Stevenson v Mackay

[2020] WASC 437

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   STEVENSON -v- MACKAY [2020] WASC 437

CORAM:   DERRICK J

HEARD:   12 NOVEMBER 2020

DELIVERED          :   2 DECEMBER 2020

FILE NO/S:   SJA 1049 of 2020

BETWEEN:   LUKE JOHN STEVENSON

Appellant

AND

CHRISTOPHER MACKAY

Respondent

Catchwords:

Criminal law - Appeal against sentence - Sentence of immediate imprisonment imposed for offence of obstructing a public officer - Whether magistrate imposed wrong type of sentence for offence of obstructing a public officer - Whether magistrate made an error in treating appellant's drug use as an aggravating factor - Whether magistrate failed to consider first limb of totality principle - Whether total sentence imposed by magistrate contravened first limb of totality principle

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Mr D Hunter
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director Of Public Prosecutions (WA)

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

Birch v Binnekamp [2018] WASC 58

Bogers v The State of Western Australia [2020] WASCA 174

Collard v Peden [2017] WASC 32

Corpus v Roseveare [2015] WASC 165

Dillon v The State of Western Australia [2020] WASCA 24

Djanghara v Law [2020] WASC 258

Elwin v Robinson [2012] WASC 311

Elwin v Robinson [2014] WASCA 46

Evans v The State of Western Australia [2019] WASCA 73

Forrest v The State of Western Australia [2019] WASCA 172

Gowan v The State of Western Australia [2016] WASCA 98

Gray v Hayter [2017] WASC 140

Hamlett v Whitney [2013] WASC 100

Harper v Page [2004] WASCA 267

Italiano v The State of Western Australia [2020] WASCA 115

Kabambi v The State of Western Australia [2019] WASCA 44

Kelly v The State of Western Australia [2020] WASCA 29

Kennedy v The State of Western Australia [2017] WASC 156

Law v The Queen [2019] WASCA 81

Lewsam v The State of Western Australia [2016] WASCA 60

Mason v The State of Western Australia [2018] WASCA 43

McComish v Harman [2016] WASC 324

McNamara v The State of Western Australia [2013] WASCA 63

Moir v The State of Western Australia [2014] WASCA 25

NTH v The State of Western Australia [2020] WASCA 22

Page v The State of Western Australia [2018] WASCA 76

Riseley v Gill [2015] WASC 342

Salkilld v The State of Western Australia [2017] WASCA 168

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Squance v The State of Western Australia [2018] WASCA 25

Suleiman v The State of Western Australia [2017] WASCA 26

The State of Western Australia v Jacoby [2020] WASCA 150

The State of Western Australia v Paolucci [2020] WASCA 188

The State of Western Australia v Richards [2020] WASCA 129

The State of Western Australia v Wilkins [2020] WASCA 149

Vickery v McAlinden [2017] WASC 224

Willenberg v Downey [2015] WASC 282

WRT v The State of Western Australia [2020] WASCA 68

Zwerus v The State of Western Australia [2015] WASCA 174

DERRICK J:

Introduction

1. On 16 March 2020 the appellant pleaded guilty to, and was convicted of, one offence of unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be, endangered contrary to s 304(1)(b) of the Criminal Code (WA) (Code) (PE 60087/2019) (the unlawful act offence), one offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Code (PE 60088/2019) (the obstruction offence) and one offence of driving a motor vehicle on a road while a prescribed illicit drug was present in his blood contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) (HV 76/2020).

2. On 12 June 2020 the appellant was sentenced by Magistrate Coleman to 12 months imprisonment for the unlawful act offence and 6 months imprisonment for the obstruction offence.  Her Honour ordered the sentences to be served cumulatively giving a total effective sentence of 18 months imprisonment.[1]  Her Honour imposed a fine and a period of disqualification from holding or obtaining a driver's licence for the driving related offence. 

   [1] ts 14.

3. The appellant now applies for leave to appeal against both the sentence of 6 months imprisonment imposed for the obstruction offence and the total sentence of 18 months imprisonment imposed for the obstruction offence and the unlawful act offence on grounds the details of which are set out below.[2]

   [2] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).

4. On 6 October 2020 the Principal Registrar made an urgent appeal order in respect of the appeal.  The Principal Registrar further ordered that the application for leave to appeal should be heard together with the appeal.

5. The appellant was released on parole on 13 October 2020.

6. For the reasons that follow I am of the opinion that the appeal should be allowed.

Leave to appeal

1. The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[3]  A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[4]  If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[5]

   [3] CAA, s 9(3).

   [4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [5] CAA, s 9(3).

The facts of the offences

1. The facts of the appellant's offences were read to the magistrate by the prosecutor during the hearing before her Honour on 12 June 2020.  The facts as read were admitted by the appellant.  The facts of the appellant's offences are as follows.[6]

   [6] ts 3 ‑ 4.

2. At 10.25 am on 21 December 2019 the appellant was outside a property situated at 29A Anthony Street in Harvey.  He was sitting in the driver's seat of a suspected stolen vehicle.

3. Police who were in the area at the time approached the appellant in the vehicle and spoke to him through an open window.  As the police started speaking to the appellant he immediately started reversing the vehicle while struggling with one of the police officers through the open window at the same time.  The police officer became attached to the vehicle and was forced to run alongside the reversing vehicle in order to avoid falling underneath the vehicle.  This resulted in a significant amount of pressure being applied to the police officer's right arm from the body of the vehicle. 

4. As the police officer was running alongside the vehicle struggling with the appellant, the officer was able to remove the keys from the vehicle's ignition which stopped the vehicle from moving.

5. Once the vehicle had come to a stop the appellant was removed from the vehicle by the police officers and was placed against the vehicle so that handcuffs could be applied to him.  However, the appellant continued to struggle with the police officers and pushed his body weight backwards against the officers.  As a result the officers were required to assist the appellant to the ground.  Once the appellant was on the ground the officers searched him.  Eventually the appellant calmed down.

6. After he had calmed down the appellant spoke to the police officers about his personal situation. 

7. The appellant was taken to the Harvey District Hospital.  He was then taken from the hospital to the police station and charged. 

8. The appellant was subjected to a blood test which returned a positive result for methylamphetamine, amphetamine and MDMA. 

9. It was the appellant's conduct in reversing the vehicle while the police officer was attached to the vehicle that constituted the unlawful act offence.  It was the appellant's conduct in continuing to struggle with the police officers once he had been removed from the vehicle, including pushing his body weight backwards against the officers while they were trying to handcuff him, that constituted the obstruction offence.

The magistrate's sentencing remarks

1. In sentencing the appellant the magistrate found that the appellant had not entered his pleas of guilty at the first reasonable opportunity.[7] Nonetheless, her Honour stated that she was 'prepared to accept for the purposes of the sentencing exercise' that the appellant was entitled to the maximum discount of 25% under s 9AA of the Sentencing Act 1995 (WA).[8]

   [7] ts 11.  Given the magistrate's finding that the appellant had not entered his guilty pleas at the first reasonable opportunity, and given that her Honour did not find that the appellant had indicated that he would plead guilty at the first reasonable opportunity, it was not open to her Honour to reduce the sentences of imprisonment imposed on the appellant by 25%:  Sentencing Act, s 9AA(4)(b). However, this error by her Honour worked to the appellant's favour and is not an error that the respondent has made the subject of an application for leave to appeal.

   [8] ts 11.

2. The magistrate correctly stated the maximum penalty for the unlawful act offence as well as the maximum summary conviction penalty for the offence.[9]  Her Honour also correctly stated the maximum summary conviction penalty for the obstruction offence.[10]

   [9] ts 11.

   [10] ts 11.

3. The magistrate stated that the unlawful act offence and the obstruction offence were 'two very serious offences'.[11]

   [11] ts 11.

4. The magistrate noted that she could not impose a more serious sentencing option unless she was positively satisfied that it was not appropriate to use a less serious sentencing option.[12]

   [12] ts 11 ‑ 12.

