Collard v Director of Public Prosecutions (WA)

[2022] WASC 297

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   COLLARD -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA)  [2022] WASC 297

CORAM:   MCGRATH J

HEARD:   12 AUGUST 2022

DELIVERED          :   2 SEPTEMBER 2022

FILE NO/S:   SJA 1044 of 2022

BETWEEN:   RICKIESHA LEE COLLARD

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Respondent

FILE NO/S:   SJA 1051 of 2022

BETWEEN:   KARLEIGHA FAYE KICKETT

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E CAMPIONE

File Number            :   PE 4912 of 2022 (Collard)

PE 4914 of 2022 (Kickett)

Catchwords:

Criminal law - Sentencing - Co-offenders - Parity principle - Sentence of co‑offender manifestly inadequate - Turns on own facts

Legislation:

Criminal Code (WA), s 146
Sentencing Act 1995 (WA), s 6(1), s 89(3)

Result:

Collard v Director of Public Prosecutions (WA) - SJA 1044 of 2022

Extension of time in which to appeal granted

Leave to appeal granted on ground 1
Appeal allowed
Sentence of 6 months' immediate imprisonment reduced to 2 months' immediate imprisonment

Kickett v Director of Public Prosecutions (WA) - SJA 1051 of 2022

Extension of time in which to appeal granted
Leave to appeal granted on ground 1
Appeal allowed

Sentence of 6 months' immediate imprisonment reduced to 2 months' immediate imprisonment

Category:    B

Representation:

SJA 1044 of 2022

Counsel:

Appellant	:	Ms S H King
Respondent	:	Mr R P Arndt

Solicitors:

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

SJA 1051 of 2022

Counsel:

Appellant	:	Mr C M Townsend
Respondent	:	Mr R P Arndt

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Beins v The State of Western Australia [No 2] [2014] WASCA 54

Councillor v Hart [2018] WASC 418

Donnachy v Riegert & Anor [2004] WASCA 48; (2004) 144 A Crim R 260

Fullgrabe v The State of Western Australia [2006] WASCA 138

Giangiulio v The State of Western Australia [2022] WASCA 77

Goddard v The Queen [1999] 21 WAR 541

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33]

Hansen v The State of Western Australia [2013] WASC 205

Hooker v The Police [2006] WASC 188

Krakouer v Durka (Unreported; WASC Library No 980595; 14 October 1998) (Miller J)

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

McConnell v The State of Western Australia [2020] WASCA 59

NGO v The Queen [2017] WASCA 3

Paskov v Hull [2008] WASC 163

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Voisey v Taylor (Unreported; WASC Library No 8273; 30 May 1990) (Franklyn J)

Walker v The State of Western Australia [2022] WASCA 100

Woods v Glynn [2007] WASC 136

MCGRATH J:

1. This is an appeal against sentence by Ms Kickett and Ms Collard who were both convicted on a plea of guilty to one charge of escaping from lawful custody, contrary to s 146 of the Criminal Code (WA).[1]  Another co‑offender, Ms Little, also pleaded guilty to escaping lawful custody.  Ms Little does not appeal her sentence.

   [1] Prosecution notice lodged 5 February 2022, charge PE 4914 of 2022 (Ms Kickett); Prosecution Notice lodged 5 February 2022, charge PE 4912 of 2022 (Ms Collard).

2. On 4 March 2022, Ms Kickett and Ms Collard were sentenced before the same learned Magistrate who imposed a term of immediate imprisonment of 6 months in respect of both appellants.  On 27 April 2022, the co-offender, Ms Little, appeared before a different Magistrate who imposed a $500 fine, with Ms Little having already spent 31 days in custody for the offence. 

3. Ms Kickett and Ms Collard now appeal on the same ground contending that their respective sentences of immediate imprisonment breach the parity principle.[2]  The respondent, whilst accepting that both Ms Kickett and Ms Collard have a justifiable sense of grievance and therefore, that the parity principle has been breached, contends that the court should not intervene and allow the appeal because to do so would require the court to impose a sentence that is an affront to justice or alternatively, that is manifestly inadequate.  Therefore, the question that I must decide is whether the sentences imposed, which are conceded by the respondent to be a breach of parity, leaving each appellant with a justifiable sense of grievance, should be allowed to stand. 

   [2] Notice of Appeal filed 22 June 2022 (Ms Kickett) and Notice of Appeal filed 10 June 2022 (Ms Collard).

