Stretch v Director of Public Prosecutions for Western Australia
[2022] WASC 268
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STRETCH -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 268
CORAM: FORRESTER J
HEARD: 15 AUGUST 2022
DELIVERED : 18 AUGUST 2022
FILE NO/S: SJA 1052 of 2022
BETWEEN: CALVIN STRETCH
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1052 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M RIDLEY
File Number : HC 302-303 OF 2021
HC 312 OF 2021
HC 366 OF 2021
Catchwords:
Criminal Law – Appeal against sentence – Burglary and commit offence – Steal motor vehicle – Whether the magistrate erred in imposing sentence of immediate imprisonment – Whether the terms of imprisonment were manifestly excessive – Where appellant suffers from mental impairment
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | E R Zillessen |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Churnside v The State of Western Australia [2016] WASCA 146
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Gardner v Caporn [2005] WASCA 153
House v R [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mason v The State of Western Australia [2018] WASCA 43
Nannup v The State of Western Australia [2021] WASCA 140
Pickett v The State of Western Australia [2004] WASCA 291
R v Tsiaras [1996] 1 VR 298
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
The State of Western Australia v PJW [2015] WASCA 113
Walker v Saunders [2020] WASC 229
FORRESTER J:
Introduction
On 3 May 2022, the appellant was sentenced in the Kununurra Magistrates Court, following a plea of guilty to a number of offences, and received sentences of immediate imprisonment as follows:
| Charge No. | Offence | Penalty | |
| HC 302/2021 | Burglary and commit offence (stealing) (s 401(2)(c) Code) | 4 months' imprisonment | |
| HC 303/2021 | Steal motor vehicle (s 378 Code) | 2 months' imprisonment cumulative | |
| HC 312/2021 | Burglary and commit offence (stealing) (s 401(2)(c) Code) | 2 months' imprisonment cumulative | |
| HC 366/2021 | Burglary and commit offence (stealing) (s 401(2)(c) Code) | 2 months' imprisonment cumulative | |
| Total effective sentence | 10 months' imprisonment | ||
The sentences of imprisonment were backdated to commence on 17 November 2021 and the appellant was made eligible for parole. The appellant's sentence expires on 17 September 2022.
At the same time, the appellant was sentenced for a number of other offences, including stealing, trespass, assault public officer and breach of bail. He received fines for all of those offences.
By appeal notice dated 24 June 2022, the appellant appealed against the sentences of imprisonment. An extension of time is required.
On 6 July 2022, a registrar of this court made an urgent appeal order, pursuant to the Criminal Procedure Rules 2005 (WA).
The facts
Charges HC 302-303/2021 - burglary and commit offence (stealing)
At about 2.00 am on 30 September 2021, the appellant was at the Halls Creek Motel. The appellant gained entry to a room, which was being used to store the victim's property. The appellant emptied a backpack and found a key for a Nissan Pulsar belonging to the victim. He took the key and found the car in the car park. He started the car and reversed it heavily, colliding with a Toyota Hilux which was also parked in the car park, causing damage to the rear left side panel of the wheel arch.
A person performing security duties tried to stop the appellant by grabbing to door of the car but, as he still held it, the appellant accelerated away heavily. The appellant left the area in the car, which was later recovered, having been driven off-road, rolled and destroyed.
The offences were all captured on CCTV.
On 1 October 2021, the appellant presented himself at Halls Creek Police Station. He declined to participate in an interview. He was released to bail.
Charge HC 312/2021 - Burglary and commit offence (stealing)
On 10 October 2021, the appellant went to the Coles Express service station in Halls Creek. At the time he was prohibited from entering that store as a result of a banning notice issued by police on 22 May 2021.
The appellant entered the service station and took a 1.25L bottle of Coke, and a packet of biscuits, together valued at $9.50, and left without paying. The offence was captured on CCTV.
When arrested on 19 October 2021, the appellant declined to participate in an interview.
The appellant was on bail for the offences the subject of HC 302‑303/2021 (as well as other offences) at the time of this offence.
Charge HC 366/2021 - burglary and commit offence (stealing)
At about 2.45 am on 17 November 2021, the appellant went to the Coles Express service station. He was still subject to the banning notice served on him on 22 May 2021.
The appellant stole a sausage roll worth $4.00 from the hot cabinet and left without paying. This was captured on CCTV. He returned a short time later, eating the sausage roll, and tried to buy a tomato sauce packet with a 20‑cent coin. When staff asked him to leave, he became verbally abusive towards them.
