Criminal Law - Sentencing - Consideration of fresh psychiatric report when determining new sentence to be imposed - Turns on own facts

Bushell (1988) 9 Cr App R (S) 537

Cabassi v The Queen [2000] WASCA 305

Colbung v The Queen [1999] WASCA 138

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662, 2 December 1997

Howard v The Queen, unreported; CCA SCt of WA; Library No 960638, 7 November 1996

Hume v The Queen [2000] WASCA 306

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035, 6 February 1997

Mill v The Queen (1988) 166 CLR 59

Murphy v The Queen, unreported; CCA SCt of WA; Library No 990126, 9 February 1999

R v Blurton, unreported; CCA SCt of WA; Library No 960425; 7 August 1996

R v Peterson [1984] WAR 329

R v Shaharuddin [1999] WASCA 229

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 STEYTLER J: The applicant has applied for leave to appeal against two sentences of imprisonment imposed upon him. The first was one of 4 years' imprisonment in respect of his conviction on a charge of stealing a motor vehicle and driving it recklessly. The second was one of 5 years' imprisonment in respect of his conviction on a charge of armed robbery in company. The two sentences were ordered to be served cumulatively.

2 The applicant had pleaded guilty to both offences. He also pleaded guilty to a charge of driving whilst his licence was suspended and to one of failing to stop. He was sentenced to a period of 3 months' imprisonment on the first of those charges (to be served concurrently with the other sentences) and to a fine of $300 on the second. There is no application for leave to appeal against those sentences.

3 The offences were committed on 6 February 2001. On that day the applicant and a co-offender went to a carpark near the Burswood Casino. There they found a locked Holden Commodore sedan. They used a screwdriver to gain entry to it, manipulated the ignition and then drove off.

4 At about 5.55 pm that day they parked the stolen car near the Ocean View Tavern at Nowergup. The applicant was armed with a 30-centimetre kitchen knife and his co-offender with a cricket bat. These had earlier been obtained from the applicant's parents' home. They disguised their faces with cloths from a ripped T-shirt before entering the tavern. The applicant grabbed the tavern attendant by the shirt and dragged him towards the till, threatening him with the knife. He then pushed him away and his co-offender removed $1,569 in cash. The applicant took four bottles of alcohol. The two then left in the stolen car.

5 Later that evening, at about 11.30 pm, police saw the applicant driving in a westerly direction along Guildford Road in Bassendean. They put on their emergency lights in an attempt to stop the applicant. Instead he accelerated heavily. He drove the vehicle through an amber traffic light and then through a red traffic light, at a speed in excess of 90 kilometres per hour. He then made a sharp turn into Newton Street, narrowly missing another vehicle. His co-offender was in fear for his safety and asked him to stop the car. At the time, there was light traffic travelling in both directions along Guildford Road.

6 The applicant was subsequently arrested. He was interviewed by the police but made no admissions in that interview. As I have said, he later pleaded guilty to the two offences. He agreed to be dealt with on the fast-track system.

7 The applicant was 20 years old at the time the offences were committed, having turned 21 on 20 April 2001. He had, as the sentencing Judge mentioned, a long history of drug abuse. He had also twice been admitted to Graylands Hospital and once to the Palmerston Farm rehabilitation program. The first visit to Graylands Hospital was for a period of six months during 1998 and the second was for a period of four months from July to October 2000. He attended the Palmerston program thereafter, but did not complete it because he established a relationship with another resident contrary to the rules of the program. He had also a relatively long criminal record for one so young. However, most of his offending took place prior to his 18th birthday. Thereafter he was convicted of a number of offences, the two most pertinent being, for present purposes, one of car theft and one of dangerous driving causing bodily harm.

8 The applicant had not, at the time of his sentencing, previously been sentenced to a period of imprisonment. Moreover he had not, since 23 December 1998, been convicted of any offence.

9 A psychiatric report commissioned in respect of the applicant recorded that there were no psychiatric symptoms of note around the time of these offences which resulted in their commission.

10 The sentencing Judge, after referring to these (and other) matters, imposed the sentences to which I have referred. He said, so far as the charge of motor vehicle theft and reckless driving was concerned, that:

"The objective facts of this offence ... put it close to the top of the range. I consider it would mark an appropriate starting point for this of 7 years' imprisonment. In respect of this offence I do not propose to make any allowance for your youth because you are right in the age bracket of those who most tend to commit such offences and who constitute the greatest danger to the community by reason of them. I will, however, reduce your sentence by 3 years for your early plea of guilty, leaving a term of 4 years' imprisonment on that count."

11 While his Honour had earlier said that he would make allowance for the applicant's age in respect of this offence, it is apparent, from this extract, that he did not ultimately do so.

12 Counsel for the applicant pursued only three of the applicant's grounds of appeal with any vigour. The first was to the effect that the sentencing Judge erred by considering that the offence of stealing a motor vehicle and driving it recklessly was "close to the top of the range". The second was that the period of imprisonment imposed upon the applicant in respect of that offence was manifestly excessive, having regard for such circumstances as the applicant's history and his youth. The third was that the overall sentence of 9 years' imprisonment paid insufficient regard to the totality principle.

