I (a child) v The State of Western Australia
[2006] WASCA 9
•20 JANUARY 2006
"I" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 9
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 9 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:165/2005 | 15 NOVEMBER 2005 | |
| Coram: | MALCOLM CJ STEYTLER P MCLURE JA | 20/01/06 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "I" (A CHILD) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Offences of assault and stealing by juvenile offender following assault by adult offender Sentence of adult offender reduced by transitional provisions by onethird Parity Juvenile offender's minimum term fixed at 14 months Adult offender's minimum term also fixed at 14 months Whether juvenile offender entitled to justifiable sense of grievance |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code (WA), s 317A(b), s 378(5)(a) Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) Road Traffic Act 1974 (WA) Young Offenders Act 1994 (WA), s 7, s 46, s 121(3) Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, Sch 1 Sentencing Act 1995 (WA), s 6(1) |
Case References: | Goddard v The Queen (1999) 21 WAR 541 Lowe v The Queen (1984) 154 CLR 606 Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999 Postiglione v The Queen (1997) 189 CLR 295 R v C (A Child) (1995) 83 A Crim R 561 R v Capper (1993) 69 A Crim R 64 R v Cox (1996) 66 SASR 152 R v Lam [2003] NSWCCA 162 R v MacGowan (1986) 42 SASR 580 R v Steele, unreported; CCA SCt of NSW; 17 April 1997 R v Zabul [2001] NSWCCA 455 Samuels v The State of Western Australia [2005] WASCA 193 Verschuren v The Queen (1996) 17 WAR 467 Woods v Checchele [2004] WASCA 163 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "I" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 9 CORAM : MALCOLM CJ
- STEYTLER P
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CACR 165 of 2005
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
Citation : THE STATE OF WESTERN AUSTRALIA v "I" (A CHILD)
(Page 2)
Catchwords:
Criminal law - Sentencing - Offences of assault and stealing by juvenile offender following assault by adult offender - Sentence of adult offender reduced by transitional provisions by onethird - Parity - Juvenile offender's minimum term fixed at 14 months - Adult offender's minimum term also fixed at 14 months - Whether juvenile offender entitled to justifiable sense of grievance
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 317A(b), s 378(5)(a)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Road Traffic Act 1974 (WA)
Young Offenders Act 1994 (WA), s 7, s 46, s 121(3)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2, Sch 1
Sentencing Act 1995 (WA), s 6(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Ms C Barbagello
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Goddard v The Queen (1999) 21 WAR 541
Lowe v The Queen (1984) 154 CLR 606
Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999
Postiglione v The Queen (1997) 189 CLR 295
R v C (A Child) (1995) 83 A Crim R 561
R v Capper (1993) 69 A Crim R 64
R v Cox (1996) 66 SASR 152
R v Lam [2003] NSWCCA 162
R v MacGowan (1986) 42 SASR 580
R v Steele, unreported; CCA SCt of NSW; 17 April 1997
R v Zabul [2001] NSWCCA 455
Samuels v The State of Western Australia [2005] WASCA 193
Verschuren v The Queen (1996) 17 WAR 467
Case(s) also cited:
Woods v Checchele [2004] WASCA 163
(Page 4)
1 MALCOLM CJ: This was an application for an extension of time within which an application may be made by the appellant for leave to appeal against sentence.
2 The application was heard on 15 November 2005. At the conclusion of the argument, the Court ordered that the appellant have leave to appeal, but dismissed the appeal. These are my reasons for joining in the making of those orders.
3 On 10 November 2004, the appellant was convicted on his plea of guilty to an offence of assault with intention to do grievous bodily harm contrary to s 317A(b) of the Criminal Code (WA) and an offence of stealing contrary to s 378(5)(a) of the Code.
4 The facts as found by the President of the Children's Court were that the appellant was 17 years of age. At about 2.20 am on Sunday, 10 October 2004, he was on the upper concourse level of the Perth train station near the overpass to the Art Gallery of Western Australia. He was with two other young male persons. The complainant was on the overpass of the train station when he was severely assaulted by the two other male persons. As a result, the complainant was unconscious, lying on the ground. While the assault was still in progress, the appellant ran from a distance of approximately 20 metres to where the complainant was lying. He then jumped into the air with both feet raised and landed with both feet on the back of the complainant's head. He then took the complainant's Panasonic mobile telephone. He ran from the scene, but was apprehended by police a short time later. He was searched by police who found the complainant's mobile telephone in his pocket. The appellant was taken to the Perth Police Transit Unit where he was charged.
5 The complainant underwent x-rays and a CT scan to assess his serious head injuries. At 9 am on Sunday, 10 October 2004, the complainant was diagnosed as being in a serious but stable condition in the Emergency Department at Royal Perth Hospital. He was a tourist from the United Kingdom and returned there shortly after the assault. The prosecutor told the Court that he had been informed by the victim that he does not suffer from any long-term disabilities as a result of the injuries sustained. A medical report from a doctor at Royal Perth Hospital indicated the general nature of the injuries sustained and concluded that they were not of such a nature as to cause or be likely to cause permanent injury to health or to endanger life.
(Page 5)
6 The incident was also recorded on videotape by surveillance cameras in the area. The videotape was played to the learned President and tendered, together with seven photographs, showing the injuries sustained, including black eyes and a nasty wound to the area of the complainant's forehead.
7 There were two other persons who were charged in relation to the assault. One of those was a male named Ugle, who was 23 years of age and who was also charged with robbery. The other person was a juvenile whom I shall refer to as "P". He was 17 years of age and had been charged with the offence of stealing, but was not charged with any assault.
8 In sentencing the appellant on 10 March 2005, the learned President noted that two issues of mitigation had been raised by the appellant which were referred by the learned President as follows:
"They were, firstly, that before the offences were committed and proximate in time to when they were committed – that means close in time – the victim of the offences who is a 31-year-old person from the United Kingdom, a tourist to this State who had arrived in this state in Perth at the beginning of October last year, you say that without any provocation on your part that he made a racist remark to you and that he grabbed you by the neck.
