Djanghara v Reeves
[2017] WASC 72
•17 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DJANGHARA -v- REEVES [2017] WASC 72
CORAM: MCGRATH J
HEARD: 10 MARCH 2017
DELIVERED : 17 MARCH 2017
FILE NO/S: SJA 1096 of 2016
BETWEEN: ANDREW DJANGHARA
Appellant
AND
PETER DAMIAN REEVES
Respondent
FILE NO/S :SJA 1097 of 2016
BETWEEN :JUSTIN JOSEPH DJANGHARA
Appellant
AND
PETER DAMIAN REEVES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE K TAVENER
File No :KK 9 of 2016, KK 10 of 2016, KK 11 of 2016
Catchwords:
Criminal law - Sentencing appeal - Unlawful assembly - Whether significant discount was given for early plea - Suspended sentence - Parity principle - Manifestly excessive sentences - Re-sentence
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 63, s 74A(2)(a)
Sentencing Act 1995 (WA), s 9AA
Young Offenders Act 1994 (WA)
Result:
SJA 1096 of 2016
Leave to appeal granted
Appeal dismissed
SJA 1097 of 2016
Leave to appeal granted
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
SJA 1096 of 2016
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr J F Bennett
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
SJA 1097 of 2016
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr J F Bennett
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AA v Anthony [2016] WASC 127
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Durwood v Belton [2012] WASC 79
Forkin v The State of Western Australia [2013] WASCA 51
Green v The Queen [2001] HCA 49; (2011) 244 CLR 462
I (A Child) v The State of Western Australia [2006] WASCA 9
Lowndes v The Queen (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Tsiaras [1996] 1 VR 398
Ryder v Abbott [2007] WASC 41
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stoysich v The State of Western Australia [2014] WASCA 208
Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472
MCGRATH J:
Introduction
The appellants seek leave to appeal against suspended terms of imprisonment imposed for the offence of taking part in an unlawful assembly contrary to s 63 of the Criminal Code (WA). The gravamen of the appeal is that the sentences were manifestly excessive and also breached the parity principle.
The appeal was filed out of time and, therefore, an extension is required. An affidavit was affirmed by the appellants' counsel which explains the circumstances of the delay. Despite the late instructions from the appellants and therefore delay in making the application, the Legal Aid Commission acted diligently upon receiving instructions. Accordingly, leave is granted for an extension of time to appeal.
I have determined that leave to appeal should be granted on all grounds for both appellants. However, I have determined that only the appellant Justin Djanghara's appeal should be allowed. The appellant Andrew Djanghara's appeal should be dismissed.
Magistrates Court proceedings
The appellant Andrew Djanghara was charged with two offences being one charge of taking part in an unlawful assembly contrary to s 63 of the Criminal Code and one charge of behaving in a disorderly manner contrary to section 74A(2)(a) of the Criminal Code. The appellant Justin Djanghara was charged with one offence of taking part in an unlawful assembly contrary to s 63 of the Criminal Code.
On Thursday, 10 March 2016 the appellant Andrew Djanghara appeared in the Magistrates Court at Kalumburu and entered a plea of guilty to both charges. This was the first reasonable opportunity to do so. The facts that were read to the presiding magistrate are as follows:[1]
The Kalumburu Aboriginal Community has witnessed ongoing feuding between the Maraltadj and the Djanghara family groups over the past 12 months. Feuding has resulted in numerous violent clashes in public between the two families and has caused considerable disruption to the whole community. There has been many attempts by agencies and the community to heal the feud, which, to date, have all been unsuccessful.
Over the weekend of 2 and 3 January 2016, tensions between the two families again flared, and police attended to five separate incidents involving the groups and their use of violence, threats and intimidation against each other. Several video recordings were made by police of the behaviour from both sides.
The environment in Kalumburu was hostile, and people left the community to be away from the continued fighting. Despite repeated police intervention, the feuding continued, and at 11.40 am on Sunday, 3 January 2016, police attended and filmed a large, unruly gathering between the two sides.
