Wass v Director of Public Prosecutions for Western Australia
[2024] WASC 391
•23 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WASS -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 391
CORAM: MCGRATH J
HEARD: 9 OCTOBER 2024
DELIVERED : 23 OCTOBER 2024
FILE NO/S: SJA 1046 of 2024
BETWEEN: AIDAN BRIAN WASS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1046 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE COLEMAN
File Number : PE 15232/2024, PE 16843/2024, PE 16844/2024 and PE 16847/2024
Catchwords:
Criminal law - Appeal against sentence - Stealing - Criminal damage - Error of law as to maximum penalty - Fetal alcohol spectrum disorder - Relevance of FASD to sentencing - Whether new evidence of FASD suffered by offender meant a different sentence should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Criminal Code s 378, s 444(1)(b)
Result:
Extension of time in which to appeal granted
Application by the appellant to adduce further evidence granted
Application by the respondent to adduce further evidence granted
Leave to appeal granted on grounds 1, 2 and 5
Leave to appeal not granted on grounds 3 and 4
Appeal allowed
The total effective term of 18 months' immediate imprisonment imposed on charges PE 15232/2024, PE 16843/2024, PE 16844/2024 and PE 16847/2024 is set aside and in lieu thereof, a total effective term of 12 months' immediate imprisonment is imposed
Category: B
Representation:
Counsel:
| Appellant | : | Ms S King |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid Commission (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ARX v The State of Western Australia [2023] WASCA 169
Bogers v The State of Western Australia [2020] WASCA 174
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cooper v The State of Western Australia [2020] WASCA 199
Debono v The State of Western Australia [2019] WASCA 193
Harding v The State of Western Australia [2015] WASCA 27
Hiemstra v The State of Western Australia [2021] WASCA 96
Krijestorac v The State of Western Australia [2010] WASCA 35
LCM v The State of Western Australia [2016] WASCA 164
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
RXA v The State of Western Australia [2022] WASCA 116
Samardali v The Queen [2018] WASCA 220
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tait v Le Boydre [2018] WASC 231
Wellstead v The State of Western Australia [2019] WASCA 130
Wheeler v The Queen [No 2] [2010] WASCA 105
MCGRATH J:
On 6 June 2024, the appellant appeared in the Magistrates Court, represented by counsel, and pleaded guilty to 19 charges.[1] The learned Magistrate imposed a total effective term of 18 months' immediate imprisonment in respect to four offences, namely two charges of criminal damage and two charges of stealing, and imposed fines for the other charges. The appellant appeals against the sentence of immediate imprisonment imposed in respect to the four charges.
[1] ts 3 - 6 (6/6/2024).
The appellant appeals sentence on numerous bases, including that there was a miscarriage of justice in that the learned Magistrate was not informed that the appellant suffers from fetal alcohol spectrum disorder (FASD) and did not take into account the time spent in custody in respect to the offences prior to sentencing.
The appeal against sentence was filed out of time and, therefore, an extension of time is required. For the following reasons, I have determined that an extension of time should be granted and that the appeal should be allowed on the basis that there has been a miscarriage of justice.
Procedural history in the Magistrates Court
The 19 charges to which the appellant pleaded guilty are outlined in Annexure A to this judgment. In short, the appellant was convicted of 12 charges of stealing contrary to s 378 of the Criminal Code (WA), two charges of possessing a prohibited drug (traces of methylamphetamine) contrary to s 6 of the Misuse of Drugs Act1981 (WA), one charge of breaching a liquor barring notice contrary to s 115AA(6) of the Liquor Control Act 1988 (WA), one charge of breaching a protective bail condition contrary to s 51(2a) of the Bail Act 1982 (WA), one charge of giving false details contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA), and two charges of criminal damage contrary to s 444(1)(b) of the Criminal Code.
The appeal concerns the terms of imprisonment imposed on four charges, namely the two charges of criminal damage and two charges of stealing. I have provided a particularisation of the underlying facts in respect to all 19 charges in Annexure A. Given the appeal concerns only four charges, it is only necessary to outline the relevant facts in detail in respect to the four charges.
The first charge of criminal damage (PE 16843/2024) involved the appellant who, whilst attempting to pay for a can of soft drink, had the transaction cancelled, resulting in him swinging his arm and causing a display of confectionary items to fall from the counter. The display was damaged and the confectionary was consequently unsuitable for sale. The appellant left the shop with the can of soft drink without making payment.
