McKay v The State of Western Australia - [2023] WASCA 140

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MCKAY -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 140
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   10 AUGUST 2023
DELIVERED          :   28 SEPTEMBER 2023
FILE NO/S:   CACR 48 of 2023
BETWEEN:   DONALD MALCOLM MCKAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 1406 of 2022

Catchwords:

Criminal law - Sentencing - Aggravated burglary - Whether sentence imposed on appellant infringes the parity principle

Legislation:

Criminal Code (WA), s 401(2)(a)

Result:

Appellant's application in an appeal filed 15 September 2023 granted
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	S H King
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Legal Aid
Respondent	:	The Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Dunn v The King [2023] NSWCCA 1
Gianguilio v The State of Western Australia [2022] WASCA 77
Mehta v The State of Western Australia [2023] WASCA 24
Miorada v The State of Western Australia [2022] WASCA 143
NGO v The Queen [2017] WASCA 3
PG v The Queen [2017] NSWCCA 179; (2017) 268 A Crim R 61
Piao v The Queen [2019] NSWCCA 154
R v Chandler [2012] NSWCCA 135
R v Dyson [2023] NSWCCA 132
Rosenberg v The Queen [2022] NSWCCA 295
Siskopoulos v The State of Western Australia [2022] WASCA 138
The State of Western Australia v Krakouer [2022] WASCA 118

BUSS P & MAZZA JA:

We have read, in draft, Mitchell JA's reasons in respect of this appeal against sentence. Whilst we agree with Mitchell JA's reasons for concluding that ground 2 has not been made out, we have come to a different conclusion on ground 1. In our opinion, ground 1 has been made out. We would allow the appeal, set aside the sentence imposed by Burrows DCJ and impose a sentence of 2 years 2 months' immediate imprisonment, with eligibility for parole, backdated to commence on 15 February 2023. We would make these orders for the following reasons.
As Mitchell JA has comprehensively set out all of the necessary background, we will repeat it only to the extent necessary to explain our reasons.
By ground 1, the appellant complains that he has an objectively justified sense of grievance arising from the degree of disparity between the sentence imposed upon him of 2 years 10 months' immediate imprisonment, and the total effective sentence imposed upon Ms Richards of, in effect, 15 months' immediate imprisonment.[1]
[1] As explained by Mitchell JA, Ms Richards' sentences would have been 15 months' immediate imprisonment on each charge, but they were reduced by 5 months to take into account time served in custody on remand.
The operation of the parity principle has been summarised by Mitchell JA at [53] of his reasons.
In NGO v The Queen,[2] Buss P (Mazza JA agreeing) said:
[2] NGO v The Queen [2017] WASCA 3 [36] ‑ [39].
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].
We accept (as did counsel for the appellant) that the comparison in culpability required by the parity principle in this case requires a consideration of the facts as found by Burrows DCJ in relation to the appellant, and the facts as found by Goetze DCJ in relation to Ms Richards. This is of significance, as the facts upon which Goetze DCJ sentenced Ms Richards were more favourable to her than the facts put before Burrows DCJ in relation to Ms Richards.
We will deal first with the issue of the objective culpability of the appellant and Ms Richards with respect to the offences they committed.
The appellant was charged with, and pleaded guilty to, one count of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code). This offence was pleaded in the indictment, as follows:
(1)On 5 November 2021 at Camillo [the appellant], while in the place of [the victim], without her consent, stole from [the victim], a quantity of jewellery, a mobile phone and bank cards the property of [the victim]
And that [the appellant] was in company with others
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
Ms Richards was charged in a separate indictment with two offences arising out of the events of 5 November 2021. Count 1 alleged an offence contrary to s 401(2)(a) of the Code. Count 2 alleged an offence of armed robbery in company, contrary to s 392(c) of the Code.
These offences were pleaded in the indictment against Ms Richards as follows:
(1)On 5 November 2021 at Camillo [Ms Richards], while in the place of [the victim] without her consent, committed the offence of stealing
And that [Ms Richards] was in company with others
And that immediately before the commission of the offence [Ms Richards] knew or ought to have known that there was another person in the place.
(2)On the same date and at the same place [Ms Richards] stole from [the victim], with violence, jewellery, the property of [the victim]
And that [Ms Richards] was armed with an offensive instrument, namely a large piece of wood
And that [Ms Richards was] in company with others.
The common offence between the appellant and Ms Richards was the offence of aggravated burglary. While, unlike the offence charged against the appellant, the offence against Ms Richards did not plead the circumstance of aggravation that the place where the offence took place was ordinarily used for human habitation, this omission is of no significance for present purposes. This is because Ms Richards was sentenced by Goetze DCJ on the basis that the offence in count 1 on the indictment against her occurred at the house in which the victim lived.
In ascertaining the objective culpability of the appellant and Ms Richards it must be firmly borne in mind that the appellant and Ms Richards were, in effect, charged with the same offence of aggravated burglary, but only Ms Richards was charged with and convicted of the offence of armed robbery in company. In other words, Ms Richards, but not the appellant, committed a second, very serious, offence of armed robbery in company.
As found by Goetze DCJ in relation to Ms Richards, while committing count 1, Ms Richards was a party to, and therefore criminally responsible for, the armed robbery the subject of count 2 against her.
The appellant did not participate in, and was not criminally responsible for, the armed robbery in company. None of the violence that was perpetrated on the victim can be sheeted home to the appellant. On the findings of Burrows DCJ, the appellant did not know that the theft of the jewellery would be accompanied by violence. Nor did he commit any act of violence against the victim, and did not, by his presence, knowingly aid the others in the house in the commission of the armed robbery.
Further, at the time Ms Richards committed the offences she was, as Goetze DCJ found, subject to a community‑based order for a period of 9 months, which had been imposed upon her by the Perth Magistrates Court on 19 August 2021 in respect of five offences, including offences of being armed, or pretending to be armed, in a way that may cause fear, contrary to s 68(1) of the Code, and, without lawful excuse, trespassing upon a place, contrary to s 70A(2) of the Code.[3]
[3] Ms Richards' criminal history, WAB 161 - 162.
Finally, adopting Mitchell JA's description of the findings made of the appellant's offending and comparing this to Goetze DCJ's description of Ms Richards' offending in respect of the aggravated burglary offence, her culpability was somewhat greater than the appellant's, given Goetze DCJ's finding that Ms Richards' offending constituted a breach of the victim's trust in her.
In our opinion, the overall objective culpability of Ms Richards' offending as found by Goetze DCJ in the aggravated burglary and the offence of aggravated armed robbery, both of which occurred while she was on a community‑based order, was materially and substantially higher than the appellant's overall objective culpability as found by Burrows DCJ.
We next turn to a consideration of the mitigating factors and the personal circumstances of Ms Richards and the appellant.
Both pleaded guilty at the first reasonable opportunity and received a discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), of 25%. Goetze DCJ found that Ms Richards had 'actual remorse' for her offending.[4] No finding of remorse was made in respect of the appellant. However, the finding of remorse in Ms Richards' favour must be assessed in light of the psychologist's observation that Ms Richards felt wronged by the victim and that her feelings of victimisation impeded her capacity to understand and empathise with the experience of those who are impacted by her actions. The mitigating weight that may be given to remorse must, generally, be considered in the context of the spectrum from some remorse, on the one hand, to very significant remorse, on the other. Goetze DCJ made no finding as to the degree of Ms Richards' remorse. On the basis of the evidence before Goetze DCJ and the sentencing remarks, it cannot be inferred that remorse was a significant mitigating factor in Ms Richards' sentencing.
[4] Sentencing, Goetze DCJ, ts 43.
As for the personal circumstances of the appellant and Ms Richards, neither had the advantage of prior good character. Each of them had substantial criminal histories as adults. Ms Richards had a prior conviction for robbery. Ms Richards, but not the appellant, had prior convictions for aggravated burglary. Acknowledging that Burrows DCJ observed, in relation to the appellant, that he had 'remained out of trouble' since 2016, which was, as her Honour put it, 'a significant gap' in his offending, in the end there is little, if anything, to distinguish the criminal histories of the appellant and Ms Richards. Both the appellant and Ms Richards had drug problems. Each had, before sentencing, taken steps to address this issue.
However, when all aspects of the personal circumstances of the appellant and Ms Richards are evaluated, it is clear that the mitigation available to Ms Richards for her personal circumstances was substantially greater than that available to the appellant. Unlike the appellant, Ms Richards was relatively youthful, had a highly dysfunctional upbringing and was a mother of four young children, one of whom was a newborn. Significantly, after acknowledging that unless Ms Richards addressed her substance abuse she would pose some risk of reoffending, Goetze DCJ extended considerable leniency upon Ms Richards with the aim of facilitating her rehabilitation. At the conclusion of his sentencing remarks, he said:[5]
The penalty I've imposed reflects that hopefully this time you can rehabilitate with success because you've got your children in mind, the prospect of a house, and when I say children, the three others, the house and now you've got this new baby and while you're in custody you can get all the help you need in terms of turning your life around.
[5] Sentencing, Goetze DCJ, ts 46.
When all of the facts and circumstances of the respective cases are considered, including Goetze DCJ's favourable findings as to Ms Richards' offending and her prospects of rehabilitation, some disparity, in favour of Ms Richards, was justified. However, in our opinion, the degree of disparity between the sentences was not justified on an objective analysis of the respective cases of the appellant and Ms Richards, particularly having regard to the differences in their overall culpability. Taking into account time spent in custody by Ms Richards, the sentence imposed upon the appellant was more than twice as long as the total effective sentence imposed upon Ms Richards. If a comparison is made of the minimum periods before each may be considered eligible for parole, the disparity is seven months in favour of Ms Richards. In our opinion, the disparity is too great and engenders on the part of the appellant a legitimate or justifiable sense of grievance. We would therefore uphold ground 1.

