Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count of unlawfully doing grievous bodily harm - Sentence of 4 years' immediate imprisonment - Alleged errors in the sentencing judge's fact-finding - Parity principle - Manifest excess

Allen v The State of Western Australia [2017] WASCA 203

Baker v The State of Western Australia [2018] WASCA 15

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Bowe v The State of Western Australia [2017] WASCA 166

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jardim v The State of Western Australia [2011] WASCA 83

Kere Kere v The State of Western Australia [2016] WASCA 189

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mercanti v The State of Western Australia [2009] WASCA 109

Mussarri v The State of Western Australia [2018] WASCA 46

Peake v The State of Western Australia [2015] WASCA 239

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Hough [2002] WASCA 42

R v Taudevin [1996] VICSC 7; [1996] 2 VR 402

Reynolds v The State of Western Australia [2017] WASCA 214

S v The State of Western Australia [2015] WASC 27

The State of Western Australia v Mackey [2017] WASCA 204

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

Trompler v The State of Western Australia [2008] WASCA 265

Winmar v The State of Western Australia [2016] WASCA 62

1. This is an appeal against sentence.
2. By a single count in an indictment dated 18 August 2015, the appellant and, relevantly, Robert Doodson, Jesse Copeman, Jaime Ginn, Matthew Ornig and Ryan Peake were charged that on or about 30 September 2014, at Ridgewood, with intent to maim, disfigure, disable or do some grievous bodily harm to Garry Bedggood, they unlawfully did grievous bodily harm to Mr Bedggood, contrary to s 294(1) of the Criminal Code (WA) (the Code).
3. Rachel Cantrill was also charged with the single count in the same indictment, but the State discontinued the proceedings against her.
4. After negotiations with the State, the appellant, Mr Doodson, Mr Copeman, Mr Ginn, Mr Ornig and Mr Peake pleaded guilty to unlawfully causing grievous bodily harm, contrary to s 297 of the Code. The State accepted the pleas in full satisfaction of the indictment.
5. Mr Doodson also pleaded guilty to a charge of being in possession of a shotgun, without a permit, in circumstances of aggravation, namely that the firearm had been altered from its original manufacture. Further, Mr Doodson pleaded guilty to a charge of attempting to pervert the course of justice.
6. On 24 January 2017, Wager DCJ sentenced the appellant and his co-offenders at a joint sentencing hearing.
7. The appellant was sentenced to 4 years' immediate imprisonment. The sentence was backdated by 80 days to take account of the time he had spent in custody. He was made eligible for parole.
8. We would dismiss the appeal. Our reasons are as follows.

