Walker v Saunders - [2020] WASC 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WALKER -v- SAUNDERS [2020] WASC 229
CORAM:   MCGRATH J
HEARD:   15 AUGUST 2019 & 27 MAY 2020
DELIVERED          :   19 JUNE 2020
FILE NO/S:   SJA 1046 of 2019
BETWEEN:   ALLAN ADRIAN WALKER
Appellant
AND
DARREN SAUNDERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HUSTON
File Number            :   CA 156/2019, CA 157/2019

Catchwords:

Criminal law – Appeal against sentence – Aggravated burglary – Stealing – Steal motor vehicle – Breach of bail – Implied error of law – Alleged manifest excessive – Whether s 11 of the Sentencing Act 1995 (WA) required the judge to not sentence for the offence of stealing – Miscarriage of justice – Additional evidence – Psychiatric report – Mitigating factor – Resentence to community based order

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Sentencing Act 1995 (WA), s 6, s 9AA, s 11, s 39, s 46, s 84I

Result:

Extension of time in which to appeal is granted
Leave to appeal is granted on grounds 2 and 3
Leave to appeal is refused on ground 1
The appeal is allowed on grounds 2 and 3
The sentence imposed on CA 157/2019 is set aside and in lieu thereof no penalty is imposed
The sentence of a conditionally suspended term of imprisonment imposed on CA 156/2019 is set aside and in lieu thereof a community based order for 6 months is imposed

Category: B

Representation:

Counsel:

Appellant	:	Ms K E Heath
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Aboriginal Legal Service
Respondent	:	Director of Public Prosecutions (WA)

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

Ahmad v The Queen [2003] WASCA 234
Caseley v Zampogna [2006] WASC 259
Churnside v The State of Western Australia [2016] WASCA 146
Dos Santos v The State of Western Australia [2016] WASCA 46
Dreja v The State of Western Australia [2012] WASCA 151
Gillespie v The State of Western Australia [2013] WASCA 149
Gok v The State of Western Australia [2010] WASCA 185
Hume v The State of Western Australia [2019] WASCA 53
Humphreys v The State of Western Australia [2017] WASCA 208
Kelly v The State of Western Australia [2020] WASCA 29
Kolak v The State of Western Australia [2017] WASCA 180
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
LWD v The State of Western Australia [2017] WASCA 174
Main v The State of Western Australia [2010] WASCA 28
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McKinley v Edmonds [2014] WASC 43
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Tsiaras [1996] 1 VR 398
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Thompson v The Queen [2005] WASCA 223
Ugle v The State of Western Australia [2012] WASCA 104
Vander Waide v The State of Western Australia [2019] WASCA 148
Wellstead v The State of Western Australia [2019] WASCA 130
Wheeler v The Queen [No 2] 2010 WASCA 105
Wiltshire v Mafi [2010] WASCA 111

MCGRATH J:

On 15 February 2019, Mr Walker was sentenced in respect of five offences, being one charge of aggravated burglary contrary to s 401(2)(ba) of the Criminal Code (WA),[1] one charge of stealing contrary to s 378 of the Criminal Code,[2] one charge of steal motor vehicle contrary to s 378 of the Criminal Code,[3] and two charges of breach of bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA).[4]
[1] Charge CA 156/2019.
[2] Charge CA 157/2018.
[3] Charge WU 131/2018.
[4] Charge WU 244/2018, Charge WU 143/2018.
The presiding magistrate imposed a term of imprisonment of 6 months 1 day, suspended for 9 months, subject to program and supervision requirements for the aggravated burglary charge. The other offences were dealt with by way of the imposition of fines.
Mr Walker, by ground 1, contends that the sentence imposed on the aggravated burglary charge (CA 156/2019) was manifestly excessive. Further, by ground 2, Mr Walker contends that the magistrate erred in law by imposing a sentence on the stealing charge (CA 157/2019) in circumstances where no sentence ought to have been imposed pursuant to s 11 of the Sentencing Act 1995 (WA). By ground 3, Mr Walker contends that there has been a miscarriage of justice for the reason that the nature and significance of his mental impairment was not known until after sentencing.
For the following reasons, I have determined that there must be an extension of time in which to appeal,[5] leave to appeal must be granted and that the appeal must be allowed on grounds 2 and 3.
[5] Affidavit of Ms Heath sworn 28 March 2019 in support of application for extension of time in which to appeal.
In these reasons for decision, I will consider the following:
1.The Magistrates Court proceedings.
2.The grounds of appeal.
3.An assessment of the merits of the appeal.
4.Resentencing.

