Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Application of parity principle where co-offender has been given an excessively lenient sentence - Manifest excess - Totality

District Court of Western Australia Act 1989 (WA), s 42(2)

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

Damiani v The State of Western Australia [2006] WASCA 47

Green v The Queen [2011] HCA 49

Hassan v The State of Western Australia [2006] WASCA 139

I (A Child) v The State of Western Australia [2006] WASCA 9

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

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

MGM v The State of Western Australia [2012] WASCA 24

Mills v The State of Western Australia [2007] WASCA 118

Nguyen v The State of Western Australia [2009] WASCA 8

1 JUDGMENT OF THE COURT: The appellant's appeal against sentence must be upheld because of errors made in the sentencing of his co-offender, Mark David Norton.

2 On 3 March 2011 the appellant was convicted in the District Court on his fast-track pleas of guilty and sentenced by Staude DCJ as follows:

3 Staude DCJ ordered that the sentences on counts 1 and 2 be served cumulatively and concurrently with the sentence on count 3. That produced a total effective sentence of 3 years and 6 months' imprisonment.

4 The facts of the offending are as follows. On 27 August 2010, in the male toilet of the Mandurah Train Station, the appellant pick-pocketed a wallet from a person he had befriended. The wallet contained, inter alia, $850 in cash (count 1).

5 At about 2.40 pm on 31 August 2010, Norton entered a pharmacy at the Beldon Shopping Centre, approached the area containing pseudoephedrine-based medicines and looked behind the counter for a short time. He then left the pharmacy without making any purchase, telling staff he had forgotten his wallet. At about 3.40 pm on the same day, Norton re-entered the pharmacy in company with the appellant. They disguised themselves by wearing wigs and sunglasses.

6 Both offenders went to the same counter that Norton had approached earlier. They ran behind it and stole numerous pseudoephedrine-based medicines from the shelf. The appellant placed the items in a black shoulder bag. The offenders were confronted by the pharmacist. The sentencing judge continued:

[He] would no doubt have been very frightened to be confronted by two people doing what [the appellant] and Norton were doing and when he engaged you, there were things said to him which amounted to threats of violence. You weren't armed ... with a weapon and you didn't pretend to be armed with a weapon but his recollection was that you said to him, 'stay back, I have a knife'. Your recollection is that you didn't pretend to have a knife at all but that you did say you would punch him if he tried to stop Norton doing what he was doing.

Now for the purposes of the sentencing exercise, the State doesn't take any issue in relation to the words that you say that you said because in either event, what you did was to threaten the manager of the pharmacy with violence in order to be able to steal the medications with Norton and that's the basis on which you've pleaded and that basis is accepted by the State.

So it was a robbery of the pharmacy by you with the threat of violence to the manager of the pharmacy and it was a robbery that was intended to obtain quantities of cold and flu tablets and similar medications from which illegal drugs could be manufactured (count 2).

7 On Monday 23 August 2010 Norton stole a Hyundai Excel hatchback from the Maddington Train Station car park. That stolen vehicle was used in the offence the subject of count 2. The appellant was a party to the theft of the vehicle on the basis that he used it on 31 August 2010 knowing it to have been stolen (count 3).

8 After the robbery the stolen car was completely destroyed by fire. In relation to that conduct, Norton was convicted of the offence of criminal damage by fire contrary to s 444 of the Criminal Code (WA). Where, as in this case, the property is destroyed or damaged by fire, the maximum sentence is life imprisonment. Accordingly, Norton was sentenced in the Supreme Court: District Court of Western Australia Act 1969 (WA), s 42(2). The appellant was not charged with any offence relating to the destruction of the stolen vehicle.

9 On 5 April 2011 Norton pleaded guilty to a nine-count indictment and was sentenced by Simmonds J as follows:

Norton took possession of a stolen vehicle from a friend

Norton, in company, stole pseudoephedrine from a pharmacy and escaped in the stolen car the subject of count 1

Norton destroyed the stolen car the subject of count 1

Norton, in company, stole pseudoephedrine from a pharmacy

Norton, in company with the appellant, stole pseudoephedrine from a pharmacy

Norton destroyed the stolen car the subject of count 6

10 Counts 6 and 7 in the Norton indictment relate to the common offending. Count 8 relates to the destruction by fire of the vehicle stolen by Norton and the appellant.

11 Norton's convictions on counts 6 - 9 caused him to be in breach of existing community based orders and suspended imprisonment orders. The community based orders were imposed for disorderly behaviour in public, two breaches of bail undertakings, property damage and possessing a prohibited drug. The suspended terms of imprisonment related to three charges of driving without a licence. Simmonds J imposed a total effective sentence of 3 months' imprisonment for these offences.