4. For the following reasons I have determined that Ms Kickett and Ms Collard's appeals must be allowed and that the terms of immediate imprisonment imposed must be reduced. 

Application for extension of time in which to appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required. An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[3]

   [3] Criminal Appeals Act 2004 (WA), s 8.

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[4]

   [4] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts‑Smith JJA).

3. Both appellants make an application for an extension of time to appeal.  Both Ms Kickett and Ms Collard explain the delay in commencing the appeal due to the fact that the co-offender, Ms Little, was not sentenced until 23 days after the date when their sentence was imposed.[5] 

   [5] Affidavit of Mr Christopher Michael Townsend, legal practitioner, sworn 27 June 2022 in support of Ms Kickett's application for an extension of time in which to appeal.  Affidavit of Ms N R Sinton, legal practitioner, affirmed 17 May 2022 in support of Ms Collard's application for an extension of time in which to appeal.

4. An extension of time in which to appeal is granted to both appellants.

Procedural history - the sentencing of the appellants and co-offender

1. Ms Kickett and Ms Collard were sentenced before the same learned Magistrate but in separate hearings, with Ms Collard's sentencing immediately following the sentencing of Ms Kickett. 

Facts of offending

1. Both appellants and Ms Little were sentenced on the same following facts.[6]  The appellants and Ms Little were serving terms of imprisonment for other offending.  On 20 December 2021, Ms Kickett was transferred to the Boronia Pre‑Release Centre for Women in Bentley.  On 17 January 2022, Ms Collard was also transferred to the same pre-release centre.  Ms Kickett shared a room with Ms Little and Ms Collard at the Boronia Pre‑Release Centre with another pre-release prisoner.  On 4 February 2022, Ms Kickett and Ms Collard, in company with Ms Little, jumped the perimeter fence and went to a nearby house.  On 6 February 2022, the appellants and Ms Little were arrested and returned to custody.  The appellants and Ms Little were at large for approximately 48 hours.

Sentencing remarks and personal circumstances

Ms Kickett's sentencing hearing and personal circumstances

[6] ts 3 (04/03/2022) (Ms Kickett); ts 4 (04/03/2022) (Ms Collard); ts 6 (27/04/2022) (Ms Little).

1. Ms Kickett was born on 15 August 1986 and therefore, was 35 years of age at the date of sentencing.  Ms Kickett had previously been incarcerated for various offences including aggravated home burglary, possession of stolen property, breach of bail undertaking and aggravated robbery.  Ms Kickett's criminal record was described by the learned sentencing Magistrate as a '20‑page record', which is 'an utterly appalling number of offences'.[7] 

   [7] ts 4 (04/03/2022) (Ms Kickett).

2. In mitigation, counsel for Ms Kickett submitted that Ms Kickett's father was suffering a serious illness and that she acted impulsively in wishing to visit her father 'to say goodbye.'[8]  Ms Kickett has undertaken programs, including the Wandoo Program which she completed in December 2021.[9] The learned Magistrate, in sentencing Ms Kickett, observed that the only mitigating factor was the plea of guilty for which a 25% discount was given pursuant to s 9AA of the Sentencing Act 1995 (WA).[10]  Her Honour stated that escaping lawful custody was an inherently serious charge with the dominant sentencing consideration being general deterrence.  Accordingly, her Honour found that the only appropriate disposition was an immediate term of imprisonment of 6 months to be served cumulatively with the term already being served by Ms Kickett.

Ms Collard's sentencing hearing and personal circumstances

[8] ts 4 (04/03/2022) (Ms Kickett).

[9] ts 4 (04/03/2022) (Ms Kickett).

[10] ts 5 (04/03/2022) (Ms Kickett).

1. Ms Collard was born on 11 March 1989 and therefore, was 32 years of age at the date of sentencing.  Ms Collard had a criminal history comprising stealing offences, minor drug convictions and other minor convictions.  The most serious offence for which Ms Collard was convicted was aggravated burglary for which she was a sentenced prisoner at the time she escaped from lawful custody.

2. During her incarceration, Ms Collard engaged in the Holyoake and the Reset and Palmerston programs to address her substance abuse issues.  Ms Collard has children with whom she has a close, ongoing relationship.

