Newburn v The Queen
[2004] WASCA 108
•24 MAY 2004
NEWBURN -v- THE QUEEN [2004] WASCA 108
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 108 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:154/2003 | 23 MARCH 2004 | |
| Coram: | TEMPLEMAN J WHEELER J EM HEENAN J | 24/05/04 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted, Appeal allowed, Suspended sentence of imprisonment imposed | ||
| B | |||
| PDF Version |
| Parties: | JOHN NEWBURN THE QUEEN |
Catchwords: | Criminal law Application for leave to appeal against sentence Aggravated burglary Breach of CBO Effective term 2 years with eligibility for parole Non-custodial sentence for co-offender Parity Turns on own facts |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 |
Case References: | Boney, unreported; CCA of NSW; 22 July 1991 Dinsdale v The Queen (2000) 200 CLR 321; 115 A Crim R 558 Goddard v The Queen (1999) 21 WAR 541 Heferen v The Queen (1999) 106 A Crim R 89 Herbert v The Queen (2003) 27 WAR 330; [2003] WASCA 61 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Liddington (1997) 18 WAR 394 R v MacGowan (1986) 42 SASR 580 R v Ward (1999) 109 A Crim R 159 Cabassi v The Queen [2000] WASCA 305 Cameron v The Queen [2002] WASCA 81 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994 McKenna v R (1992) 7 WAR 455 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NEWBURN -v- THE QUEEN [2004] WASCA 108 CORAM : TEMPLEMAN J
- WHEELER J
EM HEENAN J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File Number : 1545A of 2002
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Breach of CBO - Effective term - 2 years with eligibility for parole - Non-custodial sentence for co-offender - Parity - Turns on own facts
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Legislation:
Sentencing Legislation Amendment and Repeal Act 2003
Result:
Leave to appeal granted
Appeal allowed
Suspended sentence of imprisonment imposed
Category: B
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Mr K P Bates & Mr L M Fox
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Boney, unreported; CCA of NSW; 22 July 1991
Dinsdale v The Queen (2000) 200 CLR 321; 115 A Crim R 558
Goddard v The Queen (1999) 21 WAR 541
Heferen v The Queen (1999) 106 A Crim R 89
Herbert v The Queen (2003) 27 WAR 330; [2003] WASCA 61
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Liddington (1997) 18 WAR 394
R v MacGowan (1986) 42 SASR 580
R v Ward (1999) 109 A Crim R 159
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Case(s) also cited:
Cabassi v The Queen [2000] WASCA 305
Cameron v The Queen [2002] WASCA 81
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994
McKenna v R (1992) 7 WAR 455
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1 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by EM Heenan J. I agree with those reasons and the orders proposed by his Honour.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Heenan J. The circumstances of these offences and of the applicant and his co-offender are set out accurately and in detail in those reasons, and I do not repeat them.
3 I have, however, reached a different conclusion from that of Heenan J, for reasons which can be shortly expressed. The Court will intervene in respect of disparity of sentence only where it considers that the disparity is such as to give rise to a justifiable sense of grievance, or gives the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ. There is clearly a disparity in this case. However, in my view, the disparity is adequately accounted for by the personal circumstances of the applicant and his co-offender, and particularly by the differing roles which the learned sentencing Judge accepted that each had played in the commission of this aggravated burglary.
4 For the reasons which Heenan J has expressed, the sentence imposed on the co-offender Zreik may be regarded as a lenient one. Because of his age and the different nature of his prior record of offending, the applicant was a less favourable candidate for leniency than Zreik. Further, in respect of the applicant, there was the aggravating feature that he had committed the aggravated burglary only five months into the community based order imposed upon him in respect of previous offences. Whether these factors, taken in combination, would have justified the non-suspension of the applicant's sentences of imprisonment when Zreik received a suspended sentence, is a matter upon which minds may differ. There are differences, but they are perhaps not particularly substantial.
5 There was also, however, a difference in the role which the learned sentencing Judge considered was played by each of the offenders in respect of the aggravated burglary. To summarise, his Honour accepted that the offending had been instigated by the applicant. While it is clear that, on any view, Zreik had been a willing and active participant, the instigation of the offence by the applicant was a relevant difference, and was not insignificant.
