Hume v The State of Western Australia - [2019] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HUME -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 53
CORAM:   MAZZA JA
BEECH JA
PRITCHARD JA

HEARD:   16 NOVEMBER 2018
DELIVERED          :   4 APRIL 2019
FILE NO/S:   CACR 29 of 2018
BETWEEN:   TREMAYNE AINSLEIGH HUME
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number             :   BUN IND 155 OF 2017

Catchwords:

Criminal law - Sentencing - Stealing - Stealing a motor vehicle - Aggravated burglary

Application of s 9AA of Sentencing Act 1995 (WA) - Whether sentencing judge erred in assessment of appropriate discount under s 9AA - Reduction for the strength of the State's case - Whether discount afforded was plainly unreasonable or unjust

Parity principle - Application as between juvenile and adult co-offenders - Effect of limit on sentence under s 21(2)(a) of Children's Court of Western Australia Act 1988 (WA) in application of parity principle

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	S D Freitag SC
Respondent	:	J A Scholz

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	The Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Barnden v The State of Western Australia [2014] WASCA 161
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Gaskell v The State of Western Australia [2018] WASCA 8
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v The State of Western Australia [2018] WASCA 105
Kolek v The State of Western Australia [2017] WASCA 180
Main v The State of Western Australia [2010] WASCA 28
Mussarri v The State of Western Australia [2018] WASCA 46
Ridley v The State of Western Australia [2013] WASCA 45
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The State of Western Australia [2019] WASCA 8

JUDGMENT OF THE COURT:

Summary

This is an appeal against sentence. The appellant requires leave to appeal. His application for leave was referred to the hearing of the appeal.
The appellant was convicted, on his own pleas of guilty, and sentenced, in respect of 5 offences, the details of which are set out in the table in [7] below. He received a total effective sentence of 3 years and 6 months' immediate imprisonment, backdated to commence on 14 December 2017. The appellant was made eligible for parole.
In sentencing the appellant, the learned sentencing judge applied a discount, pursuant to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act), of 10% in respect of the sentence imposed on count 1, and 15% in respect of the sentences imposed on counts 2 - 5.
Ground 1(b) of the appellant's grounds of appeal contended that the learned sentencing judge erred in his application of s 9AA in that he erroneously applied a reduction to the maximum discount available, on the basis of the strength of the State's case on counts 2 - 5. Counsel for the State conceded that the learned sentencing judge had erred in his assessment of the strength of the State's case.[1] That concession was properly made.
[1] Respondent's submissions [23].
In our view, that error led the learned sentencing judge to err in his exercise of discretion in relation to the discount he afforded for the appellant's pleas of guilty on counts 2 - 5. We are satisfied that a lower sentence should have been imposed.
Leave to appeal should be granted on ground 1, the appeal should be allowed, and the appellant resentenced.

The sentences imposed

The offences of which the appellant was convicted, the maximum penalty for each of those offences, and the sentences imposed, are set out in the table below.

Count	Date	Offence	Maximum penalty	Sentence imposed
1.	1/10/17	Stole a motor vehicle, contrary to s 371A and s 378 Criminal Code	7 years' imprisonment	6 months' immediate imprisonment
2.	2/10/17	Aggravated burglary of a place contrary to s 401(2)(ba) Criminal Code	20 years' imprisonment	2 years' immediate imprisonment
3.	2/10/17	Stealing contrary to s 378 Criminal Code	7 years' imprisonment	No further punishment, pursuant to s 11 of the Sentencing Act
4.	2/10/17	Aggravated burglary of a place contrary to s 401(2)(ba) Criminal Code	20 years' imprisonment	3 years' immediate imprisonment
5.	2/10/17	Stealing contrary to s 378 Criminal Code	7 years' imprisonment	No further punishment, pursuant to s 11 of the Sentencing Act

The learned sentencing judge ordered that the sentence for count 4 and the sentence for count 1 be served cumulatively, and that the sentence for count 2 be served concurrently with the sentence for count 4. Consequently the total effective sentence was three years and 6 months' immediate imprisonment. The sentence was backdated to commence from 14 December 2017. The appellant was made eligible for parole. Restitution orders were also made.[2]
[2] These were in the sums of $5,000 and $23,308.10, which represented the losses incurred by the vendors who were the victims of counts 2 to 5.
We note that at the hearing of the appeal, counsel for the appellant advised the court that following his arrest for these offences, the appellant was sentenced for further offences in the Magistrates Court, for which he received sentences including a further term of imprisonment of 6 months and 1 day, which was to be served cumulatively on the sentences imposed for the present offences.[3]
[3]Appeal ts 16.

