AA v Anthony
[2016] WASC 127
•22 APRIL 2016
AA -v- ANTHONY [2016] WASC 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 127 | |
| Case No: | SJA:1099/2015 | 11 APRIL 2016 | |
| Coram: | CHANEY J | 22/04/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellants resentenced | ||
| B | |||
| PDF Version |
| Parties: | AA STEPHEN ANTHONY RA |
Catchwords: | Criminal law Participation in unlawful assembly Spent conviction Parity of sentence Whether manifestly excessive penalty |
Legislation: | Criminal Code (WA), s 63, s 65 Migration Act 1958 (Cth), s 501, s 501(6)(aa)(i) Sentencing Act 1995 (WA), s 39(2), s 45(1) |
Case References: | Frewen v Dalgreen [2014] WASC 407 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v Di Gregorio [2014] WASC 255 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Stoysich v The State of Western Australia [2014] WASCA 208 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
STEPHEN ANTHONY
Respondent
- Appellant
AND
STEPHEN ANTHONY
Respondent
ON APPEAL FROM:
For File No : SJA 1099 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L J ATKINS
File No : PE 58875 of 2015
For File No : SJA 1100 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L J ATKINS
File No : PE 58874 of 2015
Catchwords:
Criminal law - Participation in unlawful assembly - Spent conviction - Parity of sentence - Whether manifestly excessive penalty
Legislation:
Criminal Code (WA), s 63, s 65
Migration Act 1958 (Cth), s 501, s 501(6)(aa)(i)
Sentencing Act 1995 (WA), s 39(2), s 45(1)
Result:
Appeal allowed
Appellants resentenced
Category: B
Representation:
SJA 1099 of 2015
Counsel:
Appellant : Mr A G Elliott
Respondent : Ms K A Gregory
Solicitors:
Appellant : NR Barber Legal
Respondent : Director of Public Prosecutions (Cth)
SJA 1100 of 2015
Counsel:
Appellant : Mr A G Elliott
Respondent : Ms K A Gregory
Solicitors:
Appellant : NR Barber Legal
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Frewen v Dalgreen [2014] WASC 407
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v Di Gregorio [2014] WASC 255
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Stoysich v The State of Western Australia [2014] WASCA 208
1 CHANEY J: On 4 December 2015, each of these appellants was convicted, on their plea of guilty, to a charge of taking part in an unlawful assembly contrary to s 63 of the Criminal Code (WA). Magistrate L J Atkins accepted the plea and ordered, in each case, the appellant be released on a conditional release order in the sum of $4,000 for a period of 12 months. Her Honour rejected an application by counsel for each appellant that she make a spent conviction order pursuant to s 39(2) of the Sentencing Act 1995 (WA). Each appellant appeals against the sentence imposed and against the refusal to make a spent conviction order on the following grounds:
1. The learned magistrate erred in not making a spent conviction order in the circumstances of this case.
2. The sentence imposed by the learned magistrate was unjustifiably disparate to sentences imposed on other detainees charged with the same offence in respect of the same unlawful assembly such that the Appellant is left with a justifiable sense of grievance in respect of the harsher sentence imposed on him.
3. The sentence imposed by the learned magistrate was manifestly excessive, such that a different sentence should have been imposed.
2 The matters were dealt with together by the magistrate.
The information before the magistrate
3 The prosecutor read from the statement of material facts. Those facts were as follows:
1. At about 7.10 pm on Friday, 5 September 2014 a disturbance occurred outside 'C' block within the Gold One compound at the North West Point Immigration Detention Centre (NWP IDC), Christmas Island involving a number of Iranian and Vietnamese detainees.
2. The disturbance was minor in nature whereby a few tables were turned over and a few plastic chairs thrown. The chairs did not appear to hit anybody. It appears the cause of the disturbance was the removal of damp clothing belonging to an Iranian detainee from the dryer by a Vietnamese detainee. SERCO staff within the compound stopped the disturbance before it escalated.
