Appeal - Appeal against sentence - Appellant suffers from mental illness - Whether magistrate erred in not reducing sentence by one-third - Appellate function of a single judge of the Supreme Court under the Criminal Appeals Act 2004 (WA)

Criminal Appeals Act 2004 (WA), s 14, s 31(5)

Criminal Law Amendment (Simple Offences) Act 2004 (WA), s 35

Sentencing Act 1995 (WA), s 4

Sentence Administration Act 2003 (WA), s 22, s 23

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2

(This judgment was delivered extemporaneously on 18 December 2007 and has been edited from the transcript)

1 Jeremiah Paul Cohen appeals to the Court against a sentence imposed in the Magistrates Court for the offence of unlawful wounding, to which he pleaded guilty at the first available opportunity. Mr Cohen is 19 years of age. The offence to which he pleaded guilty was committed on the evening of 16 July 2007, or perhaps during the early morning of 17 July 2007.

2 The circumstances of the offence were that Mr Cohen had recently been residing at the YMCA Hostel in Goderich Street, Perth, along with his brother. They resided in units on the same floor as the complainant, although they had only met the complainant moments prior to the incident that gave rise to the charge against Mr Cohen. The incident occurred just before midnight on Monday 16 July. Mr Cohen and his brother were in the process of leaving Goderich Street YMCA when they met the complainant and struck up a general conversation with him.

3 The three men agreed to walk to a nearby service station together, apparently to purchase cigarettes. In the course of their walk, the complainant disclosed information regarding his ethnic origins and religious beliefs. Mr Cohen claims he was intoxicated on a combination of alcohol and prescribed medication. Additionally, he suggests that his thinking was paranoid and that he experienced hallucinations. Later, reviewing the incident, he was of the belief that the complainant had disclosed that he was a terrorist, and that he 'couldn't handle the bad thoughts' which that generated. He felt threatened and believed that he should defend himself and his brother. He produced an 8 cm pocket knife and stabbed the complainant in the abdomen. Although the complainant's abdomen was punctured, he had apparently entirely recovered from the injury by the time Mr Cohen stood for sentence on 5 October 2007.

4 Mr Cohen stated that his brother told him to flee the scene while his brother stayed with the complainant and called an ambulance. Mr Cohen panicked. Following his brother's instructions, he fled the scene and ran to the residence of his sister. He waited there until morning, at which time he surrendered himself to the police and admitted his involvement in the offence. In an antecedent report that was made available to the magistrate, the author of the report observed that Mr Cohen presented as being 'very remorseful to the victim', and that he stated to the author of the report that he was overcome by feelings of guilt on a daily basis, because he realised when he injured the victim that there was no reason for his actions. He stated to the author of the antecedent report that 'he felt bad for, his family and that he would say sorry to the victim if he could'.

5 Mr Cohen has a minor court history incurred at the age of 17, which was a couple of years before the incident that gives rise to his appeal. The majority of his offences were committed over a two-month period during November and December of 2005, and they consisted of stealing, burglary, possession of a prohibited drug, obstructing public officers, violent behaviour, criminal damage, the gaining of a benefit by fraud, failure to comply, breach of bail and breach of a Community Based Order. Although there is one offence described as violent behaviour in that record, it appears that none of the offences actually involved violence against any person.

6 All of the offences were dealt with by community based sanctions or pecuniary penalties. One of the Community Based Orders upon which Mr Cohen was placed was breached, as a result of which it was cancelled. However, he later successfully completed a 12-month Community Based Order. It is unnecessary at this stage to relate Mr Cohen's family background, other than to observe that the author of the antecedent report recorded his observation that he shared a close relationship with his mother, his brother, his sister and his grandparents, all of whom were very supportive of him. However, he tends to socially isolate himself as a result of hallucinations, paranoia and the consequent effect of his behaviour.

7 In relation to his education and employment, Mr Cohen reported to the author of the antecedent report that he had been expelled from high school in year 10, due to anti-social behaviour towards other students, although he did return to another school the following year in order to complete year 10. Departmental records available to the author of the antecedent report led her to conclude that a psychological assessment had been conducted in March of 2006, which revealed that 'Mr Cohen's symptoms pointed towards anxiety, depression, substance abuse, and personality difficulties', and led to the conclusion that Mr Cohen had a 'schizoid disposition'.