Resentencing

We have the materials necessary to resentence the appellant. Those materials include an affidavit of the appellant's lawyer, Ms King, filed in support of an application in an appeal on 15 September 2023 for leave to adduce additional evidence in relation to the resentencing. It is necessary in resentencing the appellant to ensure that there is appropriate parity as between him, on the one hand, and each of Ms Richards, Ms Smith and Mr Landers, on the other.
We would, as did Burrows DCJ, allow a 25% discount for the appellant's plea of guilty, pursuant to s 9AA of the Sentencing Act. Having regard to the other mitigatory factors in the appellant's case, most significantly to encourage his rehabilitation, we would impose a new sentence on the appellant of 2 years 2 months' immediate imprisonment, with eligibility for parole, backdated to commence on 15 February 2023.

Conclusion and orders

We would allow the appeal and resentence the appellant. The orders we would make are:
1.Appellant's application in an appeal filed 15 September 2023 granted.
2.Leave to appeal on ground 1 is granted.
3.Leave to appeal on ground 2 is refused.
4.The appeal is allowed.
5.The sentence imposed by Burrows DCJ on 6 April 2023 is set aside.
6.The appellant is resentenced for the offence of aggravated burglary in indictment 1406 of 2022 to 2 years 2 months' immediate imprisonment, with eligibility for parole, backdated to commence on 15 February 2023.

MITCHELL JA:

Summary

The appellant was convicted, on his plea of guilty, of one count of aggravated burglary by committing the offence of stealing while in the complainant's residence without her consent.[6] On 6 April 2023, he was sentenced to 2 years 10 months' immediate imprisonment for this offence. He was made eligible for parole, and the sentence was backdated to 15 February 2023 to take account of time spent in custody on remand.
[6] Contrary to s 401(2) of the Criminal Code (WA).
One of the appellant's co-offenders, Summer Richards, received a shorter sentence for the same offending. Ms Richards was sentenced to 10 months' immediate imprisonment for the same burglary offence. Ms Richards also received a concurrent sentence of 10 months' immediate imprisonment for the offence of armed robbery committed at the same time and place. Those sentences reflected a reduction to take account of 5 months which Ms Richards had spent in custody prior to

sentencing. Ms Richards was made eligible for parole. Taking time spent on remand into account, the total effective sentence received by Ms Richards was equivalent to 15 months' immediate imprisonment.

Two other co-offenders, Samantha Smith and Dennis Landers, received longer sentences than the appellant. They were each convicted of aggravated burglary by committing the offence of armed robbery while in the complainant's residence without her consent, as well as of the offence of armed robbery. Ms Smith received a sentence of 4 years' immediate imprisonment for the aggravated burglary offence and no penalty for the armed robbery offence (under s 11 of the Criminal Code). Mr Landers received a sentence of 4 years 3 months' immediate imprisonment for the aggravated burglary offence and no penalty for the armed robbery offence (under s 11 of the Criminal Code). They were each made eligible for parole, and each of their sentences were backdated to take account of time spent in custody on remand.
The appellant now appeals against his sentence on two grounds, each of which invoke the parity principle. Ground 1 contends that the appellant has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence imposed on Ms Richards. Ground 2 contends that the appellant has a justifiable sense of grievance due to the insufficient disparity between his sentence and the sentences imposed on Ms Smith and Mr Landers. The applications for leave to appeal on these grounds has been referred to the hearing of the appeal.
For the following reasons, in my view the appeal should be dismissed.

