Citation : MR 834 of 2008, MR 835 of 2008, MR 836 of 2008, MR 852 of 2008, MR 853 of 2008, MR 854 of 2008, MR 855 of 2008, MR 936 of 2008, MR 937 of 2008, MR 938 of 2008, MR 943 of 2008, MR 202 of 2009, MR 203 of 2009, MR 204 of 2009, MR 205 of 2009, MR 233 of 2009, MR 234 of 2009, MR 231 of 2009, MR 232 of 2009, BU 1988 of 2009

Criminal law - Appeal against sentence - Driving under suspension - Assault - Burglary - Whether sentence of imprisonment appropriate where mental illness - Whether total sentence excessive

First Respondent : Director of Public Prosecutions (WA)

Second Respondent : Director of Public Prosecutions (WA)

Third Respondent : Director of Public Prosecutions (WA)

Fourth Respondent : Director of Public Prosecutions (WA)

Fifth Respondent : Director of Public Prosecutions (WA)

Sixth Respondent : Director of Public Prosecutions (WA)

Seventh Respondent : Director of Public Prosecutions (WA)

Anderson v Heath [2005] WASC 253

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Moody v French (2008) 36 WAR 393; [2008] WASCA 67

Pickett v The State of Western Australia [2004] WASCA 291

Rossiter v Francisty [2005] WASC 270

Thompson v The Queen [2005] WASCA 223

Woods v The Queen (1994) 14 WAR 341

1 HALL J: The appellant appeals against the sentence imposed upon her in the Bunbury Magistrates Court on 4 May 2009. The offences for which she was sentenced included some for which the appellant had previously been dealt with and had received a community based order. The commission of further offences resulted in the breach of that order and, accordingly, the appellant fell to be resentenced in respect of those earlier offences.

2 The following table sets out the offences dealt with on 4 May 2009, the dates on which the offences were committed and the sentences imposed:

6 months imprisonment and driver's licence disqualification 9 months cumulative

Driving a motor vehicle with a limb protruding from the vehicle

Driving a motor vehicle with a blood alcohol content exceeding .08g alcohol per 100ml of blood

$500 fine and driver's licence disqualification 6 months

6 months imprisonment cumulative and driver's licence disqualification for 9 months

Drive a motor vehicle with 0.05g alcohol per 100ml blood

$250 fine and driver's licence disqualification for 3 months

6 months imprisonment cumulative and driver's licence disqualification for 9 months

6 months imprisonment cumulative and driver's licence disqualification for 9 months

6 months imprisonment and driver's licence disqualification for 9 months

6 months imprisonment and driver's licence disqualification for 9 months

Driving a vehicle exceeding .05g alcohol per 100ml blood

$350 Fine and driver's licence disqualification for 3 months

6 months imprisonment and driver's licence disqualification for 9 months

3 Although sentences of imprisonment were imposed in respect of a number of the charges, they were intended to be concurrent other than in respect of those numbered 13, 15 and 16. In respect of those three charges the sentences were ordered to be served cumulatively on each other.

4 The total effective sentence imposed was one of 18 months' imprisonment to be served immediately. The appellant was made eligible for parole.

1. The Learned Magistrate erred in imposing sentences of imprisonment to be immediately served.

Particulars

(a) The Learned Magistrate erred in placing too much emphasis on the importance of general and specific deterrence, despite finding the Appellant's deprived background, substance abuse problems, and mental health issues were contributing factors to the Appellant's offending.

(b) The Appellant's need for a personally tailored and highly intensive program to address the Appellant's substance abuse and mental health problems as detailed in the pre-sentence and psychological reports.

(c) The Appellant had not been sentenced to a term of immediate imprisonment or suspended imprisonment before.

(d) The Appellant had a limited criminal record comprising of mainly minor offences and driving offences.

(e) The Learned Magistrate did not sufficiently take into account the Appellant's youth.

(f) The Learned Magistrate did not sufficiently take into account the Appellant's mother who was terminally ill in hospital when the Appellant was sentenced.

(g) The Appellant's early pleas of guilty.

GROUND 2

1. The aggregate sentence of 18 months imprisonment imposed by the Learned Magistrate was disproportionate to the overall criminality involved in the offences committed by the Appellant when viewed in their entirety and in regard to all the circumstances of the case including those personal to the Appellant.

Particulars

(a) The Appellant had not been sentenced to a term of immediate or suspended imprisonment before.

