Pollock v The State of Western Australia
[2004] WASCA 280
•25 NOVEMBER 2004
POLLOCK -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 280
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 280 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/2004 | 20 SEPTEMBER 2004 | |
| Coram: | MURRAY J TEMPLEMAN J MILLER J | 25/11/04 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentence reduced from 12 years to 10 years | ||
| B | |||
| PDF Version |
| Parties: | SEAN FRANCIS POLLOCK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Aggravated burglary, deprivation of liberty and aggravated armed robbery Additional matters under s 32 notice Breach of community based order imposed for five counts of burglary Total sentence of 12 years' imprisonment Whether sentence of 10 years' imprisonment for aggravated armed robbery manifestly excessive Whether sentence in parity with that imposed upon cooffender Whether sentences for breach of community order took into account all relevant considerations |
Legislation: | Nil |
Case References: | Bensegger v R [1979] WAR 65 Herbert v R [2003] WASCA 61 Postiglione v R (1997) 189 CLR 295 R v Crutch [1999] WASCA 187 Wale v R [2001] WASCA 418 Angeleski v R [2003] WASCA 209 Bastian v R [2000] WASCA 310 Connolly v R [2000] WASCA 74 Eldrige v R [2000] WASCA 41 Jarvis v R (1993) 20 WAR 201 Johnston v R, unreported; CCA SCt of WA; Library No 960153C; 22 March 1996 Lowe v R (1984) 154 CLR 606 Lowndes v R (1999) 195 CLR 665 McKeagg v R [2001] WASCA 99 Miles v R (1997) 17 WAR 518 Pieri v R [2001] WASCA 357 Pratt v R [2000] WASCA 110 R v Catts [1996] 85 A Crim R 171 R v Grein [1989] WAR 178 R v Tait (1979) 46 FLR 386 R v Tiddy [1969] SASR 575 Veen v R [No 2] (1988) 164 CLR 465 R v Wroblewski (1999) 105 A Crim R 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : POLLOCK -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 280 CORAM : MURRAY J
- TEMPLEMAN J
MILLER J
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
Citation : SEAN FRANCIS POLLOCK v THE QUEEN
File No : INS 213 of 2003
Catchwords:
Criminal law - Sentencing - Aggravated burglary, deprivation of liberty and aggravated armed robbery - Additional matters under s 32 notice - Breach of
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community based order imposed for five counts of burglary - Total sentence of 12 years' imprisonment - Whether sentence of 10 years' imprisonment for aggravated armed robbery manifestly excessive - Whether sentence in parity with that imposed upon cooffender - Whether sentences for breach of community order took into account all relevant considerations
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Sentence reduced from 12 years to 10 years
Category: B
Representation:
Counsel:
Applicant : Ms L Boston
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Lisa Boston
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bensegger v R [1979] WAR 65
Herbert v R [2003] WASCA 61
Postiglione v R (1997) 189 CLR 295
R v Crutch [1999] WASCA 187
Wale v R [2001] WASCA 418
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Case(s) also cited:
Angeleski v R [2003] WASCA 209
Bastian v R [2000] WASCA 310
Connolly v R [2000] WASCA 74
Eldrige v R [2000] WASCA 41
Jarvis v R (1993) 20 WAR 201
Johnston v R, unreported; CCA SCt of WA; Library No 960153C; 22 March 1996
Lowe v R (1984) 154 CLR 606
Lowndes v R (1999) 195 CLR 665
McKeagg v R [2001] WASCA 99
Miles v R (1997) 17 WAR 518
Pieri v R [2001] WASCA 357
Pratt v R [2000] WASCA 110
R v Catts [1996] 85 A Crim R 171
R v Grein [1989] WAR 178
R v Tait (1979) 46 FLR 386
R v Tiddy [1969] SASR 575
Veen v R [No 2] (1988) 164 CLR 465
R v Wroblewski (1999) 105 A Crim R 129
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1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The applicant was sentenced to a total period of 12 years' imprisonment for a multiplicity of offences the subject of an indictment, a notice under s 32 of the Sentencing Act 1995 and matters the subject of a breach of a community based order.
2 The grounds upon which leave to appeal is sought contend that the sentence imposed in respect of the offence of aggravated armed robbery was manifestly excessive, the overall sentence was manifestly disproportionate to that imposed upon a co-offender and relevant considerations were not taken into account in the sentencing for the breach of the community based order.
