Garlett-Exell v The State of Western Australia
[2020] WASCA 179
•29 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GARLETT-EXELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 179
CORAM: BUSS P
MITCHELL JA
HEARD: 15 OCTOBER 2020
DELIVERED : 29 OCTOBER 2020
FILE NO/S: CACR 95 of 2020
BETWEEN: GARY JOE GARLETT-EXELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : ALB IND 47 of 2019
Catchwords:
Criminal law - Sentencing - Rioter causing damage - Threats to kill - Whether sentence infringes the parity principle
Legislation:
Criminal Code (WA), s 67(1), s 338B
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Labrook v The State of Western Australia [2016] WASCA 127
McConnell v The State of Western Australia [2020] WASCA 59
Mills v The State of Western Australia [2007] WASCA 118
Ngo v The Queen [2017] WASCA 3
Panciarri v The State of Western Australia [2020] WASCA 154
Petrusic v The State of Western Australia [2020] WASCA 62
Roffey v The State of Western Australia [2007] WASCA 246
JUDGMENT OF THE COURT:
Summary
The appellant was convicted on his pleas of guilty of:
(1)one count of being riotously assembled with others resulting in unlawful damage to property, contrary to s 67(1) of the Criminal Code (WA) (count 1), and
(2)two counts of threatening to kill a person, contrary to s 338B(a) of the Code (counts 2 and 3).
On 21 February 2020, the appellant was sentenced to:
(1)2 years 11 months' immediate imprisonment on count 1;
(2)4 months' immediate imprisonment on count 2; and
(3)12 months' immediate imprisonment on count 3.
The sentencing judge stated that she had reduced the sentence she would otherwise have imposed on count 2 in the application of the totality principle.[1] Her Honour ordered that the sentence for count 2 be served cumulatively on the sentence count 1 and that the sentence for count 3 be served concurrently.[2] This resulted in a total effective sentence of 3 years 3 months' immediate imprisonment. The total effective sentence was backdated to 14 July 2019 to take account of time spent in custody on remand, and the appellant was made eligible for parole.
[1] Sentencing ts 63.
[2] Sentencing ts 62 - 63.
The appellant now appeals against his sentence on the sole ground that his sentence on count 1 infringes the parity principle, by reason of disparity between his sentence and the sentences ranging from 6 months' to 16 months' immediate imprisonment imposed on his five co‑offenders.[3]
[3] Appellant's submissions, par 4.
For the following reasons, the sole ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.
Sentences imposed
The appellant was sentenced after four of his five co-offenders.[4] Staude DCJ sentenced Mr Hansen on 21 October 2019. Lonsdale DCJ sentenced Mr Williams and Mr Winmar on 25 November 2019. Sweeney DCJ sentenced Mr Woods on 23 January 2020. Braddock DCJ sentenced Mr Penny, after the appellant, on 7 July 2020.
[4] Sentencing ts 32, 62.
The appellant and his co-offenders were sentenced as follows:
Offender
Sentence of immediate imprisonment
Section 9AA Discount
Appellant
2 years 11 months, cumulative on a sentence of 12 months on count 3 and concurrent with 4 months on count 2, backdated to 14 July 2019, with eligibility for parole
Count 1 (6%)
Count 2 and 3 (10%)[5]
Douglas Hansen
16 months, backdated to 6 October 2019 with eligibility for parole[6]
25%[7]
Gregory Winmar
6 months, cumulative, with no eligibility for parole[8]
25%[9]
Axel Williams
6 months, cumulative, with no eligibility for parole[10]
25%[11]
Dominic Woods
9 months, cumulative, with eligibility for parole[12]
25%[13]
Wayne Penny
12 months, backdated to 16 May 2019[14]
20%[15]
[5] Sentencing ts 60.
[6] Hansen sentencing ts 15 - 16.
[7] Hansen sentencing ts 11.
[8] Winmar/Williams sentencing ts 20.
[9] Winmar/Williams sentencing ts 18.
[10] Winmar/Williams sentencing ts 21.
[11] Winmar/Williams sentencing ts 18.
[12] Woods sentencing ts 28.
