Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal against sentence - Rioters causing damage - Error of fact - Aggravating factor - Whether appellant incited others to attack and injure police - Parity

Barry v The State of Western Australia [2012] WASCA 175

Boxer v The Queen (1995) 14 WAR 505

Franchina v The State of Western Australia [2017] WASCA 56

Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v De Simoni (1981) 147 CLR 383

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

Ward v The State of Western Australia [2011] WASCA 172; (2011) A Crim R 472

1 On 5 October 2017, the court made the following orders in the appeal:

1. Leave to appeal is granted on grounds of appeal 1 and 2.
2. Leave to appeal is refused on grounds of appeal 3 and 4.
3. The appellant's application in an appeal filed on 2 October 2017 (for leave to amend the particulars to ground of appeal 1) is granted.
4. The appellant have leave to adduce annexure TMN1 to the affidavit of Tony Mark Nikolic filed on 4 September 2017 as additional evidence in the appeal.
5. The appellant's application in an appeal filed on 4 September 2017 (for leave to adduce additional evidence in the appeal) is otherwise dismissed.
6. The appeal is allowed.
7. The sentence imposed on the appellant by the District Court of Western Australia in KAL IND 95 of 2016 is set aside, and there is substituted a sentence of 7 months' imprisonment, conditionally suspended for 12 months with a supervision requirement.

2 We said that we would publish our reasons for making those orders at a later time. These are our reasons for making the above orders.

3 Following the tragic death of a young indigenous boy, members of the Aboriginal community gathered near the Kalgoorlie courthouse to protest against the decision to charge the man whose vehicle struck the boy with manslaughter rather than murder. The protest escalated into a riot, with two violent phases. The first phase principally involved forced entry and damage to the courthouse at which the man charged with manslaughter was due to appear. The second phase principally occurred after a person was arrested near a 'Jay Jays' store on Hannan Street, and principally involved police being pelted with objects and further property damage.

4 The appellant was present at the first phase of the riot and at a relative lull between the first and second phases. He was pacing, gesticulating aggressively and shouting abusively at police. It was not alleged that the appellant himself damaged property or attacked or injured police. The appellant had left by the time the second violent phase of the riot began.

5 The appellant was convicted on his plea of guilty of an offence against s 67(1) of the Western Australian Criminal Code. He was sentenced in the District Court to 12 months' immediate imprisonment, and now appeals against that sentence.

6 The appellant's grounds of appeal allege that the sentencing judge made a number of express errors. None of those contentions have any merit. However, in the course of its written and oral submissions, the State conceded that the sentencing judge erred if (as appeared to the State to be the case), his Honour took into account the attacks upon police in deciding not to suspend the appellant's sentence. We are satisfied that the sentencing judge did regard the attacks on police during the second phase of the riot as an aggravating factor of the appellant's offence. For the reasons explained below, we accept the State's concession that the sentencing judge erred in fact in finding that the appellant's conduct influenced the persons who attacked police during the second phase of the riot to do so. That finding of fact was material to the sentencing judge's determination of the sentence which was commensurate with the seriousness of the appellant's offence. We are of the opinion that, absent that error of fact, a different sentence should have been imposed.

7 Given this finding of express error, it is unnecessary to deal with the appellant's ground of appeal alleging that the sentence was manifestly excessive.

8 The appellant should be permitted to amend his grounds of appeal to assert the error identified by the State and the appeal should be allowed. Having regard to all the circumstances of the case, including that the appellant has now served nearly 4 months in custody for the offence, a new sentence of 7 months' imprisonment, conditionally suspended for 12 months, should now be imposed.

9 Chapter IX of the Code creates offences relating to unlawful assemblies and breaches of the peace.

10 The concept of an 'unlawful assembly' is defined by s 62(1) and s 62(2) of the Code, subject to a presently immaterial exception in s 62(3) of the Code, in the following terms:

(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

11 Section 62(4) of the Code defines the meaning of 'riot' and 'riotously assembled' in the following terms:

When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

12 Section 63 of the Code creates the following offence of taking part in an unlawful assembly:

Any person who takes part in an unlawful assembly is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

13 Section 65 of the Code creates the following offence of taking part in a riot:

Any person who takes part in a riot is guilty of a crime and is liable to imprisonment for 5 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

In Boxer v The Queen,[1] it was held that in order to prove that an individual accused took part in a riot, for the purposes of what was then s 64 of the Code, it would be necessary to identify that the accused was the perpetrator of an act of violence which converted the unlawful assembly into a riot, or to prove that the accused was otherwise a party to such an act of violence who attracted criminal responsibility under s 7 or s 8 of the Code.

14 Section 67 of the Code creates offences relating to the damage of property in a riot in the following terms:

(1) If as a result of persons being riotously assembled any property is unlawfully destroyed or damaged, each person among those so assembled is guilty of a crime and is liable to imprisonment for 10 years.

(2) If the property is destroyed or damaged by fire, each person is liable to imprisonment for 14 years.

15 The appellant was charged with and convicted of an offence against s 67(1) of the Code.

16 The current provisions were introduced or modified by legislation enacted in 2004.[2] The principal changes were to consolidate a single offence where property damage occurred,[3] to make each person riotously assembled criminally responsible for property damaged as a result of the riotous assembly[4] and to change the maximum penalties.[5]

17 The sentencing judge found the circumstances of the appellant's offending to be as follows.[6]

18 The riot occurred following the tragic death of a 14 year old indigenous boy in Kalgoorlie. The death arose as a result of him being hit by a motor vehicle driven by a person who had been charged with manslaughter. The person who was charged was due to appear in the Magistrates Court at Kalgoorlie on 30 August 2016.

