Stanley v The State of Western Australia
[2018] WASCA 229
•10 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STANLEY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 229
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 6 DECEMBER 2018
DELIVERED : 10 DECEMBER 2018
PUBLISHED : 10 JANUARY 2019
FILE NO/S: CACR 208 of 2018
BETWEEN: KYLIE STANLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1747 of 2017
Catchwords:
Criminal law and sentencing - Aggravated burglary - Parity - Co‑offender sentenced to non‑custodial disposition - Whether judge made error of principle concerning parity
Legislation:
Criminal Code (WA), s 401
Result:
Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Sentencing decision set aside and appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr S D Freitag SC |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
Beins v The State of Western Australia [2014] WASCA 54
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Herbert v The State of Western Australia [2003] WASCA 61; (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Ngo v The Queen [2017] WASCA 3
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
Winmar v The State of Western Australia [2018] WASCA 155
REASONS OF THE COURT:
Introduction
On 19 October 2018, the appellant was sentenced, on her fast‑track plea of guilty, to 15 months' immediate imprisonment for an offence of aggravated burglary of a dwelling.
The appellant appeals against her sentence on two grounds, both relating to the parity principle.
On 10 December 2018, we made orders to the following effect:
1.Leave to appeal is granted on grounds 1 and 2.
2.The appeal is allowed.
3.The sentencing decision of the primary judge is set aside.
4.The appellant is resentenced to 9 months' imprisonment, conditionally suspended for 9 months, pursuant to s 81 of the Sentencing Act 1995 (WA), subject to the standard obligations in s 83 of the Act, a program requirement under s 84A of the Act and a supervision requirement under s 84B of the Act.
These are our reasons for making those orders.
The facts
The facts were not, and are not, in dispute.[1]
[1] The following account is taken from the facts stated by the prosecutor commencing at ts 14, adopted by the sentencing judge at ts 25.
Sometime between 9.00 am on 18 February 2017 and 4.00 pm on 20 February 2017, the appellant and her co‑offender entered the backyard of a residence in Dianella. They did so by using a chair to reach over and unlock a gate.
In the backyard, they used an object to smash a glass window in order to enter the house.
Both offenders entered the property and stole property to the value of about $10,000. The stolen property included a desktop computer, PlayStation 4, clothing, headphones, a mobile telephone, a jewellery box containing various items of jewellery, handbags and watches.
Prior to the commission of the offence, as was known to the appellant, a car had crashed into the home, causing extensive damage and meaning that the home was unoccupied.
Police forensics discovered the appellant's fingerprints on a sliding door at the scene. A subsequent search of a property in Nollamara associated with the appellant discovered numerous items of property belonging to the victim.
The appellant was later arrested at the Nollamara address. She made admissions to police and named her co-offender in her video record of interview. She told the police that they were in the house for about an hour.
Co‑offender's sentencing proceedings
As the prosecutor explained, in response to an enquiry from the sentencing judge, the statement of material facts originally asserted that the value of the property was $20,000. That was the position when the appellant entered her plea of guilty.
Subsequently, the State issued an amended statement of material facts in which the value of the property stolen was said to be $10,000.[2]
[2] ts 15.
On that basis, the co‑offender was dealt with in the Magistrates Court. For the same offence as that committed by the appellant, the co‑offender was sentenced in the Magistrates Court on 16 November 2017 to a 15 month intensive supervision order with program and supervision requirements.[3]
[3] ts 15.
Courts have often referred to the desirability of co‑offenders being sentenced by the same judicial officer.[4] In this case, co‑offenders were sentenced in different courts, not simply by different judicial officers. The prospect of anomalous outcomes of the kind which have arisen in this case is why it is to be hoped that, in future cases, the unsatisfactory approach taken in this case will not be repeated.
[4] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617, 622; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 320; Ngo v The Queen [2017] WASCA 3 [40].
Personal circumstances
The appellant was aged 30 when she was sentenced.
The appellant was born in Perth, the youngest of four children born to her parents. Her father was dependent on alcohol. When he was intoxicated, he physically and emotionally abused the appellant's mother. The appellant continued to live in the family home until she was about 15 years old.
The appellant had learning difficulties that were not recognised until high school. The assessment of the appellant's intellectual capacity by the author of the psychological report is referred to below. The appellant told the author of the psychological report that she struggled socially at school due to her speech impediment.
