Beins v The State of Western Australia [No 2]
[2014] WASCA 54
•12 MARCH 2014
BEINS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 54 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:141/2013 | 6 DECEMBER 2013 | |
| Coram: | McLURE P PULLIN JA MAZZA JA | 12/03/14 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Ground 1 upheld Leave to appeal on ground 2 granted Ground 2 dismissed Appellant resentenced to 2 years' immediate imprisonment | ||
| B | |||
| PDF Version |
| Parties: | ANGELA ROSE BEINS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Co-offenders Parity principle Sentence of cooffender manifestly inadequate Turns on own facts |
Legislation: | Criminal Code (WA), s 401(2) Sentencing Act 1995 (WA), s 9AA, s 6(1) |
Case References: | Billing v The State of Western Australia [No 2] [2008] WASCA 11 Brady v The State of Western Australia [2013] WASCA 253 Butler v The State of Western Australia [2012] WASCA 249 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Carr v The State of Western Australia [2013] WASCA 192 Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309 Forkin v The State of Western Australia [2013] WASCA 51 Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 I (a child) v The State of Western Australia [2006] WASCA 9 Lowe v The Queen (1984) 154 CLR 606 Lynden v The State of Western Australia [No 2] [2013] WASCA 186 Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 MGM v The State of Western Australia [2012] WASCA 24 Munda v The State of Western Australia [2013] HCA 38 Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149 R v Mahony; R v Shenfield [2012] QCA 366 R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Staker v The State of Western Australia [2012] WASCA 63 The State of Western Australia v Peacock [2013] WASCA 248 Topic v The State of Western Australia [2013] WASCA 157 Wragg v The State of Western Australia [2013] WASCA 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BEINS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 54 CORAM : McLURE P
- PULLIN JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 294 of 2013
Catchwords:
Criminal law - Sentencing - Co-offenders - Parity principle - Sentence of cooffender manifestly inadequate - Turns on own facts
Legislation:
Criminal Code (WA), s 401(2)
Sentencing Act 1995 (WA), s 9AA, s 6(1)
Result:
Ground 1 upheld
Leave to appeal on ground 2 granted
Ground 2 dismissed
Appellant resentenced to 2 years' immediate imprisonment
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Abigail Rogers Barristers and Solicitors
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
Brady v The State of Western Australia [2013] WASCA 253
Butler v The State of Western Australia [2012] WASCA 249
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Carr v The State of Western Australia [2013] WASCA 192
Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309
Forkin v The State of Western Australia [2013] WASCA 51
Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
I (a child) v The State of Western Australia [2006] WASCA 9
Lowe v The Queen (1984) 154 CLR 606
Lynden v The State of Western Australia [No 2] [2013] WASCA 186
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
MGM v The State of Western Australia [2012] WASCA 24
Munda v The State of Western Australia [2013] HCA 38
Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149
R v Mahony; R v Shenfield [2012] QCA 366
R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Staker v The State of Western Australia [2012] WASCA 63
The State of Western Australia v Peacock [2013] WASCA 248
Topic v The State of Western Australia [2013] WASCA 157
Wragg v The State of Western Australia [2013] WASCA 198
1 McLURE P: This is an appeal against sentence. The appellant was convicted on her plea of guilty of one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). She committed the offence with a co-offender, Luke James Kelly, who also pleaded guilty.
2 The co-offenders were sentenced on 20 June 2013 by McCann DCJ. The appellant was sentenced to 2 years and 8 months' immediate imprisonment. Kelly was sentenced to 2 years and 8 months' imprisonment, suspended for 2 years. The appellant claims that her sentence breaches the parity principle. I agree. The real question is what can and should flow from that breach.
3 The appellant also claims that the sentencing judge made an express error in stating in his reasons that the appellant could not get the maximum discount for her plea of guilty at the earliest reasonable opportunity because the case was a strong one.
4 I agree with Pullin JA that the appeal should be allowed but for different reasons and with a different outcome.
5 The facts agreed by all parties were as follows. The appellant had been in an off and on relationship with the complainant, Jason Robert Hughes, for approximately four years. Prior to that she had been in a relationship with Kelly.
6 During the early hours of Tuesday 20 November 2012 the appellant and the complainant were together at the complainant's premises in Kardinya. During that time they had been arguing and fighting with one another, which at times became quite violent. The appellant later left the premises in her vehicle. The appellant contacted Kelly and advised him of what had taken place between her and the complainant that morning.
7 Kelly became angry about what he was told and he and the appellant formed an agreement to assault the complainant. At about 1.30 pm the appellant and Kelly attended the complainant's address in Kardinya. At the time the complainant was asleep on a mattress on the lounge room floor.
8 Kelly was armed with a small pole. He kicked the front door open and the appellant followed him into the premises. Kelly located the complainant on the mattress. He approached the complainant and swung the pole at his head causing it to split open. The complainant attempted to get up but Kelly continued to swing the pole at him hitting him approximately 15 times on the body and arms.
9 The appellant called out to Kelly, 'quick, leave him', and they ran from the premises. The complainant got up and chased them outside. He collapsed on the footpath. An ambulance was called and took him to hospital where he received treatment for his injuries. As a result of the assault, the complainant received six stitches to his head and severe bruising to his back and arms.
10 The offenders were located the following day and were interviewed by police. Kelly denied the offence. However, the appellant made full admissions. They were both then charged.
11 Both offenders pleaded guilty at the earliest reasonable opportunity. As to the sentencing disposition for Kelly, counsel for the State conceded that it was open to the sentencing judge to impose a suspended term of imprisonment. The State submitted that the appellant should receive a term of immediate imprisonment.
12 It is necessary to refer to the sentencing judge's findings in some detail. The sentencing judge found that by the time the offenders arrived at the complainant's premises the common intention was that Kelly would assault the complainant with the pole and the appellant would collect some property of hers that she had left behind. When there was no response to their knock on the door, the appellant instructed Kelly to kick the door in, which he did. Once inside Kelly immediately attacked the complainant and hit him across the head with the pole and then approximately another 15 times in the body and arms. Kelly screamed abuse at the victim throughout, the general tenor of which was to inform him that he was being punished and taught a lesson. The appellant looked for her property whilst this was occurring. However she was at all times aware of what Kelly was doing and agreed with it. The attack only ended when the appellant came into the lounge room and told Kelly to stop. At this point Kelly had the complainant bailed up against a wall. He had already lost a lot of blood.
13 The sentencing judge found that the complainant's injuries included a concussion, loss of consciousness, a laceration to his head requiring six stitches and severe bruising to his back, arms and hands. He was not satisfied that the complainant suffered any permanent injuries.