19 The appellant and approximately 200 other people gathered in Hannan Street to protest about the matter. A section of this group made their way into the Kalgoorlie courthouse. Their presence gave rise to security concerns. They were being vocal and generally aggressive in their behaviour. They were directed to leave the courtroom and the courtroom was blocked by security officers.

20 After the registrar of the court asked the group to leave they made their way down Hannan Street with the rest of the protest group. A police inspector approached members of the group and requested the group to disperse. Some of the members became abusive and commenced throwing rocks at the police inspector.

21 The sentencing judge concluded that, at about this time, the appellant 'threw something'. The sentencing judge said that it was not clear what the appellant threw and at whom it was directed. This finding is the subject of grounds 1 and 2 of the appeal.

22 When informed by the inspector that it was not permissible for the group to enter the courthouse and that access would be limited to the deceased's family members, a number of the group rushed forward towards the courthouse. These people were then followed by other members of the assembled group. Approximately 40 members of the protesting group climbed over the court gate, which was later forced open. Then a large group entered the courthouse yard and gathered outside the main entrance to the courtroom.

23 At the time, the court building was occupied by judicial officers, court staff, legal counsel, accused persons, authorised members of the public including the family of the deceased boy and also a jury panel in a District Court trial that was in progress that day.

24 When the group entered the court, bricks, rocks and projectiles were thrown at glass windows and doors. The front windows and doors of the court were smashed as was an upstairs window of the jury room. The people inside the court building were forced to be evacuated from the building for their own safety. The value of the damage to the courthouse was estimated to be approximately $18,800.

25 The group then moved down Hannan Street. The appellant and others continued swearing and yelling abuse at police. Some of the language used by the appellant was as follows:[7]

Cover-up murdering cunts. That is what you dogs are.

Let's go and kill some white kids.

You shooting all of us, you fucking animal cunts.

I might go stick my foot in your arse, you cunts.

Lock me up, dogs.

Fuck you.

Murder. Life. That's what we're asking for. We're going to kill that cunt.

The appellant's abuse was directed towards police and made the task of the police to calm down the group and restore law and order more difficult.

26 Violence escalated, with objects being thrown at police and hitting and injuring 15 police officers. The sentencing judge noted that the appellant said that he had left prior to this part of the riot, and had been there for about two hours when he left. The sentencing judge observed:[8]

However, your conduct that day was certainly to incite others. You were described by one of the detectives who made a statement as being one of the most vocal and aggressive persons present. This is clear from the video that I have seen. You were described as inciting the crowd, by your conduct, towards violence. This is, again, confirmed by the footage that I have seen.

27 In addition to assaults on police officers, the group also attacked police vehicles by throwing objects at them, and some members of the assembled group also jumped on police cars. The estimated damage to police vehicles was in the vicinity of $34,000.

28 At one point of time, elders agreed to assist the police and sought to calm down the gathering. But the elders were yelled at aggressively and efforts to calm down the group were futile. Objects were thrown at business premises in Hannan Street. Businesses were forced to close down. The riot lasted approximately three hours and caused substantial disruption to the central business district of Kalgoorlie.

The scale of the riot, by itself, makes this offence extremely serious. Although, of course, you did not cause all the damage yourself, or cause injuries to the police, or throw all the objects that caused injury or caused damage, you were an active participant in the riot. In fact, a very vocal participant. And this creates both a collective responsibility and an individual responsibility.

Not only did the riot cause considerable damage, but it would have caused fear and concern amongst the occupiers of the courthouse, the police who were trying to restore order, and members of the public in the area. A particularly aggravating feature of the riotous assembly was that it struck at the heart of the legal process. I accept that the assembly, and the behaviour of those involved, arose out of tragic circumstances and there was a sense of injustice having been created.

But there is a need in our society that the legal process be followed. For a significant period of time, the riot caused an interruption to the proceedings in the Kalgoorlie courthouse. Not only in relation to the matter concerning the person charged with manslaughter, but other legal proceedings listed that day, including a District Court trial. The court was, in fact, forced to close down for the day.

30 The sentencing judge made the following findings as to the appellant's personal circumstances.[10]

31 The appellant was 30 years of age at the time of sentence. He was born in Northam where he resided with his parents and four siblings, until the age of nine when his family relocated in Perth. The appellant's father passed away when he was 7 years of age. He was raised in an environment of alcohol abuse and violence.

32 At the time of sentencing, the appellant had employment in a scaffolding engineering company. The appellant's references spoke highly of the appellant.

33 The appellant has a past history of excessive use of alcohol and use of cannabis, although at the time of sentence he seemed to be addressing those issues.

34 The appellant has a history of prior offending. As a juvenile, he was convicted of a number of offences involving violence. As an adult, he has a significant history of violence. The offences of which the appellant had been convicted include the following:

1. On 11 October 2005, the appellant was convicted of aggravated assault, threats to injure and unlawful damage.
2. On 24 March 2006, the appellant was convicted of obstructing police officers, criminal damage and assault occasioning bodily harm.
3. On 13 September 2007, the appellant was convicted of aggravated assault occasioning bodily harm.
4. On 4 April 2008, the appellant was convicted of disorderly conduct.
5. On 9 July 2009, the appellant was convicted of threats to injure.
6. On 21 January 2010, the appellant was convicted of unlawful wounding, for which he received a term of imprisonment of 15 months.
7. On 25 January 2013, the appellant was convicted of assault.

