File No : PE 38641 of 2013, PE 39452 of 2013, PE 58342 of 2013, PE 58343 of 2013, PE 58344 of 2013, PE 72766 of 2014, PE 74282 of 2014

Criminal law - Appeal - Being armed in a way that may cause fear - Disorderly behaviour - Fail to obey order given by police officer - Offender cognitively impaired - Offender with extensive prior criminal record for similar offences - Taking into account time spent in custody and time on Intellectual Disability Diversion programme - Turns on own facts

Criminal Appeals Act 2004 (WA), s 9

Sentencing Act 1995 (WA), s 6, s 39, s 76

Weapons Act 1999 (WA), s 8

3. On prosecution notice PE 38641 of 2013 sentence varied by substituting a suspension period of 6 months.

4. On prosecution notices PE 58342-58344 of 2013 sentences set aside, no sentence imposed and applicant released.

5. On prosecution notices PE 39452 of 2013 and PE 72766 and PE 74282 of 2014 sentence varied by substituting a CBO for 6 months.

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)

1 JENKINS J: (These reasons were delivered orally and have been edited from the transcript.)

2 This is an application for leave to appeal from sentences imposed by a magistrate sitting in the Magistrates Court at Perth on 29 May 2014. The application for leave to appeal was filed six days out of time and so an extension of time within which to appeal is also required. Both applications had been ordered to be heard at the same time as the appeal.

3 The magistrate imposed sentences for the following offences:

$6,000. Pursuant to the Sentencing Act 1995 (WA) s 44(1) and the Sentencing Regulations 1996 (WA) sch 2, a CBO may be imposed

(1) the learned magistrate erred in imposing a sentence of imprisonment, albeit suspended, for the offence of being armed in a way that may cause fear in circumstances where the seriousness of the offending was not such that only a sentence of imprisonment could be justified; and

(2) the learned magistrate erred in imposing a sentence in relation to all offences which were manifestly excessive when regard is had to all the circumstances, including the circumstances of the offending, the appellant's mental impairment and the time the appellant had spent in custody.

5 The respondent did not oppose an extension of time being granted to apply for leave to appeal given that the reasons for the delay in filing the application for leave to appeal were satisfactorily explained in Ms Sinton's affidavit affirmed on 24 June 2014. At the hearing of the appeal, I granted an extension of time within which to appeal until the date of the filing of the application.

6 Under the Criminal Appeals Act 2004 (WA) s 9, leave is required for each ground of appeal and the court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Thus, the decision as to whether to grant leave to appeal on each ground depends upon the merits of the appeal, which I now consider.

7 In respect of the offence of going armed in a way which may cause fear (the weapon offence), the applicant appeared in court the day after its commission and was remanded in custody to appear in the Intellectual Disability Diversion (IDD) Court on 3 September 2013. On 15 October 2013, the applicant was granted bail on the condition that he obey all the lawful instructions of Ms Neski, the IDD Court coordinator.

8 Thus, the applicant was placed on the IDD programme, which is a worthy initiative of the Magistrates Court and other government authorities to reduce recidivism, the rate of imprisonment and to improve the ways in which the justice system deals with people with intellectual disability. He remained on that programme until he was sentenced. Prior to being bailed under the IDD programme, the applicant spent six weeks and six days, or 48 days, in custody on remand in relation to that offence.

9 The applicant first appeared in court at the end of September 2013 for the offence on prosecution notice PE 39452 of 2013, being the disorderly behaviour committed on 22 August 2013 and he was not granted bail for that offence until he was bailed on 15 October 2013. The parties agree that the only reason why he was not granted bail in respect of the charge of being disorderly was because he was held in custody on the weapon offence. Technically, he spent from 29 September to 15 October 2013 in custody for that offence, also. But if he was granted credit for that time in respect of the weapon offence, he did not get credit for it in respect of that disorderly offence.

10 Because the applicant participated in the IDD programme from his release to bail until his sentencing on 20 May 2014, he spent a period of just over seven months on that programme. The other offences were all committed whilst the applicant was on bail for the most serious offence, being the weapon offence. He was bailed or summonsed for those other offences and so spent no time in custody in relation to them.