The circumstances in which the offences were committed

The circumstances in which the offences were committed were as follows. The offence in count 1 was committed on 1 October 2017, at Dunsborough, when one of the appellant's co‑offenders stole a car from a beachside car park. He then met with the appellant and other co‑offenders. The appellant subsequently drove the car for a joyride, knowing it was stolen. One of the co-offenders later drove the appellant to the Busselton Central Shopping Centre. Their movements were recorded on CCTV cameras.
The stolen car was located the following day in a street behind the home of one of the co-offenders. The appellant's finger print was found in the stolen car.
Turning to the conduct which constituted the offence of aggravated burglary in count 2, at about 12.45 am on 2 October 2017, the appellant and a number of male co-offenders travelled in the stolen car to Kent Street in Busselton. The appellant was dressed in dark coloured clothing and his face, head, legs and arms were covered. The appellant and his co‑offenders were in possession of sledgehammers, two smaller hammers and a crowbar. One of the co‑offenders smashed a hole in the glass door of a Target Country store and gained entry by unlocking the door. The appellant and other co-offenders then entered the store and removed various items.
The items taken by the appellant and his co-offenders from the Target Country store included mobile phones, an Xbox, games for the Xbox and for a PlayStation, and homewares, to the value of $5,000. That conduct was the subject of the offence of stealing in count 3.
The appellant and his co-offenders then drove to the Busselton Central Shopping Centre. At approximately 12.55 am, the appellant and his co‑offenders smashed the airlock doors and an internal glass door of the shopping centre using the sledgehammer, and ran directly to a Prouds The Jewellers store located inside the shopping centre. They used the tools to force open a roller door to gain entry to the store. They then removed a substantial amount of jewellery from the cabinets and displays. That conduct was the subject of the offence of aggravated burglary in count 4.
The appellant and his co-offenders took 505 separate items of jewellery from the Prouds The Jewellers store, with a retail value of $108,169.00, and a cost price value of $23,308.10. That conduct was the subject of the offence of stealing in count 5.

The appellant's personal circumstances

The appellant had just turned 18 years of age at the date of the offences, and was still 18 years old at the date of sentencing. He was 19 years old by the date of the appeal hearing.
The appellant is the youngest of five children. He was born in Bunbury. His parents separated when he was a baby, and his mother moved to Perth, taking him with her. Some of the appellant's siblings remained with their father in Bunbury.
The appellant's mother subsequently entered another relationship, but that relationship was characterised by the excessive use of alcohol, the use of illicit substances, and by domestic violence, perpetrated by the appellant's stepfather.
The appellant attended school until year 10. He was diagnosed with attention deficit hyperactivity disorder (ADHD) and was prescribed medication as a child. He had difficulty focusing and attending to school work. He continues to manifest characteristics indicative of ADHD. He has never been employed.
The appellant commenced using cannabis and alcohol when he was about 13 or 14 years of age. He subsequently began using methylamphetamines. The appellant claimed that he was affected by alcohol and illicit substances when he committed the offences.
The appellant left his mother's home when he was 16 years of age. He moved to Bunbury to live with his father, and soon became involved with peers who engaged in criminal behaviour. However, the appellant continues to have the support of his mother.
Between December 2015 and December 2016 (that is, when the appellant was aged between 16 years and 4 months and 17 years and 4 months), the appellant accumulated a lengthy criminal record, including 8 convictions for aggravated burglary, 4 convictions for receiving stolen goods, 18 convictions for burglary, stealing or attempted stealing, and 6 convictions for criminal damage. Those convictions had not been expunged when the appellant was sentenced for the present offences.[4]
[4] cf Young Offenders Act 1994 (WA) s 189(2).
A pre-sentence report indicated that the appellant 'appeared not to understand the severity of the situation'. His offending was linked to his 'immaturity, illicit substance use, negative peer association, lack of pro-social companions and anti-social patterns'. A psychologist who prepared a report for the appellant's sentencing hearing noted 'the presence of a moderate‑large number of criminogenic risk factors indicative of his risk of re‑offending'. These included his history of antisocial behaviour, antisocial peers, absence of employment and substance abuse.
The appellant wrote a letter to the sentencing judge in which he expressed how sorry he was for his actions, took full responsibility for his crimes, and explained that he regretted touching drugs 'because of where I am now'.