The appellant has had limited employment for only relatively short periods of time since she left school.
The appellant has consumed methylamphetamine about once a fortnight since the age of 24. She told the author of the psychological report that she was intoxicated with methylamphetamine when she committed the offence.
In the psychological report, the appellant's intellectual capacity was assessed to be in the 'extremely low' range, where 99% of others her age would be expected to perform at a higher level.[5] Her perceptual reasoning scores indicated that 99.5% of others her age would be expected to perform at a higher level.[6] The author of the psychological report noted that the appellant externalised responsibility for her current offending onto her nephew and that her lack of understanding of victims' experiences is consistent with her cognitive challenges.[7]
[5] Psychological report of Ms Jane Sampson dated 13 August 2018 (psychological report) [9].
[6] Psychological report [10].
[7] Psychological report [12].
The author of the psychological report prepared for sentencing expressed the opinion that the appellant's offending was driven by:[8]
[8] Psychological report [14].
•Cognitive challenges;
•Exposure to recent trauma and the death of her brother;
•Poor emotional regulation and stress resilience skills;
•Dependence on substance use for negative coping;
•Intoxication and substance use;
•Destabilisation and the lack of pro-social purposeful activity in her life;
•Susceptibility to the influence others;
•Impulsivity and immaturity;
•Poor judgment and poor consequential thinking;
•Resources for further substance use; and
•Financial gain.
The appellant has a history of relatively minor traffic and drug possession offences, for which she received fines or motor licence disqualifications.
On 17 February 2017, she was placed on two concurrent six-month community based orders for stealing a motor vehicle and attempted fraud. She committed the instant offending between 18 February 2017 and 20 February 2017, and so within a day or two of being placed on the community based orders.
Between when she committed the offence with which this appeal is concerned and when she was sentenced for that offence, the appellant committed further offences. She was convicted of stealing on 26 June 2017 for which she was fined. On 7 July 2017, she was fined and had her driver's licence disqualified for three months for driving without authority on 1 July 2017. Also on 7 July 2017, she was placed on four concurrent 12‑month community based orders for trespass and stealing a motor vehicle, both committed on 29 June 2017, and for twice breaching the existing community based orders. On 8 September 2017, she drove while suspended for which she was fined and a 9‑month cumulative licence disqualification was imposed.
The pre‑sentence report indicated that the appellant had repeatedly failed to comply with the previous community based orders on which she had been placed.
Sentencing remarks
The primary judge noted that the appellant entered a plea on her eleventh appearance, which the State observed was nonetheless before a disclosure committal hearing and before police prepared a brief of evidence.[9] Accepting with 'some hesitation' that the plea of guilty was entered at the first reasonable opportunity, his Honour discounted the sentence by 25%.[10]
[9] ts 16.
[10] ts 25.
His Honour observed that home burglaries are apt to create a sense of intrusion and fear. Further, this was particularly the case in this offence since the victim had been the subject of a previous invasion of their property which had been publicised and led the appellant and her co-offender to specifically target those premises.[11] There was no interaction with anyone at the premises and it appears implicit that his Honour accepted the premises were chosen because it was unlikely that anyone would be home.[12] His Honour noted that no significant damage was done to the house and the value of the items taken, while not unusually high, was very significant.[13]
[11] ts 25.
[12] ts 25 - 26.
[13] ts 25.
The appellant did not have the benefit of good character, but her prior offending was not of the same type and thus did not elevate considerations of personal and general deterrence beyond their usual significance.[14] Nonetheless, his Honour observed that those considerations remained particularly relevant, given that she was placed on a community based order only two days before committing the offence.[15]
[14] ts 26.
[15] ts 26.
His Honour referred to sentencing principles and decisions of this court concerning home burglary offences.[16]
[16] ts 26 ‑ 27.
As ground 1 alleges that his Honour's remarks concerning the parity principle reveal an error of principle, we will set them out when we deal with that ground.
The offence was premeditated and, even taking into account her cognitive difficulties, the appellant externalised responsibility in her pre-sentence report.[17] Nonetheless, his Honour accepted that the appellant had a very difficult background, particularly with respect to the loss of her brother and the domestic abuse she had suffered.[18] His Honour accepted that the appellant has cognitive challenges which make her susceptible to peer pressure, as appeared to be the case in this offence.[19]
[17] ts 27.
