Court of Appeal (WA)|2012-08-31|Before: Buss JA

BARRY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 175 (31 August 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARRY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 175

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Demanding money with threats - Criminal Code (WA), s 397(2) - Appellant sentenced to 2 years' immediate imprisonment - Principal offender sentenced to 3 years' immediate imprisonment - Whether sentence of 2 years' imprisonment manifestly excessive - Whether infringed parity principle

Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260

Juma v The State of Western Australia [2011] WASCA 54

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

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

R v Cifuentes [2006] QCA 566

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

Wilson v The State of Western Australia [2010] WASCA 82

2 NEWNES JA: This is an appeal against sentence. The appellant was sentenced in the District Court to 2 years' imprisonment on each of two counts of demanding money with threats of injury or detriment with intent to extort or gain, contrary to s 397(2) of the Criminal Code (WA). The sentences were made concurrent and the appellant was made eligible for parole.

3 The appellant appeals on the grounds, in effect, that the sentence of 2 years' imprisonment on each count was manifestly excessive, or alternatively, that it infringed the parity principle in that there was not a proper relationship between the sentence of 2 years' imprisonment imposed on the appellant and the sentence of 3 years' imprisonment imposed on his co-offender, having regard to the appellant's lesser role in the offending.

4 At the relevant time, the appellant worked as a tattooist at the Lost City Tattoo Shop (Lost City). He had an association with the Rock Machine Motorcycle Club (Rock Machine), whose members were customers at Lost City. One Brent Reker was the 'sergeant at arms' of the Rock Machine.

5 It seems that Reker had been informed that a Luke Santich and an Andrew Clark had been claiming to have a connection with the Rock Machine. On 14 August 2010, at Reker's instigation, the appellant telephoned Santich and asked him whether he had been telling people that he had a connection with the Rock Machine. During the call the appellant also spoke to Clark, who was with Santich, and told Clark that he was trying to sort out who had been using the Rock Machine's name. He also asked Clark to pay for a dent in a car.

6 On 15 August 2010, Santich and Clark went to Lost City to 'clear the air'. They were told by the appellant that it had been sorted out. Later that day the appellant sent a text message to Santich asking him to come to Lost City with Clark. When Santich, his girlfriend and Clark arrived at Lost City they were met by three or four strongly built, tattooed, men including Reker. Reker demanded to know who had been talking about the Rock Machine. It appears that Santich and Clark denied that it was either of them. Reker told Santich and Clark that they were to bash someone called Adrian and to record the assault on video. Adrian was a friend of Santich's and Clark's. Reker told them that if they failed to do so

they had to pay him (Reker) $2,000 or they would be beaten. He said that if they went to the police they would be killed. While Santich and Clark initially contemplated carrying out the bashing of Adrian, they did not do so.

7 A few weeks later Santich began to receive text messages and calls from the appellant's mobile phone. On 18 September 2010, the appellant left a text message for Santich to call him or Reker. The appellant missed a return call from Santich. He then sent the following text message to Santich:

Howdya go? Did you sort the problem with Andrew [sic, Adrian]?

8 On 20 September 2010, the appellant sent the following text message to Santich:

9 On 26 September 2010, the appellant sent the same text message to Santich.

10 Subsequently that day Santich called the appellant who, Santich said, was reassuring and told him not to worry. That call was recorded by police.

11 On 8 October 2010, the appellant sent the following text message to Santich:

12 The appellant subsequently telephoned Santich and asked him, 'What's going on?' Someone else then took the phone from the appellant and demanded in very forceful tones to know where the money was. The person said that Santich either had to meet with 'us' or he would receive a visit at his home.

13 The appellant and Reker were arrested the following day, 9 October 2010.

14 It is apparent from intercepts of telephone calls between the appellant and Reker that, on 18 September 2010, Reker contacted the appellant and asked him to locate Santich and Clark and to press them to pay the $2,000. The transcripts reveal that Reker subsequently contacted the appellant on several occasions to find out what progress the appellant was making and to put pressure on the appellant to pursue the matter more vigorously with Santich and Clark. It is evident that the appellant was not pursuing the matter as assiduously as Reker expected him to do. The intercepts also reveal that Reker told the appellant that he would receive a share of the extorted money.

15 The appellant was charged with two counts of extortion under s 397(2) of the Criminal Code. One count related to Santich and the other to Clark. Reker was charged with the same offences.