Police attended the service station and located the appellant on the forecourt, whereupon he was arrested. He declined to participate in a record of interview.
Again, this offence was committed while the appellant was on bail for a number of other offences, including charges HC 302‑303/2021 and HC 312/2021.
Plea of guilty
The appellant pleaded guilty. While the magistrate did not accept the pleas were entered at the earliest opportunity, her Honour allowed a 20% discount pursuant to s 9AA of the Sentencing Act 1995.
Personal circumstances
The appellant is a 31‑year‑old man of Aboriginal descent. He has a complex background, including neglect, trauma and a lack of consistent care. He was in and out of hospital as a child and was removed from his mother's care due to drug and alcohol abuse. His biological parents are now deceased.
The appellant's first language was Gidja, but he has spoken English since he was about two years old. His schooling was in English. The appellant is effectively illiterate. He is single and is on a disability support pension, but has no disability support in place. He has a 4‑year‑old son, and it was said that he wanted to be involved in the child's life, who resides with a couple the appellant himself regarded as parental figures.
Plea in mitigation
The appellant's counsel informed the court that in September 2021 the appellant was drinking alcohol with his family at the Halls Creek Motel. The car with which he collided at the motel was owned by his uncle, who afterwards made him feel lots of shame for his conduct. The appellant was injured in the car crash which destroyed the stolen vehicle.
The appellant claimed not to recall the first burglary and theft at the Coles Express on 10 October 2021.
In relation to the second burglary and theft at the Coles Express, the appellant claimed he was told by one of the staff a few days earlier that his banning notice had expired. He went inside and bought something without incident. Two days later, when he returned and stole the sausage roll, he was arrested.
While on bail, the appellant had visited a drug and alcohol counselling service, but a counsellor had not been available and he did not return. His lawyer had been advised by the service that, if the appellant had a support person, they could potentially assist to address the appellant's substance misuse. Such a support person had 'potentially' been identified.
The appellant's counsel submitted that the couple the appellant regarded as parental figures were willing to have him live with them and they would provide him with support. They were heavily involved with church, did not drink alcohol, and lived further from town. His father confirmed there were good male supports in Halls Creek to assist the appellant.
There was also a new 'programme' available to provide the appellant with support during the week, which would engage the appellant in pro-social and culturally appropriate activities. There were people willing to take him there during the week. The appellant also proposed to recommence playing football.
Criminal history
The appellant has an extensive criminal history, running to 19 pages. It is sufficient for present purposes to note that since 2009, the appellant has persistently engaged in conduct ranging from disorderly behaviour in public, street drinking and trespass and minor stealing offences, to carrying items with intent to cause fear and going armed in a way which may cause fear, damage, common assault, aggravated common assault, assault occasioning bodily harm, assault public officer and aggravated burglary, including one of a dwelling.
He has also breached protective bail conditions and police orders on eight occasions and failed to answer his bail on a number of occasions.
For the more serious offences he was initially sentenced to community orders but breached every one, with the exception of a conditional release order in 2009. In July 2014, he was sentenced to his first term of imprisonment (for the aggravated burglary of a dwelling).
In January 2019, the appellant was placed on a suspended imprisonment order, which he breached by reoffending within months, resulting in a further immediate term of imprisonment. On his release, he almost immediately recommenced offending by way of trespass, disorderly behaviour in public, stealing, common assault and going armed in a way which may cause fear.
The offending for which the appellant came before the court on this occasion represented a continuation of the pattern of offending the appellant has followed throughout his life.
Reports
The magistrate had before her a neuropsychological report dated 26 September 2019 and a pre-sentence report dated 2 February 2022.
Neuropsychological report
The neuropsychological report of Dr Jonson Moyle was prepared for the purposes of proceedings in relation to charges which the appellant then faced.
The appellant was reluctant to talk about his family of origin. Documents available to Dr Moyle reported that the appellant's biological mother consumed significant quantities of alcohol and drugs while pregnant with him. The appellant does not have a confirmed diagnosis of fetal alcohol spectrum disorder.
The appellant reported drinking alcohol and smoking cannabis socially He did not feel his use was excessive and denied the influence of substance use in his history, although other information available to Dr Moyle suggested otherwise.
The appellant reported completing 12 years of formal schooling, and said he was a good student who passed all of his subjects. This was contrary to the information available to Dr Moyle.
After leaving school he worked with the Community Development Program (CDP) for about a year, doing unskilled labouring tasks. He then completed a mechanics course over a period of three to four years. He described himself as a qualified mechanic, but was then on Centrelink and worked with the CDP.
