Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Arson and stealing - Significance of mental illness - Whether deterring other people with mental illness from failing to take their medication is a proper sentencing consideration

Gok v The Queen [2010] WASCA 185

The State of Western Australia v Malone [2015] WASCA 188

The State of Western Australia v Squance [2017] WASCSR 140

1 REASONS OF THE COURT: The appellant appeals against the sentence of 3 years' immediate imprisonment, imposed on him for wilfully and unlawfully damaging a barge and other property by fire (commonly known as arson).[1] At the conclusion of the hearing of this appeal, we granted leave to appeal on ground 1 but dismissed the appeal. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.

2 In summary, we were satisfied that the sentencing judge made an error of principle in the exercise of his sentencing discretion. The sentencing judge erred by identifying, as a factor relevant to the appellant's sentencing, a need to deter other persons with mental illness from failing to take their medication. However, having regard to all the circumstances of the case and all relevant sentencing principles, we considered that a term of 3 years' immediate imprisonment is commensurate with the seriousness of the offence. The appeal was therefore dismissed on the basis that we were of the opinion that a different sentence should not have been imposed.

3 At around 4.03 am on 3 May 2016, the appellant went to the Barrack Street Jetty in Perth, where a commercial barge owned by Mr Spry was moored. The appellant used tarpaulins and a canister of fuel, which were on the barge, to start a fire on the deck of the barge. He then left the area on a bicycle.

4 The fire took hold and caused extensive damage. Officers from the Department of Fire and Emergency Services attended the scene and extinguished the fire. The deck of the barge, a high-pressure water pump, an outboard motor, high-pressure water hoses, various tools and an electronic positioning indication radio beacon, known as an EPIRB, were all damaged during the fire. The total cost of repairing the damage and replacing the damaged property was $26,500. Mr Spry estimated that he lost about $10,000 worth of work over the course of five days as a result of the damage, which had to be repaired. The sentencing judge made a compensation order in the sum of $26,500 in favour of Mr Spry, although his Honour recognised that the appellant was not likely to be able to pay the sum in the foreseeable future.

5 The appellant was identified as the offender from CCTV footage taken on the jetty. While the CCTV footage did not capture the area where the barge was moored, it showed the appellant in the vicinity at the relevant time, eventually riding off on his bike. On 4 August 2016, the appellant was located by police in Fremantle and was arrested. He declined to take part in an interview with the police.

6 The appellant was 38 years old at the time of sentencing. The appellant was born in Western Australia. His parents separated when he was 2 years old. The appellant lived with his mother and stepfather until he was 13 years old, when he moved to live with his biological father.

7 The appellant was described as unsettled and angry in early childhood and adolescence. The appellant's relationship with his father was volatile. Within a couple of years of moving in with his father, the appellant became involved with drugs and negative peer groups. He then became homeless.

8 The appellant was suspended from school when he was 16 years old due to his disruptive behaviour. The appellant subsequently worked mainly in labouring jobs, generally for short-term periods of work. The appellant's last employment, at a fish processing factory, was about 10 years prior to the date of sentencing. He was on a disability pension at the date of the offence.

9 Five or six years prior to the date of sentencing, the appellant completed 4 and a half months of a six-month Certificate II course at TAFE in mechanics. He failed to complete the course because of drug abuse.

10 The appellant has a teenage daughter who was raised by the child's aunt, as the appellant and the girl's mother were deemed to be unfit to look after the girl.

11 The appellant has a history of cannabis and methamphetamine abuse documented in the medical records of his treatment for mental illness. He also has a long history of alcohol abuse.

12 The appellant has a criminal record. There are offences of damage at various times, but nothing involving the setting of a fire. The sentencing judge observed that, relatively speaking, the offences on the appellant's record show that he has not been a law abiding person at all times. The appellant has on occasions been convicted of offences of violence and offences of dishonesty, but largely the offending is either to do with drugs or disorderly behaviour, and that seems to be connected with his mental illness.

13 It was apparent at the time of the appellant's arrest that he suffered from mental illness. Although the appellant was charged with the offence, some considerable time then passed during which he was assessed for fitness to plead to the charges. After the appellant was assessed to be fit to plead, he pleaded guilty on 2 May 2017. The appellant has been in custody since his arrest on 4 August 2016.

14 A psychiatric report by Dr Schineanu described the appellant's medical history.

15 The appellant first came to the attention of mental health services when he was 20 years old. The appellant was admitted to the Frankland Centre and Graylands Hospital on a number of occasions. The most recent admission occurred while the appellant was in custody on remand for the arson offence. Methamphetamine abuse and non-compliance with treatment for his mental illness precipitated admissions to Fremantle Hospital in January, May and July 2016.

16 The appellant's initial diagnosis was that of psychosis not otherwise specified and polysubstance abuse. Later this diagnosis was changed to paranoid schizophrenia and co-morbid mental and behavioural disorder due to substance abuse.

