VAN DE WORP -v- THE QUEEN [2000] WASCA 154

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 154
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:273/1999	Heard:	22 MAY 2000
Coram:	WALLWORK J TEMPLEMAN J SHELLER AJ	Delivered:	1/06/00
No of pages:	47	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeals dismissed
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Parties:	DOMINIC MICHAEL VAN DE WORP THE QUEEN GARY BRENDAN ROSS
Catchwords:	Criminal law Sentencing Three co-offenders dealt with on separate occasions Different versions of offences given to Court One offender gave evidence on oath His sentence suspended His evidence disputed by co-offenders Whether their sentences should be suspended Decided on facts
Legislation:	Criminal Code (WA), s 689(3) Sentencing Act 1995
Case References:	House v The King (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 Postiglione (1997) 94 A Crim R 397 Postiglione v The Queen (1997) 189 CLR 295 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Shaharuddin [1999] WASCA 229 R v Wacyk (1996) 66 SASR 530 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 The Queen v Wilton (1981) 28 SASR 362 Watson v The Queen [2000] WASCA 8 Dickson v The Queen, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 Goddard v The Queen [1999] WASCA 281 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 8 May 1994 Kilner v The Queen [1999] WASCA 189 Miles v R (1997) 17 WAR 518 Nguyen v R; Tran v R [1999] WASCA 54 Sein-Thet v The Queen [1999] WASCA 186 Swain v The Queen [1999] WASCA 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : VAN DE WORP -v- THE QUEEN [2000] WASCA 154 CORAM : WALLWORK J

TEMPLEMAN J

SHELLER AJ

HEARD : 22 MAY 2000 DELIVERED : 1 JUNE 2000 FILE NO/S : CCA 273 of 1999 BETWEEN : DOMINIC MICHAEL VAN DE WORP

Applicant

AND

THE QUEEN

Respondent

FILE NO/S : CCA 10 of 2000 BETWEEN : GARY BRENDAN ROSS

Applicant

AND

THE QUEEN

Respondent

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Catchwords:

Criminal law - Sentencing - Three co-offenders dealt with on separate occasions - Different versions of offences given to Court - One offender gave evidence on oath - His sentence suspended - His evidence disputed by co-offenders - Whether their sentences should be suspended - Decided on facts

Legislation:

Criminal Code (WA), s 689(3)

Sentencing Act 1995

Result:

Leave to appeal granted

Appeals dismissed

Representation:

CCA 273 of 1999

Counsel:

Applicant : Mr G P O'Brien

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Bayly & O'Brien

Respondent : State Director of Public Prosecutions

CCA 10 of 2000

Counsel:

Applicant : Ms C S Amsden

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Director of Legal Aid

Respondent : State Director of Public Prosecutions

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

House v The King (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
Postiglione (1997) 94 A Crim R 397
Postiglione v The Queen (1997) 189 CLR 295
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Shaharuddin [1999] WASCA 229
R v Wacyk (1996) 66 SASR 530
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
The Queen v Wilton (1981) 28 SASR 362
Watson v The Queen [2000] WASCA 8

Case(s) also cited:

Dickson v The Queen, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
Goddard v The Queen [1999] WASCA 281
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 8 May 1994
Kilner v The Queen [1999] WASCA 189
Miles v R (1997) 17 WAR 518
Nguyen v R; Tran v R [1999] WASCA 54
Sein-Thet v The Queen [1999] WASCA 186
Swain v The Queen [1999] WASCA 22

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1 WALLWORK J: The facts concerning the offences the subject of these applications for leave to appeal are set out in the reasons of Justices Templeman and Sheller. I will not repeat them except as is necessary.

2 When considering the sentences which were imposed it is significant that the moneys which the three offenders were to collect at Mr Matthew's house were said to be moneys owed to Mr Ross for drugs purchased from him. Mr Ross told the police in his video interview after he was apprehended, that he had asked Mr Watson to come and help him get the money. He said that he had told Mr Watson that he needed help and that he owed a drug dealer a substantial sum of money. He said that he had wanted Mr Watson to come and stand there with the gun. He said that he had said to Mr Watson:

"Help me get my money back. I will give you 30% … all you have to do is hold the gun."

or words to that effect.

3 Mr Van de Worp said in his video interview that Ross had asked Watson to help Ross to get the money. Also that he and Ross had been "kicked out of their house". Further that Ross had told Watson that Huw had ripped him off. Van de Worp said that he knew that Ross had been ripped off and that Huw owed him money. Also that Ross was "ringing people up". He said that Ross was "running the show".

4 The substantial difference between Watson's evidence on oath to the learned sentencing Judge and the version of events which is now advanced by the two applicants is that they say that Watson brought the shotgun with him, whereas he had said that he had been unaware of the shotgun until it was produced by Ross. Further, Watson said that he had taken it upon himself to threaten the persons with the shotgun so as to avoid the risk of one of the other two offenders shooting someone with it. Watson had said on oath that he had not known that the gun was loaded.

5 It should be recorded that neither Ross nor van de Worp have given contradictory evidence on oath to the evidence which was given by Watson although they know what Watson said on oath.

6 Whether or not Watson misled the Court is not the question in these applications. The question is whether the two applicants, or one of them, have established that "a different sentence should have been passed" - Criminal Code, s 689(3).

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7 Ross told the authorities that prior to the offences he had been threatened by drug dealers and that he had a daily dependency on drugs. On 4 August 1999 he had been charged and convicted of the possession of a prohibited drug. The relevant offences were committed 10 days later.

8 Van de Worp admitted that he knew that the gun was loaded and that he had expected to be paid a portion of the moneys which Ross hoped to extract from the complainant. Van de Worp was armed with a knife. He told the authorities that he had been introduced to amphetamines whilst staying with friends in Perth prior to the offences. He said that he had been using that drug approximately two or three times a week prior to the commission of the offences.

9 It has not been suggested that Watson was a drug dealer or a drug user.

10 Leaving aside for the present the question of parity and the fact that the three offenders came before the Court on different occasions, in the light of the above facts which were admitted by the two applicants, in my view it could not be said that "a different sentence should have been passed" - s 689(3). The offences which were committed by the two applicants were very serious and involved an armed hold up with a loaded shotgun in order to enforce the payment of moneys owing for drugs which had been supplied by Ross.

11 The prison sentences imposed on the applicants were well within the discretionary limit. The maximum penalty for an offence of armed robbery with violence and in company is 20 years imprisonment. However, the question remains whether the principle of parity and the facts surrounding their appearances before the Court require that one or both of the applicants' sentences be changed having in mind the sentence which was imposed upon Watson.

12 Both Justices Templeman and Sheller have agreed that the principle of parity and the other circumstances concerning the way in which the three offenders were dealt with on separate occasions, should not result in their sentences being suspended. For the reasons given by their Honours, and in agreement with them, I am not persuaded that either the principle of parity or the circumstances generally, justify this Court in suspending the sentences of the two applicants.

13 I agree with the orders proposed by Justice Sheller.

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14 TEMPLEMAN J: Each of the appellants and Benjamin James Watson pleaded guilty to offences of aggravated burglary with intent, and stealing with violence while armed and in company with each other.

15 All three offenders were sentenced by Miller J to immediate terms of imprisonment. Watson received a sentence of 3 years imprisonment, van de Worp, 2 years 9 months and Ross, 2 years 6 months.

16 Watson appealed against his sentence. The Court of Criminal Appeal, by a majority, allowed the appeal and suspended the term of imprisonment. Wallwork and Murray JJ were of the opinion that the learned sentencing Judge had fallen into error, in what they regarded as an exceptional case, in holding that the offences were too serious to allow the sentences of imprisonment to be suspended: see Watson v The Queen [2000] WASCA 8.

17 Van de Worp and Ross now appeal against their sentences. They contend that the learned sentencing Judge fell into a similar error in relation to each of them. They contend also, having regard to the principle of parity stated by the High Court in Lowe v The Queen (1984) 154 CLR 606, that they would suffer an injustice if they were not dealt with in the same way as Watson, because of the disparity between their sentences and his.

18 Ross goes further. He complains that as a result of an administrative decision of the Supreme Court Registry, whereby the hearing in relation to Watson's sentence was conducted without notice to him, he was denied the opportunity of cross-examining Watson. Ross contends that Watson was thereby able, without challenge, to present a version of the material events which attributed a greater degree of culpability to him.

19 In my view, these circumstances raise the following primary questions for the Court.

1. Did the learned sentencing Judge err in sentencing Ross or van de Worp?

2. If there was no error, should their sentences now be varied to give effect to the parity principle?

3. Even if, strictly, the parity principle has no application, should Ross' sentence be reduced because of an injustice visited on him by his inability to cross-examine Watson about the material events?

I deal with each question in turn.

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Was there an error in relation to Ross' sentence?

20 In order to consider this question, it is necessary to set out the way in which the three offenders came before the learned sentencing Judge, and the facts as he found them.

