Stokke v The State of Western Australia
[2015] WASCA 131
•25 JUNE 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STOKKE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 131
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 11 FEBRUARY 2015
DELIVERED : 11 MARCH 2015
PUBLISHED : 25 JUNE 2015
FILE NO/S: CACR 133 of 2014
BETWEEN: SHANE KARL STOKKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 995 of 2013
Catchwords:
Appeal against sentence - Stealing - Accessory after the fact of arson - Whether infringement of the parity principle - Whether individual sentences manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 7, s 143, s 172, s 378, s 562(1)
Criminal Procedure Rules 2005 (WA), r 31
Sentencing Act 1995 (WA), s 9AA, s 32
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr A Robson
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abdullah v The State of Western Australia [2011] WASCA 21
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Barnden v The State of Western Australia [2014] WASCA 161
Chan v The Queen (1989) 38 A Crim R 337
Edmonds v The State of Western Australia [2013] WASCA 255
Fullgrabe v The State of Western Australia [2013] WASCA 130
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Jardim v The State of Western Australia [2011] WASCA 83
JKL v The State of Western Australia [2012] WASCA 215
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368
McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134
Mikulic v The State of Western Australia [2009] WASCA 150; (2009) 197 A Crim R 94
Morcom v The State of Western Australia [2013] WASCA 31
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Hendra [2014] ACTSC 102
Roffey v The State of Western Australia [2007] WASCA 246
Sloane v The State of Western Australia [2013] WASCA 53
Staker v The State of Western Australia [2012] WASCA 63
Stoysich v The State of Western Australia [2014] WASCA 208
Turnbull v The State of Western Australia [2013] WASCA 5
Wolfenden v Brigden [2013] WASC 461
Wroth v The State of Western Australia [2013] WASCA 155
REASONS OF THE COURT:
Introduction
This appeal against sentence was heard on 11 February 2015. On 11 March 2015, the court unanimously made the following orders:
(1)an extension of time within which to appeal is granted;
(2)leave to appeal is granted on ground 1;
(3)the appeal is allowed;
(4)the sentences imposed by Stevenson DCJ on 30 May 2014 are set aside;
(5)the appellant is sentenced as follows: on count 1, 7 months' imprisonment; on count 2, 20 months' imprisonment. The sentences are to be served cumulatively and are to commence on 17 April 2014. For the avoidance of doubt, the total effective sentence is thus 2 years 3 months' imprisonment;
(6)the appellant is eligible for parole.
What follows are our reasons for the making of these orders.
The appeal
The appellant sought an extension of time to appeal and, if granted, to appeal against sentence. The appeal was filed 20 days out of time. The respondent did not oppose the application. In these circumstances, the extension of time was granted.
The appellant was charged on indictment with one count of stealing, contrary to s 378 of the Criminal Code (WA) (count 1) and one count of being an accessory after the fact to an offence of arson, contrary to s 10, read with s 562(1) of the Criminal Code (count 2).
On 17 April 2014, after a trial before Stevenson DCJ and a jury, the appellant was convicted as charged.
On 30 May 2014, the appellant was sentenced to 14 months' imprisonment on count 1 and 30 months' imprisonment on count 2. His Honour ordered that the sentence on count 2 commence after the appellant had served 6 months on count 1. Thus, the total effective sentence imposed upon the appellant was 3 years' imprisonment. This sentence was ordered to commence on 17 April 2014. The appellant was made eligible for parole. In addition, he was disqualified from holding or obtaining a driver's licence for a period of 18 months. No issue was taken in this appeal with the disqualification.
The grounds of appeal, as expressed in the appellant's case, alleged an infringement of the parity principle (ground 1); the individual sentences were manifestly excessive (ground 2); and the total effective sentence infringed the first limb of the totality principle (ground 3). Leave to appeal was granted with respect to grounds 2 and 3. The question of leave in respect of ground 1 was referred to the hearing of the appeal.
During the hearing of the appeal, the appellant sought leave to amend the grounds by adding a further ground of appeal, which we will refer to as proposed ground 4. Ground 4 alleges that the learned sentencing judge erred in law by sentencing the appellant upon the basis that he was a party to the arson, rather than being an accessory after the fact (appeal ts 30 ‑ 31). The parties were permitted to file written submissions in respect of proposed ground 4 and did so.
