R v HAYMAN

[2019] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HAYMAN

[2019] SASCFC 72

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

28 June 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

This is an appeal against sentence. The appellant was sentenced for offences committed on 27 November 2017 and 2 December 2017. The 27 November 2017 offending consisted of serious criminal trespass and theft committed when the appellant entered a storage container and took from it a trailer, some paint and some power tools. For this particular offending the appellant was sentenced to imprisonment for three years and four months reduced to two years and four months on account of his pleas of guilty. The sentencing Judge ordered that the sentence for the 27 November 2017 offending be served cumulative on the sentence imposed for the 2 December 2017 offending resulting in an overall sentence of imprisonment for three years and 10 months, in relation to which a non-parole period of two years and four months was fixed.

The appellant committed the offending of 27 November 2017 in company with a Mr Oldfield. Mr Oldfield was also charged but not only with serious criminal trespass and theft. He was also charged with two counts of property damage as a consequence of damage he did to the container. For his 27 November 2017 offending and nine other offences committed on various days, Mr Oldfield was sentenced to imprisonment for 30 months reduced to 21 months on account of his pleas of guilty.

The appellant appealed on the grounds that, applying the parity principle, the difference between his sentence for the 27 November 2017 offending and that of Mr Oldfield’s could not be justified, warranting intervention by this Court to reduce his sentence.

Held: per the Court, allowing the appeal, the difference between the sentence imposed on the appellant for the 27 November 2017 offending and that imposed on Mr Oldfield for his 27 November 2017 offending gives rise to a justifiable sense of grievance. The appellant’s sentence for the 27 November 2017 offending is set aside. In its place is substituted a sentence of imprisonment for two years reduced to one year, four months and 24 days on account of his pleas of guilty. That sentence is to be served cumulative on the sentence imposed for the 2 December 2017 offending resulting in an overall sentence of imprisonment for two years, 10 months and 24 days. A non-parole period of one year and 10 months is fixed. The overall sentence and non-parole period are to be taken to have commenced on 8 December 2017.

Sentencing Act 2017 (SA) ss 10, 26, referred to.
Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Lagana [2012] SASCFC 135; R v Kite (1971) 2 SASR 94; R v MacGowan (1986) 42 SASR 580, considered.

R v HAYMAN
[2019] SASCFC 72

Court of Criminal Appeal:       Nicholson, Lovell and Hinton JJ

1. THE COURT: This is an appeal against sentence. On 26 November 2018 the appellant was sentenced for 11 different offences committed on two dates, 27 November 2017 and 2 December 2017. The appellant does not complain about the sentence imposed for the offences he committed on 2 December 2017. His complaint is confined to the sentence imposed for his offending on 27 November 2017. That offending comprised two offences, serious criminal trespass in a non-residential building and theft. For those offences the sentencing Judge imposed one penalty pursuant to s 26 of the Sentencing Act 2017 (SA), being imprisonment for two years and four months. The appellant committed the November offending in the company of Mr Oldfield who was also charged. Mr Oldfield was sentenced in the Magistrates Court to 21 months’ imprisonment with a non-parole period of nine months for the offending of 27 November 2017[1] and nine other offences committed on various other dates. It is the disparity between the sentences that Mr Oldfield and the appellant received for the 27 November 2017 offending that is in issue in this appeal. The appellant contends that the disparity gives rise to a justifiable sense of grievance and demands that this Court intervene.

   [1]    Mr Oldfield was charged on an Information alleging the relevant offending to have occurred on 25 November 2017. The appellant was charged on an Information alleging the relevant offending to have occurred on 27 November 2017. One of the Informations contains an error as to the date of the offending. It is unnecessary for this Court to resolve the issue. The parties accepted that Mr Oldfield was the appellant’s co-accused and that Mr Oldfield’s 25 November 2017 charges arose out of the same conduct as the appellant’s 27 November 2017 charges. In these reasons we have used the 27 November 2017 date save where we have quoted from the reasons of the Magistrate who sentenced Mr Oldfield.

