Eades v Mills
[2015] WASC 225
•17 JUNE 2015
EADES -v- MILLS [2015] WASC 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 225 | |
| Case No: | SJA:1029/2015 | 17 JUNE 2015 | |
| Coram: | ALLANSON J | 17/06/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Term of imprisonment set aside Suspended imprisonment order imposed | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN EADES TEGAN DANIELLE MILLS |
Catchwords: | Criminal Law Appeal against sentence Parity principle Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 33A |
Case References: | Barnden v The State of Western Australia [2014] WASCA 161 Beins v The State of Western Australia [No 2] [2014] WASCA 54 Fletcher v The State of Western Australia [2014] WASCA 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TEGAN DANIELLE MILLS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 9935 of 2015, PE 9936 of 2015
Catchwords:
Criminal Law - Appeal against sentence - Parity principle - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 33A
Result:
Leave to appeal granted
Appeal allowed
Term of imprisonment set aside
Suspended imprisonment order imposed
Category: B
Representation:
Counsel:
Appellant : Mr R F Owen
Respondent : Ms S E Wisbey
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barnden v The State of Western Australia [2014] WASCA 161
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Fletcher v The State of Western Australia [2014] WASCA 219
1 ALLANSON J: On 22 February 2015, the appellant and six others went to a house in Swan View where they threw fragments of cement slab and bricks through the front window of the house. One of them also smashed the windows of a car parked there. The attack was apparently in retaliation for an earlier incident and more generally stems from a feud between two families.
2 On 24 March 2015, the appellant pleaded guilty to two offences of criminal damage. He was sentenced to immediate imprisonment for 7 months. On 25 February 2015, one of his co-offenders (Mr Wallam) had pleaded guilty to the same offences before another magistrate and had been fined $500 for each offence.
3 The appellant seeks leave to appeal on two grounds. The first alleges that the magistrate erred in failing to take into account the principle of parity, having regard to the penalty imposed on Mr Wallam. The second ground, as amended, contends that the magistrate erred by imposing a term of imprisonment to be served immediately.
4 The appellant was granted bail pending appeal on 13 April 2015. Before then he was in custody.
5 While the appeal is based on the disparity between the sentence of imprisonment and the fine imposed on the co-offender, Mr Wallam, the respondent has helpfully identified sentences imposed on two of the other co-offenders. One was imprisoned for 8 months, although in his case the offence breached an existing suspended sentence. Another, Joshua Penny, was placed on a presentence order. The criteria for making a presentence order include that the seriousness of the offence or offences warrants a term of imprisonment: Sentencing Act 1995 (WA) s 33A. It may, however, result in a sentence other than imprisonment.
6 The parity principle has been explained in a number of decisions of the Court of Appeal: see in particular Beins v The State of Western Australia [No 2] [2014] WASCA 54 [37] - [47] (McLure P); Fletcher v The State of Western Australia [2014] WASCA 219 [23] - [28] (McLure P, Newnes JA agreeing) [47] (Mazza JA); Barnden v The State of Western Australia [2014] WASCA 161, [55] - [59] (Buss JA, Martin CJ & Mazza JA agreeing).
7 In summary, consistency in the punishment of offences reflects the notion of equal justice and is a fundamental element in a rational and fair system of criminal justice. The parity principle expresses consistency by requiring that like offenders should be treated in like manner. In applying the parity principle, the court must have regard to different degrees of culpability and different circumstances, and will refuse to intervene where the disparity is justified by material differences between the co-offenders. These differences may include age, background, criminal history, general character, and the part each has played in the relevant criminal conduct. The application and effect of relevant sentencing principles must be taken into account.
8 The disparity in sentence in this case is not attributable to either the appellant's culpability, compared with his co-offenders, or his antecedents. He is not alleged to have been a leader in the incident, or to have been more involved than any of his co-offenders.
9 The appellant is aged 26; he was 25 at the time of the offences. The three co-offenders who have been already sentenced are aged 24, 26 and 37. Mr Wallam, at 37, is the oldest of the four.
10 While the appellant has some convictions, his record of offending was accurately described by the magistrate as relatively minor. It is significantly less serious than those of his co-offenders. He has not previously been imprisoned.
11 Disparity may not always lead to an appeal being allowed or to identity of punishment in resentencing. In Fletcher [26] - [27], McLure P (Newnes JA agreeing) said that 'absent any statutory provision to the contrary, an appeal court has the power to reduce a co-offender's sentence to a level that is manifestly inadequate (but short of being an affront to the administration of justice) in order to avoid disparity but may, in the exercise of its discretion, decline to do so' and that the Sentencing Act 'does not manifest any intention to exclude or modify the common law parity principle'.
12 The respondent submits that the magistrate did not err in determining that a fine was not an adequate sentence, and I agree that a sentence of imprisonment for offences of this nature and seriousness was within the sound exercise of the sentencing discretion. But the significant disparity between the sentence imposed on the appellant and that imposed on Mr Wallam, and potentially the sentence to be imposed on Joshua Penny, is, in my opinion, a sufficient reason to allow the appeal.
13 In my opinion, it is possible in this case to reflect the parity principle, without imposing a manifestly inadequate sentence.
14 In resentencing, I exercise the relevant sentencing discretions afresh. I take into account that the appellant served a period in custody, before being released on bail, and the penalties imposed on his co-offenders and the need for consistency in the treatment of like offenders. I am satisfied that, at this time, it is not necessary to impose a sentence of imprisonment to be served immediately.
15 The sentencing magistrate was correct to characterise the offence as one so serious that a term of imprisonment was called for. The admitted facts included that the members of the group threw bricks through the front windows of the victim's home, smashing windows in the process. The occupants of the house, including a young child, were inside. His Honour was correct that a historic feud between families does not justify such behaviour, and offending of this nature requires specific and general deterrence.
16 The appellant is now only 26. He has two children aged 6 and 3 with a further child due in August. At the time of the offence he was employed and was the sole financial provider for his family. While he has a criminal record, the only conduct of like seriousness was in 2007, an offence of unlawful damage, and resulted in a good behaviour bond. He has not previously received any penalty more serious than a fine. He was involved in this incident because of his family connections.
17 Taking all of those matters into account, I am satisfied that a sentence of imprisonment, suspended, is commensurate with the seriousness of the offence and would sufficiently meet the sentencing aims of specific and general deterrence, while at the same time mitigating the disparity between the treatment of the appellant and his co-offenders.
18 Because the appellant has already spent time in custody, and a term that is suspended cannot be ordered to commence at an earlier date, I will reduce the sentence to the minimum allowable, 6 months and 1 day. The period of suspension will be 6 months.
19 Were it not for the issue of parity, it would be difficult to demonstrate the sentence imposed lay outside the sound exercise of the magistrate's discretion. It is, however, unnecessary to deal with ground 2 because I am exercising the sentencing discretion afresh.
20 For these reasons I will grant leave on ground 1, and allow the appeal on that ground. The sentence of the magistrate will be set aside. I resentence the appellant to imprisonment for 6 months and 1 day, to be suspended for 6 months.
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