Lardi v The State of Western Australia [No 2]
[2021] WASCA 117
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LARDI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 117
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 JUNE 2021
DELIVERED : 21 JUNE 2021
PUBLISHED : 7 JULY 2021
FILE NO/S: CACR 186 of 2020
BETWEEN: CAMERON JACOB LARDI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1495 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant charged with one count of assault causing bodily harm contrary to s 317 of the Criminal Code (WA) and one count of stealing contrary to s 378 - Where appellant and two co-offenders were each sentenced to 11 months' immediate imprisonment for assault charge - Whether parity principle infringed
Legislation:
Criminal Code (WA), s 317, s 378
Sentencing Act 1995 (WA), s 9AA, s 76
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | P D Yovich SC |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Seamus Rafferty & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Carrick v The State of Western Australia [2017] WASCA 175
Castrilli v The State of Western Australia [2019] WASCA 135
Clarke v The State of Western Australia [No 2] [2013] WASCA 197
Holden v The State of Western Australia [2009] WASCA 50
Lardi v The State of Western Australia [2020] WASCA 218
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
NGO v The Queen [2017] WASCA 3
Wiltshire v Mafi [2010] WASCA 111
REASONS OF THE COURT:
This is an appeal against sentence.
The appellant, Cody Warren Walter McDonald and Daniel Raymond Birdsall were jointly charged on indictment in the District Court that, on 2 February 2019 at Northbridge, they unlawfully assaulted James Robert Holgate and thereby did him bodily harm, contrary to s 317 of the Criminal Code (WA) (the Code) (count 1). The appellant was also charged that, on the same date and at the same place, he stole a mobile telephone the property of Mr Holgate, contrary to s 378 of the Code (count 2).[1]
[1] AB 35.
On 31 August 2020, the appellant, Mr McDonald and Mr Birdsall pleaded guilty to count 1. The appellant also pleaded guilty to count 2.[2] On 15 December 2020, Troy DCJ sentenced the appellant, Mr McDonald and Mr Birdsall to 11 months' immediate imprisonment with respect to count 1. His Honour imposed a sentence of 3 months' immediate imprisonment on the appellant for count 2. His Honour ordered that the sentences he imposed upon the appellant be served concurrently. Thus, the total effective sentence imposed upon the appellant was 11 months' immediate imprisonment. The appellant and his co‑offenders were each made eligible for parole. The sentences commenced on the day that they were imposed.[3]
[2] ts 16.
[3] ts 50.
The appellant appealed to this court on three grounds. Ground 1 alleged that the learned sentencing judge erred in his characterisation of the harm caused to Mr Holgate. Ground 2 alleged, in substance, that the sentences imposed were manifestly excessive. Ground 3 alleged that the sentence imposed upon the appellant for count 1 infringed the parity principle. The application for leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal. Leave to appeal was granted on ground 3.[4] On 24 December 2020, Buss P granted the appellant bail pending the outcome of the appeal.[5]
[4] Order of Buss P dated 10 February 2021; AB 4.
[5] Lardi v The State of Western Australia [2020] WASCA 218.
The respondent conceded that ground 3 was made out. That concession was correctly made. The parity principle was infringed in that the appellant received the same sentence as his co-offenders notwithstanding that he played an appreciably lesser role than his co-offenders and has better antecedents. After hearing submissions from the parties on the issue of resentencing, the court unanimously made the following orders:
1.Leave to appeal on grounds 1 and 2 refused.
2.Appeal allowed.
3.The sentencing decision of the primary judge, including the sentences imposed and the orders made by his Honour, is set aside.
4.The appellant is resentenced to 8 months' imprisonment on count 1 and 2 months' imprisonment on count 2.
5.The new individual sentences are to be served concurrently.
6.The whole of each of the new individual sentences is suspended for a period of 9 months pursuant to s 76 of the Sentencing Act1995 (WA).
Our reasons for these orders are as follows.
The facts
The facts and circumstances of the offending were set out by Buss P in his Honour's reasons for granting the appellant bail pending the outcome of this appeal.[6] We adopt his Honour's summary and, for convenience, repeat it.
[6] Lardi [10] - [13].