2. We would allow the appeal. Our reasons follow.

   The appellant’s sentence for the 27 November 2017 offending

3. The appellant pleaded guilty to all 11 offences for which he was sentenced. For the offending of 27 November 2017 he was, on account of his having pleaded guilty, entitled to a discount in his sentence of up to 30%.

4. The sentencing Judge described the circumstances of the appellant’s 27 November 2017 offending as follows:

   … on 27 November 2017, you and your co-offender entered a storage container at North East Road, Windsor Gardens. The storage container was used by the complainant for storage of equipment and supplies for his business. Whilst in that container, you committed the theft by taking a trailer, some paint and various power tools. The estimated value of the stolen items is $8,670.

5. The sentencing Judge summarised the appellant’s personal circumstances as follows:

   … You were born in Terora in New South Wales and are 38 years of age. You were educated to year 7 and left school to work with your father, who was a bricklayer. You have no formal work skills, apart from a Certificate II in Fabrication and Engineering, obtained through the Nowra TAFE.

   Unfortunately for you, you grew up in a household punctuated by episodes of domestic violence at the hands of your father against you, your mother and your siblings. As a result of his violence, you eventually left home and thereafter lived on the streets from the age of 14. You commenced using illicit drugs like cannabis and heroin soon after. Much of your early antecedent history is explicable, in terms of a youth who was forced to live on the streets.

   You have been in a number of relationships and have a number of children from these relationships. One of your children has serious medical issues, which dictate that she will require ongoing care for the rest of her life.

   ...

   At the time of these offences you were, to all intents and purposes, living out of your car. As a result, the car contained all your personal effects …

6. The sentencing Judge referred to the appellant’s explanation for the 27 November 2017 offending; he accompanied a friend, Mr Oldfield, who was going to pick up a mattress. At some point in the course of going to the container the appellant became aware that he was trespassing but nonetheless continued and then, with Mr Oldfield, stole the trailer, paint and tools. The sentencing Judge accepted that the appellant’s offending was “opportunistic and spur-of-the-moment rather than pre-planned”, but nonetheless was serious. As for the appellant’s criminal history, the sentencing Judge remarked that it was “unenviable” and included convictions for dishonesty, violence, drug and driving offences for which the appellant had been fined, had the benefit of bonds and served periods of imprisonment.

7. The sentencing Judge turned to sentence the appellant for the 27 November 2017 offending stating:

   … The offences form part of a single episode of offending. As such, it is appropriate to utilise s 26 of the Sentencing Act and impose a single sentence of imprisonment for both offences. …

   I begin with a single sentence of three years and four months, which is reduced to two years and four months to reflect the discounts for your early pleas.

8. The sentencing Judge rightly observed that the 27 November 2017 offending was a separate incursion into criminality to that of 2 December 2017. Accordingly he ordered that the sentence he imposed for the former be served cumulative upon the sentence he imposed for the latter. The result was an overall sentence of three years and 10 months in relation to which the sentencing Judge fixed a non-parole period of two years and four months. Both the overall sentence and non-parole period were ordered to commence from 8 December 2017, being the date that the appellant was first taken into custody.

   Mr Oldfield’s sentence

Offence Date	Offence	Maximum Penalty
8 October 2017	Dishonestly take property vs s 134 Criminal Law Consolidation Act 1935 (SA)(‘CLCA’).	10 years
20 October 2017	Dishonestly take property vs s 134 CLCA.	10 years
28 October 2017	Dishonestly take property vs s 134 CLCA.	10 years
28 October 2017	Dishonestly take property vs s 134 CLCA.	10 years
2 November 2017	Unlawfully on premises vs s 17(1) of the Summary Offences Act 1953 (SA) (‘SOA’).	2 years (as unlawful purpose was to commit an offence (theft), the penalty for which is a period of imprisonment 2 years or more)
2 November 2017	Dishonestly take property vs s 134 CLCA.	10 years
Between 10 October 2017 and 23 November 2017	Breach Bail vs s 17 of the Bail Act 1985 (SA).	$10,000 or 2 years
23 November 2017	Fail to truly answer vs s 74AB(2)(a) SOA.	$1250 or 3 months
23 November 2017	Drive Unauthorised vs s 74(1) of the Motor Vehicles Act 1959 (SA).	$1250
27 November 2017	Property Damage vs s 85(3) CLCA.	10 years
27 November 2017	Property Damage vs s 85(2) CLCA.	10 years
27 November 2017	Serious criminal trespass vs s 169(1) CLCA.	10 years
27 November 2017	Dishonestly take property vs s 134 CLCA.	10 years

