Fletcher v The State of Western Australia

[2014] WASCA 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FLETCHER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 219

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   8 SEPTEMBER 2014

DELIVERED          :   21 NOVEMBER 2014

FILE NO/S:   CACR 50 of 2014

BETWEEN:   TREVOR STEVEN FLETCHER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1416 of 2012

Catchwords:

Criminal law - Appeal against sentence - Co­offenders - Parity principle - Totality - Whether appellant's loss of opportunity to serve sentences for current offences partially concurrently with sentences for earlier offences relevant consideration in determining totality of sentence - Unreasonable delay by prosecution - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1), s 378, s 338B
Sentencing Act 1995 (WA), s 87, s 6(1)

Result:

Extension of time granted
Appeal allowed
Appellant resentenced to a total of 16 months' imprisonment

Category:    B

Representation:

Counsel:

Appellant:     Mr O J Paxman

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Paxman and Paxman Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

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

Barnes v The State of Western Australia [2004] WASCA 258

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

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

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

I (a child) v The State of Western Australia [2006] WASCA 9

MGM v The State of Western Australia [2012] WASCA 24

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

Mills v The State of Western Australia [2007] WASCA 118

Roffey v The State of Western Australia [2007] WASCA 246

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

Staker v The State of Western Australia [2012] WASCA 63

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

1. McLURE P: This is an application for an extension of time to appeal and, if an extension is granted, an appeal against sentence. The appellant was convicted after trial of one count of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA) (Code) (count 2), one count of stealing, contrary to s 378 of the Code (count 3) and one count of making a threat unlawfully to kill, contrary to s 338B of the Code (count 4).

2. The appellant was jointly tried with Clinton Lucas on the assault occasioning bodily harm and stealing charges but not the threat to kill charge.  Mr Lucas was found guilty of assault occasioning bodily harm and stealing.

3. On 29 August 2013, the trial judge (Scott DCJ) sentenced Mr Lucas to a fine of $4,000 for the offence of assault occasioning bodily harm and a fine of $1,000 for the offence of stealing.  The total fine of $5,000 was made payable to the victim of the assault, John‑Paul Edwards.

4. The appellant was sentenced, at the same time as Mr Lucas, to 16 months' imprisonment for the offence of assault occasioning bodily harm, 3 months' imprisonment for the offence of stealing and 8 months' imprisonment for the offence of threat to kill.  The sentencing judge imposed a total effective sentence of 2 years' imprisonment.  He ordered that the sentences on counts 2 and 3 be served concurrently and cumulatively with the sentence on count 4.  The sentence was backdated to 26 April 2013.  The appellant was made eligible for parole.

5. The appellant, who was initially self‑represented, prepared the appellant's case.  His grounds of appeal are that the sentencing judge erred in not taking into account time served in custody for the offences (ground 1), breach of the parity principle (ground 2) and breach of the totality principle (ground 3).  The delay in commencing the appeal is attributable to the appellant's unsuccessful attempts to obtain legal assistance.  Following the grant of leave on ground 3, the appellant was represented by legal counsel at the hearing of the appeal.

6. The findings of fact made by the sentencing judge are as follows.  The appellant held the view that Ann Elizabeth Crossland, with whom he had been in a long‑standing relationship, was having a relationship with Mr Edwards.  The appellant telephoned Ms Crossland early in the morning of 5 November 2010.  He threatened and abused Ms Crossland and asked her to tell him where to find Mr Edwards.  She declined to provide the information.

7. The appellant organised Mr Lucas to go with him to a gymnasium, where Mr Edwards was a regular, and located Mr Edwards.  Either the appellant or Mr Lucas punched Mr Edwards, once to the side of the head.  Mr Edwards, who suffered bruising and a tenderness to his jaw, fell into the garden and dropped his bag.  The appellant and Mr Lucas located the bag and Mr Lucas picked it up.  They then left the gymnasium with the bag. 

8. The appellant telephoned Ms Crossland on occasions, including an occasion when the appellant told her he had sorted out Mr Edwards.  The appellant made threats to Ms Crossland in terms that he was going to tie her to a chair, douse her with petrol and set fire to her.  Although he made the threat to kill, the appellant did not intend to carry it out.  It was made to intimidate and overbear Ms Crossland's will and it had that effect.

9. The co‑offenders were sentenced, at their request, on the day they were convicted.  There were no pre‑sentence or psychological reports before the sentencing judge.  There is reference in the reasons to a psychiatric report on Mr Lucas (ts 3).  However, there is no report on the District Court file and this court has been unable to locate a copy of it. 