12 In relation to counts 6, 7 and 8 Simmonds J said:

It seems to me that in respect of the offences charges 6, 7 and 8, although committed on different dates, they are part of the same enterprise, and they should be made concurrent with one another for a total of 14 months [61].

13 There is nothing to suggest that the individual sentences for counts 6, 7 and 8 or the total sentence for those offences were reduced for broader totality considerations. Simmonds J made other orders which resulted in Norton receiving a total effective sentence of 2 years and 1 month's imprisonment.

14 The personal circumstances of the appellant and Norton were similar. The appellant was aged 26 at the time of the offences. He has a substance abuse problem. He commenced using amphetamines when he was aged 15. Although he had made some attempts to address his drug problem, they had been unsuccessful. He had a prior record of convictions. They include multiple convictions for stealing a motor vehicle, stealing and burglary and one conviction for armed robbery.

15 Norton was aged between 25 - 26 when he committed the offences for which he was being sentenced. He also has a significant substance abuse problem which commenced in his teenage years, and a prior criminal record. His offending included stealing, multiple driving-related offences, assault occasioning bodily harm, possession of prohibited drugs and two armed robberies (which were dealt with in the Children's Court).

16 Counsel for the State from the Office of the Director of Public Prosecutions (DPP) provided Simmonds J with wrong information as to the appellant's role in the offence he committed in company with Norton at the pharmacy on 31 August 2010 (the pharmacy offence). He said:

The co-offender presented a knife from his pocket and said, 'Stay back, I have a knife' ... I might make it clear ... that that allegation relates to the co-offender, the knife allegation, there is no suggestion [Norton] was a party to a robbery.

17 Counsel for the State must have relied on the prosecution brief, not the transcript of the earlier sentencing of the appellant by Staude DCJ. Simmonds J did not call for the transcript and made no reference, express or implied, to the parity principle in sentencing Norton.

18 Counsel for the State in the appeal (not counsel at sentencing) conceded that the sentence for the pharmacy offence (and other similar offences) and the total sentence imposed on Norton are so low as to compel a conclusion of implied error in the sentencing process. The concession is clearly correct.

19 This appeal was commenced well out of time and an extension is required. The appellant relies on three grounds of appeal. They are that:

(1) the sentence for the offences of aggravated robbery (count 2) and stealing (count 1) are manifestly excessive;

(2) the total sentence infringes the first limb of the totality principle; and

20 Leave to appeal was given on ground 3. The application for leave on grounds 1 and 2 was referred to the hearing of the appeal. We propose to commence with the parity principle.

The scope and application of the parity principle

21 The parity principle is explained by Gibb CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

22 The question is whether the disparity (or lack thereof) in sentence is capable of giving rise to a justifiable sense of grievance: Lowe (610). Whether there is a justifiable sense of grievance has to be determined objectively and by reference to the application and effect of other relevant sentencing principles, including the totality principle: Nguyen v The State of Western Australia [2009] WASCA 8 [27]. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding all the terms appropriate for the individual sentences. A variant to this approach, which has the same effect, is to reduce the otherwise appropriate length of the individual sentences and order cumulation.

23 The High Court considered the principle of parity in the recent case of Green v The Queen [2011] HCA 49. The majority (French CJ, Crennan & Kiefel JJ) referred to the need for reasonable consistency in sentencing, independently of the parity principle. They said:

General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of ... criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.' That kind of general consistency is maintained by the decisions of intermediate courts of appeal [29].

24 The majority then turned their attention to the parity principle and continued:

The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision.

... The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged [29] - [30].

25 They also noted that the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [31].

26 The majority also considered the application of the parity principle in circumstances where a co-offender has been given an excessively lenient sentence. They said:

There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed ... On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be ... 'an affront to the proper administration of justice.' Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences [33]. (emphasis added)

27 The approach taken by this court in circumstances where an excessively lenient sentence has been imposed on a co-offender is consistent with the principle stated by the High Court in Green v The Queen: I (A Child) v The State of Western Australia [2006] WASCA 9 [66]; Hassan v The State of Western Australia [2006] WASCA 139 [19]; Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11]; MGM v The State of Western Australia [2012] WASCA 24 [44] - [46].

28 We turn now to the application of the principles. The particular issues in this case are whether: (i) the appellant and Norton are co-offenders in relation to the pharmacy offence; and (ii) regard can also be had to the total sentences imposed on each offender for all the offences for which they were sentenced, including those where they are not 'co-offenders' in the parity sense.

