Smith v The State of Western Australia
[2014] WASCA 238
•24 DECEMBER 2014
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 238 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:164/2013 | 8 SEPTEMBER 2014 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 24/12/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | RORY JAMES SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Appellant convicted after trial of aggravated burglary and criminal damage and sentenced to 4 years' imprisonment Whether sentence infringed the parity principle Whether sentence for aggravated burglary was manifestly excessive Appellant serving suspended imprisonment order at the time of the offences Turns on own facts |
Legislation: | Criminal Code (WA), s 338B, s 401(2), s 444(1) Criminal Procedure Act 2004 (WA), s 108 Sentencing Act 1995 (WA), s 9AA, s 32 |
Case References: | Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Smith v The State of Western Australia [2014] WASCA 160 Wilson v The State of Western Australia [2010] WASCA 82 Wragg v The State of Western Australia [2013] WASCA 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 238 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 74 of 2013
Catchwords:
Criminal law and procedure - Appeal against sentence - Appellant convicted after trial of aggravated burglary and criminal damage and sentenced to 4 years' imprisonment - Whether sentence infringed the parity principle - Whether sentence for aggravated burglary was manifestly excessive - Appellant serving suspended imprisonment order at the time of the offences - Turns on own facts
Legislation:
Criminal Code (WA), s 338B, s 401(2), s 444(1)
Criminal Procedure Act 2004 (WA), s 108
Sentencing Act 1995 (WA), s 9AA, s 32
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr I A Morison
Respondent : Ms A C Longden
Solicitors:
Appellant : Morison Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Smith v The State of Western Australia [2014] WASCA 160
Wilson v The State of Western Australia [2010] WASCA 82
Wragg v The State of Western Australia [2013] WASCA 198
1 McLURE P: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA, for the reasons his Honour gives, that the appeal should be allowed on grounds 1 and 2 but that leave to appeal on ground 3 should be refused. I agree with the orders his Honour proposes.
3 MAZZA JA: This is an appeal against sentence.
4 The appellant was charged on indictment in the District Court that on 18 April 2012, at Glen Forrest, he:
(1) made a threat to unlawfully injure Dylan Gregory Moses contrary to s 338B of the Criminal Code (WA);
(2) while in the place of Warren Dix without his consent, unlawfully assaulted Dylan Gregory Moses contrary to s 401(2)(a) of the Criminal Code:
And that he was in company with others
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation; and
(3) wilfully and unlawfully damaged a door contrary to s 444(1) of the Criminal Code.
5 The appellant pleaded not guilty to each charge and was tried before Curthoys DCJ and a jury.
6 After the State closed its case, the learned trial judge found that the appellant had no case to answer with respect to count 1 and acquitted him pursuant to s 108 of the Criminal Procedure Act 2004 (WA) (ts 337). However, on 17 May 2013, the appellant was convicted as charged on counts 2 and 3. The appellant sought leave to appeal against these convictions. On 29 August 2014, leave to appeal was refused: Smith v The State of Western Australia [2014] WASCA 160.
7 The convictions breached a suspended imprisonment order imposed on 6 May 2011 by the Midland Magistrates Court in respect of two counts of assault occasioning bodily harm.
8 On 9 August 2013, the appellant was sentenced for the offences he had committed on 18 April 2012 and was dealt with for the breach of the suspended imprisonment order. He was sentenced as follows:
• Count 2 - aggravated burglary - 4 years' imprisonment.
• Count 3 - wilful and unlawful damage - 6 months' imprisonment.
• Breach of the suspended imprisonment order - 8 months' imprisonment on each count.
9 His Honour ordered that all of the sentences be served concurrently with each other. Thus, the total effective sentence imposed upon the appellant was 4 years' immediate imprisonment. The appellant was made eligible for parole.
10 The appellant relies upon three grounds of appeal. Grounds 1 and 2 concern the application of the parity principle. In effect, it is alleged that his Honour erred in failing to take it into account and to apply it. Ground 3 alleges that the sentence of 4 years' imprisonment for the offence of aggravated burglary was manifestly excessive. Leave to appeal has been granted in respect of grounds 1 and 2, while the question of leave in respect of ground 3 was referred to the hearing of the appeal.