Dr Moyle found that the appellant was a poor historian with limited insight into his offending behaviour. He had no overt indication of language difficulties, although the quality of his speech output conveyed concrete thinking and reduced understanding of many concepts put to him. He was quick to give up when tasks became harder, which Dr Moyle considered may have reflected genuine difficulties he was experiencing in doing the assessment.
The appellant's core intellectual abilities were examined using the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS‑IV). His verbal comprehension, perceptual reasoning and processing speed skills were all in the Extremely Low range and were at a level consistent with those seen in people with an intellectual disability. Dr Moyle was of the view that his abilities are likely longstanding and will likely be permanent.
The majority of other results obtained were consistent with the results relating to the core intellectual skills. Core nonverbal speed of information processing was assessed as within the Extremely Low range. His core language skills were assessed as less than the 1st percentile. His core nonverbal skills also fell within the Extremely Low range. His memory for verbal and nonverbal material was poor, placing him in the Extremely Low range for both domains. Executive functioning was also in the Extremely Low range.
Dr Moyle was of the view that the appellant's poor cognitive skills suggest future difficulties in complying with court orders. He will need ongoing structure and support provided externally to facilitate compliance and will struggle to competently comply with any program requiring verbal communication, such as a group discussion or individual therapy.
Dr Moyle also considered that the appellant will have some difficulty being able to adequately reflect on current and past behaviour and use this to guide future behaviour. He will likely struggle to adequately assess risk and the consequences associated with actions. Dr Moyle felt the appellant does not have the cognitive skills to effect change without support and structure provided by others.
Dr Moyle recommended full abstinence from substances, indicating that small cognitive gains might be possible after 12 months. Even so, the appellant's cognitive abilities would not improve to age-appropriate levels with abstinence.
Pre-sentence report
The author of the pre-sentence report said that the appellant appeared to accept responsibility for his offending and said that he knew his offending was wrong. Despite the fact that he would likely benefit from substance abuse counselling, the appellant advised that he was not willing to engage with such counselling.
The appellant has demonstrated poor compliance with previous community‑based supervision, having failed to successfully complete any of the six previous community orders imposed upon him. He told the pre-sentence report author that he felt he would be better equipped to adhere to conditions if he lived in a remote community with a strong support network around him, and that he regarded employment activities as a protective factor against future offending.
The author of the report considered that the appellant's reduced cognitive functioning suggested that he would struggle to comply with the obligations of a community order. Further, the appellant was not willing to engage in a programme requirement which would address his treatment needs and reduce his risk of offending. As such, he was not considered suitable for community-based supervision.
Time in custody
At the time of his sentencing, the appellant had been in custody for 5½ months, between 17 November 2021 and 3 May 2022.
Sentencing reasons
The magistrate was not certain that the appellant's neuropsychological issues had any causative effect on his offending.
Her Honour did consider that there was an antisocial aspect to the appellant's offending. She found that, while he did understand that stealing was wrong, the appellant did not have the ability, or did not exercise an ability, to stop himself.[1]
[1] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
Her Honour held that it was difficult to separate the effects of the appellant's underlying mental impairments from the effects of his substance abuse. While the former was mitigating, the latter was not.[2]
[2] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
The magistrate accepted that the appellant was not a vehicle for general and specific deterrence due to his underlying intellectual impairment. Otherwise, her Honour held, alcohol was a significant factor in his offending.[3]
[3] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
Her Honour held there was no mitigation in the appellant's criminal record.[4]
[4] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
In relation to the stealing of the master key, her Honour was satisfied that the theft was opportunistic, but was likely to have had a cost impact on the motel due to the need to have replaced the locks.[5]
[5] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 14.
The magistrate found that the appellant did have the capacity for consequential thinking, as one of the other offences committed by the appellant was for the purposes of avoiding being arrested on a warrant.[6]
[6] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 14.
The magistrate took account of the fact that the burglaries on the Coles Express service stations would have been offences of trespass but for the banning notice which was operative at the time of each. However, she observed, burglaries on businesses are serious offences. She found that community protection was a significant factor in determining the appropriate sentence.[7]
[7] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 15 ‑ 16.
The magistrate noted that the appellant had indicated to the pre-sentence report author that he was unwilling to engage in counselling. While the neuropsychological report had not been available at the time the appellant had been placed on previous community orders, her Honour was satisfied that the appellant's issues would have been sufficiently apparent to Community Corrections officers.[8]
[8] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16.