Procedural history and Magistrates Court hearing

On 15 February 2019, Mr Walker appeared in the Magistrates Court and upon his own plea was convicted and sentenced for the five offences.
At the sentencing hearing, the facts which were read to the magistrate erroneously included facts in respect of an aggravated burglary charge which was discontinued against Mr Walker (the discontinued aggravated burglary charge).[6] Counsel for Mr Walker clarified that Mr Walker pleaded guilty to the charge of stealing a motor vehicle on 16 June 2018 on the factual basis that he entered the vehicle and used the vehicle knowing that it had been taken during a burglary, but that he was not involved in the burglary.[7] That factual basis was accepted by the prosecution and formed the facts upon which the magistrate sentenced Mr Walker for the steal a motor vehicle charge.
[6] Charge WU 130/2018; ts 5 (15/02/2019).
[7] ts 8 (15/02/2019).
On 3 July 2018, Mr Walker committed the first breach of bail offence by failing to appear in Wiluna Magistrates Court whilst on bail for the steal a motor vehicle charge and the discontinued aggravated burglary charge.[8] On 17 July 2018, Mr Walker was arrested on a warrant of apprehension and then again released on bail.[9]
[8] ts 6 (15/02/2019).
[9] ts 5 (15/02/2019).
On 31 July 2018, Mr Walker again failed to appear in Wiluna Magistrates Court. Accordingly, an arrest warrant was issued by the presiding magistrate.[10] On 26 December 2018, Mr Walker was arrested and then released again on bail.[11] A condition imposed as part of the bail undertaking was that Mr Walker was subject to a curfew.[12]
[10] ts 6 (15/02/2019).
[11] ts 6 (15/02/2019).
[12] ts 7 (15/02/2019).
Whilst on bail, Mr Walker committed the aggravated burglary and stealing offences.[13] At 10.00 pm on Wednesday, 13 February 2019, Mr Walker and three other males went to the Bulletin workshop in the Matilda Gold Mines in Wiluna and forced entry into a secure area.
[13] ts 6 ‑ 7 (15/02/2019).
Mr Walker stole a black torch from the benchtop, while the co‑offenders stole three cans of yellow spray‑paint. Upon being apprehended the next day Mr Walker made admissions to his involvement and by way of explanation stated that 'I just followed the other boys.'[14]
[14] ts 7 (15/02/2019).
At the time of committing the aggravated burglary and stealing offences, Mr Walker was on bail for both the steal a motor vehicle charge and the discontinued aggravated burglary charge. In mitigation, Mr Walker's counsel stated that Mr Walker entered and used the vehicle knowing that it was stolen but played no role in the discontinued aggravated burglary offence.[15]
[15] ts 8 (15/02/2019).
In respect of the aggravated burglary charge, Mr Walker's counsel submitted that the offending was on the lower end of the scale of seriousness due to the fact that the property stolen was not particularly valuable,[16] and that the offending was opportunistic.[17]
[16] ts 9 (15/02/2019).
[17] ts 9 (15/02/2019).
His Honour gave Mr Walker a 25% discount for the plea of guilty entered at the first reasonable opportunity pursuant to s 9AA of the Sentencing Act.[18]
[18] ts 13 (15/02/2019).
The magistrate stated that the aggravated burglary was serious for the reason that the offending was committed whilst Mr Walker was on bail.[19] The bail conditions included a requirement to observe a curfew.[20] The magistrate determined that a term of imprisonment should be imposed, with the ultimate issue being whether the term should be suspended.[21] His Honour stated that 'the principles of the Sentencing Act would require a far more onerous' disposition than 'a community based order.'[22]
[19] ts 12 (15/02/2019).
[20] ts 12 (15/02/2019).
[21] ts 12 (15/02/2019).
[22] ts 12 (15/02/2019).
Further, the magistrate acknowledged that while serious, the breach of bail undertaking charges should only be dealt with by way of fines.[23]
[23] ts 10 (15/02/2019).
The magistrate imposed a term of imprisonment of 6 months 1 day, conditionally suspended for 9 months, for the aggravated burglary charge and a fine of $500 for the stealing charge.[24] In suspending the term of imprisonment, his Honour stated that factors in favour of suspension were Mr Walker's youth, limited criminal record and that he had 'some prospects for turning things around.'[25]
[24] ts 14 (15/02/2019).
[25] ts 14 (15/02/2019).
For the offence of stealing a motor vehicle a fine of $1,000 was imposed and fines of $500 were imposed on each of the two breach of bail charges respectively.[26]
[26] ts 14 (15/02/2019).