3. In mitigation, counsel for Ms Collard submitted that she was waiting for her children to join her in the pre-release centre.  However, she became frustrated at the delay and therefore left the pre-release centre.  Counsel observed that Ms Collard had completed a number of programs in prison addressing her substance abuse issues and that she was positively engaging including by seeking accommodation for when she was released.[11] The learned Magistrate granted Ms Collard a 25% discount for the plea of guilty at the first reasonable opportunity pursuant to s 9AA of the Sentencing Act.  Her Honour observed that whilst Ms Collard 'deeply regretted' her actions, the offending was serious and that a term of imprisonment was required as a deterrent.  The learned Magistrate stated that Ms Collard's criminal record was 'not as bad' as Ms Kickett's criminal record but that 'there's little to choose between you and your co‑offender.'[12]  The learned Magistrate imposed a term of imprisonment of 6 months to be served cumulatively on the sentence already being served by Ms Collard.

Ms Little's sentencing hearing & personal circumstances

[11] ts 5 - 6 (04/03/2022) (Ms Collard).

[12] ts 7 (04/03/2022) (Ms Collard).

1. Ms Little was born on 28 July 1990 and therefore, was 31 years of age at the date of her sentencing.  Ms Little has a significant criminal history including convictions for burglaries, dishonest offences and breach of orders.  Ms Little has previously been sentenced to terms of imprisonment.  Ms Little's entrenched history of substance abuse, namely methylamphatamine and alcohol, is a primary factor in her history of offending.[13] Ms Little was dealing with significant personal problems including domestic violence issues where her mother was a victim and that her father had recently attempted suicide.[14] 

   [13] Pre-sentence report for Ms Little dated 15 March 2022.

   [14] ts 4 (27/04/2022) (Ms Little).

2. Ms Little represented herself at her sentencing hearing.  Ms Little explained her offending as being an unplanned, spur of the moment decision to escape to see her parents.[15]  Ms Little submitted that she was remorseful and that she escaped for only three days, during which time she committed no offences.[16] 

   [15] Pre-sentence report for Ms Little dated 15 March 2022.

   [16] ts 3 - 4 (27/04/2022) (Ms Little).

3. The learned Magistrate was not informed that the co-offenders had been sentenced.  The prosecutor submitted that a term of imprisonment was not required.[17]  His Honour stated that Ms Little had already served over one month for the offence on remand which 'effectively is like two-months in many ways.'[18]  His Honour imposed a fine of $500 given that Ms Little pleaded guilty and had 'done some time'.[19]

   [17] ts 6 (27/04/2022) (Ms Little).

   [18] ts 6 (27/04/2022) (Ms Little).

   [19] ts 7 (27/04/2022) (Ms Little).

Respondent's contention regarding s 86 of the Sentencing Act

1. There is one matter raised by the respondent concerning the approach of the learned Magistrate who sentenced Ms Little.  I will deal this contention now to ensure that it is understood that I do not accept the respondent's submission. 

2. The respondent submitted that it was not possible for the learned Magistrate, in sentencing Ms Little, to impose the same sentence as was imposed on the appellants because Ms Little had completed her term of imprisonment. Therefore, a term of imprisonment of 6 months was not permissible under s 86 of the Sentencing Act.  Accordingly, the respondent submitted that 'the disparity between the appellants and Ms Little which has occurred is therefore the inevitable result of the statutory provisions against which the appellants and Ms Little were sentenced and their antecedents, specifically the appellants' status as sentenced prisoners and Ms Little's status as a remand prisoner.'[20]

   [20] Respondent's written submissions dated 29 July 2022 [58].

3. I do not accept the respondent's contention.  It is abundantly clear that the learned Magistrate who imposed sentence on Ms Little was unaware that Ms Kickett and Ms Collard had been convicted and sentenced.  The prosecutor made no submissions concerning the co-offenders.  Moreover, the prosecutor submitted that a non-custodial sentence should be imposed on Ms Little.  The learned Magistrate at no time, either in discourse with Ms Little, or in his sentencing remarks, made any reference to the co-offenders, Ms Kickett and Ms Collard, and whether either had been convicted or sentenced.

4. The Director of Public Prosecutions (WA) is the respondent to the appeals by Ms Kickett and Ms Collard.  The appeals by Ms Kickett and Ms Collard were commenced seven days before the appeal period expired with respect to Ms Little.  The respondent had ample notice that Ms Kickett and Ms Collard were raising the issue of parity. 

