JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	MARSHALL -v- MARTYN [2009] WASC 272  

CORAM	:	McKECHNIE J 

HEARD	:	27 AUGUST 2009 

DELIVERED	:	27 AUGUST 2009 

PUBLISHED	:	16 SEPTEMBER 2009 

FILE NO/S	:	SJA 1058 of 2009 

BETWEEN	:	DANIEL JAMES MARSHALL
Appellant
 
AND
 
GREG MARTYN
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA 
Coram	:	MAGISTRATE K T FISHER 
File No	:	BU 2190 of 2009, BU 2191 of 2009 

Catchwords:
Criminal law and procedure - Sentence for aggravated assault - Psychiatric condition - No new principles 
Legislation:
Nil 
Result:
Appeal allowed
Sentence set aside
Appellant resentenced to a term of imprisonment for 7 months, suspended for 7 months 
Category:    D 

Representation:
Counsel:
Appellant	:	Mr D S Hunter
Respondent	:	Ms S J Keighery 
Solicitors:
Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor for Western Australia 

Case(s) referred to in judgment(s):

R v Tsiaras (1996) 1 VR 398
Thompson v The Queen [2005] WASCA 223

McKECHNIE J:  
Background to the appeal
1		On 27 March 2009 the appellant went to the Forrest Family Practice doctor's surgery in Bunbury to renew a prescription for valium.  He received a prescription and went to a nearby pharmacy to have the prescription filled.  At the pharmacy he realised he did not have his wallet.  He returned to the practice where a receptionist told him his wallet had been handed in.  The appellant looked in his wallet and thought that $150 was missing.  The only people in the reception area at the time were an elderly lady, the complainant and his partner and child.  The complainant's partner had in fact handed the wallet in to reception.  The appellant assumed that the complainant had stolen his money.  He was confronted with a problem.  The appellant estimated that the complainant was about 6' 9", much bigger than he.  So the appellant left the clinic, went to his car and got a carjack handle and waited for the complainant to leave, which he did shortly after, together with his partner and child.
2		The appellant said: 'Look, give me the money back' and the complainant said: 'I don't have your money'.  The appellant then said: 'It's best if you give the baby to your partner'.  He raised the carjack in a threatening manner and hit the complainant across the right leg just above the kneecap.  The complainant, his partner and child wisely retreated back into the medical centre.  The staff locked the door and the appellant remained outside, shouting abuse at the victim until the police attended and arrested him.
3		On 15 May 2009 the appellant pleaded guilty to one charge of aggravated assault, the circumstances of aggravation being that there was a child present when the offence was committed: Criminal Code (WA) s 313(1)(a); and one charge of possession of an article with intent to use it to injury or disable a person contrary to the Weapons Act 1999 (WA) s 8(1)(a).
4		The appellant was sentenced to a term of imprisonment of 13 months for aggravated assault, and 4 months' imprisonment for possession of the weapon with intent, to be served concurrently.  A parole eligibility order was made and the sentence was dated to commence from 3 April 2009. 
Result of appeal
5		The appellant appealed against the sentences.  On 27 August 2009, I allowed the appeal and resentenced the appellant as follows:
•	BU 2190/09 - Aggravated assault - 7 months' imprisonment.
•	BU 2191/09 - Possess article with intent - 1 month's imprisonment to be served concurrently.
•	The sentence of 7 months' imprisonment to be suspended for 7 months.
6		These are the reasons for that order.
The appellant's background
7		The magistrate had the benefit of a detailed plea in mitigation by counsel and also a pre‑sentence report and psychiatric report.  The appellant was aged 31 at the time of the offence.  The appellant was born in Victoria and moved to Western Australia at the age of about 20 because of his interest in surfing.  He commenced using illicit substances at an early age, using alcohol from aged 13, cannabis from his early teenage years, IV heroin from aged 17 and IV amphetamines from aged 23, and intermittent usage of ecstasy and LSD.  In recent years he had moderated the range and usage of his substances until he was virtually abstinent from illicit substances because he was working on mine sites which had frequent drug screening at times.  He has used alcohol to excess.  
8		He has had multiple admissions to in‑patient psychiatric facilities and out‑patient psychiatric reviews, initially with diagnoses of substance abuse, psychosis but more latterly with diagnoses of schizophnia and poly‑substance abuse.  The psychiatrist noted that 'it is my opinion that at the time of the alleged offences that he was in a stable phase of his disorder.  He was maintained on appropriate anti‑psychotic medication and in my opinion his illness would not have had a causal or contributory effect to any offending behaviour'.  
9		The history given by the psychiatrist was amplified by counsel before the magistrate.  In particular, counsel emphasised the appellant's lapse into alcoholism which was in part the reason why he was attending to renew his prescription for valium.
10		In sentencing, after recounting the appellant's background, the magistrate noted that the offences were committed at a doctor's surgery, a place where people would be in a delicate state.  He noted that the appellant had left the premises to arm himself and said (ts 9):