[18] ts 27 - 28.
[19] ts 28.
The judge observed that her intoxication was not mitigatory, and there was no mitigation in her age.[20]
[20] ts 28.
His Honour acknowledged that the appellant had used her time in custody productively and that there are prospects that she may make a positive contribution to the community upon her release.[21]
[21] ts 28.
The judge expressed his satisfaction that the only appropriate penalty was imprisonment and that it was not appropriate to suspend the sentence.[22] His Honour imposed what, having regard to the innate seriousness of the crime, he regarded as the lowest possible sentence, namely 15 months' imprisonment.[23] The sentence was ordered to commence on 4 June 2018.
[22] ts 28.
[23] ts 28
Grounds of appeal
The appellant appeals on two grounds, namely:
1.The learned sentencing judge erred in law in his application of the parity principle.
2.The appellant has a justifiable sense of grievance due to the marked disparity between [her] sentence and the sentence of [her] co‑offender.
A ground asserting manifest excess was abandoned.[24]
[24] Appeal ts 2.
Parity: legal principles
The law relating to the parity principle is well established. For present purposes, it is sufficiently stated in the recent outline by Buss P (Mazza JA agreeing) in Ngo v The Queen,[25] in the following terms:
[25] Ngo v The Queen [36] ‑ [40].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice 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' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
While the parity principle may permit a court to impose what it considers to be a manifestly inadequate sentence (but not an affront to justice), it does not require the court to do so.[26]
[26] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33]; Beins v The State of Western Australia [2014] WASCA 54 [40], [47], [126] ‑ [127].
A judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[27] apply.[28]
[27] House v The King (1936) 55 CLR 499.
[28] Green v The Queen [32].
We turn to ground 1, which alleges an error of principle in the application of the parity principle.
Ground 1: error of principle concerning parity?
The appellant alleges that the following remarks by the sentencing judge reveal an error of principle:[29]
Whilst this would appear to be a case where it’s difficult to discriminate between you and your co-offender factually, it is relevant that he was dealt with by a court that had a jurisdictional maximum penalty of three years and not 20 years. Further, as is well known, parity of sentence does not require a sentencing judge to be so lenient as to shock the public conscience by imposing a sentence entirely disproportionate to the offence in question.
[29] ts 27.
In particular, the appellant draws attention to the judge's observation that the co‑offender 'was dealt with by a court that had a jurisdictional maximum penalty of three years and not 20 years'.[30]
[30] ts 27.
First, the appellant submits, correctly, that the jurisdictional limit applied in the Magistrates Court is not properly characterised as the maximum penalty.[31] Secondly, the appellant submits that, where two offenders are sentenced for the same offence in different jurisdictions, the fact that one was subject to a lesser jurisdictional limit than the other is immaterial.[32]
[31] Appellant's submissions [14], referring to Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.
[32] Appellant's submissions [15].
The respondent accepts that the existence of a jurisdictional limit in the Magistrates Court does not affect or reflect the maximum penalty for sentencing purposes. However, the respondent submits that, read in context, the sentencing judge's reference to a 'maximum penalty' was a 'misnomer'.[33] The respondent submits that his Honour evidently intended to refer to the perceived inadequacy of the sentence imposed on the co‑offender in the Magistrates Court. In support of this reading of the sentencing remarks, the respondent points to the submission made to the sentencing judge, by counsel for the appellant, that, while the jurisdictional threshold in the Magistrates Court was 3 years, the maximum penalty for both offences was the same.[34]
[33] Respondent's submissions [21].
[34] Respondent's submissions [21] ‑ [22]; appeal ts 18 - 19.
The relevant yardstick in the sentencing process is the maximum penalty,[35] not any jurisdictional limit.[36] On a proper application of sentencing principles, the existence of the jurisdictional limit was irrelevant to the non‑custodial sentence imposed in the Magistrates Court and, consequently, was irrelevant to the proper application of the parity principle in the sentencing of the appellant. Thus, the merits of ground 1 turn on how his Honour's sentencing remarks are to be understood.
[35] As to which, see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [40].
[36] Wiltshire v Mafi.