The grounds of appeal

Mr Walker's Notice of Appeal pleaded one ground of appeal, contending that the term of imprisonment imposed in respect of the burglary was manifestly excessive.[27] By application dated 18 July 2019, Mr Walker sought to add a further ground of appeal concerning the imposition of the fine on the stealing charge (CA 157/2019). On 15 August 2019 at the hearing of the appeal, I ordered that leave was granted to amend the grounds of appeal to rely upon the proposed second ground of appeal.
[27] Notice of Appeal dated 28 March 2019.
Subsequent to the hearing of the appeal on 15 August 2019, Mr Walker's counsel informed the court that the Department of Corrective Services had on 6 August 2019 made an application to amend or cancel the conditionally suspended imprisonment order (CSIO) pursuant to s 84H of the Sentencing Act. The application stated that given Mr Walker's 'significant mental health issues, pending diagnosis in relation to organic brain damage and demonstrated inability to understand or comply with the conditions of his Order, it is recommended the Order be cancelled.'[28] If a CSIO is cancelled the sentence is regarded as a sentence of suspended imprisonment.[29] However, the application was not determined for the reason that the period of suspension has now been completed.
[28] Application to Amend/Cancel Order dated 6 August 2019, 2.
[29] Sentencing Act 1995 (WA), s 84I(2).
Counsel confirmed that, in light of the s 84H application, medical reports addressing the mental health issues of Mr Walker were now being obtained. The time taken to obtain these reports has caused the delay in determining this appeal.
On 18 March 2020 Mr Walker applied to add a third ground of appeal contending that he had suffered a miscarriage of justice at sentencing. I granted leave to Mr Walker to rely upon the third ground of appeal.
The three grounds of appeal are in the following terms:
1.The Magistrate erred in law by imposing a sentence in relation to the offence of burglary and commit in circumstances of aggravation that was so excessive as to manifest error, having regard to:
a.The circumstances of the offence, being at the lower end of objective seriousness;
b.The availability and appropriateness of alternatives to imprisonment;
c.The appellant's youth; and
d.The appellant's limited criminal antecedents.
2.The magistrate erred in law by imposing a fine of $500 on CA 157/2019, being the stealing offence associated with the offence of burglary and commit, as no sentence ought to have been imposed pursuant to s 11 of the Sentencing Act 1995 (WA).
3.The appellant has suffered a miscarriage of justice as the sentence imposed failed to reflect a significant mitigating factor, being the presence of a cognitive impairment, which was not known at the time of sentencing and therefore was not before the sentencing magistrate.[30]
[30] Proposed ground 3 was amended during the hearing on 27 May 2020 (ts 30 (27/05/2020)).
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[31] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or of both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice.[32]
[31] Criminal Appeals Act 2004 (WA), s 9(1).
[32] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[33] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[34]
[33] Criminal Appeals Act 2004 (WA), s 9(2).
[34] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss the appeal, allow the appeal and may set aside or vary the sentence imposed and substitute it with the sentence that should have been imposed.[35]
[35] Criminal Appeals Act 2004 (WA), s 14.
Section 14(2) of the Criminal Appeals Act provides that 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.
Ground 1 contends that the term of imprisonment suspended on conditions imposed in respect of the aggravated burglary charge was manifestly excessive in that the wrong type of sentence was imposed. By ground 2, Mr Walker contends that the magistrate erred in law. The third ground relies upon a claim of a miscarriage of justice.
In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[36]
[36] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Assessment of appeal grounds

I now consider the grounds of appeal. I will first consider grounds 2 and 3.

