The State of Western Australia v Houston - [2005] WASCA 167

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOUSTON [2005] WASCA 167

CORAM: STEYTLER P
ROBERTS-SMITH JA
PULLIN JA

HEARD: 9 AUGUST 2005

DELIVERED : 1 SEPTEMBER 2005

FILE NO/S: CACR 2 of 2005

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
STUART WILLIAM HOUSTON
Respondent

FILE NO/S :CCA 7 of 2005
CACR 59 of 2005

BETWEEN :STUART WILLIAM HOUSTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No              :  CACR 2 of 2005
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY CJDC
File No  :IND 5 of 2004
For File No              :  CCA 7 of 2005
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HEENAN J
File No  :IND 1822 of 2003
For File No              :  CACR 59 of 2005
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HEENAN J
File No  :IND 1822 of 2003

Catchwords:

Criminal law and procedure - Appeal against sentence and conviction - Whether trial Judge misdirected jury - Whether sentence was manifestly excessive

Criminal law and procedure - Crown appeal against sentence - Principles for Crown appeals - Whether cumulative rather than concurrent sentence should have been imposed - Turns on own facts

Legislation:

Criminal Code (WA), s 7

Result:

Appellant's application to appeal against sentence in CCA 7 of 2005 refused
Appellant's appeal against conviction in CACR 59 of 2005 dismissed
State's appeal against sentence in CACR 2 of 2005 dismissed

Category: D

Representation:

CACR 2 of 2005

Counsel:

Appellant: Mr B Fiannaca
Respondent: Mr M R Gunning

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Gunning Young

CCA 7 of 2005

CACR 59 of 2005

Counsel:

Appellant: Mr M R Gunning
Respondent: Mr B Fiannaca

Solicitors:

Appellant: Gunning Young
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Osenkowski (1982) 30 SASR 212
R v Ward (1999) 109 A Crim R 159
State of Western Australia v Miller (2005) 30 WAR 38
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Case(s) also cited:

Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992
Jarvis v The Queen (1993) 20 WAR 201
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
R v Everett (1994) 73 A Crim R 550
R v Valentine [2003] WASCA 7
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Woods v The Queen (1994) 14 WAR 341
Yates v The Queen [1985] VR 41

STEYTLER P: On 21 October 2004 the appellant in matter number CACR 59 of 2005 (to whom I shall refer, generally, as "the appellant", even though he is the respondent in matter number CACR 2 of 2005) was convicted, after trial, of the offences of armed robbery and deprivation of liberty. On 17 December 2004 he was sentenced to a total term of 5 years' imprisonment. Between 6 July and 13 July 2003 he conspired with others to manufacture a prohibited drug, methylamphetamine. He was convicted of that offence, after pleading guilty, on 31 January 2005. He was sentenced, on that day, to a term of 18 months' imprisonment to be served concurrently with the sentence imposed in respect of the offences of armed robbery and deprivation of liberty. The appellant has appealed against his conviction on the charges of armed robbery and deprivation of liberty (CACR 59 of 2005) and has sought leave to appeal against the total sentence imposed upon him in respect of those convictions (CCA 7 of 2005). The respondent has appealed against the sentence imposed upon the appellant in respect of his conviction on the charge of conspiracy to manufacture methylamphetamine (CACR 2 of 2005).
I will deal, first, with appeal in CACR 59 of 2005, then with that in CCA 7 of 2005 before dealing with that in CACR 2 of 2005.

CACR 59 of 2005

The offences of armed robbery and deprivation of liberty were said to have been committed by the appellant and a co‑offender, Michael Glanville, on 10 February 2003.