The second criminal damage charge involved the appellant stealing an item from a shop (PE 15232/2024). Whilst the appellant was attempting to steal the item, he was prevented from doing so by the staff remotely locking the exit to the shop. The appellant refused to hand the item back and after throwing it back on the counter, smashed the bottom glass panel of the front door by kicking it with his leg.
The first stealing charge involved the appellant, whilst in company of another, stealing two chainsaws from a shop to the value of $1,200 (PE 16847/2024). The second stealing charge involved the appellant stealing a bicycle from a bike storage unit at Auburn Grove train station in Atwell, which was valued at $2,000 (PE 16844/2024).
On 6 June 2020, the learned Magistrate delivered her sentencing remarks and imposed sentence. The learned Magistrate imposed a term of immediate imprisonment of 12 months for charge PE 16844/2024 (head sentence), 6 months' immediate imprisonment for charge PE 15232/2024 (cumulative), 6 months' immediate imprisonment for charge PE 6843/2024 (concurrent) and 6 months' immediate imprisonment for charge PE 16847 (concurrent). The total effective sentence in respect to the four charges was 18 months' immediate imprisonment. The appellant was made eligible for parole. In respect to the other offences, the learned Magistrate imposed fines.
Appeal
On 31 July 2024, the appellant filed his appeal against sentence which was imposed on 6 June 2024. Therefore, the appellant must be granted an extension of time in which to appeal. In support of the application for an extension of time in which to appeal, the appellant relies upon the affidavit of Ms Sinton, legal practitioner, affirmed 30 July 2024. Ms Sinton outlined the diligent steps taken upon receiving the instructions from the appellant. The respondent does not oppose the extension of time in which to appeal. I grant the extension of time.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[2] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[3]
[2] Criminal Appeals Act2004 (WA), s 8(1).
[3] Criminal Appeals Act2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[4]
[4] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
By s 14(2) of the Criminal Appeals Act, 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.
The appellant's grounds of appeal, as particularised in the Notice of Appeal (as amended), are in the following terms:[5]
1.The learned sentencing magistrate erred in law in sentencing the appellant on the basis that the maximum penalty for an offence of criminal damage is 14 years' imprisonment.
2.There was a miscarriage of justice in that the court was not advised, or not properly advised, of the appellant's mental impairment.
3.The learned sentencing magistrate erred in imposing a total sentence that infringed the first limb of the totality principle.
4.The sentence of 12 months' imprisonment for stealing charge number PE 16844, is manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender.
[5] Notice of Appeal dated 30 July 2024 and application to rely on further ground of appeal dated 6 September 2024.
Subsequently, at the hearing of the appeal the appellant raised the contention that the appellant was not given credit for 21 days that he had spent in custody prior to sentencing. I granted the appellant leave at the appeal hearing to rely upon a further ground of appeal, contending that:
There was a miscarriage of justice in that the appellant was not given credit for time spent in custody in respect to the charges prior to sentencing.
That ground becomes ground 5 in the appellant's appeal.
Applications to adduce evidence
The appellant seeks to rely upon his affidavit affirmed 4 September 2024 in support of the appeal. The appellant deposes that that he suffers from FASD.
Further, the appellant's counsel, Ms King, has affirmed an affidavit producing a PATCHES multidisciplinary FASD medical assessment report dated 19 December 2018, authored by Dr Fitzpatrick, paediatrician, Dr Cribb, registered psychologist, and Dr Pestell, clinical psychologist and neuropsychologist (PATCHES Report). The affidavit of Ms King also produces a NDIS assessment plan regarding the appellant dated 27 November 2023.
The appellant seeks to rely upon the further evidence for the purpose of determining the appeal, and also for resentencing the appellant should the appeal be allowed and the sentence set aside. The respondent conceded the further evidence should be received by the Court given its relevance to ground 2.
The respondent seeks to rely upon further evidence in response to the grounds of appeal, and also for the purpose of resentencing should that arise. The respondent relies upon an affidavit of counsel for the appellant at the sentencing hearing on 6 June 2024, sworn 19 September 2024, and an affidavit of Mr Scutt, legal practitioner, affirmed 24 September 2024, producing a range of material. In responding to the appeal, the respondent seeks to rely upon a report of Dr Vidovich, neuropsychologist, dated 7 May 2019, transcript of a sentencing hearing before Egan DCJ on 9 December 2022, the recording and transcript of an interview between police officers and the appellant conducted on 23 June 2023, and email exchanges between Mr Scutt and the Fines Enforcement Registry concerning the non‑payment of fines by the appellant.
In respect to any resentencing of the appellant, the respondent seeks to rely upon the appellant's Victorian criminal record, sentencing remarks of Judge Patrick of the Victorian County Court on 24 September 2014 in respect to the appellant's conviction for one count of armed robbery, and a transcript of a sentencing hearing regarding unrelated offending before Magistrate Walton on 6 February 2020.