21 On 1 November 1999, Watson was arraigned and pleaded guilty before Miller J.

22 The prosecutor recited the facts as follows (for convenience, I insert the names of the co-offenders):

"At about 8 pm on Saturday 14 August 1999 the offender and two co-offenders also charged [Ross and van de Worp] went to the complainant Matthew's house at 56 Lushington Drive, Padbury, with the intention of taking money from him owed for drugs purchased from a co-offender [Ross]. Three of them approached the backyard fence. The offender, who attempted to hide his identity, by wearing a bandanna across his nose and lower part of his face, was armed with a loaded double-barrel, over and under shotgun, whilst a co-offender [van de Worp] was armed with a knife.

The offender then kicked the gate in on the back fence and the three of them entered the complainant's yard. Matthews saw them approaching and he armed himself with a baseball bat and stepped outside the back door. As he did so, the offender, who was approximately 5 feet away, pointed the shotgun at Matthews head so that the barrel was about 1 foot from his face.

Matthews retreated into his house where he was followed by the offender who repeatedly demanded that he get on his knees and shouted at him, 'Don't fuck with the Mafia.' Matthews complied. The offender then backed out of the house with the shotgun, covering Matthews, and went and joined the co-offenders at a shed at the side of the house where the complainant Waller and four friends were sitting inside.

A co-offender [Ross] pushed the complainant Waller in the chest several times and demanded money from him. Whilst he did so the offender pointed the shotgun at Waller's chest and the other co-offender [van de Worp] stood near the door with his knife in his hand. The co-offender [Ross] saw Waller's wallet sitting on the chair next to him and he picked it up and removed

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the $20 in it and replaced the wallet. The three then left via the backyard."

23 Watson's counsel then made a lengthy plea in mitigation during which Watson himself gave evidence. In so doing, he confirmed, in effect, that his counsel had been correct in informing the Judge that:

1. he had been unaware of the existence of the shotgun until it was produced by Ross, shortly before the three offenders set off for Padbury; and

2. he had taken it upon himself to use the shotgun to threaten the persons at the Padbury premises so as to avoid the risk of Ross and/or van de Worp actually shooting someone with it.

24 On the day after Watson was arraigned before Miller J, Ross was arraigned before the learned Chief Justice. He pleaded guilty.

25 It seems that although charged in the same indictment, Watson and Ross were separated as a result of an administrative decision in the Registry, it being thought that there were too many guilty pleas for one Judge to deal with. However, the Chief Justice directed that Ross be sentenced also by Miller J, before whom he duly appeared on 18 November.

26 By then, those representing Ross were aware that Watson had been sentenced on 1 November, on a version of the facts which Ross did not entirely accept. This was drawn to the attention of Miller J who noted that questions were being asked about the submissions put on behalf of Watson.

27 Counsel for Ross submitted to Miller J that her client had been disadvantaged, procedurally, because he had not been able to challenge:

"… the extraordinary version of facts put forward by Watson and his counsel [which] were very much in disagreement with those in the statement of material facts and certainly the version given by Mr Ross." (AB 31)

28 One of the issues of principal concern to Ross was Watson's assertion that he had taken the shotgun to prevent his co-offenders from using it. However, Miller J told Ross' counsel that he had refused to accept that proposition "in any shape or form". The Judge said it was clear that Watson had taken the shotgun and was "the major perpetrator" (AB 32).
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29 At that point in the proceedings, the prosecutor recited the facts to the Judge, substantially in the terms recited by a different prosecutor in relation to Watson on 1 November.

30 Ross' counsel then told the Judge that on her instructions the shotgun had been brought by Watson to the flat where Ross and van de Worp were living: that her client had never had the gun in his control and had never intended to have it in his control.

31 However, as the Judge pointed out a little later in the submissions, Ross admitted during a video-recorded interview that he had asked Watson to hold the gun (AB 43). That passage was read to the Judge by the prosecutor later in the proceedings, albeit with an objection from Ross personally that he had not said those words (AB 48).

32 At the conclusion of the submissions the Judge proceeded to sentence Ross. His Honour first summarised the facts. He then set out Ross' personal history and circumstances. In so doing, his Honour quoted from a pre-sentence report in which it was said that Ross:

"…is assessed as being a moderate to high risk of becoming involved in future drug-related offending unless he participates in a program of drug use education and counselling, either before and/or after his release from custody."

33 The Judge then referred to his obligation to take account of a number of factors in determining the proper sentence. His Honour made specific reference to "the tariff for armed robbery", the gravity of the offences, the effect on one of the victims, Ross' antecedents, his early plea of guilty and his prospects of rehabilitation.

34 No complaint has been made about the way in which the Judge dealt with these matters.

35 His Honour went on to say:

"I have considered carefully whether I could suspend the term but I have taken the view that the seriousness of the offences is such that it is not possible to suspend the sentences I intend to impose."

36 At that point it is submitted, his Honour erred. Although Ross' counsel did not address the issue specifically, she adopted the submissions

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made on behalf of van de Worp, in respect of whom Miller J took a similar view.

37 The point, stated shortly, is that the Judge took into account only the seriousness of the offences in concluding that the sentence of imprisonment should not be suspended. It is submitted that the Judge should have revisited all the other factors which he took into account in determining that imprisonment was the appropriate option.

38 I do not accept that the Judge failed to give proper consideration to the question of suspension. In my view, the submission ignores the context in which the Judge said he had considered carefully whether he could suspend the term of imprisonment. From that context, which I have summarised above, it is plain that the Judge had regard to all the relevant factors. It was a matter for him, in the proper exercise of his discretion, to decide what weight should be given to those factors. He concluded that the seriousness of the offences was such that it was not possible to suspend the sentences. In other words, the Judge concluded that those factors which militated in favour of immediate imprisonment and to which he had just referred, outweighed those which did not.

39 In my view, the process of reasoning adopted by his Honour, demonstrates that he exercised his discretion in a proper manner. I am not persuaded that he was in error.

Was there an error in sentencing van De Worp?

40 Van de Worp was arraigned before Miller J on the next available pleas day, 1 December 1999. He pleaded guilty.

41 The facts were recited to the Judge once again, by a third prosecutor. The prosecutor referred also to admissions made by van de Worp in a video-recorded interview with police officers. In the interview van de Worp said that he and his co-offenders had gone to the complainant's house to see if there was any money and to scare the complainant and his friends. He said also that he first became aware of the existence of the gun when he was in Watson's car. He admitted knowing the gun was loaded. He admitted also that he was expecting to be paid a portion of moneys which Ross hoped to extract from the complainant.

42 Van de Worp's counsel then made a plea in mitigation during which he informed the Judge that, on his instructions, van de Worp was unaware

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of the existence of the shotgun until he saw it in Watson's car, on the way to Padbury.

43 The Judge then referred to the dispute between Watson and Ross as to the production of the shotgun.

44 Counsel went on to say that although his client had the knife with him during the commission of the offences, it was not alleged that he had threatened anyone with the knife, nor that he had taken the money.

45 Counsel submitted that although the offence was serious, his client was the least culpable of the three "… it was not his debt, it was not his gun". It was submitted that he was a very young man who had been susceptible to the influence of others.

46 The Judge however, informed counsel that he did not accept the submission about the level of van de Worp's culpability. His Honour referred to the fact that Watson was armed with a shotgun, van de Worp was armed with a knife and Ross was unarmed. He said he would put van de Worp second "in the ladder of responsibility".

47 After some further submissions, the Judge said it was necessary for him to find the facts. His Honour continued:

"… the facts I find are, on the information I have so far, that three young men, stupidly admittedly, went to the house of others, burst in through the back gate, one armed with a double-barrel shotgun and disguised, one armed with a knife, one unarmed. There they stole money and in the course of the stealing of the money the man with the double-barrel shotgun pointed it at the victim. Your client stood outside the door of the shed with a knife plainly visible and therefore threatening, therefore a party to the total criminal enterprise."

48 The plea in mitigation proceeded. Van de Worp's counsel referred to the fact that his client had returned to Port Hedland where he was living with his parents and was subject to their control; and that he was on a tight rein. It was submitted that if van de Worp was imprisoned, that tight rein would be lost; and that it was in the interests of the community that van de Worp should not be put in a position of associating with people of the kind who had brought about his downfall.

49 At that point, the Judge said:

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"That is the issue: is the offence so serious that I have no alternative or can I make an exception because of his age, background, parents' concern and control of him?"

50 After hearing from the prosecutor, the Judge said he would take time to consider the submissions made on behalf of van de Worp and would sentence him on 20 December.

51 Van de Worp was sentenced by the Judge on that date. In his sentencing remarks, his Honour recited the facts and referred to the admissions made by van de Worp: that he had gone to the house in Padbury for the purpose of scaring the occupants to get money and that he knew there was a loaded firearm in the car.

52 His Honour then turned to matters personal to van de Worp. He referred to the pre-sentence report which described van de Worp as:

"A pleasant naive young man who at 18 years of age finds himself before the Court as a result of involvement with illicit substances."

53 His Honour went on to refer to van de Worp's willingness to comply with an intensive supervision order if a non-custodial sentence was appropriate (AB 78).

54 The Judge referred also to counsel's submission that it was not in the interests of the community that van de Worp be imprisoned because of his background and what was contended to be the least serious role which he had played in the commission of the offences.