16 On 16 September 2011, the appellant and Reker were each convicted after trial in the District Court at Perth on the two counts. On 11 November 2011, the appellant was sentenced by Stone DCJ to a total effective term of 2 years' imprisonment. On 17 February 2012, Reker was sentenced by Stone DCJ to a total effective term of 3 years' imprisonment.

17 The sentencing judge found that the appellant had contacted the victims at Reker's request, being fully aware that he was assisting Reker to extort money with threats of violence. His Honour observed that the forceful and frightening threats of immediate violence used by Reker were backed up by Reker's position in the motorcycle gang. His Honour did not make any finding as to whether or not the appellant was a member of the Rock Machine or a nominee, but found that, through Reker, the appellant had an association with the motorcycle gang. The victims, described by his Honour as two vulnerable and naive young men, had been terrified by the threats, believing that their families would be harmed.

18 His Honour noted that the appellant had not declined to contact the victims and nor had he declined to carry out Reker's instructions. The offending was persistent, occurring over a period of approximately two months, and was a continuing process to extort money by threats of violence. It only stopped due to police involvement when the mother of one of the victims contacted the police after becoming aware of the demand.

19 The sentencing judge accepted that the appellant had played a lesser role in the offending than Reker and that he had tried to reassure the victims that nothing would happen to them. His Honour also accepted that the appellant was persistently pressured by Reker to contact the victims and that he had felt some intimidation in dealing with Reker. His Honour found that, unlike Reker, the appellant had shown remorse.

20 Turning to the appellant's personal circumstances, his Honour noted that the appellant was 28 years old at the time of sentencing. He had been in a relationship for 10 years and had two children aged 6 and 8 years. The appellant was engaged to be married. He had finished school at year 10 and, after a three-year apprenticeship as a tattooist, had worked at Lost City for five years, the last two as manager. The appellant did not have any serious prior convictions. His Honour considered the appellant was at a low risk of re-offending.

21 The sentencing judge concluded that in light of the serious nature of the offending a term of immediate imprisonment was the only appropriate sentence. His Honour imposed a sentence of 2 years' immediate imprisonment on each count, to be served concurrently. The appellant was made eligible for parole.

22 The appellant relied on the following grounds of appeal:

The sentencing judge erred in imposing a sentence of imprisonment which was manifestly excessive.
The sentencing judge erred in law in failing to suspend the sentence.
The sentence imposed on the appellant was excessive and lacked parity having regard to the sentence imposed on his co-offender Reker as:

(a) Reker had a much worse criminal record than the appellant;

(b) Reker was the instigator and primary beneficiary of the enterprise which is the subject of the charges; and

(c) the appellant's sentence of 2 years' immediate imprisonment does not adequately reflect the difference in the respective roles played by the appellant and Reker and in their criminality.

23 On 23 March 2012, Mazza JA gave the appellant leave to appeal on ground 3. Leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.

24 On the hearing of the appeal there was some debate as to whether this ground is properly to be regarded as a contention that the total effective sentence of 2 years' immediate imprisonment infringed the first limb of the totality principle. I do not consider that it is. It is, I think, properly to be regarded as alleging that each sentence of 2 years' imprisonment was manifestly excessive. As the sentences were identical and ordered to be served concurrently, the appellant's complaint is not as to the total effective sentence but as to each sentence.

25 A claim of manifest excess relies upon the implication of error from the sentence itself. The implication arises where, although it is not possible to discover the exact nature of the error, the sentence is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is not, however, sufficient that the appellate court might have imposed a different sentence.

26 When determining whether a sentence is manifestly excessive the court must have regard to the maximum sentence for the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that sort, the standards of sentences customarily observed in respect of the offence, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 341.

27 The gravity with which the offence is viewed by the legislature is reflected in the maximum penalty of 14 years' imprisonment. It is an insidious offence and its very nature means that it will often not come to light. Indeed, it appears that this offending would never have come to light had not the mother of one of the victims learned of it and contacted police. It is an offence where deterrence, both general and personal, is of particular importance. As EM Heenan AJA observed in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, 'generally speaking, a sentence of immediate imprisonment will be imposed in cases involving threats or extortion even if involving offenders who have little or no previous record of offending' [85].