Circumstances of the appellant's offending

The appellant was sentenced by Burrows DCJ. In sentencing the appellant, her Honour made the following findings as to the circumstances of the offending.[7]
[7] White AB 62 - 64.
On the morning of Friday, 5 November 2021, the appellant, Mr Landers, Ms Smith, Ms Richards and a fourth co-offender drove to the complainant's home address. The appellant does not complain of a breach of the parity principle in relation to the sentence imposed on the fourth co-offender, who it is convenient to refer to as D.
The appellant's only connection to the group was Mr Landers, who he had not seen for 18 months to 2 years. The appellant ran into Mr Landers at the Belmont Shopping Centre on the day of the offence and agreed to go with the group to the complainant's address.
At the time, the complainant was 39 years old and pregnant. The complainant knew Ms Richards and D. Ms Richards had arranged by telephone to visit the complainant. The complainant told Ms Richards to enter by a window as the back door was broken. The complainant only expected to see Ms Richards and D.

D drove the appellant, Mr Landers, Ms Smith and Ms Richards to the complainant's house in D's vehicle. On the way to the house, they discussed taking jewellery from the complainant. The appellant knew on the way to the complainant's residence that the purpose of the group going to the house was to obtain jewellery from the woman who lived there. On the way to the house, Ms Richards called the complainant and deceptively said that she was going to shout her a shot of speed.
D dropped the appellant, Ms Smith and Mr Landers around the corner from the complainant's house. Ms Richards stayed in the passenger seat as D parked her car in the complainant's driveway. D stayed in the vehicle and did not get out. Ms Richards got out of the vehicle and entered the complainant's house via the window. Ms Richards and the complainant had a short conversation inside. Ms Richards asked if D was allowed to come into the house. The complainant said, 'Yes'.
In the meantime, the appellant, Mr Landers and Ms Smith had walked up the driveway and entered the house via the same window. The complainant did not know the appellant, Mr Landers or Ms Smith. The complainant said to them, 'Who are you? Get the fuck out'.
Ms Smith demanded the victim hand over her jewellery as the appellant remained in the room. Ms Smith stood in front of the complainant and said, 'Don't fuck me around. Give me the chains'. Mr Landers said, 'Smash her in the face'. As the complainant fiddled with the chains on her neck, Ms Smith picked up a large piece of wood and struck the complainant's head, causing a minor injury. Mr Landers then attempted to physically remove chains from the complainant's neck. The complainant then removed the chains herself and handed them to Ms Richards. Mr Landers demanded the complainant take off her rings and hand them over. The complainant handed over the rings and a bracelet to Mr Landers and Ms Richards. The estimated total value of the jewellery stolen was $10,000.
The appellant remained in the room throughout this incident. He was aware that the group intended to steal property but not that violence and a weapon in the form of a piece of wood would be used.
Ms Smith then entered the complainant's bedroom and rummaged through several items, before taking a mobile phone and bank cards from the complainant's handbag. The group then left via the same window that they had entered through. Ms Smith left first followed by Ms Richards and then Mr Landers. As Mr Landers was leaving, he said, 'Watch her. Watch her', referring to the complainant. The group all got back into D's vehicle with the stolen items. D drove them directly to the home of a drug dealer and then to pawn brokers.
At about 11.59 am on the same day, the appellant attended a Cash City store in Belmont. He was in possession of three gold rings, a yellow gold ring with approximately 10 stones embedded and a gold bracelet. The appellant signed a contract with Cash City, stating he was the owner of these items or alternatively that he had the permission of the owner to pledge the items. The appellant received a $160 payment in exchange for the items, of which he retained $30.
Police came to the appellant's home on 8 November 2021 and arrested him. The appellant was conveyed to the police station where he declined to participate in a record of interview.

Appellant's personal circumstances

Burrows DCJ made the following findings as to the appellant's personal circumstances.[8]
[8] White AB 66 - 67.
The appellant was 50 years old at the time of sentence. The appellant's father abandoned the family when the appellant was 6 years old, and the appellant's mother abandoned the appellant and his brother when the appellant was 15 years old. The appellant then moved in with his grandparents. The appellant had a 23-year-old daughter from a de facto relationship which had lasted 7 - 8 years. The appellant discovered that he was not her biological father when his daughter was about 15 years old. The appellant was estranged from family members other than his daughter, who was the appellant's only support in the community.
The appellant left school after completing year 10 and was employed in construction and as a motor mechanic. He experienced a workplace spinal injury in 1996 and suffered chronic back pain. He had limited success in re-entering the workforce since that injury and was in receipt of a disability pension at the time of sentence. He used prescribed medications including morphine and codeine-based drugs but was on the methadone program to get off the morphine at the time of sentence.
The appellant had a history of substance abuse and was a cannabis user at the time of sentencing. The appellant expressed a willingness to undergo rehabilitation to address his substance abuse issues. He had a lengthy criminal record which included a conviction for armed robbery in 1994 and various stealing offences. However, this was the appellant's first burglary offence as an adult. The appellant's last offending was in March 2016, so he had stayed out of trouble for over 5 years prior to meeting Mr Landers and agreeing to go and take jewellery off the complainant at the behest of Ms Richards.