The prosecution case

The prosecution case depended largely upon the evidence of the complainant, James Stamper. His evidence was as follows.
Glanville knew Stamper. By the evening of 9 February 2003 he had been staying at Stamper's home for "a couple of nights". That evening, he brought the appellant to Stamper's home. Stamper said that Glanville always had a flask of wine with him and that Glanville and the appellant were drinking heavily that night. The appellant started pulling knives out of a drawer and throwing them around the house, "into the walls and everywhere". Stamper said that the appellant wanted to fight him and was talking about martial arts. Stamper became worried. He went to his bedroom and locked the door. He watched TV for a while and then went to sleep.
When Stamper woke up the next morning, the appellant and Glanville were still in the lounge room, drinking. Stamper had an appointment with Homeswest in Cannington around midday. He got ready to go to his appointment. The appellant "started grabbing the knife again and throwing it all over". Stamper said that, when the appellant was not throwing the knife at the wall, he was "menacing" Stamper with it. He said that he had to leave in order to keep his appointment, but Glanville put his body against the door and would not let him leave. At that time the appellant was standing next to him with a knife in his hand. The knife was pointed at Stamper.
Stamper suffered from a disorder which required him to take dexamphetamine tablets. Glanville told him that he and the appellant wanted those tablets. They were in a money belt that Stamper wore around his waist. Stamper took five or six tablets out of the money belt and handed them to Glanville. Glanville and the appellant then consumed them.
Stamper tried, a second time, to leave. Again, Glanville prevented him from doing so. Stamper said that Glanville and the appellant "were taking turns to cover … [him] with the knife". He said that one of the two men was standing over him and that the other one held a knife at his ribs. He said that the person "doing it the most" was the appellant.
Stamper said that, while the three men were in the lounge room, Glanville and the appellant had discussed killing him on several occasions, because they were worried that he would go to the police. He went into his bedroom in the hope that he could escape through his bedroom window. Glanville and the appellant followed him into his bedroom. He said that the appellant initially had the knife when they did so, but that the two men "were taking turns". He said that one of them was holding the knife against him while the other one was "covering" him. Glanville forced Stamper to roll over onto his stomach, while he was lying on the bed. At that stage Glanville held the knife. Glanville then cut the money belt from Stamper's waist and removed it. Stamper said that the appellant was standing next to Glanville in the bedroom. The two men started "throwing … [the dexamphetamine tablets] down their mouths". Stamper was uncertain whether they were then still in the bedroom or in the lounge room.
After Glanville and the appellant had returned to the lounge room, Glanville went back into the bedroom and demanded that Stamper give him his mobile phone which he wore about his neck, as well as the PIN code for it. Stamper was then sitting on his bed. He said that he presumed that, when Glanville asked for the telephone, the appellant was standing next to him but that it was very hard to remember "each sequence to each time frame". He said that, to the best of his recollection, the appellant was then standing next to Glanville and was holding the knife. He also said that the appellant was "in close proximity" and that he "was being covered at all times by both of them". He said that Glanville played around with the telephone and then handed it to the appellant.
At that time, Stamper said, he was pleading for his life. While the appellant was playing with the telephone, Glanville opened the door and let Stamper leave. Stamper walked to the Coolbellup Tavern and telephoned the police.
The prosecutor also adduced evidence in the form of Telstra Corporation records which established that, after Stamper's mobile telephone had been taken, Glanville used the telephone to make a number of calls.
Finally, so far as is presently relevant, the prosecutor tendered videotapes of interviews which the police had conducted with each of the appellant and Glanville. In the course of his interview, Glanville denied that any offences had been committed and said that Stamper had sold dexamphetamine tablets to him. He was reluctant to identify the appellant as having been the person who had been in Stamper's home with him. The appellant, in his interview with the police, also denied that he had committed any offence. He said that Glanville had bought some dexamphetamine tablets from Stamper and that Glanville had asked Stamper to give the appellant some tablets on the understanding that he would be paid for them later. He said that Stamper agreed to do so. He denied that he had taken a knife from the kitchen and suggested that Stamper might be after "criminal compensation or something". He said that there had not been "much going on". However, he also said that, at some time on 10 February 2003, Glanville and Stamper had been in the bedroom and that he had "stuck … [his] head in there to … see what was going on … and just left again". He said that the two men were "bickering at each other" and that it was not his "part" to say what they were doing. Later in his interview, he admitted that he had thrown a knife at the front door on one occasion because Glanville had been annoying him and he "wanted to go". He denied ever threatening Stamper with the knife. He denied any knowledge of Stamper's money belt being cut or of his mobile telephone being stolen. When asked whether or not he ever saw Glanville with a knife, he responded by saying he "basically sort of stayed back from whatever they were on about" and that he "didn't want to get dragged into what was going on". It was put to him that Stamper had had his money belt cut and that, if it was not the appellant who did it, this did not "leave many other options". He responded by saying, "I suppose it doesn't, does it?"