28 The appellant's offending was undoubtedly serious. While the appellant had felt somewhat intimidated in dealing with Reker and acted only at Reker's behest, the appellant had not sought to avoid becoming involved and had participated without resistance over a sustained period of time. It was the appellant who possessed the contact details for the victims and who utilised those contact details, over a period of some weeks, to attempt to extract payment from them. He did so fully aware that Reker had made threats of violence which were causing the victims great anxiety. At no stage did the appellant attempt to put an end to his involvement. While the appellant's communications to the victims were not in themselves threatening, they were sent in the knowledge that the demand for the money was backed by very plausible threats of violence. The implication of the references in the text messages to the appellant's 'mate' being 'not happy' was obvious.

29 There are few reported cases involving offences of this kind and the only case to which the appellant referred in support of this ground of appeal was Amoore. In that case, the respondents had on several different occasions over a period of some 10 days threatened the complainant with violence unless he repaid a sum of money they (unjustifiably) believed he owed them. The respondents obtained part of the money by those threats before being arrested. The respondents were charged with three charges of robbery in company and two charges of extortion. It was accepted that all of the offences arose out of a single course of conduct. One respondent, who was 37 years old, had a criminal record but had not previously been imprisoned. The other respondent was 46 years old and had a criminal record but he had not offended in any serious way for a long time. Both pleaded guilty and were sentenced to 18 months' imprisonment on each count, to be served concurrently, with eligibility for parole. A State appeal against sentence was dismissed. While Steytler P ([11] - [12]) and Pullin JA ([43]) considered the sentences were 'lenient', the court concluded there was not a sufficient basis to set them aside on a State appeal given the special considerations which then applied to a State appeal. In his reasons, Pullin JA reviewed the reported cases in this State involving offences of this kind and, in addition, R v Cifuentes [2006] QCA 566 and the cases considered there. His Honour concluded that the usual pre-transitional sentence range was 3 to 6 years' imprisonment, which equates to a post-transitional range of 2 to 4 years' imprisonment.

30 I do not think that Amoore assists the appellant. The circumstances of that case were quite different to the present case and there the offenders had the benefit of the mitigation afforded by pleas of guilty. The sentence of 18 months was, as I have said, described as 'lenient'. Nor do the other cases considered in Amoore assist the appellant.

31 The mitigating factors were canvassed by the sentencing judge. His Honour referred to the lesser role played by the appellant, his lack of any serious prior convictions, and his remorse. In the appellant's written submissions on the appeal, it was contended that a further mitigating factor was the exceptional financial and emotional hardship the appellant's family would suffer as a result of the appellant's imprisonment. Reference was made to what was described as the severe psychological strain his fiancée and two children are suffering as his fiancée struggles to be the primary caregiver and income earner, and to an amount of $10,000 lost when their wedding had to be cancelled because the appellant was in custody.

32 There is no merit in that contention. Hardship and stress upon an offender's family is an almost inevitable consequence of a term of imprisonment and consequences such as serious financial difficulty are not uncommon. An appellant must demonstrate a degree of hardship which is quite out of the ordinary before it can substantially mitigate the court's sentencing disposition and the more serious the offence, the less capacity the court has to have regard to hardship to an offender's family: Hodder v The Queen (1995) 15 WAR 264, 286 - 287; (1995) 81 A Crim R 88; Juma v The State of Western Australia [2011] WASCA 54 [46] - [47]. In this case, the hardship was not out of the ordinary and the appellant's offending was serious.

33 The sentence imposed on the appellant in the present case was within a sound exercise of the sentencing discretion. This ground should be dismissed.

34 This ground is entirely without merit and, indeed, on the hearing of the appeal I did not understand counsel to press it. The sentencing judge expressly considered a suspended sentence but concluded that in view of the seriousness of the offending a term of immediate imprisonment was the only appropriate sentence (ts 522 - 524). That was plainly the case. This ground should be dismissed.

35 The appellant submitted, in effect, that the sentence of 2 years' imprisonment infringed the parity principle in that there was insufficient disparity between that sentence and the sentence of 3 years' imprisonment imposed on his co-offender, Reker, having regard to the appellant's lesser role in the offending.

36 The parity principle requires that there be a proper relationship between the sentences imposed on co-offenders involved in an offence. It was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 as follows:

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).