3. This caused tension between the Iranian and Vietnamese detainees whereby a number of Vietnamese detainees remained in front of 'C' block and Iranian detainees remained in and outside 'A' block.
4. At about 8.25 pm on Friday, 5 September 2014 a further disturbance occurred outside 'C' block within the Gold One compound at the NWP IDC involving a number of Iranian and Vietnamese detainees.
5. The disturbance escalated as detainees started throwing plastic chairs, plastic plates, pieces of furniture, toasters and loose soil at each other. Some of the detainees were kicking and punching each other.
6. The disturbance moved from 'C' block past 'B' block to a common grass area outside 'A' block where the detainees continued to throw plastic chairs, plastic plates, toasters and cartons of milk at each other.
7. SERCO staff attempted to stop the disturbance without success. They picked up chairs so the detainees could not use them. This did not stop the detainees who continued to throw plastic chairs, plates, toasters and other items at each other.
8. The disturbance moved from outside 'A' block past 'B' block and into a common grassed area outside 'C' and 'D' block where detainees continued to throw plastic chairs at each other until the disturbance stopped. The disturbance lasted about seven minutes.
9. After the disturbance had stopped, debris from broken plates, chairs, toasters and other furniture remained on the ground. Some detainees were holding plastic chairs and others were breaking plastic chairs into pieces that could be used for throwing.
[AA]
10. Members of the AFP viewed the Closed Circuit Television (CCTV) footage which shows a male person, namely [AA], date of birth 6 February 1983, taking part in the disturbance.
11. [AA] is seen carrying a plastic chair, running on the common grass area from 'C' block to 'D' block, towards a group of Vietnamese detainees. [AA] is then seen to throw the plastic chair at a Vietnamese detainee.
12. On the common grassed area near 'D' block [AA] is seen to approach a Vietnamese detainee and fight over the possession of a plastic chair being held by the Vietnamese detainee. The Vietnamese detainee drops the plastic chair on the ground and runs away from [AA]. [AA] is then seen to pick up the plastic chair and runs towards other Vietnamese detainees and throws the chair at a Vietnamese detainee. The Vietnamese detainee crouches and raises his arms to his head when the chair is thrown at him.
13. On Saturday, 15 November 2014, [AA] declined to participate in a taped record of interview.
[RA]
14. Members of the AFP have viewed the CCTV footage which shows a male person, namely [RA], date of birth 6 July 1980, take part in the disturbance.
15. [RA] is seen walking out of a room in 'A' block, picking up a toaster off the floor and throwing it in the direction of the Vietnamese detainees. [RA] is then seen wrapping some material around his right wrist.
16. [RA] walks back into the room and emerges a few seconds later with an item in each hand. [RA] throws the items at the Vietnamese detainees. The second item thrown by [RA] contained a white liquid.
17. [RA] is then seen carrying a broken toaster and throwing it on the ground in front of 'B' block.
18. On Saturday, 15 November 2014, [RA] declined to participate in a taped record of interview.
OTHER
19. On the evening of Friday, 5 September 2014, ninety detainees were housed in the Gold One compound of which twenty eight were Iranian and twenty four were Vietnamese. Not all of the detainees in the compound that night were involved in the disturbance.
20. Some detainees that were not involved in the disturbance described the disturbance as being loud, noisy, disrupted the compound and they feared for their safety, the safety of other detainees and SERCO staff. Some hid in their rooms while others watched from a distance.
21. The compound is normally peaceful and detainees go about their business without fear or apprehension of violence.
4 The magistrate also had before her torture and trauma reports in relation to each of AA and RA. The reports were prepared by a counsellor apparently employed by the Indian Ocean Territories Health Service.
