Joyce v Bunn
[2019] WASC 319
•6 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JOYCE -v- BUNN [2019] WASC 319
CORAM: TOTTLE J
HEARD: 2 SEPTEMBER 2019
DELIVERED : 2 SEPTEMBER 2019
PUBLISHED : 6 SEPTEMBER 2019
FILE NO/S: SJA 1075 of 2019
BETWEEN: JONATHAN CHARLES JOYCE
Appellant
AND
WESTLEY RAYMOND BUNN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A LONGDEN
File Number : MH 2591 of 2018
Catchwords:
Criminal law - Appeal against sentence - Unlawful possession of stolen or unlawfully obtained property - Parity of sentence - Where co-offender's sentence suspended - Whether appellant's sentence ought to be suspended
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 10(3)
Sentencing Act 1995 (WA), s 76(3)(b), s 81(3)(b)
Result:
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
Bennett v Beeby [2019] WASC 275
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
DKN v The State of Western Australia [2018] WASCA 87
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) CLR 606
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stoysich v The State of Western Australia [2014] WASCA 208
TOTTLE J:
Introduction
On 8 March 2019 the appellant was sentenced in the Magistrates Court of Western Australia to a total effective sentence of 16 months immediate imprisonment following his conviction for 21 offences to which he had pleaded guilty. The appellant was convicted on his pleas of guilty to a further three charges for which he received a fine of $500.
The 16 month term of imprisonment included a term of six months for the offence of possessing property reasonably suspected to be stolen or unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). Parole eligibility orders were made.
The appellant sought leave to appeal against the sentence of six months imprisonment for the offence of possessing property reasonably suspected of being stolen or unlawfully obtained. At the conclusion of the hearing of the application for leave to appeal I explained to the appellant why his application for leave was unsuccessful and said that I would publish formal and detailed reasons. These are those reasons.
The offences and sentences imposed
On 21 December 2018, the appellant pleaded guilty to 20 of the 24 offences. The appellant pleaded guilty to the remaining four charges on 19 February 2019. Details of the sentencing disposition for each offence together with brief details of the offences are set out in the table below.
| Date of | Charge No | Offence | Plea history and penalty imposed |
| 8.3.18 | MI4189/18 | No authority to drive (susp) | PG 17/8/18 |
| 12.04.18 | MH2678/18 | No authority to drive (susp) | PNG 17/8/18; PG 21/12/18 (trial date) |
| 12.04.18 | MH2591/18 | Possess stolen/ul property | PNG 17/8/18; PG 21/12/18 (trial date) |
| All offences below committed whilst on bail | |||
| 20.10.18 | MH6120/18 | Stealing | PG 21/12/18 |
| 24.10.18 | MH6121/18 | Possess cannabis | PG 21/12/18 |
| 24.10.18 | MH6122/18 | Possess methylamphetamine | PG 21/12/18 |
| 24.10.18 | MH6123/18 | Possess drug paraphernalia | PG 21/12/18 |
| 24.10.18 | PE60761/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60762/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60763/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60764/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60765/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60766/18 | Possess stolen/ul property | PG 21/12/18 |
| 24.10.18 | PE60767/18 | Possess stolen/ul property | PG 21/12/18 |
| 15.11.18 | PE60768/18 | Stealing | PG 21/12/18 |
| 15.11.18 | PE60769/18 | No authority to drive (susp) | PG 21/12/18 |
| 17.11.18 | PE60770/18 | Stealing | PG 21/12/18 |
| 17.11.18 | PE60771/18 | Criminal damage | PG 21/12/18 |
| 17.11.18 | PE60772/18 | Stealing | PG 21/12/18 |
| 17.11.18 | PE60773/18 | No authority to drive (susp) | PG 21/12/18 |
| 22.11.18 | MH292/19 | Possess stolen/ul property | PG 19/2/19 |
| 30.01.19 | PE5036/19 | Trespass | PG 19/2/19 |
| 30.01.19 | PE5037/19 | Stealing | PG 19/2/19 |
| 30.01.19 | PE5038/19 | Criminal damage | PG 19/2/19 |
As is apparent from the table, a number of stealing and related offences were committed while the appellant was on bail for the charge of possessing property reasonably suspected of being stolen or unlawfully obtained.
The appellant's boarder, Mr Kowalewski, was convicted of stealing the three transformers (the subject of the unlawful possession of property offence) and attempting to steal a further transformer. At no stage was it alleged before the court that the appellant was involved in the stealing of the transformers.
On 21 August 2018, Mr Kowalewski pleaded guilty in the District Court of Western Australia to stealing and attempting to steal. Burrows DCJ sentenced Mr Kowalewski to 15 months imprisonment and conditionally suspended that term for 2 years.