The relevant principles relating to the admission of additional evidence in sentencing appeals were explained by Owen JA in Wheeler v The Queen [No 2] in these terms:[6]
Generally an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) Criminal Appeals Act 2004 (WA). However, an appellate court has a broad power to 'admit any other evidence' under s 40(1)(e) of the Act.
The well-known distinction between 'fresh' and 'new' evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it [52] ‑ [53].
[6] Wheeler v The Queen[No 2] [2010] WASCA 105.
The respondent accepts that the affidavit of the appellant and the affidavit of Ms King producing the PATCHES Report and the NDIS plan should be received. The material directly addresses the nature and extent of the appellant's FASD. Similarly, the material sought to be relied upon by the respondent on the appeal is directly relevant to the issue of the appellant's FASD. Accordingly, the appellant's application to adduce additional evidence in respect to determining the appeal and the respondent's application to adduce additional evidence in determining the appeal is granted.
Consideration of merits of appeal
Ground 1 - maximum penalty
By ground 1 the appellant asserts that the learned Magistrate stated the incorrect maximum penalty for the offences of criminal damage (charges PE 15232/2024 and PE 16843/2024). The learned Magistrate in her reasons for decision stated as follows:[7]
The maximum penalty for a criminal damage charge is 14 years, on indictment. In this jurisdiction, it is three years and up to $36,000 in fines or both.
[7] ts 14 (6/6/2024).
The maximum penalty for an offence of criminal damage, absent circumstances of aggravation, is 10 years' imprisonment. The failure to take into account the correct maximum penalty for an offence constitutes an error of law.[8]
[8]ARX v The State of Western Australia [2023] WASCA 169; Cooper v The State of Western Australia [2020] WASCA 199 [151]; Rodi v The State of Western Australia [No 2] [2014] WASCA 233; Tait v Le Boydre [2018] WASC 231 [19].
Given the significance of the statutory penalty in the exercise of the sentencing discretion, a significant error in relation to the maximum penalty will ordinarily be material to the exercise of the sentencing discretion and will have the consequence of vitiating the exercise of that discretion. There are cases where an error as to the maximum penalty was held not to be material.[9]
[9] Harding v The State of Western Australia [2015] WASCA 27 [43] (Martin CJ), [76] (Mazza JA); Samardali v The Queen [2018] WASCA 220.
The appellant submits that a sentence imposed on an offender must be commensurate with the seriousness of the offence and, in determining the appropriate disposition, the learned Magistrate was required to consider the statutory penalty for the offence.[10] The appellant contends that the learned Magistrate sentenced on the basis of a 40% discrepancy as to the statutory maximum penalty, which necessarily results in a misconception as to the seriousness of the offence and therefore, the appropriate sentencing disposition. In addition, for one of the offences of criminal damage the term of imprisonment imposed comprised 33% of the total effective sentence.
[10] Sentencing Act 1995 (WA), s 6(2).
The respondent concedes that the learned Magistrate made an error of law but submits that the error is not material and, therefore, the ground of appeal is not made out. The respondent submits that the learned Magistrate was not misinformed as to, or misapprehended, the circumstances of the offending. Further, the term of imprisonment of 6 months that was imposed on each of the two charges respectively represented 5% of the correct maximum penalty. The respondent submitted that the range of sentences that was reasonably open to the learned Magistrate was 'far removed' from the statutory maximum.
I am satisfied that the error was material for the reason that the learned Magistrate imposed sentence on the erroneous belief of a 40% discrepancy as to the maximum penalty. Accordingly, leave to appeal on ground 1 is granted, the ground has been made out and, therefore, the Court's discretion to resentence the appellant has been enlivened.
Ground 5 - backdating
By ground 5 the appellant contends that the learned Magistrate failed to give credit to the appellant for time spent in custody prior to sentencing. At the sentencing hearing, counsel for the appellant stated during the plea in mitigation that the 'main submission' was that the appellant had spent time in custody, but that the exact period was not known to counsel.[11]
[11] ts 12 (6/6/2024).
The respondent accepts that the appellant had spent 21 days in custody in respect to the charges but the learned Magistrate was not informed of that period.