The facts of the offending
At about 10.30 pm on 2 March 2013, the appellant, his older brother Kristien Stokke, Brittany Hooper (Kristien's girlfriend) and Shane Wolff went by car from Kristien's residence to the Endeavour Tavern in Lancelin. The purpose of the trip was to purchase alcohol.
The appellant, who had been drinking all day and who did not possess a valid driver's licence, drove to the tavern in a Holden Commodore. Kristien Stokke was in the front passenger seat, while Ms Hooper and Mr Wolff were in the rear passenger seats.
The appellant parked the Commodore in the carpark at the front of the tavern, next to a blue Holden Astra. Unbeknown to those in the Commodore, the owner of the tavern had recently installed a CCTV camera which overlooked the carpark. That camera recorded the movement of the occupants of the Commodore.
Shortly after the Commodore came to a halt, Ms Hooper got out of the car and entered the tavern to purchase the alcohol. The appellant also got out of the car. The CCTV footage shows that he walked up to the front tavern steps and placed an empty drink can into a bin. He then returned to the vehicle.
Meanwhile, Kristien Stokke got out of the Commodore and walked over to the Astra. He then smashed the driver's side window, leant in and began removing the contents of the vehicle. He transferred the property in the Astra to the back seat of the Commodore. As he was doing this, the appellant remained seated in the Commodore.
As this was occurring, two people walked out of the tavern. In order to warn his brother to stop what he was doing, the appellant started his vehicle and reversed it into another car bay opposite to the Astra. Kristien Stokke then ceased stealing items from the Astra. In all, he took a substantial number of items belonging to four victims who had been sharing the use of the Astra. Those items were worth approximately $2,650.
By this point, Ms Hooper was still in the tavern. While waiting for her to return, Kristien Stokke got out of the Commodore and walked to the Astra. Realising he had left forensic evidence in the Astra which might incriminate him, he opened the passenger door, bent down and set fire to the car. The fire soon took hold and destroyed the car. The Astra was valued at $12,300. During all of this, the appellant sat in the Commodore with the stolen property still in the rear seat.
Soon after the Astra was set on fire, Ms Hooper left the tavern and walked towards the spot where the Commodore had been parked. Upon seeing that the Commodore had moved and the Astra was on fire, Ms Hooper changed direction and walked towards where the Commodore was now parked. Instead of getting into the car, she continued to walk in the direction of a Norfolk pine tree at the side of the tavern.
The appellant drove the Commodore to where Ms Hooper was. Eventually she got into the car, which then left the tavern carpark. A short time later, it stopped near a backpackers' lodge.
A State witness heard an argument occurring. She telephoned the police. The appellant and others got out of the car and rummaged through a cooler which had been stolen from the Astra. Some of the property in the cooler was thrown into nearby bush.
On 3 March 2013, the police executed a search warrant at 20 Casserley Way, Lancelin, the home of the appellant and his brother. During this search, the police located some (but not all) of the property which had been stolen from the Astra. The property was either located in the house itself, wedged in the front passenger seat of the Commodore or in a backpack belonging to the appellant's partner's child. When he was questioned about the stolen property, the appellant said that the majority of it belonged to him. He could not account for the stolen property found in the backpack. During the search video and a video record of interview, the appellant lied to the police about his whereabouts when the offences were committed, as well as the ownership of the property found at his home. He told the police he had not been to the tavern on the night in question.
The appellant testified at trial. He said that a number of the items found by the police at his house had been legitimately acquired by him and had not been stolen. He also testified that, when he left the carpark, his brother and Ms Hooper were not in the car. The appellant did not admit that he was the driver of the car until he gave evidence.
The appellant's antecedents
The appellant was 26 years of age at the time of the offences and 27 when he was sentenced. He has good relationships with his parents and siblings, including his brother Kristien Stokke, although, in the pre‑sentence report, the appellant expressed the feeling that he had been intimidated by him. Kristien Stokke left school at the age of 14 years and has since worked in the family crayfishing business, as well as in other occupations.
The appellant has been using methylamphetamine since he was approximately 20 years of age and is prone to binge drinking. On the night he committed the offences the subject of this appeal, he was under the influence of alcohol and had been using methylamphetamine. The appellant has a reasonably lengthy record of prior convictions as an adult, including for possession of drugs, threats to injure, endanger or harm, criminal damage, disorderly conduct and various driving offences. He had never previously been sentenced to immediate imprisonment.
