Brockman v The State of Western Australia

[2025] WASCA 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BROCKMAN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 40

CORAM:   BUSS P

MAZZA JA

VAUGHAN JA

HEARD:   6 FEBRUARY 2025

DELIVERED          :   20 MARCH 2025

FILE NO/S:   CACR 35 of 2024

BETWEEN:   JAMES STUART BROCKMAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BURROWS DCJ

File Number            :   IND KAL 66 of 2022

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of five offences with co‑offender - Appellant sentenced to total effective sentence of 9 years 4 months' imprisonment - Co‑offender sentenced to total effective sentence of 9 years 10 months' imprisonment - Alleged infringement of parity principle based on absence of marked disparity in relation to four of the individual sentences and the total effective sentences

Legislation:

Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 333, s 378, s 392, s 401A, s 401B, s 401
Sentencing Act 1995 (WA), s 9AA, s 11

Result:

Extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Application for leave to adduce additional evidence granted

Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant	:	M J Ajduk
Respondent	:	J Whalley SC

Solicitors:

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

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

Astone v The State of Western Australia [2024] WASCA 18

Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100

Diamantopoulos v The State of Western Australia [2024] WASCA 82

EDR v The State of Western Australia [2024] WASCA 61

Eldridge v The State of Western Australia [2020] WASCA 66

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

Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342

Ho v The State of Western Australia [2023] WASCA 160

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

Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485

Jardim v The State of Western Australia [2011] WASCA 83

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Lee v The State of Western Australia [2018] WASCA 156

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Ngo v The Queen [2017] WASCA 3

Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656

NSA v The State of Western Australia [2023] WASCA 53

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105

R v Hough [2002] WASCA 42

R v Taudevin [1996] 2 VR 402

The State of Western Australia v Krakouer [2022] WASCA 118

Thornley v The State of Western Australia [2023] WASCA 107

BUSS P:

1The appellant has applied for an extension of time to appeal and for leave to appeal against sentence.

2The appellant's delay in filing his appeal notice was reasonably short and has been explained adequately.  I would grant the requisite extension of time.

3The appellant and his co‑offender, GB, were convicted on their pleas of guilty of five counts in an indictment.

4Count 1 alleged that on 22 March 2022, at Kalgoorlie, the appellant and GB, while in the place of the victim, JJ, without his consent, committed the offence of stealing; that the appellant and GB were in company with each other; that the place was ordinarily used for human habitation; and that the appellant was a repeat offender, contrary to s 401(2)(a) read with s 401(4) of the Criminal Code (WA) (the Code).

5Count 2 alleged that on the same date and at the same place as in count 1, the appellant and GB stole a guitar, power tools and a bicycle, the property of JJ, contrary to s 378 of the Code.

6Count 3 alleged that on the same date as in count 1, at Somerville, the appellant and GB, while in the place of the victim, SS, without his consent, committed the offence of assault; that the appellant and GB were in company with each other; that the appellant and GB did bodily harm to SS; that immediately before the commission of the offence the appellant and GB knew or ought to have known that there was another person in the place; that the place was ordinarily used for human habitation; and that the appellant was a repeat offender, contrary to s 401(2)(a) read with s 401(4) of the Code.

7Count 4 alleged that on the same date and at the same place as in count 3, the appellant and GB stole from SS, with violence, a sum of money, jewellery and electrical items, the property of SS; that the appellant and GB were armed with a dangerous weapon, namely a shotgun; that the appellant and GB were in company with each other; and that SS was of or over the age of 60 years, contrary to s 392 of the Code.

8Count 5 alleged that on the same date and at the same place as in count 3, the appellant and GB unlawfully detained SS, contrary to s 333 of the Code.

9The maximum penalty for count 1 is 20 years' imprisonment. A mandatory minimum penalty of 2 years' immediate imprisonment applied to the appellant (but not GB) because the appellant was a 'repeat offender' as defined in s 401B of the Code. See s 401(4)(b)(i) read with s 401(5) of the Code.

10The maximum penalty for count 2 is 7 years' imprisonment.

11The maximum penalty for count 3 is 20 years' imprisonment.  A mandatory minimum penalty of 2 years' immediate imprisonment applied to the appellant (but not GB) because the appellant was a repeat offender.

12The maximum penalty for count 4 is life imprisonment.

13The maximum penalty for count 5 is 10 years' imprisonment.

14On 19 February 2024, Burrows DCJ sentenced the appellant and GB at the same hearing.

15Her Honour imposed individual sentences of immediate imprisonment on the appellant and GB (before reducing some of those sentences in the application of the totality principle) as set out in the table below:

Count	Appellant's individual sentence	GB's individual sentence
1	3 years	3 years
2	No punishment	No punishment
3	6 years 4 months	6 years 10 months
4	4 years 6 months	4 years 6 months
5	3 years	3 years

16No punishment was imposed for count 2 because count 2 was the grounding offence for count 1.

17The primary judge then reduced the appellant's sentence and GB's sentence for count 1 from 3 years to 2 years in the application of the totality principle.  Her Honour also reduced the appellant's sentence and GB's sentence for count 5 from 3 years to 1 year in the application of the totality principle.

18Her Honour ordered that the reduced sentences imposed on the appellant and GB for count 1 and count 5 be served cumulatively upon each other and cumulatively upon the sentences imposed on them for count 3.  Her Honour ordered that the sentences imposed on the appellant and GB for count 4 be served concurrently with the sentences imposed on them for count 3.  Accordingly, the appellant's total effective sentence was 9 years 4 months' imprisonment and GB's total effective sentence was 9 years 10 months' imprisonment.  A parole eligibility order was made in relation to both of them.  The appellant's total effective sentence was backdated to 28 June 2023 and GB's total effective sentence was backdated to 4 April 2022 to take into account time they had spent in custody on remand.

19The sole ground of appeal alleges, in essence, that the sentences imposed on the appellant infringed the parity principle in that there was insufficient disparity between the sentences imposed on the appellant and those imposed on GB, and that the insufficient disparity gave rise to a justifiable sense of grievance.

20At the hearing of the appeal, counsel for the appellant (after debate with the court and without objection from counsel for the State) put her case on the basis that the parity principle had been infringed in relation to the individual sentences for counts 1, 3, 4 and 5 and the total effective sentences.

21In my opinion, the ground of appeal has been made out in relation to the individual sentences for counts 4 and 5.  It is unnecessary to decide whether the ground of appeal has been made out in relation to the total effective sentences.  I would grant leave to appeal.  The appeal should be allowed, the sentencing decision of the primary judge set aside, and the appellant resentenced.

The facts and circumstances of the offending; the primary judge's sentencing remarks; the psychological reports before her Honour; the appellant's personal circumstances and antecedents; GB's personal circumstances and antecedents; and the submissions of the parties in the appeal

22The reasons of Vaughan JA set out details of:

(a)the facts and circumstances of the offending;

(b)the primary judge's sentencing remarks;

(c)the psychological reports before her Honour;

(d)the appellant's personal circumstances and antecedents;

(e)GB's personal circumstances and antecedents; and

(f)the submissions of the parties in the appeal.

23I will not repeat any of those details except to the extent necessary to explain my reasons.

The primary judge's relevant findings in relation to the appellant and GB

24The primary judge found that the appellant and GB were 'equally culpable in the offending behaviour' the subject of counts 1, 2, 3, 4 and 5 (ts 63).

25Neither the appellant nor GB was youthful for sentencing purposes.  The appellant was aged 45 years at the time of the offending and was 47 when sentenced.  GB was aged 36 years at the time of the offending and was 37 when sentenced.

26Both the appellant and GB had significant prior criminal records as adults.

27The appellant had five previous convictions for home burglary (three of which were aggravated); one previous conviction for attempted aggravated home burglary; and one previous conviction for aggravated burglary of a place (not a dwelling).  He was therefore a repeat offender and subject to a mandatory minimum penalty of 2 years' immediate imprisonment for each of count 1 and count 3.

28The appellant had numerous other previous convictions, including for possession of a prohibited drug (multiple offences); possessing drug paraphernalia (multiple offences); trespass (multiple offences); possessing stolen or unlawfully obtained property (multiple offences); stealing a motor vehicle; stealing (multiple offences); disorderly behaviour in public (multiple offences); possession of a controlled weapon; possession of an unlicensed firearm; possession of unlicensed ammunition (multiple offences); assaulting a public officer; receiving property; criminal damage; breach of community based orders (multiple offences); and breach of bail (multiple offences).  The appellant had previously served terms of immediate imprisonment.

29GB was not a repeat offender, but he had one previous conviction for home burglary (non‑aggravated) and two previous convictions for burglary of a place (not a dwelling).

30GB had numerous other previous convictions, including assaulting the driver of a passenger vehicle; assault occasioning bodily harm; stealing (multiple offences); possession of an unlicensed firearm (multiple offences); possession of unlicensed ammunition (multiple offences); disorderly behaviour in public (multiple offences); possessing an article with intent to cause fear (multiple offences); breach of a violence restraining order; breach of a community based order (multiple offences); breach of bail (multiple offences); and unlawful damage.  GB had previously served terms of immediate imprisonment.

31The appellant's prior criminal record was more extensive than GB's, but neither the appellant nor GB was of prior good character.  Her Honour noted that a psychologist had assessed the appellant's risk of future offending in a violent manner as moderate (ts 61) and that a psychologist had assessed GB's risk of future offending in a violent manner as high (ts 60).  Plainly, personal deterrence was an important sentencing factor in relation to both the appellant and GB.

32As I have mentioned, the appellant, unlike GB, was subject to the mandatory minimum sentence of 2 years' immediate imprisonment for each of count 1 and count 3.

33It is apparent that any material differences between the appellant and GB that were favourable to the appellant, for parity purposes, had to arise from the presence or absence of mitigating factors in relation to each of them.

34The primary judge found that there were mitigating factors in relation to the appellant as follows:

(a)The appellant had entered pleas of guilty for which he received a 15% discount on his individual sentences (ts 62).

(b)The appellant had demonstrated 'victim insight and remorse' (ts 62).