The appellant had failed to take the opportunity to engage in drug and alcohol counselling when granted conditional bail, despite alcohol being the underlying issue in his offending.[9]
[9] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16.
The appellant required, in effect, a constant mentor, which was not available in Halls Creek. Her Honour recognised that, since his remand in custody, the appellant's family had given more attention to his needs on release, but that would continue if he were imprisoned.[10]
[10] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16 ‑ 17.
In the circumstances, the magistrate was of the view that the point had been reached that imprisonment was appropriate. However, having regard to the nature of the offences and the personal circumstances of the appellant, the length of the terms was significantly reduced.[11]
[11] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 17.
Grounds of appeal
There are five grounds of appeal:
(1)The learned magistrate erred by imposing sentences of immediate imprisonment.
(2)The sentence for charge HC 302 of 2021 is manifestly excessive given the objective conduct seriousness of the offences and the circumstances particular to the appellant.
(3)The sentence for charge HC 303 of 2021 is manifestly excessive given the objective conduct seriousness of the offences and the circumstances particular to the appellant.
(4)The sentence for charge HC 312 of 2021 is manifestly excessive given the objective conduct seriousness of the offences and the circumstances particular to the appellant.
(5)The sentence for charge HC 366 of 2021 is manifestly excessive given the objective conduct seriousness of the offences and the circumstances particular to the appellant.
Leave to appeal - legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[12]
[12] CAA, s 6((f)) and s 7(1).
An appeal from a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by this court.[13]
[13] CAA, s10(3).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[14] meaning that the ground is required to have a rational and logical prospect of succeeding.[15] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[16]
[14] CAA, s 9(2).
[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[16] CAA, s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[17]
[17] CAA s 14(2).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[18]
[18] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Extension of time
There is limited evidence as to the reasons for the delay in the filing of the appeal in this case. However, I do not regard a delay of three weeks in a matter such as this as being significant in the circumstances and there is no prejudice to the respondent if leave is granted. I would grant the extension of time.
Appellant's submissions
Ground 1
The appellant's written submissions were directed to the contention that the magistrate erred in finding that there was no viable community-based disposition available in this case and that immediate imprisonment was the only appropriate disposition.[19]
[19] Appellant's submissions [12] - [13], [25], [37].
In oral submissions, the appellant submitted that the magistrate's decision to impose a term of immediate imprisonment was unreasonable because her Honour:
(1)failed to properly consider the mental impairment as having a causal connection with the offending;[20]
(2) failed to find that the community programme which was available would have been sufficiently beneficial in protecting the community to constitute a viable alternative to imprisonment;[21] and
(3)gave insufficient attention to the change in the appellant's circumstances which had resulted from the provision of the neuropsychological report, both in relation to formal supports and in relation to his relationships and the authority his elders would have over him.[22]
[20] ts 18.
[21] ts 18.
[22] ts 21 - 22.
It was submitted that the magistrate:
•erroneously found that the appellant's behaviour would not change unless he stopped consuming alcohol;[23]
•was not entitled to find that alcohol was involved in the offences which attracted the sentences of imprisonment;[24]
•failed to find a causal connection between the appellant's mental impairment and his offending despite unequivocal evidence to that effect in the psychological report, and thereby failed to adequately reduce the appellant's moral culpability for the offending;[25]
•in light of the appellant's mental impairment, should not have placed weight on the fact that the appellant had declined to participate in substance abuse treatment and counselling.[26]
[23] Appellant's submissions [25].
[24] ts 8 - 9, 11 - 12.
[25] ts 4 - 5.
[26] ts 19 - 20.
It was submitted that her Honour's finding that the appellant was not a suitable vehicle for general and specific deterrence was irreconcilable with the imposition of further imprisonment (over and above the time already served on remand).[27]
[27] ts 13.
The appellant submitted that the court did not 'make every possible effort and take every possible step consistent with the interests of justice to engage the services of governmental and non-governmental agencies to assist offenders', citing Churnside v The State of Western Australia [2016] WASCA 146 and Nannup v The State of Western Australia [2021] WASCA 140 [45].[28]
[28] Appellant's submissions [24].
The appellant argued that the necessary implication from the sentences imposed was that her Honour rejected a locally based structured program on the basis that it was not directly connected to community corrections.[29] The appellant relied upon the observations of McGrath J in Walker v Saunders [2020] WASC 229 as authority for the proposition that a more flexible approach to community supervision in remote and regional areas is called for and that reliance upon local non-government support should not necessarily be seen as inferior to more centrally administered programmes; [30]
[29] ts 4.
[30] Appellant's submissions [31].