The defence case

Glanville did not give evidence at the trial. However, the appellant did. His evidence was essentially as follows.
He went to Stamper's house with Glanville because Glanville had told him that the complainant would not mind him doing so. They sat around having a couple of drinks. He had a conversation with Stamper about martial arts in the course of which he offended Stamper by criticising "a defensive move" shown to him by Stamper. He said that, after a while, all three men went to sleep, with the appellant sleeping on the floor of the lounge room.
On the following morning he and Glanville began drinking again. Glanville asked Stamper if they could buy some dexamphetamine tablets. Stamper gave 10 or so to him in return for money. Four or five of those were given to the appellant. The appellant said that that was "the whole extent of the dexamphetamines as to what was done and to where they went". He could not recall seeing Glanville do anything to intimidate Stamper. He said, as he had done during the course of his video‑recorded interview, that at one stage he threw a knife that he had picked up from a cabinet into the back of the front door. The cabinet from which he had taken the knife was in Stamper's bedroom. He said that he took it when he went in there to see what Stamper and Glanville were doing. Before that, he had been sitting in the lounge room by himself. He said that there had been "a bit of talking and … whinging" going on. When he looked into the bedroom, Stamper told him that he was to get out and he did so. He recalled that Stamper had had a mobile telephone, but he did not recall seeing anyone else with it. Nor did he recall seeing a money belt.

The trial Judge's directions

When he came to direct the jury, the trial Judge stressed that it was important for the jury to reach their verdicts concerning the charges separately, as between the appellant and Glanville, having regard only to the evidence which was admissible against each "particular accused" on the charge in question. He also directed the jury as regards s 7 of the Criminal Code (WA) to the effect that, when an offence is committed, a person can be guilty of that offence if he or she does or omits to do any act for the purpose of enabling or aiding another person to commit that offence.
The trial Judge told the jury that the defence case advanced on behalf of each of the accused men was "simply that they never stole anything", that certain tablets were given to them, that they did not steal the contents of the belt by the alleged episode in the bedroom and that there was no deprivation of liberty (appeal book 271). He also told the jury (appeal book 275) that, if they were satisfied beyond reasonable doubt that the version of events offered by Mr Stamper was correct, they would be justified in finding each of the men guilty. He went on to say (appeal book 282) that, if the jury was inclined to disbelieve either Glanville or the appellant's account of what occurred but were not "entirely sure about it", they would have to acquit, but that if they had "a clear preference" for Stamper's version of events in combination with the other evidence, and if they were satisfied beyond reasonable doubt that the essential elements of what he described were true, then they would convict of the particular offence.
The trial Judge also mentioned the videotaped interviews. He told the jury that the entirety of what was said in the videotapes, including statements which might be helpful to each accused person, were evidence and should be given such attention and weight as they considered proper in the circumstances (appeal book 279).

The request for a redirection

After he had completed his directions to the jury, the trial Judge was asked by the appellant's counsel to redirect the jury in respect of one issue. This related to the mobile telephone. Counsel for the appellant suggested that the jury should be directed as regards the possibility that the appellant had had nothing to do with the taking of the mobile telephone. The trial Judge declined to make any redirection. He said that there had never been any suggestion that, if the telephone was stolen, the appellant had not been a party to the theft.

The ground of appeal

There is only one ground of appeal. It is to the effect that the trial Judge "erred in not directing the jury as to the factual circumstances in which a verdict of guilty might be brought against the co-accused Glanville, but a verdict of not guilty against the Appellant given that the Appellant denied being present when the offence of stealing with violence took place and that whatever occurred was between the complainant and Glanville".