11 The facts of the offences were read out by the prosecutor on the date of sentencing, being 20 May 2014. The facts of the first disorderly offence, being prosecution notice PE 39452 of 2013, are that on 22 August 2013, at 7.00 am, police officers on patrol at the Perth Train Station were approached by a member of the public and told that a male was harassing members of the public. Officers made their way to a pharmacy nearby. Employees of that pharmacy had also phoned the police and advised them that a male was causing a disturbance.

12 When police officers attended, they saw staff from the pharmacy standing on the footpath in a distressed state. They then saw the applicant inside the pharmacy, shouting and waving his arms around. The police officers went into the store and the applicant, who was intoxicated, abused them. He was pushing items out of a display shelf and knocking them over. He was detained by officers. He continued shouting abuse at the officers. He was told to calm down, but he refused to do so.

13 In respect of the weapon offence on prosecution notice PE 38641 of 2013, on Wednesday, 28 August 2013, the applicant was in Morley. He was in possession of a blackhandled knife, approximately 30 cm long. He was witnessed behaving in an aggressive manner. He was smashing an empty beer bottle on the ground and was walking in a westerly direction along Bishop Street, Morley, holding the knife in his left hand, pointing forward. There were witnesses nearby who were in fear that someone may be injured by his behaviour. Police attended the scene and seized the knife. They noted that there were numerous members of the public nearby. The applicant explained to the police that there were people after him and he had the knife for his protection.

14 In respect of prosecution notice PE 58342 of 2013, which is a charge of failing to obey an order given by a police officer, the facts are that at 10.50 pm, on 8 November 2013, the applicant was issued with a moveon order to leave the footpath outside Myers in Perth and to remain beyond the boundaries of Milligan Street, Pier Street, Wellington Street and St Georges Terrace. At 9.30 pm, on 8 November 2013, the applicant was located by the police on Murray Street, inside those boundaries. He provided no lawful reason for being there.

15 In respect of the two charges on prosecution notices PE 58343 and PE 58344 of 2013, both committed on 9 November 2013, both being charges of failing to obey orders given by police officers, the applicant again had been given a moveon order to stay outside of the Northbridge area. He was found at 9.00 pm, which was about 25 minutes after he had been given the moveon order, in the Northbridge Piazza making no attempt to leave. He had no reason or lawful excuse for being there. He said that he had had a loss in the family. He was arrested and taken to the watch house. He was bailed quite quickly. At 11.55 pm the same evening, he was located by the police in James Street and making no attempt to leave the exclusion area. He, again, had no reason for being there.

16 In respect of the charge on prosecution notice PE 72766 of 2014, at 4.45 pm, on 10 March 2014, the applicant was in Forrest Chase. He was observed by the cameras approaching people and bumping into them. He was stopped by police in relation to his behaviour. He then proceeded to abuse the police. He was cautioned to stop swearing or he would be arrested and he again swore at the police.

17 In respect of the final charge on prosecution notice PE 74282 of 2014, being disorderly behaviour in public, at 7.15 pm, on 27 March 2014, the applicant was outside a café in Murray Street. He was observed by members of the public, who were in the café, to be urinating in front of a large window. Police were called and when they got there, the applicant was still urinating, his penis was exposed and in clear view of the members of the public. The applicant was heavily intoxicated and was urinating on himself. He was in a welllit area. A member of the public nearby, who had been in the café told the police how disgusted she felt by his actions.

18 The first disorderly behaviour offence was a serious example of an offence of that kind. The property of others was disturbed, if not damaged, and members of the public and employees of the pharmacy were alarmed by the behaviour. It is not disputed that the applicant was intoxicated at the time.

19 The weapon offence was a dangerous offence. The applicant was not only armed, he was brandishing the knife and behaving in an aggressive manner in public. Not surprisingly, members of the public thought that someone may have been injured as a consequence of his behaviour. The applicant says that he was intoxicated and cannot recall the details of why he was behaving as he was, although he says it was, in general, because he thought that others were after him. His intoxication heightened the risk that he or someone else would be injured.

20 The failure to obey the moveon order of 8 November 2013 is a standard breach of such an order, as were the two offences on 9 November 2013. However, I do note that the offences occurred very soon after he had been told or been given the moveon order. The second offence on 9 November 2013 occurred only hours after the applicant had been arrested and then released in relation to the first offence that night.

