Macpherson v The Queen
[2002] WASCA 287
•22 OCTOBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: MACPHERSON -v- THE QUEEN [2002] WASCA 287
CORAM: PARKER J
ROBERTS-SMITH J
SHEPPARD AUJ
HEARD: 8 OCTOBER 2002
DELIVERED : 22 OCTOBER 2002
FILE NO/S: CCA 144 of 2001
BETWEEN: DEAN STUART MACPHERSON
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Leave to appeal against sentence - Three counts of burglary and two counts of stealing a motor vehicle - Total sentence of 4 years imprisonment - Whether sentence offends parity principle - Applicant had also breached parole - Whether total time to serve offends totality principle
Legislation:
Nil
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: Mr P J Hogan
Respondent: Mr J Mactaggart
Solicitors:
Applicant: Patrick Hogan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Johnson v The Queen [2002] WASCA 102
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Cox (1996) 66 SASR 152
R v Holden [2002] NSWCCA 214
R v Rossi, unreported; CCA SCt of SA; 20 April 1998
Case(s) also cited:
Krakouer v The Queen [1999] 107 A Crim R 408
Lowe v The Queen (1984) 154 CLR 606
R v Grein [1989] WAR 178
PARKER J: Dean Stuart MacPherson seeks leave to appeal against sentences imposed on him by the Chief Judge of the District Court on 9 October 2001. The applicant had been convicted on his own pleas of guilty on the fast-track system of three counts of burglary, each committed with circumstances of aggravation, and two counts of stealing a motor vehicle. In respect of each of the three counts of burglary sentences of 2 years imprisonment were imposed, and for each of the two counts of stealing a motor vehicle terms of 1 years imprisonment were imposed. The term of two years imprisonment imposed in respect of count 4 was ordered to be served cumulatively on the term of 2 years imprisonment imposed in respect of count 1. Otherwise, the sentences were ordered to be served concurrently, ie an effective total sentence of 4 years imprisonment. This was to be served cumulatively and on existing sentences. There was no order for parole eligibility.
It should be noted that when the sentences were first imposed the transcript indicates that the learned sentencing Judge said that the terms imposed in respect of counts 1 and 4 should be served "concurrently", while at the same time he indicated that the effective total sentence was 4 years imprisonment. That inconsistency was later corrected by his Honour, pursuant to s 37 of the Sentencing Act 1995 (WA), when it was made clear that the terms in respect of counts 1 and 4 were to be served cumulatively, but otherwise the terms were to be served concurrently.
Circumstances of offences
The facts upon which the applicant was dealt with are as follows. In respect of count 1, during the night of 13 – 14 May 2001 the offender gained entry to a residence in Applecross by forcing open the kitchen window. The occupying family were asleep in the residence at the time. A television set, stereo system and a Sony play station valued at some $10,000 were stolen from the house. They have not been recovered. It appears a co-offender named Capper kept watch outside while the applicant broke and entered the house and stole the goods.
The applicant also stole from the house a Toyota Land Cruiser. This was subsequently located abandoned in another suburb. This is the subject of count 2. The Toyota vehicle was valued at some $75,000.
Count 3 was the second theft of a motor vehicle. This was a Mazda coupé valued at some $29,000 which was stolen on 18 May 2001 after the owner's residence was broken into (by an unidentified person) during that evening and the keys of the car stolen from the house. The following day the applicant went to the owner's house. He had the stolen keys to the vehicle in his possession and used the keys to steal the vehicle. The vehicle was later recovered abandoned in another suburb. There was accident damage to both sides of the vehicle.
In relation to count 4 the applicant gained entry to a residence in Claremont during the night of 24 May 2001 by forcing open a sliding window at the rear of the house. The applicant entered the house while an accomplice named Walker kept a lookout in the garden. The applicant stole from the premises collectable magazines, clothing, jewellery, keys to a motor vehicle, cheque books and electrical items which together were valued some $8,870. All that property was placed in the boot of a vehicle being used by the applicant, where it remained until recovered by police later the same day, save that the applicant and his accomplice were then wearing some of the stolen items of clothing.