6 Importantly, in addition to stealing property from the premises, the learned sentencing Judge accepted that the applicant was the person who
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- had engaged in the gratuitous vandalism of turning on the water taps, flooding the shop floor, and turning on deep fryers and throwing food into them. While an aggravated burglary of any kind is normally to be regarded as a relatively serious offence, it is my view that the seriousness of the offence is significantly increased when pointless damage of this kind is caused. Conduct of this kind is likely to increase the sense of violation of premises and of outrage from which victims of aggravated burglaries are in any event likely to suffer. It is, in my view, the combination of the leading role played by the applicant in the offending and the additional damage which appears to have been his responsibility, together with, to a lesser degree, the marginally better personal circumstances of Zreik which justifies the disparity in the sentences imposed upon each offender.
7 It is therefore my view that, while leave to appeal should be given, the appeal should be dismissed.
8 EM HEENAN J: On 11 September 2003 the applicant, John Newburn, together with a co-accused Mohammed Zreik were arraigned in the District Court of Western Australia before his Honour Judge Groves, on a charge of aggravated burglary that on or about 20 January 2003 at Victoria Park John Newburn and Mohammed Zreik, while in the place of Thi Hoang Anh Tran and David Tran trading as Lah Snappa without its consent, he committed the offence of stealing and that John Newburn and Mohammed Zreik were in company with each other (Criminal Code, s 401(2)).
9 Each accused pleaded guilty to that charge and was thereupon convicted.
10 In addition, the applicant had also been charged with a breach of a community order, namely an intensive supervision order made by the District Court of Western Australia on 23 August 2002. He had admitted this charge thereby rendering himself liable to be sentenced for the offences for which the ISO had originally been imposed. He had been remanded to the District Court for further sentence on those charges.
11 The history was that on 23 August 2002 at the District Court at Perth the applicant had been convicted of one count of receiving, two counts of damage, one count of cultivating cannabis, one count of possession of cannabis and one count of unlawful possession of stolen goods. On 23 August 2002 for these offences, he was admitted to the community based order for a period of 18 months with 80 hours of community service. On 17 December 2002, in the Perth Court of Petty Sessions he
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- was convicted of breaching this community order contrary to s 131(1) of the Sentencing Act (1995) by failing to report as directed.
12 The learned sentencing Judge then proceeded to sentence the applicant for those original convictions. Four of those offences had originally been brought before the District Court on 23 August 2002 under a s 32 notice. They were the charges of damage, unlawful possession of goods, cultivating cannabis and possession of cannabis. The aggravated burglary which was the subject of the indictment had been committed only five months after the applicant had been placed on the community based order.
Sentences imposed
13 On the conviction for aggravated burglary on the indictment then before the Court, his Honour considered that a sentence of 18 months' imprisonment would have been appropriate and, in accordance with the Sentencing Legislation Amendment and Repeal Act 2003, this was scaled down to a sentence of 12 months' imprisonment. His Honour took the view that this offence was separate and distinct from the earlier offences and, consequently, ordered that this sentence should be served cumulatively upon the other sentences he then imposed.
14 In relation to the charges for which the community based order had originally been imposed his Honour sentenced the applicant as follows:
a. receiving the stolen truck – 12 months' imprisonment.
b. unlawful damage – 8 months' imprisonment.
c. section 32 notice – 2 months' imprisonment for each of the four charges.
15 All of the above sentences were ordered to be served concurrently. Each of these sentences had been scaled down so as to equate to two thirds of the sentence which his Honour would previously have imposed. This followed as a result of the Sentencing Legislation Amendment and Repeal Act 2003.
16 The actual effect of these sentences, therefore, was that the applicant received an effective sentence of immediate imprisonment for a term of 24 months. The sentences were ordered to take effect from the date they were imposed, that is from 11 September 2003, but his Honour had had regard to the fact that the applicant had previously been in custody for some six weeks at an earlier stage on the other matters which,
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- presumably, were the charges for which the ISO had originally been imposed. The applicant was made eligible for parole.
17 The co-offender, Mohammed Zreik, who had also then been convicted on his plea of guilty to the charge of aggravated burglary, but not of any the other offences, was placed on a community based order for 12 months, subject to supervision and was also required to undertake a programme to address anger management issues.