In written submissions, the appellant submitted that her Honour was in error in finding that the majority of the supports which were identified as being available to the appellant at the time of sentencing had also been available at the time of the offending. However, this submission was not pressed in oral submissions before me.[31]
[31] ts 2 - 3.
The appellant conceded that community protection was a significant sentencing factor, but submitted that the magistrate's determination that only immediate imprisonment could achieve that 'failed to accord appropriate weight to the real possibility open on the uncontested evidence that the community would be protected more effectively if the offender was given an opportunity to live in his community with properly informed supports and scaffolding.'[32]
Grounds 2 - 5
[32] Appellant's submissions [37].
By these grounds, the appellant submitted that the individual terms of immediate imprisonment were manifestly excessive having regard to the circumstances of the offending and the appellant. In oral submissions, the appellant argued that the terms of imprisonment were manifestly excessive as to both type and length.
In particular, the appellant argued that the burglaries on the Coles Express service stations were 'cases of shoplifting elevated to burglary by the formal removal of the implied licence to enter the shop by way of a banning notice' and thus were in the least serious category of burglary. As such, he submitted it was not objectively necessary to impose a term of imprisonment on the appellant.
The appellant conceded that the burglary on the motel and the associated stealing of the motor vehicle were more serious.
However, he submitted that, while the terms of immediate imprisonment 'could be open in different circumstances,' in this case they were manifestly excessive as to type and her Honour failed to consider 'out loud' whether those terms of imprisonment might be suspended.
Respondent's submissions
Ground 1
The respondent submitted that her Honour's assessment of the availability of community-based support to reduce the appellant's risk of re-offending and enable compliance with community‑based sanctions must be viewed in the context of the appellant's history, including his age and history of breaching previous community‑based sanctions.
The respondent submitted that, in circumstances where the appellant had repeatedly committed serious offences, including a serious offence whilst on bail for a similar serious offence against the same victim, and has consistently failed to comply with community‑based sanctions, it was open to the magistrate to conclude that the protection of the community required that the appellant serve a term of imprisonment.
Grounds 2 - 5
The respondent submitted that, while the offences were not in the upper end of the range of seriousness, there were serious aspects to each of them. Further, there was a degree of persistence in the appellant's offending. The length of the sentences demonstrate that the magistrate substantially reduced the sentences which would otherwise have been imposed having regard to the appellant's background and mental impairment.
Disposition
Ground 1
This ground alleges that the magistrate erred by imposing sentences of immediate imprisonment. In effect, the appellant argues that a lesser sentencing option was appropriate, and that her Honour erred in not so concluding.
Section 6(4) of the Sentencing Act 1995 (the Act) provides that:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
Section 39(3) of the Act provides that a court must not use a sentencing option in subsection (2) unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the options listed before that option.
The options of suspended imprisonment or conditionally suspended imprisonment are only to be available where the court has concluded that a sentence of imprisonment is warranted and the term is not more than 5 years.[33] The injunction in s 6(4) applies to that first step.[34]
[33] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] ‑ [79], Mason v The State of Western Australia [2018] WASCA 43 [53].
[34] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77], Mason v The State of Western Australia [2018] WASCA 43 [54].
In Fogg v The State of Western Australia [2011] WASCA 11, McLure P said, in the context of an appeal alleging manifest excess as to sentence type:
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision‑maker has to be positively satisfied that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option [9] ‑ [10].
The question is whether it was open to the magistrate to form the view that the only appropriate disposition was the imposition of a term of immediate imprisonment and that a lesser sentencing option was not appropriate.[35]
[35] Mason v The State of Western Australia [2018] WASCA 43 [55] - [56].
The appellant effectively argues that a significant factor against imprisoning the appellant was the reduction in the appellant's moral culpability by reason of his mental impairment. It was argued that her Honour wrongly attributed the appellant's offending to his abuse of alcohol and thus failed to recognise the appellant's reduced moral culpability in sentencing.
The principles to be applied in a case in which an offender has a mental impairment falling short of insanity are also well-established. In Krijestorac v The State of Western Australia [2010] WASCA 35, Wheeler JA cited R v Verdins [2007] VSCA 102; (2007) 16 VR 269 as to the various ways in which a mental or psychological condition may be relevant to sentencing:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.[36]
[36] R v Tsiaras [1996] 1 VR 298, 400.
Wheeler JA also referred to Verdins for its consideration of the ways in which impaired mental functioning at the time of offending may reduce the offender's moral culpability, namely that impairment may reduce moral culpability if it had the effect of:
(a) impairing the offender's ability to exercise appropriate judgment;
(b) impairing the offender's ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence [26].