5. In dealing with the seriousness of the unlawful act offence, the magistrate stated that the appellant had, by his conduct, endangered the life of the police officer.[13]  Her Honour stated that it was only a fortunate circumstance that the officer was nimble enough to manipulate the keys from the ignition and stop the vehicle.[14]  Her Honour rejected the suggestion that the appellant had stopped the vehicle after he had panicked.[15]  Her Honour stated that the appellant was very fortunate that the officer had not fallen underneath the vehicle and been run over.[16]

   [13] ts 12.

   [14] ts 12.

   [15] ts 12.

   [16] ts 12.

6. The magistrate made the point that the appellant had committed the offences only a few weeks after he had been released from prison.[17]  Her Honour stated that although neither this fact nor the appellant's criminal record was an aggravating factor, the appellant's conduct in committing the offences only a few weeks after having been released from prison demonstrated that previous dispositions had not deterred him from 'returning to making decisions that are less than pro‑social and returning to engage in drug use with adverse peers'.[18]

   [17] ts 12.

   [18] ts 12.

7. The magistrate found that the seriousness of the appellant's offending was 'aggravated by the fact that at the time [he] had been engaging in drug use' and had been using, and was under the influence of, a 'cocktail' of drugs, specifically amphetamine, methylamphetamine and MDMA.[19]  Her Honour noted that the appellant was, on his own admission, 'coming down off drugs' at the time that he committed the offences.[20]

   [19] ts 12.

   [20] ts 12.

8. The magistrate referred to the court ordered pre‑sentence and psychological reports that were before her.  Her Honour stated that the pre‑sentence report (PSR) was not favourable.[21]  Her Honour noted that the psychological report set out a number of risk factors relating to the appellant, and indicated that the appellant may suffer from two personality disorders.[22]  Her Honour stated that a personality disorder is not 'a mental illness … which I should be taking into account'.[23]  Her Honour further stated that she did, however, take into account that when the appellant was 'coming down off drugs' he struggled with mental health issues and depression.[24]

   [21] ts 12.

   [22] ts 12.

   [23] ts 12.

   [24] ts 13.

9. The magistrate acknowledged that at the time that the appellant committed the offences he had issues relating to his drug use and was struggling with  'adverse peer association' and relationship issues.[25]

   [25] ts 13.

10. The magistrate noted that the appellant had been remanded in custody since the date of his arrest for the offences.[26]  Her Honour said that this was something that she took into account.[27]

    [26] ts 13.

    [27] ts 13.

11. The magistrate concluded her sentencing remarks as follows:[28] 

    … I can only impose a sentence of imprisonment … unless I decide that the seriousness of the offence is such that only imprisonment is justified or that the protection of the community requires it.

    In your case, of course, I think both of those boxes are ticked but the most important point is that the seriousness of the offence, being Perth 60087 of 2019, is so - the facts of that matter are so serious that only a term of imprisonment can be justified and I think, Mr Venning had already conceded that. I do remind myself that it is a sentence of last resort but, in my view, I have reached the point where only - the only appropriate position is a term of imprisonment taking into account the serious nature of this offending, that being Perth 60087.

    Once I have arrived at that decision, then, I have a number of options available to me.  I need to reconsider all of the factors put before me in your plea in mitigation and also the aggravating factors to decide whether in all of the circumstances it is appropriate to suspend the term either conditionally or partially and, yes, with or without supervision and program requirement.  In my view, taking into account the matters contained within the report but also the serious nature of this offending I am not minded to impose a sentence of imprisonment that is suspended either with conditions or otherwise. 

    There is no doubt, of course, that you do require some assistance with intervention for drug use but you can be assisted with intervention while you're in the custodial setting and I'm going to make you eligible for parole so that you will continue to be assisted by supervision whilst subject to parole should you be able to take up the option in the future.  So in all of the circumstances I am positively satisfied that it is not appropriate to suspend the sentence and on that basis your sentence today will be immediately served.

    But I do take into account the time that you have been spending in custody on these charges, and I'm going to backdate to the date of your arrest being the date of these offences, 21 December 2019.  I've also considered the one transaction rule and whether or not I should impose concurrent or cumulative imprisonment on your term.  So for Perth 6008 - sorry, 60087 and 60088 of 2019 you will be sentenced to an immediate term of imprisonment and that is as follows.

    The 60087 charge of '19 will be the head sentence and on that charge, taking into account your discount pursuant to section 9AA of the Sentencing Act, you will be required to serve a term of imprisonment of 12 months. For Perth 60088 of 2019, being the obstruct public officers charge, I'm requiring you to serve a term of imprisonment of six months on that charge, and that is to be served cumulatively upon the head sentence. The total effective sentence therefore will be 18 months imprisonment and I am going to allow that sentence to be backdated to 21 December 2019 and you will be made eligible for parole after having served one half of your sentence for those charges.

    …

    [28] ts 13 ‑ 14.

Ground 1

1. The first of the appellant's grounds of appeal is expressed in the following terms:

   1.The individual sentence of 6 months imprisonment imposed by the learned sentencing Magistrate on the offence of obstructing a public officer was, in all the circumstances manifestly excessive.

   Particulars

   1.1The criminality involved in the offence;

   1.2Sentences imposed in broadly comparable cases.[29]

   [29] An appeal may be made on the ground that a sentence imposed was manifestly excessive pursuant to s 8(1)(a)(iii) of the CAA.

2. During the hearing of the appeal the appellant's counsel confirmed that the contention intended to be encompassed by this ground is that the sentence was manifestly excessive because the magistrate imposed the wrong type of sentence, and that the appropriate sentence was something other than imprisonment, specifically a fine.[30]  The appellant did not seek to contend on the appeal that if the magistrate did not make an error in imposing a term of imprisonment the length of the term imposed was manifestly excessive.

Applicable legal principles

[30] Appeal, ts 3.

1. The principles to be applied by an appellate court in a case where the allegation is that the wrong type of sentence was imposed are well established and are as follows:

   1.Sentencing is a discretionary exercise.  The discretion conferred on a sentencing court is of fundamental importance.  An appellate court can only intervene if express or implied error is demonstrated.  Thus an appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently;[31]

   2.A ground of appeal which alleges that the wrong type of sentence was imposed asserts the existence of an implied error;

   3.Where the allegation is that the wrong type of sentence was imposed, in order for implied error to be established it must be shown that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred.[32]  To put the matter another way,  the question for the appellate court is whether it was reasonably open to the sentencing judicial officer to find that the less serious sentencing option was not appropriate;[33]

   4.In order to determine whether it was reasonably open to the sentencing judicial officer to find that the less serious sentencing option was not an appropriate disposition for an individual offence, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender;[34]

   5.The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in a particular case.  Similarly the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried;[35] and

   6.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether the wrong type of sentence was imposed.[36]  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect. [37]

Appellant's submissions

[31] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36]; Kabambi v The State of Western Australia [2019] WASCA 44 [21]; WRT v The State of Western Australia [2020] WASCA 68 [40]; Bogers v The State of Western Australia [2020] WASCA 174 [55].

[32] Salkilld v The State of Western Australia [48]; Page v The State of Western Australia [36].

[33] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).

[34] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36]; Kabambi v The State of Western Australia [21]; WRT v The State of Western Australia [40]; Italiano v The State of Western Australia [2020] WASCA 115 [38]; Bogers v The State of Western Australia [55].

[35] Kabambi v The State of Western Australia [21]; WRT v The State of Western Australia [40]; Italiano v The State of Western Australia [41]; Bogers v The State of Western Australia [55].

[36] Italiano v The State of Western Australia [42].

[37] Kabambi v The State of Western Australia [21]; WRT v The State of Western Australia [40]; Italiano v The State of Western Australia [42]; Bogers v The State of Western Australia [55].

1. The appellant submits that the criminality involved in the obstruction offence was at the low end of the range and did not warrant the imposition of a term of imprisonment.[38]  In support of this submission the appellant refers to the decisions of this Court in Vickery v McAlinden,[39] Birch v Binnekamp[40] and Djanghara v Law.[41]

Respondent's submissions

[38] Appellant's undated Outline of Submissions filed 7 October 2020 (Appellant's Submissions) [14].

