Goddard v The Queen

[1999] WASCA 281

GODDARD -v- R [1999] WASCA 281

Reported Decision:	(1999) 21 WAR 541
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 281
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:60/1999	Heard:	4 OCTOBER 1999
Coram:	KENNEDY J PIDGEON J MURRAY J	Delivered:	17/12/99
No of pages:	31	Judgment Part:	1 of 1
Result:	Leave to appeal grantedAppeal dismissed
PDF Version

Parties:	ADAM TROY GODDARD THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Disparity between sentences imposed upon co-offenders Offender convicted on two counts of armed robbery in company, three counts of attempted armed robbery in company and three counts of stealing a motor vehicle Sentenced in addition on 12 charges instituted in Court of Petty Sessions Offender aged 18 at time of offences Poor antecedents Effective sentence of 7 years with eligibility for parole Co-offender sentenced on same counts and two additional counts of stealing a motor vehicle and armed robbery in company Co-offender also sentenced on one charge of stealing instituted in Court of Petty Sessions Co-offender aged 21 and having better antecedents Effective sentence of 3 years and 6 months with eligibility for parole imposed upon co-offender Sentence of co-offender inadequate and below the range of a sound sentencing discretion
Legislation:	Nil
Case References:	Holtom & Marriott v R [1970] WAR 85 Lovelock v The Queen (1978) 33 FLR 132 Lowe v The Queen (1984) 154 CLR 606 O'Malley v French (1971) 2 SASR 110 Pecora v R [1980] VR 499 Postiglione v The Queen (1997) 189 CLR 295 R v Brindley (1993) 66 A Crim R 204 R v Capper (1993) 69 A Crim R 64 R v Cox (1991) 55 A Crim R 396 R v Dickes (1983) 10 A Crim R 88 R v Goldberg [1959] VR 311 R v Hodges (1997) 95 A Crim R 85 R v MacGowan (1986) 42 SASR 580 R v Maslen (1995) 79 A Crim R 199 R v Nikodjevic [1998] 2 VR 33 R v Reardan (1996) 89 A Crim R 180 R v Robertson (1989) 44 A Crim R 224 R v Ruane (1979) 1 A Crim R 284 R v Taudevin [1996] 2 VR 402 R v Tisalandis (1982) 2 NSWLR 430 Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Eastment v The Queen, unreported; CCA SCt of WA; Library No 990185; 16 April 1999 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994 House v The King (1936) 55 CLR 499 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997 Nguyen v The Queen [1999] WASCA 54 Nicholls v The Queen, unreported; CCA SCt of WA; Library No 930584; 19 October 1993 O'Connor v The Queen, unreported; CCA SCt of WA; Library No 960627; 31 October 1996 Pearce v The Queen (1998) 72 ALJR 1416 R v Chan (1989) 38 A Crim R 337 R v McAndrew [1999] WASCA 124 R v Peterson [1984] WAR 329 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Urquhart v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995 Veen v The Queen (No 2) (1998) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GODDARD -v- R [1999] WASCA 281 CORAM : KENNEDY J

PIDGEON J
MURRAY J

HEARD : 4 OCTOBER 1999 DELIVERED : 17 DECEMBER 1999 FILE NO/S : CCA 60 of 1999 BETWEEN : ADAM TROY GODDARD

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Disparity between sentences imposed upon co-offenders - Offender convicted on two counts of armed robbery in company, three counts of attempted armed robbery in company and three counts of stealing a motor vehicle - Sentenced in addition on 12 charges instituted in Court of Petty Sessions - Offender aged 18 at time of offences - Poor antecedents - Effective sentence of 7 years with eligibility for parole - Co-offender sentenced on same counts and two additional counts of stealing a motor vehicle and armed robbery in company - Co-offender also sentenced on one charge of stealing instituted in Court of Petty Sessions - Co-offender aged 21 and having better antecedents - Effective sentence of 3 years and 6 months with eligibility for parole imposed upon co-offender - Sentence of co-offender inadequate and below the range of a sound sentencing discretion

(Page 2)

Legislation:

Nil

Result:

Leave to appeal granted

Appeal dismissed

Representation:

Counsel:

Applicant : Mr B S Hanbury
Respondent : Mr D Dempster

Solicitors:

Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions

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

Holtom & Marriott v R [1970] WAR 85
Lovelock v The Queen (1978) 33 FLR 132
Lowe v The Queen (1984) 154 CLR 606
O'Malley v French (1971) 2 SASR 110
Pecora v R [1980] VR 499
Postiglione v The Queen (1997) 189 CLR 295
R v Brindley (1993) 66 A Crim R 204
R v Capper (1993) 69 A Crim R 64
R v Cox (1991) 55 A Crim R 396
R v Dickes (1983) 10 A Crim R 88
R v Goldberg [1959] VR 311
R v Hodges (1997) 95 A Crim R 85
R v MacGowan (1986) 42 SASR 580
R v Maslen (1995) 79 A Crim R 199
R v Nikodjevic [1998] 2 VR 33
R v Reardan (1996) 89 A Crim R 180
R v Robertson (1989) 44 A Crim R 224
R v Ruane (1979) 1 A Crim R 284
R v Taudevin [1996] 2 VR 402


(Page 3)

R v Tisalandis (1982) 2 NSWLR 430
Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Eastment v The Queen, unreported; CCA SCt of WA; Library No 990185; 16 April 1999
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994
House v The King (1936) 55 CLR 499
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997
Nguyen v The Queen [1999] WASCA 54
Nicholls v The Queen, unreported; CCA SCt of WA; Library No 930584; 19 October 1993
O'Connor v The Queen, unreported; CCA SCt of WA; Library No 960627; 31 October 1996
Pearce v The Queen (1998) 72 ALJR 1416
R v Chan (1989) 38 A Crim R 337
R v McAndrew [1999] WASCA 124
R v Peterson [1984] WAR 329
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Urquhart v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995
Veen v The Queen (No 2) (1998) 164 CLR 465


(Page 4)

1 KENNEDY J: The applicant pleaded guilty in the Supreme Court to eight counts in an indictment, comprising three counts of stealing motor vehicles, two counts of armed robbery in company and three counts of attempted armed robbery in company. In addition, he pleaded guilty to 15 charges instituted in Courts of Petty Sessions at Perth, Joondalup and Busselton, which were dealt with by the learned sentencing Judge pursuant to the provisions of s 32 of the Sentencing Act 1995. Those offences comprised two burglaries, possessing cannabis, possessing an instrument in connection with smoking a prohibited drug, two offences of stealing, unlawfully possessing stolen goods, driving a motor car without having a motor driver's licence, three breaches of bail conditions, driving contrary to a work order, permitting an unlicensed driver to drive his motor vehicle and wilfully damaging property. The matters came before the learned sentencing Judge under the "fast track" system.

