Puls v The Queen - [2000] WASCA 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PULS -v- THE QUEEN [2000] WASCA 11

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 1 NOVEMBER 1999

DELIVERED : 4 FEBRUARY 2000

FILE NO/S: CCA 167 of 1999

BETWEEN: BRENTON RYAN PULS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Three offences of armed robbery in company and one offence of attempted armed robbery in company - Aggregate term of 7-1/2 years imprisonment imposed - Co-offender sentenced to ISO for 2 years and 80 hours community service - Whether sentence of imprisonment should be reduced on ground of disparity

Legislation:

Nil

Result:

Extension of time to appeal refused.

Representation:

Counsel:

Applicant: Mr M T Trowell
Respondent: Mr R E Cock QC & Ms J Andretich

Solicitors:

Applicant: Curt Hofmann & Co
Respondent: State Director of Public Prosecutions

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

Gavin v The Queen (1992) 6 WAR 195
Goddard v The Queen [1999] WASCA 281
Miles v The Queen (1997) 17 WAR 518

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
Calder v The Queen, unreported; CCA SCt of WA; Library No 960534; 11 September 1996
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Fyfe & Ors v The Queen [1998] WASCA 59
Henry (1999) NSW CCA 111
House v The King (1936) 55 CLR 499
Lowe v R (1984) 154 CLR 606
Manyam v The Queen, unreported; CCA SCt of WA; Library No 970644; 26 November 1997
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997
Nguyen v The Queen; Tran v The Queen [1999] WASCA 54
Postiglione v R (1997) 71 ALJR 875
R v Greenwood, unreported; CCA SCt of WA; Library No 960277; 21 May 1996
R v McAndrew [1999] WASCA 124
R v Peterson [1984] WAR 329
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 8 February 1999
Urquhart v The Queen, unreported; CCA SCt of WA; Library No 95.0484; 13 September 1995
Veen v R (No 2) (1988) 33 A Crim R 230
Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996
Weng Keong Chan (1989) 38 A Crim R 337

PIDGEON J: I agree with the reasons of Murray J and for those reasons I would refuse leave to appeal.
The circumstances surrounding the co‑offender were different. The Judge who sentenced the applicant was aware of those circumstances and referred to them. He was of the view that the applicant must be dealt with on a different basis. It could not be said that the applicant was suffering a sense of grievance.
WALLWORK J: I agree with the reasons for judgment of Murray J and to the order proposed by his Honour.
MURRAY J: This is an application for an extension of time to seek leave to appeal against sentence. The applicant was sentenced for three offences of armed robbery in company and one offence of attempted armed robbery in company on 25 June 1999. Under the Criminal Code(WA), s 695, the applicant had 21 days in which to make his application for leave to appeal. The application should therefore have been made by 16 July. It is in fact dated 25 August. The extension of time required is therefore approximately six weeks.
In an affidavit supporting the application for an extension of time, the applicant's solicitor deposes that he received instructions on 6 July to seek an opinion from senior counsel on the question of an appeal against the severity of sentence. Whilst senior counsel was so instructed on 9 July, the applicant's solicitors did not receive the funds necessary to enable payment for the opinion until 23 July, after time had expired. The opinion having been received, instructions to make the application for leave were finally given to the solicitors on 16 August.
In my opinion that account provides no satisfactory explanation for the delay which occurred, which appears to be substantially referable to the delay in giving instructions and providing funds. It is therefore the case that unless the applicant can demonstrate that a miscarriage of justice will be left unaddressed unless leave is granted, the extension of time would be refused: Gavin v The Queen (1992) 6 WAR 195.
The proposed application for leave as initially formulated contained two grounds of appeal. The first contended that the aggregate term of imprisonment imposed upon the applicant was manifestly excessive in all the circumstances. This ground was (properly in my opinion) abandoned by counsel at the hearing of the application. The remaining ground upon which the application was pursued was that the learned sentencing Judge,

Heenan J, should have reduced the sentences of imprisonment he imposed on the ground of disparity between those sentences and an intensive supervision order for a period of two years with an additional requirement for 80 hours community service imposed upon the co‑offender, one Flynn, by a different Judge of this Court on 9 April 1999.

