Vander Waide v The State of Western Australia
[2019] WASCA 148
•26 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VANDER WAIDE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 148
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 20 SEPTEMBER 2018 & 17 JUNE 2019
DELIVERED : 26 SEPTEMBER 2019
FILE NO/S: CACR 49 of 2017
BETWEEN: CHRISTINE VANDER WAIDE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 183 of 2016
Catchwords:
Criminal law - Appeal against sentence - Stealing - Stealing a motor vehicle - Wilful and unlawful damage - Doing an act likely to endanger life, health or safety - Failure to ensure victim in motor vehicle accident received assistance including medical aid - Failure to report traffic incident occasioning bodily harm - Assault of a police officer - Total effective sentence 9 years 3 months' imprisonment - Alleged manifest excess - Totality principle - Alleged miscarriage of justice - Additional evidence - Psychiatric reports - Mitigating factor - Alleged sexual assault on remand
Practice and procedure - Application to adduce additional evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4), s 40(1)(e)
Criminal Code (WA), s 304(2), s 317A(c), s 371A, s 378, s 444(1)(b)
Road Traffic Act 1974 (WA), s 54(2), s 54(3)(b), s 56(2)
Sentencing Act 1995 (WA), s 9AA
Result:
Application to adduce additional evidence dismissed
Leave to appeal on all grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr B Murray & Ms G Beggs on 20 September 2018; Ms G Beggs on 17 June 2019 |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chikonga v The State of Western Australia [2017] WASCA 34
Gleeson v The State of Western Australia [2019] WASCA 100
Hinkley v The State of Western Australia [2014] WASCA 122
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kaokula v The State of Western Australia [2016] WASCA 198
LWD v The State of Western Australia [2017] WASCA 174
McAllister v The State of Western Australia [2017] WASCA 183
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 238 A Crim R 535
Penny v The State of Western Australia [2016] WASCA 52
Quirk v The State of Western Australia [2019] WASCA 76
Sophiadakis v The State of Western Australia [2016] WASCA 203
The State of Western Australia v Darroch [2018] WASCA 114
Ugle v The State of Western Australia [2018] WASCA 16
Wellstead v The State of Western Australia [2019] WASCA 130
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was charged in the District Court on IND 183 of 2016 with six offences.
Count 1 alleged that on 17 July 2015 at Belmont the appellant stole a vehicle, namely a Toyota Prado four‑wheel drive, the property of a company trading as Budget Car and Truck Rental Belmont, contrary to s 378 and s 371A of the Criminal Code (WA) (the Code).[1]
[1] WAB 57.
Counts 2 ‑ 5 were all alleged to have occurred on 20 September 2015 at Paulls Valley. Count 2 alleged that the appellant wilfully and unlawfully damaged a Harley Davidson motorcycle contrary to s 444(1)(b) of the Code. Count 3 alleged that the appellant, with intent to harm Mark Edward Baker, did an act as a result of which the life, health or safety of Mr Baker was, or was likely to be, endangered, contrary to s 304(2) of the Code. Count 4 alleged that the appellant, being the driver of a vehicle on a road which was involved in an incident occasioning bodily harm to Mr Baker, failed to ensure that he received all the assistance, including medical aid, that was necessary and practicable in the circumstances. This offence was aggravated because the incident occasioned grievous bodily harm to Mr Baker, and is contrary to s 54(2) and s 54(3)(b) of the Road Traffic Act 1974 (WA) (the Road Traffic Act). Count 5 alleged that the appellant failed to report the incident forthwith to the officer in charge of a police station, contrary to s 56(2) of the Road Traffic Act.[2]
[2] WAB 57.
Count 6 alleged that on 24 September 2015 at Bayswater, the appellant assaulted a police officer, Suzanna Brkic, with intent to resist his lawful arrest, contrary to s 317A(c) of the Code.[3]
[3] WAB 58.
On 14 November 2016, the appellant was convicted of counts 1 - 5 after a trial before Troy DCJ and a jury. He was convicted of count 6 after entering a late plea of guilty.
On 3 February 2017, the appellant was sentenced to the following terms of imprisonment:
Count 1 - 9 months.
Count 2 - 15 months.
Count 3 - 7 years.
Count 4 - 18 months.
Count 5 - 12 months.
Count 6 - 3 months.[4]
[4] WAB 60.
His Honour ordered that the sentences on counts 1, 2, 3 and 6 be served cumulatively and the sentences on counts 4 and 5 be served concurrently with each other and concurrently with the sentence on count 3. In addition to the terms of immediate imprisonment, the appellant was also disqualified from holding or obtaining a motor vehicle driver's licence on count 4 for a period of 3 years and on count 5 for a period of 2 years. These disqualifications were ordered to be served concurrently.[5]
[5] WAB 60.