Grounds of appeal
18 The applicant seeks leave to appeal from the sentence imposed, essentially, on two grounds. The first ground contends that there was a lack of parity between the sentence imposed upon him and the sentence imposed upon the co-offender Zreik. The second ground contends that the learned sentencing Judge should not have imposed a sentence of immediate imprisonment. These are elaborated upon in the particulars which added to the grounds filed. The stated grounds of appeal are:
1. The learned sentencing Judge erred in imposing a term of imprisonment (to be served immediately) upon the applicant as he did not have any sufficient regard to the principle of parity in sentencing.
- 1.1 The co-offender on the charge of aggravated burglary was not given any term of imprisonment at all.
1.2 Whilst the circumstances of each of the applicant and the co-offender were not exactly the same, this is not required and the learned sentencing Judge erred in his determination that parity did not apply to the sentencing of the applicant.
1.3 The learned Judge erred in apportioning the blame for the offence of aggravated burglary upon the applicant and not also the co-offender.
1.4 The learned Judge erred in his determination that the applicant's record of offending was worse than the co-offender's record of offending.
1.5 The learned Judge wrongly placed too much emphasis on the submissions of the co-offender's counsel in apportioning blame onto the applicant.
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- 2. The learned Judge erred in imposing a sentence of immediate imprisonment upon the applicant.
- 1.1 The learned sentencing Judge did not give sufficient consideration to suspending imprisonment.
1.2 The learned sentencing Judge did not give sufficient consideration to the applicant's relative youth, relative lack of previous convictions, his efforts in caring for his sister and the applicant's employment.
1.3 The learned sentencing Judge did not give sufficient weight to the applicant's earliest plea of guilty and the contents of the sentencing reports that were prepared for the Court.
The details of the aggravated burglary
19 The indictment for this offence of aggravated burglary simply alleges that both offenders committed the offence of stealing while on the property of Lah Snappa. The details of the goods stolen are to be found in the originating complaint before the Court of Petty Sessions upon which the offenders had been remanded for sentence. That discloses that the goods stolen were a Kelvinator freezer, a Samsung microwave and items of food and drink.
20 The facts outlined to the learned sentencing Judge by the prosecutor were that on the evening of 20 January 2003 both offenders went to the Lah Snappa Fish and Chip Shop on Albany Highway, Victoria Park, where they forced open a rear wooden door and gained entry. Inside they turned on water taps which flooded the shop floor and turned on the deep fryers and threw food into them. They stole a Kelvinator freezer valued at $650, a Samsung microwave valued at $265 and food items including fish, chips, crab sticks and five boxes of bottled soft drinks to a total value of $1,000. The property was taken by trolley a short distance to Newburn's house. The total value of the property stolen was $1,915. The freezer and the microwave were kept at Newburn's house and were eventually recovered by the police.
21 Zreik was arrested on 8 April 2003, he admitted taking the fish and chips but denied breaking in or turning on the fryers or taps. He denied
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- taking the freezer or the microwave. On 10 April 2003 the police searched Newburn's residence and found a box of hake and fish fillets in a freezer. He admitted stealing chips and fish but denied breaking into the shop and turning on the taps and fryers.
22 By his plea of guilty the applicant, Newburn, has admitted all the essential elements of the offence charged. By his counsel, during his plea in mitigation, he admitted stealing the food items, doing some damage and did not deny the other allegations, including turning on the taps and causing damage. A pre-sentence report had been prepared and filed and this recorded that Newburn denied forcing open the door to the shop because he claimed that the door was open and reported that he and the co-offender had committed an unplanned and opportunistic offence. Newburn had denied to the community justice officer that he had removed the freezer or the microwave but, as already noted, it was established that these had been taken to his home immediately after the offence.
23 Counsel for the co-offender, Zreik, made submissions putting forward a different version of events. The submissions made on behalf of Zreik were that on the evening of 20 January 2003 he was telephoned by Newburn and asked to come to Newburn's house to look at some things. He went there at about 11.30 pm and was shown a freezer, a microwave, boxes of food and bottles of soft drink which Newburn offered to sell to him. An agreement was reached that Zreik would buy the freezer for $150 and the microwave for $50, and after that both decided to go back to the fish and chip shop. The two walked to the fish and chip shop nearby and both went in through the back door. According to Zreik the door was open and showed signs that it had been forced. He claims that there was water on the floor. The two then took a box of fish and a bag of chips and some more soft drink. On this version of events it was Newburn who first went to the fish and chip shop, stole the freezer, microwave and some fish and then, later, both returned and together stole further food items. Plainly, both were guilty of aggravated burglary on either version of events.