Also during the early hours of 24 May 2001 the applicant forced entry to a house in Mosman Park by breaking the glass in a window. Once again the accomplice named Walker kept watch outside while the applicant broke and entered the premises. The applicant stole from the house a stereo, video equipment, jewellery, a mobile telephone, clothing, cheque books and sunglasses valued at some $4,000. These items were also placed in the vehicle then being used by the applicant from which they were recovered by police later that day. This is the subject of count 5.
The applicant declined to be interviewed in respect of these matters and did not provide any information to the police in respect of the missing stolen property the subject of count 1.
Grounds of application
As amended at the hearing the applicant advances two grounds for reviewing the sentence:-
"1.Accepting that parole was not appropriate, the sentence was manifestly excessive in the light of the following circumstances:
•the age and antecedents of the applicant
•the fact that he was currently not eligible to be released on parole as the result of a parole breach until 28 February 2004
•the sentences imposed on the co-offender(s).
2.The learned trial Judge erred by passing sentences totalling 4 years without parole, to be served cumulatively to parole days owed, which gave rise to disparity of sentences imposed on the appellant's co‑offenders for the same crimes."
While there is some inelegance of expression and overlapping in the grounds, it became clear, as they were argued, that the applicant advanced two issues, succinctly summarised as parity and totality. It is contended that there is an unjustified disparity between the sentences imposed on the applicant and those imposed on his accomplices, Capper and Walker. Further, as the applicant at the time of sentencing was already serving the balance of parole terms, he having breached parole, and was therefore not eligible to be released until 28 February 2004, the imposition of further terms totalling 4 years imprisonment is submitted to offend the totality principle and further exaggerate the disparity with the sentences imposed on the accomplices.
Background of applicant
The applicant was born in Perth on 28 July 1964. He was one of two children of his parents who separated when he was 5 years old. The applicant completed his schooling at age 15. He completed an apprenticeship as a plasterer and worked intermittently in that trade for his father who was also a plasterer. He has never married although he has a daughter, now aged some 15 years, by a former de facto spouse.
Before he turned 18 years of age the applicant had amassed some 25 convictions in the Children's Court, which included a large number of offences of breaking and entering premises and three offences of unauthorised use of a motor vehicle. Since turning 18 years of age in 1982, the applicant had been convicted of some 125 offences by the time he came before the sentencing Judge on this occasion. The most recent conviction was for the possession of cannabis in May 2001 which was the month before these offences. The record of adult convictions is quite formidable. It includes convictions for manslaughter, attempted armed robbery, and attempting to pervert the course of justice. There are numerous convictions for breaking and entering dwellings and other buildings, being on premises without lawful excuse, stealing, false pretences, defrauding the Commonwealth, receiving, escaping legal custody, unauthorised use of motor vehicles, stealing motor vehicles, as well as offences involving drugs, numerous offences of giving a false name and address to police officers and offences connected with the driving of motor vehicles. At the time of sentencing the applicant had spent 10 of the preceding 12 years in prison.
The nature and extent of his criminal record confirms the view expressed in the presentence report which was provided to the Court that criminal activity has been a part of the way of life of the applicant from the age of 15, and that his record is indicative of a long-term recidivist offender. His parole had been breached by order of the Parole Board in April 2001, because of his failure to comply with the conditions on which he was last released on parole in December 2000. These included failure to report, failure to comply with uranalysis requirements and his use of illicit substances (opiates). He had been released on parole on four previous occasions in 1985, 1986, 1987 and 1989. On each of these occasions parole was cancelled by virtue of further convictions during the parole period. Psychological and psychiatric assessment had not revealed any mental illness or deficit.
At the time of these offences the applicant was aware that his parole had been cancelled but he chose not to surrender himself into custody.