(b) The Learned Magistrate did not sufficiently take into account the Appellant's youth.

(c) The Appellant's criminal record is limited and comprises mainly minor offences and driving offences.

(d) The Appellant's early pleas of guilty.

(e) The Appellant's deprived childhood, substance abuse problems and mental health issues contributing to the Appellant's offending behaviour.

(f) The Appellant's need for a personally tailored and highly intensive program to address her substance abuse and mental health problems as detailed in the pre sentence and psychological reports.

(g) The cumulation of 3 sentences of 6 months imprisonment respectively, for 3 offences of driving under suspension, did not sufficiently reflect the Appellant only had 1 prior conviction for driving under suspension, and was too severe when having regard to the range of sentences customarily imposed for driving under suspension offences.

GROUND 3

1. The Learned Magistrate erred in not reducing the sentence of 18 months imprisonment to take into account the time the Appellant had spent in custody prior to being sentenced.

6 The offences occurred on various dates over a four month period.

7 The first offence occurred on 18 November 2008 when the appellant was driving a motor vehicle in Margaret River when she saw a woman from whom she and her brother had purchased a car. At this time the appellant did not have a valid driver's licence, indeed she had never held a licence and, in any event, was the subject of a court ordered disqualification. The purchased car had, it was claimed, broken down and the appellant was aggrieved by this. Later that afternoon the appellant met the woman and there was an altercation that progressed to physical violence. The appellant slapped and punched the woman to the face with a closed fist causing a nose bleed. These events resulted in the first three charges in the table.

8 On 28 November 2008 the appellant again drove a motor vehicle, this time whilst under the influence of alcohol. The transcript and materials provided to the court do not reveal the facts relating to these events but they resulted in the next three charges (items 4 - 6) of the table. On the same day the appellant committed an offence of aggravated assault. This assault was committed upon the appellant's mother and involved a striking to the head causing ringing in the mother's ear. The respondents' submissions state that this assault occurred as a result of an argument about the appellant driving without a licence. I note that in submissions to the magistrate on behalf of the appellant, it was suggested that the argument was in regard to whether the appellant should go to get food. Nothing turns on this possible inconsistency.

9 On 1 December 2008 the appellant failed to attend court and was, accordingly, charged with a breach of her bail undertaking.

10 On 17 December 2008 the appellant went to the home of her grandfather and obtained entry by smashing a window. Once inside, the appellant stole a bottle of wine. In submissions before the magistrate it was said that this offending was committed because the appellant was upset that her grandfather had not responded to a request from her to provide a plane ticket for her to return from Sydney when she had travelled there and fallen on hard times.

11 The day following the burglary, on 18 December 2008, police attended at the appellant's home and she was found in possession of 12 cannabis plants and a smoking implement. She readily admitted that the plants and utensil were hers and she was charged with the offences that appear at items 11 and 12 of the table.

12 In respect of the offences numbered 1 - 12, the appellant appeared in the Magistrates Court in Margaret River on 2 February 2009 and was sentenced in respect to each charge to a community based order with 18 months supervision and 40 hours community work. A 9 month motor driver's licence disqualification was also imposed for the driving under suspension charge. However, prior to appearing in court on these charges, the appellant had committed further offences.

13 On 6 January 2009 the appellant was charged with again driving under suspension and with driving a motor vehicle under the influence of alcohol. These offences are items 13 and 14 of the table. She was again charged with driving under suspension on 29 January 2009, again on 1 February 2009.

14 Following the appellant's appearance and sentencing on 2 February 2009 she committed further offences. On 27 February 2009 she was again charged with driving under suspension. She was charged with street drinking on 5 March 2009 and again with driving under suspension on 6 March 2009. On the same day, 6 March 2009, she was again charged with driving under the influence of alcohol. Finally, on 19 March 2009 she was again charged with driving under suspension.

15 The appellant entered pleas of guilty to the further offences at the Bunbury Magistrates Court on 4 May 2009. The new offences resulted in a breach of the previous community based order imposed on 2 February 2009. Accordingly, the appellant was resentenced for the old offences in addition to the new offences before the court. As is apparent, the offences included seven of driving under suspension.