Ground 2

By ground 2, Mr Walker contends that the magistrate erred in law by imposing a fine in respect of the stealing charge (CA 157/2019) in circumstances where no sentence ought to have been imposed pursuant to s 11 of the Sentencing Act.
Section 11 of the Sentencing Act provides that:
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
(2)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of an offence under the law of the Commonwealth, a Territory or another State, and the person has been sentenced for the offence under the law of that other place, the person is not to be sentenced for the offence under the law of this State.
(3)Despite subsections (1) and (2), if an act or omission of an offender causes the death of another, the offender may be sentenced for the offence of which he or she is guilty by reason of causing the death despite the fact that he or she has already been sentenced for some other offence constituted by that act or omission.
(4)Nothing in this section affects the operation of section 17 of the Criminal Code.
Mr Walker contends that the evidence necessary to prove the aggravated burglary charge is also the evidence necessary to establish the commission of the stealing charge and therefore, Mr Walker should not be sentenced for the offence of stealing.
The respondent contends that while s 11 of the Sentencing Act applies to circumstances where identical evidence, with no additional evidence, might establish two separate offences, it is not clear whether s 11 applies to a case where 'the entire evidence necessary to establish offence B is a subset of the evidence necessary to establish offence A (but where there is additional evidence necessary to establish A)'.[37]
[37] Respondent's Written Outline of Submissions dated 5 August 2019 [9].
The respondent further contends that the ground should be allowed on the basis that the imposition of two distinct sentences for charges which covered the same offending breached the principle against double punishment and not on the basis of s 11 of the Sentencing Act.[38] That is, the imposition of a fine for the stealing charge breached the principle against double punishment given that the stealing charge is wholly subsumed in the aggravated burglary charge. Accordingly, the respondent accepts that the court should set aside the $500 fine for the stealing offence and in lieu thereof impose no penalty to ensure that Mr Walker is not punished twice for the stealing offence.
[38] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40].
The difficulty with the respondent's submission that the court should not impose sentence for the reason that to do so would be contrary to the principle of double punishment (but not pursuant to s 11) is that the Sentencing Act requires that a court impose a sentence in accordance with s 39(2)(a) ‑ (h) except in defined circumstances (which are not relevantly applicable).
Section 39(2)(a) provides that a court sentencing an offender may, with or without making a spent conviction order, under pt 6 impose no sentence and order the release of the offender.
Part 6 of the Sentencing Act comprises s 46 which provides that a court may impose no sentence if it considers that the circumstances of the offences are trivial or technical, and having regard to the offender's character, age, health and mental condition and any other matter that the court thinks is proper to consider, it is not just to impose any other sentencing option. Unless the court is satisfied of the matters specified in s 46 of the Sentencing Act the court must impose a sentence otherwise in accordance with the sentencing options specified in s 39 of the Sentencing Act.
The relevant offences committed by Mr Walker, being the aggravated burglary offence and the stealing offence, are not trivial or technical offences. Therefore, as s 46 is not applicable to Mr Walker's offending, the contention that the court should simply not impose a sentence due to the principle of double punishment is contrary to the statutory framework. Accordingly, I must consider the application of s 11 of the Sentencing Act.
In Kelly v The State of Western Australia[39] the Court of Appeal considered the application of s 11 of the Sentencing Act. In that case, the appellant was convicted of one count of aggravated home burglary (count 1) and one count of assault occasioning bodily harm (count 2). The two offences arose when the appellant entered the victim's house without consent and whilst inside the house assaulted the victim causing bodily harm. The sentencing judge imposed a term of imprisonment of 3 years 6 months for count 1 and 6 months' imprisonment on count 2 to be served cumulatively.
[39] Kelly v The State of Western Australia [2020] WASCA 29.