Secondly – and to some extent this second issue is an extension of the first issue raised on your behalf by your counsel – that when another offender was assaulting the victim and you were some distance away from them – about 20 to 25 metres or so – that another member of your group who was standing nearby you and away from where the victim was being assaulted by this other person that you were encouraged by this other person standing close to you to go and do something to the victim and that this other person said something to you along the lines of, 'Are you going to let him get away with holding you by the throat?' and also, 'Are you going to let him get away with having made some racist remark to you?'
Words along those lines you say were said to you by this other person to give you some encouragement to go and do something to the victim. I should add to that that you admit that in the end the decision to do what you actually did was your decision. Now, clearly if one or both of those two things that you say
(Page 6)
- were said and done are true they wouldn't amount to any defence to each of the two charges but each and both of them would be matters which should be taken into account by way of mitigation of sentence."
9 The learned President then explained what he meant by way of "mitigation of sentence" and the need for the Court to conduct a hearing to determine the facts. The Court was adjourned to enable both parties to be given the opportunity to call evidence on the two issues of mitigation raised. The learned President correctly explained that it was for the appellant to satisfy the Court on the balance of probabilities of any relevant circumstances of mitigation.
10 In that context, evidence was subsequently given by the victim by way of video link from the United Kingdom from which it appeared that, by reason of the assault and the nature of the injuries suffered, the complainant had no recollection of the incident after he had arrived at the railway station. Up to the point where he ceased to have recall, he said he did not do or say anything which the appellant said he did. The learned President commented that in that context:
"… it would be fair to say that because of his injuries he cannot comment on what you say he said and did … save that in a general sense he says that such behaviour would not be the sort of behaviour that he would engage in."
11 The learned President told the appellant that he had watched and listened to the appellant give his evidence on the issues raised by him very carefully. His Honour concluded, however, that:
"… I do not accept one word of it. On my assessment you were totally unreliable as a witness. You were not consistent on the wording of the racist remark that you say that the victim made to you. You were under the influence of a combination of alcohol, cannabis and amphetamine at the time. You seem to conveniently recall things favourable to you but go blank when you thought something may not be favourable towards you.
Your explanation of blacking out when standing up and being held by the throat by the victim came across as absolute nonsense. Generally you were very vague. I accept that speaking with a police officer in Northbridge is different to giving evidence on oath in a court but you have shown yourself as a person capable of lying to protect yourself. You told the
(Page 7)
- police officer when questioned not long after the incident that you hadn't been involved in an incident earlier that morning or evening and that the phone found in your possession which belonged to the victim was your cousin's and that your cousin had given it to you earlier for you to look after it for him.
That was clearly untrue. Indeed, it was deliberately untrue and it was said by you to avoid any connection with the incident."
12 The learned President went on to say to the appellant:
"… to be quite blunt about it you have made up a story about the victim making a racist remark to you and holding your throat or neck and you've done so in my view in an attempt to get a lesser sentence. The victim did not say or do anything to you before you committed each of these offences. You were not encouraged to do something to the victim because of something the victim had said or done to you.
While the victim cannot give any direct evidence on the issues I accept that the things you say he said and did to you are completely foreign to his nature. Even on your version, which I reject, if a person such as the victim saw a group of about four or so young people and two of them arguing he would probably have taken a very wide berth, not just of you but of all of you and not walked to within about reaching distance of any of you, including you."
13 His Honour then went on to consider the effect of these findings in relation to sentencing. His Honour took into account the plea of guilty, noting that this was a saving to the State as well as avoiding inconvenience to witnesses and, in particular, avoided the complainant having to "go through the trauma of giving evidence". It was noted, however, that by reason of the plea in mitigation, it was necessary for the victim to give evidence from the United Kingdom by video link. The learned President concluded that the allegation by the appellant that the victim had made a racist remark to him and grabbed him by the throat showed that the appellant was more concerned about what happened to him in the sentencing process than what he had done to the victim. It was acknowledged, however, that the plea of guilty indicated some remorse, but there was room for much more.
14 The President indicated that instead of giving the appellant a discount of about 30 per cent on the sentences to be imposed, he would
(Page 8)
- only receive a discount of 14 to 15 per cent or thereabouts. The learned President noted that the statutory maximum penalty for the offence of assault with intent to do grievous bodily harm was imprisonment for 5 years and the statutory maximum penalty for the offence of stealing in the circumstances of this case was imprisonment for 14 years.
15 The learned President referred to the video, which showed the incident involving the appellant which also showed another adult male viciously assaulting the complainant by stomping on his head and body while he was unconscious on the floor of the concourse. The learned President commented that:
"I think it would be fair to say that all reasonably minded people would be stunned and repulsed by what the video shows happening to the victim and what you did to the victim. Visual images can be very powerful and overwhelming and often more powerful and overwhelming than what words can be.
I'm very mindful of that and I've kept that in my mind whilst considering the matters for you and I've been very careful to take the time to calmly and clinically assess what you actually did. There are two aspects to what I've just said … Firstly, there's the need to calmly and clinically assess the visual image and, secondly, that I need to focus my attention on what you actually did to the victim.
The only relevance in your case of what the adult male was doing to the victim – and I'm talking about the adult male kicking the victim to the head and body and stomping on the head of the victim - - the only relevance in your case of that … is that by the time you ran at and jumped and stomped on the victim's head the victim was lying unconscious, vulnerable and defenceless on the floor of the concourse of the railway station.
So it is your act of jumping and stomping on the victim's head that needs to be taken into account and not those acts of the adult male as shown on the video. There is a comment I wish to make on the offence of assault with intent to do grievous bodily harm … [Y]ou will remember that your counsel submitted to me that the victim's injuries were limited to a head injury involving a laceration and haematoma to the left ear and you will recall reference to the need to suture or stitch up the left ear and also bruising and soft tissue injuries to the face.
(Page 9)
- You've seen the photographs which show the gross bruising and also swelling to the victim's face. While actual injuries are an important and relevant factor to take into account the offence of assault with intent to do grievous bodily harm in my view is more to do with the nature of the act which constitutes the assault in combination with the intent to do grievous bodily harm."