The applicant was sentenced to 7‑1/2 years imprisonment to be served concurrently for each of the three offences of armed robbery in company of which he was convicted upon his plea of guilty. For the offence of attempted armed robbery in company, he was sentenced to 4 years imprisonment, again to be served concurrently. Completed offences of armed robbery in company are punishable by life imprisonment under the Code, s 393. The offence of attempted armed robbery in company is punishable by 14 years imprisonment under the Code, s 554(a).
The law as to the application of what has come to be called the parity principle has been very recently stated by this Court in Goddard v The Queen [1999] WASCA 281 which was delivered on 17 December 1999. It is sufficient for present purposes for me to repeat what I said in that case after reviewing relevant authorities, at [58] ‑ [61]:
"In the result therefore, it seems to me that the law is that the parity principle as formulated by the High Court in Lowe is to be regarded by a sentencing Judge as part of the final process, which includes consideration of the totality principle, of checking that as an exercise of discretion, the sentence imposed is in all the circumstances just. The principle always applies where a sentence has been imposed upon a co‑offender for the same offence or group of offences. It is a similar consideration to that which causes a sentencing Judge to seek consistency between the sentence imposed in the instant case and that imposed by other Judges upon like offenders.
In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co‑offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which may be passed for the offence before the court.
For the appellate court the principle is of equal importance. Such a court, appreciating that it is dealing with an exercise of judicial discretion by the sentencing Judge, will test whether that process has miscarried inter alia by reference to the parity principle, but again, whether that leads to a sentence being quashed and substituted by one passed by the appellate court involves an act of discretionary judgment.
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. That is the dictate of the common law now enshrined in this State in the Sentencing Act 1995 (WA) s 6(1) which provides that 'a sentence imposed on an offender must be commensurate with the seriousness of the offence' determined as the section goes on to provide. In that case, the proper application of the parity principle will lead the court making the comparison with the earlier sentence to impose a sentence which is as close to the previous sentence as may be achieved without error on its part."
So the question is whether the justice of the case in all the circumstances requires that the sentence or sentences under consideration should be reduced as far as may be without compounding sentencing error so as to reduce apparent disparity as far as may properly be done. But it is important to remember the limit of the power of the sentencing Judge who feels that he or she must impose the more severe penalty and of the appellate court reviewing the whole exercise. It is often said that disparity should be corrected so far as possible where, in an objective sense, there is a justified sense of grievance which the offender receiving the more severe sentence may have. But where the more lenient sentence falls outside the permissible exercise of sentencing discretion the disparity may not be entirely removed or indeed, on occasions, removed at all. The second Judge is not required to impose a second wrong sentence. In such a case it may be said that the sense of grievance which may be held cannot properly be about the severity of the more severe sentence, to justify its reduction, but about the leniency of the sentence which is not before the court.
In this case the applicant was sentenced after the co‑offender, Flynn, and there was much debate before Heenan J about the question of parity. Both counsel then accepted, as did both counsel before us, that Flynn had been dealt with extreme leniency. The learned sentencing Judge expressed the view that the issue of parity would not "favour" the applicant. By that I think his Honour meant that he could not bring himself to dispose of the applicant's case in the way that Flynn had been dealt with. Further, his Honour may have been shortly expressing the view, correctly as a matter of law, that whilst he would reduce his sentence as far as he thought was properly open to him, he would not go further and use the question of parity to justify an inappropriately lenient disposition. Of course the concession now made is that the sentences imposed by his Honour were perfectly proper and within the range of sentencing discretion which was open. The question is whether they may be reduced further to reduce the disparity without taking them outside that range of appropriately proportionate sentences.