There is nothing to suggest that the sentencing magistrate was aware of the sentence imposed on Mr Kowalewski when sentencing the appellant. It was certainly not brought to her Honour's attention by the appellant who was aware of it.
The material facts
The following statement of material facts relating to the unlawful possession offence was read to the magistrate:
At approximately 7.00am on Thursday, 12 April 2018, three electrical transformers were stolen from a building site located on Hopeland Road in North Dandalup. At approximately 2.30pm that same day police executed a Criminal Investigation Act search warrant at the home address of the accused, being 361 Lakes Road in Mandurah. During the search warrant the three stolen transformers were located in the rear yard.
During an electronic record of interview he denied any involvement in the stealing of the transformers but admitted he helped a friend to move them and he suspected they were stolen. The transformers are estimated to be valued at $25,000 each, so a total value of $75,000, but were obviously recovered, your Honour, at that address. (emphasis added)
Proceedings before the Magistrates Court
On 21 December 2018, the appellant pleaded guilty to the offence of possessing property reasonably suspected of being stolen or otherwise unlawfully obtained. The charge was read to the appellant and a plea was entered as follows:
HIS HONOUR: It's said on 12 April at Parklands that you had in your possession three electronic transformers reasonably suspected of being stolen or otherwise unlawfully obtained. Do you understand that charge?
ACCUSED: Yes.
HIS HONOUR: How do you wish to plead to that charge?
ACCUSED: I plead guilty.
The appellant said that he decided to plead guilty after he was informed that Mr Kowalewski had received a suspended sentence in respect of the stealing and attempted stealing convictions. In his written submissions the appellant said that he was 'under the impression that the Magistrates Court could not give more than what the District Court judge could for the same offence'. As explained below in support of the present application the appellant invoked the parity principle.
At the hearing on 19 February 2019 the magistrate put the appellant on notice that he was facing a term of imprisonment. Her Honour said:
HER HONOUR: Okay. And, obviously, I haven't heard the facts. You pleaded guilty before a different magistrate but I have read the report - and I haven't seen your record either - but you are risk [sic] getting a term of imprisonment. Do you appreciate that?
ACCUSED: Yes, I do, your Honour.
HER HONOUR: Okay. And you don't want assistance of duty counsel to speak - - -
ACCUSED: Pardon?
HER HONOUR: You don't want a lawyer to help you in court?
ACCUSED: I don't think so, your Honour. What's that going to do (indistinct)
HER HONOUR: I'm just making sure you - - -
ACCUSED: Yes. I'm undecided, really.
HER HONOUR: Well, we can go ahead now. It's entirely up to you. Or we can come back on Friday and get here in time to see the duty lawyer, who would look at the reports and speak to me on your behalf. It's up to you.
ACCUSED: I will just carry on with it.
HER HONOUR: Okay, then.
Later in that hearing the appellant provided the following explanation for his offending:
ACCUSED: Do I want to say anything? Yes, I do, your Honour. It's about the transformers, I have - like, we put friend up, like, he had nowhere to go and he was - he has gone to his family. Anyway, he got kicked out of his family home and had nowhere to go so we put him up, you know. And this bloke we've known for probably about six years, you know, and he's a bricklayer by trade, always worked, never stole anything. Went to sleep at 10 o'clock that night and I woke up in the morning to a phone call (indistinct) he said, 'Come down here and give me a jump start.' So I said all right. So - - -
HER HONOUR: Well, listen, I just remind you, you pleaded guilty to having possession of these items.
ACCUSED: Yes. I'm just trying to explain why - why I had them in my possession. I went down to jump start him and then I drove back and when I looked out the back I see all the - like, the three transformers, you know, and I said, 'What are you doing with them,' you know. He was going to strip them and take all the copper wire out of them. But that explains them, your Honour. I've - I had no involvement in stealing them or - you know, anything like that. I was - I was sleeping when they got caught with my property and I told the police this and they said yes, but it's still in my possession which - but they are right. So - - -
The magistrate's sentencing remarks
At the sentencing hearing on 8 March 2019 the magistrate began her sentencing remarks by referring to the pre-sentence report and to a psychological report that the appellant had obtained privately. The magistrate then referred to the appellant's record of traffic offences that the appellant himself had described at the hearing on 19 February 2019 as 'atrocious'. Her Honour then moved on to the other offences and stated:
The other offences involve you stealing, destroying property in order to steal, and possessing a large amount of unlawfully obtained or stolen property, property reasonably suspected or otherwise unlawfully obtained. The most serious of those possession offences is your possession of three electrical transformers worth $75,000. They were found in your yard on the afternoon of the day they were stolen. Your explanation in court was consistent with the statement of material facts which, really, is that you are not said to have been involved in the stealing, but, rather, helped your friend and they were discovered in your property.