Stevenson DCJ's sentencing remarks
As we have already mentioned, the appellant was sentenced by his Honour on 30 May 2014.
In discourse with the appellant's counsel, his Honour made the following observation:
With respect to the fire … parks his car, his brother gets out of the car. He doesn't say naturally what he knew or didn't know, why his brother was going back to the car, but quite plainly there was a decision made to torch the vehicle because there may have been some forensic evidence left inside it. So he waits while his brother goes to the car.
On his own evidence, he sees smoke from the car before he leaves the car park, tells the jury that he left the carpark without his brother, another lie, that's not true. He left with both his brother and his brother's girlfriend. So he has been equally culpable when it comes to the law in relation to the commission of these offences. He has participated to the same extent as his brother apart from the actual doing of the act. But the law says, s 7 [Criminal Code], he is as guilty (ts 536).
At the commencement of his sentencing remarks, his Honour said:
I incorporate into these sentencing remarks the submissions I've had and discussions I've had with both counsel earlier today for the purpose of sentence. And I don't propose to repeat everything that was covered in those comments (ts 550).
Thus, the comment made concerning the appellant's culpability under s 7 of the Criminal Code appears to have been incorporated into his Honour's sentencing remarks.
His Honour accepted that the offending was not premeditated and that the appellant was in a difficult situation by reason of his relationship with Kristien Stokke.
He characterised the appellant's offending as serious, noting that the appellant chose to 'actively assist' and 'support' his brother in the theft of the property from the Astra and then, after he set fire to the Astra, by driving him away from the scene. His Honour regarded it as an aggravating factor that, at the time the appellant drove his vehicle, he did not have a valid driver's licence.
His Honour concluded that the appellant made 'every effort to avoid liability and responsibility' for his offending by lying to the police and, until trial, denying that he drove to the tavern. The learned sentencing judge observed that the appellant did nothing to protest or indicate to his brother that he should cease stealing property from the Astra.
His Honour took a negative view of the appellant's conduct during the police search of the house. In addition to lying to the police, the appellant 'big‑noted' himself.
His Honour found that the appellant was not remorseful, had no insight into his offending and was unwilling to accept responsibility for his conduct (ts 560).
His Honour referred to the appellant's criminal record, describing it as showing 'a persistent disregard for the law' (ts 561).
His Honour was cognisant of the fact that, at the time he sentenced the appellant, Kristien Stokke had not been sentenced. His Honour referred to this, noting that Kristien Stokke was due to be sentenced in the Supreme Court on 12 August 2014 and that, if he pleaded guilty, he (Kristien Stokke) may receive a lesser term of imprisonment than the appellant (ts 562).
His Honour considered that the appellant's offending was so serious as to justify only terms of imprisonment. He considered whether the terms should be suspended, but decided that, having regard to all of the circumstances, it was inappropriate to do so.
His Honour considered that totality required partial concurrency of the sentences. Thus, he ordered that the sentence on count 2 commence 6 months after the commencement of the sentence on count 1.
The sentencing of Kristien Stokke
The facts of Kristien Stokke's offending
Kristien Stokke was charged in the Supreme Court on indictment with stealing and the arson of the Astra vehicle. On 12 August 2014, he pleaded guilty before Simmonds J to these offences. He also pleaded guilty to one count of attempting to obstruct the course of justice, contrary to s 143 of the Criminal Code, and to obstructing a police officer, contrary to s 172 of the Criminal Code. The latter offences were contained in a District Court indictment, which was transferred to the Supreme Court pursuant to r 31 of the Criminal Procedure Rules 2005 (WA). Kristien Stokke pleaded guilty to a further 10 counts contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA), specifically, two counts of stealing; two counts of stealing a motor vehicle; two counts of driving contrary to a learner's permit; one count of failing to stop; one count of breach of bail; one count of aggravated reckless driving and one count of aggravated failure to stop.
On 14 August 2014, Simmonds J sentenced Kristien Stokke to a total effective sentence of 4 years 8 months' imprisonment with eligibility for parole. With respect to the offences of stealing and arson committed on 2 March 2013, the appellant was sentenced to 7 months' imprisonment and 27 months' imprisonment respectively, to be served concurrently; that is, a total of 27 months' imprisonment.
