Billing v The State of Western Australia [No 2] - [2008] WASCA 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BILLING -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 11

CORAM: STEYTLER P
WHEELER JA
McLURE JA

HEARD: 8 NOVEMBER 2007

DELIVERED : 21 JANUARY 2008

FILE NO/S: CACR 167 of 2006

BETWEEN: MATTHEW PETER BILLING
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY CJDC
File No  :IND 62 of 2005, IND 63 of 2005, IND 64 of 2005

Catchwords:

Criminal law - Sentencing - Parity principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Thames Legal
Respondent: State Director of Public Prosecutions

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

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541
Hassan v The State of Western Australia [2006] WASCA 139
I (a child) v The State of Western Australia [2006] WASCA 9
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Melgar Sevilla v The Queen [2007] WASCA 116
Parfitt v The State of Western Australia [2007] WASCA 11
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26

STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I am grateful to be able to adopt her outline of the facts giving rise to this appeal against sentence.
The sole ground of appeal relates to parity. The appellant was one of three offenders sentenced in respect of a conspiracy to commit an indictable offence. The offence in question was one of causing criminal damage by fire. The appellant and his co‑offenders, Peter Joseph Van Tongeren and John Anthony Van Blitterswyk were racists who had conspired, between 1 May 2004 and 6 August 2004, to fire bomb four Chinese restaurants. The appellant was also convicted on a charge of conspiracy to pervert the course of justice. After being arrested on the conspiracy charge and released on bail, he absconded. The conspiracy to pervert the course of justice took place during the period in which he had absconded. He was party to a plan to assault a prosecution witness to the first conspiracy.
The appellant and Van Tongeren were sentenced by the same judge.
On 23 November 2006 Van Tongeren was sentenced, on the conspiracy charge, to a term of 2 years' imprisonment suspended for a period of 2 years on condition he leave Western Australian within seven days. His family proposed to take him with them to the Eastern States, where they lived. He had made an early plea of guilty to the conspiracy offence. He was then 59 years old and in poor health. He had a prior record in respect of similar offending. By the time he was sentenced he had spent 2 years and 1 month in custody. The sentencing judge said that, having regard for the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the maximum penalty that could be imposed was one of 4 years and 8 months' imprisonment. If that sentence had been imposed, Van Tongeren would have been eligible for parole after serving 2 years and 8 months of it. Because he had already served 2 years and 1 month's imprisonment she considered it appropriate to impose a suspended sentence.
The appellant was sentenced some three weeks later, on 14 December 2006. He, too, had made an early plea of guilty. He was 35 years old. He had a relatively insignificant criminal record. He was sentenced to a term of 3 years' imprisonment with eligibility for parole on the first conspiracy charge (that relating to the fire damage) and to a cumulative term of 18 months' imprisonment on the second conspiracy charge.
Van Blitterswyk was convicted on the conspiracy charge after a trial. He was consequently sentenced after the other two, on 24 May 2007. He was sentenced by a different judge. He was then 56 years old. He had a criminal record in respect of similar offending. He was sentenced to a term of 2 years and 4 months' imprisonment having regard to the transitional provisions.
I have relatively recently discussed the law with respect to parity in 'I' (a child) v The State of Western Australia [2006] WASCA 9. I said (with the agreement of McLure JA) [65]:
The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606 at 617 ‑ 618, per Brennan J, and Postiglione, ibid. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: R v Cox (1996) 66 SASR 152, per Doyle CJ, and Postiglione, at 301, per Dawson and Gaudron JJ. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance.
In this case there were differences between the three co‑offenders. Each of Van Tongeren and Van Blitterswyk was a repeat offender in respect of this kind of offence. The appellant was not. Van Tongeren and the appellant had made early pleas of guilty but Van Blitterswyk had elected to plead not guilty. Importantly, Van Tongeren was the 'philosophical' and 'spiritual' leader of the group. Van Blitterswyk was next in line in the criminal hierarchy. However, the appellant was to have played a more active role than the other two in implementing the conspiracy. He was to have been one of two men who would actually carry out the arson attacks (the other being a person by the name of Ian Johnson). Finally, the appellant was considerably younger than the other two offenders. However, because all three men were mature little seems to me to turn on this.