5. The respondent did not appeal Ms Little's sentence. Counsel for the respondent did not submit, at the hearing of this appeal, that the respondent, after due consideration, determined not to appeal Ms Little's sentence because of the application of s 86 of the Sentencing Act.  It is clear that the respondent did not at any stage assess whether an appeal against the sentence imposed on Ms Little had merit.

6. The respondent's position on this appeal is that a 6-month immediate term of imprisonment was an appropriate disposition in respect of Ms Kickett and Ms Collard.  On the reasoning of the respondent, it would have been arguable, if the respondent had appealed Ms Little's sentence, to contend that a term of imprisonment greater than 6 months immediate imprisonment could have been imposed on Ms Little.  Ms Little did not enter her plea of guilty at the first reasonable opportunity.  Further, given that Ms Little was not serving a term of imprisonment at the date of her sentencing the totality principle had no application in respect of the length of the term of imprisonment, unlike in the case of Ms Kickett and Ms Collard, who were serving prisoners. 

7. The respondent has approached the application of s 86 of the Sentencing Act assuming that the sentence on each co-offender must be the exact same and that therefore, s 86 prohibited the learned Magistrate achieving parity when sentencing Ms Little. The terms of imprisonment imposed on co-offenders need not be identical.

8. Properly understood, in this case, the disparity was associated with an erroneous concession by the prosecutor that significantly benefited Ms Little and further, most regrettably, that the learned Magistrate was not informed about the sentences imposed on the appellants. 

Parity Principle

1. The authoritative consideration of the parity principle was stated by the High Court in Lowe v The Queen[21] and Green v The Queen.[22] Consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice and is a fundamental element in any rational and fair system of justice.  It finds expression in the parity principle which requires that like offenders should be treated in a like manner.  The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form.

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

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

2. The legal principles applicable to the parity principle have been outlined and applied by the Court of Appeal on numerous occasions.[23]  In NGO v The Queen, Buss P stated:[24]

   [23] See recent considerations of the parity principle: Giangiulio v The State of Western Australia [2022] WASCA 77; Walker v The State of Western Australia [2022] WASCA 100.

   [24] NGO v The Queen [2017] WASCA 3 [36] - [39].

   [36] The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen[1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin[1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia[2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).

   [37] 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. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).

   [38] In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:

   (a) the parity principle is based upon the norm of 'equality before the law' [28];

   (b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

   (c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].

   [39] 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.

3. The respondent contends that to achieve parity in this case, the court would be required to impose a sentence that is an affront to justice or alternatively, a sentence that is manifestly inadequate. The respondent submitted that on its proper construction s 6(1) of the Sentencing Act, which provides that 'a sentence imposed on an offender must be commensurate with the seriousness of the offence', does not permit a manifestly inadequate sentence to be imposed and therefore there is no discretion to impose one. 

1. The High Court in Green v The Queen[25] addressed the question of when an unjustifiable disparity may not lead to an appeal being allowed.  The majority in Green v The Queen[26] stated:

   [33] There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowethat question was answered explicitly in the affirmative by Mason J (92) and less explicitly but to like effect by Dawson J, with whom Wilson J agreed (93) … On the other hand, as Simpson J correctly pointed out in R v Steele, (95) the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, 'an affront to the proper administration of justice' (96). Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one (97). Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.

   [25] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33.

   [26] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] [fn 97] (Murray J).

2. Therefore, Green v The Queen is authority for the proposition that an appeal court has the power to reduce a co-offender's sentence to a level that is manifestly inadequate (but not to a level that is an affront to the administration of justice) in order to avoid disparity but may, in the exercise of the discretion, decline to do so.  In McConnell v The State of Western Australia,[27] the Court of Appeal affirmed that under the common law the parity principle may permit a court to impose what it considers to be a manifestly inadequate sentence (but not an affront to justice) but it does not require the court to do so.

   [27] McConnell v The State of Western Australia [2020] WASCA 59 [51].

3. However, the High Court in Green v The Queen stated that the proposition that if relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one, which seems to have been implicit in the construction placed on s 6(1) of the Sentencing Act by Murray J in Goddard v The Queen.[28] I observe that the High Court did not consider the proper construction of s 6 of the Sentencing Act, rather referred to Murray J in Goddard v The Queen as an illustration of the application of the principle being enunciated.