Sentencing judge's approach

Burrows DCJ identified the following aggravating features of the appellant's offending:[9]
1.The offending was premeditated in that a plan (instigated by Ms Richards and Ms Smith) had been formed to enter the complainant's home by surprise and steal her jewellery.
2.The complainant was vulnerable. She was alone in her home. She was expecting one or two female visitors and was confronted by a group of four including two men.
3.The property taken was of significant value and only a portion of it was able to be recovered.
[9] White AB 64 - 65.
Burrows DCJ described the appellant's role in the offending in the following terms. He was part of a group. He added to the numbers of the group, thereby helping to intimidate and subdue the complainant. The appellant later took a direct part in converting some of the property into cash. The appellant did not himself strike or encourage Ms Smith to strike the complainant. He did not make any demands for property as Mr Landers did. By his physical presence, the appellant provided encouragement and support to the group who went into the house.[10]
[10] White AB 65.
Burrows DCJ characterised the appellant's culpability as being less than that of Mr Landers and Ms Smith. Her Honour noted that the appellant did not instigate the offending as Ms Richards did. The judge regarded the appellant's culpability as being higher than that of D, who remained in the car.[11]
[11] White AB 65.
After referring to the appellant's personal circumstances, Burrows DCJ noted that his criminal record was not an aggravating factor and that there had been a significant gap in his offending. However, the judge considered there to be a need for personal deterrence in this case. Her Honour gave the appellant a 25% discount under s 9AA of the Sentencing Act 1995 (WA) in respect of a plea of guilty at the first reasonable opportunity. This was on the basis that, although the appellant had pleaded guilty only a few days before a listed trial, he pleaded guilty to an amended indictment. Her Honour noted that the appellant did not derive any benefit from youth and was not a person of prior good character. The judge said that it was to the appellant's credit that he had taken steps to reduce his cannabis intake and had some prospect of employment going forward. Her Honour noted a positive character reference.[12]
[12] White AB 62, 67 - 68.
Burrows DCJ then addressed the question of parity. The judge described the sentence imposed on Ms Richards as a 'merciful sentence' imposed in circumstances where the sentencing judge, Goetze DCJ, was not fully appraised as to the full extent of Ms Richards' involvement in the offending. Her Honour addressed the differences between the appellant and D, which it is unnecessary to set out here. Burrows DCJ also referred to the sentences which her Honour had imposed on Ms Smith and Mr Landers who she regarded as more culpable than the appellant. She referred to the more serious offences with which they were charged, their use of violence, their motivation to obtain money for drugs, the fact that Mr Landers was on bail at the time of the offences and the fact that both were repeat offenders.[13]
[13] White AB 68 - 70.
After referring to the general sentencing considerations in relation to aggravated burglary offences and concluding that a sentence of immediate imprisonment was the only appropriate sentencing disposition, Burrows DCJ sentenced the appellant to 2 years 10 months' immediate imprisonment. Her Honour backdated the sentence to 15 February 2023 and made the appellant eligible for parole.[14]
[14] White AB 70 - 71.

The parity principle

The operation of the parity principle has been summarised in a number of recent decisions of this court, including Siskopoulos v The State of Western Australia,[15] and Gianguilio v The State of Western Australia.[16] In essence, the principle is concerned to ensure appropriate consistency in the sentencing of co-offenders. It applies where disparity or lack of disparity in the sentencing outcome can give rise to objectively justifiable sense of grievance on the part of one of the offenders. The parity principle is concerned with substance rather than form, and the application of the principle will vary according to the facts and circumstances of the case. The application of the parity principle may require a reduction in a sentence that is not otherwise manifestly excessive. However, the principle does not require the imposition of a sentence that is wholly inadequate or so lenient as to be an affront to the proper administration of justice.
[15] Siskopoulos v The State of Western Australia [2022] WASCA 138 [39] - [45].
[16] Gianguilio v The State of Western Australia [2022] WASCA 77 [60] ‑ [71].