[13] Woods sentencing ts 24.
[14] Penny sentencing ts 24.
[15] Penny sentencing ts 23.
Circumstances of offending
The offending occurred on 19 September 2018. The appellant and his five co-offenders were sentenced prisoners incarcerated in a unit of Albany Regional Prison. The appellant had been there for four or five months, and was unhappy about being away from Perth, as it meant his family could not visit, or visit as often.[16] The appellant and his co‑offenders had made requests to be returned to facilities in Perth and were unhappy with the responses given by prison authorities.[17] They decided to protest by rioting. The appellant instigated the plan.[18]
[16] Sentencing ts 55 - 56.
[17] Sentencing ts 55 - 56.
[18] Sentencing ts 56.
The appellant and some of his co-offenders prepared for the riot by breaking the basins and toilets in their cells. Then, just after 6 pm when the security grille to the landing was closed and locked by staff, the appellant and others went to the grille. The appellant shoved things into the lock so that it would not open. Consequently, prison authorities could not get back into the unit to stop the rioting.[19]
[19] Sentencing ts 56.
The appellant and his co-offenders then began rioting. Porcelain basins, toilets, pipes, windows, light fittings and TV cameras were smashed. Mattresses were pulled off beds and barricaded against the steel grille. Sewerage and water flooded the unit. Smashed pieces of porcelain were thrown towards prison officers. The appellant made repeated demands, saying that he would not stop until he and his co‑offenders were all returned to Perth. The appellant personally smashed items and made threats to harm prison officers.[20]
[20] Sentencing ts 56.
The appellant was the person who negotiated with the prison authorities when they sought to resolve the matter. When it was evident that negotiations were not going to work, and in circumstances where prison staff had to retreat, specialised armed riot officers were dispatched. These officers were armed with Tasers, shotguns and riot gear. They deployed 'flashbang' explosive devices so they could get close to the grille, and were able to cut the grille with a chainsaw fitted with a diamond blade. Riot officers were ultimately able to gain access to the unit.
Prior to this, and towards the end of the riot, the appellant went to the cell shared by two inmates and got them to leave their cell by saying 'get out here or I will kill you'. The inmates had tried to stay out of the conflict by remaining in their cell. The inmates believed what the appellant said, and left their cell, very frightened and at one point kneeling on the ground. They returned to their cell 10 - 20 seconds later.[21]
[21] Sentencing ts 56 - 57.
In oral submissions before this court, the appellant emphasised the personal and family stress which he was under at the time, and the fact (accepted at the sentencing hearing) that a refusal of a transfer to the metropolitan area impeded the appellant in resuming contact with his children, who he had not seen for four years.
Appellant's personal circumstances
The appellant was 23 years old at the date of sentence. He was one of 11 children born to his parents, with a further 7 half siblings. He had an unstable and deprived childhood in which he was exposed to violence and drugs. He was taken into the care of the Department of Child Protection at age four and placed with his maternal grandmother.[22]
[22] Sentencing ts 57.
The appellant left school at age 11 and is illiterate. He has used methylamphetamine intravenously since age 12 and he has an extensive criminal record, first serving a period of juvenile detention at age 13.[23] The appellant was serving a total effective sentence of 19 months' immediate imprisonment imposed on 15 December 2017 at the time of the offending. The sentence was imposed for aggravated reckless driving under pursuit, stealing a motor vehicle, no authority to drive, failing to stop and carrying an article with intent to cause fear. The sentences imposed on 15 December 2017 expired on 14 July 2019. The appellant had been on remand for the present offences since that date.[24]
[23] Sentencing ts 58.
[24] Sentencing ts 55; appellant's criminal record.
Despite his youth, the appellant has two children aged 5 and 6 at the time of sentencing. He only saw his children three times during his last period of incarceration and has no contact with their mother.[25]
[25] Sentencing ts 59.
Sentencing judge's approach
The sentencing judge, who did not sentence the appellant's co‑offenders, viewed the sentencing transcripts of the four co-offenders sentenced before the appellant.[26]
[26] Sentencing ts 32, 34, 38.
