Staunton v The Queen
[2004] WASCA 21
•13 FEBRUARY 2004
STAUNTON -v- THE QUEEN [2004] WASCA 21
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 21 | |
| COURT OF CRIMINAL APPEAL | 13/02/2004 | ||
| Case No: | CCA:100/2003 | 2 DECEMBER 2003 | |
| Coram: | WHEELER J MCLURE J WALLWORK AJ | 2/12/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK GEOFFREY STAUNTON THE QUEEN ROSS WALTER CORBITT |
Catchwords: | Criminal law Sentencing Whether sentence manifestly excessive Parity Turns on own facts |
Legislation: | Criminal Code (WA), s 401(2) |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 Herbert v The Queen [2003] WASCA 61 Lim v The Queen [2002] WASCA 228 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Mallet v Mallet (1984) 156 CLR 605 Nicholls v The Queen, unreported; CCA SCt of WA; Library No 930584; 7 September 1993 Postiglione v The Queen (1997) 189 CLR 295 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994 Heferen v The Queen [1999] WASCA 81 James v The Queen (1985) 14 A Crim R 364 R v Barbis & Rouse [2003] WASCA 107 R v MacGown (1986) 42 SASR 580 R v Rowe (1991) 52 A Crim R 196 R v Ward (1999) 109 A Crim R 159 Ricciardello v The Queen [2001] WASCA 416 Rose v The Queen, unreported; CCA SCt of WA; Library No 6928; 19 November 1987 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : STAUNTON -v- THE QUEEN [2004] WASCA 21 CORAM : WHEELER J
- MCLURE J
WALLWORK AJ
- Applicant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
Respondent
(Page 2)
Catchwords:
Criminal law - Sentencing - Whether sentence manifestly excessive - Parity - Turns on own facts
Legislation:
Criminal Code (WA), s 401(2)
Result:
Application dismissed
Category: B
Representation:
CCA 100 of 2003
Counsel:
Applicant : Mr M T Trowell QC & Mr P G Laskaris
Respondent : Mr K P Bates & Ms K E Ellson
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
CCA 101 of 2003
Counsel:
Applicant : Mr M T Trowell QC & Mr P G Laskaris
Respondent : Mr K P Bates & Ms K E Ellson
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Herbert v The Queen [2003] WASCA 61
Lim v The Queen [2002] WASCA 228
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Mallet v Mallet (1984) 156 CLR 605
Nicholls v The Queen, unreported; CCA SCt of WA; Library No 930584; 7 September 1993
Postiglione v The Queen (1997) 189 CLR 295
Case(s) also cited:
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994
Heferen v The Queen [1999] WASCA 81
James v The Queen (1985) 14 A Crim R 364
R v Barbis & Rouse [2003] WASCA 107
R v MacGown (1986) 42 SASR 580
R v Rowe (1991) 52 A Crim R 196
R v Ward (1999) 109 A Crim R 159
Ricciardello v The Queen [2001] WASCA 416
Rose v The Queen, unreported; CCA SCt of WA; Library No 6928; 19 November 1987
(Page 4)
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Mclure J. They reflect my own reasons for joining in the orders made on 2 December 2003, and I have nothing to add to them.
2 MCLURE J: The applicants each applied for leave to appeal against sentence. At the hearing on 2 December 2003 the Court dismissed both applications. These are my reasons for doing so.
3 On 17 June 2003 the applicants entered a plea of guilty to one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). On the same day, both applicants were sentenced to 12 months' imprisonment which was suspended for a period of 18 months.
4 The applicants committed the offence in company with two others, Marko and Dragan Savic. The co-offenders also pleaded guilty to the same offence and were sentenced at the same time. They each received an 18 month intensive supervision order with 200 hours of community service.
Background and Facts
5 On the evening of 4 April 2003 the applicants, Mark Staunton and Ross Corbitt, and their co-offenders were at a function at a lounge bar in Northbridge. An altercation occurred between Staunton and the complainant, Byron Watson. Staunton, who suffered some injuries as a result of the altercation, did not provoke it. He was permitted to return to the lounge bar although the complainant was refused re-entry.
6 After the offenders left the function in Northbridge, they returned to Corbitt's residence in Nedlands. They had been drinking alcohol throughout the evening and were intoxicated.
