May v Director of Public Prosecutions for Western Australia
[2023] WASC 117
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MAY -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 117
CORAM: SEAWARD J
HEARD: 6 APRIL 2023
DELIVERED : 12 APRIL 2023
FILE NO/S: SJA 1086 of 2022
BETWEEN: JOSEPH BENEDICT JAMES MAY
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1086 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J SCUTT
File Number : RO 5078 of 2022
Catchwords:
Criminal law - Sentencing - Application for leave to appeal against sentence - Criminal damage - Co-offenders - Whether sentence gives rise to a legitimate or justifiable sense of grievance or gives the appearance in the mind of an objective observer that justice has not been done - Parity principle
Legislation:
Criminal Code 1913 (WA), s 444(1)(b)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Application for extension of time to appeal granted
Application for leave to appeal allowed
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | SH King |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Beins v Western Australia [No 2] [2014] WASCA 54
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Curry v The State of Western Australia [2023] WASCA 10
Green v R [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
House v The King (1936) 55 CLR 499
Jackman v The Director of Public Prosecutions [2023] WASC 63
Lowe v The Queen (1984) 154 CLR 606
Mehta v The State of Western Australia [2023] WASCA 324
Ngo v The Queen [2017] WASCA 3
Postiglione v The Queen (1997) 189 CLR 295
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Staker v Western Australia [2012] WASCA 63
Wimbridge v The State of Western Australia [2009] WASCA 196
SEAWARD J:
Introduction
On 28 October 2022, in the Rockingham Magistrates Court, the appellant was convicted on his plea of guilty of one charge of wilfully and unlawfully damaging property contrary to s 444(1)(b) of the Criminal Code (WA). On the same date, the appellant was sentenced to 7 months' immediate imprisonment, to be served cumulatively on his existing sentence of 5 years' imprisonment.
The appellant now seeks leave to appeal his sentence on the following ground:
The imposition of 7 months' imprisonment infringed the parity principle with respect to the sentence imposed on the appellants [sic] co‑accused … who received a $6,000 fine.
The appellant also seeks an extension of time within which to appeal.
The respondent concedes that the ground of appeal has been made out, that the appeal ought to be allowed and the appellant resentenced.[1]
[1] Respondent's Outline of Submissions dated 15 March 2023 [1].
The parties filed written submissions and the matter was listed for hearing before me on 6 April 2023. At the conclusion of that hearing, I accepted that the respondent's concession was properly made, and ordered that leave to appeal be granted, the appeal be allowed and I resentenced the appellant.[2] At the time I indicated that I would publish written reasons for my decision separately. These are those reasons.
[2] A bring-up order was made to enable the appellant to appear at the hearing by way of video link. The appellant chose not to attend the hearing and I proceeded to resentence the appellant in his absence in accordance with s 41(5) of the Criminal Appeals Act 2004 (WA).
Statutory framework and legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[3]
[3] CA Act, s 6(f) and s 7(1).
Leave to appeal is required for each ground of appeal.[4] Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[5] meaning that the ground is required to have a rational and logical prospect of succeeding.[6] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[7]
[4] CA Act, s 9(1).
[5] CA Act, s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CA Act, s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[8]
[8] CA Act, s 14(2).
An appeal against the decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision, unless the court orders otherwise.[9] An extension of time to appeal will be granted if it is in the interests of justice to do so.[10] In the present case, the application for leave to appeal ought to have been commenced by 25 November 2022. However, it was not commenced until 15 December 2022.
[9] CA Act, s 10(3).
[10] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA).
The application for leave to appeal and the application for an extension of time were referred to the hearing of the appeal.[11] The appellant relies on the affidavit of Sarah Helen King, affirmed 15 December 2022 in support of the application for an extension of time. In short, the delay was caused by the time taken for the appellant to obtain a grant of legal aid and for the appellant's legal representative to obtain the necessary documents, speak to the appellant to obtain instructions and to prepare the appeal paperwork. The respondent does not oppose the extension of time. The delay in filing the appeal notice is only 20 days and I am satisfied on the basis of the explanation provided in the affidavit that it is appropriate to extend time.
[11] Interim orders of Registrar Whitbread made 31 January 2023.