The sentencing judge allowed a discount of 6% discount under s 9AA of the Sentencing Act1995 (WA) for count 1 in recognition of the appellant's plea of guilty, entered on the morning of what was to be his first day of trial. The plea of guilty on the counts of threats to kill was made following negotiations on the morning of trial, for which the sentencing judge gave the appellant a 10% discount under s 9AA of the Sentencing Act.[27]
[27] Sentencing ts 60.
After referring to the appellant's personal circumstances, her Honour noted that the appellant had the benefit of youth, and that his deprived upbringing provided some mitigation.[28] However, her Honour considered this was moderated by the appellant's extensive and repeated history of offending, that the appellant had a high risk of reoffending and that he showed no remorse.[29]
[28] Sentencing ts 57.
[29] Sentencing ts 60.
The sentencing judge found that the appellant, who was illiterate, had gone to some effort to write letters requesting to be moved to Perth and was angry when he did not get a response.[30]
[30] Sentencing ts 60.
Her Honour sentenced the appellant on the basis he was the instigator of the riot, that he was the person who mostly made the demands that he be returned to Perth, and that he was the one that negotiated with prison authorities.[31]
[31] Sentencing ts 61.
As to the issue of parity, her Honour noted:[32]
In this case four of your five co-offenders have already been sentenced. They each received a custodial sentence, so a term of imprisonment, to be served cumulatively on their current sentence. The lengths of the sentences imposed varied from six to 16 months depending on the issues of totality that applied in each case and their respective ages and their different roles.
Further, those who received six months' imprisonment were not given parole eligibility. Each of your co-offenders have had a similar deprived upbringing. They also had extensive contact with the criminal justice system from an early age, so in regard to their background, their situation is very similar to yours, but each of them pleaded guilty at the first reasonable opportunity and they each received a discount of 25 per cent, which is the maximum you can get, because they pleaded so early.
Further, they each only faced a single charge of rioters causing damage, and their role was considerably less than yours. Given those differences, which are significant, I consider that parity of sentence does not apply except in a very general way to ensure that having regard to your different roles the sentences imposed are not so disparate, so different, given the different roles.
[32] Sentencing ts 62.
The sentencing judge referred to the totality principle, and said that any sentence given to the appellant would take place against the background of the appellant having been in custody continuously since 20 October 2017. Her Honour imposed the sentences referred to at [2] - [3] above. Her Honour noted that she had reduced the sentence she would have otherwise imposed on count 2 for the purposes of totality.[33]
[33] Sentencing ts 62 - 63.
The appellant's co-offenders
Hansen
Mr Hansen was 27 years old at the date of sentencing.[34]
[34] Sentencing ts 14.
Staude DCJ allowed a discount of 25% under s 9AA for Mr Hansen's plea of guilty, entered at the first reasonable opportunity.[35]
[35] Sentencing ts 11.
Mr Hansen was attracted to a commotion that occurred on the landing of the unit and then found other prisoners were smashing up their cells. Mr Hansen joined in. Staude DCJ accepted that Mr Hansen's actions were not premeditated, that he acted on the spur of the moment and followed the behaviour of others.[36] He was not involved in throwing things at prison officers, making demands or threats to prison officers or tampering with the security lock. His offending mainly comprised destroying fittings in his cell and throwing pieces of porcelain onto a landing.[37] Staude DCJ found that Mr Hansen was not an instigator of the riot.[38]
[36] Hansen sentencing ts 13.
[37] Hansen sentencing ts 11, 12, 13.
[38] Hansen sentencing ts 12.
Mr Hansen had an extensive history of childhood abuse and deprivation, marred by exposure to violence and antisocial behaviour by his parents and other members of his family.[39]
[39] Hansen sentencing ts 13.
Staude DCJ assessed Mr Hansen's risk of reoffending as high, and noted his significant criminal record.[40]
[40] Hansen sentencing ts 14 - 15.
Mr Hansen was serving a term of 2 years 6 months' imprisonment when he committed the offence, but was not serving a term of imprisonment when he came to be sentenced.[41] In assessing the seriousness of Mr Hansen's offending, Staude DCJ noted:[42]
I do take into account that you were not the instigator of the riot and were not involved in making any threats or demands. You made admissions as to your involvement and pleaded guilty earlier. You formally accepted responsibility in your interviews with the police, Community Corrections and with the psychologist.