7 The complainant resided at a residential college near the University of Western Australia. Staunton and Corbitt had at some earlier time also resided at the same college. In the early hours of the morning of 5 April 2003 the four offenders decided to go to the college where the complainant resided for the purpose, as the sentencing Judge found, of "confronting [the complainant], [to make] it clear to him that his conduct would not be tolerated … and that was to be done in a physical manner". No challenge is made to this finding. Corbitt, to the knowledge of the other offenders, armed himself with a metal bar. Marko Savic drove the offenders to the college. After some initial difficulty in obtaining entry, they were let in by a college resident known to one or more of the offenders. The offenders went to the complainant's bedroom door and
(Page 5)
- knocked. The complainant did not open the door. Corbitt, who was given access to the adjacent bedroom, jumped from the balcony of the adjacent bedroom to the balcony of the complainant's bedroom and entered the room through an open door. Corbitt then went to the door of the complainant's bedroom and opened it allowing the other offenders to gain access. The complainant was in bed. He was disturbed and sat up. Staunton hit the complainant to the head and face on four or five occasions. A struggle between Staunton and the complainant ensued and during the struggle Corbitt produced the metal bar and waved it in front of the complainant. It was accepted that the metal bar made contact with the complainant but the contact was accidental.
8 Marko Savic went into the bedroom and turned on the light. That was the limit of his participation in the events that occurred in the bedroom. Dragan Savic orally abused the complainant and may have pushed him at one point. All offenders remained in the bedroom whilst the complainant was being assaulted. After a few minutes they left the premises and returned to Corbitt's residence in Nedlands.
9 The complainant received injuries including cuts to the inside of his mouth, bruising to his lip, a swollen left jaw, lumps to his neck and bruising to his head and neck. The sentencing Judge noted that the offenders had a number of opportunities to withdraw from the plan to confront the complainant and that their failure to do so showed a level of concerted, albeit drunken, decision making. She did not accept the characterisation of the conduct as an unpremeditated error of judgment.
Grounds of Appeal and Role of Appellate Court
10 The applicants contend that the sentence was excessive in that the sentencing Judge:
(a) failed to take sufficient account of the circumstances of the offence and the overall criminality involved;
(b) gave excessive weight to the principle of general deterrence;
(c) had insufficient regard to the mitigatory factors attaching to the personal antecedents of the applicants and their youth; and
(d) offended against the parity principle by imposing different sentences on Marko and Dragan Savic.
(Page 6)
11 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. It is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning. Alternatively, error may be inferred if the result is unreasonable or unjust, commonly described in this jurisdiction as "manifestly excessive". A sentence may be manifestly excessive because the wrong type of sentence has been imposed, for example, custodial rather than non-custodial, or because the sentence imposed is manifestly too long: Dinsdale v The Queen (2000) 202 CLR 321 at 324-325.
12 I understand the first three subparagraphs of the ground of appeal to be little more than particulars of the claim that the sentence was manifestly excessive: see Dinsdale v The Queen (supra) at 325. As to what is meant in law by insufficient weight, and by extrapolation, excessive weight, see Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614, which was referred to with approval in Dinsdale (supra) at 330.
13 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337 at 342.
Whether Sentence Excessive
14 The offence of aggravated burglary is serious. The maximum penalty for the offence is 20 years' imprisonment.
15 The circumstances of the offence committed by each applicant were also serious. There were multiple aggravating factors. They were armed with a metal bar; they were in the company of two others; they did bodily harm to the complainant and they knew or ought to have known that the complainant would be present in his bedroom at the university college. Indeed, as the sentencing Judge found the applicants' purpose in going to the college and entering the bedroom was to confront the complainant.
16 The applicants contended that the seriousness of the offence is lessened by the fact that the place entered without consent was a university residential college. The sentencing Judge considered that matter and, properly in my view, gave it little weight. The applicants' plea
(Page 7)
- of guilty is an acknowledgement that they did not have, or mistakenly believed they had, the complainants implied consent to enter his bedroom. That being the case, there is no proper basis to distinguish the applicants' conduct from other home invasions.
17 To the extent the applicants contend that the seriousness of the burglary offence is lessened because the offence committed in the complainant's bedroom was an assault and not a robbery, that is also without foundation. There is no justification for elevating protection of property above protection of a person. In my view, the matters relied upon by the applicants, do not lessen their culpability, or as they put it, the level of criminality of the offence.