The facts and circumstances of the offending

1. The facts and circumstances of the offending were as follows.
2. As at 30 September 2014, the appellant and his co-offenders were associated with the Rebels Outlaw Motorcycle Gang (the Rebels), Northern Suburbs chapter or Clarkson chapter. Mr Doodson was a patched or full member and the president or a former president of the chapter; Mr Ginn and Mr Peake were patched or full members; and the appellant, Mr Copeman and Mr Ornig were nominees or prospective members.
3. The complainant, Mr Bedggood, knew Mr Doodson and the appellant.
4. On 30 September 2014, Ms Cantrill, whom the complainant considered a friend, asked him to come to her house at 14 Moville Pass, Ridgewood. Ms Cantrill was an associate of the appellant. That evening, there was contact by telephone between Ms Cantrill and the appellant. There was no evidence as to the content of the telephone conversations.
5. On the evening of 30 September 2014, at about 10.00 pm, the complainant went to Ms Cantrill's home. Ms Cantrill and her partner were present. At about 11.45 pm, the appellant and his co-offenders travelled to Ms Cantrill's house in Mr Doodson's vehicle. That was the second occasion on which Mr Doodson, Mr Copeman, Mr Ginn, Mr Peake and Mr Ornig (but not the appellant) had visited Ms Cantrill's house that evening. Their first visit had been at about 9.00 pm, before the complainant arrived.
6. Prior to travelling to Ms Cantrill's house at about 11.45 pm on the evening in question, the appellant and his co-offenders were at residential premises in Clarkson (the Clarkson house). CCTV footage taken at that address showed the offenders getting into Mr Doodson's vehicle. Mr Ginn was carrying an aluminium baseball bat.
7. At about that time, the complainant was smoking a cigarette in the garage at Ms Cantrill's property. Later, he heard a vehicle arrive and vehicle doors open. Shortly after, the complainant opened the garage door and saw the offenders. They were standing in the driveway. The complainant produced a firearm. There was a confrontation which resulted in some of the offenders striking the complainant multiple times. One of the offenders struck him with the baseball bat. At some stage the complainant fell to the ground. People living in the vicinity heard the complainant screaming. They also heard what sounded like metal hitting metal. The noise continued for about three to five minutes. The offenders then departed in Mr Doodson's vehicle and returned to the Clarkson house. CCTV footage taken at that address showed that when the offenders arrived at the Clarkson house Mr Copeman was carrying the baseball bat.
8. After the assault and despite his injuries, the complainant managed to get into his vehicle and drive to his home. His mother saw him. He was semi-conscious and moaning in pain. An ambulance was called and the complainant was taken to hospital.
9. The complainant sustained injuries which were of such a nature as to cause or be likely to cause permanent injury to health. The injuries included a fracture of the right distal fibula, a fracture of the third metacarpal bone of his right hand, fractures to the right ulna forearm and right humerus upper arm, a fracture of the right femur and a skull fracture. He also suffered lacerations on the top of his head, which required sutures, and facial bruising. The complainant underwent surgery, followed by physiotherapy, occupational therapy and rehabilitation. He remained in hospital for more than three weeks.
10. The offenders claimed that they had wanted to confront the complainant about his antisocial and criminal behaviour.

1. The role of each offender in the offending was, in summary, as follows.
2. The appellant's role included being part of the group of six offenders who gathered at the Clarkson house. The appellant was a party to the offenders' plan to threaten the complainant at Ms Cantrill's house. He became a party to the plan in the knowledge that he was one of six offenders and that one member of the group was armed with a baseball bat. The appellant accepted criminal responsibility for the offending, in accordance with s 8 of the Code, on the basis that the decision to attend and threaten the complainant, as a group, was a common unlawful purpose and that it was a probable consequence of the prosecution of such purpose that the offence of unlawful grievous bodily harm would be committed. The appellant did not physically attack the complainant.
3. Mr Doodson's role was as follows:

(a) Mr Doodson's vehicle was used to drive the offenders to Ms Cantrill's house;

(b) Mr Doodson did not physically attack the complainant;

(c) Mr Doodson was the president or a former president of the Rebels Northern Suburbs chapter or Clarkson chapter;

(d) there had been ongoing hostilities between Mr Doodson and the complainant for an extended period, including a prior incident where the complainant asserted that Mr Doodson had ordered an assault upon him although Mr Doodson did not take part in that assault; and

(e) when the current offence was being committed, Mr Doodson eventually said to the other offenders, 'that's enough', and the assault upon the complainant then ceased (ts 295 - 296).

1. Mr Copeman's role in the offending was similar to that of the appellant, but also included Mr Copeman carrying the baseball bat when the offenders returned to the Clarkson house.
2. Mr Ginn's involvement in the offending was similar to that of the appellant, but also included the following:

(a) Mr Ginn was carrying the baseball bat when the offenders got into Mr Doodson's vehicle at the Clarkson house;

(b) Mr Ginn was the first of the offenders to notice that the complainant had a firearm; and

(c) Mr Ginn endeavoured to tackle the complainant to the ground.

1. Mr Ornig's role in the offending was similar to that of the appellant, but also included the following:

(a) Mr Ornig drove the offenders in Mr Doodson's vehicle to Ms Cantrill's house; and

(b) Mr Ornig used the baseball bat to get the complainant to release the firearm.

1. Mr Peake's role in the offending was similar to that of the appellant but, in addition, Mr Peake 'tried to tackle [the complainant], put him down and kick him [and wrestle] the gun from him' (ts 320).

The sentencing judge's sentencing remarks in relation to the offenders as a whole

1. The sentencing judge made the following remarks in relation to the offenders as a whole in the course of sentencing them:

(a) On the date of the offending, all of the offenders were associated with the Rebels. Mr Doodson was the most senior person, Mr Ginn and Mr Peake were full members and Mr Copeman, Mr Ornig and the appellant were prospective members. The appellant had been associated with the Rebels for a relatively brief period. The complainant knew only Mr Doodson and the appellant (ts 331).