The co-offender, A

The offences in counts 2 - 5 were committed with several co‑offenders, including a juvenile to whom we will refer as A. A was aged 17 years and 8½ months of age at the time the offences were committed.[5] A was sentenced to a period of 12 months' juvenile detention for offences corresponding to counts 2 - 5 on the indictment against the appellant (common offences), and for an unrelated home burglary.[6]
[5] Appellant's submissions [37].
[6] Appellant's submissions [38].
We will say something more about the sentence imposed on A later in these reasons, in the context of the re-sentencing of the appellant for the offences in counts 2 - 5.

The reasons of the sentencing judge in sentencing the appellant

The learned sentencing judge took into account the maximum penalty applicable to each of the offences, including the maximum of 20 years' imprisonment in respect of the aggravated burglary offences in counts 2 and 4. His Honour noted that those penalties reflected how seriously offending of this kind is regarded by the community.[7]
[7] White Appeal Book (WAB) 53.
His Honour assessed the seriousness of the offending in this case. In respect of count 1, the learned sentencing judge accepted that the appellant was not the person who took the car from the car park, although after it had been taken, the appellant did drive it, and drove in it with the other co‑offenders. His Honour accepted the appellant's explanation that he drove the car because he considered himself to be the best driver.[8] Nevertheless, his Honour observed that the criminality of the offence lay in the fact that a member of the community had lost the benefit of the car as a result of it being stolen and used by the appellant and others for joyriding.[9]
[8] WAB 54.
[9] WAB 54.
The learned sentencing judge characterised the offending in relation to counts 2 - 5 as very serious.[10] His Honour observed that there were a number of aggravating factors in respect of these offences.[11] These were that they were committed in the early hours of the morning; they were committed by the appellant in company; violence was used to obtain access to the premises using the tools; commercial premises were involved; property was damaged; and the appellant was affected by alcohol and drugs, which posed a risk if somebody, such as a security guard, had been present and tried to intervene.[12] In addition, his Honour noted that the offending was aggravated because it was committed a few months after the appellant had been released from juvenile detention, and while he remained subject to a supervised release order.[13]
[10] WAB 54.
[11] WAB 52.
[12] WAB 54.
[13] WAB 55.
The learned sentencing judge considered that the circumstances of the offending, including the fact that the offences were committed while the appellant was subject to a supervised release order, highlighted the need for a sentence involving a component of personal deterrence, and one which would result in the protection of the public from this type of offending.[14] In addition, in respect of offences such as these, there was a need for general deterrence, especially as the offences were committed while in company.[15]
[14] WAB 55.
[15] WAB 55.
The learned sentencing judge also took into account the vulnerability of the victims, not only the owner of the stolen car the subject of count 1, but also the victims of counts 2 - 5, who he observed were 'people endeavouring to make a living in the community in [an] honest way by operating a retail business'.[16]
[16] WAB 52.
The learned sentencing judge accepted there were 'obviously very strong and important mitigating factors',[17] namely the appellant's youth, and his pleas of guilty.[18] His Honour also took into account the letter the appellant wrote to the court. He accepted that the appellant regretted that he was in custody again.[19] However, he considered that there was 'a very big question mark over whether there [was] any actual remorse by [the appellant] for the offences committed, or any insight by [him] in relation to the seriousness of the offences'.[20]
[17] WAB 58.
[18] WAB 58.
[19] WAB 56.
[20] WAB 56.
The learned sentencing judge gave the appellant credit for a number of other mitigating factors. The appellant had the support of his mother and close family;[21] he had undertaken some courses whilst in custody;[22] and he had participated in the video record of interview, and made admissions as to his involvement in the offence the subject of count 1.[23] (He was given no credit on that account in respect of counts 2 ‑ 5, as the appellant did not make any admissions as to his involvement in those offences.[24])
[21] WAB 56.
[22] WAB 56.
[23] WAB 56.
[24] WAB 54, 56.
The learned sentencing judge took into account the contents of the pre‑sentence report and psychological report, including the appellant's personal antecedents, and the fact that he had been assessed as posing a high risk of further offending. However, his Honour noted that that assessment was made without regard to the courses the appellant had undertaken whilst in custody.[25] The learned sentencing judge also took into account the appellant's criminal record as a juvenile, and the fact that he had never been employed. In so far as the appellant's prospects of rehabilitation were concerned, his Honour noted that the appellant had expressed a desire to complete some courses in prison with a view to his rehabilitation.[26]
[25] WAB 57.
[26] WAB 57.
The learned sentencing judge concluded that an immediate term of imprisonment was the only appropriate sentence, having regard to the seriousness of the offending, the need for protection of the community, and the fact that personal and general deterrence were the primary sentencing considerations in relation to the aggravated burglary offences, and would ordinarily warrant a substantial penalty.
The learned sentencing judge also referred to the sentence of 12 months' juvenile detention which was imposed on the appellant's co‑offender, A. However, his Honour noted that the circumstances in which that penalty had been imposed were not known, and had not been the subject of submissions by counsel, and so he took the sentence into account only to that limited extent.[27] His Honour observed that the appellant was required to be sentenced as an adult in any event.[28]
[27] WAB 58 - 59.
[28] WAB 59.
His Honour referred to s 9AA of the Sentencing Act. He determined that there should be a discount of 10% in respect of count 1, and a discount of 15% in respect of counts 2 - 5. As his Honour's basis for arriving at the 15% discount was the subject of ground 1(b), we will discuss his Honour's reasons in greater detail when we come to consider that ground.
The learned sentencing judge concluded that the sentences which should be imposed were 12 months' immediate imprisonment in respect of count 1, 2 years' immediate imprisonment in respect of count 2, and 3 years' immediate imprisonment in respect of count 4. In respect of counts 3 and 5, his Honour concluded that no further penalty should be imposed, pursuant to s 11 of the Sentencing Act.[29]
[29] WAB 59.
The learned sentencing judge then had regard to both limbs of the totality principle. Having regard to that principle, his Honour reduced the term of 12 months' immediate imprisonment he would have imposed for count 1, to 6 months. He ordered that sentence to be served cumulatively with the head sentence in count 4. Having regard to the need for totality and the one transaction rule, he concluded that the sentence for count 2 should be served concurrently with the sentence for count 4.[30] The total effective sentence imposed was, therefore, 3 years and 6 months' immediate imprisonment.[31] The appellant was made eligible for parole, and his sentence was backdated to 14 December 2017, to reflect the time he had already spent in custody in relation to these offences.[32]

