Sentencing Act 1995, s 87

First Respondent : State Director of Public Prosecutions

Second Respondent : State Director of Public Prosecutions

Third Respondent : State Director of Public Prosecutions

Atholwood v R [1999] WASCA 256

Mason v Stuart [1993] SASC 4322; (1993) 68 A Crim R 163

Strecker v Trenerry [1997] NTSC 69; (1997) 93 A Crim R 407

1 MILLER J: On 23 June 1999 the appellant pleaded guilty before Mr F Cullen SM in the Court of Petty Sessions, Northam to the following charges:

s.54 Police Act 1892

s.20 Police Act 1892

s.20 Police Act 1892

s.6(2) MDA 1981

2 The statement of facts read to the Court by the prosecutor revealed that on the evening of 5 January 1999 police had attended at the appellant's address in Northam at the request of his de facto. He was found to be in a highly agitated state, intoxicated, and with injuries to his face and mouth causing visible bleeding. Attempts were made by the officers to calm the appellant but they were in vain. When the appellant's de facto was removed from the house and the officers had returned to their vehicles, the appellant left his property, crossed the roadway, abused one of the officers and punched the window of one of the police vehicles. He was warned, but threatened two officers and was arrested. He walked away and when restrained he head-butted one officer to the left side of the jaw, resisted violently and attempted to head-butt other officers. He was handcuffed, escorted to the security van and whilst being placed in the rear of the van, spat blood and saliva into the face of a policewoman, causing it to enter her mouth. He spat at further police officers, blood and saliva reaching either their clothing or in two instances the face or neck area. At the police station he attempted to elbow a sergeant on duty before being placed in the cells. The facts in relation to the charge of possession of cannabis were that on the afternoon of 5 March (whilst the appellant was on bail for the various assaults) he was found in a vehicle in which there was a quantity of cannabis which the appellant said belonged to him.

3 The learned Magistrate was presented with a victim impact statement of Amanda Julie Olliver, one of the officers who had attended the scene and the officer in whose mouth blood had been spat. She stated that she had been greatly worried about what had occurred because she believed that the appellant had at one time been an intravenous drug user. She underwent various blood tests which were initially found to be negative but she was told she would have to wait six months to see whether she had contracted something serious from the appellant. Thereafter she suffered serious headaches and stress and her health was adversely affected.

4 The appellant was represented by counsel who put a lengthy plea before the learned Magistrate. He pointed out that the appellant was 32 years of age, employed as a train driver with Westrail for a period of some six years and burdened with some very heavy financial commitments. He was residing with his de facto wife and they had three children in their care with the likelihood of a fourth child joining the family. It was put to the learned Magistrate that the appellant had, since leaving school, worked consistently, and although he had a long running and significant history of alcohol abuse, with some history of substance abuse, together with a record of prior convictions which included assaulting a public officer. The last of those convictions was in 1991. Counsel urged the learned Magistrate to take into account the fact that since commission of the offences the appellant had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) details of which were set out in a report of Ms Denise M Cull, a forensic psychologist. That report, which was tendered to the court, expressed the view that there was a strong possibility that the appellant had experienced a lifetime of ADHD, which would explain many of his behaviours. He was referred to a specialist in the field for formal diagnosis, but Ms Cull that there was a "very strong possibility" that the appellant had suffered from ADHD throughout his lifetime and that this could possibly have influenced his long term history of anti-social behaviour. She added that the appellant had expressed a strong interest in pursuing the matter further with a view to receiving treatment. To this end he was referred to Dr John Milne, who reported to Ms Cull that administration of three diagnostic measures confirmed the presence of the disorder. Dr Milne recommended treatment, expressing the view that appropriate treatment would very positively impact upon the appellant's lifestyle which had previously brought him before the courts on numerous occasions.

