Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 62 of 2005, IND 63 of 2005, IND 64 of 2005

Criminal law - Application for leave to appeal - Conspiracy to commit indictable offence of criminal damage by fire - Conspiracy to defeat the course of justice - Effective sentence of 4-1/2 years' imprisonment - Whether manifestly excessive - Whether sentence on second count should be partly concurrent with sentence on first count - Whether transitional provisions taken into account - Whether parity and sentencing with other offenders - Turns on own facts

1 MILLER JA: The appellant pleaded guilty before Kennedy CJDC in the District Court at Perth on 14 December 2006 to two offences. The first was that between 1 May 2004 and 6 August 2004 at Attadale and elsewhere he and others conspired together and with another to commit an indictable offence, namely, criminal damage by fire. The second was that between 25 May 2006 and 2 June 2006 he conspired with another to defeat the course of justice upon the prosecution of himself and another by agreeing to prevent prosecution witnesses giving evidence.

2 The appellant was sentenced to 3 years' imprisonment in relation to the first count and 18 months in relation to the second. The total effective sentence was 4-1/2 years' imprisonment. He was made eligible for parole and the sentence was backdated by 370 days to take into account time spent in custody.

3 The appellant seeks leave to appeal against his sentences on three grounds. They are as follows:

"Ground 1

The sentencing judge's discretion miscarried when she failed to order that the sentence for Count 2 be served partly concurrently with the sentence for Count 1 such that the sentence imposed offended the totality principle and was manifestly excessive.

Ground 2

The sentencing judge erred when she failed to take into account the sentencing transitional provisions, which required her to reduce the sentences by one third, such that the total sentence imposed was manifestly excessive.

Ground 3

The difference in the sentences imposed upon the Appellant and his co-conspirator John Van Blitterswyck ('Van Blitterswyck') was substantial and offended the principle of parity in sentence:

Particulars

1. Van Blitterswyck was 'second-in-charge' of the conspirators and was found guilty after trial;
2. The Appellant was not high in the hierarchy and pleaded guilty on the fast-track system;

1. The Appellant's previous convictions were 'very minor'. Van Blitterswyck had previous convictions of a similar and serious nature to those he was convicted of;

1. Concerning the charge for which they were co-conspirators, the Appellant received a sentence of 3 years imprisonment whilst Van Blitterswyck received a sentence of 2 years 4 months imprisonment."

4 The facts in relation to the first count faced by the appellant reveal that in or about 1990 two co-offenders of the appellant, Van Tongeren and Van Blitterswyck, established an organisation named the Australian Nationalist Movement. This organisation had racist political objectives that attracted a number of people.

5 The prosecution case was that by early May 2004, a conspiracy was entered into by Van Tongeren, Van Blitterswyck and the appellant to firebomb four Chinese restaurants.

6 In June 2004, to commemorate the release of a publication of Van Tongeren on the Australian National Movement, a plan was hatched to firebomb the restaurants. Three restaurants were selected in Karawara, Lynwood and the Southlands Shopping Centre. A fourth was still to be determined.

7 The prosecution case was that the appellant (along with a man named Klavins) were enthusiastic about the plan to firebomb the restaurants and were involved in a discussion with Van Tongeren and Van Blitterswyck about how the attacks would be carried out. One suggestion was to use a utility with a large tank on the rear which could be filled with fuel. The window of a restaurant would be smashed, fuel pumped in through the window and the restaurant set alight.

8 Shortly afterwards Klavins was replaced by a man named Johnson. Shortly after that the appellant called on Klavins and told him that he and Johnson had discussed the bombings and the planning of them. The appellant said that dummy runs would be conducted between the targets to calculate the time between the nearest police station and the selected target.

9 At a meeting at the house of a man called Leeman on 11 July 2004 the appellant was present when it was decided that the firebombing campaign should be called off until a later date so that more safe-houses could be organised.

10 There was a later meeting between Van Tongeren, Van Blitterswyck and Johnson at which the appellant was not present, but at which Van Tongeren announced that the appellant would be the person who would actually do the bombings. Johnson was to assist. Subsequently the appellant made contact with Johnson. There was a meeting at the Wembley Hotel. They discussed what would be done. A street directory was produced by the appellant containing a list of suburbs and restaurants. It was decided to use motorcycles to firebomb the restaurants. A warehouse at Johnson's place of work in Northbridge was to be used as a storage place for the items that would be needed. Molotov cocktails were discussed.

11 Subsequently, police investigated a number of graffiti attacks on 14 and 16 July and in the course of a search of the appellant's house items were found which were relevant to the conspiracy. They included frequencies for police scanners and police job codes. The appellant was arrested and charged.

12 The facts in relation to the second offence reveal that on 26 May 2006 a man named Kingston visited the appellant. Kingston was a member of the Australian National Movement. He had been in the habit of visiting Van Tongeren in prison. On 26 May 2006 he went to Hakea Prison where he saw the appellant. There was a conversation which was recorded. There was discussion about the need to "nullify" Johnson and Klavins, both of whom were prosecution witnesses in relation to the conspiracy charge. The appellant was recorded as saying:

"I told Jack the easiest way to knock this trial in the head is if we can get Klavins. If we can get him bashed pretty badly so he is in a coma and get Johnson intimidated to a point where he doesn't - both of them don't rock up in court, than [sic] it's all over. You know what I mean?

...

That's the quickest and easiest way. Now, we are going to have to be careful that there is no links to us. You have got to be ... or you just keep an eye on his house because he's a mummy's boy."