16 The appellant's criminal record prior to 2 February 2009 reveals seven offences of driving a vehicle whilst not having a current driver's licence, for each of which she received fines of $100 and 3 months disqualification from holding a licence. She also had one previous offence of driving under the influence of alcohol (in 2005) for which she received a $600 fine and a disqualification from holding a licence of 4 months. There was one previous dishonesty offence, stealing (in 2007), for which she was sentenced to a community based order of 6 months. The only other offence was one of possessing a utensil in connection with the manufacture of a prohibited drug in 2008 for which she received a spent conviction order and a fine of $200.

17 In sentencing the appellant on 4 May 2009, the learned magistrate noted the dangers involved in driving under the influence of alcohol and without an appropriate driver's licence and then stated:

What is of course of grave concern, is that you persist in driving a motor vehicle in a conscious decision by you, in contradistinction or contrary to the orders of court not to do so. So to that extent you are effectively thumbing your nose at the laws of the community and the orders of courts.

It is in respect to that if you persist; that the court often determines that the only disposition is the ultimate disposition available to the law and that is a custodial sentence. So far as you are concerned, it would seem that your persistence alone, despite an acknowledgment - on the scale of things, it has happened in a very short space of time and it is certainly not the most serious case of persistence that I have seen but in terms of the shortness of the period, it is of grave concern (ts 9).

18 His Honour then referred to the personal circumstances of the appellant including her troubled family background and dependence upon alcohol and drugs. He then said:

It is certainly the case that as a result of those deprivations that you have very significant health, including mental health, issues which give rise to perhaps the incapacity of you to make rational reasoned decisions; and no doubt those decisions and the consequences are founded upon the deprivation of your background. I note in the report that in the present circumstances such is the complexity of your mental health issues, that there is some significant doubt that within immediate resources of the country, that it is unable, I would have thought, to provide you the resources required (ts 10).

19 The learned magistrate noted that the appellant had been placed on a community based order on 2 February 2009 and had only had a relatively short time to benefit from any supervision and treatment in the community that might have flowed from that. His Honour then said:

Notwithstanding the weight of the submission of your counsel today as to the disposition that might be offered, it is my present view, that certainly so far as you are concerned, that of primary importance in the disposition today is the considerations of the protection of the community generally and also a deterrence to those persons who may persistently thumb their nose at the law (ts 10).

Ground 1 - Did the learned magistrate err in imposing a sentence of imprisonment to be immediately served?

20 Each of the matters particularised in this ground were raised before the learned magistrate and were relevant to the exercise of his sentencing discretion. Some, but not all of them, were specifically referred to in his sentencing remarks. In particular the learned magistrate did refer to the appellant's mental health issues. It cannot be assumed that because other matters were not referred to they were not considered by the learned magistrate: Pickett v The State of Western Australia [2004] WASCA 291 [10] (McLure JA).

21 In submissions on behalf of the appellant it was asserted that because of her mental ill health, deterrence was a factor that should have been accorded less weight. In this regard reliance was placed on what Steytler P said in Thompson v The Queen [2005] WASCA 223 [52] - [53]:

It is settled that serious psychiatric illness not amounting to insanity is relevant to sentencing. In R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400, Charles and Callaway JJA and Vincent AJA said that this was so in at least the following five ways:

'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 a 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 pursuing 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.'

Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40].

22 There are several difficulties with applying those principles to the facts of this case. Firstly, whilst mental health issues formed part of the personal circumstances in which the offending occurred, the explanations advanced in mitigation, particularly for the driving under suspension charges, did not rely on mental ill health. For example, the driving under suspension on 6 January 2009 was said to have occurred due to concern on the part of the appellant about the welfare of a child of a friend. The friend was said to have telephoned from Sydney and asked the appellant to see if her son was alright because the friend had not been able to speak with him. The driving under suspension on 29 January 2009 was said to have occurred because the appellant needed pain relief from a pharmacy for a toothache. The driving under suspension on 1 February 2009 was said to have occurred because the appellant had 'basically gone to purchase takeaway food for herself and her mother and other people living at the house'. Other occasions were also explained as arising from a need to drive to get food.

23 Furthermore, in mitigation before the magistrate, defence counsel referred to 'quite severe depression' and a failure to properly develop the capacity to manage as an adult. It was said that a failure to cope resulted in 'self-medication' with alcohol and drugs. However, it was not submitted that any mental illness was a significant and direct causative factor in the commission of the offences. To the contrary, it was submitted that she had 'shown that she can stay away from serious trouble, apart from driving, through her background in Margaret River'.