It is unnecessary to repeat in great detail the facts of the offences committed by Kristien Stokke in addition to those committed on 2 March 2013. In respect of the offences in the District Court indictment, on 27 March 2013, Kristien Stokke, while on bail for the offences he had allegedly committed with the appellant, was arrested in Boulder for an offence of stealing. He falsely told the police that his name was Bjorn Stokke and entered into a bail undertaking in that name. On 29 March 2013, police stopped a vehicle in which he was driving. When requested by police to give his name, he once again gave the false name of Bjorn Stokke. Upon being placed under arrest, he obstructed police by resisting their efforts to handcuff him and then running away.
With respect to the s 32 notice offences, Kristien Stokke stole liquor from bottle shops on 27 March 2013 and 22 April 2013. He failed to appear in the Stirling Gardens Magistrates Court on 17 April 2013, which resulted in a warrant for his arrest being issued. He remained at large until December 2013. During that time, he went to the Northern Territory. There, Kristien Stokke committed further offences for which he was given a term of suspended imprisonment.
Between 17 and 18 December 2013, Kristien Stokke stole a Toyota Landcruiser from a house in Leeman. On 21 December 2013, he drove it recklessly in a high speed pursuit by police, managing to temporarily avoid capture.
Later on 21 December 2013, Kristien Stokke was once again seen by police, this time on foot in the Lancelin town site. In order to avoid the pursuing officers, he stole their police vehicle. He was then pursued by police driving a number of marked vehicles with their emergency lights activated. Instead of stopping when called upon, he continued to drive, avoiding apprehension for about 2 1/2 hours.
Kristien Stokke's personal circumstances
Kristien Stokke was, at the time of his offending, between 28 and 29 years of age. He was educated up to year 9. After leaving school he, like the appellant, was employed in the family crayfishing business. Like the appellant, Kristien Stokke has a history of alcohol and substance abuse. Kristien Stokke's convictions include offences of aggravated assault, home burglary, stealing a motor vehicle, stealing, damage, common assault, assault occasioning bodily harm, indecent assault, aggravated possession of a firearm, administration of an illegal substance and possession of a smoking implement. His criminal history is worse than the appellant's. In contrast to the appellant, Kristien Stokke has served several terms of immediate imprisonment.
Simmonds J's sentencing remarks - Kristien Stokke
With respect to the stealing and arson offences committed on 2 March 2013, Simmonds J regarded the aggravating circumstances to be as follows:
(a)As to the stealing offence, the value of the items taken in total was significant.
(b)As to the arson offence, the offending was premeditated and motivated by a desire to destroy the evidence of the theft. Further, the property damage and destruction was significant. Finally, the fire was lit in an area where there was a risk that the fire would spread and Kristien Stokke made no effort to put it out.
The principal aggravating factors for the other offences committed by Kristien Stokke were that he was on bail and, in respect of the offences committed in December 2013, he was subject to a Northern Territory suspended imprisonment order.
As to mitigating factors, Simmonds J observed that Kristien Stokke had pleaded guilty to all of the offences before him. With respect to the offences of stealing and arson, those pleas were not entered at the first reasonable opportunity and attracted a discount of 10% pursuant to s 9AA of the Sentencing Act. All of the other pleas were entered at the first reasonable opportunity and attracted a discount of 25% pursuant to s 9AA of the Sentencing Act. Simmonds J noted that the appellant had some victim empathy and accepted responsibility for the offences committed on 2 March 2013. His Honour, perhaps generously, took a positive view of Kristien Stokke's prospects of rehabilitation.
Simmonds J, being aware of the sentences imposed upon the appellant, turned his mind to the question of parity with respect to the offences committed by the appellant on 2 March 2013. His Honour did not consider that the parity principle applied to the offence of arson committed by Kristien Stokke, having regard to the fact that the appellant was convicted of a different offence. With respect to the stealing offence, his Honour said that the parity principle did not provide him with any substantial assistance because of the different role played by the appellant, his plea of not guilty and the absence of remorse and victim empathy on his part.
Simmonds J had regard to the totality principle, but it is unclear from his Honour's sentencing remarks whether he reduced the individual sentences he imposed for this purpose. Certainly, he made orders with respect to concurrency and cumulacy.
