Barnden v The State of Western Australia
[2014] WASCA 161
•1 SEPTEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BARNDEN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 161
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 13 JUNE 2014
DELIVERED : 1 SEPTEMBER 2014
FILE NO/S: CACR 192 of 2013
BETWEEN: KIM RYAN BARNDEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND ESP 8 of 2013
Catchwords:
Criminal law - Appeal against sentence - Parity principle - Turns on own facts
Legislation:
Criminal Code (WA), s 378, s 392
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(d), s 60(1)
Result:
Application for an extension of time to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B S Hanbury
Respondent: Ms A C Longden
Solicitors:
Appellant: Evangel Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
MARTIN CJ: This application for an extension of time within which to appeal should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: This is an application for an extension of time to appeal against sentence.
On 5 August 2013, the appellant was convicted, on his pleas of guilty in the District Court before Goetze DCJ, of eight counts in an indictment and two offences in a notice under s 32 of the Sentencing Act 1995 (WA).
The primary judge imposed individual sentences of immediate imprisonment for the counts in the indictment as follows:
Count
Offence
Maximum sentence
Sentence imposed
(1)
Aggravated robbery - s 392 Code
20 years' imprisonment
12 months' cumulative
(2)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(3)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(4)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(5)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(6)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(7)
Stealing - s 378 Code
7 years' imprisonment
3 months' concurrent
(8)
Aggravated robbery - s 392 Code
20 years' imprisonment
20 months' cumulative
His Honour also imposed individual terms of immediate imprisonment for the charges in the s 32 notice as follows:
Charge
Offence
Maximum sentence
Sentence imposed
(1)
Reckless driving - s 60(1) Road Traffic Act 1974 (WA)
9 months' imprisonment
120 PU Fine
Not less than 6 months' MDL
Disq.
4 months' cumulative 6 months' MDL suspension
(2)
No authority to drive - s 49(1)(a); 49(3)(d) Road Traffic Act 1974 (WA)
12 months' imprisonment
4 ‑ 30 PU Fine
Not more than 3 years' MDL
Disq.
3 months' concurrent
The total effective sentence was 3 years' immediate imprisonment and a motor driver's licence suspension for 6 months. A parole eligibility order was made.
The application for an extension of time
The application for an extension of time is supported by an affidavit of the appellant's solicitor, Vasilios Evangel, sworn 28 September 2013. The last date for the appellant to file his appeal notice was 26 August 2013. It was not filed until 27 September 2013. On 15 December 2013, Mazza JA referred the application for an extension to the hearing of the appeal. I will consider the merits of the sole ground of appeal before deciding whether an extension should be granted.
The sole ground of appeal
The sole ground of appeal alleges that the primary judge erred in the application of the parity principle 'by imposing upon the appellant the same total sentence for counts 1 and 8 on the indictment as was imposed upon a co‑offender'.
On 15 December 2013, Mazza JA granted leave to appeal on this ground.
The facts and circumstances of the offences the subject of the indictment
The offences the subject of the eight counts in the indictment were committed on 23 September 2012.
On that day the appellant consumed a substantial quantity of alcohol with three co‑offenders, Brandon Lee Peach, Brody Russell Clark and a juvenile, WAC.
During the afternoon of 23 September 2012, the appellant drove his three co‑offenders around Esperance. Their common objective was to find someone suitable to rob.
Count 8 was the first offence committed. It was an aggravated robbery. The victim was a 30‑year‑old foreign backpacker. He was walking on a footpath near Twilight Beach with his fishing rod and other equipment. The appellant stopped the motor vehicle he was driving and parked near the victim. He remained in the vehicle while the co‑offenders surrounded the victim and demanded money. The co‑offenders attempted to conceal their identities by wearing hoods and sunglasses. The victim refused to comply with the demand. He was then punched in the back of the head by one of the co‑offenders. The force of the blow knocked him to the ground. The victim sustained minor bruising to his head and neck. His jumper was torn. The victim's bag, which contained fishing equipment, car keys and a multi‑tool (which were later recovered), was stolen.