17 The appellant's paranoid schizophrenia has been difficult to contain with classical antipsychotics. Therefore at times he was treated with Clozapine, an antipsychotic used for managing treatment resistant schizophrenia. Due to the appellant's erratic and unreliable treatment compliance, the Clozapine treatment was changed to an injectable depot type of antipsychotic.

18 The appellant's management in the community has been difficult due to his tendency to move around and his non-compliance with treatment and psychiatric follow up. His substance misuse has been an ongoing problem, which has caused additional psychopathology and antisocial behaviour. This precipitated some of his previous admissions to hospital, and caused offending. The appellant usually required treatment under the mental health legislation, both as an inpatient and in the community.

Due to the severity and chronicity of [the appellant's] mental illness, some of his symptoms seemed to be of an enduring nature, unresponsive to treatment and are likely to persist.

The management and stability of the appellant's mental illness has been further complicated by his substance use and his disorganised lifestyle. As a consequence of both his mental illness and substance abuse, the appellant has reached a stage when his personal and social functioning can be described as significantly impaired.

20 Dr Schineanu expressed the view that there was a significant connection between the appellant's mental disorders and his offending behaviour. The three mental health issues which have contributed to the appellant's offending are his mental illness (schizophrenia), his substance abuse and his personality structure (dissocial/antisocial type). It was noted by Dr Schineanu that, in the period between 2009 and 2015 when the appellant did not offend, he was subjected to lengthy periods of hospitalisation and better management of his mental health issues after discharge.

21 Dr Schineanu expressed the opinion that the appellant was likely psychotic at the time of the offence, and that the psychosis impaired his rational thought processes, although it did not impair his ability to know the difference between right and wrong (i.e., to know that in fact it was wrong to set the barge alight). The sentencing judge observed that there was no suggestion that the appellant was deprived of the capacity to control his actions, although that capacity may well have been impaired.

In conclusion, I considered that the risk of future re-offending in [the appellant's] case was moderate high at the time of my assessment. The key factors of keeping future re-offending risk low depends on adequate treatment of [the appellant's] mental illness in the community and his abstinence from drugs.

23 Dr Schineanu interviewed the appellant on 28 June 2017 at the Frankland Centre. The appellant had been admitted to the Frankland Centre for the administration of his treatment which he had refused to have in prison. Dr Schineanu made the following observations which are relevant to the appellant's capacity, when he is compliant with his medication, to know that he must continue to take his medication, as directed by his psychiatrist, to ensure that his mental illness and associated symptoms do not deteriorate:

(1) The appellant's insight into his mental illness and the need for treatment was poor [31].

(2) Dr Schineanu's diagnosis of the appellant's capacity to attend to his personal care was that the appellant was under 'a severe disability' [32].

(3) The appellant had reached a stage 'when his personal and social functioning can be described as significantly impaired' [35].

(4) Although he had been admitted to the Frankland Centre twice in 2017, and despite ongoing treatment, the appellant 'continues to experience psychosis and his reasoning is impaired' [38].

(5) The appellant's mental illness has never been considered to have achieved good clinical remission. He has never been considered free from psychopathology or associated symptoms. The appellant has not been able 'to critically review his psychotic symptoms or to develop a good insight with regard to his mental illness ... and the need for ongoing treatment' [39].

(6) The appellant has 'a poor insight regarding his mental illness and the need for ongoing treatment' and is 'unrealistically optimistic regarding his ability to control future risk challenges' [48].

24 Dr Schineanu did not express any opinion as to whether the appellant has the capacity, when he is compliant with his medication, to know that he must continue to take his medication, as directed by his psychiatrist, to ensure that his mental illness and associated symptoms do not deteriorate.

25 After referring to the appellant's offending conduct and personal circumstances, the sentencing judge observed that, in the case of criminal damage by fire, sentences other than terms of imprisonment are exceptional, particularly when the amount of damage is significant. The sentencing judge observed:[4]

However, it is not just the damage to the property that is of importance. Fires are unpredictable. There is a risk of fires getting out of control and causing greater damage, and also posing a risk to the safety of people. There is no suggestion that there was any one on the jetty at the time that you set this particular fire, other than yourself, but at the very least those who are called out from Emergency Services are put at risk when a fire is out of control.

26 The sentencing judge identified a number of aggravating factors of the offence:

(1) It was necessary for resources to be deployed to extinguish the fire.

(2) The barge which the appellant significantly damaged was Mr Spry's livelihood. The cost of the damage was very significant.

(3) The fact that the appellant used an accelerant meant that there was a real risk that the fire could spread beyond where it was lit. The barge was in close proximity to a number of other vessels and structures. There was a real risk that other property may have been damaged.

