Goedhart v The State of Western Australia
[2011] WASCA 61
•17 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GOEDHART -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 61
CORAM: McLURE P
BUSS JA
HEARD: 25 FEBRUARY 2011
DELIVERED : 17 MARCH 2011
FILE NO/S: CACR 169 of 2010
BETWEEN: WARREN DOUGLAS GOEDHART
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
File No :IND 876 of 2010
Catchwords:
Criminal law - Appeal against sentence - Parity principle - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Code (WA), s 338A(d)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P B Cassidy
Respondent: No appearance
Solicitors:
Appellant: David Walls & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
McAlear v The State of Western Australia [2008] WASCA 39
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
McLURE P: This is an application for leave to appeal against sentence. The appellant, and his co‑offender Paul Raymond Burkhardt, were convicted on their pleas of guilty of one count of making a threat with intent to compel the doing of an act by a person who was lawfully entitled to abstain from doing the act, contrary to s 338A(d) of the Criminal Code (WA).
The appellant and his co‑offender were each sentenced by Stone DCJ on 23 September 2010 to 20 months' imprisonment and were made eligible for parole.
The appellant contends that the sentence infringes the parity principle and is manifestly excessive. The facts found by the sentencing judge, based on telephone intercept material, are as follows. The co‑offender had known the complainant for 20 years. Their relationship was amicable until 2009. Some time in that year, the co‑offender and the appellant went to the complainant's home. The complainant was told that he had to sell a property he owned to pay off a debt of $100,000 that the co‑offender believed was owed to him. No overt threats were made on this occasion. The complainant placed the property on the market.
Around 12 November 2009, the co‑offender, the appellant and a third man went to the complainant's home. They walked in uninvited and told the complainant to sign his property over to them so that the co‑offender could be repaid the debt he believed was owed to him. Both the appellant and the co‑offender threatened to bash, hit or smack the complainant if he did not do what he was told. The complainant's partner was also in the house at the time. The three men left after approximately 10 minutes.
There was a meeting on 24 November 2009 between the co‑offender, the appellant and the complainant's real estate agent at which a document was provided to the agent purporting to show that the complainant had signed over title to his property to the co‑offender. That document was amended in the presence of the agent to reflect that the co‑offender was prepared to accept $100,000 to relinquish ownership of the property. The complainant subsequently sold his property to a bona fide purchaser and no money was provided to the co‑offender.
The sentencing judge found that the appellant turned up at the complainant's house on 12 November 2009 knowing he was there to back up the co‑offender. That finding was based on telephone intercept material which disclosed that the appellant had an interest in what was happening to the property that went beyond mere friendship with the co‑offender. He also relied on the fact that the third member of the group was a member of an outlaw motorcycle gang.
The sentencing judge identified a number of aggravating factors. First, that the offence was committed in company, there being three involved in the making of the threats to the complainant. Secondly, the offence was committed at a time when the only other person present was the complainant's de facto wife. This finding related to the complainant's perception of the capacity of the three offenders to carry through with the threat (ts 134). Thirdly, the complainant was aware that the appellant and the third man were members of outlaw motorcycle gangs, which would make the threat more intimidating and menacing.
The appellant and the co‑offender were both aged 35 at the time of sentencing. References were provided in relation to each man. Both the co‑offender and the appellant had prior criminal records. The co‑offender had no convictions for offences involving actual or threatened violence. The majority of his offences were drug‑related (possession) and traffic offences. The appellant's prior criminal record was significantly worse than his co‑offender's in terms of the frequency and the seriousness of the offending. His very lengthy record included convictions for assault occasioning bodily harm (2), armed robbery (2) and possession of a prohibited drug with intent to sell or supply (2).
Both men pleaded guilty on the first day of trial in circumstances where a more serious charge was not proceeded with by the State. It was treated by the sentencing judge as an early plea of guilty. The sentencing judge considered the respective culpability of the co‑offender and the appellant as follows:
Mr Goedhart, your propensity for violence as indicated by your criminal conviction makes your moral culpability more serious, and shows that you have not learnt to stop using violence in your dealings with people. I'm also satisfied that, from what I've heard, that Mr Burkhardt was aware that you and the other man, Anderson, were members of an outlaw motorcycle gang, and that he used you and Mr Anderson as muscle. And to that extent, I accept his role was more culpable than that of you, Mr Goedhart.
But it seems to me that, given the part played by each of you, the differences in your criminal histories, and that each of you threatened [the complainant], and that each of you were involved in matters ultimately concerning the sale of the land with the real estate agent, that I see no reason to distinguish between you. You were both using strongarm tactics to enforce, by threat, your intention.
Parity
The principle of parity is explained by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 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 (609).
We are here concerned with whether the parity principle has been infringed as a result of a lack of disparity in the sentences imposed upon the co‑offenders. The question is whether the sentencing is capable of giving rise to a justifiable sense of grievance (Lowe (610)).
This ground of appeal is hopeless. The sentencing judge's reasons provide a cogent justification for imposing the same sentence on both men.
Manifest excess
An appellate court is only entitled to intervene in the exercise of a sentencing discretion if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error from the sentence itself. A relevant factor in considering manifest excess is the standards of sentencing customarily imposed for the offence in question. The two cases on which the appellant relied (McAlear v The State of Western Australia [2008] WASCA 39 and The State of Western Australia v Amoore (2008) 182 A Crim R 165) do not establish the range of a sound exercise of the sentencing discretion for the offence committed by the appellant. Having regard to all relevant sentencing factors, the appellant has no reasonable prospect of establishing manifest excess.
Accordingly, leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
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