35 The appellant's past compliance with court orders was mixed. In June 2014, he was convicted of breaching suspended terms of imprisonment, and received an immediate term of imprisonment as a result. There have been other occasions when the appellant was released into the community on parole, or been subject to community-based orders, where he had complied with the orders.

36 The appellant has two children by a previous relationship. When released from prison in February 2016, the appellant initially resided with his family in Kalgoorlie and assumed care of his two children. At the time of sentencing, the appellant had gained his own Homeswest accommodation and care for his two children, aged six and eight years. The appellant also had a newborn child, with his partner.

37 The sentencing judge noted that the appellant's past history of offending did not make his current offending more serious, but it did demonstrate the need to impose a sentence which deters the appellant from reverting to violence when he was angry.

38 The sentencing judge recognised the following mitigating factors of the appellant's offending:[11]

1. The appellant's plea of guilty 'essentially'[12] at the first reasonable opportunity, for which the sentencing judge gave a 25% discount under s 9AA of the Sentencing Act 1995 (WA).
2. The appellant had stable employment and was acting responsibly by taking care of his three young children.
3. The appellant was raised in an environment where violence was condoned. As a young person, the appellant never received the proper guidance as to the inappropriateness of reverting to violence when he was angry.

39 Against this, the sentencing judge took into account the seriousness of the appellant's offending behaviour. The sentencing judge recognised that the appellant's case was one where particular emphasis must be given to general deterrence. The sentencing judge said:[13]

People must understand that the courts perform an essential function of maintaining the rule of law in our community. People must be able to safely come to the courthouse and be dealt with according to the law, without interference of threatening behaviour by others. It is essential that court officers, court staff, are protected against threatening and riotous behaviour. Police officers should be protected from behaviour which involves physical violence and abuse against them.

40 After referring to imprisonment as a penalty of last resort, the sentencing judge said that he considered a term of 12 months' imprisonment to be appropriate. The sentencing judge then considered whether the term of imprisonment should be suspended. The sentencing judge said:[14]

This requires me to take into account the nature of your offending, your personal circumstances, and the need to impose a penalty which is both a personal and general deterrence. In a matter such as this, it is necessary that the institutions of the court are protected. A clear message must be sent out that if people are going to protest about certain matters, as they are entitled to do in a democratic society, then they must do so in an orderly fashion, and without interference to the legal process.

Your role in the riotous behaviour, on this day, was such that you provided incitement to the group by your yelling and abuse, and your behaviour. I am satisfied that younger people in the group were influenced by your behaviour and this led to them then causing damage to property and, also, attacking the police. I conclude that taking into account all of these factors, that it is not appropriate to suspend the term of imprisonment I have set. Accordingly, this will be an immediate term of imprisonment.

1. The sentencing Judge erred when he sentenced on the basis certain aggravating factors were present;

Particulars:

1.1 The objective facts did not support a finding being established beyond reasonable doubt that the appellant threw an object.

1.2 The objective facts did not support a finding established beyond reasonable doubt the appellant's behaviour influenced others to damage property.

Ground 2

1. The sentencing discretion miscarried when the learned sentencing Judge proceeded on the basis all salient facts were accepted, when they were not;

Particulars:

2.1 The appellant did not accept he threw something ('the fact');

2.2 A trial of the issues should have been held to establish the fact.

Ground 3

1. The sentence of 12 months['] immediate imprisonment imposed upon the appellant offended the principle of parity when compared to the sentences imposed upon other co-offenders.

1. The sentence of 12 months['] immediate imprisonment was, in all the circumstances, manifestly excessive.

Particulars:

4.1 The only sentence reasonably open was a sentence of suspended imprisonment.

4.2 The length of the term of immediate imprisonment was manifestly excessive.

42 The application for leave to appeal on these grounds has been referred to the hearing of the appeal.

43 At the hearing of the appeal, the appellant made an oral application to amend the particulars to ground 1. The application to amend was made following a concession by the State in its written submissions to the effect that the sentencing judge erred if (as appeared to the State to be the case) his Honour took into account the attacks upon police in deciding not to suspend the appellant's sentence.[15] The court reserved its decision on that application, and directed that the appellant file an application in the appeal and a written minute of the proposed ground.

44 Ground 1, as proposed to be amended by the filed minute, is in the following terms:

1. The sentencing Judge erred when he sentenced on the basis certain aggravating factors were present;
2. The charge as pleaded did not, as a matter of law, permit the sentencing Judge to find or, further or alternatively, the objective facts did not support the following:

Particulars:

1.1 The objective facts did not support a finding beyond reasonable, doubt that the appellant threw an object.

1.2 The objective facts did not support a finding beyond a reasonable doubt, that the Appellant's behaviour influenced others to damage property.

1.3 a finding that the Appellant had incited young people towards violence; and

1.4 a finding that the Appellant had collective responsibility for injuries to police and damage to property, committed by others in the riot.

45 Grounds 1 and 2 may be dealt with together. As framed, those grounds allege two factual errors. The first concerns the sentencing judge's finding that the appellant threw an object during the course of the riot. The second concerns the sentencing judge's finding that the appellant's behaviour influenced others to damage property.