24 It is evident that the learned sentencing Judge essentially accepted the version of events advanced by counsel for Zreik for his Honour said to him:
"The facts relating to the offence have been outlined to me by the crown prosecutor and through your counsel. Those facts of the events are admitted albeit that your role in the offence in submissions is somewhat of a lesser role than your co-offender
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- and much more diminished in the sense of culpability. I accept what has been said on your part by your counsel in so far as those matters are concerned."
- And when sentencing Newburn his Honour said:
"It's apparent also, from what I have been told, that you were the major instigator of this offending and that your co-accused played a lesser role. Your circumstances and the circumstances of your co-offender are relevant so far as considering parity of sentence in respect of the aggravated burglary is concerned.
In making that comparison your respective circumstances are very much different. As I said, I regard you as being the perpetrator substantially of the aggravated burglary."
26 Newburn was born on 17 May 1980 and was, therefore, aged 22 years and eight months when he committed the burglary. Zreik was born on 24 July 1982 and was aged 20 years and nearly six months at the date of that offence. Newburn had convictions for traffic offences beginning in 1999, a conviction for stealing in 2001 and convictions for damage and receiving in 2002. It was those damage and stealing convictions that led to him being placed on the community based order by Hammond CJDC on 23 August 2002. He failed to comply with the conditions of this order and, as already noted, was brought up for breach of that community based order on 23 July 2003.
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27 The pre-sentence report revealed that Newburn had been born in Sydney of Greek parents and had later changed his surname at the age of 20. His parents divorced in Sydney when he was five years old and he remained with his mother and a younger sister who all moved to Perth to be closer to extended family members. He described having a normal upbringing until about two years before the commission of this offence when his mother established a relationship with another man and, effectively, disowned him after he was arrested and remanded in custody in August 2002.
28 Newburn's personal circumstances, at the date of being sentenced, were that he had been in a stable relationship with another young woman for the previous seven months and, after various different forms of employment, including a period in the Navy which ended with his discharge because of injuries sustained, he had obtained employment from a marketing company. He had been declared bankrupt and had $1,950 outstanding in fines. The offences which had led to the CBO in August 2002 were, he claimed, committed in company with Zreik.
29 The community corrections officer who compiled the pre-sentence report, reported that the applicant had been co-operative but was difficult to engage. He was said to present as a solemn and quiet man with impulsive tendencies and with little insight into his offending behaviour appearing to have gone along with his co-offender. It was said that his recent performance on a community based order did not auger well for his prospects of satisfactorily completing a further order and he was considered to be a marginal candidate for community supervision.
30 Zreik's previous record of offending included convictions in Petty Sessions for summary offences and traffic offences from August 2001 onwards, a conviction for assault in November 2002, driving while under suspension, wilfully misleading a police officer, a second conviction for driving while under suspension, and a third such conviction which led to a sentence of 3 months' imprisonment suspended for 12 months being imposed in March 2003. There was also a fourth conviction for driving while under suspension in May 2003 resulting in another sentence of imprisonment which was also suspended. This was for 12 months but suspended for 12 months. In addition, he had a conviction for attempting to defeat or pervert the course of justice and convictions for other traffic offences.
31 By the time Newburn and Zreik came up for sentence before his Honour Judge Groves there had been a falling out between them and one
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- had obtained a violence restraining order against the other. His Honour proceeded on the footing that the relationship between the two had completely broken down and that in the future neither was likely to be led, or influenced, by the other.
32 Both had significant records of prior offences. Zreik had received two sentences of imprisonment which had each been suspended in March and May 2003 respectively. Newburn committed the burglary offence while he was on the CBO imposed in August 2002 upon his convictions for damage and stealing. It was this latter factor involving his earlier convictions for receiving, damage and possession of stolen goods which his Honour obviously regarded as reflecting more adversely on Newburn's prior conduct because Zreik's prior offences had not involved convictions for stealing or damage. Coupled with the view which his Honour took that Newburn was more culpably involved in the burglary and damage at the fish and chip shop, this was another factor which differentiated the circumstances of the two offenders. Their difference in age was yet another.
