Arnold v The State of Western Australia

[2019] WASCA 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ARNOLD -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 27

CORAM:   BUSS P

BEECH JA

HEARD:   25 JANUARY 2019

DELIVERED          :   7 FEBRUARY 2019

FILE NO/S:   CACR 226 of 2018

BETWEEN:   KARL JOSHUA ARNOLD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   QUAIL DCJ

File Number             :   IND 700 of 2018

Catchwords:

Criminal law - Application for leave to appeal against sentence - Parity principle

Legislation:

Criminal Code (WA), s 392
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	No appearance

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

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

Barnden v The State of Western Australia [2014] WASCA 161

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

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

Stanley v The State of Western Australia [2018] WASCA 229

JUDGMENT OF THE COURT:

1. The appellant has applied for leave to appeal against sentence. 

2. The appellant and his co-offender, Grace Lorraine Davis, were convicted on their pleas of guilty of one count in an indictment.

3. The count pleaded that on 27 February 2018, at Perth, the appellant and Ms Davis stole from the owner of a supermarket, with violence, food and drink the property of the owner, and that the appellant and Ms Davis were in company with each other, contrary to s 392 of the Criminal Code (WA).

4. On 6 November 2018, Quail DCJ sentenced both the appellant and Ms Davis.  The appellant received a sentence of 20 months' immediate imprisonment with eligibility for parole.  Ms Davis received a sentence of 15 months' immediate imprisonment with eligibility for parole. 

5. The sole ground of appeal alleges that the appellant has 'a justifiable sense of grievance due to the marked disparity between his sentence and the sentence [imposed on Ms Davis]'.

6. We would refuse leave to appeal and dismiss the appeal.  Our reasons are as follows.

The facts and circumstances of the offending

1. At about 11.00 am on 27 February 2018, Ms Davis left the Perth Magistrates Court after an appearance in that court in connection with an unrelated matter.  She walked with the appellant to a supermarket in Hay Street, Perth.  The appellant and Ms Davis entered the supermarket and began selecting items from the shelves.

2. The appellant selected two Nippy's milk containers and placed them between his back and his backpack.  Ms Davis selected two mandarins, an Orange C drink and a small container of sweet chilli dip.  A worker at the supermarket saw the offenders acting suspiciously and thought they were endeavouring to steal items.  The worker informed the store manager who confronted them.  The store manager demanded that the offenders put down the items and leave the supermarket.

3. Ms Davis put down the Orange C drink and the sweet chilli dip.  The store manager stood in front of the appellant to attempt to prevent him from leaving the supermarket with the two Nippy's milk containers.  The appellant shoved the store manager against an aisle.  The offenders walked to the front of the supermarket.  The store manager again attempted to prevent them from leaving.  Ms Davis grabbed the store manager's 18 carat gold necklace and removed it from his neck.  The offenders then left the supermarket and walked to the McIver train station where they caught a train.

4. Later, the store manager's gold necklace was used as security for a loan from Cash Converters.  The necklace was eventually recovered.

The sentencing judge's sentencing remarks

1. The sentencing judge recounted the facts and circumstances of the offending.

2. The information before his Honour included a presentence report in respect of Ms Davis.  His Honour did not have a presentence report in respect of the appellant because he had failed to attend a scheduled interview with a Community Corrections Officer.

3. Ms Davis was born on 4 June 1995.  She was aged 22 at the time of the offending and was 23 when sentenced.  She was born in Victoria.  Her parents separated when she was young.  Ms Davis had a positive home life until she was aged about 9.  At that time she was the victim of serious criminal abuse and her life deteriorated.  She left home when she was aged about 15 and began using illicit drugs.  Ms Davis was introduced to illicit drugs by an older man with whom she was in a relationship.  She was a victim of domestic violence from this man.  More recently, Ms Davis had been in a relationship with the appellant.  Their relationship was characterised by mutual dependence, homelessness and the daily use of illicit drugs.  Fortunately, Ms Davis did not also abuse alcohol. 

4. A medical practitioner had diagnosed Ms Davis as suffering from depression.  At the time of the offending she had not been taking her medication.

5. Ms Davis completed year 11 at school.  At the time of the offending she was unemployed and in receipt of Centrelink benefits.  She last worked in 2014/2015 as a cashier.

6. At the time of the offending Ms Davis was on bail in respect of another alleged offence.  She has a prior criminal record; in particular, previous convictions for possessing cannabis, stealing, obstructing public officers, possession of stolen or unlawfully obtained property, common assault and traffic offences.  Fines were imposed for the previous offences.

7. The sentencing judge allowed Ms Davis a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for her plea of guilty. His Honour accepted that Ms Davis was remorseful, that there was some evidence of cooperation based upon admissions she had made to the police and that she had some insight into her offending behaviour. Ms Davis' youth was a significant mitigating factor.

