Hill v Lyon
[2018] WASC 6
•12 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HILL -v- LYON [2018] WASC 6
CORAM: CHANEY J
HEARD: 28 NOVEMBER 2017
DELIVERED : 12 JANUARY 2018
FILE NO/S: SJA 1054 of 2017
BETWEEN: SEAN HILL
Appellant
AND
RAIMON LYON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P G MALONE
File No :FR 6203 of 2017, FR 6204 of 2017, FR 6205 of 2017, FR 6206 of 2017, FR 6207 of 2017, FR 6208 of 2017, FR 6209 of 2017, FR 6210 of 2017, FR 6211 of 2017
Catchwords:
Criminal law - Sentencing - Parity principle - Whether relevant differences between co-offenders - Resentencing - Subsequent conviction of appellant for different offence - Subsequent penalty imposed having regard to sentence set aside on appeal
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Appellant to be resentenced following further submissions of parties
Category: B
Representation:
Counsel:
Appellant: Ms S H King
Respondent: Ms K C Cook
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Stoysich v The State of Western Australia [2014] WASCA 208
CHANEY J: On 15 August 2017, the appellant appeared in the Perth Magistrates Court on nine charges. He pleaded guilty to all charges. The magistrate imposed a total effective sentence of 1 year 9 months imprisonment backdated to 29 June 2017 and a fine of $200. The appellant was made eligible for parole.
All but one of the offences to which the appellant pleaded guilty were committed with a co‑accused, Mr Merendino. The offence charged only against the appellant was a charge of possession of 2 g of heroin. Mr Merendino also faced a charge with which the appellant was not charged, being possession of 4 g of cannabis. Mr Merendino was sentenced by the same magistrate shortly before the appellant was sentenced. The total effective sentence on Mr Merendino was 12 months imprisonment suspended for 14 months, together with some fines.
The appellant seeks leave to appeal against the sentence imposed upon him. There is a single ground of appeal. That ground is that the appellant has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence of his co‑accused.
On 26 October 2017, Martino J ordered that the application for leave to appeal is to be heard with the appeal.
The sentences imposed
The charges faced by each of the appellant and Mr Merendino, and the penalties imposed, are set out in the following table:
| Offence | Summary of facts | Penalty imposed on appellant | Penalty imposed on Mr Merendino |
| Aggravated home burglary (FR 6203/17) | On 29 June 2017 between 5.45 am and 4.25 pm the accused forced the rear laundry door of a dwelling and stole $,4,500 worth of musical items, jewellery and electronic items | 12 months imprisonment | 12 months imprisonment suspended |
| Stealing from dwelling (FR 6204/17) | Stealing items referred to in FR 6203/17 | No penalty | No penalty |
| Stealing (FR 6205/17) | Between 8.30 pm on 28 June and 6.45 am on 29 June 2017, the accused forced a lock on a truck and stole electrical components and tools to the value of $5,000 | 6 months imprisonment concurrent | 12 month community based order |
| Attempted aggravated burglary with intent (FR 6206/17) | At 5.45 am on 29 June 2017, the accused attempted to gain entry to Toolmart O'Connor by trying to remove the front padlock using an angle grinder to remove padlocks but were unsuccessful at gaining entry | 9 months imprisonment cumulative | 9 months imprisonment concurrent |
| Criminal damage (FR 6207/17) | Between 6.17 am and 6.29 am on 29 June 2017, the accused used an angle grinder to cut a padlock from the top of a LPG filling station at BCF Myaree and stole a gas refilling hose to the value of $150 | 1 month imprisonment concurrent | $500 fine (global with stealing) |
| Stealing (FR 6208/17) | Stealing the gas refilling hose referred to in FR 6207/17 | $200 fine | $500 fine (global with damage) |
| Aggravated burglary (FR 6209/17) | Between 6.17 am and 6.29 am on 29 June 2017, the accused entered the rear of Inspirations Paint and Colour via an open roller door and stole a tin of paint and two sets of respirators valued at $150 | 10 months imprisonment concurrent | 10 months imprisonment concurrent |
| Stealing (FR 6210/17) | Stealing the items referred to in FR 6209/17 | No penalty | No penalty |
| Possession of heroin (FR 6211/17) | The appellant was found in the possession of 2 g of heroin | 1 month imprisonment concurrent | Not a co‑accused |
| Possession of Cannabis (FR 6211/2017) | Mr Merendino was found in possession of 4 g of cannabis | Not a co‑accused | $300 fine |
Putting aside some differences in the fines imposed, and the imposition of a community based order on Mr Merendino for a period shorter than a period of suspension of his imprisonment, the substantial difference in the penalties imposed on the two accused consisted of the accumulation of the sentence of 9 months imprisonment on the attempted aggravated burglary charge in the appellant's case, and the suspension of Mr Merendino's imprisonment.