33 There is no direct record of the date when Zreik committed his third and fourth offences for driving while under suspension which resulted in the suspended sentences of imprisonment being imposed on him in March and May of 2003 respectively. Accordingly, the preferable approach to the consideration of Zreik's previous record of offending, at the time when he was being sentenced for this aggravated burglary offence in September 2003, would be to treat him as a person who had received two suspended sentences of imprisonment after the commission of the offence of aggravated burglary for which he was about to be sentenced. They are not irrelevant factors, particularly where a comparison of the conduct and record of offending of the applicant Newburn and the co-offender Zreik was being undertaken by the learned sentencing Judge for the purpose of imposing sentences on each of them. They were not expressly identified or addressed in any of the learned sentencing Judge's remarks and this can only lead to the inference that they were overlooked. Therefore it becomes necessary to consider how significant, if at all, was this omission to consider these aspects of Zreik's record of offending when it came to deciding how both he and Newburn should be sentenced on this occasion.
34 If Zreik had committed the third and fourth offences of driving whilst under suspension before committing this aggravated burglary on 20 January 2003 then those would be additional offences which should be considered when deciding what effect should be given to mitigating factors in his favour when being sentenced for the aggravated burglary.
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- If, however, the third and fourth offences of driving while under suspension had been committed after his offence of aggravated burglary then these would need to be considered as part of the behaviour of the offender since the commission of the offence for the purposes of deciding what effect should be given to mitigating factors in his favour when being sentenced.
35 Usually, good character after the commission of an offence or the voluntary disclosure of the commission of other offences may be taken as signs of remorse by the offender and so as justifying a reduction in sentence: D A Thomas, "Principles of Sentencing" 2nd ed (1979) at 217. It is equally well settled that the conduct of an offender after an offence may be taken into consideration, either as conduct mitigating or aggravating the offence - Boney, unreported; CCA of NSW; 22 July 1991 and I Potas, "Sentencing Manual: Law Principles and Practice in New South Wales" (2001) Law Book Co at 298. Similarly, it is observed by Fox and Freiberg, "Sentencing State and Federal Law in Victoria" 2nd ed OUP (1999) at 270 that an offender's character is always at issue in sentencing and that prior criminality can be referred to in the assessment of the offender's general character to demonstrate that his present conduct is no passing lapse, but evidence of a real unwillingness or incapacity to comply with the law.
36 In the present case the evaluation of these considerations is important in order to avoid disparity in the treatment of the two offenders. In this instance the reference to disparity is to that concept of "particular disparity" described by Fox and Freiberg (supra) at 350. In that regard the general rule has been set out by King CJ in R v MacGowan (1986) 42 SASR 580 at 582- 583:
"Where two or more persons are sentenced by the same Judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing Judge."
- The significance of disparity is examined later in these reasons.
37 The comparison of the respective culpabilities of the two offenders undertaken by the learned sentencing Judge in this case has already been described. It is evident that his Honour also had regard to the various
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- personal factors of aggravation and mitigation which he identified for each offender. In this regard, however, the comparison which his Honour undertook has not addressed the two convictions and the imposition of two suspended sentences of imprisonment which Zreik received earlier in 2003. Unfortunately, this has led to a distortion in the process of comparative evaluation of the mitigating factors applying to the two offenders and, as such, to a demonstrable error in this process.
38 At the hearing of the appeal, counsel for the applicant, quite properly and necessarily, accepted that sentences of imprisonment were open to be imposed upon Newburn for these offences, and that the sentences which were imposed could not be said to be excessive having regard to the nature of the offences and the penalties commonly imposed for them by the courts. Rather, the main contention on behalf of the applicant was that there was a substantial disparity in sentencing between the penalties imposed on Newburn, and those imposed on Zreik and, in these circumstances the sentences of imprisonment imposed upon the applicant should have been suspended.
Parity in sentencing
39 Section 401(1)(a) of the Criminal Code provides that when the offence of burglary is committed in circumstances of aggravation the offender is liable to imprisonment for 20 years. This Court has said on many occasions in recent years that the range of sentence imposed for burglary offences has increased in recognition of the prevalence of the offence and the ensuing community concern which gives rise to the need for deterrent factors to be given prominence when sentencing. Examples of this trend can be found in R v Ward (1999) 109 A Crim R 159; Heferen v The Queen (1999) 106 A Crim R 89 and Herbert v The Queen (2003) 27 WAR 330; [2003] WASCA 61.