(4) The appellant lit the fire in the early hours of the morning, when it might be expected to have taken longer for the fire to be detected and for Emergency Services to be able to get to the scene to put the fire out. As it happened they did manage to put the fire out and it was confined to the barge.

(5) Mr Spry's victim impact statement indicates that the fire has caused him emotional as well as financial distress. He had only recently had maintenance work done to the barge and it was his livelihood.

27 The sentencing judge identified two significant mitigating factors: the appellant's mental illness and his plea of guilty to the offence.

28 The sentencing judge accepted that the appellant pleaded guilty at the first reasonable opportunity, and indicated that the sentence would be reduced by 25% under s 9AA of the Sentencing Act 1995 (WA).

Sentencing judge's approach to the appellant's mental illness

29 After referring to Dr Schineanu's findings, the sentencing judge observed:[5]

In short, your condition has been difficult to treat, partly because of the resistant nature of your schizophrenia and partly because of your resistance to compliance. I appreciate that people who suffer from mental illness will at times be non-compliant because of their impaired capacity to think about the consequences of not complying with their medication, but there is need to protect the community and to ensure that persons such as yourself are aware of the need to comply with the treatment regimens that are put in place for you. (emphasis added)

30 The sentencing judge recognised that mental illness can reduce the moral culpability of an offender, and noted that the State accepted there was some reduction in this case having regard to Dr Schineanu's opinion. The sentencing judge said that the extent to which it was reduced, however, was moderated by the fact that the appellant was non-compliant with his medication at the time of the offence.

31 The sentencing judge also recognised that mental illness may have a bearing on how difficult it will be for an offender to serve any term of imprisonment that might be imposed. The sentencing judge said:[6]

I do not have any particular information to suggest that it is going to be more difficult for you. It seems in fact that, fortunately, a positive outcome has been achieved as a result of you being placed on appropriate medication that has largely attenuated your psychotic symptoms.

32 The sentencing judge recognised that a person with mental illness may not be an appropriate vehicle for general deterrence. That is, it may not be appropriate to make an example of such a person to try to deter others from committing offences of this kind. However, that does not mean that general deterrence may not have a role to play. The sentencing judge said:[7]

As I discussed with your counsel, in circumstances where a person, knowing they have a mental illness, deliberately chooses not to take medication and places himself in a situation where he poses a risk to the community, then the sentence should include an element of general deterrence to deter persons in similar situations from behaving in that way.

33 The sentencing judge accepted that personal deterrence may be of less effect in the case of someone with mental illness because of their impaired judgment. However, the sentencing judge noted that there was no suggested impairment of the appellant's capacity to know that what he was doing was wrong. Rather, it was the appellant's capacity to think rationally overall that was affected.

34 The sentencing judge expressed the view that there was a place for both general deterrence and personal deterrence in this case, but that those considerations were of lesser importance than they would ordinarily be.

35 The sentencing judge did not make any finding as to whether the appellant has the capacity, when he is compliant with his medication, to know that he must continue to take his medication, as directed by his psychiatrist, to ensure that his mental illness and associated symptoms do not deteriorate.

36 The sentencing judge indicated that the appropriate sentence was one of 3 years' imprisonment. In the course of deciding that an immediate term of imprisonment was the only appropriate sentence, the sentencing judge observed:[8]

You pose a risk to the community if you are not properly medicated. There is a role for general deterrence in a case such as this, even though it is moderated by your mental illness.

37 The sentencing judge imposed a sentence of 3 years' immediate imprisonment, which was to be taken to have commenced on 4 August 2016 (when the appellant was taken into custody). The appellant was made eligible for parole.

38 As Buss JA, with whom McLure P and Mazza JA agreed, noted in The State of Western Australia v Malone:[9]

The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour. However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance.

39 A psychiatric condition such as paranoid schizophrenia can, depending on the circumstances, including any causal connection between the mental illness and the offending, affect the significance of general deterrence as a sentencing consideration.

40 Non-drug induced mental impairment which has a causal relationship to the offence can impact on considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender, as explained by Mazza J, with whom McLure P and Buss JA agreed, in Gok v The Queen:[10]

The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely ...

The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions.

With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases ... personal deterrence has little point whereas in other cases it would be more significant. (citations omitted)

41 The appellant appeals against the sentence imposed on the following grounds:

1. The Learned Sentencing Judge erred by incorrectly applying the principles relevant to mental illness in sentencing [ts 35 and 37].

1. The Learned Sentencing Judge erred by apportioning an aspect of general deterrence in the sentencing process directed to ensuring that people with a mental illness comply with medication; and
2. The Learned Sentencing Judge erred by failing to take into account that a prison term would be more burdensome for the appellant due to his mental illness, contrary to the evidence before the Court.

1. The sentence of 3 years' imprisonment for criminal damage by fire was manifestly excessive in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender [ts 39].