(b) Each offender received a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his plea of guilty (ts 331).

(c) Her Honour was not prepared to sentence each offender on the basis of the physical role that he played in the attack. Her Honour explained that '[t]o do so would ignore the criminality of your group taking the law into your own hands and being six men against one' (ts 334).

(d) The offenders intended to confront the complainant by surprise. The offenders knew or should have known that the confrontation was likely to escalate. It was obvious to the offenders that the complainant may have had a firearm and that their arrival would not be welcomed. Her Honour rejected a submission made by defence counsel for one of the offenders that the complainant could have retreated. He could not have. The complainant had been 'lured to [Ms Cantrill's house]' and he was then confronted by the offenders. Although the offenders could have retreated immediately, without saying or doing anything, they did not retreat but instead the complainant was struck, including with the baseball bat, and force was used (ts 333).

(e) Although the offenders did not intend to cause permanent harm to the complainant when they got into Mr Doodson's vehicle at the Clarkson house or prior to their arrival at Ms Cantrill's house, the number of offenders involved was such that it was hardly surprising that significant and potentially permanent harm resulted (ts 334).

(f) Each offender was to be sentenced on the basis that he was a party to the blows that caused the unlawful grievous bodily harm. The intention to confront the complainant, whether he liked it or not and to make verbal threats to him, was such that 'it was almost inevitable that a further more serious offence would result' (ts 334).

(g) The criminality of the offending was reflected by a number of factors. First, the nature of the harm inflicted, which involved the complainant suffering serious harm. Secondly, the nature of the actions that caused the harm. The complainant's bloodied and broken state was consistent with his having received a number of blows. People in the vicinity had heard the sound of metal on metal for three to five minutes. The incident involved six men against one. Thirdly, the incident involved premeditation and was not a spontaneous reaction to provocation by the complainant (ts 334 - 335).

(h) The offence was of a very serious kind (ts 336).

The sentence imposed on each offender and the sentencing judge's sentencing remarks in relation to each offender individually

(a) As we have mentioned, the sentencing judge sentenced the appellant to 4 years' immediate imprisonment. The sentence was backdated by 80 days to take account of the time he had spent in custody. A parole eligibility order was made.

(b) The appellant was aged 38 at the time of the offending.

(c) He had a prior criminal record. In 1996 he was convicted of assault occasioning bodily harm. That offending involved the excessive use of violence to defend a woman. Otherwise, his previous convictions concerned mainly possession of prohibited drugs and traffic offences. A number of the traffic offences were serious. He had been sentenced to terms of imprisonment.

(d) At the material time, the appellant was a nominee or prospective member of the Rebels. Since the offending he had disassociated himself from the group.

(e) Her Honour found that the appellant had an excellent work ethic as an adult. After his release from remand, the appellant's ability to work had diminished as a result of his bail conditions and the limited availability of employment.

(f) On 14 September 2015, the appellant and his former wife separated. The appellant had joint custody with his former wife of their child.

(g) The home detention conditions of the appellant's bail had been difficult for him. He had been of good behaviour during the 2-year period of his bail.

(a) Her Honour sentenced Mr Doodson to 4 years' immediate imprisonment for the grievous bodily harm offence.

(b) Her Honour sentenced Mr Doodson to 2 years 9 months' immediate imprisonment for the offence of attempting to pervert the course of justice.

(c) Her Honour sentenced Mr Doodson to 6 months' immediate imprisonment for the firearms offence.

(d) Her Honour imposed a total effective sentence of 6 years 9 months' imprisonment and backdated the sentence by 698 days to take account of the time Mr Doodson had spent in custody. He was made eligible for parole.

(e) Mr Doodson was aged 38 at the time of the offending.

(f) Mr Doodson had a very lengthy prior criminal record including multiple prior convictions for violent offences.

(a) Her Honour sentenced Mr Copeman to 4 years' immediate imprisonment. The sentence was backdated by 664 days to take account of the time he had spent in custody. A parole eligibility order was made.