(c)The appellant had engaged in 25 sessions of counselling while on strict home detention bail; had ceased using methylamphetamine since he was arrested; and had the continuing support of his partner (ts 62 ‑ 63).

(d)The appellant had some employment history; had prospects of rehabilitation from his chronic long‑standing drug use; and had prospects of employment after his release from custody (ts 63).

35The appellant had been on strict home detention bail for about 15 months before he was sentenced.  In the circumstances, that had to be taken into account favourably to the appellant.  See R v Hough.[1]  Compare Lee v The State of Western Australia.[2]

[1] R v Hough [2002] WASCA 42 [98] (Malcolm CJ), [123] (Anderson J), [166] (Scott J).

[2] Lee v The State of Western Australia [2018] WASCA 156 [78] (Buss P, Mazza JA & Allanson J).

36Her Honour found that there were mitigating factors in relation to GB as follows:

(a)GB had entered pleas of guilty for which he received a 10% discount on his individual sentences (ts 62).

(b)There was mitigation in the events of GB's childhood (ts 62).

37The mitigation from GB's childhood appears to have been that GB had suffered sexual abuse when he was aged 7 or 8 and GB's father had died when GB was aged 13.

38The primary judge said that GB had minimised his offending conduct (ts 62).  Her Honour was not satisfied that GB had demonstrated contrition or a recognition that his offending was morally wrong (ts 62).  Her Honour said that she '[did] not find that [GB was] remorseful' (ts 62).  Those findings overwhelmed GB's very limited cooperation with police.

39Her Honour made these comments about the application of the parity principle as between the appellant and GB (ts 63):

In terms of the two of you and questions of parity, I consider the both of you to be equal; equally culpable in the offending behaviour.  [The appellant], you have more factors in mitigation in terms of demonstrated remorse and attempts to address your drug use.  You are, however, a repeat offender in respect of counts 1 and 3.  You pleaded earlier than [GB] and I have taken these matters into account when determining the appropriate sentences for each of you.

40The primary judge imposed identical individual sentences on the appellant and GB for counts 1, 2, 4 and 5.  Her Honour sentenced the appellant to 6 years 4 months' imprisonment for count 3 and GB to 6 years 10 months' imprisonment for that count.  The difference in the individual sentences for count 3 was reflected in the total effective sentences.  The appellant received a total effective sentence of 9 years 4 months' imprisonment and GB received a total effective sentence of 9 years 10 months' imprisonment.

The parity principle

41The parity principle has been considered by this court on numerous occasions.  See, for example, Ngo v The Queen;[3] Higgins v The State of Western Australia.[4]  In the present case, it is sufficient to note the following.

[3] Ngo v The Queen [2017] WASCA 3.

[4] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.

42It is well established that:

(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.

See Mill v The Queen;[5] Pearce v The Queen;[6] Nguyen v The Queen.[7]

[5] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 ‑ 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

[6] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).

[7] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

43The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents.  The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters.  As Brennan J noted in Lowe v The Queen:[8]

The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.

[8] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617.

44The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders.  The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.  See Lowe;[9] Postiglione v The Queen;[10] R v Taudevin.[11]  The applicable test is objective not subjective.

[9] Lowe (609 ‑ 610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J).

[10] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).

[11] R v Taudevin [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).

45The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed.  See Jardim v The State of Western Australia.[12]

[12] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).

46An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentences in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.  See Lowe (609).

47An appellate court, in deciding whether a disparity or lack of 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 all of the components of the sentences (Postiglione (302)) as well as all of the facts and circumstances applicable to the offenders (Green v The Queen[13]).

[13] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30] (French CJ, Crennan & Kiefel JJ).

The proper approach to the sentencing of an adult offender for a home burglary who is a 'repeat offender' as defined in s 401B of the Code

48The proper approach to the sentencing of an adult offender for a home burglary who is a 'repeat offender', as defined in s 401B of the Code, was considered by this court in Eldridge v The State of Western Australia[14] and again in The State of Western Australia v Krakouer.[15]

[14] Eldridge v The State of Western Australia [2020] WASCA 66 [30] ‑ [57] (Buss P, Mazza & Mitchell JJA).

[15] The State of Western Australia v Krakouer [2022] WASCA 118 [35] ‑ [36] (Buss P, Mitchell & Vaughan JJA).

49In Krakouer, the court said [35]:

[I]t is necessary, when ascertaining the seriousness of an offence, to take into account, not only the maximum penalty for that offence, but also any applicable minimum penalty.  The minimum penalty and the maximum penalty operate as a floor and ceiling within which the sentencing discretion must be exercised.  The issue for the sentencing judge is to determine where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate (Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [58], adopted in R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 [66] - [68] and Eldridge [37], [53]).

50In Hurt v The King,[16] Edelman, Steward and Gleeson JJ said, relevantly, that:

(a)a mandatory minimum term of imprisonment provides a yardstick, the opposite of the maximum penalty, for the exercise of the sentencing discretion; and

(b)as a yardstick that imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, the mandatory minimum term operates to increase the appropriate term of imprisonment generally for that offence.

[16] Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 [54], [57], [58].

51In Thornley v The State of Western Australia,[17] the appellant and his co‑offender, Beynon, were each convicted of three offences on an indictment. Counts 1 and 2 related to the appellant and Beynon jointly. Count 3 related to Beynon solely. Count 4 related to the appellant solely. Count 1 was an aggravated home burglary. The count alleged, relevantly, that the appellant and Beynon, while in the place of the complainant without his consent, committed the offence of stealing, and that the appellant and Beynon were in company with each other; that the place was ordinarily used for human habitation; and that Beynon (but not the appellant) was a 'repeat offender', as defined in s 401B of the Code. Count 2 alleged that on the same date and at the same place as in count 1, the appellant and Beynon stole household items the property of the complainant. Count 3 alleged that on a different date and at a different place, Beynon committed the offence of receiving property. Count 4 alleged that on a different date and at a different place, the appellant committed the offence of receiving property.

[17] Thornley v The State of Western Australia [2023] WASCA 107.

52The sentencing judge sentenced the appellant to 18 months' immediate imprisonment (reduced from 2 years in the application of the totality principle) on count 1; no penalty on count 2; and 10 months 16 days' immediate imprisonment on count 4 (reduced from 18 months to 12 months in the application of the totality principle and further reduced by 44 days to reflect time the appellant had spent in custody on remand before he was sentenced).  Her Honour ordered that the sentences for count 1 and count 4 be served cumulatively.  The appellant's total effective sentence was therefore 2 years 4 months 16 days' immediate imprisonment.

53The sentencing judge sentenced Beynon to 2 years' immediate imprisonment (reduced from 3 years in the application of the totality principle) on count 1; no penalty on count 2; and 12 months' immediate imprisonment on count 3.  Her Honour ordered that the sentences for count 1 and count 3 be served cumulatively.  Beynon's total effective sentence was therefore 3 years' immediate imprisonment.

54As I have mentioned, Beynon (but not the appellant) was a repeat offender for the purpose of the aggravated home burglary the subject of count 1.

55When they were sentenced, both the appellant and Beynon were serving terms of immediate imprisonment for other offences.

56The appellant appealed against sentence to this court on two grounds.  Ground 1 alleged, in essence, that there was an infringement of the parity principle in that there was an insufficient disparity between the total effective sentence imposed upon him compared to the total effective sentence imposed upon Beynon.  Ground 2 alleged, in essence, that the overall total effective sentence imposed upon the appellant infringed the first limb of the totality principle.  This court (Mazza and Vaughan JJA and I) held that neither ground of appeal had been made out.  Leave to appeal was refused and the appeal dismissed.

57In Thornley, the appellant's complaint about the parity principle related to the total effective sentences (and not the individual sentences for count 1).  The appellant argued that the sentencing judge should have differentiated between the appellant and Beynon to a greater extent than her Honour did, in fixing the total effective sentences, because the appellant had a more favourable criminal history than Beynon.

58This court noted in Thornley that:

(a)the real issue to be determined in respect of ground 1 was whether the difference in the respective criminal histories of the appellant and Beynon justified a greater disparity in the total effective sentence imposed by the sentencing judge upon the appellant [45]; and

(b)accepting that the appellant's criminal history was more favourable than Beynon's, 'this difference was, on any objective view, properly, even generously, reflected in the different individual sentences imposed by her Honour on count 1' [46].

59This court then said [47]:

We are unable to see in this case how the fact that Mr Beynon was subject to a mandatory minimum sentence on count 1 of 2 years' imprisonment (as distinct from the prior convictions which engaged the mandatory minimum sentence) had any bearing on the question of parity.  (emphasis added)

60In the present case:

(a)Counsel for the appellant submitted, in her written and oral submissions, that the statement in Thornley at [47] (see [59] above) was authority for the proposition that 'the mere fact that the appellant [in the present case] was subject to a mandatory minimum penalty, of itself, does not bear on the question of parity'.

(b)The State submitted, in its written submissions, that the statement in Thornley at [47] (see [59] above) should not be followed because 'the differing repeat offender status (as distinct from the prior convictions which engaged the status) [is] relevant to the question of parity'. The State sought to support that submission by referring to the observations of Edelman, Steward and Gleeson JJ in Hurt [54], [58] that a mandatory minimum sentence (together with the maximum penalty) functions as a 'yardstick' for the exercise of the sentencing discretion and, where a mandatory minimum sentence applies, it 'operates to increase the appropriate term of imprisonment generally for that offence'. The State submitted, in its written submissions, that in the present case 'the fact that the appellant was subject to the mandatory sentencing regime is a relevant point of distinction [for parity purposes] as between himself and [GB]' and, to the extent that the statement in Thornley suggests to the contrary, 'it should not be followed'.

61Counsel for the appellant's written and oral submissions and the State's written submissions in relation to the statement in Thornley at [47] are misconceived.

62Where two offenders are to be sentenced for multiple joint offences, including at least a home burglary offence and an offence that is not a home burglary, and one offender (but not the other) is a 'repeat offender', as defined in s 401B of the Code, the repeat offender status of the offender who is a repeat offender is relevant:

(a)in fixing the individual sentence for that offender on the home burglary offence; and

(b)in applying the parity principle, as between that offender and the co‑offender, in relation to the home burglary offence.