16 His Honour went on to express the view that what the appellant did to the victim in the circumstances as described put the case in the worst category of its kind in the context of an offence of assault with intent to do grievous bodily harm:
"I say that having regard to the combination of the following things: firstly, the victim was lying on the floor of the concourse of the railway station unconscious, vulnerable and defenceless. Secondly, he had no idea of your approach. Thirdly, you ran to get the momentum to jump. Fourthly, on arriving at the spot where the victim was you jumped up and lifted your knees towards your chest and, fifthly, when your body was then dropping back towards the floor of the concourse you very forcefully pushed both of your feet down and onto the victim's head.
… [I]n my view what you did was an extremely callous and cowardly act. You had a total disregard for the health and wellbeing of the victim; indeed, that the victim was not killed or left with some serious brain injury or serious injury of some sort is amazing. Acts of the sort that you committed on the victim would clearly have that real potential."
17 So far as the offence of stealing was concerned, the circumstances were that after the assault, the appellant initially walked away from the victim, but then went back and took his mobile phone. The learned Judge commented that:
"… we're dealing with a piece of property worth hundreds of dollars rather than thousands of dollars or tens of thousands of dollars but what needs to be understood here is even taking property of relatively limited value can be very serious if it's done so [sic] in circumstances of the sort that existed on this particular occasion so it needs to be understood that you took a mobile phone against a background of the victim lying on the
(Page 10)
- floor of the concourse of the railway station, a public place, unconscious and also that you had just stomped on his head and you took the mobile phone from the victim who had been rendered senseless.
So whilst the value of the phone is relatively small the circumstances in which it was taken make it a very serious offence."
18 The complainant suffered gross swelling and bruising as a result of his head injuries. He had to wait in Perth for some time before he was fit to fly back to the United Kingdom. While he used to be a fairly outgoing, gregarious, amicable sort of fellow, his personality had been "dampened" to some extent as a result of the offences committed on him, and this was partly responsible for him having to change his employment.
19 His Honour noted that deterrence was relevant, but in the context of the principles of sentencing to be applied and considerations to be taken into account when sentencing young offenders, as set out in s 46 of the Young Offenders Act 1994. In sentencing the appellant, the learned Judge clearly took into account those principles, including, in particular, the necessity to have regard to the rehabilitation of young offenders, as well as the need to protect the community.
20 At the time the offence was committed, it was not long after the appellant's 17th birthday. He had no significant prior record. The appellant had been convicted of some traffic offences, but had no record of any offence involving violence or dishonesty. It was noted that the appellant had a very dysfunctional upbringing and had spent much of his life moving from one place to another. After he came to Perth, he spent a lot of time living on the streets. He had lacked role models, consumed alcohol, and used cannabis and amphetamines in the period leading up to the offences being committed. While these matters were acknowledged as serving to partly explain the appellant's behaviour, the learned Judge noted that they did not provide any excuse. His Honour strongly warned that the appellant should understand that he needed to do something about his drug problem. The learned Judge went on to say that:
"In relation to the assault with intent to do grievous bodily harm what you did to the victim and the circumstances in which you did it in my view … substantially outweigh or overwhelm the combination of all of the mitigating factors that I've mentioned including your youth and the principles that go with that, your
(Page 11)
- good prior record and also your pleas of guilty. I repeat that what you did puts your case in the worst category of its kind. Can I say that acts of stomping on an innocent and unconscious person's head in a public place need to be strongly deterred and that's something that needs to be weighed into the sentence and in with all of those personal circumstances relating to you that I've mentioned and your pleas of guilty and the principles that I've spoken about."
21 His Honour went on to say:
"… in relation to the assault with intent to do grievous bodily harm, I'm reducing a period of detention of 3½ years to 3 years because of your plea of guilty. That's 3 years' detention and that 3 years is to be backdated to 10 October [2004] when you were taken into custody and you've been in custody continuously since then. You're eligible for supervised release by applying the formula set out in s 121(3) of the Young Offenders Act. In relation to the offence of stealing from the person … the resultant term of detention that I think is appropriate is 2½ years and that period of detention is concurrent with the 3 years' detention that I've just mentioned in relation to the assault with intent to do grievous bodily harm.
The terms are concurrent in the end because both offences arise out of the one overall incident and also having regard to your youth. I'm mindful that the maximum penalty for the stealing offence is 14 years and in relation to the assault with intent to do grievous bodily harm is 5 years and you'll see that the sentence is actually less in relation to the offence for which the maximum statutory penalty is greater but that needs to be understood by knowing that the gravamen of both of these two offences is the stomping which while relevant to both is of greater relevance and indeed it's an element of the offence of assault with intent to do grievous bodily harm because it's that stomping that constitutes the assault."
22 The sentences were ordered to run concurrently with each other and were backdated to 10 October 2004. The learned Judge did not set a minimum term. The minimum term to be served pursuant to s 121(3) of the Young Offenders Act is 14 months.
(Page 12)
23 His Honour went on to deal with an outstanding matter under the Road Traffic Act 1974, for which the appellant had his motor driver's licence disqualified for a period of 9 months commencing from his discharge from custody.
24 The appellant sought leave to appeal against the sentence of detention for 3 years on the ground that it was manifestly excessive, having regard to the sentence imposed on the adult co-offender, which was less than that imposed on the appellant. That ground is supported by the following particulars:
"(a) The adult co-offender was sentenced to two years and four months' imprisonment with parole. This requires him to serve a minimum of fourteen months in custody. The appellant must spend the same minimum time in custody.
(b) It is contrary to the principles of juvenile justice that a juvenile should receive a longer sentence than an adult for the same offence.
(c) The adult co-offender played a more significant role in the offence and had a worse previous record than the appellant, who had effectively no prior record."