2 The facts placed before his Honour with respect to the eight counts in the indictment were as follows:

1. On 8 November 1998, the applicant and a co-offender took possession of the complainant's stolen motor vehicle, valued at $3,000, which had been stolen from Mirrabooka on the previous day. The vehicle was used by the applicant and his co-offender in connection with the three following offences. It was subsequently found abandoned in a carpark in Perth on 9 November 1998.

2. On 8 November 1998 at 1.50 pm, the applicant waited in the stolen vehicle while his co-offender entered the Civic Video Store in Main Street, Osborne Park, with the intention of committing an armed hold-up. After producing a knife, the co-offender demanded money from the complainant, who was employed as a shop assistant. The complainant complied with the demand and placed a total of $105 in a plastic shopping bag which the co-offender had produced to her. Having received the bag containing the money, the co-offender ran from the store to the waiting stolen vehicle and the pair made good their escape.

3. On 8 November 1998 at 2.20 pm, the applicant waited in a stolen vehicle outside the Thai Deli in Wembley, while his co-offender enter the deli with the intention of committing an armed hold-up to obtain money. Once inside the store, the co-offender approached the complainant, who is the daughter of the owner of the store. The co-offender produced a knife and demanded money. The complainant, however, set off an audible alarm and the co-offender ran from the shop.

(Page 5)

4. On 8 November 1998 at 2.45 pm, the applicant waited outside Gee Bee's Deli in Joondanna, while his co-offender entered the store armed with a knife. Once inside, the co-offender demanded money from the complainant. When the complainant did not respond, he informed her that if she did not open the till he would jump over the counter. The complainant picked up the telephone and the co-offender ran out of the store empty handed. He and the applicant then drove off in the stolen vehicle.

5. On 13 November 1998, the complainant's motor vehicle, valued at $800, was stolen from the carpark of the Stirling Shopping Centre in Westminster. Later the same day, the applicant took possession of the stolen vehicle, picked up his co-offender and drove to Scarborough, where it was used in connection with the next offence. It was later abandoned due to mechanical problems caused by the applicant's driving.

6. On 13 November 1998 at 2.00 pm, the applicant parked the vehicle the subject of the previous offence outside the Calais News and Post Office in Scarborough. The co-offender entered the newsagency, where he pulled a jumper over the top of his head and pointed a starting pistol at the complainant, who was the part owner of the store. The co-offender told the complainant to give him money, threatening that if she did not do so he would shoot her. He placed a plastic shopping bag on the counter. The complainant told the co-offender that she had no money and he then ran out of the store.

7. On 13 November at about 3.00 pm, the applicant and the co-offender went to the carpark of Bunnings Store in Balcatta with the intention of stealing a motor vehicle. They broke into and stole the complainant's motor vehicle. It was later found abandoned in Mirrabooka after it had been used in the following offence.

8. On 13 November 1998 at 4.35 pm, the applicant drove the stolen vehicle to Greenwood with his co-offender and parked it near the Coolabah Deli. The co-offender entered the premises with the intention of committing an armed hold-up to obtain money. Inside the shop, the co-offender approached the complainant, who was the part owner of the shop. The co-offender produced a knife and demanded that the complainant fill a plastic bag with money. The complainant complied and placed approximately $350 in the bag which she handed to the co-offender, who ran from the store and into the waiting stolen vehicle.

(Page 6)

3 The facts relating to the Petty Sessions charges were as follows:

1. On 12 July 1998 at Balga, at approximately 6.30 pm, the applicant gained entry to the complainant's house by smashing a rear window. Once inside the house the offender stole property to the value of $1,630.

2, 3, 4 & 5. At approximately midday on 14 July 1998, the applicant approached a vehicle in the carpark of the Family and Children's Services in Mirrabooka. He smashed the front passenger window and stole a mobile telephone which had been left on the front seat of the vehicle. He was apprehended shortly afterwards by security staff at the Mirrabooka Square Shopping Centre. Police attended the security office and searched the applicant's bag, in which they found a metal smoking implement and approximately 1 gram of cannabis in a metal tin. They also found in the bag a car stereo which was reasonably suspected of having been stolen or unlawfully obtained. The applicant failed to give a reasonable explanation for his possession of that item. When interviewed on video, he admitted these offences.

6. On 10 August 1998, the applicant drove a co-offender to a carpark in Osborne Park where they stole money from the complainant's vehicle. In order to do so, the applicant kicked in a window of the vehicle. The amount taken was $30.

7. On 12 August 1998 at about midday, the applicant went to the complainant's home and knocked on the front door. There being no response, he gained entry to the premises by smashing a rear bedroom window. He removed items from various locations in the house and placed them in the laundry. The stolen property was valued at $2,000. When police arrived at the scene, they found the applicant hiding in the house. He was arrested and conveyed to the Warwick Police Station, where he readily admitted the offence.

8. At about 11.30 am on 12 August 1998, the applicant drove a motor vehicle in Westgate Way, Marangaroo. He was not, and had never been, the holder of a valid driver's licence.

9. On 18 September 1998, having previously been released on bail from Warwick Police Station, the applicant failed to appear at the Joondalup Court of Petty Sessions in accordance with the conditions of the bail undertaking given by him. He was later arrested pursuant to a Bench Warrant.