[39] Vickery v McAlinden [2017] WASC 224.

[40] Birch v Binnekamp [2018] WASC 58.

[41] Djanghara v Law [2020] WASC 258.

1. The respondent submits that having regard to the maximum penalty for the obstruction offence, the seriousness of the obstruction offence, the standards of sentencing customarily observed for offences of the type committed by the appellant, the appellant's personal circumstances and the mitigating factors present in the appellant's case, the sentence imposed by the magistrate was not outside the range of a sound exercise of the sentencing discretion.  As part of this submission the respondent points to a number of decisions of this Court in addition to those pointed to by the appellant which he asserts demonstrate that sentences imposed for offences of obstructing public officers have ranged from fines to sentences of immediate imprisonment.

Analysis

Maximum penalty

1. The maximum summary conviction penalty that could be imposed by the magistrate for the obstruction offence was, as her Honour noted, 18 months imprisonment and a fine of $18,000.[42]  However, the maximum summary conviction penalty is only a jurisdictional limit.  It is not the statutory maximum penalty.  The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of dealing with the ground of appeal, is 3 years imprisonment.[43]

Seriousness of appellant's conduct

[42] Code, s 172(2).

[43] Code, s 172(2).

1. The appellant's obstruction offence was comprised of him, once he was out of the vehicle, resisting being arrested and handcuffed by struggling with the police officers and pushing his body weight backwards against the officers.  Indeed, the appellant put up enough resistance to make it necessary for the police officers to 'assist' him to the ground.  Moreover, the appellant's conduct must be viewed in the context of what had just occurred.  That is, even though the appellant had just engaged in dangerous behaviour that had put the safety of a police officer at real risk he did not, once he was out of the car, immediately, in recognition of his wrongdoing, act in a contrite and passive fashion.  Rather, he continued to deliberately resist the police so as to make their task of placing him under arrest more difficult than it should have been.  In my view, the fact that the appellant engaged in this type of conduct against the background of having already put one police officer at real risk of serious harm aggravates the seriousness of his conduct in committing the obstruction offence.

2. Having said the above, the appellant did not, it would appear, at any point after he was removed from the vehicle, attempt to directly apply force to the police officers other than by pushing his bodyweight backwards against them.  He did not strike or kick out at the police officers.  Moreover, once on the ground he calmed down relatively quickly.  In addition, the offence was not committed in circumstances that gave rise to a risk of other members of the public being injured or being incited to act aggressively towards the police officers.

3. In the circumstances to which I have referred, I am satisfied that the obstruction offence did not fall towards the high end of the range of seriousness for offences of its type. I am not, however, satisfied that the obstruction offence was at the low end of the range of seriousness for offences of its type or even towards the low end of the range of seriousness.  In my opinion, the context in which the appellant committed the obstruction offence precludes a finding that the offence did fall towards the low end of the range of seriousness.  In my opinion the obstruction offence was, given the context in which it was committed and despite the relatively limited physical resistance offered by the appellant, a moderately serious example of its type.

Appellant's antecedents and personal circumstances[44]

[44] ts 4 ‑ 9; PSR, pages 3 ‑ 4; Psychological Report [3] ‑ [11].

1. The appellant was 36 years old at the time he committed the offences. 

2. The appellant received a supportive upbringing.  At the time of his sentencing his parents remained supportive of him.

3. After leaving school the appellant completed an apprenticeship as a boilermaker/welder.  He worked as a boilermaker/welder for approximately 12 years until 2015 when he became unable to work due to a back injury.  After 2015 the appellant worked for cash on an intermittent basis while receiving unemployment benefits.

4. The appellant has been involved in two significant relationships.  He entered the second of these relationships soon after the first relationship came to an end. 

5. The appellant has three children aged approximately 7, 4 and 1 born to the second of his relationships.  The relationship came to an end in May 2019.

6. The appellant started using alcohol and cannabis while at high school.  His use of these substances reached significant levels within a few years. 

7. The appellant started using methylamphetamine at age 26.  This followed the cessation of the first of his two significant relationships.  He resorted to methylamphetamine use as a means of coping with the ending of the relationship.  His use of methylamphetamine quickly escalated to daily use.  He started to sell the drug in order to fund his use and the use of his second partner.  Methylamphetamine use remains a significant problem for the appellant.

8. At the time of his sentencing the appellant expressed a motivation to seek psychological counselling in the community and to access a mental health care plan.

9. Prior to his sentencing and during the time that he had been remanded in custody, the appellant had been taking prescribed antidepressant and antipsychotic medication.  He had made some inquiries with Palmerston regarding rehabilitation programs.

Psychological report

1. The psychological report that was before the magistrate indicated that the appellant suffered from high levels of anxiety and depression, and exhibited a number of personality characteristics that were consistent with the presence of a Borderline Personality Disorder.[45]  The author of the report stated that the existence of a Borderline Personality Disorder can result in significant impulsive overreactions or emotional responses, causing problems with emotional stability, relationships and decision making.[46]  The author of the report 'hypothesised' that the appellant's offending behaviour was likely influenced by both the presence of a significant personality disturbance and the disinhibiting influence of his use of methylamphetamine.[47]  The author of the report 'theorised' that the appellant might have been experiencing a brief psychotic episode at the time of committing the offences.[48]  The author of the report identified the presence of the following risk factors:  the appellant's criminal record; the appellant's tendency to revert to antisocial thinking when experiencing episodes of distress; the appellant's tendency to rely on substances as a form of avoidance; the appellant's minimal involvement in healthy community based activities; the appellant's lack of significant support save for his parents; and the appellant's lack of gainful employment.[49]

Pre‑sentence report

[45] Psychological Report [21].

[46] Psychological Report [21].

[47] Psychological Report [23].

[48] Psychological Report [23].

[49] Psychological Report [24].

1. The PSR that was before the magistrate indicated that the appellant had outstanding treatment needs within the areas of illicit substance use, alcohol use, unstable mental health, lack of positive peer networks and leisure activities, and ongoing minimisation of offending.[50]  The author of the PSR noted that the appellant had admitted that throughout the period of time that he had been in the community after being released from prison he had been under the influence of methylamphetamine and had called in outstanding drug debts from the first night of his release.[51]  The author noted that the appellant had failed to adequately engage with prior community based sanctions, that departmental records revealed that he had failed to take ownership of his offending behaviour and that his mental health issues impacted on his ability to comply.[52]  The author recommended that the appellant was not suitable for a community based sanction given his minimisation of offending, his unstable mental health, his lack of understanding of his mental health issues, and his previous non‑compliance with orders.[53]

Criminal record

[50] PSR, page 1

[51] PSR, page 2.

[52] PSR, page 2.

[53] PSR, page 1.

1. The appellant at the time of sentencing had a not insignificant adult criminal record.  He had previously been convicted of, among other offences, criminal damage, possessing drug paraphernalia, possessing prohibited drugs, cultivating cannabis with intent to sell or supply, breach of bail, possessing stolen or unlawfully obtained property, possessing methylamphetamine with intent to sell or supply, and possessing weapons. 

2. In January 2015 the appellant was placed on a community based order for a number of offences.  He breached the order by failing to comply with its requirements. 

3. In June 2019 the appellant was sentenced to 6 months and 14 days imprisonment for his possession of methylamphetamine with intent to sell or supply offence.  It was shortly after being released from this term of imprisonment that the appellant committed the unlawful act offence and the obstruction offence.

4. The appellant did not commit any offences during the periods 2011 ‑ December 2014 and 2016 ‑ 2018.

5. Clearly, the appellant's criminal record and his past poor performance on a community based order did not aggravate or increase the seriousness of the unlawful act offence or the obstruction offence.[54]  Nonetheless, the nature and extent of the appellant's record was such as to preclude the appellant from being afforded any leniency for good character.[55]  Further, the fact that the sentences previously imposed on the appellant had not deterred him from engaging in criminal conduct meant that specific deterrence was of relevance in determining the sentences to be imposed on him for the unlawful act offence and the obstruction offence.[56]  This was so even taking into account his offence free periods. 

