Stack v The State of Western Australia
[2016] WASCA 89
•3 JUNE 2016
STACK -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 89
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 89 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:215/2015 | 5 MAY 2016 | |
| Coram: | McLURE P MAZZA JA | 3/06/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SARAH JANE STACK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against sentence Whether individual sentences manifestly excessive Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code (WA) Sentencing Act 1995 (WA) |
Case References: | Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STACK -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 89 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTINO J
File No : INS 7 of 2015
Catchwords:
Criminal law - Leave to appeal against sentence - Whether individual sentences manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on her pleas of guilty of one count of stealing a motor vehicle contrary to s 371A and s 378 of the Criminal Code (WA) (Code) and one count of aggravated burglary contrary to s 401(2)(a) of the Code.
2 On 11 August 2015 the appellant was sentenced by Martino J to 6 months imprisonment for the stealing offence and 4 years imprisonment for the aggravated burglary offence. The sentencing judge ordered that those sentences be served concurrently with each other and concurrently with the sentence of 1 year 9 months the appellant was then serving.
3 The aggravated burglary offence was committed with two male co-offenders, one who remained unidentified. The other co-offender was Allan Taylor. He also pleaded guilty to the offence and, on 29 January 2016, was sentenced by Corboy J to a sentence of 3 years 4 months imprisonment.
4 The appellant claimed that: (1) the sentence for the aggravated burglary offence breached the parity principle; (2) the individual sentences are manifestly excessive; and (3) the total effective sentence breached the first limb of totality principle.
5 Each ground of appeal is without merit. Accordingly, leave to appeal on all grounds must be refused, in which event, the appeal is taken to have been dismissed: Criminal Appeals Act 2004 (WA), s 27(1) - (3). These are my reasons.
6 The facts found by the sentencing judge are as follows. The appellant was a passenger in a car that had been stolen and, at the time, the appellant knew it had been stolen. The stolen car was used in the commission of the aggravated burglary offence. The appellant, Taylor and the unidentified co-offender travelled in the stolen car to a townhouse in Westminster. The male co-offenders forced their way into the townhouse by smashing through the front door. The unidentified co-offender was armed with a pistol. The appellant entered the townhouse a short time later. She knew she was in the townhouse without the consent of the owner.
7 A tenant of the townhouse escaped, leaving behind two others, a male and a female. The male and female victims locked themselves in a bedroom. The unidentified co-offender crashed through the door, smashing the lock and doorhandle. He demanded the male victim's wallet, brandishing the pistol. He subsequently struck the male victim five times to the forehead with the pistol. The appellant was in the vicinity when the demands were made.
8 At one stage, the wardrobe door opened and the unidentified co-offender yelled at the female victim to get out. When she did, the male victim lay on top of her for her protection. The unidentified co-offender located a bankcard and demanded the PIN. When the male victim told him it was not his card, the unidentified co-offender struck the male victim on the back with the pistol. During a period of approximately five minutes the appellant and her co-offenders moved around the house searching it.
9 After stealing the bankcard, a wallet, camera, mobile phone and obtaining the PIN for the bankcard, the co-offenders were in the process of leaving the townhouse when police arrived. They pursued the appellant who was discarding stolen items as she ran down the driveway.
10 The appellant was aged 27 at the time of the offending and was under the influence of drugs. The appellant was raised by parents who were heavy drug users and she became a serious drug user at a young age. The appellant has a 10-year-old son who is in the care of her elderly father. The appellant has a significant record of prior offending that included a number of aggravated burglaries. The sentencing judge allowed a discount for the guilty plea of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA).
Parity
11 The parity principle 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 on like offenders to reflect different degrees of culpability and/or different circumstances. A court will refuse to intervene where the difference in sentencing outcomes is justified by differences between co-offenders, including the part each has played in the relevant criminal conduct or enterprise: Green v The Queen (2011) 244 CLR 462. The test remains whether the disparity, or the adequacy of the disparity, gives rise to an objectively justifiable sense of grievance.
12 In the subsequent sentencing of Taylor, Corboy J was alive to the need to have regard to the parity principle. He allowed a 10% discount for Taylor's plea of guilty. Taylor was 21 at the time of the aggravated burglary. Corboy J found that Taylor did not know or intend that violence would be used to steal from the victims; was not present when the assaults occurred; and was not the instigator of the violence. Corboy J accepted that the appellant and the unidentified co-offender were in control when the offence was committed. Further, the appellant's criminal record was significantly more serious than Taylor's. Having regard to all relevant differences impacting on the level of culpability of the appellant and Taylor, there is no arguable breach of the parity principle. Leave to appeal on ground 1 is refused.
Manifest excess
13 A claim of manifest excess relies on the implication of error by the sentencing judge. The sentence must be shown to be unreasonable or plainly unjust. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
14 The circumstances of the appellant's aggravated burglary offence place it at the serious end of the scale. Having regard to the nature and extent of the appellant's record of offending, there is a need for personal as well as general deterrence in her sentencing. The individual sentences imposed by the sentencing judge are well within the standards of sentencing customarily imposed.
15 The appellant does not have an arguable claim that either sentence is manifestly excessive. Leave to appeal must be refused.
Totality
16 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally.
17 As the individual sentences are within the appropriate range and were made concurrent, not only with each other, but with the sentence the appellant was then serving, this ground must fail. Leave to appeal must be refused.
Conclusion
18 Leave to appeal is refused on all grounds. Accordingly, the appeal is taken to have been dismissed.
19 MAZZA JA: I agree with McLure P.
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