Was there an error?

In his submissions, counsel for the appellant contended that the trial Judge had erred in the manner contended for in the ground of appeal because, when regard is had to the appellant's videotaped record of interview with the police, and to his evidence at the trial, the possibility was left open that, if any offence was committed, it was committed by Glanville only. He said that this was supported by the existence of the independent evidence to the effect that the telephone calls which were made on Stamper's mobile telephone were made by Glanville only. He said that the jury should have had this evidence drawn to their attention by the trial Judge and that, had it been drawn to their attention, the jury might have acquitted the appellant.
I am not persuaded that there was any such error.
As will be apparent from what I have said as regards the evidence led at the trial, the central issue was one of credibility. If the jury was satisfied, beyond reasonable doubt, that the essence of what was said by Stamper was true, it was inevitable that the appellant would be convicted. On Stamper's evidence, the appellant had been directly involved at every stage of the commission of the offences. While it was Glanville who had taken the money belt, the effect of Stamper's evidence was that the appellant had been present, that it was his threatening conduct which had caused Stamper to fear for his safety and that both the appellant and Glanville had taken, and consumed, the dexamphetamine tablets. Stamper's evidence was also that both men had been party to the taking of his mobile telephone and that the appellant had had it at various stages. It will also be apparent that his evidence was that both men had played an active role in detaining him.
Against this background, the trial Judge was, in my respectful opinion, right to tell the jury that, if they were satisfied beyond reasonable doubt that Stamper had told the truth, it was open to them to convict the appellant. Also, the trial Judge's summary of the defence case, albeit very brief, was accurate. He fairly summarised the appellant's evidence by saying that the gist of it was that nothing had been stolen and that Stamper had not been detained. That evidence had been given on the previous day and must still have been fresh in the minds of the jury. Moreover, while the jury's attention was not drawn to the specifics of what had been said by the appellant in the course of the videotaped interview, their attention was directed to the videotaped evidence generally. Given the evidence of the appellant, and the way in which his defence had been run, there is no basis for the contention that the trial Judge should have gone further and suggested to the jury that it was open to them to find that the offences had been committed, but that neither had involved the appellant. It was enough for the trial Judge to say, as he did, that the appellant denied any knowledge of the commission of the offences, bearing in mind that the jury had already been told that the evidence on each charge should be considered in respect of each of the accused men separately, having regard only for the evidence which was admissible against each on the charge in question. It is significant that, in the atmosphere of the trial, no redirection was sought by counsel for the appellant, other than as regards the theft of the mobile telephone.
In all of these circumstances it seems to me that the trial Judge's summing up was adequate in the respects complained of by the appellant.

Conclusion

It follows from what I have said that, while I would grant an extension of time which was required, and sought, by the appellant (the respondent having made no submissions in that respect), I would dismiss the appeal.

The Appeal Against Sentence in CCA 7 of 2005

I have said that the trial Judge sentenced the appellant to a total term of 5 years' imprisonment. Glanville received a similar sentence. In the case of each of them the trial Judge structured the total sentence by imposing a sentence of 5 years' imprisonment in respect of the armed robbery and one of 2 years' imprisonment in respect of the deprivation of liberty, with that those sentences to be served concurrently.
There is only one ground of appeal, being that the trial Judge "erred in that the sentence of 5 years imprisonment was manifestly excessive having regard to the lesser role in the offence played by the … [appellant]".