The sentences
The Criminal Code, by s 401(2)(a), provides a maximum penalty of imprisonment for 20 years in respect of offences of burglary committed with the circumstances of aggravation alleged. The maximum penalty provided by s 378 of the Criminal Code for the offence of stealing a motor vehicle is 7 years imprisonment. There is no question, therefore, that the penalties imposed in respect of each of the five counts are authorised by law. The submissions for the applicant accept that it cannot properly be argued that the sentences imposed in respect of any of the five counts are excessive having regard to ordinary sentencing patterns or tariffs. Save perhaps for counts 1 and 2, the offences the subject of this indictment are each clearly distinct in time, place and circumstance, such that as a matter of ordinary sentencing principles cumulative sentences in respect of each of the offences might properly have been imposed. Whether that should occur is affected by the totality principle to which I will turn more particularly later in these reasons. Subject to the matter of totality, there is no error of principle in the order for the sentences in respect of counts 1 and 4 to be served cumulatively on each other. It is not submitted that the applicant ought to have been made eligible for parole.
Thus, as has been indicated, the real issues upon which this application turns are the questions of parity and totality.
Parity
Count 1 was committed in company with an accomplice named Capper who was a man in his twenties who had escaped from prison on 22 April 2001. It appears that he stayed with the applicant for a time after his escape. Although quite a bit younger than the applicant, from what is before us, Capper had quite a significant record of previous convictions, a record, nevertheless, in no way comparable to that of the applicant. The Chief Judge of the District Court also sentenced Capper, but on an earlier occasion. Capper also had entered pleas of guilty on the fast-track system. He was sentenced to a term of 12 months imprisonment with parole in respect of the offence which is count 1 against the applicant. The accomplice was also sentenced to 5 months imprisonment for escaping legal custody and 12 months imprisonment on another count of burglary. The sentences for the burglary offences were made concurrent but the sentence for escaping legal custody was ordered to be served cumulatively. All sentences were to be served cumulatively upon previous offences.
In respect of counts 4 and 5 on the indictment the applicant was accompanied by another accomplice named Walker. Walker was some 22 years of age at the time. He too had quite a significant criminal record, although from what is before us a record which does not compare with that of the applicant. Walker was said to be significantly affected by illicit substances at the time of these two offences. He had also pleaded guilty on the fast-track system before the Chief Judge of the District Court and had been dealt with before the applicant was arraigned. Walker was sentenced to a term of 12 months imprisonment in respect of each of the two offences of burglary he committed with the applicant (Counts 4 and 5). Those terms were to be served concurrently, although cumulatively with a sentence imposed for another offence. He was made eligible for parole.
In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ said at 301 – 302:
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be 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 … However, the parity principle, as identified and expounded in Lowe v The Queen (1984) 154 CLR 606, 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'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
At 313 McHugh J cited with approval observations of Doyle CJ in the Court of Criminal Appeal of South Australia in R v Cox (1996) 66 SASR 152 at 159 where the learned Chief Justice said:
"I do not understand the principles stated by the High Court in Lowe v The Queen to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, 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."
There can be no question that there is a difference in the sentences imposed on the accomplice Capper in respect of count 1 and on the accomplice Walker in respect of counts 4 and 5, in that each of the co-offenders were sentenced to terms of 1 years imprisonment in respect of the relevant offences whereas the applicant was sentenced to terms of 2 years imprisonment. The issue is whether there are factors which, objectively assessed, support the difference in the sentences imposed.
In the case of each of the three burglaries the applicant may properly be viewed as the prime offender. In each case, it was he who actually forced entry to the premises and searched out the stolen property in the homes and carried the stolen property out of the homes. Both Capper in respect of count 1, and Walker in respect of counts 4 and 5, had the role of keeping a lookout. While they were in law parties to the applicant's offences, in each case a distinction may validly be drawn between the nature and degree of participation of Capper and Walker on the one hand, and the applicant on the other.
In addition, in respect of the applicant it may properly be said that there were really no significant circumstances which warranted mitigation, apart from his pleas of guilty and the effects of long-term incarceration on his capacity to cope in society. While neither Capper nor Walker warranted significant mitigation of punishment, it could not be said of either of them that there was really nothing to justify mitigation, apart that is from their pleas of guilty. This is particularly so in the case of Walker who was only 22 years of age. The sentencing transcripts for both Capper and Walker are before us. In respect of each of them, matters were advanced and taken into account by the learned sentencing Judge, apart from the pleas of guilty, which both offered some continuing hope for rehabilitation and justified some mitigation of sentence. That was not the case in respect of the present applicant.