13 In my respectful opinion, the sentencing Judge did fall into error in sentencing the applicant to a term of 4 years' imprisonment on the first of the offences to which I have referred.

14 While all offences of this kind are serious, it often being a matter of luck whether or not anyone is killed as a consequence of them, I respectfully disagree that this particular offence was close to the worst of its kind. The offence took place reasonably late at night when, as the sentencing Judge found, traffic was "light". Moreover, while the applicant undoubtedly drove at a speed which was dangerous, the evidence suggests that it peaked at somewhere slightly in excess of 90 kilometres per hour. The offending was also of very short duration.

15 I am also in respectful disagreement with the sentencing Judge as regards his conclusion that no allowance should be made for the youth of the applicant. It is true that offences of this kind are primarily committed by young people, but that does not, in my opinion, mean that youth should not be taken into account at all. The reason why such offences are ordinarily committed by young people is because they lack the judgment which comes with age. In my opinion that is a matter which should properly be taken into account in sentencing them.

16 Counsel for the respondent referred, in this respect, to the case of Bird (1993) 14 Cr App R (S) 343. There the Court of Appeal considered an offence under the Aggravated Vehicle Taking Act 1992. That Act created a new offence of taking a vehicle in specified circumstances. The offence was committed if the vehicle was driven dangerously, or an accident involving injury was caused, or an accident involving damage to property was caused. The Court said (at 346) that:

"The youth of the defendant ... will be less significant in this type of case than in others, by way of mitigation, because the Act is primarily aimed at young offenders amongst whom this type of activity has become so prevalent."

17 While it may be so that, where offences of a particular kind are typically committed by young people, tougher sentences may be required in order to deter them from that activity, that is not to say that no attention, at all, is paid to the fact of youth. An offence of that kind will still be regarded more seriously if it is committed by an older person who might be expected to have better judgment.

18 It consequently seems to me that his Honour was in error in the way in which he approached the sentencing of the applicant in respect of this offence and that the sentence of 4 years' imprisonment imposed by him should be quashed.

19 For reasons which were not fully explained during the hearing, a fresh psychiatric report had been commissioned in respect to the applicant prior to the hearing of the appeal. It was common cause between the parties that this Court might have regard to it if, at least, we reached the conclusion that either or both of the sentences imposed upon the applicant should be quashed. Having reached that conclusion in respect of the first offence, it is consequently appropriate, in considering what should now be done with the applicant, for me to have regard to that report.

20 The report was prepared by the psychiatrist who had prepared the earlier psychiatric report. In the later report the psychiatrist has expressed the opinion that the last five months in prison have clarified the presence, in the applicant, of an underlying personality disorder which predisposed him to poly-substance abuse and probably also to the development of mood disorder. He said, in this respect, that frequent suicide attempts, identity disturbance, impulsivity, marked mood instability, transient stress-related paranoid ideation and chronic feelings of emptiness, all of which are experienced by the applicant, are cardinal symptoms of the borderline personality structure. The report also records that the applicant's personality problems have been compounded by his substance abuse and also by trauma in relation to sexual abuse as an adolescent.

21 Taking the contents of this report into account, as well as the other matters to which I have referred, it seems to me that a more appropriate sentence for this offence would be one of 2 years' imprisonment. That would, in my opinion, take account of the circumstances of the offence, the personality disorder which has contributed to the applicant's offending, the applicant's youth, his troubled background, the fact that he has, in the past, made some attempts, at least, to address the problems which have led to his offending and the fact of his early plea of guilty on the fast-track system.

22 I am not inclined to interfere with the sentence of 5 years' imprisonment imposed by the sentencing Judge on the second of the offences to which I have referred, even taking into account the various matters which were raised before the sentencing Judge and before us. While that sentence was reasonably severe, the circumstances of the offence, as outlined above, were serious and I am not persuaded that his Honour made any error in the exercise of his discretion.

23 That leaves the question whether a total period of 7 years' imprisonment is too severe in all of the circumstances to which I have referred. I do not think that it is. While it is hard for a young man to have to serve so long a sentence, especially when he has not previously been imprisoned, these offences were very serious, as I have said, and I do not consider that any lesser sentence would be appropriate.

24 I would consequently grant leave to appeal and allow the appeal, but only to the extent of setting aside the sentence of 4 years' imprisonment imposed by the sentencing Judge in respect of count 1 on the indictment. I would substitute for that sentence a sentence of 2 years' imprisonment. The applicant will consequently be required to serve a total of 7 years' imprisonment with eligibility for parole.

25 PARKER J: I agree with the conclusions reached by Steytler J and the orders he proposes. I do not desire to add anything to the reasons he has now published with which I agree.

26 OLSSON AUJ: I have had the opportunity of reading the reasons for judgment published by Steytler J in draft. I agree with the conclusions to which he has come and the orders which he proposes.