55 However, the Judge referred to the tariff for armed robbery, in the range of 6 to 9 years imprisonment for a single offence, depending on the circumstances. His Honour continued:

"It is true that on rare exceptional cases or extraordinary circumstances a non-custodial sentence may be appropriate, particularly if the offender has no or no significant prior record and the prospects of rehabilitation are good". (AB 79)

56 His Honour went on to set out the factors he had taken into account in arriving at an appropriate sentence. These were the gravity of the offence, the effect on the victims and van de Worp's personal factors which had been urged upon him by counsel. In particular, the Judge

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referred to the submission that it was not in the interests of the community to imprison van de Worp:

"… but this submission overlooks the community's interests in ensuring that there is just punishment for offences of the nature committed by you." (AB 80)

57 His Honour went on to say that in relation to van de Worp's co-offenders, he had no alternative but to impose sentences of imprisonment because the crimes were so serious. His Honour said he had felt unable to suspend the sentences of imprisonment in relation to either of them.

58 His Honour continued:

"As I have indicated during the course of the plea put on your behalf the offences are so serious that I consider a sentence of imprisonment as the only disposition which is open. I am unable to suspend the sentence of imprisonment because of the seriousness of the offences committed. The fact that people were held up in their own house with an armed shotgun and a large knife which you were wielding puts the offences in the very serious category. Notwithstanding your lack of prior convictions and good antecedents I am of the view that a sentence of imprisonment is the only disposition open."

59 It is conceded on behalf of van de Worp that a sentence of imprisonment was called for because of the seriousness of the offences. However, it is submitted that the Judge should have considered, "whether as an inducement to reform or by virtue of a combination of factors in the particular case, including a component of leniency, it would have been appropriate to send van de Worp to prison for the first time". Reliance is placed on R v Liddington (1997) 18 WAR 394 and R v GP (1997) 18 WAR 196.

60 In Liddington, Malcolm CJ approved the following passage from the judgment of Murray J in GP:

"… I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the

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circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful." (At 399)

61 In my view, it is plain from the question raised by the Judge in the course of the plea in mitigation and from the sentencing remarks themselves, that his Honour was well aware of the need to consider whether it was appropriate to suspend van de Worp's sentence. He gave careful consideration to that issue and exercised the discretion in a proper manner. He concluded, as he had done in the case of Watson and Ross, that it would not be appropriate to suspend van de Worp's sentence. I am not persuaded that his Honour was wrong in exercising his discretion as he did.

62 In concluding that Miller J did not fall into error in sentencing either Ross or van de Worp, I am mindful of the fact that his Honour appeared to exercise a similar discretion in relation to Watson, whose appeal against sentence was successful.

63 Indeed, it may be said that in sentencing Watson, as his Honour did on 1 November 1999, he set out in greater detail his reasons for declining to suspend Watson's sentence of imprisonment: see AB 153 - 155.

64 In these circumstances, the question may legitimately be asked: if the Judge was wrong in relation to Watson, why was he not wrong also in relation to Ross and van de Worp?

65 In answering that question it must be appreciated that the decision of the Court of Criminal Appeal in Watson was very much on the borderline. It was, as I have noted, a majority decision. Murray J, who agreed with Wallwork J that the appeal should be allowed, said:

"I joined in making orders with considerable diffidence because of the thoroughness with which the case was presented to his Honour and because of the care and attention that his Honour gave to it." [2000] WASCA 8 at 55.

66 Wallwork J regarded it as "a most exceptional case". His Honour went on at par 47:

"Most unusually the applicant had nothing to gain by his offences. From all the information the Court has at its disposal,

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the offences appear to have been committed without the applicant giving the matter serious thought. He was young and had no relevant criminal record at all. It was not as if he had been attempting to obtain money for drugs, or anything similar. He was apparently asked by his co-offenders to drive them to commit the offences for their purposes and not his own."

And a little later at par 52:

"In this case there was no element of persistence. There is no real prospect of the applicant lapsing into further offences, but there is, in the community's interests, a need that this young man be rehabilitated, in the sense of being encouraged to get on with his life and to put these offences behind him. In my opinion, error on the part of the sentencing Judge has been demonstrated."

67 Murray J referred to the decision of Malcolm CJ in R v Shaharuddin [1999] WASCA 229 in which the learned Chief Justice recognised that in some cases it is in the best interests of the community not to imprison an offender, even for a serious offence.

68 Applying that decision to Watson, Murray J said at pars 66 and 67:

"This in my opinion was, in its most unusual circumstances, such a case. I am moved by the unusual, indeed bizarre, circumstances surrounding the commission of the offences by the applicant, his youth, his remorse, his unblemished character prior to his involvement in the commission of these offences and the powerful mitigation provided by his antecedents, to the conclusion that particular deterrence was not required and general deterrence could be sufficiently served by the imposition of sentences of imprisonment and their length.

But in my view the circumstances were not such as to demand that this young offender should be immediately sent to prison for the first time. The particular circumstances of the case were such that a merciful disposition by suspending imprisonment was required. It was an exceptional case. The best interests of the community were served by a merciful disposition which built upon the remedial shock of the pronouncement of his Honour's view that imprisonment was the appropriate punishment to reinforce in the applicant the necessity never

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again to behave in such a way as to bring him before a criminal court."

69 In short, the majority in Watson were clearly of the view that Miller J had erred in failing to accord sufficient weight to the mitigating circumstances to which they referred when exercising his discretion against suspension of the sentences of imprisonment he imposed.

70 On the facts as they were presented to the earlier Court of Criminal Appeal, there were several features which distinguished Watson's case from those of Ross and van de Worp. They sought to gain from the offences, whereas Watson did not. They were both drug users, whereas Watson was not. Indeed, Ross was a dealer in drugs: the money which he sought was to be used in payment of a drug debt.

71 Ross planned the offences: and van de Worp supported him in the enterprise on the promise of financial gain. Watson was not an instigator.

72 Although Watson brandished the shotgun, the Court apparently accepted his evidence that he had done so to ensure that no harm came to anyone, being unaware that the gun was loaded. The Court was apparently aware of Miller J's rejection of Watson's explanation for his conduct.

73 Watson was not regarded as presenting any risk of re-offending. Ross was assessed as being at a "moderate to high risk of becoming involved in future drug related offences" unless he participated in a programme of drug use education and counselling. Van de Worp also presented a risk. He had informed the Community Corrections Officer who prepared the pre-sentence report, that he had ceased involvement with amphetamines and was "making a concerted effort to reduce his cannabis intake". It was said that:

"With benefit of a stable home environment, employment opportunities and drug awareness programmes, van de Worp's risk of any future offending would be significantly reduced."

74 Watson was regarded as having employment prospects which should be encouraged, whereas Ross and van de Worp had no such promising prospects.

75 In short, the majority of the Court of Criminal Appeal was persuaded that Watson was a young man of unblemished character, who had been drawn into a criminal enterprise instigated by Ross with van de Worp's

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support: that he had acted in a manner which was more stupid than criminal and that he did not require rehabilitation. The Court considered that Miller J had failed to attribute sufficient weight to these factors, and had erred in regarding it as inappropriate to suspend an otherwise appropriate sentence.

76 It seems to me, therefore, that the factors which persuaded the majority in Watson to allow his appeal are such as to distinguish that case from those of Ross and van de Worp. I do not therefore find anything in Watson which causes me to depart from my view that Miller J did not err in sentencing Ross or van de Worp.

77 I would add that even if I am wrong in my conclusion that Miller J exercised his discretion properly, I would not myself have suspended either Ross' or van de Worp's sentences, it being conceded by them that sentences of imprisonment were appropriate. I accept that they are young men who have not been imprisoned previously. I accept that there are other mitigating factors to which reference was made on their behalf. However, in my view, these factors are far outweighed by the seriousness of the offences, involving the threatening use of a loaded shotgun and a knife by a drug dealer and a drug user to obtain money in connection with drug dealing. The need for deterrence in these circumstances is also a powerful factor against suspension.

Should the sentences of Ross and van de Worp be varied to give effect to the parity principle?

78 The principle of parity in sentencing is based on the philosophy that any difference between sentences imposed upon co-offenders for the same offence should not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence: or to give the appearance that justice has not been done: see Lowe v The Queen (supra) at 623 per Dawson J.

79 As Mason J said in the same case, inconsistency in punishment is regarded as a badge of unfairness. Unequal treatment under the law is calculated to lead to an erosion of public confidence in the integrity of the administration of justice (at 610 - 611).

80 However, as Dawson and Gaudron JJ pointed out in Postiglione (1997) 94 A Crim R 397 at 401:

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"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is question of due proportion between those sentences, that being a matter to be determined

having regard to the different circumstances of the co-offenders in question and their different degrees of criminality

." (My emphasis)

81 In the present case, it must be accepted, I think, that there is a marked disparity between the sentences imposed on Watson on the one hand and Ross and van de Worp on the other. Although a suspended sentence is a sentence of imprisonment, from the perspective of Ross and van de Worp, Watson has hardly been punished at all. That, I suspect, is a perception which a significant proportion of the population would share.

82 However, it must be borne in mind that pursuant to s 76 of the Sentencing Act 1995, a term of imprisonment of up to 60 months may be suspended for a period of not more than 24 months.