40 The judgment of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 609-610 is often cited as an explanation of the circumstances in which an appellate court may intervene where there is a complaint of disparity in the sentencing of co-offenders. The learned Chief Justice said:
"The approach to be adopted by a court of criminal appeal when it appears that the sentences imposed on co-offenders exhibited disparity is not always stated in the authorities with complete uniformity … The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should,
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- if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether the sentence, viewed in isolation, were manifestly excessive. … [The provisions of the Criminal Code] are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with the sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal."
41 And, in the later case of Postiglione v The Queen (1997) 189 CLR 295 at 301 and 302, where an appeal was upheld on the grounds of disparity, Dawson and Gaudron JJ, who were among the majority, 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 treated alike but that, if there are relevant differences, due allowance should be made for them: Lowe v The Queen (1984) 154 CLR 606 at 610-611 per Mason J. 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. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe (supra) at 617-618. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen (supra), recognises that equal
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- justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" (Lowe supra at 610, 613 and 623). 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 …"
42 The application of these principles was considered by this Court in Goddard v The Queen (1999) 21 WAR 541 where an appeal by a person sentenced to an effective term of 7 years' imprisonment for offences involving stealing motor vehicles and armed robbery argued that a sentence of 3 years and 6 months imposed on a co-offender for the same offences and other offences in which the appellant was not involved showed disparity and should be reduced. That appeal was dismissed (Pidgeon and Murray JJ with Kennedy J dissenting). Murray J held that a Court of Criminal Appeal is not justified in reducing a sentence passed on an offender unless the exercise of the sentencing discretion has miscarried, or because there is some miscarriage of justice. While acknowledging the existence of the parity principle, Murray J observed that the Court of Criminal Appeal could only intervene if it concluded that it was open to the court below to pass a more lenient sentence or to impose a shorter term of imprisonment and in that case the imposition of an appropriate sentence will limit the extent of intervention possible for the appeal court. Nevertheless, his Honour acknowledged that the parity principle still applies even if the sentence imposed on the co-offender is so lenient as to be outside the range of an appropriate sentencing discretion. But, in that eventuality, the appeal court must observe its obligation to do justice in the instant case and will be confined to the imposition of a sentence which is proportionate to the particular offence. Both Pidgeon and Murray JJ concluded that because the sentence imposed upon Goddard was at the bottom of the range of appropriate sentences it should not be reduced further. By contrast, Kennedy J, in dissent, said at 555:
"… that courts of criminal appeal may intervene in the event of there being a manifest disparity in the sentences imposed upon
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- co-offenders notwithstanding that they regard the sentences imposed upon the applicant as falling within the range of the exercise of a sound discretionary judgment and notwithstanding that they regard the co-offender's sentence as being inadequate. As indicated by Gibbs CJ and Mason J in Lowe's case (supra at 610 and 611 respectively), 'marked disparity' is itself a ground for reducing the more severe sentence, provided, of course, that the disparity is such as to give rise to a justifiable sense of grievance: see also R v MacGowan (1986) 42 SASR 480 at 583, per King CJ. But it does not follow from this that the court will reduce a higher sentence so that it equates in all respects to the sentence imposed on the co-offender. The position was explained by Gleeson CJ when sitting in the Court of Criminal Appeal in New South Wales in R v Reardan (1996) 89 A Crim R 180 at 182. He said:-
'Justice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broad discretionary exercise. This is the discretion of which Gibbs CJ also spoke in Lowe's case: see also R v Cox (1991) 55 A Crim R 396 at 401-402, per Thomas J'."
"The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing Judge and the appellate court required to substitute a sentence which should have been passed by the court at first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender."
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44 I take this to mean that in such a situation the appellate court or the second sentencing Judge is not required to match exactly the leniency of the other sentence, the more so if it be regarded as so lenient as to be outside the range of acceptable sentencing, but should nevertheless consider the application of the parity principle and, if satisfied that it requires resentencing, then impose a more lenient sentence, appropriate to the circumstances, but not so lenient as to match the other inadequate sentence which prompted the comparison.