8 The author of the antecedent report notes that Mr Cohen had experienced 'depression, anxiety, paranoia and hallucinations for the past several years'. He had apparently at the time of the preparation of the report, attended or previously attended an appointment with a psychologist as a result of a referral from his family doctor. Mr Cohen reported that the doctor suggested that he was exhibiting symptoms often associated with bipolar disorder and schizophrenia. In fact, a few days prior to Mr Cohen's incarceration, as a result of his presentation to the police, he had admitted himself to a psychiatric facility where he apparently had spent a couple of days, as Mr Cohen felt that, in the words of the author, 'his state of mind was deteriorating and he was unable to cope within the community.'

9 On the subject of substance abuse, the author of the antecedent report noted that Mr Cohen has a history of 'polysubstance abuse'. He apparently commenced using cannabis at the age of 11. He further stated that he had used methamphetamine approximately 20 times. He started using dexamphetamine at the age of 13, and prescribed medication at the age of 14. He told the author of the antecedent report that he had ceased cannabis use because it would make him even more paranoid, but he had been consuming alcohol since the age of 17, and was drinking two to three times a week prior to his incarceration.

10 Mr Cohen told the author of the antecedent report that he uses alcohol and prescribed substances in the hope that they will suppress his hallucinations and paranoia, and enable him to think more clearly. He stated that he was distressed and desperate for assistance to deal with his problems. However, his capacity to deal with those problems was exacerbated by the fact that he was often struggling for somewhere to live, as a result of his behaviour, and that had affected his ability to engage fully in treatment programs. Mr Cohen had, however, voiced a willingness to commit to seeking and undergoing intensive treatment.

11 In the opinion of the author of the pre-sentence report, Mr Cohen displayed an insight into the serious nature of his offence and the detrimental effect that his behaviour had had on the victim. The author concluded that he was profoundly remorseful of his actions, and was willing to address his offending behaviour in any manner the Court deemed fit.

12 That view led the author of the pre-sentence report to suggest that whichever form of disposition was chosen by the court, be it a non-custodial sentence or a custodial sentence, psychiatric or psychological counselling should be a component of the sentence.

13 The matter came before the magistrate on 5 October 2007. Mr Cohen had been in custody up until that time, apparently as a result of an inability to meet the conditions of bail. Counsel appearing for Mr Cohen asked the magistrate to consider placing Mr Cohen on a pre-sentence order so that his propensity to undergo psychiatric treatment and the likely effect of that psychiatric treatment could be assessed.

14 The magistrate indicated that because of the view which he took of the seriousness of the offence, he did not consider that to be an appropriate disposition of the case. He then proceeded to pass sentence in the following terms:

[t]here is a concern in the community - I think the stage has come when the courts will need to impose custodial sentences on people who go out socially and carry knives because, as I said, hardly a weekend goes by, or a week goes by, when there's news of someone else being stabbed. All right, I believe, notwithstanding what you have said and not withstanding the report, I have no alternative but to impose custodial sentence.

Unlawful wounding is a serious offence, and the circumstances of this case - notwithstanding what you have said about the accused's psychological situation, alcohol - is a factor that - he made a choice to consume alcohol. He has known about his condition, whatever that is, so it's my view that a term of imprisonment is appropriate. I will make him eligible for parole and he can get some treatment when he gets out...

What I propose to do is sentence you to - the appropriate penalty for this offence, in my view is 20 months imprisonment. I will reduce that as I am required to do by five months for your early plea and other cooperation, so you will be sentenced to a term of 15 months imprisonment. I will backdate that to 18 July 2007, which is when you were arrested, and I will make you eligible for parole.

15 After that sentence was announced, the prosecutor then suggested to the magistrate that the reduction needed to be one-third, rather than one-quarter, which I take, and the magistrate took, to be a reference to the transitional provisions of the sentencing legislation enacted in 2003. In response to that query, the magistrate replied:

No, there has been an amendment to the Act. I do not have to reduce the penalty by one-third. I think a member of Parliament today continued the myth that there is a requirement in every case for a reduction of a penalty by one-third. There was a transitional provision. This section of the Code has been amended.

The penalty provision of section 301 was amended after the Sentencing Act came into being, so there is no requirement for that, and many matters under the Criminal Code now for reduction of a third.

Ground 1 - In the circumstances the sentence was manifestly excessive and failed to reflect

(a) the appellant's youth;

(b) the appellant's mental health at the time of offending;

(c) the appellant's remorse;

(d) the lack of record for any violent offences;

(e) the appellant's full co-operation with police.

Ground 2 - The learned sentencing judge erred in refusing to grant a 1/3 reduction in the sentence for the transitional provisions, providing for truth in sentencing.