Disposition of the grounds of appeal
We will deal with the grounds of appeal in this order: proposed ground 4, grounds 2 and 3, and finally, ground 1.
Consideration of proposed ground 4 - did his Honour sentence the appellant as if he had committed the offence of arson?
Proposed ground 4 is, in substance, an assertion that his Honour sentenced the appellant on count 2 on the erroneous basis that he had committed the offence of arson. Arson carries a maximum sentence of life imprisonment. Being an accessory after the fact carries a maximum penalty of 14 years' imprisonment. If the appellant was sentenced on the basis he alleges, his Honour would have plainly fallen into error. This is because it is a fundamental principle of sentencing that 'no one should be punished for an offence for which he has not been convicted': R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389. See also Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368.
As we noted earlier in [25] of these reasons, at the outset of the sentencing remarks, his Honour said he incorporated into them 'the submissions … and discussions [he] had with both counsel earlier today for the purpose of sentencing' (ts 550).
The appellant submits that, in the discussions that took place prior to the delivery of his sentencing remarks, his Honour, in substance, found that the appellant knew when Kristien Stokke got out of the car that he (Kristien Stokke) was going to burn the victim's vehicle. Thus, it is said the appellant was sentenced as if he had committed the offence of arson, or alternatively, that he was equally as culpable for the arson of the vehicle as his brother.
The appellant's submissions were supported by a number of excerpts from the transcript of the sentencing proceedings, including the quotation set out at [24] of these reasons. The appellant also pointed to parts of his Honour's sentencing remarks, in particular at ts 555 and 561 ‑ 562.
The respondent submits that, when the excerpts relied upon by the appellant are seen in context, and, having regard to the discussion that his Honour had with the prosecutor (ts 544, 547 and 548) and the sentencing remarks as a whole, his Honour did not make the error alleged in proposed ground 4.
While it is sometimes a convenient way of avoiding undue repetition of matters which are agreed or undisputed, the procedure of incorporating into sentencing remarks matters referred to in submissions must be carried out with care. To avoid confusion and misunderstanding, a sentencer should be precise about what matters are being incorporated into the sentencing remarks. In the present case, and with great respect to his Honour, the statement he made at the beginning of his remarks was extremely general and imprecise. We doubt very much that his Honour wished to incorporate literally everything that was said in the submissions.
Notwithstanding the submissions made by the appellant before this court, we are satisfied that, upon a proper reading of the sentencing remarks, his Honour did not fall into the error alleged in proposed ground 4.
The starting point is that it was patently clear that Kristien Stokke had been charged with arson and the appellant had not. The appellant was convicted of what is obviously a lesser offence. It was never alleged that the appellant had actually set fire to the car. However, it was beyond dispute that the appellant was aware of what his brother had done within a very short time after it occurred, and that he immediately drove Kristien Stokke from the scene with a view to his brother evading criminal responsibility and punishment for the destruction of the victim's car.
It is plain from reading the sentencing submissions that his Honour thought that the appellant could very arguably have been charged (and convicted) of arson upon the basis that he knew his brother was going to set the victim's car alight prior to him doing so, and that the appellant aided his brother in the commission of that offence. The comments made by his Honour during the course of defence counsel's plea in mitigation are to this effect. However, after defence counsel made his plea in mitigation, the prosecutor encapsulated the State's position with respect to count 2 by saying:
… in relation to count 2 [the appellant has] been convicted as an accessory concerning driving Kristien Stokke away and removing him from the scene of the fire. The criminality is different. The motive is to protect his brother from a serious criminal offence which he knew about (ts 548).
Consistently with the prosecutor's statement, his Honour summarised the appellant's involvement in count 2 as 'driving your brother away from the Endeavour Tavern after [he] had, to your knowledge, set the vehicle that he had broken into on fire' (emphasis added) (ts 552 ‑ 553).
It is true, as the appellant points out, that, in the sentencing remarks, his Honour stated that it was 'a very strong implication' that the reason the appellant waited in the carpark was to facilitate 'what [his] brother had gone back to the vehicle to do' (ts 555). However, to our minds, it is significant that his Honour did not go on to make a finding that, when his brother left the car, the appellant knew that he was going to set fire to the victim's vehicle.