It is to be noted that the applicant was the common denominator in these offences. He was significantly older than Capper and Walker and the far more experienced criminal. It was to the applicant that the younger co-offenders turned. He had befriended both of them it appears. Capper, in particular, he had met in prison. These factors, particularly the age of the applicant and his virtual lifetime of offending, well entitled the Chief Judge to take the view that the applicant stood in a different category of offender and had a different role in these offences, from Capper and Walker. Further, they had become involved, respectively, in only 1 and 2 of the offences for which the applicant was sentenced. In my respectful view his Honour was well justified in taking the view that there were significant factors which justified different treatment of the applicant from the two co-offenders. It would have been an error to impose the same sentence on the applicant as had been imposed on each of the co‑offenders by his Honour.
For the reasons given his Honour was entitled to take the view, as he did, that because of the nature and extent of the applicant's record in particular, this was not a case in which the parity principle required that he should impose like sentences on the applicant as he had on the two accomplices.
Totality
As was observed by McHugh J in Postiglione v The Queen (supra) at 308:
" … in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
His Honour also cited with approval the unreported remarks of King CJ in R v Rossi, unreported; CCA SCt of SA; 20 April 1998:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention by way of reducing the total effect."
In the present case the individual sentences merited by the five counts, as assessed by his Honour, would have totalled 8 years imprisonment. His Honour observed in his sentencing remarks, however, that the starting point for this type of offending would be in the order of 6 years imprisonment. In this way his Honour assessed the totality of criminality involved in all of the five offences and mitigated the penalties that might otherwise have been imposed to accord with that appreciation of the totality of criminality involved. In my view, this was clearly a direct application of the totality principle in respect of the five offences the subject of the indictment. It is not submitted that his Honour erred in this appreciation of the totality of the criminality. Indeed, in the absence of any significant mitigatory factor, the view could be taken that his Honour's appreciation of the totality somewhat favoured the applicant.
His Honour then further discounted that notional 6 years total effective sentence having regard to the applicant's fast track pleas of guilty to the five counts. It was on this basis that his Honour came to a period of 4 years imprisonment. This reflected a quite generous discount for the pleas of guilty in the circumstances.
In his sentencing comments his Honour then went on to expressly give consideration to how this effective sentence of 4 years should be served having regard to the unserved balance of the parole terms. His Honour had been correctly informed that the applicant's earliest eligibility date for release was 26 February 2004 having regard to the balance of sentences to be served in respect of the breached parole. It had also been expressly submitted that he should take into account that the applicant was not due for release until 26 February 2004 when determining the sentences in this case. His Honour was not persuaded, however, that there should be any further reduction of the sentences he imposed on this account. He expressly ordered that the sentences totalling 4 years should commence from the date they were imposed, and observed that "the parole period will be shifted out".
The significance of these words is to be appreciated in light of his Honour's decision that, having regard to the applicant's antecedents, he should not be made eligible for parole in respect of the sentences totalling 4 years imprisonment. There is no challenge to the correctness of that view made on this appeal. There being no parole eligibility in respect of the sentences totalling 4 years imprisonment, by s 95(1) of the Sentencing Act 1995, the applicant will be discharged from that sentence when he has served two-thirds of the 4 years, ie after service of 2 years 8 months imprisonment. Further, by s 8 of the Sentence Administration Act 1995, service of the balance of the breached parole terms is effectively deferred until the applicant has served the 2 years 8 months period. Hence, his Honour correctly appreciated that, by the orders that he made, the unserved parole terms would be deferred, ie "shifted out", and the 4 year term (ie 2 years 8 months) would first be served with effect from the date that sentence was imposed. The effective release date for the applicant is now in October 2006.
It is submitted for the applicant that his Honour erred in this respect and that the sentences ought to have been further mitigated having regard to the totality principle. It is not submitted, however, that this total period is out of keeping with the totality of criminality involved in all of the offences. As the parole offences were many and included attempted armed robbery and stealing motor vehicles it can be readily accepted that the totality of criminality limb of the totality principle will not avail the applicant.