The Court of Appeal determined that the imposition of a sentence on each count did not breach the proscriptions of s 11 of the Sentencing Act, stating that:[40]
[S]ection 11 is engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all elements of, and thus the commission of, another offence. It does not apply to a case where there is overlap between the evidence required to establish the two offences, but where each offence requires some distinct additional evidence in order to establish the commission of that offence.
[40] Kelly v The State of Western Australia [2020] WASCA 29, 11.
In Kellyv The State of Western Australia, the Court of Appeal determined that the evidence that the appellant committed an assault on the victim was necessary to establish the commission of both offences. However, each offence required some additional evidence. That is, the aggravated burglary required evidence that the assault occurred while the appellant was in another person's place without consent, and the offence of assault occasioning bodily harm required additional evidence as to the element of bodily harm. Accordingly, s 11 of the Sentencing Act did not apply.
Therefore, if an offender is convicted of two offences each proved by some additional evidence, notwithstanding that each formed part of a series of offences in the course of the one criminal enterprise, s 11 has no application.[41]
[41] See also Ahmad v The Queen [2003] WASCA 234 [4] ‑ [44].
In the present case the evidence that Mr Walker stole property of another was part of the evidence necessary to establish the commission of both the offence of aggravated burglary and the offence of stealing. However, unlike the circumstances in Kelly v The State of Western Australia, only one offence required some further distinct evidence being the offence of aggravated burglary which required evidence that the stealing occurred while Mr Walker was in another person's place without consent. The offence of stealing did not require additional evidence as to any element and was wholly subsumed in the offence of aggravated burglary. The evidence necessary to prove the aggravated burglary count proves, without more, the commission of the other offence of stealing. Therefore consistent with the reasoning in Kelly v The State of Western Australia, s 11 is engaged for the reason that the evidence necessary to prove one offence, being the aggravated burglary, establishes, without more, all elements of and thus the commission of, another offence being the stealing charge.
This reasoning has previously been applied by the Court of Appeal when resentencing offenders for offences of burglary and stealing arising from the same offending.[42]
[42] Hume v The State of Western Australia [2019] WASCA 53 [7], [65]; Gillespie v The State of Western Australia [2013] WASCA 149 [232], [235].
The respondent referred to Dos Santos v The State of Western Australia,[43] being a case where the Court of Appeal considered the 'significant overlap' between a count of aggravated burglary during which the offender committed the offence of aggravated assault occasioning bodily harm, and a second count of unlawful assault occasioning bodily harm. The Court of Appeal observed that 'there is no single correct mechanism for avoiding double punishment. It may be done, for example, by reducing the otherwise appropriate term of imprisonment or ordering partial or total concurrency.'[44] The application of s 11 of the Sentencing Act does not appear to have been raised and therefore was not considered by the Court of Appeal in Dos Santos v The State of Western Australia. The fact that each count had different circumstances of aggravation and therefore, different evidence was necessary on each count, may explain why s 11 of the Sentencing Act was not considered. I do not consider that Dos Santos v The State of Western Australia supports the respondent's contention.
[43] Dos Santos v The State of Western Australia [2016] WASCA 46.
[44] Dos Santos v The State of Western Australia [2016] WASCA 46 [43].
Accordingly, I grant leave to appeal in respect of ground 2 and the ground is upheld. The fine of $500 imposed for the stealing charge must be set aside and in lieu thereof no penalty must be imposed pursuant to s 11 of the Sentencing Act.