10. Mr Lucas was 27 at the time of the offences.  He had no relevant prior criminal record.  The sentencing judge accepted that Mr Lucas had a generalised anxiety disorder and ADHD for which he was being medicated at the time of sentencing.  The sentencing judge found that the culpability of the co‑offenders was the same, although Mr Lucas 'probably played a lesser role in the overall scheme of things'.  The State accepted that a substantial fine would be appropriate in the circumstances.

11. The appellant was aged 38 at the time of sentencing.  He was a qualified carpenter, shipwright and, after further study, undertook some boat building work.  He had been in regular employment. 

12. The appellant had a lengthy criminal record.  In 2009 he was sentenced to a total effective sentence of 4 years 6 months' imprisonment (the 2009 sentence) which he commenced to serve in November 2007.  The offending for which he was sentenced in 2009 included multiple aggravated burglaries, possessing a controlled weapon, burglary, deprivation of liberty, common assault, escaping lawful custody, possession of a prohibited drug, threats with intent to prevent or hinder, stealing, and a multitude of traffic and driving offences.

13. The appellant was released to parole on 25 September 2010.  The parole order was cancelled by the Prisoners Review Board on 4 November 2010 because of a positive urinalysis test for methylamphetamine.  The offences the subject of this appeal were committed on 5 November 2010 (the current offences).  Thereafter the appellant decamped to Queensland.  He was arrested in Queensland on 11 February 2011. 

14. The appellant was extradited to Perth and commenced serving the balance of the sentence of 4 years 6 months' imprisonment.  He remained in prison until completing that sentence in full on 19 September 2012, when he was released from custody and placed on bail in connection with the current offences.  However, bail was cancelled and the appellant returned to custody on 26 April 2013.  Bail was cancelled as a result of the failure of the appellant or his lawyer to attend a trial listing hearing (ts 265).

15. The appellant was charged with the current offences in around February 2011.  On 5 October 2011, after a number of unsuccessful applications, the chief magistrate dismissed the charges for want of prosecution.  In August 2012 the appellant was re‑charged by way of ex officio indictment with the current offences.  That occurred shortly before the appellant was to complete his 2009 sentence. 

16. The appellant's trial for the current offences was conducted over four days, commencing on 26 August 2013.

17. The sentencing judge considered but rejected the option of suspending the appellant's terms of imprisonment on the basis that the offending was too serious and because the need for personal and general deterrence loomed large.  It is apparent from the sentencing judge's reasons (ts 6, 7) that he had regard to the fact of, and circumstances surrounding, the service of the total sentence of 4 years 6 months.

18. The sentencing judge identified the appropriate terms for the individual offences, which included a term of 12 months' imprisonment for the offence of threat to kill.  He continued:

    In my view, the terms in counts 2 and 4 - that's the assault occasioning bodily harm and the threat to kill - ought to be cumulatively [served] and the stealing concurrent.  As a matter of totality, however, it's my view that in this case having regard to the matters to which I've referred, a total term of imprisonment of 2 years is the appropriate disposition.

    And that will be achieved by the sentence for the threat to kill being reduced from 12 months down to 8 months … (ts 8).

19. The matters to which the sentencing judge refers in his discussion of totality includes the fact that the current offences breached the appellant's parole and that he had to serve the balance of the 2009 sentence.  The sentencing judge described that as 'a bit of a double edged sword' in that offending while on parole is aggravating and 'on the other hand, the fact that you did so caused you to … serve the balance of your term' (ts 7).  That is an express acknowledgement of the connection between the service of the balance of the 2009 sentence and the current offences.

20. At the hearing of the appeal, the claim of a breach of the totality principle focussed on the extent and effect of the delay in the current offences coming to trial, said to have deprived the appellant of an opportunity to serve the sentences under appeal partially concurrently with the balance of his 2009 sentence.  The appellant also claimed that the total sentence does not properly reflect the time the appellant spent in custody between February 2011 and September 2012, a period of around 19 months.

Ground 1 - time spent in custody

1. There is no merit in the appellant's claim that the sentencing judge did not take into account the time served in custody for the current offences.  The sentences were backdated to 26 April 2013 to reflect the time spent in custody for those offences and for no other reason:  Sentencing Act 1995 (WA), s 87. The gravamen of the appellant's complaint is that the sentencing judge did not take into account the fact (unchallenged by the prosecution) that he was denied parole for the balance of the 2009 sentence because of the charges for the current offences. The sentencing judge did take that into account when considering totality. I will address the issue in more detail when addressing ground 3. Leave to appeal on ground 1 was refused.

Ground 2 - parity

1. Leave was granted on this ground at the hearing of the appeal.  It relates to the common offences of the co‑offenders, being counts 2 and 3 on the indictment.  Mr Lucas was fined for both offences.  The appellant was sentenced to a term of immediate imprisonment for both offences. 