The total effective sentence imposed upon the appellant was 9 years 3 months' imprisonment and he was disqualified from holding or obtaining a motor vehicle driver's licence for a total period of 3 years. In relation to the terms of imprisonment, the appellant was made eligible for parole and the total effective sentence was ordered to commence on 24 September 2015.[6]
[6] ts 757 - 758.
The grounds of appeal
The appellant, who is unrepresented, advanced four grounds of appeal. Ground 1 alleges that the sentence on count 3 was manifestly excessive. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 3, as understood, alleges that as a result of additional evidence sought to be adduced in the appeal, the appellant has suffered a miscarriage of justice. Ground 4 alleges that the sentencing judge failed to take into account as a mitigating factor a sexual assault alleged to have been committed on the appellant while he was a remand prisoner.[7] The question of leave to appeal on these grounds was referred to the hearing of the appeal.[8]
[7] WAB 25 - 26.
[8] Order 2 March 2018.
The facts
There is no challenge to the facts of the appellant's offending as found by the sentencing judge.
As to count 1, on 17 July 2015, the appellant and his mother attended at the premises of Budget Car Rental in Belmont. The appellant's mother hired a Toyota Prado four‑wheel drive, nominally for herself but, in reality, it was for the appellant's use. The vehicle was almost brand new and worth approximately $60,000. The appellant drove the vehicle from the premises. The appellant had no intention of ever returning the vehicle to the complainant in accordance with the rental agreement. The vehicle was not returned and the appellant treated it as his own. He replaced the original registration plates[9] and pulled out the back seats so as to use it, in effect, as a mobile home. When the vehicle was ultimately recovered on 20 September 2015, it was in such bad condition that it was written off.[10]
[9] Pre‑sentence report, pages 1 - 2.
[10] ts 743 - 744.
As we have said, counts 2 - 5 occurred on 20 September 2015. On that day, the appellant drove the Toyota Prado to the Mundaring Weir Hotel in company with CA and her 16‑year‑old daughter, AA. The victim, Mr Baker, was one of a group of motorcycle enthusiasts who had ridden to the hotel for lunch. Neither the appellant nor Mr Baker knew each other.[11]
[11] ts 744.
While at the hotel, the appellant became angry with CA and AA. Evidence led at the appellant's trial, including CCTV footage, showed the appellant making his way to the Toyota Prado in an overtly agitated and aggressive manner. Witnesses saw him drive off from the hotel, accelerating very quickly down Mundaring Weir Road. Soon after, he encountered Mr Baker and the other members of his group who were riding their motorcycles along the same road.[12] The appellant approached this group from the rear at speed. One of the group, Mr Joss, stopped twice, with the intention of letting the appellant pass. On the second of those occasions, Mr Joss parked his Harley Davidson motorcycle on the right‑hand side of the road, that is, on the other side of the road to which the appellant was driving. The appellant then drove to that side of the road and struck Mr Joss's motorcycle, causing $2,319.20 worth of damage. Had Mr Joss not jumped out of the way, he would have been struck by the appellant's vehicle.[13]
[12] ts 744.
[13] ts 745 - 747. In his sentencing remarks, his Honour found that after the appellant knocked over the motorcycle, he said to AA, 'One bikie down, two to go'. The State conceded in this appeal that no evidence to this effect was adduced at trial, and thus his Honour erred by referring to the statement. However, the error was not material and was not a ground of appeal.
The appellant drove faster than the posted speed limit in order to catch up with the motorcycle being ridden by Mr Baker. Having had Mr Baker in view for about six or seven seconds, the appellant, without braking and at a speed of somewhat over 70 km per hour, drove into the back of Mr Baker's motorcycle, intending to endanger Mr Baker's life, health and safety. As a result of the collision, Mr Baker was seriously injured.[14] We will describe those injuries below.
[14] ts 748.
After injuring Mr Baker, the appellant did not stop to render assistance to Mr Baker, as he was required to do by law. Instead, he drove away from the scene (count 4). Furthermore, he did not report the incident to the police (count 5).[15]
[15] ts 753.
The appellant remained at large until 24 September 2015. At about 8.45 am that day, police saw the appellant riding a bicycle along Kenilworth Road in Bayswater, carrying a black motorcycle helmet in his hand. The appellant was confronted by two police officers who emerged from an unmarked car. One of them, Senior Constable Brkic, was in plain clothes, but she was wearing a vest which clearly identified her as a police officer. She yelled at the appellant to stop and pull over. The appellant rode off, but was intercepted by the officers. In an attempt to escape arrest, the appellant struck Senior Constable Brkic's arm with the motorcycle helmet. Fortunately, she sustained only minor injuries. The appellant was arrested and was remanded in custody until he was sentenced.[16]
[16] ts 754.