3 The applicant pleaded guilty in the Court of Petty Sessions, Perth, on 25 August 2003 to all the offences in question. The pleas of guilty were "fast-track pleas". The applicant was remanded to the Supreme Court sittings commencing 1 October 2003 and came before Roberts-Smith J on 2 December 2003 when he entered pleas of guilty to all offences. He was remanded and sentenced on 27 January 2004.
4 It is convenient to adopt the following table from the submissions of counsel for the applicant which reveals the sentences imposed and how they were structured:
The matters the subject of the indictment
All counts on indictment were ordered to run concurrently with each other
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All offences the subject of the s 32 notice were ordered to be served concurrently and concurrently upon the matters the subject of the indictment:
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All offences the subject of the breach were ordered to be served concurrently with each other, but cumulative upon the matters the subject of the indictment:
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5 The grounds of appeal, as amended at the hearing of the appeal, are as follows:
"1. The sentence imposed by learned sentence [sic] Judge in respect to count 4, aggravated armed robbery was manifestly excessive.
2. The learned sentencing Judge imposed a sentence manifestly disproportionate to the sentence imposed on the co-offender, Webster.
3. The learned sentencing Judge failed to take into account relevant considerations when re-sentencing the Applicant for the breaching offences."
Facts
6 The offences the subject of the indictment occurred on 27 June 2003. They reveal a set of offences which could only be categorised as being extremely serious. The offences may not have been the worst of their kind that could be imagined, but they were undoubtedly amongst the worst, and so much so that it can be said at the outset that sentences approaching the maximum for each offence could rightly be considered as the appropriate starting point in the sentencing exercise. The maximum sentence for aggravated burglary is 20 years' imprisonment, the maximum for aggravated armed robbery is life imprisonment, and the maximum for deprivation of liberty is 10 years' imprisonment.
7 As it transpired, the starting point taken by the learned sentencing Judge in relation to each of the offences was under the maximum.
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Nevertheless, it is appropriate to restate the principle expressed by Burt CJ in Bensegger v R [1979] WAR 65 at 68 to the following effect:
"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."
8 The victims the subject of the indictment offences were Raymond Arthur Wood and Luc Leon Marie Joseph Constant. They were respectively 64 and 35 years of age and resided together in Maylands. The applicant was, at the relevant time, 26 years of age and his co-offender, Zoe Webster, 30 years of age. They were in a relationship.
9 The applicant had met Wood in March or April 2003 and formed a friendship with him. They had visited each other's homes. The applicant introduced Webster to Wood and Constant some time in May or June 2003 and the four socialised on a number of occasions.
10 On 10 June 2003 the applicant went to Wood's house late in the evening. He went with the intention of borrowing a torch. Whilst he was there, there was a sexual incident between the two men. This led the applicant to become upset and angry with Wood whom he believed had taken advantage of him due to his intoxication at the time.
11 Some time on the evening of 27 June 2003 the applicant and Webster hatched a plan to go to Wood's house, break in and assault him in retaliation for the sexual encounter that had occurred between Wood and the applicant on 10 June.
12 The applicant and Webster packed a bag with a knife and tape in preparation for the commission of the offence. They took a train from Midland to Maylands and then walked to Wood's home which was on View Street, Maylands. They checked the premises and found that there was nobody at home. The applicant threw a brick through the rear bedroom window with the intention of using that window as a point of
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- entry should he be unable otherwise to get into the house. The applicant and Webster then hid across the road from the house, waiting for somebody to return.
13 About 7.45 pm Constant arrived home. He walked down the driveway of the house to the side kitchen door and was approached by Webster. The applicant then ran down the side of the house and entered it through the smashed window at the rear. This constituted the offence of aggravated burglary, the subject of count 1 on the indictment.
14 Webster persuaded Constant to let her into the house. When they got inside, the applicant entered the room where they were. He and Webster overpowered Constant and tied him to a dining room chair. He was questioned as to when Wood would be arriving home.
15 The applicant and Webster then left Constant tied to a chair and retired to the kitchen where they drank some wine and waited for the arrival of Wood. The tying of Constant to the chair constituted the offence of deprivation of liberty, the subject of count 2 on the indictment.