The grounds of appeal

[30] WAB 59 - 60.

[31] WAB 60.

[32] WAB 60.

In ground 1, the appellant contends that the learned sentencing judge erred in his assessment of the appropriate discount to be applied under s 9AA of the Sentencing Act for his pleas of guilty. The appellant particularises two such errors. The first, in ground 1(a), contends that the learned sentencing judge set the discounts to be applied having regard to an irrelevant consideration, namely the extent of co‑operation or honesty in the appellant's video recorded interview with the police.
In ground 1(b), the appellant contends that the learned sentencing judge set the discount for counts 2 - 5 at 15%, incorrectly applying a reduction to the discount for the strength of the State's case in relation to those counts.
In ground 2, the appellant contends that the learned sentencing judge erred by imposing a total effective sentence that infringed the parity principle.

In view of our conclusion that ground 1(b) has been made out, it is unnecessary to deal with the remaining issues raised by the grounds of appeal.

Ground 1(b)

The appellant's written submissions to the sentencing judge sought the maximum discount of 25%, thereby impliedly asserting that the plea of guilty was entered at the first reasonable opportunity.[33] The State did not oppose this, not making any submission in relation to the discount under s 9AA.
[33] WAB 83.
In determining the discount for the appellant's pleas of guilty, the learned sentencing judge observed:
The court is permitted to take into account the strength of the prosecution case because it does diminish the utilitarian benefit of the plea. There is always, when there is a plea, of course, a benefit of having the plea for the State and the need as a result not to proceed to a full trial involving further time and cost and inconvenience to members of the community on a jury.
In relation to count 1, the evidence is that you were identified, in part, through a finger print that you left in the stolen vehicle.
… [In respect of the other offences] [t]here was, of course, CCTV footage. There is also evidence of a physical nature as a result of the action that you and your co-offenders took earlier in scoping out the shopping centres. In my view, having regard to the sentencing considerations and the requirements of section 9AA, there should be a discount of 10 per cent in relation to count 1 and a discount in relation to counts 2, 3, 4 and 5 of 15 per cent.[34]
[34] WAB 54.
The principles in relation to the discount for a plea of guilty pursuant to s 9AA of the Sentencing Act are well established. They were set out in Mussarri v The State of Western Australia.[35] It is unnecessary to set them out in detail here.
[35] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52] (Buss P).
The appellant entered his pleas of guilty on the fast track system at his fourth appearance in relation to the charges, on 3 November 2017. At the appeal hearing, counsel for the State accepted that that was within the period during which the appellant had the earliest reasonable opportunity to enter his pleas.[36] That being the case, it was open to his Honour to reduce the head sentence he imposed for each of the offences by up to 25%, pursuant to s 9AA of the Sentencing Act. In this case, the learned sentencing judge reduced the discount for the pleas of guilty having regard to his assessment of the strength of the State's case against the appellant. It is implicit in his Honour's observations that the strength of the State's case on counts 2 - 5 warranted a reduced discount for the appellant's pleas of guilty.
[36] Appeal ts 12.
The strength of the State's case is a relevant consideration for the purposes of determining the extent of any discount for a plea of guilty, because it bears upon the extent of the benefits to the State which result from that plea.[37]
[37] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [57] ‑ [58] (Buss JA & McLure P agreeing).
Counsel for the appellant accepted that the learned sentencing judge was entitled to take into account the strength of the State's case in relation to count 1, as the appellant's finger print was found in the stolen car. However, he submitted that the same considerations did not apply to counts 2 - 5, because while CCTV vision captured images of the offenders committing the aggravated burglaries, that footage did not conclusively establish the identity of the appellant.[38]
