1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the judgment of McLure JA and I agree with her Honour's reasoning and conclusions. I would make the following additional observations.

2 Intoxication, whether by alcohol or drugs may explain an offence, but ordinarily will not mitigate penalty, save where the original addiction did not involve a free choice. An offender generally cannot expect a reduction in sentence because they committed the offence whilst intoxicated: R v Rosenberger (1994) 76 A Crim R 1.

3 Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 383; Douglas v The Queen (1995) 56 FCR 465, 470; Talbot v The Queen (1992) 34 FCR 100, 105 - 106; Hinchliffe v The Queen [2001] WASCA 15). Intoxication or addiction will be weighed against the other relevant mitigating and aggravating circumstances, such as danger to the community and prospects of rehabilitation (Channon v The Queen (1978) 20 ALR 1, per Brennan J at 5 and Deane J at 21; Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465 at 476).

4 Circumstances which wholly or partly excuse the taking of alcohol or drugs, or the addiction, may go to mitigation insofar as they are properly seen to lessen the moral culpability of the offender (R v Redenbach (1991) 52 A Crim R 95, 99). Likewise, drug induced psychosis is not of itself a mitigating factor and so will not necessarily result in any mitigation in sentencing. The courts will evaluate moral culpability in such cases according to the offender's particular circumstances and the nature of the offence.

5 In Henry (supra), the court listed together six Crown appeals and one severity appeal before a Bench of five Judges, for consideration of the promulgation of a guideline judgment for sentencing for armed robbery. That aspect is not relevant here. However, one of the specific features considered by the court was the relevance of drug addiction to sentencing.

"[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict's decision to perform a criminal act was not 'a completely free choice'.

[197] In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

[198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.

[199] Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of 'well-being' is, relevantly, a moral choice.

[200] Thirdly, nothing in either the process of addiction or its neurobiological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.

[201] Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.

[202] There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.

[203] Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected.

[204] It was also submitted that the principle of general deterrence should be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction. In this submission, reliance was placed on the often expressed doubts about the direct effect on potential offenders of increases in penalties imposed. Particular reliance was placed on the driven nature of drug addicts, many of whom engage in high risk activity, like exchange of needles notwithstanding the risk of HIV infection. This kind of submission has been made many times before and I have quoted a few instances above. It has always been rejected. This Court should do so again.

[205] General deterrence always operates at the margin. Some people will continue to engage in criminal conduct notwithstanding the level of, or increases in the level of, the penalties they suffer. However, some people will be deterred. It is not to the point that some addicts engage in high risk activities. It would be necessary to establish that all addicts do so. Neither the submissions, nor the materials in support, suggest anything of this character.

[206] I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. ... "

7 On the same point, Wood CJ at CL (with whose judgment Spigelman CJ also agreed) said (at [273]) that in his view the relevant principles are:

"(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 398 (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips [sic] of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the 'cross-roads': R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394."

8 Although in Henry the foregoing remarks were made in the context of armed robbery offences, they are apposite to offences generally.

9 Like McLure JA, I am not persuaded that in this case the appellant's drug-induced psychotic state was causally connected with non-drug-related depression.

10 His drug use was voluntary, beginning with cannabis, then moving on to LSD and to amphetamines. His use of amphetamines increased after his separation from his partner. He described his early substance abuse as being on a "social" basis. He started using amphetamines when he was 21; he said he would initially use amphetamines only on Saturdays, but that progressed to Fridays and Saturdays and gradually to every day.

11 The appellant told the psychologist that the amphetamine use had helped him whilst he had been working night shifts, and it had enabled him to "make up for work after a big weekend" to "still have a life during the day". He reported that his level of use had increased dramatically following his separation from his partner, as it had helped him to "stop thinking about it". He also expressed the belief that if he had not been sent to gaol and "been given the chance to dry out" he would most likely still be engaging in substance misuse.

12 He had been using extremely high doses of amphetamine for approximately 16 or 17 consecutive days preceding the offences.