I can do no better by way of a statement of the facts of the case so far as the applicant was concerned than to repeat the relevant part of the sentencing remarks of Heenan J:
"In or about October 1998, shortly after being released from prison, you went to live with a man named Flynn and his girlfriend in a house at Willetton. All three of you were heroin addicts. On the late afternoon of Tuesday, 8 December 1998, within a month after your parole had expired, you and Flynn drove in his panel van to a hairdresser's salon in Bull Creek. After parking nearby the two of you went inside. You were carrying a knife and Flynn was carrying a torch. By threatening a female employee with your knife you got her to open the cash register. After you had taken about $600 from it both of you ran out of the shop.
At about 2 o'clock on the afternoon of Friday, 11 December you and another man, not Flynn, went to a hairdresser's salon at Riverton. You held a knife to the stomach of a 16‑year‑old apprentice hairdresser, got her to open the cash register, and took about $150 in cash from it. Then the two of you walked out.
Shortly after midday on Saturday, 19 December you and Flynn again went in his vehicle to a hairdresser's salon in Willetton. Each of you was carrying a knife. You threatened the proprietor with your knife by holding it to her stomach and told her to give you money. She told you to get out and walked to the back of the shop. You tried to open the cash register but were unable to do so. She continued to tell you to get out and eventually you left empty handed.
About an hour later that same day you and Flynn went into a supermarket in Kardinya. Having selected a bottle of choc milk you went to the checkout nearest the door and tendered some money to the young girl there. When she opened the cash register you threatened her with an extendable baton and Flynn took about $500 in cash. Then you both left in a motor vehicle. You, Flynn and his girlfriend divided the money which you had obtained from the robberies on 8 and 9 December and bought drugs with it.
On the morning of Wednesday, 14 January last police officers went to where Flynn was living. They were looking for you, but he admitted his role in the three offences which he had committed with you and they arrested him. By then you had moved to your mother's home unit in Shelley. Police officers arrested you the same morning and took you to the detectives' office. There you were interviewed on videotape but as the film shows you denied being implicated in any of the offences. Nevertheless, the officers arrested you."
As to the applicant's antecedents, his Honour had the benefit of a pre‑sentence report. The applicant was aged 24 when he came to be sentenced. He had a long criminal history, commencing in the Children's Court in 1986 when he was aged 12. As his Honour remarked, the only previous term of imprisonment imposed upon the applicant was one of 12 months imposed in March 1998 for two charges of assault in respect of which he had breached a probation order made in September 1996. Apart from that breach of probation he had been dealt with on other occasions for breaching probation and for breach of bail. The nature of the record well merited the observation of his Honour that:
"One of the more significant features of your criminal record is your failure to take advantage of the opportunities which the courts have given you in the past to comply with orders enabling your supervision within the community."
Nonetheless the pre‑sentence report recommended an order of eligibility for parole if a prison sentence was imposed and his Honour took that course, despite the applicant's previous poor performance on probation and his commission of the offences before the court very shortly after completing service of a period on parole.
Heenan J noted the applicant's unhappy family circumstances and that for practically all of his teenage years he used cannabis, amphetamines and LSD. He commenced to abuse alcohol and at about the age of 22 he used heroin and rapidly became addicted. These offences, his Honour accepted, were committed in order to support the heroin addiction which he seems to have endeavoured to combat on occasions by engaging in the naltrexone programme. By the time he came to be sentenced he had detoxified while on remand.