46 The proposed amended particulars introduce a third alleged factual error, relating to the finding that the appellant's behaviour influenced others to attack and injure police.

47 Contrary to the appellant's submissions, the sentencing judge correctly understood that the fact that the appellant threw something was accepted by the appellant at the sentencing hearing. The prosecutor's statement of the facts indicated that the appellant:[16]

can be seen in footage of the incident throwing an unidentified projectile on Hannan Street at buildings on the opposite side of the street to the courthouse.

48 Later, the sentencing judge asked the prosecutor about the statement that the appellant was seen throwing an object. Before showing the relevant video to the court, the prosecutor said:[17]

So it's actually a very short portion of footage and it occurs very quickly and Mr Yarran will come from the right-hand side of the screen and make a very quick gesture which the State says the only reasonable inference is that that was a throw of something.

49 The video was then played, but was described by the prosecutor as 'disjointed'. At about this time, the appellant interjected:[18]

50 After the footage was played, the prosecutor said:[19]

And the State isn't - there's no - any evidence of any damage being caused by that throw. It's just part of his conduct on the day ... [a]nd adding to the hostilities, your Honour.

51 The appellant's sentencing counsel then addressed the court. In her submissions in mitigation, the appellant's sentencing counsel observed:[20]

And your Honour has seen footage of what depicts - it does appear to depict Mr Yarran throwing an object. However, there's no allegation that he has caused any damage and that was away from the courthouse.

52 The sentencing judge appropriately proceeded on the basis of the formal submissions made by the appellant's counsel, rather than the appellant's interjection at a point when there was evidently some difficulty in the playback of the video in court. The prosecutor's statement that the appellant threw an unidentified object away from the courthouse was accepted by the appellant through his counsel and the sentencing judge appropriately acted on the accepted facts. There was no factual dispute which required a trial of the issues.

53 Further, the relevant portion of the video does depict the appellant performing a definite and forceful throwing action. Although the item which the appellant threw is not discernible on the video, the sentencing judge's inference that the appellant threw something was correct.[21]

Appellant's behaviour influencing others to damage property

54 Similarly, the sentencing judge's findings as to the effect of the appellant's behaviour were based on facts accepted by the appellant and the State.

55 The charge to which the appellant was arraigned and pleaded guilty was particularised in the following manner:[22]

Gary Baden Yarran, you stand charged by that name that on 30 August 2016 at Kalgoorlie you, Brendan Phillip Dimer, Terrance Wayne Smith, Dominic Shackleton and Reggie Wayne Dann were riotously assembled with each other and others and as a result property, namely, windows, doors and police vehicles were unlawfully damaged.

56 The effect of a plea of guilty was summarised by Buss JA in Ward v State of Western Australia in the following terms:[23]

A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The plea also negatives all defences. A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. (citations omitted)

57 By his plea of guilty to that charge, the appellant accepted criminal responsibility for damage to the windows, doors and police vehicles. It was not contended by either party that the appellant himself damaged that property. The position of both prosecutor and defence counsel in the sentencing proceedings indicated that the basis on which the State asserted and the appellant accepted criminal responsibility for the property damage was that his conduct encouraged or influenced others to do so.

58 Just after the submission of the appellant's counsel quoted at [51] above, she said:[24]

So accordingly, your Honour, the submission is made the criminality of Mr Yarran's offending lies in the language he used at police and in support of rioters which he accepts was likely to have encouraged them in their common purpose which could be deemed to be defying authority. (emphasis added)

59 In the course of her sentencing submissions, from which the appellant's sentencing counsel did not demur, the prosecutor said:[25]

The police were there to try and maintain calm, and, as is evident from the footage of the incident, Mr Yarran subjected them to (indistinct) of abuse and physical acts which were derogatory towards them and was showing a high level of aggression, and he really stands out in the footage as a whole, and also comes through clearly in the police witness statements that he stood out from the group as being one of the most vocal and verbally aggressive on the day, and all that did was fan the flames such that the tensions within the riotous assembly heightened, which ultimately caused the damage to - in the entirety.

Mr Yarran's involvement - the State accepts that there's no evidence that he did any damage, but ultimately the gravamen of his offending is that he was so highly aggressive on that day that he really added to the hostilities and was influential in the behaviour of the young people insofar as the way he conducted himself.

61 These submissions by counsel are consistent with the following observation of the sentencing judge, of which the appellant complains, so far as it relates to damage to property:[27]

Your role in the riotous behaviour, on this day, was such that you provided incitement to the group by your yelling and abuse, and your behaviour. I am satisfied that younger people in the group were influenced by your behaviour and this led to them then causing damage to property and, also, attacking the police.

62 The sentencing judge was entitled to find that the appellant's aggressive and abusive behaviour influenced younger people in the group to cause damage to the property particularised in the indictment. That was a circumstance of the offence alleged by the State and accepted by the appellant through his counsel as the basis for his plea of guilty to the offence. In those circumstances the submissions of the appellant's appeal counsel that the material before the sentencing judge did not establish that fact beyond reasonable doubt are not to the point. The sentencing judge was entitled to proceed on the basis of that accepted fact.