42 As to particular ii to ground 1, we are not satisfied that the sentencing judge failed to take account of the impact of the appellant's mental illness on his imprisonment. Rather, the sentencing judge merely noted the limited evidence as to what that impact would be, and the fact that a positive outcome of the appellant's incarceration was that he had been placed on appropriate medication that has largely attenuated his psychotic symptoms.

43 However, in our view, the appellant has established particular i of ground 1. That particular contends that the sentencing judge erred in principle by giving weight, as an aspect of general deterrence in the sentencing process, to ensuring that people with a mental illness comply with medication. The appellant's counsel correctly submits that general deterrence involves deterring the general community from committing criminal offences, rather than from not taking their medication. The passages quoted at [29] and [32] above indicate that the sentencing judge identified, as a factor relevant to the appellant's sentencing, a need to deter other persons with mental illness from failing to take their medication.

44 Counsel for the State properly conceded that this aspect of the sentencing judge's approach involved an error of principle. However, counsel for the State submitted that the error was not material, as the issue of failure to comply with a medication regime was relevant to questions of personal deterrence and the assessment of the appellant's risk of reoffending and thus protection of the community.[11] Alternatively, the State submitted that no different sentence should have been imposed: see s 31(3) read with s 31(4)(a) of the Criminal Appeals Act 2004 (WA).[12]

45 In our view, a different sentence should not have been imposed, for the following reasons. It is therefore unnecessary to deal with the State's separate submission as to materiality.

46 The maximum penalty for the offence of criminal damage by fire is life imprisonment. This was a relatively serious example of the offence of criminal damage by fire for the reasons noted by the sentencing judge, having regard both to the extent of actual damage caused and the damage which could potentially have been caused if the fire had spread further. The fact that the appellant started a fire in a public area in the early hours of the morning and then simply left the area for the fire to take hold, and potentially spread, is an aggravating feature of the offence.

47 We agree with the sentencing judge that the discount of 25% under s 9AA of the Sentencing Act was appropriate.

48 The appellant's mental illness is a mitigating factor which reduces his moral culpability and the significance of general deterrence as a sentencing consideration. However, the mitigating effect of the appellant's paranoid schizophrenia is counterbalanced by the imperative to impose a sentence which protects the community from future offending by the appellant. It is true that the appellant has not previously committed an offence of this gravity despite his long-standing mental illness. However, the medical evidence indicates that the appellant's uncontrolled mental illness was a significant factor in this arson offence. Combined with his history of poor compliance with treatment requirements and illicit drug use, this indicates a significant risk of future offending of the same general kind.

49 We accept the State's submission that the risk of the appellant reoffending if he did not comply with treatment requirements for his mental illness was relevant to the assessment of the risk he posed to the community. The necessity of securing the appellant's compliance with the treatment regime underscored the importance of community protection as a sentencing factor which properly informed the exercise of the sentencing discretion. Community protection was a significant sentencing consideration in this case.

50 In our opinion, in the absence of an opinion expressed by Dr Schineanu and a finding made by the sentencing judge as to the appellant's capacity, when he is compliant with his medication, to know that he must continue to take his medication, as directed by his psychiatrist, to ensure that his mental illness and associated symptoms do not deteriorate, there is little, if any, scope for the operation of personal deterrence as a sentencing factor.

51 However, having regard to all of the circumstances of this case, and to all relevant sentencing principles, we are satisfied that a term of immediate imprisonment was the only appropriate sentencing option commensurate with the seriousness of the arson offence. In our view, the sentence of 3 years' immediate imprisonment, with eligibility for parole, was appropriate. Therefore, while the appellant has made out particular i of ground 1, we are of the opinion that a different sentence should not have been imposed.

52 Given the above conclusions, it is not necessary to deal with ground 2, which in effect contends that error can be inferred from the outcome of the exercise of the sentencing discretion. If it had been necessary for us to determine ground 2, it would not have succeeded. It follows, from our conclusion that a different sentence should not have been imposed, that we would not regard the sentence imposed by the sentencing judge to be manifestly excessive.

53 It was for these reasons that we granted leave to appeal on ground 1 but dismissed the appeal.

[1] Contrary to s 444(1)(a) of the Criminal Code (WA).

[2] Paragraph 33 of the psychiatric report.

[3] Paragraph 49 of the psychiatric report.

[4] The State of Western Australia v Squance [2017] WASCSR 140 [30].

[5] The State of Western Australia v Squance [25]

[6] The State of Western Australia v Squance [35].

[7] The State of Western Australia v Squance [36].

[8] The State of Western Australia v Squance [44].

[9] The State of Western Australia v Malone [2015] WASCA 188 [74].

[10] Gok v The Queen [2010] WASCA 185 [59] - [61].

[11] Respondent's submissions par 14; appeal ts 11.

[12] Respondent's submissions par 38; appeal ts 11 - 12.