In his submissions, counsel for the appellant not only emphasised the role that Glanville played in the offending, but added that Glanville had a more serious criminal record than the appellant and also that he was a good deal older than the appellant.
I am not persuaded that there was any sufficient basis for distinguishing between the two men for the purposes of the sentences to be imposed.
It was true that it had been Glanville's suggestion that the two men should go to Stamper's home. However, there is nothing to suggest that the offences which were subsequently committed had been planned by him. Rather, they appear to have been entirely opportunistic. It is also true that it was Glanville who blocked Stamper's path when he wanted to leave the premises, that it was him who first demanded that Stamper hand over his dexamphetamine tablets, that it was him who cut the money belt from Stamper's body and that it was him who used Stamper's mobile telephone. However, the part played by the appellant in those events was no less significant. It was the appellant who had frightened Stamper by his use of a knife or knives. He had played an active role in threatening Stamper at the time at which he was detained. On Stamper's evidence, both Glanville and the appellant had been present, and acting in concert, when the money belt was cut from his body. Both men had consumed the dexamphetamine tablets which were then taken. Also, each of the accused men had had the mobile telephone in his possession from time to time.
As to the respective antecedents of the two men, both had a long history of alcoholism and drug abuse, both had had unfortunate backgrounds and both had had extensive criminal records. While Glanville, unlike the appellant, had a prior conviction for armed robbery, this was not a matter of great significance in circumstances in which each had lengthy criminal records, that of the appellant encompassing a number of offences involving both violence and dishonesty (his record included burglary offences, two offences of assault occasioning bodily harm, one of common assault and a number of offences involving the possession of an offensive weapon).
As to their ages, it is true that Glanville was some 14 years older than the appellant. However, at the time of the commission of these offences the appellant was 32 years old. Because he was a mature adult, there is no significance in the fact that he was younger than Glanville.
Consequently, while I would, once again, grant the necessary extension of time (no submissions having been made in that regard on behalf of the respondent), I would refuse the application for leave to appeal.