The pre‑sentence report commented that the applicant had little empathy for the victims of the crimes he committed, but he was annoyed with himself because he took the view that he had allowed himself to be led by his co‑offender and that person's girlfriend into participating. Knowing the way in which Flynn's case had been disposed of, he felt "hard done by" and attributed that to his previous criminal record. The reporting officer commented that the likelihood of the applicant reoffending would depend upon such matters as refraining from drug use, obtaining employment, gaining a positive support network and obtaining stable accommodation. It was suggested that the applicant complete "substance abuse counselling" and a "skills training for aggression control course" in prison.
The remarks made by the Judge reveal that he had a lively appreciation of the seriousness of the offences before the court and that there was little to be said for the applicant in mitigation. His Honour commented upon the pleas of guilty which, as I have said, were entered first in the Court of Petty Sessions on the election date and which were repeated before this Court. His Honour said that having denied that he was implicated in these offences when he was interviewed by the police, the applicant delayed making the pleas of guilty "until, when the police had completed their investigations, you were satisfied that the prosecution case was so strong that to plead guilty was the only realistic choice."
In that sense, his Honour was justified in the observation that the pleas of guilty "have come late". The circumstances were such that their mitigatory power was much reduced, although his Honour allowed the pleas some effect in that way, upon the ground that they had relieved the community of the expense of a trial and the victims and other witnesses of the necessity to give evidence. His Honour said that upon that account he was prepared to reduce the sentences which he would have otherwise imposed by a period of 18 months.
His Honour was made aware of the circumstances of Flynn's case which led to the imposition upon him of an intensive supervision order for a period of 2 years together with 80 hours community service and an order to pay compensation of $600 to the owner of the hairdressing salon in Bullcreek where the robbery was successful, and $500 to the owner of the supermarket in Kardinya where again, the robbery was successful. In other words, Flynn had been ordered to make good the court's best estimate of the whole of the financial loss sustained by the victims of those offences, although that could not of course compensate for the trauma suffered personally by those employees who were directly subjected to the commission of the offences.
Heenan J explained that the Judge who dealt with Flynn did so upon the basis that the applicant was the leading offender who had involved Flynn in participating in the commission of the offences. He accepted that Flynn's offending had not been premeditated to any great extent. Flynn had no prior convictions except for a relatively few traffic offences and of course he was to be dealt with in this Court for two completed offences of armed robbery and one attempted armed robbery.
It was noted that Flynn was apprehended when he gave himself up to the police when they came to his place of residence looking for the applicant. Flynn confessed his part at that stage, but did not name the applicant until later when he agreed to cooperate with the prosecuting authorities, not only by naming the applicant, but by giving evidence against him if required. As the Judge said when dealing with Flynn, that was a significant mitigating factor.
Flynn had a solid employment record following his trade as a plumber. He had permanent employment available to him when he came to be sentenced. In addition, by then he had voluntarily participated in the naltrexone programme and had incurred a substantial debt in so doing. The doctor conducting that programme had written to the Judge urging that Flynn should not be imprisoned. He had substantial support from his defacto wife and the Judge thought that, perhaps for the first time, with support in the community, it could be said that it was unlikely that Flynn would offend again.
I have read the remarks made by the Judge who sentenced Flynn. They show that his Honour approached the task thoughtfully, paying careful attention to the relevant sentencing principles and understanding that it was only in an exceptional case that imprisonment for armed robbery offences could be avoided. His Honour thought that Flynn's case was "very much a borderline case" in that regard but, in the end, he concluded that he was able to properly serve the objects of the imposition of sentence without sending Flynn to prison for the first time. It is clear that had it not been for the undertaking to provide such assistance as was within his power to the law enforcement authorities, his Honour would have felt compelled to imprison Flynn.