18 The applicants also contend that the sentencing Judge placed too much weight on general deterrence. It was clearly a factor to which she accorded significant weight. She said:
"… the Court of Criminal Appeal has made it clear that it is incumbent upon sentencing judges to impose sentences upon offenders who commit offences such as this, deterrent penalties that will hopefully stop other like-minded people from committing offences of this nature.
I, as I have said, have come to the view that personal deterrence in your case is not a significant issue, because this offence has had such an effect on the four of you that I would have thought it is highly unlikely you will commit an offence like it again. Nonetheless, it is incumbent upon me to impose penalties which are generally deterrent. The simple fact is, as has been said on many occasions, that people have a right to feel they are safe in their own homes, and the law must do what it can to prevent people from invading the privacy of a person's home for the purposes of committing offences.
The courts must also do what they can by imposing deterrent sentences to stop people from using violence against other (sic), to stop people from using group violence against an individual, to stop using weapons against unarmed individuals. So again, for all those reasons it is necessary for me to impose deterrent penalties."
19 There is an obvious connection between the seriousness of an offence and the circumstances of its commission on the one hand and the weight to be given to general deterrence on the other. The sentencing
(Page 8)
- Judge's approach is consistent with this Court's approach to offences of the kind under consideration: see in particular Herbert v The Queen [2003] WASCA 61 per Anderson J at [130-133]; Lim v The Queen [2002] WASCA 228. The nature and circumstances of the offence committed by each applicant were objectively serious and would ordinarily merit immediate imprisonment.
20 The sentencing Judge had regard to the applicants' personal circumstances and antecedents. Both were young and of previous good character. Staunton was a 19 year old student studying commerce at university. He worked part time to support himself at university. He had no prior convictions and made a fast track plea of guilty.
21 Corbitt was also aged 19 years. He had for a time studied civil engineering at university, leaving after two years to earn some money to enable him to further pursue his studies. He had no prior convictions and also entered a fast track plea of guilty. Both applicants were remorseful for their conduct.
22 Indeed, it was because of the applicants' personal circumstances and antecedents that the sentencing Judge imposed a relatively short sentence of 12 months and suspended it. The only relevant issue was whether the sentencing Judge imposed the wrong type of sentence.
23 As stated by the High Court in Dinsdale v The Queen (supra) at 325, manifest excess is, or is not, plainly apparent and is a conclusion which frequently does not admit of amplification. Having regard to and balancing all relevant factors in particular the serious nature and circumstances of the offence as described above and each applicants personal circumstances and antecedents, I was not persuaded that a 12 months' suspended sentence is manifestly excessive.
Parity
24 Mere disparity between the sentence imposed on co-offenders is not of itself a ground for the intervention of an appellate court. There must be a marked disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606.
25 In determining whether the parity principle has been observed, the different circumstances of the co-offenders, including degrees of criminality, must be considered: Postiglione v The Queen (1997) 189 CLR 295.
(Page 9)
26 The Court of Appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence which is not excessive or inappropriate considered apart from the discrepancy: Lowe v The Queen (supra) at 613-614; Nicholls v The Queen, unreported; CCA SCt of WA; Library No 930584; 7 September 1993.
27 The sentencing Judge concluded that the applicants' level of culpability was greater than that of Marko and Dragan Savic. In particular, she referred to the fact that they were not instrumental in gaining unlawful entry into the complainants' bedroom through the balcony, that neither was armed and, apart from a suggested push, neither of them took part in the actual physical assault on the complainant. It is not suggested that the sentencing Judge erred in her identification or statement of these facts. The sentencing Judge imposed on each of the co-offenders an intensive supervision order and 200 hours community work. In terms of the hierarchy of penalties, an intensive supervision order is ranked immediately behind a suspended term of imprisonment in order of severity. The facts identified by the sentencing Judge support her conclusion that the applicants' level of culpability exceeded that of the co-offenders. I was satisfied that the difference in level of culpability is such that there is no improper disparity between the sentences.
28 For these reasons, I dismissed the applications.
29 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of McLure J.
30 I only wish to add that even where there has been some error on the part of the sentencing Judge, before a Court of Criminal Appeal can substitute a sentence for that imposed by a sentencing Judge, it must be of the opinion that a different sentence should have been passed – Criminal Code (WA), s 689(3). The Court cannot alter a sentence if the sentence imposed was not incorrect.
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