13 I note the psychologist's opinion that the appellant's experience of severe depression (which as McLure JA points out, was not shown to be a diagnosed clinical depression) resulting from the breakdown of his relationship, and his feelings of isolation, appear to have been combined with, and exacerbated an existing amphetamine use problem, resulting in the occurrence of an amphetamine induced psychotic episode and precipitating the offending behaviour.

14 There is nothing in the fact or circumstances of the appellant's drug-induced psychosis which lessens his moral culpability for the offences and accordingly the fact that the offences were committed whilst he was in that state is not mitigatory. Indeed, insofar as it indicates a tendency, in that condition, to serious and unprovoked acts of violence, it adds to the gravity of the offences. I understand the reference by McLure JA to the exacerbation of fear and trauma for a victim confronted by a drug-crazed or affected offender, to reflect this.

15 Nonetheless, there were very significant features going to mitigation in this case. They have been adverted to by McLure JA and I do not repeat them.

16 Although the offences here were committed whilst the appellant was in a state of drug-induced psychosis, there is no suggestion he suffered, or suffers, from a psychotic condition otherwise. He therefore does not fall to be dealt with as an offender whose mental condition is continuing and so may be a relevant factor in sentencing in relation to the application of the principles of general deterrence or rehabilitation, or any additional hardship beyond the norm which imprisonment may involve for him (cf R v Engert (1995) 84 A Crim R 67, 70 - 71).

17 I agree with the re-sentencing disposition reached by McLure JA for the reasons her Honour gives.

18 MCLURE JA: On 9 May 2005 the appellant was convicted on his own plea of guilty of two counts of aggravated robbery under s 392(d) of the Criminal Code, one count of criminal damage under s 444 of the Criminal Code, and, on a s 32 Notice, one count of assault under s313(1)(d) of the Criminal Code, one count of damage under s 80(1) of the Police Act 1892 (WA) and one count of reckless driving under s 60(1) of the Road Traffic Act 1974 (WA). He was sentenced by Yeats DCJ as follows:

Reckless driving - 6 months and 6 months licence disqualification.

19 The learned sentencing Judge ordered that all the sentences be served concurrently. Accordingly, the appellant received a total effective sentence of 4 years. He appeals against that sentence. Three grounds of appeal are advanced. They are that:

1. the total effective sentence is manifestly excessive;

2. the sentencing Judge erred in concluding the offences were so serious that only terms of imprisonment to be immediately served were appropriate; and

3. the trial Judge erred in not reducing the sentences imposed by one-third under cl 2(1) of Sch 1 of the Sentencing Act 1995 (WA).

20 An appellate court is only entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning. Alternatively, error may be inferred if the result is unreasonable or unjust, otherwise described as being manifestly excessive. A sentence may be manifestly excessive because the wrong type of sentence has been imposed, for example, custodial rather than non-custodial, or because the sentence imposed is manifestly too long: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324 - 325. In this case, the appellant claims a suspended sentence should have been imposed, alternatively the total effective sentence was too long. Ground 2 does not assert an error that is different from ground 1.

21 Shortly after 10 am on Friday 11 February 2005, the appellant bogged his motor vehicle. He walked a short distance and came across a prime mover (a milk truck) parked in the driveway of a Bunbury home. The engine was running to build up air pressure. The appellant got into the driver's seat of the prime mover to take the vehicle. Upon realising the appellant was taking his vehicle, the complainant opened the driver's door and attempted to remove the keys. The appellant threatened to kill the complainant if he did not let go and kicked out at him, striking him on the head and causing him to fall to the ground. The complainant sustained minor swelling and bruising to his mouth. They are the facts giving rise to count 1 in the indictment.

22 While driving the prime mover on Bussell Highway, the appellant attempted to negotiate a right-hand turn onto a bush track. In doing so he lost control of the prime mover and drove across a median strip and in front of northbound traffic, narrowly missing oncoming vehicles. They are the facts of the reckless driving charge. The prime mover came to rest in soft sand and became bogged.

