Xat v The State of Western Australia
[2013] WASCA 173
•1 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: XAT -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 173
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 7 JUNE 2013
DELIVERED : 1 AUGUST 2013
FILE NO/S: CACR 225 of 2012
BETWEEN: XAT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 76 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of three counts of aggravated armed robbery and one count of stealing a motor vehicle - Discount for cooperation with the authorities - Parity principle - Whether discount allowed for the appellant's cooperation was manifestly inadequate
Legislation:
Criminal Code (WA), s 371A, s 378, s 392
Result:
Extension of time to appeal granted
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Ms S H Linton
Solicitors:
Appellant: C & G Miocevich Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Little v The Queen [2001] WASCA 87
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Pan [2005] NSWCCA 114
R v Taudevin [1996] 2 VR 402
TXT v The State of Western Australia [2012] WASCA 28
BUSS JA: The appellant has applied for an extension of time to appeal against sentence.
He was convicted, on his early pleas of guilty before McKechnie J (the primary judge) in the Supreme Court, on four counts in an indictment, being three counts of aggravated armed robbery and one count of stealing a motor vehicle.
In August 2012, the primary judge imposed a total effective sentence of 5 years' immediate imprisonment. A parole eligibility order was made.
The appellant's co‑offender in all of the counts, B, was convicted, on his early pleas of guilty before Jenkins J in the Supreme Court, of the same offences.
In July 2012, her Honour imposed a total effective sentence of 6 years' imprisonment on Mr B.
The appellant's co‑offender in two of the counts, Z, was also convicted, on his early pleas of guilty before Jenkins J, of those offences.
In July 2012, her Honour imposed a total effective sentence of 3 years 8 months' immediate imprisonment on Mr Z.
The individual sentences imposed on the appellant, Mr B and Mr Z were as follows:
Count
Offence
Appellant
B
Z
1
Aggravated Armed Robbery
2 years
2 years
No Charge
2
Aggravated Armed Robbery
4 years
4 years
No Charge
3
Steal Motor Vehicle
2 years
15 months
18 months
4
Aggravated Armed Robbery
3 years
4 years
3 years 4 months
The appellant's total effective sentence was achieved by making the sentence for count 4 cumulative on the sentence for count 1; Mr B's total effective sentence was achieved by making the sentence for count 4 cumulative on the sentence for count 1; and Mr Z's total effective sentence was achieved by ordering that the sentence for count 4 commence upon his having served 4 months of the sentence for count 3.
The application for an extension of time
The last date for appealing was 28 August 2012. The appellant did not file his appeal notice until 4 October 2012. His application for an extension of time is supported by an affidavit sworn 4 October 2012 by his solicitor, Christian Leith John Miocevich. It is convenient to consider the merits of the ground of appeal before deciding whether an extension of time should be granted.
The counts on the indictment and the facts and circumstances of the offending
Details of the counts on the indictment and the facts and circumstances of the offending are set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.
The ground of appeal
The sole ground of appeal alleges that the primary judge erred 'by imposing a sentence which infringed the parity principle such as to give rise to a justifiable sense of grievance'.
On 19 December 2012, McLure P granted leave to appeal on this ground.
At the hearing of the appeal, it became apparent that the ground, as developed in argument, embodied two issues. First, whether the discount allowed by the primary judge for the appellant's cooperation with the police was manifestly inadequate. Secondly, whether the parity principle was infringed because of an absence of marked and clearly justifiable disparity between the appellant's total effective sentence of 5 years' imprisonment, on the one hand, and Mr B's total effective sentence of 6 years' imprisonment, on the other.
The appellant's submissions
Counsel for the appellant submitted that the disparity between the total effective sentence imposed on the appellant by the primary judge (5 years' imprisonment) and the total effective sentence imposed on Mr B by Jenkins J (6 years' imprisonment) was so inadequate as to give rise to a legitimate or justifiable sense of grievance. The disparity was attributable to assistance which the appellant had provided to the police. It was submitted that the nature of the assistance, the adverse consequences for the appellant of having provided the assistance and the 'differing circumstances of the appellant and [B]' required the imposition of a total effective sentence on the appellant of 'less than 5 years'.
The discount for cooperation with law enforcement agencies
The principles to be applied in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.
The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. See TXT v The State of Western Australia [2012] WASCA 28 [28] (Buss JA, Mazza JA agreeing).
The parity principle
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co‑offenders:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
The object of the principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe (610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] ‑ [32] (French CJ, Crennan & Kiefel JJ). The applicable test is objective not subjective. See R v Pan [2005] NSWCCA 114 [34] (Johnson J, Giles JA & Hoeben J agreeing); Green [31]. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and clearly unjustifiable disparity or on the ground of an absence of marked and clearly justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
It has frequently been stated that it is highly desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
In the present case, it is not apparent why the appellant and Mr B (and Mr Z) were not sentenced by the same sentencing judge.