Djanghara family members armed themselves with large rocks and group - and a group attended Napier Close in Kalumburu and continued to yell threats and obscenities at the Maraltadj family, who were in the front yard of their own address. The Maraltadj side also armed themselves with weapons and shouted threats and challenges to fight in retaliation.
The accused in this incident had armed himself with a large rock and, together with seven male family members, made their way along Napier Close to where a number of Maraltadj members, mainly women and children, were present at a house. The group confronted the Maraltadj family and yelled abuse and threats at them and challenged them to fight, while members of the accused's family threw large fist-sized rocks at the rivals' house.
The accused's family continued to yell abuse and behave in a threatening manner towards the other family, creating a significant disturbance. The incident went on for some time before the accused and his family returned to their own home, continuing the abuse as they went. The accused was later arrested and charged with the matter now before the court.
In regards to the disorderly, the Kalumburu Aboriginal Community has witnessed ongoing feuding between the two families over the past 12 months, as previously stated. Over the weekend of 2 and 3 January, tensions between the families flared, as previously stated, and at 10.08 am on Sunday, 3 January, a member of the Maraltadj family walked along King Edward Street with his partner and their two young children. The accused was visiting a relative's house on King Edward Street.
When the family walked past the house, accused was observed by police to begin yelling and swearing at the family as they walked along the street. Accused was on the front verandah of the house and, on seeing police, went inside the house and continued to yell abuse at the family as they walked past. The accused was later arrested in relation to the matter and charged.
[1] ts 2 ‑ 3 (10 March 2016; Andrew Djanghara).
Counsel for the appellant Andrew Djanghara at the magistrate's court hearing accepted that the appellant was a senior person who should be standing back during the unlawful assembly. Counsel accepted that 'it is difficult to argue against the penalty being escalated to the next level, being imprisonment' but that the term should be suspended.[2]
[2] ts 5 (10 March 2016; Andrew Djanghara).
On Thursday, 10 March 2016 the appellant Justin Djanghara appeared in the Magistrates Court at Kalumburu and entered a plea of guilty to the one charge. This was the first reasonable opportunity to do so. The prosecutor stated that the facts are the same as previously read.[3] That can only be reasonably understood as a reference to the facts read in respect to the appellant Andrew Djanghara. Counsel for the parties accepted in submissions that is the case.
[3] ts 2 (10 March 2016; Justin Djanghara).
Counsel for the appellant Justin Djanghara accepted that the appellant was at the front of the group and that he was calling them to a fight.[4] Further, his client's instructions were that he was the one particularly wanting it to be a fair fight or to be some resolution.[5] In mitigation it was stated that the appellant Justin Djanghara was not carrying any items. It was recognised that he had a relevant criminal history.
[4] ts 2 (10 March 2016; Justin Djanghara).
[5] ts 2 (10 March 2016; Justin Djanghara).
Sentencing remarks
The magistrate's sentencing remarks in respect to the appellant, Andrew Djanghara, were as follows:[6]
Could you stand, Mr Djanghara. I've looked at your history, and since had effectively no criminal history - no significant criminal history until 2007, and that was in Nimbin. But in Kalumburu, since late 2007, you've got yourself into trouble every so often, and that trouble appears to arise from puberty, and people gathering together and threatening other families, and committing violence on other families.
You now have to show the community that that can't continue. The punishment today for you being involved in that type of activity has been fines, and that hasn't changed your behaviour at all, so the circumstances - the facts told by the police suggest that the families still keep on fighting. Some say someone is going to get - again - seriously injured or worse. It's inevitable. They start off as little events and a spark happens and something far worse happens.
And in telling you that, you already know that; you're probably already seen that. So you simply can't be involved anymore because your presence - your standing in your family - your seniority in your family means other people are encouraged to join in, and that can't happen. You now have the obligation towards the young boy, I saw today. So you really have to be out of this. You can't get involved in this sort of behaviour any further.