During the course of his sentencing remarks, his Honour referred to statements by Buss JA in Mikulic v The State of Western Australia [2009] WASCA 150; (2009) 197 A Crim R 94, to which we will refer again in these reasons. For now, it is sufficient to note that Buss JA identified that one of the factors to be taken into account in sentencing an accessory is the knowledge of the accessory in relation to the offence committed by the principal offender and when and in what circumstances the knowledge was acquired. In this regard, Stevenson DCJ stated 'I've also commented on your knowledge that before you left the carpark you, on your own evidence, were completely aware that your brother had torched the vehicle' (ts 561 and 562).
We accept the respondent's submission that, taken as a whole, the appellant was properly sentenced according to law as an accessory after the fact and not as an arsonist.
Proposed ground 4 has not been made out. In these circumstances, leave to amend the grounds of appeal should be refused.
Consideration of grounds 2 and 3 - manifest excess and totality
Grounds 2 and 3 allege implied error. Before an individual sentence can be said to be manifestly excessive or the total effective sentence found to have infringed the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 [26].
The orthodox approach to the question of manifest excess is to examine the individual sentence having regard to the maximum sentence for the offence, the gravity of the criminal conduct in the scale of seriousness for offences of the kind in question, sentences customarily imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
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: Roffey v The State of Western Australia [2007] WASCA 246 [24].
Ground 2 alleges that the individual sentences were manifestly excessive.
With respect to the sentence of 14 months' imprisonment imposed for the offence of stealing, it was submitted on behalf of the appellant that, having regard to the relatively modest value of the property stolen, the appellant's role as an aider, the appellant's personal circumstances and sentences in other cases, 14 months' imprisonment was unreasonable or plainly unjust.
In respect of the sentence for being an accessory after the fact of arson, some emphasis was placed in the written submissions upon the sentences customarily imposed for the offence of arson. The appellant submitted that the sentence imposed upon the appellant was more consistent with the commission of the principal offence rather than an offence being an accessory after the fact.
We will deal first with the allegation that the sentence imposed on count 1 was manifestly excessive.
The maximum penalty for stealing is 7 years' imprisonment.
Although the appellant was not the principal offender, he played an important role in the commission of the offence because he:
(a)did nothing to stop his brother stealing the items from the Astra;
(b)allowed the Commodore to be used as a place to store the goods;
(c)in effect, acted as a lookout for Kristien Stokke, warning him when strangers left the tavern and walked in the direction of the carpark;
(d)drove the Commodore from the scene with the stolen property in it;
(e)kept some of the stolen items for himself; and
(f)lied to the police about the provenance of the items they discovered during the search on 3 March 2013.
We accept that the value of the items stolen was modest, but that is not the only matter to be considered when gauging the seriousness of the offence committed by the appellant. No doubt, the loss of the items (whatever their value) caused the victims needless inconvenience and expense.
There was little, if anything, that could be said in favour of the appellant. He was not remorseful for what he had done, nor did he take responsibility for the offending. His personal circumstances were not mitigating. He had a prior record of offending which underscored the need for personal deterrence. The appellant did not have the advantage of a plea of guilty.
Counsel for the appellant cited a number of cases to support the proposition that the sentence of 14 months' imprisonment was manifestly excessive, namely Abdullah v The State of Western Australia [2011] WASCA 21; Wolfenden v Brigden [2013] WASC 461; Fullgrabe v The State of Western Australia [2013] WASCA 130; Barnden v The State of Western Australia [2014] WASCA 161 and R v Hendra [2014] ACTSC 102.
Previous cases are a yardstick against which to measure a sentence or proposed sentence, with the aim of achieving consistency in the application of principle and broad consistency in outcome. The results in other cases do not mark the upper or lower limb of a permissible sentencing discretion. Ultimately, each case must be decided upon its own facts and circumstances.
The cited cases do not advance the arguments put by the appellant. Wolfenden and Hendra are cases decided by single judges. Hendra is a first instance sentence from another jurisdiction. Consistency in sentencing is to be achieved through the work of intermediate courts of appeal: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56].
The remaining cases - Abdullah, Fullgrabe and Barnden - are decisions of this court. It is unnecessary to repeat the facts and circumstances of each case. It is sufficient to note that:
(a)The facts and circumstances of Barnden were completely different to the facts and circumstances of the present case. The issue to be determined in that case was whether there had been an infringement of the parity principle and not any issue of manifest excess.