Ground 3

By ground 3 Mr Walker contends that, as a result of additional evidence not available to the sentencing magistrate, Mr Walker suffered a miscarriage of justice. In LWD v The State of Western Australia,[45] Wellstead v The State of Western Australia,[46] and Vander Waide v The State of Western Australia,[47] the Court of Appeal outlined the principles applicable to the admission in an appeal against sentence of additional evidence not available to the primary judicial officer.
[45] LWD v The State of Western Australia [2017] WASCA 174 [81] ‑ [87].
[46] Wellstead v The State of Western Australia [2019] WASCA 130 [78] ‑ [79].
[47] Vander Waide v The State of Western Australia [2019] WASCA 148.
In the context of an appeal against sentence an appellant may persuade the court that there has been 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 alternatively, its nature and significance was not known until after sentencing.[48] In such circumstances, if evidence is adduced, the appeal against sentence will only be upheld if it is established that had the evidence been before the sentencing judge, a different sentence should have been imposed.
[48] Vander Waide v The State of Western Australia [2019] WASCA 148 [43].
The additional evidence in the present case comprises the medical reports of Dr Vidovich, Clinical Neuropsychologist, dated 18 March 2020, and Dr Bala, Consultant Psychiatrist, dated 25 May 2020. Mr Walker made application to adduce the report of Dr Vidovich pursuant to s 40(1)(e) of the Criminal Appeals Act. At the hearing on 27 May 2020 an order was made granting leave to Mr Walker to adduce the report of Dr Vidovich.
At the same hearing, I ordered a pre‑sentence report for the purposes of any resentencing. Subsequently, the court was informed that a psychiatric report had been obtained for the purpose of Magistrates Court proceedings (the report of Dr Bala). The court received both the pre‑sentence report and the report of Dr Bala dated 25 May 2020. In the circumstances, I received the report of Dr Bala also as additional evidence for the purpose of determining ground 3.
Dr Vidovich required Mr Walker to undertake a range of testing,[49] and determined his cognitive capacities as extremely impaired, consistent with an intellectual disability and a specific language disorder:[50]
Inspection of Mr Walker's neuropsychological profile revealed a diverse and variable pattern of abilities. Scores were consistent with an intellectual disability and a specific language disorder, with both expressive and receptive impairments evident. Auditory attentional processes were frankly impaired, with at least marginally slowed processing speed and highly varied memory performances. His inability to consistently allocate his attentional resources and utilise information in mind (i.e. working memory), contributed to his difficulty learning and spontaneously recalling novel information. Executive deficits were characterised by poor abstraction and reasoning, and difficulties with planning, problem solving and monitoring his output.
Collectively, he presents with a very low‑level of cognitive functioning, with mostly Extremely Low to Borderline abilities and particularly impaired speech and language functions. He could provide only very minimal information and showed poor insight. At a day‑to‑day level, he is requiring prompting for even the most routine of activities and such is likely to be associated with his executive deficits (cognitive and behavioural), and mental health status. The observed impairments in planning, organisation, problem solving, memory, language and social skills have significant implications with respect to his offending. There is a strong nexus between his offending, his cognitive impairment, mental health, and substance abuse.
[49] Report of Dr Vidovich, 4 ‑ 5, Appendix B.
[50] Report of Dr Vidovich, 7.
Dr Vidovich stated that Mr Walker has no capacity for employment in the open workforce and that the appointment of a guardian and administrator is required if informal support for decision making regarding financial support is not available.[51]
[51] Report of Dr Vidovich, 8.
Dr Bala stated that his primary diagnosis was mild intellectual disability which conforms to an IQ level between 55 and 70.[52] The secondary diagnoses were chronic solvent abuse and solvent induced psychosis.[53] Dr Bala stated that persons with mild intellectual disability achieve minimal social and education skills as adults and tend to need supervision, guidance and assistance, and are able to live in the community with support.[54] Dr Bala confirms that Mr Walker has a history of mild to moderate intellectual disability in the context of chronic solvent abuse. Dr Bala stated that Mr Walker is a grossly impaired person who is at moderate risk of reoffending.[55]
[52] Report of Dr Bala [20(d)].
[53] Report of Dr Bala [19].
[54] Report of Dr Bala [20(d)].
[55] Report of Dr Bala [6].
The relevance of mental impairment in the exercise of the sentencing discretion is established having been outlined in numerous cases before the Court of Appeal.[56] The authorities cite with approval the principles distilled in R v Tsiaris:[57]
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 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 pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[56] Thompson v The Queen [2005] WASCA 223; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] 2010 WASCA 105; Gok v The State of Western Australia [2010] WASCA 185.
[57] R v Tsiaras [1996] 1 VR 398, 400 (per Charles & Callaway JJA and Vincent AJA).
The mental impairment suffered by Mr Walker reduces his moral culpability for the offending. I find that Mr Walker has established on the balance of probabilities that the mental impairment would have limited Mr Walker's ability to exercise appropriate judgment or to appreciate the wrongfulness of his conduct. In this regard, Dr Vidovich determined:[58]
The observed impairments in planning, organisation, problem solving, memory, language and social skills have significant implications with respect to his offending. There is a strong nexus between his offending, his cognitive impairment, mental health, and substance abuse.
[58] Report of Dr Vidovich, 7.
Mr Walker's mental impairment reduces the weight to be given in sentencing to general deterrence for the reason that Mr Walker is an inappropriate medium for making an example to others. I accept also that personal deterrence must be moderated due to Mr Walker's mental impairment. The reports support a finding that the mental impairment does impact on Mr Walker's understanding of punishment that is imposed for the offending. Dr Vidovich stated that Mr Walker had found it 'difficult to elaborate on his legal matters' and 'had trouble discussing his charges, legal proceedings, and community based orders.'[59]
[59] Report of Dr Vidovich, 3.
A mental impairment may be mitigatory if the term of imprisonment will more heavily weigh on the offender as compared to an offender without a mental impairment. Dr Bala stated that a term of imprisonment may weigh more heavily on Mr Walker due to the intellectual disability for the reason that he is more likely to be exploited and have difficulty managing the rules of incarceration.[60]
[60] Report of Dr Bala [24(a)].
Accordingly, I am satisfied that Mr Walker was suffering from a mental impairment and that the mental impairment is materially mitigatory. The additional evidence, had it been before the sentencing magistrate, would have led to a different sentence. There has been a miscarriage of justice. Accordingly, I grant leave to appeal in respect of ground 3 and the ground is upheld.
Therefore, the appeal is allowed on grounds 2 and 3. Given that I have found that there has been a miscarriage of justice, it is not necessary to determine ground 1. Accordingly, I do not grant leave in respect of ground 1.
Therefore, I must now resentence Mr Walker.