(Page 7)

10. On 29 August 1998 at 9.05 pm, the applicant was a passenger in a motor vehicle in Adelaide Street, Busselton. A police search located Vietnamese currency in a door compartment and a CPA watch on the back seat of the vehicle. When questioned by the police, the applicant told them that the currency consisted of Indonesian rupiah which had been given to him by his brother some 18 months previously. He claimed that the watch had been given to him by his mother. When questioned by the police on video, the applicant changed his story, saying that his sister had given him the watch. Later, he claimed that the watch had been in the vehicle when he purchased it. In the circumstances, he failed to give a satisfactory account of how he had come into possession of the items.

11 & 12. At 9.05 pm on 28 August 1998, police observed a motor vehicle being driven in Cammilleri Street, Busselton. They interviewed the driver, who was found to be driving while under suspension. The applicant was the owner of the vehicle. The applicant admitted that he knew that the driver was under suspension, but said that he had permitted him to drive because he wished him to do so. The use of the vehicle was prohibited by an order made under reg 106 of the Vehicle Standards Regulations. The applicant was aware that the vehicle was subject to the work order.

13. On 5 August 1998, the applicant entered into a bail undertaking to appear in the Perth Court of Petty Sessions on 26 August 1998. He failed to appear on that date and he was subsequently arrested pursuant to a Bench Warrant.

14. On 24 August 1998, the applicant entered into a bail undertaking to appear in the Busselton Court of Petty Sessions on 14 September 1998. He failed to appear on that date and a Bench Warrant was subsequently issued for his arrest. He was arrested on 9 October 1998.

15. On 24 October 1998 at 11.00 am, the applicant was observed in the Auto Parts section of the Big W Discount Store in the Mirrabooka shopping centre. He was seen selecting a packet of Bosch spark plugs, valued at $12.56. He left the Auto Parts section and proceeded to the Hardware section of the store, where he removed the spark plugs from their packet, picked up a hammer, placed the plugs on the ground and smashed them. He was apprehended by a store security officer, who called the police. He readily admitted damaging the spark plugs. When asked why

(Page 8)

he had damaged them, he responded simply: "No particular reason. I was just being stupid."

4 In sentencing the applicant, the learned sentencing Judge indicated that it appeared that the great majority of the offences had been committed by the applicant with a view to obtaining money to buy heroin for his own use. The applicant had commenced offending from the age of about 12 years and he has been the subject of numerous detention and supervision orders. He started using drugs at about the age of 13, and he has continued to use drugs of one kind or another since that time. He was aged 18 when he committed the offences. He has been brought up in a somewhat dysfunctional family, in which there have been severe problems, but his Honour noted that both the applicant's father and his mother had gone to great efforts to support him in his present court appearances. His Honour acknowledged that the applicant had significant needs for treatment with respect to his substance abuse and with respect to his psychological condition.

5 His Honour indicated that he would be taking into account the guilty pleas which had been made, the youth of the applicant and his psychological problems. He then imposed the following sentences:

Count 1 Stealing a motor vehicle 1 year's imprisonment

Count 2 Armed robbery in company 3 years' imprisonment

Count 3 Attempted armed robbery in company 1 year's imprisonment

Count 4 Attempted armed robbery in company 3 years' imprisonment

Count 5 Stealing a motor vehicle 1 year's imprisonment

Count 6 Attempted armed robbery in company 3 years' imprisonment

Count 7 Stealing a motor vehicle 1 year's imprisonment

Count 8 Armed robbery in company 3 years' imprisonment.

6 In relation to the cases dealt with by his Honour pursuant to s 32 of the Sentencing Act, his Honour adjourned three of the matters and imposed sentences as follows:

1. Stealing 1 year's imprisonment

2. Stealing 6 months' imprisonment

3. Possession of an instrument in connection


with the smoking of a prohibited drug 14 days' imprisonment

4. Possession of a prohibited drug 1 month's imprisonment

5. Possession of a car stereo reasonably


suspected of having been stolen 3 months' imprisonment

(Page 9)

6. Stealing 3 months' imprisonment

7. Stealing 2 years' imprisonment

8. Driving without a licence adjourned sine die, to be restored to the list if thought by the authorities to be necessary

9. Breach of bail undertaking 1 month's imprisonment

10. Possession of goods reasonably


suspected of having been stolen 3 months' imprisonment

11. Permitting a vehicle to be driven by


a person not holding a driving licence adjourned sine die

12. Permitting a vehicle to be driven


contrary to a work order adjourned sine die

13. Breach of bail undertaking 1 months' imprisonment

14. Breach of bail undertaking 2 months' imprisonment

15. Wilful damage 2 months' imprisonment.

7 The sentences on counts 2, 3 and 8 on the indictment were ordered to be served cumulatively. All the remaining sentences were ordered to be served concurrently with the sentence imposed with respect to count 2 on the indictment. The effective sentence was therefore one of 7 years' imprisonment. An order for eligibility for parole was made by his Honour in relation to each sentence.

8 The applicant has sought leave to appeal against his sentence. At the hearing, the grounds of appeal were reduced to the single ground that the learned sentencing Judge imposed a sentence manifestly disproportionate to the sentence imposed upon the co-offender, Reeves.

9 The suggestion that the applicant played only a secondary role in the commission of the robberies and attempted robberies may immediately be dismissed. He was a full participant in the offences, playing an essential role in providing the means of escape for his co-offender from the scenes of the offences. He it was who provided the starting pistol which was used in one of the robberies and he was well aware that his co-offender carried a knife which he had taken into the other premises chosen by him in order to effect the robberies.

10 The learned sentencing Judge took into account the totality of the offences by directing that the great majority of the sentences be served concurrently. He had regard to the personal circumstances of the applicant and to his early pleas of guilty. He was also conscious of the

(Page 10)

youth of the applicant, but against this, he noted that the applicant had already accumulated a substantial list of convictions and had graduated from probation to community orders and then to periods of detention, none of those dispositions apparently having had any significant ameliorating impact upon the applicant's behaviour. The longest sentence of detention imposed upon the applicant for an individual offence was four years.