[38] Appellant's submissions [34] - [35].
We accept that submission. The State's case against the appellant was circumstantial. In his video record of interview, the appellant admitted that he and his friends had been at the Busselton Central Shopping Centre on the day prior to the commission of the aggravated burglaries. However, the appellant denied that he went to the shopping centre to 'scope out' the shops with a view to the later commission of the burglaries.[39] The movements of the appellant and his friends on that occasion were recorded by CCTV cameras. The clothing and shoes the appellant was wearing on that occasion can be seen in the CCTV footage.
[39] VROI ts 23, 29.
While the prosecution brief included CCTV footage of the offenders committing the aggravated burglaries in counts 2 and 4, the identity of those offenders cannot be clearly discerned, as they were wearing dark coloured clothing and had their heads, faces and limbs covered. One of the offenders can be seen wearing shoes that appear to be similar, if not the same as, shoes which the appellant can be seen wearing in the CCTV footage recorded the previous day. However, the appellant denied any involvement in the offences. In his video record of interview he claimed he had given those shoes to a cousin.[40]
[40] VROI ts 25 - 26, 27, 28.
Counsel for the State conceded that it 'cannot be said that the prosecution case on counts [2 - 5] was overwhelming or very strong, or indeed, even strong'.[41] Counsel for the State accepted that the sentencing judge had overrated the strength of the prosecution case and that this had affected his Honour's assessment of the discount he would give for the appellant's pleas of guilty to counts 2 - 5.[42]
[41] Respondent's submissions [23].
[42] Respondent's submissions [23].
The appellant's pleas of guilty to counts 2 ‑ 5 conferred a substantial benefit on the State, both by securing the appellant's conviction, and by avoiding the need for a trial. In our respectful view, the learned sentencing judge clearly over-estimated the strength of the prosecution case, and thus under-estimated the benefits to the State of the appellant's plea of guilty. The judge's erroneous assessment of the strength of the State case informed his determination of the appropriate discount. This error in the exercise of the s 9AA discretion justifies and requires appellate intervention, consistently with the principles in House v the King.[43] Once a material error has been demonstrated in the determination of the s 9AA discount, the appellate court's power and duty to resentence is enlivened, subject to its separate and independent determination of whether a different sentence should have been imposed.[44]
[43] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.
[44] Jones v The State of Western Australia [2018] WASCA 105 [27].
As his Honour's sentencing discretion miscarried in respect of some of the individual sentences, one of which impacts directly on the total effective sentence, the total effective sentence must be set aside and the appellant resentenced for all offences.[45] As part of that process, this court must come to its own view as to the appropriate total effective sentence.[46]
[45] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28]; Gaskell v The State of Western Australia [2018] WASCA 8 [152].
[46] Gaskell [152]; Wong v The State of Western Australia [2019] WASCA 8 [81].
Thus, error in the exercise of the s 9AA discretion having been identified, the appeal must be upheld unless, in this court's independent exercise of the sentencing discretion, no different sentence should have been imposed on each individual count, and overall, in the total effective sentence.
In our view, having regard to the facts and circumstances of the offending, and all relevant sentencing principles, a sentence lower than 3 years and 6 months' immediate imprisonment should have been imposed, as detailed below.[47] Consequently, the appeal should be allowed, the sentences imposed on the appellant should be set aside, and the appellant re‑sentenced.
[47] Criminal Appeals Act 2004 (WA) s 31(4)(a).