83 It must follow that the legislature has now incorporated into the system the objective possibility that, in appropriate circumstances, one co-offender may be sentenced to an immediate term of imprisonment while another has a similar sentence suspended. While that might result in the imprisoned offender feeling a sense of grievance, it would not be justifiable. That is because the different sentences would reflect the different circumstances of the co-offenders: the point made by Dawson and Gaudron JJ in Postiglione.

84 In my view, that objective possibility has become a reality in the present case. The Court of Criminal Appeal in Watson took the view that his circumstances were so exceptional as to warrant the suspension of his sentence of imprisonment. Indeed, Murray J referred to the "highly unusual circumstances, which set [Watson] apart from his two co-offenders": [2000] WASCA 8 at par 59.

85 I have given anxious consideration to the question whether the disparity between sentences of immediate imprisonment for 2 years and 9 months and 2 years and 6 months and a suspended sentence of 3 years imprisonment is such as itself to give rise to a justifiable sense of grievance. I have come to the conclusion it is not, once it is accepted that the system allows that result: and that Watson's circumstances, as the Court of Criminal Appeal found them to be, were so markedly different from those of Ross and van de Worp.

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86 I therefore conclude that the parity principle provides no basis for interfering with the sentences of immediate imprisonment imposed on Ross and van de Worp.

Should Ross' sentence be reduced by reason of injustice on other grounds?

87 I have set out above the sequence in which Watson, Ross and van de Worp appeared before the Court. Ross and his counsel were unaware of Watson's appearance on 1 November and therefore had no opportunity to challenge his account of the material events.

88 In these circumstances it is submitted on behalf of Ross, that in the interests of preserving the integrity of the criminal justice system, he should not be disadvantaged by the loss of the opportunity of challenging Watson's evidence, having lost that opportunity by administrative procedures about which he had no knowledge and over which he had no control.

89 It is undoubtedly unsatisfactory that the three co-offenders should have been dealt with as they were.

90 It is also unfortunate that the prosecution of the three offenders was apparently assigned to three different prosecutors in the office of the Director of Public Prosecutions. If it was not possible for one person to deal with all three prosecutions, then at least there should have been some liaison between those concerned to ensure that any appropriate challenge to Watson's evidence was made.

91 However, despite these matters, I am not persuaded that Ross was disadvantaged by his inability to challenge Watson's evidence. In my view, the reality is that both Ross and van de Worp benefited from the administrative arrangements which had been made.

92 When Miller J sentenced Ross on 18 November, he remarked that Watson had been sentenced leniently because of his excellent antecedents. Referring to the contest which had then emerged between Watson and Ross, his Honour said:

"Whether in the circumstances there should have been any contest to some of what was put on behalf of Watson is another question, but that can now no longer be the case." (AB 51)

93 His Honour had previously noted the importance of parity as between Watson and Ross. Having regarded Watson as the primary
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offender, it being he who had held the shotgun, his Honour said he was prepared to deal with Ross more leniently than he would have done otherwise.

94 Van de Worp also benefited because of the application of the parity principle. In his case, the Judge said "it may be that Watson has been let off lightly" (AB 65).

95 It therefore seems to me likely that if Watson's evidence had been challenged successfully, so as to result in a more serious view being taken of his culpability, all three offenders would have received more substantial sentences.

96 It is true that this might have affected Watson's prospects of succeeding in his appeal. It was, as I have noted, a borderline case. However, it would have been open to the Crown to apply to have additional evidence admitted on the hearing of Watson's appeal, had it been thought appropriate to do so.

97 I am therefore of the view that the administrative arrangements which were made in relation to these matters have not resulted in any disadvantage to Ross or van de Worp.

98 For all these reasons, I would grant leave to appeal in each case but I would dismiss the appeals.

SHELLER AJ

Introduction

99 At about 8.00 pm on Saturday 14 August 1999 the applicants, Dominic Michael van de Worp and Gary Brendan Ross, together with Benjamin Watson, went to a house at 56 Lushington Drive, Padbury occupied by Huw David Matthews with the intention of taking money from Matthews. Matthews was alleged to owe money for drugs purchased from the applicant Ross.

100 In an attempt to hide his identity Watson was wearing a bandanna across his nose and the lower part of his face. He was armed with a loaded double-barrelled over and under shotgun. Van de Worp was armed with a knife.

101 On their arrival at the premises, Watson kicked in the gate in the back fence. The three offenders entered the yard. Matthews saw them approaching and armed himself with a baseball bat. When approximately

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five feet away from Matthews, Watson pointed the shotgun at his head. The barrel was about a foot away from his face. Matthews retreated into the house followed by Watson who repeatedly demanded he get on his knees. Matthews complied. Watson then backed out of the house with the shotgun still covering Matthews in the house and joined the other offenders at a shed at the side of the house where Andrew Waller and his four friends were sitting inside. Ross pushed Waller in the chest several times and demanded money from him. At the same time Watson pointed the shotgun at Waller's chest. Van de Worp stood near the door with a knife in his hand. Ross picked up Waller's wallet and removed $20 from it. He then replaced the wallet and the three offenders left the premises.

102 On 15 August 1999 Ross' mother and her husband handed the shotgun into police at Warwick Police Station. On 16 August Ross attended at Warwick Detectives' Office and participated in a video record of interview before the matter was reported by the victims. On 17 August Ross and van de Worp attended Warwick Detectives' Office and participated in a video record of interview. On 19 August the three offenders were arrested and each charged.

Plea of guilty and sentence hearings

103 On 1 November 1999 Watson and Ross were together indicted on two counts, one of burglary with intent to commit an offence while armed with a dangerous weapon and in company, and the other of armed robbery in company. On 18 November van de Worp was indicted on the same offences. All three pleaded guilty and came before his Honour Justice Miller on fast track pleas of guilty. They did so on different occasions. For reasons which appear to have resulted from an accident of listing, Watson came up for sentencing on 1 November 1999 and was sentenced on that day. The sentencing proceedings for Ross took place on 18 November 1999 and for van de Worp on 20 December 1999.

The van de Worp sentences

104 Van de Worp was sentenced for each offence to a term of two years and nine months, the sentences to be served concurrently and date from 1 December 1999 when he was taken into custody. His Honour ordered that the applicant be eligible for parole. In imposing these sentences, Miller J took into account the sentences already imposed on Watson of three years' imprisonment and on Ross of two years and six months' imprisonment. His Honour said:

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"I accept that you have good prospects of rehabilitation in the sense that you are unlikely to go back to drug use and you are with your family where you can be properly cared for and guided. Your antecedents are also good because you have no prior convictions. It has been urged upon me that a sentence other than a fixed term of imprisonment would be appropriate in this case. As I have said, your counsel urged that it is not in the community's interests to put you in gaol, but this submission overlooks the community's interests in ensuring that there is just punishment for offences of the nature committed by you.

I said in relation to your co-offenders I had no alternative but to impose sentences of imprisonment because the crimes were so serious. I felt unable to suspend the sentence of imprisonment in relation to either of them. As I indicated during the course of the plea put on your behalf the offences are so serious that I consider a sentence of imprisonment as the only disposition which is open. I am unable to suspend the sentence of imprisonment because of the seriousness of the offences committed. The fact that people were held up in their own house with an armed shotgun and a large knife which you were wielding puts the offences in the very serious category. Notwithstanding your lack of prior convictions and good antecedents I am of the view that a sentence of imprisonment is the only disposition open." (my emphasis)

The Ross sentences

105 In the course of sentencing Ross on 18 November 1999, Miller J said:

"I accept that you have been basically conviction-free before this time. You have had opportunities in life but from the age of 15 you threw them away. I accept that since commission of this offence you have engaged in preliminary counselling sessions in relation to family problems, and your substance abuse problem. The pre-sentence report is pessimistic, however, about your future unless you participate actively in a program of drug-abuse education.

I take into account your plea of guilty because you have pleaded guilty to these offences at an early opportunity and have avoided the necessity of a trial. This is very much in your

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favour and indicates an acceptance of responsibility on your part. I accept Ms Amsden's submission that you show remorse.

I must impose [a] sentence having regard to just punishment, deterrence, prevalence of the offences, prospects of rehabilitation and your antecedents. Just punishment and deterrence are very important in relation to these offences. Breaking into people's property and holding them up with weapons will not be tolerated by the courts, and a deterrent sentence is therefore called for.

Your prospects of rehabilitation remain somewhat unknown. You have some favourable aspects in your antecedents but the pre-sentence report indicates a need to address problems that you have in relation to substance abuse. I consider the seriousness of the crimes committed such that there is only a sentence of imprisonment that can be imposed. I have considered carefully whether I could suspend that term but I have taken the view that the seriousness of the offences is such that it is not possible to suspend the sentences I intend to impose.

It is, however, important that there be parity with Watson. Watson was sentenced to 3 years' imprisonment and I took the view that he was the primary offender in that he held the shotgun as I have indicated. The fact that you told him you wanted him to hold the gun, however, tells against you. Watson was sentenced leniently because of his excellent antecedents. Whether in the circumstances there should have been any contest to some of what was put on behalf of Watson is another question, but that can now no longer be the case.

Having regard to parity of sentence and the sentence imposed upon Watson, having regard to all factors, I'm prepared to deal with you leniently, more leniently than I would otherwise have done so. So I will impose upon you on count 1 a sentence of 2 years 6 months' imprisonment; on count 2, 2 years 6 months' imprisonment. They will be concurrent sentences. You will be eligible for parole.