16 At about 8.45 pm Wood returned home. He entered the house through the front door. As he walked into the kitchen, the applicant grabbed him and put him on a dining room chair and bound him with tape and cord. He was thus deprived of his liberty and this offence was the subject of count 3 on the indictment.
17 The applicant took a large knife from the kitchen and used it to cut the cord from a fan for the purpose of tying Wood to the chair. Webster was also armed with a large kitchen knife. Whilst Wood was tied to the chair, he was kicked and punched in the face and upper body by the applicant. This caused his nose to bleed and caused him substantial pain. He was searched and his car keys and wallet removed. His BankWest ATM card and his Visa card were removed from the wallet and the applicant demanded from Wood that he give the PIN numbers for the cards. Whilst making these demands, the applicant continued to punch Wood in the face and kick him.
18 Wood was unable to supply the PIN to the cards. This led the applicant to stab him in the left thigh area with the knife he had taken from the kitchen. It caused substantial bleeding and pain. Wood was also stabbed to the top of the left foot with the same consequences. A threat was made to Wood that each of his fingers would be cut off one by one until he revealed the PIN. Webster then appeared with a pair of secateurs and told the applicant to cut off Wood's penis with the secateurs. She
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- joined in the assault by striking Wood around the head on a number of occasions. It appears that she, like the applicant, was angry with Wood on account of the sexual encounter that had taken place earlier in the month. He revealed the PIN.
19 The applicant and Webster then walked about the house selecting various items which were put into the bag they had brought with them. These included a computer hard drive, a computer monitor, a quantity of scrimshaw, various ornamental items, a pair of binoculars, two vases and a wristwatch. The total value of the items was in excess of $10,000.
20 The applicant and Webster then left the house through the kitchen door, reversed Wood's vehicle to the door, loaded it with the stolen property and drove to an ATM in Mount Lawley. There the stolen credit cards were used to withdraw $900 from each account.
21 It is unnecessary to relate the facts of the offences the subject of the s 32 notice. No ground of appeal challenges the sentences which were imposed in relation to the offences the subject of that notice, all of which were ordered to be served concurrently with each other and concurrently with the sentences imposed in relation to the offences the subject of the indictment. The burglary offence of which the applicant was convicted under the s 32 notice related to a burglary at Wood's house on 11 June 2003 when the applicant gained entry to a shed at the rear of the house and stole a substantial number of items. This was not an offence in which Webster was involved. Save for the offence of unlawful wounding, all other offences the subject of the s 32 notice were mirrored in offences with which Webster was charged. The offence of unlawful wounding related to the events of the night of 27 June 2003. In relation to that offence the learned sentencing Judge imposed no separate sentence.
22 The matters the subject of the breach of the community service order were all burglaries. They occurred over the period 28 November 2002 to 10 December 2002 and involved, in all but the fifth, burglary entry to residential premises where garden sheds were forced open and substantial quantities of power tools and the like were stolen. The final burglary involved entry to a commercial property in Balcatta where security bars were bent and a window smashed, the building entered and a laminator stolen from it.
Sentencing Comments
23 After recounting the facts of each offence to which the applicant had pleaded guilty, the learned sentencing Judge turned to matters personal to
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- him. After recounting the applicant's family background his Honour made reference to the incident that had occurred at Wood's house earlier in the month of June. He accepted that whatever had occurred sexually between Wood and the applicant, the applicant believed that Wood had taken advantage of him. It appears that Wood had given the applicant $500 as he was leaving the house and the applicant had walked away from the house but fallen asleep in the laneway behind it. When he awoke, he found the cheque in his pocket and this confirmed in his mind what had occurred, leading to the offence of burglary of the property.
24 The learned sentencing Judge accepted that the applicant was unable to disclose the matter of the sexual encounter with Wood to his girlfriend Webster for some days, but ultimately did so. Webster then told the applicant that she wanted to go to Wood's house and confront him. The two then drank a substantial quantity of alcohol and, in an intoxicated state, decided to go to Wood's house.
25 The learned sentencing Judge found that, notwithstanding the applicant's contention that there was no plan to do anything at Wood's house, there was evidence that the applicant and Webster had gone to the house with materials which were intended to restrain whoever might be in the house. He concluded that there was a degree of preparation, although it was not entirely clear why the applicant and Webster actually went there and did what they did.