17 I propose to consider ground 2 first because if error is established on that ground, it is, I think, unnecessary to consider ground 1. Ground 2 is a somewhat colloquial reference to the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), which effected a number of amendments to the sentencing legislation of the state.

If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.

19 However, cl 2(5) provides that the clause does not apply if the 'statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced'.

20 It is significant for the purpose of this case to observe that those provisions apply only to sentences which involve the imposition of a fixed term of imprisonment.

21 The reasons for the passage of that legislation are made clear by the second reading speech given by the Attorney General, The Hon Jim McGinty MLA (Western Australia_,_ Parliamentary Debates, Legislative Assembly, 15 August 2002, 177-180), which has also been referred to by the Court of Appeal in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585. The reasons involve a change to the administration of sentences in Western Australia, which involve the removal of the automatic one-third remission, which had applied to all sentences passed prior to the commencement of the 2003 legislation.

Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in jail under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across-the board increase in sentences and an intolerably large increase in the prison population.

23 Thus, the effect of the legislation was to put persons who are sentenced after the removal of the automatic one-third remission in the same position as persons who had been sentenced prior to the change in practice.

24 The schedule refers to the 'statutory penalty', which under s 4 of the Sentencing Act 1995 (WA) means 'the penalty specified by a written law for the offence'.

25 In this case, the offence with which Mr Cohen was charged was the offence created by s 301 of the Criminal Code. At the time the offence was committed, the penalty provisions of that section provided that in the case of an offence committed other than in circumstances of aggravation, the penalty was a penalty of imprisonment for five years. However, in the case of summary conviction, without circumstances of aggravation, the penalty applicable was imprisonment for two years and a fine of $24,000. The provisions of the section relating to the penalty applicable in the event of a summary conviction had been amended by the Criminal Law Amendment (Simple Offences) Act 2004 (WA), and in particular by s 35(4) of that Act, which includes a table amending a significant number of provisions of the Criminal Code.

26 In the case of s 301, the amendment effected by the 2004 Act was to delete the words 'or a fine of $8 000', and to substitute in their place the words 'and a fine of $24 000'. It is, I think, significant in the context of this issue to note that the legislation made no amendment to the term of imprisonment available in the event of conviction on indictment, or to the term of imprisonment available in the event of conviction summarily. The two changes made by the legislature were to increase the fine potentially available in the event of summary conviction to an amount of $24,000, and to also provide that that fine could be imposed in addition to and cumulatively upon a sentence of imprisonment, by using the conjunctive expression 'and', rather than the disjunctive expression 'or'.

27 The Attorney General stated in the second reading speech to the Criminal Law Amendment (Simple Offences) Act 2004 (WA) (Western Australia_, Parliamentary Debates,_ Legislative Assembly, 23 September 2004, (6534):

The use of the word 'and' in the dual penalties, rather than the word 'or', also gives the courts more options when sentencing, as section 9(6) of the Sentencing Act 1995 provides that, where the statutory penalty for an offence specifies more than one penalty, the use of the word 'and' between the penalties means that the penalties may be imposed alternatively or cumulatively.

28 The question therefore is whether the amendment effected to s 301 of the Criminal Code by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) brings the provision within cl 2(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). That question was specifically addressed by Le Miere J in Forward v Bower [2007] WASC 205. In that case, after referring to cl 2, his Honour considered the application of that provision to one of the offences of which the offender before him had been convicted, being the offence of burglary, committed contrary to the provisions of section 401 of the Criminal Code. His Honour observed at [65]:

Section 401 was amended by Act No 70 of 2004. Before the amendment s 401(1) provided that a person who enters or is in the place of another person without that other person's consent, with intent to commit an offence in that place is guilty of a crime. The subsection provides that a person is liable to different penalties according to the circumstances. Section 401(1)(b) provides that a person is liable, if the place is ordinarily used for human habitation but the offence is not committed in circumstances of aggravation, to imprisonment for 18 years. The summary conviction penalty for the offence in those circumstances is 3 years' imprisonment or a fine of $12,000. The amending Act did not amend the maximum penalty of 18 years' imprisonment but amended the summary conviction penalty to imprisonment for 3 years and a fine of $36,000.

29 I digress to observe that that was an amendment made by the same legislation which amended s 301 of the Criminal Code. His Honour continued at [65]:

Clause 2(5) of Sch 1 refers to the statutory penalty for the offence, not the summary conviction penalty. The statutory penalty for the relevant offence of burglary was not amended. The sentencing magistrate was obliged to apply the provisions of cl 2(1) of the Schedule.