There is, rightly, no suggestion that the parity principle has been infringed in respect of the sentences respectively imposed upon Van Tongeren and the appellant. Van Tongeren had, at the time of sentencing, been in prison for a substantial period, equivalent to the non‑parole portion of a sentence in excess of 4 years' imprisonment. The sole complaint arises out of the sentence subsequently imposed on Van Blitterswyk.
On the face of it, it is difficult to see why Van Blitterswyk should have received a lesser sentence than that imposed on the appellant. As I have said, he had pleaded not guilty, he had a prior record for this kind of offending and he was higher in the criminal hierarchy than the appellant. There was little in his favour by way of mitigation. The sentencing judge took into account, in his case, that Van Tongeren had a significant influence on him. However, that was true, also, of the appellant. The sentencing judge also took into account the fact that Van Blitterswyk was married and had a young child and that he ran a business that employed six people who depended upon him. However, those seem to me to be matters that could be given very little weight. Finally, the sentencing judge took into account that Van Blitterswyk had moderated his behaviour since his arrest. While deserving of some weight, this was not a factor which should have had any great influence on the sentence imposed. In all of these circumstances, and bearing in mind that the judge sentencing Van Blitterswyk knew of the sentences imposed on his co‑offenders, it seems to me that Van Blitterswyk was extraordinarily fortunate in the sentence imposed upon him. In my opinion a more severe sentence was plainly warranted.
In 'I', which has since been applied in Hassan v The State of Western Australia [2006] WASCA 139 [19] (McLure JA, Roberts-Smith & Pullin JJA agreeing) and in Parfitt v The State of Western Australia [2007] WASCA 11 [19] ‑ [20] (McLure JA) and [49] (Pullin JA, with whom Roberts-Smith JA agreed), I said (with the agreement of McLure JA) [66]:
In considering the application of the parity principle, sight should not be lost of the community interest in seeing offenders appropriately punished. The imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. While parity might require a sentencing Judge to be more lenient than he or she might otherwise have been, it does not require a sentencing Judge to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence.
Then, after considering some of the cases (I will not repeat what I said in respect of them), I went on to say [68]:
Consequently, it is open to an appellate court to conclude, in a case in which a co-offender has been inadequately sentenced, that to establish parity might 'compound the error in a way which would be unacceptable to the public conscience': R v MacGowan (1986) 42 SASR 580 at 583 per King CJ, Mohr and von Doussa JJ agreeing. When the more severe sentence is one which is already as lenient as could sensibly be imposed, having regard for the need to protect the public and the dictates of the public conscience, it is hard to see why there should be any 'justifiable' sense of grievance on the part of the offender.
It seems to me that the appellant was leniently treated, given the appalling character of his offending behaviour. It also seems to me that Van Blitterswyk was even more leniently treated, especially when regard is had to his prior record and the absence of any plea of guilty. The sentence imposed upon him was inadequate. Moreover, the weight to be accorded to the appellant's plea of guilty is detracted from by the fact that, while on bail, he absconded and planned to intimidate a witness to the conspiracy. Of course, he cannot be sentenced twice in respect of the second conspiracy, but his absconding and subsequent behaviour is indicative of a lack of remorse and an unwillingness to accept responsibility for his criminal behaviour in respect of the first conspiracy. These are two of the three principal considerations that customarily lead to a reduction in sentence on account of a plea of guilty: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [14] (Gaudron, Gummow & Callinan JJ). Also, as I have said, although Van Blitterswyk was the more senior of the two, the appellant was to have been more actively involved in the implementation of the conspiracy.
In the end, it seems to me that there is a disparity between the sentences imposed on Van Blitterswyk, on the one hand, and the appellant, on the other, that was not a reasonable consequence of the different factors applicable to each. However, given the active (and enthusiastic) part to be played by the appellant pursuant to the conspiracy and his absence of remorse and unwillingness to accept responsibility for his criminal behaviour, the disparity is not so great that I would be prepared to interfere with his sentence on account of it. That is because, in my opinion, the sentence imposed on the appellant was already as lenient as could sensibly be imposed and he could not justifiably have hoped for a more lenient sentence. Any more lenient sentence in his case would be so disproportionate to the offence as to shock the public conscience. I am consequently unable to accept that a lesser sentence can be justified by resort to the parity principle.
I would dismiss the appeal.