The importance of that step is, of course, that you would have contemplated precisely what was about to happen, and for the purpose - and no doubt by reason of the size of the person you're about to approach, armed yourself.  …  The act that you took was serious.  In fact so serious that of itself - is deserving of a custodial sentence.
It is certainly not the most serious that one can contemplate of aggravated assaults, but it is certainly not a minor offence.  In my view it would be an offence falling mid‑range in those contemplated on the scale of ascending culpability.  
11		The magistrate thought the appropriate disposition was one of 18 months in respect of the aggravated assault and something in the order of 6 months for the possession of the weapon with intent.  He then said (ts 10):
It is again unfortunately the case that the reports that I have before me, whilst they set down the sad history that I've referred to, do not indicate until most recent times any hope and expectations for your future, and certainly the indications are that you will continue in every respect, whilst wrestling with alcohol, to continue to meddle with both licit and illicit drugs.  That is the serious concern, because it does not, in my respectful view, assist you as to becoming a valued, contributing member of society.  In fact against the background of your record, it would seem to me that it promotes the conclusion that your conduct and unlawful behaviour will escalate, an escalation that presently, on the face of the record and with this event, seems to be increasing both in frequency and, in the circumstances, seriousness.
In my view at this juncture what is compelling - and I appreciate imprisonment is an option of last resort - is both deterrence and protection of the community.  In the circumstances, given that you've pleaded guilty, it is the first occasion you'll be sent to custody, I will afford you those credits, and you're sentenced in respect to the assault - aggravated assault to 13 months' imprisonment.
As regards the possess the weapon with intent, four months' imprisonment.  They're very much hand-in-glove offences, and they're to be concurrent one with the other.  You're otherwise eligible for parole, and the sentence is to commence from 3 April 2009.
12		Counsel then asked if the magistrate had considered suspending the sentence and he said (ts 11):
I have, and that was why I went to great extent, and I thought I negated that.  If I omitted to mention specifically that I declined to suspend it for reasons of protection and deterrence, I do so now.
Grounds of appeal
Grounds 1 and 2
1.	The Learned Magistrate erred in finding that the Appellant's future conduct and unlawful behaviour would escalate in view of the background of the Appellant's record and meddling with prescribed and illicit drugs.
Particular
(a)	This finding was not a conclusion, which the Learned Magistrate could reasonably make.
2.	The Learned Magistrate when considering the offences and the Appellant's criminal and traffic record erred in finding that there was an increase in both the frequency and the seriousness of the Appellant's offending.
	Particular
(a)	This finding was not one that was consistent with the materials presented to the court and was not a conclusion the Learned Magistrate could reasonably make.
13		The appellant's record is extensive.  Commencing in July 1999, many of the offences are traffic offences including reckless driving, driving under the influence, failing to report a traffic accident, causing bodily harm.  There are a number of possession of prohibited drug offences and one assaulting a public officer.  The most recent offences of driving without authority were dealt with on 18 March 2009 (offence date 5 February 2009), stealing on 24 November 2008 (offence date 8 September 2009), and driving with excess of .08 dealt with on 24 October 2008 but committed on 22 October 2008.
14		The pre‑sentence report indicated that on 17 February 2009 the appellant had been granted conditional bail, having appeared in the Bunbury Magistrates Court on a charge of aggravated assault.  The present offences were committed while he was subject to conditional bail.  Although the appellant was generally compliant with the conditional bail he stated in supervision on 26 February 2009 that he did not care about the conditional bail or the fact that he had to attend for domestic violence relationship counselling.
15		The pre‑sentence report recommendation said:
It is respectfully advised that the appellant is currently not motivated and is unlikely to comply with any programmatic interventions to address mental health issues, illicit substance use and anger management as evidenced by his recent response to conditional bail requirements.  With regards to community work, it is respectfully recommended that Mr Marshall is not considered suitable given his current needs and risk, which could compromise his ability to participate in community service.
16		Ground 1 of the appeal does not accurately reflect the magistrate's reasons.  The magistrate's conclusion as to escalation was based not only on the face of the record but with the events for which the appellant was to be sentenced.  When those are taken into account, coupled with the comments in the pre‑sentence report, the magistrate's conclusions that 'the appellant's conduct and unlawful behaviour seems to be increasing in both frequency and, in the circumstances, seriousness' is amply justified.  I did not uphold grounds 1 or 2.