25 Two other males were also charged with offences arising out of the attack on the victim. A juvenile "P" was charged with stealing with violence to which he pleaded not guilty. He had not been tried when the appellant was sentenced. As previously mentioned, the other co-offender, Ugle, was charged with assaulting the complainant with intent to do grievous bodily harm and with stealing with violence. On 12 April 2005, Ugle appeared before Jackson DCJ and pleaded guilty to assault with intent to do grievous bodily harm, but not guilty to stealing with violence. In relation to the charge of assault with intent to do grievous bodily harm, he was sentenced to imprisonment for 3½ years with eligibility for parole backdated to 10 October 2004. Subsequently, on 31 May 2005, Ugle applied for a correction of sentence on the basis that the sentence imposed on 12 April 2005 was incorrect. Given that the Transitional Provisions in Schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) required that any sentence otherwise imposed be reduced by a third, it was argued that the maximum sentence for an assault with intent to do grievous bodily harm was 3 years and 4 months rather than 5 years. It was further argued that Ugle should receive a discount for his early plea
(Page 13)
- of guilty. The learned sentencing Judge agreed with these propositions and reduced Ugle's sentence to 2 years and 4 months giving him an earliest release date of 9 December 2005.
26 The law recognises a general principle that the same sentence should be generally imposed on co-offenders for the same offence. An offender who receives a longer sentence than that of a co-offender for the same offence may feel a justified sense of grievance: Lowe v The Queen (1984) 154 CLR 606. The principle is, of course, subject to consideration being given to the comparative roles each offender played in the offence and any differences between the antecedents of each of the offenders: Postiglione v The Queen (1997) 189 CLR 295. The general parity principle is also subject to the special considerations that apply to the sentencing of young offenders as set out in s 7 of the Young Offenders Act to which I have referred. In this context, s 7(c) is of particular relevance and provides that:
"… a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult."
27 In Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999, it was contended by an adult that there was disparity giving rise to a justifiable sense of grievance by reason of the comparatively lenient sentences imposed upon juvenile offenders. In that case it was held that, having regard to the special considerations applicable to sentencing juveniles, an adult committing the same offence would normally receive a more severe sentence than a juvenile. R v C (A Child)(1995) 83 A Crim R 561 demonstrates that, as a matter of statutory interpretation and the application of the relevant authorities, a juvenile and an adult will receive different sentences as co-offenders.
28 In the result, Ugle would be required to serve 14 months' imprisonment before being eligible for parole, which is the same minimum term of 14 months the appellant is required to serve.
29 In Postiglione v The Queen (supra) at 301, Dawson and Gaudron JJ said that:
"Equal justice requires that like should be treated alike but that, if there are relevant differences due allowance should be made for them … In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
(Page 14)
30 Their Honours continued:
"… the parity principle, as identified and expounded in Lowe v The Queen ((1984) 154 CLR 606 at 617 – 618 per Brennan J) recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'."
31 In this context, mere disparity is not enough. As Kirby J said in Postiglione at 338:
"What is needed is, that the disparity engenders a 'justifiable sense of grievance' on the part of the prisoner or 'gives the appearance that justice has not been done' … [T]he fact that the prisoner feels a sense of grievance is not determinative."
32 In this context, Dawson J said in Lowe v The Queen(supra) at 624, in order to give rise to "a justifiable sense of grievance":
"The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice."
33 At the same time, as Doyle CJ pointed out in R v Cox (1996) 66 SASR 152 at 159:
"If there are factors which support different treatment [of a particular offender] then … there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community."
34 In this context, it is necessary to bear in mind the comments of the Court of Criminal Appeal (Pidgeon J, Wallwork and Wheeler JJ agreeing) in Penny v The Queen (supra), namely:
"The question of parity and disparity has no application when one offender is sentenced as a juvenile and the other as an adult. Different sentencing principles apply. This is because the former is sentenced under the principles contained in the Young Offenders' Act 1994 whereas an adult offender is sentenced on different principles now contained in the Sentencing Act 1995. These differences were set out in 'C' (A Child) v R (1995) 83 A Crim R 561. In that case the principles applying to an adult were governed by s17A of the Criminal Code, but for the
(Page 15)
- present purposes those principles are similar. It must follow that an adult committing the same offence would normally receive a more severe sentence than a juvenile.
The principles relating to parity are set out by Malcolm CJ in the appeal relating to the applicant's co-offender (R v VC). The Chief Justice, in that case, referred to the principles contained in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. In particular the Chief Justice referred to the following passage from the reasons of Gummow J in Postiglione:
'The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance in the mind of an objective observer, that justice has not been done.'
As different and more lenient principles apply to juveniles, the resulting difference in sentence would not engender a justifiable sense of grievance by giving the appearance in the mind of an objective observer that justice has not been done."
35 In my opinion, the learned President was entitled to conclude, as the video demonstrated, that this particular case of assault with intent to cause grievous bodily harm fell into one of the worst cases of its kind, given the circumstances. These included the fact that the victim was lying on the floor of the concourse and was both vulnerable and defenceless when he was assaulted by the appellant; the victim had no warning of the assault by the appellant; the appellant ran towards the victim to get momentum to jump on to him, jumped up, lifting his knees towards his chest, and forcefully kicked both his feet down on to the victim's head.
36 In my view, the learned sentencing Judge properly took account of all of the relevant circumstances and matters personal to the offender including his fast-track plea of guilty, the fact that the assault was unprovoked, unnecessary and involved violent blows to the head of a defenceless victim.
37 Given that the minimum period which the appellant will be required to spend in custody is no greater than the sentence imposed on Ugle, I am unable to conclude that the discrepancy between the sentences imposed is
(Page 16)
- manifestly excessive, bearing in mind that the appellant was convicted of two offences, whereas Ugle was convicted of only one offence.
38 In my opinion, the appellant's culpability was more serious than that of Ugle and within the worst category of offences of assaults causing grievous bodily harm. The reduction in sentence given to the appellant for his plea of guilty should have been significantly less than that given to Ugle because the latter entered a fast-track plea of guilty and the appellant's genuine remorse, looked at objectively, was significantly less than that of Ugle.