WHEELER JA: The appellant was convicted by his own plea of guilty of conspiring with Mr J Van Tongeren and Mr J Van Blitterswyk to commit an indictable offence, namely, criminal damage by fire, between 1 May and 6 August 2004. He also entered a plea of guilty to one count of conspiracy to pervert the course of justice. He was sentenced to 3 years' imprisonment in respect of the first conspiracy and 18 months in respect of the second, to be served cumulatively, with eligibility for parole. The terms were backdated to take account of a significant period in custody. The relevant facts in relation to the first conspiracy are as follows.
In the 1990s, Van Tongeren and Van Blitterswyk established an organisation known as the Australian Nationalist Movement, an organisation with racist objectives. The organisation appears to have had a loose structure with Van Tongeren as the leader and Van Blitterswyk as second‑in‑command. Another man, Klavins, seems to have had a subsidiary role.
The circumstances under which the appellant became involved in the organisation are not entirely clear. His trial counsel submitted that the appellant, over time, developed very strong political opinions in relation to issues such as immigration (AB 43). He contacted Mr Van Tongeren directly and the two men eventually met.
It seems that by at least early May 2004 a conspiracy to fire bomb four Chinese restaurants was formed between the appellant, Van Tongeren and Van Blitterswyk (the co‑offenders).
In the first week of June, Van Tongeren and Van Blitterswyk told the appellant and Klavins that they were going to fire bomb the four restaurants two days before a press conference commemorating the release of one of Van Tongeren's publications. Both the appellant and Klavins were enthusiastic when informed of the plan and a discussion transpired between the four of them as to how the attacks were to be carried out. One suggestion was that a utility vehicle could be stolen with a large tank on the rear. The tank could be filled with fuel and a pump. The window of the restaurant could then be smashed and fuel could be pumped into the restaurant before being set alight.
A week later, the appellant told Klavins that he and another man, Johnson, had discussed the planning of the bombings. The appellant indicated that they would conduct "dummy runs" between targets and they intended to calculate the time between the nearest police station and the selected targets.
On 11 July 2004, the co‑offenders met and it was announced that the bombing campaign would be called off until a later date so that safe houses could be organised. In place of the bombing campaign, a vandalisation campaign was conducted between around 14 July and 16 July 2004.
Shortly thereafter, Van Tongeren and Van Blitterswyk met with Johnson. Van Tongeren asked Johnson whether he would be involved in helping to burn down four Chinese restaurants using Molotov cocktails instead of fuel tankers. Johnson agreed. Van Tongeren then told Johnson that the appellant would be the person who would actually carry out the bombings and asked Johnson to assist him. Van Tongeren and Van Blitterswyk intended to "go underground" so Van Tongeren told Johnson that he would arrange for the appellant to contact him.
The appellant did indeed make contact with Johnson. Approximately a fortnight later, the two men met at the Wembley Hotel. The appellant produced a street directory which contained a list of suburbs and restaurants. The men discussed the use of motorcycles in the fire bombing campaign and Johnson told the appellant that a carpark at his place of employment could be used to store the items that would be used in the fire bombings. It seems that the men also discussed alternatives to the use of Molotov cocktails.
Fortunately, the fire bombing plan was never executed. Police searched the appellant's home and found items that may have had some relevance to the conspiracy including frequencies for police scanners and police job codes. The appellant was arrested on 28 August 2004.

Sentencing

At the time of sentencing, the appellant was 35 years of age and had a relatively minor history of offending comprising mainly traffic offences and what were described as "nuisance offences". He had absconded while on bail for these offences, had been apprehended, and had spent approximately 8 months in custody prior to sentence. The conspiracy to pervert the course of justice took place following his absconding, and related to a plan to have "bashed" a prosecution witness to the first conspiracy. The appellant had a relatively stable upbringing and, apart from his plea of guilty, there was little by way of mitigation.
The sentencing remarks of the learned sentencing judge were relatively brief. Her Honour accepted that Van Tongeren was "the philosophical leader" (AB 60) and "spiritual leader of the group" (AB 61). Her Honour also observed that she was prepared to accept that the appellant was "not likely to offend like this again" (AB 61). A total sentence of 4 1/2 years' imprisonment with eligibility for parole was imposed.