The aggravated robbery the subject of count 1 occurred later in the afternoon of 23 September 2012. After committing count 8, the appellant and his co‑offenders returned to a house in Esperance and continued drinking alcohol. The appellant then drove his three co‑offenders around Esperance again. As before, they were endeavouring to identify someone suitable to rob. At about 5.25 pm, the appellant and his co‑offenders saw the victim, a 17‑year‑old youth of slim build, driving through Esperance. They followed him to his home. As the victim and his 16‑year‑old brother were about to alight from their vehicle, the co‑offenders surrounded them and demanded money. They asserted that the victim owed their friend $100, and that he would be assaulted if he did not pay. The victim attempted to retain his wallet and mobile telephone, but they were wrestled from his grasp by the co‑offenders. During the commission of the offence the appellant remained in the driver's seat of his vehicle. The co‑offenders returned to the vehicle and the appellant drove away from the victim's home. The victim's wallet and mobile telephone were not recovered.
Later that day, between 6.30 pm and 11.00 pm, the appellant and his co‑offenders committed counts 2 ‑ 7. They went to a caravan park on a number of occasions. They stole camping equipment and personal items from six different victims who were holidaying at the caravan park. Most of the stolen property was recovered.
The facts and circumstances of the offences the subject of the s 32 notice
The appellant committed the offences the subject of the s 32 notice on 23 September 2012, after the offending the subject of the indictment.
The appellant drove the motor vehicle used in the commission of the counts in the indictment along a road in Castletown. His co‑offenders in relation to the counts in the indictment were passengers. As I have mentioned, the appellant and his co‑offenders had been drinking alcohol throughout the day. The appellant accelerated heavily. The wheels of his vehicle lost traction, emitted smoke and made a loud screeching sound. This was observed by police. They activated the emergency lights on their vehicle and attempted to stop the appellant. He refused to stop and accelerated. The appellant attempted to evade the police by driving at high speed and making a sharp right turn without indication. He then braked heavily. The police vehicle collided with the rear of his vehicle. The appellant ran away. His vehicle rolled down a hill with his co‑offenders inside. The vehicle stopped about 50 m down the hill. Attempts to locate the appellant were unsuccessful. The next morning he attended at the Esperance police station and made full admissions. At the time of driving, his motor driver's licence was, to his knowledge, suspended for non‑payment of fines.
The primary judge's sentencing remarks
The primary judge recounted, in his sentencing remarks, the facts and circumstances of the offending.
His Honour also noted the appellant's personal circumstances and antecedents.
The appellant was born on 8 September 1991. He was aged 21 at the time of the offending and when sentenced.
The appellant had a dysfunctional upbringing. He left school at the end of year 9 as a result of his association with anti‑social peers and experimentation with illicit substances. However, to his credit, he later completed year 10. The appellant had been employed occasionally in some unskilled occupations, but he relied primarily on Centrelink benefits for income. He had expressed an interest in working with indigenous children in remote communities.
The appellant had a long history of drug and alcohol abuse. He commenced using methylamphetamine at the age of 14. He had also used cannabis, ecstasy and heroin.
Between 14 July 2009 and 22 September 2009 and again between 5 February 2010 and 15 December 2011 the appellant participated in the intensive residential rehabilitation programme, Teen Challenge Grace Academy, in Esperance. The appellant told Ms Romana Lee, a clinical psychologist who prepared a report dated 16 July 2013 for the primary judge, that the interval between these two periods was 'a horrible and confusing time'. He commenced ingesting OxyContin and relapsed into amphetamine use. More recently, he had used alcohol to excess to avoid further abuse of illicit drugs.