Resentencing

Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. Pursuant to s 6(2) of the Sentencing Act, the seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of the offence including the vulnerability of any victim of the offence, and any aggravating or mitigating factors.
The maximum penalty for the offence of aggravated burglary and commit contrary to s 401(2)(ba) of the Criminal Code is 20 years' imprisonment. The jurisdictional limit where an offence of aggravated burglary and commit is dealt with summarily is 3 years' imprisonment and a fine of $36,000. The jurisdictional limit is not a relevant consideration to determining the appropriate sentence.[61]
[61] Wiltshire v Mafi [2010] WASCA 111.
Turning to Mr Walker's personal circumstances, he was 20 years of age at the time of the offending. Mr Walker's youth is a significant mitigating factor.[62] In sentencing, the magistrate referred to Mr Walker's youth and his limited criminal record as an adult.[63]
[62] Ugle v The State of Western Australia [2012] WASCA 104 [71] (Buss JA).
[63] ts 14 (15/02/2019).
I have outlined the mental impairment of Mr Walker and its significant mitigatory effect.
Mr Walker currently resides with his 30 year old brother in Wiluna and is financially dependent on him.[64] Mr Walker is not currently employed and does not receive Centrelink benefits.[65]
[64] ts 9 ‑ 10 (15/02/2019).
[65] ts 9 ‑ 10 (15/02/2019).
Mr Walker has a minimal criminal record as an adult that comprises two convictions for cannabis possession. Mr Walker's two convictions were dealt with in the Magistrates Court. Mr Walker does have a record as a juvenile, offending which has been dealt with by the Children's Court. The magistrate specifically stated that the juvenile record was disregarded at sentencing.[66]
[66] ts 13 (15/02/2019).
Mr Walker has reasonable prospects for rehabilitation. The magistrate appeared to accept that Mr Walker did have prospects of turning his life around, but noted that intervention was required to create stability in his life.[67]
[67] ts 14 (15/02/2019).
Mr Walker entered his plea of guilty at the first reasonable opportunity and was therefore afforded a 25% discount under s 9AA of the Sentencing Act.[68] This is a significant mitigating factor for Mr Walker. Mr Walker made full admissions to the police[69] and is remorseful.
[68] ts 13 (15/02/2019).
[69] ts 7 (15/02/2019).
There were aggravating features of Mr Walker's offending. The aggravated burglary was committed whilst on bail for other charges including the steal a motor vehicle charge to which Mr Walker pleaded guilty and the discontinued aggravated burglary charge. Mr Walker breached a curfew condition of his bail in order to commit the aggravated burglary offence. Further, Mr Walker committed the offence in company and used force to break into a secure area.
It is accepted that the property stolen, being a torch and spray paint, were valued at $20 and $30 respectively. The offending was opportunistic without any planning.
There is no tariff for the offence of aggravated burglary. Given that the circumstances in which offences occur and the personal circumstances of offenders vary widely, the offence attracts a wide range of sentences.[70] In Main v The State of Western Australia,[71] the Court of Appeal stated, after reviewing sentencing authorities referred to by the parties, that the offence of aggravated burglary may attract a range of sentences between 8 months and at least 4 years' imprisonment.[72]
[70] Humphreys v The State of Western Australia [2017] WASCA 208.
[71] Main v The State of Western Australia [2010] WASCA 28.
[72] Main v The State of Western Australia [2010] WASCA 28 [36].
The primary sentencing considerations with respect to burglary of commercial premises are general and personal deterrence. Ordinarily a substantial penalty is imposed for the offence.[73]
[73] Kolak v The State of Western Australia [2017] WASCA 180.
The guidance afforded by comparable cases is flexible rather than rigid. A sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. I have considered the sentencing authorities referred to by the appellant and the respondent: Caseley v Zampogna,[74] McKinley v Edmonds,[75] and Main v The State of Western Australia and the cases referred to therein.
[74] Caseley v Zampogna [2006] WASC 259.
[75] McKinley v Edmonds [2014] WASC 43.
After considering all relevant sentencing factors, I have determined that the imposition of a term of imprisonment for the aggravated burglary offence is not within the range of the sentencing discretion. The State submitted that a sentence other than imprisonment should be imposed. I now turn to whether a community based disposition is appropriate and available.
I ordered a pre‑sentence report for the purpose of resentencing. The author of the pre‑sentence report states that Mr Walker is considered unsuitable for a community based disposition given that, as a consequence of his intellectual disability, Mr Walker is unable to comply with directions. Further, Mr Walker has support of members in the community and therefore 'any benefit of his involvement with Adult Community Corrections is questionable, and ongoing non‑compliance with lawful directions will result in the Order being returned to Court.'[76]
[76] Pre‑sentence report undated, 2.
Mr Walker's counsel submitted that there are organisations in the community who are able to provide the necessary support to Mr Walker. Mr Walker's counsel outlined that Mr Walker is able to reside with two persons who are able to provide stable accommodation in the community and 'are in a position to take responsibility for the appellant.'[77]
[77] Appellant's Supplementary Written Outline of Submissions [28].
It is further proposed that the primary programmatic support will be provided by the Ngangganawili Aboriginal Health Service (NAHS) with the medical director managing Mr Walker's medical case.[78] The NAHS propose that Mr Walker be supported in the community by two psycho‑social support workers who will provide daily physical check‑ins, including assisting in the daily provision of medication and social support to Mr Walker's family. The NAHS intend to register Mr Walker with the National Disability Insurance Scheme (NDIS) which will permit him to attend community learning programs including obtaining the services of a '1 to 1 mentor' and group activities to assist in acquiring life skills.[79] The author of the pre‑sentence report confirmed that the NAHS are in the process of completing the registration to the NDIS on behalf of Mr Walker.[80]
[78] Letter from the Ngangganwili Aboriginal Medical Service dated 8 June 2020.
[79] Letter from the Ngangganwili Aboriginal Medical Service dated 8 June 2020.
[80] Pre‑sentence report undated, 3.