The sentencing remarks of Jenkins J in relation to Mr B
Mr B was born in 1987 and was aged 24 years at the time of the offending and when sentenced.
He was born outside Australia. He lived a transient lifestyle after he left home at the age of 17. About one year before he was sentenced, he moved to Western Australia.
Mr B completed year 12 at school. He qualified as a welder. His employment history was described by Jenkins J as 'fair' [28]. He has worked as a welder, a labourer and in a retail store. Mr B has three children, one of whom is 3 years old with a disability and who lives with Mr B's parents in another country.
His finances are poor. He owes outstanding fines.
Mr B has a history of alcohol and illicit drug abuse.
Jenkins J said the author of a pre‑sentence report had noted that Mr B appeared to accept 'violence' as normal [30]. The report actually refers to 'domestic violence'.
He has no criminal history in Western Australia. He does, however, have a prior criminal record in his country of birth for weapons and violence offences and breaches of community based orders. Her Honour did not give Mr B credit for being of good character [31].
Jenkins J found that Mr B committed the offences in question for two reasons. First, out of a false sense of loyalty to the appellant. As her Honour put it, the appellant 'had a problem but it was not your problem' [33]. Secondly, Mr B was not unfamiliar with violence.
Jenkins J said that Mr B's offending was made less serious by his early pleas of guilty and his youth. She also took into account his disadvantaged background and his subsequent attempts to rehabilitate himself.
The sentencing remarks of the primary judge in relation to the appellant
The appellant was born in 1977 and was aged 34 years at the time of the offending and 35 when sentenced.
He was born outside Australia. He came to Australia in search of employment. He has worked in the entertainment, construction and mining industries.
The appellant has been in a long‑term relationship with a woman. They have no children. He has always been a productive member of the community.
The information before the primary judge included a psychological report from Ms Mary‑Anne Martin, a forensic psychologist, and a pre‑sentence report. His Honour referred to these reports in his sentencing remarks.
Ms Martin said in her report:
[The appellant] reported that the offences came about as a result of him being held accountable for the drug debt of another acquaintance who he had introduced to the drug dealer. He reported being threatened and pressured to come up with the money in a short timeframe.
Overall [the appellant] presents a low risk of future similar offending and the current offences appear to be out of character for him.
The primary judge gave this account of the circumstances which gave rise to the appellant committing the offences:
You had got involved in some way with an outlaw motorcycle gang and introduced a mate to them. The mate, it was said, ripped them off in a drug deal and so you were held responsible. It was said that in order to protect your family from the threats that were being made, and the deadline that was imposed for you to raise $14,000, even though you went to the police and they could be of no assistance, you could think of no other way to raise the money than commit these crimes [5].
The appellant had a minor criminal record which, with one exception, comprised traffic offences. His Honour said he would treat the appellant 'as of previous good character' [4].
The primary judge said he was 'inclined to agree' with Ms Martin's assessment that the appellant was at a low risk of future similar offending and that the current offences were out of character [8].
His Honour referred to the appellant's 'early and unequivocal' pleas of guilty, his prior good character and his remorse [9]. He noted that the appellant had been threatened in prison and that a custodial sentence was likely to be 'somewhat harder for [the appellant] than it would be for others' [10]. His Honour said there was 'little need for personal deterrence' [10].
The primary judge referred to Mr B and said there was 'in the end, taking account differences and similarities, little to differentiate [the appellant's] role and offending from that of [B] except the fact, as the prosecution has acknowledged, that [the appellant] had provided assistance [to the police]' [11]. His Honour said that this cooperation 'needed to be recognised in the sentence' and would be recognised in the manner in which he structured it. His Honour backdated the total effective sentence of 5 years' imprisonment to 23 December 2011, being the date on which the appellant was taken into custody for the offences.
The merits of the ground of appeal
In November 2011, representatives of an outlaw motorcycle gang demanded that the appellant pay $14,000 to the gang. He was threatened. The threats included raping his partner and killing or severely injuring him and other members of his family. On 23 November 2011, representatives of the gang told the appellant he had 14 days to pay the $14,000. On or about 2 December 2011, the appellant went to the Gosnells Police Station and told police officers about the threats. He sought protection. Remarkably, and for reasons that are not explained, the appellant was informed that the police could not assist him. Two or three days later, the appellant had a conversation with Mr B who offered to help him. Mr B suggested a robbery. The offences in question were then committed.
The appellant cooperated with the police after he was arrested. He participated immediately in a frank and detailed video‑recorded interview. Subsequently, the appellant signed written statements implicating Mr B and Mr Z in the offences. He was prepared to give evidence against them. After a copy of the signed written statement was given to his solicitor, Mr B pleaded guilty.
The timing of the appellant's provision of assistance to the police and the appellant's and Mr B's pleas of guilty was as follows:
(a)By an email of 19 January 2012, the appellant's solicitor informed the police that the appellant was willing to give evidence against his co‑accused.