Mitigating factors

[54] Sentencing Act, s 7(2)(b), s 7(2)(c).

[55] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].

[56] Hamlett v Whitney [2013] WASC 100 [27].

1. The primary mitigating factor in the appellant's case was his early guilty pleas.  Other, albeit less significant, mitigating factors were the appellant's acceptance of responsibility for the offences, his expressed willingness to take steps to address his psychological and mental health issues, and his apparent desire to seek treatment for his drug use problem.

2. The material before the magistrate did not provide a basis for her Honour to conclude that the appellant's personality disorder and mental health issues (depression and anxiety), to the extent that they existed, were of themselves a substantial cause of the appellant committing the unlawful act offence and the obstruction offence.  To the contrary, the material before the magistrate supported the finding that the operative cause of the appellant acting in the way that he did was his voluntary use of illicit drugs; that is, that it was the appellant's voluntary use of illicit drugs which served to exacerbate his personality disorder associated feelings of agitation and upset arising from his belief (subsequently shown to be mistaken) that his former partner had been unfaithful to him during their relationship.[57]  In these circumstances, and assuming without deciding that a personality disorder is a mental impairment capable of reducing a person's moral culpability for offending behaviour,[58] neither the appellant's personality disorder and mental health issues, nor the fact that the appellant was agitated and upset at the time that he committed the obstruction offence, reduced his culpability for committing the offences to any material extent.[59]  I note in this regard that the appellant did not submit before the magistrate, or before me at the hearing of the appeal, that his culpability for committing the obstruction offence was reduced by reason of the existence of a causal connection between his personality disorder and mental health issues, and his commission of the offence.

   [57] ts 4.

   [58] In Bogers v The State of Western Australia [89] ‑ [90] the Court refrained from deciding this question.

   [59] McNamara v The State of Western Australia [2013] WASCA 63 [96] ‑ [104]; Suleiman v The State of Western Australia [2017] WASCA 26 [58] ‑ [63]; Squance v The State of Western Australia [2018] WASCA 25 [38] ‑ [40]; Bogers v The State of Western Australia [78] ‑ [92].

3. The psychologist's 'theory' that the appellant may have been experiencing a brief psychotic episode at the time of committing the offences did not provide a proper evidentiary foundation for the magistrate to make a finding to this effect.

Standards of sentencing customarily observed - the cases relied upon by the appellant

1. It is not easy to find broadly comparable cases to the present.  As was noted by Archer J in Birch v Binnekamp,[60] the cases involve widely varying circumstances and often involve total effective sentences imposed for a range of different offences.  Penalties imposed for the offence of obstructing a public officer have ranged from fines to sentences of immediate imprisonment.[61]  Nonetheless, it is, I think, useful to consider the three cases upon which the appellant places particular reliance, one of which is, as I have already indicated, Birch v Binnekamp.

   [60] Birch v Binnekamp [21].

   [61] Birch v Binnekamp [21].

2. In Vickery v McAlinden the offender was convicted on his pleas of guilty of one offence of disorderly behaviour in public and one offence of obstructing a public officer.  The facts of the offences were as follows.

3. The offender, who was highly intoxicated, was seen by the police getting out of a vehicle on the Mitchell Freeway and walking in and out of the emergency lane.  The offender took his shirt off and waved his arms around while yelling towards his partner who was sitting in the vehicle, 'What the fuck' and 'Give me back my phone, do it fucking now'.

4. Police officers approached the offender.  The offender was very irate and acted aggressively towards the police.  He continually yelled, screamed and growled.  His hands were clenched.  He paced back and forth.  He kept trying to walk onto the carriageway towards his partner in the vehicle.  He was yelling, 'Don't listen to them pigs, babe, they're all fuck - they are fuck all', 'get the fuck away from me' and 'what the fuck are you going to do?'

5. The police officers told the offender to stay on the other side of the safety barrier.  However, the offender continued to keep walking out onto the carriageway while yelling abuse at the police.  The offender was at this point informed that he was under arrest and the police took steps to restrain him.  The offender resisted arrest by fighting with officers on the side of the freeway.  The offender attempted to get his arms free and push the officers away while screaming, 'Don't fucking touch me, I swear to God, if you don't let me, I'm going to kill you'.

6. The offender continued to fight with the police officers and attempted to elbow officers in the head.  This continued for about one to two minutes before the offender was taken to the ground, secured and handcuffed.  The offender continued to yell, 'I'm going to slit your throat' towards the police officers.

7. At the time of the events there was heavy traffic and other road users were driving around the vehicle and the offender. 

8. The only significant mitigating factors were the offender's acceptance that he had 'behaved appallingly' and his early pleas of guilty. 

9. The offender was sentenced in the Magistrates Court to a fine of $750 for the disorderly behaviour offence, and to 6 months and 1 day imprisonment suspended for 12 months for the obstruct public officer offence. 

10. In imposing the sentence of imprisonment the magistrate expressly gave to the offender under s 9AA of the Sentencing Act the maximum discount of 25% for his early guilty pleas. 

11. The offender applied for leave to appeal against the sentence of imprisonment imposed for the obstruct public officer offence on two grounds.  The first ground alleged that the magistrate erred in concluding that only a sentence of imprisonment, albeit suspended, could be justified.  The second ground alleged that the magistrate had erred in sentencing the offender on the basis that he had actually elbowed a police officer in the face, as opposed to merely attempting to do so.

12. Chaney J allowed the appeal on the second of the above referred to grounds, this ground having been conceded, and consequently exercised the sentencing discretion afresh.  In doing so his Honour said the following:[62]

    While I acknowledge that the conduct of the [offender] was reprehensible, that he put himself and to a degree at least, the officers concerned, at risk, I have concluded that, having regard to the [offender's] early plea of guilty and to the requirements of s 86 of the Sentencing Act, a sentence of imprisonment is not the only disposition open. Section 39(3) of the Sentencing Act requires that a court must not use a sentencing option unless it is satisfied that it is not appropriate to use any of the lesser sentencing options available.  In my view, a substantial fine is the appropriate penalty.

    [62] Vickery v McAlinden [38].

13. Chaney J imposed a fine of $5,000.

14. Chaney J did not determine the first of the offender's grounds of appeal.  It is therefore correct to say, as the respondent does, that his Honour did not make a finding that it was not reasonably open for the magistrate to find that a less serious sentencing option to imprisonment was not appropriate.  Nonetheless, the fact remains that Chaney J did conclude that the appropriate sentence in all the circumstances was a fine of $5,000.

15. In Birch v Binnekamp the offender was convicted on his pleas of guilty of a number of offences including two offences of obstructing a public officer, one offence of unlawful assault and one offence of making a threat to injure, endanger or harm any person. 

16. The facts of the first in time of the offender's obstruct public officer offences were as follows.

17. On 24 December 2015 the offender was asked to produce a ticket by transit officers conducting a routine ticket inspection.  The offender shouted at and abused the transit officers (with children being present).  The offender, after being warned that he would be arrested, yelled at the transit officers that they would both end up on the ground.  The transit officers then placed the offender under arrest.  The offender resisted heavily, by holding onto a nearby pole and by wrapping his legs around the pole.  When the offender was eventually removed from the train four officers were required to restrain him.

18. The facts of the second in time of the offender's obstruct public officer offences and the common assault offence were as follows.

1. On 26 February 2016 the offender was a passenger in a vehicle.  He was observed acting in an aggressive and agitated manner by passing motorists.

