Application for leave to appeal against sentence refused

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Heferen v R [1999] WASCA 81

House v The King [1936] HCA 40; (1936) 55 CLR 499

Johnson v R [1999] WASCA 75

Miller v R [1999] WASCA 66

Nguyen v R [1999] WASCA 54

Pezzino v R (1997) 92 A Crim R 135

R v GP (1997) 18 WAR 196

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Liddington (1997) 18 WAR 394

R v Peterson [1984] WAR 329

R v Ward [1999] WASCA 157

Richards v R [1999] WASCA 105

Scognamiglio (1991) 56 A Crim R 81

Weng Keong Chan (1989) 38 A Crim R 337

1 PIDGEON J: I agree for the reasons to be published by Wallwork J that application for leave should be refused. The appellant took deliberate and calculated steps to procure an assailant to attack the complainant. There is no connection between the mental condition referred to and conduct of this type.

2 WALLWORK J: On 16 July 1999 the applicant was sentenced to 2 years imprisonment for an offence of aggravated burglary. He was also sentenced to imprisonment for 1 year for an offence of assault occasioning bodily harm. It was ordered that both prison terms be served concurrently. An order was made that the applicant would be eligible for parole.

3 The applicant has applied for leave to appeal against the two sentences of imprisonment. The ground relied on at the hearing of the application was an additional ground of appeal being:

"The learned sentencing Judge erred in imposing an immediate prison sentence on the Applicant in that His Honour gave insufficient weight to the psychiatric condition of the Applicant and the direct causal relationship between that condition and his involvement as a party to the commission of the offence."

4 The applicant had pleaded guilty to two offences, the first being that on 17 January 1999 at Jolimont, he and his friend, a Ms Taylor, were in the place of a Mr Pepworth without that person's consent, such place being ordinarily used for habitation, and had committed the offence of assault.

5 The second count to which the applicant pleaded guilty was that on the same date and at the same place as in count 1, he had unlawfully assaulted Mr Pepworth and thereby done him bodily harm.

6 The facts were that the applicant had procured the invasion of Mr Pepworth's home by a third person, who had been approached by the applicant. The reasons for the assault were alleged by the applicant to have arisen out of his relationship with the co-accused, Ms Taylor, which relationship had subsisted for about 2-1/2 years prior to the offences.

7 Ms Taylor had originally been in a relationship with Mr Pepworth, the person who had been assaulted. Both Mr Pepworth and Ms Taylor had been nursing assistants at the Royal Perth Hospital. Ms Taylor had been making complaints about harassment by Mr Pepworth. She had told the applicant about what had allegedly happened. Both Ms Taylor and Mr Pepworth had been suspended at the hospital for a time as a result of recommendations which had been made by an independent investigator into the situation between them.

8 The learned Judge had been told that the applicant had listened to Ms Taylor's complaints about Mr Pepworth. On the date of the offence Ms Taylor had been particularly upset about an incident. As I understand the facts, the applicant had then contacted a friend of his. Then the three persons, being the applicant, Ms Taylor and the friend had gone around to the victim's unit. The applicant and Ms Taylor had waited in the car outside. The applicant's friend (the assailant) had gone to the victim's unit. When the victim had opened the door he had been quite savagely assaulted by the assailant.

9 The learned sentencing Judge was told that the applicant and Ms Taylor had agreed to procure the assailant to go to the victim's address to assault him. The arrangement was that the assailant would punch the victim in the mouth in order to "warn him off" Ms Taylor. Ms Taylor had given the assailant some family details of the victim to enable the assailant to strike up a conversation with him and to gain entry to the premises. Once inside the unit the assailant had repeatedly punched the victim about the head. When the victim had fallen to the floor, the assailant had kicked him several times in the face and head. It was said by the prosecution that the assailant had been wearing steel capped boots. This was disputed by the applicant. Following the attack, the assailant had returned to the waiting vehicle. The three offenders had then driven away.

10 The prosecution told the Judge that as a result of the assault the victim had suffered a fractured nose, facial lacerations and bruising which had required hospital treatment.