23 After the appellant became bogged in the prime mover, the driver of a Toyota Camry travelling north on Bussell Highway, parked his vehicle, leaving the vehicle running, with the intention of assisting the driver of the prime mover. The appellant then emerged from the prime mover, ran to the vehicle and got into the driver's seat. Upon realising what was happening, the second complainant ran to his vehicle and entered through the front passenger side to recover his wallet. As the complainant was retrieving his wallet, the appellant punched him twice to the top of his head and threatened to kill him if he did not get out of the vehicle. The complainant got out of the vehicle with his wallet and the appellant drove off. These are the facts of count 2 in the indictment.

24 Thereafter the appellant drove the vehicle until he turned into a farming property and deliberately drove the vehicle through several wire fences with wooden posts before abandoning it. The estimated damage to the vehicle was $10,000. These are the facts giving rise to the criminal damage charge on the indictment.

25 The events giving rise to the remaining offences the subject of the s 32 Notice led up to the appellant bogging his own vehicle. Shortly before 10 am on 11 February, another complainant was parked on a grass verge in front of the Army Reserve Headquarters completing enrolment forms. The appellant pulled alongside the complainant's car. Both men got out of their cars and met between the two vehicles. The appellant approached the complainant in an aggressive manner and, without provocation, struck the complainant to the left elbow with a length of black PVC pipe. The blow knocked the complainant backwards and caused minor soft tissue injury. They are the facts relating to the assault. After assaulting the complainant, the appellant went to the left side of the complainant's vehicle and struck the bonnet with a length of pipe causing a dent. That is the damage charge the subject of the s 32 Notice.

26 The appellant cooperated with, and made full admissions to, police when interviewed. He made a fast track plea of guilty to the offences.

27 The offences occurred whilst the appellant was in an amphetamine-induced psychotic state. His counsel described his conduct as irrational and bizarre. The appellant explained that he thought the complainant whom he assaulted was somebody who had "caused him grief in the past" and that that complainant, with other people, were out to kill him.

28 The appellant was aged 28 at the time of the offences. Save for a conviction in 1998 for possession of cannabis with intent to sell or supply, for which he received a 2-year intensive supervision order, he had no other relevant prior convictions.

29 The appellant had been in a de facto relationship with a woman with whom he had a daughter who was aged 3 at the time of sentencing. His de facto partner left him in about 2003, taking his daughter with her.

30 As appears from a Court-ordered psychological report, the appellant revealed an extensive history of substance abuse. He started smoking cannabis at about 15, using LSD shortly thereafter and then amphetamines at around the age of 21. He started using amphetamines only on Saturdays, which progressed to Fridays and Saturdays and gradually every day. He reported that his level of amphetamine use increased dramatically following his separation from his partner. Immediately prior to the offences, he had been using up to four grams per day.

31 The appellant was in custody for 49 days from the date of the offences after which he was released on bail. He reported that he had taken that opportunity to cease his substance use and had requested information about rehabilitation programmes. Urine analysis results supported his claim that he had refrained from substance use.

32 The pre-sentence report makes reference to depression. It states:

"Upon the breakdown of his relationship ... [the appellant] suffered depression. He consulted a doctor and was given antidepressants, but reports that their effect was entirely negative. At this time he began to use amphetamines, which he states did assist him to cope with the depression. They quickly developed a habit that took a control of his life."

33 It is clear, however, from what the appellant disclosed to the writer of the psychological report that he commenced using amphetamines prior to his separation from his partner although his level of use increased thereafter.

34 The appellant's counsel pressed the sentencing Judge to impose a suspended sentence. The sentencing Judge rejected the submission. She said:

" ... I consider particularly the first and second [offences], the stealing with actual violence and threats to kill, to be so serious that it is inappropriate for me to consider suspending any sentence ...

I am unable to avoid that, and I regret it in some ways for your sake, but the Court is required to do its duty in this society, and I consider these offences just too serious. I am going to give you the benefit of your early plea of guilty, and the fact of your genuine remorse, by reducing the penalties I impose quite dramatically, ...