(b)In Abdullah, the appellant's culpability was ameliorated by a number of matters. Moreover, the appellant cooperated with police, entered a fast‑track plea of guilty and had taken positive steps towards his rehabilitation, circumstances which do not apply to the appellant.
(c)In Fullgrabe, no challenge was made to the sentence imposed for the count of stealing (10 months' imprisonment); rather, the challenge was to the sentence imposed for aggravated burglary, and also the total effective sentence.
The individual sentence imposed upon the appellant for the offence of stealing was, in our view, high, but, having regard to all the circumstances we have mentioned and, in addition, the need to provide a measure of personal deterrence, we are not satisfied that the sentence was unreasonable or plainly unjust. It is not, in our opinion, manifestly excessive.
We now turn to the sentence of 2 years 6 months' imprisonment for the offence of being an accessory after the fact of arson. The maximum penalty for this offence is 14 years' imprisonment.
In Mikulic, Buss JA set out a number of factors which may be relevant in sentencing an accessory after the fact with respect to drug offences. Although not exhaustive, the factors which he enumerated have general application and are useful in gauging the seriousness of the appellant's involvement in the present case. The factors identified by his Honour included:
(a)the nature and extent of the assistance provided by the accessory to principal offender;
(b)whether the assistance adversely affected, or was likely to adversely affect, the ability of the law enforcement authorities to identify, apprehend and prosecute the principal offender;
(c)the knowledge of the accessory in relation to the offences committed by the principal offender and when and in what circumstances the knowledge was acquired;
(d)the relationship between the accessory and the principal offender;
(e)the accessory's motive for providing assistance; and
(f)whether the assistance was provided wholly or in part for commercial gain.
In the present case, while the appellant was not aware that Kristien Stokke intended to commit the offence of arson, the appellant willingly and immediately acted to assist his brother to avoid detection and prosecution for the arson of the Astra vehicle. Such conduct constituted a serious criminal offence. The appellant then lied to the police with the twin motives of concealing his own involvement and that of Kristien Stokke. Fortunately, the events surrounding the arson were captured by a CCTV camera which had been recently installed in the tavern's carpark.
There are no decisions of this court with respect to sentences imposed for the offence of being an accessory after the fact of arson.
The appellant relied upon a number of sentencing cases in this court with respect to the principal offence of arson, namely McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134; JKL v The State of Western Australia [2012] WASCA 215; Turnbull v The State of Western Australia [2013] WASCA 5; Morcom v The State of Western Australia [2013] WASCA 31; Sloane v The State of Western Australia [2013] WASCA 53; Wroth v The State of Western Australia [2013] WASCA 155 and Edmonds v The State of Western Australia [2013] WASCA 255.
These cases have been decided since the maximum penalty for arson was increased in 2009 from 14 years' imprisonment to life imprisonment.
The appellant argued that the range of sentences customarily imposed for arson of a motor vehicle was between 6 months and 4 years' imprisonment. The appellant further submitted that the sentence imposed upon him was more consistent with the sentencing standards for the principal offence of arson, rather than for the offence with which the appellant was convicted, noting that it carries a lower maximum penalty.
Some of the cases cited by the appellant's counsel do concern the arson of a motor vehicle: see JKL, Morcom, Sloane, Turnbull and Wroth. Having read those cases, we do not consider that they establish any range of sentences, let alone the range contended for by the appellant. However, even if they did, the appellant's argument cannot be accepted.
It does not follow that, because a sentence imposed for being an accessory after the fact falls within the range of sentences customarily imposed for the principal offence, it must be erroneous. As we said earlier in these reasons, each case must be decided upon its own facts and circumstances. The fact that an appropriate sentence for being an accessory after the fact falls within the range of sentences customarily imposed for the principal offence may well be explained, as it is in this case, by the seriousness of what the appellant did and the limited mitigation.
We have already referred to the appellant's personal circumstances and noted that they were not mitigating.
Having regard to all of the circumstances surrounding the commission of count 2, the maximum penalty for the offence and the appellant's personal circumstances, we do not regard the sentence of 2 years 6 months' imprisonment as being unreasonable or plainly unjust. It is not manifestly excessive.
Ground 3
We now turn to ground 3, which alleges that the total effective sentence infringed the totality principle. The appellant's submissions with respect to this ground are, in substance, merely assertive.