The resentencing of the appellant

This court has the material necessary to resentence the appellant.
No alteration to the sentence imposed by the learned sentencing judge on count 1 is required, bearing in mind that the term of 6 months' immediate imprisonment was reached by reducing a term of 12 months' immediate imprisonment on totality grounds.
In so far as the seriousness of the offending in counts 2 - 5 is concerned, we would add the following observations to the outline of the facts and the aggravating factors set out above. Counsel for the appellant did not dispute that it was an aggravating factor that there was an element of pre-planning involved.[48] The appellant and the co‑offenders visited the Busselton Central Shopping Centre on 1 October 2017, before returning later that evening to commit the burglary there. They took tools to enable them to forcibly gain entry, and they wore clothing which inhibited them from being identified in the CCTV footage which recorded their movements. Further, once they had obtained entry to the Busselton Central Shopping Centre, they proceeded straight to the Prouds The Jewellers store, where they quickly took a very significant number of items. It was accepted by counsel for the appellant that the property which was stolen was not recovered.[49] Even at cost price to the retailers, property of a substantial value was taken.
[48] Appellant's submissions [30].
[49] WAB 48.
In short, the aggravated burglaries involved pre-meditated and brazen conduct, in which the appellant and his co‑offenders used force to gain entry to commercial premises. The offending in counts 2 - 5 is properly characterised as very serious in nature.
This court has observed on a number of occasions that in the case of offending of this kind, the primary sentencing considerations are general and personal deterrence, and ordinarily a substantial penalty will be imposed.[50] Although there is no tariff, given the variety of circumstances in which aggravated burglaries may be committed, such offences can attract a range of sentences of between 8 months and at least 4 years.[51]
[50] Kolek v The State of Western Australia [2017] WASCA 180 [25]; Ridley v The State of Western Australia [2013] WASCA 45 [13]; Main v The State of Western Australia [2010] WASCA 28, [36].
[51] Main [36] (Wheeler JA).
In the present case, the appellant's pleas of guilty, and his youth, were mitigating factors of some force. However, the mitigating effect of his youth is tempered by the fact that the appellant's history of offending, including for offences of burglary and stealing, which he committed as a juvenile, suggests that there is a need for personal deterrence, in particular, and for a sentence which has regard to the protection of the public from this kind of offending.
Although there was some evidence of the appellant's remorse for his conduct, the pre‑sentence report casts doubt on the extent to which he has real insight into the seriousness of his offending. However, there remains the prospect of rehabilitation for the appellant, especially as he has the support of his mother.
We turn next to the discount for the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act. As we have already indicated, having regard to the circumstantial case on which the prosecution relied in respect of counts 2 - 5, the appellant's plea of guilty resulted in a very significant benefit to the State. The plea was entered at the earliest reasonable opportunity. In our view, the maximum discount of 25% should be afforded to the appellant for those counts. The State did not suggest otherwise.[52]
[52] Appeal ts 11 - 12.
Having regard to all of the circumstances relevant to counts 2 ‑ 5, including the maximum penalties for those offences, the aggravating factors, the application of the 25% discount for the appellant's pleas of guilty, and giving credit for the mitigating factors to which we have referred, while ensuring that the sentences retain a deterrent effect, we would impose a term of imprisonment of 2 years' immediate imprisonment in respect of count 2, and 2 years and 6 months' immediate imprisonment in respect of count 4. In respect of counts 3 and 5, no additional penalty should be imposed, having regard to s 11 of the Sentencing Act.
The sentences for counts 2 and 4 should be served concurrently. The sentence for count 1 should be cumulative on the sentence for count 4. That will result in a total effective sentence of 3 years' immediate imprisonment.
The total effective sentence of 3 years' immediate imprisonment in our view adequately reflects the criminality involved in this offending. We do not consider any further downward adjustment to the sentence is required, having regard to either limb of the totality principle.
It is, however, necessary to consider whether any adjustment to the sentences is required, having regard to the sentence imposed on the co‑offender A.