39 The only apparent disparity arises by virtue of the operation of the transitional provisions in the case of the appellant's co-offender compared to the case of the appellant. In my opinion, this disparity is not such as to give rise to a justifiable sense of grievance on the part of the appellant: cfPostiglione v The Queen (supra), Lowe v The Queen (supra); Verschuren v The Queen (1996) 17 WAR 467 at 469 – 473 per Malcolm CJ (with whom Pidgeon J agreed) and at 474 – 475; Goddard v The Queen (1999) 21 WAR 541 per Kennedy J at 549 – 555.
40 The application for leave to appeal fell to be determined in accordance with the provisions of s 31 of the Criminal Appeals Act 2004 (WA) ("the CA Act") which came into force on 2 May 2005. This replaces the former s 689 in Ch LXIX of the Criminal Code (WA), the provisions of which were repealed by s 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA). Section 23(1)(b) of the CA Act provides that an offender convicted on indictment may appeal to the Court of Appeal against the sentences imposed or any order made as a result of the conviction.
41 Although the offences the subject of this application were committed while s 689 of the Code was still in force, it is apparent that the power of the Court of Appeal to set aside or vary the sentence imposed by the sentencing Judge derives from the CA Act, not from the Code. Section 31(5) provides that if the Court of Appeal allows an appeal against sentence, it must set aside the sentence and:
"(a) may instead impose a new sentence that is either more or less severe; or
(b) may send the charge back to the court that imposed the sentence to be dealt with further."
(Page 17)
42 As was recently held on 7 October 2005 in Samuels v The State of Western Australia [2005] WASCA 193 at [17] by Steytler P, Wheeler and Roberts-Smith JJA:
"From the coming into existence of the Court of Appeal on 1 February 2005, all appeals previously to the Full Court or the Court of Criminal Appeal were to be made to the Court of Appeal (s 38 Acts Amendment (Court of Appeal) Act 2004) and all appeals or applications for leave to appeal pending before the Full Court or the Court of Criminal Appeal were to be taken to have been commenced or made and pending before the Court of Appeal (s 38 ibid). However, those amendments did not alter the position with respect to rights of appeal or any requirements for leave, nor the procedures which applied to appeals or applications for leave to appeal from single Judges of the Supreme or District Courts. Those changes occurred in May 2005."
43 Their Honours then summarised the key legislation changes which came into effect on 1 and 2 May 2005 at [18] – [24] and went on to say at [25] – [26]:
"Leave is now required to appeal against either conviction or sentence from a Magistrate's Court to a single Judge of the Supreme Court (s 9 CA Act), from a decision of a single Judge on such an appeal, to the Court of Appeal (s 18 CA Act), or from the Supreme or District Courts (s 27(1) CA Act) to the Court of Appeal.
The statutory test is the same in each instance: ss 9 and 27 of the CA Act. Section 27 provides, so far as the Court of Appeal is concerned, that:
(1) The leave of the Court of Appeal is required for each ground of appeal in an appeal under this Part.
(2) After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3) Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
(Page 18)
- (4) The Court of Appeal may decide whether or not to give leave to appeal -
(a) with or without written or oral submissions from the parties to the appeal;
(b) before or at the hearing of, or when giving judgment on, the appeal."
"Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.
As did the majority of the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 in a different statutory context, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria, because the circumstances of each case are infinitely various. Furthermore, it is crucial to always recognise that the test to be
(Page 19)
- applied is that expressed in the statutory provision itself, not some judicial restatement or reformulation of it. That said, the following considerations may afford some useful guidance upon its application.
One approach advocated by senior counsel for the appellant which seems to us likely to have practical utility in many cases, is to ask whether the arguments in support of a ground are such as to call for a reply from the respondent: cfR v McDonald (1992) 85 NTR 1 at 3, per Asche CJ, and Gooch & Pierce v The Queen [2002] NTCCA 3 at [6], per Martin CJ, Bailey and Riley JJ. If it does not, it is unlikely to have a reasonable prospect of succeeding. Also, where a ground so suffers from a lack of clarity that the Court or Judge is unable to understand it, there would be no reasonable prospect that ground could succeed in that form.
On the other hand, what is "reasonable" takes its colour from the circumstances. Thus, where a ground is on a point on which the law is unclear and is in a state of development, and where the ground might succeed were the point to be accepted, the ground would be unlikely to be held to have no reasonable prospect of succeeding.
The requirement for leave and the statutory test explained above call for a single Judge or this Court on such an application to give consideration to the merits of each proposed ground of appeal. That will not be a detailed consideration of all the evidence and all the issues in the case; it will be confined to the ground of appeal as particularised - but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application. That having been done, if the Court or Judge is not positively satisfied the ground has a reasonable prospect of success, leave to appeal must be refused. Where leave is refused, sufficient reasons should be given to enable the appellant to understand why that decision was made. As the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said in Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 at 319 - 320, when the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, the grounds of refusal of leave "should be stated, though they need not be elaborated".
(Page 20)
- The Court was there dealing with s 5(1) of the Criminal Appeal Act 1912 (NSW), which required an appellant to have leave to appeal against sentence. The Court said that under that provision, leave to appeal would ordinarily be granted when the appellant made out a sufficiently arguable case that the sentence imposed was inappropriate in all the circumstances."
45 In Goddard v The Queen (supra), the Court of Criminal Appeal was called upon to consider the application of the former s 689(3). Murray J said at 558 – 559:
"In my view two fundamental propositions emerge from that provision. The first is that this Court is not justified in intervening to quash a sentence passed at first instance unless the members of this Court 'think that a different sentence should have been passed'; ie: that the exercise of discretion has miscarried, or for some other reason a miscarriage of justice has occurred. Even then, the sentence to be substituted by this Court must be that which we think 'ought to have been passed'. It follows in my view that where this Court is moved by the application of what has come to be known as the parity principle to quash a sentence or term of imprisonment, it may only accede to that proposition if it concludes that it was open to the court below to pass a more lenient sentence or impose a shorter term of imprisonment, in which case the imposition of that term will mark the extent to which this Court may go to reduce the disparity.