Ms Lee offered the following comments in her report about the appellant and his offending:
•Although it may appear that [the appellant] lacks the ability to transfer his learning from his two rehabilitation stints at Teen Challenge, it is more likely that his lack of emotional maturity, his need for acceptance, his poor sense of self, a lack of support, an absence of pro‑social activities and positive peers, as well as his limited emotional coping, make it difficult for [the appellant] to cope with his daily life without some form of substance use to self medicate …
•Given that a lack of constructive activities, boredom, and a lack of purpose in life led to 'hanging around' with [an] antisocial peer group and drinking alcohol around the time of the offences, [the appellant] would benefit from exploring opportunities for traineeship/employment/training so that he can be constructively occupied and have an opportunity to be gainfully employed. This would increase his limited protective factors;
•Additional self improvement activities such as gaining a valid motor driver's licence may also increase his protective factor as well as increasing his chances of being gainfully employed; and
•Given the lack of support from his family and having no independent housing, [the appellant] would benefit from any assistance to secure supportive accommodation so that he can be more stable in his living conditions.
The appellant suffers from anxiety and depression. He is immature for his years. The termination of his most recent relationship with a young woman caused him grief and loss. He requires psychological treatment.
The primary judge allowed the appellant a sentencing discount of 25% under s 9AA of the Sentencing Act for his pleas of guilty. This was a generous discount. His guilty pleas were not on the fast‑track system. He first pleaded guilty in the Magistrates Court on 11 June 2013, about eight and a half months after committing the offences.
The appellant made substantial admissions in relation to the offending in a video‑recorded interview with police on the day after the offences were committed.
His Honour said the appellant had shown remorse for his offending. He also noted that the appellant was youthful and had made some effort towards his rehabilitation by attending Drug ARM between January and June 2013.
The appellant has a prior criminal record. His previous convictions as an adult comprise assault occasioning bodily harm, possessing things for applying graffiti and breach of a bail undertaking. These offences were punished by fines.
The primary judge found that the appellant was at a high risk of reoffending.
The author of the pre‑sentence report said that the appellant had failed to engage with a Max Employment psychologist and had failed to attend two scheduled interviews in connection with the preparation of assessment reports. In the author's view, this indicated 'fluctuating motivation' by the appellant in dealing with his personal issues.
The appellant's co‑offenders, Mr Peach, Mr Clark and WAC, were sentenced before the appellant. The primary judge noted the sentences they had received and their personal circumstances and antecedents. He referred to the parity principle.
His Honour decided that immediate imprisonment was the only sentencing option open in the circumstances. He emphasised the seriousness of the offending and the need for personal and general deterrence.
The sentencing of Mr Peach
On 6 February 2013, Scott DCJ sentenced Mr Peach.
His Honour imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 16 months;
(b)each of counts 2 ‑ 7: 3 months; and
(c)count 8: 20 months.
Scott DCJ ordered that the sentences for counts 1 and 8 be served cumulatively and that the sentences for counts 2 ‑ 7 be served concurrently with each other and with the sentences for counts 1 and 8. The total effective sentence was therefore 3 years' immediate imprisonment. A parole eligibility order was made.
Mr Peach entered fast‑track pleas of guilty. His Honour allowed a sentencing discount of 25% under s 9AA of the Sentencing Act for the guilty pleas.
Mr Peach was born on 4 July 1993. He was aged 19 at the time of the offending and when sentenced.
His Honour recounted the facts and circumstances of the offending. As to count 8, his Honour found that one of the co‑offenders, but not Mr Peach, had punched the victim in the back of the head.
Scott DCJ noted:
(a)Mr Peach had a positive upbringing.
(b)He had one prior serious relationship which commenced when he was about 16.
(c)Mr Peach suffered from 'low‑grade depression'.
(d)He had a serious issue with alcohol abuse. In the two‑month period before the offending he was drinking every day, sometimes in the early morning, and he was associating with a negative peer group.
(e)Mr Peach left school in year 11. He had been employed from time to time and planned to return to work in the fishing industry.
