Bennett v Beeby
[2019] WASC 275
•5 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BENNETT -v- BEEBY [2019] WASC 275
CORAM: JENKINS J
HEARD: 27 MAY 2019
DELIVERED : 5 AUGUST 2019
FILE NO/S: SJA 1054 of 2019
BETWEEN: PAUL BENNETT
Appellant
AND
PAUL SIMON BEEBY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B A AYLING
File Number : PE 56166/15
Catchwords:
Criminal law - Appeal against sentence - Unlawfully making an explosive substance - Parity of sentence - Manifest excess - Totality
Legislation:
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time within which to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dinsdale v The Queen [2000] HCA 54
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Herbert v The Queen [2003] WASCA 61
Higgins v The State of Western Australia [2019] WASCA 78
Jordan v The State of Western Australia [2012] WASCA 163
Krencej v The State of Western Australia [2019] WASCA 82
Lowe v The Queen [1984] HCA 46; (1984) CLR 606
R v Clinch (194) 72 A Crim R 301
Roberts v The State of Western Australia [2014] WASCA 239
JENKINS J:
This is an appeal from the sentence imposed on the appellant in the Perth Magistrates Court on 27 August 2018 for the offence of making an explosive substance, namely a pipe bomb, under such circumstances as to give rise to a reasonable suspicion that the appellant was not making it for a lawful object (the pipe bomb manufacture offence).
The appellant was sentenced to 12 months' immediate imprisonment. The sentence was ordered to be served cumulatively on a sentence of 3 years' imprisonment which the appellant was then serving.
Grounds of appeal
The appellant relies on two grounds of appeal which are:
1.The appellant has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence of his co‑offender.
2.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive in all of the circumstances, including those referable to the appellant personally.
Application for an extension of time
The appellant requires an extension of time within which to appeal as the appeal was filed on 17 April 2019. The last date for appealing was 24 September 2018.
Ms Sinton's affidavit in support of an extension of time within which to appeal contains the following reasons for not commencing the appeal within time:
(1)The appellant applied for Legal Aid for assistance with an appeal on 16 August 2018, prior to his sentencing.
(2)Legal Aid was refused initially.
(3)After a review by Legal Aid's review committee Legal Aid was granted and the matter assigned to Ms Sinton on 17 January 2019 for consideration of both a conviction and a sentence appeal.
(4)It took Ms Sinton some time to obtain the necessary documents, review them and provide the appellant with an opinion.
(5)The opinion was posted to the appellant on 26 March 2019.
(6)Ms Sinton made an appointment to speak with the appellant by Skype on 9 April 2019.
(7)The appointment did not occur as the prison in which the appellant incarcerated was locked down on 9 April 2019.
(8)On 16 April 2019, Ms Sinton spoke with the appellant and he instructed her to commence an appeal against his sentence.
(9)The appeal was lodged on 17 April 2019.
I have determined that the issues raised by the grounds of appeal together with the explanation for the delay in commencing the appeal justify the grant of an extension of time within which to appeal.
The pipe bomb manufacture charge and the proceedings related to it
The accused was charged that on 3 September 2015 at Perth he made an explosive substance, namely a pipe bomb, under such circumstances as to give rise to a reasonable suspicion that he was not making it for a lawful object contrary to the Criminal Code (WA) (the Code) s 557.
The appellant pleaded not guilty to the charge and it was tried in the Magistrates Court at Perth on 16 ‑ 18 July 2018. The appellant was jointly tried with another man, Aaron Lee Priemer. Mr Priemer was charged in relation to the same explosive substance but he was charged that on 3 September 2015 at Perth he knowingly had in his possession the pipe bomb, under such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession for a lawful object, contrary to the Code s 557 (the pipe bomb possession offence).
The Code s 557(1) states:
Any person who makes, or knowingly has in his possession or under his control, any dangerous or explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it, or does not have it in his possession or under his control for a lawful object, unless he can show that he made it, or had it in his possession or under his control for a lawful purpose, is guilty of a crime, and is liable to imprisonment for 14 years, and forfeiture of the dangerous or explosive substance.
Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
Mr Priemer was tried also on two other offences committed on the same date and at the same place being:
(1)that he was in possession of a firearm, namely a Lee‑Enfield 0.303 calibre, whilst not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so and not being exempted from holding a licence or permit in circumstances of aggravation; and
(2)that not being a person exempted by the Firearms Act possessed ammunition whilst not being the holder of a firearms licence or permit entitling him to do so, contrary to the Firearms Act s 19(1)(c).
On the afternoon of 18 July 2018, at the conclusion of evidence and submissions, the magistrate reserved her decision to 27 August 2018. On that date her Honour delivered oral reasons for convicting the appellant and Mr Priemer of all charges.
The appellant and Mr Priemer had other summary charges to which they had pleaded guilty and were awaiting sentence. Her Honour adjourned all matters to 27 August 2018 for sentence.
The appellant's sentences
On 27 August 2018, her Honour sentenced the appellant for the pipe bomb manufacture offence and for 16 offences to which he had pleaded guilty. The offences in chronological order and the sentences imposed for each of them are set out in the following table:
Date of offence
Charge No
Offence
Sentence
6/5/15
JO 5140/15
Possessed a prohibited drug (amphetamine)
$1500 fine (global)
6/5/15
JO 5141/15
Possessed stolen or unlawfully obtained property
$1500 fine (global)
9/5/15
JO 6313/15
Possessed stolen or unlawfully obtained property (vehicle registration plates)
$1500 fine (global)
9/5/15
JO 10278/15
Possessed drug paraphernalia
$1500 fine (global)
3/9/15
PE 56166/15
Pipe bomb manufacture offence
12 months' imprisonment cumulative
19/9/15
JO 11019/15
No authority to drive (fines suspended)
$1500 fine (global)
19/9/15
JO 11020/15
Possessed a controlled weapon
$1500 fine (global)
19/9/15
JO 11021/15
Possessed drug paraphernalia
$1500 fine (global)
5/12/16
PE 68277/16
Breach of bail entered into on 10/8/16
1 month imprisonment concurrent
19/12/16
JO 6793/17
Possessed ammunition
1 month imprisonment concurrent
19/12/16
JO 6792/17
Possessed a prohibited drug (cannabis)
1 month imprisonment concurrent
19/12/16
JO 6791/17
Possessed a prohibited drug (methylamphetamine)
1 month imprisonment concurrent
19/12/16
JO 6790/17
Possessed prohibited weapons
1 month imprisonment concurrent
19/12/16
JO 6789/17
Possessed a prohibited weapon
1 month imprisonment concurrent
19/12/16
JO 6788/17
Possessed drug paraphernalia
1 month imprisonment concurrent
19/12/16
PE 47454/17
Possessed a prohibited drug (methylamphetamine)
1 month imprisonment concurrent
26/6/17
JO 7248/17
Breach of police order
$1500 fine (global)
The sentence of 12 months' imprisonment for the pipe bomb manufacture offence was ordered to be served cumulatively on a sentence of 3 years' imprisonment which was imposed by the District Court on 1 May 2018. Details of the offences for which it was imposed are given later in this judgment.
