Yagan v Director of Public Prosecutions for Western Australia - [2024] WASC 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   YAGAN -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 12
CORAM:   FORRESTER J
HEARD:   11 JANUARY 2024
DELIVERED          :   11 JANUARY 2024
PUBLISHED           :   19 JANUARY 2024
FILE NO/S:   SJA 1077 of 2023
BETWEEN:   FRANCIS JOHN YAGAN
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE RIDLEY
File Number            :   PE 37972/2023; HC 198/2023; PE 21068/2023

Catchwords:

Criminal law - Appeal against sentence - Sentence of a term of 17 months' imprisonment for one offence of aggravated burglary and two offences of attempted burglary - Whether miscarriage of justice arose from absence of evidence at sentencing - Application to admit additional evidence in an appeal against sentence

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time granted
Leave to appeal granted and appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S Oliver & W Yoo
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

House v R [1936] HCA 40; (1936) 55 CLR 499
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

(This judgment was delivered extemporaneously on 11 January 2024 and has been edited from the transcript.)

Introduction

On 4 August 2023, the appellant was sentenced in the Magistrates Court at Kununurra to a term of 17 months' imprisonment for one offence of aggravated burglary and two offences of attempted burglary.
The appellant appeals against the sentence imposed on the ground that there was a miscarriage of justice, on the basis that, since he was sentenced, new evidence has become available which establishes that that the appellant ought to have received a lesser sentence.
An extension of time is required.
The respondent concedes that the extension of time should be granted, the appeal should be allowed and the appellant resentenced. For the reasons which follow, that concession should be accepted.

Prosecutions

Charges HC 198 of 2023 and PE 21068 of 2023

The appellant pleaded guilty to the offences the subject of charges HC 198 of 2023 and PE 1068 of 2023 (among other offences) on 15 May 2023. He had been in custody since 24 April 2023. The facts of the two attempted burglaries were recited by the prosecutor as follows:
At about 10.57 pm on Tuesday, 11 April 2023 the accused was located by police attempting to break into a locked building of the Kimberley Hotel located at 2 Roberta Avenue, Halls Creek. The accused was located using a metal bar in an attempt to open the locked door. The metal bar the accused was using was jammed in between the two doors, with the incident being captured on CCTV.
Police arrested the accused and it was ascertained he had no lawful excuse for being present at the location. Under caution the accused stated that he was trying to get inside to get cigarettes. The accused was conveyed to the Halls Creek Police Station where he was released on bail with the present charge proffered. The accused’s explanation, 'I was trying to get cigarettes. I didn’t think you would find me'.
…
And further, between 5 and 8 am on Monday, 24 April the accused was at Balgo Community. The accused approached the Wirrimanu Community Store in possession of an angle grinder and two extension cords, which he plugged into a nearby power outlet. At the time the premises were closed to the public and outside business hours. The accused used the angle grinder to attempt to cut off the padlocks securing the front security screens. The accused was disturbed by night patrol and fled from the scene. The accused did not have permission or consent to enter or damage the premises at that time. The accused was subsequently identified by night patrol who reported the matter to police. The accused was arrested in Bottom Camp on Monday, 24 April and conveyed to the police station and charged.[1]
[1] Ts 15 May 2023, 2 - 3.
The learned magistrate noted the appellant's youth was a significant mitigating factor in sentencing and queried whether:
… simply the fact you were smoking too much cannabis really is a significant answer as to why, after a gap in your offending, there's very significant offending in a very short period of time.[2]
[2] Ts 15 May 2023, 6.
On charge HC 198 of 2023, the appellant was sentenced to a term of 3 months' imprisonment. On charge PE 21068 of 2023, he was sentenced to a term of 4 months' imprisonment, to be served cumulatively.
The learned magistrate conditionally suspended the term of imprisonment for 7 months, noting that the offending had come on suddenly, suggesting 'underlying issues'.[3]

Charge PE 37972 of 2023

[3] Ts 15 May 2023, 7.