Mr Baker's victim impact statement
As a result of the collision, Mr Baker suffered multiple injuries, the worst of which were fractures to his neck. Without treatment, those injuries could have led to paralysis.[17]
[17] ts 749 - 750.
As a result of the injuries he suffered, Mr Baker has been unable to work and is unemployable in his trade as a baker and pastry cook. He is in constant pain and has not been able to drive, perform domestic chores, play squash or pursue most, if not all, of his usual leisure activities. He has developed major depression and post‑traumatic stress disorder.[18]
[18] ts 750.
Mr Baker spent 30 years establishing himself in his own business, but as a consequence of the injuries inflicted by the appellant, the business has had to close. The relationship he has with his wife has gone from one of husband and wife to more like carer and patient.[19]
[19] ts 750.
His Honour described the appellant's actions as having 'ruined' Mr Baker's life.[20]
[20] ts 751.
The appellant's personal circumstances
The appellant was born in 1980. He was 35 years of age when he committed the offences and 36 when he was sentenced.
The appellant's parents separated soon after his birth and he was brought up by his mother, who remains supportive of him.[21]
[21] Pre-sentence report, page 3.
While the appellant was victimised by others and experienced trauma during his childhood years, the effects of those experiences appear to have been embellished by him.[22]
[22] Pre-sentence report, page 4.
The appellant has a history of substance abuse from an early age including the use of alcohol, cannabis, prescribed medications and methylamphetamine. The author of the pre-sentence report considered the appellant to be poorly motivated towards abstinence.[23]
[23] Pre-sentence report, page 4.
Since 2000 the appellant has amassed a long history of offending. His traffic record can appropriately be described as appalling. He has been convicted on many occasions of driving while disqualified and he has multiple convictions for reckless driving and failing to stop when called upon by police. He also has many convictions for various offences of dishonesty including stealing and stealing a motor vehicle. He has convictions for other offences including assault, being armed to cause fear and aggravated burglary. We acknowledge that the present offences are, by some margin, the most serious he has committed but it is patently clear from the appellant's criminal history that he has little regard for the law.
The expert reports before the primary court
Prior to sentencing, the learned sentencing judge was provided with a pre-sentence report, a psychiatric report written by Dr Kevin Smith dated 23 January 2017 and psychological reports written by Dr James McCue and Ms Gosia Studzinski each dated 27 January 2017.[24]
[24] ts 740.
The various reports provided to the sentencing judge indicate that the appellant is not a reliable historian, including as to his personal history.[25]
[25] Pre‑sentence report, page 3.
An issue relevant to the appellant's sentencing was whether he suffers from any mental illness and, if so, whether that illness caused his offending. The appellant informed Dr McCue and Dr Smith that he had been diagnosed with bipolar disorder.
Ms Studzinski concluded that the appellant has a 'significant mental illness' which 'affected his offending behaviour'.[26]
[26] Ms Studzinski's report, page 11.
Dr Smith rejected various diagnoses associated with the appellant including schizophrenia and bipolar affective disorder. He considered that the appellant had malingered features of a psychotic mental illness and had feigned such illness 'to satisfy his impulse to deception, and to validate his claim to reduce culpability'.[27] Dr Smith considered that the only diagnosis that was consistently viable was that the appellant has an antisocial personality disorder.[28]
[27] Dr Smith's report, page 2.
[28] Dr Smith's report, pages 2, 15 - 18.
Dr McCue concluded that the appellant's offending behaviour, his criminal history and presentation at interview suggested the presence of narcissistic and antisocial personality traits.[29] Dr McCue was of the opinion that the appellant presented 'with an entrenched pattern of antisocial and violent behaviour, either to control situations or to react to perceived threats, which appears supported by his belief that it is acceptable to use violence to manage a situation'.[30] He observed that the appellant lacked insight into the reasons for his use of violence, as a result of which he sought to avoid responsibility for his actions, externalise blame for his behaviour, and falsely blame his impulsive decision‑making on his mental health.[31]
[29] Dr McCue's report, page 15.
[30] Dr McCue's report, page 15.
[31] Dr McCue's report, page 15.
His Honour concluded, on the basis of the reports of Dr Smith and Dr McCue, that the appellant did not have a mental illness or psychological disorder which caused or affected his offending behaviour. His Honour rejected the opinion of Ms Studzinski to the contrary. The appellant does not allege that his Honour erred in this respect. His Honour accepted that the appellant has an antisocial personality disorder.[32]
[32] ts 741.
His Honour quoted directly from various portions of Dr Smith's and Dr McCue's reports and stated that he 'unreservedly' accepted the opinions they expressed.[33]
[33] ts 741 - 743.