At about 1.40 am on 2 February 2019, Mr Holgate left the Brass Monkey Hotel in Northbridge to go home. The appellant, Mr McDonald and Mr Birdsall had been in a Mercedes sedan. An unknown male had sat on the bonnet of the sedan and had snapped the badge from the vehicle. The appellant, who had been driving the Mercedes sedan, alighted from the vehicle and confronted the unknown male. The appellant then returned to the sedan, and drove it for a short distance before stopping. The appellant again alighted from the vehicle. Shortly afterwards, Mr McDonald and Mr Birdsall also alighted. They punched the unknown male who had snapped the badge from the vehicle. The altercation then broadened to include a group of women. At that stage, the appellant discovered that he had lost a gold chain which was of sentimental value. The appellant accused one or more of the women of taking the chain. He grabbed a handbag from one of the women and refused to return it. The confrontation escalated.
None of the events or circumstances which occurred prior to the offenders' interaction with Mr Holgate were the subject of any charges.
Mr Holgate saw the confrontation developing. He used his mobile telephone to take a photograph or make a video clip of the scene. Shortly afterwards, he began following the offenders' Mercedes sedan. Mr Holgate used his mobile telephone to take or attempt to take a photograph of the sedan. At that stage, the appellant, Mr McDonald and Mr Birdsall were in the sedan and were traveling along the street. The Mercedes sedan then stopped. The offenders emerged from the vehicle. They had seen Mr Holgate using his mobile telephone to make a video of them and to take or attempt to take a photograph of their vehicle. The offenders confronted Mr Holgate. They were angry. Mr McDonald punched Mr Holgate to the face and wrestled with him. Mr Holgate's mobile telephone fell to the ground. Mr Birdsall also punched Mr Holgate and called him a snitch. The appellant picked up Mr Holgate's telephone. The appellant refused to return the telephone to Mr Holgate even though Mr Holgate promised he would delete the photograph he had taken of the Mercedes sedan. Shortly afterwards, police officers arrived. The appellant and Mr Birdsall were arrested. Mr McDonald had already departed.
Mr Holgate was taken to hospital by ambulance. He suffered a fracture to the left maxillary bone of his face. This injury was treated conservatively. He also suffered a swollen and bruised left eye and scratches and bruising to his arms and body. His Honour characterised the injuries suffered by Mr Holgate as 'towards the higher end of the range that one might see as bodily harm as opposed to grievous bodily harm'.[7]
[7] ts 46.
The appellant's personal circumstances
At the time of the offending, the appellant was aged 19. He did not have a prior criminal record as an adult, but he had a Children's Court record which involved traffic offences. In the 22‑month period that he was on bail prior to sentencing, he did not offend. The appellant has assisted his mother in the upbringing of his siblings in a way which his Honour found 'has no doubt been helpful and responsible'.[8] Since leaving school in year 9, he has been employed from time to time. The appellant's written sentencing submissions in the primary court stated that he has no alcohol or drug problem, is in good physical and mental health, and he 'plans to re‑engage with an apprenticeship'.[9]
[8] ts 49.
[9] Defence sentencing submissions, par 10; AB 68 - 69.
Sentencing submissions
In the proceedings before the sentencing judge, counsel for the appellant conceded that the only appropriate penalty for the offences was a term of imprisonment, but that the term should be suspended, having regard to the appellant's youth, absence of a prior adult criminal record, and the period of time that the appellant had been on bail without offending. It was asserted that it was in the public interest for the appellant to continue with his rehabilitation in the community.[10]
[10] Defence sentencing submissions, pars 11 - 12; AB 69.
The prosecutor accepted that the appellant played a lesser role in the commission of count 1 'because he didn't use physical violence and acted in a supporting role'.[11] However, the prosecutor submitted that, having regard to the fact that the appellant was charged with the additional offence of stealing the victim's mobile telephone, all three offenders were equally culpable.[12] The prosecutor submitted that the only appropriate penalty for each offender was a term of immediate imprisonment.[13]
[11] ts 43.
[12] ts 43.
[13] ts 43.
The sentencing remarks
His Honour set out in detail the facts of the offending and the details of the injuries suffered by Mr Holgate.
His Honour accepted that the offending was not premeditated. However, his Honour said that it was unprovoked and gratuitous. His Honour observed that the victim was vulnerable and that the injuries he suffered were 'very unpleasant' and 'would have been very painful'.[14]
[14] ts 47.
