Criminal law - State appeal against sentence - Doing an act with intent to harm as a result of which the life, health or safety of another was or was likely to be endangered - Early plea of guilty - Mental health issues - Whether term of 5 years' imprisonment manifestly inadequate

Director of Public Prosecutions for Western Australia

Chikonga v The State of Western Australia [2017] WASCA 34

Delavale v The State of Western Australia [2009] WASCA 111

Dimitrovska v The State of Western Australia [2015] WASCA 162

Kaokula v The State of Western Australia [2016] WASCA 198

Lawrence v The State of Western Australia [2015] WASCA 187

Penny v The State of Western Australia [2016] WASCA 52

Sophiadakis v The State of Western Australia [2016] WASCA 203

The State of Western Australia v Mackey [2017] WASCA 204

The State of Western Australia v Naumovski [2013] WASCA 215

Vucemillo v The State of Western Australia [2017] WASCA 37

1. This is a State appeal against sentence.
2. The respondent was charged on indictment in the District Court with two offences. Count 1 alleged that on 7 September 2016 at Meekatharra, the respondent, with intent to harm, did an act as a result of which the life, health or safety of Ross William Tapper was, or was likely to be, endangered, contrary to s 304(2) of the Criminal Code (WA) (the Code). Count 2 alleged that on the same date at Mount Magnet, the respondent assaulted Matthew James Fogarty, a public officer who was then performing a function of his office or employment and that Mr Fogarty was a police officer and that he suffered bodily harm, contrary to s 318(1)(d) of the Code.
3. On 20 July 2017, the respondent pleaded guilty to these charges at the first reasonable opportunity. On the same day, he was sentenced by Stone DCJ to 5 years' imprisonment on count 1 and 12 months' imprisonment on count 2. His Honour ordered that the terms be served cumulatively. Thus, the total effective sentence that was imposed upon the respondent was 6 years' imprisonment. The respondent was made eligible for parole and his Honour ordered that the sentence commence from 7 September 2016.[1]
4. The appellant relies on one ground of appeal which contends that the sentence imposed on count 1 was manifestly inadequate.[2] The appellant does not challenge the sentence imposed on count 2.[3]
5. We would uphold the ground of appeal and re-sentence the respondent on count 1. Our reasons for these conclusions are as follows.

1. The respondent did not, either before the sentencing judge or this court, challenge the facts of the offending.[4]
2. The respondent was, at the time of the offence, 44 years of age.[5] He has, for many years, suffered from schizoaffective disorder. Although his symptoms are capable of being relatively well-managed through the use of antipsychotic medication, the respondent has a long history of not complying with his medication, coupled with entrenched illicit drug abuse.[6]
3. On 5 September 2016, two days prior to the offending, the respondent received a depot injection of antipsychotic medication. However, that dose was two weeks overdue and was unlikely to have had any 'beneficial effect'[7] on 7 September 2016. Further, on the days prior to the alleged offending, he had been abusing methylamphetamine and alcohol.[8]
4. At about 6.30 am on 7 September 2016, the respondent parked his station wagon at a fuel pump in front of the Coles Express store in Meekatharra. The respondent repeatedly entered the store and walked towards the toilets at the rear. At the time, the toilets were locked. The respondent did not ask the shop attendant for the key. The respondent then left the store and waited outside by his vehicle.[9]
5. Meanwhile, the victim, who was a long-haul truck driver, entered the store and asked for the key to the toilet. He was given the key and went to use the facilities.[10]
6. By this time, the respondent had refuelled his car. The respondent took some time to enter the store and pay for the fuel. As a result, the store attendant went onto the forecourt of the store and challenged the respondent whether he was going to pay for the fuel. The respondent got into his vehicle and began to drive off. About 20 m down the forecourt of the store, the respondent stopped his car and challenged the store attendant, who had chased the vehicle, to a fight. The respondent then returned to his vehicle and drove out of the forecourt of the store.[11]
7. A few minutes later, the respondent returned to the service station. He entered the store, armed with a hammer, and walked straight into the toilets, where the victim was occupied in one of the toilet cubicles. The respondent proceeded to strike the victim to the head with the hammer, inflicting serious life-threatening injuries. The respondent then walked out of the toilet and the store, without attending to the victim who was bleeding heavily from his injuries. The respondent then drove off towards Mount Magnet.[12] These facts constitute count 1 in the indictment.
8. About 70 km south of Meekatharra, police officers arrested the respondent and conveyed him to the Mount Magnet police station. The respondent was not interviewed because of his mental state and aggressive behaviour. While in the police lockup, the respondent asked for a telephone call to speak to his lawyer. He was then conveyed to an interview room for this purpose. As Sergeant Fogarty started to plug a telephone into a wall socket, the respondent punched him with a clenched fist to the right side of his face, close to his right eye, knocking his glasses off his face and inflicting a cut to his right eyebrow which bled slightly. The blow also caused bruising, swelling and discomfort.[13] These facts constitute count 2 in the indictment.