11 In my opinion, grounds 1 and 2 have been made out, but not ground 3. The appellant should be resentenced to a total effective term of imprisonment of 2 years and 6 months. My reasons for these conclusions are as follows.
The facts and circumstances of the offending by the appellant and his co-offenders
12 On the evening of Wednesday 18 April 2012, a birthday party was being held for Ms Elizabeth White at the home of her father-in-law, Mr Warren Dix, in Glen Forrest. That evening the appellant was in the company of BM and BM's younger brother, DM, who was, at the time, a juvenile. They were walking in the vicinity of Mr Dix's home.
13 What happened next is described by his Honour in his sentencing remarks in these terms:
During the course of that party one of the persons who attended drove away. As he drove past you and [BM and DM], who were on foot, he made some comment to you as a result of which you took offence. The driver then returned to the party and the three of you passed the house and recognised the car. There was some discussion between the three of you and a group of party guests who were at the front of the house where the party was taking place.
Although there were some initial ill feelings Matt has settled down and the party guests moved to the back of the house where the party was taking place. You and [BM and DM] invited themselves in. I don't find that you were invited in, it was simply a case of those present at the party not wanting to say anything. You weren't welcome, but plainly those who were present didn't want to cause trouble by saying anything and their judgment in not saying anything was vindicated by subsequent events.
You and [BM and DM] were acting in a manner that was unsettling to the guests. One of the guests, Holly Greenhalgh, left the party and called the police because she felt unsafe.
You and [BM and DM] found out about this and started getting very aggressive towards everybody, one of you asking, 'Who? Who's called the cops? Who's done this?' You and [BM and DM] were asked to leave. Plainly that was an opportunity for you to disengage from the events and to leave the party. Whatever you thought or may have thought about whether you were invited it was very plain from that point that you had been asked to leave. You chose not to do so.
[BM] grabbed a pool ball off the pool table and threatened Dylan Moses and hit him in the side of the head with the pool ball. There were other altercations. You were asked to leave. [DM] then punched Dylan Moses in the mouth. An altercation developed as a result of which [BM] fell to the ground and while he was on the ground Dylan Moses kicked him.
You weren't involved in this particular altercation, although I don't accept that you took steps to calm things down. [BM] appeared to lose consciousness and the party guests who were involved I think were shocked by this and withdrew. You and [DM] grabbed [BM] and left. Unfortunately a jacket and some shoes were left behind and a short time later you and [BM and DM] returned to retrieve these items.
Instead of simply retrieving these items you did far more. [DM] returned holding a pointed metal garden stake. Lee, one of the guests picked up the items to hand them to [DM]. Due to the aggressive behaviour of [DM] the party guests started to back towards the sliding glass door into the house. The sliding glass door was then locked by them but either the lock was not working or it had not been locked. You and [BM] grabbed a couple of pool cues from the pool table and approached the sliding glass door thus arming yourselves. Again, from the fact that the sliding glass door had been locked, it should have been obvious to you that you should have left.
You were told, 'Just go, leave. Just get out of here'. [DM] opened the door and the majority of the people in the house headed up the hallway to hide in the bedrooms. Two were in a side study and Dylan Moses was caught alone in the kitchen. [DM] came up to Dylan Moses and said, 'Get on your knees'. [DM] had a splintered pool cue, he was shaking it in Dylan Moses's face and threatened to hit him with it. Dylan Moses got onto his knees and put his hands over his head.
Your participation in that was to come around the corner into the kitchen armed with a pool cue and swung the pool cue. You swung it at [Dylan Moses] with sufficient force but - you swung it at Dylan Moses, it broke in two when it caught the edge of the oven and the arc of the stroke hitting Dylan Moses's arms where he was shielding his head, you were intending to hit him with the pool cue and it was luck rather than good judgment that stopped the pool cue striking him. If the pool cue had not caught on the oven it is likely that it would have caused Dylan Moses significant damage.