14 The sentencing judge also found that the appellant had had a violent encounter with the complainant in the early hours of 20 November and that she had suffered a slight puncture wound to her thigh, some bruising to her arm, hip and knee and superficial scratches. He found that the appellant was entitled to be angry and emotionally hurt but that she had not been the victim of entrenched domestic violence. The sentencing judge was not satisfied that the appellant could in any way claim any degree of diminished responsibility, either morally or criminally, arising from the fact that she was to some extent a victim of domestic violence (ts 53).
15 The sentencing judge concluded:
The offence was a brazen, violent home invasion from last - first to last. [The appellant] was the ringleader; the motive and plan were hers. She provided the vehicle and the address ...
Once inside the house [the appellant] allowed the bashing to take place knowing how it was going to take place and including the fact that the victim would be defenceless. Of course it is to her credit that she stopped the attack. It also evidences her directorial role in what was happening (ts 54).
16 He concluded that before taking into account matters personal to the offenders, the starting point was that the offenders' criminal culpability was approximately equal (ts 55).
17 The sentencing judge then turned his attention to matters personal to the appellant. She was 24 when she offended and, having a minimal court history, he treated her as a first offender. She had a sad, unhappy and emotionally under-nurtured childhood, a fragmented education, limited employment history in mostly part-time and casual work and had failed a chef apprenticeship in 2011. She had been unemployed for the previous two years and used amphetamines and ecstasy regularly. The sentencing judge said he was inclined to agree with the psychological report's suggestion that the appellant had 'depressive personality features'. He continued:
As an adult, [the appellant] has led an apathetic and uninspired life with a generally pessimistic outlook. The psychologist suggests that this is likely to have emanated from experiences in her childhood - which I accept.
The psychologist suggests that it is likely [the appellant] acted on impulse when she committed the index offence because she was in a heightened state of emotional arousal exacerbated by having used amphetamines the previous night (ts 55).
…
In a sense, her behaviour showed immature traits but she was 24 years of age at the time and capable in law and fact … of making informed choices (ts 56).
18 The sentencing judge said that nothing in the appellant's psychological profile in any way mitigated her offending (ts 56). Accepting that the appellant had ceased taking drugs and wanted to work with her brother in the North West, the sentencing judge said those matters could only have minimal mitigatory force given her lack of youth and unsuccessful attempts in the past to motivate or train herself. He noted that there was evidence of 'some remorse' (ts 56).
19 By contrast, the sentencing judge formed a very strong, favourable (from a sentencing perspective) view of Kelly, describing him as 'a vulnerable, unsophisticated, ill-educated and a grossly immature young man' (ts 51). Kelly was 21 at the time of the offence. In his interview with police he denied any involvement in the offence including a denial that he had seen the appellant on the day of the offence. Some time later Kelly informally admitted to police that he had disposed of the weapon in the Canning River. According to the sentencing judge:
This illustrates an almost childlike simplicity and lack of guile on his part. Mr Kelly has no relevant criminal history as an adult. There was some nasty juvenile offences [3 armed robberies], but they occurred some years ago and he was rehabilitated and I propose to treat him as a first offender.
Mr Kelly presented to the report writers in the video record of interview and here in court as a healthy, well-built, reasonably well-groomed and pleasant young man. But there is no doubt that he suffers from relevant psychological, educational and emotional deficits. He had a very chaotic, disrupted and emotionally unhealthy upbringing. He's illiterate, unemployed and has no proper work history.
Whilst he can be clever and insightful, overall he is naïve to the point of simplistic and he can be very erratic … saying one thing to the police and then saying another thing afterwards. He is basically an unusual, wholly immature young loner, notwithstanding his age (ts 57).
20 After referring to extracts from the psychological report the sentencing judge said:
Unlike [the appellant], Mr Kelly has deficits which impacted on his consequential thinking, judgement and emotional regulation at the relevant time. In particular, he clung to a relationship with [the appellant] which has proved to be destructive for him (ts 58).
21 It is clear that the sentencing judge had taken a very dim view of the appellant and a very sympathetic view of Kelly. The sentencing judge said (ts 58 - 59):
[Kelly] was driven to take part in the offence by the misplaced notion that he could be of service to [the appellant] and could ingratiate himself to her, but not out of love in the sense of the word. He was also motivated by jealousy and he took part deliberately, armed himself for the purpose, affected the forced entry and set upon the victim in a cowardly and ruthless way until he had to be called off. He told the author of the pre-sentence report that the victim got what he deserved.
None of this sounds like an act of love to me, but I'm satisfied beyond reasonable doubt … that [the appellant] provoked and goaded Mr Kelly to offend and he lacked the ability to resist. ... I am satisfied that [the appellant] wilfully allowed Mr Kelly to overreact and she knew that he would overreact.
…
I am satisfied that she had considerable sway over him by reason of his attraction to her and the difference in their ages, life experience and maturity. During submissions I said that Mr Kelly might be cunning. I've not adhered to that opinion. I've said that he can be clever and insightful. The cunning one in this relationship was [the appellant].
She encouraged him to use the weapon, she instructed him to kick in the door, she allowed him to overreact and she left him to his own devices after he had started thrashing the victim and she coolly thanked him afterwards for what he'd done ... As I say, she knew what would happen and she used Mr Kelly for her base purposes. It is appropriate at this stage for me to say something of remorse. I am not satisfied that either offender is wholly remorseful.
22 The sentencing judge said that Kelly's absence of remorse would not be held against him in any way because he 'doubted that he had the means of feeling or expressing remorse in the same way as healthy, well adjusted people' (ts 59).
23 The sentencing judge found in relation to the appellant that there was a 'relatively low need for personal deterrence' (ts 60). He did not address himself to that issue in relation to Kelly.
24 The sentencing judge allowed a 20% discount for the appellant's early plea, saying she could not get the maximum because the State's case was a very strong one, and a further 13 and 1/3% for all other mitigating factors. Thus the overall discount was one-third.
25 The sentencing judge said that Kelly's criminal and moral culpability was mitigated to a very significant extent by his emotional, psychological and personality deficits which drew him into the offending and which he could barely control once he started. The sentencing judge described him to some extent as the appellant's 'second victim'. He continued:
Also, Mr Kelly has very significant therapeutic and rehabilitative needs which must be set in motion immediately. Interventions must deal with his literacy, self esteem, interpersonal relations, employability, employment of self and overall psychological health. The last of those must be addressed on an urgent basis starting today having regards to [the appellant's] sentence today (ts 61).