Section 87 of the Sentencing Act1995 (WA) relevantly provides:
87. Time on remand may be taken into account
(1)If when an offender is being sentenced to imprisonment for an offence -
(a)the offender has previously spent time -
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
In Debono v The State of Western Australia,[12] the learned sentencing Magistrate did not take into account the entirety of the period available for backdating for the reason that erroneous submissions were made. In those circumstances, it was held that the learned Magistrate did not err in law or fact but that there was a miscarriage of justice. In this case, the learned Magistrate was informed that there was a period the appellant had spent in custody but no particularisation was given.
[12] Debono v The State of Western Australia [2019] WASCA 193 [38] - [39], [62] - [64].
Accordingly, ground 5 has been made out and, therefore, the Court's discretion to resentence the appellant has been enlivened. The respondent's submission is that whilst another sentence must now be imposed, the terms of imprisonment imposed by the learned Magistrate are otherwise an appropriate disposition and that the total effective term should be backdated to take into account time spent in custody prior to sentencing.
Ground 2 - mental impairment
By ground 2 the appellant contends that there was a miscarriage of justice in that the court was not advised, or not properly advised, of the appellant's mental impairment.
The relevant principles applicable to circumstances where material was not before the sentencing judge were outlined in Wellstead v The State of Western Australia.[13] The court's power to intervene is not ordinarily enlivened in the absence of material error of fact or law which can be detected in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or unjust. A sentencing judge cannot be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence or material which was not before the sentencing court.
[13] Wellstead v The State of Western Australia [2019] WASCA 130 [89] - [99].
However, the appellate court may intervene to avoid a miscarriage of justice from arising. A miscarriage of justice may arise from the absence of material before the primary court. The identification of any miscarriage must be undertaken consistently with the nature of an appeal.[14]
[14] RXA v The State of Western Australia [2022] WASCA 116.
Counsel for the appellant, during his plea in mitigation, did not refer to the mental health or any mental impairment suffered by the appellant. However, during discourse between the appellant's counsel and the learned Magistrate, the appellant interjected and stated, 'I have got FASD'.[15] There was no further discourse during the sentencing hearing in respect to whether the appellant did suffer from FASD.
[15] ts 13 (6/6/2024).
The appellant in his affidavit deposes that he informed his counsel of the fact that he suffers from FASD prior to the sentencing hearing and that the matter was subject to discussion. Counsel for the appellant at the sentencing hearing deposes in his affidavit that it was very difficult to follow the multiple instructions being given over numerous telephone calls prior to the hearing. Counsel deposes that he has a file note that on one occasion, during the multiple instructions, the appellant did mention FASD and NDIS funding. However, counsel was not given any report or any particularisation regarding the possibility that the appellant suffered from FASD.
At the hearing of the appeal the respondent's counsel submitted that the discrepancies between the recollections of the appellant and his counsel need not be reconciled. The respondent accepts the fact that the appellant's diagnosis with FASD was not before, or not properly before, the learned sentencing Magistrate and was not due to the appellant's failure to inform his counsel, nor was it not advanced for tactical reasons.
Further, the respondent accepts that the appellant's FASD was relevant and was at least capable of affecting the determination of sentence. Accordingly, there has been a miscarriage of justice. However, the respondent submits that upon resentencing, it is open to the Court to consider that no different sentence should have been imposed having regard to the offending as a whole.
The respondent submits that on a proper assessment of the totality of the evidence, a finding should be made that the effect of the appellant's FASD is moderate. The respondent contends that the appellant does not suffer from an intellectual disability and that he has a higher level of functioning for a person of borderline intelligence. The respondent submits that the Court should find that the appellant is capable of being personally deterred.
The appellant's position is that he suffers from FASD and that it is a highly relevant factor in mitigation that was not before the learned Magistrate and, therefore, the appeal should be allowed and a different sentence ought to be imposed.
It is necessary that I assess the respondent's contention that whilst the ground has been made out, no different sentence ought to be imposed.
Principles relating to mental impairments in sentencing
Whilst an offender's mental illness or mental impairment may be a mitigating factor, it is not the case that the existence of that fact will always result in a lower sentence. The existence of a mental disorder is one of the factors which must be balanced with other factors to produce a just sentence.[16] Relevantly, in this case the existence of a causal connection between the FASD and the offences might reduce the importance of general deterrence and increase the importance of personal deterrence or the need to protect the public.
[16] Bogers v The State of Western Australia [2020] WASCA 174 [82].
FASD is a mental impairment. The relevant legal principles with respect to mental impairment in sentencing are well settled and uncontroversial, and were explained by Wheeler JA in Krijestorac v The State of Western Australia as follows:[17]
[17] Krijestorac v The State of Western Australia [2010] WASCA 35.