11 The applicant has exhibited significant behavioural problems, including major aggressive outbursts and "oppositional/defiant symptoms", from a very early age. Dr M Wall, a consultant paediatrician, in a report dated 8 March 1998 (and therefore written some time prior to the commission of the offences for which the learned sentencing Judge was required to sentence the applicant), described him as always being extremely active and displaying considerable impulsivity, with a failure to learn from experience, poor concept of consequences and difficulty in following rules and instructions. His school entry was accompanied by an exacerbation of these problems. He came into increasing conflict with those in authority, suffering from social isolation and peer group rejection due to his social cognitive deficits and his impulsive responding. His later impulsive style and his predilection for escalating conflict resulted in further isolation from his peer group and a progressive drift to the anti-social element. He was expelled from his first high school after he had attended only for three days, and his school record showed numerous suspensions. At the time he came before his Honour, the applicant had been convicted of 67 offences, including 27 burglaries and 13 stealing offences.

12 The sentences imposed upon this young offender were substantial; but, having regard to the number and seriousness of his offences and his antecedents, I do not consider that the sentences which his Honour imposed fell outside the range of the exercise of a sound discretionary judgment. Nor do I consider that they could be regarded as being at the bottom of that range. The difficulty which has emerged in this case, however, relates to the sentences which were imposed 12 days later upon the applicant's co-offender, Reeves, by another Judge. Those sentences were, in my view, such as clearly to raise the issue of manifest disparity.

13 Reeves was charged on indictment with, and pleaded guilty to, each of the eight counts on which the applicant was convicted on his own pleas of guilty. In addition, however, Reeves pleaded guilty to two more counts, one of having stolen a motor vehicle and the other of the armed robbery of a pharmacy in company. He also pleaded guilty to a charge of

(Page 11)

stealing $422 in cash from an unlocked motor vehicle, that charge having been instituted in the Court of Petty Sessions. Reeves had previous convictions in Western Australia. On 5 August 1998, he pleaded guilty in the Court of Petty Sessions to six counts of stealing and six counts of fraud, in respect of which he was fined $3,000. Those offences involved stealing items from department stores and the returning of the items in the hope of securing "refunds" with which he would purchase drugs. Although it appears that Reeves also had a record in New South Wales, no details were placed before us and, in consequence, we are not in a position to take account of any such record in comparing the antecedents of the two offenders. It is important to note, however, that unlike the applicant, Reeves had never previously been sentenced to a period of detention.

14 The background of Reeves was not markedly dissimilar to that of the applicant. His parents had a very volatile relationship involving physical and mental abuse. They had separated while Reeves was quite young and his father subsequently came to live in Western Australia. Nevertheless, as with the applicant, he had strong family support at the time of sentencing. Reeves commenced abusing substances (alcohol and cannabis) at the age of 12 or 13. He commenced experimenting with heroin between the ages of 15 and 18 and, by 1998, he was spending between $100 and $200 a day on heroin. He had moved on to amphetamines at the age of 17 or 18 but had then gone back to heroin. He was 21 years of age when the offences were committed in order to satisfy his heroin habit.

15 Although the learned Judge sentencing Reeves was informed that, 12 days earlier, Reeves' co-offender, the present applicant, had been dealt with by the Supreme Court, the only information conveyed to his Honour was that "there were eight counts on that indictment and he had 12 counts on a s 32 notice. All of the sentences imposed for the s 32 notices were concurrent with the head sentence, and he received a term of 7 years' imprisonment, which was ordered to run from 19 November and he was made eligible for parole." In his Honour's subsequent sentencing remarks, he made no reference to the sentences imposed upon the applicant.

16 The learned sentencing Judge, in sentencing Reeves, observed that the offences of armed robbery in company and attempted armed robbery were very serious, but he classified them as being at the lower end of the scale due to the mitigating factors of age, co-operation with the police and an early plea of guilty. The co-operation apparently consisted of pointing out to the police the various scenes of the crimes. This had taken place after the police interview during which Reeves had made no admissions.

(Page 12)

His Honour noted that while Reeves continued to have a drug problem he was a danger to the community but that the pre-sentence report had indicated that he was apparently unwilling to overcome his drug problem. In relation to the counts of robbery and armed robbery, his Honour apparently fixed a starting point of 6 years on each count, but he "discounted" it down to 3-1/2 years, having regard, he said, to the totality principle and the crushing burden which a long sentence would impose upon him. On the remaining counts he imposed sentences of 1 year's imprisonment. All the sentences were directed to be served concurrently, and an order for eligibility for parole was made by him. The result was that Reeves was given an effective sentence which was one half of that imposed upon the applicant. Reeves' sentence, in my opinion, was clearly inadequate having regard to the number of serious offences to which he had pleaded guilty. Moreover, it was such as to raise the issue of disparity.

17 The reasoning lying behind the correction of marked disparity in sentencing was discussed in Ruby, "Sentencing" 4th edn (1994), in which, at 33, the learned author wrote:

"The notion of equal justice is the source of the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. Sir Rupert Cross has stated that the principle of justice that like cases should be treated alike is fundamental. It is "an essential consideration in the fair and just administration and enforcement of the criminal law in any democratic society". (McLean (1980), 26 Nfld & PEIR 158 at 168).

See also Fox and Frieberg, "Sentencing: State and Federal Law in Victoria" 2nd ed (1999) at 347.

18 This principle was considered by the High Court in Lowe v The Queen (1984) 154 CLR 606. That was an application for special leave to appeal. By a majority of three to two, special leave was refused. The co-offender in that case had been placed on 3 years' probation and ordered to perform 200 hours of community service. A Crown appeal against the latter disposition was rejected by the Queensland Court of Criminal Appeal and was not further pursued.

19 In Lowe's case, Gibbs CJ, at 609, drew attention to the fact that "[t]he approach to be adopted by a Court of Criminal Appeal when it appears that the sentences imposed on co-offenders exhibit disparity is not

(Page 13)

always stated in the authorities with complete uniformity". He continued, at 609 - 610:

"The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. However, the Court of Criminal Appeal in Queensland, on an appeal against a sentence, may quash the sentence imposed and substitute another 'if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed': s 668E of the Criminal Code (Q). The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of a disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal."