26 The learned sentencing Judge took into account the applicant's pleas of guilty, in relation to which he said that significant benefit was to be given. He also took into account the applicant's willingness to co-operate with the authorities. His Honour accepted that there was a degree of remorse.
27 The learned sentencing Judge indicated that the applicant was a relatively young man at the age of 26 years. He concluded that alcohol had been a significant problem for the applicant and that it was something the applicant would need to address. Full consideration was given by the learned sentencing Judge to the pre-sentence report, psychiatric report and psychological report provided to the Court.
28 The learned sentencing Judge had regard to the victim impact statements of Wood and Constant and noted that they had suffered an "horrific experience" which was likely to have long-term psychological, if not physical, effects. In this respect, Wood suffered a broken nose which left him with difficulties breathing and required medical treatment. He
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- had other injuries, including damage to his mouth and lower gums, requiring dental repair, and he had suffered considerable emotional trauma. Constant had suffered in a similar manner. He suffered physical injuries after having been restrained for approximately three hours and he suffered psychological effects, including fear, helplessness, loss of control and fear of further crime.
29 In imposing sentence, the learned sentencing Judge considered that a deterrent sentence was of importance. Deterrence was required both in relation to the applicant and others. However, factors said to be in the applicant's favour included his co-operation with police, his early pleas of guilty, his age, absence of any prior convictions for offences of the same degree of seriousness and his genuine remorse. The discount on the sentence for the fast-track plea of guilty was fixed at 30 per cent.
30 In sentencing the applicant for the aggravated armed robbery, the learned sentencing Judge described the offence as a "particularly serious case of its kind. It is one of the worst". We are of the opinion that this was a correct description of it.
31 His Honour would have imposed a sentence of 15 years in respect of that offence, but reduced it, having regard to the new sentencing regime, to one of 10 years' imprisonment.
32 The sentences for the breach of community based orders would have been 3 years' imprisonment, but were reduced by reason of the new sentencing regime to sentences of 2 years' imprisonment in each case.
33 The sentences for the indictable offences were all ordered to be served concurrently and likewise the sentences for breach of the community based orders. They, however, were to be served cumulatively on the matters the subject of the indictment. The overall sentence, thus, resulted in an effective 12 years' imprisonment.
Ground 1
34 This ground contends that the sentence of 10 years' imprisonment for aggravated armed robbery was manifestly excessive. It is pointed out that if the learned sentencing Judge allowed a 30 per cent reduction for the fast-track plea of guilty, he must have considered under the old sentencing regime that the effective starting point for the sentence was 21.4 years. Seventy per cent of that figure gives 14.98 or 15 years which was the effective sentence imposed for the offence of aggravated armed robbery in terms of the old sentencing legislation.
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35 Counsel for the applicant submitted that the starting point for the sentence was so excessive as to manifest error. She submitted that a sentence of between 7 to 9 years' imprisonment under the old regime or 4⅔ years' - 6 years' imprisonment under the new regime were within the appropriate range applicable to this case. Numerous cases were referred to. They were all decisions of the Court of Criminal Appeal and involved armed robbery or aggravated armed robbery offences of an entirely different type to the offence committed by the applicant. Some of these cases revealed that sentences of up to 18 years' imprisonment had been imposed for multiple armed robberies. For example, in R v Crutch [1999] WASCA 187 a 30-year-old offender with a bad record who had offended whilst on parole was sentenced to 18 years' imprisonment for 10 armed robberies and three attempted armed robberies. In Wale v R [2001] WASCA 418 a 35-year-old offender with a serious prior record was sentenced to 14 years' imprisonment for eight armed robberies and one robbery. These were robberies which had been committed with a firearm.
36 Counsel for the respondent rightly submitted that it is impossible to compare aggravated armed robbery offences of a "normal" type with the aggravated armed robbery committed by the applicant in this case. Quite simply, there is no basis for comparison.
37 The Court accepts that the offence of aggravated armed robbery committed by the applicant in this case was a particularly serious case of its kind and one of the worst of its type. However, given the applicant's fast-track plea of guilty and the circumstances which led to the commission of the offence, we consider that the sentence of 10 years' imprisonment was in excess of that which should have been imposed. Consideration of all the factors leads us to the view that an appropriate sentence would, in the circumstances, have been 8 years' imprisonment.