26 I understand the final sentence to be a reference to the appellant's removal as a negative influence on Kelly as a result of her imprisonment. The sentencing judge then expressly addressed the issue of parity as follows:
I am mindful of the apparent disparity between Mr Kelly and [the appellant's] sentences. ... However, their situations are distinguishable and [the appellant] can feel no grievance. She acted wilfully and out of malice.
Mr Kelly was taken advantage of, lacked the maturity and psychological tools to deal with the situation, and has enormous therapeutic and rehabilitative needs which are best dealt with in the community as successfully occurred when he was a juvenile (ts 61).
The psychological and pre-sentence reports
27 Kelly had learning difficulties and was placed in special education classes in both primary and secondary school. He did not complete year 8. He had no relevant record of employment.
28 The psychological report notes that Kelly did not present as having an intellectual disability but rather seemed quite insightful. However, given his history of having been in support classes throughout his schooling the psychologist administered a test developed to detect the presence of intellectual disability amongst offenders. The psychologist concluded that it was not her impression that the appellant suffered from an intellectual disability but that he may be found to have problems in specific areas which could impact upon his employability.
29 Kelly related to the psychologist a history of severe domestic violence against him, his brother and their mother, as a result of which his mother left his father. His mother later formed another relationship which was also marred by severe domestic violence. Kelly recalled living in refuges for some time with his mother. The psychologist noted that Kelly's emotional enmeshment with both his mother and the appellant likely resulted in him being unable to differentiate threat to them from threat to himself.
30 The psychologist concluded:
His level of emotion would have been significant due to the enmeshed nature of his relationship with the [the appellant] and his own significant victimisation through domestic violence. Therefore the most relevant factor in managing his risk of reoffending will be related to monitoring the climate of that relationship. As the relationship is currently very important to Mr Kelly due to the nature of his attachment with the [appellant], it will be necessary to assist him in expanding his life so that he can experience some successes in other areas and hopefully reduce his reliance on the one relationship.
31 The psychologist expressed concern as to his suicide potential if he received a custodial sentence.
32 The pre-sentence report notes that Kelly did not display appropriate victim empathy and accepted little responsibility for what he had done.
33 The psychological report relating to the appellant records the following. The appellant readily acknowledged responsibility for her offending behaviour, admitting that it had been wrong to take the law into her own hands in trying to exact revenge against her partner for assaulting her.
34 When the appellant was aged 5 her father left her mother for a 16-year-old girl. The appellant spent every second weekend with her father until he was imprisoned for drug and firearm related offences when she was 18. Her childhood was marred by her mother's heavy drinking which typically led to physical, emotional and verbal abuse against the appellant and her younger brother. However, the appellant feels obligated to continue to stay at home with her mother because both her father and brother left. The report notes that the appellant 'impresses as having assumed a far greater burden of emotional and physical responsibility than she was equipped for, from a young age'. School work had always been a struggle and she left school at the beginning of year 10. She had worked for two years on a casual part-time basis as a kitchen hand. She left a chef's apprenticeship in 2011 after three months due to issues around drug use and lack of commitment. The report continues:
With respect to mental health [the appellant] stated that she has been taking antidepressant medication intermittently since the age of 19 years, citing her family circumstances and childhood as the main reason for this.
35 The appellant started drinking at home at the age of 12 and by the age of 16 was drinking excessively. At some stage she realised that was a problem and limited her drinking. She described social use of amphetamines from the age of 16 until the offence. Test results confirmed that the appellant had been open in disclosing the presence of emotional and psychological problems. The psychologist reports:
The results are indicative of an individual with depressive personality features. Individuals with such profiles have often experienced loss, have a sense of giving up and recurring thoughts of suicide. ... This is likely to have emanated from experiences in [the appellant's] childhood.
The results also support the impression that [the appellant] is socially withdrawn and may experience social anxiety and discomfort.
- The psychologist concluded:
[The appellant] appears to have had significant emotional upheaval throughout her life, namely in relation to circumstances in her family and in particular issues with her mother. This is ongoing as [the appellant] continues to live with her mother out of a sense of loyalty and obligation.
Parity
37 The most recent authoritative exposition of the parity principle is in Green v The Queen (2011) 244 CLR 462. Consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice and is a fundamental element in any rational and fair system of criminal justice. It finds expression in the parity principle which requires that like offenders should be treated in like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [28]. A court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [31].
38 Unjustifiable disparity is an appealable error although it may not always lead to an appeal being allowed and if allowed, identity of punishment in resentencing is not required [32]. The High Court addressed the question of when unjustifiable disparity may not lead to an appeal being allowed. The majority said:
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J (92) and less explicitly but to like effect by Dawson J, with whom Wilson J agreed (93) … On the other hand, as Simpson J correctly pointed out in R v Steele, (95) the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R vDraper, 'an affront to the proper administration of justice' (96). Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one (97). Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences [33].
39 In the above passage the majority in Green use the expressions 'erroneously lenient', 'a sentence … which is inadequate', 'reduce a sentence to a less than adequate level' or 'inadequate level' and finally 'an affront to the proper administration of justice'. On my reading of the passage, all of the various expressions are intended to be a reference to a manifestly inadequate sentence, being one that is outside the range of appropriate sentences for the particular offending. However, it appears that a sentence which is an affront to the proper administration of justice (or which 'shocks the public conscience') is a separate and more serious sub-category of manifest inadequacy. A sentence that is an affront to the proper administration of justice will always be manifestly inadequate but a manifestly inadequate sentence may not always be such an affront. This understanding of Green is confirmed in Munda v The State of Western Australia [2013] HCA 38 [73].
40 In summary, Green is authority for the proposition that, absent any statutory provision to the contrary, an appeal court has the power to reduce a co-offender's sentence to a level that is manifestly inadequate (but short of being an affront to the administration of justice) in order to avoid disparity but may, in the exercise of its discretion, decline to do so. This court has recognised, and at times exercised, that discretion: I (a child) v The State of Western Australia [2006] WASCA 9 [66] - [68]; Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [14]; Staker v The State of Western Australia [2012] WASCA 63; MGM v The State of Western Australia [2012] WASCA 24.
41 It remains for this court to determine whether there is any statutory provision which deprives it of the power to reduce a co-offender's sentence to a level that is manifestly inadequate in order to avoid disparity. Footnote 97 in the majority judgment in Green refers to the reasons of Murray J in Goddard v The Queen (1999) 21 WAR 541 [61]. Murray J held that s 6(1) of the Sentencing Act 1995 (WA) deprived the court of this power. Murray J said:
The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing Judge and the appellate court required to substitute a sentence which should have been passed by the court at first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender. That is the dictate of the common law now enshrined in this State in the Sentencing Act, s 6(1) which provides that 'a sentence imposed on an offender must be commensurate with the seriousness of the offence' determined as the section goes on to provide. In that case, the proper application of the parity principle will lead the court making the comparison with the earlier sentence to impose a sentence which is as close to the previous sentence as may be achieved without error on its part [61].