The wording of s 689 of the Western Australian Criminal Code is similar to that of s 668E of the Queensland Criminal Code and the observations of Gibbs CJ are equally applicable to our Code. The outcome of this application should not turn on the fact that the applicant was sentenced first.

(Page 14)

20 Mason J said, at 611:

"The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself a ground."

21 At 611 - 612, his Honour went on to say:

"It has been urged with some force that a sentence which is appropriate to the offence should never be reduced on the ground of discrepancy because there can be no acceptable basis for substituting a lesser sentence for one which is appropriate. On this approach the tendency of a particular sentence to engender a justifiable sense of grievance in the offender and an appearance to the community of unfairness or injustice, by reason of the harshness of the sentence in comparison with that imposed on the co-offender, is immaterial, so long as it is appropriate to the circumstances of the case. It is said that the proper method of correcting the discrepancy is to increase the penalty of the co-offender if it is inappropriate or inadequate. The difficulty with this approach is that a court of criminal appeal is from time to time unable to avoid that sense of grievance and the appearance of injustice by increasing an inadequate penalty imposed on the co-accused simply because there is no Crown appeal against that penalty. It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. So the courts have on many occasions reduced a sentence to bring it more into line with the co-offender's penalty, though it is well established that there in no principle of law that sentences must strictly compare ….

The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition

(Page 15)

of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. Accordingly, a court of criminal appeal confronted with the problem of discrepancy can substitute for a severe but appropriate sentence a lesser sentence which nevertheless falls within the order of what is appropriate. But the critical question is whether a court of criminal appeal can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate."

22 His Honour then went on to consider a number of decisions of courts in England, New South Wales and Victoria, and continued, at 613 - 614:

"This brief review of the authorities raises two questions. The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

It must be accepted that the change in his Honour's wording from a level where the sentence "is inadequate or might be regarded as inadequate" when he posed the earlier critical question, to the point where "it might be regarded as inadequate" when he provided the answer, was deliberate.

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23 Brennan J, at 617, drew particular attention to the desirability of co-offenders being sentenced by the same Judge, at the same time, in order to facilitate the comparison of their conduct and antecedents. At 617, he said:

"As regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender. To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying that "where you have one wrong sentence and one right sentence [the] Court should produce two wrong sentences" - a proposition that cannot be accepted: per Roskill LJ in Reg v Stroud (1977) 65 Cr App R 150 at 152. I agree with Nagle CJ at CL who said in Tisalandis [1982] 2 NSWLR 430 at 441: "to lay down as a principle of law that once disparity was shown to exist a sentence appealed against should be interfered with is so obviously wrong that it needs no argument"."

24 Having discussed further authorities in England and South Australia and Victoria, his Honour concluded, at 617 - 618:

"It follows that an inappropriately lenient sentence imposed on one co-offender is not itself a ground for interfering with a more serious sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders."

His Honour referred to his own decision in Lovelock v The Queen (1978) 33 FLR 132, at 136 - 137, in which he had cited with approval the observation of Walters J in O'Malley v French (1971) 2 SASR 110, at 114, that the court does not interfere with a sentence imposed on one offender merely because "a disparity has been created by another sentence which was far too lenient, and even though as a consequence, the appellant may be left with a sense of injustice or grievance".

25 At 623, Dawson J said:

"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction

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can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done. … This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are "most exceptional". …. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice …."

26 Wilson J agreed with Gibbs CJ and Dawson J, each of whom joined in refusing special leave to appeal. Mason and Brennan JJ would have granted special leave, and would have reduced the sentence of six years with eligibility for parole after two years, to one of two years with eligibility for parole after one year.

27 The High Court returned to the question of disparity in the sentencing of co-offenders in Postiglione v The Queen (1997) 189 CLR 295. That case was concerned with a situation in which two prisoners were serving different sentences for unrelated offences and the argument related exclusively to the impact of further sentences for offences in respect of which the prisoners were co-offenders. Dawson and Gaudron JJ said, at 301:

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"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. … Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen …., recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance"…. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options."

28 At 313, McHugh J also referred to the different histories of the co-offenders making it impossible for them to receive equal sentences. At 314, he went on to say:

"Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a "justifiable sense of grievance" … where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle."

Gummow J indicated that the principle for which Lowe's case is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. He then cited with approval the following passage in the judgment of Callaway JA in R v Taudevin [1996] 2 VR 402, at 404:

"The important words are "manifestly", "justifiable" and "objective". There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer.

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That proposition may be found in Lowe's case in the judgment of Gibbs CJ at 610, where his Honour said that the disparity must be "such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done". At 613 Mason J spoke of the disparity as engendering a justifiable sense of grievance "and" an appearance of injustice to the objective bystander. It is not to be thought that Dawson J intended a different test by using the word "or". At 623 his Honour was using it, as I have done, in its epexegetical, not its disjunctive, sense. Wilson J agreed with both the other members of the majority."

Reference should also be made to the judgment of Kirby J in which, at 335 - 342, he set out and discussed 10 sentencing principles.

29 The views which have been expressed in cases where a marked disparity is evident between the sentences imposed upon co-offenders, but where the lower sentence is clearly inadequate, are not uniform. Some of the judgments present a problem in their use of language, particularly with respect to the use of the words "inadequate" and "inappropriate", which have led to difficulties in reconciling different statements in different cases - see Pecora v R [1980] VR 499, at 503. In a number of cases, Australian courts have indicated that a sentence may be reduced in the case of a manifest or excessive disparity, even though it may result in the reduction of a sentence to a point where, standing alone, it might be regarded as inadequate - see, for example, Lowe's case (supra), per Mason J at 613 - 614; R v Goldberg [1959] VR 311, at 312; R v Maslen (1995) 79 A Crim R 199, at 208; and R v Hodges (1997) 95 A Crim R 85, at 96.