(b) Mr Copeman was aged 27 at the time of the offending.

(c) Mr Copeman had multiple prior convictions for violent offences.

(e) Mr Copeman had been subject to onerous conditions while on home detention bail.

(f) He suffered from a chronic kidney disease and had been prescribed antidepressant medication.

(g) Her Honour accepted that Mr Copeman's antisocial attitude had changed significantly since he was charged and that he had ongoing family support.

(a) Her Honour sentenced Mr Ginn to 4 years' immediate imprisonment. The sentence was backdated by 687 days to take account of the time he had spent in custody. A parole eligibility order was made.

(b) Mr Ginn was aged 41 at the time of the offending.

(c) Mr Ginn had multiple prior convictions for violent offences.

(e) The conditions of his home detention bail had been onerous.

(a) Her Honour sentenced Mr Ornig to 4 years' immediate imprisonment. The sentence was backdated by 133 days to take account of the time he had spent in custody. A parole eligibility order was made.

(b) Mr Ornig was aged 27 at the time of the offending.

(c) He had no prior criminal record for offences of violence. He had, however, previously been sentenced to a suspended imprisonment order for the offence of possession of prohibited drugs with intent to sell or supply.

(d) Mr Ornig had worked while on home detention bail.

(a) Her Honour sentenced Mr Peake to 2 years 10 months' immediate imprisonment for the grievous bodily harm offence in question, after deducting 254 days for time he had already spent in custody in respect of a previous unrelated grievous bodily harm offence. Her Honour ordered that the term of 2 years 10 months be served cumulatively upon the existing sentence of 3 years' immediate imprisonment imposed for that unrelated grievous bodily harm offence. A parole eligibility order was made.

(b) Mr Peake was aged 21 at the time of the offending.

(c) He had been on bail for the unrelated grievous bodily harm offence when he committed the offence in question.

(d) Prior to 2012 he had been of good character. He had been a professional golfer, but was unable to pursue that career because of various health related issues.

(e) Mr Peake had expressed remorse for his offending.

1. The appellant relies on four grounds of appeal.
2. Ground 1 alleges, in effect, that the sentence of 4 years' immediate imprisonment infringed the parity principle.
3. Ground 2 alleges, in effect, that the sentencing judge erred by finding that all of the offenders attended Ms Cantrill's house earlier in the evening when in fact the appellant was not present with his co-offenders at that time.
4. Ground 3 alleges, in effect, that her Honour made an error of fact by finding that the appellant and his co-offenders 'lured' the complainant to Ms Cantrill's home.
5. Ground 4 alleges, in effect, that the sentence of 4 years' immediate imprisonment was manifestly excessive.
6. On 10 December 2017, Mazza JA granted leave to appeal on grounds 1 and 2 and referred the application for leave to appeal on grounds 3 and 4 to the hearing of the appeal.
7. It is convenient first to consider ground 2, then ground 3, next ground 1 and finally ground 4.

1. Counsel for the appellant submitted that the sentencing judge had erred by making a finding of fact that all of the offenders had been involved in the original visit to Ms Cantrill's house on the evening in question.
2. At the sentencing hearing, the prosecutor, in the course of reading the facts, said that '[t]he offenders travelled to [Ms Cantrill's] house in Doodson's car ... arriving at approximately 11.45 pm. This was the second visit made to the house that evening by Doodson, Copeman, Ginn, Peake and Ornig. The first visit was at about 9.00 pm prior to the complainant arriving' (ts 276 - 277).
3. Her Honour said, in the course of sentencing all of the offenders, that '[y]our group had visited [Ms Cantrill's] house earlier that night, at about 9.00 pm, so prior to [the complainant] arriving. You had then left and, consistent with knowing that [the complainant] would be present at [Ms Cantrill's] house, all six of you had driven back there together in Mr Doodson's car, arriving on that second occasion at 11.45 pm' (ts 332).
4. It was submitted that the sentencing judge's alleged error, with respect to the appellant's earlier involvement, was material to the sentencing process and enlivened this court's power to intervene, set aside the sentence imposed on the appellant and resentence him.