The prosecutor and magistrate did not have the statements of material facts (SOMF) for JO 6788/17, JO 6789/17 and PE 47454/17 but the parties did not object to the magistrate sentencing the appellant on the basis of the allegations contained in the relevant prosecution notices.[1] There is only one material difference between the facts on which the appellant was sentenced and the facts of the offences as revealed by the SOMF.[2] Defence counsel mistakenly told the magistrate that PE 47454/17 related to less than 1 g of methylamphetamine[3] whereas the charge concerned 15 pills which contained methylamphetamine. The true facts are set out later in these reasons but the respondent does not ask me to revisit the facts of the offence.[4]
[1] ts 2, 27 August 2018.
[2] The respondent provided the SOMF to this court on 12 June 2019 after I queried with the parties why there were differences between the appellant's PCR and the offences for which the magistrate said that she was sentencing him.
[3] ts 3, 27 August 2018.
[4] Email from Mr Scutt dated 12 June 2019.
The facts of the offences committed on 6 May 2015 are that on that date the police searched the appellant's shoulder bag and a motor vehicle (without registration plates attached) which was last registered to the appellant. They found 0.64 g of a crystal rock substance believed to be amphetamine in a clipseal bag inside a case in the bag. Also in the case were empty clipseal bags and a small set of scales. Underneath the front passenger seat of the car the police located a driver's licence and fuel card in another person's name. Inside the glovebox they located a car key fob, two garage door or gate remote control fobs and two sets of keys. These items had been reported stolen during another incident. The appellant told the police that he had located the items a few days earlier on a beach in a plastic bag and that he did not intend to return them as he thought they had been stolen.
The facts of the offences committed on 9 May 2015 are that on 7 ‑ 8 May 2015 a set of vehicle registration plates were removed from a vehicle parked in a carpark at Currambine. On 9 May 2015, the police found the accused's car (referred to in the offences described above) in Joondalup with the stolen plates attached to it. A smoking implement was found in the front foot well of the car. When interviewed the appellant said that he was 'off his head' and could not recall stealing the plates.
Three of the offences for which the magistrate sentenced the appellant were committed on 9 September 2015. On that date the police stopped a car which the appellant was driving and searched it. The police found 5.63 g of methylamphetamine at 83% purity which was the subject of a charge of possession of methylamphetamine which was dealt with in the District Court on 6 February 2017 by way of a plea of guilty. They also located in the car a glass smoking implement, electronic scales and a can of pepper spray.[5] The appellant's motor drivers licence was suspended at the time due to unpaid fines.
[5] ts 16, 6 February 2017.
On 6 February 2017, the appellant was sentenced to a two year community based order (CBO) for the offence of possession of methylamphetamine. However on 18 June 2018, the CBO was cancelled and he was sentenced to a fine of $1500. There were two reasons for the resentencing. The first and most significant was that the appellant was then in custody having been sentenced on 1 May 2018 to immediate imprisonment by a different District Court judge for the offences referred to in [21]. The second was that he had breached the CBO by committing another offence, being the breach of the police order on 26 June 2017.
The breach of bail offence was committed on 5 December 2016 when the appellant failed to appear in the Joondalup Magistrates Court in answer to his bail which he entered into at the same court on 10 August 2016. He was arrested the following day and was again granted bail.[6]
[6] These facts are apparent from the Prosecution Notices for the charges for which the appellant was bailed.
Another seven offences were committed on 19 December 2016. On that date the police searched the appellant's premises. They found 31.39 g of methylamphetamine at about 60% purity, $400 cash and a quantity of electronic devices and power tools all of which were the subject of indictable charges which were dealt with in the District Court. The police also located in the house over 20 glass smoking implements[7] containing traces of methylamphetamine, a taser with three cartridges (one used), an extendable ASP baton,[8] four clipseal bags in different parts of the house each containing under one gram of methylamphetamine, two clipseal bags also in different parts of the house one containing approximately two grams of cannabis and the other containing less than one gram of cannabis, about 550 rounds of different calibre ammunition and a clipseal bag containing 15 pills with methylamphetamine being one of the components of the pills. These items were the subject of separate charges as set out in the table at [13].
[7] There are references in the materials to many more being located but this is the number which appears in the SOMF.
[8] There are references in the materials to two batons being located but only one is mentioned in the SOMF.
On 1 May 2018, the appellant was sentenced in the District Court to a total sentence of 3 years' imprisonment for possession of the 31.39 g of methylamphetamine with intent to sell or supply and possession of the $400, electrical goods and power tools which were all reasonably suspected of being unlawfully obtained. The sentence was backdated by 32 days to give the appellant credit for time he had spent in custody.
The facts of the breach of police order offence committed on 2 June 2017 are that on 25 June 2017 the appellant was issued with an order by the police prohibiting him from having contact with his former partner for a period of 72 hours. On 26 June 2017, he walked into a police station with the protected person.[9] They had attended at the police station separately for unrelated reasons.[10]
[9] ts 33 ‑ 34, 18 June 2018.
[10] ts 35 ‑ 36, 18 June 2018.
Facts of the pipe bomb manufacture offence
There is no SOMF for the pipe bomb manufacture offence as it proceeded to trial. However, the parties agree that the facts on which the appellant was sentenced included the following:
(1)On 3 September 2015, the appellant was an in‑patient at Royal Perth Hospital.
(2)On that date Mr Priemer delivered to the appellant in hospital three suitcases which were found to contain, along with clothing and other personal items, two modified rifles, a bag of ammunition and a canister wrapped in black electrical tape confirmed to be an explosive device (the pipe bomb).
(3)The appellant had made the pipe bomb and left it at the home of Mr Priemer prior to his admission to hospital.
(4)Mr Priemer knowingly took the pipe bomb to the hospital.
(5)It was necessary to evacuate three wards of the hospital whilst the bomb squad investigated the pipe bomb.
(6)It was not possible to determine the purpose for which the appellant made the pipe bomb though it was obvious from all of the circumstances that there was a 'criminal purpose behind it'.[11]
(7)There was no suggestion that the appellant or Mr Priemer had an intention to damage the hospital or to harm its occupants.[12]
[11] ts 10, 27 August 2018.
[12] ts 10, 27 August 2018.
The evidence accepted by the magistrate was that when Mr Priemer delivered the suitcases to the appellant's hospital room the appellant said something along the lines of 'why did you drop that stuff off here?' to which Mr Priemer told the appellant that it was because he had to go to court.[13] The appellant then asked him why he did not just leave it in his car.[14]
[13] It was accepted that Mr Priemer was going to be sentenced that day for unrelated offences and he did not want the appellant's property left at the Aveley house when he would not be there.
[14] ts 104, 17 July 2018.
It is also relevant to note the findings made by the magistrate when convicting Mr Priemer as these appear to be facts on which she sentenced the appellant also. Her Honour made the following findings:
(1)The appellant and Mr Priemer had known each other for a few months prior to 3 September 2015.
(2)They were both users of methylamphetamine.
(3)Mr Priemer was aware that the appellant was interested in guns and ammunition.
(4)The appellant had been staying in a house in Aveley with Mr Priemer.
(5)The appellant's belongings remained at the Aveley house with Mr Priemer.
(6)At least 10 days before 3 September 2015, the appellant was admitted to hospital suffering from an acute attack of ulcerative colitis. From there he had sent a text message which said that Mr Priemer needed to 'drop all my stuff off' at either the hospital or a mutual friend's home.[15]
(7)On the morning of 3 September 2015, Mr Priemer tidied up the Aveley house in expectation of his father's return because he did not want his father to find the appellant's firearms and ammunition scattered around the house.