30 A narrower view than that taken by Mason J was expressed by Brennan J in Lowe v The Queen (supra) at 617, whilst in R v Robertson (1989) 44 A Crim R 224, this Court, differently constituted, expressed the view that the parity argument must give way when a patently inadequate sentence has been imposed on a co-offender. With respect, it is one thing to decline to lower an otherwise appropriate sentence to the level of a patently inadequate sentence, but it is quite another to decline to make any reduction at all, particularly when the higher sentence is not such as to be at the lowest level of the appropriate range and could, on appeal, fairly be lowered to a level "which might be regarded as inadequate". The latter, it would seem, was the approach adopted by Anderson J in R v Capper (1993) 69 A Crim R 64, at 74. He did not express the view that the parity argument must fail when a patently inadequate sentence has been imposed

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on a co-offender. See also Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999, in which the view expressed by Anderson J was adopted. See also R v Ruane (1979) 1 A Crim R 284, at 286, and R v Tisalandis [1982] 2 NSWLR 430, at 437 - 440, (compare Street CJ at 431 - 432 and Nagle CJ at CL at 441). The application of this test would give parity a restricted application.

31 In my opinion, the better view, having regard to the underlying principle, is that Courts of Criminal Appeal may intervene in the event of there being a manifest disparity in the sentences imposed upon co-offenders, notwithstanding that they regard the sentences imposed upon the applicant as falling within the range of the exercise of a sound discretionary judgment and notwithstanding that they regard the co-offenders' sentences as being inadequate. As indicated by Gibbs CJ and Mason J in Lowe's case (at 610 and 611 respectively), "marked disparity" is itself a ground for reducing the more severe sentence, provided, of course, that the disparity is such as to give rise to a justifiable sense of grievance. See also R v MacGowan (1986) 42 SASR 580, per King CJ at 583. But it does not follow from this that the court will reduce a higher sentence so that it equates in all respects to the sentence imposed on the co-offender. The position was explained by Gleeson CJ when sitting in the Court of Criminal Appeal in New South Wales in R v Reardan (1996) 89 A Crim R 180, at 182. He said:

"[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broad discretionary exercise."

This is the discretion of which Gibbs CJ also spoke in Lowe's case. See also R v Cox (1991) 55 A Crim R 396, per Thomas J at 401 - 402.

32 In my opinion, the disparity between the sentences imposed upon the applicant and Reeves in the present case was manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. Adopting the words of Gibbs CJ in Lowe v The Queen (supra), it is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. But other things are not always equal. In the present case, the applicant who received the heavier sentence is some 2 years and 9 months younger than his co-offender. Furthermore, Reeves was being sentenced for an armed robbery in company and for stealing a motor vehicle, in relation to neither of which the applicant was a co-offender. On the other

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hand, the prior record of the applicant was significantly worse than that of Reeves and a good behaviour bond, probation and conditional release orders not having been effective to stem the applicant's offending, he has on five occasions been sentenced to terms of detention. Reeves has never previously been sentenced to a term of detention. Nevertheless, the disparity between the sentences cannot be explained by the respective degrees of criminality displayed by the co-defendants or by personal factors.

33 I have reached the conclusion that the sentences imposed upon the applicant, without regard to Reeves' sentences, could not successfully have been challenged; but that the sentences imposed upon Reeves were excessively lenient. I am further of the view that the disparity in the sentences in this case is such that this Court should interfere and reduce the effective sentence imposed upon the applicant "to the point where it might be regarded as inadequate". I do not, however, consider that the head sentence should be reduced to that imposed upon Reeves. In my view, as a matter of discretion, it would be appropriate in the circumstances to reduce the head sentence to 5 years and 6 months. This could be achieved without extensive changes to the various sentences imposed upon the applicant by directing that the sentences on counts 1 to 3 in the indictment, and that in respect of the second charge listed in the notice under s 32 of the Sentencing Act, be directed to be served cumulatively, with each of the other sentences being directed to be served concurrently with the sentence imposed in respect of count 2. I would grant leave to appeal and allow the appeal accordingly. I would add that the preferable disposition of this matter would have been for the Crown to have appealed against the sentence imposed upon Reeves.

34 For the reasons stated by Pidgeon J, it is not always practical for the same Judge to sentence co-offenders, although the court will endeavour to do this wherever possible. When a co-offender is sentenced by a different Judge, then the procedure which should be followed is that suggested by Rowland J in R v Dickes (1983) 10 A Crim R 88, at 94, where his Honour said:

"It is no doubt inevitable that co-offenders will at times be sentenced by different Judges, but when that does occur it seems to me to be essential that the Judge who sentences last should have full details, not only of the sentence passed on the co-offender earlier but also full details of that offender's antecedent report, the reasons stated by the sentencing Judge when passing sentence and the statement of facts relating to the

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circumstances of the offences as given to the first sentencing Judge."

This means that when there has been a fast track plea and there are no depositions, there should be tendered to the Judge sentencing the co-offender the statement of material facts and any other information given to the first sentencing Judge, together with the antecedent report and the remarks on sentence. This procedure is consistent with what was said by Hunt CJ at CL in R v Brindley (1993) 66 A Crim R 204.

35PIDGEON J: The facts are set out in the reasons of Kennedy J.

36 The difficulty, which has given rise to this application, has arisen in these circumstances. The applicant was sentenced on 25 March 1999 to a total effective term of 7 years in respect of a number of offences which included two counts of armed robbery in company, three counts of attempted armed robbery in company, and three counts of stealing a motor vehicle.

37 His co-offender was presented to a different Judge of this Court in the sessions commencing a week later, namely 6 April 1999. The co-offender pleaded guilty to the same charges and in addition to two further counts. The Crown prosecutor informed his Honour of the sentence imposed on the applicant. The co-offender was sentenced on 30 April, at the end of the sessions for that month, to a total effective sentence of 3-1/2 years. His Honour gave detailed reasons as to why he was imposing a sentence of that type. His Honour, however, made no reference in his sentencing remarks as to why he was imposing a substantially different sentence. There is no question that the circumstances of the co-offenders are comparable, both as to their personal circumstances and their participation in the offences they jointly carried out.