24 The second difficulty was that there was no clear identification of the nature of the appellant's psychiatric condition. A psychologist's report, based in part on very limited contact with the appellant, provided some indications of depression and impulsiveness. The psychologist concluded that the appellant's 'offending behaviour is driven by susceptibility to the influence of others due to low self-esteem, major mental health problems and poor moral development; disinhibition as a result of medication and substance use; impulsivity, immaturity and poor judgment'. The psychologist also stated that the appellant was 'likely to continue to reoffend in the future if she does not access comprehensive treatment for her mental health challenges for which she is using drugs to avoid distress and to self-soothe. She will be susceptible to relapse into drug use if she does not develop better emotional regulation, and increase her self-esteem and coping skills'. In the psychologist's view, 'The optimum environment for her is one of high structure, but with a skilled program encouraging her to develop self management skills and coping strategies'. The most that could be drawn from this is that the appellant had weakness of character and poor judgment, but not that she lacked understanding or responsibility for her actions.

25 The underlying reason why mental health may make deterrence a less significant factor in sentencing is that it counters the assumption that an offender has made a rational decision to engage in the offending conduct. However, neither the psychologist's report nor the pre-sentence report could support a conclusion that a diagnosed mental health condition had been such a significant causative factor in the commission of any of the offences that the appellant could not be held fully responsible for her actions. To the contrary, the pre-sentence report referred to 'current lifestyle choices' and the psychologist's report referred to the need to make the appellant 'highly accountable in relation to lapsing into substance use'.

26 The learned magistrate's conclusion that the appellant had engaged in a persistent course of conduct and had made a conscious decision to drive when she knew she was not lawfully authorised to do so, was consistent with the information available. He specifically referred to mental health as a matter he had taken into account. The existence of some form of depression and impulsiveness did not, however, necessarily lead to a conclusion that a deterrent sentence was inappropriate. As Steytler P said in Thompson:

[T]he sad truth is that problems of this kind, and even depression, are shared by many others who commit criminal offences. Consequently, while some allowance should be made for these factors, they are, on their own, capable of producing only a relatively modest reduction in the sentence which would otherwise be imposed [73].

27 In my view, it was open to the magistrate to form the view that there was an element of persistence about the offending conduct that called for a sentence that would have both personal and general deterrent effect. I do not accept that the magistrate failed to take personal factors into account or did not accord them adequate weight.

28 It was also submitted on behalf of the appellant in respect of this ground that as at 4 May 2009 the appellant had only one prior conviction for driving under suspension. Whilst this is true, it neglects the fact that between 6 January 2009 and 19 March 2009 the appellant committed six offences of driving whilst under suspension for which she was to be dealt with on 4 May 2009. To say that when she came before the court on 4 May 2009 she had only one prior conviction for this type of offence does not adequately reflect the deliberate and repeated nature of her conduct.

29 It is not suggested that the sentences imposed in respect of each offence are not within the appropriate range. Rather, the argument on this ground is that the sentences should have been suspended. There was no specific reference to a suspended sentence, but it does not follow that the magistrate failed to consider other possible options before imposing the sentence he did. Indeed, his remarks indicate that he was conscious that a sentence of immediate imprisonment was one that ought only be imposed if all other possible options were considered inappropriate. I do not accept that the learned magistrate erred by imposing sentences to be served. This ground is not, therefore, made out.

Ground 2 - Was the aggregate of 18 months excessive?

30 It is important to remember that the learned magistrate was faced here with a range of offending conduct, not simply a series of offences of driving whilst suspended. The aggregate sentence was one that had to bear a proportional relationship to the overall criminal conduct engaged in. That included two assaults, albeit of a comparatively minor nature, and a burglary.

31 Nevertheless, in imposing the sentences of imprisonment that he did, the learned magistrate appears to have considered that the most egregious conduct was the repeated driving whilst under suspension.

32 In Rossiter v Francisty [2005] WASC 270, McKechnie J relied upon a table prepared by counsel in respect of the offence of driving whilst disqualified. That table revealed that in most cases the offence attracted sentences of 2 - 6 months' imprisonment for persistent offending. However, there was a penalty for 9 months' imprisonment in one case prior to the enactment of the sentencing transitional provisions (which required, at that time, a reduction in sentence of one-third). There were also two sentences on the table where offenders had been sentenced after the transitional provisions resulting in sentences of 6 months and 9 months respectively (the last such case being Mason v Morrison [2004] WASCA 181).