The facts of the offence the subject of charge PE 37972 of 2023 (aggravated burglary) were recited by the prosecutor on 4 August 2023 as follows:
Between 11.20 pm and 12.01 am on Monday, 29 July and Sunday, 30 July 2023, the accused and co-offenders attended the Kununurra Country Club. This was outside of business trading hours. The accused and co-offenders utilised a crowbar to pry open a metal security door, allowing entry to the main bar area of the restaurant. Once inside the bar area, the accused and co-offenders pried open a security screen behind the bar to gain access to bottles of alcohol, namely a one litre bottle of Jack Daniel's, one litre bottle of Jim Beam, and a one litre bottle of vodka to the value of $240. Shortly after, the accused and co‑offenders fled the address on foot prior to the manager entering the premises. The accused was captured on CCTV footage.
At about 2.43 am on Sunday, 30 July, the accused [was] arrested outside the Kununurra courthouse while in company with the co‑accused and was in possession of the stolen items from the country club. The accused was wearing the same clothing as captured on the CCTV. He was conveyed to the Kununurra Police Station where he declined to participate in the interview.[4]
[4] Ts 4 August 2023, 2 - 3.
The appellant was also charged with the offence of stealing, for which no punishment was imposed, pursuant to s 11 of the Sentencing Act 1995 (WA).
The offences were committed during the term of the conditionally suspended term of imprisonment imposed on the appellant on 15 May 2023. On the appellant's behalf, it was conceded that it would not be unjust to order that the appellant serve that term of 7 months' imprisonment.[5]
[5] Ts 4 August 2023, 3.
The learned magistrate noted that the appellant had failed to engage with the conditions of his suspended imprisonment order and ordered that the appellant serve the term of 7 months' imprisonment imposed but conditionally suspended on 15 May 2023.[6]
[6] Ts 4 August 2023, 5.
In relation to the aggravated burglary, her Honour observed that there was 'no excuse for the behaviour' and said:
… other than your plea of guilty and perhaps youth in the sense that you're still developing and not making good judgments, there's otherwise no mitigation in the offending.[7]
[7] Ts 4 August 2023, 5.
The learned magistrate imposed a term of 10 months' imprisonment on the charge of aggravated burglary and ordered that that term be served cumulatively on the term of 7 months' imprisonment, making a total effective sentence of 17 months' imprisonment, backdated to 30 July 2023.[8]
[8] Ts 4 August 2023, 5.

Ground of appeal

The sole ground of appeal is:
There was a miscarriage of justice that affected the
(a) Total sentence and/or
(b) The proper application of s 84F of the Sentencing Act 1995 (WA)
because it has become known since the date of sentence on 4 August 2023 that the appellant had a mental illness that would have moderated the sentence.