(8)Mr Priemer put the appellant's belongings including the pipe bomb, the firearm and ammunition (the subject of the two other charges) into the suitcases and delivered them to the appellant in hospital as a result of the appellant's request.[16]
[15] ts 103 ‑ 104, 17 July 2018.
[16] ts 152,18 July 2018.
In her reasons for convicting appellant, the magistrate also indicated that she accepted the following evidence about the nature of the pipe bomb:
(1)The pipe bomb consisted of a robust outer container in the form of a threaded metal pipe which had metal end caps and a highly combustible internal fill.
(2)The combustible material contained within the pipe was confined and, if ignited, would cause a violent reaction, releasing gas and energy rapidly and creating an explosion.
(3)The pipe bomb was designed with a hole in one metal end cap, commonly constructed for the placement of an initiator of some kind to be inserted to contact the fuel contents.
(4)Once the initiator was ignited, the internal combustible material would ignite, creating an explosion.
(5)A person holding the pipe bomb or in very close proximity to it would receive significant injury from its explosion, potentially endangering health, safety or life.[17]
[17] ts 149, 18 July 2018.
The plea in mitigation
The substantive portion of the plea in mitigation commenced by the magistrate asking defence counsel whether the appellant conceded that a term of immediate imprisonment needed to be imposed for the pipe bomb manufacture offence and that the question was one of totality.
Defence counsel responded by advising the magistrate that the appellant maintained his innocence,[18] however he understood that a term of imprisonment would be imposed. Counsel said that it was in her Honour's discretion whether the term was ordered to be served cumulatively on the sentence he was then serving. She then asked the magistrate to make any sentence she imposed concurrent on the basis of the term of the appellant's existing sentence, 'the huge amount of rehabilitation' the appellant had done and the support which he had.[19]
[18] The appellant's evidence at trial was that the pipe bomb was not his and he had not made it or seen it before.
[19] ts 4, 27 August 2018.
In relation to the facts, defence counsel submitted that the magistrate should take into account the following matters:
(1)After the items were delivered to the hospital, the appellant left his room in order to make a phone call to arrange to have the suitcases removed from the hospital.
(2)The appellant did not envision that the pipe bomb would be brought into the hospital.
(3)The appellant did not ask for the pipe bomb to be brought into the hospital.
(4)The appellant could not have anticipated that Mr Priemer would take the pipe bomb to the hospital.
(5)The appellant was very unwell at the time and had spent 10 days in hospital.[20]
[20] ts 4 ‑ 5, 27 August 2018.
The magistrate interrupted counsel and said that she understood the point that counsel was making and that she accepted that the appellant did not specifically ask for the pipe bomb. Her Honour made the point that the gravamen of the offence was making the pipe bomb under suspicious circumstances and for an unlawful purpose in circumstances where another person may take the pipe bomb somewhere where the public's safety would be put at risk.[21] I do not accept that her Honour found that the appellant's request for his belongings excluded the pipe bomb.
[21] ts 5, 27 August 2018.
In relation to the appellant's personal circumstances counsel submitted the following information:
(1)The appellant was bailed after being charged with the pipe bomb manufacture offence.
(2)He committed further offences.[22]
(3)He stayed with his parents in Bridgetown.
(4)He returned to Perth and committed further offences.[23]
(5)He subsequently completed a 90‑day drug residential rehabilitation course.
(6)He had not reoffended since completing that course.
(7)He had strong prospects of rehabilitation, was educated and had lived a prosocial life up until the breakdown of a relationship when he was about 28 years old.[24]
(8)His chronic illness, ulcerative colitis, had caused him a lot of stress and many physical symptoms.[25]
[22] These were the offences committed on 19 September 2015.
[23] These were the offences committed on 5 and 19 December 2016.
[24] The appellant was born on 14 October 1984. He was nearly 31 years old when he committed the pipe bomb offence and nearly 34 years old when he was sentenced.
[25] ts 5 ‑ 7, 27 August 2018.
Counsel said that further information about the appellant's personal circumstances were contained in the transcript of proceedings before the District Court. I was advised that the appellant's counsel had provided to the magistrate copies of the sentencing transcripts from the District Court and a bundle of letters, medical documents and references, which included a letter from the appellant and a letter of support from his parents. The appellant’s parents are people of good character and support his efforts to rehabilitate himself.
Magistrate's sentencing remarks
At the conclusion of defence counsel's submissions the magistrate said:
There are a large number of matters before me and obviously totality will come into play but general deterrence is certainly important in relation to the [pipe bomb manufacture offence].[26]
[26] ts 7, 27 August 2018.
After summarising the appellant's personal circumstances, the magistrate said:
Ultimately, I need to impose a penalty today that's reflective of the seriousness of your offending behaviour. The offence of making the explosive substance is, objectively, the most serious of the offences before me. It carries a maximum penalty of 14 years when dealt with on indictment and there is a limit of three year imprisonment when sentenced in this court. General deterrence is clearly important.
A penalty should stand as a message to the community that the manufacture of explosive substances under suspicious circumstances will result in stiff punishment. In terms of the authorities, [in] the case of Roberts v The State of Western Australia [2014] WASCA 239 at 56, the court said, at paragraph:
'Happily there have been so few cases of contravention of s 557 of the Criminal Code that it is impossible to discern from previous decisions in this jurisdiction any standards of sentence customarily imposed for offences of that kind. Although there have been more offences of that character committed in other Australian jurisdictions, it is clear form a consideration of cases in those jurisdictions that the circumstances of the offence, and the penalties imposed, vary widely. As might be expected, a consideration of those cases shows that the penalties imposed correlate significantly to the purpose for which the explosive was manufactured - so that, if the purpose of manufacturing the explosive is to cause injury or to effect some other unlawful purpose such as a burglary, sentences of imprisonment to be immediately served are generally imposed.'
I note, Mr Bennett, there's no evidence before me as to the specific purpose for which the pipe bomb in this case was manufactured and whilst it was unfortunate that the co‑offender, Mr Priemer, saw fit to being the suitcases containing the pipe bomb, rifles and ammunition into Royal Perth Hospital to deliver them to you, there's no suggestion whatsoever that there was any nefarious intent to do harm to the hospital or its occupants.
That just happened to be where you were located and, of course, Mr Priemer's decision to bring the suitcases there had significant consequences for the occupants of the hospital. I was told that three wards needed to be evacuated whilst the bomb squad was called in to investigate and neutralise the threat presented by the pipe bomb and this would have obviously involved unnecessary stress and inconvenience to hospital staff, patients within those wards and, no doubt, stress and concern for relative of those patients.
Whilst I cannot determine the purpose for which you made the pipe bomb, it is obvious that when it's found with modified rifles and ammunition (indistinct) criminal purpose behind it. It also comes in a context in which you were using drugs heavily. With the need for general deterrence in mind, the only appropriate penalty is a term of immediate imprisonment for that pipe bomb offence.[27]
[27] ts 9 ‑ 10, 27 August 2018.