Ground 1: disparity between the appellant's and Ms Richards' sentences

On the facts found by Burrows DCJ, the culpability of Ms Richards was significantly greater than that of the appellant. Ms Richards was convicted of the additional offence of armed robbery and was found by Burrows DCJ to have been the instigator of the planned offending. She offended whilst on a community-based order. Like the appellant, she received a 25% discount for a plea of guilty and had a significant record which included aggravated burglary and armed robbery offences. Yet the equivalent to a total effective 15-month sentence imposed on Ms Richards is less than half of the 34-month sentence imposed on the appellant. Even allowing for some greater mitigating factors (discussed below), the difference in the sentences imposed on the appellant and Ms Richards appears difficult to justify on the facts found by Burrows DCJ.
However, the comparison in culpability required by the parity principle is not undertaken by reference to circumstances of Ms Richards' offending on the facts found by Burrows DCJ. Rather, the comparative culpability of Ms Richards is to be assessed by reference to the facts found by Goetze DCJ when sentencing Ms Richards. This point has been made by the New South Wales Court of Criminal Appeal, including in the recent decision of R v Dyson,[17] where the court observed:
Where two offenders come to be sentenced by the same judge or by different sentencing courts, on separate agreed statements of facts which contain material differences the comparison, for parity purposes, is between what the agreed facts for one offender show was his culpability and the culpability of the co-offender as shown by the agreed facts for the co-offender's sentence. It is erroneous to compare the role of an offender as disclosed in his agreed facts and the role of the co-offender described in those same facts, because the co-offender was not sentenced on those facts. He was sentenced on the basis of the facts tendered in his sentence proceedings.
[17] R v Dyson [2023] NSWCCA 132 [54], citing Rosenberg v The Queen [2022] NSWCCA 295 [9] - [10]. To similar effect see also Piao v The Queen [2019] NSWCCA 154 [45] - [46] and PG v The Queen [2017] NSWCCA 179; (2017) 268 A Crim R 61 [23] - [24].
At the hearing of the appeal, counsel for the appellant properly accepted that the relevant comparison was between the appellant's criminality on the facts found by Burrows DCJ and Ms Richards' criminality on the facts found by Goetze DCJ.[18]
[18] Appeal ts 2 - 4.
In the present case, the facts on which Ms Richards was sentenced by Goetze DCJ indicated a significantly lower degree of criminality on her part in respect of the burglary charge (which, like the appellant's charge, had stealing as the grounding offence) than the facts agreed in the appellant's sentencing.
Although he found that Ms Richards breached the complainant's trust,[19] Goetze DCJ did not find that the offending was planned or instigated by Ms Richards. Rather, his Honour found that the offence occurred in escalating circumstances which Ms Richards had not anticipated. Goetze DCJ found that Ms Richards used to live at the complainant's house and had moved out due to an argument shortly prior to the offending. Ms Richards, who was pregnant, wanted to obtain a necklace from the complainant to use to help her find accommodation. The judge found that Ms Richards thought that the complainant had stolen her necklace and wanted a replacement as payment. She entered the complainant's house not expecting the others in the car to follow her into the house. Ms Richards did not expect Ms Smith and Mr Landers to enter and escalate the situation in the way that they did.[20] Although Goetze DCJ's sentencing remarks are open to interpretation, at the hearing of the appeal counsel for the appellant accepted that they were properly construed in the manner noted above.[21] That is the way I would construe his Honour's remarks in the context of the submissions which sentencing counsel had advanced.
[19] White AB 103.
[20] White AB 104 - 105, read in the context of the agreed facts stated at white AB 92 - 93 and the plea in mitigation at white AB 94 - 97.
[21] Appeal ts 6 - 7.
The above findings by Goetze DCJ were not, in my view, inconsistent with the charges to which Ms Richards pleaded guilty or the amended statement of material facts which counsel for Ms Richards admitted and Goetze DCJ adopted.[22] Those facts indicate that Ms Richards exited a car in which Ms Smith, Mr Landers and the appellant were back seat passengers and entered the complainant's premises. The material facts indicate that Ms Richards was 'shortly followed' by Ms Smith, Mr Landers and the appellant. The material facts do not indicate the precise length of time between Ms Richards' and the others' entry into the complainant's house. Nor do the material facts indicate that Ms Richards anticipated that Ms Smith, Mr Landers and the appellant would follow her into the complainant's house.[23]
[22] White AB 94, 104.
[23] White AB 93.