5 In relation to AA, the report suggested that he suffered from post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and panic disorder, separation anxiety disorder, grief and loss, trichotillomania (hair-pulling disorder), and psychosocial and environmental problems. It recounted events in AA's home country which caused him to fear for his life. It reported that he had been in detention for over 18 months without any clear indications of options for his future. He reported a number of concerns about lost connections with family and friends in his home country and frustration at being held in detention. He was reported to have articulated that he had never done anything of the nature of the events the subject of the charges before and was 'very upset with his response to the situation'. The report concluded that there was no evidence to suggest that AA had any behavioural issues or would present a problem in society, and recommended that he be provided with access to ongoing psychological interventions.
6 The report in relation to RA diagnosed him as suffering post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and panic disorder, grief and loss, and psychosocial and environmental problems flowing from his detainment. The report recounted events in RA's home country which led to three unsuccessful attempts to escape that country before he eventually made it to Indonesia, where he spent two years seeking refuge through the United Nations. He eventually arrived at Christmas Island where he was detained for 18 months. He explained that his conduct was a result of feeling intimidated by other detainees. The report assessed RA as not being a 'threat for behavioural issues' and as being no 'risk to the community in any capacity'.
7 Each of the appellants had also been charged with taking part in a riot contrary to s 65 of the Criminal Code. As a result of prehearing negotiations on behalf of each of these appellants and eight other detainees on the one hand and the prosecuting authorities on the other, the prosecution agreed that upon the appellants (and apparently the other detainees charged) pleading guilty to taking part in an unlawful assembly, the charges of participating in a riot would be discontinued and the prosecution would not make any submissions on sentence but would leave the sentence to the discretion of the magistrate, and would neither consent to nor oppose any application for a spent conviction order pursuant to s 45 of the Sentencing Act. Consistently with that agreement, the prosecution made no submissions as to sentence at the hearing before the magistrate.
8 Counsel for each of the appellants submitted that both men were deeply remorseful as to their respective involvement in the events of 5 September 2014. Attention was drawn to the torture and trauma reports in relation to each appellant. In each case, it was submitted that the appellant was of good character and that a spent conviction order was appropriate. Counsel also drew her Honour's attention to s 501 of the Migration Act 1958 (Cth). That section enables the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is defined by s 501(6) which relevantly provides that a person does not pass the character test if the person has been convicted of an offence that was committed while the person was in immigration detention (s 501(6)(aa)(i)). Counsel for the appellants submitted that the application of s 501 of the Migration Act, against the circumstances of the offence and background of each appellant, would be a disproportionate response to their conduct.
The magistrate's decision
9 The magistrate determined that there should be a conditional release order in relation to each appellant for a period of 12 months in the sum of $4,000. Her Honour said that the main reason for making a conditional release order was because neither appellant had any financial support or finances at all and therefore the only realistic alternative would have been imprisonment which was not appropriate.
10 In relation to the question of a spent conviction order, the magistrate found each of the appellants to be of previous good character and was satisfied that each were unlikely to commit an offence of the same nature again. Her Honour found that the offence was not trivial but, having found that each appellant was unlikely to commit a like offence again and was of previous good character, her discretion to order a spent conviction was enlivened. She concluded:
I have before me, of course, the reports from a counsellor from the island and I have heard, in some detail, from your counsel. This afternoon it has been drawn to my attention the conduct of section 501 of the Migration Act. I am still to have regard, though, to what occurred on the island and the way that island has - the detention centre on the island has to run. Whilst I'm told that the incident only lasted for some seven minutes, it was still a serious incident involving the both of you. It not only involved both of you but others in the detention centre as well.
When deciding whether to make a spent conviction order, I have regard to your personal circumstances and I can also have regard to the issue of general deterrence also. I have concluded it is not appropriate for me to make spent conviction orders today; the application for them is therefore refused.
Legal principles
11 Section 45(1) of the Sentencing Act provides as follows:
(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a) it considers that the offender is unlikely to commit such an offence again; and
(b) having regard to -
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is evident from the language of the section that the power to make a spent conviction order arises only if three conditions are satisfied. First, the court must consider that the offender is unlikely to commit such an offence again. Secondly, either the offence must be trivial or the offender must be of previous good character. Thirdly, the court must consider, having regard to the relevant alternative on the second question, that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
It is well-established that once these preconditions to the exercise of the power are satisfied the court has a discretion, not a duty, to make (or not make) a spent conviction order.