CACR 2 of 2005

The circumstances which gave rise to the appellant's conviction on the charge of conspiracy to manufacture methylamphetamine were essentially as follows.
The prime mover in the conspiracy was a man named Carmelo Paratore. The others involved in the conspiracy, apart from the appellant, were the appellant's de facto partner, Susan McGregor, and a man by the name of Brett Matson. Paratore and Matson were sentenced by a different Judge (H H Jackson DCJ) than the Judge who sentenced the appellant and McGregor.
It was Paratore who decided to manufacture the methylamphetamine. H H Jackson DCJ, when he came to sentence him, said that Paratore had, in a sense, used the other participants in the conspiracy. Matson's involvement was brought about by the fact that Paratore asked him to get him some liquid ammonia, one of the ingredients necessary for the manufacture of the methylamphetamine. Matson had family and personal connections which facilitated his doing that. It was not suggested that Matson had any greater role than this. Moreover, transcripts of intercepted telephone conversations which took place between Matson and Paratore suggest that Matson believed that it would be very difficult to obtain the ammonia. His counsel suggested, without contradiction, that all that he had been hoping to get out of his part in the conspiracy, if the drug was successfully manufactured, was some of the drug.
The role played by the appellant and McGregor arose out of the fact that Paratore was a friend of McGregor's. Paratore telephoned her and asked her for the recipe for the manufacture of methylamphetamine. The appellant, who was in the background, told McGregor what he understood the recipe to be (he was in fact mistaken) and she passed that information on to Paratore. McGregor believed that she and the appellant would be paid some money as a consequence of their assistance. However, the appellant believed that, if the manufacture should succeed, he and McGregor would get a quarter of an ounce of methylamphetamine. There was no suggestion that either was involved in the conspiracy for any commercial purpose.
The drug was never manufactured, because Paratore was unable to obtain all of the ingredients that he needed. The sentencing Judge accepted that the role played by McGregor and the appellant in the conspiracy "didn't get much past wishful thinking".
Each of the appellant, McGregor and Matson pleaded guilty to the charge of conspiracy. Paratore pleaded not guilty and was convicted after trial. H H Jackson DCJ sentenced Paratore to a term of 2 years' imprisonment in respect of the conspiracy. Because Paratore was then serving a term of imprisonment in respect of unrelated offences, H H Jackson DCJ ordered that, for totality reasons, the 2‑year term of imprisonment imposed by him should be only partly cumulative on that already being served by Paratore. The structure of the sentence which he consequently imposed had the effect that Paratore would spend an additional 5 months in prison.
Matson, who was dealt with by H H Jackson DCJ in respect of other offences as well as the conspiracy charge, was given a term of 3 months' imprisonment in respect of the latter charge.
The sentencing Judge who sentenced the appellant and McGregor took into account that both had been addicted to drugs over a long period of time and that both had, as a result, suffered a number of adverse consequences. At the time of the conspiracy the appellant had been going through a difficult period, with financial and housing problems. He was depressed because of his then ill health. He had suffered a kidney failure as a result of a drug overdose. McGregor had three children and, essentially because of her drug addiction, two of those children were in the care of her sister and the third was in foster care with the Department of Community Development.
McGregor and the appellant proposed to reunite once the appellant had been released from prison and then live together with McGregor's children, if that could be achieved. While imprisoned in respect of the offences the subject of matter 59 of 2005 the appellant had undergone drug and alcohol programmes. He was described as being a model prisoner.
McGregor had undertaken to co‑operate with the authorities by giving evidence against Paratore and ultimately did so.
While accepting that the matter was serious, and such as would ordinarily demand a prison sentence, the sentencing Judge said that she was prepared to offer McGregor, who, she said, was obviously in need of assistance, a "last chance". She imposed a 2‑year intensive supervision order, with a programming supervision requirement.
When sentencing the appellant, the sentencing Judge took into account the problems which had beset him at the time of the offence and the fact that he and McGregor had then been attempting to get their house "in some sort of order". She said that it was in those circumstances that the appellant "gave in to the temptation to hand this recipe over". She said that, in all of the circumstances, she did not propose to add to the totality of the sentence already being served by him and, consequently, sentenced him to a term of 18 months' imprisonment to be served concurrently with the term of imprisonment then being undergone by him.
The sole ground of appeal raised by the respondent is that her Honour erred in ordering that the term of imprisonment imposed upon the appellant should be served concurrently with that already being served by him.
Counsel for the respondent contended, relying upon R v Ward (1999) 109 A Crim R 159 at [9], per Malcolm CJ, and Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999, per Murray J, at 15 ‑ 16, that, because the offence of conspiracy occurred on a separate occasion and involved an entirely separate transaction to the offences the subject of matter CACR 59 of 2005, the sentences should have been imposed cumulatively. He submitted that, by making the sentence for the conspiracy concurrent, the sentencing Judge essentially left the appellant unpunished for that offence and that this reflected an error in principle.
It is trite that, in appeals against sentence (whether on grounds of excessiveness or inadequacy), the principles explained in House v The King (1936) 55 CLR 499 at 505 must be applied, namely that:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
(See also Dinsdale v The Queen (2000) 202 CLR 321 at 324 ‑ 325, per Gleeson CJ and Hayne J, and 329, per Gaudron and Gummow JJ.)
In Dinsdale, at 339, Kirby J, after referring to Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672, in which the Court remarked that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a different way, went on to say, at [58]:
"Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it … As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention."
It is also settled that State, or Crown, appeals are in a special category. The relevant rules were set out by Charles JA, with whom Winneke P and Hayne JA agreed, in R v Clarke [1996] 2 VR 520 at 522:
"1.An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett [v The Queen (1994) 181 CLR 295] at 299) to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso [v The Queen (1989) 168 CLR 227] at 234).
2.Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths [v R (1977) 137 CLR 293] at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see [R v] Osenkowski [(1982) 30 SASR 212] at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3.A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inaccuracy or it is shown that the sentencing judge fell into material error of law or fact ([R v] Allpass [(1993) 72 A Crim R 561] at 562‑3).
Allpass is also authority for the following propositions:
4.When, in response to a Crown appeal, the court decides to re‑sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5.An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."
His Honour went on to say, at 523, that it is important, in the application of these principles, to bear in mind what King CJ said in R vOsenkowski (1982) 30 SASR 212 at 212 ‑ 213:
"[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
More recently, in Dinsdale, the principles pertaining to Crown appeals were discussed by Kirby J at 340 ‑ 341, where, after mentioning that one basis for appellate intervention is replacement of a sentence that is manifestly disproportionate to the circumstances, whether because the punishment imposed is considered to be plainly excessive or manifestly inadequate, his Honour went on to say:
"For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time‑honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' … such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences ... This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences."
In this case there is substance to the submission that, in ordering that the sentence imposed by her should be wholly concurrent with that previously imposed, the sentencing Judge effectively left the appellant unpunished in respect of his participation in the conspiracy (always