Facts of the offending
The facts of the offending were detailed by the police prosecutor during sentencing.[12] They are that the appellant was a sentenced prisoner at Casuarina Prison. At around 5.20 pm on 7 September 2022, the appellant and one co‑offender were in the B&D day room unit 3 at the prison. The appellant and his co‑offender armed themselves with a broken broomstick and containers of water, and crafted a makeshift flail using a mop bucket and power cable. They then tied clothing items to his face to lessen the effects of the chemical agents used to detain him.
[12] ts 28 October 2022, 3 - 4.
The appellant and his co-offender spent the next two hours on a rampage of destruction during which time they used the flail and broken broomstick to smash multiple windows in the unit and the guard's viewing room, tipped over multiple furniture items including pulling an oven off its wall mounting and tipping it on its side, threw liquid food items on the floor leading to the day room making it difficult for staff to enter and detain them, threw food items over windows leading to the guard's viewing room, ripped a stainless steel bench off the wall, and used a laundry trolley to create a barricade at the bottom of the steps. They then tipped over multiple items of furniture, smashed more windows and threw items, food and sauce over the day room.
Multiple attempts to negotiate with the appellant and the co‑offender were unsuccessful and a special operations group were called to the incident location where at the time both the appellant and his co‑offender surrendered without further incident.
The incident was captured on CCTV. The damage was also captured on video recording and photographs were taken afterwards by staff.
Sentencing of the appellant
Prosecution submissions
The State sought a term of imprisonment to be served cumulatively on the sentence the appellant was already serving,[13] as well as an order for reparation for $4,689.50, being half the total costs of the damage.[14]
[13] ts 28 October 2022, 9.
[14] ts 28 October 2022, 4.
Defence submissions and plea in mitigation
In the plea in mitigation, the appellant's counsel (not counsel at the appeal) submitted that the appellant had been in and out of custody for approximately five years and throughout that time had suffered significant losses in his family. At the time of the offending, the appellant was 29 years of age.[15] In 2011, the appellant lost his son in a car accident. In 2017, the appellant lost his grandparents. The appellant's requests to attend all three funerals were denied.[16] In 2022, the appellant lost his cousin and uncle, who were located in Darwin and due to their location he was unable to attend the funerals.[17]
[15] ts 28 October 2022, 5.
[16] ts 28 October 2022, 6 - 7.
[17] ts 28 October 2022, 7.
Defence counsel submitted that the appellant has been in custody since 2019 and has asked for opportunities to seek help in relation to grief and loss including counselling, violence programs and medical attention during that time but for reasons he was not aware had not had the opportunity to take up any of these requests or take any such treatment.[18]
[18] ts 28 October 2022, 6 - 7.
On the day of the offence, the appellant found out that three of his nieces and nephews aged between seven months and 12 years had passed away in a fire.[19] The appellant had also found out another of his brothers, who was in custody with the appellant, had been moved out of the same unit.[20]
[19] ts 28 October 2022, 6 - 7.
[20] ts 28 October 2022, 6.
Defence counsel submitted that the cumulation of loss he has had in his family, finding out his nieces and nephews had passed away and that his brother had been moved resulted in him 'essentially snapping'.[21] The appellant stated that he was so angry and struck by grief that he 'blacked out' and by the time he realised what was happening he had committed the offence.[22]
[21] ts 28 October 2022, 7.
[22] ts 28 October 2022, 7.
Defence counsel accepted that criminal damage in prison is a serious offence.[23] In respect to specific deterrence, defence counsel pointed to the significant punishment the appellant had already received in the prison context, as a result of the offending. This included the appellant having spent 14 days in close solitude 24‑hour a day lockdown, another 21 days in basic solitude, being unable to make a request to attend the funeral of his nieces and nephews, and being moved out of the unit with both his brothers. The respondent was denied parole as a result of this offence and has not been able to engage in any programs.[24] Further, in the days before sentencing, the appellant had found out that his nephew had died in an attack and he did not respond in a like manner. Defence counsel submitted that this demonstrated that the objectives of personal deterrence had been met.[25]
[23] ts 28 October 2022, 8.
[24] ts 28 October 2022, 7.
[25] ts 28 October 2022, 8.