37 Before an appellate court can intervene, any disparity or lack of disparity must give rise to an objectively justifiable sense of grievance or an appearance that justice has not been done; the fact that an appellant feels a sense of grievance is not determinative: Lowe (610); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301, 338. In order to determine whether there is a proper relationship between the sentences imposed on co-offenders it is necessary to have regard to the circumstances of the co-offenders and the part each played in the relevant criminal conduct: Postiglione (302); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].

38 The appellant clearly played a lesser role in the offending than Reker, as the primary judge found. It is evident that Reker was the instigator of, and the driving force behind, the offending and that the appellant felt somewhat intimidated by Reker. Nevertheless, the appellant's role was significant. After the threats and demand were made on 15 August 2010, Reker did not have any further contact with the victims. He left it to the appellant to follow up payment of the money. As I have said, while the appellant did not act as assiduously as Reker wanted, at no stage did the appellant evince any resistance to acting in that role and nor did the appellant ever seek to extricate himself from his involvement. The intercepts of the various telephone conversations between Reker and the appellant reveal the appellant agreeing on several occasions, without any expressed reluctance or misgivings, to continue to pursue the payment of the money on Reker's behalf. Although the appellant's preparedness to do so may be explained in part by a sense of intimidation, that is by no means a complete explanation.

39 It is the case that the appellant's communications with the victims did not themselves contain any overt threats, but as I observed earlier, they were made against the background of the threats of violence which had previously been made by Reker and the implication of the text messages

of 20 and 26 September 2010 ('Where's that money? My mate's not happy'), in particular, was obvious. In the circumstances, the lack of any overt threat by the appellant does not substantially detract from the significance of his contribution to the offending.

40 There was little difference between the two offenders in terms of their antecedents and personal circumstances. Both were of similar age and both were in relationships and supporting children. Both had reasonable employment histories and supportive character references. While Reker had a more serious record of offending, neither had previously served a term of imprisonment.

41 There was, however, one significant factor peculiar to Reker which bore upon his sentence. In sentencing Reker, the sentencing judge took into account that Reker would be a protected prisoner and consequently was 'likely to do hard time in prison' (ts 561). That was a matter the sentencing judge was clearly entitled to take into account: York v The Queen [2005] HCA 60; (2005) 225 CLR 466 [38]; Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260; The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229. There was no such consideration present in the appellant's case.

42 Having regard to all of the circumstances, I am not persuaded that the disparity between the appellant's total effective sentence of 2 years and Reker's total effective sentence of 3 years is capable of giving rise to an objectively justifiable sense of grievance on the appellant's part. In my opinion, this ground has not been made out.

43 In my view, none of the grounds of appeal have been made out. I would refuse leave to appeal on grounds 1 and 2 and would dismiss ground 3.

44 MAZZA JA: I am grateful to Newnes JA for his reasons for decision in this appeal, which I have read in draft. I would decide this appeal differently. I would uphold ground 3 and re-sentence the appellant on each count to 14 months' imprisonment to be served concurrently, so that the total effective sentence to be served is 14 months' immediate

imprisonment, backdated to commence on the date of conviction, 16 September 2011. The appellant should remain eligible for parole.

45 Newnes JA has set out the grounds of appeal and has referred to the factual background of the case and to his Honour's sentencing remarks. I will not repeat what he has written.

(a) Reker played the leading role in the offending: AB 71.

(b) Reker persistently pressured the appellant to contact the complainants: AB 72.

(d) The appellant tried to reassure the complainants that no harm would come to them: AB 72.

(e) It was not the appellant's intention to harm the victims.

(f) In contrast to Reker, the appellant was remorseful for what he had done.

47 It is plain that it was Reker, who, at the meeting on 15 August 2010 (which the appellant did not attend), made the demand that the complainants were either to assault Adrian or pay $2,000, failing which they would be beaten. It was that demand and the threats which accompanied it that intimidated the complainants and made them fearful.

48 By contrast, neither complainant expressed any degree of intimidation and fear as a result of the appellant's conduct.

49 In examination-in-chief, Mr Santich said that the appellant's text messages contained 'nothing aggressive': ts 39. He went on to say:

I never spoke, like I don't - I don't think the money ever came up with Kyle. I think Kyle was just, like, you know, asking for his mate, 'What's going on?' and I think one message might have said something like, 'Have you and Andrew sorted your shit out for your - for my mate?' Like Kyle never threatened me or never asked for anything specific ... : ts 41.