I regard the taking part in unlawful assembly, bearing in mind your history of disorderly behaviours which have been dealt with by significant fines, is now at the stage where we're looking at imprisonment. So I've looked at imprisonment and I feel that's the appropriate disposition for you. There's your history, but for the various factors that have been raised - your plea of guilty, your current involvement in the community - positive involvement in the community, not becoming involved in these sorts of fights - that the offence will be - the imprisonment will be suspended.
That means for a period of six months - that's only a short period, but I will tell you why in a minute - for that period of suspension, if you get involved in an offence that carries imprisonment, you're looking at going straight to jail. You understand? The other thing is that that's now on your record. Suspended imprisonment for the unlawful assembly. So if you become involved in further activities, either after the six months, that's on your record and the courts start looking at sending you to jail when they see you're still becoming involved.
You have to stop becoming involved, tell other to stop becoming involved. There comes a time when it has to stop. It must stop for you otherwise there will be jail, jail and so on. So you have your other obligation to the young boy. Okay? So I will take that into account. So for the unlawful assembly there will be seven months imprisonment suspended for six months. The disorderly behaviour … I impose a fine of $300.
[6] ts 2 ‑ 3 (10 March 2016; Andrew Djanghara - Sentencing remarks).
The magistrate's sentencing remarks in respect to the appellant, Justin Djanghara, were as follows:[7]
The difficulty for you, Mr Djanghara, with your history of assaults and violence, if you join in and if not lead this unlawful assembly, then you're looking at imprisonment yourself. But I will take into account your plea of guilty and the personal circumstances raised by your counsel, but I still intend to impose a term of imprisonment, and I will suspend that term of imprisonment. It will be for a longer period of time because you're obviously a key factor in some of the violence in this community. I appreciate what you're saying about the other side, but you can't respond to them.
[7] ts 4 ‑ 5 (10 March 2016; Justin Djanghara).
Appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[8] An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[9]
[8] Criminal Appeals Act 2004 (WA) s 9(1).
[9] Criminal Appeals Act 2004 (WA) s 8.
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.[10] The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[11]
[10] Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
[11] Criminal Appeals Act 2004 (WA) s 14.
Both appellants raise the same three respective grounds of appeal being:
1.The learned sentencing magistrate erred in imposing a sentence of imprisonment, albeit suspended, this sentence being manifestly excessive in all of the circumstances.
2.The extent of the disparity between the appellant's sentence and that of his co‑offenders who received fines and community based orders was unjustifiable and infringed the parity principle.
3.The learned sentencing magistrate erred in law in his application of s 9AA of the Sentencing Act1995 (WA).
In respect to both appellants an application was made at the appeal hearing to add the third ground of appeal. I gave leave to do so. I will consider each ground in respect to each of the appellants. I will first consider ground 2.
Ground 2 - parity
The parity principle was stated by the Court of Appeal of Western Australia in Stoysich v The State of Western Australia[12] as follows:
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 R [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623-624 (Dawson J); Postiglione v R [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 Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of 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.
In Green v R [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';
(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'. [footnotes omitted]
[12] Stoysich v The State of Western Australia [2014] WASCA 208, [39] ‑ [41] (Buss JA).
Ultimately, what is necessary is that there is a proper relationship between the sentences imposed on co‑offenders. This requires a comparison of the sentence imposed on each offender, an evaluation of their involvement in the commission of the offence and their antecedents. The greater the dissimilarity between each of these factors, the less likely that the parity principle has been infringed. Further, the parity principle serves also to justify significantly different penalties where the factors of dissimilarity exist between co‑offenders.[13]
[13] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
The appellants have relied upon the sentences imposed upon co‑offenders, Clarence Djanghara, Douglas Dan, Timothy Djanghara, Peter Ellis, Mitchell Oxtoby and a juvenile offender. The appellants have sought leave to adduce the sentencing transcripts and prosecution notices in respect to the co‑offenders.[14] I ordered that the appellants may adduce that material. I note that in respect to Peter Ellis and Mitchell Oxtoby only the prosecution notices are available. Given the passage of time it is considered not possible that the transcript would become available.
[14] Application filed by the Appellant on 22 February 2017.
I will outline each of the persons and consider their respective roles and antecedents.