63The repeat offender status of the offender who is a repeat offender is relevant for the purposes identified in [62] above because the mandatory minimum sentence of 2 years' immediate imprisonment provides a yardstick, the opposite of the maximum penalty, for the exercise of the sentencing discretion, and the mandatory minimum sentence operates to increase the appropriate term of imprisonment generally for that offender, in respect of the home burglary.  Those considerations do not apply to the co‑offender.  However, the prior criminal record (that is, all of the previous convictions) of the offender who is a repeat offender and any prior criminal record (that is, all of the previous convictions, if any) of the co‑offender are also a relevant sentencing factor for those purposes.

64The repeat offender status of the offender who is a repeat offender is not, of itself, relevant:

(a)in applying the totality principle in respect of that offender for the purpose of fixing that offender's total effective sentence; or

(b)in applying the parity principle, as between that offender and the co‑offender, for the purpose of fixing their total effective sentences.

65Rather:

(a)in applying the totality principle in respect of the offender who is a repeat offender for the purpose of fixing that offender's total effective sentence; and

(b)in applying the parity principle, as between that offender and the co‑offender, for the purpose of fixing their total effective sentences,

it is the prior criminal record (that is, all of the previous convictions) of the offender who is a repeat offender and any prior criminal record (that is, all of the previous convictions, if any) of the co‑offender that are relevant.

66The repeat offender status of the offender who is a repeat offender is not, of itself, relevant for the purposes identified in [64] above because the repeat offender provisions relate to the imposition of the individual sentence for the home burglary offence and, when the appropriate total effective sentences are being considered and formulated, he or she will already have received an individual sentence for the home burglary offence which reflects his or her repeat offender status.

67In Thornley, the fact that Beynon (but not the appellant) was a repeat offender and subject to the mandatory minimum penalty of 2 years' immediate imprisonment for count 1 was not, of itself, relevant in applying the parity principle, as between the appellant and Beynon, for the purpose of fixing their total effective sentences, in that the appellant's argument in Thornley, based upon the parity principle, was that there should have been a greater disparity between the appellant and Beynon in fixing the total effective sentences because the appellant had a more favourable criminal history than Beynon.

The primary judge's application of the parity principle as between the appellant and GB

68I turn to consider the primary judge's application of the parity principle, as between the appellant and GB, in fixing the individual sentences for counts 1, 3, 4 and 5.

69As to count 1 (an aggravated home burglary offence), her Honour decided that the appropriate individual sentence for each of the appellant and GB was 3 years' immediate imprisonment. Her Honour then reduced each of those sentences to 2 years' immediate imprisonment in the application of the totality principle. The appellant's complaint about the individual sentences for count 1 is without merit. In my opinion, her Honour's imposition of the same sentence on the appellant and GB for count 1 properly reflected all relevant sentencing factors applicable to the appellant and GB, including their equal culpability for the offending behaviour the subject of count 1. The individual sentences for count 1 synthesised appropriately the appellant's status as a repeat offender (as defined in s 401B of the Code), on the one hand, and the appellant's more significant mitigation, on the other, in the context of all relevant sentencing factors.

70As to count 3 (the other aggravated home burglary offence), her Honour decided that the appropriate individual sentence for the appellant was 6 years 4 months' imprisonment and the appropriate individual sentence for GB was 6 years 10 months' imprisonment.  The disparity in the individual sentences for count 3 is odd having regard to the absence of any disparity in the individual sentences for count 1.  In my opinion, the disparity in the individual sentences for count 3 did not properly reflect the equal culpability of the appellant and GB for the offending behaviour the subject of count 3 and all other relevant sentencing factors.  Although the disparity reflected the appellant's more significant mitigation, the disparity was inconsistent with the appellant's status as a repeat offender, in the context of all relevant sentencing factors.  The disparity in the individual sentences for count 3 was erroneously favourable to the appellant.

71As to count 4 (the armed robbery offence), her Honour decided that the appropriate individual sentence for each of the appellant and GB was 4 years 6 months' immediate imprisonment.  The absence of any disparity between the individual sentences for count 4 is odd, having regard to the absence of any disparity between the individual sentences for count 1, because the repeat offender provisions which applied to the appellant in respect of count 1 did not apply in respect of count 4.  In my opinion, the absence of any disparity in the individual sentences for count 4 did not properly reflect the equal culpability of the appellant and GB for the offending behaviour the subject of count 4 and all other relevant sentencing factors.  In particular, the absence of any disparity favourable to the appellant in the individual sentences for count 4 did not properly reflect the appellant's more significant mitigation, in the context of all relevant sentencing factors.  The absence of any disparity in the individual sentences for count 4 was erroneously adverse to the appellant.  The sentencing outcome was unjust and gave rise to a legitimate or justifiable sense of grievance on the appellant's part.

72As to count 5 (the unlawful detention offence), her Honour decided that the appropriate individual sentence for each of the appellant and GB was 3 years' immediate imprisonment.  Her Honour reduced each of those sentences to 1 year's immediate imprisonment in the application of the totality principle.  The absence of any disparity between the individual sentences for count 5 is odd, having regard to the absence of any disparity between the individual sentences for count 1, because the repeat offender provisions which applied to the appellant in respect of count 1 did not apply in respect of count 5.  In my opinion, the absence of any disparity in the individual sentences for count 5 did not properly reflect the equal culpability of the appellant and GB for the offending behaviour the subject of count 5 and all other relevant sentencing factors.  In particular, the absence of any disparity favourable to the appellant in the individual sentences for count 5 did not properly reflect the appellant's more significant mitigation, in the context of all relevant sentencing factors.  The absence of any disparity in the individual sentences for count 5 was erroneously adverse to the appellant.  The sentencing outcome was unjust and gave rise to a legitimate or justifiable sense of grievance on the appellant's part.

73The ground of appeal has been made out in relation to the individual sentences imposed on the appellant for counts 4 and 5.  In addition, her Honour misapplied the parity principle in relation to the individual sentences for count 3 by allowing a disparity that was erroneously favourable to the appellant.  The ground of appeal fails in relation to the individual sentences for count 1.

74It is unnecessary to consider the ground of appeal in relation to the total effective sentences because the total effective sentences took into account all of the individual sentences for counts 1, 3, 4 and 5, in that the total effective sentences were arrived at by making the individual sentences for counts 1, 3 and 5 cumulative upon each other and the individual sentences for count 4 concurrent. Consequently, this court in setting aside the appellant's individual sentences for counts 4 and 5 may also vary the other sentences that were imposed on him by her Honour. See s 41(2) of the Criminal Appeals Act 2004 (WA).

The outcome of the appeal and the resentencing of the appellant

75I would allow the appeal.

76The primary judge's sentencing decision, including the sentences imposed by her Honour and the orders for cumulacy and concurrency, should be set aside.  However, the compensation orders made by her Honour should not be disturbed.

77This court has the material necessary to resentence the appellant.

78At the hearing of the appeal, counsel for the appellant informed the court that the appellant has been working as a peer support worker since he was sentenced by her Honour.  He has been assisting other prisoners in that capacity.

79The appellant filed and served an application in an appeal dated 5 February 2025 for leave to adduce additional evidence in the appeal.  The application discloses that on 4 July 2024 the appellant was sentenced for an offence of stealing and an offence of trespass in the Magistrates Court at Kalgoorlie.  The application also discloses that on 7 March 2024 GB was sentenced for a burglary offence in the Magistrates Court at Kalgoorlie.  The appellant committed the stealing and trespass offences on 29 March 2022 (being seven days after he committed the offences the subject of this appeal).  The appellant received a global fine of $750 for the stealing and trespass offences.  GB committed the burglary offence between 10 and 12 December 2021 (about three months before he committed the offences the subject of this appeal).  GB was sentenced to 9 months' immediate imprisonment for the burglary offence.  That sentence was ordered to be served concurrently with the sentences the subject of this appeal.  Leave to adduce the additional evidence in the appeal should be granted.

80I have taken into account, in exercising the sentencing discretion afresh, all of the information that was before the primary judge and the additional information which the appellant has put before this court.

81Like her Honour, I consider that the appellant and GB are equally culpable for the offending behaviour the subject of counts 1, 2, 3, 4 and 5.

82I would impose no punishment for count 2 because count 2 was the grounding offence for count 1.

83Like the primary judge, I would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence I would otherwise have imposed for each of counts 1, 3, 4 and 5, on account of the pleas of guilty.

84I would also reduce the sentences I would otherwise have imposed for counts 1, 3, 4 and 5 in recognition of the other mitigating factors that I have mentioned.

85I have taken into account, in deciding upon the sentences I would impose, all relevant sentencing factors including the parity principle.

86I would impose on the appellant new individual sentences of immediate imprisonment as follows:

(a)count 1: 2 years (reduced from 3 years in the application of the totality principle);

(b)count 3: 6 years 10 months;

(c)count 4: 3 years 10 months; and

(d)count 5: 2 months (reduced from 2 years 6 months in the application of the totality principle).

87I consider that the appropriate new total effective sentence for the appellant is 9 years' imprisonment.  A custodial term of that length is required in order properly to mark the very serious character of the appellant's offending as a whole, and to give effect to all relevant sentencing considerations.  A total effective sentence of that length bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the appellant's personal circumstances and antecedents, the mitigating factors and the parity principle.  The new individual sentences for counts 1 and 5 should be served cumulatively upon each other and cumulatively upon the new individual sentence for count 3.  The new individual sentence for count 4 should be served concurrently with the new individual sentence for count 3.  The new total effective sentence of 9 years' imprisonment should be backdated to 28 June 2023 to take account of time the appellant spent on remand in respect of the offences.

88The appellant should remain eligible for parole.  He will be eligible to be considered for release on parole when he has served 7 years in custody, calculated from 28 June 2023.

