Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Parity principle - Turns on own facts

Cockram v The State of Western Australia [2010] WASC 211

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

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

1 MARTIN CJ: This appeal should be dismissed for the reasons given by McLure P, with which I agree.

2 McLURE P: This is an appeal against sentence. The appellant was convicted on his own plea of guilty of murdering Timothy Everington (the deceased) contrary to s 279 of the Criminal Code (WA). He was sentenced to life imprisonment with a non-parole period of 22 years.

3 The facts are as follows. On the night of Saturday 2 May 2009, the appellant and his co-accused, Raymond John Green, who were best friends, were at a house in Coodanup where the appellant's girlfriend resided with her 6-year-old son.

4 The deceased called at the Coodanup house that night because he was friends with another woman who lived there. Shortly after his arrival, the appellant and Green left the house and went into Mandurah.

5 The appellant and Green returned to the house at about 5.00 am on Sunday morning. The appellant claimed to have discovered the deceased in his girlfriend's bedroom sexually molesting her son. However, he did not say or do anything about this other than to ask Green to go for a short drive with him in his car.

6 The appellant and Green gave different versions of what happened in the car. According to the appellant, he told Green that he had seen the deceased molesting his girlfriend's son and no more. According to Green, the appellant also told him that the deceased had attempted to rape his girlfriend. Both men agreed that a decision was made to give the deceased a beating and both men denied that there was any discussion about using a knife or doing the deceased any further harm.

7 The appellant and Green returned to the house in Coodanup and asked the deceased to give them a ride in his car. They persuaded him to do this on the pretext that they had arranged to buy some amphetamines and that, if he took them to their dealer, they would reward him with a portion of the drugs.

8 The appellant brought with him into the car a bag containing a knife which he always carried with him. He handed the bag to Green, who was sitting in the back seat. The appellant gave the deceased directions to a remote location near a boat ramp on the Serpentine River. When they reached their destination, the appellant got out of the vehicle and pretended to make a mobile telephone call to the fictitious drug dealer.

9 The appellant and Green gave different accounts of what happened next. According to the appellant, Green used the knife first by leaning over from the back seat and stabbing the deceased in the chest. Green, on the other hand, claimed that he had handed the bag back to the appellant who removed the knife and stabbed the deceased twice in the chest. The deceased got out of the vehicle and attempted to flee but did not get very far. He received 11 stab wounds. The wounds were inflicted by two different knifes. At least nine of the stab wounds were caused by the appellant's knife. The remaining one or two were caused by a fishing knife which the deceased had in his car. The fishing knife had a hook on the end of the blade.

10 The appellant admitted that he had used the fishing knife to inflict a single stab wound to the deceased's head. The knife entered the deceased's head above the left eyebrow, fractured his skull and penetrated his brain. The appellant denied inflicting any of the other 10 stab wounds.

11 Green admitted to stabbing the deceased twice. He claimed that, at an early stage, he took the appellant's knife from him and washed it in the river. When he returned, he saw the deceased on his knees with a fishing knife lodged in his head. The appellant was shouting that he could not pull the knife out of the deceased's head. Green admitted using the appellant's knife to stab the deceased twice in the back. The knife entered the deceased's liver on both occasions and caused life-threatening injuries. Green claimed he was acting in self-defence.

12 The expert evidence established that there were two fatal stab wounds, one to the deceased's chest and one to the left-hand side of his neck. Both the appellant and Green denied inflicting the fatal wounds.

13 Green, who pleaded not guilty, was sentenced to life imprisonment with a non-parole period of 23 years.

14 Shortly prior to trial the appellant objected to the admissibility of unrecorded admissions made by him. After a voir dire which took four days the trial judge ruled the evidence inadmissible (subject to a limited exception): Cockram v The State of Western Australia [2010] WASC 211 [58]. However, on the morning of the first day of trial, the appellant pleaded guilty to the charge. His sentencing was adjourned until 29 October 2010 at which time a trial of issues took place. The appellant and his sister gave evidence relating to the disputed issue of whether the appellant saw the deceased indecently dealing with his girlfriend's 6-year-old son before killing the deceased. On that subject, the sentencing judge said:

I am not satisfied that you, Cockram, saw Mr Everington sexually molesting the six-year-old boy.