[41] Hansen sentencing ts 14.
[42] Hansen sentencing ts 15.
Staude DCJ then imposed a sentence of 16 months' imprisonment, backdated to 6 October 2019, with eligibility for parole.[43]
Williams and Winmar
[43] Hansen sentencing ts 16.
Lonsdale DCJ sentenced Mr Winmar and Mr Williams at the same time. After setting out the events that occurred during the riot, her Honour stated:[44]
… there were some amongst you who decided to create a disturbance, which, it was believed, would force the Department of Justice to transfer you back to prisons in the metropolitan area. Now, you were charged jointly with the four other people, so not all of the actions were committed by you: some of them were, some of them weren't. But, basically, people began breaking porcelain fittings in the cells, including basins and toilets …
Now, as I said, not all - you didn't do all of those things, necessarily, but you were both equally responsible.
[44] Winmar/Williams sentencing ts 17.
Lonsdale DCJ noted that Mr Winmar and Mr Williams had each pleaded guilty 'at an early opportunity', and allowed a discount of 25% under s 9AA of the Sentencing Act.[45]
[45] Winmar/Williams sentencing ts 18.
Mr Winmar was 30 years old at the date of sentence. He was the eldest of six children.[46] He had an 'overwhelming' criminal record.[47] Her Honour gave the following description of Mr Winmar's role in the offending:[48]
Now, I am told that you were not the ringleader and that you simply went along with what everyone else was doing, because you felt you had no choice. Now, that may or may not be the case, but it does not change the fact that you were ultimately involved, and you are equally responsible for the actions of others.
[46] Winmar/Williams sentencing ts 19.
[47] Winmar/Williams sentencing ts 19.
[48] Winmar/Williams sentencing ts 18.
In sentencing Mr Winmar, Lonsdale DCJ made the following comments:[49]
I also need to have regard to considerations of parity. Your cooffender, Mr Hansen, was recently sentenced to 16 months['] imprisonment, so that is really the starting point for what I should impose. But the real question for me is whether I should give you less because you are already serving a very long sentence, and I do need to consider the question of totality. I need to ensure that the sentence I impose does not diminish any last shred of hope you might have for the future and give you some encouragement to think about a plan for your eventual release. So what I have decided to do, in all of the circumstances, is to impose a sentence of six months imprisonment, and I will make that cumulative on the sentence that you are currently serving. And I'm not going to order that you be eligible for release on parole in respect of that six months. So the effective net result of that is that you will need to serve another six months after you have completed the non-parole part of the sentence that you are currently serving.
[49] Winmar/Williams sentencing ts 20.
When Mr Winmar committed, and was sentenced for, the rioters causing damage offence, he was serving a term of 11 years' imprisonment.[50] Hall J had imposed this sentence on 3 October 2014, backdated to 7 March 2013, in respect of a total of 81 offences comprising: 27 offences of aggravated burglary; one of attempted aggravated burglary; seven of burglary; one of armed robbery; one of aggravated assault with attempt to commit a crime; 16 of stealing a motor vehicle; three of stealing a motor vehicle and driving recklessly; three of aggravated reckless driving; one of breach of a community order; five of driving whilst disqualified; four of driving without a licence; four of failing to stop (three in aggravated forms of that offence); one of trespass; one of being armed so as to cause fear; five of fraud; and one of receiving stolen property.[51]
[50] Winmar/Williams sentencing ts 18.
[51] Winmar 3/10/14 sentencing ts 1, 14.
Mr Williams was 29 at the date of sentence. At the date of sentence, he had two children with a former partner. In sentencing Mr Williams, Lonsdale DCJ described his offending as equally serious as Mr Winmar's, and that commented that his antecedents, while 'not as bad', were 'similar enough'.[52]
[52] Winmar/Williams sentencing ts 20.