MAZZA JA:

89I have had the advantage of reading both the draft reasons of Buss P and Vaughan JA.  All of the factual background necessary to decide the appeal has been set out in Vaughan JA's reasons and does not require repetition.  I agree with their Honours' conclusions that:

(a)an extension of time should be granted;

(b)the ground of appeal, as enlarged by counsel for the appellant in the course of oral argument, has been made out, at least, in part;

(c)the appeal must be allowed and the sentences imposed by the sentencing judge must be set aside; and

(d)the appellant must be resentenced. 

90I would make the orders proposed by Buss P.  My reasons for doing so are as follows.

The ground of appeal

91The appellant and his co‑offender, GB, were each convicted on their pleas of guilty of the same five offences.  They were sentenced by the same sentencing judge.  The sentencing judge sentenced the appellant and GB to different total effective sentences.  GB received a total effective sentence of 9 years 10 months' imprisonment, whilst the appellant received a total effective sentence of 9 years 4 months' imprisonment. 

92As originally framed, the appellant's sole ground of appeal complained of an infringement of the parity principle on the basis that there was insufficient disparity between the total effective sentence he received and the total effective sentence that GB received.[18] 

[18] Appeal ts 2.

93At the hearing of the appeal, without objection by the respondent, the ambit of the ground was enlarged to include a further or alternative allegation of insufficient disparity in respect of each of the individual sentences imposed upon the appellant and GB for counts 1, 3, 4 and 5.[19] 

[19] Although not an issue in this appeal, the question of the appropriate comparator for the purposes of the application of the parity principle, including whether it is common individual sentences or the total effective sentence, was examined in detail in Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [160] ‑ [184] (Beech JA), [209] ‑ [210] (Pritchard JA).

94The table below sets out the individual sentences imposed on the appellant and GB, on all counts. 

Count	Offence	Sentence imposed on appellant	Sentence imposed on GB
1	Aggravated home burglary by committing the offence of stealing while in the place of JJ. Maximum penalty:  20 years' imprisonment Code, s 401(2)(a)	3 years (reduced to 2 years for totality) (cumulative)	3 years (reduced to 2 years for totality) (cumulative)
2	Stealing a guitar, power tools, and a bicycle, the property of JJ. Maximum penalty:  7 years' imprisonment Code, s 371, s 378	No further penalty: see Sentencing Act 1995 (WA) s 11.	No further penalty: see Sentencing Act 1995 (WA) s 11.
3	Aggravated home burglary by committing the offence of assault while in the place of SS. Maximum penalty:  20 years' imprisonment Code, s 401(2)(a)	6 years 4 months (head sentence)	6 years 10 months (head sentence)
4	Aggravated armed robbery by stealing, with violence, a sum of money, jewellery, and electrical items the property of SS. Maximum penalty:  Life imprisonment Code, s 392(c) and s 392(d)	4 years 6 months (concurrent)	4 years 6 months (concurrent)
5	Deprivation of liberty by unlawfully detaining SS. Maximum penalty:  14 years' imprisonment Code, s 333	3 years (reduced to 12 months for totality) (cumulative)	3 years (reduced to 12 months for totality) (cumulative)
Total effective sentence:		9 years 4 months' imprisonment	9 years 10 months' imprisonment

95The question for determination in this appeal is whether there was insufficient disparity in the sentences that were imposed such as to give rise to a legitimate or justifiable sense of grievance on the part of the appellant or to give the appearance in the mind of an objective observer that justice has not been done. 

The sentencing judge's approach

96The sentencing judge found that the appellant and GB were 'equally culpable' for the offending. 

97However, her Honour identified three differences between the two co‑offenders:

(a)The appellant pleaded guilty at an earlier stage in the proceedings than GB. As a result, the appellant was given a discount of 15% for his guilty pleas pursuant to s 9AA of the Sentencing Act 1995 (WA); whereas GB was given only a 10% discount for his pleas of guilty.

(b)In addition to the difference in the size of the s 9AA discounts, the appellant had other mitigating factors which favoured him receiving lesser individual sentences than GB. Those other mitigating factors are identified by Buss P at [34] of his reasons.

(c)Relevantly only to the sentences imposed on counts 1 and 3, being the aggravated home burglary offences, the appellant (but not GB) was a 'repeat offender' within the meaning of s 401B(1) of the Criminal Code (WA). This rendered the appellant liable to a mandatory minimum sentence of 2 years' imprisonment on each of counts 1 and 3.[20] 

[20] Code, s 401(4)(b)(i).

98The first two differences favoured the appellant over GB.  However, for the reasons explained by Buss P at [48] to [67], the third difference did not favour the appellant receiving a more lenient sentence on each of counts 1 and 3.

Why the appeal must be allowed

99The fact that her Honour imposed identical sentences on the appellant and GB for counts 4 and 5, when there were clear differences which favoured the appellant, gives rise to the conclusion that the appellant did not, in fact, receive the full benefit for his guilty pleas nor for the other mitigation.

100While this is an implied error of law in itself, at the same time, it engenders an objectively justifiable sense of grievance on the part of the appellant that there is insufficient disparity between the sentences imposed on him and those imposed on GB for counts 4 and 5.  Accordingly, the ground of appeal, as argued at the appeal hearing, must succeed as it applies to counts 4 and 5.

101Having regard to the broad principle invoked many times in this court, that when a sentencing judge's sentencing discretion miscarries in

relation to one or more of the individual sentences forming part of the total effective sentence (as it has in this case), the total effective sentence must be set aside and the appellate court must exercise the sentencing discretion afresh on all counts,[21] it is unnecessary to decide the parity challenges on counts 1 and 3 and the total effective sentence.

[21] As to which, see the discussion in NSA v The State of Western Australia [2023] WASCA 53 [57] (Mazza JA), [99] (Beech JA), [134] (Vaughan JA).

102I now turn to the resentencing.

Resentencing

103Buss P and Vaughan JA would each resentence the appellant to a total effective sentence of 9 years' imprisonment.  In doing so, their Honours would impose different individual sentences on each of counts 3, 4 and 5. 

104I, too, would impose a total effective sentence of 9 years' imprisonment.  For the reasons that he gives, I agree with Buss P's resentencing.

VAUGHAN JA:

Overview

105The appellant seeks to appeal against a total effective sentence of 9 years and 4 months' imprisonment imposed on 19 February 2024 by the District Court of Western Australia (Burrows DCJ).  The appeal notice was lodged a little over a month out of time.  The delay is adequately explained and was not attributable to the appellant.  The application for an extension of time within which to commence the application for leave to appeal against sentence should be granted.

106The offences of which the appellant was convicted on 20 September 2023, on his pleas of guilty, the relevant maximum penalties for those offences, and the individual sentences imposed on the appellant, are as follows:

No	Offence	Code	Max. Penalty	Sentence (cumulative/concurrent)
1.	Aggravated home burglary (while committing the offence of stealing) - the appellant was indicted as a repeat offender.	s 401(2)(a)	20 years	2 years (cumulative - reduced from 3 years for totality)

No	Offence	Code	Max. Penalty	Sentence (cumulative/concurrent)
2.	Stealing.	s 378	7 years	No further punishment (s 11 Sentencing Act 1995 (WA))
3.	Aggravated home burglary (while committing the offence of assault) - the appellant was indicted as a repeat offender.	s 401(2)(a)	20 years	6 years 4 months (head sentence)
4.	Aggravated armed robbery	s 392(c) & (d)	Life (s 392(c))	4 years 6 months (concurrent)
5.	Deprivation of liberty	s 333	10 years	1 year (cumulative - reduced from 3  years for totality)

107The total effective sentence was backdated to commence on 28 June 2023, taking into account the time the appellant had spent in custody on remand, and the appellant was made eligible for parole.

108The appellant committed the five offences with a co‑offender.  The co‑offender, GB, will be referred to by initials given a feature of GB's personal circumstances.  GB appeared for sentencing at the same sentencing hearing as the appellant.  GB was sentenced to a total effective sentence of 9 years and 10 months' imprisonment for the same offending as the appellant (although, unlike the appellant, GB was not indicted as a repeat offender as to counts 1 and 3).  The two co‑offenders were sentenced to the same individual sentences for counts 1, 2, 4 and 5.  However, GB was sentenced to 6 years and 10 months' imprisonment in relation to count 3 (compared to the appellant's sentence of 6 years and 4 months' imprisonment).  GB's total effective sentence was backdated to commence on 4 April 2022, he having spent more time in custody on remand than the appellant, and GB was also made eligible for parole.

109There is a single ground of appeal.  The appellant contends that the sentences imposed infringe the parity principle.  In written submissions the alleged infringement of the parity principle was advanced solely in terms of the total effective sentences imposed on the appellant and GB.  At the appeal hearing, without objection from the State, the appellant's parity challenge by the single ground of appeal was enlarged to encompass the individual sentences imposed on counts 1 ‑ 5.  In both cases the appellant says that there is insufficient disparity between his sentences, and those of GB as his co‑offender, giving rise to a justifiable sense of grievance.

110For the reasons that follow the appeal should be allowed as to the individual sentences the subject of counts 4 and 5 and the appellant should be resentenced.

The circumstances of the offending

111The appellant admitted the material facts of the offending as asserted by the State (ts 42).  The sentencing judge incorporated those material facts in her sentencing remarks (ts 52).  In respect of those admitted facts the sentencing judge made a finding that the two offenders were equally culpable as to their offending behaviour (ts 63; see also ts 56).  By that I understand her Honour to be referring to the objective circumstances of the offending.  The characterisation of equal culpability is unchallenged on appeal.[22]  It is, in the circumstances, appropriate to be relatively brief in describing the offending.

[22] Appellant's submissions par 13.

112The appellant and the co‑offender committed two sets of offences on 22 March 2022 in Kalgoorlie.

113The first set of offences involved counts 1 and 2.  This occurred in the early morning.  The offenders entered a property, forcing entry via the rear door, and stole approximately $13,180 worth of property while causing damage searching for valuable items.  Later, following the execution of search warrants at the offenders' homes, some $650 in property was recovered.  The appellant declined to participate in a record of interview as to the offending.  GB admitted to police that he was paid in methylamphetamine to pick up some of the property from a skip bin on the verge of the address.  However, GB denied entering into the property (ts 38 ‑ 39, 52 ‑ 53).