33 In Rossiter McKechnie J allowed the appeal and reduced the total effective sentence of 14 months' imprisonment for three offences of driving under suspension (whilst subject to a suspended period of imprisonment) to one of 8 months' imprisonment.

34 In Anderson v Heath [2005] WASC 253 the appellant was initially sentenced to 16 months in respect of three charges for driving whilst under suspension. The appellant had seven prior convictions for driving under suspension. On appeal the sentence was reduced to a total effective sentence of 7 months.

35 In McDonald v White [2007] WASCA 213 the appellant had been sentenced by a magistrate to 9 months' imprisonment for one count of driving under suspension. The appellant in that case had 11 prior convictions and had never previously been sentenced to imprisonment. She was also convicted of driving whilst under the influence of alcohol and speeding. She received a total 15 months' imprisonment for driving under suspension, reckless driving and unlawful damage. The Court of Appeal took into account the appellant's personal circumstances and determined that a sentence of 5 months' imprisonment was an appropriate penalty for her offence of driving whilst disqualified.

36 In Moody v French (2008) 36 WAR 393; [2008] WASCA 67 the appellant was sentenced by a magistrate to 9 months' imprisonment on each of two counts of driving under suspension. The sentences were ordered to be served concurrently but she also received a 12 month sentence to be served cumulatively for driving under the influence of alcohol. The total effective sentence was therefore one of 21 months' imprisonment. The Court of Appeal determined that the aggregate sentence offended the totality rule and that the individual sentence imposed for driving under the influence was too high. The court reduced the sentence for that offence to one of 10 months' imprisonment. However, the sentence of 9 months' imprisonment for the offences of driving whilst under suspension was not disturbed.

37 On the basis of these cases it is clear that sentences of 6 months' imprisonment in respect of each of the driving under suspension charges are not in themselves excessive. The issue is whether in making those sentences cumulative the final sentence was one that was disproportionate to the totality of the offending conduct.

38 In Moody v French [65] it was pointed out that one of the limbs of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally (see also Woods v The Queen (1994) 14 WAR 341).

39 In my view, a number of factors would suggest that the total effective sentence of 18 months was too high in the circumstances of this case. The offences that were before the court for sentencing on 4 May 2009, occurred in a four month period between 18 November 2008 and 19 March 2009. Prior to that period the appellant had a comparatively minor record. She was aged 22 at the time she came to be sentenced and had never been imprisoned before. The four month period in which this offending had occurred appears to be one in which the appellant had encountered increasing difficulties with alcohol. It is also apparent that she had a dysfunctional relationship with her family and was susceptible to bad influences.

40 Whilst it is very difficult to draw comparisons between the overall conduct in this case and the other cases that have been referred to, it is my view that a total effective sentence of 18 months was excessive. Taking into account all of the relevant factors, the appropriate sentence was one of 12 months' imprisonment and this could be achieved by making the 6 months' imprisonment on charge MR 205/09 concurrent.

41 It was submitted that in imposing the sentences that he did the learned magistrate did not take into account the time the appellant had spent in custody in respect of these offences. At the hearing it became apparent that this ground was only pressed in respect of four days between 10 March 2009 and 13 March 2009. Whilst the appellant was subsequently remanded in custody on 23 March 2009, that time related to other charges for which the appellant has yet to be sentenced. A facsimile from the Department of Corrective Services dated 7 July 2009 was tendered on the hearing of the appeal and confirmed that the appellant was remanded in custody from 10 - 13 March 2009 on the charges the subject of this appeal.

42 Counsel for the respondents accepted that those four days should have been taken into account and the commencement date of the sentence backdated accordingly. The transcript does not indicate that there was any information before the learned magistrate regarding this time in custody. It is, therefore, open to question whether the magistrate made an error, but since I would allow the appeal on ground 2 in any event it is now open to me to take that time into account. Accordingly, in allowing the appeal, I will order that the total effective sentence of 12 months' imprisonment be backdated to commence on 30 April 2009.

43 The appeal will be allowed on ground 2. The appellant is resentenced in respect of charge MR 205/09 to 6 months' imprisonment, to be served concurrently. The sentences on the other charges will remain unaltered, including the order that the appellant be eligible for parole. The total effective sentence will, therefore, be one of 12 months' imprisonment and I order that the sentence be backdated to commence on 30 April 2009 to take into account time spent in custody.