Hill v The State of Western Australia
[2013] WASCA 282
•6 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HILL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 282
CORAM: NEWNES JA
MAZZA JA
HEARD: 14 NOVEMBER 2013
DELIVERED : 6 DECEMBER 2013
FILE NO/S: CACR 157 of 2013
BETWEEN: JEREMY ROBERT HILL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :CURTHOYS DCJ
File No :IND BUN 94 of 2012
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated assault with intent to rob - Sentence of 2 years and 6 months' imprisonment - Cooffender sentenced to 1 year and 8 months' imprisonment - Parity principle - Worse antecedents of appellant - No reasonable prospect of appeal succeeding
Legislation:
Criminal Appeals Act 2004 (WA), s 27, s 31(4)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr E J Myers
Respondent: No appearance
Solicitors:
Appellant: Edward John Myers
Respondent: No appearance
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
NEWNES JA: On 29 July 2013, the appellant was sentenced by Curthoys DCJ in the District Court to 2 years and 6 months' imprisonment for aggravated assault with intent to rob, contrary to s 393(d) of the Criminal Code (WA). The appellant seeks leave to appeal, in essence, on the ground that the sentence infringed the parity principle. It is said that the appellant has an objectively justified sense of grievance because his co‑offender, who was equally culpable, received a lesser sentence of 1 year and 8 month's imprisonment.
Background
At about 11.00 pm on 15 May 2012, the victim, a 15‑year‑old boy, was riding his pushbike through Hay Park in Withers on his way home after leaving his place of part‑time employment. As the victim rode towards Parade Road near Hudson Road, a large black dog ran at him. The dog jumped at the victim, knocking him off his bike. While he was on the ground the appellant and his co‑offender, Lewis Punch, approached the victim and both stood over him. Punch was holding the dog back by the collar. The offenders were both approximately the same height as the victim but of heavier build.
Hill said, 'Show me what's in your bag, have you got any money?'. When the victim started to open his backpack to show the offender what was in it, Punch told him to hurry up or he would set the dog on him again.
Hill then said, 'Twenty bucks will do' and the victim got to his feet and continued looking through his bag. At this point however, Punch became impatient, said 'That's it' and let go of the dog, which lunged forward and jumped up at the victim. The victim dropped his bag and started to run away with the dog chasing him. The dog bit into the victim's right calf. During this, the two offenders were shouting 'Get him, get him'.
The victim ran across Parade Road and ended up in a nearby street, where he went to the only house in the street with a light on to seek assistance. The residents of the house took the victim into the house. Shortly afterwards, however, the two offenders coincidentally walked to the same house as the victim, because they knew the residents there. The victim then ran from the house, collected his bike from Parade Road and went home. His bag was ultimately returned to him.
The appellant and his co‑offender were arrested two days later, on 17 May 2012.
The sentencing remarks
The sentencing judge sentenced both offenders on the same occasion. His Honour, having referred to the circumstances of the offending, noted that whilst the victim had done what he could to comply with the offenders' demands they had nevertheless set the dog, a Staffordshire, on him. The offenders had sought not only to get his possessions but also to cause him fear.
Turning to the appellant's personal circumstances, his Honour noted that the appellant was 29 years old, single and unemployed. He was the youngest of four children. His parents had had a difficult relationship marked by alcohol abuse. The appellant had been consuming alcohol since the age of 16 and he drank heavily most days of the week. He also regularly used cannabis and intravenous amphetamines.
The sentencing judge noted that the appellant had failed to attend his Community Corrections and psychological interviews. A psychiatric report had, however, been prepared following an interview conducted by video link, the video link being necessary because the psychiatrist is resident in Broome. In the report, it was noted that appellant has limited literacy skills and has never been employed. The author of the report considered that the appellant did not appear to suffer from any psychiatric illness but may suffer from an underlying antisocial personality disorder. The author also observed that the appellant tended to blame other people and substance abuse for his offending, and that while the appellant stated superficially that he was 'sorry' for his conduct, such statements lacked conviction and emotional resonance and there was 'very little impact of remorse'. The appellant was assessed as being at a high risk of further offending.