That offence took place in April 2018. You initially entered a plea of not guilty to that charge and the matter was listed for trial. So not an early plea in respect to that charge. (emphasis added)
I draw attention to the passage of the magistrate's sentencing remarks that appear in italics for the purposes of emphasising to the appellant that her Honour sentenced him on the basis that he was not involved in stealing the transformers.
When the magistrate came to impose the sentence she said:
Okay. All right. Well, I will take into account in this case your pleas of guilty, your personal circumstances, the aggravating factors, including the fact that charges were pending when you committed further offences, and any other mitigating factors, including your difficult background. I have reached the conclusion in this case that, given all of those factors, only a term of imprisonment can be imposed.
You have shown a total lack of regard and respect for the property of others and the large amount of property found in your possession, although some items were returned to you, really you have no explanation for having had those. And as I say, there is concern that you continue to offend even when awaiting sentence for serious offences. And the driving offences alone are enough to justify a term of the imprisonment, having - following.
I have given consideration to those same factors in considering whether any term of imprisonment can be suspended and I find there is no basis. The totality of your offending is so serious that only an immediate term can now be imposed. Your plea of guilty for what is the most serious, I consider, offence involved a plea of guilty at the last opportunity. So there will be a 10 per cent discount for your plea for charge 2591 of '18. And likewise, the driving charge, 2678, I believe of '18 was a plea of guilty on the day of trial. So it will also attract a 10 per cent discount only.
There will be a 20 per cent discount for the - for your plea of guilty for the remainder of the charges despite the fact that there is a strong prosecution - the prosecution case (indistinct) offending. In respect to the stealing charges 60770, 772 and 5037, they are fine only offences. So there will be a single fine of $500 for those offence. I do take into account the totality principle and you will be serving a term far less than would be imposed if you were dealt with individually. But still a reasonably significant term, given the amount of offences.
For the charge of unlawful possession of the transformers, there will be - it is that charge 2591, there will be a six month term of imprisonment. For the driving offence, 2678 of '18, there will be a cumulative 4 month term. There will be a concurrent 4 month term for 4189 of '18 and a 4 month cumulative term for the other driving offence, 60769 of '18. So that is 14 months and a cumulative two months for the offence of damage, the last - part of the last set of offending, 5038 of ' 19.
So that is a total term of 16 months imprisonment. All other charges where I have not mentioned - that I haven't mentioned already will attract a two month concurrent term of imprisonment. So it is a 16 month term of imprisonment from today. I order that you be eligible for parole. There will be a nine month disqualification for each of the driving offences, to be served cumulatively. And orders for a return of property and destruction as sought on the last occasion. All right. Thank you
Extension of time in which to appeal
An appeal to this court from a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless this court otherwise orders.[1] This appeal was needed to be commenced by 7 April 2019. The appeal notice was not filed until 6 June 2019.
[1] Criminal Appeals Act 2004 (WA) s 10(3).
In an affidavit sworn by him the appellant explained that the delay in commencing the application for leave to appeal was caused by a delay in obtaining the transcript of the sentencing hearing. The appellant is imprisoned and self-represented and the difficulties he encountered are understandable and not uncommon. In these circumstances, where the delay is not disproportionately lengthy, I will grant leave to the appellant to commence his appeal out of time.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), and the appellant requires leave to appeal on each ground.[2] The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[3] That means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[4] If leave to appeal is refused on all grounds the appeal is taken to be dismissed.[5]
[2] Criminal Appeals Act s 9(1).
[3] Criminal Appeals Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[5] Criminal Appeals Act s 9(3).
The ground of appeal on which the appellant relies
Some aspects of the appellant's written submissions created the impression that the appellant wished to appeal against his conviction for the unlawful possession offences. At the beginning of the hearing the appellant read from a statement that he had prepared and made it clear that he was not seeking leave to appeal against the conviction and his application for leave to appeal was only in respect of the sentence imposed.
The appellant argues that as the sentence of imprisonment imposed on Mr Kowalewski for stealing the three transformers and attempting to steal a fourth was suspended, then the sentence of imprisonment imposed by the magistrate for unlawful possession of the three transformers should also have been suspended.
The appellant relies on what is known as the parity principle. This principle holds that it is desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. Other things are not, however, always equal, and matters such as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.[6]
[6] Bennett v Beeby [2019] WASC 275 [48] (Jenkins J) citing Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 623 (Dawson J).
The parity principle was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen,[7] their Honours there observed that:[8]
Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
[7] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[8] Green v The Queen [28].
Their Honours continued later:[9]
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: '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 words to give the appearance that justice has not been done.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (emphasis supplied)
[9] Green v The Queen [31] (citations omitted).
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences.[10] However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences.[11]
[10] Stoysich v The State of Western Australia [2014] WASCA 208 [43] (Buss JA, Martin CJ & Mazza JA agreeing).