1. On 27 April 2018, Mr Oldfield, who is 44 years of age, was sentenced in the Magistrates Court for the following offences:

2. Mr Oldfield’s offending breached a bond that he entered into on 13 November 2017 after pleading guilty to the offence of theft. The bond was for a period of 12 months. By its breach Mr Oldfield became liable to be sentenced for the theft.

3. The Magistrate who sentenced Mr Oldfield referred to Mr Oldfield’s personal circumstances. He said:

   … You have had a difficult recent time with drugs and poor health, in particular your heart, and the drugs have been the cause of these crimes for which you are now in prison.

   You have had a long term relationship that was described as ‘poisonous’, certainly it was not a happy one. When you are released from custody you will live with your sister and you want to resume your life as a boilermaker. You want to enter rehabilitation programs with DASSA and have counselling. This is consistent with your behaviour in prison. I have two reports, one handed to me today, talking about the fact that you are a keen student in computing classes, that you are polite, and that you are a positive influence on others in the prison system. I also note that your work report from prison is in the same positive terms and I note the certificate provided to me.

4. The Magistrate turned to the circumstances of Mr Oldfield’s offending. He said:

   Your most serious offending is the one on 25 November 2017 and that will be the dominant amount of the notional head sentence. The head sentence will be as follows, in light of all the matters to do with the crimes and, as I said, the volume and seriousness of them, I have come to the conclusion that 30 months is an appropriate notional starting point. I reduce that by 30% to 21 months.

5. In fixing a non-parole period the Magistrate said:

   It seems by the natural situation of you coming off drugs and secondly by what you are achieving in prison in a difficult environment in itself and for which you have had your own difficulties with bullying due to your initial weight size, you have persevered in being as positive as you can be in the most difficult period of your life. I find that is a very good indicator of rehabilitation. Quite frankly you are getting to the age now, of 43, where it is basically the middle of your life and things can be a lot calmer if you get your personal life in order and get back to your ways prior to drugs ruining your life.

   I accept the submissions of Mr Moen about the circumstances of the crimes being committed in a chaotic environment where your memory is basically poor to non-existent about the circumstances of the crimes …

   In the circumstances I find a period of nine months to be an appropriate non-parole period. That allows for 12 months, or a year, on parole in which I am sure you will work effectively with the authorities to continue to improve your life. I also, in coming to that decision, took into account your health situation and the sooner you are able to be treated outside the better.

6. No further penalty was imposed for the breach bond.

7. With the exception of his 27 November 2017 offending, it is unnecessary to recount the circumstances of all of the offences for which the Magistrate sentenced Mr Oldfield save in the briefest terms. On 8 October 2017 he stole a packet of socks, a power bank and two torches from Foodland. On 20 October 2017 he stole 15 USB battery chargers. On 28 October 2017 he stole a mountain bike and an electric-powered bicycle from a bike cage at a block of units at Glenelg. On 2 November 2017 Mr Oldfield unlawfully entered a storage compound at Cavan and stole a trailer worth $3,250 on which was a ride-on lawnmower worth $7,000. Between 10 October 2017 and 23 November 2017 he breached bail by not residing at the address contained in his bail agreement. On 23 November 2017 police stopped Mr Oldfield as he was driving. He did not have a current licence. Lastly, the offending subject of the bond consisted of the theft of an antennae amplifier and some crimping pliers from a hardware store.

8. As mentioned in his reasons, the Magistrate considered Mr Oldfield’s offending on 27 November 2017 the most serious of all the offences for which he was to be sentenced. The apprehension report for the offending of 27 November 2017 details the circumstances of the offending on that occasion in terms little different to the Judge who sentenced the appellant. The two counts of property damage committed on 27 November 2017 to which Mr Oldfield also pleaded guilty and with which the appellant was not charged, concerned damage to a CCTV camera caused by spray painting it, presumably to avoid the camera capturing images of Mr Oldfield and the appellant as they broke into the container or stole things from it, and damage to the container itself.