Her Honour observed:[37]
The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State.
[37] Krijestorac v The State of Western Australia [2010] WASCA 35 [17] - [19].
The appellant argued that his mental impairment impaired his ability to exercise appropriate judgment and thus his moral culpability was reduced. In support, he pointed to Dr Moyle's conclusions that his test results suggest that the appellant will have some difficulty being able to adequately reflect on current and past behaviour and use this to guide future behaviour, as well as to adequately assess risk and the consequences associated with actions.
In my view, her Honour made that finding when she stated:
I do accept that you don't have the ability or don't exercise any ability to stop yourself, even though you know these matters are wrong.[38]
[38] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
However, the appellant takes issue with the passage immediately following:
It's difficult, though, to know the effect of your underlying mental impairments compared to your use of - and abuse of alcohol and levels of intoxication at the time that you commit these offences. The intoxication doesn't offer you any mitigation but, obviously, your underlying issues do.
So, as far as that goes on sentencing, I accept that you're not a vehicle for general and specific deterrence because of the underlying intellectual impairment but, otherwise, it does seem that alcohol is a significant factor in your offending. [39]
[39] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
The appellant argued that the magistrate's finding that alcohol has a significant involvement in the appellant's offending excluded any reduction in the appellant's moral culpability by reason of his mental impairment.
In my view, a fair reading of the magistrate's reasons does not warrant such a conclusion. Her Honour found that both the appellant's mental impairment and his alcohol abuse were operating to impair the appellant's judgment, but it was difficult to state their relative contributions. Contrary to the appellant's submission, the magistrate expressly stated that the appellant's underlying issues 'obviously' offered him mitigation.[40]
[40] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022 13.
Her Honour's finding that the appellant was not a vehicle for specific deterrence because of the underlying mental impairment necessarily implied an acceptance on her Honour's part that the appellant's impaired ability to exercise appropriate judgment was, at least to some extent, the result of his mental impairment.
This did not, however, mean that alcohol could not also be a significant factor in the appellant's offending.
It was also submitted that there was no evidence that the appellant was intoxicated at the time of the offences. However, there was ample support for the finding that alcohol played a part in the appellant's offending. The pre‑sentence report stated that the appellant had admitted being intoxicated at the time of each offence,[41] and that he was intoxicated at the time of his arrest on charge HC 366/2021.[42] Further, the appellant's counsel had informed her Honour that the appellant had instructed that prior to the burglary at the motel and the associated stealing of the motor vehicle, the appellant had been drinking at the motel with his family.[43]
[41] Pre-sentence report (2).
[42] Pre-sentence report (3).
[43] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 5 ‑ 6.
In my view, on the basis of the information available, the magistrate was entitled to find that alcohol was a significant factor in the appellant's offending. However, in my view her Honour also found reduced moral culpability on the part of the appellant as a result of his mental impairment.
In determining the sentence to be imposed on the appellant in respect of the offences for which he was imprisoned, her Honour expressly stated that protection of the community 'needs to be a factor' and that it was a significant factor.[44]
[44] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16, 17.
The appellant submits that the magistrate should have found that the arrangements which had been put in place if the appellant were not imprisoned were sufficiently protective of the community that, in light of his personal circumstances and the nature of the offences, such a sentence was not necessary.
However, the submissions made in the proceedings at first instance were not as definite as to the available structure and support as the appellant now submits. This was particularly so in relation to the extent to which the appellant would have support in relation to substance abuse counselling, demonstrated by the submission that:
…Kimberley Drug and Alcohol Mental Health indicated that if we had a support person for Mr Stretch, that they could potentially work with the support person, indirectly working with Mr Stretch. They would almost teach the support person how to help Mr Stretch with his substance misuse issues…It sounds like [two named people] are probably willing to almost take that role on.[45]
[45] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 12.
No further evidence has been put before me on this appeal which warrants a higher degree of confidence in the availability of those supports.
There was also very limited information before her Honour as to the 'structure' of the support being offered. It was put that this was an arrangement whereby the appellant would be collected daily from Monday to Friday and engaged in pro‑social activities. No further information was provided as to how the programme would result in a greater protection of the community in either the short or long term.
In addition, the information put before the magistrate provided no level of assurance as to whether the appellant himself was prepared to engage with that structure and support. Unless he is willing to engage, no amount of community support will result in a change in his behaviour.