2. The parity principle is discussed in Beins v The State of Western Australia[No 2] [2014] WASCA 54 [37] ‑ [47]. For convenience, I will repeat relevant extracts from my judgment in that case.

3. The most recent authoritative exposition of the parity principle is in Green v The Queen (2011) 244 CLR 462. 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 criminal justice. It finds expression in the parity principle which requires that like offenders should be treated in like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [28]. A court will refuse to intervene where disparity is justified by differences between co‑offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [31].

4. Unjustifiable disparity is an appealable error although it may not always lead to an appeal being allowed and if allowed, identity of punishment in resentencing is not required [32].

5. Green is authority for the proposition 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. This court has recognised, and at times exercised, that discretion:  I (a child) v The State of Western Australia [2006] WASCA 9 [66] - [68]; Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [14]; Staker v The State of Western Australia [2012] WASCA 63; MGM v The State of Western Australia [2012] WASCA 24.

6. The Sentencing Act 1995 (WA) does not manifest any intention to exclude or modify the common law parity principle which is rooted in fundamental notions of fairness and equality before the law.

7. There are express errors in the reasoning of the sentencing judge relating to the application of the parity principle.  The sentencing judge concluded, correctly in my respectful opinion, that confining attention to the objective circumstances of the offending, the culpability of the co‑offenders was the same (ts 2).  Yet when explaining why a sentence of immediate imprisonment was the only sentencing option for the appellant he described the offending as too serious (ts 7, 8) and referred to the need for general deterrence, both of which considerations prima facie apply equally to the co‑offenders.  There is no express finding that Mr Lucas' mental condition made him an unsuitable vehicle for general deterrence.

8. It can be accepted that some disparity in the type of sentence is justified in this case.  The appellant recruited Mr Lucas to participate in the offences.  Mr Lucas had no relevant prior criminal record and has a mental condition.

9. By contrast, the appellant had a lengthy criminal record including prior convictions for violent offending.  Further, although the appellant's parole had been cancelled the day before he had committed the offences, the appellant had not been informed of the cancellation.

10. When regard is had to all the relevant considerations informing the appropriate type of sentence for the appellant's offending the subject of count 2 (and, by association as part of a single transaction, count 3), a term of immediate imprisonment was the only appropriate sentencing option. 

11. However, there is in my view an unjustifiable disparity in the type of sentences imposed on the co‑offenders because a fine for the co‑offender, Mr Lucas, is the wrong type of sentence.  Even so I would not, in the exercise of discretion, change the type of sentence imposed on the appellant.  An available course is to reduce the length of the total sentence for counts 2 and 3.  I will return to that matter after addressing ground 3.

Ground 3 - totality

1. The appellant relies on both limbs of the totality principle.  The first limb requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally.  The second limb is that the court should not impose a crushing sentence.  The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release:  Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].

2. There is no arguable foundation for a claim that the appellant's total sentence of 2 years' imprisonment is crushing.  That claim can be summarily dismissed.

3. There are cases in which delay and the totality principle intersect:  Mill v The Queen (1988) 166 CLR 59; Barnes v The State of Western Australia [2004] WASCA 258; Mills v The State of Western Australia [2007] WASCA 118.

4. As in Barnes, the appellant claims first, that as a result of the delay between February 2011 and his trial in August 2013 he lost the opportunity to serve the sentences for the current offences partially concurrently with the 2009 sentence, and alternatively, that the total sentence fails to properly reflect the time he spent in custody between February 2011 and September 2012.

5. The totality principle applies when sentencing for more than one offence.  It also applies when an offender being sentenced is already serving a sentence of imprisonment for other offences:  Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 8.

6. The rationale for the totality principle is that the imposition of a wholly cumulative sentence, whether in respect of sentences then being served (the first sentence) or in respect of sentences to be served, is that the sentencing court may see or assume that the offender has made progress towards rehabilitation during the term of the first sentence and that there is not the same demand for retribution where a prisoner has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude:  Vlek (10).  The totality principle applies if the offender is still serving a sentence even if he or she has been released to parole:  Barnes. 

7. The facts in Mills bear some similarity to the facts in this case. The offender, who was serving a parole term, was awaiting a trial on other charges. Parole was refused because of the pending charges. The trial of the other charges was delayed, with the consequence that the offender was kept in custody longer than he otherwise would and had completed his existing sentence before being sentenced on the other charges. The court held that the sentencing judge should have taken into account the delay caused prejudice as matters relevant to totality [11].