9. Respectfully, there is an obvious error in the sentence imposed by the Magistrate. The offence of drive unauthorised was not punishable by imprisonment and yet it was included in the overall sentence of imprisonment imposed utilising s 26 of the Sentencing Act 2017 (SA). That error is irrelevant to the disposition of this appeal.

   Submissions in this Court

10. The appellant submits that a comparison of the sentence he received for the 27 November 2017 offending with the sentence Mr Oldfield received for all the offending listed above, including his part in the 27 November 2017 offending, reveals a marked disparity that cannot be justified.

11. In the appellant’s case, the starting point for the 27 November 2017 offending alone was imprisonment for three years and four months (40 months), whilst the starting point in Mr Oldfield’s case for the same offending plus 11 other offences was two years and six months (30 months). Further, of the 30 months the Magistrate said the dominant portion, but not its entirety, related to the offences committed by Mr Oldfield on 27 November 2017.

12. It was submitted that the appellant and Mr Oldfield were approximately the same age, had comparable criminal records and neither was more culpable for the 27 November 2017 offending than the other. Whilst Mr Oldfield had health issues and good prospects of rehabilitation, the appellant had a daughter with serious medical needs and produced a positive report from OARS as to rehabilitative steps he intended to pursue. Further, the appellant is serious in his wish to reunite with his daughters and have them released into his care.

13. In all the circumstances it was submitted that whatever difference did exist, it was not such as to justify the evident disparity in the sentences imposed for the 27 November 2017 offending and left the appellant with a justifiable sense of grievance. In so submitting the appellant also contended that the sentence imposed upon Mr Oldfield was an appropriate sentence, one within the range of discretionary freedom. It could not be said that Mr Oldfield’s sentence was so inadequate that to reduce the appellant’s sentence to ameliorate the disparity would “be an affront to the proper administration of justice”.[2]

    [2]    Green v The Queen (2011) 244 CLR 462 at [33] (French CJ, Crennan and Kiefel JJ);R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986) at 5 (Street CJ).

14. The respondent’s primary submission was that the disparity in sentence could be explained by the fact that the appellant had a more extensive criminal history than Mr Oldfield, including having been imprisoned for breaking and entering and having numerous convictions for theft. Additionally, Mr Oldfield had demonstrated positive steps toward rehabilitation and addressing his ill-health, factors absent in the appellant’s case. In all, when proper regard was had to the differing personal circumstances of each man, the contention that the difference in sentence gave rise to a justifiable sense of grievance could not be maintained.

    The parity principle

15. Section 10(1)(b) of the Sentencing Act 2017 (SA) commands sentencing courts to apply the common law parity principle in sentencing subject to the Act and not to the exclusion of any other relevant principle. The common law parity principle and its application in sentencing was comprehensively explained by French CJ, Crennan and Kiefel JJ in Green v The Queen.[3] The rationale for the principle is grounded in the concept of equal justice. French CJ, Crennan and Kiefel JJ explained:[4]

    “Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

    Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

    (Emphasis in original.)

    Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

    (Footnotes omitted.)

    [3] (2011) 244 CLR 462.

    [4]    Green v The Queen (2011) 244 CLR 462 at [28]. See also, Postiglione v The Queen (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ).

1. The principle applies as between co-offenders “albeit the limits of that term have not been defined with precision”.[5] It is not necessary that co-offenders be charged with the same offence — “[t]he foundation of the parity principle in the norm of equality before the law requires that its application be governed by considerations of substance rather than form”.[6] That said, practical difficulties in comparing the sentences imposed on two offenders in the same criminal enterprise who have been charged with different crimes can arise, but such difficulties do not exclude the operation or application of the parity principle.

   [5]    Green v The Queen (2011) 244 CLR 462 at [29] (French CJ, Crennan and Kiefel JJ).

   [6]    Green v The Queen (2011) 244 CLR 462 at [30] (French CJ, Crennan and Kiefel JJ).