Timothy Djanghara
The appellants contend that Timothy Djanghara was sentenced on the same facts and was fined $1,400. On 8 April 2016, Timothy Djanghara pleaded guilty at the first reasonable opportunity to one charge of taking part in an unlawful assembly contrary to s 63 of the Criminal Code. In addition, the offender pleaded guilty to two counts of disorderly conduct. That offending was not directly related to the unlawful assembly. The facts in respect to the unlawful assembly charge stated that:[15]
The accused in this instance had armed himself with a large fist-sized rock and together with several family members made their way along Napier Close to where the a number of the Moreditch family members, mainly women and children, were present at the house. The group confronted the Moreditch family and yelled abuse and threats at them and challenged them to fight while members of the accused's family threw large fist-sized rocks at the rival's house.
[15] ts 3 (8 April 2016; Timothy Djanghara).
In mitigation, the offender's counsel referred to a recording that showed the offender coming into vision holding a rock and he then turned and walked away. At no time did he throw any rocks but he accepted that he yelled.[16] Counsel submitted at the Magistrates Court hearing that of all the offenders Timothy Djanghara was the least criminally culpable. In particular, counsel referred to a psychological report that outlines his cognitive impairment. The magistrate was informed that the psychological report stated that Timothy Djanghara required 24 hour supervision, monitoring and guidance. Counsel noted that Timothy Djanghara, due to cognitive impairment, was unable on occasions to control his behaviour.
[16] ts 6 (8 April 2016; Timothy Djanghara).
It is clear that the antecedents of Timothy Djanghara set him apart from the appellants. The magistrate delivered very short sentencing remarks but observed that whilst the court considered imposing a suspended term of imprisonment, a breach was likely. It is clear that given the discourse with counsel, the magistrate was most concerned about the cognitive impairment.
The relevance of psychological or mental impairment at sentencing was stated in R v Tsiaras.[17]
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[17] R v Tsiaras [1996] 1 VR 398, 400.
Therefore, the two main distinguishing factors in respect to Timothy Djanghara that justifies the disparity in sentencing with the appellants are his respective role and his antecedents. The magistrate whilst cognisant of the psychological report did not expressly state the mitigating effect of the mental impairment. It may be concluded that he was not an appropriate vehicle for either personal or general deterrence. Further, that his moral culpability was reduced.
Douglas Dann
On 28 April 2016, at the Magistrates Court in Derby before a different magistrate, Mr Dann pleaded guilty to one charge of an offence of taking part in an unlawful assembly contrary to s 63 of the Criminal Code. In addition, Mr Dann was convicted on his own plea of other unrelated offending.
Mr Dann was 22 years old and entered a plea at the first reasonable opportunity. The offender's counsel provided an outline of the facts.[18] It is difficult to discern the facts relied upon by the prosecution given that the sentencing hearing was conducted through discourse with counsel.
[18] ts 6 (28 April 2016; Douglas Dann).
Counsel for Mr Dann stated that his client got involved with the unlawful assembly by endeavouring to protect his little brother from involvement. He did so by taking items away. However, he ultimately ended up being involved by shouting and swearing abuse at the other family.[19] His Honour in sentencing remarks stated that Mr Dann only gets in trouble due to his family and on this occasion 'he's picking up all these things that his brother was going to ditch during an unlawful assembly. And his whole idea was not to get involved. But, in the end, he got involved by shouting around. Probably threatening the other mob'.[20]
[19] ts 6 (28 April 2016; Douglas Dann).
[20] ts 11 (28 April 2016; Douglas Dann).
It is clear that the respective role of Mr Dann was significantly less than the two appellants. That finding was correctly reflected in the sentence imposed by the magistrate. The disparity in sentence between the appellants and Mr Dann cannot engender a justifiable sense of grievance.
Clarence Djanghara
On 10 March 2016, Clarence Djanghara was convicted on his own plea of one count of disorderly behaviour. The facts upon which he pleaded contended that he was acting in a disorderly manner whilst yelling abuse at an opposing family group.[21] A fine of $500 was imposed. As the magistrate noted only a fine was available.
