GARLETT-EXELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 179 | Case summary

Court of Appeal (WA)|2020-10-29|Before: Buss P

The application of the totality principle complicates an assessment of the question of parity in the present case. Each of the offenders was serving a different sentence at the time of the riot, and those pre-existing sentences had to be taken into account in the application of the totality principle. The different individual sentences for the rioters causing damage offence are in large part explained by the application of the totality principle. For example, Mr Winmar's sentence was to be served cumulatively upon his pre-existing total effective sentence of 11 years' imprisonment, which would be expected to (and did) reduce the sentence which would otherwise be imposed for the rioters causing damage offence.
In addition, the appellant was, on the sentencing judge's unchallenged findings, the instigator of the riot. While findings as to the roles of the other offenders varied, none of them were found to be the instigator of the offending. The appellant also made demands of and threatened violence towards prison officers, including by throwing items at them. He was also the person responsible for jamming the lock on the security grille. The overall criminality of the appellant's offending was also significantly aggravated by his threats to kill two other inmates at the prison during the course of the riot.
Further, all of the other offenders, apart from Mr Penny, received a 25% discount under s 9AA of the Sentencing Act. Mr Penny received a discount of 20%. By contrast, the appellant, who entered a very late plea of guilty, received only a 6% discount for count 1.
In our view, the differences in the sentences imposed on the appellant for count 1 and the sentences imposed on his co-offenders for the same offence are explicable by the finding that the appellant was the instigator of the riot and his greater role in the riot, the different stages at which the appellant and his co-offenders pleaded guilty, and the application of the totality principle having regard to the pre-existing sentences of the offenders (particularly as to the sentences of 6 months imposed on Mr Winmar and Mr Williams).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.

An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.

In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ said:

(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].

Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].

It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.

(Some citations omitted)

GARLETT-EXELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 179 (29 October 2020)

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