So far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. Counsel for the appellant also drew the court's attention to the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269. That case contains a useful survey of decisions from a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] 1 VR 398 and applied in a number of Australian jurisdictions since that date continue to apply. They are that a mental or psychological condition falling short of insanity may be relevant to sentencing in a number of ways:
'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. [Verdins at [1], quoting Tsiaras)'
Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to "serious psychiatric illness", but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):
(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.
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 [17] ‑ [19].
In respect to FASD, the respondent relied upon the following paragraph from the Court of Appeal in LCM v The State of Western Australia:[18]
By its nature, and as its name indicates, FASD involves a spectrum of disorders. The particular disorder of an individual with FASD may be severe, it may be minor. FASD may lead to a varying number of deficits of varying intensity. Thus blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence [123].
[18] LCM v The State of Western Australia [2016] WASCA 164.
The diagnosis of FASD in any particular case will turn critically upon the precise diagnosis made, the extent of the disabilities occasioned by the condition and the impact of those disabilities upon relevant sentencing conditions.
PATCHES Report
As observed, the appellant's counsel has affirmed an affidavit producing the multi-disciplinary PATCHES Report dated 19 December 2018.
The PATCHES Report stated that the appellant has a complex background, including possible head injuries, past trauma, periods of homelessness, and alcohol and substance misuse. The PATCHES Report stated that the appellant reported he had pre-existing diagnoses of FASD, ADHD and PTSD. In respect to the diagnosis of FASD, the PATCHES Report stated that the appellant met the criteria for FASD with three of three sentinel facial features. The PATCHES Report stated that the appellant has significant impairments in the domains of brain structure, neurology, memory, executive functioning and cognition.
The authors of the PATCHES Report undertook a neuropsychological assessment and made the following findings:
4.2.2.Summary of neuropsychology profile:
·Mr Wass completed the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) to assess overall cognition). Results need to be interpreted with caution due to Mr Wass' cultural background. There was significant scatter between subscales, hence the full-scale Intelligence Quotient needs to be interpreted with caution, however Aldan scored within the very low range overall (range: 70 -79). This was comprised of the following:
§Verbal comprehension abilities in the very low range.
§Nonverbal reasoning and visuoconstructional skills in the low average range.
§Immediate attention and working memory (ability to hold and manipulate information in short term memory) in the low average range,
§Speed of information processing (the speed at which a person can take in and process information) in the very low range.
·Mr Wass's executive functioning abilities were variable. He demonstrated intact category (verbal) fluency, however his nonverbal fluency was very low, and his ability to inhibit automatic responses was extremely low.
·Mr Wass struggled on both verbal and nonverbal memory tests. Overall, his memory fell within the extremely low range. He was however able to learn and remember new Information (a word list) with repetition. He did not tend to benefit from provision of a recognition format, suggesting deficits with encoding information into memory.
·Mr Wass was able to read single words at a 15-year old level. He did not complete a test of basic numerical operations due to time constraints.
·Unfortunately, no appropriate informant was available to complete questionnaires with regards to Mr Wass, therefore there is no detailed adaptive functioning information available.
The PATCHES Report concluded that the appellant will require support due to his difficulties with cognition, memory and executive functioning. The PATCHES Report observed that the appellant's single word definition ability is in the very low range, and that he may need support at times to understand what is being said to him, especially in settings where more complex language is being used.
The PATCHES Report made the following assessment in respect of the diagnostic implications for offending behaviour:
·Mr Wass has difficulties with executive functioning, particularly inhibition of automatic responses. He is therefore more likely to act on impulse, and may be at higher risk of committing opportunistic crimes such as stealing.
·Executive functioning deficits also impact on abilities to plan and organise, which increases the risk that Mr Wass will breach his bail and/or fail to attend court dates due to inability to properly plan. He may require support in attending court dates on time if he is released into the community.
·Mr Wass has difficulties with memory for both verbal and nonverbal information. He may therefore have difficulty learning from his mistakes and remembering rules and regulations. He is able to learn information with repetition. Important information should therefore be repeated to Mr Wass regularly, and/or written down for him so he can refer back to it.
In respect to the appellant's antecedents, the PATCHES Report observed that the appellant suffered from childhood trauma, including exposure to domestic violence, being the victim of sexual assault at 13 years of age, self-harm ideation as a child, a transient lifestyle in early teenage years, and, consequently, the appellant exhibits symptoms of complex trauma.