[21] ts 4 (10 March 2016; Clarence Djanghara).
The offending of Clarence Djanghara is of no support to the appellants' claim of disparity. The offender's culpability is significantly less and is reflected in the offence of which he was convicted.
A juvenile
On 10 March 2016, before the same magistrate, a juvenile was convicted on his own plea, at the first reasonable opportunity, of one offence of taking part in an unlawful assembly contrary to s 63 of the Criminal Code. In addition, the juvenile was sentenced for three other unrelated offences. The juvenile was 15 or 16 years of age at the time of the offending. The magistrate imposed a 9 month youth community based order.
When comparing co‑offenders, one of whom is a juvenile, the parity principle has limited application.[22] The purposes of sentencing vary greatly between juveniles and adult offenders. The juvenile was sentenced under the principles in the Young Offenders Act 1994 (WA) whereas adult offenders are sentenced under the Sentencing Act 1995 (WA).[23]
[22] Freiberg A, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (3rd ed, 2014) [6.210].
[23] I (A Child) v The State of Western Australia [2006] WASCA 9, [72] (Steytler P).
The magistrate appeared to rely upon the facts as read for the previous matters concerning the unlawful assembly offending.[24] Counsel for the juvenile observed that his client needed direction and education and that his offending is due to the presence of older males influencing him.[25] The magistrate in his sentencing remarks observed that the 'idea is to keep you out of trouble'.[26] Further, 'that's what we're trying to do: to stop you from fighting and getting involved in all the fighting in this community, which has to stop. So we will place you on an order'.[27]
[24] ts 4 (10 March 2016; juvenile).
[25] ts 5 ‑ 6 (10 March 2016; juvenile).
[26] ts 6 (10 March 2016; juvenile).
[27] ts 6 (10 March 2016; juvenile).
The prosecutor did not endeavour to characterise the offending in any particular way. The prosecutor, at the hearing, did not make any submissions or allege any facts contending that the juvenile had any aggravating role in the offending such as holding a weapon or throwing any items.
The sentence imposed on the juvenile was most understandable. The magistrate was sentencing a juvenile who had none of the aggravating features of the appellants.
Peter Ellis & Mitchell Oxtoby
Mr Ellis, who was 25 years of age, pleaded guilty and was fined $1,000. Mr Oxtoby, who was 22 years of age, pleaded guilty and was fined $1,000.
Neither the transcript nor any record is available to provide necessary particulars of the respective roles and personal circumstances of Mr Ellis and Mr Oxtoby. Accordingly, other than noting that fines were imposed I am unable to discern any facts or make any findings relevant to the grounds of appeal.
The appellant Andrew Djanghara, in comparison with other co‑offenders which I have considered above, was sentenced as a senior member of the family whose presence encouraged other offenders. Further, he was armed with a large rock. His level of offending was much greater than the other co‑offenders. In addition, the appellant Andrew Djanghara's antecedents were not favourable with previous offending of this type which had resulted in fines in excess of $4,000.
The appellant Justin Djanghara, in comparison with the other co‑offenders which I have considered, was sentenced as the person who led the unlawful assembly. The appellant Justin Djanghara was at the front of the group and actively called out to other family members to fight.[28] Significantly, the appellant Justin Djanghara's antecedents include a history of violence and assault and he had previously served a term of imprisonment.[29]
Conclusion - ground 2
[28] ts 2 (10 March 2016; Justin Djanghara).
[29] ts 4 (10 March 2016; Justin Djanghara).
I am in agreement with the respondent's characterisation of both appellants as being involved at a high level in the unlawful assembly as leaders. The appellant Justin Djanghara was the leader and instigator. The appellant Andrew Djanghara was a leader and influenced others to be involved. That level of culpability does not apply to any other offender. Whilst I grant leave on ground 2 to both appellants, I do not consider that the ground has been made out by either appellant.