5 Counsel for the appellant argued that it was this feature of the case which made it very unusual. The fact that the condition of ADHD had been previously undiagnosed explained the behaviours which the appellant had exhibited throughout his lifetime, but the present position was that the appellant was undergoing medication and since doing so had felt "like a new man", with aggression and other aspects of his life which were manifestations of ADHD being controlled. It was put to the learned Magistrate that the appellant was deeply ashamed and remorseful for his conduct, that he had pleaded guilty at the earliest opportunity after investigations into the ADHD condition had concluded, and any sentence of imprisonment would create a disastrous financial position for the family. Counsel argued that the case was a classic one for a suspended sentence of imprisonment.

6 The learned Magistrate remanded the matter for sentence, and the appellant reappeared before him on 29 July 1999. He then had a pre-sentence report which confirmed that treatment for ADHD had commenced several months beforehand and that the appellant had responded very well to this treatment and as a result had ceased substance misuse. Reference was made to a number of stressful incidents which had affected the appellant in recent years, including a tragedy whilst driving a train when a person was killed on the train track. Although the appellant had sought assistance in the past from doctors and counsellors he was unsuccessful in those endeavours until his recent diagnosis of ADHD and resultant medication. The recommendation was that if the court considered a community based option, the imposition of supervision and programme requirements would enable risk factors to be monitored and addressed.

7 In sentencing the appellant the learned Magistrate pointed out that the offences were of a very serious nature, with aggravating factors involved in the assaults on police by reason of the head-butting of one officer and the spitting of saliva and blood into the mouth of another, with the result that the second officer had suffered considerable trauma. The learned Magistrate recited the facts of the case, including a reference to the appellant having been "involved in a brawl" earlier on the night in question when he had been at the Avon Bridge Hotel. This was in fact incorrect, as it was not the case that the appellant had been involved in a brawl, but that he had been set upon and assaulted in circumstances where he had offered no provocation. The learned Magistrate referred to submissions made on the appellant's behalf by counsel, making particular reference to the recent diagnosis of ADHD, but in that respect his Worship expressed some doubts about the diagnosis, saying that he found the existence of the disorder to be "quite extraordinary given the circumstances of your employment with regards to being an engine driver with Westrail". He concluded his assessment of the ADHD disorder by saying that there was conflicting evidence in the reports which had been tendered to him and there was a great deal of speculation as to why he had behaved in the way that he did.

8 The learned Magistrate made reference to the fact that the appellant was "no stranger" to brawling, but reference to the appellant's record reveals that offences of assaulting public officers occurred in 1990 and 1991, and there was an offence of assault occasioning bodily harm in 1991. Thereafter, there had been no convictions of that nature. Reference was also made to the plea of guilty and expression of remorse, but no indication was given as to what discount there might be from the sentence to be pronounced by reason of those factors. The learned Magistrate concluded by saying that in his view it was speculation as to the effects of the ADHD difficulty the appellant may have had and on the night in question it did not mitigate the appellant's "abominable behaviour at all". Reliance was placed on the previous record of the appellant as showing a propensity for violence, and the learned Magistrate took the view that despite all that had been said for the appellant condign punishment was called for with a deterrent penalty. In the result the appellant was sentenced as follows:

9 The maximum penalties applicable to various offences were as follows:

s.20 Police Act 1892

s.54 Police Act 1892

s.6(2) MDA 1981

10 The learned Magistrate made an order that the appellant should eligible for parole and backdated the sentence to 23 June, being the date upon which the appellant had gone into custody awaiting sentence.