In R v Tognini,Murray J (Malcolm CJ & Wallwork J agreeing) said as follows:
'Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable.
…
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community.'
These passages have been applied in subsequent decisions of the Full Court and Court of Appeal in this State.
Among others, the following propositions emerge from these cases:
(a) the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b) the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and
(c) in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender.
In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.
One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect.
Another aspect of the public interest may be a public interest in an employer or potential employer being aware of the conviction insofar as the conviction may be relevant to assessing the person's reliability or suitability for a particular type of work.
Because the decision whether to make a spent conviction order is discretionary, an appellate court may not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the discretion differently. The question on an appeal is whether the failure of the magistrate to make a spent conviction order involved a material error of fact or law, revealed either by the reasons of the sentencing court or by implication from the failure to make a spent conviction order in circumstances which required the magistrate to make such an order [14] - [22].
Ground 1
13 Ground 1 is expressed in unacceptably broad terms and as framed is not a proper ground of appeal. A ground of appeal should identify the error said to have been made, not simply assert that the magistrate should not have made the decision that was made.
14 The appellants' submissions did not separately address the grounds of appeal. The appellants' written submissions were in substance directed to questions of parity, which arise in relation to ground 2, and an assertion that the magistrate's focus on the seriousness of the incident, rather than giving proper consideration to the role of the offenders in the incident, was an error. That latter submission does not fall readily into any of the three grounds of appeal.
15 In oral submissions, counsel for the appellants explained that, in substance, ground 1 asserts that no other decision was open to the magistrate than to order that the conviction be spent. The appellants referred to the explanation of the legal principles in Frewen v Dalgreen and M v Di Gregorio [2014] WASC 255 (which also drew upon R v Tognini [2000] WASCA 31; (2000) 22 WAR 291). They argued that the application of those principles to the facts of this case, especially the circumstances of offending and the consequences of conviction, lead to the conclusion that a spent conviction was the only available outcome within the scope of proper sentencing discretion.
16 I do not accept that submission. I do accept that there was a strong case for ordering a spent conviction. It was, however, open to the magistrate to assess, as she did, the need for general deterrence along with the other relevant circumstances. The discretion to make spent conviction orders is of an exceptional character and should be exercised sparingly. It is not to the point to ask whether this court might have reached the same conclusion as the magistrate. I do not consider that it can be said that an implied error can be found to have been made by the magistrate simply because she made the decision that she did.
17 I refuse leave to appeal on ground 1.
Ground 2 - parity
18 As noted above, matters of parity of sentence were the focus of the appellants' submissions.
19 A number of other participants in the unlawful assembly were charged, and, it would appear, pleaded guilty on the basis that the more serious charge of participation in a riot could be withdrawn and the prosecution would make no submissions as to penalty or as to the appropriateness of an order for spent conviction. It was common ground between the parties to this appeal that these two appellants were the first of the group to be dealt with. Others had apparently appeared earlier before a different magistrate, but that magistrate had adjourned those matters to a date which, as it happened, was shortly after the hearings in relation to these two appellants.
20 Each of the other offenders received a sentence of a conditional release order to be of good behaviour for six months in the amount of $100, and the conviction in each case was spent. Although, consistently with the original agreement reached between the prosecution and defence, counsel for the respondent on the appeal neither conceded nor opposed the appeal, she helpfully provided extracts from the statements of material facts particular to the conduct of each other offender. Those facts were as follows:
[KAS]
8. Members of the AFP viewed the Closed Circuit Television (CCTV) footage which shows a male person, namely [KAS], born 29 October 1992, taking part in the disturbance.
9. [KAS] is seen standing in front of 'C' block being hit with a chair that was thrown by a Vietnamese detainee. [KAS] walked to 'B' block, picked up a plastic chair and threw it in the direction of the Vietnamese detainees. [KAS] picked up another plastic chair and threw it at the Vietnamese detainees.