Grounds 3 and 4
3.	The Learned Magistrate erred in imposing a sentence of imprisonment to be immediately served given:
	Particulars
(a)	The Learned Magistrate placed too much emphasis on the importance of general and specific deterrence despite the unusual circumstances of the offending by the Appellant and the Appellant suffering from mental health problems at the time.
(b)	When the offences occurred the Appellant's judgment was clouded as a result of being anxious due to losing money that he needed to purchase medication to address his alcohol addiction, which the Appellant believed the complainant had stolen.
(c)	The Learned Magistrate's finding that the aggravated assault committed by the Appellant was not the most serious of its kind and fell within the mid range of culpability of such offences.
(d)	The Appellant's early pleas of guilty.
(e)	The Appellant's remorse.
(f)	The time spent in custody by the Appellant prior to sentence.
(g)	The Appellant had never before been subject to an immediate or suspended period of imprisonment.
(h)	The support offered by the Appellant's partner and friends.
(i)	The Appellant's record of convictions comprising mainly minor offences.
(j)	The efforts made by the Appellant before and after he was placed in custody to address and overcome his alcohol addition.
4.	The aggregate sentence of 13 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 in regard to all the circumstances of the case including those personal to the Appellant and the Appellant suffering mental health problems at the time.
17		The particulars of ground 4 are similar to those in ground 3.  It is convenient to deal with these grounds together.
18		I commence my consideration by stating that, in my opinion, a sentence of imprisonment was open and the appellant had failed to demonstrate that the magistrate's discretion miscarried in imposing a sentence of imprisonment.  I agree with the magistrate's categorisation of this offence as 'in the mid‑range of seriousness for an assault'.  There is no evidence that the complainant had taken the money or knew that money was taken.  The appellant immediately resorted to violence having armed himself beforehand.  The magistrate clearly took account of the early pleas of guilty because he reduced his sentence significantly from the starting point he had stated.
19		The one error which I respectfully consider the magistrate did make, both in setting the length of sentence and in declining to suspend the sentence, is his emphasis on deterrence.  The magistrate correctly appreciated that imprisonment was an option of last resort.  However, he failed to take sufficient account of the appellant's psychiatric issues.  The psychiatrist's opinion was that the illness did not have a contributory effect to the offending behaviour.  However, the other material before the magistrate did suggest that the appellant's behaviour was clouded as a result of his anxiety and underlying conditions.  Dr Singh had written:
This is to inform that Mr Daniel is a known case of Paranoid Schizophnia and also has alcohol withdrawal symptoms which he is addressing at the South West Community Drug Service Centre.
20		In Thompson v The Queen [2005] WASCA 223 at [52] Steytler J noted that it was settled that serious psychiatric illness not amounting to insanity is relevant to sentencing and cited, with approval, R v Tsiaras (1996) 1 VR 398 at 400.
21		In such cases the element of general deterrence is lessened as a portion of the sentence and sometimes personal deterrence as well.
22		Taking into account the principles in Thompson I considered that a sentence of 8 months' imprisonment was appropriate.  The appellant had already served a period in custody so I imposed a sentence of 7 months' imprisonment.
23		The magistrate considered, but rejected, suspending the sentence for reasons of protection and deterrence.  In this he respectfully made the same error as in setting the sentence.  It was necessary for me to exercise the discretion afresh.  The appellant does seem to be making efforts to address his longstanding addictions.  There is some conflict in the materials between the pre‑sentence report and some of the medical information as to the extent of the appellant's commitment to this process but I consider that he has at least some commitment to overcoming the issues that have made him a persistent law‑breaker.  
24		The appellant had not been to prison before.  While not necessarily decisive against a term of immediate imprisonment, it was nevertheless a factor to be weighed in considering whether, notwithstanding that the last resort has been reached, the circumstances may nevertheless allowed for suspension of sentence.  I am clearly of opinion that they did.  Although I accept the magistrate's conclusion as to the appellant's escalation of offending, there is nonetheless a considerable gap between his convictions for assault.
25		Moreover, it should not be forgotten that a sentence of suspended imprisonment is a real sentence.  A serious breach of a term of suspended imprisonment almost always results in an activation of the sentence.  It is a Sword of Damocles hanging over the head of the offender and thus a significant encouragement for the offender to be law‑abiding.  There is, in that sense, protection to the community.  
26		It is for these reasons that I allowed the appeal and made the orders set out.