30 That decision is precisely on point, and if followed, would lead to the conclusion that the magistrate erred in his approach. That decision is a decision of a single judge of this Court. It follows that I am not bound to follow it, although under the principles of judicial comity, it is appropriate for me to follow the decision in the interests of consistency, unless I am satisfied that it is wrong. I am not satisfied that it is wrong and I propose to follow it in this case.

31 I am reinforced in that conclusion by the decision of Miller J (as he then was) in Withnell v Walker [2005] WASCA 8. In that case, his Honour also considered the question of whether or not a particular offence provision, also in fact s 401 of the Criminal Code, was within cl 2(5) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). His Honour observed at [17]:

The amendment to the Code brought the offence of aggravated burglary in certain circumstances within summary jurisdiction, but did not alter any penalty. There was, prior to 21 May 2004, no penalty applicable to the offence of aggravated burglary upon summary conviction. The 2004 amendment simply brought within summary jurisdiction the offence of aggravated burglary in certain circumstances and fixed a maximum sentence of 3 years' imprisonment or a fine of $12,000 as applying to the offence on such summary conviction. This, in my view, did not constitute an amendment to penalty. The amending provision simply created a penalty for summary conviction. It did not amend the penalty ordinarily applicable, which would be 20 years' imprisonment. For these reasons, I do not consider that the respondent has made good the submission that cl 2(5)(a) of Sch 1 of the Sentence Legislation Amendment and Repeal Act 2003 applies.

32 It seems to me that the reasoning of his Honour applied to this case would reinforce and support the conclusion arrived at by Le Miere J in Forward v Bower. That conclusion is, in my view, also reinforced by the definition of statutory penalty to which I have referred, which refers to the penalty applicable to the offence. The relevant offence in this case was the offence of unlawful wounding. The maximum penalty of imprisonment applicable to that offence is a period of 5 years imprisonment pursuant to s 401 of the Criminal Code. That penalty has not been amended since the passage of the 2003 legislation.

33 In this particular case there is, I think, an additional reason for arriving at the conclusion that cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) applies and that is that the legislature has made no amendment to the provisions relating to imprisonment which apply to the offence of unlawfully wounding, either at the summary or indictable level. Clause 2 is concerned with imprisonment, and as I have already observed, it was brought about because of changes in relation to the procedures pertaining to remission of sentences. It is, I think, consistent with the reasons for the legislation to focus upon whether the legislation has amended the provisions relating to a sentence of imprisonment in respect of any offence, and in this case plainly the legislation has not directed its mind to that issue. That is, I think, an additional reason in this case which leads me to the conclusion that the magistrate was in error when he concluded that he was not obliged to reduce the sentence which he would otherwise have imposed by one-third.

34 Both parties have drawn my attention to the decision of Pullin J (as he then was) in the case of O'Connell v Welsh [2005] WASCA 11. In that case the question before his Honour was whether an offence which had been committed by the relevant offender had the consequence that there was a breach of a term of suspended imprisonment previously imposed. That question turned upon whether the offence which the offender had committed was an offence for which the statutory penalty available was or included imprisonment. In addressing that question, Pullin J stated at [23] - [26]:

However, s 426 is in its turn expanded by s 5 of the Criminal Code. Section 5 provides that circumstances which occur in the court process will also affect the statutory penalty. Prima facie the charge of stealing property of less than $1000 in value will be dealt with and attract a 'summary conviction penalty' which does not 'include' imprisonment. However, if on the application of one of the parties the court decides that the case should be tried on indictment, the statutory penalty still potentially includes imprisonment as a penalty. Also, where the court proceeds to try the charge summarily, but upon conviction decides that the summary conviction penalty 'would not be commensurate with the seriousness of the offence' the court may commit the defendant to a court of competent jurisdiction for sentence. If that happens, then under s 5(10) the defendant again becomes liable to the penalty on indictment, and that includes imprisonment.

Thus, in the case of stealing, and viewed from the outset, there is always the potential for imprisonment, depending upon the decision or decisions of a Magistrate. That being so, and if viewed at the time the charge is laid, the statutory penalty for stealing will always 'include' imprisonment as a potential sentence depending on events still yet to unfold. However the task is not to identify the potential sentence by looking at the position at the time the charge is laid. The time when the court must examine the applicability of s 78 and s 80 of the Sentencing Act 1985 is after conviction. This is because s 78 applies upon conviction and s 80 then requires the court to be 'satisfied' that the person "has been convicted" of an offence, the statutory penalty for which is, or includes, imprisonment. The statutory penalty for the offence of which the defendant has been convicted can only be determined by going through a checklist, some of which relate to the facts or circumstances of the proven charge and some of which relate to events which occur or do not occur during the court process. Only by going through this checklist is it possible to say what 'the' statutory penalty is.