2. The victim, a police officer travelling in an unmarked police vehicle on George Street in Kensington, noticed the offender's vehicle travelling behind him with the offender hanging out of the window yelling abuse and shouting at pedestrians.  The victim turned into the driveway of the Kensington Police Station and parked.  The offender's vehicle followed and parked behind the victim's vehicle.  The victim got out of his vehicle and identified himself as a police officer.  The offender got out of his vehicle and aggressively approached the victim with a clenched fist screaming, 'You better get back in the car, you c‑'.  The offender then charged at the victim in a fighting posture.  The victim subdued the offender by using hand to hand techniques and arrested him, wrestling him into the front doors of the police station.  The offender resisted by pushing and waving his arms and attempting to kick out at the victim. 

3. It is not necessary to refer to the facts of the threat offence.

4. The offender was 27 years old at the time of sentencing.  He had a mental illness, a mild intellectual disability and a history of drug use.  His drug use had contributed to his commission of the offences.

5. The offender had a criminal record, although his prior offences were not of the most serious type.  He did have prior convictions for breaching community based orders.  He had never previously been sentenced to a term of imprisonment or an intensive supervision order. 

6. The offender was sentenced in the Magistrates Court to 3 months imprisonment for each of the obstruct public officer offences and for the unlawful assault offence. He was sentenced to 6 months imprisonment for the threat offence. The terms of imprisonment imposed for one of the obstruct public officer offences, the unlawful assault offence and the threat offence were ordered to be served cumulatively, with the term imposed for the second obstruct public officer offence being ordered to be served concurrently. The result was a total effective sentence of 12 months imprisonment. The magistrate suspended the term of imprisonment for a period of 12 months. The offender was given the maximum 25% discount under s 9AA of the Sentencing Act. 

7. The offender applied for leave to appeal against the sentences imposed, one of his grounds of appeal being that the sentencing magistrate had erred in imposing a suspended term of imprisonment.  The appeal was dismissed.

8. In dismissing the appeal Archer J found that all of the offences had a 'serious component'[63] and that the threat offence on its own would have justified a sentence of 12 months imprisonment suspended for 12 months.[64] 

   [63] Birch v Binnekamp [49].

   [64] Birch v Binnekamp [83], [91].

9. In relation to the first of the offender's obstruct public officer offences Archer J expressed the view that the offence was a serious example of its type.[65]  Her Honour noted that the offence was committed on a train and involved conduct that could deter members of the public from using public transport.[66]  Her Honour described the offender's behaviour as persistent, aggressive and threatening.[67]

   [65] Birch v Binnekamp [50].

   [66] Birch v Binnekamp [50].

   [67] Birch v Binnekamp [50].

10. In relation to the second of the obstruct public officer offences and the unlawful assault offence, Archer J noted that the offences were committed after the victim had identified himself as a police officer, and that it was the officer's management of the situation that had brought the offending to an end.[68]

    [68] Birch v Binnekamp [51].

11. In Djanghara v Law the offender was convicted on his early pleas of guilty of one offence of street drinking, one offence of disorderly behaviour in public, and one offence of obstructing a public officer.  The facts of the offender's offences were as follows.

12. The offender, while standing in the middle of the road, approached a police vehicle with an open can of Jim Beam bourbon.  The police advised the offender that it was illegal to street drink and that they would destroy the alcohol.  The offender began to drink the alcohol in front of the police.  The police took the bourbon can from the offender and the offender started to become aggressive.  He began to shout obscene, threatening and abusive language towards the police at the top of his voice.  The offender was advised that if he continued with his behaviour he would be arrested.  The offender's friends attempted to calm the offender down and to take him away from the police, but the offender continued to shout abuse at the top of his voice at the police.  The offender then began to physically fight with his friends and push past one to adopt a fighting stance towards the police.  The offender lunged towards police and was at this point arrested.  The offender began to physically resist the arrest by throwing his arms in the air and trying to pull away from the police.  The offender was placed on the ground.  While on the ground the offender began to dig his arms into his chest and put his weight down.  The offender was eventually subdued and handcuffed. 

13. Once handcuffed the offender was escorted to the rear secure pod of the police vehicle where he continued to shout abuse and refused to step into the secure pod.  The offender was eventually placed into the secure pod. 

14. It was the offender's conduct in resisting arrest and resisting being placed in the secure pod that constituted his obstruct public officer offence.

15. The offender was a 47‑year‑old Aboriginal man from the Kimberley region of Western Australia.  He had a relatively minor criminal record which included numerous convictions for disorderly behaviour and one prior conviction for obstructing a public officer.  He also had prior convictions for two drug offences and for breaching community based orders.  He had never been sentenced to an immediate term of imprisonment or to a suspended term of imprisonment.

16. The offender had been struggling with alcohol use issues since the death of his wife two years previously.  The Kimberley Community Drug Alcohol Service had provided a positive report about the offender. 

17. For the street drinking and disorderly behaviour in public offences the magistrate fined the offender.  For the obstruct public officer offence the magistrate imposed a sentence of 6 months and 1 day imprisonment suspended for 9 months.  The offender applied for leave to appeal against this sentence.

18. On appeal, Archer J found that the obstruct public officer offence was not at the high end of obstruction offences.[69]  Her Honour made the point that the offence did not involve physical acts of aggression towards the police and that rather the offender had been trying to make it more difficult for the police to arrest him.[70]  However, Archer J also found that the offence was not trivial.[71]  In this regard her Honour noted that the offender had sought to make it more difficult for the police to handcuff him, had refused to get into the pod on his own and was verbally abusive.[72]  Her Honour also noted that all of the offender's conduct occurred in public.[73]

    [69] Djanghara v Law [37], [52].

    [70] Djanghara v Law [37].

    [71] Djanghara v Law [38].

    [72] Djanghara v Law [38].

    [73] Djanghara v Law [38].

19. Ultimately, Archer J allowed the appeal.  Her Honour found that the seriousness of the offence was not such that imprisonment was the only option and that the protection of the community did not require the imprisonment of the offender.[74]  Her Honour, taking into account that the offender had been under the suspended term of imprisonment for over five months by the time of the determination of his appeal, imposed a fine of $200.[75]  Her Honour made the point that had it not been for the period of time for which the offender had been subject to the suspended imprisonment order she would have imposed a more substantial fine.[76]

    [74] Djanghara v Law [53].

    [75] Djanghara v Law [63].

    [76] Djanghara v Law [63].

20. The three cases to which I have referred cannot be said to establish a tariff or range of appropriate sentences for offences of obstructing a public officer.  However, the three cases do, in my opinion, reveal not only that sentences other than immediate imprisonment, including fines, have been imposed for such offences, but also that sentences other than immediate imprisonment have been imposed for such offences in circumstances where the degree of aggression exhibited by the offender was greater than, or similar to, the aggression exhibited by the appellant in committing the obstruction offence.

Standards of sentencing customarily observed - the cases relied upon by the respondent

1. I have reviewed all of the cases referred to by the respondent.[77]  In all of the cases the offence of obstructing a public officer was one of a range of offences of which the offender had been convicted.  One of the cases was an appeal against conviction only.[78]  Further, in all but one of the cases in which the appeal was against sentence, the appeal was concerned with the individual sentence imposed for one or more of the offences of which the offender had been convicted other than the obstruct public officer offence, or with the total sentence imposed.  In these circumstances the cases are, in my view, of very limited assistance when it comes to determining the ground of appeal.  Consequently, I do not consider that there is any useful purpose to be served by me embarking upon any detailed discussion of the cases.  Rather, it suffices, in my opinion, to say that a review of the cases in question reveals the following.  First, that in the cases in which a term of immediate imprisonment was imposed for the obstruct public officer offence, the conduct of the offender involved him or her deliberately striking the police officer, or deliberately striking out at the police officer, or at least struggling against the police officer in a more violent fashion than was exhibited by the appellant in the present case.  Second, that in those cases in which a term of immediate imprisonment was imposed for the obstruct public officer offence, the term did not exceed 3 months. 

Disposition

[77] Moir v The State of Western Australia [2014] WASCA 25; Elwin v Robinson [2012] WASC 311; Elwin v Robinson [2014] WASCA 46; Corpus v Roseveare [2015] WASC 165; Riseley v Gill [2015] WASC 342; Lewsam v The State of Western Australia [2016] WASCA 60; Collard v Peden [2017] WASC 32; Gray v Hayter [2017] WASC 140.

