findings in this regard. In any event, his Honour did accept that the appellant's mental illness had impaired her ability to control her actions when she committed the offence and that, as a consequence, her moral culpability was reduced.
His Honour concluded the appellant's mental health 'sensibly moderated' the need for general and specific deterrence.[52] Further, he found that because the appellant's mental impairment would make her time in a custodial setting more onerous he would take that into account as a mitigating factor, although he noted that this factor needed to be balanced against the fact the appellant was receiving treatment at the time of sentencing.
[52] ts 59.
In this case, the sentencing judge concluded that the appellant's mental health issues increased the need to protect the public, and that this factor had to be balanced against any concomitant reduction in the appellant's moral culpability. Confronted with the difficult task of giving weight to the conflicting purposes of punishment,[53] the sentencing judge concluded:[54]
I am satisfied there is a significant need to protect the community. I accept that although you initially told Dr Wojnarowska the job was not done and that if you were released you would kill your husband, your children and yourself, those issues have abated by virtue of what I've seen in the addendum report, but I do find there is still a significant need to protect the community. The fact that you got yourself into this state and these are the obsessional thoughts you had led you to commit this act with the intent that you did satisfies me that there is that significant need to protect the community. (emphasis added)
[53] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
[54] ts 60.
It is not entirely clear what his Honour meant when he said 'you got yourself into this state'. This is because the unchallenged psychiatric evidence was that the appellant's ability to control her actions was impaired by 'the presence of her serious and pre‑existing mental illness characterised by obsessional thoughts and delusions'.[55] However, what is clear is that in the exercise of his discretion, his Honour decided to give significant weight to the need to protect the community. In my view, it was open to his Honour to reach that conclusion. While Dr Wojnarowska had said, in her addendum report, that the appellant's 'risk to others has markedly reduced', as his Honour observed:
Dr Wojnarowska doesn't conclude that your risk to others is non‑existent. What she does say is it's markedly reduced. I take it from that, that there is still that risk.
[55] Psychiatric report of Dr Wojnarowska, 12 March 2023, par 57.
Although the sentencing judge did not make any express findings about the nature of the relevant risk posed by the appellant, as counsel for the appellant properly accepted at the hearing of the appeal, the relevant 'risk' was a risk to the life of another person.[56] This included a risk to the lives of members of her own immediate family and, as the circumstances of this case vividly demonstrate, to other members of the community at large. Accordingly, even if that risk had 'markedly reduced' at the time the appellant was sentenced on 3 May 2023 due to the appellant's engagement with psychological counselling and treatment with medications, the nature and persistence of that risk at that time amply justified a conclusion that there remained a significant need to protect the community. It was appropriate that the need to protect the public from this risk be reflected in the type and length of the sentence imposed, provided, of course, that the sentence not be increased beyond what was proportionate to the seriousness of the offence in order to merely extend the period of protection.
[56] Appeal ts 18.
I have reviewed the cases that were referred to by the parties in their respective written submissions. However, as was recently reiterated in Cheeseman:[57]
Because of the wide variety of circumstances in which offences against s 304(2) of the Code occur, and of the offenders who commit them, there is no sentencing tariff for such offences. As this court observed in Popal, the cases reveal that a wide range of sentences have been imposed for offences contrary to s 304(2) of the Code and that, in some cases, substantial individual sentences have been imposed or upheld on appeal. (footnotes omitted)
[57] Cheeseman [84].
In any event, none of the cases referred to by the parties could sensibly be described as comparable, having regard to the unusual features of this case and to the great variety in the circumstances of the offending and in the offenders' personal circumstances in other cases. Further, as was submitted by the respondent,[58] apart from the cases of Lawrence[59] and Meadowcroft, in none of the cases referred to by the appellant were the sentences imposed at first instance for offences contrary to s 304(2) of the Code, the subject of challenge on appeal.
[58] Respondent's written submissions, par 56.
[59] Lawrence v The State of Western Australia [2015] WASCA 187.
The respondent submitted that the case of Forrest v The State of Western Australia[60] may be more comparable. In that case, the appellant, who was a prisoner at the time of offending, approached her unsuspecting victim from behind and poured hot water onto her, causing serious burns. A sentence of 5 years' imprisonment was imposed in circumstances in which the offender received the benefit of a 25% discount from the head sentence for the plea of guilty.
[60] Forrest v The State of Western Australia [2019] WASCA 172.
However, the standards of sentencing that are customarily imposed are not set by reference to a sentence imposed in any one case and, in any event, there are several obvious differences between the circumstances of this case when compared to those that prevailed in Forrest, which means that it also has very limited usefulness as a comparator.
I have also considered the cases of Penny v The State of Western Australia;[61] Sophiadakis v The State of Western Australia;[62] Kaokula v The State of Western Australia;[63] Chikonga v The State of Western Australia;[64] McAllister v The State of Western Australia;[65] Ugle v The State of Western Australia;[66] The State of Western Australia v Darroch;[67] Gleeson v The State of Western Australia;[68] and Vander Waide v The State of Western Australia,[69] all of which merely reinforce the observation that was made in Cheeseman, that a wide range of conduct can amount to an offence contrary to s 304(2), and that a broad range of sentences have been imposed as a result.
[61] Penny v The State of Western Australia [2016] WASCA 52.
[62] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[63] Kaokula v The State of Western Australia [2016] WASCA 198.
[64] Chikonga v The State of Western Australia [2017] WASCA 34.
[65] McAllister v The State of Western Australia [2017] WASCA 183.
[66] Ugle v The State of Western Australia [2018] WASCA 16.
[67] The State of Western Australia v Darroch [2018] WASCA 114.
[68] Gleeson v The State of Western Australia [2019] WASCA 100.
[69] Vander Waide v The State of Western Australia [2019] WASCA 148.
In my view, the sentence of 4 years and 4 months' immediate imprisonment was high, having particular regard to the fact that the appellant's capacity to control her actions was impaired at the time she committed the offence by serious and pre‑existing mental illness which reduced her moral culpability. That the appellant had the capacity to form an intention to harm, and that she appreciated the wrongfulness of her actions, did not diminish the significance of the fact that her ability to control her actions was affected by her mental illness, although, given her plea of guilty, not to the extent that she was completely deprived of that capacity so as to afford her a defence of insanity under s 27 of the Code. However, after taking into account all relevant sentencing factors, I am of the view that although the sentence imposed was high, it was not plainly unreasonable or unjust. The circumstances of the offending were very serious, and the appellant's conduct had a significant effect on the victim. Although there were substantial mitigating factors in the appellant's favour, and her ability to control her actions was impaired by the presence of serious pre-existing mental illness, which reduced her moral culpability for the offending and diminished the need for deterrence, there remained a significant need to protect the public.
In the end, I am not persuaded that the sentence is so high as to compel the inference that there has been some misapplication of principle in the exercise of the sentencing judge's discretion. It follows that I do not accept that it was manifestly excessive.
Conclusion
While I would grant leave to appeal on the sole ground of appeal, I have reached the conclusion that the ground of appeal has not been made out. On that basis I would dismiss the appeal.
On 6 March 2024, the appellant filed an application for leave to adduce additional evidence in the form of a psychiatric report authored by Dr Wojnarowska, dated 5 March 2024, in the event that her appeal against sentence was allowed and if this court then proceeded to exercise the sentencing discretion afresh. In the circumstances I would dismiss the application.
The suppression order
I agree with the reasons of Mazza and Hall JJA for the making a suppression order at the hearing of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
27 MARCH 2024
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