Higgs v The State of Western Australia
[2014] WASCA 100
•5 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HIGGS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 100
CORAM: BUSS JA
MAZZA JA
HEARD: 1 APRIL 2014
DELIVERED : 5 MAY 2014
FILE NO/S: CACR 217 of 2013
BETWEEN: TRAVIS ALLAN HIGGS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 494 of 2013
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of stealing equipment having a total value of $80,000 - Appellant sentenced to 2 years 6 months' immediate imprisonment - Related offender convicted of possessing the stolen equipment which he reasonably suspected was stolen or otherwise unlawfully obtained - Related offender sentenced to 3 months' immediate imprisonment - Parity principle - Principle of equal justice - Leave to appeal refused
Legislation:
Criminal Code (WA), s 378, s 428
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: No appearance
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274
Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
Rooke v The Queen [2011] VSCA 49
Tomov v The Queen [2011] WASCA 189
BUSS JA: This is an application for leave to appeal against sentence.
On 22 October 2013, the appellant was convicted, on his plea of guilty in the District Court, of one count in an indictment. The count alleged that on 27 May 2012, at Kwinana, the appellant stole a Bobcat excavator and a Bobcat skid steer loader the property of Onsite Rental Group Operations (WA) Pty Ltd trading as Onsite Rental Group Kwinana, contrary to s 378 of the Criminal Code (WA) (the Code). The maximum penalty for the offence is 7 years' imprisonment.
On 22 October 2013, Bowden DCJ (the primary judge) sentenced the appellant to 2 years 6 months' immediate imprisonment. A parole eligibility order was made.
On 27 June 2013, Leslie Bruce Thornley was convicted, on his plea of guilty in the Magistrates Court at Rockingham, of one charge in a prosecution notice. The charge alleged that between 27 May 2012 and 2 July 2012 Mr Thornley had in his possession the excavator and loader, the subject of the count in the indictment against the appellant, which had been stolen and which Mr Thornley reasonably suspected to be stolen or otherwise unlawfully obtained, contrary to s 428 of the Code. The maximum penalty for the offence is 2 years' imprisonment and a fine of $24,000.
On 27 June 2013, Magistrate Temby sentenced Mr Thornley to 3 months' immediate imprisonment, to be served concurrently with any other terms of imprisonment then being served by him.
The proposed ground of appeal
The appellant relies on one ground of appeal.
The ground, as explained by counsel for the appellant at the hearing, alleges in essence that the primary judge erred in law in that the length of the sentence of 2 years 6 months' immediate imprisonment infringed the parity principle or the principle of equal justice.
The particulars of the ground assert, relevantly, that the appellant 'has been left with a justifiable sense of grievance due to the marked disparity between [the length of] his sentence and [the length of] the sentence of the related offender', namely Mr Thornley.
So, the challenge concerns the disparity in the length of the individual sentences of imprisonment.
The facts and circumstances of the appellant's offending and his personal circumstances and antecedents
On Sunday 27 May 2012, between 7.00 am and 4.00 pm, the appellant and an unknown associate went to the premises of Onsite Rental Group Kwinana. The appellant cut and removed a section of the fence surrounding the premises. He entered the premises and approached a Bobcat excavator and a Bobcat skid steer loader that were parked in a yard. The appellant used a drill on the door locks of the equipment. The drilling caused the locks to open. He then used the drill on the ignitions of the excavator and the loader. The drilling caused the engines of the equipment to start. The appellant then drove the equipment from the premises. He parked the excavator and the loader at a distant location in bushland. Later, the appellant used his vehicle and a trailer he had hired to transport the equipment to an address in Baldivis where it was sold to a third party for $1,000.
On 2 July 2012, police located the stolen excavator and loader at a rural property in Banjup. The appellant's fingerprints were on the bucket of the loader.
On 10 August 2012, the appellant was arrested. He participated in a video recorded interview with police. During the interview the appellant admitted the offence. He explained that he needed money at the time and was paid $1,000 for the equipment.
The appellant was born on 25 January 1988. He was aged 24 at the time of the offending and 25 when sentenced. He had a significant prior criminal record. The appellant's previous convictions included reckless driving (multiple offences); other traffic infringements (multiple offences); stealing; stealing a motor vehicle; stealing a motor vehicle and driving recklessly; gaining a benefit by fraud; possessing a controlled weapon; and assault occasioning bodily harm. He had been sentenced to terms of immediate imprisonment on numerous occasions.
The material before the primary judge included a report dated 8 September 2013 from Roxanne Buktenica, a clinical psychologist, and a pre‑sentence report dated 9 September 2013.