11 Counsel for the applicant told the learned sentencing Judge that the applicant did not have a substantial criminal record. The record revealed some driving offences and two minor drug offences in May 1996 for which the applicant was fined $100 on each occasion. Those offences apparently concerned possession of a very small quantities of cannabis.

12 The learned Judge was told that the applicant had been employed most of the time since he had arrived in Australia from New Zealand in 1993. He was a sufferer from long-term depression. He was continuing to receive medication for that. What he had known about the relationship between Ms Taylor and the victim had been what Ms Taylor had told him during their relationship.

13 It appears from the information given to the court that Ms Taylor had told the applicant about difficulties which she had been having with the victim when they worked together. Ms Taylor had been complaining to the applicant about the victim's conduct towards her.

14 The learned Judge was told that the applicant's ordinarily good judgement had been affected by his emotional involvement with Ms Taylor. That he had listened on many occasions when she had told him what had happened between her and the victim. On this particular day she had been particularly upset about an incident which had occurred during the day. That was why the applicant had approached his friend (the assailant) to warn off the victim. The applicant had not made any special request to perpetrate any particular type of violence. The decision to arrange for the assault was said to have been made on the spur of the moment.

15 It was said that the applicant had been as co-operative as possible with the investigating authorities after the event. He had expressed, and continued to express genuine remorse for the part he played in the assault. In hindsight he had regretted his involvement and realised that it was totally wrong to procure violent offences.

16 The learned Judge was told that the applicant suffered from depression which had made him a person who was "perhaps more vulnerable" than other young men in the community. He had been concerned for Ms Taylor's well-being. He had had no prior history of violence. His desire had been essentially to solve the problems which had arisen between Ms Taylor and the victim. He had had no problems himself with the victim and no legitimate reason to get involved. At the time of sentencing he was in receipt of sickness benefits, but hoped to return to full-time employment in the following month. It was said that there was virtually no risk of the applicant offending in a similar way again. It was said that the victim's injuries had not been permanent injuries. Counsel asked that if imprisonment was ordered, it be suspended, because the applicant had been placed in a position of great vulnerability because of the fragility of his mental condition and his relationship with Ms Taylor.

17 The learned Crown Prosecutor submitted that the offences were of a very serious nature and merited an immediate custodial disposition. It was pointed out that there had been a degree of planning involved and that the assailant had been requested by the applicant to assault the victim. The learned prosecutor told the Judge that in the video record of interview, the applicant had stated that the plan was that the victim would receive "a smack in the mouth". The applicant had told the police that the assailant was a very aggressive, schizophrenic, delusional and unstable person. Despite knowing that, the applicant had asked him to go around to the victim's home and in essence, teach him a lesson. The applicant had told the police that he had taken it upon himself to get somebody to go around to the victim's house. It was submitted that it had been a cowardly attack and that the victim had suffered severe psychological consequences.

18 In sentencing the applicant the learned Judge said that he had pleaded guilty at the first reasonable opportunity. His Honour noted that the maximum penalty for aggravated burglary was imprisonment for 20 years. He accepted that there had been difficulties between Ms Taylor and the victim. They had come to the notice of the authorities at the hospital by Ms Taylor making a complaint. His Honour said he realised that the applicant had a depressive illness, being a bipolar disorder, for which he had been treated at the Bentley Clinic. He said that that may have left the applicant in a more fragile mental state than somebody who did not suffer from that disability. Nevertheless, the applicant had committed the offences.

19 His Honour said that once the assailant had been let into the victim's flat, a very savage assault had taken place. This had caused the victim to receive a fracture of his nose and bruising to his arms. When he fell, he had been kicked in the forearm with which he was trying to protect his face. His Honour said that it was clear that the victim had been very severely affected, not only physically, but also emotionally, with feelings of being unsafe in his own home and feelings of having to take extra care for his security. The injuries had caused the victim to become depressed.