For the stealing the prime mover, involving the kicking the owner, pushing him and kicking him to the ground and threatening to kill him, I normally would have started with a sentence in excess of 6 years' imprisonment because of the personal violence involved, but I am going to order that you be imprisoned for 4 years for that offence."

35 The trial Judge then proceeded to sentence for the remaining offences and continued:

"Because of your remorse, and all the matters I have mentioned, I am prepared to order, despite it's a wrong sentencing principle given the number of separate victims of your offending, but in the circumstances I have decided to order that all of these sentences be served concurrently with each other, so that you have finished what is a series of extremely serious offences with a sentence of 4 years' imprisonment."

36 The sentencing Judge does not expressly refer to or expressly apply cl 2(1) of Schedule 1 of the Sentencing Act 1995 (WA) ("the transitional provision") which was inserted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Amendment Act"). Under the transitional provision a court sentencing an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the term that would have been imposed under the law as it stood prior to the Amendment Act ("old provisions").

37 As stated by Steytler P in Worthington v State of Western Australian [2005] WASCA 72 at [28], a failure to make express reference to the transitional provision is not itself an error or (necessarily) indicative of error. However, it is preferable for a sentencing judge to do so. It is preferable because it ensures that the sentencing Judge is consciously alert to the fact that the legislative intention was to ensure that the changes effected by the Amendment Act did not themselves result in an increase in the time offenders spent in prison. The risk of unconscious (and worse, undetectable) error, is eliminated by expressly referring to what must be done as a matter of course.

38 In this case there is an additional indication in the reasons that the sentencing Judge failed to apply the transitional provision. She identified as the starting point for the offence of aggravated robbery of the prime mover a sentence in excess of 6 years' imprisonment. That equates to a starting point of in excess of 9 years under the old provisions. Under the old provisions, the range of sentences commonly imposed for the more serious offence of armed robbery was 6 to 9 years' imprisonment: Miles v The Queen (1997) 17 WAR 518. The circumstances of the offences of aggravated robbery in this case fall far short of the type of conduct that justifies a starting point at the high end of the range (ie, 6 years under the transitional provisions). The starting point of 6 years was reduced to 4 years having regard to the appellant's plea of guilty and other mitigating factors. It might be said this simply demonstrates that the sentence was manifestly excessive. Applying the test in R v Chan (1989) 38 A Crim R 337 at 342, I agree it is manifestly excessive. However, in the absence of any express reference to, or express application of, the transitional provision in the reasons, I infer that the sentence is manifestly excessive because of the failure to reduce the sentence by one-third as mandated by the legislature. That being the case, I am satisfied the same error vitiated the entire sentencing process. As the sentencing Judge erred in the exercise of her discretion, it is open to this Court to exercise its own sentencing discretion in substitution as it has the necessary materials to do so: House v The Queen [1936] HCA 40; (1936) 55 CLR 499 at 505.

39 In view of the success of ground 3, it is unnecessary to determine whether the sentencing Judge erred in failing to suspend the term of imprisonment or in imposing a total effective sentence that is outside the range of a sound discretionary judgment. However, the appellant's submissions on those questions are relevant in the re-sentencing process.

40 There are a number of mitigating factors in this case to which significant weight should be given. First is the appellant's fast track plea of guilty. Second is his prompt and complete cooperation with police which, together with the early plea of guilty, demonstrates his remorse. Regard must also be had to his limited criminal record and his efforts at rehabilitation. As to the latter, I have had regard to the steps the appellant took in the period between when he was taken into custody and when he was sentenced (some 3 months). Of course 3 months in the context of a nine year history of drug use and an admitted drug addiction suggests that the consideration of personal deterrence is not irrelevant.

41 At the hearing of the appeal, the appellant contended that the cause and fact of his psychotic state at the time he committed the offences were somehow mitigatory. Where a condition is self-induced, it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition: Hinchliffe v The Queen [2001] WASCA 15 at [24] citing R v Redenbach (1991) 52 A Crim R 95 at 99. On the other hand, as noted by the Court in Redenbach, where the Court is satisfied that there is something which wholly or partly excuses the taking of drink or drugs, it will treat that circumstance as going to mitigation. It gave as an example drug addiction resulting from the medicinal use of prescription drugs. In this case the appellant's counsel suggested that his client's amphetamine-induced psychotic state was causally linked to depression resulting from his separation from his partner and daughter.