(b)On 14 February 2012, the appellant signed the written statement implicating Mr B and Mr Z.
(c)In the early evening of 14 February 2012, the signed written statement was sent by email to the legal representatives of Mr B and Mr Z.
(d)Mr B appeared in the Magistrates Court on 11 January 2012 and on 1, 15 and 22 February 2012. On 15 February 2012, counsel for Mr B informed the court that Mr B intended to enter pleas of guilty on all counts. On 22 February 2012, those pleas of guilty were made.
(e)The appellant appeared in the Magistrates Court on 11 January 2012, 1 and 15 February 2012 and 14 March 2012. On 18 April 2012, he entered pleas of guilty on all counts.
Before he was sentenced, and as a result of the assistance he had given to the police, the appellant had:
(a)received threats in prison from one of his co‑offenders and members of the outlaw motorcycle gang;
(b)been assaulted by one of his co‑offenders;
(c)been informed by prison security officers that he was considered to be 'a target' and, as a result, he was placed in 'lock down' for two weeks; and
(d)continued to receive threats and, as a result, his partner did not visit him for several months because of fears for her safety.
Defence counsel referred to those matters in his submissions before the primary judge at the sentencing hearing (ts 16 ‑ 17). The prosecutor did not contest their accuracy.
In my opinion, when the nature and extent of the participation by the appellant and Mr B in the offending conduct, and their personal circumstances and antecedents, are evaluated it is apparent, as the primary judge found, that there is little to differentiate the appellant from Mr B, apart from the appellant's cooperation with the police. For example, Mr B's criminality was less culpable in that he committed the offences out of a false sense of loyalty to the appellant, but Mr B had a more serious prior criminal record than the appellant.
The primary judge allowed the appellant a discount of 16.6%, for his cooperation with the police, on the total effective sentence he would otherwise have imposed. This discount was, in my opinion, unreasonable or plainly unjust.
In the circumstances, a discount of not less than 30% was required in order properly to recognise that the appellant's assistance:
(a)was instrumental in procuring Mr B's (although not Mr Z's) pleas of guilty (Mr Z having already pleaded guilty);
(b)demonstrated genuine remorse or contrition on his part;
(c)endangered the personal safety of the appellant, his partner and members of his family;
(d)would result in his time in custody being more onerous than would otherwise be the case;
(e)had caused the appellant to be assaulted while in custody and had generated threats against him and his partner; and
(f)given that the threats have emanated from people associated with an outlaw motorcycle gang, had put the appellant, his partner and members of his family at risk of continuing threats and at risk that any such threats may be acted upon while the appellant is in custody or after his release.
If this court were to increase the discount from 16.6% to between 30% and 35%, this would not constitute tinkering with the primary judge's sentencing decision. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ). However, a failure properly to recognise an offender's cooperation with the police reflects a failure properly to implement an important policy in the administration of criminal justice; that is, to encourage offenders to assist in the detection and successful prosecution of crime and to reward them appropriately when assistance is given. In the circumstances, this court is entitled and bound to intervene even though there may only be a relatively small reduction in the total effective sentence. See Little v The Queen [2001] WASCA 87 [15] ‑ [18] (Malcolm CJ, Wallwork & Anderson JJ).
The ground of appeal, as developed at the hearing of the appeal, has been made out. It is unnecessary separately to consider whether the parity principle was infringed.
The result of the appeal and the appellant's resentencing
The appellant's delay in filing his appeal notice has been explained adequately. I would grant an extension of time to appeal, and allow the appeal. This court has the material necessary to resentence the appellant.
The individual sentences of imprisonment were not challenged. They should stand.
In my opinion, the overall criminality of the appellant's offending, after having regard to the maximum penalties, the circumstances of the offending, the vulnerability of the victims, the standards of sentencing customarily observed, all aggravating features and all mitigating features, including the appellant's early pleas of guilty, his cooperation with the police (all of which was past cooperation) and his personal antecedents, requires a total effective sentence of 4 years' immediate imprisonment. This sentence incorporates a reduction of 2 years (from 6 years to 4 years) for cooperation.
I would achieve the new total effective sentence of 4 years by setting aside the primary judge's orders for accumulation and concurrency, and ordering that the individual sentences for counts 1, 2, 3 and 4 be served concurrently.
The new total effective sentence does not create any unjustifiable disparity between the appellant, on the one hand, and Mr B, on the other.
The individual sentences for counts 1, 2, 3 and 4, and the new total effective sentence, should be taken to have taken effect on 23 December 2011, being the date on which the appellant was taken into custody for the offences.
The appellant should remain eligible for parole. He will be eligible to be considered for release on parole upon having served 2 years calculated from 23 December 2011.
As I have not interfered with any of the individual sentences imposed by the primary judge, it is unnecessary, in the resentencing, to refer to or comply with s 9AA of the Sentencing Act 1995 (WA).
NEWNES JA: I agree with Buss JA.
MAZZA JA: I agree with Buss JA.
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