20 His Honour said that the applicant did not have a significant record. He said:

"It is clear, as I have said, that you may have been vulnerable to a suggestion by the co-offender because of your medical condition, but I think it is also clear that even in your situation it was not an appropriate response to take this way out."

21 He said the applicant had asked the assailant to teach the victim a lesson. His Honour pointed out that there had been no assistance provided to the victim after he had been injured. He said that having in mind the need for personal deterrence and the need for general deterrence, and because these types of offences are becoming more widespread in the community, the community had to be told that self-help of a violent nature is simply not acceptable and cannot be tolerated. His Honour said that where people were in their houses at night and were subjected to physical violence, there was a need not only for personal deterrence but also for general deterrence. He said the only proper sentence was one of imprisonment, but that he had taken into account the pleas of guilty, the applicant's comparatively good record and his medical condition concerning the term of imprisonment which he might otherwise have applied.

22 It is apparent from the medical reports that the applicant had been admitted to Graylands Hospital between 9 February 1998 and 30 March 1998 (the offences were on 17 January 1999) with substance abuse induced paranoid psychosis. The applicant had also attended Cyrenian House which is an alcohol and drug authority rehabilitation centre. Dr Srna reported that the prison medical file revealed that there was evidence of substance-induced psychosis, schizoaffective psychosis, bipolar affective disorder and major depression diagnosis of Mr McColl over a period of four years. There was also mention of hyperactivity as a child and a history of concussion and head injury on the rugby field. It is said that the psychological assessment on the prison file reveals impaired cognition and schizotypal personality make-up. Some of the information reveals that the applicant is emotionally immature.

23 At the hearing of this appeal it was submitted that the applicant was vulnerable and had been influenced by his lady friend. It was submitted that the learned sentencing Judge had disregarded the effect of the psychiatric illness with respect to the question of general deterrence. That where an offender who suffers from a mental disorder or abnormality is sentenced, general deterrence is ordinarily a factor of less weight than usually, because such an offender is not an appropriate vehicle for making an example to others. It was submitted that the learned Judge should have suspended the sentence.

24 Counsel for the respondent advised the court that the assailant had pleaded not guilty and had not yet been dealt with. Neither had Ms Taylor. Counsel said that one of the difficulties with the matter was the paucity of evidence before the court that the applicant's mental condition had played a part in the offences. He said that that proposition did not sit easily with what the facts were. That there was no medical evidence establishing a causal connection between the offences and the applicant's psychiatric condition. That appeared to have been assumed by the learned Judge who had taken it into account from assertions made from the bar table, without the presence of concrete clinical evidence.

25 It was submitted that without that concrete clinical evidence, this Court could not be asked to conclude that his Honour had erred in giving insufficient weight to the applicant's mental condition. Although His Honour had given some weight to the applicant's mental condition, there had simply been no evidence which would properly enable it to be taken into account.

26 In Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998, Steytler J, after referring to some relevant authorities said:

"While it might be so that a serious psychiatric illness might reduce the moral culpability of an offender there is nothing in the evidence in this case to suggest that the applicant's depression had any marked effect on his moral culpability so far as his commission of these offences was concerned or that it was or is such that it should have any significant effect on ordinary principles of general deterrence ... While it might well be inferred from what was said by Dr Kay that the illness, together with the other factors referred to by him, affected the applicant's judgement in such a way as to make him more likely to offend, this seems to me to have been sufficiently taken into account by the learned sentencing Judge who remarked, as I have said, that the severe depression could not excuse or 'fully explain' (my italics) the applicant's conduct. Moreover the learned sentencing Judge reiterated, immediately prior to imposing each of the sentences of imprisonment imposed by him, that he had had regard to the psychiatric factors which he had earlier outlined."

27 Applying Steytler J's reasoning to the facts of this case, in my view it cannot be said that the learned sentencing Judge erred in any way in imposing the immediate sentences of imprisonment upon this applicant. The offences were very serious indeed and the sentences imposed in my view were not unduly severe.

29 ANDERSON J: I have had the advantage of reading in draft the judgment of Wallwork J and I entirely agree with it. There is nothing I wish to add.