The sentence imposed on the co-offender A

As we have already mentioned, A was sentenced by a magistrate in the Children's Court for offences corresponding to the appellant's counts 2 ‑ 5, and was also sentenced for an unrelated home burglary.[53] He was sentenced to 12 months' juvenile detention for all of the offences.[54]
[53] WAB 63.
[54] WAB 68.
The transcript for A's sentencing hearing in the Children's Court was before this court on the hearing of the appellant's appeal. He pleaded guilty, and was given the benefit of the maximum 25% discount under s 9AA of the Sentencing Act.[55]
[55] WAB 67.
The appellant and A had similar antecedents. The age difference between the appellant and A is less than 5 months. At the time the offences in this case were committed, the appellant had just reached 18 years of age, while A was aged 17 years and 8½ months. A had the support of his family. Like the appellant, A was subject to a supervised release order at the time of committing the offences in question.[56] The sentencing magistrate took into account the fact that after his arrest for these offences, A was taken into custody to serve the period of detention which was suspended while he was subject to the supervised release order.[57] A also had a lengthy criminal record as a juvenile, although his offending was not quite as extensive as the appellant's offending.[58]
[56] WAB 67 - 68.
[57] WAB 68.
[58] WAB 78.
As counsel for the State acknowledged, the appellant's role, and A's role, in the commission of the common offences was similar.[59]
[59] Respondent's submissions [38].
The similar roles played by the appellant and A in the common offences, and their similar age and antecedents, would ordinarily require consistency in the sentences imposed for those common offences, by virtue of the application of the parity principle.
The operation of the principle was set out by Buss JA (as his Honour then was) in Barnden v The State of Western Australia.[60] It is unnecessary to repeat what his Honour said on that occasion.
[60] Barnden v The State of Western Australia [2014] WASCA 161 [55] - [58].
However, in our view, there are real difficulties in applying the parity principle in this case, because the sentence imposed on A is not properly capable of comparison. To explain that conclusion, it is necessary to say a little more about the sentence imposed on A.
A was sentenced by a magistrate in the Children's Court. Different sentencing principles apply in the sentencing of children in the Children's Court, pursuant to the Young Offenders Act 1994 (WA),[61] as compared with the sentencing of adults under the Sentencing Act. Of itself, the application of those different principles may give rise to difficulties in the application of the parity principle.
[61] Young Offenders Act s 7 and s 46.
However, in this case, an additional difference arose. When the Children's Court is constituted by a magistrate, an offender cannot be sentenced to a term of detention longer than 12 months, for one offence, or as the aggregate of the sentences imposed on the one occasion for more than one offence (jurisdictional limit).[62] If the Children's Court constituted by a magistrate convicts a child but considers that it does not have sufficient power to sentence or otherwise deal with the child adequately, it may refer the child to be sentenced or otherwise dealt with for the offence by the court constituted by, or so as to include, a judge.[63] In the latter case, the jurisdictional limit which applies when the court is constituted by a magistrate will not apply.
[62] Children's Court of Western Australia Act 1988 (WA) s 21(2)(a).
[63] Children's Court of Western Australia Act 1988 s 21(5).
It is apparent from the transcript of A's sentencing hearing that the sentencing magistrate considered that in light of the jurisdictional limit, he did not have the power to adequately sentence A, having regard to the seriousness of the offences of which A had been convicted.[64] It is also apparent that the sentencing magistrate had raised his concerns with the President of the Children's Court, but had not taken the step of formally referring A to the President for sentencing.[65] Instead, the sentencing magistrate decided to sentence A himself.
[64] WAB 67.
[65] WAB 67.
In doing so, the sentencing magistrate made clear that the offences of which A had been convicted warranted a sentence of more than 12 months' juvenile detention.[66] Having taken into account A's plea of guilty, the discount for his plea of guilty, his age and other matters raised in mitigation, and the fact that following his arrest for these offences, A had been returned to custody to serve the period of detention for which he had been on a supervised release order, the sentencing magistrate indicated that the appropriate penalty was the maximum period that he was entitled to impose, namely 12 months' juvenile detention.[67]
[66] WAB 68.
[67] WAB 67.
The observations made by the learned sentencing magistrate leave no room for doubt that he would have imposed a higher sentence on A, had he not been constrained by the jurisdictional limit. The learned sentencing magistrate expressed the view that had A's case been referred to the President of the Children's Court, it was likely that A would have been sentenced to a substantially longer period of detention, having regard to the seriousness of the offences.[68]
[68] WAB 67.
The result is that the sentence of 12 months' juvenile detention imposed on A does not reflect the sentence that the Children's Court would have imposed, but for the constraint of the jurisdictional limit. The learned sentencing magistrate did not indicate what sentence he would have imposed without the jurisdictional limit, and the sentence which would have been imposed by the President of the Children's Court cannot be more than a matter of conjecture. Counsel for the appellant accepted that this was so.[69]
[69] Appeal ts 15, 17.
In those circumstances, the sentence A received does not reflect an outcome of the exercise of the sentencing discretion which is properly comparable with the outcome of the exercise of that discretion in the case of the appellant. In our view, that gives rise to a real question about whether there is any scope for the application of the parity principle in this case. On the face of it, it is difficult to see how parity could be evaluated in the apparent absence of a reliable comparator.
It is, however, unnecessary to resolve that question. Counsel for the appellant did not contend that the sentence of 12 months' immediate imprisonment imposed on A should also be imposed on the appellant. That approach no doubt recognised that to achieve parity between the sentence imposed on the appellant, and the sentence A received, would involve imposing a sentence on the appellant which would be so low as to 'shock the public conscience,' because the sentence would be entirely disproportionate to the offence in question.[70]
[70] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P & McLure JA agreeing).
Furthermore, counsel for the appellant acknowledged that the sentence imposed on the appellant had to be 'a significant sentence'.[71] However, he submitted that the sentence imposed on A 'should still have some influence because that is the public result'[72] of the appellant and A being sentenced for their common offences. The upshot of the submission thus appeared to be that the sentence imposed on A should have a dampening effect on the sentence imposed on the appellant.
[71] Appeal ts 18.
[72] Appeal ts 18.