The suspension of Mr Merendino's sentence is not relied upon as giving rise to a sense of grievance on the appellant's behalf. The ground of appeal is solely focused on the difference between the total effective sentence of 21 months imprisonment in the appellant's case, as against the 12 months imprisonment imposed upon Mr Merendino.
Legal principles
What is referred to as the parity principle was explained by Buss JA in Stoysich v The State of Western Australia[1] when his Honour (with whom Martin CJ and Mazza JA agreed) said:
[1] Stoysich v The State of Western Australia[1][2014] WASCA 208 [39] ‑ [42].
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 R [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623‑624 (Dawson J); Postiglione v R [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 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 sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.
In Green v R [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.
His Honour then discussed the difficulties which arise in the application of the parity principle where offenders have not been charged with or found guilty of committing precisely the same offence or offences. That is not the present case. Here, with the exception of the charges in relation to possession of drugs with which each accused was separately charged, both the appellant and Mr Merendino were both joint participants in, and pleaded guilty to, the same offences. Parity in sentencing was thus a relevant consideration in sentencing the appellant, and the question that arose was whether there were differences in relation to age, background, criminal history, general character or the part played by each offender in the relevant criminal conduct. As will be seen, the magistrate was well aware of that question.
The role of each accused
The statement of material facts before the magistrate made no distinction as to the role played by each of the appellant and Mr Merendino in relation to the offences for which they were jointly charged. The material facts before the magistrate were identical in relation to each of the co‑accused save that Mr Merendino made a number of admissions when interviewed by police following his arrest, whereas the appellant made no admissions. Both accused, however, pleaded guilty to the charges at the first available opportunity.
The magistrate's sentencing remarks
As noted above, the magistrate sentenced Mr Merendino separately from, and approximately 45 minutes before, the appellant. In sentencing the appellant, the magistrate had before him, and referred to, a pre‑sentence report which indicated that the appellant was considered suitable for a community based disposition. He also had before him two personal references. He noted that neither the appellant nor Mr Merendino had a prior record for burglary offences.[2]
[2] ts 6 (15 August 2017).
His Honour was clearly conscious of the parity principle in dealing with the appellant. He said:[3]
HIS HONOUR: Well, look, I do think it's necessary for Mr Hill to understand that the normal situation is that you would expect there to be parity between - - - offenders. And I appreciate there's a world of different between a 21-month sentence and a 12-month sentence suspended for 14 months. There is a world of difference - I acknowledge that - for people that are essentially co-offenders. But it just seemed to me that there was such a difference between their antecedents that this is something that can be explained.
And Mr Hill's antecedents are just wildly different. He's 20 years younger, just been released from prison, hadn't committed burglaries but done lots of other things. His record didn't do him any favours. Being on all sorts of things - pre-sentence orders and intensive supervision orders along the way, suspended terms of imprisonment. And then, of course, in recent times, imprisonment, which is to say not just the last episode of imprisonment, but imprisonment for that, I think.
[3] ts 6 (15 August 2017).
After some discussion of the appellant's record, and the circumstances which led to him serving a term of imprisonment which had initially been suspended, his Honour returned to the question of parity, saying:[4]
HIS HONOUR: Can I - again, just for completeness, and not with a view to trying to shore up something that might be productive or error, but the sentences that I've foreshadowed for Mr Hill are, by and large, exactly the same sentences that I imposed for Mr Merendino. But I made his sentences all concurrent. Whereas, I'm saying I would accumulate one of the attempted burglary, which is the shorter one - the nine months on top of the 12 months. Otherwise, those sentences are - I mean, I imposed some fines for the damage and also the possession of drugs of Mr Merendino.
[4] ts 8 (15 August 2017).
An exchange with counsel concerning the appellant's family circumstances then followed. The substance of the exchange was to the effect that the magistrate placed little weight on the appellant's personal circumstances. In his sentencing remarks, the magistrate referred to the fact that these offences had occurred shortly after the appellant's release from prison. He reviewed previous penalties that had been imposed on the appellant and his unsatisfactory compliance with community based orders, including a suspended imprisonment order. He acknowledged that the pre‑sentence report had assessed the appellant as suitable for community based disposition, and recognised that the appellant had undertaken a cognitive skills course and had significant support from the two referees who had expressed faith in the appellant's ability to 'finally turn the corner'. The magistrate continued:[5]
Now, finally, to add to the complexity, if you like, of this matter, is that you were associated with a co‑offender who I have released on a suspended sentence, but I've indicated that, as much as I'm conscious that normally you deal with co‑offenders equally - that there is a world of difference between you and Mr Merendino.
So I've come up with both a shorter prison sentence and the fact that it should be suspended, whereas I'm indicating to you that I'm going to sentence you to imprisonment, and I'm not going to suspend it. I will make you eligible for parole, and I will backdate it, but I remain of the view that it would be inappropriate to do otherwise than to sentence you to imprisonment.