assuming, of course, that his appeal against the convictions in the earlier matter was unsuccessful).

That said, the options available to her Honour were very limited. Because the appellant was already serving a custodial sentence, there was no real scope for the imposition of any non‑custodial disposition in respect of this offence. Also, because of the limited role played by the appellant in the commission of this offence, any additional custodial period was likely to be a very short one. It was in those circumstances, and seemingly influenced also by a belief that leniency at this stage of the appellant's life might lead to reform, that the sentencing Judge arrived at the conclusion that the sentence imposed should be wholly concurrent.
In my respectful opinion, it would have been preferable, for the reason advanced on behalf of the respondent, if the sentencing Judge had ordered that the sentence imposed by her should be only partly concurrent with that already being served by the appellant. However, given the circumstances in which she arrived at her decision, and the very limited additional term of imprisonment which might now be imposed if the appeal was to be allowed (taking into account the very short sentences of imprisonment imposed on the appellant's co‑offenders, particularly Matson, and the principle of "double jeopardy" referred to by Charles JA in Clarke and by Kirby J in Dinsdale), I am of the opinion that this is one of those instances in which the Court should exercise its overriding discretion to decline to intervene even if the respondent might be correct in its contention that error has been shown in the sentencing process: Clarke, above, at 522 and R v Allpass (1993) 72 A Crim R 561 at 562 ‑ 563.
I would consequently dismiss the State's appeal against sentence.
ROBERTS-SMITH JA: I agree with the reasons for judgment prepared by Steytler P and have nothing further to add.
PULLIN JA: I agree with the orders proposed by Steytler P. I also agree with his reasons but I wish to make the following comment regarding the President's reasons in relation to appeal CACR 2 of 2005.
I am aware that in R v Allpass (1993) 72 A Crim R 561 it was said that one of the reasons why a prosecutor's appeal should be rare is that there is an element of "double jeopardy" involved, because it means that the offender will be "twice standing for sentence" if the appeal succeeds. I am aware that Allpass is frequently cited and I am aware that it has been

referred to with approval by the High Court in Lowndes v The Queen (1999) 195 CLR 665 and applied by the Court of Appeal in this State in State of Western Australia v Miller (2005) 30 WAR 38. I am therefore bound to apply the decision as reflecting the law in this State. That does not mean however, that I cannot express my view that the reasoning that prosecutors' appeals should be rare because of "double jeopardy" is fallacious.

The reasoning implies that it is only on Crown appeals that there is an element of double jeopardy in the sense that the offender "twice stands for sentence". In fact, by s 31(5)(a) of the Criminal Appeals Act 2004 (WA), if the Court of Appeal allows an appeal against sentence, either by the offender or by the prosecutor, the Court of Appeal must set aside the sentence appealed against and may instead "impose a new sentence that is either more or less severe". Thus, no matter whether the appeal is by the prosecutor or the offender, the offender faces the "jeopardy" of a more severe sentence if there is a successful appeal no matter who institutes the appeal.

In my opinion, the only reason why State appeals should be a rarity is because, as Kirby J said in Dinsdale, there should be an attitude of restraint in relation to prosecutors' appeals. The same attitude of restraint has the result that in re‑sentencing following a successful appeal against sentence by an offender, the court will rarely impose a more severe sentence. In my opinion, exactly the same principles should apply whether the appeal is by an offender or by the prosecutor.
Having made those comments and being bound to do so, I agree with Steytler P's reasons in relation to the respondent's appeal.