114The second set of offences occurred during the evening at a different property.  These offences comprised counts 3 ‑ 5.

115The offenders attended the property with the intent to commit a burglary.  An occupant was asleep on a couch in the loungeroom.  The offenders gained entry through an open kitchen window.  They conducted a search of the house.  GB located a double‑barrelled shotgun.  GB woke up the occupant, yelling at him loudly, pointing the shotgun in his face.  The offenders made demands for money, jewellery and other valuables.  When the occupant said he did not have any money the appellant hit him on the head with an unknown object.  The appellant used a belt from the occupant's trousers to bind the occupant's wrists and duct‑taped the occupant's wrists above the belt.  The occupant's ankles were also bound by duct tape.  GB kept the shotgun pointed at the occupant while the appellant tied him up (ts 39 ‑ 40, 53 ‑ 54).

116The offenders searched the house looking for items of value.  They took turns watching the occupant and holding the shotgun.  The occupant was kept tied up for about one hour while property located during the offenders' search was loaded into bags for eventual transport to the offenders' vehicle parked outside the property.  At about 7.15 pm the occupant's wife and 9‑year‑old daughter returned to the property.  Before they entered the property the occupant decided to take action to prevent harm to his family.  The occupant located an iron bar and used it to hit GB.  GB responded by swinging the shotgun at the occupant.  In the struggle the shotgun discharged.  GB also hit the occupant in the head with the shotgun.  The resulting laceration to the top of the occupant's head required eight stitches.  GB also hit the occupant over the back of his right shoulder, causing the stock of the shotgun to snap from the barrel (ts 40 ‑ 41, 54).

117The offenders stole property including money, jewellery and electrical items with an approximate value of $30,012.40.  Some $4,191.40 was recovered from the search of the offenders' residences (ts 41, 55).

118The offending the subject of counts 3 ‑ 5 had a significant and ongoing impact on the occupant and his family - some of the occupant's injuries will progressively worsen regardless of therapy or rehabilitation (ts 55 ‑ 56).  The sentencing judge described the occupant's injuries as significant, ongoing and debilitating (ts 57).

The appellant's personal circumstances

119The appellant was 45 at the time of the offending and 47 at the time of sentencing (ts 60).

120The appellant described having a good upbringing.  He was brought up by his parents with five siblings.  The appellant completed education up to year 10 and was literate and numerate.  He had been employed, primarily as a labourer, during his adulthood (although it appeared from the court‑ordered psychological report that the appellant was currently unemployed and had been largely unemployed throughout his life: pars 2.3 and 8.2).  The appellant had been in his current relationship for 20 years and has three children aged from four to 10 by that partner.  The appellant also has four adult children by previous relationships.  The appellant described suffering the loss of many family members which had a significant impact over his life (ts 60).

121The appellant started drinking alcohol and using cannabis when he was 16.  He began using methylamphetamine when he was about 24.  The appellant went through a three or four‑year period of heavy methylamphetamine use which resulted in his imprisonment in 2005 (ts 60).  The court‑ordered psychological report suggested that the appellant had been able to abstain from methylamphetamine use at times but had relapses which resulted in the appellant committing crimes to support his drug addiction (par 3.3).  That had been the case in the period prior to the commission of offences the subject of counts 1 ‑ 5 (par 3.4).

122The sentencing judge referred to the appellant's extensive prior criminal history (ts 61‑ 62).  Relevantly, the appellant's prior criminal history included:

1.A 2005 3‑year sentence of immediate imprisonment for various offences including attempted aggravated burglary with intent and two offences of burglary and commit.

2.A 2015 12‑month sentence of immediate imprisonment for two burglary offences.

123Ignoring childhood offending, there were many other offences that the appellant committed over the period 1997 to 2022.  The usefulness of detailing all of the offending is limited.  They included approximately 26 convictions for drug offences and multiple burglary offences.  In total the appellant's prior criminal history included three convictions for aggravated home burglary, one conviction for attempted aggravated home burglary, two convictions for home burglary and one conviction for aggravated burglary (place).  There was also some early offending involving violence, but none of those offences were recent.

124In discussions with the author of the court‑ordered psychological report, the appellant stated that the majority of his offences reflected him committing crime to support his methylamphetamine abuse (par 6.2).  The appellant also said that he had been using methylamphetamine for about nine days straight before committing the offences the subject of counts 1 ‑ 5 (par 7.2).

125The sentencing judge considered that the offending the subject of counts 3 ‑ 5 represented a significant escalation in the appellant's offending behaviour (ts 62).

126The appellant was remanded in custody from 2 April 2022 to 21 November 2022 when he was released on home detention bail.  While on home detention the appellant had been participating in counselling for relapse prevention support (ts 60).

GB's personal circumstances

127GB was 36 at the time of the offending and 37 at the time of sentencing (ts 58).

128The sentencing judge described GB's upbringing to the age of 13 as 'good'.  GB grew up with his parents and five younger sisters.  GB also had older siblings with whom he was not raised.  While referring to GB's upbringing as 'good', the sentencing judge also alluded to circumstances whereby, when aged seven or eight, GB had been the subject of sexual abuse on a couple of occasions at the hands of an older male known to his family (a matter disclosed in a court‑ordered psychological report).  The sentencing judge said that this would be taken into account in mitigation.  GB's father passed away when GB was 13 years of age.  After that time GB's mother struggled to cope.  GB only attended school up to year 8 and was unable to read or write (ts 58 ‑ 59).

129In sentencing submissions, counsel for GB asserted that GB had a 'background of disadvantage'.  This was on the basis that, having lost his father at the age of 13, GB had to fend for himself and was not nurtured growing up (ts 49 ‑ 50).  It is unclear whether the sentencing judge addressed this submission.  However, at the sentencing hearing, counsel for the State accepted that GB had a deprived background.  Counsel submitted that any mitigation in this respect needed to be counter‑balanced with a need to protect the community (ts 51).

130GB had been in a relationship with his former partner since he was 16 - they have five children aged between seven and 21 and another who had passed away at the age of three (ts 58).

131GB commenced substance abuse at the age of 13.  He had been using methylamphetamine since he was 16.  The sentencing judge recorded that there were no, or no significant, periods when GB had abstained from the use of methylamphetamine while in the community (ts 58).  GB had attended prison‑based drug and alcohol group intervention previously, but not recently, and had never undertaken any treatment in the community.  At the time of the offending GB had been using methylamphetamine daily while stealing and committing burglaries to fund his methylamphetamine addiction (ts 59).  In discussion with the author of the court‑ordered psychological report GB claimed to be using methylamphetamine on the day of the offending (par 8).

132The sentencing judge described GB's significant prior criminal history (ts 59).  Relevantly:

1.GB's prior criminal history commenced in the Magistrates Court in 2005 where GB had convictions for possessing a weapon with intent to cause fear and disorderly behaviour.

2.GB had been placed on a 6‑month community‑based order (in 2006), had received a 12‑month suspended term of imprisonment for assault occasioning bodily harm (in 2012) and a 12‑month intensive supervision order for a burglary and commit offence (in 2015).

3.In 2017 GB was imprisoned for 5 months for burglary.

4.In 2019 GB received a 12‑month suspended term of imprisonment for home burglary.  The order was breached.  Thereafter GB was imprisoned for 12 months.

133Accordingly, GB had two convictions for burglary (place) and one conviction for home burglary.  GB had a single conviction for drug possession.  GB's prior criminal history also included some violent offending.

134The sentencing judge considered that the offending the subject of counts 3 ‑ 5 represented a significant escalation in GB's offending (ts 59).

The sentencing remarks

135The sentencing judge referred to the offending the subject of counts 1 and 2 as being planned and persistent. Significant property was stolen. However, as count 2 was the grounding offence for count 1, there was to be no additional punishment for the offending the subject of count 2. In that respect the sentencing judge referred to s 11(1) of the Sentencing Act (ts 56).

136The offending the subject of counts 3 ‑ 5 was characterised as being 'very serious examples' of aggravated burglary, robbery and deprivation of liberty offences (ts 56; see also ts 57 ‑ 58).

137The sentencing judge addressed the offenders' personal circumstances in the terms previously discussed.  In the course of doing so:

1.In relation to the appellant, the sentencing judge found:

(a)the appellant's risk of future offending in a violent manner had been assessed as 'moderate' by the psychologist who prepared the psychological report for the court - the most likely scenario in which the appellant would reoffend would involve him failing to take steps to address his substance abuse issues (ts 61);

(b)the appellant had shown victim empathy and was remorseful for his offending (ts 61).

2.In relation to GB, the sentencing judge found:

(a)there was a need for personal deterrence - GB's prior criminal history demonstrated continuous disobedience with the law (ts 59);

(b)GB's risk of future offending in a violent manner had been assessed as 'high' by the psychologist who prepared the psychological report for the court (ts 59 ‑ 60);

(c)GB did not have any victim empathy or insight into his offending behaviour (ts 59).  Nor was he remorseful - GB had minimised his conduct and the sentencing judge was not satisfied that he had demonstrated contrition and a recognition that the offending was morally wrong (ts 62).

138At the appeal hearing, counsel for the appellant emphasised that the sentencing judge had determined that there was a necessity for personal deterrence in relation to GB but there was no equivalent finding in relation to the appellant.  The appellant's counsel highlighted that, in interview for the court‑ordered pre‑sentence report, GB had expressed concerns that next time he may 'kill someone' (p 1).  Counsel for the appellant contrasted this with the appellant's accepted remorse, attempts at rehabilitation and assessed lesser risk of future offending in a violent manner.

139The sentencing judge also noted that the appellant's prior convictions for home burglaries rendered him a repeat offender in relation to counts 1 and 3. See Code s 401B. This meant that, conformably with s 401(4)(b)(i) of the Code, the sentencing judge was required to impose sentences of at least 2 years' imprisonment in respect of those charges (ts 62). While not mentioned by the sentencing judge, it is clear that GB did not fall to be sentenced as a repeat offender for the purpose of counts 1 and 3.