Her Honour then turned to the issue of totality and said:
I'm conscious of the fact that you are currently serving a lengthy term of immediate imprisonment and that totality is a live issue for me. I need to impose a penalty that is both reflective of your offending behaviour but I also need to take into account that I not impose a crushing sentence. I take into account, as I've indicated, the need for general deterrence. The only appropriate penalty, as I say, is important and the starting point is a term of 20 months, in my view.
I've discounted an amount of eight months taking into account the time that you've spent ‑ you have spent in custody and for the reasons of totality and I've come down to a total term of 12 months imprisonment in relation to the explosives offence.[28]
[28] ts 10 ‑ 11, 27 August 2018.
The magistrate then said that the sentence of 12 months' imprisonment would be served cumulatively on the sentence which the appellant was then serving because it was separate offending and needed to be marked with separate punishment.[29]
[29] ts 11, 27 August 2018.
Her Honour proceeded to impose the sentences of 1 month imprisonment detailed in the table in [13]. She said also that given the age of the 2015 offences and the breach of the police order offence she imposed a global fine of $1,500 for those offences.
Mr Priemer's sentences
In addition to the facts which I have summarised earlier, relevant to sentencing Mr Priemer, the magistrate found:
(1)When the appellant 'called for his stuff' Mr Priemer delivered anything considered by him to belong to the appellant in the suitcases.
(2)Mr Priemer was knowingly in possession of the firearm, ammunition and pipe for the period between when the appellant was admitted to hospital and when he delivered them to the hospital.
(3)On 3 September 2015 Mr Priemer was due to go to court and was preoccupied about that obligation and the charges related to it.
(4)Mr Priemer's decision to deliver the pipe bomb and other items to the hospital 'was simply a poor decision on his part'.[30]
(5)Mr Priemer made an error of judgment in delivering the items, including the pipe bomb, to the appellant.[31]
[30] ts 153 ‑ 154, 18 July 2018.
[31] ts 6 ‑ 7, 27 August 2018.
Her Honour appeared to have taken a fairly lenient view of Mr Priemer's role and decision‑making. Her Honour had the advantage of seeing the recording of the interview between the police and Mr Priemer and of seeing the appellant give evidence. Consequently, her Honour was in the best position to determine the facts and the roles each of the offenders played in relation to the relevant events. The findings which the magistrate made about Mr Priemer cannot be disturbed in this appeal against the appellant's sentence which does not directly challenge those findings.
Her Honour sentenced Mr Priemer for seven offences. The offences and the sentences imposed are set out in the following table:
| Date of offence | Charge no. | Offence | Plea | Sentence |
| 3/9/15 | PE 43279/15 | Possession of modified rifle | PNG | Nine months' imprisonment concurrent conditionally suspended for 12 months. |
| 3/9/15 | PE 43280/15 | Possession of bag of ammunition | PNG | Nine months' imprisonment concurrent conditionally suspended for 12 months.[32] |
| 3/9/15 | PE 43281/15 | Pipe bomb possession offence | PNG | Nine months' imprisonment concurrent conditionally suspended for 12 months. |
| 3/9/15 | PE 43282/15 | Possession of firearm being a spring loaded centre punch modified into a firearm | PG | Nine months' imprisonment concurrent conditionally suspended for 12 months |
| 3/9/15 | PE 43283/15 | Possession of ammunition being 18 x .22 calibre rounds | PG | $500 fine (global) |
| 3/9/15 | PE 43284/15 | Possession of ammunition | PG | $500 fine (global)[33] |
| 3/9/15 | PE 43285/15 | Possession of prohibited weapon being a slingshot | PG | $500 fine (global) |
[32] It is not clear from the sentencing remarks whether the magistrate intended this to be a fine or a suspended sentence. She said that she imposed a global fine for 'the ammunition offences' but the court records record that a suspended term of imprisonment was imposed for this offence.
[33] I do not know the facts of this offence.
It is also relevant to Mr Priemer's antecedents that on 4 September 2015, in the District Court, he was sentenced to 18 months' imprisonment for six offences of exposing a person that he believed to be under the age of 16 years to indecent matter, and five offences of, being an adult, using electronic communication with intent to procure a person that you believed to be under the age of 16 years to engage in sexual activity. The offences occurred in 2009 and the police were responsible for the delay in prosecuting the offences. Mr Priemer had served the whole of that sentence by the time he was sentenced for the offences described above.
The offences for which Mr Priemer was tried by her Honour related to his possession of items which she found that Mr Priemer had delivered to the appellant in hospital, being a modified rifle, ammunition and the pipe bomb. The appellant was not charged with any offence relating to the items, except the pipe bomb.
The offences for which Mr Priemer was sentenced by her Honour after entering pleas of guilty arose out of a search conducted by the of the Aveley house after the pipe bomb was found at the hospital. The police located the items described in the table at [41] in various places in the house. The appellant was not charged in relation to any of those items.
In relation to Mr Priemer's background, the magistrate found that:
(1)He had been a methylamphetamine user for a number of years prior to the offending in September 2015.
(2)Mr Priemer's father supported him.
(3)Mr Priemer's mother was unwell and this was a matter of concern to Mr Priemer.
(4)The time that Mr Priemer had spent in custody (under sentence for the indecency charges) had enabled him to 'break free' of the use of drugs, although he still needed to have some formal treatment so as to ensure that in times of stress he did not resort to drug use.
(5)Mr Priemer was remorseful for his offending.
(6)At the time of the commission of the offences, Mr Priemer had better antecedents than when he was being sentenced.[34]
[34] ts 6 ‑ 7, 27 August 2018. In particular he had not been convicted of the offences of exposing a child to indecent matter, and using electronic communication with intent to procure a child to engage in sexual activity.
The magistrate determined that it was appropriate to sentence Mr Priemer to a term of imprisonment but that she would conditionally suspend the sentence. She said that she had determined his sentences taking into account his treatment needs. The details of the sentences imposed on Mr Priemer are contained in the table at [41].[35]
[35] ts 7, 27 August 2018.
Ground 1
Ground 1 complains that the sentence imposed on the appellant for the pipe bomb manufacture offence infringed the parity principle. The respondent submits that the parity principle does not apply because the appellant and Mr Priemer were not co‑offenders as that term is understood for the application of the parity principle. In any event, he says that there are differences between the two offenders which justify the different sentences imposed on each of them.
The parity principle is well known. It provides that it is desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.[36]
[36] Lowe v The Queen [1984] HCA 46; (1984) CLR 606 [6] Gibbs CJ, [8] Dawson J. Dawson J said that there is not rule of law which requires co‑offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. However subsequent comments by the majority in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472 and following threw doubt upon this statement.
In order to apply the parity principle in an appeal where it is alleged that there is unjustified disparity in the sentences imposed on two or more offenders, the appellate court must determine the following issues:
(1)whether the offenders under consideration are co‑offenders for the purpose of applying the parity principle; and
(2)if so, whether the sentences imposed on each co‑offender give rise to a justifiable sense of grievance on the part of the appellant or whether the differences between the sentences are justified by differences between the co‑offenders and their offences.
When a complaint is made on appeal that a sentence infringes the parity principle and that complaint is established, the appeal court may reduce a sentence which is not itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co‑offender.[37]
[37] Lowe v The Queen (609 ‑ 610) (Gibbs CJ); Green v The Queen (474) (French CJ, Crennan & Kieffel JJ).