His Honour accepted Dr Smith's opinion that the appellant had malingered features of a psychotic mental illness.[34] His Honour accepted Dr McCue's opinion that the appellant's offending behaviour, criminal history and presentation at interview suggested the presence of narcissistic and antisocial personality traits, including that he exploits others, lacks empathy, does not conform to social norms with respect to lawful behaviour and is prone to impulsivity, aggressiveness and reckless disregard for the safety of others. His Honour accepted Dr McCue's opinion that the appellant holds the belief that it is acceptable to use violence to manage a situation.[35]
[34] ts 741.
[35] ts 742 - 743.
The sentencing remarks
His Honour found that at the time of the offences the appellant was not suffering from a mental impairment which caused the offending. Relevantly to count 3, his Honour found that the appellant drove the Toyota Prado four‑wheel drive 'angrily and violently'[36] at a speed of slightly more than 70 km per hour into the victim,[37] who was extremely vulnerable because he was riding a motorcycle. Further, the learned sentencing judge found that the appellant's actions were both premeditated and deliberate.[38] He described the appellant as having used his vehicle 'as a weapon'.[39] He observed that the appellant could easily have killed Mr Baker 'or left him in a wheelchair'.[40]
[36] ts 749.
[37] ts 748.
[38] ts 749.
[39] ts 749.
[40] ts 749.
His Honour found, in effect, that there were few mitigating circumstances. In respect of all offences, his Honour said that there was limited mitigation in the appellant's personal circumstances, and that his antisocial personality disorder afforded no real mitigation.[41] His Honour accepted that the expeditious manner in which the appellant conducted his defence at trial afforded some limited mitigation.[42] With respect to count 6, his Honour gave a discount of 10% for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).[43]
[41] ts 755.
[42] ts 755.
[43] ts 757.
While noting that the appellant's prior criminal record did not aggravate the appellant's offending, it underscored the need to give weight to the sentencing objectives of punishment, protection of the public and personal deterrence.[44] His Honour considered both limbs of the totality principle. He expressed the opinion that some cumulation of the individual sentences was justified to mark the very serious nature of the overall offending, and to reflect the important sentencing considerations of personal and general deterrence.[45] His Honour said that, in his estimation, the appellant was 'a dangerous man'.[46]
[44] ts 755.
[45] ts 756.
[46] ts 757.
Relevantly to ground 4, the sentencing judge noted that the appellant had allegedly been sexually assaulted while he was a remand prisoner. In the course of the sentencing proceedings, his Honour acknowledged that he had received and read a copy of the appellant's police deposition in respect of the incident. His Honour said that it was a matter for the authorities to ensure the appellant's protection while he was in custody, and that the alleged sexual assault 'cannot impact to any extent' upon the sentences he was obliged to impose.[47]
[47] ts 755.
The learned sentencing judge reduced the individual sentences that he would otherwise have imposed on counts 1, 2 and 6, for totality.[48]
[48] ts 757.
Consideration of the grounds of appeal
It is convenient to deal with the grounds in this order: ground 3, ground 4, ground 1 and ground 2.
Ground 3
Ground 3 alleges that, as a result of additional evidence not available to the sentencing judge, the appellant suffered a miscarriage of justice.
In LWD v The State of Western Australia[49] and, most recently, in Wellstead v The State of Western Australia,[50] this court set out the relevant principles applicable to the admission in an appeal against sentence of additional evidence not available to the primary judge. It is enough for present purposes to reiterate that:
(a)an appeal against sentence can only succeed where an appellate court concludes that a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA) (the CA Act);
(b)an appellate court may be persuaded to reach such a conclusion by the establishment of a material express or implied error, or a miscarriage of justice;
(c)in the context of an appeal against sentence, an appellate court may be persuaded of a miscarriage of justice based on additional evidence which was not before the sentencing court, where that evidence shows that the appellant had a mental impairment that existed prior to sentencing and was undiagnosed, or its nature and significance were not known or appreciated until after the sentencing; and
(d)where such evidence is sought to be adduced, the appeal against sentence cannot succeed unless it is demonstrated that had it been before the sentencing judge, a different sentence should have been imposed.
[49] LWD v The State of Western Australia [2017] WASCA 174 [81] ‑ [87].
[50] Wellstead v The State of Western Australia [2019] WASCA 130 [78] ‑ [99].
The additional evidence which the appellant submits gives rise to a miscarriage of justice is a letter dated 23 May 2017 sent by a consultant forensic psychiatrist, Dr Mark Hall, to a lawyer at Legal Aid (WA). By an application filed in this court dated 24 November 2017, the appellant applied to adduce this letter as additional evidence, pursuant to s 40(1)(e) of the CA Act. The respondent did not oppose the admission of the letter into evidence. At the hearing on 17 June 2019, an order was made granting leave to the appellant to adduce the letter as additional evidence in the appeal.[51]
[51] Appeal ts 59.