21 The last two disorderly offences are moderately serious examples of offences of that type. Neither, in my view, could be described as towards the lower end of the range of seriousness.

22 The applicant has a prior criminal record which commences when he was a juvenile. He was a regular offender as a juvenile. His offending was less frequent when he was a young adult up until 2003, when the frequency escalated significantly. The applicant has been convicted on many occasions in the past of similar types of offences as these. In the past 10 years, he has about 37 convictions for disorderly behaviour, about 50 convictions for failing to obey an order given by a police officer, one conviction for carrying an article with intent to cause fear, one conviction for carrying an article with intent to injure, one conviction for criminal damage, one conviction for unlawful wounding, three convictions for common assault, one conviction for indecent assault and one older conviction for burglary. For most of these offences, he has been given relatively modest fines; however, he has received sentences of immediate imprisonment for more serious offences, such as indecent assault, unlawful wounding, and other offences for which he was sentenced at the same time. He has not received a sentence of imprisonment since 2009.

23 The applicant has also been placed on CBOs in the past. He has received a suspended sentence of imprisonment for a burglary offence and a common assault offence. He has been placed on conditional release orders and CBOs for various offences. He has not been placed on a CBO for any offence since September 2012. I note that since then, he has been fined on 38 occasions. He does not appear to have successfully completed a period of supervision in the community.

24 Before the magistrate was a presentence report which was authored by Ms Neski. The presentence report said that the applicant is 40 years of age, he has an acquired brain injury as a result of motor vehicle accidents in 1991 and 2002 and an assault with a baseball bat in 1999. He has a diagnosis of 'significant cognitive impairment'. The presentence report noted the results of a neuropsychological report completed in 2012 which said that the applicant's cognitive impairments were quite severe and are expected to hamper his daily cognitive functioning. There was no medical evidence before the magistrate concerning the applicant's disability but, on the other hand, the prosecution did not dispute the matters in the presentence report concerning his disability.

25 The applicant had a poor memory of the offences and why he had committed them. He thought that maybe he had had too much to drink. This comment is consistent with the comments in the prosecution's facts that the applicant was intoxicated at the time of the offences.

26 The presentence report noted that the applicant's family resided in Katanning but that the applicant had decided not to live there as his family were a bad influence on him. He recalled that he had a number of children as a consequence of a longterm relationship which finished about nine years ago. He does not have contact with his children and does not recall how old they are.

27 The applicant has had little formal education and has been on a disability support pension since he was injured. The presentence report said that since that time, he had led an unstructured lifestyle with minimal purpose and goals. The applicant was unable to give a complete history of the substance abuse but he reported experimenting with cannabis and alcohol when he was a teenager and that he now drinks about four times a week, mainly during pension week.

28 Since being assessed as being suitable for the IDD programme, the applicant had been provided accommodation with Outcare in suburban Perth and Outcare had agreed to support the applicant whilst funding was available through the Disability Support Commission (DSC). A referral had been submitted to the DSC. He was receiving support from Outcare and DSC. The report said:

The applicant requires ongoing support to sustain his now current positive lifestyle. Whilst his routines and structures remain in place, he has minimal risk of reoffending.

29 The recommendation in the presentence report said that the applicant had attended most of his IDD programme scheduled appointments and that once placed in a regular routine, he could achieve set goals. It was hoped that he would continue to receive support from Outcare and that recently approved support from DSC would be provided shortly. The author said that the applicant would have difficulty complying with a CBO unless he received prompting and ongoing regular support to attend programme requirements and supervision.

30 It is not possible to separate the submissions made on behalf of the applicant by both his counsel and Ms Neski from the magistrate's remarks, as the sentencing remarks were interspersed with questions to and answers from counsel and Ms Neski.

31 It was submitted to the magistrate that the applicant was a success story of the IDD programme because since being on the programme, his rate of offending had decreased.

32 When the magistrate referred to his 'higher level of nuisance offending' which indicated that he had been drunk and associating with the wrong sort of people in the city, it was submitted that the applicant had 'indicated that he would be willing to address his alcohol misuse'. This is relevant because placing an offender on a CBO with a programme order is one way to assist an offender to address substance misuse problems which contribute to offending.