In our opinion, the total effective sentence imposed upon the appellant did not infringe the first limb of the totality principle. His Honour had express regard to the totality principle and applied it by ordering the partial concurrency. Although the offences were committed close in time, it does not follow that total concurrency was appropriate. Having regard to the overall criminality involved in the offences committed by the appellant, viewed in its entirety and having regard to the circumstances of the case, including those referable to the appellant personally, we have not been persuaded that the total effective sentence did not bear a proper relationship to these factors. The total effective sentence imposed upon the appellant of 3 years' imprisonment was not unreasonable or plainly unjust.
Neither ground 2 nor ground 3 has been made out. We now turn to ground 1.
Ground 1 - parity
The question of parity arises in this case because of the sentence imposed by Simmonds J upon Kristien Stokke. In fairness to Stevenson DCJ, it must be acknowledged that Kristien Stokke was sentenced after the appellant.
Kristien Stokke received a total effective sentence of 4 years 8 months' imprisonment for the large number of offences he committed, including for offences arising out of the events on 2 March 2013. The appellant, on the other hand, committed only counts 1 and 2, for which he received a total effective sentence of 3 years' imprisonment. The appellant's argument is that, when one has regard to the fact that Kristien Stokke was convicted of the more serious offence of arson and faced numerous additional charges, the disparity of 1 year 8 months' imprisonment in the total effective sentences imposed upon them is insufficient and gives rise, on his part, to an objectively justifiable sense of grievance. It is submitted that this court should now intervene and reduce the sentences imposed upon the appellant by Stevenson DCJ.
The parity principle has been considered frequently by this court in recent years.
In Stoysich v The State of Western Australia [2014] WASCA 208, Buss JA (with whom Martin CJ and Mazza JA agreed) set out the relevant law with respect to the parity principle. It is useful to repeat what his Honour wrote ([39] ‑ [45]):
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, 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 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.
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].
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] - [203] (Campbell JA, Rothman J generally agreeing), [245] - [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] - [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] - [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] - [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
'The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].'
The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
'If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [27].'
See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing).
While the appellant and his brother were not charged with offences which were completely identical, they were each charged with stealing and an offence arising out of the arson of the Astra. This is not an impediment to the application of the parity principle, as formal identity of charges against offenders whose sentences are compared is not a necessary precondition of its application: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30]. Further, the fact that Kristien Stokke was convicted of offences committed after 2 March 2013 does not mean that the parity principle can have no application, although the comparison may be more difficult. This court has previously concluded that, where the parity principle applies to one or more of a greater number of offences for which offenders are sentenced, it may be appropriate to carry out a comparison of the total effective sentence for all offences: Jardim v The State of Western Australia [2011] WASCA 83 [14] and Staker v The State of Western Australia [2012] WASCA 63 [33].
The comparison can be meaningfully made because the charges arising out of the events of 2 March 2013 have sufficiently common features and made up a substantial proportion of the total effective sentence imposed upon Kristien Stokke.
Thus, in the present case, the correct approach to be taken to the parity principle is to have regard to the total effective sentence imposed upon the appellant, on the one hand, and Kristien Stokke, on the other hand, rather than merely the sentences that were imposed only for the offences committed on 2 March 2013.
Kristien Stokke's overall offending was plainly more serious than the appellant's. He was the principal offender in respect of the offences committed on 2 March 2013. He then committed the further offences set out in [38] to [41] (inclusive) of these reasons, many of which involved serious criminality.
Neither appellant had good antecedents, but Kristien Stokke had committed more serious offences in the past, and his criminal history was worse than the appellant's.
In Kristien Stokke's favour were his pleas of guilty and Simmonds J's finding that he was remorseful and had insight into his offending. The same cannot be said of the appellant.
Even taking into account the matters favourable to Kristien Stokke, it must be said that his overall criminality was much greater than the appellant's. In our opinion, the differences in their criminality is insufficiently reflected in the disparity of 20 months' imprisonment in the total effective sentences they received. To our mind, the appellant has been left with an objectively justified sense of grievance. The parity principle has been infringed. This court's intervention in the terms of the orders which were made on 11 March 2015 was required to remedy the appellant's legitimate and justifiable sense of grievance.
5
37
3