In the letter dated 23 May 2017, Dr Hall explained that he first saw the appellant in 2012. At that time, he considered the appellant to have a history of substance abuse and a personality disorder, but he did not consider him to be suffering from a mental illness. However, Dr Hall saw the appellant again on two occasions in 2016. As a result of those consultations, Dr Hall changed his diagnosis. In Dr Hall's opinion, not only did the appellant suffer from an antisocial personality disorder, but he also suffered from bipolar affective disorder.[52] Although Dr Hall's revised diagnosis was briefly referred to in Dr Smith's report, no report from Dr Hall was placed before the sentencing judge and he was apparently unaware of it.
[52] WAB 8 - 9.
As the respondent pointed out in its written submissions to this court, while Dr Hall expressed the opinion that the appellant suffered from bipolar affective disorder, he did not address whether the appellant's condition was causative of the appellant's offending, nor whether imprisonment would be, for the appellant, a harsher punishment than for a person of sound mental health.[53]
[53] Respondent's submissions, par 43.
Prior to the hearing before this court on 20 September 2018, the respondent wrote to Dr Hall seeking a further report regarding his diagnosis and the potential relevance of the diagnosis to the appellant's current offending. Dr Hall advised the respondent that he was not in a position to provide a further report, citing time constraints.[54]
[54] Respondent's submissions, par 46, fn 55.
At the hearing on 20 September 2018, counsel for the respondent accepted, in effect, that fairness dictated that Dr Hall provide the court with a further report. Having regard to the appellant's status as a litigant in person, the respondent properly undertook to commission such a report from Dr Hall.[55] As a result, the hearing of the appeal was adjourned to a date to be fixed, and orders were made to enable Dr Hall to provide a supplementary report to the letter dated 23 May 2017.[56]
[55] Appeal ts 21, 28.
[56] Appeal ts 31.
Unfortunately, for reasons beyond the control of the respondent, the preparation of Dr Hall's supplementary report was delayed considerably. Dr Hall's supplementary report dated 18 February 2019 was filed on 28 March 2019, and a copy of it was subsequently served upon the appellant. At the hearing before this court on 17 June 2019, Dr Hall's supplementary report was received with the consent of the parties as additional evidence in the appeal.[57]
[57] Appeal ts 59.
The opinions and recommendations contained in Dr Hall's supplementary report were based upon an interview with the appellant on 6 December 2018, the contents of the pre‑sentence report, the expert reports that were before the primary judge, Dr Hall's previous report of 15 February 2012, the appellant's medical record with the Department of Corrective Services, a transcript of the appellant's evidence at trial, and excerpts from his Honour's sentencing remarks which set out the findings of fact in respect of the offending.[58]
[58] Dr Hall's supplementary report, page 2.
In his supplementary report, Dr Hall restated the opinion he expressed in his report dated 23 May 2017; that the appellant suffers from a mental illness, namely bipolar disorder, which co‑exists with a personality disorder and a history of polysubstance abuse.[59] Dr Hall elaborated as to the effects of the mental illness and the personality disorder:[60]
[W]hen [the appellant's] bipolar disorder is in remission, his 'psychopathic' (antisocial and narcissistic) personality traits clearly predominate and effectively dictate his interactions with the environment around him, resulting in pervasive and obvious deceitfulness and exploitative behaviour designed to leverage his personal position. Specifically, he overstates past symptoms he believes may have exculpatory value, provides an internally inconsistent account, and invariably seeks to abrogate personal responsibility. As a consequence, he actually undermines his own otherwise valid claim to recognition of the relapsing and remitting mental disorder that he does indeed have. His lack of awareness [of] those aspects of his personality, as well as their transparency to the observer, is a reflection of his underlying grandiose sense of self (narcissism).
[59] Dr Hall's supplementary report, page 8.
[60] Dr Hall's supplementary report, page 8.
In addition, Dr Hall stated:
1.In his opinion, the onset of the appellant's bipolar disorder was 'at least as early as 2012'.[61]
2.The appellant's bipolar disorder was in remission by the time he was released from prison in 2014, and his symptoms were largely in remission at the time of the offences or, at most, present only to a small degree.[62]
3.The appellant's mental illness did not play a causative role in the offending.[63] Even if the appellant's claim (made to Dr Hall) that he was in danger from 'bikies' is accepted, in Dr Hall's view, the appellant's aggressive response stemmed from his antisocial personality structure. Moreover, the appellant's claim (again made to Dr Hall) that he stole the rental car because he was labouring under a delusion that he was working for a car hire or insurance company, was undermined by the measures he took to disguise the vehicle, as well as his admission that at the time of taking it, he knew that what he was doing was wrong.[64]
4.The appellant does not feel remorse or guilt in relation to the offending, and his lack of remorse is a consequence of his antisocial personality and not from any mental illness.[65]
5.The appellant's mental health is well managed in a custodial setting. As such, he is no less able to cope with prison than someone without his mental disorder.[66]
[61] Dr Hall's supplementary report, page 9.