It should also be noted that Ms Richards was convicted of an additional offence of armed robbery, which the appellant was not. However, the sentence imposed on Ms Richards in respect of the armed robbery offence was to be served wholly concurrently with the sentence imposed on her for the aggravated burglary offence. In the view taken by Goetze DCJ, the conviction of the additional armed robbery offence did not require the imposition of a total effective sentence longer than the individual sentence which was, in his Honour's view, commensurate with the seriousness of the aggravated burglary offence.
Like the appellant, Ms Richards received a 25% discount for her plea of guilty under s 9AA of the Sentencing Act.[24] Goetze DCJ also identified mitigating factors in relation to Ms Richards' offending additional to those found by Burrows DCJ in relation to the appellant. Ms Richards was genuinely remorseful for the offending (a finding Burrows DCJ did not make about the appellant). Ms Richards was only 23 years of age at the time of the offending and at the time of her sentencing.[25] I recognise that that is towards the upper limit of the range in which youth is a mitigating factor, and Ms Richards' criminal history moderated the weight which could be given to her youth. However, having regard to the reasons underpinning the principle that an offender's youth is a significant mitigating factor,[26] Ms Richards' age remained a significant mitigating factor. Youth was not a mitigating factor for the appellant, who was 48 years old at the time of offending and 50 years old at the time of sentencing.
[24] White AB 110.
[25] White AB 110.
[26] See Miorada v The State of Western Australia [2022] WASCA 143 [33].
Ms Richards had a highly dysfunctional childhood, to a greater degree than the appellant, which was marred by isolation, deprivation, parental neglect, drugs and domestic violence.[27] Goetze DCJ found that Ms Richards was at risk of reoffending until such time as she conquered her drug problem.[28] However, Ms Richards had taken positive steps towards her rehabilitation, and was motivated to rehabilitate so as to be able to care for her baby (born a few days prior to her sentencing) and have her three children in State care returned to her. She was taking steps to secure accommodation on her release.[29]
[27] White AB 110 - 111.
[28] White AB 111 - 112.
[29] White AB 110 - 111.
In that regard, towards the end of his sentencing remarks, Goetze DCJ observed:[30]
The penalty I've imposed reflects that hopefully this time you can rehabilitate with success because you've got your children in mind, the prospect of a house, and when I say children, the three others, the house and now you've got this new baby and while you're in custody, you can get all the help you need in terms of turning your life around.
[30] White AB 113.
Counsel for the appellant submitted, in effect, that in light of Goetze DCJ's other findings and Ms Richards' poor antecedents, Goetze DCJ's findings as to her prospects of rehabilitation were not open. Counsel's submission that the finding was not open on the material before Goetze DCJ is not without force. However, in my view it is not open to challenge the basis on which Ms Richards was in fact sentenced by Goetze DCJ. As was noted in Dyson, in applying the parity principle the later sentencing judge must consider findings made by the previous sentencing judge about the co-offender but should not go behind the findings by the previous sentencing court to assess whether and to what extent they were available.[31]
[31] Dyson [54], referring to R v Chandler [2012] NSWCCA 135 [80] - [81].
In many other respects, the antecedents of the appellant and Ms Richards were similar. Both had a history of substance abuse, although in Ms Richards' case the main problem was with methylamphetamine. Both had a significant prior criminal record. I note that the appellant's last offending was about 5 years prior to the current aggravated burglary offence and his last sentence of imprisonment was in respect of the armed robbery offending in 1994. However, a prior record is not aggravating and neither the appellant nor Ms Richards was of prior good character. Personal deterrence was a significant sentencing factor for both offenders.
In my view, any proper exercise of the sentencing discretion required the appellant to receive a greater sentence than Ms Richards. Having regard to:
1.the circumstances of the appellant's offending;
2.the appellant's personal circumstances and his plea of guilty at the first reasonable opportunity;
3.the maximum penalty of 20 years' imprisonment for the appellant's aggravated home burglary offence; and
4.the customary sentencing standards for aggravated home burglary offences,[32]
a sentence of only 15 months' immediate imprisonment imposed on the appellant would be wholly inadequate and so lenient as to be an affront to the proper administration of justice. Burrows DCJ correctly recognised the need to impose a sentence on the appellant which was higher than the total effective sentence which Ms Richards had received. The question then becomes whether the degree of the difference between the sentence imposed on the appellant by Burrows DCJ and that imposed on Ms Richards by Goetze DCJ gives rise to an objectively justifiable sense of grievance on the part of the appellant.
[32] As to which see, for example, The State of Western Australia v Krakouer [2022] WASCA 118 [44] - [48].