33 The magistrate said that she was going to impose a CBO and a suspended imprisonment order for the weapon offence. At this point, her Honour referred to taking time spent in custody into account. She said that the applicant may repeat past behaviours because of his brain injury. Her Honour also noted the applicant and his friends who drank alcohol and engaged in antisocial behaviour in the city were becoming more and more of a nuisance.

34 Her Honour said that the applicant could not use alcohol as an excuse for his offending. She asked what programmes would be available to him that were geared towards his level of understanding. Ms Neski responded that she had visited the applicant's home and she was impressed at how he was keeping it. He had not had antisocial visitors and Outcare regarded him as a model tenant. She mentioned that the applicant had done well 'last time', presumably referring to the time he had been on the IDD programme, because he had been given a regular schedule.

35 The learned magistrate again asked what programmes could be provided to the applicant and Ms Neski said that an organisation called AADS had an outreach centre that could visit him in his home. Her Honour was told that this could be made part of a programme requirement of a CBO. Her Honour then mentioned that she wanted the applicant to be under some form of supervision. Her Honour said that the weapon offence was very concerning and that the situation could have got out of control because the weapon was dangerous.

36 In response to a submission that the applicant was armed because his family members were after him, her Honour correctly observed that he could have stabbed a family member or one of them could have grabbed the knife and stabbed him. She noted that that happened on a regular basis. I infer from that that she was referring to the frequency of such offences, generally, rather than in respect of the applicant in particular. Her Honour then proceeded to sentence the applicant. Her Honour said:

HER HONOUR: Now, Ms Neski, in her report, has written some very nice things about you. She is very proud of you that you have your own accommodation, that you keep it clean, that you are doing the right thing. But you've got to stop drinking. So what I'm going to do is put - with the weapons charge, I'm going to put you on a suspended imprisonment order for 12 months. And with all the other charges, on a communitybased order for 12 months with programs and supervision so you can get some help but they can also supervise you and come to your home to see how you are. You need the support.

ACCUSED: The support. Yes. Need the support.

HER HONOUR: Are you willing to do that?

ACCUSED: Yes.

HER HONOUR: Now, but a suspended imprisonment order is the big stick. That's the frightening thing, because if you breach that you can go back to prison and you may be there for some time. And I really don't want you to go back to prison because now you've got your own home and you're safe there and you're doing the right thing. Keep it, because having your own home is something you should really, really want to keep. Do you understand that?

ACCUSED: Yes. I understand that. Yes (ts 11).

37 As elaborated on by counsel, the complaint in ground 1 is that whilst a sentence of 7 months' imprisonment to be served immediately or suspended is within the range of appropriate sentences for this type of offence, the magistrate failed to take into account that the applicant had spent 48 days in custody for the offence and had spent nearly seven months after that subject to the IDD programme. It is submitted that those factors together with the applicant's cognitive impairment make the sentence imposed excessive.

38 The principles which apply to the determination of an appeal to a single judge against a sentence imposed by a magistrate are, first, that sentencing involves the exercise of judicial discretion. An appellate court cannot intervene simply because it would have imposed a different sentence. An appellate court can only intervene if the appellant demonstrates that the magistrate erred in exercising the sentencing discretion by making either an express error or making an implied error.

39 An express error involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. An implied error arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong had occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

40 The only complaints in ground 1 which could amount to an allegation of express error are that the magistrate failed to take into account time spent in custody, time spent on the IDD programme and the applicant's cognitive impairment when imposing a sentence of imprisonment to be suspended. I am satisfied that the magistrate was aware of and took these matters into account. Her Honour expressly referred to taking into account time spent in custody. She also engaged in an exchange with counsel, which made it clear that the applicant's cognitive impairment was relevant to the sentencing disposition.

41 Her Honour also referred to some of the applicant's good behaviour whilst he was on the IDD programme in a way which made it clear that she recognised it was in his favour in the sentencing process but that it had to be balanced against his excessive alcohol use which led, in particular, to the weapons offence and his offending whilst he was on the IDD programme. Consequently, to the extent that the applicant alleges that the magistrate made express errors, I do not find that she did so.