Following this [BM] waved the splintered pool cue at Dylan Moses and said, 'See this, It's going in, in your mouth up the back of your skull'. [DM] then robbed Dylan Moses of his phone and wallet at knife point.
You and [BM and DM] then proceeded down the hall to where a number of the party guests and the brother were hiding in the end bedroom. The brother was attempting to hold the door shut by putting his feet flat against the door and bracing his back against the door.
You took it upon yourself, again, when there was a closed door rather than retreating you kicked the door in, obviously in a very aggressive manner and the door splintered. Some of the guests took off through the window and some, including two who were in the bed, were essentially frozen in fright and did nothing (ts 392 - 394).
The offences for which the appellant had been placed on a suspended imprisonment order
14 The appellant's criminal history states that on 12 December 2010, he committed three offences of assault occasioning bodily harm. He was sentenced in the Midland Magistrates Court on 6 May 2011 in respect of two of those offences to 8 months' concurrent imprisonment suspended for 15 months and on the remaining offence to a 15-month community based order. The facts of these offences were not read in open court to his Honour and are not referred to in his sentencing remarks. It is not known if the appellant has been dealt with for the breach of the community based order.
The sentencing of the appellant
15 The learned sentencing judge characterised the aggravated burglary as 'a home invasion type offence'. He said even if it could be said that the appellant and his co-offenders did not 'initially gatecrash' the party, their permission to stay was withdrawn. Notwithstanding this, the appellant's group returned and acted in a way which terrified the victims. His Honour noted that the appellant armed himself and, although he was repeatedly asked to leave and had the opportunity to do so, nevertheless entered the house and struck Mr Moses with the pool cue. His Honour described it as 'luck rather than good judgment' that Mr Moses was not struck harder with the pool cue. His Honour said that the appellant's behaviour was 'totally unacceptable'. He made the point that once the appellant had armed himself, his victims, who were unarmed, were vulnerable and at a significant disadvantage.
16 The learned sentencing judge referred to the appellant's personal circumstances in some detail. He acknowledged that, at 23 years of age, the appellant was 'relatively young'. He took into account the fact that the appellant had endured a difficult childhood marred by exposure to substance abuse, violence and the mental health problems suffered by his father. His Honour noted that alcohol abuse was a serious negative factor for the appellant.
17 The learned sentencing judge had regard to the appellant's prior criminal record. He noted the suspended imprisonment order which had been imposed on 6 May 2011 for the offences of assault occasioning bodily harm. He also noted that the offences the appellant committed on 18 April 2012 breached that order. His Honour found that these offences were not uncharacteristic.
18 His Honour concluded, based on the reports he had obtained, that the appellant did not acknowledge the facts of his offending and was unremorseful.
19 His Honour was made aware of the sentences that had been passed upon BM. He considered the question of whether the parity principle applied to the appellant. He determined that it did not apply. His reasoning for this conclusion was, in substance, that the appellant's co-offenders had been charged with different offences (ts 397).
20 In arriving at the total effective sentence of 4 years' imprisonment, his Honour had regard to the totality principle.
The sentencing of BM
21 Eaton DCJ's findings as to the circumstances of the offending on 18 April 2012 were not materially different to those made by Curthoys DCJ.
22 BM was, like the appellant, charged on indictment in the District Court with an offence of aggravated burglary contrary to s 401(2)(a) of the Criminal Code. The charge against BM was worded somewhat differently to the charge against the appellant, but it was, in substance, the same offence. BM was also charged in the Magistrates Court with two counts of assault arising from the incident on 18 April 2012 being the assault on Mr Moses with the pool ball and a later assault on a Mr Irwin with a broken pool cue.
23 On 20 December 2012, BM pleaded guilty to all charges; the Magistrates Court matters being the subject of a notice pursuant to s 32 of the Sentencing Act 1995 (WA). Eaton DCJ sentenced BM to a total effective sentence of 18 months' imprisonment with eligibility for parole. In respect of the aggravated burglary, BM was sentenced to 15 months' imprisonment and on each of the assaults he was sentenced to 3 months' imprisonment to be served concurrently with each other, but cumulatively with the sentence for the aggravated burglary.