In my opinion that is consistent with the decided authorities. The leading case is the decision of the High Court in Lowe v The Queen (1984) 154 CLR 606. At 609 - 610 Gibbs CJ said that a similarly worded provision of the Qld Criminal Code was:
'…wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other
(Page 21)
- words to give the appearance that justice has not been done.'
Of course, it must be the case that the disparity gives the appearance that justice has not been done in the instant case which is before the court, not solely in the other case in which the disparate sentence was passed."
46 Mason J said at 613 – 514 that in correcting a disparity between sentences, while the Court was entitled to reduce a sentence which would otherwise be considered to be appropriate, it could not do so to a level at which the sentence was inadequate. In my opinion, given the seriousness of the appellant's offences, the difference between the sentences imposed on the appellant and Ugle in this case was not such as to give rise to a justifiable sense of grievance on the part of the appellant. See also Postiglioneper Mason J at 613; Brennan J at 617 and 618; and R v Cox (1996) 66 SASR 152.
47 Ugle was older than the appellant. The anomaly in the context of the transitional provisions is that when an adult and a juvenile are sentenced for the same or similar offences, in the absence of a lesser minimum term being fixed, the minimum term to be served by the juvenile will be one-half of the sentence imposed, whereas the effect of the transitional provisions in the Sentencing Act is that the sentence to be served by the adult will be a sentence of two-thirds of the sentence which would previously have been imposed. In this case, the maximum sentence applicable to the offence committed by Ugle was 5 years. A sentence of 3 years 6 months' imprisonment was imposed, which sentence was subsequently reduced by one-third to reflect the effect of the transitional provisions. The result was that Ugle was sentenced to 2 years 4 months' imprisonment, with a minimum term of 14 months. In the result, both the appellant and Ugle will be required to serve the same minimum term.
48 In my opinion, the appellant is not entitled to a justifiable sense of grievance by reason only of this discrepancy between the head sentences.
49 Since writing the above, I have had the advantage of reading the reasons to be published by Steytler P. Those reasons significantly reinforce my own reasons for joining in making the order that the appellant be granted leave to appeal but that the appeal should be dismissed.
50 STEYTLER P: This is an application for leave to appeal against sentence. At the conclusion of the hearing of the application the Court
(Page 22)
- granted the appellant leave to appeal, but dismissed the appeal. These are my reasons for joining in that decision.
51 On 10 November 2004, the appellant, a 17-year-old male, pleaded guilty to one charge of assault with intent to do grievously bodily harm contrary to s 317A(b) of the Criminal Code (WA), one count of stealing from the person of another contrary to s 378(5)(a) of the Code and one count of driving without a licence. He was sentenced, on 10 March 2005, to a term of 3 years' detention in respect of the assault and to a term of 2 years 6 months' detention in respect of the stealing charge. The terms were ordered to be served concurrently. In respect of the driving charge, he was disqualified from holding or obtaining a drivers' licence for a period of nine months. His application for leave to appeal is directed against the terms of detention imposed upon him. There is only one ground of appeal. It is to the effect that the sentence of 3 years' detention was manifestly excessive having regard to the sentence imposed on an adult co-offender, which was less than that imposed on the appellant.
52 The offences which are the subject of this application were committed in the early hours of 10 October 2004, at the Perth Railway Station. The complainant, a 31-year-old tourist from the United Kingdom, had gone to the station. So, too, had the appellant and three others, two of them being his co-offenders, Bevan Ugle, then 24 years old, and "P", whose age is not apparent. Ugle and "P" assaulted the complainant for no good reason. While the complainant lay unconscious on the floor of the railway concourse following upon the initial assault on him, Ugle kicked him on the head and body and stomped on his head. The appellant was then standing some 20-25 metres away from the complainant. He ran towards the complainant's supine body, jumped in the air with both feet raised and then drove both feet into the back of the complainant's head. A little later, he took from the complainant a mobile telephone, before running from the scene. He was apprehended a short time later. The incident was recorded on videotape by surveillance cameras in the area.
The sentencing of the appellant
53 When the appellant came to be sentenced for these offences, a dispute arose as regards the facts which were relevant to sentencing. This led to a trial of issues. In the course of it, each of the complainant and the appellant gave evidence. The complainant could remember nothing of the assault itself. The appellant, in his evidence, said that he and his cousin "D" had been out together and that they had met up with Ugle and "P" at the train station concourse. While there, he and D had got into an
(Page 23)
- argument. At that point, he said, the complainant came along. The appellant said that he bumped into the complainant while "going back arguing with … [his] cousin" and that the complainant then grabbed him around the throat and called him a "black cunt", or words to that effect. He said that he "blanked out". The appellant said that his cousins then "reacted and got … [the complainant] off … [him]" and started "punching into" the complainant. He said that he walked away from what was going on. He saw his "cousins kicking into" the complainant. His cousin D then said something like "You let him do that there, you know, he had you by the throat and you're not even going to do anything". He said that this caused him to run and jump on the complainant's head.
54 The sentencing Judge, the President of the Children's Court, said that he did not accept "one word" of the appellant's evidence. He found that the appellant was totally unreliable as a witness, mentioning that his evidence lacked consistency, that he had been under the influence of a combination of alcohol, cannabis and amphetamines at the time of the commission of the offence and that he had demonstrated a selective memory. He said that the appellant's explanation of blanking out after being held by his throat was "absolute nonsense" and that he had made up a story about this and about the making of a racist remark by the complainant.
55 The President then turned to the various considerations which he considered to be relevant to the sentencing process.
56 He referred, first, to the fact that the appellant had pleaded guilty to the offences charged. He said that, were it not for the fact that the appellant had lied about what took place in an attempt to ameliorate his sentence, thereby necessitating the giving of evidence by the complainant and demonstrating only limited remorse, he would have given the appellant a discount of about 30 per cent. Instead, he proposed to give a discount of about 14 to 15 per cent.