38 The live ground of appeal is that the sentences were manifestly disproportionate.

39 There is a reason for the two offenders not being on the one indictment. This is because each elected to plead by a procedure known as the "fast-track" whereby they each pleaded guilty before the Magistrate at the earliest possible stage following their arrest. The greater proportion of those pleading guilty to armed robberies are coming before the court in this manner and this has resulted in a considerable saving of time and expense, and has enabled corrective measures to be applied to the offenders at the earliest possible opportunity. It is a factor that has

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enabled the criminal lists to become more up to date. There is an expectation that if an offender is presented to this Court and pleads guilty at the first opportunity in this manner, there will be no delay by reason of there being no indictment. This results in an expectation that the Crown will present the indictment, even if the co-offender has not been found or the proceedings relating to the co-offender have not advanced as quickly. Sometimes there are delays in apprehending co-offenders. It is not always possible for the same Judge to sentence co-offenders and when this occurs, then I agree that the practice which should be followed is that set out by Kennedy J in his reasons.

40 The next difficulty in the matter is that after careful thought I have reached the view that the co-offender's sentence imposed on the second occasion was not proportionate to the criminality of the offending, having regard to the circumstances of the offender, and would be a sentence seen as being wholly inadequate. I would see the sentence in the first instance as being at the lowest end of the scale, but having proper regard to the circumstances of the offender. This places the court in a dilemma. The applicant would have a sense of grievance by reason of the fact that his co-offender has received a sentence half of what he did. If the court took the simple expedient of reducing the applicant's sentence to that of his co-offender, the community would have a sense of grievance by reason of a crime that is prevalent and which was repeated by the applicant not being adequately punished. The victims of the offences would also have a similar sense of grievance. There have been a number of cases and some text book authority dealing with this question. These were referred to by Wallwork J in R v Capper (1993) 69 A Crim R 64

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that there could be substituted as lenient a sentence as could be justified. In my view these cases are not inconsistent with what was said in Lowe or in Postiglione v The Queen (1997) 189 CLR 295.

42 In the present case I have reached the view that the sentence imposed on the applicant was as lenient a sentence as could be justified within the accepted range of sentences for the type of offences committed by the applicant. Any lesser sentence would be seen as wholly inadequate. I do not consider that an objective bystander would see the applicant as being unjustly treated, when he, on being first sentenced, received a sentence as lenient as possible within the accepted range. The applicant would undoubtedly think it unfair that his co-offender received the lesser sentence but I do not see it open for court as being able to rectify this situation as the sense of grievance in other areas would become far greater.

43 I would, because of the issues raised, grant leave but dismiss the appeal.

44 MURRAY J: In this case I have had the considerable advantage of access to the reasons for decision published by Kennedy J. They relieve me of the need to say much at all about the circumstances of the case. I note, however, that the applicant was nearly three years younger than the co-offender, Reeves, who was sentenced not only for all the offences on the indictment and the notice under the Sentencing Act 1995 (WA) s 32 to which the applicant pleaded guilty, but to additional serious offences, and yet the applicant was sentenced on 25 March 1999 to an aggregate term of 7 years' imprisonment and on 30 April 1999 Reeves was sentenced to an aggregate term of 3-1/2 years' imprisonment. His Honour imposed the sentences upon Reeves knowing what sentences for what offences the applicant had received, but not being told any more about the circumstances in which those sentences had been imposed. I respectfully agree with Kennedy J that there is no difference in the respective roles of the applicant and the co-offender in the commission of the offences, or in their personal antecedents, which could possibly justify such a serious manifest disparity in the sentences imposed.

45 The learned Judge who sentenced the applicant considered that, on the ground of such mitigating circumstances as were available, he was taking as lenient an approach to the task of sentencing as could be justified. I respectfully agree. The difficulty I have then is not only do I consider, in respectful agreement with Kennedy J, that the applicant's sentences considered alone could not be challenged, but having regard to

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all the circumstances I consider that the sentences imposed on the applicant are about as lenient as could possibly be justified. They are right at the bottom end of the range of sentences proportionate to the total criminality involved in the applicant's case. What then is to be done?

46 The applicant has abandoned his original ground of appeal which sought to challenge the severity of the sentences imposed upon him, individually and in their totality. He concedes that it is not open to him to proceed in that way and bases the application for leave to appeal entirely upon the ground of disparity of treatment between himself and Reeves. His counsel notes that the Crown has inexplicably not appealed against the inadequacy of the sentences imposed upon Reeves, but he submits, I think correctly, that that will not prevent the court in an appropriate case from reducing the sentences individually or in their aggregate imposed on the applicant in an appropriate case.

47 It must not be overlooked that this case must be dealt with within the framework of the Criminal Code (WA) s 689(3) which is in the following terms:

"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

In my view two fundamental propositions emerge from that provision. The first is that this Court is not justified in intervening to quash a sentence passed at first instance unless the members of this Court "think that a different sentence should have been passed"; ie: that the exercise of discretion has miscarried, or for some other reason a miscarriage of justice has occurred. Even then, the sentence to be substituted by this Court must be that which we think "ought to have been passed". It follows in my view that where this Court is moved by the application of what has come to be known as the parity principle to quash a sentence or term of imprisonment, it may only accede to that proposition if it concludes that it was open to the court below to pass a more lenient sentence or impose a shorter term of imprisonment, in which case the imposition of that term will mark the extent to which this Court may go to reduce the disparity.

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48 In my opinion that is consistent with the decided authorities. The leading case is the decision of the High Court in Lowe v The Queen (1984) 154 CLR 606. At 609 - 610 Gibbs CJ said that a similarly worded provision of the Qld Criminal Code was:

"…wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

Of course, it must be the case that the disparity gives the appearance that justice has not been done in the instant case which is before the court, not solely in the other case in which the disparate sentence was passed.

49 At 613 Mason J expressed the same proposition when he said that:

"…the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander."

His Honour added at 613 - 614 that in correcting the disparity, whilst the court was entitled to reduce a sentence which would otherwise be considered to be appropriate, it could not do so to the level where the sentence became, or could be regarded, as being inadequate. His Honour said that:

"…a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

- but not, by necessary implication, beyond that point.