Equal justice requires identical outcomes in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[73] Equal justice therefore 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'.[74] In this case, the provisions of the Young Offenders Act and the Children's Court of Western Australia Act 1988 (WA) required that A be treated differently from an adult offender in the sentencing process. That legal difference between the appellant and A must necessarily sound in a not insignificant difference in the sentence imposed on the appellant, as compared with that imposed on A. The appellant was not a juvenile at the time of the offending, the jurisdictional limit applicable to A does not apply to the appellant, and the appellant is instead to be sentenced as an adult who is subject to the maximum penalty of 20 years' imprisonment for the aggravated burglaries.
[73] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow & Hayne JJ).
[74] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
In addition, there is a factual difference between the appellant and A, in that the appellant is to be sentenced for an additional offence, over and above the common offences committed by A.
Taking all of those legal and factual differences into account, we do not consider that any objectively justified sense of grievance can exist in relation to a total effective sentence of 3 years' immediate imprisonment for the appellant, as compared with the period of 12 months' detention imposed on A. No further downward adjustment to the appellant's sentence is required in these circumstances.
The sentences for counts 2 and 4 should be backdated to 14 December 2017. The appellant should be eligible for parole.

Orders

For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal is granted on ground 1(b) of the grounds of appeal;
2.The appeal is allowed;
3.The sentences imposed on the appellant are set aside, and in lieu thereof, the appellant is resentenced as follows:
Count 1a sentence of 6 months' immediate imprisonment, to be served cumulatively on the sentence for count 4;
Count 2a sentence of 2 years' immediate imprisonment, to be served concurrently with the sentence for count 4;
Count 3 no further penalty;
Count 4a sentence of 2 years and 6 months' immediate imprisonment;
Count 5 no further penalty.
The total effective sentence is 3 years' immediate imprisonment. The sentences for counts 2 and 4 should be backdated to commence on 14 December 2017.
The appellant is made eligible for parole.
The restitution orders made by the learned sentencing judge, which are not part of the sentence,[75] are unaffected by these orders.
[75] Sentencing Act s 39(7).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to the Honourable Justice Pritchard
4 APRIL 2019