11 On 27 August 1999 I gave the appellant leave to appeal against the sentences imposed by the learned Magistrate. The grounds of appeal, as amended at the hearing, were:

A. His Worship failed to give any weight or any sufficient weight to:

A.3 the applicant's loss of employment as a result of the sentences of imprisonment;

A.4 the financial hardship which will flow to the applicant and his family as a result of the sentences of imprisonment;

A.5 the applicant was suffering moderate levels of some post-traumatic stress disorder symptoms;

A.7 the favourable pre-sentence report which was made available to him prior to his sentencing.

as a result the total term of imprisonment was excessive_._

B.1 in failing to find that the applicant suffers from attention deficit hyperactivity disorder ("ADHD") and has done so all his life;

B.2 in failing to acknowledge that the applicant's ADHD had not been diagnosed until after the commission of the offences;

B.3 in failing to acknowledge that the applicant's behaviour on the night the offences against police occurred was explicable by the applicant's ADHD;

B.4 in failing to acknowledge that the applicant's ADHD could be satisfactorily controlled by medication;

B.5 in finding that the evidence presented to the court concerning the applicant's ADHD was "extraordinary", "speculative" and "contradictory";

B.6 in finding that the applicant had involved himself in a "brawl" immediately prior to the commission of the offences against police when in fact the evidence presented to the court showed that the applicant had been attacked in an entirely unprovoked and unnecessary fashion by strangers.

C. His Worship over-stated the facts of the case in describing them as "aggravated in the extreme and requiring condign punishment".

D. His Worship erred in not sentencing the applicant to an intensive supervision order.

E. Alternatively to paragraph D, His Worship erred in not suspending the terms of imprisonment imposed upon the applicant.

F. If sentences of imprisonment were appropriate, His Worship erred in not backdating the sentence to commence on 9 June 1999 to take into account the two weeks which the applicant spent on remand in custody from 6 to 20 January 1999.

12 At the hearing grounds C and D were not pursued, and ground F was acknowledged to be formulated in error, in that the sentence could not have been backdated to 9 June. It was, however, argued that the learned Magistrate failed to take into account the fact that the appellant had spent two weeks in custody after arrest, thus entitling him to a credit of approximately three weeks when sentenced.

13 On the hearing of the appeal counsel urged that there were significant and weighty mitigating factors which told in the appellant's favour and which should have led the learned Magistrate to the view that the appellant was a person who should have been given "a last chance" by the imposition of a suspended term of imprisonment. It was argued that the diagnosis of ADHD provided a reasonable explanation for the appellant's offending in the past and for the offences which were before the learned Magistrate. ADHD is treatable by the use of prescription drugs, and the appellant's willingness to undertake that treatment were said to be key factors largely ignored by the learned Magistrate, who expressed doubts that the appellant suffered from ADHD, notwithstanding the clear indication from Dr Cull's reports that such a diagnosis had been confirmed by a specialist in the field. It was put that a suspended sentence would have positively contributed to the appellant's rehabilitation within the community, reliance being placed upon my decision in Stewart v Waghorn [1999] WASCA 150 and upon the general considerations outlined in R v Liddington (1997) 18 WAR 394.

14 Counsel for the respondents detailed the circumstances of the appellant's assaults on police and argued that it was appropriate for the learned Magistrate to take into account the effect upon the policewoman into whose mouth blood had been spat. This can certainly be accepted: McLaughlan v R, unreported; CCA SCt of WA; Library No 950252; 26 May 1995. Counsel further submitted that in general assaults upon the police in the execution of their duty will call for a custodial term, reliance being placed upon Delacey v R, unreported; CCA SCt of WA; Library No 7687; 31 May 1989 and Warrell v Kay (1995) 83 A Crim R 493. This being so, whilst acknowledging a sentence of imprisonment to be a sentence of last resort, counsel for the respondent argued that matters personal to the appellant would carry less weight in this instance than might ordinarily be the case. In essence, it was argued that because sentences of imprisonment are generally called for in cases of assault upon police in the execution of their duty, no error on the part of the learned Magistrate could be demonstrated in the sentences pronounced.