13 The learned sentencing Judge heard submissions for the prosecution and on behalf of the appellant. In the course of those submissions there was reference to Van Tongeren and Van Blitterswyck. Van Tongeren had pleaded guilty to the offence of conspiracy to commit criminal damage by fire and was sentenced to 4 years' imprisonment with eligibility for parole. During the course of submissions by counsel on behalf of the appellant it was submitted that the starting point for the appellant should be in the vicinity of the sentence imposed upon Van Tongeren which it was argued was an effective two year sentence because Van Tongeren had served two years in custody awaiting trial. The learned trial Judge observed that the appellant's plea of guilty was not an early plea but a very late plea. The trial was listed for three weeks and was to begin in a few months time. However, the learned sentencing Judge made it clear that credit would be given for the plea of guilty.

14 It is clear that during submissions made on behalf of the appellant it was recognised that the four year term imposed upon Van Tongeren was one which took into account the transitional provisions. Hence, when the learned sentencing Judge was discussing comparison between Van Tongeren and the appellant that discussion was centred upon the effective sentence after deduction of the one-third required by the transitional provisions.

15 When it came to sentencing the appellant the learned sentencing Judge first dealt with the facts. In addition to the two matters to which I have referred, there were a number of offences dealt with under s 32 of the Sentencing Act 1995 (WA). These were matters which were described by the learned sentencing Judge as mainly relating to ammunition. They were in fact nine Magistrates Court charges which involved possession of unlicensed firearms, possession of unlicensed ammunition, possession of a firearm with a circumstance of aggravation and breach of protective bail conditions. For all of these matters the appellant was sentenced to 6 months' imprisonment to be served concurrently with the sentences imposed on the other matters.

16 The learned sentencing Judge made mention of the fact that the appellant had only been dealt with in the Magistrates Court on three occasions and had "never been anywhere near a prison". She accepted that Van Tongeren was the "philosophical leader" in relation to the conspiracy but at the same time pointed out that the offence was extremely serious.

17 The learned sentencing Judge noted that Van Tongeren had been sentenced to 4 years' imprisonment for the offence of conspiracy to cause criminal damage by fire and sentenced the appellant to 3 years' imprisonment with eligibility for parole for that offence. For the offence of conspiracy to pervert the course of justice the appellant was sentenced to 18 months' imprisonment which she said was in parity with the sentence received by Kingston. This sentence was ordered to be served cumulatively upon the sentence of 3 years' imprisonment so that the effective term became 4-1/2 years' imprisonment.

18 Clearly her Honour was aware of the fact that this was a sentence after deduction of one-third in accordance with the transitional provisions. Her Honour was comparing the final sentences imposed upon both Van Tongeren and Kingston when she imposed the sentences she did upon the appellant.

19 This ground (which was not strongly pressed) contends that the learned sentencing Judge erred in sentencing the appellant to a cumulative term for the offence of conspiracy to pervert the course of justice. It is contended that the accumulation of the two sentences offends the totality principle. It is argued that the 18 month term for conspiracy to pervert the course of justice should have been served partly concurrently and partly cumulatively with the 3 year term. This it was said would properly reflect the criminality involved "given the inter-related and over-lapping nature of the respective offences".

20 However, the offences were separate and distinct offences. The offence of conspiracy to pervert the course of justice arose out of the conspiracy to cause damage by fire, but it did not arise out of the same facts and circumstances. It was directed at disabling prosecution witnesses at a forthcoming trial.

21 In my opinion, there is no basis for contending that there was an error in the exercise of the sentencing discretion in imposing a cumulative term for each of the offences committed by the appellant. They were separate and distinct and arguably this meant that they could only properly be dealt with by accumulation.

22 I do not consider that this is a case in which it can properly be argued that the learned sentencing Judge failed to take into account the totality principle. That principle requires that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Jarvis v The Queen (1993) 20 WAR 201 per Ipp J at 207. There were not multiple offences involved here. There were two separate and distinct offences and the question was whether it was appropriate to order that the sentences be served cumulatively or whether (as argued on behalf of the appellant) partly cumulatively and partly concurrently. There was, in my view, no error in the course the learned sentencing Judge took. I consider that the ground has no reasonable prospect of success and I would refuse leave.

23 This ground contends that the learned sentencing Judge failed to take account of the transitional sentencing provisions when imposing sentence.

24 As I have already pointed out, the learned sentencing Judge was clearly aware of the fact that the sentence imposed upon Van Tongeren was one which was imposed after taking into account the transitional provisions. Her Honour imposed a sentence upon the appellant which was one year less than that imposed upon Van Tongeren. She did this because she accepted that Van Tongeren was the driving force or as she put it "spiritual leader" and hence the distinction between the two.

25 The learned sentencing Judge is the Chief Judge of the District Court. She is experienced in sentencing on almost a daily basis and it would be surprising if in this case she overlooked the transitional provisions. In my opinion, ground 2 has no reasonable prospects of success and leave to appeal should be refused.

26 This ground contends that the sentences imposed upon the appellant and Van Blitterswyck were substantially different and offended the parity principle. Van Blitterswyck was sentenced after trial on 23 May 2007 and sentenced to 2 years 4 months' imprisonment for the offence of conspiracy to cause criminal damage by fire. It is contended that because he had previous convictions for racist offences of a similar nature and was considerably older than the appellant there is a marked disparity in the sentences which gives rise to a justifiable sense of grievance for the appellant. This ground is, in my view, reasonably arguable and I would grant leave to appeal upon this ground.