42 Kennedy J in Goddard upheld the existence of such a power, following the majority view of Mason, Dawson and Wilson JJ in Lowe v The Queen (1984) 154 CLR 606. Pidgeon J agreed with Murray J in the result but it is unclear whether he declined to reduce the relevant sentence as a matter of discretion or because of an absence of power.
43 In my respectful opinion, Kennedy J is correct. Part 2 of the Sentencing Act contains general sentencing principles. As already noted, s 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Under s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. Section 6(3) provides:
Subsection (1) does not prevent the reduction of a sentence because of -
(a) any mitigating factors; or
(b) any rule of law as to the totality of sentences.
44 Section 8(1) defines mitigating factors as follows:
Mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. (emphasis added)
45 There is no express reference in the Sentencing Act to many of the common law principles of sentencing, including general deterrence and parity to name two. However, there can be no doubt that those two common law sentencing principles are part of the law of Western Australia. Whether that is because the Sentencing Act accommodates the application of common law principles of sentencing, in the same way as the Crimes Act 1914 (Cth), as explained in Hili v The Queen (2010) 242 CLR 520 [25], or because the Sentencing Act is not intended to cover the field to the exclusion of common law principles which apply unless expressly or impliedly excluded.
46 In determining whether the Sentencing Act expressly or impliedly excludes a common law sentencing principle, the statutory construction principle of 'legality' would come into play. That requires clear and unambiguous statutory language (or a test to like effect) in order to exclude the common law sentencing principles in whole or in part: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290, 298; Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309, 328 - 329.
47 In my view, the proper construction of s 6 of the Sentencing Act is the same, with or without the benefit of the principle of legality. A sentence must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account, among other things, any mitigating factors. Mitigating factors go beyond matters that inform the culpability of the particular offender to include factors that decrease the extent to which the offender should be punished. The latter accommodates the application and operation of the common law parity principles to reduce a sentence. More generally, the Sentencing Act does not unambiguously or at all manifest an intention to exclude or modify the common law parity principle which is rooted in fundamental notions of fairness and equality before the law.
Analysis
48 I have carefully examined all of the material before the sentencing judge and viewed the video-recorded police interviews of the appellant and Kelly. I am troubled by what may be perceived as an unduly beneficial and sympathetic assessment of the matters personal to Kelly and a correspondingly unduly harsh and unsympathetic assessment of the matters personal to the appellant. A comparison of matters relating to remorse, cooperation with police, insight, acceptance of responsibility and rehabilitation all strongly favour the appellant. The co-offenders education levels, employment experience and family backgrounds are broadly comparable. Both have psychological problems attributable to a disadvantaged background. However, the appellant is cast as the siren who manipulates and knowingly misuses her power over the childlike person in her thrall. Against that dramatic background, the sentencing judge appears to conclude that Kelly's rehabilitation required and must start from the commencement of the appellant's incarceration. Neither characterisation of the co-offenders is justified by the evidence. Further, what is in the best interests of one offender's rehabilitation ought not to inform what is the appropriate sentencing disposition for a co-offender.
49 In my view, the totality of the relevant sentencing considerations applicable to the appellant and Kelly cannot justify the imposition of different types of sentence. On an objective assessment, the disparity in the types of sentence imposed engenders a justifiable sense of grievance on the part of the appellant.
50 Having regard to the nature and extent of the violence that Kelly inflicted on the complainant after breaking into his home, the only appropriate sentence for his offending was a term of immediate imprisonment notwithstanding the mitigatory factors. However, the State contributed to the sentencing judge's error by a concession that it was open to suspend any term of imprisonment imposed on Kelly (ts 32). The State has form in this regard. See The State of Western Australia v Peacock [2013] WASCA 248 [38] - [39].
51 I would remove the unjustifiable disparity in sentencing by suspending the term of imprisonment imposed on the appellant. Although a suspended term is manifestly inadequate, there are sufficient mitigatory factors to prevent the suspension from falling within the more serious sub-category of an affront to the proper administration of justice. The mitigating factors include her fast-track plea of guilty, her cooperation with police which underscored acceptance of responsibility and remorse, her lack of a prior relevant record, her disadvantaged upbringing and the fact that her conduct was responsive to violence inflicted on her by the complainant and not entirely gratuitous. It is also significant that the disparity was associated with an erroneous State concession that benefited the co-offender. Finally, the imbalance in the sentencing judge's approach to the assessment of the culpability of the co-offenders required that the appellant receive equal treatment.
Plea of guilty
52 I agree with Pullin JA that the maximum discount for the appellant's plea of guilty is 25% under s 9AA(4)(a) of the Sentencing Act.
53 The second issue is whether the sentencing judge erred in reducing the discount for the appellant's plea of guilty because of the strength of the State case. Section 9AA of the Sentencing Act relevantly provides:
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
54 It was accepted by the majority in Forkin v The State of Western Australia [2013] WASCA 51 that subs (2) exhaustively states the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. However, remorse and other subjective considerations which informed the weight to be given to a guilty plea prior to the commencement of s 9AA may be taken into account under s 9AA(6).
55 As explained by the High Court in Cameron v The Queen (2002) 209 CLR 339, under the former sentencing regime a distinction had to be made between the objective and subjective considerations relating to a plea of guilty. In broad terms the objective considerations are the saving of time and expense of those involved in the administration of criminal justice including police, prosecuting authorities, witnesses, jurors and the courts. The objective considerations are often referred to as the utilitarian value or benefit of a plea of guilty. The subjective considerations go to personal issues of remorse, acceptance of responsibility and willingness to facilitate the course of justice. The utilitarian benefits of a plea of guilty were not directly relevant to the discount for a plea of guilty under Cameron. Section 9AA reversed that position.
56 In R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the New South Wales Court of Appeal held that the strength of the Crown case only relates to the subjective considerations and not the utilitarian value of the plea of guilty [136] - [137]. That is also the position in Victoria. The Victorian Court of Appeal in Phillips v The Queen [2012] VSCA 140 held that 'the strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea' [36]. These outcomes are to be seen against the background of the law as articulated in Cameron. The position in Queensland is that the strength of the prosecution case is not wholly irrelevant to the utilitarian value of an early plea of guilty: R v Mahony; R v Shenfield [2012] QCA 366 [56].