1. The respondent struck the victim a number of times with the hammer to the left side of the victim's head, as a result of which the victim suffered injuries to his skull and brain. He was taken from Meekatharra to the Royal Perth Hospital where he underwent emergency lifesaving surgery to reduce high pressure within the intracranial cavity. This involved removing the left portion of his skull.[14]
2. The victim remained in hospital for a long and protracted period. It is unlikely that he will recover from the brain injuries that he suffered, and, in all likelihood, he will require around the clock medical care and assistance. The victim has suffered severe cognitive and speech difficulties. His Honour described the injuries as being 'in the upper range of seriousness for this type of offence'.[15] There is no challenge to this description and nor could there be.[16]

1. The sentencing judge was provided with a number of victim impact statements. The victim himself was and continues to be unable to provide a statement because of his injuries. His Honour received statements from the victim's parents and from his partner. It is enough to say that the victim's life has been totally ruined.[17] The respondent's actions have had a devastating impact upon the victim's family.[18]

The respondent's antecedents and mental health history

1. The respondent was 45 years of age at the time of sentencing. His Honour noted that there was 'nothing unusual'[19] about the respondent's childhood. The respondent left school in year 10, and completed an apprenticeship as a fitter and turner. He became seriously unwell as a result of heavy drug abuse. Consequently, he was placed on a disability support pension. More recently, he was employed as a motor vehicle hoist inspector for a few months,[20] but could not cope with full-time work.[21]
2. The respondent has a history of physical and mental health issues. Of particular significance in the present case are his mental health issues. His mental health issues have been exacerbated by his illicit drug use.[22]
3. The information before his Honour as to the respondent's mental health included:[23]

(a) a report dated 15 February 2015 from Dr Adam Brett a consultant psychiatrist, which was prepared in relation to the offending which occurred in 2014, to which we will refer;[24]

(b) a report dated 5 December 2016 from Dr Steve Patchett, a consultant psychiatrist;[25]

(c) a report dated 14 July 2017 from Dr Mark Hall, a consultant forensic psychiatrist;[26] and

(d) a report dated 13 November 2016 from Ms Tanina Oliveri, a clinical and forensic psychologist.[27]

1. The respondent suffers from schizoaffective disorder, which Dr Patchett described as being 'brittle and difficult to stabilise through the years'.[28] The respondent has had nine admissions to the Bentley Hospital Adult Inpatient Unit between April 2002 and March 2011, and admissions to the Frankland Centre at Graylands Hospital in June 2014 and November 2016.[29] According to Dr Patchett, the respondent's mental illness is complicated by the respondent's ongoing illicit drug use, his very poor engagement with mental health services, and spasmodic compliance with his treatment. Consequently, he has experienced 'many exacerbations of psychosis that have required a number of admissions to hospital and referral to a Community Treatment Team for close assertive follow-up in the community'.[30]
2. Prior to the commission of the offence, the respondent was receiving depot antipsychotic medication. However, he was not compliant with his treatment regime. He missed previous injections, and received his last injection shortly before the commission of the offence, at a time where, as we have already noted, it was unlikely to have any beneficial effect in the days that followed.[31]
3. With respect to the respondent's risk of reoffending, Ms Oliveri assessed him as posing 'a high risk of future violence, if he does not consistently comply with prescribed medication and abstain from substance misuse'.[32]
4. The respondent has a prior history of violent offending after failing to comply with his medication requirements and by continuing to abuse prohibited drugs. On 27 May 2015, Fenbury DCJ imposed a total effective sentence of 2 years' immediate imprisonment with eligibility for parole for two offences of assaulting a public officer and causing bodily harm while armed with a tomahawk, committed in 2014.[33] In short, that offending related to the respondent, after refusing to get out of his motor vehicle at the request of police, threatening the police officers with a tomahawk. The police attempted to remove the respondent from the vehicle and handcuff him. He broke free, got the tomahawk and swung it violently at the police officers who retreated onto the road. The respondent refused to drop the tomahawk. The respondent continued to resist the attempts of the police officers to apprehend him, even after being tasered. In the course of the struggle with the police officers, he got hold of a police baton and struck both officers, inflicting various injuries.[34]
5. As Stone DCJ noted, many of the mitigating submissions put to him had been put to Fenbury DCJ in the earlier proceedings.[35] In the pre-sentence report prepared for the proceedings before Fenbury DCJ, the respondent reportedly said, 'I have really learnt my lesson and I am a reformed person'.[36] Unfortunately, the respondent's attack on the victim does not bear this out.