[11] Stoysich [44]; Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [27] (Warren CJ, Redlich JA & Ross AJA).
There are three reasons why the parity principle does not operate to assist the appellant's argument that the sentence of imprisonment imposed for the unlawful possession offence should have been suspended.
First, s 76(3)(b) of the Sentencing Act 1995 (WA) provides that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment. Similarly, s 81(3)(b) provides that conditional suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. When regard is had to the other offences of which the appellant was convicted and to the serious and serial criminality involved in those offences a term of immediate imprisonment was inevitable irrespective of the sentence imposed for the unlawful possession of the transformers. Accordingly, the appellant was an offender who was in the position of an offender who was yet to serve a term of imprisonment,[12] those terms of imprisonment being the terms imposed in respect of the traffic offences and the other offences to which he had pleaded guilty and in respect of all but three of which he received custodial sentences. In those circumstances, it was not open to the magistrate to suspend the term of imprisonment in respect of the unlawful possession of the transformers.
[12] DKN v The State of Western Australia [2018] WASCA 87 [46] (Buss P, Mazza & Beech JJA).
Second, the appellant's argument that the term of imprisonment imposed in respect of the unlawful possession of the transformers should have been suspended rests on the proposition that the sentence imposed on Mr Kowalewski of 15 months imprisonment suspended for two years was more lenient than the sentence of 6 months immediate imprisonment. As Jenkins J observed in Bennett v Beeby, it is not as simple as saying that a suspended sentences is a substantially lesser penalty than a term of imprisonment to be immediately served. Her Honour explained the law as follows:[13]
Further, it is not as simple as saying that the suspension of a sentence is a substantially lesser penalty than a sentence which is to be immediately served. In Dinsdale v The Queen, Kirby J said that a sentence of suspended imprisonment is 'the penultimate penalty known to the law' but that in practice it is not always viewed that way by the public, victims of crime and even by offenders. Despite the potential misapprehensions of others about the seriousness of the penalty, a court is required to sentence according to law. Although an offender is not liable to serve a conditionally suspended term of imprisonment unless during the suspension period he commits an offence the statutory penalty for which is or includes imprisonment or the offender otherwise breaches the conditions of suspension and the court orders all or part of the sentence to be served, the reality is that until the offender is discharged from the sentence he may, if it is breached, be ordered to serve all or part of the sentence. Whether it is served turns on unknowable future circumstances. The sentence may, in the fullness of time, have the equivalent seriousness and effect on the offender as a term of imprisonment to be served immediately. Even before an order is made for the service of the term, the threat of imprisonment hangs over the head of the offender and in the case of a conditionally suspended sentence, as this was, the offender is required to comply with significant conditions which fetter their liberty.
As a consequence of its effect being unknowable, it is not possible to equate a suspended term of imprisonment with any other form or length sentence. For example, it is not possible to say in this case that given that the appellant's sentence could not be suspended, a sentence of the same or lesser length than Mr Priemer's suspended term of imprisonment should have been imposed on him. This is because it would be entirely unjust for Mr Priemer potentially to be liable to serve a sentence of the same or greater length as the appellant for a less serious offence. (footnotes omitted)
[13] Bennett v Beeby [94] - [95].
Third, the parity principle does not mean that differences in the background and criminal history of offenders is ignored. Where there are differences between co‑offenders such as age, background, criminal history and general character, different sentences maybe justified. As the respondent submitted, there was a 'vast gulf' between the criminal history of Mr Kowalewski and that of the appellant. At the time of the offending Mr Kowalewski was 33 years old. Although he had a bad record for traffic offences (including a short term of imprisonment for reckless driving in 2014) Mr Kowalewski had no other criminal convictions. By contrast, the appellant was 49 years old and for offences of dishonesty alone, had six prior convictions for burglary, three for trespass, more than 20 convictions for stealing and three convictions for possession of suspected stolen property. Further, whereas Mr Kowalewski was sentenced only with respect to stealing and attempted stealing of the transformers, the appellant was sentenced in respect of a further 23 offences unrelated to the transformers.
For the reasons set out above, I concluded that the ground of appeal relied upon by the appellant had no reasonable prospect of success and thus the appellant's application for leave to appeal was refused.
There is one further matter that I have touched on earlier but wish to mention again. The appellant was apparently under the impression that the magistrate imposed a sentence of 6 months imprisonment on him on the basis that he had participated in the stealing of the transformers. I have considered the transcript of the hearings carefully and it is plain from a reading of the transcripts as a whole and from the extracts that I have set out in this judgment that the appellant was not sentenced on the basis that he was involved in the commission of the stealing or attempted stealing of the transformers by Mr Kowalewski.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle6 SEPTEMBER 2019
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