Ground 3 - s 9AA of the Sentencing Act 1995
By ground 3 the appellants plead that the magistrate erred in law in his application of s 9AA of the Sentencing Act. It is a statutory requirement in Western Australia that the discount afforded for a plea of guilty be quantified and expressly stated by the judicial officer.[30] In Forkin v The State of Western Australia[31] the majority affirmed that where there is to be reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons. That is not so in this case. His Honour did not state the discount to be given to either appellant. That was an error.
[30] Sentencing Act 1995 (WA) s 9AA.
[31] Forkin v The State of Western Australia [2013] WASCA 51 [21] (McLure P).
Given that the magistrate did not expressly state the discount afforded for the plea of guilty nor in his reasons outline the factors, if any, that he considered relevant in determining the discount, it is not possible to determine the discount.
The respondent observes that the magistrate was not obliged to apply the statutory maximum of 25% for the reason that the character and benefit to the State, and to any victim of or witness to the offence, depends upon the circumstances of the particular case. Further, the prosecution case was strong. I accept that they are factors that are relevant to determining the extent of the discount afforded. The difficulty is that the magistrate did not consider any such factors.
In respect to the appellant Justin Djanghara, counsel correctly observed that if no further reduction for any other factors was made, the magistrate must have started at the maximum penalty and given a discount of 16.67%.
In respect to the appellant Andrew Djanghara it is contended that if the maximum discount of 25% was applied then the starting point was therefore 9 months and no other factors in mitigation were held to be applicable.
Conclusion - ground 3
I find that the magistrate did err by not stating the discount to be afforded in respect to both appellants. I consider that, in all the circumstances, a significant discount should have been afforded to both appellants. Doubt may attend to whether a significant discount was afforded to the appellant Justin Djanghara. However, the sentence imposed upon the appellant Andrew Djanghara is not inconsistent with a significant discount being afforded for the early plea of guilty. Ultimately, the question is whether the sentence imposed was manifestly excessive or whether a different sentence ought to be imposed given the error of the magistrate in applying s 9AA by not stating the discount afforded as required by the legislation. I will consider this issue after considering ground 1.
Ground 1 - manifestly excessive
The ground contends that the sentence imposed in respect to the offence was manifestly excessive. The ground therefore asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[32] It is not enough in respect to a sentencing appeal to contend that the appellate court might have exercised its discretion in a different manner. There must be error.[33]
[32] Dinsdalev The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
[33] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. At the appeal hearing counsel for the appellants confirmed that the complaint was both in respect to the type of sentence and the length of the term of imprisonment. The first contention of the appellants is that a different type of sentence should be imposed. In the event that contention is not accepted, the length of the suspended term of imprisonment should be reduced.
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[34]
Maximum sentence
[34] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
Section 63 of the Criminal Code provides that the maximum penalty is a fine of $12,000 and a term of imprisonment for 12 months.
The place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question
Both appellants' offending may be characterised as being part of a group of seven males that violently threatened a group of people that comprised mainly women and children and attacked their house.[35] Rocks were thrown at the house.[36] The incident went on for some time.[37]
[35] ts 3 (10 March 2016; Andrew Djanghara).
[36] ts 3 (10 March 2016; Andrew Djanghara).
[37] ts 3 (10 March 2016; Andrew Djanghara).
The appellant Andrew Djanghara was the senior family member who acted to encourage others to be involved.[38] He was armed with a large rock.[39] His role was pivotal and not merely incidental. The appellant Justin Djanghara was part of the group. The magistrate found that he was a key factor in the violence in the community. On this occasion his actions included calling upon others to fight. He did not carry a weapon but the others did.
[38] ts 4 (10 March 2016; Andrew Djanghara).
[39] ts 2 (10 March 2015; Andrew Djanghara).
The offending is at the higher end for offences of unlawful assembly contrary to s 63 of the Criminal Code. The offending was marked by aggressive and violent behaviour by a group who were throwing offensive weapons at another family comprising mainly women and children. Further, the offending must be understood in the context of a community marked by the discord between the two groups. The facts, which were accepted at sentencing, referred to the flare ups over the weekend resulting in the police attending five separate incidents involving groups using violence, threats and intimidation. The consequence was that people left the town. The final occurrence that weekend resulted in the offending involving the appellants.