Defence counsel accepted that a term of immediate imprisonment was an appropriate disposition in terms of general deterrence and to send a message to other prisoners that this cannot occur.[26] However, defence counsel submitted in all the circumstances the learned Magistrate consider making the term of imprisonment run concurrently with the sentence the appellant was already serving.[27]
[26] ts 28 October 2022, 8 ‑ 9.
[27] ts 28 October 2022, 8.
Sentence and reason for decision
In sentencing the appellant, the learned Magistrate found the offending to be an exceptionally serious example of criminal damage in the context of the appellant arming himself, the conduct continuing for two hours, the extent of the damage and in the sense that offending of that type can disrupt the good order of the prison.[28]
[28] ts 28 October 2022, 10 ‑ 11.
Her Honour noted the appellant's plea of guilty at an early opportunity, but also considered that the prosecution case was exceptionally strong and the full discount for an early plea of guilty was not appropriate. Accordingly, the appellant received a 20% discount.[29]
[29] ts 28 October 2022, 10.
The learned Magistrate noted the summary conviction penalty, and referred to the significant need for general deterrence for offending of this nature in a prison setting to deter prisoners from behaving similarly.[30]
[30] ts 28 October 2022, 11.
Her Honour noted the appellant's personal circumstances and in particular the fact that he had not been able to attend and grieve the loss of family members and was, at the time of the offending, in a grief stricken state having been informed that his young nieces and nephews had died in a house fire.[31]
[31] ts 28 October 2022, 10 - 11.
The learned Magistrate accepted it was to the appellant's credit that notwithstanding he had suffered from isolation and experienced the death of another family member, he did not react in a similar way, whilst he was waiting for intervention in respect of underlying grief and loss issues.[32]
[32] ts 28 October 2022, 11.
Her Honour determined that, having regard to all the factors, a penalty greater than 7 months' immediate imprisonment was appropriate but reduced it to 7 months for totality purposes. Her Honour ordered this term was to be served cumulatively because of the serious nature of the offending and because if it was served wholly concurrently, it would not have a deterrent effect at all.[33] No reparation order was made.[34]
[33] ts 28 October 2022, 11.
[34] ts 28 October 2022, 12.
Co-offender's sentencing
One month later, on 28 November 2022, the appellant's co-offender entered a plea of guilty to a charge of criminal damage contrary to s 444(1)(b) of the Criminal Code and was sentenced to a fine of $6,000.
The statement of facts, as read into court, were largely identical to those of the appellant.[35] From the facts read at each sentencing, no specific act was attributed to either offender. Rather, in both instances the damage that was caused was described without reference to which individual did what act. However, in the statement of facts read at the co‑offender's sentencing, a reference was made to 'threats towards prison staff', which was absent from the statement of facts read at the appellant's sentencing.[36]
[35] ts 28 November 2022, 2 ‑ 3.
[36] ts 28 November 2022, 3.
The appellant's co-offender was 23 years old at the time of the sentencing.[37] In the plea in mitigation, defence counsel for the co‑offender submitted that he struggled being a long way from home originating from Karratha, having no face‑to‑face contact with family and that the offending was 'an outburst of his frustration at the inability to be in control of anything'.[38]
[37] ts 28 November 2022, 4.
[38] ts 28 November 2022, 3.
In sentencing the co-offender, the second Magistrate referred to the maximum summary conviction penalty of a fine of $36,000 and/or 3 years' imprisonment.[39] The learned Magistrate took into account the personal circumstances outlined by counsel, that he was a sentenced prisoner with another pending serious charge and his relatively young age. Her Honour noted the offending is toward the higher end of the scale of seriousness, but indicated that she was prepared to deal with the sentence by way of a fine. The learned Magistrate allowed a discount for the early plea of guilty of 25%.[40] There is no reference in the transcript to a request for a reparation order, and none was made.
[39] ts 28 November 2022, 4.
[40] ts 28 November 2022, 4.
At the sentencing hearing for the co‑offender, neither party brought to the attention of the Magistrate the fact that the appellant had already been sentenced or the sentence he received. There is no reference to the second Magistrate being shown any of the photographs of the damage or being advised of the value of the damage.
