Pagana v The State of Western Australia
[2012] WASCA 248
•29 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PAGANA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 248
CORAM: McLURE P
MAZZA JA
HEARD: 9 NOVEMBER 2012
DELIVERED : 29 NOVEMBER 2012
FILE NO/S: CACR 192 of 2012
BETWEEN: NATHAN ANTHONY PAGANA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 1064 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Assault occasioning bodily harm - Unlawful wounding - Whether parity principle breached
Legislation:
Nil
Result:
Application for an extension of time refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Kaschull v The State of Western Australia [2012] WASCA 245
McLURE P: I agree with Mazza JA.
MAZZA JA: This is an application for an extension of time and for leave to appeal against sentence. The sole ground of appeal alleges an infringement of the parity principle.
The appeal was filed four and a half months out of time. The explanation for this delay contained in the appellant's solicitor's affidavit is unsatisfactory. The merits of the application for an extension of time will depend upon the merits of the application for leave to appeal.
On 27 February 2012 the appellant was convicted, after a trial before Sweeney DCJ and a jury, of assault occasioning bodily harm on Darren Bond (count 1), assault occasioning bodily harm on Nathan Casey (count 2), and unlawfully wounding Rory Smithers (count 3).
On 23 March 2012 her Honour sentenced the appellant to a total effective sentence of 3 years and 6 months' imprisonment with eligibility for parole. He was sentenced to 2 years' imprisonment on count 1, 18 months' imprisonment on count 2 (reduced from 2 years' imprisonment to reflect the totality principle), and 18 months imprisonment on count 3. Her Honour ordered that the sentences on counts 1 and 2 be served cumulatively and that the sentence on count 3 be served concurrently.
A co‑offender, Aaron David Kaschull, was charged with the same offences as the appellant. However, he pleaded guilty and was, on 8 June 2012, sentenced by a different judge, McCann DCJ. He received a total effective sentence of 14 months' imprisonment. He was sentenced to 14 months' imprisonment on count 1, 12 months' imprisonment on count 2, and 6 months' imprisonment on count 3. McCann DCJ ordered that these sentences be served concurrently.
Mr Kaschull also appealed against his sentence on (inter alia) in substance the same ground as the appellant. His application for leave to appeal was heard by Buss JA and me on 24 October 2012. We refused leave to appeal for the reasons set out in Kaschull v The State of Western Australia [2012] WASCA 245. These reasons should be read in conjunction with those reasons.
The relevant appellate legal principles are set out between [11] ‑ [12] in Kaschull. The parity principle is explained at [46] in that case.
The facts upon which the appellant and Mr Kaschull were sentenced were different. Sweeney DCJ's findings of fact and the description of the appellant's antecedents are contained in [13] ‑ [26] in Kaschull.
The facts upon which Mr Kaschull was sentenced and his antecedents are contained between [27] ‑ [32] in Kaschull. As noted in that case at [28], the State agreed that Mr Kaschull, who pleaded guilty, should be sentenced on a version of events which Sweeney DCJ noted contradicted significant aspects of the evidence lead by the State at the appellant's trial. Why the State agreed to that course is unclear and, on its face, difficult to justify. The consequence of this undesirable course is that the issue of parity is to be determined by reference to the facts found by Sweeney DCJ in relation to the appellant's involvement in the offending and those found by McCann DCJ in relation to the co‑offender, Kaschull.
Was the parity principle infringed in this case?
Mr Watters did not challenge the individual sentences imposed upon the appellant. He submitted that there was no marked difference in the culpabilities and antecedents of the appellant and Mr Kaschull. He contended that the only significant difference in favour of Mr Kaschull was that, unlike the appellant, he pleaded guilty. This difference, Mr Watters argued, did not justify the significant disparity in the sentences imposed on the offenders. He submitted that the total effective sentence imposed upon the appellant should be reduced.
I do not accept the submission that there was no marked difference in the culpabilities of the appellant and Mr Kaschull. The appellant was the ringleader. It was he who wanted to find out if his former girlfriend was at Mr Bond's house. Despite it being made abundantly clear to him that his presence there was unwanted, he organised, or caused to be organised, the group of men who eventually went to Mr Bond's house. Although the appellant was not armed, he knew the others were. As her Honour found, violence was obviously going to happen. It was within the appellant's power to stop what was bound to occur but he chose not to do so in the hope that any confrontation would act as a distraction while he found out if his former girlfriend was there (ts 5). Moreover, the appellant had involved himself directly in the attack on Mr Bond.
Mr Kaschull struck the first blow upon Mr Bond. He was sentenced, fortunately, on the basis that was all he did. Mr Kaschull was not an organiser of the attack. His role in it was significantly less than the appellant's.
The appellant fled the scene and did not render assistance to those who were injured. When he returned to Mr Bond's house, he misled police as to his involvement and gave a false name. Later, when he was interviewed, he falsely sought to blame others. On the other hand, Mr Kaschull made admissions to police and assumed responsibility for his actions.
In light of these circumstances, the appellant's culpability was unquestionably greater than Mr Kaschull's. Having regard to this and the fact that the appellant did not have the advantage that Mr Kaschull had of pleading guilty, the total effective sentence imposed upon the appellant had to be significantly longer than that imposed on Mr Kaschull. The disparity of 2 years and 4 months' imprisonment was a fair reflection of the difference in the two cases.
The appellant has no reasonable grounds upon which to assert a justifiable sense of grievance because of the different sentence that was imposed upon his co‑offender. The proposed ground of appeal has no merit and leave to appeal should not be granted.
As the appeal has no merit there is no point in extending the time for the appeal to be filed.
I would make the following orders:
1.The application for an extension of time is refused.
2.The appeal is dismissed.
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