57 Then, after mentioning the maximum penalty for each offence (5 years' imprisonment in the case of the assault with intent to do grievous bodily harm and 14 years' imprisonment in the case of the offence of stealing from the person), he turned to consider the circumstances of the offending.
58 He took into the account the fact that, by the time the appellant "ran at and jumped and stomped on" the complainant's head, his victim was already "lying unconscious, vulnerable and defenceless on the floor of the
(Page 24)
- concourse". He said that the appellant's conduct, in the circumstances, placed his assault in the "worst category of its kind". He explained why this was so in the following way:
"I say that having regard to the combination of the following things: firstly, the victim was lying on the floor of the concourse of the railway station unconscious, vulnerable and defenceless. Secondly, he had no idea of your approach. Thirdly, you ran to get the momentum to jump. Fourthly, on arriving at the spot where the victim was, you jumped up and lifted your knees towards your chest and, fifthly, when your body was then dropping back towards the floor of the concourse you very forcibly pushed both of your feet down and onto the victim's head".
The President went on to say that what the appellant had done was extremely callous and that it was amazing that the complainant was not killed or left with some serious brain injury (in fact he had suffered a laceration and haematoma to the left ear and bruising and soft tissue injuries to his face, sufficient to require a short period of hospitalisation). He mentioned that the assault had had a significant and ongoing effect on the complainant.
59 As to the stealing of the complainant's mobile telephone, the President mentioned that, after the appellant's assault on the complainant, he had taken some steps away from his victim before turning back to take the telephone. He said that the circumstances in which the telephone was taken made the offence very serious.
60 The President then turned to other factors, including the need for deterrence, the fact of the appellant's youth, the principles contained within the Young Offenders Act (1994) (WA), the appellant's limited criminal record (he had no record for offences of violence or dishonesty), the need to rehabilitate the appellant, the fact that the appellant had had a dysfunctional upbringing and his use of alcohol, cannabis and amphetamines on the night of the commission of these offences. He said, in relation to the charge of assault with intent to do grievous bodily harm, that what the appellant did to the complainant, and the circumstances in which he did it, substantially outweighed or overwhelmed the combination of all of the mitigating factors, including the appellant's "youth and the principles that go with that", his good prior record and his pleas of guilty. He went on to impose the sentences to which I have referred, mentioning that the appellant would be eligible for supervised release at a time to be determined by applying the formula set out in
(Page 25)
- s 121(3) of the Young Offenders Act. The application of that formula produced a minimum period of 14 months' imprisonment, being the lowest minimum period that could have been set under the provisions of s 121.
The sentencing of Ugle
61 Ugle, being an adult offender, was later sentenced by a different Judge. He had pleaded guilty, on the fast-track, to a charge of assault with intent to do grievous bodily harm. "P", having pleaded not guilty to the offences charged against him, had yet to be dealt with at the time of the hearing of the appeal.
62 The sentencing Judge in Ugle's case described the assault by him on the complainant as "simply unforgivable", given that he had struck violent and vicious blows to the complainant's head. He said that it was difficult to say, as between Ugle and the appellant, who was more culpable for the attack. However, he noted that the appellant was some seven years younger than Ugle and that, unlike Ugle (who had a significant criminal record encompassing burglary and other money and property offences, including a conviction for aggravated burglary, but no prior convictions for any assault), the appellant had a very limited criminal record. He said that, because Ugle had pleaded guilty at an early stage, he would give him "a significant discount" on that account. He imposed a term of 3 years and 6 months' imprisonment, with eligibility for parole.
63 Some weeks later, a further hearing took place before the Judge who had sentenced Ugle. It had been pointed out to him that, because of the operation of cl 2 of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions"), the sentence which he had imposed was more severe than was permissible. Those provisions required, in effect, that the sentence which would otherwise have been imposed should be reduced by one third. Because the maximum penalty allowed for by the Code in respect of the offence of which Ugle was convicted was one of 5 years' imprisonment, the effect of the enactment of the transitional provisions was that a sentence of no more than 3 years and 4 months' imprisonment could be imposed. The sentencing Judge, who accepted that he might have overlooked the transitional provisions, substituted, for the sentence imposed by him, one of 2 years and 4 months' imprisonment.
(Page 26)
The parity issue
64 It is against this background that the parity issue is raised as the solitary ground of appeal. The sentence of 3 years' detention imposed upon the appellant is said to have been manifestly excessive when regard is had to the sentence of 2 years and 4 months' imprisonment imposed on Ugle. Counsel for the appellant also pointed to the fact that both offenders will have to spend a minimum of 14 months in custody. He submitted that it is contrary to the principles of juvenile justice that a juvenile should receive a longer head sentence than an adult for the same offence, or that the juvenile should be required to spend the same amount of time in custody. He also submitted that, in any event, Ugle played a more significant role and had a worse criminal record than the appellant.
65 The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606 at 617-618, per Brennan J, and Postiglione, ibid. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: R v Cox (1996) 66 SASR 152, per Doyle CJ, and Postiglione, at 301, per Dawson and Gaudron JJ. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance.
66 In considering the application of the parity principle, sight should not be lost of the community interest in seeing offenders appropriately punished. The imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. While parity might require a sentencing Judge to be more lenient than he or she might otherwise have been, it does not require a sentencing Judge to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence.
67 In Lowe, at 614, Mason J accepted that a court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable
(Page 27)
- sense of grievance by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate. However, what was there said by his Honour is not authority for the proposition that, in the case of disparity, an appellate court must reduce a co-offender's sentence to one which is inadequate. As was pointed out by Simpson J in R v Steele, unreported; CCA SCt of NSW; 17 April 1997, what was said by Mason J is authority only for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to reduce the co-offender's sentence to one which is inadequate. What was said by Simpson J in Steele has since been applied in a number of cases in New South Wales, including R v Zabul [2001] NSWCCA 455 and R v Lam [2003] NSWCCA 162.