8. Delay may also be a relevant sentencing consideration independently of the totality principle:  Scook v The Queen (2008) 185 A Crim R 164. Undue or unreasonable delay not attributable to the conduct of the accused can, in appropriate circumstances, be mitigating [33]. In particular, unreasonable delay attributable to the conduct of prosecuting or investigatory authorities can mitigate [64].

9. There was significant delay in this case.  The original charges for the current offences were the subject of committal mentions in the Magistrates Court in April 2011, June 2011, August 2011 and September 2011.  On each of those occasions, the prosecution sought and obtained adjournments because it was not ready to proceed.  At the hearing on 10 August 2011 the chief magistrate warned the prosecution that the charges would be dismissed on the next occasion if they were not ready to commit the appellant.  On 7 September 2011 there was a further adjournment until 5 October 2011.  On that date the chief magistrate dismissed the charges for want of prosecution.  That is a clear indication the delay by the prosecution was unreasonable.  Further, the delay prevented any possibility of the trial of the current offences taking place before the appellant's release from custody on 19 September 2012.  If the appellant was still serving the 2009 sentence, the application of the totality principle would be expected to result in a reduction of the total sentence, whether by ordering partial concurrency or reducing the otherwise appropriate total sentence.  In this case the sentencing judge reduced the total sentence by 4 months for totality reasons, which included some component for the time spent in custody between February 2011 and September 2012. 

1. However, the sentencing judge's reasons are silent on the subject and effect of delay and I infer it was not taken into account.  That omission is a material error.  After a long period of uncertain suspense following the dismissal of the charges for want of prosecution, the prosecution eventually filed an ex officio indictment.  It did so just before the completion, in full, of the appellant's lengthy 2009 sentence, over 19 months of which was served after he committed the current offences.  That inordinate delay meant the appellant left prison on bail and facing a further lengthy delay before his trial on charges first laid in February 2011.  It takes little imagination to appreciate how dispiriting that must have been.

Conclusion

1. I would grant an extension of time and uphold this appeal on the parity and totality grounds.  This court is in a position to resentence.  For the reasons given above, the sentencing judge did not err in imposing terms of immediate imprisonment.  However, I would reduce the total effective sentence from 2 years to 16 months' imprisonment.  To achieve that outcome I would reduce the sentence on count 2 from 16 months to 8 months' imprisonment without changing the other sentences or the orders for cumulation and concurrence made by the sentencing judge.

2. Accordingly, I would grant an extension of time until 17 March 2014, allow the appeal, set aside the sentence of 16 months on count 2 and in lieu thereof impose a term of imprisonment of 8 months. 

The sentences on counts 2 and 4 are to be served cumulatively and concurrently with the sentence on count 3.  That results in a total effective sentence of 16 months' imprisonment backdated to 26 April 2013.

1. NEWNES JA:  I agree with McLure P.

2. MAZZA JA:  I have read the reasons of McLure P, with whom Newnes JA agrees.  I respectfully agree with the orders that her Honour proposes.  My reasons for doing so differ only in respect of the parity ground, ground 2.  I would dismiss this ground.

3. I agree with her Honour's exposition of the parity principle, save that I would not necessarily agree with the proposition that the Sentencing Act 1995 (WA) does not manifest an intention to exclude or modify the common law parity principle. To my mind, there is still an open question as to whether s 6(1) of the Sentencing Act has this effect.  In this appeal, as in Beins v The State of Western Australia [No 2] [2014] WASCA 54 [125] ‑ [126], the question was not the subject of submissions by the parties.

4. I accept that there is no material distinction between the appellant and Mr Lucas with regard to their participation in the attack on the victim and the subsequent theft.  However, there were some significant differences between the offenders, being:

   (1)The appellant recruited Mr Lucas.

   (2)The appellant's antecedents were unfavourable when compared to Mr Lucas.  Mr Lucas had no relevant criminal history (AB 47).  On the other hand, the appellant had prior convictions for violence and other serious offences.  Thus, in the appellant's case, personal deterrence was a significant sentencing consideration.

   (3)The appellant committed the offences shortly after he had been released on parole and a day after his parole had been cancelled because of a positive urinalysis test for methylamphetamine, although he had not yet been informed of this order.  Of course, this was not a consideration relevant to Mr Lucas.

5. I consider that Mr Lucas was dealt with leniently by the learned sentencing judge, but I would not go so far as to describe the sentences that were imposed upon him as inadequate. 

1. There is a substantial disparity between the sentences that were imposed upon the appellant and Mr Lucas.  However, the disparity was, in my opinion, justified, having regard to the relevant differences in the cases, and does not give rise to an objective sense of grievance on the part of the appellant.