In this regard there is an inconsistency between your failure to confront Mr Everington at the time of the alleged molestation and your evidence that you're a father figure to the six-year-old boy. Although you have given an explanation for that failure [he claimed to have blacked out] I do not find it to be credible. Furthermore, the mother of the boy testified at trial that there was no untoward incident involving her or her son in the course of that night.

An allegation of sexual molestation is an easy one to make and the victim is not here to refute it. You are the only witness to the alleged molestation. I consider your evidence to be unreliable (ts 899).

15 The appellant relies on two grounds of appeal. First, he claims that his non-parole period of 22 years infringes the parity principle. Leave to appeal was granted on this ground. Secondly, he claims the sentencing judge erred in failing to be satisfied that the appellant witnessed the deceased sexually assault his girlfriend's son. Leave on this ground was referred to the hearing of the appeal.

16 The appellant and Green were sentenced together by Blaxell J who had presided over both the voir dire and the trial of Green. The sentencing judge concluded that neither of the co-offenders were a credible witness, each having given a self-serving version of events. Accordingly, he was unable to make any specific findings as to which of them inflicted any particular stab wounds beyond those to which they each admitted.

17 We are here concerned with whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon the co-offenders (as to which see Jardim v The State of Western Australia [2011] WASCA 83 [12]). As I said in Jardim, the purpose of the parity principle is to ensure an appropriate level of consistency in the sentencing of persons who participate in the commission of an offence. The 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).

18 The question is whether disparity, or lack of disparity, in sentence is capable of giving rise to a justifiable sense of grievance: Lowe (610).

19 The sentencing judge found that the appellant and Green were equally culpable for what was essentially the deliberate slaughter of the deceased. He also found that each had shown little by way of genuine remorse for what had occurred. Moreover, there were no material differences in their antecedents. The sentencing judge captured the essence of the appellant's antecedents as follows:

You, Cockram, are 35 years of age, single and unemployed. You have a significant past record of offending commencing when you were 16 years of age. Apart from burglaries, stealing and possession of illicit substances you have previous convictions for a number of violent offences including two assaults occasioning bodily harm and one armed robbery. You were first imprisoned at 20 years of age and since the[n] you have offended on a consistent and regular basis whenever you have been released into the community.

You also have a history of extensive substance abuse involving alcohol, cannabis, heroin, morphine and amphetamines. In this regard it is relevant to note that at the time of the present offence you claim to have had an amphetamine habit which was costing you $250 per day. The psychological assessment I have received indicates that you are accustomed to using aggression and violence as a way to express and manage your negative emotions. You display limited empathy, have little regard for the safety and rights of others and tend not to consider the consequences of your actions.

A psychiatrist has similarly described you as having issues of impulsivity, emotional instability, aggressiveness and irresponsibility. You are assessed of being at high risk of violent reoffending (ts 900).

20 Green was aged 39 at the time of sentencing, divorced with two children and unemployed. He also had a significant record of prior offending, including for a number of violent offences. In 1995 he was sentenced to 5 years 9 months' imprisonment for causing grievous bodily harm. Without provocation he suddenly stabbed a stranger who was walking past him on a footpath, causing a very serious injury. The psychological report notes that Green is desensitised to violence, tends to externalise the blame for his offending, lacks victim empathy and avoids

taking personal responsibility for his violent acts of revenge and retribution.

21 The only material difference in sentencing factors is the appellant's plea of guilty. However, that plea was very late and followed a lengthy voir dire relating to the admissibility of evidence. Moreover, there was a trial of issues for the purpose of sentencing the appellant on which he failed. This is consistent with the sentencing judge's conclusion that the appellant had shown little by way of genuine remorse. Against that background it cannot be said that the appellant's very late plea of guilty required greater disparity between his non-parole period and that of his co-offender Green. I would dismiss ground 1.

22 This ground is devoid of merit. The failure of the sentencing judge to be satisfied that the appellant witnessed the deceased sexually assault his girlfriend's son depended largely on an assessment of the appellant's credibility. An appellate court has a very limited role in circumstances where there is a credibility assessment based on seeing and hearing relevant witnesses. There is no reasonable ground on which to challenge the failure of the trial judge to accept the appellant's evidence relating to the alleged sexual assault. Leave to appeal on this ground should be refused.