Ms Buktenica's report included the following summary in relation to the appellant and his offending behaviour:
•[The appellant's] childhood has been marred by the separation of his parents at a young age and ongoing exposure to illicit substance abuse. He described a poor attachment or connection with his parents and does not appear to have had his emotional needs met.
•Given his parents' issues with illicit substance use, it is probable [the appellant] was not taught appropriate skills in decision‑making, problem solving or coping skills. He appears to use avoidance and denial of problems as his main coping [strategy] and his use of illicit substances assists him to do this.
•[The appellant] has been exposed to illicit substance use from a young age and this type of behaviour [has] been normalised for him. He was exposed to this behaviour in the home environment and started interacting with antisocial peers where this behaviour was further normalised.
•[The appellant] became heavily entrenched in this peer group and he has used amphetamines and cannabis for over ten years. His use of substances has contributed to his offending behaviour, interfered with his ability to maintain employment, build stable relationships or live a pro‑social lifestyle. Despite this, he acknowledged that he does not perceive his cannabis use as problematic and tended to minimise and justify his use of illicit substances.
•[The appellant] has spent significant periods of his adult life incarcerated and admitted that he quickly returns to substances use and offending when released from custody. He lives an unstructured lifestyle with minimal employment and involvement in pro‑social activities and gravitates back to his old peer group due to boredom, loneliness or habit.
•In relation to his offending behaviour, this appears to be [a] result of his issues with illicit substance use, poor decision making, unstructured lifestyle, antisocial peers, poor consequential thinking.
•Further factors that contribute to his behaviour include that he has interacted in a group where using substances and offending is normalised. His use of substances results in him living an unstructured lifestyle, removing himself from positive influences and contributes to his poor decision‑making and poor problem solving.
•[The appellant] needs to make the systemic changes in his lifestyle to support him to cease offending and using substances and needs to develop increased coping skills to deal with problems, rather than being avoidant.
The author of the pre‑sentence report said the appellant's offending behaviour stemmed from significant personal issues arising from his unsatisfactory upbringing, a chaotic lifestyle, difficulties with the management of anger and emotions, depression, and entrenched drug and alcohol abuse.
The appellant's compliance with previous community based orders has been poor. He failed to attend a scheduled interview with the author of the pre‑sentence report and made no attempt to engage in the interview process. As a result, the pre‑sentence report was prepared without any interaction between the author and the appellant.
The primary judge referred in his sentencing remarks to the facts and circumstances of the appellant's offending and his personal circumstances and antecedents.
His Honour made the following findings or comments:
(a)The excavator and loader had a total value of about $80,000 (ts 29).
(b)The equipment was recovered (ts 29).
(c)The appellant's offending was planned and premeditated. He acquired the drill and also the vehicle and trailer required to transport the equipment (ts 29 ‑ 30).
(d)The appellant stole the equipment for profit (ts 29).
(e)Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour reduced the head sentence he would otherwise have imposed by 25% (ts 29).
(f)The offence was so serious that nothing other than a term of immediate imprisonment was appropriate (ts 31).
The primary judge also sentenced the appellant for other offences including 4 months' immediate imprisonment for driving a motor vehicle while legally disentitled to drive and 1 month's immediate imprisonment for breach of bail. The 4‑month sentence was ordered to be served cumulatively on, and the 1‑month sentence was ordered to be served concurrently with, the term of 2 years 6 months' immediate imprisonment for the stealing offence.
The facts and circumstances of Mr Thornley's offending and his personal circumstances and antecedents
Between 27 May 2012 and 2 July 2012 Mr Thornley came into possession of the stolen excavator and loader. He knew they had been stolen. The equipment was put in a sea container on Mr Thornley's property at Banjup.
Mr Thornley had previously acquired the sea container for the purpose of storing some of his goods when his marriage was disintegrating. However, he did not use the sea container for that purpose. Another person, a Mr Carling, approached Mr Thornley and asked him whether he could store the stolen excavator and loader in the sea container for safekeeping. Mr Thornley agreed.
On 2 July 2012, police attended at Mr Thornley's property in connection with another matter. The police opened the sea container and the stolen equipment was located.
Initially, Mr Thornley was charged with receiving the equipment, contrary to s 414 of the Code. The maximum penalty for this offence is as follows:
(a)if the court is satisfied as to the act by means of which the property was obtained, to the penalty provided for the offence constituted by that act, or to imprisonment for 14 years, whichever is the lesser;
(b)otherwise, to imprisonment for 14 years.