Application to adduce additional evidence on appeal

The appellant seeks to adduce additional evidence on the appeal, pursuant to s 14(5) and s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CA Act). The additional evidence is deposed to in affidavits filed on behalf of the appellant.
The effect of the additional evidence is that the appellant had, prior to the offending, previously been treated for mental health issues, and had been diagnosed as having schizophrenia, complicated by substance use.
The medical records suggest that the appellant's mental health issues emerged in around August 2020, with an episode of psychosis in the context of cannabis use and a recent head injury. Further episodes were observed in 2021 and 2022, and the appellant was administered medication to manage his symptoms.[9]
[9] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 26 - 52.
As at March 2023, he had been non-compliant with his depot medication for 'many months'[10] and had had a relapse of his symptoms, namely chronic command auditory hallucinations which were exacerbated by cannabis use.[11] At times the auditory hallucinations told him to harm himself.[12]
[10] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 10.
[11] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 17.
[12] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 18.
Medical notes from June 2023 indicate that the appellant was restarted on depot medication in March 2023 but returned to Balgo and was 'lost to follow up'.[13] He was then remanded in custody and, during his time in custody was treated for his mental illness. On his release on 15 May 2023 he was referred for treatment, but the referral was not actioned.[14] In July 2023 he was observed to be displaying 'pressured, incoherent speech' and acknowledged his depot was overdue.[15]
[13] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 24.
[14] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 13.
[15] Affidavit of Sally Nicole Oliver sworn 20 September 2023, Annexure SNO-02, 16.
The additional evidence primarily includes a psychiatric report dated 11 December 2023, authored by Dr Donal Hanratty. Dr Hanratty interviewed the appellant for 90 minutes by video link, and had access to medical records from WA Country Service, West Kimberley Regional Prison and Broome Regional Prison.
Dr Hanratty considered that the appellant has a possible diagnosis of treatment-resistant schizophrenia, and diagnoses of alcohol use disorder and cannabis use disorder. The latter two disorders appeared to be in remission in the controlled environment of the prison.
In Dr Hanratty's opinion, at the time of the attempted burglary of the Kimberley Hotel:
Mr Yagan was experiencing an acute relapse of schizophrenia. He was having a worsening of his auditory hallucinations, in the context of substance use and non-compliance with his antipsychotic medication. It is likely he was more disinhibited, impulsive, and disorganised and this contributed to his offending behaviour.
His intoxication with alcohol at the time of the index offences, likely contributed to the worsening of his auditory hallucinations, and contributed to worsened disinhibition, impulsivity and disorganisation.
Mr Yagan's account of the index offence (that he wanted cigarettes having not had them in days) also indicates symptoms of tobacco withdrawal such as irritability, frustration, anger, and restlessness may have contributed to his offending behaviour.
Although the temporal relationship between cannabis and this offence was less clear than with the other substances, it is possible the disinhibitory effect of cannabis also contributed to his offending behaviour.[16]
[16] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 79(a) - (d).
In Dr Hanratty's opinion, at the time of the attempted burglary of the Wirrimanu Community Store:
Mr Yagan was continuing to have symptoms of schizophrenia. His aripiprazole long-acting injection medication had only recently been recommenced after not having it for many months, and its' [sic] full effect was yet to occur. He was continuing to experience auditory hallucinations, and there is evidence he was deliberately self-harming by cutting in response to those hallucinations in the fortnight prior to the offence. It is likely he was more disinhibited, impulsive, and disorganised because of his schizophrenia, and this contributed to his behaviour on the day.
Mr Yagan’s cannabis use disorder likely also contributed to this offence. He said he wanted money to buy cannabis, and that was why he committed the offence. His cannabis intoxication would have further impaired his judgement at the time he committed this offence.
In my opinion it is possible Mr Yagan’s inhalant use around the time of this offence may have contributed to his impaired judgement at the time of the index offences.[17]
[17] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 80(a) - (c).
In Dr Hanratty's opinion, at the time of the aggravated burglary of the Kununurra Country Club Resort:
Mr Yagan was continuing to have symptoms of schizophrenia. His aripiprazole long-acting injection medication had only recently been recommenced after he did not have it for almost two months, and its' [sic] full effect was likely yet to occur. He was continuing to experience auditory hallucinations, and there is evidence he was injured in a physical altercation in the days prior to the offence. It is likely he was more disinhibited, impulsive, and disorganised because of his schizophrenia, and this contributed to his offending behaviour.
Mr Yagan also described being intoxicated with alcohol at the time of the offence, and he said he had smoked cannabis approximately five hours before the offence. Intoxication with these substances would have worsened his symptoms of schizophrenia and further impaired his judgement, contributing to his offending behaviour.
In my opinion, although he described auditory hallucinations at the time of the offending, telling him to 'do it quickly', his primary motivation for this offence was to get access to alcohol and money to buy cannabis, and assuage his compatriots. In my opinion his psychotic symptoms did not impel him to do this offence, and passivity phenomena did not contribute to this offending.[18]
[18] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 81(a) - (c). Passivity phenomena refers to experiences where individuals’ actions, thoughts or feelings are controlled by external forces. They are commonly associated with psychotic disorders such as schizophrenia.
Dr Hanratty expressed the view that the areas most relevant to the appellant's risk of recidivism include his substance use, his lack of prosocial leisure activities and his employment/educational problems.[19] He observed that, if the appellant does have treatment-resistant schizophrenia, the most effective treatment can only be commenced on an inpatient unit, but the appellant was unlikely to be able to access the appropriate support for such a regime in remote communities. He recommended consideration be given to seeking NDIS support.[20]
[19] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 82.
[20] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 90.
It is Dr Hanratty's opinion that the appellant's schizophrenia makes imprisonment more onerous for him.[21]
[21] Affidavit of Sally Nicole Oliver sworn 14 December 2023, Annexure SNO-1, 91.
The affidavits filed on behalf of the appellant indicate that the appellant's mental illness was not known to his lawyers prior to his sentencing on 4 August 2023.