15 Counsel for the respondent joined issue with the importance and/or effect of the condition of ADHD. It was argued that ADHD is not akin to diminished responsibility or any developmental disability and at best could only be an explanation for the appellant's conduct not an excuse for it. Reliance was placed upon Walsh v R, unreported; CCA SCt of WA; Library No 960471; 26 August 1996 and "Y" (A Child) v R, unreported; FCt SCt of WA; Library No 980402; 23 July 1998, but I should say that in each of those cases the crimes committed by the appellant were extremely serious, including eight armed robbery in the first and armed robbery, attempted robbery, deprivations of liberty and assault in the second. The seriousness of the crimes governed the ultimate disposition of the matter in each instance.

16 Counsel for the respondent argued that the learned Magistrate had properly taken into account the fact that there was no conclusive direct link between the condition of ADHD and the offences committed by the appellant, putting it that the condition of ADHD at its highest merely increased the risk of the appellant behaving in a way to which he might be predisposed for other reasons. It is true that Ms Cull in her report referred to appellant as being an individual with an anger profile. Such persons were said to be "quick tempered and readily expressed their angry feelings with minimal provocation. They tend to be frequently impulsive and lack anger control ...". This conclusion does support the view that there may have been other factors at play in the appellant's behaviour on the night in question. Ms Cull in her report spoke of the very strong possibility that the appellant had suffered from ADHD throughout his lifetime and that this condition might possibly have influenced his long term history of anti-social behaviour, but on the other hand she confirmed in a supplementary report that Dr Milne had in fact diagnosed the presence of the disorder. Nevertheless, it was open to the learned Magistrate to find that there remained some doubt as to whether the condition of ADHD was the sole cause of the appellant's behaviour on the night in question, and to the extent to which the respondent's submissions make that point, they are correct. On the other hand, the learned Magistrate appears to have been dismissive of the condition of ADHD, expressing the view that it would be "extraordinary" that the appellant had such a condition given his past history of employment as an engine driver, and stating that it did not in any way mitigate his abominable behaviour on the night in question. To this extent I consider the learned Magistrate was in error. The condition of ADHD was confirmed by specialist diagnosis, and whether it was the sole cause of the appellant's behaviour on the night in question or not, it was undoubtedly the case that if the appellant had behaved in the way he did even in part in consequence of the condition of ADHD, that was something which went in mitigation of punishment.

17 Counsel for the respondent argued that to the extent that the learned Magistrate may have overstated the appellant's involvement in a brawl on the night in question it was irrelevant to the disposition of the case, and it was pointed out that it was of some significance that the charge of possession of cannabis was committed whilst the appellant was on bail. However, the sentence of one month's imprisonment imposed for possession of cannabis indicates that the learned Magistrate did not consider this to weigh greatly in the ultimate disposition of the case.

18 The essential submission of the respondent was that the learned Magistrate was correct in declining to suspend the appellant's term of imprisonment, pointing out that the circumstances in which the sentence will be imposed were set out in R v GP (1997) 18 WAR 196 per Murray J at 234 as follows:

"... the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful."

19 In R v Liddington (supra), Steytler J (at 406) listed in the following terms the factors to be considered in deciding whether or not to impose a suspended sentence:

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the person deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at468); R v Kruger (at 221)); general deterrence (Causby (at 62)); factors personal to the offender including mitigating circumstances which while not doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1994) 61 SASR 589 at 592; cf R v Percy (at 72-73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234)."

20 In Stewart v Waghorn (supra) I took the view that in the circumstances of that case the learned Magistrate had erred in not suspending a sentence of imprisonment imposed for driving under suspension and for assaults upon police officers. In that case the learned Magistrate had sentenced the offender to imprisonment for one month in respect of each of several assaults upon police officers, indicating that they were less serious assaults than those which were the subject of this case. The appellant had in that case been diagnosed with the condition of ADHD subsequent to the commission of offences, but the learned Magistrate had erroneously taken the view that the appellant was aware of that problem prior to commission of the offences and had dismissed it from consideration in relation to the disposition of the case. Medical opinion was to the effect that the condition of ADHD was the explanation for the appellant's long history of anti-social behaviour and a prognosis was expressed that a jail sentence and incarceration could confidently be expected to be inappropriate and medically disastrous. Having regard to those facts, I was of the view that the learned Magistrate should have suspended terms of imprisonment imposed upon the appellant and should not have called in a suspended term of imprisonment. The case is, I think, distinguishable from the present case because of the difference in medical opinion, the learned Magistrate's complete misunderstanding when it was that ADHD was diagnosed and the circumstances of commission of the offences.