10. [KAS] is then seen in 'A' block where he picked up a plastic plate and threw it at the Vietnamese detainees.
11. [KAS] is then seen carrying a plastic chair and walking behind the Vietnamese detainees towards the common grass area outside 'C' and 'D' block.
12. On Saturday, 15 November 2014, [KAS] declined to participate in a taped record of interview.
[HBR]
13. Members of the AFP viewed the Closed Circuit Television (CCTV) footage which shows a male person, namely [HBR], date of birth 14 January 1990, taking part in the disturbance.
14. [HBR] is seen holding a plastic chair above his head and throwing it to the ground in front of 'C' block. He then runs towards the Vietnamese detainees in front of 'C' block and with his right leg, kicks a Vietnamese detainee on his backside and punches him with his right hand. The Vietnamese detainee falls to the ground and [HBR] is hit on the head with an object by another Vietnamese detainee.
15. [HBR] hunches over holding his head and runs back to towards 'B' block. He then walks to the common grass area in front of 'B' block, picks up an object from the ground and throws it towards the Vietnamese detainees in front of 'C' block.
16. With his right leg, [HBR] then kicks a Vietnamese detainee who has fallen to the ground. [HBR] also falls to the ground, tries to take hold of the Vietnamese detainee and is punched by the Vietnamese detainee. [HBR] then runs away towards 'A' block.
17. [HBR] is then in 'A' block holding a plastic chair and throwing it in the direction of the Vietnamese detainees on the common grass area in front of 'A' block. [HBR] also picks up a piece of broken plastic plate and throws it in the same direction.
18. [HBR] then chased Vietnamese detainees towards the common grass area outside 'C' and 'D' blocks.
19. On Saturday, 15 November 2014, [HBR] declined to participate in a taped record of interview.
[AG]
20. Members of the AFP viewed the CCTV footage which shows a male person, namely [AG], born 05 July 1979, taking part in the disturbance.
21. [AG] is seen in front of 'C' block throwing a plastic plate in the direction of Vietnamese detainees. [AG] walked to 'B' block with other Iranian detainees. In the area of 'B' block [AG] is seen throwing a plastic plate at the Vietnamese detainees.
22. [AG] ran to 'A' block and is seen picking up a plastic chair. [AG] then walked towards the Vietnamese detainees standing on the common grass area in front of 'A' block and is seen to throw the plastic chair at them. [AG] walked back into 'A' block and is seen picking up a plastic plate. [AG] then walked towards the Vietnamese detainees on the common grass area in front of 'A' block and is seen to throw the plastic plate at them. [AG] walks back into 'A' block and is seen picking up a white plastic bottle. [AG] then walked towards the Vietnamese detainees on the common grass area in front of 'A' block and is seen to throw the white plastic bottle at them. [AG] walked back into 'A' block and is seen picking up a plastic chair. [AG] then walked towards the Vietnamese detainees standing on the common grass area in front of 'A' block and is seen to throw the plastic chair at them.
23. [AG] then runs with other Iranian detainees towards the Vietnamese detainees on the common grassed area in front of 'D' block.
24. On Saturday, 15 November 2014, [AG] declined to participate in a taped record of interview.
[MG]
25. Members of the Australian Federal Police (AFP) viewed the Closed Circuit Television (CCTV) footage which shows a male person, namely [MG], date of birth 18 April 1988, taking part in the disturbance.
26. [MG] is seen throwing a plastic plate and a plastic chair at the Vietnamese detainees in front of 'C' block. [MG] is also seen in front of 'B' block throwing a carton of milk at the Vietnamese detainees.
27. [MG] is also seen in 'A' block throwing a plastic chair towards the Vietnamese detainees. He is then seen carrying two plastic chairs into the common grass area outside 'A' block. [MG] throws one of the plastic chairs towards the Vietnamese detainees, discards the other plastic chair and returns to 'A' block and enters one of the rooms.