The following principles apply to a ground of appeal which alleges a breach of the parity principle:
The critical question is whether 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. The applicable test is objective not subjective.
The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed.
An appellate court may interfere, on the ground of a marked and unjustifiable 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 the imposition of a sentence that is wholly inadequate having regard to the facts and circumstances of the offence and the criminality of the offender or a sentence that is so lenient as to be an affront to the proper administration of justice.[38]
[38] Higgins v The State of Western Australia [2019] WASCA 78.
In relation to the definition of co‑offenders for the purpose of the parity principle, in Green v The Queen,[39] the majority of the High Court said:
The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision.
In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen [48], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged.[40]
[39] Green v The Queen.
[40]Green v The Queen (473 ‑ 474). In the same case Bell J (Heydon J agreeing) expressed a different and narrower view of the issue but I must accept the majority's view.
In Higgins v The State of Western Australia,[41] after referring to the above passage, Buss P stated:
An appellate court, in deciding whether a disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or of giving the appearance in the mind of an objective observer that justice has not been done, must take into account:
(a)all components of the sentence, including the head sentence, the non-parole period and the total effective period that both offenders will serve; and
(b)all of the facts and circumstances applicable to both offenders, including the objective seriousness of the offences, for the purpose of identifying whether the disparity was marked and unjustified (references omitted).
[41] Higgins v The State of Western Australia [25].
His Honour then reviewed a number of cases relating to the parity principle and concluded his reasons with the following passage:
In my opinion, it is apparent from decisions of the High Court (in particular, Postiglione and Green) that the parity principle is concerned with substance rather than form, and that the manner in which the principle is to be applied will vary according to the facts and circumstances of the case.
All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed. The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:
(a)the objective seriousness of each offence which each offender has committed;
(b)the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;
(c)whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;
(d)each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;
(e)whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;
(f)the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;
(g)whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;
(h)the non‑parole period to be served by each offender; and
(i)the personal circumstances and antecedents of each offender.
The application of the parity principle is often nuanced. Although the court must take into account the actual custodial term to be served by each of the offenders which is solely attributable to the common offences, the weight to be given to that factor will vary. The application of the parity principle does not involve a strict arithmetical comparison between the head sentences and the non‑parole periods to be served by each of the offenders. Rather, the sentencing court must evaluate and take into account all of the components of the relevant sentences, including any sentences being served for separate or unrelated offences, in the context of all factors of relevance.[42]
[42] Higgins v The State of Western Australia [52] ‑ [54].
Buss P therefore appears to be of the opinion that the relevant comparator is the sentence for the common offence or offences, but that in deciding whether the parity principle has been infringed, the appellate court must take into account all of the components of the relevant sentences, including any sentences being or to be served for separate or unrelated offences, in the context of all factors of relevance which his Honour outlined.
In Higgins, Beech JA in separate reasons concluded that the appropriate comparator may be:
(1)The sentence imposed for each individual common offence.
(2)The total sentence for the common offences.
(3)The total effective sentence for all of the offences for which the offenders were sentenced.
(4)Any or all of (1) - (3), depending upon the circumstances.[43]
[43] Higgins v The State of Western Australia [160] ‑ [162].
His Honour said that if comparing sentences for an individual common offence, it is necessary to have regard to the extent to which totality considerations influenced any individual sentence.[44]
[44] Higgins v The State of Western Australia [162].
Beech JA said that he agreed with Pritchard JA's comments as to the potential application of the parity principle to each and any of the components of a person's punishment referred to by her Honour.
In Higgins, Pritchard JA stated that a proper comparison of the punishment imposed on co-offenders is not limited to a comparison of the sentence imposed for the common offence. It may involve a comparison of any or all of the components of the punishment imposed on each offender. Her Honour identified that the relevant components may include:
(1)The sentence imposed in respect of an individual offence.
(2)In a case where the court is required to fix a non‑parole period, any relevant non‑parole period - which dictates the minimum period that an offender must spend in custody.
(3)The total effective sentence in a case involving an offender being sentenced to terms of imprisonment for multiple offences.
(4)Any additional periods of imprisonment that an offender is required to serve in cases where an offender is already serving a term of imprisonment for another offence.[45]
[45] Higgins v The State of Western Australia [199] ‑ [203].
Her Honour added that a comparison of the total effective sentence, reflecting the overall criminality for all conduct in which an offender is sentenced, may be a more meaningful comparator for the purposes of parity, particularly if the sentence which was initially identified as being commensurate with the criminality of the offending was reduced for totality purposes.[46]
[46] Higgins v The State of Western Australia [207].
In this case, the ground of appeal alleges disparity between the individual sentences imposed for the pipe bomb manufacture offence and the pipe bomb possession offences. On the other hand, the respondent submits that the different sentences were justified on the following bases:
(1)Differences in the role each played in the commission of the offences.
(2)Differences in whether any sentence of imprisonment could be suspended.
(3)Differences in the number and seriousness of offences for which they were sentenced.
Consequently, the ground of appeal and the parties' submissions have identified the relevant comparator for this appeal. It is the individual sentence imposed for the pipe bomb manufacture offence as compared to that imposed for the pipe bomb possession offence. However, in assessing whether the appellant has a justifiable sense of grievance about the sentence imposed on him for the pipe bomb manufacture offence, it is necessary for me to have regard to the extent to which totality considerations and all the matters referred to by Buss P in Higgins influenced the sentence which he received. It is also necessary for me to take into account all components of the sentence.
As I discuss later, it is difficult to compare, and thus place weight on, any alleged difference between the time to be served in custody by the appellant as opposed to Mr Priemer because it is impossible for me to know whether Mr Priemer will be required to serve all or part of his suspended sentence or indeed to know whether the appellant will be required to serve only the non‑parole portion of his sentence or the whole of his sentence.
I now turn to the two issues to be determined in relation to ground 1.
Whether the appellant and Mr Priemer are 'co‑offenders' for the purpose of applying the parity principle
Applying the principles outlined by the High Court in Green, I am satisfied that the appellant and Mr Priemer are co‑offenders for the purpose of the application of the parity principle.
The Interpretation Act 1984 (WA) s 72(1) applied to the words of the Code s 557(1) appear to provide that the section creates only one offence. Nevertheless, the respondent submits that for the following reasons the appellant and Mr Priemer are not co‑offenders:
(1)the appellant was charged with making the pipe bomb whereas Mr Priemer was charged with possessing it;
(2)their offences relating to the pipe bomb were committed on different dates;
(3)their offences were not part of a larger criminal enterprise;
(4)neither offender was alleged to have been a party to the other's offending; and
(5)each offender acted independently of the other.
I acknowledge the above differences which indicate that the appellant and Mr Priemer are not co‑offenders in a narrow sense. These differences also give rise to 'practical difficulties'[47] in comparing the sentences imposed on the appellant and Mr Priemer. Nevertheless, the appellant and Mr Priemer were charged under the Code s 557(1) in relation to proximate dealings with the same explosive. The appellant manufactured the pipe bomb, left it either in the possession of Mr Priemer or in the knowledge that Mr Priemer would be likely to take possession of it and Mr Priemer then took possession of it and attempted to return it to the appellant. In these circumstances, I conclude that as a matter of substance (rather than form) that the appellant and Mr Priemer are to be regarded as co‑offenders for the purpose of the application of the parity principle.