21 Given the seriousness of the offences committed by the appellant in this case, and the undoubted fact that authority points to the necessity for a custodial term for such serious assaults upon police officers in the execution of their duty, I am not persuaded that the learned Magistrate was in error in declining to suspend the term of imprisonment imposed upon the appellant. As Steytler J pointed out in R v Liddington (supra) at 406, when considering whether or not a sentence of imprisonment should be suspended, it is not only the prospect of rehabilitation of the offender which should be considered, but (importantly for this case) the perceived seriousness and intrinsic character of the particular offence, general deterrence, and the need to demonstrate the condemnation of the community for offences of a particular kind will be important factors to weigh in the balance. The learned Magistrate clearly considered those factors to be important in the present case and (by implication) outweighing considerations of rehabilitation of the offender. As counsel for the respondent rightly pointed out, the test is not whether I might have considered it appropriate to suspend the sentences of imprisonment imposed upon the appellant, but whether the learned Magistrate can be said to have erred in declining to do so.

22 That said, it is clear to me that the learned Magistrate over-emphasised in this case the questions of deterrence and the intrinsic nature of the offences, to the expense of factors personal to the appellant which in my view should have been given greater weight. Although the learned Magistrate made reference to the submissions of counsel for the appellant in relation to remorse and plea of guilty, his Worship does not appear to have given any specific discount on the sentence for those factors, and, as I have already pointed out, took the view that the condition of ADHD did not in any way mitigate the appellant's behaviour on the night in question. That in my view was a clear error in the sentencing process. The sentence of 28 months' imprisonment, made up as 10 months' imprisonment for the assault which involved headbutting and 18 months' imprisonment for the assault which involved spitting into the policewoman's mouth (the other sentences being concurrent) represented in my view an excessive disposition of the matter. Although the offences committed by the appellant were very serious and offences against police officers in the execution of their duty call ordinarily call for sentences of imprisonment, the behaviour of the appellant on the night in question should be viewed as a course of conduct which involved several offences, serious though they were. For that course of conduct I consider an effective sentence of 28 months' imprisonment to have been an excessive disposition of the case. Without making any concessions, counsel for the respondent acknowledged that the sentence was a "stiff one" and it certainly was. In my view, having regard to the pleas of guilty, the clear indications of remorse and the diagnosis of ADHD which went at least some way to explaining why it was that the appellant had behaved as he did, the appropriate sentences would in all the circumstances have been as follows:

23 In the result I consider that an effective sentence of 15 months, being just over half of what was in fact imposed, would have been an appropriate disposition of the matter. The learned Magistrate did, in my view, act upon wrong principles and in any event the sentence was in my view unreasonable and unjust, with the result that it is appropriate to interfere with it: House v R [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505.

24 I would allow the appeal, and set aside the sentences imposed by the learned Magistrate on charges PE5119/99 and NO119/99, substituting in lieu thereof sentences of 9 months and 6 months' imprisonment respectively, to be served cumulatively. Because the appellant has spent approximately two months in custody, there should be an allowance of 3 months pursuant to the provisions of s 87 of the Sentencing Act, with the result that I will reduce the sentence on charge PE5119/99 to 6 months to take account of that fact. The sentences on NO119/99 and PE5119/99 will therefore be 6 months in each case to be served cumulatively. The other sentences will stand and will be served concurrently. The effective sentence of 12 months' imprisonment will take effect from this day and the appellant will be eligible for parole.