63 The submissions of counsel for the appellant focussed on the use of the term 'incitement'. Contrary to counsel's submission, we are not satisfied that the sentencing judge was using this phrase in any technical legal sense. Rather, his Honour was using the word in its ordinary sense which includes to 'stimulate or prompt to action'.[28] In the context in which that term was used, it meant no more than that the appellant's conduct influenced younger people in the group to damage property.

Appellant's behaviour influencing others to attack and injure police

64 At the hearing of the appeal, the State maintained its position that the sentencing judge had erred in having regard to the attack on and injuries to police as an aggravating factor in relation to the appellant's offence. The appellant adopted that position by his proposed amended particulars to ground 1.

65 The State indicated three bases on which it contended the sentencing judge erred in finding that the appellant's conduct influenced younger people in the group to attack and injure police:

1. As a matter of fact, the material before the sentencing judge could not support the conclusion that the group was influenced by the appellant's conduct to attack police;
2. As a matter of law, the fact that persons are subject to personal violence in the course of a riotous assembly is not an aggravating factor when sentencing an offender for an offence against s 67 of the Code, which imposes collective criminal responsibility for damage to property rather than injury to persons;
3. Taking account of the attacks on police breached the principles recognised in R v De Simoni,[29] that no one should be punished for an offence of which he or she has not been convicted and that where the prosecution has charged an offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.

66 For the reasons which follow, the State's concession should be accepted on the first of the three bases indicated above. It is unnecessary to determine whether the concession should be accepted on the second or third basis proffered by the State (which are not clearly raised by the proposed amended ground of appeal).

67 The appellant's plea of guilty to the charged offence did not involve any admission that he was criminally responsible for violence against any person. No violence to any person was particularised in the charge.

68 Further, nothing in the submissions made by the appellant's sentencing counsel accepted that he was responsible for the physical violence to which police were subject, or influenced persons who inflicted that violence. To the contrary, the appellant's sentencing counsel informed the court that:[30]

What Mr Yarran tells me about his role in the riot is that although he arrives at the march at 9 am, he actually leaves at approximately 11 am. He says he leaves before any damage is done to the police vehicles. He's present - he's at the riot when the damage is done to the courthouse windows.

69 The statement of facts read to the court by the prosecutor did not clearly indicate when members of the group were throwing objects which hit and injured 15 police officers, or allege that the appellant was present when this occurred.

70 The prosecution brief, which contained a number of witness statements, videos and other material, was incorporated in the prosecutor's statement of the facts.[31] The sentencing judge adopted that statement of facts for the purposes of sentencing the appellant.[32] Some of the police statements refer to objects being thrown at police at the time the court building was damaged, without referring to objects striking or injuring police officers.[33] Video footage of the riotous behaviour at the court building shows objects being thrown at the glass doors and windows of the building near to where police officers are standing.[34]

71 After the court building was damaged, the crowd was moved away from the court building to a point on Hannan Street where police and some older members of the Aboriginal community spoke over a megaphone to try to calm the crowd down. Video footage shows the appellant prominently acting in an aggressive and abusive manner at this time when police and others (including some older members of the Aboriginal community) were trying to calm the situation.[35] This is at a time following the damage to the court building but prior to the incident where police were pelted with objects. It is not obvious from the video footage that any of the persons in the crowd are reacting to the appellant's pacing, gesticulating and shouting. Although a number of persons in the crowd, including the appellant, are verbally abusive at this stage, most people in the crowd are relatively calm.[36]

72 The police statements on the prosecution brief indicated the following sequence of events following the video showing the appellant behaving in an abusive and aggressive manner.

73 At about 10.25 am the crowd of protesters began moving west down Hannan Street.[37]

74 At about 10.45am at least one aboriginal male was arrested near a shop on Hannan Street called 'Jay Jays' by Sergeant Pring who was assisted by other officers.[38] An identified person was arrested after throwing a bottle at Sergeant Pring which struck Constable Weldon on his hand as he was covering his face.[39]

75 A large crowd converged on the location of the arrests and were behaving in an abusive and threatening manner. Objects, including water bottles, were thrown at Sergeant Pring while he was making this arrest. At about 10.50am Constable Kandic instructed four males (none of whom were the appellant) standing in front of him to step back, discharged OC spray causing the males to retreat, and 'continued to give instruction to the group of people who were continuing their hostile behaviour'.[40] At this time, Constable Kandic was struck in the cheek by a water bottle causing his glasses to break and cutting his cheek.[41] A water bottle struck Constable Van Asselt in the torso causing bruising and tenderness.[42] Constable Ireland described being hit with water bottles in the back of the head and the back.[43] Constable Jennifer Forrest described the police officers forming a cordon around the arresting officers with batons raised.[44] Constable Maskell described being hit by projectiles, and deploying and using his baton.[45] Constable Christopher Forrest describes being struck by water bottles and deploying his baton.[46] Video files on the prosecution brief show the conduct of members of the crowd at the time of the arrest consistently with the above accounts.[47]

76 At about this time police officers wearing protective equipment and carrying shields arrived. Bottles and rocks were still being thrown at police. Officers with shields forced the crowd westwards to the intersection of Hannan Street with Cassidy Street and St Barbara's Square.[48]

77 Constable Kandic deployed with other officers to St Barbara's Square on Hannan Street, where a crowd of approximately 200 people remained. The crowd threw projectiles at the officers, striking a number of officers. Further members of the crowd were arrested for damaging property.[49]