1. Counsel for the State submitted that it is unclear whether the sentencing judge, in referring to the 'group' of offenders having visited Ms Cantrill's house at about 9.00 pm on the evening in question, was intending to find, as a fact, that the appellant was part of the 'group' who went there on that occasion.
2. However, counsel submitted that, even if her Honour made an error of fact by including the appellant in the group of offenders who had visited Ms Cantrill's house on the first occasion, that error was not material to the sentence.
3. The error, if made out, was not 'so significant in the overall circumstances of the offence to have affected or be capable of affecting the sentence ultimately imposed' on the appellant.

1. As we have mentioned, the sentencing judge sentenced the appellant and his co-offenders at a joint sentencing hearing.
2. When the prosecutor read aloud the facts of the offending at the commencement of the sentencing hearing, she stated, relevantly, that the occasion on which the offence was committed, at about 11.45 pm on 30 September 2014, was 'the second visit made to [Ms Cantrill's] house that evening by Doodson, Copeman, Ginn, Peake and Ornig' and that '[t]he first visit was at about 9.00 pm prior to the complainant arriving' (ts 276 - 277).
3. Her Honour said in her sentencing remarks:

On 30 September 2014, Ms Rachel Cantrill asked [the complainant] to go to her house at 14 Moville Pass, Ridgewood via text message. Ms Cantrill was an associate of [the appellant]. On the evening of the offence there was also telephone contact between Ms Cantrill and [the appellant].

[The complainant] went to the Ridgewood house that evening at about 10 pm. Ms Cantrill and her partner were present and remained present at the house.

Before going to the house, all six of you were at 78 Aldersea Circle, Clarkson, which is the ... residence of Mr Tyson Shaw. CCTV footage from the Clarkson house shows all six of you getting into Mr Doodson's car.

Your group had visited the [Ridgewood] house earlier that night, at about 9 pm, so prior to [the complainant] arriving. You had then left and, consistent with knowing that [the complainant] would be present at the Ridgewood house, all six of you had driven back there together in Mr Doodson's car, arriving on that second occasion at 11.45 pm.

The CCTV footage shows Mr Ginn carrying the baseball bat to the car as you leave the Clarkson house just before 11.45 pm, and the car returns 12 minutes later. At this time Mr Copeman is carrying the baseball bat (ts 331 - 332).

1. The sentencing judge then described the circumstances of the offence, the offenders' motivation and plan, and the complainant's injuries.
2. Her Honour's observations in the passage that we have reproduced at [49] above were addressed to all of the offenders and were made in the course of her Honour's recitation of the material facts.
3. There is ambiguity as to whether the sentencing judge's comment that '[y]our group had visited [Ms Cantrill's] house earlier that night' was an erroneous reference to all of the offenders rather than to all of them except the appellant.
4. We incline to the view that her Honour did not make the alleged error. When her Honour referred to all of the offenders in the passage we have reproduced at [49] above, she used the phrase 'all six of you'.
5. In any event, even if, contrary to our view, her Honour did make the alleged error, we are of the opinion that the error was not, in all of the circumstances, material to the sentencing outcome. If her Honour did make the alleged error, a different sentence should not, on that account, have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

1. Counsel for the appellant submitted that the sentencing judge erred by making a finding of fact that the complainant had been 'lured' to Ms Cantrill's house.
2. Her Honour said, in the course of her sentencing remarks, that '[e]ven with [the complainant] being armed you were the larger group. I've rejected the submission that he could have retreated. He could not have. He'd been lured to the premises and he was then confronted by you' (ts 333).
3. It was submitted that the facts relied upon by the State did not permit a finding that the complainant had been 'lured' to Ms Cantrill's house, that being a finding which 'arguably increased the gravamen of the offending behaviour'.
4. Counsel submitted that the alleged error was material to the sentencing process and enlivened this court's power to set aside the sentence imposed by her Honour on the appellant and to resentence him.

1. Counsel for the State submitted that the offenders (including the appellant) knew that the complainant had gone to Ms Cantrill's house. The offenders (including the appellant) had made a plan to confront the complainant, as a group, at Ms Cantrill's house. In all the circumstances, the sentencing judge was entitled to find that the complainant had been 'lured', in the sense of being asked to attend at Ms Cantrill's house, 'after which the group of offenders were informed of his presence there'.
2. Counsel submitted that, in any event, even if her Honour made the alleged error of fact, the error was not material in the sentencing process or to the sentencing outcome.