Ground 2 - Parity of Sentencing
38 This ground contends that the sentence imposed upon the applicant was manifestly disproportionate to that imposed upon the co-offender Webster.
39 The principle of parity in sentencing is perhaps best expressed by McHugh J in Postiglione v R (1997) 189 CLR 295 at 309 as follows:
"The principle of parity of sentencing between co-offenders is …a well established principle. In R v Tiddy ([1969] SASR 575 at 577), the Court of Criminal Appeal of South Australia defined the principle as follows:
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- 'Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.'
- A sentencing judge must give effect to the parity principle …
If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen ((1984) 154 CLR 606), Gibbs CJ, with whom Wilson J agreed (Lowe (1984) 154 CLR 606 at 616), said (Lowe (1984) 154 CLR 606 at 610) that an appellate court should intervene where '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'. Mason J stated (Lowe (1984) 154 CLR 606 at 613) that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J (Lowe (1984) 154 CLR 606 at 624), with whom Wilson J also agreed (Lowe (1984) 154 CLR 606 at 616), was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice'."
40 Webster was sentenced on 4 May 2004 by Miller J. Prior to the hearing of this appeal counsel were asked whether, in those circumstances, there was any objection to Miller J sitting on the Court. Neither counsel had any objection and the Court does not consider that there is any reason why Miller J should not have participated in the hearing of this appeal.
41 Webster pleaded guilty to almost the same set of offences as the applicant. She was not, however, charged with count 1 on the indictment, nor was she charged with burglary or unlawful wounding on the s 32 notice. She was not the subject of any breach of a community based order. She was sentenced to an effective term of 4 years' imprisonment.
42 It was submitted by counsel for the applicant that, after taking into account differences between the applicant and Webster, the difference in the sentence imposed upon the applicant for aggravated armed robbery (10 years) and that imposed upon Webster (4 years) could not be justified. There was said to be a gross disparity, taking into account a number of factors. They included the fact that Webster was armed with different weapons, including a knife and secateurs; that she had assaulted Wood by
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- punching him to the head; that she had attempted to incite the applicant to cut off Wood's penis; that she had been actively involved in the theft of property from the house; that she had actively encouraged the applicant to attend at the house; and that she had been involved in the pawning of goods and sharing of money from the proceeds of the stolen ATM and Visa cards.
43 When sentencing Webster, Miller J made reference to the facts in similar, but briefer, terms than Roberts-Smith J. His Honour concluded that the offences the subject of the indictment could only be described "as appalling":
"A violent robbery by way of invasion of a person's home, tying up two people in it, beating one of them, and undoubtedly the offences were at the highest end of the scale of armed robberies. That explains why Robert-Smith [sic] J imposed such a severe sentenced [sic] on Pollock."
44 In dealing with matters personal to Webster, Miller J took account of the fact that she was 30 years of age, a single woman with no prior criminal record and that she explained her commission of the offences in the following way:
"Your explanation for the commission of the offences I have heard. It is that you were fearful of ending your relationship with your co-offender; that he had emotionally and physically abused you and you felt compelled to remain in this relationship, and you were concerned about the allegation of sexual assault on him. But none of that excuses any of this.
You were drinking alcohol on the night. I accept that but that doesn't excuse what you did. You have now ended the relationship with the co-offender, of course, as he's a sentenced prisoner, and hopefully it will never resume. The pre-sentence report I have suggests that these offences are a dramatic departure from your previous non offending lifestyle and that's clearly so. You are said to have immersed yourself in religious studies and undertaken individual counselling to address various issues as a result of what has occurred, and that's all to your credit.
The conclusion reached by the writer of the pre-sentence report is that your behaviour is uncharacteristic. It appears to have been significantly influenced by your dysfunctional
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- relationship, poor psychological functioning, and the effects of substances. I'm told that you have expressed empathy for the victims and hope you will be forgiven by them.
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A psychological assessment from Clare Lynn confirms that your behaviour should be understood within the context of dysfunctional relationship skills, poor psychological functioning, and the effect of substances. I'm told that you have invested your time since the commission of the offence in seeking to identify the problems that faceyou and you have the capacity to enter positively into psychological intervention in the future.
I have read all the references which have been provided to me. I notice a lot of them come from religious people. It is obviously significant that you are well regarded within the community."