57 The question for determination in this case is whether, as a matter of statutory construction, the strength of the State case can be taken into account under the rubric of 'the benefits to the State' in s 9AA(2). That issue was not addressed in Forkin. I would determine that question in the affirmative.
58 It is of benefit to the State to secure the conviction of people who offend against the criminal law. The strength of the State case is directly relevant to the prospect of securing a conviction. The stronger the case, the greater the prospect of securing a conviction absent a plea of guilty. The strength of the State case also has the potential to impact on the time and expense required by the State in the preparation and conduct of its case at trial. As a general rule, the stronger the State case the smaller the benefit to the State in the extent of the savings.
59 This conclusion does not alter the fact that the strength of the case is also relevant to subjective considerations including remorse and a willingness to facilitate the administration of justice.
Resentencing and conclusion
60 Parity at the time of sentencing required that the appellant's term of imprisonment be suspended on the same terms and conditions as Kelly. However, that is now not possible because the appellant has been in custody since 20 June 2013. Accordingly, I would reduce the sentence of imprisonment from 2 years 8 months to 2 years and suspend that term for 12 months.
61 For these reasons, I would allow the appeal on ground 1, set aside the sentence imposed by the sentencing judge and in lieu thereof, impose a term of imprisonment of 2 years suspended for 12 months. I would grant leave to appeal on ground 2 but dismiss the ground.
62 PULLIN JA: This is an appeal against sentence.
63 The appellant was convicted on one count of aggravated burglary and committing an offence in a dwelling, namely unlawful wounding, contrary to s 401(2) of the Criminal Code (WA). She was sentenced to 2 years 8 months' immediate imprisonment, and an order was made that she be eligible for parole.
64 The facts are that on 20 November 2012, the appellant and a male co-offender, Luke James Kelly, broke into the dwelling of the appellant's ex-partner (the victim). The male offender was armed with a short metal pole and he unlawfully wounded the victim.
65 The appellant had previously been in a relationship with the victim for approximately four years and on the day of the offence and the day before, she had been at the victim's home where they had been taking drugs. An argument broke out in the early hours of the morning between the appellant and the victim, and the victim became violent towards the appellant. The appellant suffered a puncture wound to her thigh, bruising to her arm, hip and knee and some superficial scratches. The appellant was angry about this. She left the victim's house. She sent a number of violently worded text messages to the victim.
66 The appellant spoke to her long-term friend, the co-offender, about the argument and the violence, and they formed an agreement to assault the victim. The appellant later told the police that she wanted to hurt the victim physically because he had hurt her. The co-offender was in love with the appellant and felt protective of her.
67 The appellant and the co-offender then drove together to the victim's house. The appellant offered the co-offender a short pole from a shopping trolley that she had in her car, but he declined the invitation to take the pole because he had brought a similar weapon of his own along.
68 The sentencing judge found that the pair had no fixed idea of what would occur inside the house, other than that the co-offender would assault the victim with the pole when they were inside, and the appellant would collect some of her property. The co-offender, as instructed by the appellant, kicked down the door to gain entry to the house. They found the victim in the lounge room asleep, and the co-offender began an attack upon the victim with the metal pole, at the same time abusing him and telling him that he was being punished and taught a lesson. The appellant went off looking for her property in other rooms, but she was well aware of the fact that the attack was underway. The appellant then came back into the lounge room, shouted at the co-offender to stop, and they ran from the house, chased by the victim who collapsed outside.
69 Both the appellant and the co-offender pleaded guilty at the earliest opportunity.
70 There were psychological and pre-sentence reports about the co-offender before his Honour. The psychological report revealed that the co-offender's early home life had been 'chaotic'. His relationship with his father had been poor in the past, but had improved over the years. He experienced a history of severe domestic violence with his father victimising him, his brother and their mother which caused the co-offender's mother to leave his father. He had shifted school many times - he said he had been to 14 primary schools across all States except Tasmania - and he had virtually no employment record as he had not held a job for more than a few days. He had used various drugs, including cannabis, ecstasy and alcohol, and started his cannabis use when he was around 13 years of age. He is illiterate. He was 21 years old at the date of the offence. He had first come before a children's court and was convicted of aggravated robbery when he was 15 years old, and since then he has committed offences involving possession of cannabis and possession of a smoking implement. For the offence of aggravated robbery, he was sentenced to a youth conditional release order, but this was breached during its term and he was resentenced to a further such order with requirements of supervision and 10 hours community work. The offence here was the first time he had come before an adult court.
71 There was also a pre-sentence report and psychological report concerning the appellant. The appellant was 24 years of age at the time of the offence. The appellant also came from a broken home. Her childhood was marred by her mother's heavy drinking, which led to physical, emotional and verbal abuse against the appellant and her younger brother. She was expelled from school in Year 9 for truanting. She started formal schooling again in Year 10, but left after three days. She was able to obtain some limited employment after leaving school, but her jobs were typically short-lived. She has problems with alcohol and she used cannabis and amphetamines from the age of about 16. Her court record involved traffic, drink driving and drug related convictions.
72 The sentencing judge found that the criminal culpability of the appellant and the co-offender was approximately equal. His Honour said that in relation to her plea of guilty, the appellant should be allowed a 20% discount, but said she could not 'get the maximum because the State's case was a very strong one'. His Honour said he would allow 'a further 13 1/3% for all other mitigating factors'. His Honour then said that, 'adopting a starting point of 4 years' imprisonment, the appropriate sentence is 2 years 8 months' immediate imprisonment' (ts 60).
73 As to the co-offender, his Honour said that, objectively, the co-offender's offending and mitigating factors would attract the same starting point and discount. His Honour then said that a sentence of 2 years and 8 months' imprisonment was appropriate, but concluded that the sentence should be suspended with supervision and program conditions. His Honour said that he was satisfied that the co-offender's criminal and moral culpability was 'subjectively mitigated to a very significant extent by the emotional, psychological and personality deficits which drew him into the offending in the first place, and which he could barely control once started. He was, to some extent, [the appellant's] second victim'.
Grounds of appeal
(a) Ground 1 alleges that the sentencing judge erred by failing to 'properly apply the parity principle';
(b) Ground 2 alleges that the sentencing judge erred in law in failing to give the appellant the maximum discount for an early guilty plea which resulted in a miscarriage of justice.
74 Leave to appeal on ground 1 of the appeal was granted by Mazza JA on 29 July 2013. The question of leave to appeal on ground 2 of the appeal was referred to the hearing of the appeal.