Dr Vidovich's report dated 7 May 2019
Dr Vidovich, clinical neuropsychologist, prepared a report dated 7 May 2019. Dr Vidovich undertook relevant tests and made the following conclusions in respect to the testing outcomes:[19]
a.Mr Wass was oriented and proficient in his performance of routine, overlearned mental processes (e.g. reciting the alphabet; days of the week). As indicated, variability was evident in his capacity to consistently direct his attentional resources to the task at hand and to utilise information in mind. Additionally, he tended to engage in conversation during task completion, needing prompting to focus on the test requirements. Inconsistency in visual search strategies and slowed visuo-motor output was evident, with the quality of his fine motor skills also considered below expectation.
b.Despite the negative impact of attentional and executive deficits upon his learning and recall of novel information, it was evident that he was capable of encoding new material and retaining these details (verbal and visual) across various delay intervals, and in some instances, at levels consistent with his peers. These findings were somewhat contrary to comments made at the time of his previous testing.
c.Whilst he produced intact performances for basic planning and problem solving of tangible concepts, he experienced difficulty integrating complex visual material, altering his response to feedback, and inhibiting overlearned responses.
d.Despite the social immaturity noted in aspects of his conversation and interaction, he was able to appropriately recognise non-verbal cues and facial expressions during the time spent in his company. There did not appear to be any mood issues or significant signs of anxiety, however hyperkinesia was readily evident (e.g. picking, fidgeting, leg bouncing, teeth grinding).
[19] Report of Dr Vidovich dated 7 May 2019, p 12.
Dr Vidovich observed that the appellant had problematic behavioural issues from very early on in his development due to impulsivity, rule breaking and disruptive behaviours. Dr Vidovich stated that it was reported that the appellant was frequently absconding from the household as a child. At 13 years of age, the appellant was sexually assaulted by an adult male and thereafter, his mother placed him in the care of a Government Department. The appellant lived an itinerant lifestyle, spending extensive periods of time living on the streets and, therefore, did not consistently engage in educational programmes beyond a primary school level and has never held formal employment.
Dr Vidovich made the following conclusions:[20]
Mr Wass has received formal diagnoses of ADHD, FASD, PTSD, anxiety and depression. Whilst there does not appear to be any significant medical background, he has a longstanding history of substance abuse (marijuana and methamphetamine), with indications of psychotic features associated with chronic drug use. The latter (according to his self-report) appears to have resolved in the context of abstinence from illicit substances. He is currently prescribed Endep (tricyclic antidepressant).
At the time of his interview, Mr Wass confirmed historical details previously documented and was oriented to recent circumstances and his Court issues. A very pleasant and friendly man, his interaction and behaviour was noted to reflect significant social immaturity relative to his age. Restless, impulsive and distractible, he impressed as trying to engage with the interview and testing to the best of his ability. His discussion regarding his behaviour and level of functioning reflected limitations in his reasoning, judgement and problem solving. This was clearly evidenced in his decision to terminate his Centrelink payments to demonstrate his capacity to 'survive' without the need for assistance (which he believed to be a very positive achievement), despite such being associated with an increase in his offending behaviours to sustain himself.
Collectively, his observed cognitive deficits (across all testing that has been completed) reflects significant intrusions from attentional and executive dysfunction. Notwithstanding the likely impact from his very limited education, particularly with regard to his expressive language skills, he demonstrates trouble consistently sustaining attention, integrating and processing (complex/abstract) information, planning and organising, inhibiting automatic responses and utilising feedback to alter his behaviour. This observations across his interaction and test performances are highly consistent with his known history. Additionally, his difficulties with impulse control, forethought and consequential thinking, and planning and organisation, are likely to be further compromised with his illicit substance use and exacerbations in his mental health issues. His insight into his level of functioning is somewhat shallow and his impaired capacity for managing, monitoring and regulating his behaviour results in an inability to independently function at a level consistent with his peer group.
Assessment
[20] Report of Dr Vidovich dated 7 May 2019, p 13 - 14.
The respondent submits that in considering whether, and if so to what extent, an offender's mental impairment (including FASD) affects the offender's capacity to appreciate the wrongfulness of their actions, to restrain themselves from offending, or to be deterred from offending, a sentencing court is entitled to have regard to other evidence beyond expert material, including matters such as the nature of the offending, police interviews and previous participation in programmes.[21]
[21] Hiemstra v The State of Western Australia [2021] WASCA 96 [87] - [90].
Accordingly, the respondent invites the Court to assess the police record of interview conducted with the appellant on 23 June 2021 regarding other offending. The respondent contends that the interview demonstrates that the appellant has a higher level of functioning than may be suggested by the PATCHES Report. Further, the respondent relies upon the sentencing of the appellant in the District Court on 9 December 2022, at which the appellant appreciated the Clerk of Arraigns' error regarding whether the offending was committed in circumstances of aggravation. The respondent also relies upon the information received from the Fines Enforcement Registry that the appellant has not paid his fines since 2014. The respondent contends that the failure to pay fines is relevant to an assessment of whether the failure to pay the fines demonstrates the appellant's inability to understand his legal obligations or whether it is a calculated decision. Therefore, this assessment is relevant to the assessment of whether the appellant's FASD is moderate.