42 Whether a sentence is manifestly excessive as a consequence of implied error is to be determined by considering the sentence imposed in the context of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

43 The actual sentence imposed for the weapon offence is well within the maximum penalty of 7 years' imprisonment. It suggests that the magistrate regarded the offence as being well below the upper end of the range of seriousness for this type of offence and was accompanied with significant mitigating personal circumstances.

44 The parties have been unable to find cases which establish the standards of sentencing customarily observed with respect to this offence. I have been referred to Bropho v Harrison [2013] WASC 250, in which Hall J allowed an appeal against a sentence of 6 months' imprisonment imposed for an offence of carrying or possessing an article with the intention of using it to cause any person to fear that someone will be injured or disabled by that use contrary to the Weapons Act 1999 (WA), s 8(1)(b). That offence carries a maximum fine of $24,000 and 2 years' imprisonment.

45 The facts of that offence involved the offender having a dispute with her partner in a public place in Perth. As she had her personal possessions with her because she was a homeless person, she retrieved from her personal possessions a pair of scissors. She brandished the scissors and threatened her partner with them. There were numerous members of the public in the area who were concerned by her offending. The police were called. When the police appeared, she put the scissors away.

46 Whilst Bropho's circumstances bore some resemblance to those of the applicant, there are other distinguishing features. First, the offence was a different offence and it carried a significant lower maximum penalty. Secondly, the facts of the offence were less serious. Although scissors are dangerous, they are less dangerous, on the face of it, than a 30 cm knife. Thirdly, unlike the knife carried by the applicant, the scissors were not in the possession of Bropho in order to use as a weapon. They were part of her personal possessions, which she was carrying. Fourthly, Hall J found that a sentence of 6 months' imprisonment for the offence was arguably within the range of appropriate sentences for the offence. Hall J, however, allowed the appeal against that sentence because he was, for other reasons, allowing the appeal against the cumulative sentences of imprisonment imposed for other offences at the same time. Consequently, the sentence of 6 months, being not more than six months, as a matter of law, could not stand on its own.

47 For the above reasons, I find that the case of Bropho is of little direct assistance, although the comments made by Hall J about the relevance of social disadvantage and substance abuse in the sentencing process are more generally relevant to this appeal.

48 The respondents refer me to King v The State of Western Australia [2013] WASCA 131 where the Court of Appeal set out a number of sentences for the offence of going armed in public so as to cause fear. The respondents acknowledge that the utility of those cases for comparison with this case is limited because they deal with very different circumstances, in particular where the relevant offender was armed for the purpose of assaulting another or others and actually did assault another or others. Those cases indicate that after a plea of guilty, offenders in serious cases of going armed in public have been sentenced to between 8 and 16 months' imprisonment.

49 King himself pleaded guilty to a number of related offences, including one offence of being armed with an offensive instrument likely to cause fear. He had used a hammer to break a display counter in a shop so that he could steal the items in the display. King had not committed any serious offences for some 10 years, but his antecedents were not particularly favourable. He had not expressed remorse for this aspect of his offending. The Court of Appeal said that there was a need for a personally deterrent sentence. However, the Court of Appeal found that a sentence of 2 years' imprisonment for going armed was excessive and reduced it to 12 months' imprisonment. It noted that it had reduced what would otherwise have been an appropriate sentence, that is, a sentence of 15 months' imprisonment, by 20% for the plea of guilty.

50 To those cases I would add the decision of McKechnie J in Richardson v Pickett [2008] WASC 203, in which his Honour upheld a prosecution appeal against a sentence of 6 months' imprisonment, suspended for two years in respect of an 18yearold offender with a bad criminal record. The offender had pleaded guilty to being armed in a way that may cause fear and assault with intent to do grievous bodily harm. The offence was in the category of the cases referred to by the Court of Appeal in King. McKechnie J allowed the appeal and ordered that the 6month sentence be immediately served.

51 In respect of this particular offence and the seriousness of it, I have already referred to the circumstances, which make it a serious offence, including that the applicant was drunk, he had deliberately armed himself with the knife, the knife was of a significant size and the knife was, apparently, capable of doing harm. The applicant was also seen by members of the public behaving in an aggressive manner. The applicant was holding the knife in front of himself and he was armed with the apparent purpose of defending himself from people who he thought were after him. Thus, there was a real risk that he would end up in a dispute with others and the knife would be used in that dispute.