Ground 1
75 The appellant submitted that there ought not to have been a difference in the sentences imposed on the appellant and the co-offender. It was submitted that because the criminality of the two was equal; background circumstances in relation to both were similar; both had pleaded guilty at the earliest opportunity and both had no significant relevant prior record, they should have received the same sentence and that because the appellant did not receive the same sentence as the co-offender, she felt a justifiable sense of grievance about her sentence.
76 The appellant instigated and was the leader of the home invasion. The male offender wielded the weapon to cause the bodily harm to the occupant. They were equally culpable. The personal circumstances of the two offenders had many similarities. A sentence of immediate imprisonment was entirely appropriate as a sentence for both offenders. See the cases referred to in Butler v The State of Western Australia [2012] WASCA 249 [44] - [46]. A starting point of 4 years' imprisonment was also appropriate: see, again, Butler [46].
77 The State said at the hearing of this appeal that it did not appeal against the manifestly inadequate sentence imposed on the appellant's co-offender because the State had 'conceded' that a non-custodial sentence was open during submissions in relation to the sentencing of the co-offender. It is open to question about whether any concession was made. When the sentencing judge asked the State's attitude toward sentence, counsel said:
Certainly, your Honour, this is an offence which warrants a term of imprisonment and the State would say a term of immediate imprisonment …' (ts 32).
78 However, counsel for the prosecution then added:
[H]owever, the State does recognise the significant treatment needs that are present in the case of [the co-] offender and it may be that your Honour would feel they are best addressed through programmatic and supervision intervention but generally your Honour, the offence is serious enough to warrant a term of imprisonment (ts 32).
79 Prosecuting counsel's prediction about what his Honour may 'feel' proved to be correct. The Director of Public Prosecutions, appearing on this appeal, said that what was said by the prosecutor was accepted by him as amounting to a concession, and that this being so, it would have been a powerful discretionary factor against a State appeal succeeding.
80 As to the 'parity principle', the High Court has made it plain that 'systematic fairness' and 'reasonable consistency' in sentencing requires 'consistency in the application of the relevant legal principles'. It does not require numerical or mathematical equivalence: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. What has to be considered is whether it is necessary to 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender' (Green [31]) and to avoid a result giving rise to a justifiable sense of grievance in the appellant.
81 The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. 'Unjustifiable disparity' is an infringement of the equal justice norm. It is an appellable error, although, as appears below, the existence of such error may not always lead to an appeal being allowed: Green [32].
82 However, viewed at the first step, the existence of the extraordinary disparity in sentences in this case lead to the conclusion that such disparity did induce a justifiable sense of grievance in the appellant. The disparity has arisen because of the manifestly inadequate sentence imposed on the co-offender. Ground 1 must be upheld.
Ground 2
83 The appellant submits that:
(a) the sentencing judge erred in stating that the maximum discount for a plea of guilty was 25% when it may range up to 35%; and
(b) the learned sentencing judge's comment that the appellant 'cannot' get the maximum discount for a plea of guilty because the State case was a very strong one, reveals error.
84 As to the appellant's first submission, it must be dismissed. The maximum discount allowed is now 25% not 35%: see s 9AA(4)(a) of the Sentencing Act 1995 (WA).
85 As to the second submission, it is necessary to refer to s 9AA(2) of the Sentencing Act. The section came into force in December 2012. Before this legislative change, subjective considerations were relevant to the assessment of the discount to be given for a plea of guilty. In particular, the extent of the accused's remorse, express or inferred, often drove the result in relation to the discount: see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339.
86 Now, because of s 9AA of the Sentencing Act, subjective considerations are irrelevant in relation to a discount for a plea of guilty (although they may be relevant to a discount for other mitigating factors: see Sentencing Act, s 9AA(6)). Section 9AA(2) reads:
If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
87 The utilitarian value of a plea of guilty is now the relevant consideration. The two stated matters, namely the benefits to the State and the benefits to any victim or witness to the offence, 'exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty' and if so, 'the extent of the discount'. This was the agreed position of the parties in Forkin v The State of Western Australia [2013] WASCA 51 [21], when they were required to make submissions about the effect of s 9AA. The submissions were called for because it was the first case in this court where it became necessary to consider s 9AA in circumstances where there had been a plea of guilty and it was necessary to resentence.
88 As to the agreed position, McLure P said
The agreed positions of both parties on the proper construction and effect of s 9AA are clearly open and should be accepted [23].
89 Mazza JA agreed with McLure P. Buss JA said that he agreed with the orders proposed by McLure P and, subject to one qualification, agreed with her Honour's reasons. Buss JA said 'the qualification is that the agreed positions of both parties on the proper construction and effect of s 9AA of the Sentencing Act 1995 are clearly open, and should be accepted for the purposes of resentencing the appellant in the present case' [27].
90 In written submissions originally filed in this case, the State referred to Forkin and submitted that the sentencing judge did err by taking into account the strength of the prosecution case in reducing the extent of a discount for the plea of guilty. In subsequent written submissions, the State retracted that submission and submitted that the strength of a State case may be taken into account in determining the extent of a discount for a guilty plea, and that his Honour did not err in taking into account the strength of the prosecution case. That submission was preceded by a review of authorities in three other States. A reference was first made to the New South Wales Court of Appeal decision in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The New South Wales court said that the strength of the Crown case was an irrelevant factor in determining the utilitarian value of a guilty plea [136] - [137]. In Victoria, in Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149, the Court of Appeal stated that the strength of the Crown case was irrelevant to the discount to be allowed for the utilitarian benefit of a guilty plea because it did not bear upon the objective benefits of the plea [36]. However, in Queensland, in R v Mahony; R v Shenfield [2012] QCA 366, the Court of Appeal held that the strength of the prosecution case was not 'wholly irrelevant' to the utilitarian of an early plea of guilty [56]. In none of these cases in New South Wales, Victoria or Queensland, was there legislation the equivalent of s 9AA of the Sentencing Act.
91 The State's substituted submissions also referred to four recent Western Australian cases where the State contended that the strength of the prosecution case was remarked upon as a reason for this court reducing the discount for a plea of guilty. The four cases mentioned were: Topic v The State of Western Australia [2013] WASCA 157 [36]; Lynden v The State of Western Australia [No 2] [2013] WASCA 186 [10]; Carr v The State of Western Australia [2013] WASCA 192 [36]; and Brady v The State of Western Australia [2013] WASCA 253 [32].
92 In the case of Lynden, I wrote the reasons and the other two judges agreed. In [10], which was referred to by the State, I did not state that the strength of the prosecution case was a reason for discounting.
93 However, in Topic, Carr and Brady (which were all two member courts), the court did mention the strength of the prosecution case as a factor relevant to the reduction of the discount for a plea of guilty. However, Forkin was not mentioned in any of those cases.