Legal principles - parity
The single ground of appeal concerns the application of the parity principle. The applicable legal principles are well‑established, being summarised by Buss P in Ngo v The Queen,[41] in a passage that has been adopted or reproduced in many decisions of the court:[42]
[41] Ngo v The Queen [2017] WASCA 3 [36] - [39].
[42] See for example Mehta v The State of Western Australia [2023] WASCA 324[202] ‑ [204]; Curry v The State of Western Australia [2023] WASCA 10[54] ‑ [60].
[36]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).
[37]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).
[38]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].
[39]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].
Factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed, including the objective seriousness of each offence committed, the culpability of each offender and the aggravating and mitigating factors relevant to each offender.[43]
[43] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [52] ‑ [53], [184]; Curry v The State of Western Australia [2023] WASCA 10 [57].
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King apply.[44]
[44] House v The King (1936) 55 CLR 499.
In circumstances where the sentence the subject of the appeal is within an appropriate discretionary range and the comparative sentence is unduly lenient, absent any statutory provision to the contrary, an appeal court has the power and discretion to intervene in the sentencing process. However, 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,[45] or to impose a sentence which is an affront to the administration of justice.[46]
[45] Ngo v The Queen [2017] WASCA 3 [37] (Buss P); Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12].
[46] Beins v Western Australia [No 2] [2014] WASCA 54 [38] ‑ [47] (McLure P); Green v R [2011] HCA 49; (2011) 244 CLR 462 [33]; Staker v Western Australia [2012] WASCA 63 [26] ‑ [ 27].
Appellant's appeal submissions
The appellant submits that when consideration is given to all the circumstances of the case, the disparity between the sentences of the appellant and his co‑offender are such as to give rise to a justifiable sense of grievance, and an appearance that justice has not been done.[47] In particular, the appellant relies on:
[47] Appellant's Outline of Submissions dated 28 February 2023 [14].
(a)both offenders committed the same offence of criminal damage, with the statement of material facts for each being largely identical. The only difference being a reference to the co-offender (but not the appellant) making 'threats towards prison staff';[48]
[48] Appellant's Outline of Submissions [8], [14(a)].
(b)the criminal records of both offenders were such that no mitigation can be derived from either being assessed having prior good character;[49]
[49] Appellant's Outline of Submissions [9].
(c)the co-offender's younger age of 23 providing only marginal mitigatory value;[50]
[50] Appellant's Outline of Submissions [10], [14(b)].
(d)whilst accepting a need for personal deterrence in relation to the appellant having regard to his criminal record (including a charge as an adult of criminal damage inside a prison), this should be balanced against the punishment the appellant has already received by way of solitary confinement and his more recent ability to refrain from acting in similar way when faced with a fresh stress circumstance;[51]
[51] Appellant's Outline of Submissions [13], [14(c)], [14(d)].
(e)the personal circumstances of each offender;[52] and
[52] Appellant's Outline of Submissions [14(e)].
(f)the earlier plea of guilty by the appellant, when compared to the co-offender.[53]
[53] Appellant's Outline of Submissions [14(f)].
Respondent's appeal submissions
The respondent submitted that the sentence of 7 months' imprisonment to be served cumulatively reflected the seriousness of the offending, the need for both general and personal deterrence, and the appellant's circumstances. However, the respondent conceded that the sentence received by the appellant infringed the parity principle.[54]
[54] Respondent's Outline of Submissions [1].
The respondent accepted that the facts of the offending were largely the same for each offender, save for a reference in the statement of facts for the co‑offender of making threats towards prison staff.[55] The respondent says the learned Magistrate was correct to regard the nature of the offending as serious, and to regard general deterrence as important in these circumstances, as offending of this kind disrupts the good order of the prison. However, the respondent accepts that this applies equally to the appellant's co‑offender.[56]
[55] Respondent's Outline of Submissions [3].
[56] Respondent's Outline of Submissions [6] ‑ [7].
The respondent contended it was appropriate for the appellant to receive a more severe sentence than his co‑offender. This was given the need for personal deterrence in the appellant's case in light of his prior history of criminal damage convictions and his age.[57]
[57] Respondent's Outline of Submissions [4], [5] and [14].