Her Honour, in imposing the sentence on Mr Williams, stated:[53]
Now, the current sentence you are serving is one of five and a half years and you will not be eligible for release until 5 July 2021, as your parole was denied. You don't have as long to serve as Mr Winmar, but in my view there is little to distinguish from you both, in terms of your involvement and your [antecedents]. So in the circumstances, I've decided that you should receive the same sentence as Mr Winmar, that is a sentence of six months, cumulative, and there will be no order for eligibility on that six months.
[53] Winmar/Williams sentencing ts 21.
Her Honour appears to have erred in finding that Mr Williams was serving a sentence of 'five and a half years'. Fiannaca J sentenced Mr Williams on 3 February 2020 to a total effective sentence of 5 years' imprisonment, backdated to 6 July 2016.[54] Her Honour correctly identified the release date.
[54] Williams 3/2/17 sentencing remarks 22.
When Mr Williams committed, and was sentenced for, the rioters causing damage offence he was serving a term of imprisonment for the following offending on two indictments: [55]
(1)Criminal damage by fire, consisting of setting the interior of his ex-partner's car on fire, completing destroying it after having smashed all the windows and the headlights.
(2)Stealing (count 1), armed robbery contrary to s 392 of the Code (count 2), and stealing a motor vehicle contrary to s 371A of the Code (count 3). These offences consisted of entering a home through an open rear door and stealing a number of items including a 40 inch flat screen television, a mobile phone a laptop and a 'Pendo Pad' (count 1). Mr Williams shook the victim awake who was sleeping with his children aged 3 and 5 and requesting his car keys, when he refused Mr Williams struck him with a pole resulting in minor injuries to the victim, Mr Williams' co‑offender grabbed the victim by the throat and continued to demand the keys, and told Mr Williams, who was holding a screwdriver, to stab the victim if he refused. The victim told Mr Williams and his co-offender where the keys were, which they then took (count 2). Mr Williams and his co-offender then stole the victim's car (count 3).
Woods
[55] Williams 3/2/17 sentencing remarks 4 - 5.
Mr Woods was 21 years old at the date of sentence.[56] He grew up in a situation where he had seen violence, and drug and alcohol abuse.[57]
[56] Woods sentencing ts 23.
[57] Woods sentencing ts 24 - 25.
Mr Woods was sentenced on the basis that he was not the instigator of the riot, and there was no allegation that he threatened any fellow inmates, or took anyone prisoner. Mr Woods did not break the toilets or sinks and did not throw porcelain. He threw plastic chairs, though not at guards.[58]
[58] Woods sentencing ts 13, 22 - 23.
Mr Woods pleaded guilty at the first reasonable opportunity and received a 25% discount under s 9AA of the Sentencing Act.
Mr Woods was serving a term of 3 years' imprisonment for an aggravated robbery when he committed, and was sentenced for, the offence of rioters causing damage. He was due to be released, after having served the whole of the term, on 20 April 2020.[59]
[59] Woods sentencing ts 23.
Mr Woods was sentenced to a term of 9 months' immediate imprisonment to be served cumulatively on his existing term, with eligibility for parole.[60]
Penny
[60] Woods sentencing ts 28.
Mr Penny was 27 years old at the date of sentence. He had one child, an 11-year-old daughter.[61]
[61] Penny sentencing ts 13.
There were no express findings of specific actions attributable to Mr Penny.
Mr Penny had been in custody, except for five days, since 5 March 2016 because of a series of sentences passed upon him, but had completed those terms by the time he was sentenced. He was sentenced to 12 months' imprisonment on 7 July 2020, backdated to 16 May 2019.[62]
[62] Penny sentencing ts 24.
General principles: parity
The legal principles applicable to the parity principle are well established. The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen has been adopted or reproduced in this court many times:[63]
[63] Ngo v The Queen [2017] WASCA 3 [36] - [40]. See e.g. McConnell v The State of Western Australia [2020] WASCA 59 [50]; Petrusic v The State of Western Australia [2020] WASCA 62 [46]; Panciarri v The State of Western Australia [2020] WASCA 154 [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. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.
In Green v The Queen [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].
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 [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.
(Some citations omitted)
The parity principle is concerned with substance rather than form, and the manner in which the principle is to be applied will vary according to the facts and circumstances of the case. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed. The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:[64]
[64] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [52] - [53], [184].