[47] See Green v The Queen (473 ‑ 474).
Neither counsel nor the magistrate referred to the parity principle, although the magistrate referred to the appellant and Mr Priemer as co‑offenders. I infer that the magistrate concluded that there were differences between them which meant that different sentences should be imposed on each of them.
Whether the different sentences imposed give rise to a justifiable sense of grievance
The appellant's and Mr Priemer's offences were very different. The appellant was found to have manufactured the pipe bomb for an unknown criminal purpose. Mr Priemer took possession of it for the purpose of delivering it back to the appellant. His decision to deliver the pipe bomb to the appellant was found by the magistrate to be a 'poor decision' and 'an error of judgment'.
The appellant submits that Mr Priemer's offence was not less serious than his because:
(1)it was Mr Priemer who took the pipe bomb into a public hospital, thus exposing many more people to the risk which the pipe bomb posed; and
(2)it was Mr Priemer's actions which resulted in the cost to the public and the inconvenience of the evacuation of the hospital ward.
In respect of the first issue, the appellant's actions in manufacturing the pipe bomb for a criminal purpose and then leaving it in circumstances where he could not control what happened to it were objectively more serious than Mr Priemer's actions.
In relation to the second issue, the appellant and Mr Priemer are at least equally to blame for that cost and inconvenience. Whilst it was Mr Priemer who took the pipe bomb into the hospital, he did so at the request of the appellant to have his belongings delivered to him and the appellant failed to take any precautions to ensure that dangerous items such as the pipe bomb were not included in that request.
On the facts as found by the magistrate, the appellant was the more culpable offender.
Next, the appellant submits that his personal circumstances were more mitigating than those of Mr Priemer. I have summarised the offenders' circumstances earlier in these reasons. It is not in dispute that both men were of a similar mature age which did not provide them with any mitigation. Further, at the time they committed the relevant offences their prior criminal records did not distinguish them.
The appellant submits that three matters personal to him have resulted in him having a justifiable sense of grievance in relation to disparity between the sentence imposed on him and that imposed on Mr Priemer. Those matters are:
(1)His ulcerative colitis.
(2)His rehabilitation prior to sentencing.
(3)That he was already serving a sentence of 3 years' imprisonment when he was sentenced.
The appellant's illness is serious and potentially life threatening. It was a matter going to mitigation. However, it was not a weighty matter as there was no evidence of the following matters:
(1)That the appellant's life expectancy was shortened at all or to such an extent that the length of his sentence should be shortened to ensure that he had an expectation of a productive life after it.
(2)That his time in custody would be significantly more onerous for him than it would be for someone without the illness. It was accepted that appellant's medical conditions needed to be managed in custody and that he required a special diet. When the appellant was initially in custody, there were problems with him receiving a suitable diet and it had been submitted to the District Court judge that her Honour could infer that custody would be more onerous for the appellant but this submission was not repeated when he was sentenced for the pipe bomb manufacture offence. At the appeal hearing counsel noted, and I observed, that the appellant was looking well after spending 12 months in custody.
(3)That the appellant's illness could not be properly treated whilst he was in custody. If that was an issue, the onus was on the appellant to adduce evidence of it but he did not do so, either before the magistrate or on appeal.
In relation to the appellant's rehabilitation, the transcripts of proceedings in the Magistrates Court and District Court contain information that after the appellant had been granted bail for the May 2015 offences he continued to offend and was on bail for those offences when he committed the pipe bomb manufacture offence. He was again bailed after he was charged with that offence and whilst on bail he continued to use drugs and to offend. Two weeks after committing the pipe bomb manufacture offence whilst on bail he was charged with being in possession of methylamphetamine. At that time he was using more than a gram of amphetamine each day.[48] He was again bailed.
[48] ts 19, 6 February 2017 (District Court).
There was then a lengthy break of over 12 months in his offending but in a letter he wrote for sentencing in the District Court, the appellant acknowledged that his drug use and antisocial lifestyle continued over this period. He was also admitted to hospital for physical illness and for drug‑related mental illness. In December 2016, he committed the District Court offences whilst on bail for a large number of offences. He was a heavy drug user and dealer.[49] He remained in custody until 19 January 2017. He was then bailed.[50]
[49] ts 6, 27 August 2018.
[50] ts 11, 1 May 2018 (District Court).
In February 2017, the appellant was sentenced in the District Court for the May 2015 drug offence. There was mention in the plea in mitigation to him having attempted to 'take some steps' to address his drug use but no details of these attempts were given other than that he had received referrals to drug rehabilitation services.[51] The appellant was given the benefit of a community based order.
[51] ts 19, 6 February 2017 (District Court).
In August 2017, the appellant returned to Bridgetown where his parents live and he underwent various drug rehabilitation courses, including a residential rehabilitation course.[52] There was a 15 month break in his offending. He returned to the District Court on 1 May 2018 to be sentenced for the December 2016 indictable offences. As a result of the 3‑year sentence he then received he had been in custody between that date and when he was sentenced in the Magistrates Court.
[52] ts 20, 1 May 2018 (District Court).
I have detailed the above events as it is relevant in assessing the credit to be given for rehabilitation or for attempts to achieve rehabilitation that the appellant had no convictions for over 12 months before committing the December 2016 offences. He then had another break of 15 months in his offending before being sentenced to an immediate term of imprisonment in the District Court.
Whilst it was a mitigating factor that the appellant had undergone the rehabilitation courses and had not offended for 15 months, given his history it was too early to say that his rehabilitation was complete or that personal deterrence was not a relevant sentencing principle.
Lastly, the magistrate was well aware that the appellant was serving a sentence of 3 years' imprisonment and that totality was an issue for consideration in determining the appropriate sentence for the appellant.[53]
[53] ts 4, 7, 27 August 2018.
The appellant's submissions refer to a number of cases which emphasise that the severity of a term of imprisonment increases exponentially as it increases in length.[54] Whilst that principle is not in dispute, it is much more relevant to sentences of great, or at least greater, length than the one under consideration in this appeal.
[54] R v Clinch (1994) 72 A Crim R 301, 306; Herbert v The Queen [2003] WASCA 61 [11].
Determination of ground of appeal 1
The Sentencing Act 1995 (WA) requires a judicial officer, prior to deciding whether to suspend or conditionally suspend any sentence of imprisonment, to determine whether a term of imprisonment is the only appropriate sentence and to determine the length of the term that would be appropriate. Only if it is decided that it is not appropriate to suspend the indicative sentence may a court impose a term of immediate imprisonment. This is because a sentence of imprisonment can only be imposed if no other lesser sentence would be appropriate and a sentence of imprisonment can only be suspended if a sentence of imprisonment equal to that suspended would, if it were not possible to suspend imprisonment be appropriate in all the circumstances.[55]
[55] Sentencing Act 1995 (WA) s 39(3), s 76(2) and s 81(2); Dinsdale v The Queen [2000] HCA 54 [15] Gleeson CJ.
Therefore, her Honour must have determined that sentences of imprisonment of 9 months for Mr Priemer and 12 months for the appellant were the only appropriate sentence for their respective offences involving the pipe bomb, if it were not possible to suspend those terms of imprisonment.