The applicant does submit, however, that the total period he has now to serve is crushing and therefore that it ought to be further mitigated. It has not been demonstrated, in my view, that the total term now to be
served by the applicant is one that may fairly be described as crushing so as to call for the merciful intervention of the Court in the sense indicated in the passage from R v Rossi cited earlier. Taking into account the sentences the subject of this application, and the unserved parole terms, the applicant has to face effectively a period of 5 years in custody from the sentencing date. Of course, that is a serious prospect for any person, but it can hardly be said to be crushing in itself.
Conclusion
For the reasons indicated I am not persuaded that the learned sentencing Judge's discretion miscarried in this case or that his Honour failed to have due regard to appropriate sentencing principles especially those relating to parity and totality. I would refuse leave to appeal.
ROBERTS-SMITH J: I have had the benefit of reading the reasons for decision of Parker J in draft and I respectfully agree with his Honour's conclusions and the reasons he gives for them. I wish only to add some brief remarks about the issue of parity.
The learned Chief Judge observed at the time of sentencing that this was really not a case of parity and the applicant's counsel did not express any disagreement with that observation.
Although the offence of aggravated burglary the subject of count one on the indictment was committed in company with the co‑offender Capper, that was the only offence common to both of them. The applicant of course had to be dealt with for four other offences, two of which were stealing motor vehicles and two were aggravated burglary. The last two, which were the subjects of counts four and five on the indictment, were committed in company with the co‑offender Walker.
Capper, who was sentenced by the learned Chief Judge on 7 August 2001, was also sentenced on that occasion on three other offences unrelated to the applicant. They were two counts of aggravated burglary and one of stealing a motor vehicle.
Walker was sentenced by the learned Chief Judge on 18 September 2001.
Apart from the two offences which he had committed in company with the applicant, sentences also had to be imposed in respect of one offence of stealing a motor vehicle, one offence of driving without a
licence, one offence of failing to stop when called upon by a police officer to do so and one offence of reckless driving.
In Pearce v The Queen (1998) 194 CLR 610 at [45] ‑ [48] McHugh, Hayne and Callinan JJ said that:
"To an offender, the only relevant question may be 'how long', and that may suggest that the sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King(1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules (see Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9; see also Sentencing Act 1991 (Vict), s 16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences (R v Lomax [1998] 1 VR 551 at 564, per Ormiston JA)."
Thus, as Malcolm CJ explained in Johnson v The Queen [2002] WASCA 102 at [24], the correct approach is for the sentencing Judge to fix appropriate penalties for all offences and then to consider the application of the totality principle and, in particular, whether any adjustment needs to be made to any of the sentences imposed to achieve the total effective sentence consistent with the application of the principle
- that is to say, to the particular case (see also R v Holden [2002] NSWCCA 214.
Although therefore a court imposing a number of sentences upon an offender is required to pass in respect of each offence, a sentence which is appropriate and proportionate to that particular offence, rather than attach what would in isolation be an inadequate (or even manifestly inadequate) sentence to one or more of the offences to achieve an overall sentence to accommodate the principle of totality, the circumstance that sentences are being imposed for a multiplicity of offences may well be reflected in the length of the term of imprisonment for individual offences. Whether that will be so, and the extent of it, in the particular case will no doubt depend upon all the circumstances of that case, including the number, nature and seriousness of the other offences and the antecedents and background of the offender. In circumstances such as the present therefore, where there was only one offence common to the applicant and Capper and two common to the applicant and Walker, each was otherwise being dealt with for a different series of offences and their personal backgrounds and circumstances were different (as Parker J has explained), in my view the situation was not one in which the parity principle called for the imposition of comparable sentences in respect of the offences common to the applicant and his co‑offenders.
SHEPPARD AUJ: In this matter, I have had the advantage of reading the judgment to be delivered by Parker J. I am in agreement with his reasons and conclusions and with the order which he proposes. I have nothing further to add.
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