Sentence of 12 months cumulative reduced to sentence of 4 months concurrent

Hayden v The Queen [2003] WASCA 210

Jarvis v The Queen (1993) 20 WAR 201

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

1 MCKECHNIE J: On 20 September 2004 the appellant pleaded guilty in the Court of Petty Sessions at Bunbury to one count of receiving items of stolen property to a value totalling $5000. None of the property was recovered. He was sentenced to a term of 12 months' imprisonment cumulative on a sentence of imprisonment he was then serving. A parole eligibility order was made.

2 Andrew Bryan Shenton, who had committed the burglary resulting in the goods being received by the appellant, was sentenced by a different Magistrate to a term of 12 months' imprisonment with a parole eligibility order one week later.

3 The appellant appeals against the sentence on three grounds which may be summarised as follows:

• First, there was a sentencing disparity which left the appellant with a justifiable sense of grievance.

• Second, the order for accumulation of sentences resulted in a sentence which was manifestly excessive.

• Third, the Magistrate erred in the application of the transitional provisions of the Sentencing Act 1995 (WA) by discounting the maximum penalty available by one-third rather than the actual sentence.

The criminality disclosed by the burglary committed by Shenton was outlined by the prosecutor and admitted by his counsel as follows:

"It was the early afternoon of Saturday, 7 August 2004, the defendant attended at the complainant's address in Beach Road, Bunbury. He has attempted to gain entry by smashing a laundry window without success and then gained entry by smashing a dining room window and climbing through. Once inside he has stolen a quantity of property from various locations within the house ... total value approximately $5000.

These items were placed into two large duffel bags that were also stolen from the home and carried by the defendant [Shenton] to a vacant area at the rear of the premises. He later returned with an associate [the appellant] in his vehicle and retrieved them."

4 The criminality in relation to the appellant, as described by the prosecution, was that on the afternoon of 7 August 2004 he met with Shenton and two bags of stolen property were put into his car. The property was taken to an address in Withers. The appellant's account, which was accepted by the Magistrate, was that he removed the property from Withers, as he did not want the owner of the house to be implicated, and threw it away in the bush.

5 It must be noted that the appellant did not co-operate with the police in telling them where the property was. In the course of the hearing, when the Magistrate asked counsel whether the appellant gave the police sufficient information to recover the property, the appellant interjected: "That's up to them. Well, that's up to them to sort out." In my opinion the Magistrate was right to conclude:

"That co-operation, even today, is not forthcoming, and still the property remains unrecovered and clearly, as I've indicated, the owner of the property is still without the benefit of it, and has suffered the loss.

It was clearly a matter that was in your power to do, to further the co-operation, given the proximity of the inquiry to the offence of receiving. You declined to do so and, as I say, continue to do so. In my respectful view, to obtain the benefit of a concurrent sentence, your cooperation needs in the circumstances to be uncompromised; absolute."

6 I will return later to the last sentence I have just quoted, but the balance of the paragraph is undoubtedly right. The need to consider the principle of equal justice is authoritatively set out in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. It has been discussed in many cases in this and other States but it is unnecessary to refer to the authorities because the respondent acknowledges that the sentence imposed by the Magistrate did give rise to a sentencing disparity in relation to the sentence imposed on Shenton.

7 I regard this concession as appropriately made. However, I should emphasise that a conclusion that a disparity has arisen, sufficient to justify interference by this Court, does not mean that the Magistrate made an error. As I have outlined, Shenton was sentenced later. The disparity arose then and the interests of justice require that disparity to be corrected.

8 By itself a sentence of 12 months' imprisonment for receiving in circumstances where the appellant declined to give material assistance for the recovery of the property may have been justified. However, I do not decide this appeal on that ground, because it is clear that, having regard to the roles of Shenton and the appellant and the overall criminal conduct, a different sentence for each is inappropriate and requires correction.

9 I therefore set aside the sentence of 12 months' imprisonment and, having regard to the transitional provisions of the Sentencing Act, and the reduction required, sentence the appellant to a term of 4 months' imprisonment.

10 I now turn to the question whether the sentence imposed ought to have been cumulative. The Magistrate considered that cooperation was required before a concurrent sentence could be imposed. At the time of sentence the appellant was serving an aggregate sentence of 8 years' imprisonment imposed in the District Court on 9 March 2001.

11 Although the appellant had been on parole both his conduct while on parole and of course this conviction resulted in the parole order being cancelled. As a result the release date on the unexpired portion of this sentence is 2 February 2008. Although the criminal conduct involved in this offence was entirely separate from the other conduct nevertheless the Magistrate was required to take into account the effect of the obligation to serve the outstanding parole days: see Hayden v The Queen [2003] WASCA 210.

12 It appears to me, with respect, that the Magistrate overlooked the need to have a last look at the totality of the sentence in conjunction with the sentence to be served: see Jarvis v The Queen (1993) 20 WAR 201. The cooperation to which the Magistrate referred was certainly an aspect of consideration but there were other considerations, including the need to consider that the total sentence to be served must be proportionate to the entire criminal conduct. It is not always a complete answer to say that the criminal conduct was comprised of discrete elements.

13 In this case I consider that the sentencing discretion miscarried on this account and that the appropriate order is that the sentence of 4 months' imprisonment which I have imposed be served concurrently with any term of imprisonment now being served.

Reduction of one-third of the maximum sentence

14 As to the third ground of appeal, added by leave this morning, the Magistrate said:

"... The question for the Court is to the extent of that period - [meaning the sentence:] ... as I have indicated, it is a serious offence, certainly at the upper end of the scale, to be dealt with the matters summarily the Court's obliged to have regard to the transition (sic) provisions of the Sentencing Act, which, in all the circumstances in reality provides a maximum penalty of 16 months, given some benefit for your plea of guilty at the first opportunity and the limited co-operation, I'll depreciate that by, in the circumstances, 4 months, and you're sentenced to 12 months' imprisonment..."

15 If the Magistrate considered that the transitional provisions of the Sentencing Act reduce the maximum penalty, while that is correct, it is an irrelevant consideration in setting the penalty. The correct process is to decide an appropriate sentence and then reduce that by one-third.

16 However, the words which I have just quoted are ambiguous and it may well be that the Magistrate, who is an experienced Magistrate and has had experience with the transitional provisions, was simply indicating that he regarded the penalty for the offence as approaching one of 2 years and reduced it to 16 months. Because of the ambiguity I am not prepared to uphold that ground of appeal, but that decision makes no difference to the end.

17 The orders that I make are: The appeal be allowed, the sentence of 12 months' imprisonment cumulative, with parole eligibility, be set aside and in lieu thereof the appellant is sentenced to a term of 4 months' imprisonment to be served concurrently with any term of imprisonment now being served.