The Wiluna Home and Community Care Program (HACC) provides a care program and drop‑in centre. The HACC are familiar with Mr Walker and are able to assist with the provision of meals and personal care and hygiene.[81]
[81] Letter from the Ngangganwili Aboriginal Medical Service dated 8 June 2020; Appellant's Supplementary Written Outline of Submissions, [29(7)].
I am mindful of the observations of the Court of Appeal in Churnside v The State of Western Australia:[82]
[T]the courts of this State must make every possible effort and take every step consistent with the interests of justice to engage the services of governmental and non‑governmental agencies to assist offenders to change their living circumstances and behaviour in a way which will reduce the risk of reoffending, particularly in relation to offenders who suffer from cognitive deficits of the kind associated with foetal alcohol spectrum disorder.
[82] Churnside v The State of Western Australia [2016] WASCA 146.
The material placed before the court by Mr Walker's counsel support a finding that there are non‑governmental organisations and members of his community who are able to provide support to Mr Walker and give prospect that he will not continue offending. This case demonstrates the extent of the challenge to satisfactorily deal with Aboriginal offenders with cognitive defects and who reside in regional and remote parts of the State. Fortunately, the regional community of which Mr Walker is a part is able to provide the foundations for the necessary support.
I appreciate the challenges raised by the author of the pre‑sentence report in respect of managing Mr Walker in the community. The respondent produced correspondence from Adult Community Corrections that indicates support for a community based order with a program requirement only.[83] Given the extent of the support of the non‑governmental agency, the community based order may be limited to a program requirement under s 66 of the Sentencing Act. Accordingly, the officers of the NAHS may provide the primary support and services and further, assist along with family members in ensuring that Mr Walker engages with the community corrections officer when necessary. The role of the community corrections officer may be one that comprises a liaison role with Mr Walker's family to assist in the coordination of the agencies and delivery of the services, both government and non-government, to Mr Walker. The provision of the programs normally provided to offenders, such as counselling and Adult Community Corrections' programs, will not be suitable.
[83] Emails from Adult Community Corrections, Department of Justice dated 15 June 2020.

Conclusion

An extension of time in which to appeal is required. The test of the grant of an extension of time in which to appeal is whether it is in the interests of justice to grant an extension. I grant an extension of time in which to appeal. Leave to appeal is granted on grounds 2 and 3. The appeal is allowed on grounds 2 and 3.
Given that grounds 2 and 3 have been upheld and the appeal is thereby allowed, it is necessary to resentence Mr Walker on the stealing charge (CA 157/2019).[84] I set aside the fine of $500 imposed on the stealing charge and in lieu thereof, I impose no penalty pursuant to s 11 of the Sentencing Act.
[84] Criminal Appeals Act2004 (WA).
Given that ground 3 has been upheld I set aside the suspended term of imprisonment of 6 months 1 day imposed on the aggravated burglary charge (CA 156/2019) and in lieu thereof I impose a community based order for a period of 6 months. The setting aside of the suspended term of imprisonment will take effect from the date of sentencing being 15 February 2019.[85] I do not set aside the fines imposed on the steal a motor vehicle charge and the two bail charges.
[85] Dreja v The State of Western Australia [2012] WASCA 151 [13] ‑ [15].

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

GP
Research Orderly to the Honourable Justice McGrath

19 JUNE 2020