78 Constable Van Asselt described bottles and rocks being thrown as the police cordon pushed forward at about 11.20am.[50] As he was arresting a person seen to throw a rock, Constable Van Asselt was struck by an object in his left shoulder, which caused bruising and tenderness.[51] Constable Christopher Forrest described being struck on the right forearm with a piece of concrete.[52] Constable Milligan described being hit on the forehead by a large D-ring vehicle shackle.[53] Constable Beard described an attempt to punch her in the face, and a person being injured by a thrown lump of concrete.[54]

79 A number of police officers identify the appellant's conduct at the court or when police and some older members of the Aboriginal community were attempting to calm the crowd down. However, none of the officers identify the appellant as being present when the police are pelted with objects during and after the arrest near the 'Jay Jays' store. The latest observation of the appellant would appear to be that of Constable Van Asselt. He observed the appellant, before the crowd moved west along Hannan Street, saying:[55]

I have had enough of this shit. I am going home. Fuck you cunts.

Constable Van Asselt then observed the appellant walking off and gesticulating at police with the middle fingers of both his hands.[56]

80 It appears from the various statements and video recordings on the prosecution brief that there were two significant violent phases to the riotous behaviour in Kalgoorlie on 30 August 2016. The first phase was at the court building when significant property damage occurred. The second phase involved police being pelted with objects and a number of police being injured. The second phase began at the time of the arrest of at least one aboriginal man near the 'Jay Jays' store on Hannan Street, after the appellant had departed. The appellant was present during a lull between these two violent phases, and was pacing, gesticulating and shouting abuse in an aggressive manner. However, at the time when the appellant was behaving in this manner after the court building was damaged the group's behaviour is better described as a very noisy protest rather than a riotous assembly.

81 The material on the prosecution brief was not capable of establishing, beyond reasonable doubt, that the persons behaving violently in the second phase described above were in fact influenced to do so by the appellant's behaviour. The appellant's behaviour occurred at an earlier point in time and the appellant had left before the second violent phase began.

82 Further, there were a number of events to which those behaving violently during the second phase may have been reacting: the arrest of at least one person outside the 'Jay Jays' store, the deployment of police OC spray and batons, and the presence of police in riot gear. It is difficult to imagine that the appellant's earlier behaviour was anywhere in the minds of the persons behaving violently at the time of these events, or that his previous behaviour had any influence over their violent actions at this time.

83 For these reasons, we accept the State's contention that the material before the sentencing judge did not support the conclusion that the appellant's conduct influenced the persons who attacked police during the second phase of the riot to do so. The appellant's application to amend his grounds of appeal to incorporate the State's concession should be allowed in these circumstances.

84 It is apparent from the sentencing judge's reasons that his Honour did regard the appellant's conduct as inciting or influencing the violent behaviour during the second phase described above as an aggravating factor. The sentencing judge referred to the second phase in the following terms:[57]

Violence escalated, with objects being thrown at police and hitting and injuring 15 police officers. You say that you had left prior to this part of the riot, and you had been there for about two hours when you left. However, your conduct that day was certainly to incite others. You were described by one of the detectives who made a statement as being one of the most vocal and aggressive persons present. This is clear from the video that I have seen. You were described as inciting the crowd, by your conduct, towards violence. This is, again, confirmed by the footage that I have seen.

Although, of course, you did not cause all the damage yourself, or cause injuries to the police, or throw all the objects that caused injury or caused damage, you were an active participant in the riot. In fact, a very vocal participant. And this creates both a collective responsibility and an individual responsibility. (emphasis added)

It should be noted that, on the State's case and the sentencing judge's findings of primary fact, the appellant was not shown to have thrown any of the objects which caused injury to police or damage to property. It may also be noted that the collective criminal responsibility created by s 67 of the Code is concerned with damage to property rather than injury to persons.

86 Then in deciding that it was not appropriate to suspend the sentence, the sentencing judge observed:[59]

Your role in the riotous behaviour, on this day, was such that you provided incitement to the group by your yelling and abuse, and your behaviour. I am satisfied that younger people in the group were influenced by your behaviour and this led to them then causing damage to property and, also, attacking the police. I conclude that taking into account all of these factors, that it is not appropriate to suspend the term of imprisonment I have set. (emphasis added)

87 It appears from the emphasised parts of the passage just quoted, understood in the context of the sentencing judge's previous remarks, that his Honour concluded that the appellant's behaviour influenced the persons who attacked police during the second phase described above and that this was a material aggravating factor counting against the suspension of the appellant's sentence. The common position of the parties that this involved a material error of fact should be accepted. Ground 1, as amended, is made out so far as it challenges that finding of fact.

88 Ground of appeal 3 contends that the sentence imposed on the appellant infringed the parity principle. For the following reasons, that ground of appeal has no reasonable prospect of success.

89 The principles to be applied in determining whether this court should interfere with a sentence on parity grounds were summarised by Mazza JA in Barry v The State of Western Australia:[60]

The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.

Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.

What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents. (citations omitted)

90 The difference between the sentences imposed on the appellant and his co-offenders (Dimer, Dan and Shackleton) reflects the difference in their antecedents.

91 Dimer had, in response to encouragement of others, assisted in lifting the gate allowing a large group of people to enter the yard of the courthouse and also threw some items at the courthouse at a time when the damage had already been done by others.[61] Dimer did not incite the mood of the crowd in any way, other than to assist in removing the gate. Dimer was aged 26 years, had a good employment history and only a minor criminal record.[62] Like the appellant, he was sentenced to 12 month's imprisonment but, unlike the appellant, his sentence was conditionally suspended. The sentencing judge said that he reached this conclusion by 'the barest of margins'.[63] The difference in the sentencing outcome is explicable by the lesser role which Dimer had in inciting the riot and his better antecedents.