8. The appellant was born on 14 August 1988.  He was aged 29 at the time of the offending and was 30 when sentenced.  He had a difficult upbringing and was exposed to violence at a young age.  The appellant left school when he was about 14 and soon became involved in heroin abuse.  However, to his credit, the appellant managed to obtain qualifications that would facilitate his employment in the building and construction industry.  He has worked in tree surgery and tree lopping.  The appellant has a good work history.

9. At the time of the offending the appellant was on bail in respect of another alleged offence.  He has an extensive record of convictions which reflects his long‑term involvement with illicit drugs.  His previous convictions include stealing (multiple offences), gaining a benefit by fraud (multiple convictions), unlawful damage (multiple offences), trespass, common assault (multiple offences), assault occasioning bodily harm, disorderly behaviour in public, breach of protective bail conditions, breach of a violence restraining order, escaping from lawful custody, breach of a bail undertaking, assaulting a person working in a hospital, breach of an intensive supervision order, aggravated burglary and committing an offence in a place, possession of prohibited drugs (multiple offences) and sundry traffic offences including reckless driving.  The appellant has previously served terms of imprisonment.

10. His Honour allowed the appellant a discount of 20%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty.  His Honour accepted that the appellant was remorseful and that there was some evidence of cooperation based upon admissions he had made to the police.

11. The sentencing judge noted in connection with parity that:

    (a)Ms Davis had the mitigation of youth whereas the appellant did not;

    (b)Ms Davis was afforded a discount of 25% for her guilty plea whereas the appellant was afforded a discount of 20%;

    (c)Ms Davis' prior criminal record was substantially shorter than the appellant's; and

    (d)Ms Davis, unlike the appellant, appeared to have some insight into her offending behaviour.

The ground of appeal

1. As we have mentioned, the sole ground of appeal alleges that the sentence of 20 months' immediate imprisonment imposed on the appellant, compared to the sentence of 15 months' immediate imprisonment imposed on Ms Davis, involved an infringement of the parity principle.

The ground of appeal: counsel for the appellant's submissions

1. Counsel for the appellant accepted in her written submissions that there were 'relevant differences' between the appellant and Ms Davis.  However, counsel submitted that the appellant's sentence was 'a full third longer' than Ms Davis' sentence.  According to counsel, while some disparity might have been expected, the disparity as between the appellant's sentence and Ms Davis' sentence was 'significant and cannot be justified having regard to the roles of each offender, the timing of their pleas or their personal circumstances'.

2. At the hearing of the application, counsel for the appellant frankly acknowledged that she understood why the court might conclude that the ground of appeal did not have a reasonable prospect of success (appeal ts 11).  Counsel did not add to or develop her written submissions.

3. In her written and oral submissions, counsel for the appellant noted that on 6 November 2018 the appellant had been sentenced in the Magistrates Court for other offences and that the sentences imposed in the Magistrates Court were the subject of an appeal to a single judge of the General Division of the Supreme Court.  However, at the hearing of the application, counsel accepted (properly, in our opinion) that the sentences imposed in the Magistrates Court and the pending appeal against those sentences were not relevant to the sole ground in the present appeal before this court (appeal ts 10 - 11).

The ground of appeal: its merits

1. In Barnden v The State of Western Australia,[1] this court summarised the parity principle.  It is unnecessary to repeat the summary.

   [1] Barnden v The State of Western Australia [2014] WASCA 161 [55] - [59].

2. We are satisfied that the appellant's complaint about the extent of the disparity between his sentence and Ms Davis' sentence is without merit.  Ms Davis had the benefit, for sentencing purposes, of mitigation which the appellant did not have; in particular, her youth; the greater discount she received for her guilty plea; her significantly less serious prior criminal record; some insight into her offending behaviour; and her slightly more dysfunctional childhood including the criminal abuse she suffered.  A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King [2] apply.[3]  The ground of appeal does not allege, and counsel for the appellant did not argue, that his Honour made any express error in his findings as to the mitigating factors.  His Honour was entitled to recognise the differences between the appellant and Ms Davis by imposing a sentence of imprisonment on Ms Davis that was five months less than the appellant's sentence.

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

   [3] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40].

3. In our opinion, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to the appellant and Ms Davis, the extent of the disparity in the sentencing outcome did not infringe the parity principle or the principle of equal justice.  We are satisfied that the extent of the disparity cannot be characterised as marked or unjustified.  It is not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and Ms Davis, or generally.

4. The ground of appeal does not have a reasonable prospect of success.

Conclusion

1. Leave to appeal should be refused.  The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

FN
Research Associate to the Honourable Justice Buss

7 FEBRUARY 2019