Personal circumstances
The appellant Justin Djanghara has a significant criminal record which was described by the magistrate as being a history of assaults and violence.[40] That is a most apposite description of the criminal record. In mitigation, the appellant Justin Djanghara pleaded guilty at the first reasonable opportunity. The magistrate recognised the plea of guilty but did not state the discount to be afforded for that plea. The respondent accepts that the magistrate therefore, did not comply with the statutory requirement.
[40] ts 4 (10 March 2016; Justin Djanghara).
The appellant Andrew Djanghara has a criminal record which includes a previous offence under s 63 of the Criminal Code and a history of disorderly behaviour which has been dealt with by fines. Most of that offending has occurred in the local community of which he is a part of. The magistrate recognised that the appellant Andrew Djanghara was positively involved in the community.[41] The magistrate recognised the early plea of guilty but did not state the discount to be afforded pursuant to s 9AA of the Sentencing Act. However, the sentence imposed is not inconsistent with a significant discount being given.
[41] ts 2 (10 March 2016; Andrew Djanghara - Sentencing remarks).
A further submission made by the appellant Andrew Djanghara was the statement by the magistrate that 'if those amount of fines haven't changed behaviour, you would start to look at imprisonment … you're trying to find a penalty that changes behaviour'.[42] An offender's culpability is not increased due to the fact that previous sentences have not achieved the purpose for which they were imposed.[43] The magistrate's observation must be understood in context. The comment of the magistrate was made during discourse with counsel who actively agreed with the proposition that personal deterrence was a highly relevant sentencing factor.[44] The magistrate expressed the view that previous sentences had not deterred the appellant. Personal deterrence was a highly relevant sentencing consideration. In the sentencing remarks his Honour returned to the continuing fighting and that past sentences being fines had not changed behaviour. I understand his Honour was emphasising the need for personal deterrence. His Honour did not expressly state that he was finding as an aggravating factor that a previous sentence had not achieved the purpose for which it was imposed.
Range of sentences imposed
[42] ts 4 (10 March 2016; Andrew Djanghara).
[43] Sentencing Act1995 (WA), s 7(c); Durwood v Belton [2012] WASC 79 [29] (Pritchard J).
[44] ts 4 ‑ 5 (10 March 2016; Andrew Djanghara).
There is no established range of sentences for this type of offending. Endeavouring to find a clear pattern of the range of penalties is impeded by the different circumstances in which this type of offence may occur. In any event, the range of sentence that is customarily imposed does not establish the range of a sound sentencing discretion. Sentencing ranges can provide only general guidance. Cases may assist in identifying the range of a sound sentencing discretion but it is always necessary that the sentence imposed be one that is just in respect of the circumstances of the particular case. However, I am also mindful that consistency in sentences is an important principle in sentencing.
The appellants relied upon a number of authorities to support the claim of manifest excess.[45]
[45] AA v Anthony [2016] WASC 127; Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472; Ryder v Abbott [2007] WASC 41.
In AA v Anthony[46] the appellants appealed against a sentence releasing him on a conditional release order in the sum of $4,000 for a period 12 months. The offending involved misconduct in a detention centre. The court substituted a lesser sentence being a conditional release order to be of good behaviour for six months in the amount of $100 and ordered a spent conviction order. I do not consider that this case relevantly assists. In AA v Anthony the appellants' offending was at the lower end involving throwing plastic chairs and loose soil at each other and there was no ongoing tension between the groups. The appellants were not instigators or leaders. The court found that each of the appellants was of previous good character and that personal deterrence was less significant.
[46] AA v Anthony [2016] WASC 127.
The appellants' offending in this case was more serious with each having a more significant role. Further, the incident in AA v Anthony appears to have been a spontaneous incident between adults whereas in this case the appellants' offending involved threatening women and children and was the culmination of a number of previous incidents.