I recommend that as a condition of parole you be required to undergo appropriate drug education programs, and I recommend that whilst in prison you undertake the substance

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abuse resource unit program. The sentences will date from 19 August 1999, the date on which you went into custody." (my emphasis)

Applications for leave to appeal

106 On 21 December 1999 this Court granted Watson leave to appeal from his sentence and by a majority (Wallwork and Murray JJ, Kennedy J dissenting) allowed the appeal and varied the sentences by ordering that they be suspended for two years. On 31 December 1999 van de Worp filed an application for leave to appeal. The grounds relied on were error in failing to suspend the sentence for a set period and the principle of parity having regard to the Court of Criminal Appeal's order suspending the sentence imposed on Watson. On 3 February 2000 Ross filed an application for an extension of time within which to seek leave to appeal. The Crown does not oppose that application. The grounds of appeal were in substance the same as those of van de Worp. On 7 January 2000 van de Worp was released on bail pending the hearing of his application and on 3 February 2000 Ross was released on bail pending the hearing of his application. The applications for leave to appeal of van de Worp and Ross are now before the Court to be dealt with.

Preliminary observations

107 As the sentencing Judge recognised and correctly emphasised, the offences with which the applicants were charged were of a most serious kind. Particularly is this so because Watson and van de Worp were armed with weapons capable of killing or inflicting serious injury. The gravity of the offences is recognised by the statutory maximum penalty for armed robbery of life imprisonment, and for aggravated burglary of 20 years' imprisonment.

108 The sentencing discretion of the trial Judge is central to our system of criminal justice. If properly exercised the sentence imposed is inviolable. In House v The King (1936) 55 CLR 499, an appeal to the High Court against a sentence imposed by the Bankruptcy Court, Dixon, Evatt and McTiernan JJ said at 505:

"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

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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."

Suspended imprisonment

109 Each of the applicants submits that Miller J erred in not suspending the sentences imposed for a set period. Section 76 of the Sentencing Act 1995 enables a court that sentences an offender to a term of imprisonment of 60 months or less to order that the whole of the term be suspended for a period set by the court not exceeding 24 months. The effect of suspending imprisonment is that the offender is not to serve any part of the imprisonment that is suspended unless during the suspension period he or she commits an offence the statutory penalty for which includes imprisonment and an order is made under s 80: s 77(1). Section 77(4) provides that an offender sentenced to suspended imprisonment is taken to be discharged from the sentence at the end of the suspension period. Section 77(6) provides that a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment. In R v Liddington (1997) 18 WAR 394 at 396 Malcolm CJ said that:

"the suspension of a sentence is the penultimate sentencing option in the scale of sentences, second only to the imposition of a sentence of imprisonment to be served immediately."

110 Although s 6, s 7 and s 8 of the Sentencing Act stipulate sentencing principles to be followed, the legislature leaves it to the judicial discretion to determine what circumstances in the particular case should be brought into account in deciding whether or not the sentence should be suspended. Outside the bounds imposed by the legislature on the occasion for the exercise of the power, no express guidance is given to the sentencing Judge as to how the discretion should be exercised. In R v Liddington Malcolm CJ and Steytler J expressed the view that, while all the relevant circumstances must be taken into account in determining whether a suspended sentence is appropriate, it should be recognised that the primary purpose of suspending the sentence is rehabilitative or

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reformative, although there may be some other sufficient reason for suspending a sentence: see 399 and 406. Ipp J said that in his view a broad and flexible approach in determining whether a sentence should be suspended should be followed:

"In my view, and with respect to others who have come to a different conclusion, it seems to me that the power to suspend a sentence should not necessarily be used primarily to provide an inducement to the offender to reform. It should simply be used whenever the circumstances of the case are such that a suspended sentence would be the appropriate sentencing disposition." (p 401)

111 In R v Wacyk (1996) 66 SASR 530 the South Australian Court of Criminal Appeal considered the Criminal Law (Sentencing) Act 1988 of that State, s 38 of which enabled the court to suspend a sentence "if it thinks good reason exists for doing so". The legislature there expressed what must I think be implicit in the Western Australian Act. Perry J, with whose reasons Millhouse J agreed, said at 535:

"The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.

A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment."

112 At 536 his Honour said:

"It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of that discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender."

113 The Queen v Wilton (1981) 28 SASR 362 raised for the South Australian Full Supreme Court a question about the supposed unfairness

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of not suspending a sentence of imprisonment when co-offenders had had their sentences of imprisonment suspended. At 367 King CJ, with whose judgment Mitchell and Williams JJ agreed, said:

"Considerations which are appropriate in determining sentences which fairly reflect the respective degrees of criminality in the involvement of co-offenders in crime and the differences in their relevant circumstances, are not necessarily relevant in determining whether the discretion to suspend exists or whether it should be exercised. It seems clear to me that there is no warrant in the statutory provision for treating the supposed unfairness of an unsuspended sentence for one offender as contrasted with a suspended sentence for another as founding a discretion to suspend. Nor is it a relevant factor in deciding whether to suspend where the discretion comes into existence independently of that factor. …

The correct approach to the sentencing of these co-offenders was for the sentencing judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part."

114 Like considerations may play a part in determining the nature and length of a sentence and then, in the case of imprisonment, whether the sentence should be suspended. But the weight to be attached to each such consideration will usually be different. The seriousness of the offence, the degree of culpability and general and personal deterrence will be important factors in sentencing. In determining whether to suspend the sentence, the prospects of rehabilitation and particular hardship are likely to be more significant.
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Watson's sentences

115 In sentencing Watson, Miller J said:

"You have testified that you went to the house with the shotgun in the car in which you were travelling and disguised yourself when you got there and took possession of the shotgun, effectively, to ensure that nothing would happen. You deliberately chose this course of action. As I said to Mr Roberts-Smith [QC], your counsel, during the course of argument, you could have refused and should have refused to have been involved, and you took the fatal step of taking possession of the shotgun, disguising yourself and going to the yard in company with the other two persons.

You have no really acceptable explanation for so doing. The fact that you didn't know the shotgun was loaded is two-edged. Had the shotgun been discharged because you had tripped, fallen, been pushed or pulled the trigger, someone would have been killed, and the seriousness of that is obvious.

Matters personal to you are very important in this case. You were born on 7 May 1981 and you are 18 years of age. You are a single man, a professional skateboard boarder [sic] by occupation. You were educated at Hamilton Senior High School in Hamilton, New Zealand to the age of 16 years. You were employed in New Zealand and more recently in Perth with a skateboard business, and the pre-sentence report I've received sets out your history. It's been elaborated upon by Mr Roberts-Smith [QC] here today.

You were raised in New Zealand by parents who were deeply involved in religion. You had a very happy childhood, a supportive home environment. You came to Perth at the age of 16 to stay with grandparents because you were a professional skateboarder and considered there were more opportunities for that occupation here than in New Zealand.

You went to Sydney for a time to live with your father who had moved to Australia from New Zealand and then came back temporarily to Perth to settle an insurance claim, and it was whilst you were here doing that that these offences occurred. The pre-sentence report describes you as an intelligent young man from a seemingly stable family environment.

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The motivation for your commission of the offences appears to be a mystery. You explain your involvement in being simply that you were asked to help and took control. Your father suggests that you may have acted impulsively to show bravado. When interviewed you took full responsibility for your part in the offence and stated that you had made a foolish mistake.

The author of the pre-sentence report is concerned about the violent nature of the offence as committed and apparent lack of motivating factors, but on the other hand, it is said that you appear to have a bright future ahead of you with full support of your family. I add that you have no criminal convictions apart from a few minor traffic matters which are of no concern."

116 After referring to decisions of this Court which stressed that sentences for armed robbery must be firmed up, his Honour said:

"It is true that in rare and exceptional cases or in extraordinary circumstances a non-custodial sentence may be appropriate, particularly where the offender has no or no significant record and the prospects of rehabilitation are good and this is submitted to be a rare and exceptional case. I have listened very carefully to that submission, but I need to take into account these factors in sentencing: firstly, the gravity of the two offences. They are extremely serious offences. Breaking into somebody's property and stealing with violence whilst armed constitute very serious offences. The use of a double-barrelled shotgun in the way in which you pointed it at two victims aggravates the offences dramatically. Whatever your motivations, the offences are extremely grave.

I take into account the effect on the victims. I have only one victim impact statement, that being from the victim Matthews, who says, 'Due to this crime I am having difficulty getting to sleep and having restless nights remembering how close I was to being shot to death.' Now, the fact of the matter is that this man had a double-barrelled shotgun which he didn't know was unloaded or unloaded, [sic] but which was in fact loaded, pointed at his head and it's not surprising that from his point of view he has very deep concern.

I turn to the matters personal to you. The book of references tendered has excellent references. I have checked them all

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carefully. I accept you are regarded as a person of good character. You have excelled as a sportsman during your life, achieving success in athletics, Rugby, freestyle wrestling and, more recently, board skating. You have become a professional board skater. You did so before these offences.