1. The sentencing judge said in her sentencing remarks that the offenders 'intended to confront [the complainant] by surprise' (ts 333). Her Honour made that statement shortly before she said that the complainant had been 'lured' to Ms Cantrill's house (ts 333).
2. Her Honour's finding that the offenders intended to confront the complainant by surprise is not challenged. In any event, we are satisfied that, in all of the circumstances (including the association between Ms Cantrill and the appellant; the telephone contact between Ms Cantrill and the appellant on the evening in question; the visit to Ms Cantrill's house at about 9.00 pm by all of the offenders except the appellant; the complainant's arrival at Ms Cantrill's house at about 10.00 pm; the offenders' knowledge that the complainant had gone to Ms Cantrill's house; and the offenders' arrival at Ms Cantrill's house at about 11.45 pm), the only reasonable inference is that the offenders did intend to confront the complainant by surprise at Ms Cantrill's house.
3. The natural and ordinary meaning of the word 'lured' includes, relevantly, 'enticed', 'attracted' and 'persuaded'. If the complainant had been 'lured', in that sense, by the offenders to Ms Cantrill's house, it would have aggravated the seriousness of the offending. There was no evidence as to the content of the telephone conversations between Ms Cantrill and the appellant on the evening in question. Similarly, there was no evidence as to the content of any communications between Ms Cantrill and the complainant, except the text message asking him to go to her house. If the complainant had been 'lured', it is likely that Ms Cantrill or someone else acting on the offenders' behalf would have lured him. However, the evidence did not support a finding, beyond reasonable doubt, that the offenders had 'lured', in the ordinary and natural meaning of the word, the complainant to Ms Cantrill's house.
4. There is ambiguity as to whether the sentencing judge, in stating that the complainant had been 'lured' to Ms Cantrill's house, was making a finding that it was the offenders who had lured him (either directly or through someone else, perhaps Ms Cantrill) to her house.
5. It is unnecessary to endeavour to resolve the ambiguity because, even if her Honour made the alleged error, we are of the opinion that the error was not, in all of the circumstances (in particular, having regard to her Honour's unchallenged and correct finding that the offenders intended to confront the complainant by surprise), material to the sentencing outcome. A different sentence should not, by reason of the alleged error, have been imposed. See s 31(4)(a) of the Criminal Appeals Act.

1. Counsel for the appellant submitted that the appellant had a legitimate or justifiable sense of grievance as a result of his having been given the same sentence for the grievous bodily harm offence as Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig, in that:

(a) The appellant was not involved in the original visit to Ms Cantrill's house on the evening in question.

(b) At the material time, the appellant had been associated with the Rebels for only a very brief period.

(c) Although he knew the complainant, the appellant did not harbour any hostility towards him at the time of the offending.

(d) The appellant did not drive the vehicle from the Clarkson house to Ms Cantrill's house, he did not carry any weapons and he did not physically assault the complainant.

(e) There was no suggestion that the appellant had been involved in preparing for or planning the offence.

(f) Although there was evidence of telephone communication between Ms Cantrill and the appellant on the evening in question, the State did not assert that the purpose of that communication was to organise the assault on the complainant.

(g) There was no suggestion that the appellant had any control or influence over any of his co-offenders.

(h) The appellant's personal circumstances and antecedents were significantly different from those of his co-offenders. In particular, the appellant's antecedents did not establish a propensity for violence.

(i) The home detention conditions of the appellant's bail had been very onerous and he had been subject to those conditions for a period of about 2 years.

(j) The appellant was cooperative with police to the extent that he identified himself in CCTV footage when interviewed by police.

1. Counsel for the State submitted that the appellant's complaint, as to a material absence of disparity, was unfounded. Her Honour properly considered that the factual circumstances and the seriousness of the offence required the conclusion that each of the offenders was equally culpable. The seriousness of the offending meant that general deterrence was a significant sentencing factor and that the personal circumstances of the offenders carried less weight.

1. The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen;[1] Postiglione v The Queen;[2] R v Taudevin.[3] The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia.[4]
2. An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. 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].[5]
3. In Green v The Queen,[6] French CJ, Crennan and Kiefel JJ said:

(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].

1. Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
2. The marked disparity to which the parity principle relates is the difference between the sentence imposed on a co-offender, on the one hand, and the sentence imposed on another co-offender or other co-offenders, on the other. The parity principle applies to the ultimate sentencing outcome. It is concerned with due proportion between the sentences in question, that being a matter to be analysed by reference to the different circumstances of the co-offenders and their different degrees of culpability. Individual sentencing factors are synthesised to produce a sentence. The parity principle does not apply to an individual sentencing factor or a discrete component of a sentence. See Mussarri v The State of Western Australia.[7]
3. In the present case, we are not persuaded that the appellant's complaint about the lack of disparity between the sentence imposed on him, on the one hand, and the sentences imposed on each of Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig, on the other, has any merit.
4. First, the appellant voluntarily became involved in the plan to threaten the complainant at Ms Cantrill's house. The appellant knew that he was one of six offenders and that one of his group was armed with a baseball bat. The appellant accepted criminal responsibility for the offending on the basis that the decision to attend Ms Cantrill's house and threaten the complainant, as a group, was a common unlawful purpose and that it was a probable consequence of the prosecution of such purpose that the offence of unlawful grievous bodily harm would be committed. Although the appellant did not drive Mr Doodson's vehicle or carry a weapon or physically assault the complainant, his role as one of the group was nevertheless of importance in the commission of the offence. The appellant and his co-offenders were associated with the Rebels. The appellant's presence with the other members of the group was calculated to ensure that the complainant was outnumbered and overpowered. Although there was no suggestion that the appellant had been involved in preparing for or planning the offence, he had readily joined in the plan by the time the group left the Clarkson house. It is true that there was no suggestion that the appellant had any control or influence over any of his co-offenders. However, there was also no suggestion that any of the other offenders had any control or influence over the appellant. It is also true that the appellant was not involved in the original visit to Ms Cantrill's house on the night in question; the appellant had been associated with the Rebels for only a relatively brief period; and the appellant did not harbour any hostility towards the complainant at the time of the offending. However, those facts did not, in all of the circumstances, materially reduce the level of his culpability for the offending. The sentencing judge observed, correctly, that the appellant was 'as much part of the group as the others were on that night and [he was] equally as responsible ... for what occurred on that night' (ts 349).
5. Secondly, the most significant factors in the sentencing of the appellant and his co-offenders were appropriate punishment and personal and general deterrence.
6. Thirdly, given the significance of appropriate punishment and personal and general deterrence as sentencing factors, the personal circumstances of the appellant and his co-offenders, to the extent that they were favourable, carried less weight than would otherwise have been the case.
7. Fourthly, although the prior criminal records of Mr Doodson, Mr Copeman and Mr Ginn reveal a more serious history of violent offending than the appellant's prior criminal record, none of the offenders had the mitigation of prior good character. The differences between their respective prior criminal records was not, in all of the circumstances, a distinguishing feature of significance.
8. Fifthly, it is true that the appellant was required to adhere to strict conditions in relation to his home detention bail. The conditions of his bail are set out in S v The State of Western Australia.[8] Counsel for the appellant relied upon R v Hough.[9] However, the appellant's case is not reasonably comparable to that case. The appellant was able to continue his ordinary employment away from his residence between 6.00 am and 7.00 pm. In Hough, the offender was effectively subject to a 24-hour curfew in his parents' home for a 5-month period [123]. That was followed by several months of part-home detention when he was allowed to attend an educational institution on three days of the week [123]. The appellant's circumstances on bail are to be contrasted with the circumstances of his co-offenders. Mr Doodson, Mr Copeman and Mr Ginn were remanded in custody for about 1 year and 9 months between their arrest and sentencing. Mr Ornig was remanded in custody for about 4½ months. The sentences of Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig were backdated to the dates on which they were taken into custody. Although the appellant's sentence was not the subject of a specific reduction on account of the strict conditions of his home detention bail, the specific recognition of those conditions would not, in all of the circumstances, have operated to reduce his sentence to any material extent.
9. Sixthly, the appellant's cooperation with the police by identifying himself, when interviewed, in photographs taken from CCTV footage was not of any significance as a mitigating factor.
10. In our opinion, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to the appellant, Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig, the absence of disparity (from the appellant's perspective) in the sentencing outcomes as between the appellant on the one hand, and each of Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig on the other, did not infringe the parity principle or the principle of equal justice. We accept that another sentencing judge may have imposed a slightly lower sentence on the appellant (perhaps a reduction of 1, 2 or 3 months) compared to Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig. That is not, however, the test. We are satisfied that the absence of disparity (from the appellant's perspective) in the sentencing outcomes cannot be characterised as marked or unjustified. It is not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and his co-offenders, or generally. In our opinion, the appellant was not deserving of a materially lesser sentence on the single count in the indictment than any of Mr Doodson, Mr Copeman, Mr Ginn and Mr Ornig.
11. Ground 3 fails.