50 In cross-examination, Mr Santich acknowledged that between meeting him and the time the appellant was arrested, the appellant had never threatened him. He testified that he still considered the appellant to be a good friend: ts 117.

51 In the same vein, Mr Clark said, in examination-in-chief, that when he spoke to the appellant 'he [the appellant] wasn't threatening or nothing': ts 149.

52 His Honour said that, in his view, there was 'a considerable difference' in the roles played by the appellant and Reker (AB 73), and that the appellant's role was 'considerably less than that of his co-offender': AB 74. In argument before the court, the respondent accepted that the appellant's culpability was markedly different to Reker: appeal ts 18.

53 The only point of distinction between the offenders which was favourable to Reker was that his time in custody would be spent as a protected prisoner.

54 The appellant's primary submission was that, having regard to the appellant's considerably lesser culpability when compared to Reker, there was insufficient disparity in their respective sentences. The appellant submitted that the difference in the sentences should have been greater and, unless this court intervenes, the appellant will be objectively left with a justifiable sense of grievance.

55 The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).

56 Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ).

57 What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents: MGM v The State of Western Australia [2012] WASCA 24 [43] (Mazza JA, McLure P & Buss JA agreeing).

58 There is no relevant difference between the appellant and Reker's antecedents.

59 There is clearly a difference between the culpabilities of the two offenders. Although the appellant acted at the behest of Reker, he did so partly because he was intimidated by his co-offender. The appellant himself did not make any demands or threaten the complainants, and tried to reassure them that the matter could be sorted out without any harm coming to them. The appellant was not a party to the meeting between the appellant and the complainants at the rear of the tattoo shop. It is evident from the intercepted communications between Reker and the appellant that the appellant was somewhat reluctant to perform the task Reker had assigned to him, and it can be fairly said that the appellant was indifferent about whether he received any financial reward for his actions.

60 In my opinion, the appellant's culpability was very much less than Reker's and, even taking into account that Reker will spend his time in custody as a protected prisoner, a disparity of 1 year's imprisonment between the offenders was insufficient and gives rise to an objectively justifiable sense of grievance on the part of the appellant.

62 Having upheld ground 3, it is not necessary to consider grounds 1 and 2. The question for this court is what sentence should now be imposed upon the appellant?

63 The maximum penalty for the offence is 14 years' imprisonment.

64 Although the appellant's culpability was less than Reker's, it remained significant. The appellant clearly knew who Reker was, and his affiliation with the Rock Machine Motorcycle Club. He also knew, first hand, how intimidating Reker could be. Further, the appellant knew what Reker wanted the complainants to do, including the possibility that they would be required to assault their friend Adrian. The appellant must have appreciated the youthfulness of the complainants. Knowing these things, the appellant assisted Reker by communicating with the complainants and encouraging them, albeit without threats or aggression and in a way designed to assuage their fears, to comply with Reker's demands.

65 Offences of this type are difficult to detect, often because victims are too intimidated to come forward because of the threats that are made. It is an offence where deterrence (both personal and general) is an important sentencing consideration and will frequently result in the imposition of an immediate term of imprisonment.

66 The appellant went to trial and cannot rely on the mitigating force of a plea of guilty. That said, his personal circumstances were favourable and his risk of reoffending was assessed by the learned sentencing judge as low: AB 74. In all of the circumstances, bearing in mind the parity principle, I would impose a term of imprisonment of 14 months on each charge. I would, as the learned sentencing judge did, order that the sentences be served concurrently.

67 The issue then to be considered is whether the term of imprisonment should be suspended. Having considered again all relevant factors, including those personal to the appellant, suspension would be inappropriate, having regard to, primarily, the need for general deterrence.

68 In my view, a sentence of 14 months' immediate imprisonment on each count is commensurate with the seriousness of the offence and conforms with the parity principle.

The appeal is allowed.
The sentences imposed by Stone DCJ on 11 November 2011 are set aside.
In lieu thereof, the appellant is sentenced on each count to 14 months' immediate imprisonment to be served concurrently.
The new sentences are to be taken to have taken effect on 16 September 2011.
The appellant remains eligible for parole.

Green v The Queen

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BARRY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 175 (31 August 2012)

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