140In terms of mitigating factors, the sentencing judge found as follows in relation to the appellant:

1.The appellant was to be given a discount of 15% pursuant to s 9AA of the Sentencing Act for his pleas of guilty (being relatively late pleas entered on 20 September 2023) (ts 62).

2.The appellant had demonstrated victim insight and remorse (ts 62; see also ts 61).

3.The appellant had engaged in counselling sessions while on home detention bail and had ceased using methylamphetamine since his arrest - he had prospects of rehabilitation from his long‑standing drug use (ts 63).

4.The appellant had the continuing support of his partner and had prospects of employment going forward (ts 63).

141The sentencing judge allowed a lesser s 9AA discount for GB's pleas of guilty. In recognition that the pleas were not at the earliest opportunity, being entered on 29 November 2023, the sentencing judge allowed a discount of 10% (ts 62). The sentencing judge also found mitigation in the events of GB's childhood (ts 62). It appears that, in so finding, the sentencing judge was referring to the sexual abuse GB had suffered as a child rather than accepting GB's counsel's submission that GB had a 'background of disadvantage' (see ts 49). There were no other significant mitigating factors.

142The sentencing judge expressly considered the question of parity.  Her Honour considered the two offenders to be equally culpable in terms of the offending behaviour.  The appellant was said to have more matters in mitigation - he had demonstrated remorse and made attempts to address his drug use.  Also, the appellant had pleaded guilty at an earlier time than GB.  However, the appellant was a repeat offender in respect of counts 1 and 3 (ts 63).

143After referring to the relevant sentencing considerations for offending of this kind, and observing that it was necessary to apply the totality principle, the sentencing judge imposed the sentences mentioned at the commencement of these reasons (ts 63 ‑ 65).

The parity principle

144The question that arises on this appeal is whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed on the appellant and GB.  The question must be considered by reference to each individual sentence as well as the co‑offenders' total effective sentences.

145The legal principles applicable to the parity principle are well established.  The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen[23] has been adopted or reproduced in this court many times:

[23] Ngo v The Queen [2017] WASCA 3 [36] ‑ [40].

The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders.  The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.  The applicable test is objective not subjective.  The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.

An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.  But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.

In Green v The Queen French CJ, Crennan and Kiefel JJ said:

(a)the parity principle is based upon the norm of 'equality before the law';

(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike'; and

(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law'.

Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co‑offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise.

It has often been said that it is desirable for co‑offenders to be sentenced by the same sentencing judge.  Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.  (citations omitted)

146A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[24] apply:  Green v The Queen;[25] EDR v The State of Western Australia.[26]  Consequently, the question raised by the single ground of appeal is whether the lack of disparity in the relevant sentences was open in the exercise of the sentencing discretion; it is not whether this court would have exercised the discretionary judgment in relation to parity differently:  Ho v The State of Western Australia;[27] Diamantopoulos v The State of Western Australia.[28]

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

[25] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32].

[26] EDR v The State of Western Australia [2024] WASCA 61 [60].

[27] Ho v The State of Western Australia [2023] WASCA 160 [39].

[28] Diamantopoulos v The State of Western Australia [2024] WASCA 82 [37].

147As was recently stated by this court in Astone v The State of Western Australia:

Where a sentencing judge has applied the parity principle in relation to a co‑offender's sentence, and no express error is alleged, the question for this court is whether the differentiation made by the sentencing judge, or lack thereof, was open in the exercise of the sentencing discretion.  The issue is not whether this court would have exercised the qualitative and discretionary judgment in relation to parity differently.  The issue is rather whether the result was unreasonable or plainly unjust, such as to give 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.[29]

[29] Astone v The State of Western Australia [2024] WASCA 18 [71].

148The parity principle is concerned with substance rather than form.  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.  The factors that are ordinarily evaluated and taken into account are discussed in Higgins v The State of Western Australia.[30]

[30] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [52] ‑ [53], [184].

The parties' submissions

149The appellant contends that, as no issue is taken with the sentencing judge's conclusion that both offenders were equally culpable for the offending, it is necessary to look to the offenders' personal circumstances and the sentences imposed to assess whether the lack of disparity gives rise to an objectively justifiable sense of grievance.

150The disparity in the total effective sentences is one of six months' imprisonment. The appellant was sentenced to a term of 9 years and 4 months' imprisonment whereas GB was sentenced to a term of 9 years and 10 months' imprisonment. The appellant submits that the disparity of six months' imprisonment is entirely accounted for by the discount given pursuant to s 9AA of the Sentencing Act.  The appellant suggests that, applying the respective discounts to each sentence and reverse engineering from the sentences as imposed, there was a 'starting point' for each offender's total effective sentence of 10 years and 11 months' imprisonment.

151The appellant then points to the following differences in the offenders' respective personal circumstances:

1.The appellant had demonstrated victim insight and was remorseful whereas GB had not shown contrition or expressed genuine remorse.

2.The appellant had taken significant steps to rehabilitate himself.

3.The appellant was subject to onerous home detention bail conditions for 15 months.

4.Comparing the appellant and GB there was, in the appellant's case, a lesser need for specific deterrence and protection of the community.

152The appellant submits that, given these differences, there ought to have been some further meaningful reduction in the sentence imposed on him as opposed to GB.

153The appellant acknowledges that there were two other differences.  First, that the sentencing judge took into account as a mitigating factor that GB had been the victim of childhood sexual abuse.  Second, that the appellant was a repeat offender for the purpose of counts 1 and 3.  GB had prior burglary convictions but was not a repeat offender for the purpose of sentencing.  The appellant contends, however, that the mere fact that the appellant was subject to a mandatory minimum penalty does not of itself bear on the question of parity.  In support of that proposition the appellant refers to this court's recent decision in Thornley v The State of Western Australia.[31]

[31] Thornley v The State of Western Australia [2023] WASCA 107 [47].

154Insofar as the appellant and GB each had a record of offending of the relevant kind, and were not entitled to mitigation on account of being of prior good character, the appellant submits that their respective criminal histories were not a distinguishing feature of any significance.

155In challenging the individual sentences, as part of the appellant's enlarged case at the appeal hearing, counsel for the appellant made oral submissions that largely echoed the appellant's written submissions challenging the total effective sentence.  Counsel pointed out that, with the exception of the sentences imposed in relation to count 3, the appellant and GB received the same sentences.  Accordingly, it was not merely a case of a marked lack of disparity.  It was a case of there being no disparity despite the appellant being accorded a greater s 9AA discount than GB and - on the appellant's case - his personal circumstances justifying a reduction in sentence as against that imposed on GB. Counsel for the appellant contrasted the outcome on counts 4 and 5 with the outcome on count 3 and submitted that the failure to provide for any difference in the sentences imposed meant that the court ought to conclude that a substantial wrong had occurred and the sentencing judge had misapplied the parity principle.

156The State contends that any lack of disparity between the offenders' total effective sentences, and the individual sentences, is justified having regard to the competing sentencing factors applicable to each offender.

157In the unusual circumstances of this case, the State accepts the appellant's analysis in reverse engineering - for parity purposes - an equivalent starting point for each offenders' total effective sentence prior to the discount for the guilty pleas. The State also accepts that, aside from the timing of the guilty pleas and the resulting s 9AA discounts, the sentencing judge appears to have found the other relevant sentencing considerations to be effectively equivalent, on balance, as between the appellant and GB. But the State says that it was open to the sentencing judge to consider that, aside from the pleas of guilty, the competing sentencing factors were effectively equivalent as between the offenders. Accordingly, the State contends that the sentences imposed on the appellant were not unreasonable or plainly unjust in light of those imposed on GB.

158The State characterises the passage from Thornley as relied on by the appellant as being no more than an obiter observation.  Moreover, referring to passages from the subsequent decision of the High Court of Australia in Hurt v The King,[32] the State says that the co‑offenders' differing repeat offender status is relevant to the question of parity and it was appropriate that this be considered by the sentencing judge in considering the question of parity.  The State submits that Thornley should not be followed to the extent it suggests to the contrary.

[32] Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 [54], [58].

159According to the State, all other things being equal, an offender who is subject to a mandatory minimum sentencing regime will receive a greater sentence than an offender - in an unrelated but similar case - who is not subject to that regime.  The State submits that it would be contrary to principle for an offender who is the subject of a mandatory minimum sentencing regime to receive a lesser penalty simply because he or she was fortunate enough to commit an offence with a co‑offender who was not subject to that mandatory minimum sentencing regime.

Consideration and determination

The relevance of the appellant's status as a repeat offender for the application of the parity principle

160The parties take differing positions on the significance, for the application of the parity principle, of the appellant's status as a 'repeat offender' for the purpose of counts 1 and 3.

161This issue cannot affect the parity analysis in relation to the individual sentences imposed in respect of counts 2, 4 and 5.  The appellant's status as a repeat offender for the purpose of the aggravated home burglary offences the subject of counts 1 and 3 does not operate of its own force in relation to the other offences.  Nor, other than indirectly, can this issue affect the parity analysis in relation to the total effective sentences imposed on the appellant and GB.  The appellant's status as a repeat offender can only impact on the total effective sentences so far as the individual sentences imposed in respect of counts 1 and 3 are impacted by the appellant's status and that impact then has a flow‑on effect for the purpose of the total effective sentence.

162One must, in the latter respect, differentiate between the impact of the appellant's status as a repeat offender (something limited to the individual sentences imposed on counts 1 and 3) and the appellant's and GB's respective prior criminal histories.  The latter is something that is relevant across the individual sentences and the total effective sentences - each offender's prior criminal history is something to be taken into account as being relevant to personal deterrence and the protection of the community.

163The appellant was a repeat offender in respect of counts 1 and 3 because, as a person being sentenced for a home burglary, he had at least three 'relevant convictions' - these being, in effect, prior convictions for a home burglary: Code s 401A, s 401B. As a repeat offender, s 401(4) of the Code applied. Relevantly, given the date of the offending and the appellant's status as an adult offender, the primary court was required to comply with the mandatory minimum sentence prescribed by s 401(4)(b)(i). Notwithstanding any other written law the sentencing judge was required to impose a term of imprisonment of at least two years.