Mr Peach has a prior criminal record. As an adult he has two previous convictions for unlawful assault occasioning bodily harm in circumstances of aggravation and one conviction for stealing. On 20 May 2012, Mr Peach assaulted his then partner while he was intoxicated. In September 2012, he assaulted a person who had made disparaging references about him on Facebook. The three previous convictions as an adult were punished by fines. As a juvenile Mr Peach was convicted on 28 April 2011 of one count of aggravated robbery committed on 23 October 2010. He was sentenced to 4 months' detention. When Mr Peach was sentenced by Scott DCJ that offence had not been expunged under s 189(2) of the Young Offenders Act 1994 (WA).
A psychological report indicated that Mr Peach was at a moderate risk of reoffending. His abuse of and reliance on alcohol was of particular concern.
Scott DCJ accepted that Mr Peach was remorseful for his offending and that he had some insight into the seriousness of what had occurred and its impact on the victims.
The sentencing of Mr Clark
On 6 February 2013, Scott DCJ also sentenced Mr Clark.
His Honour imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 12 months;
(b)each of counts 2 ‑ 7: 3 months; and
(c)count 8: 20 months.
Scott DCJ ordered that the sentences for counts 1 and 8 be served cumulatively and that the sentences for counts 2 ‑ 7 be served concurrently with each other and with the sentences for counts 1 and 8. His Honour reduced the individual sentence for count 1 from 16 months to 12 months in the application of the totality principle. The total effective sentence was therefore 2 years 8 months' immediate imprisonment. A parole eligibility order was made.
Mr Clark entered fast‑track pleas of guilty. His Honour allowed a sentencing discount of 25% under s 9AA of the Sentencing Act for the guilty pleas.
Mr Clark was born on 10 April 1989. He was aged 23 at the time of the offending and when sentenced.
His Honour recounted the facts and circumstances of the offending. As to count 8, his Honour did not make a finding that it was Mr Clark who had punched the victim in the back of the head.
Scott DCJ noted:
(a)Although his parents separated when he was 15 or 16, which no doubt affected him, there was nothing in Mr Clark's upbringing that was relevant to his offending.
(b)He commenced using cannabis at age 16, but alcohol was his main problem.
(c)Mr Clark left school after completing year 11. Since then he had been in irregular employment.
(d)He told the author of the pre‑sentence report that, before the offending in question, he had attempted self‑harm on two separate occasions. He referred himself to Esperance Community Mental Health and was seen by a youth counsellor on 10, 19 and 27 September 2012 and 4 October 2012. He had scheduled appointments with a visiting psychiatrist and a community drug service team. However, he was unable to keep these appointments because he was remanded in custody in connection with the relevant offences.
Mr Clark has a prior criminal record. As an adult he has previous convictions for two offences of stealing, one offence of unlawful damage and trespass, one offence of breaching a community based order and a number of offences involving traffic infringements and possession of prohibited drugs. All of the previous offending has been punished by fines or community based orders.
Scott DCJ accepted that Mr Clark's pleas of guilty to the offences in question indicated remorse. He appeared to have insight into his offending, but he also appeared to minimise his involvement.
His Honour differentiated between Mr Peach and Mr Clark in the sentencing outcome because some of Mr Peach's prior convictions had involved violence. His Honour was of the view that each of them had played similar roles in the commission of the relevant offences.
The sentencing of WAC
It is unnecessary to refer to the sentences imposed on WAC or his personal circumstances and antecedents. At the hearing of the appeal counsel for the appellant expressly disclaimed any complaint about parity as between the appellant and WAC (appeal ts 3).
The parity principle
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. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
More recently, 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].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is highly desirable for co‑offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
In the present case, it is not apparent why the appellant was not sentenced by the judge who sentenced Mr Peach and Mr Clark. However, it is apparent that the primary judge was fully informed about the sentences imposed on Mr Peach and Mr Clark.