1. The sentencing judge identified the following aggravating circumstances: [37]

(1) The victim was vulnerable. He was attacked in a toilet cubicle with a large hammer. He would have been taken by surprise by the wholly unprovoked and senseless attack.

(2) The respondent used considerable violence which he inflicted with a hammer.

(3) The respondent struck the victim multiple times to the head.

(4) The respondent inflicted significant life-threatening injuries with intent to harm.

(5) The victim will require 24-hour a day care and supervision for the rest of his life.

1. His Honour identified the principal mitigating factors as being the respondent's pleas of guilty, for which he was given a reduction of 25% pursuant to s 9AA of the Sentencing Act, his remorse and his mental health issues.[38]
2. As to the mental health issues, his Honour accepted that they would make a term of imprisonment harder for him to cope with. He also accepted that the respondent's moral culpability was 'reduced somewhat'[39] by reason of his psychiatric illness, but regarded this factor as providing 'limited'[40] mitigation. While the existence of the respondent's mental illness reduced the importance of general deterrence, it, along with his inability to comply with his medication and his persistent use of illicit substances, increased the need for community protection and personal deterrence.[41]
3. The sentencing judge characterised count 1 as 'a very serious example of this type of offending'.[42] He went so far as to describe it as 'clearly in the worst category for this type of offending'.[43]

1. Senior counsel for the appellant noted that the maximum penalty for count 1 is 20 years' imprisonment.[44] She submitted that, having regard to the extreme violence used by the respondent, and the life-threatening, catastrophic, permanent injuries suffered by the victim, and acknowledging the mitigating circumstances including the plea of guilty at the first reasonable opportunity and the respondent's mental health issues, the imposition of a 5-year term of imprisonment was, 'simply wholly inadequate'.[45] Senior counsel for the appellant referred to a number of cases involving offences contrary to s 304(2) of the Code and a number of sentencing cases concerning the offence of causing grievous bodily harm with intent which, like offences against s 304(2), carries a maximum penalty of 20 years' imprisonment.[46]

1. It was submitted on behalf of the respondent that, although the respondent's offending was serious and the consequences for the victim were catastrophic, the offending was significantly mitigated by the respondent's pleas of guilty, remorse and mental impairment.[47] While the sentence could fairly be said to be at the lower end of the range, error could not be inferred.[48]

1. We adopt the statement of general principles applicable to this appeal made in The State of Western Australia v Mackey:[49]

The principles applicable to the determination of an appeal against sentence on the basis of manifest inadequacy are uncontroversial. The court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing judge has made a material express or implied error of law. A claim of manifest inadequacy asserts the existence of an implied error.

In order for this ground to succeed, the appellant must demonstrate that the sentence imposed on count 1 was plainly unjust or unreasonable in all of the circumstances.

In determining whether or not a sentence is manifestly inadequate the sentence must be viewed in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.

1. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not merely establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. The range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

1. As we have already said, the maximum penalty for the offence committed by the respondent is 20 years' imprisonment. His Honour's characterisation of the offence as a very serious example of offending contrary to s 304(2) of the Code is beyond dispute, having regard to the aggravating features identified by the sentencing judge which do not require repetition.
2. It is true, as the respondent emphasises,[50] that the structure of s 304(2) reveals that potential harm may be as significant as actual harm, and cases cannot be approached with a singular focus on the presence and extent of physical injuries.[51] However, where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence. In this case, the catastrophic and permanent injuries suffered by the victim were a seriously aggravating feature of the appellant's offence.
3. There were also mitigating factors, the most relevant of which were the plea of guilty at the first reasonable opportunity, the respondent's remorse and his mental health issues.
4. As to the respondent's mental health issues, the relevant principles are well known and uncontroversial. They were recently explained by this court in Vucemillo v The State of Western Australia,[52] as follows:

The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court, including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Gok v The Queen [2010] WASCA 185. This court has referred with approval on a number of occasions to R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400, where the Court of Appeal of Victoria said that there were at least five ways in which mental impairment may be relevant:

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.

Those principles do not apply only to offenders with a serious psychiatric illness. They apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

It is clear, however, that while a mental impairment will ordinarily be relevant to the sentencing of an offender, it is not the case that it will always result in a lesser sentence. The existence of a mental impairment is simply one factor which must be balanced with other factors to produce a just sentence. The part that it plays in the sentencing of an offender must always depend upon the particular facts and circumstances of the case. In some cases, it may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. Thus, for example, the existence of a causal connection between the mental impairment and the offence might reduce the importance of general deterrence but increase the importance of particular deterrence or of the need to protect the public: R v Engert (1995) 84 A Crim R 67, 71; Wheeler v The Queen [7]. There may also be cases where there is no causal connection between the mental impairment and the commission of the offence, but the mental impairment may be important to considerations such as rehabilitation or the need for treatment outside the prison system: R v Engert. It may also be relevant where as a consequence of the mental impairment imprisonment would weigh much more heavily on the offender than on an ordinary prisoner: Thompson [77]; Tsiaris, 400.

Where it is demonstrated that there is a causal connection between the impairment and the commission of the offence, the extent to which the moral culpability of the offender will be lessened will depend upon the extent of the contribution of the mental impairment to the offending. Similarly, the extent to which the issue of general deterrence will be affected depends upon the extent to which the offender is afflicted by the mental impairment: R v Wright (1997) 93 A Crim R 48, 50 - 51.

1. The present case is an example of one where, despite the existence of the causal connection between the mental impairment and a reduction in the importance of general deterrence, personal deterrence and the need to protect the public were very important sentencing considerations having regard to the respondent's lack of insight into his condition, his non-compliance with his medication and his persistent abuse of illegal substances. As Ms Olivieri noted in her report, the respondent poses a high risk of future violence if he does not comply with his medication and abstain from substance misuse. Unfortunately, the respondent's history does not provide much optimism that he will be able to do either of these things. In the end, as the sentencing judge found, the respondent's mental illness provided only 'limited'[53] mitigation.
2. We have had regard to the cases cited by the appellant. Given the wide variety of circumstances in which offences under s 304(2) occur and of the offenders who commit them, there is no sentencing tariff.[54]
3. It is unnecessary to refer to the facts and circumstances of all of the cases cited by the appellant. We will briefly mention three cases which involve serious offending and which, to our mind, provide some indication of the inadequacy of the sentencing imposed on count 1.
4. In Delavale, the appellant pleaded guilty to one offence contrary to s 304(2)(b) of the Code and was sentenced to 7 years and 6 months' imprisonment.[55] The appellant badly assaulted the victim and inflicted serious injuries upon her.[56] In fact, she died, but the cause of her death was unknown and the appellant was sentenced on the basis that he was not legally responsible for the death.[57] The appellant was youthful and he entered his plea of guilty at an early stage in the proceedings. The transitional provisions also applied.[58] The court dismissed the appellant's application for leave to appeal against sentence.[59]
5. In Eriha, the appellant was sentenced to a total effective sentence of 11 years' imprisonment for a series of violent offences committed in company against one victim.[60] He received 9 years' imprisonment for an offence of grievous bodily harm with intent, contrary to s 294(1) of the Code, the maximum penalty for which is 20 years' imprisonment.[61] It was alleged that this sentence was manifestly excessive. The victim was said to have been subjected to a deliberate, methodical, cruel and sustained attack which left him with permanent injuries to his hands.[62] The appellant was somewhat youthful and pleaded guilty at an early stage in the proceedings.[63] This court dismissed the appellant's appeal against both the individual sentence that was challenged and the total effective sentence.[64]
6. In Dimitrovska the appellant was convicted after trial of one count of doing unlawful grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm, contrary to s 294 of the Code.[65] The appellant grabbed a bottle of methylated spirits, and doused the victim with the contents of the bottle, which ignited, causing extensive burns.[66] This case was characterised as falling within the worst category of cases.[67] An appeal against the sentence imposed of 17 years' imprisonment was dismissed.[68]
7. With all due respect to his Honour, the sentence imposed on count 1 inadequately reflects the very serious nature of the offending, including the effect on the victim and the need to properly provide for personal deterrence and community protection. The sentence was not commensurate with the seriousness of the offence. Even when the mitigating factors are given full weight, they cannot justify the sentence that was imposed. Giving full weight to those factors, when due regard is given to the maximum penalty and to the place which this offence occupies on the scale of seriousness of offences of this kind, the sentence of 5 years compels the conclusion that there has been some error in, or misapplication of, principle. The sentence on count 1 was so low as to reveal implied error. The sentence was manifestly inadequate.
8. There is no basis for invoking the residual discretion in this case. The ground of appeal has been very clearly established and this court's intervention is necessary to ensure the preservation of proper sentencing standards for offences of the kind committed by the respondent. The respondent's counsel expressly acknowledged that there was no reason why the residual discretion should be exercised in this case.[69]