You have become capable of earning substantial moneys. How much I do not know, but it was before you committed these offences that you knew you were in that position. It is very much in your favour that you have no criminal convictions and also that you have strong family support and I take account of the fact that you and your father are working on a major skateboard enterprise, the details of which I have not been given, but which you hope will return substantial sums of money.

I have regard to your conduct since commission of this offence. I accept that you have remorse for what you did and now realise the seriousness of what you did. I have regard to your plea of guilty. You have pleaded guilty to these offences at the earliest possible opportunity, thus avoiding the necessity for a trial at which two youths would have had to give evidence. That is certainly very much in your favour, but in imposing sentence here there are five factors that I need to take into account. They are: just punishment, deterrence, prevalence of the offences in question, prospect of rehabilitation and your antecedents.

Now, just punishment and deterrence are importance [sic] in relation to these offences. People cannot be held up with double-barrelled shotguns in the way in which you held up these youths on the night in question. You were disguised holding a potentially dangerous weapon in circumstances which I regard so serious that they do call for a deterrent sentence. The offence of stealing with violence is particularly prevalent as is aggravated burglary.

You do have good prospects in life and your antecedents are extremely favourable to you. You don't seem to need rehabilitation because I accept that you're not likely to offend again. You have jeopardised a very promising commercial enterprise about which I have heard evidence, but you chose to do that and should have appreciated that at the time."

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117 Miller J turned to the question of sentence and said:

I consider that the seriousness of the crimes committed by you are such that only a sentence of imprisonment can be imposed. I have looked very carefully at the question of suspending that sentence, but I have reached the view that the seriousness of the offences is such that I am unable to do so. Although the pre-sentence report recommended that the court consider the suspension of a custodial sentence I have considered the matter as carefully as I can, but I am unable to take that step.

It does not appear that you are a person who needs rehabilitation.

I do not consider that any of the other factors which are identified by Steytler J in the Liddington case as key factors in relation to the suspension of sentence are applicable and require or demand or entitle you to the suspension in this case. You are a person who offended for really no known reason. You had no prior record of convictions. There is no drug problem which would cause you to commit the offences. In short, you committed them for no justifiable reason and in circumstances in which you don't appear to be needing rehabilitation for what you have done rather, as I see it, the community expects a deterrent sentence to deter others from doing what you have done.

The sentences which I impose will reflect your excellent antecedents, your plea of guilty and your remorse and they will be as follows: on count 1, 3 years' imprisonment, on count 2, 3 years' imprisonment." (my emphasis)

Watson's appeal

118 In this Court, in upholding the appeal against Watson's sentence, Wallwork J said at [34]:

"As can be seen from the above facts, these were most serious offences. The question on the appeal is whether the learned trial Judge erred in sending the applicant to prison."

119 His Honour referred to those parts of the remarks on sentence which I have quoted and the submissions put on behalf of the applicant on the appeal. At [47] Wallwork J said:

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"In my opinion this was a most exceptional case. Most unusually the applicant had nothing to gain by his offences. From all the information the court has at its disposal, the offences appear to have been committed without the applicant giving the matter serious thought. He was young and had no relevant criminal record at all. It was not as if he had been attempting to obtain money for drugs, or anything similar. He was apparently asked by his co-offenders to drive them to commit the offences for their purposes and not his own."

120 After referring to Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Wallwork J continued at [50]:

"There is nothing in the material before this Court to suggest that the applicant is likely to re-offend in any way. In my view it is important in all the circumstances of these offences, that the future of a young man with this applicant's background be not unduly jeopardised if the interests of the community do not demand an immediate prison sentence. It is not the case that every offence of armed robbery must be followed by a term of imprisonment. There are, as can be seen from the previous decided cases, exceptional cases where sentences of immediate imprisonment are not imposed. In view, in this case, it was not necessary in the community's interests that the applicant be sentenced to a term of immediate imprisonment."

121 After referring to what Steytler J had said in R v Liddington at 406 Wallwork J continued:

122 The other member of the majority, Murray J, referred to the surrounding circumstances and said at [58] - [60]:

"Although, as the learned sentencing Judge said, it provides no excuse or acceptable explanation for the applicant's involvement, it was accepted that once it became clear to the applicant what his co-offenders planned, the applicant did not

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think of withdrawal as he should have done, but only of how his involvement might be managed in such a way as to minimise the prospect of harm occurring to any victim upon whom the offences were to be committed, offences from which he was to gain nothing. While that is not an acceptable explanation for his involvement, it is understandable, particularly when one is speaking of such a decision taken by an obviously naïve young man just three months after his 18th birthday, on the spur of the moment when he was already caught up in the process of driving his co-offenders to the place where they wished to confront those from whom they sought to obtain money. It was not on that basis so much a matter of bravado, as surmised by the applicant's father, as appalling misjudgment which allowed him to be not only carried along by the events of the night, but also to become centrally involved in their perpetration.

In my view the acceptance of those facts reveals that the offences in question were committed by the applicant in highly unusual circumstances, which set him apart from his two co-offenders who were also before the court and who were dealt with by the same sentencing Judge.

The position of the applicant is in my opinion rendered even more unusual by the fact that he is not a person who uses prohibited drugs, and he had only met one of the co-offenders on a couple of prior occasions. He was employed as a professional skateboarder and his capacities were accepted by the learned sentencing Judge to be such that he had a bright future ahead of him and was 'capable of earning substantial monies.' He has no criminal convictions and enjoys strong support from a very worthwhile family. The learned sentencing Judge accepted that the applicant's antecedents were extremely favourable. There was every prospect that, the applicant having involved himself on this particular occasion in the commission of two very serious offences in the circumstances described above, he had by the time he came before the court quite recovered his previous good character and was back on track to function as a law abiding and worthwhile member of the community."

123 Having referred to Miller J's conclusion that not only was imprisonment the only appropriate punishment, but that the seriousness of

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the offences were such as to preclude the suspension of imprisonment, Murray J said:

"In my respectful opinion, it is in the conclusion that the offences were too serious to allow for the suspension of imprisonment that the exercise of discretion has miscarried."

124 In conclusion, his Honour said that in his view the circumstances were not such as to demand that the applicant should be immediately sent to prison for the first time.

The discretion to suspend imprisonment

125 In my opinion, the refusal to exercise the discretion to suspend a term of imprisonment which is based on the premise that a sentence for armed robbery cannot be suspended by the court whatever the other circumstances of the case may be, would be erroneously based: R v Wacyk. I do not read anything said by this Court in R v Liddington as suggesting otherwise. The power under s 76 of the Sentencing Act extends to any term of imprisonment for any offence provided only that the term is 60 months or less. The nature of the offence is not a stated criterion and, as this case has shown, an appropriate sentence for armed robbery may be three years' imprisonment, well within the 60 month limit. It may be that it was on this basis that at least Murray J was of the view that there was error in the exercise of the sentencing discretion in the case of Watson. On the other hand, Wallwork J appears to have regarded the sentence as one which, to adapt the words used in House v The King which I have quoted, was upon the facts unreasonable or plainly unjust so that the court could infer that in some way there had been a failure properly to exercise the sentencing discretion. Based upon what was said by the majority in Watson, the applicants in the present case submit that the sentencing process in respect of both van de Worp and Ross was similarly infected with error.

126 In the case of both applicants, the first step was to fix the appropriate sentences for the offences charged to which they pleaded guilty. No challenge has been made to those sentences. The next step was to turn as a separate exercise to the question of whether or not the court should exercise its discretion to suspend the sentences, that is to say to suspend their execution. In the passage which I have quoted from the remarks on sentence in respect of Ross, his Honour, it seems to me, concluded the sentencing process by saying:

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"I consider the seriousness of the crimes committed such that there is only a sentence of imprisonment that can be imposed."

127 Turning to the question of suspending the sentence his Honour said:

"I have considered carefully whether I could suspend that term but I have taken the view that the seriousness of the offences is such that it is not possible to suspend the sentences I intend to impose."

128 His Honour then turned back to determine the period of sentence he would impose. With due respect, I am inclined to think that by mixing what should have been two separate sentencing tasks, his Honour determined the question of whether the sentences should be suspended without regard to anything other than the seriousness of the offences and treated that as decisive.

129 The structure of the remarks on sentence in van de Worp was substantially the same. Having reiterated that in relation to the co-offenders he had no alternative but to impose sentences of imprisonment because the crimes were so serious, Miller J continued:

"I felt unable to suspend the sentence of imprisonment in relation to either of them."

130 Again his Honour said that the offences were so serious that he considered a sentence of imprisonment as the only disposition which was open and continued:

"I am unable to suspend the sentence of imprisonment because of the seriousness of the offences committed."

131 Again, with due respect it appears to me that no sufficient consideration was given to circumstances other than the seriousness of the offence in determining whether or not the court should suspend the sentence. In my opinion, in undertaking the exercise of determining whether there should be a suspension, his Honour failed to take into account other material considerations apart from the seriousness of the offences. Accordingly, the court should review the sentences imposed on each of the applicants and determine whether in either case the terms should be suspended.
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The parity principle

132 In the forefront of the argument for both applicants was the contention that, applying the principles of parity, the Court of Criminal Appeal's order suspending the sentences imposed on Watson dictated that the sentences imposed on each applicant should be suspended.