   [28] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33], [fn 97] (Murray J).

4. In Goddard v The Queen,[29] Murray J held that s 6(1) of the Sentencing Act deprived the sentencing court of the power to impose a manifestly inadequate sentence on the basis of the parity principle.  Murray J stated:

   [61] The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing Judge and the appellate court required to substitute a sentence which should have been passed by the court at first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender. That is the dictate of the common law now enshrined in this State in the Sentencing Act 1995 (WA) s 6(1)which provides that "a sentence imposed on an offender must be commensurate with the seriousness of the offence" determined as the section goes on to provide. In that case, the proper application of the parity principle will lead the court making the comparison with the earlier sentence to impose a sentence which is as close to the previous sentence as may be achieved without error on its part.

   [29] Goddard v The Queen (1999) 21 WAR 541 [61].

5. Kennedy J in Goddard v The Queen did not consider s 6 of the Sentencing Act but stated that that appeal courts 'may intervene in the event of there being a manifest disparity in the sentences imposed upon co-offenders, notwithstanding that they regard the sentences imposed upon the applicant as falling within the range of the exercise of a sound discretionary judgment and notwithstanding that they regard the co-offenders sentences as being inadequate.'[30]  Pidgeon J agreed with Murray J in result, but it is unclear whether he declined to reduce the relevant sentence as a matter of discretion or because of an absence of power.[31]

   [30] Goddard v The Queen (1999) 21 WAR 541 [31] (Kennedy J).

   [31] Goddard v The Queen (1999) 21 WAR 541, 556 - 557.

6. Given the contention of the State, this is a case that requires a consideration of whether the application of the parity principle and s 6(1) of the Sentencing Act requires that the sentence to be imposed must be proportionate to the gravity of the offence and therefore, a manifestly inadequate sentence may not be imposed.

7. In Beins v The State of Western Australia, [No 2][32] her Honour, McLure P, stated that s 6 of the Sentencing Act does not deprive the court of the discretion to reduce a co-offender's sentence to a level that is manifestly inadequate in order to avoid disparity.  Her Honour stated:

   [32] Beins v The State of Western Australia [No 2] [2014] WASCA 54.

   [43] In my respectful opinion, Kennedy J is correct. Part 2 of the Sentencing Act contains general sentencing principles. As already noted, s 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Under s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. Section 6(3) provides:

   Subsection (1) does not prevent the reduction of a sentence because of -

   (a) any mitigating factors; or

   (b) any rule of law as to the totality of sentences.

   [44] Section 8(1) defines mitigating factors as follows:

   Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. (emphasis added)

   [45] There is no express reference in the Sentencing Actto many of the common law principles of sentencing, including general deterrence and parity to name two. However, there can be no doubt that those two common law sentencing principles are part of the law of Western Australia. Whether that is because the Sentencing Actaccommodates the application of common law principles of sentencing, in the same way as the Crimes Act 1914 (Cth), as explained in Hili v The Queen (2010) 242 CLR 520 [25], or because the Sentencing Act is not intended to cover the field to the exclusion of common law principles which apply unless expressly or impliedly excluded.

   [46] In determining whether the [Sentencing Act]expressly or impliedly excludes a common law sentencing principle, the statutory construction principle of 'legality' would come into play. That requires clear and unambiguous statutory language (or a test to like effect) in order to exclude the common law sentencing principles in whole or in part: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290, 298; Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309, 328 - 329.

   [47] In my view, the proper construction of s 6 of the Sentencing Act is the same, with or without the benefit of the principle of legality. A sentence must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account, among other things, any mitigating factors. Mitigating factors go beyond matters that inform the culpability of the particular offender to include factors that decrease the extent to which the offender should be punished. The latter accommodates the application and operation of the common law parity principles to reduce a sentence. More generally, the Sentencing Act does not unambiguously or at all manifest an intention to exclude or modify the common law parity principle which is rooted in fundamental notions of fairness and equality before the law.

8. In Beinsv The State of Western Australia [No 2], Mazza JA assumed in the appellant's favour that s 6(1) of the Sentencing Act is not a statutory impediment to the appeal court imposing an inadequate sentence where the parity principle has been infringed but that it was not necessary to determine the issue.  Pullin JA considered the issue but it was not necessary to decide the issue given that his Honour found that to achieve parity with the co-offender in that case would be an affront to the proper administration of justice.