Statutory framework and legal principles

Appeal from a court of summary jurisdiction

The application for leave to appeal is made under div 2 of pt 2 of the CA Act.
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[22] meaning that the ground is required to have a rational and logical prospect of succeeding.[23] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[24]
[22] CA Act s 9(2).
[23] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[24] CA Act s 9(3).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[25]
[25] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
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.[26]

Application to adduce additional evidence

[26] CA Act s 14(2).

An appeal court must decide an appeal on the evidence and material that were before the lower court.[27] However, the court does have a broad power to admit any other evidence, pursuant to s 40(1)(e) of the CA Act.
[27] CA Act s 39(1).
The principles to be applied in determining an application to admit additional evidence in an appeal against a sentence where the ground of appeal alleges a miscarriage of justice occurred because the additional evidence was not before the primary court were summarised by Derrick J in Jetta v Director of Public Prosecutions for Western Australia[28] and need not be repeated here.

Extension of time

[28] Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [80].

The appeal notice was filed on 18 September 2023, 24 days out of time. The appellant has filed affidavits which explain the delay. The prosecution does not oppose the extension of time. The delay is short and adequately explained. Accordingly, the extension of time is granted.

Disposition

The appellant submitted that his mental illness was affecting him at the time of the offences for which he was sentenced on 4 August 2023, and in particular his ability to exercise appropriate judgment was impaired and disinhibited. Accordingly, his culpability was reduced and his sentence should be moderated. The appellant accepted that his conduct was also likely affected by his substance misuse at the time.
The respondent conceded that a miscarriage of justice has been demonstrated, on the basis that a material procedural error has occurred. Accordingly, the appellant must be resentenced. The respondent conceded that the appellant's mental illness causally contributed to his offending behaviour and will make his time in custody more onerous. However, while the weight to be given to general deterrence should be reduced, it remains an important sentencing consideration, as does personal deterrence and community protection.
In my view, there is no doubt that if the additional evidence had been before the learned magistrate, her Honour would have imposed a lesser sentence, having regard to the comments that her Honour made on each occasion about the causal nature of the offending and her difficulty in understanding the appellant’s conduct. Further, and in any event, the fact that the evidence as to the appellant's mental health was not before the learned magistrate was such a material omission as to give rise to a miscarriage of justice. Accordingly, it is necessary to resentence the appellant and I have available to me the necessary materials to do so.

Resentencing

The appellant is now 22 years of age, although at the time of the offending he was 21 years old. He is entitled to the benefit of youth, and I mitigate his sentence accordingly. He has a reasonably extensive record of dishonest offending committed as a child, but some time has expired since his last offence and his last appearance in that court, so it is of little, if any, moment in this sentencing process except by way of background.