[78] Elwin v Robinson [2012] WASC 311; Elwin v Robinson [2014] WASCA 46.

1. The Sentencing Act sets out the options as to penalties that can be imposed following conviction for an offence.  A court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any of the less severe options available.[79]

   [79] Sentencing Act, s 39(3).

2. In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment.[80]

   [80] Sentencing Act, s 6(4).

3. The obstruction offence was, for the reasons that I have given, a moderately serious example of its type.  Further, although the appellant had supportive parents, his personal circumstances at the time of sentencing were not particularly favourable.  In addition, he was not of prior good character and the sentencing consideration of personal deterrence did have a role to play in the sentencing process.  Finally, general deterrence was also a relevant sentencing consideration. 

4. On the other side of the ledger, however, was the fact that there were some mitigating factors present, the most significant of which was the appellant's early plea of guilty. 

5. The case is finely balanced.  Ultimately, however, taking into account the above competing considerations as well as the general sentencing pattern for obstruct public officer offences to the extent that a pattern can be discerned from the cases to which I have referred, I am not persuaded that it was not reasonably open to the magistrate to find that the seriousness of the obstruction offence was such that only imprisonment could be justified.  To put the matter another way, I am not satisfied that it was not reasonably open to the magistrate to conclude that less serious sentencing options, that is, sentences other than imprisonment, were not appropriate. 

6. The ground of appeal has not been made out.  Accordingly, although I would grant leave to appeal on the ground, I would not uphold the appeal on the basis of the ground. 

Ground 2

1. The appellant's second ground of appeal is pleaded in the following terms:

   2.The learned sentencing Magistrate made an express error of law in not considering the totality principle when sentencing the appellant. The appellant was sentenced to 6 months imprisonment on the offence of obstructing a public officer, to be served cumulatively upon the head sentence of 12 months imprisonment, imposed on the offence of doing an act endangering the life, health or safety of a person.

   Particulars

   2.1The criminality involved in both offences;

   2.2Both offences being temporally linked, occurring in the one course of conduct and involving the same complainant.[81]

   [81] An appeal may be made on a the ground that the sentencing judicial officer made an error of law pursuant to s 8(1)(a)(i) of the CAA.

2. Thus the ground alleges an express error by the magistrate.

Appellant's submissions

1. The appellant submits that the magistrate did not consider the first limb of the totality principle.  In support of this submission the appellant asserts as follows:

   1.The magistrate described the unlawful act offence and the obstruction offence as 'two very serious offences';[82]

   2.The magistrate, in her sentencing remarks, focused on the seriousness of the unlawful act offence;

   3.The magistrate did not in her sentencing remarks explain why she was of the view that the obstruction offence was very serious;

   4.The magistrate did not in her sentencing remarks refer to the obstruction offence save for saying that, 'I've also considered the one transaction rule and whether or not I should impose concurrent or cumulative imprisonment on your term';[83] and

   5.The unlawful act offence and the obstruction offence were committed during the same course of conduct against the same complainant and constituted a single transaction.

Respondent's submissions

[82] ts 11.

[83] ts 14.

1. The respondent submits that a reasonable analysis of the magistrate's sentencing remarks reveals that her Honour did consider the totality principle.

The totality principle and the one transaction 'rule'

1. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.[84] 

   [84] Bogers v The State of Western Australia [55(3)].

2. As to the method of applying the totality principle, in The State of Western Australia v Richards[85] the court said the following (citations omitted):

   The conventional means of applying the totality principle has been reiterated in a number of recent decisions of this court.  A judge sentencing an offender for multiple offences should first fix an appropriate sentence for each offence and then consider the application of the totality principle.  In applying the totality principle, a judge may achieve an appropriate total effective sentence by ordering one or more of the sentences to be served wholly or partly concurrently with other sentences, or by reducing the otherwise appropriate length of the sentences.  Where a judge applies the totality principle to achieve a total effective sentence by lowering one or more of the individual sentences that would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.  The sentencing remarks should indicate the extent to which the judge has reduced the individual sentences in the application of the totality principle.

   [85] The State of Western Australia v Richards [2020] WASCA 129 [34].

3. In relation to the interaction between the application of the totality principle and the so called one transaction rule, in Gowan v The State of Western Australia[86] Corboy J, with whom Buss JA (as his Honour then was) and Mazza JA agreed, said the following:

   Mr Gowan contended in his written submissions that the sentencing judge had erred by failing to apply the one transaction rule.  The contention formed part of Mr Gowan's submissions on whether the sentences imposed infringed the totality principle. 

   The one transaction rule is said to apply 'when a number of offences "arise out of substantially the same act, circumstances or series of occurrences" ... or when there is "one multi‑faceted course of criminal conduct ... or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode''':  R v Faithfull [2004] WASCA 39 [26] (McLure J, with whom Malcolm CJ and Wheeler J agreed) (citations omitted). However, the rule is only a 'rule of thumb': Butler v The State of Western Australia [2012] WASCA 249, in which Mazza JA (with whom McLure P and Buss JA agreed) noted that:

   'As this court has pointed out on many occasions, the one transaction rule is merely a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close together in time or in a spree is proportionate to the offender's overall criminality.  It will sometimes be the case that cumulative sentences are justified to properly reflect an offender's overall criminality:  Lesay v The State of Western Australia [2011] WASCA 154 ... [53].'

   Accordingly, it is not a principle of sentencing law that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode.  There may be circumstances in which wholly concurrent terms of imprisonment will not reflect the total criminality involved even though the offending occurred during a single episode.  In R v Faithfull, McLure J (as her Honour then was) considered that the circumstances in Pearce v The Queen provided an example of where accumulation was required to reflect the total criminality involved (the offender was convicted of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm and breaking and entering a dwelling and inflicting grievous bodily harm on the victim while in the dwelling) [28].

Analysis and decision

[86] Gowan v The State of Western Australia [2016] WASCA 98 [34] ‑ [36].

1. It is important, in dealing with this ground of appeal, to read the magistrate's remarks as a whole and not with an eye finely tuned for error.[87]

   [87] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].

2. I accept that the focus of the magistrate's sentencing remarks was on the unlawful act offence.  I also accept that the magistrate did not clearly articulate why she considered the obstruction offence to be a 'very serious offence'.  I do not, however, accept that the magistrate made the error alleged. 

3. It was not necessary for the magistrate to expressly recite in her sentencing remarks the first limb of the totality principle.  Nor was it necessary (although it would have been desirable) for her Honour to expressly state that she had, in arriving at the total sentence of 18 months imprisonment, applied the first limb of the totality principle.

1. In my opinion, it is implicit in the magistrate's statement that she had 'considered the one transaction rule and whether or not [she] should impose concurrent or cumulative imprisonment' that her Honour did consider the first limb of the totality principle.  That is, it is in my opinion clear from the magistrate's statement that her Honour concluded that notwithstanding that the unlawful act offence and the obstruction offence were committed as part of the one transaction, the individual sentences of imprisonment that she had imposed should be ordered to be served cumulatively so as to give what was in her view a total effective sentence that bore a proper relationship to the overall criminality involved in both of the offences viewed in their entirety having regard to all relevant facts and circumstances. 

2. For the reasons I have given in my opinion this ground of appeal has no reasonable prospect of success. 

Ground 4

1. It is convenient at this point to deal with the fourth of the appellant's grounds of appeal.  The fourth ground is pleaded in the following terms:

   4.The Learned Magistrate made an error in finding the Appellant's drug use aggravated the seriousness of the offending.

2. Thus the ground alleges an express error by the magistrate.

Appellant's submissions

1. The appellant submits that the magistrate made a positive finding that the appellant's use of illicit drugs was an aggravating factor.  The appellant submits that although it might not be able to be said that engaging in drug use is 'never an aggravating factor in regard to sentencing for an offence',[88]  the appellant's drug use did not aggravate the seriousness of his offences.  The appellant therefore submits that the magistrate made an error in making a finding to the contrary.