50 Brennan J at 617 agreed that it was not the law that the appellate court was bound to reduce the greater sentence under appeal so as effectively to convert a situation in which there was one wrong sentence and one right sentence to one in which both sentences were wrong.

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His Honour would have confined the situation where the appellate court might act on the ground of disparity in the following way:

"…where an appellate court determines that the lesser of the sentences imposed upon co-offenders is appropriate, it ought not to allow a sentence of markedly greater severity to stand unless there are differences in the gravity of the conduct of the co-offenders or in their antecedents sufficient to warrant the disparity." (618)

As Kennedy J has noted, Dawson J in Lowe at 623 expressed the same point of view and Wilson J agreed with Gibbs CJ and Dawson J.

51 The High Court revisited the parity principle in Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 301 - 303, McHugh J at 309, Gummow J at 322 - 323 and Kirby J at 335 - 342. But the case did not require any consideration of the question of the limit of the extent to which the principle may require the reduction of a sentence within the appropriate range of penalties to correct or reduce disparity between that sentence and the sentence imposed upon a co-offender. None of their Honours made any observations about that.

52 There are many reported cases in all of the Australian jurisdictions which are concerned with the proper application of the parity principle. It is fair to say that they are generally cases which have been decided since the 1970s and that better understanding of the principle has only emerged since the latter part of that decade and the earlier part of the following decade. Kennedy J has referred to a number of such authorities. Many of them are concerned with particular or unusual circumstances affecting the comparison of sentences between co-offenders, eg R v Hodges (1997) 95 A Crim R 85 was a case where the disparity arose out of what turned out to be unjustified leniency accorded to a co-offender who had promised assistance to the prosecuting authorities which was not ultimately forthcoming.

53 In R v Nikodjevic [1998] 2 VR 33 the Court of Appeal of Vic dealt with a Crown appeal against inadequacy of a sentence imposed upon the third of a group of three attempted drug traffickers by the same Judge. His Honour reduced the sentence on parity grounds, although he concluded that he had been misled in relation to the factual basis upon which he had earlier sentenced the two co-offenders. Although the Court of Appeal concluded that the sentence imposed on the respondent was far too low in the particular circumstances of the case, by a majority the court declined to intervene and the Crown's appeal was dismissed.

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54 In R v MacGowan (1986) 42 SASR 580 at 582 - 583 King CJ, with whom Mohr and von Doussa JJ agreed, expressed the principles to be applied in the sentencing of co-offenders and upon an appeal by a co-offender upon the ground of disparity of sentence. His Honour's third proposition at 583 is as follows:

"Marked disparity of sentences imposed upon co-offenders by different Judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorised by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case."

The limit of the application of the principle is clearly expressed, although for myself, with respect, I would not agree if his Honour was intending to convey that the need to apply the parity principle to any degree is removed when the other sentence is not within the range of sentences properly open on the facts.

55 It may be the case that in the various Australian jurisdictions the courts have not always expressed the proper application of the principle in consistent terms, but with respect I think that is not the case in WA. Holtom & Marriott v R [1970] WAR 85 is a decision of the Court of Criminal Appeal of this State which precedes that of the High Court in Lowe. The question in that case was said to be how far the court should take into account disparity of sentence in considering an appeal. Virtue SPJ at 86 relied upon an earlier Victorian decision to hold that:

"disparity of sentence and the desirability of avoiding an appearance of injustice cannot require a court to impose a

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sentence which its members would regard as a wholly inappropriate sentence for the particular crime."

Nevile and Hale JJ agreed.

56 In R v Robertson (1989) 44 A Crim R 224, this Court, comprised of Malcolm CJ, Pidgeon and Walsh JJ, addressed the case where the sentence imposed upon a co-offender was "wholly inappropriate" by saying that in that circumstance:

"…the breach of the so-called parity principle may no longer be relevant to this application. The parity argument must give way in the face of a patently inadequate sentence imposed upon a co-offender by another court." (228)

57 The law was stated with perhaps a little more refinement in R v Capper (1993) 69 A Crim R 64. Wallwork J reviewed relevant authorities and a learned text and came to the view which Anderson J succinctly expressed at 74, relying upon the judgment of Mason J in Lowe, that in that case the disparity should be reduced. His Honour said:

"The relevant principles do not compel the court to exactly follow the sentence imposed on the co-offender if it considers that would result in a wholly inappropriate sentence. When a co-offender has been treated with excessive leniency, justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner including his record."

Kennedy J dissented on the ground that there was no unjustifiable discrepancy between the sentences imposed on the applicant and the co-offender and his Honour considered that any reduction in the sentence which he would otherwise be prepared to make "would amount to an impermissible tinkering with it" (66). The passage quoted above from the judgment of Anderson J in Capper was recently adopted as a correct statement of the law by Pidgeon J, with whom Ipp and Anderson JJ agreed, in Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999.

58 In the result therefore, it seems to me that the law is that the parity principle as formulated by the High Court in Lowe is to be regarded by a sentencing Judge as part of the final process, which includes consideration of the totality principle, of checking that as an exercise of discretion, the sentence imposed is in all the circumstances just. The principle always

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applies where a sentence has been imposed upon a co-offender for the same offence or group of offences. It is a similar consideration to that which causes a sentencing Judge to seek consistency between the sentence imposed in the instant case and that imposed by other Judges upon like offenders.

59 In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co-offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which may be passed for the offence before the court.

60 For the appellate court the principle is of equal importance. Such a court, appreciating that it is dealing with an exercise of judicial discretion by the sentencing Judge, will test whether that process has miscarried inter alia by reference to the parity principle, but again, whether that leads to a sentence being quashed and substituted by one passed by the appellate court involves an act of discretionary judgment.

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

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62 In this case, after anxious consideration of the sentences imposed individually and in their aggregate by the learned sentencing Judge, in all the circumstances of the case as Kennedy J has discussed them, I am unable to bring myself to the view that pursuant to the parity principle, any reduction of substance would be permissible; and it must be borne in mind that this Court may not indulge in impermissible tinkering with sentences. Whilst, in view of the issue requiring discussion I would grant leave to appeal, I would dismiss the appeal.