That assessment cannot be faulted. Each offence was serious and warranted a term of imprisonment, if it were not possible to suspend that term.[56]
[56] My extended reasoning for this conclusion is contained in the next section of the judgment.
Even taking into account the appellant's ill health, prospects of rehabilitation and other matters personal to him, a term of 12 months' imprisonment was well within the range of appropriate sentences for the pipe bomb manufacture offence given that:
(1)the maximum penalty for the offence was 14 years' imprisonment;
(2)the appellant made the pipe bomb for an unknown criminal purpose;
(3)the explosion of the pipe bomb would injure and potentially endanger health, safety or life to a person nearby;
(4)the appellant failed to ensure that the pipe bomb was safe so that the potential risks it posed could not be realised;
(5)there was no mitigation for acceptance of responsibility, remorse, prior good character, youth or a plea of guilty; and
(6)personal and general deterrence were relevant sentencing factors.
Similarly, a sentence of 9 months' imprisonment for Mr Priemer's offence was well within the range of appropriate sentences for the pipe bomb possession offence given the dangerous nature of the pipe bomb, that Mr Priemer knowingly took it to a public place where many vulnerable persons would be present, that there was no mitigation for prior good character, youth or a plea of guilty and that personal and general deterrence were relevant sentencing factors. The magistrate gave Mr Priemer some credit for remorse given that he had acknowledged the seriousness of his conduct and expressed regret to the police about taking the pipe bomb to the hospital. She also gave him credit for having ceased drug use and for having embarked on the path of rehabilitation.
The three month difference in the length between the two sentences appropriately recognised the differences between the offences and the offenders.
There are three remaining aspects of the sentencing which the appellant submits indicate a breach of the parity principle. The first is that although the appellant's counsel acknowledged that his primary argument relating to parity focussed on the length of his sentence rather than the type of sentence imposed, there is an issue that the appellant's sentence was to be immediately served whereas Mr Priemer's sentence was suspended. The second is that the appellant submits that the magistrate's comment that her starting point was a term of 20 months' imprisonment and that she had reduced it by eight months for the time the appellant had spent in custody and for reasons of totality, shows that as her Honour started at a sentence more than double that imposed on Mr Priemer there was a breach of the parity principle. The third is that the appellant submits that the magistrate's order that his sentence was to be served cumulatively on the sentence he was then serving, means that his sentence breached the parity principle.
In relation to the first issue, as a matter of law the appellant's sentence could not be suspended because at the time of sentence he was serving another sentence which had not been suspended.[57]
[57] Sentencing Act s 76(3) and s 81(3).
It is not arguable that the parity principle has been infringed because the sentence of the co‑offender was suspended, when as a matter of law, the sentence on the appellant could not be suspended. Rather, the inability to suspend a term of imprisonment is a relevant difference between the co‑offenders which affects the ability to which the parity principle can be applied between them. It explains why there is objectively no justifiable sense of grievance between this difference in their sentences.
Further, it is not as simple as saying that the suspension of a sentence is a substantially lesser penalty than a sentence which is to be immediately served. In Dinsdale v The Queen,[58] Kirby J said that a sentence of suspended imprisonment is 'the penultimate penalty known to the law' but that in practice it is not always viewed that way by the public, victims of crime and even by offenders.[59] Despite the potential misapprehensions of others about the seriousness of the penalty, a court is required to sentence according to law. Although an offender is not liable to serve a conditionally suspended term of imprisonment unless during the suspension period he commits an offence the statutory penalty for which is or includes imprisonment or the offender otherwise breaches the conditions of suspension and the court orders all or part of the sentence to be served, the reality is that until the offender is discharged from the sentence he may, if it is breached, be ordered to serve all or part of the sentence. Whether it is served turns on unknowable future circumstances. The sentence may, in the fullness of time, have the equivalent seriousness and effect on the offender as a term of imprisonment to be served immediately. Even before an order is made for the service of the term, the threat of imprisonment hangs over the head of the offender and in the case of a conditionally suspended sentence, as this was, the offender is required to comply with significant conditions which fetter their liberty.
[58] Dinsdale v The Queen [2000] HCA 54.
[59] Dinsdale v The Queen [80] (Kirby J).
As a consequence of its effect being unknowable, it is not possible to equate a suspended term of imprisonment with any other form or length sentence. For example, it is not possible to say in this case that given that the appellant's sentence could not be suspended, a sentence of the same or lesser length than Mr Priemer's suspended term of imprisonment should have been imposed on him. This is because it would be entirely unjust for Mr Priemer potentially to be liable to serve a sentence of the same or greater length as the appellant for a less serious offence.
In relation to the second issue, the appellant's counsel conceded that it is not appropriate to appeal from a starting point. The fact is that whatever process her Honour employed, the magistrate imposed a sentence of 12 months' imprisonment on the appellant and that is the sentence which must be shown to be wrong. The issue is whether the appellant has a justifiable sense of grievance about his sentence of 12 months' imprisonment having regard to Mr Priemer's sentence of 9 months' imprisonment conditionally suspended for 12 months.
For the reasons I have expressed, I conclude that the sentence imposed on the appellant for the pipe bomb manufacture offence was to the extent that the law allowed appropriately relative to the sentence imposed on his co‑offender Mr Priemer for the pipe bomb possession offence.
In relation to the third issue, the total sentence of 4 years’ imprisonment imposed on the appellant had to be just punishment for the 17 offences for which the magistrate sentenced him as well as for the offences for which the District Court sentenced him on 1 May 2018. The appellant's offending for which he was sentenced by the magistrate and the District Court on 1 May 2018 took place over 15 months and included the manufacture of the pipe bomb, possession of significant amounts of drugs for the purpose of sale or supply, breach of bail and possession of unlawfully obtained goods, weapons and ammunition. Mr Priemer on the other hand was sentenced for possession of the appellant's pipe bomb, weapons and ammunition on one date. Those differences, in their circumstances, as well as others I have discussed, justify the difference between the appellant's total effective sentence and Mr Priemer's sentence. The difference objectively does not give rise to a justifiable sense of grievance.
Ground 2
Ground 2 alleges the imposition of a term of imprisonment for the pipe bomb manufacture offence which was in all the circumstances manifestly excessive.
Recently, in Krencej v The State of Western Australia,[60] the Court of Appeal said the following about the principles to be applied in determining a ground of appeal which alleges manifest excess:
The ground of appeal asserts implied rather than express error. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[60] Krencej v The State of Western Australia [2019] WASCA 82 [55].
I turn now to consider the issues identified as being relevant to an assessment of whether a sentence is manifestly excessive. First, a sentence of 12 months imprisonment is less than 10% of the maximum penalty of 14 years' imprisonment.
As the Court of Appeal noted in Roberts v The State of Western Australia,[61] there has been an insufficient number of offences against the Code s 557 from which to discern any standards of sentence imposed customarily for such an offence.
[61] Roberts v The State of Western Australia [2014] WASCA 239 [56].
In the absence of a tariff or even a customary range of appropriate sentences for the office, I have determined that the magistrate was right to conclude that both the appellant's and Mr Priemer's offences warranted terms of imprisonment from the application of the sentencing principles in the Sentencing Act s 6 as well from the guidance to be obtained from Roberts.
The Sentencing Act provides that a sentence must be commensurate with the seriousness of the offence. The appellant's offence was objectively serious. He created the pipe bomb for an unknown criminal purpose.