[62] Dr Hall's supplementary report, page 9.
[63] Dr Hall's supplementary report, page 9.
[64] Dr Hall's supplementary report, page 9.
[65] Dr Hall's supplementary report, page 9.
[66] Dr Hall's supplementary report, page 9.
Dr Hall assessed the appellant's risk of reoffending. This assessment involved the use of a risk assessment tool, namely the Historical‑Clinical‑Risk Management 20, Version 3; the assessment of a number of historical risk factors for offending; and a consideration of a number of current clinical factors. Having regard to all of these factors, Dr Hall considered the appellant 'to be at high risk of reoffending in the future'.[67] In this regard, Dr Hall expressed the view that the appellant's mental disorder 'has a very small bearing on his risk of reoffending'.[68]
[67] Dr Hall's supplementary report, page 10.
[68] Dr Hall's supplementary report, page 10.
Dr Hall did not agree with Dr Smith's opinion that the appellant was not suffering from a mental illness, and took issue with Dr Smith's opinion that the appellant was a malingerer.[69]
[69] Dr Hall's supplementary report, page 11.
In our view, the opinions and conclusions reached by Dr Hall in his supplementary report should be accepted. Neither the appellant nor counsel for the respondent at the hearing on 17 June 2019 made submissions to the contrary. Dr Hall had the considerable advantage over all of the other experts who had provided reports to the sentencing judge of being one of the appellant's treating psychiatrists since 2012, and had observed him over several meetings during that time. The supplementary report is careful, detailed and measured. Dr Hall's explanation for his change of diagnosis is clear and compelling. So, too, are his reasons for disagreeing with some of the opinions and conclusions of Dr Smith.
Of course, the sentencing judge did not have the benefit of the information before this court. In light of Dr Hall's reports, and contrary to the conclusions reached by his Honour, we conclude that at the time of the offences, the appellant was suffering from a mental illness, namely bipolar disorder. That illness co‑existed with an antisocial personality disorder as described by Dr Hall, Dr Smith and Dr McCue. However, we also conclude that while the appellant suffered from bipolar disorder at the time of the offences, it was in remission and was, at most, present only to a small degree. It was not causative of the offending. Nor does its existence, which is well managed while he is in custody, make him less able to cope in prison than someone without such a mental illness. The appellant remains at a high risk of reoffending.
Thus, while the additional evidence shows that, contrary to his Honour's findings, the appellant was, in fact, suffering from a mental illness, that mental illness is not materially mitigatory and does not materially change the seriousness of the appellant's offending or his high risk of further reoffending. The appellant has not suffered a miscarriage of justice. The additional evidence, had it been before the sentencing judge, should not have led to a different sentence. We would refuse leave to appeal on ground 3.
Ground 4
Ground 4 alleges that his Honour erred by failing to take into account, as a mitigating factor, sexual assaults alleged to have been committed against the appellant while he was in custody on remand awaiting sentence for the present offences. In support of this ground, the appellant sought leave to adduce, by application dated 11 April 2018, a statement he gave to police dated 14 December 2015. This statement was part of the material before the sentencing judge.[70] As such, the leave of this court is not required. The application should be dismissed.
[70] ts 727.
It is unnecessary to set out in these reasons the nature of the alleged sexual assaults. The details are set out in the statement referred to above which was, as we said, before the learned sentencing judge, and which we have read. At the sentencing hearing, defence counsel, in his plea in mitigation, referred to the allegations and told his Honour that the appellant had received threats from other prisoners as a result of his having made the allegations. Defence counsel submitted, in substance, that, as a result of those threats, 'prison is probably not going to be very easy for [the appellant]'.[71] No evidence was adduced in support of the submission.
[71] ts 731.
As noted at [39] above, his Honour acknowledged the alleged sexual assaults and said that it was a matter for the authorities to ensure the appellant's security while he was in custody. In these circumstances, his Honour found that the alleged sexual assaults 'cannot impact to any extent' upon the sentences he was obliged to impose.[72] It may be accepted that his Honour did not give any mitigating weight to the alleged sexual assaults.
[72] ts 755.