The sentencing judge noted that the appellant had a record of offending behaviour, including convictions for unlawful assault and assault occasioning bodily harm.
The sentencing judge said that the offenders had demonstrated remorse by pleading guilty but as the plea was very late (on the first day of trial) he would allow a discount on their sentence of only 5% under s 9AA of the Sentencing Act1995 (WA). His Honour sentenced the appellant to a term of 2 years and 6 months' immediate imprisonment with eligibility for parole.
Punch's antecedents
At the time of sentencing Punch was 27 years old. The sentencing judge did not have the benefit of a pre‑sentence report, Punch having failed to attend the interview for the preparation of the report. His Honour noted, however, that Punch had one conviction for an offence involving violence, a conviction for assault in 2004 when he was 18 years old. His record in recent years was mainly for driving offences.
His Honour sentenced Punch to 1 year and 8 months' imprisonment, with eligibility for parole.
The ground of appeal
The appellant's proposed grounds of appeals were:
1.the sentence infringed the parity principle;
2.the sentencing judge failed to give any or any adequate reasons for the discrepancy in the sentences.
Disposition of the appeal
The parity principle requires that there be a proper relationship between the sentences imposed on co‑offenders involved in an offence. It was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (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).
Before an appellate court can intervene, any disparity or lack of disparity in the sentences of co‑offenders must give rise to an objectively justifiable sense of grievance or an appearance that justice has not been done; the fact that an appellant feels a sense of grievance is not determinative: Lowe (610); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301, 338. In order to determine whether there is a proper relationship between the sentences imposed on co‑offenders it is necessary to have regard to the circumstances of the co‑offenders and the part each played in the relevant criminal conduct: Postiglione (302); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].
It was submitted on behalf of the appellant that the only material difference between the appellant and his co‑offender, Punch, was that Punch's criminal record was not as significant as the appellant's. It was not the case, however, that Punch was previously of good character or had no significant criminal record. Counsel for the appellant submitted that the difference in their respective antecedents could not justify a discrepancy of 10 months' imprisonment for the same offending.
His Honour did not explain why he imposed different sentences on the appellant and Punch. For the sake of clarity that would have been the preferable course. However, upon a reading of his Honour's sentencing remarks as a whole, the reason for the difference is readily apparent. It is plain that, whilst his Honour considered that both the appellant and Punch were equally culpable in respect of the offending, he considered that, in light of the appellant's worse antecedents, the need for personal deterrence and public protection called for a higher sentence in his case. I do not consider that his Honour erred in coming to that conclusion. Nor do I consider it is reasonably arguable that his Honour's reasons were inadequate. Even if they were, having regard to all of the circumstances of the appellant's case, it is not reasonable arguable that a different sentence should have been imposed: Criminal Appeals Act 2004 (WA) s 31(4)(a).
The difference in the relevant antecedents of the appellant and Punch is substantial. The appellant was convicted in 2007 of two counts of assault occasioning bodily harm, on one of which he was sentenced to imprisonment for 6 months and 1 day suspended for 12 months and on the other he was made subject to an intensive supervision order for 12 months. In 2011, he was convicted of aggravated assault, for which he was sentenced to 6 months' imprisonment. He was also convicted in 2006 of being armed in a way that may cause fear.
The only offence involving violence of which Punch had been convicted was one count of assault in 2004, when he was 18 years of age, for which he was fined $100. His record, as the sentencing judge observed, was otherwise principally for driving offences.
The appellant is not, of course, to be punished again for his past offending, but his antecedents demonstrate that this offence was not an uncharacteristic aberration. The appellant has shown a propensity for violence. His record of violent offending, coupled with the assessment that he is at a high risk of reoffending, meant that personal deterrence and protection of the public were more significant in his case than in the case
of Punch. In my opinion, that was sufficient to justify the difference in their sentences.
The appellant does not have any reasonable prospect of establishing that the difference in the sentences is capable of giving rise to an objectively justifiable sense of grievance. Accordingly, I would refuse leave to appeal, with the consequence that the appeal is to be taken to have been dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act.
Conclusion
Leave to appeal should be refused and the appeal dismissed.
MAZZA JA: I agree with Newnes JA.
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