164In considering, for the purpose of the individual sentences imposed in respect of counts 1 and 3, the appellant's status as a repeat offender, I do not accept that this court's decision in Thornleyhas the significance that the appellant seeks to attribute to it.  In Thornley a parity issue arose in relation to offending which included a home burglary (this being count 1 on the indictment).  Mr Thornley's co‑offender was indicted as a repeat offender.  In the course of refusing leave to appeal on the ground alleging an infringement of the parity principle the court stated:

We are unable to see in this case how the fact that [the co‑offender] was subject to a mandatory minimum sentence on count 1 of 2 years' imprisonment (as distinct from the prior convictions which engaged the mandatory minimum sentence) had any bearing on the question of parity. In oral submissions, counsel for the appellant did not articulate the rationale behind this submission and, in our view, there is no discernible rationale. In any event, as her Honour stated in her sentencing remarks, because of the difference in [the co‑offender's] and the appellant's respective criminal histories, before reductions for totality considerations, she would have imposed a sentence of 3 years' imprisonment on count 1 in respect of [the co‑offender] whereas the equivalent indicative sentence for the appellant was 2 years' imprisonment [47]. (emphasis added)

165       Thornley does not state any principle of general application.  The court expressly confined its observations to the circumstances of the case before it.  In the circumstances the appellant's reliance on Thornley is misplaced.

166Nor does the State's criticism of Thornley have any basis.  In Thornley the court described the real issue to be determined as being whether the difference in the respective criminal histories of the two offenders justified a greater disparity in the sentence imposed on the appellant [45]. That is readily understandable when it is appreciated that the parity argument was advanced on the basis that there was insufficient disparity between the two offenders' respective total effective sentences [8]. The court considered that, on any objective view, the difference was properly - even generously - reflected in the different sentences that were imposed on the co‑offenders [46].

167Accordingly, the court's parity analysis in Thornley was concerned with the differences in the co‑offenders' prior criminal histories rather than one offender's status as a repeat offender - there being, in any case, no articulation of a rationale to provide a principled basis for parity analysis based on one offender's status as a repeat offender.

168While, for these reasons, the State's criticisms of Thornley may be put aside, the State was correct to submit that the appellant's status as a 'repeat offender' for the purpose of counts 1 and 3 had consequences for the operation of the parity principle in the context of the individual sentences imposed for that offending.  McLure P (Martin CJ and Mazza JA agreeing) recognised as much in Bahar v The Queen.[33]  A mandatory minimum term of imprisonment can create complications for reductions in sentence for mitigatory factors.  On occasions it will not be possible to allow the usual discount for a mitigatory factor.  The result will be that there is a compression of sentences towards the lower end of the range.  The parity principle takes into account the application and effect of relevant sentencing principles.  Accordingly, to the extent that the consequence of statutory minimum is to provide a yardstick, the parity principle yields to and operates in the context of that sentencing regime.

[33] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [56] - [57]. This was referred to, with apparent approval, in R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 [67] and Eldridge v The State of Western Australia [2020] WASCA 66 [37].

169In the latter respect, the decision of the High Court of Australia in Hurt v The King has settled the correct approach to the application of a mandatory minimum sentence.  Prescribed minimum sentences provide a yardstick for the exercise of the sentencing discretion [43], [54], [57] ‑ [58].  Edelman, Steward and Gleeson JJ approved as correct an approach which treats the minimum term of imprisonment as serving the double function of generally restricting sentencing power as well as providing a yardstick, corresponding with the maximum term of imprisonment, for the exercise of the sentencing discretion [57] ‑ [58].  Their Honours observed that:

As a yardstick that imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, the minimum term operates to increase the appropriate term of imprisonment generally for that offence [54].

170Once this is appreciated, there are implications for the operation of the parity principle in the context of an aggravated home burglary offence, contrary to s 401(2)(a) of the Code, where one of two co‑offenders is a repeat offender.

171Let it be assumed in relation to such an offence that all relevant sentencing considerations and factors are equal but for one offender's status as a repeat offender.  In practice that will seldom be the position; and it is not the position in the present case.  It is, however, a convenient assumption.  It is to be expected that, when compared to his or her co‑offender, the repeat offender will receive an increased sentence as a consequence of the mandatory minimum sentencing regime to which the repeat offender is subject.  The difference between the sentence imposed on the repeat offender and the sentence opposed on the co‑offender is likely to be proportionately greater in the least worst category of case.  The effect of one offender's status as a repeat offender may be expected to be progressively less significant as the seriousness of the offending increases.

The appellant's parity challenge to the individual sentences

172There is no infringement of the parity principle in relation to the individual sentences imposed on counts 1 and 2.  In both cases the appellant and GB received the same sentence.  There was a sentence of 2 years' imprisonment, reduced from 3 years' imprisonment for totality, for the offending the subject of count 1; and no further punishment was imposed for the offending the subject of count 2.

173The lack of disparity in the individual sentences imposed on count 2 is explained by the application and effect of relevant sentencing principle. In the case of both the appellant and GB no further punishment was imposed as a result of the application of s 11(1) of the Sentencing Act. Viewed objectively the lack of disparity is incapable of giving rise to a legitimate or justifiable sense of grievance insofar as it is the inevitable outcome of the applicable sentencing legislation. That is also the position with the individual sentences on count 1. The sentence of 2 years' imprisonment was the mandatory statutory minimum that the sentencing judge was required to impose under s 401(4)(b)(i) of the Code given the appellant's status as a repeat offender. In circumstances where no lesser sentence could have been imposed, as a matter of law, the lack of disparity between the sentence imposed on the appellant and the sentence imposed on GB did not engage the parity principle. It too is explained by the application and effect of relevant sentencing principle.

174It is convenient to deal with the individual sentences imposed on counts 4 and 5 before addressing the sentences imposed on count 3.

175There is an incongruity between the individual sentences imposed on counts 4 and 5 and the sentences imposed on count 3.  With count 3, mindful of the additional mitigating factors available to the appellant, the sentencing judge imposed a lesser sentence on the appellant than her Honour imposed on GB.  The appellant was sentenced to a term of 6 years and 4 months' imprisonment whereas GB was sentenced to a term of 6 years and 10 months' imprisonment.  There was, however, no difference in the co‑offenders' respective sentences on counts 4 and 5.  The appellant and GB received the same sentences - 4 years and 6 months' imprisonment for the offending the subject of count 4 and 1 year's imprisonment for the offending the subject of count 5 (reduced from 3 years' imprisonment for totality).

176Senior counsel for the State acknowledged, candidly, that this was 'a bit counter‑intuitive' (appeal ts 30). I agree. In relation to count 3 the sentencing judge evidently accepted that the relevant sentencing considerations and factors justified the appellant receiving a lesser sentence than GB notwithstanding the appellant's status as a repeat offender. That conclusion is understandable given her Honour's findings in relation to the mitigating factors available to each offender and the greater s 9AA discount accorded to the appellant. Once that position is reached - and it is recalled that the sentencing judge considered the offenders to be equally culpable in terms of the objective circumstances of the offending - it was inevitable that the appellant should have received a lesser sentence than GB for the offending the subject of counts 4 and 5. That is all the more so when the appellant's status as a repeat offender is irrelevant for the purpose of counts 4 and 5.

177Insofar as the sentencing judge imposed the same sentences on the appellant and GB for the offending the subject of counts 4 and 5 - but imposed a lesser sentence on the appellant for the offending the subject of count 3 - I am driven to conclude that there must have been some misapplication of principle on the part of the sentencing judge.

178It is, however, not necessary to rely solely on the above reasoning.  The conclusion of error is also readily apparent from the marked lack of disparity in the individual sentences imposed on counts 4 and 5 where, having regard to the differences between the co‑offenders, the lack of disparity is unjustifiable and objectively gives rise to a legitimate sense of grievance and the appearance that justice has not been done.  In that respect a number of matters operated in the appellant's favour when his personal circumstances and available mitigating factors are compared with those of GB.

179The matters in the appellant's favour are:

1.The additional 5% s 9AA discount for the appellant's pleas of guilty.

2.The appellant's accepted remorse.

3.The appellant's 15‑month period of home detention bail.  It is accepted that where, through home detention bail with restrictive bail conditions, an offender has had considerable constraints on his or her liberty over a substantial time, that should be taken into account: R v Hough.[34]  It should not, however, be thought that home detention bail should be taken into account as if the appellant was held on remand.  In the present case it is also relevant that part of the period of home detention bail is attributable to the timing of the appellant's pleas of guilty.

4.The appellant's rehabilitation efforts during his period of home detention bail including counselling and abstention from drug use.

5.The assessment that the appellant was at a lower risk of future violent reoffending.

[34] R v Hough [2002] WASCA 42 [98], [123], [167].

180The weightiest of these matters is the additional 5% discount for the appellant's pleas of guilty.

181Given the additional s 9AA discount accorded to the appellant, and the other mitigating factors, it was to be expected that the sentences to be imposed on the appellant in relation to the offending the subject of counts 4 and 5 would be less than the sentences to be imposed on GB for the same offending unless GB had other mitigating factors in his favour which offset the matters in the appellant's favour. There was some mitigation in GB's upbringing which was not available to the appellant. However, this was a relatively minor mitigating factor. The State also relied on GB partially co‑operating with the police while the appellant chose not to do so. In my opinion no real weight attaches to that co‑operation. The co‑operation, such as it was, was limited and incomplete. GB sought to downplay the extent of his offending.

182The State also relied on the appellant's more extensive prior criminal history.  I agree that the appellant's criminal record is more extensive than GB's criminal record.  Relevantly, the appellant had committed more home burglary offences than GB (although, as previously discussed, the appellant's status as a repeat offender was irrelevant for the purpose of counts 4 and 5).  The appellant's prior criminal history was relevant to the exercise of the sentencing discretion to the extent that it accentuated the need for personal deterrence and the protection of the public.  But these sentencing considerations and factors were of equal if not more weight in relation to GB.  In that regard it is of significance that the sentencing judge thought it necessary to make an express finding that there was a need for personal deterrence as far as GB was concerned but made no such finding in relation to the appellant.  The appellant's accepted remorse and attempts at rehabilitation also moderated the necessity for personal deterrence and the protection of the public (albeit that the necessity remained given the appellant's extensive criminal record).