One significant practical impact of the appellant's cognitive impairment in this regard is on his ability to abide by court orders. The evidence suggests that the appellant lacks insight into his behaviour and the effect of substance abuse, particularly alcohol abuse, on his behaviour. His concrete thinking reduces his ability to instigate positive change, and he requires substantial support and almost constant mentoring to have any chance of doing so.
The appellant submitted that any stated refusal to engage in treatment and counselling by the appellant should have been disregarded because of his mental impairment and that his opinion about what he wanted to do should not necessarily be regarded as the ultimate indicator.[46] The appellant also pointed to the fact that Dr Moyle was of the view that the appellant would struggle to competently comply with any program requiring verbal communication, such as a group discussion or individual therapy.
[46] ts 20.
Other than to submit that the appellant might be capable of being encouraged to form a pro‑social lifestyle and thus reduce his reliance on alcohol to relieve his boredom, the appellant's counsel did not point to any means by which his alcohol abuse could be addressed in light of his refusal to accept that he has an issue with alcohol or to engage in treatment relating to it.[47]
[47] ts 20.
In my view, the magistrate was correct to find that the appellant would continue to offend as long as he continued to abuse alcohol. It is plain that his abuse of alcohol is a significant causal contributor to his offending behaviour. Accordingly, his lack of motivation to address his alcohol abuse is a significant factor in sentencing. The fact that his cognitive impairments are likely to contribute to this lack of motivation does not reduce its significance. Indeed, it highlights the level of support which would be required to ensure the protection of the community.
A lack of formal government supports does not prevent consideration of community dispositions in otherwise appropriate cases. To decide otherwise would only further entrench the disadvantage suffered by offenders in regional areas, and disproportionately affect Aboriginal people who live in remote communities. Indeed, Churnside is authority for the proposition that the court should actively take steps to explore any reasonable opportunities which promote the rehabilitation and treatment of offenders, whether provided by government or not.
However, Churnside is not authority for the proposition that, even if those steps are unsuccessful in identifying such opportunities, it will be an error to impose a term of immediate imprisonment on a person with a mental impairment.
Further, even if opportunities are available, the court must still assess the likelihood of them having the desired outcome of appropriate community protection in determining whether the threshold of imprisonment is reached.
In my view, it was open to the magistrate to find that that threshold had been reached in this case. Based on the information before her, her Honour was entitled to have significant concerns about the viability of the plans which would be implemented if the appellant were to be released, both in terms of their provision and the appellant's likely engagement with them.
The fact that there was a programme in place which had not been available prior to the appellant's remand in custody provided no assurance that the appellant would have any success with it.
Her Honour's lack of confidence in this regard was well founded, having regard to the fact that the appellant had failed to comply with any previous community‑based sentences and was unwilling to accept that he had an alcohol abuse problem or to engage in counselling. Given her Honour's finding that alcohol was a primary contributing factor to the appellant's offending and the unwillingness of the appellant to address that issue, as well as her Honour's assessment as to the likely success of any community treatment and compliance with conditions, and the intensity of the support required, it was open to her Honour to find that a further community-based sentence was not appropriate, as it would fail to adequately protect the community.
The appellant submitted that, in ruling out any sentencing option other than imprisonment, the magistrate failed to take into account the fact that the neuropsychological report had not previously been available to the community or authorities, and its existence would promote a different outcome from previous supervision. However, her Honour expressly acknowledged that the report had not previously been available.[48] She also noted that since that report had become available, the appellant had been on conditional bail but had not made any gains in relation to his treatment.[49]
[48] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 13.
[49] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16.
Having made those findings, her Honour was entitled to find that a sentence of imprisonment was the only appropriate disposition.
Her Honour did not expressly state that she had considered the question of suspension and that she was positively satisfied, as s 39(2) of the Act required her to be, that suspension of the term of imprisonment was not appropriate.
In considering whether a term of imprisonment was the only appropriate disposition, Her Honour did refer to the pre-sentence report and the recommendation in it that the appellant was not suitable for an order, and accepted that he was not suitable.[50] However, it would have been desirable for her Honour to actually state the basis on which she had found that suspension was not appropriate in this case.
[50] Transcript, Western Australia Police v Stretch, Magistrates Court of Western Australia, 3 May 2022, 16.
I am mindful that, given the volume and pace of the workload of a magistrate, an appeal court should not be overly critical of the reasons given by a magistrate, or to infer from infelicity of language that error is thereby demonstrated as noted by Roberts‑Smith JA in Gardner v Caporn [2005] WASCA 153 [59].[51]
[51] See also Rundle v Innerd [2015] WASC 340 [117]; Strahan v Brennan [2014] WASC 190 [89] - [90].