The parity issue

The only ground of appeal before this court is that the sentence violated the parity principle given that Van Blitterswyk received a sentence, after trial, of 2 years 4 months' imprisonment. The particulars in support of this ground note that:
a)Van Blitterswyk was 'second in charge' of the conspirators and was found guilty after trial;
b)The Appellant was not high in the hierarchy and pleaded guilty on the fast‑track system;
c)The Appellant's previous convictions were 'very minor'. Van Blitterswyk had previous convictions of a similar and serious nature to those he was convicted of;
d)Concerning the charge for which they were co‑conspirators, the Appellant received a sentence of 3 years' imprisonment whilst Van Blitterswyk received a sentence of 2 years 4 months' imprisonment.
In Melgar Sevilla v The Queen [2007] WASCA 116 [15], McLure JA noted:
... If there are factors which support different treatment as between co‑offenders, whether because of different degrees of culpability or differences in their circumstances, then, it will be appropriate to treat them differently (Postiglione at 301 per Dawson and Gaudron JJ). If a difference in sentence is a reasonable consequence of different factors, there can be no justifiable sense of grievance.
The respondent appears to concede that "the appellant played a lesser role then [sic] the co‑offenders Van Tongeren and Van Blitterswyk" (AB 19). However, the respondent argues that the disparity in sentencing may be attributable to the fact that "the appellant was arguably a more enthusiastic participant then [sic] Van Blitterswyk" (AB 20). Further or alternatively, the respondent submits that "the disparity is explicable by reason of the different circumstances of the offenders" (AB 21).
An understanding of Van Blitterswyk's particular involvement in the offence can be gleaned from the following excerpt of the sentencing remarks in relation to Van Blitterswyk (AB 75):
On 6 June on the Sunday morning 2004, you and Van Tongeren met with two of your co‑conspirators, [the appellant] and Daniel Klavins, and you proposed to them that they should carry out the firebombing of some Chinese restaurants … According to the evidence heard by the jury there was some discussion at this meeting about how the bombing was to be carried out and a suggestion was made, among others, of using a ute with a tank of fuel on it to deliver fuel to buildings and then to pump the fuel into the buildings.
However, the precise details of how the firebombing was to be carried out were left to be discussed by the younger men whom you and Van Tongeren recruited … Sometime after this meeting, perhaps only a few days, a decision was taken to replace Klavins as one of those who was to set fire to the restaurants by a young man called Ian Johnson. You and Van Tongeren approached Johnson and spoke to him in or near a carpark near Perry Lakes … [Y]ou and Van Tongeren gave him some advice as to the way in which Molotov cocktails could be made and used.