2. Further, it should not be thought that the comparative exercise is limited to a comparison of respective roles in the execution of a criminal enterprise. In Postiglione v The Queen, Dawson and Gaudron JJ remarked that: [7]

   “Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence … it is a question of due proportion between those sentences … being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality”.

   [7] (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ).

3. They added, a proper comparison of two sentences involves a consideration of all components of the sentence.[8]

   [8]    Postiglione v The Queen (1997) 189 CLR 295 at 302 (Dawson and Gaudron JJ).

4. Importantly, on appeal:[9]

   Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is 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 sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

   A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.

   (Footnotes omitted.)

   [9]    Green v The Queen (2011) 244 CLR 462 at [31]-[32] (French CJ, Crennan and Kiefel JJ).

5. In R v Lagana, White J, with whom Vanstone J agreed, observed that disparity between sentences does not of itself mean that an appeal must be allowed. [10] He said:[11]

   The effect of an unjustifiable disparity as enlivening a discretion, but not an obligation, in the appellate court to intervene, has been recognised in a number of the earlier authorities. See, for example, Lowe v The Queen; R v MacGowan; Wakely v Police and R v McIvor. However, as King CJ indicated in R v MacGowan, in the absence of strong countervailing considerations the appellate court will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.

   (Footnotes omitted.)

   [10] [2012] SASCFC 135.

   [11]   R v Lagana [2012] SASCFC 135 at [55].

6. White J noted that in Green v The Queen[12] the High Court did not express a concluded view whether, in the exercise of the discretion, a Court of Criminal Appeal may reduce a sentence to an inadequate level to account for parity. In Lowe v The Queen three justices of the High Court answered that question in the affirmative.[13] In Green v The Queen French CJ, Crennan and Kiefel JJ said:[14]

   … the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a less than adequate level which would be, as Street CJ put it in R v Draper, “an affront to the proper administration of justice”. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on an appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.

   (Footnotes omitted.)

   [12] (2011) 244 CLR 462.

   [13] (1984) 154 CLR 606 at 612 (Mason J), 616 (Wilson J) and 623 (Dawson J).

   [14] (2011) 244 CLR 462 at [33] (French CJ, Crennan and Kiefel JJ).

7. It is important to observe, as did White J in R v Lagana, that in the present case the sentencing discretion was to be exercised having regard to the need to ensure that the offender is adequately punished for his or her offending.[15] White J also referred to King CJ in R v MacGowan who said:[16]

   …The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest...

   [15] [2012] SASCFC 135 at [56].

   [16] (1986) 42 SASR 580 at 583.

8. And to Bray CJ, Hogarth J and Sangster AJ in R v Kite who said:[17]

   …the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.

   [17] (1971) 2 SASR 94 at 96.

   Consideration

9. We commence with a consideration of the sentence imposed on Mr Oldfield for the 27 November 2017 offending.

10. The first observation to make is that he was charged with, and sentenced for, two additional property damage offences. The gravity of his offending was not equal to that of the appellant. Further, that Mr Oldfield was charged with these two additional offences does suggest that his role was greater than that of the appellant. It suggests that, when the appellant said he did not realise until late in the piece what he had become involved in, he should be believed and thus his role was less than that of Mr Oldfield.

11. Second, whilst we share the Magistrate’s opinion that Mr Oldfield’s offending of 27 November 2017 was the most serious of the group of offences for which he was to be sentenced, to our minds Mr Oldfield’s offending of 2 November 2017 was only marginally less serious. The nature of the offending was the same, save for the property damage, but the value of the goods taken was greater. In each instance, we presume, Mr Oldfield engaged in theft to fund his drug habit. Whatever the difference in the gravity of the 2 November and 27 November 2017 offending, we do not think it was sufficient to be able to relegate the contribution of the 2 November 2017 offending to the sentence as attracting little greater weight than the balance of the offences as if all other offending was overwhelmed by the sentence imposed for the 27 November 2017 offending.