As an adult, his criminal conduct prior to his offending in April 2023 commenced in December 2022, and involved stealing offences, burglaries, possessing cannabis and a breach of bail. His first period in custody in an adult prison was when he was on remand after his arrest on 24 April 2023.
The appellant's offending in each case was committed upon a commercial business. In the case of the two attempted burglaries for which he was sentenced on 15 May 2023, his motive was to obtain cigarettes. He was under the influence of cannabis on the second occasion. In the case of the aggravated burglary for which he was sentenced on 4 August 2023, it was submitted that he made a 'dumb decision' because he was drunk and succumbed to the pressure of others.[29]
[29] Ts 4 August 2023, 3.
All of the offences are serious, having been committed on vulnerable targets in regional communities. It is essential that small businesses, which are a lifeline for communities in remote and regional Western Australia, be protected by punishing offenders with sentences which deter those who would commit offences against them. However, it must also be taken into account that the offences in this case were towards the lower end of the scale for that sort of offending.
The appellant was, as a young person, exposed to adults consuming a lot of alcohol in his presence. His teens were punctuated by disruption in his care and a great deal of loss and trauma during the developmental stages of his life. His mother raised him until she was murdered when he was 13 years of age. His grandmother took over his care, but she passed away when he was 15 years old. An aunt then stepped in, but she died when he was 16 years old. After that, he was effectively left to look after himself. It was then that he started smoking cannabis and found himself unable to stop. He then started drinking alcohol at 18 years old, which also became very problematic. It is unsurprising that his schooling and attainment of educational milestones also suffered. I take all of those factors into account in mitigating his sentence.
The psychiatric history reveals that, from March 2023, the appellant had been non‑compliant with his depot medication, and his offending in April 2023 was committed in the context of him being psychiatrically unwell and likely disinhibited as a result of this and his substance misuse. On his release from custody in May 2023 on the conditional suspended sentence, the appellant had been on depot medication and was stable psychiatrically. However, his referral for further treatment was not actioned, and his condition deteriorated. In those circumstances, his failure to engage with the conditions of his suspended imprisonment order is more readily understandable. Further, his reoffending in July 2023, while not excused, is explained by the fact that his medication had lapsed and he was again experiencing acute symptoms of his schizophrenia, which likely disinhibited him, in combination with excessive cannabis and alcohol misuse.
While his substance misuse in no way excuses his conduct, it does provide an explanation and it is well known that mental illness can create difficulties with people who have a tendency to abuse substances. In combination, I am satisfied that those explain his conduct to a significant extent.
The appellant appears to have limited insight into his psychiatric illness, which is unsurprising given his age, the extent of treatment that has previously been offered to him, and the lack of available supports to him in the community.
I am satisfied that the offending in each case is causally related to the appellant's mental illness, albeit exacerbated by his substance misuse, and that his culpability is therefore somewhat reduced. That also means that his case is a less appropriate vehicle for the application of the principle of general deterrence, and as such I propose to moderate its impact on his sentence, as I do with the principle of personal deterrence.
However, I am also satisfied that, particularly until the appellant addresses his substance abuse issues, but also until he complies with his medication regime, he is highly likely to reoffend, and there is a need to ensure that the community is protected from his offending behaviour.
While the appellant appeared on three occasions prior to his guilty pleas on the two attempted burglaries, I am satisfied that the reason for any delay in entering his pleas of guilty were as the result of difficulties in obtaining legal advice. I am satisfied that the pleas were entered at the earliest reasonable opportunity and that his plea of guilty to the aggravated burglary was also entered at the earliest reasonable opportunity. Accordingly, I apply a reduction of 25% in respect of each offence.
In my view, the appropriate sentence for the aggravated burglary the subject of PE 37972 of 2023 is one of 8 months' imprisonment.
While the new information which has come to light warrants moderation of the sentence imposed upon the appellant from that which was imposed by the learned magistrate, it does not in my view make it unjust to order that the appellant serve the terms of imprisonment which were conditionally suspended. However, the appropriate step to take in relation to those sentences is to order that the appellant serve the terms of imprisonment imposed but to make orders that they be served concurrently with each other, but cumulatively on the head sentence.
Accordingly, the sentence of 4 months' imprisonment on PE 21068 of 2023 will be served cumulatively on the head sentence of 8 months. The sentence of 3 months' imprisonment on HC 198 of 2023 is to be served concurrently with the other sentences. The total effective sentence is therefore one of 12 months' imprisonment, backdated to 30 July 2023, and the appellant will be made eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
19 JANUARY 2024