68 Consequently, it is open to an appellate court to conclude, in a case in which a co-offender has been inadequately sentenced, that to establish parity might "compound the error in a way which would be unacceptable to the public conscience": R v MacGowan (1986) 42 SASR 580 at 583 per King CJ, Mohr and von Doussa JJ agreeing. When the more severe sentence is one which is already as lenient as could sensibly be imposed, having regard for the need to protect the public and the dictates of the public conscience, it is hard to see why there should be any "justifiable" sense of grievance on the part of the offender.
69 So, in this State, in R v Capper (1993) 69 A Crim R 64 at 72, Wallwork J said that it would seem contrary to common sense, in a case in which the court which had imposed the more lenient sentence was said to have acted without jurisdiction, that a co-accused "should be able to take advantage of that situation to have a sentence of similar length imposed upon him even if it is wholly inappropriate". In the same case, Anderson J said, at 74, that, when a co-offender had been treated with excessive leniency, justice might be sufficiently done if the prisoner received as lenient a sentence as could be justified within the accepted range of sentences for that kind of offence, in light of matters personal to the prisoner. He was not prepared to go so far as to reduce the appellant's sentence to the same period as that which had been imposed upon the co-offender.
70 Similarly, in Goddard v The Queen (1999) 21 WAR 541, Kennedy J, after discussing the parity principle at some length, said, at 555, that it did not follow that the Court would reduce a high sentence "so
(Page 28)
- that it equates in all respects to the sentence imposed on the co-offender". He went on to say:
"The position was explained by Gleeson CJ when sitting in the Court of Criminal Appeal in New South Wales in R v Reardon (1996) 89 A Crim R 180 at 182. He said:
'[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broad discretionary exercise. '
This is the discretion of which Gibbs CJ also spoke to Lowe's case: see also R v Cox (1991) 55 A Crim R 396 at 401 - 402, per Thomas J."
"Any lesser sentence would be seen as wholly inadequate. I do not consider that an objective bystander would see the applicant as being unjustly treated, when he, on being first sentenced, received a sentence as lenient as possible within the accepted range. The applicant would undoubtedly think it unfair that his co-offender received the lesser sentence but I do not see it open for court [sic] as being able to rectify this situation as the sense of grievance in other areas would become far greater."
- Murray J expressed a similar opinion at 562. He said:
"The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing judge and the appellate court required to substitute a sentence which should have been passed by the court of first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender."
(Page 29)
- He referred, in that respect, to s 6(1) of the Sentencing Act1995 (WA) which provides that, "A sentence imposed on an offender must be commensurate with the seriousness of the offence".
72 When only one of two co-offenders is a juvenile, additional considerations must be taken into account. A juvenile is sentenced under the principles contained in the Young Offenders Act whereas adult offenders are dealt with under those contained in the Sentencing Act. Ordinarily, that will result in greater leniency being accorded to juveniles than to adult offenders: R v C (A Child) (1995) 83 A Crim R 561 and Penny v The Queen [1999] WASCA 1059.
73 In this case there could have been no justifiable sense of grievance on the part of the appellant if Ugle had received the sentence which the sentencing Judge would have imposed upon him were it not for the operation of the transitional provisions (which do not apply in the case of juvenile offenders sentenced pursuant to the provisions of the Young Offenders Act). In that event, the appellant would have received a lesser sentence than that received by Ugle, notwithstanding that the latter's early plea of guilty warranted a significant discount as compared to the relatively small discount allowed in the case of the appellant, given the lack of any significant remorse shown by him. However, s 7(c) of the Young Offenders Act provides that a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult and it seems to me that, for the purposes of the parity principle, the sentence which should be compared with that imposed on the juvenile offender is that which was actually imposed upon the adult offender, rather than that which, were it not for the operation of the transitional provisions, the sentencing Judge would have imposed on the adult offender.
74 In the end, and taking into account all of these principles, it seems to me that the sentence imposed by the President of the Children's Court should not be interfered with. While it is an unusual outcome for an adult offender to be sentenced more severely than his juvenile co-offender, this is an unusual case. The sentence imposed upon the adult was, in my respectful opinion, excessively lenient, even allowing for the effect of the transitional provisions, when regard is had to the extremely serious nature of the conduct engaged in by him. More importantly, there were significant differences in the conduct and attitude of the two offenders.
75 One obvious distinction between the two offenders is that Ugle, who showed greater contrition and no wish to mislead the Court as regards the circumstances of his offending, obtained the full benefit of his plea of
(Page 30)
- guilty. That presumably resulted in the usual discount of 30 to 35 per cent. Had the appellant received a similar discount, as the President of the Children's Court said that he would have done had he not set out to deceive the Court on matters relevant to sentencing, he would have been sentenced to a period of around 2 years and 4 months' detention, instead of the term of 3 years in fact imposed upon him. While that is the same sentence (although it would carry a shorter minimum term) as that imposed upon the significantly older adult offender who had a much greater criminal record, that must be considered in the light of the differing roles played by the two offenders and the seriousness of the conduct of each of them. In each case the conduct was extremely serious, as I have said. What was done by Ugle was rightly regarded by the Judge who sentenced him as violent and vicious. Ugle repeatedly kicked his victim on the body and head and also jumped and stomped on his head. However, it seems to me that the conduct of the appellant was even worse than that of Ugle. He had not initially been involved in the altercation. By the time he chose to involve himself, for no apparent reason than a desire to participate in an act of gratuitous violence, the complainant was already unconscious. Most importantly, the manner in which he chose to involve himself was brutal. I have said that he ran in from some distance, launched himself into the air with both feet raised and then, with that momentum, drove both feet onto the complainant's head. By doing so, he could very easily have killed the complainant. That he did not was simply a matter of good fortune.
76 Given the differences in the conduct of the two men, and in the approach respectively taken by them to their pleas of guilty, and having regard for the extremely serious nature of the appellant's offending, which, as it seems to me, could not adequately be dealt with by any penalty less severe than that imposed upon him, it seems to me that in this case appellate intervention is not justified by resort to the parity principle. Consequently, while I considered that leave to appeal should be granted, I dismissed the appeal against sentence.
77 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Steytler P. I agree with those reasons.
28
15
7