45 In sentencing, Miller J accepted that Webster had no criminal record, was a young woman, was remorseful and her behaviour appeared to be entirely out of character. Her pleas of guilty at the first reasonable opportunity were taken into account.
46 Miller J said in relation to the sentences imposed upon the applicant:
"I take into account the sentences imposed on Pollock. 12 years effective gaol for those offences. The fact that it's under appeal is of no concern to me at all. That is the sentence imposed by Robert-Smith [sic] J. 12 years' gaol. Admittedly he had a bad record, he was responsible on [sic] a much greater way than you were, he inflicted a great deal more violence, and certainly he was the prime mover. But your penalty must be assessed in some relationship with what he has been sentenced to. This is commonly called the principle of parity of sentencing."
47 The reference to 12 years' imprisonment imposed upon the applicant was a reference to the total term imposed upon him. It was in fact a 10-year term for the matters the subject of the indictment and those the subject of the s 32 notice. The additional 2 years related to the breach of community based orders, a matter irrelevant to the sentencing exercise in relation to Webster.
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48 Given the different circumstances applicable to the applicant and Webster and the decision of this Court to reduce the sentence imposed upon the applicant for aggravated armed robbery from 10 years to 8 years' imprisonment, it cannot be said that there is a lack of parity in the sentence imposed upon Webster. Miller J had put Webster's level of blame "at about one third" of that of the applicant, although stating that this was being favourable to the applicant. As it now appears, the sentence for aggravated armed robbery imposed upon Webster will be one half of that imposed upon the applicant. That, it appears to us, is a proper assessment of the relevant involvement of each of the offenders. It was the applicant who carried out by far the greater proportion of the attack upon the two victims and it is proper that a much greater sentence should be imposed upon him than Webster.
Ground 3
49 This ground contends that the learned sentencing Judge failed to take into account relevant considerations when resentencing the applicant for the breaches of community based orders. In particular, it is said that there were a number of mitigating factors which should have been taken into account. They included the applicant's lack of record of prior convictions at the time of the commission of these offences; his full co-operation with police; his revealing to police where the majority of the stolen property were stored; his taking of police to premises that were burgled, including two where the complainants had no knowledge that the burglaries had occurred. It was also contended that the learned sentencing Judge failed to take account of the fact that the applicant had complied with the supervision requirement of the community based orders prior to their breach and had completed, prior to his incarceration, approximately half of the hours of community work which had been ordered. We do not consider there to be any substance in this ground of appeal. The sentences imposed for the offences of burglary which were the subject of the community based orders were, in each instance, 2 years' imprisonment. Under the old sentencing regime these would have been 3 years' imprisonment. These sentences were lenient, as is revealed by Herbert v R [2003] WASCA 61. There Malcolm CJ at [5] - [7] and Miller J at [170] - [171] made it clear that it was of considerable significance that in 1996 Parliament increased the maximum sentence for burglary from 14 years' to 18 years' imprisonment in consequence of the increasing prevalence of the offence. In light of the increased penalties so provided, it has become necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for the offence of burglary. Sentences of 5 years' imprisonment imposed in the case in
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question were considered to be by no means manifestly excessive. Miller J at [171] said:
"In my view the sentences of 5 years' imprisonment imposed in each of the four cases of burglary of a place of habitation were well within the range of sentences that could have been imposed. In the light of what was said by Malcolm CJ in R v Ward about the need to firm up sentences for the offence of burglary committed on people's homes, it is difficult to see howa sentence of 5 years' imprisonment, representing only a little under 30 per cent of the maximum penalty that could have been imposed, can be said to be manifestly excessive. In my view the sentences of 5 years' imprisonment were well within the range that could have been imposed for each of the offences of burglary and each properly demanded a sentence of that length. The value of the property taken in each instance may have varied, but this was purely fortuitous, as the applicant was clearly determined to steal whatever was there for the taking."
50 The sentences imposed by the learned sentencing Judge upon the applicant for the five offences of burglary which had been the subject of the community based orders were well within a sound discretionary judgment and there is no substance in the third ground of appeal.
Conclusion
51 The applicant should be granted leave to appeal, the appeal allowed on the first ground and the sentence imposed by the learned sentencing Judge for the offence of aggravated armed robbery reduced from 10 years to 8 years. The effective sentence to be served by the applicant will now be one of 10 years' imprisonment, not 12.
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