Whilst the respondent submitted that the 20% reduction in sentence was appropriate for his early plea of guilty, the respondent could not advance any reason why the co‑offender received or ought to receive a greater discount than the appellant.[58]
[58] Respondent's Outline of Submissions [8].
The respondent accepted that the appellant's time in close solitude and basic solitude were mitigatory factors as each is a form of extra‑curial punishment, but submitted that the mitigatory effect was limited given those conditions resulted from his offending.[59]
[59] Respondent's Outline of Submissions [9].
In relation to the resentencing of the appellant, the respondent maintained that a term of imprisonment remained the only appropriate sentencing disposition, however accepted that it was necessary to reduce the sentence to give effect to the parity principle.[60]
[60] Respondent's Outline of Submissions [16].
Disposition
There is clearly a disparity between the sentence imposed on the appellant (7 months' immediate cumulative imprisonment) and the sentence imposed on his co‑offender (a fine of $6,000).
I do not consider there are sufficient differences between the circumstances of the offending or the circumstances of each offender such as to warrant the extent of the disparity in the sentences. In particular, the offenders were engaged in largely the same conduct and the need for a general deterrence applies equally. Further, whilst I accept that the appellant has a more extensive adult criminal record (and therefore there is a greater need for personal deterrence) and the co‑offender is younger in age, I do not consider these differences can explain the extent of the disparity in the sentences.
It has often been said that it is desirable for co‑offenders to be sentenced by the same sentencing judge or, if that is not practicable, that the second sentencing judge be fully informed about the sentence imposed by the first sentencing judge.[61] This case provides an example of why that is desirable. The appellant and his co‑offender were sentenced by different magistrates on different dates. Sentencing of the appellant occurred prior to the sentencing of his co‑offender, and when sentencing the co‑offender the second magistrate was not referred to the sentence imposed on the appellant or provided with photographs of the damage or information regarding the value of the damage.
[61] Lowe v The Queen (1984) 154 CLR 606, 617 (Brennan J); Postiglione v The Queen (1997) 189 CLR 295, 320 (Gummow J); Ngo v The Queen [2017] WASCA 3 [40] (Buss P).
Accordingly, what might otherwise have been an appropriate sentence that was open to the learned Magistrate to impose on the appellant has, due to subsequent events, become a result which is unreasonable or plainly unjust giving rise to a legitimate or justifiable sense of grievance on the part of the appellant.
The ground of appeal having been made out, leave to appeal should be granted and the appeal allowed.
Resentencing
It is necessary to resentence the appellant. In my view, I am in as good a position to re-exercise the sentencing discretion as a magistrate would be on remittal.
Sentencing principles
In resentencing the appellant, I have applied the sentencing principles in the Sentencing Act 1995 (WA) and the totality principle,[62] both of which are very helpfully summarised in the decision of Derrick J in Jackman v The Director of Public Prosecutions.[63] I have also applied the parity principle as detailed earlier in these reasons.
[62] The totality principle is also applicable where an offender is sentenced for one charge only, but at the time of sentencing is already serving a is already serving a term of imprisonment for unrelated offending. See for example Curry v The State of Western Australia [2023] WASCA 10.
[63] Jackman v The Director of Public Prosecutions [2023] WASC 63 [69] ‑ [73].
A court must not sentence an offender to a term of imprisonment of 6 months or less unless, relevantly, the offender is already serving another term of imprisonment.[64] Ordinarily, if the court reaches the conclusion that a sentence of imprisonment of not more than 5 years is the only appropriate disposition, the court must then consider whether the sentence of imprisonment should be suspended or whether a sentence of immediate imprisonment is required.[65] However, a term of suspended imprisonment is not to be imposed if the offender is serving a term of imprisonment.[66]
[64] Sentencing Act 1995 (WA), s 86(b).
[65] Sentencing Act, s 39(3).
[66] Sentencing Act, s 76(3)(b).
Relevant sentencing considerations
The maximum penalty for a summary conviction of wilfully and unlawfully damaging property is 3 years' imprisonment and a fine of $36,000. However, the maximum summary conviction penalty is only a jurisdictional limit. The statutory maximum penalty for the offence is 10 years' imprisonment.[67]
[67] Criminal Code (WA), s 444(1)(b); Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63 [80].