On the other hand, the intensive supervision order enabled additional controls to be placed upon Flynn in the community and it was conditioned upon Flynn's satisfactory continuance with, and completion of, the naltrexone programme. In addition, as has been seen, his Honour required Flynn to make reparation to the community by the performance of community service in accordance with the directions of his community corrections officer, and he was required to pay compensation to the victims of the offences. That combination of orders his Honour thought:
"…is likely to result in a far more satisfactory outcome for the community than sending you to prison, where I think you would be less likely to regain your self‑respect and more likely to reoffend in the long run. It seems to me that it is better for the community to have you as a valuable member earning a living, paying taxes and supporting your family, rather than languishing in prison. The sentence I think protects the community. It punishes you and enables you to repay your debt to society by doing unpaid work."
In addition, of course, he had to make some reparation to the victims of the offences.
Whether that be a supportable sentencing disposition in Flynn's case or whether it revealed excessive leniency is, of course, not presently to the point. What is to the point is that Heenan J was well aware of, and recounted to the applicant, the significant elements of Flynn's case before making the observation that the case of the applicant presented itself in quite a different light. That was undoubtedly correct. It appears that the applicant was the instigator of the offences and he was to be sentenced for one more offence than was Flynn. The applicant appears to have played rather a leading role in the actual commission of the offences.
While there is only two years difference in their ages, the applicant has a more significant criminal history. He had been imprisoned before, he had performed poorly on probation and he had reoffended very shortly after completing a period of parole. He had thus far been ineffective in dealing with the personal issue of substance abuse which was clearly very directly related to his offending and placed a considerable question mark over his capacity to rehabilitate himself. He had not behaved in the same way towards the authorities as had Flynn and he had not the significant advantage of Flynn's promise to aid the law enforcement authorities by implicating the applicant. It is clear that Flynn's situation and support in the community placed him in a much more favourable light.
Given that the applicant was to be imprisoned, it is to be noted that he was to be sentenced for a number of offences committed over a relatively short period of time. They were very serious offences having regard to the punishments available and to the circumstances of their commission, involving "soft" targets where the victims were in a vulnerable position. One of the shop assistants threatened by the applicant with a knife was only 16. The applicant was armed with a significant weapon and there was at least a real threat of actual violence. The traumatic effect upon the victims of the commission of such offences is well understood, although relatively small amounts of money may be taken. Really the only significant matters of mitigation were the pleas of guilty, and their mitigatory power was limited by the fact that they were made in the face of an appreciation that the applicant faced a strong prosecution case. They do not appear to have reflected sincere remorse for the commission of the offences.
Sentences for armed robbery have been firmed up of recent times in an endeavour to combat the increasing prevalence of the offence, particularly committed in circumstances such as those in this case. For a single offence, depending upon the circumstances, a standard range of punishment would be 6 to 9 years imprisonment: Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521 and White J at 522. Here there were three such offences and an attempt in addition, an attempt which only failed because of the firmness of the proprietor of the hairdressing salon, despite the fact that she was threatened by the applicant holding his knife to her stomach. As the victim of the offence would not cooperate by opening the till and the applicant could not do so, the offenders left empty handed, but in my opinion there is little to distinguish this offence from the completed offences of robbery. That this attempt was not successful was truly fortuitous.
His Honour makes it clear by his remarks that had it not been for the pleas of guilty, he would have sentenced the applicant to 9 years imprisonment, at least in aggregate. The deduction of 18 months for the pleas of guilty resulted in the individual sentences of 7‑1/2 years imprisonment. They were all ordered to be served concurrently with each other and with the sentence of 4 years imprisonment imposed for the attempted armed robbery. So it is right I think that it be inferred that had the pleas of guilty not been tendered, his Honour would have imposed sentences of 9 years imprisonment for each of the completed armed robberies. It is clear that the sentences were permitted to run concurrently having regard to the need to keep the total effect of what was done at a proportionate level, as well, I think, as to have regard to the need to reduce as far as possible the disparity between his Honour's sentences and the orders made in Flynn's case.
The simple question for this Court really is whether his Honour should have done more in that regard, given that, despite the numerous differences between the cases of the applicant and Flynn, the disparity in treatment is very considerable. After anxious consideration, I have come to the view that the sentences imposed by his Honour upon the applicant are entirely appropriate within the range of sentencing discretion and there was no room for some further reduction on parity grounds. His Honour was aware of the issue and did all he could to minimise any perception of disparity.