28. [MG] emerges from the room a few seconds later and is seen to be carrying a length of electrical cord. He is seen chasing the Vietnamese detainees towards the common grass area outside 'C' and 'D' block.
29. On Tuesday, 18 November 2014, [MG] declined to participate in a taped record of interview.
[AJ]
30. Members of the AFP viewed the CCTV footage which shows a male person, namely [AJ], date of birth unknown, taking part in the disturbance.
31. [AJ] is seen throwing chairs at the Vietnamese detainees in front of 'C' block.
32. [AJ] is also seen in 'A' block throwing a toaster and a plastic chair towards the Vietnamese detainees. He is then seen chasing the Vietnamese detainees towards the common grass area outside 'C' and 'D' blocks and throwing a plastic chair.
33. On Saturday, 15 November 2014, [AJ] declined to participate in a taped record of interview.
[IM]
34. Members of the AFP viewed the CCTV footage which shows a male person, namely [IM], born 31 December 1964, taking part in the disturbance.
35. [IM] is seen carrying a plastic chair, running on the common grass area from 'C' block to 'D' block, towards a group of Vietnamese detainees. [IM] is then seen to throw the plastic chair at a Vietnamese detainee. The Vietnamese detainee raises his arms to shield himself from the plastic chair.
36. On Saturday, 15 November 2014, [IM] declined to participate in a taped record of interview.
[VMN]
37. Members of the AFP have viewed the CCTV footage which shows a male person, namely [VMN], born 08 June 1988, taking part in the disturbance.
38. [VMN] is seen carrying a plastic chair and striking a Vietnamese detainee who is on the ground in front of 'C' block. [VMN] is then seen retreating towards 'B' block and has removed his singlet. He is seen in 'A' block with other Iranian detainees.
39. [VMN] is then seen chasing Vietnamese detainees towards the common grass area outside 'C' and 'D' blocks where he strikes out with his right leg at a Vietnamese detainee.
40. On Saturday, 15 November 2014, [VMN] declined to participate in a taped record of interview.
[AR]
41. Members of the AFP have viewed the CCTV footage which shows a male person, namely [AR], born 25 February 1986, taking part in the disturbance.
42. [AR] is seen throwing four plastic chairs, two plastic plates and one toaster at the Vietnamese detainees in front of 'C' block. He is also seen throwing a chair at the Vietnamese detainees in front of 'B' block.
43. [AR] is also seen in 'A' block picking up an orange coloured basket, running with it into a common grass area outside block 'A' dropping it and picking up a plastic chair. [AR] throws the plastic chair towards the Vietnamese detainees and picks up another one.
44. [AR] drops the chair and then removes his shorts and underpants leaving his shoes on. He picks up a chair and throws it towards the Vietnamese detainees, who run towards him with plastic chairs. [AR] then returns to the front of 'A' block where he picks up a toaster and throws it.
45. He is then seen entering a room of another Iranian detainee and emerging after a few seconds wearing a pair of dark coloured shorts and carrying a green coloured towel.
46. [AR] is then seen chasing the Vietnamese detainees towards the common grass area outside 'C' and 'D' block, picking up a plastic chair and throwing it at one of the Vietnamese detainees.
47. On Saturday, 15 November 2014, [AR] declined to participate in a taped record of interview.
21 Ground 2 invokes the parity principle. The parity principle is explained by Buss JA (with whom Martin CJ and Mazza JA agreed) in Stoysich v The State of Western Australia [2014] WASCA 208 where he said [39] - [41]:
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a) the parity principle is based upon the norm of 'equality before the law' [28];
(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
22 Although the sentences in relation to the other offenders had not been imposed at the time that her Honour sentenced the appellants, there can be no question that the disparity between the sentences imposed on the eight other offenders on the one hand and the appellants on the other is capable of giving rise to a legitimate or justifiable sense of grievance on the part of the appellants, and gives the objective appearance that justice has not been done.