1. Counsel for the appellant submitted that the sentence of 4 years' immediate imprisonment imposed on the appellant was manifestly excessive having regard to the circumstances of the offence, the appellant's personal circumstances and sentencing standards for offending of this kind. Counsel emphasised that the appellant had received a 25% discount, pursuant to s 9AA of the Sentencing Act, for his guilty plea, had complied with the conditions of his home detention bail and had disassociated himself from the Rebels.

1. Counsel for the State submitted that previous cases do not establish that the sentence of 4 years' immediate imprisonment imposed on the appellant was inconsistent with the range of sentences that have been imposed in reasonably comparable cases or that the sentencing judge improperly exercised her discretion. Counsel accepted that the sentence was 'high', but submitted that it was nevertheless commensurate with the seriousness of the offence.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
4. The discretion conferred on sentencing judges is, of course, of fundamental importance. 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.[10]
5. In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
6. The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
7. We have examined numerous cases of offending against s 297(1) including Trompler v The State of Western Australia;[11] Mercanti v The State of Western Australia;[12] The State of Western Australia v Taylor;[13] Peake v The State of Western Australia;[14] Winmar v The State of Western Australia;[15] Kere Kere v The State of Western Australia;[16] Bowe v The State of Western Australia;[17] Allen v The State of Western Australia;[18] The State of Western Australia v Mackey;[19] Reynolds v The State of Western Australia;[20] Baker v The State of Western Australia;[21] and decisions cited in those cases. We have also considered other cases cited by counsel for the appellant. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
8. In Taylor [35] - [39], Buss JA made these remarks (McLure P and Mazza JA agreeing):

In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).

McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:

'The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'

In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.

In Trompler, Wheeler JA observed:

'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'

In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].

(c) the objective facts and circumstances of the offending, including that the offence was committed in company, one of the offenders wielded a baseball bat and the offenders were motivated by vigilantism;

(d) the complainant's vulnerability and the serious injuries he suffered;

(e) the standards of sentencing customarily observed;

(f) all mitigating factors, including the plea of guilty, the appellant's excellent work ethic, the appellant's personal circumstances and the strict conditions of his home detention bail, the appellant's severance of his association with the Rebels and his good behaviour while on bail; and

we are satisfied that the sentence of 4 years' immediate imprisonment was not unreasonable or plainly unjust.

1. We would refuse leave to appeal on grounds 3 and 4.
2. The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J).

[2] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).

[3] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).

[4] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).

[5] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).

[6] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

[7] Mussarri v The State of Western Australia [2018] WASCA 46 [78] (Buss P).

[8] S v The State of Western Australia [2015] WASC 27 [63].

[9] R v Hough [2002] WASCA 42.

[10] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[11] Trompler v The State of Western Australia [2008] WASCA 265.

[12] Mercanti v The State of Western Australia [2009] WASCA 109.

[13] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.

[14] Peake v The State of Western Australia [2015] WASCA 239.

[15] Winmar v The State of Western Australia [2016] WASCA 62.

[16] Kere Kere v The State of Western Australia [2016] WASCA 189.

[17] Bowe v The State of Western Australia [2017] WASCA 166.

[18] Allen v The State of Western Australia [2017] WASCA 203.

[19] The State of Western Australia v Mackey [2017] WASCA 204.

[20] Reynolds v The State of Western Australia [2017] WASCA 214.

[21] Baker v The State of Western Australia [2018] WASCA 15.