Respondent's submissions

[88] Appeal, ts 8.

1. The respondent submits that whether or not the voluntary consumption of drugs by an offender is an aggravating factor will depend on the circumstances.  The respondent submits that a person who is under the influence of drugs is less predictable, less stable, and less able to be reasoned with, and that this 'might make … conduct more serious than might otherwise be the case'.[89]  Ultimately, however, the respondent does not positively assert that in the circumstances of the appellant's case his use of illicit drugs operated as an aggravating factor.

Analysis and disposition

[89] Appeal, ts 17.

1. As I have previously indicated the magistrate did, in the course of her sentencing remarks, state that the appellant's offending was 'aggravated' by reason of the fact that he was under the influence of illicit drugs at the time of committing the offences.  Further, a little later in her remarks the magistrate stated that having arrived at the decision that imprisonment was the only appropriate disposition for the unlawful act offence, it was necessary for her to reconsider all of the factors put before her by the appellant's counsel in his plea in mitigation 'and also the aggravating factors' in deciding whether it was appropriate to suspend the term of imprisonment.[90] 

   [90] ts 13.

2. An aggravating factor is a factor which increases the culpability of an offender.[91]  It is therefore clear from the magistrate's above referred to statements that her Honour found, for the purposes of sentencing the appellant, for at least the unlawful act offence, that the fact that the appellant had voluntarily consumed illicit drugs prior to committing the offences and was under the influence of illicit drugs at the time of committing the offences increased his culpability (or moral blameworthiness) for committing the offences.

   [91] Sentencing Act, s 7(1).

3. The fact that the appellant had voluntarily consumed illicit drugs prior to committing the unlawful act offence and the obstruction offence, and was under the influence of the drugs at the time of committing the offences, although providing an explanation for his conduct, was not a mitigating factor.  It was not a factor that decreased the appellant's culpability for committing the unlawful act offence and the obstruction offence or decreased the extent to which he should be punished for the offences.[92] 

   [92] Sentencing Act, s 8(1); Zwerus v The State of Western Australia [2015] WASCA 174 [25].

4. It is possible to conceive of some situations in which the voluntary consumption of illicit drugs by a person and the person's consequential state of drug induced intoxication will materially increase the culpability of the person for committing an offence and therefore constitute an aggravating factor.[93]  For example, if a person voluntarily consumes illicit drugs with the express purpose of giving themselves 'Dutch courage' for the commission of an offence (or to use the respondent's counsel's words, 'to build themselves up to go and commit an offence'), the fact of the consumption of the drugs and the consequential state of intoxication at the time of the commission of the offence might be viewed as increasing the culpability of the person for committing the offence. 

   [93] McComish v Harman [2016] WASC 324.

5. In the present case it was not submitted by the prosecution to the magistrate that the appellant's use of illicit drugs increased his culpability for committing the unlawful act offence and the obstruction offence.  Nor was there any apparent basis upon which the magistrate could conclude that the appellant's use of illicit drugs increased his culpability for committing the unlawful act offence and the obstruction offence.  There was, for example, no evidence before the magistrate which went to show that the appellant had engaged in his illicit drug use with any intention of facilitating him engaging in violent, aggressive or even antisocial conduct. 

6. As is apparent from what I have already said in dealing with ground 1, there is no question that the appellant's voluntary consumption of illicit drugs substantially contributed to him engaging in the conduct the subject of the unlawful act offence and the obstruction offence.  However, that is a different matter from saying that his voluntary consumption of the illicit drugs increased his culpability for engaging in the conduct.

7. The fact that the appellant may, by his voluntary consumption of illicit drugs, have rendered himself more prone to behaving in the way that he did was relevant to the issue of general deterrence in the sense that there was a need for the magistrate to impose a penalty that was capable of deterring others from engaging in illicit drug use and thus increasing the prospects of them engaging in violent, aggressive or antisocial behaviour.[94]  However, again this is a different thing to saying that the appellant's voluntary use of illicit drugs increased his culpability for engaging in the conduct the subject of the offences and was therefore an aggravating factor.

   [94] McComish v Harman [34].

8. For the reasons I have given the magistrate did make an error in finding that the appellant's illicit drug use was an aggravating factor.  The ground of appeal has been made out.

Ground 3

1. The third of the appellant's grounds of appeal is as follows:

   3.In the alternative to Ground 2, the learned sentencing Magistrate erred in imposing a total effective sentence that was disproportionate to the appellant's overall criminality when regard is had to all the circumstances including those referable to the appellant personally.[95]

Applicable legal principles

[95] The ground in effect alleges that the total sentence imposed was manifestly excessive. Accordingly, an appeal may be made on the ground as expressed pursuant to s 8(1)(a)(iii) of the CAA.

1. The principles relating to the fundamental importance of the sentencing discretion conferred on a sentencing court to which I have referred in dealing with ground 1 are equally applicable to grounds of appeal which contain a challenge on totality grounds.  Accordingly, the question to be determined in dealing with this ground of the appellant's appeal is whether the total effective sentence imposed by the magistrate is unreasonable or plainly unjust.[96]

   [96] Bogers v The State of Western Australia [55].

2. If in a case where an infringement of the first limb of the totality principle is alleged there are no directly comparable cases, the appellate court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle.  Rather, the absence of directly comparable cases merely has the consequence that the appellate court has no directly comparable cases to provide a yardstick against which to judge whether the total effective sentence imposed is unreasonable or plainly unjust.[97]

Appellant's submissions

[97] The State of Western Australia v Wilkins [2020] WASCA 149 [61].

1. The appellant does not contend that the sentence of 12 months imprisonment imposed for the unlawful act offence was of itself manifestly excessive.  The appellant does, however, contend in support of this ground of appeal that the sentence of 12 months imprisonment imposed for the unlawful act offence was a 'heavy sentence' taking into account that the police officer did not suffer any injuries, that the offence was committed within a short period of time, the impulsive nature of the offence and the appellant's early plea of guilty.[98]  In support of his contention that the sentence imposed for the unlawful act offence was a 'heavy sentence', the appellant refers to the decision of this Court in Kennedy v The State of Western Australia.[99]

   [98] Appellant's Submissions [28].

   [99] Kennedy v The State of Western Australia [2017] WASC 156.

2. The appellant further contends in support of this ground of appeal that:

   1.the 'heavy sentence' imposed for the unlawful act offence was not softened by the length of sentence imposed for the obstruction offence;

   2.the unlawful act offence and the obstruction offence were committed as part of the one course of criminal conduct and involved the same victim who suffered no injury; and

   3.in these circumstances the total effective sentence of 18 months imprisonment was manifestly excessive.

Respondent's submissions

1. The respondent submits that when regard is had to the overall seriousness of the appellant's conduct in committing the offences and the limited number of mitigating factors present in his case, it cannot be said that the total effective sentence of 18 months imprisonment was so unreasonable or unjust as to warrant the conclusion that the first limb of the totality principle has been infringed.

Analysis and disposition

1. I do not accept the appellant's submission that the sentence of 12 months imprisonment imposed for the unlawful act offence was a 'heavy sentence'.

2. The maximum summary conviction penalty for the unlawful act offence was imprisonment for 3 years and a fine of $36,000.[100]  However, the maximum summary conviction penalty was only a jurisdictional limit.  It was not the statutory maximum penalty.  The statutory maximum penalty for the offence is 7 years imprisonment.[101]  Clearly, the sentence imposed by the magistrate fell well below that statutory maximum.

   [100] Code, s 304(1).

   [101] Code, s 304(1).

3. The unlawful act offence was a serious offence.  Although the relevant act done by the appellant, specifically the reversing of the vehicle while the police officer had his arm in the vehicle and was in effect attached to the vehicle, may have been impulsive and of short duration, it carried with it, as the magistrate noted, the real prospect of the police officer falling and being run over by the vehicle and consequently very seriously hurt if not killed.  Moreover, and as the magistrate found, the appellant did not stop reversing the vehicle of his own volition.  The vehicle only came to a stop because the police officer was somehow able, while running along with the reversing vehicle, to remove the keys from the ignition.  In short, the appellant's unlawful act offence was, in my view, a reasonably serious example of its type.  In addition, the sentencing consideration of general deterrence was of relevance. 