The risk to vulnerable members of our community by the appellant's actions in creating the bomb is self‑evident. The appellant's failure to take reasonable care to prevent the pipe bomb from being taken to hospital and his request that his belongings be brought to him in hospital were aggravating circumstances for the purpose of sentence. The fact that the appellant kept or allowed the pipe bomb to be kept with other weapons was also an aggravating factor.
General deterrence was an important sentencing principle for both offenders but more so for the appellant's offence because he was the person who made the bomb for unlawful purposes. It cannot be doubted that in order to protect public safety significant sentences must be imposed on offenders who make explosives in the circumstances like this case.
Clearly, this was not the most serious example of this type of offence and neither was it at the lower end of the scale of seriousness. In my judgment, it was just below midway in the scale of seriousness. The magistrate did not say anything which indicated that she misunderstood where the offence lay in the scale of seriousness of this type of offence.
As discussed earlier in these reasons, there were matters personal to the appellant which weighed in mitigation of sentence. The appellant's physical illness and his prospects of rehabilitation were the most significant matters. However, the magistrate had to weigh those matters in light of the need for a generally and personally deterrent penalty. It also has to be taken into account that the appellant did not receive credit for other common mitigating circumstances such as youth, a plea of guilty, remorse and prior good character.
The appellant has referred to three cases where the Court of Appeal considered the adequacy of penalties for offences against the Code s 557. Of these Jordan v The State of Western Australia[62] and Woods v The Queen[63] are not of assistance because in both cases the offenders were sentenced to longer terms of imprisonment for many offences. The court did not consider with any specificity the appropriate sentence for the offence against the Code s 557.
[62] Jordan v The State of Western Australia [2012] WASCA 163.
[63] Woods v The Queen [2003] WASCA 16.
Roberts v The State of Western Australia[64] is more helpful. Mr Roberts appealed from the total effective sentence of 2 years and 6 months' imprisonment to be immediately served imposed after pleading guilty to five counts of making an explosive substance contrary to the Code s 557 and two counts of unlawfully doing an act that endangered or was likely to endanger the life, health or safety of a person. He was sentenced to 2 years and 6 months' imprisonment for each offence contrary to s 557 and these sentences were ordered to be served concurrently.
[64] Roberts v The State of Western Australia.
Mr Roberts made an explosive device on five separate occasions for the 'fun and excitement' of seeing it explode. On two occasions he left unexploded devices in the water in areas where the public could find them because he was unable to detonate them. The two counts of endangerment arose from those occasions.
Mr Roberts' offences were more serious than the appellant's offence in that he exploded or tried to explode the devices and abandoned two of them in public places, even though he believed that those devices would not explode and he did not intend for them to do so. On the other hand, his intention in making the devices was not for a criminal purpose as the magistrate found the appellant's intention to be. The Court of Appeal clearly considered that the lack of a criminal intention was an important feature in sentencing Mr Roberts. The Court of Appeal listed a number of mitigating circumstances for Mr Roberts, none of which are present in this case. They were as follows:
(1)Mr Roberts was of prior good character.
(2)Mr Roberts was well respected within the community and was highly regarded by his friends and associates.
(3)Mr Roberts had a stable record of employment.[65]
(4)Mr Roberts was assessed at low risk of reoffending.
(5)There was no need for personal deterrence or indeed, punishment.
(6)Mr Roberts was remorseful.
(7)Mr Roberts had demonstrated clear insight into the consequences of his actions and well understood the risks to which he had exposed others, and the harm which he had caused.
(8)Mr Roberts cooperated fully with police at all times and revealed the commission of offences not known to police.
(9)Mr Roberts entered pleas of guilty at the earliest reasonable opportunity.
(10)Mr Roberts had suffered significant adverse consequences as a result of the offences which he committed, including the loss of his employment and the loss of the accommodation in which he and his family were residing.
(11)Mr Roberts was very concerned that the trauma which he had caused to his partner and her child at the time of his arrest was causing ongoing anxiety and stress.[66]
[65] The appellant had not had stable employment for many years by the time he was sentenced.
[66] Roberts v The State of Western Australia [54].
The Court of Appeal found that express errors had occurred in the sentencing process and resentenced Mr Roberts. It found that the most appropriate sentences to have imposed upon Mr Roberts would have been concurrent terms of suspended imprisonment 'somewhat less' than the period of 2 years and 6 months actually imposed. However, by the time it resentenced Mr Roberts he had already served in excess of 8 months' imprisonment. In that context, the Court of Appeal considered that the imposition on appeal of terms of imprisonment suspended for a period longer than the period already served by Mr Roberts would have exposed him to the risk of further punishment which, in all the circumstances, would have been unjust. For that reason it was appropriate to impose a sentence of 8 months' imprisonment which, when backdated to the date upon which Mr Roberts went into custody, had the consequence that the terms were fully served by the time the sentences were imposed.
In order to understand the Court of Appeal's decision it is necessary to apply some reverse reasoning. In particular, the Court of Appeal could not have decided that concurrent terms of suspended imprisonment 'somewhat less' than 2 years and 6 months would have been appropriate unless it had determined that terms of imprisonment of the same length would have been appropriate for each offence if it was not possible to suspend the terms.
Given also that Mr Roberts had pleaded guilty at the first reasonable opportunity and was thus deserving of a 25% reduction in his head sentences for his pleas, the decision in Roberts does not assist the appellant.
The appellant does not suggest and nor could he that the sentence of 3 years' imprisonment imposed on him in the District Court was anything other than an appropriate sentence. Additionally, I have found that the sentence of 12 months' imprisonment imposed on him for the pipe bomb manufacture offence was also appropriate.
I conclude that the magistrate's order that the 12 month sentence be served cumulatively on the District Court sentence resulted in a total sentence which bore a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant facts and circumstances. Of particular relevance are the following matters:
(1)The pipe bomb manufacture offence is of itself a serious offence which warranted punishment by a distinct term of imprisonment.
(2)The determination of whether the total effective sentence imposed on the appellant by the magistrate breached the totality principle must be assessed in light of all the sentences that were imposed on that date, as well as the 3‑year District Court sentence. The appellant was given what I regard as being lenient concurrent sentences and fines for all other offences for which he was sentenced at the same time as the pipe bomb manufacture offence. A total sentence of 4 years' imprisonment for the District Court offences, seven other offences committed on the same date, one separate breach of bail offence and the pipe bomb manufacture offence does not breach the totality principle.
(3)The District Court and pipe bomb manufacture offences were separate and unrelated episodes of criminal conduct deserving of separate and distinct punishment.
(4)The District Court and pipe bomb manufacture offences were committed 15 months apart.
(5)The District Court offences were committed whilst the appellant was on bail for the pipe bomb manufacture offence. To order the sentences to be served concurrently would have negated that factor.
(6)A total effective sentence of 4 years' imprisonment is not crushing and does not prevent the appellant from continuing his rehabilitation both in custody and when he is released.
Conclusion
For the above reasons, leave to appeal is refused on both grounds, with the consequence that the appeal against sentence is dismissed.
The orders of the court are:
(1)an extension of time within which to appeal is granted;
(2)leave to appeal on both grounds is refused; and
(3)the appeal against sentence is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins5 AUGUST 2019
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