92 Dan was one of the persons who threw objects at the glass windows of the courthouse and was involved in an altercation with police at the entrance to the courthouse.[64] Like the appellant, he had left by the time people were throwing objects at police. Significantly he was younger than the appellant, being aged only 22, and had a limited history of offending.[65] While, unlike the appellant, he was directly involved in property damage, Dann's sentence of 10 months' immediate imprisonment is explained by his younger age and better antecedents.

93 Shackleton was only 18 years of age. He was one of the people who jumped over the court gate and entered the courthouse yard, and was observed throwing objects at the glass windows of the courthouse.[66] Shackleton was also sentenced for an aggravated burglary committed the day after the riot. However, significantly, Shackleton had spent 221 days in custody on remand prior to sentence. Shackleton received an intensive supervision order in respect of the riot offence and a conditionally suspended sentence. His lesser sentence is justified by his youth and the fact that, unlike the appellant, he had already spent a considerable period of time in custody on remand.

95 Ground 4 contends that the sentence of 12 months' immediate imprisonment was manifestly excessive. This invites the court to infer an error in the application of well-established principles.[67] As express error has been established, it is unnecessary to consider whether error should be inferred. Leave to appeal on ground 4 should be refused.

96 As a material express error of fact has been established, it is necessary for this court (which has the necessary material) to re-exercise the sentencing discretion and consider whether a different sentence should have been imposed.[68] That is a different exercise to considering whether the sentence imposed is manifestly excessive. The question of whether a different sentence should have been imposed is directed to the circumstances and appropriate outcome at the time of sentencing.[69]

97 The offending was a serious example of this type of offence, particularly in light of the fact that the riotous behaviour was directed towards the court building. The manner in which the court building was damaged would have caused considerable fear among the occupants of the building. Those occupants included persons who were required to attend the court under compulsion of a summons, such as jurors, accused persons and witnesses. The proceedings in the court were significantly disrupted. The damage to the court building disrupted the proper administration of justice. There is a strong public interest in protecting the administration of justice and those who are required to attend court buildings (either by summons or in the course of their employment or to deal with litigation in which they are involved) from such an attack. That public interest informs the court's assessment of the seriousness of the present offence.

98 General deterrence was an important sentencing consideration, particularly where the criminal proceedings which were the subject of the riotous assembly were ongoing.

99 However, although the appellant was criminally responsible for the damage to the property in question, the nature and extent of his role in the riotous assembly, including the fact that he did not himself damage any of the property, were important sentencing factors.

100 The appellant's personal circumstances are noted above. He had a significant criminal record, although he had recently taken steps towards rehabilitation (having obtained stable employment and taking care of his three children). The appellant's plea of guilty at what the sentencing judge found was 'essentially' the first reasonable opportunity, and his deprived upbringing where violence was condoned, were mitigating factors.

101 The seriousness of the offence and considerations of general deterrence outweighed the mitigating factors and, at the time when the appellant was sentenced, made it inappropriate to suspend or conditionally suspend the sentence of imprisonment.

102 Having regard to the circumstances at the time of sentencing, in our view the appropriate outcome at the time of the original sentencing was a sentence of 10 months' immediate imprisonment. That sentence includes a 25% discount under s 9AA of the Sentencing Act. It also includes a discount for the other matters of mitigation mentioned by the sentencing judge. It follows that we are of the opinion that a different sentence should have been imposed for the purposes of s 31(4)(a) of the Criminal Appeals Act, and our discretion to allow the appeal is enlivened. The appeal should be allowed and the sentence imposed by the sentencing judge set aside, under s 31(5) of the Criminal Appeals Act.

103 In exercising this court's power to impose a new sentence, under s 31(5)(a) of the Criminal Appeals Act, it is appropriate to note two matters which relate to circumstances arising since the original sentencing. In exercising that power to impose a new sentence, the court is not confined to considering the circumstances and appropriate outcome at the time of the original sentencing. Under s 41(4)(a) of the Criminal Appeals Act, the court may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the District Court dealt with the appellant and the hearing of the appeal.

104 First, by application in the appeal filed on 4 September 2017, the appellant seeks to adduce additional evidence in the appeal. That evidence consists of a letter from a former employer of the appellant, indicating its continued intention to employ the appellant. The court should receive that additional evidence for the purpose of determining the new sentence which should be imposed. The application in an appeal should be allowed to that extent. As the appellant abandoned other aspects of the application in the appeal, that application should otherwise be dismissed.

105 Secondly, in the time between the original sentencing and the hearing of this appeal, the appellant had actually served nearly 4 months of the sentence imposed by the sentencing judge. While a term of immediate imprisonment was the appropriate sentence at the time of the original sentencing, the service of that period in custody now tips the balance in favour of a conditionally suspended sentence. The service of that period in custody, in the circumstances of this case, will have already had a deterrent effect on the appellant. The current availability of employment suggests that the rehabilitation of the appellant will best be served by his conditional release at this stage, having served that period in custody. In all the current circumstances of this case, the appropriate sentence is a conditionally suspended term of imprisonment, the length of which has regard to the time already served. The substituted sentence (which incorporates a 25% discount under s 9AA of the Sentencing Act) should be for a term of 7 months' imprisonment, conditionally suspended for 12 months with a supervision requirement.