The respondent submits that the evidence in this case supports a finding that the appellant's FASD is moderate. The respondent submits that the appellant does not suffer from an intellectual disability and that the evidence suggests a high level of functioning for a person of borderline intelligence.
I have assessed the further evidence relied upon by the respondent. I do not consider that the further evidence is of assistance in assessing the degree to which the appellant suffers from FASD. I have received two reports from experts who have undertaken tests and assessed the appellant and expressed findings. I accept the expert opinions. I do not find that the opinions have irreconcilable differences. I have summarised the respective opinions of the experts. It is clear that the appellant has an intelligence within the very low range, reduced cognitive ability and reduced brain growth. The appellant's full scale Intelligence Quotient is within the very low range of 70 - 79.
Dr Vidovich expressed the opinion that whilst the appellant does not have an intellectual disability, he has borderline to low average intellectual abilities and that his combined neurodevelopment and psychiatric diagnoses, together with his illicit substance misuse, present as a complex combination of co-morbidities.[22] Dr Vidovich expressed the opinion that despite the negative impact of attentional and executive deficits upon his learning and recall of novel information, it was evident that he was capable of encoding new material and retaining details across various delay intervals and in some instances, at levels consistent with his peers. As I have outlined, Dr Vidovich stated that the appellant's impaired capacity for managing, monitoring and regulating his behaviour results in an ability to independently function at a level consistent with his peer group.
[22] Report of Dr Vidovich dated 7 May 2019, p 3, 8.
The respondent accepts that the appellant has FASD and that at the time of being sentenced, this fact was not properly before the learned sentencing Magistrate. The issue to be determined is whether had the additional evidence been before the learned sentencing Magistrate, a different sentence should have been imposed. I am satisfied that a different sentence should be imposed.
I am satisfied that the appellant's FASD was causally related to the offending behaviour. The expert opinions support a finding that the appellant has an impaired capacity for managing, monitoring and regulating his behaviour.
The appellant's FASD is relevant as a sentencing factor, in that it diminishes his moral culpability for the offending and moderates the weight to be given to general deterrence. In respect to personal deterrence, that factor remains highly relevant given the appellant's significant history of offending.
Resentencing
I must resentence the appellant for the four offences. I will receive the additional evidence sought to be relied upon by the appellant and respondent for the purpose of resentencing and have regard to that material.
The offending is reasonably serious. The stealing of the bicycle valued at $2,000 involved a planned, premeditated act (PE 16844/2024), and charge PE 16847/2024 similarly involved an act of premeditation in stealing property valued at $1,200. The criminal damage offences involved spontaneous acts of criminal damage in the presence of shop assistants. Charge PE 15232/2024 involved the appellant responding to resistance by the shop assistant when the appellant was committing an offence of stealing.
In resentencing, I am mindful of the maximum penalty for the offences.
I am also mindful that the appellant pleaded guilty at the first reasonable opportunity and, therefore, is afforded a 25% discount pursuant to s 9AA of the Sentencing Act.
As observed, the appellant's FASD is a relevant sentencing factor that has the consequence of diminishing his moral culpability for the offending. Further, the FASD moderates the weight to be given to general deterrence.
In respect to personal deterrence, weight must be given to the appellant's FASD. However, the appellant has a significant criminal record in Western Australia. Further, the appellant has a criminal record in Victoria. In Western Australia, the appellant has 123 convictions for stealing and 15 convictions for fraud, all of which have been dealt with by the imposition of non-custodial orders. Further, the appellant has two convictions for assaulting public officers, numerous convictions for criminal damage and convictions for robbery. The appellant has previously been imprisoned. I am satisfied that personal deterrence remains a significantly relevant sentencing consideration despite the appellant's FASD.
I am also satisfied that the appellant has a history of deprivation and childhood trauma, including being exposed to domestic violence, being the victim of sexual assault at 13 years of age, self-harm ideation as a child, a transient lifestyle and homelessness in his teenage years, and exhibits symptoms of complex trauma. In Bugmy v The Queen,[23] the High Court held that the effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending. Whilst giving full weight to this factor, I do not assess the impact of this factor on sentencing in isolation. As I have observed, there is a need in this case for personal deterrence even after giving full weight to the appellant's history of deprivation and his FASD.