24 As to BM's personal circumstances, his Honour had regard to BM's age (23 years of age) and to these factors:
(a) BM's pleas of guilty for which he gave a discount of 25% pursuant to s 9AA of the Sentencing Act;
(b) BM had 'barely … any record at all' and no prior convictions of violence or property damage;
(c) BM had successfully addressed his excessive consumption of alcohol; and
(d) BM was remorseful for his offending.
25 The question of parity with the appellant was not an issue before Eaton DCJ, as the appellant had not at that time been sentenced. Because DM was a juvenile, Eaton DCJ did not consider that an issue of parity arose as between BM and DM.
The charges and sentencing of DM
26 DM was dealt with in the Children's Court as a juvenile offender. He was charged in that court with a number of serious offences arising out of the incident on 18 April 2012, including aggravated armed robbery. DM pleaded guilty to those offences and was sentenced to a 12 month conditional release order and community work. As DM was a juvenile and as the appellant does not allege any infringement of the parity principle as a result of the sentences imposed upon DM, it is unnecessary to say anything more about DM's position.
The submissions
27 With respect to grounds 1 and 2, the appellant submitted that his Honour fell into error by deciding that the parity principle was inapplicable to the present case. That being so, it was submitted that this court should now re-sentence the appellant having regard to the parity principle. While acknowledging that there were differences between the offenders, it was submitted that the disparity in the total effective sentence imposed upon the appellant as against BM was too great and gave rise to an objectively justifiable sense of grievance. The appellant contended that this court should reduce the total effective sentence imposed upon the appellant.
28 With respect to ground 3, it was submitted that the sentence of 4 years' imprisonment for the offence of aggravated burglary was manifestly excessive. The appellant's counsel did not make any oral submissions in support of this ground, but the written submissions contend that the offending was 'at the lower end of the scale' and was inconsistent with the range of sentences customarily imposed.
29 The respondent conceded that his Honour's view that the parity principle did not arise for consideration as between the appellant and BM was erroneous. However, the respondent submitted that this court should not impose any different sentence upon the appellant, having regard to the differences in the circumstances of the appellant and BM.
30 With respect to ground 3, the respondent submitted that the sentence imposed upon the appellant for the offence of aggravated burglary was not manifestly excessive. The respondent submitted that the appellant's characterisation of the offending as being at the lower end of the scale was misconceived. Instead, the respondent characterised the offending as 'a very serious offence of its kind'. The respondent submitted that the sentence imposed by his Honour for the aggravated burglary was broadly consistent with sentences imposed for offences of the kind committed by the appellant.
General appellate principles
31 The general principles applicable to this case were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. The principles are well known and well accepted. There is no need for them to be repeated here.
Disposition - Ground 3 - Was the sentence imposed by his Honour for the aggravated burglary manifestly excessive?
32 An allegation of manifest excess is an allegation of implied error. Thus the appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust.
33 The orthodox approach in determining whether an individual sentence is manifestly excessive requires an examination of the maximum sentence applicable to the offence, the seriousness of the offence on the scale of seriousness of offences of that type, the standards of sentencing customarily imposed and the personal circumstances of the offender.
34 The maximum penalty for the offence of aggravated burglary committed by the appellant is 20 years' imprisonment.
35 Contrary to the submissions of the appellant, the circumstances of the offending were serious. It is apt to describe what occurred as a home invasion. The appellant and his co-offenders, without any justification, entered the house knowing that they were unwelcome and set about terrorising the occupants and assaulting some of them with weapons. The experience for all those concerned was terrifying. In my opinion, the offence was a serious example of its type.
36 The appellant's written submissions refer to a large number of sentencing cases decided by this court in respect of offences of aggravated burglary, but without any analysis.
37 In Wragg v The State of Western Australia [2013] WASCA 198, Hall J undertook such an analysis between [44] and [62].
38 It is unnecessary to replicate what his Honour wrote. It is sufficient to observe that the sentence imposed upon the appellant in this case could not be said to be outside the range of sentences customarily imposed.