23 While the recitation set out above of the facts concerning the other eight offenders do not extend to other mitigating or personal factors in relation to each offender, the facts of the offending in the other eight cases are at least as serious as, and in some cases involving actual assaults by kicking arguably more serious than, the facts of offending by each of the appellants. The consequential application of s 501 of the Migration Act was no doubt a common feature in all cases. It is unlikely that the personal circumstances of each of the other eight offenders would have been more powerfully mitigatory than the personal circumstances revealed to the magistrate in relation to these appellants.
24 By reason of the unjustified discrepancy between the sentences imposed upon these offenders when measured against the sentences imposed on the other eight offenders, the parity principle has been infringed and there has been a miscarriage of justice to the extent that the sentences on the appellants remain undisturbed.
25 There should be leave to appeal on ground 2, and I allow the appeal on that ground.
Ground 3 - manifest excess
26 An appellate court may not substitute its own opinion for that of the sentencing court merely because it would have exercised the discretion differently - Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. An appeal court can only intervene if the appellant demonstrates that the court at first instance made a material error, being either an express or implied error. A claim of manifest excess involves establishing an implied error. What must be established is that the sentence imposed is plainly unjust or unreasonable, and could not have been reached in the proper exercise of the sentencing discretion. The question must be determined having regard to the maximum sentence prescribed for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
27 In this case, the appellants argued that the appropriate standard of sentence in respect to the offence which the appellants were charged should be measured against the sentences imposed on the other eight offenders. They did not seek to review more broadly the range of sentences customarily imposed in relation to offences against s 63 of the Criminal Code. That is unsurprising given the difficulty in obtaining data on sentencing for simple offences in the Magistrates Courts and the absence of any appeal court authority on the question.
28 The maximum penalty for an offence against s 63 is imprisonment for 12 months and a fine of $12,000. The magistrate viewed the events in which the appellants were involved as a serious incident. Her Honour considered that general deterrence was an important sentencing factor. Her Honour concluded, with respect correctly, that imprisonment was not appropriate and that, given the appellants' personal situations, the only realistic alternative was a conditional release order.
29 The appellants contend that the sentence was manifestly excessive in two respects. The first was as to the amount of the undertaking required under the conditional release order, namely $4,000 as distinct from the $100 undertaking required for the other offenders. The second is as to the refusal to grant a spent conviction order. Putting aside the question of parity, I have already concluded, in relation to ground 1, that there is no implied error merely by the refusal to make a spent conviction order.
30 The amount of the undertaking to be paid, in the event that the terms of the conditional release order were not observed or a further offence was committed, was no doubt designed to achieve the objective of deterrence to which the magistrate referred in passing sentence. Having expressly found that each of the appellants was unlikely to commit an offence of the same nature again, and were of previous good character, personal deterrence might be thought to have been a less significant sentencing factor. General deterrence, to which the magistrate expressly referred, was, however, likely to be better served by a greater rather than smaller CRO undertaking.
31 There is a very great difference in the amount of the undertaking required in relation to the other offenders ($100) and that imposed in respect of these appellants ($4,000). It might well be said that the amount set in relation to the other offenders was quite lenient, while the amount set in relation to these appellants was quite severe.
32 Taken in isolation, I do not consider that the amount of the undertaking can be regarded as manifestly excessive. That does not, of course, affect my conclusion that ground 2 should be upheld. I grant leave to appeal in relation to ground 3, but I dismiss that ground.
Resentencing the appellants
33 On the materials before me, there is nothing to distinguish the offending behaviour, the personal circumstances or the consequences of conviction between these appellants and the other offenders who were each placed on conditional release orders to be of good behaviour for six months in the amount of $100. The principle of parity leads me to conclude that the sentence imposed on each appellant should be set aside, and should be substituted with a sentence that each appellant be placed on a conditional release order to be of good behaviour for six months in the amount of $100. There should be a spent conviction order in respect of each appellant.
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