His Honour's sentencing remarks cannot fairly be read in the manner invited by the respondent. The impugned remark was made in the context of considering the extent of any differences between the appellant and her co‑offender. The judge said that it was relevant that the co‑offender was dealt with by a court with a different 'jurisdictional maximum penalty'.[37] His Honour expressed this point as a counter to the fact that there was no distinction between the appellant's offending and that of her co‑offender.[38] Thus, both the context and the language of his Honour's statement reveal a view that the different jurisdictional maximum in the Magistrates Court was a ground for differentiating the appellant from her co‑offender.[39] The judge's separate comment immediately following the impugned remark, that parity did not require the imposition of a sentence so lenient as to shock the public conscience, makes a distinct point from the point being made by his Honour's preceding impugned observation.
[37] ts 27.
[38] ts 27.
[39] ts 27.
In this way, the judge's observation reveals an error of principle. For these reasons, we upheld ground 1.
As that enlivens this court's discretion to resentence, ground 2 need not be considered.
Resentencing
In abandoning ground 3 which concerned manifest excess, senior counsel for the appellant properly conceded that the serious elements of the appellant's offending meant that, if considerations of parity are put to one side, the sentence of 15 months' immediate imprisonment was well open on a proper exercise of the sentencing discretion.[40] That concession was well made. Indeed, putting parity to one side, a longer term of immediate imprisonment was open. The following features of the appellant's offending, highlighted by the respondent, underscored its seriousness:
1.The offence preyed upon particularly vulnerable victims who had been forced to leave their home unoccupied because of the damage it had suffered.
2.The offence was not spontaneous. The appellant and her co‑offender planned to profit from the misfortune of the occupiers of the home. They drove to the scene, wearing gloves to conceal their identity.
3.The appellant and her co‑offender spent about an hour in the house systematically taking anything of value, and going through each room identifying items they wanted to take.
4.The appellant and her co‑offender stole a significant amount of property of substantial monetary and intrinsic value.
[40] Appeal ts 2, 12.
Further, as the respondent points out, many decisions of this court emphasise the seriousness of home burglaries and the need to give proper weight to considerations of personal and general deterrence.[41]
[41] See, for example, Winmar v The State of Western Australia [2018] WASCA 155 [77]; Herbert v The State of Western Australia [2003] WASCA 61; (2003) 27 WAR 330.
However, we were satisfied that the following unusual features of this case, in combination, made it appropriate to order that the appellant be resentenced to 9 months' imprisonment, conditionally suspended for 9 months.
First, the principal sentencing consideration in resentencing the appellant is the parity principle; in particular, the sentence imposed on her co‑offender. While the respondent asserted that the co‑offender's sentence was manifestly inadequate, there was no State appeal against the co‑offender's sentence. In any event, the appellant did not invite, and we did not impose, the same sentence - an intensive supervision order for 15 months - as was imposed on the co‑offender.
There is, as the sentencing judge observed, no basis to distinguish the culpability of the appellant and co‑offender. We recognise that the appellant had some matters which, compared to her co‑offender, counted against her. She committed this offence two days after being placed on a community based order. She, unlike her co‑offender, had previously been placed on community based orders with which she had failed to comply. Further, the co‑offender was aged 22, whereas the appellant was aged 30. However, the significance of the difference in their ages was, to an extent, reduced by the cognitive challenges faced by the appellant.
Secondly, the undiagnosed substantial cognitive challenges faced by the appellant should be given some weight. The author of the psychological report expressed the view, which the judge accepted, that those cognitive challenges appear to have influenced her offending conduct.[42] This goes some way to ameliorating the weight to be given to general deterrence.
[42] ts 28.
Thirdly, and significantly, by 10 December 2018, the appellant had served more than 6 months' imprisonment. In substance, that seems to us to satisfy the need for personal deterrence.
After allowing a discount of 25%, pursuant to s 9AA of the Sentencing Act, for the plea of guilty, further reducing the sentence on account of the appellant's other mitigating factors and taking account of the time already served, we arrived at and imposed the new sentence.
Plainly, the appellant needs appropriate treatment and supervision. To that end, we imposed a conditional suspended imprisonment order with program and supervision requirements.
Conclusion
For these reasons, we made the orders set out in [3].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Research Associate/Orderly to the Honourable Justice Beech10 JANUARY 2019
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