I have had regard to the circumstances of the offending as explained to the learned Magistrate during the original sentencing and have viewed the photographs of the damage. I agree with the view expressed by the learned Magistrate that the offence is serious. The appellant and his co‑offender armed themselves with a broken broomstick and fashioned a flail and went on a rampage for two hours which included breaking windows, tipping over multiple furniture items, pulling an oven off the wall and throwing liquid food items on the floor. It was only when the special operations unit attended that the offenders surrendered. The appellant and his co‑offender caused approximately $9,000 worth of damage.
I consider there is a need for general deterrence in the sentencing process in relation to incidents of criminal damage in prisons.
I have had regard to the personal circumstances of the appellant as explained to the learned Magistrate during the original sentencing which I have already summarised, including the family loss suffered by the appellant and his inability to properly grieve. The appellant remains in custody. Since the original sentencing, the appellant has completed a six week drug and alcohol course.
I have reviewed the appellant's criminal record. It is extensive, running to 27 pages. As an adult, the appellant has previously been convicted of one charge of criminal damage caused by fire, contrary to s 444(1)(a) of the Criminal Code for which he was sentenced to 2 months' imprisonment, which formed part of a broader total effective sentence of 5 years' imprisonment imposed on 27 May 2022. The other charges included two charges of aggravated robbery and one charge of aggravated armed robbery. The appellant is currently serving this 5‑year sentence.
I have had regard to the circumstances of this offending for the purposes of applying the totality principle in my sentencing. In this regard I have reviewed the sentencing transcript for these offences. The circumstances of the offending for these charges were, as outlined by the sentencing judge, serious. By way of brief summary, the charges involved:
(a)criminal damage by fire: on 20 December 2019, the appellant used a lighter to set fire to toilet paper in his cell at Hakea prison whilst prison officers were responding to multiple disturbances. Once the toilet paper was burning, the appellant placed his bedding on top which also set on fire. The fire grew in intensity and the cell filled with smoke, before the appellant used his mattress to put out the fire and he was extracted from his cell;
(b)aggravated robbery: on 2 August 2019, the appellant approached a female victim in Trinity Arcade in the Perth CBD and grabbed at the victim's wallet and mobile phone. After a struggle the wallet and mobile phone fell to the floor, the appellant kicked these towards a co‑offender[68] and pushed the victim to the ground. Both offenders ran away with the wallet and mobile phone;
[68] Not the co-offender referred to in this appeal.
(c)aggravated robbery: on 10 August 2019, the appellant and his co‑offender[69] approached a parked vehicle with a female victim sitting in the front passenger seat. The driver had temporarily left the vehicle and left the keys in the ignition. The appellant and his co-offender got into (respectively) the driver's seat and back passenger seats and ordered the female victim out of the car. In so doing the offenders prevented her from taking her handbag. The offenders then stole the car and later used the stolen credit cards in the handbag to purchase cigarettes and grocery items before abandoning the vehicle; and
[69] Not the co-offender referred to in this appeal.
(d)aggravated armed robbery: on 20 August 2019, the appellant attended a petrol station and approached the lone male worker at the service counter. The appellant produced a knife from the sleeve of his jumper which he presented to the worker before telling him to give him the cash from the till. The worker retreated to the manager's office and locked himself inside whilst the appellant stole the cash register.
I note that the appellant has been sentenced to other terms of imprisonment as an adult prior to these sentences.
The appellant's criminal record also reveals that the appellant was convicted on one charge of criminal damage pursuant to s 444(1)(b) of the Criminal Code in 2021 for which he received a fine. I have reviewed the sentencing transcript for this offence. The damage in that case was damage to the value of $500 to the rail of a hospital bed. The appellant was under arrest for a separate matter at the time, and was being held at the hospital while an assessment as to his fitness to plead was being undertaken.
Finally, the appellant has been convicted of a total of four charges of damaging property contrary to s 445 of the Criminal Code for which he received various fines. However, the offending for each of these offences occurred in 2015 or earlier.
The appellant's criminal record does not aggravate or increase the seriousness of the offence for which I am to resentence. However, the nature and extent of the appellant's record is such as to prevent the appellant from being afforded any leniency for prior good character and is relevant to the need for personal deterrence in the sentencing process and relevant for the application of the totality principle.