Further, the failure to refer to relevant matters by a magistrate does not necessarily give rise to an inference that the matter was not considered. As was stated in Pickett v The State of Western Australia, 'In the absence of credible evidence to the contrary, it is to be assumed that the decision maker has complied with all relevant duties and taken all relevant matters into account.'[52]
[52] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
In my view, it is readily apparent from her Honour's sentencing remarks that she regarded all of the circumstances of the offender and the offences as requiring a term of imprisonment and that she was positively satisfied that a term of suspended imprisonment (whether on conditions or not) was not appropriate. Further, in my view it was open for her to be positively satisfied to that effect.
I would grant leave to appeal but dismiss the ground.
Grounds 2 - 5
The principles relevant to an allegation that a sentence is manifestly excessive are well established. They were summarised in Kabambi v The State of Western Australia [2019] WASCA 44. Relevantly:
(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 [21].
In the present case, the offences committed by the appellant at the Coles Express were at the lower end of the range of the offence of burglary, which in the circumstances of each offence attracted a maximum penalty of 14 years' imprisonment (a summary conviction penalty of 2 years' imprisonment applied).
The magistrate did take into account the fact that the offences were burglaries due to the banning notices. However, while it is true that in other circumstances the appellant would only have been guilty of shoplifting and trespass, the appellant's submission in this regard unduly minimises his conduct. Commercial businesses have the right to exclude people from entering their premises, and it is plain that the appellant had previously engaged in conduct which had caused this business to exercise that right in respect of the appellant. Refusing entry to the appellant was the only means available to it to prevent the appellant committing offences against it.
Not only did the appellant demonstrate a blatant disregard for the restraint upon him, his behaviour was entirely consistent with a long history of similar offending. The offending for which he was being sentenced demonstrated a degree of persistence. Further, the fact that he had been on bail for burglary at the time of the commission of the burglaries the subject of HC 312/2021 and HC 366/2021 was a significant aggravating factor. In those circumstances, as her Honour found, there was a need for the sentencing process to prioritise the protection of the community.
As the appellant acknowledges, the conduct the subject of the burglary on the motel and the associated stealing of the motor vehicle were the most serious offences for which he was sentenced. The appellant did not know that the room was only being used for storage when he entered. The victim was entitled to believe that his property was safe in a locked room. Instead, the appellant stole the victim's keys and then his motor vehicle, which was then destroyed by the manner in which the appellant drove it. In my view, the destruction of the vehicle substantially elevates the seriousness of the offence of stealing the motor vehicle.
The appellant's reliance on Mason v The State of Western Australia[53] (in which a suspended term of imprisonment was imposed) is of limited assistance in this case. The relevant offence was a home burglary, which was objectively more serious, and attracted a greater maximum penalty, but it was one offence, as opposed to the four offences in this case. However, while the offender in that case had a somewhat similar level of cognitive impairment, his personal circumstances were, as far as can be ascertained, markedly different from the appellant's. In particular, the offender had been in a residential rehabilitation program for 6 weeks at the time of his sentencing, which is a significant mitigating factor not available to the appellant in this case.
[53] Mason v The State of Western Australia [2018] WASCA 43.
It is well established that the decision of an appellate court to dismiss an appeal against sentence does not, of itself, fix the upper or lower limit of the range of sentences within the appropriate exercise of the sentencing discretion.[54] The dismissal of the appeal in Mason does not inform the appropriate sentence in this case.
[54] The State of Western Australia v PJW [2015] WASCA 113 [38].
For the same reasons as my finding on ground 1, it is my view that it was open to the magistrate to impose immediate terms of imprisonment on the appellant.
Once it is determined that the only appropriate disposition was one of immediate imprisonment, the contention that the individual sentences imposed were manifestly excessive cannot be sustained. The appellant was unable to point to any authority suggesting that the sentences were outside the range of sentences customarily imposed.
Indeed, having regard to the applicable maximum penalties, the sentences were very measured. Her Honour made it clear that she had substantially reduced them having regard to the nature of the offences and the personal circumstances of the appellant.
I have already addressed the fact that her Honour did not expressly state that she had considered, and ruled out, suspending the terms of imprisonment, either conditionally or unconditionally in my consideration of ground 1.
Again, I would grant leave to appeal but dismiss each of the grounds.
Orders
(1)The application for an extension of time is allowed.
(2)Leave to appeal is granted on each of the grounds of appeal.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
18 AUGUST 2022
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