[5] ts 15 (15 August 2017).
The magistrate ascribed the full 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) for the appellant's pleas of guilty. His Honour then proceeded to impose the penalty set out in the table above after saying:[6]
So, it seems to me, and I recognise that you might feel aggrieved about the situation, but I've considered, I think, everything that I need to and arrived at - sadly for you - the decision that you have to be sentenced to imprisonment and that it's not appropriate to suspend it.
[6] ts 15 (15 August 2017).
Sentencing of Mr Merendino
The magistrate's sentencing remarks in relation to Mr Merendino were brief. The magistrate received an oral pre‑sentence report which outlined Mr Merendino's personal background, and identified that he suffered from 'complex health issues' and suffered a long‑term heroin dependency dating back to the age of 14. At the time of sentencing, Mr Merendino was 52 years old. He had no dependents and had been living with his sister and her husband for the past 12 years. In the course of exchanges with counsel, the magistrate indicated that he was considering imposing a suspended sentence on the burglary offences, and was inclined to impose a community based order on one charge so as to facilitate some support being given to Mr Merendino for the duration of the period of suspension of the other sentences.
Differences between co‑offenders
At the time of sentence, the appellant was aged 31, and Mr Merendino aged 52. Both had been long‑term heroin users. Both had lengthy records of offending, although the appellant's record was more extensive than Mr Merendino's. Neither had previously been involved in any burglary offending. In both cases, the bulk of the offending related to traffic and drug offences. Mr Merendino had completed six out of seven community orders in the past, but the appellant's record of compliance with community based orders was poor. Both had difficult personal backgrounds, although the appellant's pre‑sentence report suggested that the appellant's dysfunctional childhood was more difficult than that of Mr Merendino.
Disposition
In dealing with the disparity in sentencing considerations between the appellant and Mr Merendino, the magistrate appears to have focused upon the appellant's poor record of compliance with community based dispositions in relation to his previous offending and the fact that the appellant's offending occurred within a relatively short period of his release from prison. Those considerations were clearly relevant to the question of whether the appellant's sentence of imprisonment should be suspended in order to achieve parity with the sentence imposed on Mr Merendino. No challenge is made by the appellant to that disparity in outcome.
Given the statements of material facts as to the involvement of each of the appellant and Mr Merendino were identical, and thus no distinction could be made as to their roles in the offending, it is difficult to identify any basis upon which a difference in the total effective sentences between the two co‑accused can be justified. Neither had the benefit of good character. The disparity in age was immaterial, neither having the benefit of youth. Both came from relatively difficult backgrounds, and both suffered from long‑term substance abuse. Both embarked on, and participated equally in, an offending spree over a relatively short period of time. Both pleaded guilty at the first available opportunity.
In my view, the accumulation of the term of 9 months imprisonment on the attempted aggravated burglary charge against the appellant, when the sentence for that offence on his co‑accused had been made concurrent, objectively gives rise to a legitimate and justifiable sense of grievance on the appellant's part. The ground of appeal is made out.
Re-sentence
Absent any other relevant consideration, the principle of parity requires that the sentence on charge FR 6206/17, being a charge of attempted aggravated burglary with intent, and the sentence of 9 months imprisonment cumulative on other terms of imprisonment, should be set aside, and in its place there should be a sentence of 9 months imprisonment to be served concurrently with the other periods of imprisonment, and the penalties on the other offences should remain undisturbed, so that the total effective sentence imposed on the appellant should have been 12 months imprisonment taken to have commenced on 29 June 2017. However, at the hearing of this appeal, I was told that approximately a week before the hearing of this matter, the appellant was sentenced in the Fremantle Magistrates Court in relation to a burglary in which he was involved approximately one month before the events that gave rise to the offences with which these proceedings are concerned. He was sentenced to a further period of 2 months imprisonment to be served cumulatively on the sentence of 21 months that he is currently serving. Mr Merendino was not involved in the earlier offence. Counsel for the respondent indicated that it is likely that the sentence of 2 months was imposed having regard to the appellant's existing sentence and considerations of totality.
Those circumstances give rise to the possibility of the court exercising its jurisdiction under s 41(2) of the Criminal Appeals Act 2004 (WA) to vary the later sentence.
It is thus necessary that I hear submissions as to whether the jurisdiction under s 41(2) should be exercised before finally disposing of this appeal, or whether, in resentencing the appellant, the later sentence imposed on the appellant is a relevant matter to which the court should have regard pursuant to s 14(5) of the Criminal Appeals Act.
Proposed orders
For the foregoing reasons, there should be orders that leave to appeal be granted on the sole ground of appeal and the appeal be allowed. The parties will be invited to make submissions as to appropriate orders on resentencing the appellant having regard to s 14(5) and s 41(2) of the Criminal Appeals Act.
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