In Ryder v Abbott[47] the appellant was convicted of one charge of taking part in an unlawful assembly. The offending involved feuding indigenous families. The appellant contended that a sentence of 6 months 1 day was manifestly excessive. The appellant was not a party to the use of weapons but was a member of the assembled group. There was no evidence that the appellant was a ringleader or was involved in the serious aspects of the offending behaviour. Rather, his culpability was taken to be at the lower end of the seriousness of offences of that kind. The conclusion was that the appellant was a member of an unlawful assembly. The appeal was allowed and time served of seven weeks was the sentence imposed.
[47] Ryder v Abbott [2007] WASC 41.
Unlike Ryder the appellants' position is that they were actively involved and both were senior members of the group.
In Ward v State of Western Australia[48] the appellant appealed against a term of imprisonment of 6 months after pleading to a charge of unlawful assembly. In addition, the appellant was sentenced to 18 months' imprisonment on each of the three wilful and unlawful damage counts. The total effective sentence was 18 months' imprisonment. The offending involved feuding indigenous families. After a fight at the local hotel members of the group went to another families' house whilst armed with sticks and weapons. At that time there was abuse and the calling for a fight. Some damage was caused to the residence. The group then moved to another two houses where further damage and injuries occurred. This case is the most similar to the appellants' offending. Though, it must be noted, that totality was a relevant issue in determining the structure of the sentence imposed.
Conclusion - ground 1
[48] Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472.
The complaint of the appellants is that the wrong type of sentence was imposed being a term of suspended imprisonment. I do not consider that the wrong type of sentence was imposed. The imposition of a term of imprisonment was within the magistrate's discretion. The offending of both appellants was serious. Taking into account the seriousness of the offending, the maximum penalty and the personal circumstances of each offender and all factors in mitigation the sentence of imprisonment was within his Honour's discretion.
The length of the sentences imposed on the appellants is also the subject of complaint. Having considered all relevant factors I do not consider that the length of the term of imprisonment imposed upon the appellant Andrew Djanghara is manifestly excessive. A term of imprisonment of 7 months suspended for 6 months was within the discretion of the magistrate.
In respect to the term of imprisonment of 10 months suspended for 10 months imposed upon the appellant Justin Djanghara, I consider that the sentence is manifestly excessive. Given that I have determined that a significant discount should have been afforded for the plea of guilty, the sentence of 10 months is manifestly excessive.
Conclusion
I have determined that there should be an extension of time in which to appeal for both appellants. I also order that leave to appeal should be granted on all grounds for both appeals.
I have determined that the appellant Justin Djanghara's appeal should be allowed. I consider that his sentence is manifestly excessive. Underlying that manifestly excessive sentence is the failure to afford a significant discount for the early plea of guilty. The sentence imposed on the appellant Justin Djanghara should be set aside. In lieu thereof a term of imprisonment of 8 months suspended for 7 months should be imposed. In imposing that sentence I have afforded the appellant a discount of 20% for the early plea.
I have determined that the appellant Andrew Djanghara's appeal should not be allowed. The sentence imposed on that appellant is within the appropriate range for that offending. The sentence is consistent with the objective seriousness of the offending. Whilst ground 3 has been made out I do not consider that a different sentence should be imposed. I consider that the sentence of 7 months' imprisonment suspended for 6 months is consistent with the application of a 20% discount. I consider that this is appropriate given the strength of the prosecution case.
In imposing the sentence on the appellant Justin Djanghara, I am mindful of parity issues that arise between the two appellants. In particular, the respective appellants' level of criminality and factors personal. I consider that the differential between terms of imprisonment of 8 months as against 7 months' imprisonment appropriately recognises the slightly higher culpability of the appellant Justin Djanghara. Both were prominent and senior members in the group. Their respective antecedents are not dissimilar though, I recognise that the appellant Andrew Djanghara is positively engaged in the community. Whilst the appellant Justin Djanghara has been imprisoned for offending, the appellant Andrew Djanghara has a prior conviction including an offence contrary to s 63 of the Criminal Code. Therefore, I do not consider that the sentence of the appellant Andrew Djanghara requires adjusting for parity reasons.
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