The appellant's submissions
Counsel for the appellant submitted that the appellant was 'deserving of a lesser sentence' than Mr Peach and Mr Clark on count 1, count 8 and the total effective sentence for the following reasons:
(a)The appellant remained in the motor vehicle while counts 1 and 8 were committed.
(b)He did not use actual violence against the victim of count 8.
(c)The appellant 'did not wish to rob people' and had suggested to his co‑offenders that they steal from the caravan park.
(d)He was younger than Mr Clark.
(e)The appellant had not previously been sentenced to a term of imprisonment.
(f)His personal circumstances and antecedents were more favourable than those of Mr Peach and Mr Clark.
The merits of the ground of appeal
I am not persuaded that the primary judge erred as alleged by the appellant.
Although the appellant remained in the motor vehicle while Mr Peach, Mr Clark and WAC made demands on and threatened the victim of counts 1 and 8, and used actual violence against the victim of count 8, the appellant's role as the 'getaway driver' was central to the commission of the offences.
Although the appellant may not have initiated the offending, or been directly involved in confronting the victims, his level of culpability was not materially less than that of Mr Peach and Mr Clark. The appellant facilitated the offending by driving the co‑offenders as they identified victims, stopping the vehicle as needed, waiting while the offences were committed, and ensuring that the offenders were able to leave the scene quickly. The threatened and actual violence used by the co‑offenders in the aggravated robberies was a probable consequence of the prosecution of the unlawful purpose that was engaged in by the appellant and his co‑offenders. Counsel for the appellant accepted that the appellant understood there would be violence, to some degree, inflicted against the victims to facilitate the stealing of money or property (appeal ts 4).
Counts 1 and 8 involved premeditation and some planning. Each of the offences was committed some distance from the place where the appellant and his co‑offenders resided. The vehicle was an essential part of the commission of the offences.
As I have mentioned, the 25% discount given by the primary judge to the appellant under s 9AA of the Sentencing Act was generous. Unlike Mr Peach and Mr Clark, the appellant did not enter fast‑track pleas of guilty.
The age difference between the appellant, Mr Peach and Mr Clark was not significant. None of them had previously been sentenced, as an adult, to a term of imprisonment.
The appellant was found to be at a high risk of reoffending whereas Mr Peach was assessed as being at a moderate risk of reoffending. Mr Peach's prior criminal record was worse than the appellant's and Mr Clark's. Both the appellant's and Mr Peach's prior offending had included some violence whereas Mr Clark's previous offences did not involve any violence. Otherwise, the personal circumstances and
antecedents of the appellant, Mr Peach and Mr Clark were not significantly different.
The appellant, unlike Mr Peach and Mr Clark, was sentenced for additional offending, namely the serious driving offences listed in the s 32 notice. The appellant's reckless driving, after he had consumed alcohol, endangered the safety of his passengers and the police officers, and demonstrated a wanton disregard for the law and authority. It was necessary that the sentence of imprisonment on the reckless driving charge be made cumulative upon the sentences for counts 1 and 8 in order properly to mark the seriousness of the appellant's overall offending.
I am satisfied, after examining and weighing all relevant facts and circumstances and all relevant sentencing factors pertaining to the appellant, Mr Peach and Mr Clark, that any absence of disparity (from the appellant's perspective) in the sentencing outcomes as between the appellant on the one hand, and each of Mr Peach and Mr Clark on the other, did not infringe the parity principle or the principle of equal justice. Any absence of disparity (from the appellant's perspective) in the sentencing outcomes was not marked and unjustified. It was 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, Mr Peach and Mr Clark or generally. The appellant was not deserving of a materially lesser sentence on count 1 or count 8 or a materially lesser total effective sentence than Mr Peach or Mr Clark.
Conclusion
The ground of appeal is without merit. I would therefore refuse to grant an extension of time to appeal. The application should be dismissed.
MAZZA JA: I agree with Buss JA.
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