His Honour accepted that the appellant and his co‑offenders did not go to Northbridge to seek out violence, nor was the offending alcohol‑fuelled. He observed that, when a confrontation developed, the appellant and his co‑offenders escalated it, and two of the three offenders used physical violence against the victim.[15] His Honour said that the need for general deterrence was 'absolutely pivotal in this case'.[16]
[15] ts 47.
[16] ts 48.
His Honour applied a discount of 12.5%, pursuant to s 9AA of the Sentencing Act, from the head sentence that he would have imposed, observing that the pleas were entered 'quite shortly before trial' in response to the State deciding not to pursue the original charge of aggravated robbery.[17] His Honour found that there was 'no evidence of demonstrable remorse' on the part of the appellant and his co‑offenders.[18]
[17] ts 48.
[18] ts 48.
The sentencing judge acknowledged that the appellant was 19 years of age at the time of the commission of the offences. His Honour observed that Mr McDonald had, at that time, just turned 21. His Honour acknowledged that both the appellant and Mr McDonald were youthful offenders. However, Mr Birdsall, who was 28 years of age at the time of the offence, did not have the mitigation of youth.[19]
[19] ts 48 - 49.
His Honour acknowledged the different criminal histories of the offenders. The appellant was a first time (adult) offender. Both Mr McDonald and Mr Birdsall had adult criminal records, but his Honour said that 'they [were] far from the worst he had seen'.[20] However, Mr McDonald and Mr Birdsall had each committed an offence of disorderly behaviour while on bail awaiting trial for the current matters. His Honour found that Mr McDonald and Mr Birdsall did not have the mitigation of good character.[21]
[20] ts 49.
[21] ts 49.
His Honour noted that the appellant had no issues with alcohol or drugs and had, as we have already observed, helped to look after his siblings. His Honour took into account that Mr McDonald had recently obtained employment and that Mr Birdsall had a 'very difficult background'.[22]
[22] ts 49.
His Honour had regard to the issue of parity and concluded as follows:[23]
There are factors between all of you that point in different directions but ultimately I do not intend to differentiate between the three of you in terms of the overall sentence.
[23] ts 49.
His Honour, in effect, said that only immediate terms of imprisonment were appropriate because the seriousness of the offending outweighed each offender's personal circumstances.[24]
[24] ts 50.
It is convenient to deal with ground 3 first.
Ground 3 - parity principle
In essence, the appellant submitted that his Honour infringed the parity principle by imposing on him the same term of imprisonment for count 1 that was imposed on Mr McDonald and Mr Birdsall. The appellant contended that (1) having regard to the lesser role he played in the commission of count 1, his youth and his favourable antecedents (including the absence of a criminal history and the fact that he did not offend while on bail), the parity principle required that he receive a lesser sentence than his co‑offenders, and (2) his Honour's failure to do so gave rise to a legitimate or justifiable sense of grievance. He contended that parity required that he receive a lesser sentence in two respects: a different kind (suspended not immediate) and a lesser term. The appellant contended that this court should set aside the sentences imposed upon him, and instead impose a suspended term of imprisonment.
As we stated earlier in these reasons, the respondent conceded that the appellant played a lesser role in the offending and was entitled to greater mitigation than his co‑offenders on account of his more favourable personal circumstances. The respondent accepted that these matters ought to have been reflected in a lesser term of immediate imprisonment than that imposed upon his co‑offenders.
As to the appropriate sentence, the respondent submitted that this court should resentence the appellant to a shorter term of imprisonment on count 1. However, the respondent contended that, due to the seriousness of the offending, it was not open to impose a suspended term of imprisonment.
Parity principle - legal principles
The legal principles relating to the parity principle are uncontroversial and were stated by this court in NGO v The Queen as follows:[25]
[25] NGO v The Queen [2017] WASCA 3 [36] - [40].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
Ground 3 - disposition
As the respondent correctly conceded, the appellant played a lesser role in the assault upon Mr Holgate. He did not instigate the attack on Mr Holgate or strike him. Mr McDonald and Mr Birdsall struck the victim and caused his injuries. They were principal offenders, pursuant to s 7(a) of the Code. The appellant's criminal liability arose by operation of s 7(b) or (c) of the Code, in that his presence at the scene of the assault encouraged, and thereby aided, his co‑offenders. It is true that the appellant stole Mr Holgate's mobile telephone, but the telephone was not removed from the scene, nor did the appellant attempt to delete the images apparently taken by Mr Holgate. In the end, it was recovered intact by police a short time after it had been taken by the appellant.