133 In Lowe v The Queen (1984) 154 CLR 606 Mason J said at 610 - 611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

134 At 613 his Honour said that the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

135 At 618 Brennan J remarked:

"But where an appellate court determines that the lesser of the sentences imposed upon co-offenders is appropriate, it ought not to allow a sentence of markedly greater severity to stand unless there are differences in the gravity of the conduct of the co-offenders or in their antecedents sufficient to warrant the disparity."

136 In Postiglione v The Queen (1997) 189 CLR 295 at 323 Gummow J said:

"The principle for which

Lowe

is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the

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appearance, in the mind of an objective observer, that justice has not been done.

In R v Taudevin [1996] 2 VR 402 at 404 Callaway JA said, in a passage with which I agree:

'The important words are "manifestly", "justifiable" and "objective". There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer.' "

137 In a joint judgment in Postiglione, Dawson and Gaudron JJ said at 301:

"The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."

Watson's evidence

138 In this case there is a complication on which counsel for Ross placed some emphasis. On the material before him, Miller J regarded Watson as the primary offender in that he held the shotgun. In the Court of Criminal Appeal Watson did not challenge the head sentence and presumably this conclusion. Watson's evidence on sentence was that Ross asked him, because he had a car, if he "would give them a ride over to their friend's house who owed them money" and he agreed. He went to the house where Ross' uncle lived and van de Worp showed him the gun. Watson said he just wanted to help them and go and get the money and then that was that. "I didn't think of any consequences". Asked his purpose Watson said:

"Just to drive them over there. It wasn't until we actually arrived at the park behind these guys' house where I parked the car and they seemed really hyped up about it - it wasn't until

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then that I realised that I was involved and had they shoot [

sic

] anyone or if anything happened then I'd be an accomplice to that and it would be quite serious and that is when I said that I would hold the gun and I would hold them up because I knew with my beliefs and everything that I wouldn't shoot anyone. I was just trying to make really, all I can say is the best of a worse situation and it wasn't, like I said, until then that I realised or thought about any consequences."

According to Watson, no-one told him that the gun was loaded and he did not check to see whether it was or not.

139 In considering Watson's appeal, Wallwork J said at [36] - [37]:

"His Honour said that the applicant had had a very happy childhood and a supportive home environment. The pre-sentence report had described him as an intelligent young man from a seemingly stable family environment. His Honour said that the motivation for the commission of the offences appeared to be a mystery. He noted that the applicant's father had suggested that the applicant may have acted impulsively to show bravado. When interviewed the applicant had taken full responsibility for his part in the offence and had stated that he had made a foolish mistake.

The pre-sentence report stated that the applicant appeared to have a bright future ahead of him, with full support from his family. His Honour said that the applicant had no criminal convictions apart from a few minor traffic matters which were of no concern. His Honour said that the Court of Criminal Appeal had stressed that sentences for armed robbery must be firmed up in the light of the fact that the incidence of armed robbery had grown substantially in recent times. That the tariff for armed robbery was in the range of 6 to 9 years imprisonment for a single offence, depending on the circumstances."

140 In concluding that it was appropriate to suspend the sentence, Wallwork J stressed that Watson's was a most exceptional case, that he had nothing to gain by his offences, that the offences appear to have been committed without his giving the matter serious thought, that he was young and had no relevant criminal record, that he was apparently asked by his co-offenders to drive them to commit the offences for their purposes and not his own, and that there was nothing in the material

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before the court to suggest that he was likely to re-offend in any way. In his Honour's opinion it was not necessary in the community's interests that Watson be sentenced to a term of immediate imprisonment. In the community's interests there was a need that Watson be rehabilitated in the sense of being encouraged to get on with his life and to put the offences behind him.

141 Murray J was of the view that the offences were committed by Watson in highly unusual circumstances "which set him apart from his two co-offenders". His Honour pointed out that, on the evidence, Watson was not a person who used prohibited drugs and had only met one of the co-offenders on a couple of prior occasions. Watson had a bright future ahead of him and enjoyed strong support from a very worthwhile family. His Honour said at [66]:

"I am moved by the unusual, indeed bizarre, circumstances surrounding the commission of the offences by [Watson], his youth, his remorse, his unblemished character prior to his involvement in the commission of these offences and the powerful mitigation provided by his antecedents, to the conclusion that particular deterrence was not required and general deterrence could be sufficiently served by the imposition of sentences of imprisonment and their length.

But in my view the circumstances were not such as to demand that this young offender should be immediately sent to prison for the first time."

142 Murray J expressed the view that the best interests of the community were served by a merciful disposition which built upon the remedial shock of the pronouncement of the sentencing Judge's view that imprisonment was the appropriate punishment to reinforce in Watson the necessity never again to behave in such a way as to bring him before a criminal court.

143 Counsel for Ross complained that because Watson's sentencing took place separately and in the absence of the applicants, Watson was able to present a false picture about the degree of his involvement in the offences. Neither van de Worp nor Ross gave evidence in the sentencing proceedings. On 1 December 1999 during submissions put at van de Worp's sentencing, counsel for van de Worp said that his client got into the car thinking that he was going around with Ross and Watson to try and retrieve money from people that he knew. The following interchange then took place:

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"MILLER J: So does Mr van de Worp say the first he knew of the gun was when Watson produced it?

BAYLY, MR: He says they got into Watson's car. He says the gun was in Watson's car.

MILLER J: You see, this is where, unfortunately, dealing with the three separately, this has become a problem because when Mr Roberts-Smith [QC] turned up for Watson, he put a plea to me that Watson knew nothing about the gun until he got to Ross's place, and then lo and behold, he finds a gun and when he gets out of the car he thinks, 'I'll take it along because otherwise someone else might do something silly with it.' Then I get Mr Ross come along and Ross tells me through his counsel that Watson had the gun all along.

BAYLY, MR: Yes.

MILLER J: Ms Campbell, I notice Watson is appealing in the Court of Criminal Appeal list.

CAMPBELL, MS: Yes, I see that, sir.

MILLER J: No doubt you will have to give consideration to that issue because this issue has now become a bit of a problem. I have sentenced Watson on the basis that although he had possession of the firearm he was not the person that was actually responsible for producing it. So it may be that Watson has been let off lightly if the facts are that Ross and your client say - namely, that Watson at all material times had the shotgun."

144 During Watson's appeal the Crown did not mention that the applicants had challenged Watson's account from the well of the court. This was understandable since the Crown had no evidence with which to contradict what Watson had said. Nor, it seems to me, do we have any evidence upon which we are entitled to take this into account. In any event, the most that could be said is that if Watson's account was false, this Court would not have intervened to make the suspension order. In the applicants' favour, the sentencing Judge proceeded on the basis that Watson was the primary offender and sentenced the applicants accordingly.
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145 Neither applicant put any evidence before this Court to supplement the material before the sentencing Judge. I regard this as unsatisfactory in the case where this Court is asked to re-sentence. However, in light of the conclusion to which I have come, I do not regard the absence of any such evidence in the present case as significant.

Should this Court make orders suspending the sentences of either applicant?

Van de Worp

146 The applicant was born in New Zealand on 23 July 1981 and has no prior convictions. He is the middle child in a family of three children. In 1988 when he was 7, the family came to Australia. They spent two years in Queensland and then five years in New South Wales before transferring about three years ago to Port Hedland. The applicant's father is employed in a managerial position with BHP which explains the family's move from State to State for employment reasons. The applicant had difficulty in adjusting to the lifestyle and to the lack of leisure activities available to young people in Port Hedland. About 18 months ago he left Port Hedland to pursue employment and shared accommodation in the Perth metropolitan area. Since the offences were committed he has returned to the family home in Port Hedland. His parents, while disappointed with his offending behaviour, remain fully supportive of him. Van de Worp has a younger sister who resides in the family home and an older brother who resides independently in Port Hedland. His father is still employed by BHP. His mother is employed as a teacher at a local primary school. Van de Worp has no plans in the immediate future to leave the family home. According to the pre-sentence report of 5 November 1999 he was then committed to seeking permanent employment in the area. He is single with no dependants.

147 Due to the family's mobility he has attended several schools. He completed his first year of high school in New South Wales before moving to Port Hedland. He went on to achieve years 9 and 10 at South Hedland Senior High School. He gained his achievement certificate. He left school midway through first term of year 11 to take up an offer of employment as a trades assistant with an electrical contractor in Port Hedland. This lasted for seven months. He was laid off due to a downturn in trade. At about this time he decided to go to Perth where he had an offer of work with a cabinetmaker. This position was terminated after four months following an error on his part with the assembling of the

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merchandise. He said that he then went to work for a french polisher for a couple of months. Thereafter he remained unemployed up to the time the offences were committed. Since returning to the family home in Port Hedland he has had some casual work as a trades assistant with a local electrical contractor. This work ran out in October 1999. As at November he was still seeking further employment in the area. In his casual position he received between $200 and $300 per week of which he retained $100 and gave the remainder to his parents towards his board, airfares and legal expenses. At the time of the pre-sentence report he was reliant on his parents for financial assistance. He had no debts or savings or assets of any significance.