9. I respectfully agree with the reasoning of McLure P concerning the proper construction of s 6 of the Sentencing Act. That is, s 6 of the Sentencing Act does not alter the common law principle that an appeal court has the power to reduce a co-offenders sentence to a level that is manifestly inadequate but not to the level that is an affront of the administration of justice.  The appeal court may, though, in the exercise of its discretion, decline to do so.  If the Parliament wishes to exclude a significant common law principle then the Parliament should do so with clear and unambiguous statutory language. 

Assessment of appeal

1. Therefore, I must determine whether to reduce the term of imprisonment imposed by the learned Magistrate, in respect of Ms Kickett and Ms Collard to achieve parity with Ms Little, would result in a sentence that is an affront to the administration of justice.

2. I am mindful, that if an appeal is allowed on the ground of an unjustifiable disparity between the appellant's sentence and a co‑offender's sentence, the court must, on resentencing, have regard to the sentence imposed on the co-offender and give it appropriate weight.  However, the court is not required to achieve identity of punishment.[33]  Marked and unjustified disparity may be mitigated by the reduction of the sentence appealed against to a level, which, although lower, is not an affront to the administration of justice.

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

3. The maximum penalty for the offence of escaping lawful custody is 7 years' imprisonment.  Upon the summary conviction the jurisdictional maximum penalty is 3 years' imprisonment and a fine of $36,000.

4. It is not possible to discern a range for this type of offending. The appellants did not refer to any authorities.  The respondent relied upon Woods v Glynn[34] and Mennie v The Queen.[35]

   [34] Woods v Glynn [2007] WASC 136.

   [35] Mennie v The Queen (Unreported, WASC, Library No 3063, 23 October 1980), 3 (Wallace J).

5. I have considered the range in Shortland v Stone.[36]  For this appeal I considered the authorities: Krakouer v Durka;[37] Councillor v Hart;[38] Hooker v The Police;[39] Voisey v Taylor;[40] Hansen v The State of Western Australia;[41] Paskov v Hull;[42] Donnachy v Riegert & Anor;[43] and Fullgrabe v The State of Western Australia.[44]

   [36] Shortland v Stone [2019] WASC 217.

   [37] Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998) (Miller J).

   [38] Councillor v Hart [2018] WASC 418.

   [39] Hooker v The Police [2006] WASC 188.

   [40] Voisey v Taylor (Unreported, WASC, Library No 8273, 30 May 1990) (Franklyn J).

   [41] Hansen v The State of Western Australia [2013] WASC 205.

   [42] Paskov v Hull [2008] WASC 163.

   [43] Donnachy v Riegert & Anor [2004] WASCA 48; (2004) 144 A Crim R 260.

   [44] Fullgrabe v The State of Western Australia [2006] WASCA 138.

6. Each case will depend upon its own factual circumstances.  The authorities do not support the respondent's proposition that a lengthy term of imprisonment is necessarily imposed for the offence of escaping lawful custody.

7. An escape of lawful custody that involves aggravating factors will undoubtedly attract a lengthy term of imprisonment.  In Fullgrabe v The State of Western Australia, the appellant was one of 11 prisoners who escaped from the holding cells at the Supreme Court.  Two prisoners overpowered the guards and nine other prisoners escaped, some on foot and others by hijacking a vehicle on St Georges Terrace.  The appellant escaped and got into one hijacked vehicle before becoming the driver of another hijacked vehicle.  The vehicle was driven recklessly in a pursuit. The appellant was convicted of stealing a vehicle and driving the vehicle recklessly.  A term of imprisonment of 2 years for the escape from lawful custody was reduced to 1 year imprisonment on appeal.  The appellant was also sentenced in respect of a number of other offences.

8. In Councillor v Hart, the appellant escaped from a prison before surrendering the next day to authorities.  The appellant had youth as a mitigating factor.  Corboy J stated that a term of imprisonment of 4 months would have been imposed but that the term was reduced to 1 month to give credit for time spent in custody. 

9. In Hansen v The State of Western Australia, the appellant was convicted of escaping lawful custody after hiding in the roof of a house that he was intending to burgle.  In order to escape the police, the appellant kicked through the roof tiles and jumped from roof to roof of other houses before being apprehended. A term of imprisonment of 1 month was imposed, which formed part of a total effective sentence for other offences.