Van Blitterswyk was 56 years old at the time of sentencing. The sentencing judge noted that he had a criminal history which included convictions for causing an explosion and arson, for which he received a sentence of 14 years' imprisonment. On the issue of mitigation, the learned sentencing judge made the following remarks (AB 77):
Turning to matters which ought to be taken into account in your favour, I note firstly your counsel's claim that it is significant that while Van Tongeren was in prison and you were out of gaol from about 1996 to the end of 2002 you were not politically active and you seemed to have stayed out of trouble. As to that, it does seem to me that Van Tongeren has had a significant influence upon you as well as upon the others involved in this conspiracy and your culpability is to be judged as relatively less on that account.
Your counsel also emphasised the extent to which you have moderated your behaviour since being charged in relation to this offence. It seems that you have been under strict bail conditions which, except for one incident, you have observed and I note that, and I also note the matters personal to you which have been brought to my attention. I note what has been said about your business and the fact that it depends upon you and the employees of the business upon you and … I note that you're married with a young child …
So far as the appellant's place in the hierarchy of this conspiracy is concerned, I would note that length of sentence is not determined solely by an offender's position in a "hierarchy" of co-offenders. One must look at the offender's role in the scheme and the degree to which an offender's actions are pivotal to the success of an operation: see Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47 [14] (McKechnie J). For instance, in R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26, the appellant was sentenced to the same term of imprisonment as a co‑offender higher up in the hierarchy in a major drug importation operation. It was held to be significant that the appellant was "the key man who had the experience and expertise to manage the operation" [46].
In the present case, the appellant had played more of an active role than Van Blitterswyk in organising the specific strategy for carrying out the fire bombings. There was evidence that Van Blitterswyk and Van Tongeren intended to "go underground" at around the time that the bombings were scheduled to take place. Moreover, it seems that although Van Blitterswyk and Van Tongeren recruited participants and made some suggestions as to the way in which Molotov cocktails could be made and used to carry out the attacks, the ultimate responsibility for coordinating and carrying out the bombings appears to have rested with the appellant. It does not appear that he took formal orders from Van Blitterswyk and Van Tongeren. Rather, the evidence suggests that he was given significant autonomy. The evidence also indicates that the appellant was enthusiastic in fulfilling his designated role in the attacks.
It is therefore not the case, in my view, that his sentence in respect of the conspiracy should have been less than that imposed on Van Blitterswyk. A question might arise as to whether it should substantially exceed that imposed on Van Blitterswyk. Both the appellant and Van Blitterswyk were mature men, old enough to know better. Both were significant participants in the conspiracy. Van Blitterswyk's record was more serious than that of the appellant, and he was convicted after trial. On the other hand, Van Blitterswyk had available to him mitigation not available to the appellant; Van Blitterswyk ran a business which employed six people, had moderated his behaviour since his arrest, and had not absconded. Nor, of course, had Van Blitterswyk compounded his offending by entering into the further conspiracy to pervert the course of justice in which the appellant engaged; that matter can, however, be put to one side as the appellant received (properly) a cumulative sentence in respect of it. Although the degree of disparity is a matter about which views may differ, Van Blitterswyk's favourable personal circumstances would justify some disparity of sentence in his favour.
A question of parity also arises in relation to the sentences of the appellant and Van Tongeren, who received a term of 2 years' imprisonment, suspended for 2 years. There were very particular reasons for that very lenient term. First, Van Tongeren had spent 2 years and 1 month in custody already, equivalent to a term of 4 years and 1 month, assuming that he had been made eligible for parole. The 2 years' additional term was imposed in order to recognise that significant period in custody. Further, Van Tongeren was in poor health. His family, although humiliated by his appalling conduct, was supportive of him and intended to take him to reside with them in the Eastern States, effectively out of harm's way. It was plain that the learned sentencing judge in Van Tongeren's case intended that the sentence she imposed would be the effective equivalent of one of 4 years' imprisonment. Indeed, in sentencing the appellant, the same learned sentencing judge said:
... in relation to the conspiracy with Mr Van Tongeren, I take into account that he was the spiritual leader of the group and where his sentence was 4 years, you are sentenced to 3 years with parole. (AB 61)
A further consideration in this appeal, then, is that a significant reduction in the appellant's sentence would have the effect of distorting the appropriate relationship between his sentence and that of Van Tongeren, having regard to the difference in their roles and personal circumstances.
It must be said that, in relation to all of the sentences imposed on the three offenders under consideration here - Van Tongeren, Van Blitterswyk, and the appellant - none could be regarded as severe, having regard to the very serious nature of the conspiracy in which the men engaged. The only significant argument advanced in support of the proposition that the appellant's sentence should be interfered with is the somewhat abstract notion of a "hierarchy" in the planning of this enterprise.
In that context, it is important to bear in mind the role which the parity principle can play in an appeal against sentence, and the limitations of its application. As Murray J said, in Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541:
In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co‑offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind,

as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which may be passed for the offence before the court.
For the appellate court the principle is of equal importance. Such a court, appreciating that it is dealing with an exercise of judicial discretion by the sentencing judge, will test whether that process has miscarried inter alia by reference to the parity principle, but again, whether that leads to a sentence being quashed and substituted by one passed by the appellate court involves an act of discretionary judgment.
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. [59] ‑ [61]

Having regard to the actual activity of the appellant, and to the very different personal circumstances of each of the three men, the imposition of a sentence on the appellant which is different from those imposed upon his co‑offenders is explicable. Further, any reduction of his sentence would lead to a result so lenient as not to be commensurate with the seriousness of his offence. If the appellant harbours any sense of grievance arising out of his perception of the organisational structure of the conspiracy, that sense of grievance is not a justifiable one. I would dismiss the appeal.
McLURE JA: I agree with the reasons of Steytler P.