Rahman v The State of Western Australia
[2012] WASCA 140
•25 JULY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAHMAN -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 140
CORAM: BUSS JA
MAZZA JA
HEARD: 5 JULY 2012
DELIVERED : 25 JULY 2012
FILE NO/S: CACR 32 of 2012
BETWEEN: RAMI JOHNATHON RAHMAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND BRO 24 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Whether trial judge breached the parity principle
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr M R Gunning
Respondent: No appearance
Solicitors:
Appellant: Gunning Young
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 283 ALR 1
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against a sentence of 20 months' immediate imprisonment imposed by Wisbey DCJ on 30 January 2012 following the appellant's plea of guilty to a charge of aggravated burglary.
Background
In the early hours of 27 November 2010, the appellant and Jamie Lee Latham, broke into a house in the Broome suburb of Cable Beach with the intention of stealing property. Latham, using a screwdriver, removed part of a lock on a side door to gain entry. The complainant and his family were asleep at the time. Once inside, the appellant and Latham stole a laptop computer and a purse. About 90 minutes later the two men were apprehended by police walking along a road, not far from the house. They were still in possession of the stolen items.
Mr Latham pleaded guilty to the charge of aggravated burglary at an early stage. He was sentenced to 8 months' immediate imprisonment by Fenbury DCJ.
The appellant pleaded not guilty. The matter was listed for trial, but the appellant failed to appear at a directions hearing about one month before the trial was scheduled to begin. A bench warrant was issued for his arrest. Some months after the scheduled trial date, the appellant was apprehended. While subject to the warrant, on 7 October 2011, he committed an offence of robbery on a takeaway food outlet.
Wisbey DCJ dealt with the offences of aggravated burglary and robbery on the appellant's pleas of guilty. He was sentenced to 20 months' imprisonment for each offence, to be served cumulatively with eligibility for parole and backdated to commence on 10 October 2011. Thus, the total effective sentence imposed upon the appellant was 3 years and 4 months' imprisonment.
The nature of the appeal
The appellant does not challenge the sentence he received for the offence of robbery. His appeal is confined to the sentence he received for the aggravated burglary. The sole ground of appeal is an alleged breach of the parity principle. In essence, it is claimed that the appellant has an objectively justifiable sense of grievance because his sentence was 12 months longer than the sentence imposed upon Mr Latham.
The parity principle
A convenient statement of the parity principle was made by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 in these terms:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as the age, background, previous criminal history and general character of the offender and the part which he or she played in the commission of the offence, have to be taken into account (609).
Recently, in Green v The Queen [2011] HCA 49; (2011) 283 ALR 1, French CJ, Crennan and Kiefel JJ observed that the foundation of the parity principle was the norm of equal justice. They explained that equal justice requires identity of outcome in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect: [28].
For a parity ground to succeed, the appellant must establish that any disparity gives rise to an objectively justifiable sense of grievance: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 338 (Kirby J).
Analysis of the ground of appeal
In the present case there was no relevant difference between the part that each offender played in the commission of the aggravated burglary. As Mr Gunning, on behalf of the appellant, properly conceded in his oral submissions, even though Latham was the offender who used the screwdriver, given the joint nature of the offence, there was no difference to their respective culpabilities.
There were, however, two relevant differences between the appellant and Latham. First, Latham pleaded guilty at an earlier stage of the proceedings than the appellant. Latham did not plead guilty at the first available opportunity, but unlike the appellant, he pleaded guilty before the matter was listed for trial. The mitigatory weight to be given to a plea of guilty is greater the earlier the plea is entered. Second, although Latham had a prior conviction for burglary in 2004, his previous criminal history was nowhere near as bad as the appellant. The appellant has a lengthy criminal history including the following indictable matters:
1.21 August 2002: Perth District Court - robbery - 1 year immediate imprisonment.
2.21 August 2002: Perth District Court - stealing a motor vehicle and driving it recklessly - 1 year immediate imprisonment.
3.19 April 2005: Perth District Court - one count of burglary on a place and two counts of aggravated burglary on a house - $500 fine on each offence.
4.17 February 2006: Sexual penetration without consent and deprivation of liberty - total effective sentence of 4 years' imprisonment.
While on parole for the offences which were dealt with by the District Court in 2006, the appellant was convicted in the Broome Magistrates Court of possession of cannabis and ecstasy with intent to sell or supply it to another, for which he was sentenced to a term of imprisonment. The appellant's record of convictions not only illuminated the appellant's culpability but also showed that the aggravated burglary was committed in the context of a continuing attitude of disobedience of the law: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
Mr Gunning agreed that the two differences were relevant and justified a different outcome as between Latham and the appellant. However, he submitted that the 12 month difference in the sentences imposed upon the offenders was excessive.
This submission cannot be accepted. The differences between the appellant and Latham were significant and plainly justified the imposition of a higher sentence on the appellant. The sentence imposed on Latham does not give rise to any objectively justifiable sense of grievance on the part of the appellant.
The ground of appeal has no reasonable prospects of succeeding and leave to appeal should be refused. Accordingly, the appeal must be taken to be dismissed.
The orders that I would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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