52 As for the applicant's personal circumstances, he does not have the mitigation of youth or good character. He has a poor record of offending. It does not aggravate or increase the objective seriousness of this offending, but it does indicate that deterrence and the protection of society require a more severe sentence than would otherwise be warranted: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

53 In respect of matters which mitigate sentence, the applicant pleaded guilty and had been on the IDD programme. Additionally, the applicant is cognitively impaired. The applicant concedes that there was no material before the magistrate which could lead to a positive finding that the offending was caused by the cognitive impairment. Nevertheless, he submits that the cognitive impairment was a mitigating factor, which meant that he was a poor vehicle for general deterrence and specific deterrence was much harder to achieve.

54 In The State of Western Australia v Khasay [2014] WASCA 58, Buss JA (Pullin & Mazza JJA agreeing) said [37] [41]:

The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35.

The effect of mental illness or psychological difficulties (falling short of insanity) 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. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler v The Queen [No 2] [2010] WASCA 105 [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness 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 mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith v The State of Western Australia [2010] WASCA 176 [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).

In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been selfinduced), general deterrence should ordinarily be given relatively less weight:

'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].'

See also R v Wright (1997) 93 A Crim R 48, 50 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) page 14, adopted and emphasised by Gleeson CJ in Engert (71).

55 The above paragraphs set out the principles relevant to sentencing where an offender suffers from a mental disorder or abnormality which has not been selfinduced. I do not believe that the principles relating to the sentencing of offenders with cognitive deficits are different from those stated in the case of Khasay.

56 The result is that there is little doubt that the applicant's mental functioning is affected to such an extent as to reduce his blameworthiness or culpability for his offending behaviour. However, it was not suggested that he did not know what he did was wrong. He also knew that drinking was to blame for his offending. It was also stated in the presentence report that he had benefited from the IDD programme and that if he maintained the routine and structures which had been put in place on the IDD that he was 'minimal risk of reoffending'.

57 The applicant was also aware that he needed to stay out of Perth and to stay away from people who may contribute towards his chances of offending. So although it may be difficult for the applicant to change and to learn because of his cognitive deficits, it is not impossible for him to do so. I do not think that the magistrate misunderstood any of these factors. Appropriately, her Honour imposed a sentence which she intended would help the applicant address the causes of his offending, provide him with supervision and structure, punish him in a way that reflected the seriousness of his offending and protect the community. These were all sentencing objectives consistent with the principles of sentencing contained in the Sentencing Act 1995 (WA) s 6.

58 The question raised by the ground of appeal is whether in imposing the sentence she did, her Honour imposed a sentence which was manifestly excessive. A suspended term of imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances: Sentencing Act, s 76(2). Thus, a suspended sentence of 7 months' imprisonment could not have been imposed unless a sentence of 7 months' imprisonment to be served immediately would have been appropriate for the offence. Taking into account that the applicant had spent 48 days in custody on remand, the sentence equates to a sentence of between 8 and 9 months' imprisonment.

59 The applicant submits that some credit also had to be given to him for the period he had spent on the IDD programme. For the reasons I have already expressed, this is a twoedged sword for the applicant. Yes, he had complied with many of the requirements of the programme, but during the same period, he had committed five offences. Thus, he could only be given limited credit for the time he had spent on the programme.

60 The respondents say that bail on conditions that the offender complies with the conditions of an IDD programme is much like a presentence order. I do not think that a direct analogy applies. It is unnecessary for a magistrate to decide that imprisonment would be appropriate for an offence before bailing an offender to the IDD programme. Whereas such an assessment must be made before placing an offender on a presentence order. Thus, an offender may not comply or only partially comply with the IDD programme, but still receive a fine or lesser penalty.

61 I also take into account that although the progress towards rehabilitation that occurs in a period between charging and sentence should be taken into account in mitigation of sentence, much will depend on the extent, quality and effect of the rehabilitative work undertaken in that period: Scook v The Queen [2008] WASCA 114. I do not think that it could be said that in the applicant's case, given his offending in the remand period, that there had been a very significant progression towards rehabilitation in that period. On the other hand, there were good reasons for the magistrate to try and build on the rehabilitation that had been achieved by the IDD programme. To have simply imposed yet another lenient fine on the applicant was very unlikely to have done this.