The appellant's personal circumstances were more favourable than those of Mr McDonald and Mr Birdsall. The appellant was only 19 years of age at the time of the offending, and he did not have a prior record as an adult. He had assisted his mother in the upbringing of his siblings, which the sentencing judge stated was 'helpful and responsible'. He had no alcohol or drug issues, and he did not offend during the 22‑month period that he was on bail prior to his sentencing.
Mr McDonald was 21 years old at the time of the offending. Although still entitled to mitigation for youth, he was not as young as the appellant. Mr McDonald had a prior criminal history and had committed an offence of disorderly conduct while on bail awaiting sentence. Mr McDonald initiated the violence towards Mr Holgate by punching him to the face and then wrestling with him. To Mr McDonald's credit, he was employed and has one child.
Mr Birdsall was 28 years of age at the time of the offending. His age afforded him no mitigation. Like Mr McDonald, he had a prior criminal history and had been convicted of disorderly conduct while on bail awaiting sentence. Mr Birdsall punched the complainant. Mr Birdsall was entitled to mitigation for his very difficult background.
Having regard to the appellant's lesser role in the commission of count 1, and his more favourable antecedents (most notably his youth, his good behaviour while on bail and the absence of any adult criminal history), a lesser sentence should have been imposed upon the appellant. The failure to do so gives rise, in our opinion, to an objectively justified sense of grievance on the part of the appellant. The parity principle has thus been infringed. In light of that conclusion, it was not necessary for this court to determine whether the failure to suspend the term infringed the parity principle. That is because the finding of breach of the parity principle as to the length of the sentence requires this court to exercise the sentencing discretion afresh.
This court was required to resentence the appellant in respect of not only count 1, but also count 2.[26]
[26] Criminal Appeals Act 2004 (WA), s 41(2); McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] ‑ [9].
Grounds 1 and 2
It is sufficient to note in relation to ground 1 that the judge did not err in his characterisation of the harm caused to Mr Holgate.
It is unnecessary to consider ground 2.
Resentencing
This court had all the materials necessary to resentence the appellant. We note that, after he was sentenced, the appellant spent 8 days in custody. Further, while he was on bail pending appeal (a period of almost 6 months), the appellant committed no further offence.
We will not repeat what we have written about the circumstances of the offence and the appellant's antecedents.
The offending was, as the appellant's counsel readily accepted, serious. The injuries suffered by the victim were significant. Street violence, particularly when committed in company and against a vulnerable victim, is to be deterred. The seriousness of the offending was such as to call for nothing less than imprisonment, despite the mitigating factors.
There is no tariff for an offence of assault occasioning bodily harm, given the great variation in the circumstances in which such offences are committed and the personal circumstances of offenders. The parties referred to a number of cases decided in this court said to be factually comparable to the present case, including Holden v The State of Western Australia;[27] Wiltshire v Mafi;[28] Clarke v The State of Western Australia [No 2];[29] Carrick v The State of Western Australia[30] and Castrilli v The State of Western Australia.[31]
[27] Holden v The State of Western Australia [2009] WASCA 50.
[28] Wiltshire v Mafi [2010] WASCA 111.
[29] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.
[30] Carrick v The State of Western Australia [2017] WASCA 175.
[31] Castrilli v The State of Western Australia [2019] WASCA 135.
The appellant also referred to a number of single judge decisions which, in the context of an appeal to this court, have limited utility.
The pleas of guilty were not entered at the first reasonable opportunity. We would, like the sentencing judge, apply a discount of 12.5% on each count, pursuant to s 9AA of the Sentencing Act.
Having regard to all of the relevant circumstances, including the parity principle, terms of 8 months' imprisonment on count 1 and 2 months' imprisonment on count 2 were appropriate. As the offences were part of one transaction, we ordered that the sentences be served concurrently.
With respect to the question of suspension, we considered, again, all of the relevant circumstances. Having regard to the fact that the appellant did not strike the victim, his youth, the other mitigating factors already identified, the fact that he spent 8 days in custody before being released on bail pending appeal, and that he did not commit any offence after his release on bail, we concluded that it was appropriate to suspend the terms of imprisonment, without conditions, for a period of 9 months.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
7 JULY 2021
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