10. In Woods v Glynn, the appellant escaped from Wooroloo Prison and was not apprehended for two months.  On appeal, his sentence was reduced to 3 months' imprisonment.  In reducing the term of imprisonment, Jenkins J was mindful of the effect that the term of imprisonment of 6 months 1 day would have on the parole eligibility of the appellant.

11. A principle that may be discerned from the authorities is that general deterrence is a significant sentencing factor for the offence of escaping from lawful custody.[45]  

    [45] Donnachy v Riegert & Anor [2004] WASCA 48; (2004) 144 A Crim R 260 [100].

12. The offence of escaping lawful custody may occur in a myriad of factual circumstances.  There are a number of factors that are relevant to determining the relative seriousness of the specific offending.

13. Whether the escape was from a prison is highly relevant factor in determining the seriousness of the offending.  An escape from prison ordinarily will result in a disruption to other prisoners and custodial officers, which may in turn lead to further procedures being applied to inmates which engenders resentment.  Further, an escape from prison brings the prison system into disrepute and strikes at the procedures in the prison. 

14. The methods employed in effecting escape and, in particular, whether any violence was involved and whether there was extensive planning and outside assistance, are highly relevant in determining the seriousness of the offending. 

15. The period for which the offender was at large, whether the offender surrendered himself voluntarily and the conduct of the offender when at large is also relevant. 

16. Both Ms Kickett and Ms Collard's offending was not premediated and did not involve a sophisticated escape from a prison.  The escape did not involve any outside planning.  The offending was the consequence of poor consequential thinking.  Both appellants wished to spend time with their respective families and impulsively left the facility. The appellants did not damage property in escaping.  The offending did not result in further procedures being applied to other inmates.  Further, there is no suggestion that the offending caused any disruption to the facility.

17. Both Ms Kickett and Ms Collard's offending was an unnecessary spur of the moment action.  Ms Kickett and Ms Collard did not commit any offences whilst in the community and did not flee the jurisdiction.  Both remained at a residence and upon being located by the police, each amicably surrendered to the arresting officers within 48 hours of escaping.

18. The offending by Ms Kickett and Ms Collard was at the lower end of offences of escaping lawful custody.

19. In imposing sentence a relevant factor is that a prisoner serving a term of imprisonment for escaping lawful custody is not eligible to be granted parole. Section 89(3) of the Sentencing Act provides that a parole eligibility order must not be made in respect of a prescribed term. Section 85(1) of the Sentencing Act, relevantly, defines 'prescribed term' as meaning a term imposed for escaping lawful custody.  This is a factor relevant to the sentencing discretion.[46] 

    [46] Woods v Glynn [2007] WASC 136 [30].

20. Moreover, both Ms Kickett and Ms Collard were serving a term of imprisonment at the date of sentencing. Therefore, the totality principle was a relevant sentencing consideration in determining the length of the term of imprisonment. The learned sentencing Magistrate in imposing sentence did not refer to the totality principle. The Magistrate ordered that the term of imprisonment was to be served cumulative on the terms of imprisonment that both Ms Kickett and Ms Collard were serving. In my view, the length of the term of immediate imprisonment was required to be reduced for purposes of totality. In applying the totality principle the learned sentencing Magistrate should have been mindful of the application of s 89(3) of the Sentencing Act.

21. After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors, I am of the view that imposing a term of imprisonment of the same length that was served by Ms Little, namely 31 days, would result in a sentence that is an affront to the administration of justice.  Ms Little had served 31 days in custody.  In all the circumstances, I reduce the term of immediate imprisonment of 6 months imposed on Ms Kickett and Ms Collard to a term of immediate imprisonment of 2 months.  In so doing, I have mitigated the unjustified disparity by the reduction of the sentence appealed against to a level, which, although lower, is not an affront to the administration of justice.

22. If it is contended that the terms of immediate imprisonment of 2 months are manifestly inadequate then that matters not, for the reason that the parity principle permits such a sentence to be imposed.

Conclusion

1. Accordingly, Ms Kickett and Ms Collard's appeals against sentence must be allowed.  The terms of immediate imprisonment imposed on Ms Kickett and Ms Collard by the learned Magistrate is reduced from 6 months' immediate imprisonment to 2 months' immediate imprisonment.  I will hear the parties concerning the date upon which the respective terms of imprisonment will commence.

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

AS

Associate to the Honourable Justice McGrath

2 SEPTEMBER 2022