183When the relevant sentencing considerations and factors are balanced and weighed, and proper regard is had to the principle that equal justice requires differential treatment of persons according to relevant differences between them, I am comfortably satisfied that it was not open to the sentencing judge to impose the same individual sentences on the appellant and GB for the offending the subject of counts 4 and 5.  The result was unreasonable or plainly unjust.  Viewed objectively, it gives rise to a legitimate or justifiable sense of grievance and the appearance that justice has not been done.

184The appellant's single ground of appeal succeeds in relation to the individual sentences the subject of counts 4 and 5.

185I have reached a different conclusion in relation to the individual sentences imposed for the offending the subject of count 3.  Here there was a 6 month difference in the individual sentences.  The appellant was sentenced to a term of 6 years and 4 months' imprisonment; GB was sentenced to a term of 6 years and 10 months' imprisonment.  With one exception the sentencing considerations and factors relevant to the co‑offenders were materially the same as for the offending the subject of counts 4 and 5.  The exception is that, for the purpose of count 3, the appellant was a repeat offender.  That, for reasons I have already mentioned, was a sentencing factor that justified an increased sentence if all other things were equal.  However, given the objective seriousness of the offending - and the extensive prior criminal histories of the appellant and GB - the appellant's status as a repeat offender did not bear greatly in the exercise of the sentencing discretion.

186It might be that a different sentencer might have provided for an increased disparity in the sentences imposed on the appellant and GB for the offending the subject of count 3.  But the mere circumstance that a different sentencing judge might have allowed the appellant a lesser sentence compared to GB does not bespeak appellable error.  In considering the operation of the parity principle and the degree of disparity in the sentences imposed on the appellant and GB for the offending the subject of count 3 it must be recalled that the predominant sentencing considerations for offending of this kind are general and personal deterrence.  Matters personal to the offender, while relevant, are subsidiary considerations.  In all the circumstances the 6‑month disparity provided for by the sentencing judge is not an outcome that is unreasonable or plainly unjust.  It is not, in my opinion, objectively capable of giving rise to a legitimate or justifiable sense of grievance or the appearance that justice has not been done.

187The parity based challenge to the appellant's sentence of 6 years and 4 months' imprisonment on count 3 must be dismissed.

The appellant's parity challenge to the total effective sentence

188The appellant also challenged his total effective sentence, invoking a contention based on an alleged lack of a marked disparity between his total effective sentence of 9 years and 4 months' imprisonment and GB's total effective sentence of 9 years and 10 months' imprisonment.  It is not necessary to determine that challenge.  The success on the appellant's challenge to the individual sentences means that there must be a resentencing on counts 4 and 5.  The sentence on count 5 was taken into account in determining the appellant's total effective sentence.  Accordingly, it will be necessary for this court to provide for a new total effective sentence in any event.

189Something should, however, be said of the appellant's argument in support of the challenge to the total effective sentence - in particular it is useful to make some observations in response to the suggestion that it is possible to 'reverse engineer' the two offenders' total effective sentences to an equal 'starting point' of 10 years and 11 months' imprisonment.

190Sentencing is not a mechanical or mathematical exercise to be broken down into some set of component parts. In many cases it is neither possible nor desirable to reverse engineer the components of a sentence. The practicality of the exercise is especially doubtful in circumstances where there are mitigating factors other than pleas of guilty. These difficulties are all the more so where the quantitative reconciliation is attempted in relation to a total effective sentence. The discount provided for under s 9AA of the Sentencing Act is concerned with the 'head sentence' as defined in s 9AA(1), ie the sentence that would have been imposed for an individual offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. It makes no sense to reverse engineer a s 9AA discount to reach a starting point for a total effective sentence. While, no doubt, the mitigating effect of pleas of guilty must be reflected not only in the individual sentences imposed for the offending but also in the total effective sentence, other considerations will impact in determining a total effective sentence. For example, in many cases totality considerations will invalidate analysis based on reverse engineering of the kind suggested in the present case.

191There is also a danger that, were it to adopt the kind of reverse engineering suggested in the present case, this court might be thought to be giving its stamp of approval to sentencers structuring sentences in that manner.  It would be an error for a sentencing judge to do so.  The orthodox practice is first to fix the appropriate sentences for individual offences and then to consider questions of cumulation or concurrency: Mill v The Queen;[35] Pearce v The Queen;[36] Johnson v The Queen;[37] Nguyen v The Queen.[38]  The need to ensure proper sentencing on each count is particularly important where questions of parity may arise between co‑offenders: Pearce v The Queen [48].

[35] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63.

[36] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45].

[37] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26], [44].

[38] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37].

Resentencing

192This court has the necessary materials to resentence.

193The appellant applied, by an application in an appeal dated 5 February 2025, to admit further evidence in the appeal in the event that the appeal was to be allowed and there was to be a resentencing.  In substance the further evidence consisted of transcripts of additional sentencing hearings involving the appellant and GB.  On 4 July 2024 the appellant was sentenced on a stealing charge and a trespass charge in the Magistrates Court.  The offending occurred on 29 March 2022 (ie after the offending the subject of counts 1 ‑ 5).  The appellant was fined $750.  On 7 March 2024 GB was sentenced on a burglary charge in the Magistrates Court.  The offending occurred in mid‑December 2021 (ie some three months before the offending the subject of counts 1 - 5).  GB was sentenced to a term of 9 months' imprisonment to be served concurrently with the terms of imprisonment that GB was serving in respect of counts 1 ‑ 5.

194The appellant's application in an appeal dated 5 February 2025 should be granted to enable this court to resentence based on the presently existing facts and circumstances.  The additional offending is relevant to each offender's respective prior criminal history.  It is also relevant that GB's total effective sentence of 9 years and 10 months' imprisonment includes his punishment for a burglary offence in addition to those offences committed in common with the appellant.

195The court was also informed, without objection by the State, that having been imprisoned the appellant has been working as a peer support worker whilst in prison.  It is to the appellant's credit that he has been assisting other prisoners in that capacity.

196I will not repeat the facts and circumstances relevant to the offending and the appellant's personal circumstances.  Those matters have been dealt with above.  The applicable sentencing principles for offending of this kind are also well known and need not be restated.  There was, in any case, no suggestion that the sentencing judge misapprehended or misapplied the generally applicable sentencing principles relevant to offending of the present kind.  The error as alleged and found concerns an infringement of the parity principle.  Accordingly, the resentencing exercise in which I am now engaged is largely concerned with addressing those parity considerations.

197In resentencing I would not depart from the sentences imposed by the sentencing judge on counts 1 ‑ 3.  Appellable error has not been established in relation to those individual sentences.  In any case, as to counts 1 and 2, for reasons already given, no different sentence should be imposed.

198The appellant must be resentenced on counts 4 and 5. In doing so I would allow the same discount under s 9AA of the Sentencing Act for the appellant's pleas of guilty as the sentencing judge, namely, a discount of 15%.  Having regard to the sentences imposed on GB for the offending the subject of counts 4 and 5, and the differences in the relevant sentencing considerations and factors as between the appellant and GB in respect of those offences, before allowing for any considerations of totality I would sentence the appellant to 4 years and 2 months' imprisonment for the offending the subject of count 4 and 2 years and 9 months' imprisonment for the offending the subject of count 5.

199In terms of the total effective sentence to be imposed on the appellant for the whole of the offending the subject of counts 1 ‑ 5, having regard to the issue of totality and considering again the whole of the relevant sentencing considerations and factors applying to each of the appellant and GB, I would impose a total effective sentence of 9 years' imprisonment on the appellant.  I would provide for this by making the sentence on count 3 the head sentence.  The sentence on count 5 should be reduced to 8 months' imprisonment for totality and the sentences on counts 1 and 5 should be served cumulatively on the sentence imposed on count 3 and each other.  The sentence on count 4 is to be served concurrently with the sentence on count 3.

200I appreciate that this means that, while there will be a 10‑month differential in the appellant's and GB's total effective sentences, GB's total effective sentence of 9 years and 10 months' imprisonment also includes the concurrent term of 9 months' imprisonment for the additional burglary offence committed by GB.  If the appellant has any grievance in this respect it is, viewed objectively, not a legitimate or justifiable grievance and does not give the appearance that justice has not been done.  To the contrary, this is the result of the application and effect of the totality principle to the circumstances of GB's offending and GB's personal circumstances.

201Otherwise the total effective sentence should be backdated to commence on 28 June 2023 and the appellant should remain eligible for parole.

Conclusion and orders

202For these reasons I would make orders as follows:

1.The time for the appellant to file a notice of appeal in relation to the sentences imposed on him in the District Court of Western Australia on 19 February 2024 on indictment KAL 66 of 2022 is extended to 8 April 2024.

2.The appellant has leave to appeal on the sole ground of appeal in his appellant's case dated 2 July 2024.

3.The appeal is allowed.

4.The appellant has leave to file the affidavit of Miranda Jane Ajduk affirmed 5 February 2025 as additional evidence on the appeal.

5.The sentences imposed on the appellant by the District Court of Western Australia on 19 February 2024 on indictment KAL 66 of 2022 are set aside.  In substitution for those sentences the following new sentences are imposed on the appellant:

(a)count 1 - 2 years' immediate imprisonment;

(b)count 2 - no further punishment;

(c)count 3 - 6 years 4 months' imprisonment;

(d)count 4 - 4 years 2 months' immediate imprisonment;

(e)count 5 - 8 months' immediate imprisonment.

6.The new sentence on count 1 is to be served cumulatively on the new sentence on count 3; and the new sentence on count 5 is to be served cumulatively on the new sentence on count 1.  The new sentence on count 4 is to be served concurrently with the new sentence on count 3.

7.The new total effective sentence is 9 years' imprisonment.

8.The new total effective sentence is backdated to commence on 28 June 2023.

9.The appellant is eligible for parole.

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

CG

Associate to the Hon Justice Vaughan

20 MARCH 2025