4. As I have pointed out in dealing with ground 1, the only significant mitigating factor in the appellant's case was his early plea of guilty.  Moreover, the view that I have expressed in dealing with ground 1 that the appellant's personality disorder and mental health issues did not operate so as to materially reduce his culpability for committing the obstruction offence, and my reasons for holding that view, are equally applicable to the unlawful act offence.

5. I have had regard to the decision in Kennedy v The State of Western Australia.  In Kennedy v The State of Western Australia the offender was convicted on his pleas of guilty of two offences contrary to s 304(1)(b) of the Code. The facts of the two offences were as follows.

6. The offender, after drinking with friends in Northbridge and leaving a karaoke bar, came upon a scene where the victim was being assaulted by his friends.  The offender and two others joined in the assault.  The assault lasted for about seven seconds.  During this time the offender repeatedly kicked the victim while the victim was on the ground before the victim was able to get to his feet and run towards a café. 

7. After the victim had run to the café, the offender and others approached him in a threatening way.  The victim put his arms up in a submissive gesture.  The victim retreated into the café followed by the offender and his group.  At this time there was a deep laceration visible on the victim's neck.  People in the offender's group blocked the victim from the exit of the café.  The victim was pushed, stumbled and then picked up a chair and threw it towards the attacking group.  At this point one of the attacking group rushed at the victim, knocking him to the ground.  Others, including the offender, then joined in assaulting the victim.  The offender kicked and punched the victim while the victim was on the ground.  The assault lasted for about 20 seconds. 

8. It was the offender's conduct in joining in the first assault on the victim that constituted the first of his offences.  It was the offender's conduct in joining in the assault on the victim in the café that constituted the second of his offences.

9. The offender was 22 at the time of the offending.  He had a supportive family and no criminal record.  He was engaged in pro‑social conduct and had good prospects of rehabilitation.  The offences were out of character. 

10. The offender was sentenced in the Magistrates Court to 6 months imprisonment for each of the offences, the terms being ordered to be served cumulatively giving a total effective sentence of 12 months imprisonment. 

11. On appeal against the sentences imposed, Hall J found that it was not open to the magistrate to exclude a suspended sentence.  His Honour found that a suspended sentence reflected the seriousness of the offences and the need for general deterrence but also the favourable personal circumstances of the offender. 

12. Hall J concluded that a sentence of imprisonment of 6 months for each of the two offences was appropriate but that the total sentence of 12 months imprisonment should be suspended for a period of 12 months.  In arriving at this conclusion his Honour took into account the fact that the offender had served 3 months imprisonment.

13. In my view the decision in Kennedy v The State of Western Australia does not support the appellant's contention that the sentence imposed on him for the unlawful act offence was a 'heavy sentence'.  While the facts of the offences committed by the offender in Kennedy v The State of Western Australia were undoubtedly serious, those facts were very different to the facts of the appellant's offence and consequently are not readily comparable.  Further, the personal circumstances of the offender in Kennedy v The State of Western Australia were markedly different to, and far more favourable than, those of the appellant.  Finally, one case does not establish a range of appropriate sentences.

14. A review of cases in which the Court of Appeal has considered sentences imposed for offences committed in contravention of s 304(1) of the Code, none of which are readily comparable with the appellant's case, does not provide any clear support for the appellant's submission that the sentence imposed for the unlawful act offence was a 'heavy sentence'.[102] 

    [102] Evans v The State of Western Australia [2019] WASCA 73 [85] ‑ [90].

15. In summary, for the reasons that I have stated it is my opinion that the 12 month term of imprisonment imposed on the appellant for the unlawful act offence was not 'heavy' and was comfortably within the range of a sound exercise of the sentencing discretion.  I state to avoid any doubt on the point that I am of this opinion even though the offender's use of illicit drugs was not, contrary to the finding of the magistrate, an aggravating factor.

16. The view that I have expressed in relation to the length of the sentence imposed for the unlawful act does not, of course, dispose of the ground of appeal.  The question which still remains is whether, despite the view I have expressed in relation to the length of the sentence imposed for the unlawful act offence, the imposition by the magistrate of the total effective sentence of 18 months is unreasonable or plainly unjust.

17. The parties have not, so far as the issue of totality is concerned, referred me to any broadly comparable cases.  I am not aware of any.

18. There is no question that the appellant, in committing the unlawful act offence and the obstruction offence, engaged in a serious course of criminal conduct.  Nonetheless, when regard is had to all of the matters to which I have referred in dealing with count 1, the conclusion that in my opinion necessarily follows is that the total effective sentence of 18 months imprisonment imposed by the magistrate does not fall within the range of a sound exercise of the sentencing discretion and is consequently unreasonable or plainly unjust.  That is, in my opinion the total effective sentence of 18 months imprisonment does not bear a proper relationship to the overall criminality involved in the appellant's offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the sentences imposed for offences of obstructing a public officer in the cases to which I have referred in dealing with count 1.

19. The ground of appeal has been made out.

Resentencing of the appellant

1. The alleged errors the subject of grounds 3 and 4 having been established the sentencing discretion falls to be exercised afresh in respect of both the unlawful act offence and the obstruction offence.[103]

   [103] NTH v The State of Western Australia [2020] WASCA 22 [163] ‑ [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65]; The State of Western Australia v Paolucci [2020] WASCA 188 [76].

2. In exercising the sentencing discretion afresh I must apply the principles embodied in the Sentencing Act.  The principles, so far as is relevant in the present context, may be stated in brief terms as follows.

3. A sentence imposed on an offender must be commensurate with the seriousness of the offence.[104]

   [104] Sentencing Act, s 6(1).

4. In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[105] 

   [105] Sentencing Act, s 6(2).

5. For reasons that are apparent from what I have already said in dealing with ground 3, I would not interfere with the sentence imposed by the magistrate for the unlawful act offence.  In my opinion a sentence of 12 months imprisonment for the unlawful act offence is commensurate with the seriousness of the offence having regard to all relevant sentencing factors and principles.

6. So far as the obstruction offence is concerned, in my opinion a sentence of 3 months imprisonment is, given the various matters and cases to which I have referred in dealing with count 1, commensurate with the seriousness of the offence having regard to all relevant sentencing factors and principles.[106]

   [106] My decision that a sentence of 12 months imprisonment is the appropriate sentence for the unlawful act offence means that a term of less than 6 months imprisonment can be imposed for the obstruction offence:  Sentencing Act, s 86(a).

1. That leaves the question of totality.  As I have already stated, the parties have not, in relation to the issue of totality, referred me to any broadly comparable cases. 

2. In my opinion, a total effective sentence of 14 months imprisonment bears a proper relationship to the overall criminality involved in the appellant's offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the sentences imposed for offences of obstructing a public officer in the cases to which I have referred in dealing with count 1.  To achieve this total effective sentence I will reduce the sentence of 3 months imprisonment that I would otherwise impose for the obstruction offence to a sentence of 2 months imprisonment and order that the sentences that I have imposed are to be served cumulatively.

Conclusion

1. For the reasons I have stated I would make orders as follows:

   1.Leave to appeal on grounds 1, 3 and 4 is granted;

   2.Leave to appeal on ground 2 is refused;

   3.The appeal is allowed;

   4.The sentence imposed by Magistrate Coleman for the offence the subject of charge PE 60088/2019 is set aside;

   5.The appellant is sentenced to 2 months immediate imprisonment for the offence the subject of charge PE 60088/2019, the sentence to be served cumulatively on the sentence of 12 months immediate imprisonment imposed by Magistrate Coleman for the offence the subject of charge PE 60087/2019; and

   6.The appellant is eligible for release on parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP

Associate to the Honourable Justice Derrick

2 DECEMBER 2020