12. Third, prior to being sentenced by the Magistrate Mr Oldfield had only ever been imprisoned on one occasion, and then for four months approximately 18 years ago. He had numerous prior convictions for dishonesty and driving offences punished in the main by fines and periods of licence disqualification. On three occasions he had had the benefit of a suspended sentence of imprisonment. He had no prior convictions for break and enter or criminal trespass. Between 2006 and 2016 he did not appear in the State’s criminal courts at all. His most recent offending, prior to that for which the Magistrate sentenced him, was relatively minor.

13. Fourth, the 2 November 2017 and 27 November 2017 offending aside, the balance of the offending for which Mr Oldfield was sentenced was not the most serious.

14. Fifth, our impression is that having regard to Mr Oldfield’s ill-health, and proven good prospects of rehabilitation, the Magistrate’s sympathies were reasonably excited such that he determined to impose a lenient sentence.

15. We do not think it can be said that Mr Oldfield’s sentence was inadequate.

16. Turning to the appellant. In our view a distinction must be made between the role of the appellant in the 27 November 2017 offending and that of Mr Oldfield, at least on the basis that Mr Oldfield was also to be sentenced for the consequential property damage, but also because Mr Oldfield’s offending was less opportunistic than the appellant’s.

17. Next, a glance at the appellant’s criminal record provides reason to doubt his commitment to his rehabilitation and to reuniting with his daughters. That said, he is to be commended for positively embracing the assistance offered by OARS. However, we are more guarded about his prospects of rehabilitation than Mr Oldfield’s.

18. No difference exists in the motivation of each man to offend. Both were drug users seeking means to support themselves and their habit.

19. The primary difference between the appellant and Mr Oldfield is their respective criminal records. The appellant has a significantly more extensive criminal record. He first came into contact with the criminal justice system as a 10 year old. His record runs to six pages. It is littered with dishonesty offences and driving offences and includes low level drug offences, offences of violence, property offences and offences committed in breach of court orders. The appellant was first committed to an institution as a youth in 1985. He was first imprisoned in 1997. Over the next five years he was frequently imprisoned for months at a time. Thereafter he managed, despite regular offending, to avoid imprisonment for 10 years. In 2012 he was imprisoned once more for offences which, it appears, arose out of a failed relationship. He spent most, if not all, of 2012 in prison. Since 2013, until now, he has not been imprisoned again. The longest period of imprisonment that he has served before now is 12 months.

20. One further observation from the appellant’s criminal record; it contains no less than eight convictions for break-ins. However, the last such offence was committed in 2001. Whilst he does have a conviction for being unlawfully on premises in 2017, in view of the fact it was punished by the imposition of a period of licence disqualification, it cannot have been so serious.

21. Interrogation of the appellant’s criminal record indicates that he has little regard for the property of others, the authorities or the law. Specific deterrence obviously loomed large in sentencing him. The same can be said for Mr Oldfield, but less so.

22. Having regard to the above, we are persuaded that the difference in the punishment imposed upon the appellant and Mr Oldfield for the 27 November 2017 offending would give rise to a justifiable sense of grievance. It is not a matter of comparing starting points of 30 and 40 months. The starting point in relation to Mr Oldfield’s offending catered for the 11 other offences to which he pleaded guilty, including the 2 November 2017 offending, and the two counts of property damage committed as part of the 27 November 2017 offending. Whilst differential treatment as between the appellant and Mr Oldfield was warranted by virtue of their different records, in our view it could not justify the extent of the difference evident in the sentences imposed. We would allow the appeal.

23. For the 27 November 2017 offending we would sentence the appellant to two years’ imprisonment. We would reduce that by 30% on account of his pleas of guilty to one year, four months and 24 days. We would not otherwise interfere with the sentencing Judge’s orders. That means that the sentence we impose for the 27 November 2017 offending is to be served cumulatively upon the sentence that the sentencing Judge imposed for the appellant’s 2 December 2017 offending, being a sentence of imprisonment for two years and six months, reduced to one year and six months on account of the appellant’s plea. The result is that the appellant’s overall sentence is one of two years, 10 months and 24 days’ imprisonment. We would impose a non-parole period of one year and 10 months. The overall sentence and non-parole period are to commence from 8 December 2017.