In his oral submissions in this court, the appellant asserted that, because he had complained to authorities about the alleged sexual assaults, he had been held in protection. He asserted that 'a lot of things aren't available to me through being in protection'.[73] In substance, he complained that, by reason of being held in protection, imprisonment was more arduous for him and that should have been taken into account by the learned sentencing judge as a mitigating factor and his Honour erred in not doing so.
[73] Appeal ts 61.
The appellant's assertion that he had been held in protective custody was unsupported by evidence. At the conclusion of the hearing on 17 June 2019, this court made orders requiring the respondent to file and serve an affidavit from the officer in charge of the prison at which the appellant is being held as to whether the appellant is being held in special or protective custody and, if so, the conditions under which he is being held. The appellant was given leave to file and serve a memorandum in response to the affidavit of the officer in charge.[74]
[74] Appeal ts 71.
As ordered, the court received an affidavit sworn by the assistant director of the prison at which the appellant is being held. The assistant director affirmed that:
(a)Following the alleged assault, the appellant was moved to a 'protection precinct'.
(b)The regime in that precinct is the same as all other areas of the prison except that such prisoners are escorted around the prison by custody staff when not in their accommodation area.
(c)Prisoners in the precinct have exactly the same entitlements as mainstream prisoners, save that they are unable to be accommodated in a 'self‑care' unit. Prisoners in such a unit are entitled to remain unlocked in their cells for an hour longer at night than all other prisoners.
Although not in strict compliance with the court's order, the appellant sent to the court an affidavit, sworn on 20 June 2019, in which he described the conditions in which he was held. The affidavit focuses on why he is being held in protection as opposed to the actual conditions in which he is being held.
Disposition of ground 4
The principles relevant to whether some leniency or a discount should be given to an offender for the fact that he or she has been, or is likely to be, subject to prison conditions that are materially more arduous than normal were explained by Buss JA in Milenkovski v The State of Western Australia.[75] As Mazza JA observed in that case, the question of whether any mitigation may be given to the conditions in which an offender is held in custody and the weight that may be attached to this factor are very fact‑sensitive.[76]
[75] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 238 A Crim R 535 [151] ‑ [157].
[76] Milenkovski v The State of Western Australia [212].
Having considered the evidence before this court, we are not persuaded that the appellant has been, or is likely to be, held in conditions which are materially more arduous than normal. There is no evidence to support the appellant's assertion that 'a lot of things aren't available to [him]' in protection. Having regard to the evidence of the assistant director, which we accept, the only disadvantage the appellant has compared to mainstream prisoners is that the opportunity of being accommodated in a self‑care unit is not open to him. There is no evidence before this court that the appellant would otherwise be entitled to be accommodated in a self‑care unit. However, even if the appellant was so entitled, the difference is not such that we would conclude that being held in the protection unit is materially more arduous or that a different sentence should have been imposed.
We would refuse leave to appeal on ground 4.
Grounds 1 and 2
Grounds 1 and 2 assert implied error on the part of the sentencing judge. This court may only intervene if, in accordance with the well‑known principles in House v The King,[77] the appellant demonstrates that the individual sentence on count 3 or the total effective sentence is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
Ground 1 - manifest excess
[77] House v The King [1936] HCA 40; (1936) 55 CLR 499.
In determining whether or not a sentence is manifestly excessive, the sentence must be viewed in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender.
The maximum penalty for an offence contrary to s 304(2) of the Code is 20 years' imprisonment.
An offence contrary to s 304(2) of the Code may be committed in a wide range of circumstances. There is no sentencing tariff for this offence. As this court recently noted in Quirk v The State of Western Australia,[78] a wide range of sentences have been imposed for offences of this kind. See also The State of Western Australia v Darroch[79] and Gleeson v The State of Western Australia.[80]
[78] Quirk v The State of Western Australia [2019] WASCA 76 [57].
[79] The State of Western Australia v Darroch [2018] WASCA 114.
[80] Gleeson v The State of Western Australia [2019] WASCA 100.
In sentencing for an offence under s 304(2) of the Code, relevant factors will include, in particular, the nature and seriousness of the offender's intent to harm, and the nature and seriousness of the bodily harm caused to the particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be.[81] While the structure of s 304(2) reveals that potential harm may be as significant as actual harm, where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence.[82]
[81] Hinkley v The State of Western Australia [2014] WASCA 122 [18].
[82] The State of Western Australia v Darroch [34].
We have had regard to McLure P's analysis of the comparable cases in Penny v The State of Western Australia,[83] as well as other cases decided by this court, including Hinkley v The State of Western Australia;[84] Sophiadakis v The State of Western Australia;[85] Kaokula v The State of Western Australia;[86] Chikonga v The State of Western Australia;[87] McAllister v The State of Western Australia;[88] Ugle v The State of Western Australia;[89] The State of Western Australia v Darroch; Quirk v The State of Western Australia and Gleeson v The State of Western Australia. It is unnecessary to refer to the facts and circumstances of each of these cases. It is sufficient to say that the individual sentence imposed upon the appellant for count 3 is broadly consistent with the sentences imposed in cases of serious offending against s 304(2) of the Code.