94 In my view, Forkin has to be followed. In addition, there is good reason for allowing a discount only for utilitarian reasons. If accused persons understand that a discount for a plea of guilty will not be reduced just because the sentencing judge thinks that the case against them was 'strong', then it will lead to a greater inducement to plead guilty and thereby produce benefits to the State and benefits to the victim. It also brings Western Australia into line with the New South Wales and Victorian approach. As a result, his Honour erred in taking into account the strength of the prosecution case in determining the amount of reduction for the guilty plea. Leave to appeal on ground 2 should be granted and ground 2 upheld.
Resentencing
95 Having upheld both grounds of appeal, it then becomes a matter of considering the subject of resentencing. If the conclusion is that no different sentence should be imposed, then the appropriate course to follow is that the appeal be dismissed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). However, if the conclusion is that a different sentence should be imposed, then the sentencing judge's sentence must be set aside and a new sentence imposed in its place (s 31(5)(a)).
96 If an appeal is allowed on the ground of an unjustifiable disparity between the appellant's sentence and a co-offender's sentence, the court must, on resentencing, have regard to the sentence imposed on the co-offender and give it appropriate weight. However, the court is not required to achieve identity of punishment: Green [32].
97 There is a particular problem in this case and it arises because of the manifestly inadequate sentence imposed on the co-offender. This type of problem has been addressed by the High Court. It said in Green [33] that there is a question whether a sentence which would otherwise be appropriate 'can' be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. That question has been answered in the affirmative: see Green [33]. However, the existence of a discretion where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to exercise the discretion in favour of the appellant. The discretion of the court to reduce a sentence to less than an adequate level does not require this court to consider reducing the sentence to a level which would be 'an affront to the proper administration of justice': Green [33]. If the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on an appeal to impose one. Nothing in the Sentencing Act or the Criminal Appeals Act authorises this court to impose an inadequate sentence.
98 This is an unusual case. Often disparity occurs when disparate sentences are imposed, but both are still within the range of sentences customarily imposed. For example, if two co-accused committed a robbery where the circumstances of the offending were the same and the personal circumstances of the co-offender's equivalent, and one offender was sentenced to 6 years' imprisonment and the other 4 years' imprisonment, then the reduction of the 6 year sentence to a 4 year sentence would, in many cases, be appropriate because the 4 year sentence would not, in most cases, amount to an 'affront to the proper administration of justice'.
99 It would be an affront to the proper administration of justice to impose a suspended sentence for this kind of offence. A sentence of immediate imprisonment was the only appropriate sentence.
100 The appropriate head sentence for the offence committed here was 4 years' imprisonment. A discount of 25% for the early plea of guilty is appropriate in this case. That produces a sentence of 3 years' imprisonment before other points of mitigation are considered. For the purpose of resentencing, this court is not bound by the judge's view that he should further reduce the sentence by 13 1/3%. It is not necessary to specify a precise percentage for those points in mitigation. Taking into account the lenient sentence imposed on the co-offender, the personal mitigating factors of the appellant and the appellant's remorse, the appellant should be resentenced to 2 years' immediate imprisonment. Reconsidering again all of the factors relevant to the imposition of sentence, a suspension of the sentence cannot be justified.
101 The appeal should be allowed and the appellant should be sentenced to 2 years' imprisonment and made eligible for parole, which would mean that she would be eligible for release on 21 June 2014.
102 MAZZA JA: I agree that this appeal against sentence should be allowed. I would resentence the appellant to 2 years' immediate imprisonment with eligibility for parole. I will state my own reasons in respect of ground 1. I agree with McLure P's reasons in respect of ground 2. Other than is necessary to explain my reasons, I will not set out the background circumstances to this case. They have been comprehensively described in the reasons of McLure P and Pullin JA.
103 The learned sentencing judge undertook an analysis of the offending and the mitigating factors that applied to each of the appellant and Mr Kelly.
104 He found that the appellant was the ringleader and that the motive for the offence and its planning were hers. His Honour said that she had a 'directorial' role in what occurred (ts 54). He was satisfied beyond reasonable doubt that the appellant 'provoked and goaded Mr Kelly to offend and he [Kelly] lacked the ability to resist' (ts 58). His Honour said that he was satisfied that 'she wilfully allowed Mr Kelly to overreact and she knew that he would overreact' (ts 58).
105 The learned sentencing judge described her role in this way:
I am satisfied that [the appellant] had considerable sway over [Kelly] by reason of his attraction to her and the difference in their ages, life experiences and maturity. During submissions I said that Mr Kelly might be cunning. I have not adhered to that opinion. I've said that he can be clever and insightful. The cunning one in this relationship was [the appellant].
She encouraged him to use the weapon, she instructed him to kick in the door, she allowed him to overreact and she left him to his own devices after he had started thrashing the victim and she coolly thanked him afterwards for what he'd done … As I say, she knew what would happen and she used Mr Kelly for her base purposes (ts 58 - 59).
106 His Honour acknowledged that there was, in the appellant's case, 'plenty of mitigation' (ts 60). That mitigation included:
(a) her 'full and incriminating admissions' (ts 56);
(b) her plea of guilty at the earliest opportunity which 'facilitated the administration of justice and is evidence of some remorse' and insight (ts 56);
(c) she was a first offender (ts 56); and
(d) the need for personal deterrence was 'relatively low' (ts 60).
107 With respect to Mr Kelly, the learned sentencing judge found that he acted in part out of a 'misplaced notion that he could be of service to [the appellant] and could ingratiate himself to her', but also out of jealousy.
108 His Honour said that Mr Kelly:
… took part deliberately, armed himself for the purpose, effected the forced entry and set upon his victim in a cowardly and ruthless way until he had to be called off. He told the author of the pre-sentence report that the victim got what he deserved (ts 58).
109 In terms of mitigation, the learned sentencing judge took into account Mr Kelly's early plea of guilty, his youth (Kelly was 21 years old at the time of the offending and 22 at the time of sentencing), the absence of any criminal history as an adult and that he 'suffers from … psychological, educational and emotional deficits'. His Honour expressly accepted and endorsed observations and findings made by the court-appointed psychologist who wrote:
[Mr Kelly] witnessed severe domestic violence as a child and has formed an insecure attachment style which may cause him to strongly hold onto destructive relationships to his detriment. Mr Kelly has a personality pattern which is one of hyper-alertness to anticipated pain and an inability to experience joy and love.
[Mr Kelly] is likely to engage in self-defeating behaviours and place himself in abject positions relevant to others. His profile is consistent with a person of generalised anxiety and he has symptoms consistent with post-trauma syndrome, suicidal ideation and a sense of hopeless resignation.