[1] Boxer v The Queen (1995) 14 WAR 505, 516, 521.

[2] Sections 63 - 67 were introduced by s 5 of the Criminal Law Amendment (Simple Offences) Act 2004 (WA). Relatively minor amendments were made to s 62 by s 7 of the Criminal Code Amendment Act 2004 (WA).

[3] Formerly, s 66 and s 67 of the Code made separate provision in relation to demolishing buildings and certain other kinds of property, and damaging those things.

[4] Formerly, s 66 and s 67 of the Code only imposed criminal liability on persons who, being riotously assembled together, did the relevant damage.

[5] The maximum term of imprisonment for unlawful assembly was increased from 1 year to 2 years; for rioting was increased from 3 years to 5 years and for the offence involving property damage from either 7 or 14 years (in the case of destruction or damage respectively) to 10 years.

[15] Paragraph 50 of the Respondent's Submissions (AB 51).

[21] The video file is titled CKB Exchange West HD PTZ-2_edit.mpg,

[23] Ward v The State of Western Australia [2011] WASCA 172; (2011) A Crim R 472 [66].

[28] See Macquarie Dictionary (6th edition), definition of 'incite'.

[29] R v De Simoni (1981) 147 CLR 383, 389, 392 referred to in Ward [72], [162] and Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [9], [94].

[33] Statement of Ireland par 17 and 18 (Brief page 13); statement of Hodgkin par 21 - 22 (Brief page 189).

[34] Video file 'TV Footage GWN7 KAL Tuesday 160830_TV.mpg.

[35] See video files labelled 'Ireland Footage 00020new.mpg' and ''Ireland Footage 00021new.mpg'.

[36] Detective Constable Beard refers to Acting Superintendent Colfer being struck by a bottle when attempting to speak to the crowd with a loud speaker: statement of Beard pars 12 - 16 (Brief page 289).

[37] Statement of Van Asselt par 37 (Brief page 222); statement of Christopher Forest par 8 (Brief page 256).

[38] Statement of Kandic pars 8 - 12 (Brief pages 197 - 198).

[39] Statement of Pring pars 21 - 39 (Brief pages 204 - 206); statement of Weldon pars 17 - 24 (Brief pages 213 - 214).

[40] Statement of Ireland pars 24 - 30 (Brief pages 14 - 15); statement of Kandic pars 21 - 26 (Brief pages 199 - 200); statement of Pring pars 33 - 35, 46 (Brief pages 205 - 206); statement of Weldon par 23 (Brief page 214); statement of Van Asselt pars 39 - 62 (Brief pages 222 - 225); statement of Jennifer Forrest pars 20 - 48 (Brief pages 233 - 236); statement of Christopher Forrest pars 10 - 21 (Brief pages 257 - 258); statement of Milligan pars 28 - 33 (Brief pages 274 - 275); statement of Beard pars 20 - 31 (Brief pages 290 - 291).

[41] Statement of Kandic pars 27 - 32 (Brief page 200); statement of Van Asselt pars 62 - 66 (Brief page 225).

[42] Statement of Van Asselt pars 67 - 68 (Brief page 225).

[43] Statement of Ireland pars 27 - 30 (Brief pages 14 - 15).

[44] Statement of Jennifer Forrest pars 26 - 30 (Brief page 234).

[45] Statement of Maskell pars 6 - 24 (Brief pages 240 - 243).

[46] Statement of Christopher Forrest pars 15 - 21 (Brief pages 257 - 258).

[47] See video files labelled 'Ireland Footage 00024new.mpg', 'Ireland Footage 00025.mpg' and 'TV Footage Kalgoorlie Riot TV Coverage.mpg'.

[48] Statement of Van Asselt pars 69 - 71 (Brief pages 225 - 226); statement of Jennifer Forrest pars 49 - 52 (Brief page 236); statement of Maskell pars 24 - 25 (Brief pages 243 - 244); statement of Christopher Forrest pars 22 - 24 (Brief page 258); statement of Beard pars 35 - 36 (Brief page 292).

[49] Statement of Kandic pars 33 - 35 (Brief page 200).

[50] Statement of Van Asselt pars 82 - 85 (Brief page 227).

[51] Statement of Van Asselt pars 85 - 95 (Brief pages 227 - 228).

[52] Statement of Christopher Forrest pars 25 - 29 (Brief pages 258 - 259).

[53] Statement of Milligan pars 34 - 42 (Brief pages 275 - 276).

[54] Statement of Beard pars 35 - 50 (Brief pages 292 - 293).

[55] Statement of Van Asselt par 22 (Brief page 220).

[56] Statement of Van Asselt par 23 (Brief page 221).

[60] Barry v The State of Western Australia [2012] WASCA 175 [55] - [57].

[67] See, for example, Franchina v The State of Western Australia [2017] WASCA 56 [38].

[68] Section 31(4)(a) of the Criminal Appeals Act.

[69] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [22]. Although the plurality in the High Court in Munda v The State of Western Australia [ 2013] HCA 38; (2013) 249 CLR 600 [73] said that McLure P's observations about the residual discretion to dismiss a prosecution appeal may have been unduly narrow, the court did not criticise this aspect of her Honour's reasons.