1. The court has all of the material necessary to resentence the respondent.
2. We have had regard to the maximum penalty for this offence. We have also had regard to the circumstances of the offence. Those circumstances, including the relevant aggravating factors, have already been identified and do not need to be repeated. We have also taken into account the respondent's plea of guilty at the first reasonable opportunity, for which a discount of 25% pursuant to s 9AA of the Sentencing Act should be given. We have also taken into account the respondent's mental impairment, and that its significance is limited. We have had regard for the respondent's remorse and for the fact that his mental impairment will make the time that he must spend in prison more onerous.
3. Important sentencing considerations in this case are personal deterrence and the protection of the public.
4. In our opinion, the appropriate sentence for count 1 is 10 years' imprisonment. But for totality we would have, as his Honour did, ordered that the sentence for count 2 be served cumulatively. However, in light of the sentence we would now impose for count 1, we would order that the sentence for count 2 be served concurrently.

1. We would make the following orders:
   1. Appeal allowed.
   2. The sentences imposed by Stone DCJ on 20 July 2017 are set aside.
   3. In lieu thereof, the respondent is sentenced as follows:

(a) On count 1, 10 years' imprisonment with eligibility for parole, to commence on 7 September 2016.

(b) On count 2, 12 months' imprisonment with eligibility for parole, to commence on 7 September 2016, to be served concurrently with the sentence on count 1.

1. For the avoidance of doubt, the total effective sentence now imposed upon the respondent is 10 years' imprisonment with eligibility for parole, to commence on 7 September 2016.

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

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH

[29] Dr Patchett's report, page 3; ts 38.

[31] Dr Hall's report, page 1; Dr Patchett's report, page 5.

[33] The relevant sentencing transcript was before Stone DCJ; see WAB 84 - 92.

[36] Pre-sentence report, 17 February 2015, Ian Donaldson, page 2.

[46] Delavale v The State of Western Australia [2009] WASCA 111; Eriha v The State of Western Australia [2011] WASCA 167; The State of Western Australia v Naumoski [2013] WASCA 215; Dimitrovska v The State of Western Australia [2015] WASCA 162; Lawrence v The State of Western Australia [2015] WASCA 187; Penny v The State of Western Australia [2016] WASCA 52; Kaokula v The State of Western Australia [2016] WASCA 198; Sophiadakis v The State of Western Australia [2016] WASCA 203; Chikonga v The State of Western Australia [2017] WASCA 34.

[49] The State of Western Australia v Mackey [2017] WASCA 204 [31] - [33].

[51] Kaokula v The State of Western Australia [62]; Chikonga v The State of Western Australia [27] - [28].

[52] Vucemillo v The State of Western Australia [2017] WASCA 37 [36] - [39].

[60] Eriha [5], [12] - [22].

[64] Eriha [64], [74] - [75].

[66] Dimitrovska [11], [23] - [24], [158].

[67] Dimitrovska [43], [59] - [61], [141], [143].

[68] Dimitrovska [1], [133] - [134], [153] - [154], [184] - [185].