42 The appellant did not tender any medical evidence that he was suffering from a mental disorder as distinct from being dejected or despondent. The fact that a doctor is said to have prescribed antidepressants takes the matter little further. In any event, there is a well-known link between the long-term use of drugs and mental disorders. I am not persuaded that the appellant's drug induced psychotic state was causally connected with any non drug-related depression. Thus, I do not regard the fact that the appellant acted in the course of a drug-induced psychotic state as mitigatory or lessening his moral culpability for the offences. From a victim's perspective, to be confronted by a drug crazed or affected offender would in ordinary circumstances exacerbate the fear and trauma of the event. Further, the significant incidence of such drug-related crime in this State requires that significant weight be given to general deterrence in the sentencing process.

43 Having regard to the seriousness of the offences of aggravated robbery and the serious circumstances of their commission including a threat to kill and actual violence, I am satisfied that a sentence of imprisonment is called for. The next question is whether the terms of imprisonment should be suspended. The power to suspend imprisonment given by s 76(2) of the Sentencing Act is not confined by reference wholly, mainly, or specially to the effect the suspension will have on the rehabilitation of a particular offender: Dinsdale at [18] per Gleeson CJ and Hayne J; [26] per Gaudron and Gummow JJ; and [84] per Kirby J. Rather, the same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. This means it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender, whether aggravating or mitigating, in deciding whether to suspend the term of imprisonment: Dinsdale at [26] per Gaudron and Gummow JJ; [85] per Kirby J.

44 Weighing all the factors to which I have previously referred, I am satisfied that the seriousness of the offences of aggravated robbery, the circumstances in which they were committed and the need for general deterrence means that the only appropriate sentence is a term of imprisonment to be immediately served.

45 For the aggravated robbery of the prime mover, I would impose a term of 4 years under the old provisions which is 2 years and 8 months

under the transitional provision. For the offence of aggravated robbery of the car, I would impose a sentence of 3 years reduced to 2 years and for the criminal damage offence, 18 months reduced to 12 months. On the s 32 Notice I would reduce the assault sentences from 10 months to 6 months but make no change to the sentence imposed for damage and reckless driving.

46 I am satisfied that all of the offences occurred as part of one multi-faceted course of criminal conduct to which the one transaction rule applies (see R v Faithfull [2004] WASCA 39 at [25] - [28]) and all of the sentences should be made concurrent. Thus, I would impose a total effective sentence of 2 years and 8 months.

47 In conclusion, I would uphold the appeal, set aside the sentences imposed by the sentencing Judge on each count in the indictment and for the assault conviction the subject of the s 32 Notice and impose terms of imprisonment of 2 years 8 months, 2 years, 12 months and 6 months respectively for those offences. I would order that those sentences be served concurrently with each other and with the sentences for the other offences the subject of the s 32 Notice. Thus, the total effective sentence is reduced from 4 years to 2 years and 8 months. The sentence is to commence on 21 March 2005. The appellant will remain eligible for parole.

48 PULLIN JA: I agree with the reasons and the orders proposed by McLure JA.

49 Section 34 of the Sentencing Act 1995 (WA) imposes upon a sentencing court the obligation to state in open court the minimum period that the offender, as a result of the sentence and the operation of the Sentencing Act 1995, will serve in custody in respect of the term, or, if more than one term is imposed, in respect of the aggregate of the terms.

50 The appellant will serve a minimum of 1 year 4 months in custody.

Legislation Amendment and Repeal Act 2003

Damiani v The State of Western Australia [2006] WASCA 47

At a glance

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Judgment (100 paragraphs)

Damiani v The State of Western Australia [2006] WASCA 47 (24 March 2006)

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