(a)the objective seriousness of each offence which each offender has committed;
(b)the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;
(c)whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;
(d)each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;
(e)whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;
(f)the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;
(g)whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;
(h)the non‐parole period to be served by each offender; and
(i)the personal circumstances and antecedents of each offender.
In Higgins, Pritchard JA (Beech JA agreeing) noted that:[65]
In a case where one or more of the co‐offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co‐offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes. In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.
[65] Higgins [207]
A manifest disparity in any component of the punishment imposed on co-offenders (such as the sentence imposed in respect of an individual count), which is not explicable by differences in the circumstances of the co‐offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co‑offender subjected to the greater punishment.[66]
[66] Higgins [179], [200], [208].
In Higgins, Beech JA observed:[67]
Nor, in my view, are fundamental principles concerning parity consistent with a hard and fast rule that, in cases of co‐offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. Parity is founded on the norm of equal justice. That norm may be engaged by a marked disparity in the respective sentences imposed on co‐offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though one, or both, of the co‐offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.
…
In my view, it is open to an appellant to contend that the individual sentence imposed on a co‐offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co‐offender were also sentenced for other offences. In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences.
[67] Higgins [177], [182].
General principles: totality
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[68]
The first limb is that the total effective sentence must 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. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[68] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
As was noted in Labrook v The State of Western Australia,[69] the totality principle requires a sentencing court to take account of a sentence that an offender is serving at the time of sentence. Where an offence is committed while serving a sentence, but that sentence is completed before the offender is sentenced, totality may still require consideration of the completed sentence.[70]
[69] Labrook v The State of Western Australia [2016] WASCA 127 [33] - [40].
[70] Mills v The State of Western Australia [2007] WASCA 118 [11], referred to in Labrook at [37].
The totality principle does not require a sentencing court to make allowance for sentences served prior to the commission of the relevant offence.[71]
[71] Labrook [40].
Disposition
The application of the totality principle complicates an assessment of the question of parity in the present case. Each of the offenders was serving a different sentence at the time of the riot, and those pre-existing sentences had to be taken into account in the application of the totality principle. The different individual sentences for the rioters causing damage offence are in large part explained by the application of the totality principle. For example, Mr Winmar's sentence was to be served cumulatively upon his pre-existing total effective sentence of 11 years' imprisonment, which would be expected to (and did) reduce the sentence which would otherwise be imposed for the rioters causing damage offence.
In addition, the appellant was, on the sentencing judge's unchallenged findings, the instigator of the riot. While findings as to the roles of the other offenders varied, none of them were found to be the instigator of the offending. The appellant also made demands of and threatened violence towards prison officers, including by throwing items at them. He was also the person responsible for jamming the lock on the security grille. The overall criminality of the appellant's offending was also significantly aggravated by his threats to kill two other inmates at the prison during the course of the riot.
Further, all of the other offenders, apart from Mr Penny, received a 25% discount under s 9AA of the Sentencing Act. Mr Penny received a discount of 20%. By contrast, the appellant, who entered a very late plea of guilty, received only a 6% discount for count 1.
In our view, the differences in the sentences imposed on the appellant for count 1 and the sentences imposed on his co-offenders for the same offence are explicable by the finding that the appellant was the instigator of the riot and his greater role in the riot, the different stages at which the appellant and his co-offenders pleaded guilty, and the application of the totality principle having regard to the pre-existing sentences of the offenders (particularly as to the sentences of 6 months imposed on Mr Winmar and Mr Williams).
It is unfortunate in the present case that six co-offenders were sentenced by five different judges. That fact increases the risk of an infringement of the parity principle, or a subjective apprehension by an offender that there may have been a breach of the principle. As has been observed on many occasions, it is highly desirable that, where practicable, co-offenders charged with related offences are sentenced by the same judge.
However, in all the circumstances of the present case, we are not satisfied that there is any marked disparity in the sentencing outcomes of the appellant and the other offenders which 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. In our view, having regard to all of the circumstances, the sole ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell29 OCTOBER 2020
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