[83] Penny v The State of Western Australia [2016] WASCA 52.
[84] Hinkley v The State of Western Australia [2014] WASCA 122.
[85] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[86] Kaokula v The State of Western Australia [2016] WASCA 198.
[87] Chikonga v The State of Western Australia [2017] WASCA 34.
[88] McAllister v The State of Western Australia [2017] WASCA 183.
[89] Ugle v The State of Western Australia [2018] WASCA 16.
The appellant's offending in respect of count 3 was undeniably very serious, having regard to the learned sentencing judge's factual findings. The appellant deliberately drove his substantial four‑wheel drive vehicle at about 70 km per hour, so that he effectively rammed the vehicle into the motorcycle being ridden by Mr Baker. Given that Mr Baker was riding a motorcycle, he was vulnerable to personal injury in such a collision, as the appellant must have appreciated. The appellant's actions were premeditated and were completely unjustified. The appellant acted out of anger and used his vehicle as a weapon.
The risk to the victim's life, health and safety was obvious. Mr Baker was lucky to survive. The consequences of the appellant's offending set out in [18] ‑ [20] of these reasons are a serious aggravating factor. As his Honour put it, Mr Baker's life has been ruined.
There were few mitigating factors. The appellant is not remorseful. While his decision to plead not guilty cannot be held against him, his plea attracts no mitigation. The appellant was not a man of prior good character and poses a high risk of reoffending. Sentencing considerations of personal and general deterrence, proper punishment and protection of the public were particularly important in this case.
The appellant's personal circumstances were unfavourable to him and provided little mitigation.
Having regard to all the relevant circumstances and sentencing considerations, the sentence of 7 years' imprisonment imposed on count 3 was not unreasonable or unjust. It was not manifestly excessive.
We would refuse leave to appeal on ground 1.
Ground 2 - totality
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality in all of the offences (including those, if any, in respect of which the offender is still serving, or is yet to serve, a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
In our opinion, the total effective sentence imposed upon the appellant of 9 years 3 months' imprisonment did not infringe the first limb of the totality principle. Our reasons for this conclusion are as follows.
We will not repeat what we have said about the seriousness of count 3. The other offences committed by the appellant were, in themselves, serious. The theft of the Toyota Prado (count 1) was planned and resulted in the owner of the vehicle, a hire car company, being deprived of it for a substantial period of time. The appellant sought to disguise his actions by changing the registration plates. He pulled out the back seats and used the vehicle as his mobile home. In the end, the vehicle, which was worth about $60,000, was written off.
While count 3 was the most serious of the offences committed by the appellant on 20 September 2015, the seriousness of counts 2, 4, 5 and 6 must not be overlooked. The appellant deliberately damaged Mr Joss's motorcycle. In doing so, he endangered Mr Joss's safety. After colliding with Mr Baker's motorcycle, the appellant callously drove off without attempting to render any assistance to him and did not report the matter to the police. Then, on 24 September 2015, he assaulted Senior Constable Brkic in the execution of her duty.
Given the overall seriousness of the offending, that it occurred over several days and that different victims were affected, some cumulacy of the individual sentences imposed by the learned sentencing judge was required.
Although the appellant asserts that the total effective sentence imposed upon him was inconsistent with sentences imposed in other cases, no comparable cases were cited by him. There are no truly comparable cases. Of course, the absence of any comparable cases does not deprive this court of the ability to decide whether the total effective sentence imposed here infringed the totality principle.
His Honour reduced the sentences he would have otherwise imposed on counts 1, 2 and 6 for totality reasons, and ordered that the sentences on counts 4 and 5 be served concurrently for that reason. He took into account the few mitigating factors there were; in particular, the appellant's plea of guilty on count 6 and the manner in which the appellant conducted his defence. The total effective sentence is, doubtless, substantial. However, in our view, such a sentence was necessary to reflect the seriousness of all of the offences and to give effect to the sentencing considerations of general and personal deterrence, proper punishment and the protection of the public.
When all relevant sentencing factors are taken into account, including those personal to the appellant, the total effective sentence imposed upon the appellant bore a proper relationship to the appellant's overall criminality and did not infringe the totality principle. We are satisfied that it was not unreasonable or unjust.
We would refuse leave to appeal on ground 2.
Conclusion and orders
The orders that we would make are as follows:
(1)The application to adduce additional evidence filed 11 April 2018 is dismissed.
(2)Leave to appeal on all grounds is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza26 SEPTEMBER 2019
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