39 His Honour dealt comprehensively with the appellant's personal circumstances. Apart from his age and his difficult upbringing, there was no mitigation to be found. Nor did the appellant have the advantage of mitigating factors such as a plea of guilty or remorse.
40 In my opinion, when all the relevant factors are taken into account, it cannot be said that the imposition of a sentence of 4 years' imprisonment for the aggravated burglary committed in the circumstances of the present case was unreasonable or plainly unjust.
41 Leave to appeal in respect of ground 3 should be refused.
Disposition - Grounds 1 and 2 - The parity principle
42 In MGM v The State of Western Australia [2012] WASCA 24, I made the following observations about the parity principle:
The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:
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).
See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).
The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).
Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J) [41] - [43].
43 A claim on the parity principle is not dependent upon the sentence in question being manifestly excessive. The rejection of ground 3 does not give rise to the conclusion that grounds 1 and 2 must fail.
44 Consistently with the norm of equal justice upon which the parity principle is based, its application is governed by substance and not form. Thus, as French CJ, Crennan and Kiefel JJ pointed out in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30]:
Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application.
45 While practical difficulties may arise in the comparison of sentences imposed on participants in the same criminal enterprise who have been charged with different offences, those difficulties do not arise in the present case.
46 The aggravated burglary offences committed by the appellant and BM were substantively the same. Further, the composite effect of the charges for which each offender was sentenced arising out of his participation in the events of 18 April 2012 was the same. In these circumstances, the parity principle applied. With great respect to his Honour, he erred in concluding to the contrary.
47 The question for this court is whether, having regard to the parity principle, a different sentence should be imposed.
48 There is no material difference in the ages of the appellant and BM. Nor, in my opinion, is there any difference in the objective circumstances of the offending. Their criminality was, in my view, equal.
49 That said, there were a number of mitigating factors which favoured BM as against the appellant, namely, BM:
(a) pleaded guilty at the earliest opportunity;
(b) was genuinely remorseful;
(c) had no prior history of violence;
(d) was not, at the time of the offending, subject to a suspended imprisonment order or any order; and
(e) had successfully rehabilitated himself from alcohol abuse.
50 The appellant's difficult upbringing was the only factor that was advantageous to him compared to BM.
51 The differences between the appellant and BM justify the imposition, in the case of the appellant, of a longer sentence for the aggravated burglary offence and a longer total effective sentence.
52 However, I am troubled in this case by the extent of the disparity between the individual and total sentences imposed upon the appellant and BM. Whether looked at from the perspective of the individual sentence for aggravated burglary or the total effective sentence, the appellant received a sentence very much greater than that imposed on BM. In my view, having carefully taken into account all the relevant sentencing factors applicable to the appellant and BM, the extent of the disparity was too great and gives rise to an objectively justifiable sense of grievance on the part of the appellant.
53 The question becomes one of how should this sense of grievance be addressed by this court?
54 The most serious offence committed by the appellant was the aggravated burglary. The 4 year sentence imposed by his Honour for that offence was the head sentence upon which all of the other offences were ordered to be served concurrently. In my opinion, the appellant's sense of grievance is appropriately addressed by a reduction of the sentence for the aggravated burglary to 2 years 6 months' imprisonment. I would not interfere with the other sentences or the orders his Honour made for their concurrency. Thus the total effective sentence I would impose upon the appellant is 2 years 6 months' immediate imprisonment with eligibility for parole.
Conclusion and orders
55 For reasons of parity only, this appeal should be allowed. I would make the following orders:
1. Leave to appeal on ground 3 is refused.
2. The appeal is allowed.
3. The sentence imposed by his Honour Curthoys DCJ on 9 August 2013 in respect of the offence of aggravated burglary is set aside and substituted with a sentence of 2 years 6 months' imprisonment.
4. All other sentences and orders made by his Honour, including the orders for parole eligibility and backdating, remain.
5. The total effective sentence imposed upon the appellant is 2 years 6 months' imprisonment.
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