[23] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [42] - [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
After considering all relevant sentencing factors, I set aside the terms of imprisonment imposed on the four charges. I have considered alternative sentencing dispositions other than a term of immediate imprisonment. I am satisfied that a term of imprisonment must be imposed given the nature of the offending and the personal circumstances of the appellant. Personal deterrence remains a significant sentencing factor in this case. Accordingly, I set aside the terms of immediate imprisonment imposed on the respective charges and I impose the following terms of imprisonment:
Charge PE 15232/2024 (criminal damage): 5 months' imprisonment
Charge PE16843/2024 (criminal damage): 4 months' imprisonment
Charge PE 16844/2024 (stealing): 7 months' imprisonment
Charge PE 16847/2024 (stealing): 4 months' imprisonment
I order that the term of imprisonment of 7 months imposed on charge PE 16844/2024 (stealing) be the head sentence and that the term of imprisonment of 5 months imposed on charge PE 15232/2024 (criminal damage) be served cumulatively on that head sentence. The terms of imprisonment of 4 months imposed on charge PE 16843/2024 (criminal damage) and 4 months on charge PE 16847/2024 (stealing) will be served concurrently with the head sentence. Therefore, the total effective term of imprisonment is 12 months' imprisonment. The term of imprisonment is backdated to take into account the time that the appellant spent in custody prior to sentencing.
Conclusion
Accordingly, I have determined that leave to appeal is granted on grounds 1, 2 and 5 and the appeal is allowed. Given that the appeal is allowed on grounds 1, 2 and 5, it is not necessary to consider grounds 3 and 4. The terms of imprisonment imposed on the appellant are set aside and in lieu thereof, the appellant is resentenced. The total effective term of 18 months' immediate imprisonment imposed by the learned Magistrate is reduced to a total effective term of 12 months' immediate imprisonment.
ANNEXURE A
| Charge No. | Date of offence | Offence | Facts | Penalty |
| FR 1043 | 13.12.23 | Stealing | $143 alcohol BWS | $200 fine |
| FR 1044 | 16.12.23 | Stealing | $143 alcohol Dan Murphy Bull Creek | $200 fine |
| FR 1045 | 17.12.23 | Stealing | Mobile phone and confectionary value of $104.50, Caltex, Hamilton Hill | $200 fine |
| FR 1046 | 23.12.23 | Stealing | $49 alcohol, BWS Bull Creek | $200 fine |
| FR 2306 | 28.12.23 | Stealing | $116 Jack Daniels BWS Coolbellup | $200 fine |
| FR 2388 | 12.02.24 | Stealing | $129 mobile phone, Ampol O'Connor | $200 fine |
| RO 2966 | 15.04.24 | Breach liquor barring notice | Breach banning notice licenced premises | $100 fine |
| RO 2967 | 15.04.24 | Stealing | $64 alcohol BWS Waikiki | $200 fine |
| RO 2968 | 15.04.24 | Breach protective bail conditions | Protective bail not to go to BWS liquor store, and breached by entering BWS Waikiki | $200 fine |
| PE 11856 | 05.02.24 | Possession of methyl- amphetamine | In Beaconsfield, possessed small white clip-seal bags containing traces of powder. | $400 fine |
| PE 15231 | 11.03.24 | Stealing | $184.90 vibrator from Sinderellas Adult Store, Mandurah | $200 fine |
| PE 15232 | 11.03.24 | Criminal damage | Pane of glass at Sinderellas Adult Store, Mandurah | 6 mths cumulative |
| PE 15233 | 14.03.24 | Possession of methyl- amphetamine | In Scarborough, possessed two small clip-seal bags containing white crystal substance, no weight. | $400 fine |
| PE 16843 | 29.02.24 | Criminal damage | Shelf and contents Coles Express, West Perth | 6mth concurrent |
| PE 16844 | 01.03.24 | Stealing | Electric bicycle value $2,000 property of Aiden Grant | 12 mths head sentence |
| PE 16845 | 09.03.24 | Stealing | Chainsaw value $600 Bunnings Subiaco | $200 fine |
| PE 16846 | 11.03.24 | Stealing | Chainsaw value $600 Bunnings Cockburn Central | $200 fine |
| PE 16847 | 21.03.24 | Stealing | Chainsaws value $1,200 Bunnings Innaloo | 6 mths concurrent |
| PE 24149 | 28.04.24 | False details | Fremantle, gave police false details when stopped for riding a bicycle with no helmet | $300 fine |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
23 OCTOBER 2024
2
22
2