62 After taking into account all of these matters, I conclude that the sentence of 7 months' imprisonment to be suspended for the weapon offence, although right at the upper end of the range of appropriate sentence for an offender and offence of this type, was not outside of the range.

63 However, I conclude that the suspension period of 12 months was outside the period justified by a sound exercise of the sentencing discretion, having regard to the length of time the applicant had already spent on the IDD programme and the seriousness of his offending. Given these matters, a suspension period of six months from the date of sentence was appropriate.

64 The applicant submits that fines were appropriate for the balance of the offences, having regard to all the circumstances, including the seriousness of the offending, the appellant's mental impairment and the time that the appellant had spent in custody. In the hierarchy of sentences in the Sentencing Act s 39, a CBO is the sentence above a fine.

65 In my view, it is very difficult to make out an argument that a CBO is a harsher sentence than a fine. It imposes no immediate financial punishment. It requires an offender to report to a community corrections centre within 72 hours after being released by the court, to notify a community corrections officer (CCO) of any change of address or place of employment, not to leave Western Australia, except with and in accordance with the permission of the chief executive officer of the Department of Corrections and to comply with the lawful orders or directions of any CCO.

66 In addition, the magistrate imposed a programme requirement and made it clear that she expected this to be a programme to address the applicant's alcohol use and a programme which was 'geared to his level of understanding'. Her Honour also imposed a supervision order and she made it clear that this was to supervise the applicant so as to make sure that he was complying with his programme requirement. These requirements may be more difficult for the applicant to comply with than would be the case for an offender without the applicant's cognitive impairments, but they do not appear to me to be beyond the applicant's ability, especially when he has the support of Outcare and the DSC.

67 If the applicant commits any offence while he is on the CBO, he may be resentenced again for the offences to which the CBO relates. Given the applicant's prior criminal record, it will be very difficult for him or appears to be very difficult for him to complete a CBO without offending in any manner. However, given the progress that has been made under the IDD programme, there was no error in the magistrate imposing a sentence which would punish the applicant, hopefully provide some specific deterrence to him and protect the community from his offending.

68 There are limited sentencing options available to the court, but it is wrong to suggest that there is no appropriate sentencing option other than to impose repeated fines for the applicant's offending. If the applicant is unable or unwilling to comply with this sentencing disposition, he can be brought back to the court and resentenced using another sentencing option.

69 The only remaining issue is whether the CBO for 12 months is too long, having regard to the time the applicant has spent on the IDD programme because of his offending and whether it should have been imposed for all of the remaining offences. I do not accept that time spent in custody should have been taken into account in sentencing the offender for the offences for which he was placed on the CBO. He did not spend time in custody in relation to these offences and most of them were committed, in fact, whilst he was on bail.

70 Taking into account the applicant's personal circumstances, the length of time that he had spent on the IDD programme and the minor nature of the three fail to obey moveon orders given by the police officers, it was an error to impose further punishment for them. I would allow the appeal in respect of those three offences, impose no sentence for them and order the applicant's release on them.

71 On the other hand, the first disorderly behaviour offence was quite a serious example of that type of offence. The two later ones were moderately serious and committed whilst the applicant was on bail. Additional punishment for those offences was justified. However, the length of time that the applicant had already spent on the IDD programme and his personal circumstances meant that a CBO for a period of 12 months was outside the period justified by a sound exercise of the sentencing discretion for those offences. Consequently, the appeal should be allowed in respect of those sentences and the length of the CBO reduced to six months.

72 I grant leave to appeal on each proposed ground of appeal and allow the appeal. In respect of prosecution notice PE 38641 of 2013, for the weapon offence, I vary the sentence by substituting a suspension period of six months. In respect of prosecution notices PE 58342 PE 58344 of 2013 being the three fail to obey an order given by police officer offences, I set aside the sentence imposed by the magistrate, impose no sentence and order the release of the applicant. In respect of the sentence for the three disorderly offences on prosecution notices PE 39452 of 2013, PE 72766 of 2014 and PE 74282 of 2014, I vary the sentence imposed by the magistrate by substituting a CBO for six months.