As noted above, the difference between the appellant's sentence and that imposed on Ms Richards is significant. However, the lesser sentence received by Ms Richards is explicable by reference to the less serious facts on which she was sentenced, and the additional mitigating factors noted at [61] - [63] above. While the sentence imposed on Ms Richards was lenient even having regard to the facts on which she was sentenced, it is explicable by the critical juncture which Goetze DCJ perceived Ms Richards to be in a life which had, to that time, been marred by physical abuse, neglect and drug use. Having regard to the different facts on which the appellant and Ms Richards were sentenced and Ms Richards' particular personal circumstances, in my view the difference in sentences cannot give rise to an objectively justifiable sense of grievance on the part of the appellant. In my view, the sentence imposed on the appellant by Burrows DCJ did not infringe the parity principle by reason of the difference between the sentence imposed on the appellant and that imposed on Ms Richards.
Further, where the sentencing judge has applied the parity principle in relation to a co-offender's sentence, and no express error is alleged, the question for this court is whether the differentiation made by the sentencing judge in imposing a higher sentence was open in the exercise of the sentencing discretion.[33] As the New South Wales Court of Criminal Appeal observed when making this point in Dunn:[34]
This Court has observed that 'considerable obstacles' are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences.
In considering whether the applicant has a justifiable sense of grievance, it is also to be borne in mind that the sentencing decisions being reviewed are qualitative and discretionary judgments.
It is well established that the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, and an appeal on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. This Court will not interfere lightly with the exercise of the discretion when the sentencing judge has taken into account earlier sentences imposed by other judges.
(citations omitted)
[33] Dunn v The King [2023] NSWCCA 1 [48].
[34] Dunn [45] - [47].
That is, as this court observed in Mehta v The State of Western Australia:[35]
The issue is not whether we would have exercised the qualitative and discretionary judgment in relation to parity differently. It is whether the result produced in this case was unreasonable or plainly unjust, such as to give 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.
[35] Mehta v The State of Western Australia [2023] WASCA 24 [208].
In my view, it was open to Burrows DCJ to sentence the appellant in the way she did having regard to the parity principle and all other relevant sentencing considerations. Having regard to the parity principle, the sentence imposed on Ms Richards and the different basis on which Ms Richards was sentenced, it was open to her Honour to impose a sentence of 2 years 10 months' imprisonment on the appellant. The degree of disparity between the sentence imposed on the appellant and Ms Richards was not unreasonable or plainly unjust so as to reveal implied error in the exercise of the sentencing discretion. In all the circumstances, the difference between the sentences did not give rise to a legitimate or justifiable sense of grievance, or the appearance in the mind of an objective observer that justice has not been done.

Ground 2: insufficient disparity with other co-offenders' sentences

The criminality involved in Ms Smith's and Mr Landers' offending was, as Burrows DCJ recognised, significantly higher than that of the appellant. They were sentenced on the same facts as the appellant, which revealed that they instigated and engaged in violence against the complainant. The grounding offence for their aggravated burglary charges was stealing with violence. As repeat offenders, they were subject to a minimum penalty of 2 years' immediate imprisonment.[36] Mr Landers was on bail at the time of the offending. They each received a 20% (as opposed to the appellant's 25%) discount for their pleas of guilty.[37] Their antecedents were broadly similar to the appellant's.
[36] Section 401(4)(b)(i) of the Criminal Code.
[37] White AB 145.
However, in my view that difference in criminality was properly reflected in the significantly greater sentences which Ms Smith and Mr Landers received. Ms Smith was sentenced to 4 years' immediate imprisonment. Mr Landers was sentenced to 4 years 3 months' immediate imprisonment. These sentences are to be compared to the appellant's sentence of 2 years 10 months' immediate imprisonment. In my view the appellant can have no objectively justifiable sense of grievance arising from the absence of greater disparity between his sentence and those imposed on Ms Smith and Mr Landers.

Application to adduce additional evidence

By application in an appeal filed on 15 September 2023, the appellant applies to adduce additional evidence in the appeal which is proposed to be used in the event this court resentences the appellant. As I would dismiss the appeal, the occasion for me to refer to the additional evidence does not arise. I would dismiss the application in an appeal.

Orders

For the above reasons, I would make the following orders in the appeal:
1.Leave to appeal is granted on ground 1.
2.Leave to appeal is refused on ground 2.
3.The appellant's application in an appeal filed on 15 September 2023 is dismissed.
4.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Mazza
28 SEPTEMBER 2023