29 The appellant and Norton were co-offenders on the count of stealing a motor vehicle. However, Norton's criminality is materially higher because he stole the vehicle whereas the appellant simply used it.

30 As to the pharmacy offence, Norton was originally charged with aggravated armed robbery (ts 9). The charge was reduced to stealing for reasons which are difficult to fathom. The maximum penalty for stealing is 7 years. The maximum sentence for aggravated robbery is 20 years. The only feature which placed the appellant within the more serious offence is that he threatened to punch the pharmacist. On the other hand, Norton had greater involvement in the preparation for the offending, 'casing' the pharmacy in advance, and also had recent prior experience, having committed three similar offences on pharmacies in April 2010 and June 2010.

31 As a matter of substance rather than form, the appellant and Norton were, having regard to the circumstances of the pharmacy offence, 'co-offenders' within the meaning of that term for the purposes of the parity rule.

32 Norton's sentence of 9 months' imprisonment on count 7 is manifestly inadequate. Further, the total effective sentence of 14 months for counts 6, 7 and 8 does not bear a proper relation to the overall criminality involved in those offences, viewed in their entirety and having regard to all the circumstances, including those referable to Norton personally. The marked disparity in the sentencing of the appellant and Norton for the common and closely related offending is unjustified.

33 We turn now to the second issue. This court has concluded that, where the parity principle applies to one or more of a greater number of offences for which the offenders are sentenced at one time, regard can also be had to a comparison of the total effective sentence for all offences: Jardim v The State of Western Australia [2011] WASCA 83. This is an aspect of the broader requirement for systematic fairness identified in Green v The Queen. Even taking into account the application and effect of the totality principle, the total sentence of 3 years and 6 months' imprisonment for the appellant's offences is, having regard to the overwhelmingly greater level of criminality involved in Norton's offending as a whole, grossly inconsistent with Norton's total sentence of 2 years and 1 month.

34 Looking at the sentencing of the appellant in isolation, we are not persuaded that the sentence on count 2 or the total sentence demonstrates any appealable error. It can be accepted that the sentence of 3 years for the aggravated robbery is at the higher end of the sentencing range. However, as the sentencing judge observed, the seriousness of the offence was aggravated by the fact that it was committed with the intention of obtaining stolen goods which could be used in the commission of an even more serious offence. The appellant did not have good antecedents and the only significant mitigating factor was his early plea of guilty. The individual sentence is not manifestly excessive. See Mills v The State of Western Australia [2007] WASCA 118; Damiani v The State of Western Australia [2006] WASCA 47. Moreover, partial cumulation of the individual sentences was open in the circumstances.

35 However, appellate intervention is required because of the breach of the parity principle. The fact that the sentences imposed on Norton are excessively lenient does not require or permit this court to impose an excessively lenient sentence on the appellant in the re-exercise of the sentencing discretion. With that in mind, we would set aside the sentence on count 2 and in lieu thereof impose a sentence of 2 years' imprisonment. We would also set aside the order that counts 1 and 2 be served cumulatively and in lieu therefore order total concurrency. That results in a total effective sentence of 2 years' imprisonment.

36 Before leaving this appeal it is appropriate to make some observations concerning the role of the DPP. Errors in the sentencing of a co-offender can have a broader flow-on effect, as in this case. This is not the first occasion when an excessively lenient sentence on a co-offender has gone unchallenged. A recent instance is MGM v The State of Western Australia [2012] WASCA 24. Counsel for the State informed the court that the DPP is reviewing its procedures to ensure the timely identification by senior prosecutors of sentences that ought to be challenged. That review is welcomed. We assume the review will not be confined to that aspect of the conduct of the Norton case. In these circumstances, it is appropriate to record that this court has observed a recent trend in which facts asserted on behalf of an offender are accepted without challenge by the prosecution. That is occurring even in cases where the facts are mitigatory (so the onus of proving them rests on the offender) and there is no apparent basis for making the concession. Sentencing judges are too often left to raise and deal with objectively implausible mitigating circumstances.

37 There having been a breach of the parity principle in the sentencing of the co-offender, we would grant an extension of time within which to appeal, allow the appeal, set aside the sentence imposed on count 2 and the order for cumulation and in lieu thereof order that the sentence on count 2 be 2 years' imprisonment and that all sentences be served concurrently. That results in a total effective sentence of 2 years' imprisonment backdated to 29 September 2010. The appellant is eligible for parole 12 months thereafter.