45 In the present case I consider that the sentence passed upon the co-offender Zreik of placing him on a community based order for a term of 18 months together with 80 hours community work subject to supervision may be regarded as rather lenient, especially in regard to the fact that Zreik had, by then, been sentenced to two other terms of imprisonment both of which had been suspended. The comparative youth of Zreik presumably accounted largely for this disposition. However lenient it may have been, there was no suggestion in any of the submissions for the respondent that the sentence imposed upon Zreik was so lenient as to be outside the scope of the proper exercise of the learned sentencing Judge's discretion. That being the case the sentence which Zreik received must stand as a point of comparison when considering the present applicant's appeal that there is disparity between that and the sentences imposed upon him.
46 There were, indeed, differences between the two offenders. Zreik was two years younger; he had not previously been convicted for offences involving stealing or damage. It is not right to say, however, that he had not been previously convicted for offences involving dishonesty, as submitted by the respondent, because in December 2002 he was convicted of wilfully misleading a police officer and, in January 2003, was convicted of giving a false name and address, both offences involving dishonesty. Accepting that the learned sentencing Judge was entitled to conclude that Zreik's role in the offences committed at the fish shop on the evening of 20 January 2003 was less culpable than the conduct of the applicant, Newburn, it remained the fact that both had unlawfully entered those premises and had actually stolen property from the site.
47 Accepting the explanation given by Zreik, that he learned about the burglary and the theft of the refrigerator, microwave and other property from Newburn at the latter's home and then negotiated with the applicant to buy some of the stolen goods from him, it is still the fact that both then returned to the site, at Newburn's suggestion, to steal further property. Undoubtedly this differentiates the roles of the two offenders, but to my
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- mind only to a small degree because nothing which occurred could point to any exoneration of Zreik, or any disassociation of him, from an involvement in the first entry and theft because his conduct in purchasing some of the stolen property at Newburn's home effectively made him an accessory.
48 The fact that the applicant committed the aggravated burglary while subject to the ISO which had been imposed in August 2002 in the District Court is certainly an aggravating factor but it is not substantially dissimilar to the fact that shortly after this offence Zreik was convicted for offences for which suspended terms of imprisonment were imposed in March and May of 2003.
49 There remains the difference in records between the two offenders which has already been noted and it was the prior offences of stealing and damage which led to Newburn being placed on the ISO. With those in mind it is still the case that Newburn received a sentence of 12 months' imprisonment for this aggravated burglary plus 12 months for the offences which had resulted from the ISO that he breached. Zreik received a CBO for 12 months and so retained his liberty. In these circumstances it does appear to me that there is clearly a disparity in the treatment of the two offenders whose cases and circumstances, while not identical, are not significantly dissimilar. While accepting that the applicant, Newburn, was older and had a rather more serious record I do not accept that those differences would justify a sentence of immediate imprisonment in the applicant's case and a non-custodial disposition in Zreik's case without leaving Newburn with a justifiable sense of grievance that there had not been equality of justice, in the sense explained by the High Court in Postiglione (supra) for their joint commission of the aggravated burglary offence. Nor do I consider that the commission of the aggravated burglary while subject to the CBO rendered Newburn's position markedly dissimilar from the position of Zreik having regard to Zreik's overall record of offending.
50 I do regard the applicant's role as more culpable than Zreik's and, because of his age and the different nature of his prior record of offending, the applicant was a less favourable candidate for leniency than the co-offender. Newburn had never previously been sentenced to imprisonment while Zreik, at the time he was sentenced for this offence, was subject to two prior suspended sentences. I have therefore reached the conclusion that the differences in the circumstances of the offending, the backgrounds and the previous records of these two offenders do not justify the disparity in their treatment, and that the sentence which this
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- applicant received was such as to leave him with a justified sense of grievance.
51 Accordingly I consider that leave to appeal against sentence in this case should be granted and that the appeal should be allowed. Having regard to the existence of factors which show a greater degree of culpability on the applicant than Zreik, I consider that a sentence of imprisonment for the aggravated burglary offence is required in this case, particularly for purposes of general deterrence, but that because of the factors referred to in Dinsdale v The Queen (2000) 200 CLR 321; 115 A Crim R 558 at [85] and by Steytler J in R v Liddington (1997) 18 WAR 394 at 406 that sentence of imprisonment should be suspended. In my view the sentence of 12 months' imprisonment on the charge of aggravated burglary should stand and the sentence of 12 months' imprisonment for breach of the ISO should also stand together with the order that the second sentence be cumulative upon the first but that both sentences should be suspended for a period of 18 months. The choice of this period reflects in part the fact that the applicant has been in custody serving the term originally imposed since 11 September 2003.
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