In relation to personal deterrence, I have taken into account the punishment received by the appellant in prison (being 14 days in close solitude and another 21 days in basic solitude). I also accept that when the appellant found out that his nephew had died in an attack he did not respond in a like manner. I have also had regard to the appellant's past proactive attempts to participate in programs to assist in dealing with his grief and the fact he has now been able to undertake a drug and alcohol course.
There is no established tariff or established range of sentences for the offence of wilful and unlawful damage due to the wide range of circumstances in which such offences can be committed.[70]
[70] Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63 [93].
I have had regard to the sentence imposed on the appellant's co‑offender for the purposes of ensuring parity in the sentencing process. I have had regard to the sentencing transcript and the co‑offender's criminal record.
Whilst the offending was largely identical, I consider there are some differences in the circumstances of the appellant and his co‑offender which warrant imposing a different sentence. In particular, the appellant has a far more extensive adult criminal record than his co‑offender. The terms of imprisonment his co‑offender was serving at the time of the offending were the first terms of imprisonment imposed on him as an adult. He also did not have any other criminal damage or similar charges as an adult. The co-offender was aged 23 at the time of the offending. I accept that age is therefore a mitigatory factor for the co‑offender, but not an excessive mitigatory factor. The appellant was aged 29 at the time of the offending and therefore age is not a mitigatory factor.
In resentencing the appellant, I have considered the written and oral submissions made by counsel. There is no challenge to the original sentence imposed on the appellant for any reason other than the parity principle. At the original sentencing hearing, defence counsel accepted that a term of imprisonment was warranted. In the appeal, counsel for the appellant submitted that the appropriate course was to impose the same penalty as the co‑offender, whilst the respondent maintained that a term of imprisonment was the only appropriate sentencing disposition, but accepted that it was necessary to reduce the sentence to give effect to the parity principle.
Appropriate sentence
Having considered all the above circumstances, I am satisfied that a term of imprisonment is the only appropriate disposition in the present case. In my view, the appropriate sentence is a term of immediate imprisonment of 2 months. I am satisfied that a fine is not an appropriate disposition in the present case as it does not sufficiently have regard to the serious nature of the offending and the need for general and specific deterrence.
In reaching my conclusion regarding the appropriate term of imprisonment, I have had regard to the extra curial punishment the appellant received in prison following the offending, being time spent in various types of solitude.
I have also had regard to the early guilty plea of the appellant and have reduced the sentence I would otherwise have imposed by 25% in recognition of that plea.
I order that this term be served cumulatively on the total effective sentence of 5 years that the appellant is currently serving. I consider that this is appropriate due to the separate nature of the offending, and I consider that to do otherwise would mean there is no effective punishment for the offending.
The appellant is already serving a parole term, and I will make the appellant eligible for parole.[71]
[71] Sentencing Act, s 89(2)(a).
This means that the appellant will now be serving a total effective term of imprisonment of 5 years and 2 months. Having considered the circumstances of the offending for each of the offences the subject of these sentences, I am satisfied that this total sentence appropriately reflects the appellant's overall criminality in committing the various offences viewed in their entirety, having regard to the relevant sentencing principles and the relevant facts and circumstances referable to the appellant personally. In terms of the second limb of the totality principle, I am of the view that this total effective sentence is not crushing.[72]
[72] Roffey v The State of Western Australia [2007] WASCA 246 [25].
Finally, I consider that this sentence balances the need to address the disparity with the co‑offender's sentence, and at the same time impose a sentence that is short of being an affront to the administration of justice and is not so lenient as to shock the public conscience.
Orders
In light of the above reasons, I made the following orders:
1.The application for an extension of time within which to appeal is granted.
2.The application for leave to appeal is allowed.
3.The appeal is allowed.
4.The sentence imposed on 28 October 2022 for the offence the subject of charge RO 5078/2022 is set aside.
5.The appellant is sentenced to a term of 2 months' imprisonment that term to be served cumulatively on the term of imprisonment the appellant is currently serving.
6.The appellant is eligible for release on parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Judge
12 APRIL 2023
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