After negotiations between the office of the Director of Public Prosecutions (WA) and Mr Thornley's legal representatives, the charge was amended from the more serious offence of receiving to the less serious offence of possessing stolen property which the offender reasonably suspected was stolen or otherwise unlawfully obtained.
On 31 May 2013, the State made application in the District Court, before Martino CJDC, to amend the charge in the prosecution notice and remit the matter to the Magistrates Court. His Honour made orders in terms of the State's application. The matter was remitted to the Magistrates Court at Rockingham. As I have mentioned, on 27 June 2013 Magistrate Temby sentenced Mr Thornley for the offence in question.
Mr Thornley was born on 15 May 1965. He was aged 47 at the time of the offending in question and 48 when sentenced. He has a prior criminal record. Before 10 April 2012, his previous convictions comprised three relatively minor traffic offences that were punished by fines of $200, $350 and $150. On 10 April 2012, Mr Thornley committed a number of serious offences. They comprised possession of a prohibited drug (methylamphetamine) with intent to sell or supply the drug to another (two counts), possessing stolen property reasonably suspected of being stolen or otherwise unlawfully obtained (two counts) and possessing unlicensed ammunition. On 7 November 2012, Mr Thornley was sentenced in the District Court by Schoombee DCJ for the drug offences. Her Honour imposed a total effective sentence of 3 years 8 months' immediate imprisonment. On 21 November 2012, Mr Thornley was sentenced in the Magistrates Court at Mandurah for the other offences. The magistrate imposed a sentence of 1 month's imprisonment (concurrent with the sentence being served for the drug offences) on each count of possessing stolen property reasonably suspected of being stolen or otherwise unlawfully obtained and a fine of $300 for possessing unlicensed ammunition.
On 27 June 2013, Magistrate Temby said that Mr Thornley's plea was entered 'at an early stage in the process' (ts 5) in that the charge was amended on 31 May 2013 and he entered his plea of guilty to the amended charge on 27 June 2013. His Honour referred to the sentences imposed by Schoombee DCJ for the drug offences and he decided that in the circumstances the appropriate sentence was 3 months' immediate imprisonment to be served concurrently with the other terms of imprisonment then being served by the appellant.
The merits of the proposed ground of appeal
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. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). 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. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a primary 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. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
More recently, 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].
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] ‑ [203] (Campbell JA, Rothman J generally agreeing), [245] ‑ [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] ‑ [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] ‑ [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] ‑ [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].
The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [27].
See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing).
In the present case, I will assume (without deciding), favourably to the appellant, that the parity principle or the principle of equal justice applies, at least by analogy, to the sentencing of the appellant and Mr Thornley in relation to the excavator and loader.
In my opinion, there were numerous critical differences between the appellant and Mr Thornley which, in combination, justified the disparity in the sentencing outcomes.
First, the appellant was convicted of the more serious offence of stealing, contrary to s 378 of the Code, whereas Mr Thornley was convicted of the less serious offence of possessing stolen property which
he reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 428 of the Code. Secondly, the maximum penalty for the offence committed by the appellant was 7 years' imprisonment whereas the maximum penalty for the offence committed by Mr Thornley was 2 years' imprisonment and a fine of $24,000. Thirdly, the appellant was sentenced on the basis that he broke into and entered the premises of the complainant; he used a drill on the door locks of the equipment and on the ignitions of the equipment to facilitate their theft; he drove the equipment from the premises and, later, used his vehicle and a trailer he had hired to transport the equipment to an address in Baldivis; his offending was planned and premeditated; and he stole the equipment for profit. By contrast, Mr Thornley was sentenced on the basis that he 'merely' agreed to the equipment being stored in a sea container on his property. Magistrate Temby did not make a finding, and Mr Thornley made no admission, as to the length of time the equipment was stored in the sea container. It is readily apparent that the appellant's offending was significantly more culpable than Mr Thornley's. Fourthly, Mr Thornley's personal circumstances and antecedents were marginally more favourable than the appellant's.
After evaluating all relevant sentencing factors in relation to the appellant and Mr Thornley, I am satisfied that it is not reasonably arguable that the disparity in the sentencing outcomes in relation to the offences in question (2 years 6 months' immediate imprisonment in the case of the appellant and 3 months' immediate imprisonment in the case of Mr Thornley) infringed the parity principle or the principle of equal justice. The disparity in the sentencing outcomes was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and Mr Thornley or generally.
Conclusion
The proposed ground of appeal does not have a reasonable prospect of success. Leave to appeal must be refused and the appeal dismissed.
MAZZA JA: I agree with Buss JA.
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