110 The psychologist concluded:
His involvement in the current offences appears to have been motivated by jealousy and distress of the alleged victim's earlier assault of the co-accused. His level of emotion would have been significant due to the enmeshed nature of his relationship with the co-accused and his own significant victimisation through domestic violence (ts 57).
111 Having set out each offender's role in the commission of the aggravated burglary and their respective mitigating circumstances, his Honour imposed the same term of imprisonment. In doing so, he adopted the same 'starting point' for each offender and gave identical discounts for the plea of guilty and each offender's personal circumstances. Up to this point, the appellant and Mr Kelly were treated equally. However, his Honour imposed different types of sentences. He did so, mindful of the disparity. He differentiated between the offenders on the basis that the appellant offended 'wilfully out of malice'. Further, he said:
Mr Kelly was taken advantage of, lacked the maturity and psychological tools to deal with the situation and has enormous therapeutic and rehabilitative needs which are best dealt with in the community as successfully occurred when he was a juvenile (ts 61).
112 For this appeal to succeed, the appellant must show that the disparity is marked and is such as to give rise to an objective, justifiable sense of grievance: Green v The Queen (2011) 244 CLR 462 [31]. This requires an evaluation by this court of the differences identified by his Honour between the appellant and Mr Kelly.
113 As to their involvement in the offences, they were not, in my opinion, markedly different. While his Honour found that the appellant 'acted wilfully and out of malice', he also found that Mr Kelly acted 'deliberately' and partly out of jealousy. If the appellant was the ringleader, Mr Kelly was a very willing assistant, and inflicted the injuries suffered by the victim.
114 As to their respective personal circumstances, the appellant's counsel in this appeal acknowledged that Mr Kelly's personal circumstances 'were probably more favourable than that of the appellant' (appeal ts 22). To the extent that Mr Kelly was younger, that submission should be accepted. In other respects, the personal circumstances of the offenders were similar. Like Mr Kelly, the appellant had:
(a) a sad, unhappy and emotionally under-nurtured childhood, including being subject to physical and emotional abuse;
(b) a disrupted and fragmented education;
(c) a minimal history of employment; and
(d) a past history of illicit drug use.
115 Both the appellant and Mr Kelly had therapeutic needs and were amenable to supervision and programmatic intervention.
116 There is a very marked disparity in the sentences imposed upon the appellant and Mr Kelly. The extent of the disparity cannot, in my view, be rationally explained by the differences in the circumstances of the offending or of the offenders. I am persuaded that the disparity has given rise to an objectively justified sense of grievance on the appellant's part. With great respect to his Honour, there has been an infringement of the parity principle which enlivens this court's power to resentence the appellant.
117 The appellant submitted that this court should resentence her to the same sentence that was imposed on Mr Kelly. A potential barrier to the acceptance of that submission is that the sentence imposed on Mr Kelly was inadequate.
118 Aggravated burglary carries a maximum penalty of 20 years' imprisonment. The circumstances of the offending were described by the learned sentencing judge as 'a very serious aggravated burglary'. This conclusion is amply justified on the facts which were admitted in the sentencing proceedings and have not been challenged in this appeal. The offence was planned and motivated, as Mr Kelly knew, by the appellant's desire for revenge. Mr Kelly willingly took on the role of 'enforcer' and brought to the victim's house his own weapon to use on the victim. The victim was asleep and in a vulnerable state. He had no opportunity to defend himself. Mr Kelly struck him 15 times with a metal pole and inflicted significant injury. Mr Kelly's conduct was, as his Honour said, 'cowardly and ruthless'. Mr Kelly appears to have limited insight into the wrongfulness of his conduct based on his statements to the writer of the pre-sentence report, to the effect that the victim got what he deserved.
119 In Mr Kelly's favour must be weighed his pleas of guilty, his youth, immaturity and personal circumstances. However, as the majority observed in Munda v The State of Western Australia [2013] HCA 38 [53], while mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.
120 An examination of the sentencing decisions of this court in respect of violent aggravated burglaries shows that almost invariably a sentence of immediate imprisonment is imposed. See Hall J's analysis of the cases in Wragg v The State of Western Australia [2013] WASCA 198 [46] - [61] and his comments in The State of Western Australia v Peacock [2013] WASCA 248 [31] and [32].
121 It has been recognised in the cases that aggravated burglaries are prevalent and the sentencing objectives of general deterrence and denunciation are of particular importance in the exercise of the sentencing discretion.
122 I acknowledge, in fairness to his Honour, that the State contributed to the imposition of the inadequate sentence on Mr Kelly by making the erroneous concession that it was open to suspend the sentence of imprisonment to be imposed on him.
123 In Green v The Queen, the majority held that where the parity principle has been infringed, an appeal court, subject to any statutory provision to the contrary, may, but is not required, to resentence the appellant to an inadequate sentence. Regardless of the existence of the discretion, disparity may be mitigated by a reduction of the sentence imposed to one which is still within the range of appropriate sentences: Green v The Queen [33].
124 Prior to the decision in Green, this court and other intermediate courts of appeal in Australia had recognised that an appellate court was not required to impose an inadequate sentence when the parity principle has been infringed, particularly in cases in which it was said that to do so would be 'an affront to the proper administration of justice'. See I (a child) v The State of Western Australia [2006] WASCA 9 [66] - [68] and R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366 [10].
125 I will assume, in the appellant's favour, that s 6(1) of the Sentencing Act, which provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence, is not a statutory impediment to this court imposing an inadequate sentence where the parity principle has been infringed.
126 I am aware that Murray J in Goddard v The Queen [1999] WASCA 281 [61] expressed the contrary view. It is unnecessary to decide the point here, particularly as it was not the subject of submissions by the parties. On the assumption I have made, I would not impose the same inadequate sentence as was imposed upon Mr Kelly.
127 It is unnecessary to repeat what I have already said about the nature of the offending. It is sufficient to say that this was a particularly serious instance of this kind of offending that warranted only a substantial custodial sentence particularly to achieve the objects of general deterrence and denunciation. Although there were significant mitigating factors, most notably the plea of guilty and the appellant's personal circumstances, it would be wrong to compound the inadequate sentence imposed upon Mr Kelly by imposing the same inadequate sentence on the appellant.
128 Some mitigation should be given for the objectively justifiable sense of grievance the appellant has because of the marked and unjustifiable disparity in the sentences imposed. Accordingly, I would resentence the appellant to 2 years' imprisonment with eligibility for parole. I regard this sentence as within the range of appropriate sentences. The sentence should commence from 20 June 2013.
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