In this case:

(a) the property involved was of a value less than $1000;

(b) the facts of the case did not bring the case within any of the "special cases" in s 378;

(c) no decision was made that the case should be tried on indictment;

(d) no decision was made after conviction to commit the defendant to a court of competent jurisdiction for sentence.

As a result 'the' statutory penalty was a fine of $2000. Therefore the statutory penalty did not 'include' imprisonment.

35 The reasoning adopted by Pullin J focused upon the penalty for the offence after conviction and in all the circumstances which had occurred, and was a conclusion that applied to the particular question before him, which was different to the question which is before me, to which I think different considerations apply. For those reasons, although there is something in the proposition that the view taken by Pullin J is inconsistent with the views taken by Le Miere and Miller JJ in the cases to which I have referred, I think it is appropriate that I distinguish Pullin J's decision because it fundamentally addressed a different question.

36 I therefore conclude that the magistrate was in error when he declined to reduce the sentence which he would otherwise have imposed by one-third. Under s 14(1) of the Criminal Appeals Act 2004 (WA), in deciding an appeal from a magistrate, the Supreme Court may 'allow the appeal' and/or 'substitute a decision that should have been made by the court of summary jurisdiction'. That section can be contrasted with the provisions relating to appeals from superior courts which provide by s 31(5) that if the Court of Appeal allows an appeal, it 'may instead impose a new sentence that is either more or less severe'.

37 It might be thought that by using different language in s 14 a judge hearing an appeal from a magistrate when substituting a sentence is undertaking some different function to that performed when substituting a sentence for that imposed by a higher court - perhaps performed by reference to the circumstances which applied at the time the matter came before the magistrate. However, I do not think that construction should be adopted, because by s 14(5) it is expressly provided that 'the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard'. Therefore it seems to me that if, as I have concluded in this case, the sentence imposed by the magistrate was vitiated by error, it is appropriate for the Supreme Court to either remit to the Magistrates Court, or to itself re-sentence having regard to all the facts which had occurred at the time of re-sentence. This is a case in which it seems to me to be eminently sensible to take the latter course.

38 Had I been considering the matter at the time the magistrate considered it, I think I might have given anxious consideration to the submission that a pre-sentence order should be made in order to investigate the feasibility of providing Mr Cohen with a form of psychiatric treatment that could address what appear to be significant underlying problems. However, time has marched on since then and it is a fact that Mr Cohen has now served five months of imprisonment since presenting himself to the police in the middle of July of 2007. It seems to me therefore that to consider some form of conditional non-custodial sentence now might in fact be unduly harsh upon him because of the possible risks and exposures to which he would be subjected.

39 Approaching the sentencing task as I think it should be approached, one starts with the proposition that the maximum penalty that could have been imposed by the magistrate, or by me standing in the shoes of the magistrate, is a sentence of two years imprisonment. Having regard to the age of Mr Cohen, 19 years at the time of the offence; his antecedents, which although they include prior offending, do not include any prior offence involving significant violence, or any prior offence which had led to a sentence of imprisonment; having regard also to the circumstances of the offence and the mental condition of Mr Cohen at the time of the offence, it seems to me that an appropriate starting point would be a sentence of 18 months.

40 To that I think one should apply a discount of one-third for Mr Cohen's early plea and his cooperation with police, having presented himself to the police thus averting the need for any investigation into his whereabouts, and the remorse which I think can be reasonably inferred from that course of conduct and which was the subject of express observation by the author of the pre-sentence report. That discount of one-third would reduce the sentence to a period of 12 months. That sentence should be further discounted by one-third under cl 2(1) of the 2003 legislation, which would produce a period of eight months imprisonment. Mr Cohen has already served five months of imprisonment, as I have observed. The effect of s 22 and s 23 of the Sentence Administration Act 2003 (WA) would be in the event of the imposition of such a sentence to render him immediately eligible for parole if that sentence were passed today and backdated to 18 July 2007.

41 In those circumstances that seems to me to be a desirable outcome. I have given consideration to the question of whether the sentence of imprisonment should be suspended, but in this case I have concluded that that is not appropriate because of the significance of the offence and the matters considered by the magistrate, and because of the potential jeopardy to which Mr Cohen would be subjected in that event. So for those various reasons, I would propose to allow the appeal to set aside the sentence imposed by the magistrate and instead to substitute a sentence of imprisonment of eight months taking effect from 18 July 2007.