148 Van de Worp stated that he first started experimenting with alcohol and cannabis at the age of 13. He described himself as a social drinker but used cannabis fairly regularly. While staying with friends in Perth he was introduced to amphetamines. Prior to the commission of the offence he was using this drug approximately two or three times a week. He maintained that since returning to Port Hedland he had ceased any further involvement with amphetamines and had made a concerted effort to reduce his cannabis intake. His mother, who was by then fully aware of her son's previous involvement with illicit substances, supported what he said. The summary in the pre-sentence report is as follows:

"Van de Worp presents as a pleasant, although somewhat naïve, young man. At just eighteen years of age he finds himself before the Courts as a result of his involvement with illicit substances. Van de Worp appears to have been raised in a stable and secure home environment. Unfortunately he left the family home in rural WA at sixteen years of age, to pursue leisure activities and employment in the metropolitan area. Without the benefit of any long term friendships, due to the family's mobility, van de Worp soon found himself gravitating towards other drug using peers.

Van de Worp does not attempt to minimise the seriousness of the matters presently before the Court and accepts full responsibility for his involvement. Since the commission of the offences van de Worp has returned to the family home and appears motivated to cease all future involvement with amphetamines. Whilst the seriousness of the present offences is an area for some concern it is noted that van de Worp has no prior convictions. With the benefit of a stable home environment, employment opportunities and drug awareness

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programmes van de Worp's risk of any future offending would be significantly reduced.

If the Court is considering a non custodial sentencing option then van de Worp has expressed a willingness to comply with an Intensive Supervision Order with community service and programme components. If the Court considers a term of imprisonment a more appropriate sentencing option then van de Worp is considered suitable for parole eligibility given his youth and the absence of any prior offending history."

149 Miller J accepted the substance of the pre-sentence recommendation. His Honour also accepted that van de Worp was unlikely to offend again and that he had good prospects of rehabilitation in the sense that he was unlikely to go back to drug use and was with his family where he could be properly cared for and guided. Correctly, his Honour emphasised the seriousness of the offences but noted an early plea of guilty by van de Worp. Like Watson, van de Worp was armed. His Honour said in his remarks on sentence that he considered the most reprehensible of the three offenders was Watson who had the loaded shotgun. He considered van de Worp the next most responsible because of the fact that he had a knife which was clearly visible to others and put them in fear. Van de Worp accepted that he knew the shotgun brandished by Watson was loaded and expected to be given a portion of the money taken by Ross.

150 The argument that this Court should suspend the sentences imposed on van de Worp is based entirely on the principle of parity. In determining whether the culpability and circumstances of van de Worp and Watson are like so that they should be treated alike, we must I think proceed by reference to the findings made by this Court on Watson's appeal. However, van de Worp is entitled to say on the basis of the unchallenged findings of the sentencing Judge that Watson's culpability was the greater. But the factors which in the opinion of the majority in Watson's appeal made it a most exceptional case were that Watson had nothing to gain by the offences and appeared to have committed them without giving the matter serious thought. He was asked to drive his co-offenders to commit the offences "for their purposes and not his own". Watson was not a person who used prohibited drugs and had only met one of the co-offenders on a couple of previous occasions. The court accepted that he did not know the gun was loaded and that Watson took the gun to reduce the element of danger. These are significant differences from van de Worp's case.

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151 What is alike is that both offenders were young men with, in the case of van de Worp, no criminal convictions and, in the case of Watson, "a few minor traffic matters which were of no concern". Both were regarded as unlikely to re-offend though van de Worp had a history of drug use. Both were supported by their families. Both were remorseful. However, I am not persuaded that this Court should interfere to suspend the sentences imposed on van de Worp on the ground that the difference between the two sentences was manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice had not been done. Significant factors which led the court in Watson's appeal to regard his case as a most exceptional case are absent.

152 Section 689(3) of the Code provides that the Court of Criminal Appeal:

"shall, if they think that a different sentence should have been passed, quash the sentence … and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence … as they think ought to have been passed and in any other case shall dismiss the appeal."

153 Having paid careful attention to the submissions made on behalf of van de Worp, I am not persuaded that in the circumstances of this case Miller J should have suspended the sentences imposed on van de Worp.

Ross

154 Ross was born on 4 February 1980 in Perth where he lived except for a period between 1986 and 1991 when his family was in Darwin while his father served in the Royal Australian Airforce. The family lived in harmony until the parents separated acrimoniously about three years ago and then divorced. This event had a big impact on Ross and his two siblings. After the separation Ross lived in turn with his grandparents and both parents but moved to stay with friends at Armadale about 18 months ago and, it is said, "went downhill" from that time. Both his parents have new de facto partners. His father, who now works on a Telstra bush crew, has a child from the new relationship. Ross' younger brother and sister live with their mother who works as a sales representative. His large extended family lives in the Perth area. Ross has never married or had children.

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155 He attended Padbury Senior High School until partway through year 11. He resumed study whilst remanded in custody. He last worked in December 1998 having previously been a trainee at a display company after leaving school and then becoming a process worker at a steel manufacturing plant. Apparently, since the end of 1998, Ross has been receiving unemployment benefits. He has no assets or savings and no significant debts.

156 Ross claims that he has never been a drinker of alcohol but began using cannabis when aged 15. In early 1999 he became addicted to amphetamines. He claimed that he was given amphetamines and MDMA laced with heroin which resulted in a very rapid daily dependency. His family noted changes in his demeanour but he did not admit his drug use to them at the time. He claims that by May 1999 he had broken the addiction but relapsed on the day of the offences. He says he detoxified himself again before being taken into custody. He claimed in mid-December 1999 that he had the personal strength of mind to remain drug free in the future. Since then he has begun to engage in preliminary counselling discussions in relation to his family's separation and his substance abuse.

157 When his family was together they would train, exercise and participate in sport together. From the age of 10 he had boxed competitively and successfully in the paperweight division. He fought overseas and won three Golden Gloves championships. He was awarded a Government Certificate for Excellence in Sport at the age of 14. He stopped boxing at 15 because he was experiencing pains behind the eyes. It is said that he is a very energetic person with a stubborn streak that needs to be channelled in constructive directions. His present interests continue to be in sports and in reading. It is thought that his resuming sporting activities would be of benefit to his rehabilitation. The summary of his pre-sentence report dated 20 October 1999 is as follows:

"Having begun to live independently in 1998 Ross appears to have made a number of bad choices and has become associated with users and distributors of drugs. This has culminated in his participating in seriously criminal enterprises. He does not have a history of offending but, despite his earlier assertions to the contrary, he is assessed as being at a moderate to high risk of becoming involved in future drug-related offending unless he participates in a programme of drug use education and counselling either before and/or after his release from custody.

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If he is released into the community at this stage then the Programme requirement of an Intensive Supervision Order would cater for that need. Ross is capable of carrying out Community Service work if so ordered. If he is imprisoned and made eligible to be assessed for release to Parole then it is likely that he would begin a programme whilst in prison that would continue after his release and would be monitored by a Community Corrections Officer."

158 When first interviewed Ross gave a convoluted account of the events leading up to the offences claiming that he was in the power of gang-related high level drug dealers who had engineered his becoming addicted to drugs and insisted that he pay off his debts to them by collecting another person's debt. He said that he had become afraid of these dealers and was put in this position as, what he believed to be, a last resort and that if he failed to carry out the dealers' wishes he would be in even greater personal danger. He claimed that he had been set up in that the robbery took place at the home of a friend of one of the dealers and that he had no knowledge that there would be a third party present who would be carrying a firearm. In a later interview, Ross admitted that he was aware that a gun would be taken.

159 In the course of an interview which was recorded on video and which was before the sentencing Judge, Ross acknowledged that he dealt in drugs and that the raid on the premises at which the offences were committed was instigated by him to recover money owed to him for drugs. His account of Watson's part in the offences and Watson's background is quite different from Watson's account. However, for reasons I have already given, I think when one turns to consider parity of sentencing, the court must proceed on the basis that Watson's sentences were suspended by this Court on the basis of the evidence about Watson before the court. In his favour Ross has the sentencing Judge's conclusion, as reflected in the sentences, that Ross was the least reprehensible or responsible of the three offenders because he was not armed and did not steal the money. In contrast to this Court's conclusion about Watson are the circumstances that Ross not only used drugs but dealt in them, had a previous conviction for drug possession, and was assessed as being at a moderate to high risk of becoming involved in future drug-related offending unless he participated in a programme of drug use education and counselling either before and/or after his release from custody. Miller J remarked that his prospects of rehabilitation remain somewhat unknown and imposed conditions on his parole. In my opinion, it is clear that the difference between the order suspending

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Watson's sentences and an order refusing to suspend Ross' fairly reflects different circumstances.

160 I have referred above to s 689(3) concerning substituting a sentence on appeal. Having paid careful attention to the submissions made on behalf of Ross, I am not persuaded that in the circumstances of this case Miller J should have suspended the sentences imposed on Ross.

Orders

161 I would propose the following orders:

Van de Worp's application:

1. Application for leave to appeal granted.

2. Appeal dismissed.

Ross' application:

1. Time to apply for leave to appeal extended.

2. Application for leave to appeal granted.

3. Appeal dismissed.

van de Worp v The Queen

[2000] WASCA 154

1 JUNE 2000

VAN DE WORP -v- THE QUEEN [2000] WASCA 154

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Sentencing

Appeal

Criminal Liability