Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Parity - Totality principle - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

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

Jarvis v The Queen (1993) 20 WAR 201

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

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v White [2002] WASCA 112

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Woods v The Queen (1994) 14 WAR 341

Brown (1982) 5 A Crim R 404

Capper (1993) 69 A Crim R 64

Dickens [2004] WASCA 179; (2004) 147 A Crim R 343

Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998

Hollingsworth v The Queen [2004] WASCA 73

Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401

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

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997

Puls v The Queen [2000] WASCA 11

1 ROBERTS-SMITH JA: I have read the draft reasons of McLure JA in this matter. I agree with her Honour's reasons and have nothing to add.

2 McLURE JA: The appellant was found guilty after trial of one count of deprivation of liberty and three counts of aggravated armed robbery. On 2 September 2005 he was sentenced by Jenkins J to a total effective sentence of 8 years' imprisonment which was made partly concurrent with a sentence the appellant was then serving for prior offences. The appellant appeals against his sentence.

3 The sentencing Judge found the facts to be as follows. At about 3.30 am on Friday 30 January 2004, the appellant was driving a motor vehicle along Leach Highway in Brentwood in the company of other males. The appellant deliberately drove his vehicle into the rear of a vehicle being driven by the first complainant, Ms Almeida. Ms Almeida was 21 years old and travelling alone. The appellant and his co-offender, Dhaqane Alim, got out of the vehicle and as they were talking to Ms Almeida, the vehicle the appellant had been driving was driven away leaving Ms Almeida alone with the appellant and Alim. The appellant then produced a knife with which he threatened Ms Almeida and told her to get in the front passenger seat of her car. She was crying and asked the appellant to take her vehicle but leave her behind. The appellant instructed her to get into the front passenger seat of her car, which she did. Alim sat in the rear of the vehicle and the appellant got into the driver's seat.

4 The appellant then drove the vehicle onto the Mitchell Freeway heading north. He drove it recklessly, at times reaching speeds of up to 150 km per hour. At one point the appellant demanded that Ms Almeida take control of the steering wheel whilst he continued to drive at high speed. The appellant was heavily intoxicated and was drinking spirits whilst driving. The appellant deliberately drove his vehicle into another moving vehicle which drove off. At one point, Alim held something to Ms Almeida's back, which she believed was a knife.

5 The appellant then drove to a nearby shopping centre and demanded that Ms Almeida withdraw money from an automatic teller machine (ATM) and give it to him, stating he would shoot her if she did not or if she tried to run away. Ms Almeida told the appellant that she did not have any money in her account. No money was taken from the ATM but the appellant took $20 cash from her wallet.

6 Both returned to the vehicle and the appellant continued to drive. Alim was still in the vehicle. The appellant again deliberately drove the vehicle into the rear of a moving vehicle which was driven by the second complainant, Mr Carson. Mr Carson was aged 61. Mr Carson got out of his vehicle and approached Ms Almeida's vehicle. The appellant and Alim ran to Mr Carson's vehicle with the appellant getting into the driver's seat. Mr Carson ran back and opened the driver's door to his vehicle. The appellant then got out and held the knife to Mr Carson's stomach, demanding that he hand over the car keys or he would be stabbed. Alim had his hands in the pockets of his trousers, indicating that he held a gun. Mr Carson gave his keys to the appellant.

7 The appellant then demanded that Mr Carson hand over his wallet. At this point, Alim struck Mr Carson to his head causing his head to jolt forward and hit something creating a bleeding wound near his left eye. Mr Carson handed over his wallet and the appellant demanded the PIN number to Mr Carson's credit card, threatening him with the knife. Mr Carson gave the appellant the correct PIN number. At this point Alim pretended to speak to someone on his mobile phone and then said it was not the correct PIN number. The appellant placed the knife to Mr Carson's stomach again and demanded the correct PIN number. Mr Carson insisted that he had already given the correct number.

8 The appellant demanded that Mr Carson get into his car and drive. Mr Carson placed his key in the ignition and instructed the appellant on how to put his vehicle into gear but did not get inside the vehicle. The appellant and Alim drove off in Mr Carson's car.

Count 2 (aggravated armed robbery of Ms Almeida's car):

Count 3 (aggravated armed robbery of money from Ms Almeida):

Count 4 (aggravated armed robbery of Mr Carson's vehicle):

10 The sentencing Judge ordered that the sentences on counts 1 and 3 be served concurrently with each other and with the sentences on counts 2 and 4. The sentence on count 4 was ordered to commence three years after the commencement of the sentence to be served for count 2. Thus, the sentencing Judge imposed a total sentence of 8 years' imprisonment.

11 At the time of sentencing the appellant was serving a total term of 7 years' imprisonment for three counts of armed robbery, two of which were car jackings. The earliest eligibility date for parole for that sentence was 25 September 2008. Jenkins J ordered that the total sentence of 8 years' imprisonment commence on 9 August 2006, thereby making that term partly concurrent with the earlier sentence then being served.

12 The appellant was given leave to appeal on three grounds being in substance that:

1. the sentence of 4 years and 6 months' imprisonment for the count of deprivation of liberty offended the parity principle;

2. the total sentence of 8 years was manifestly excessive because it offended the totality principle;

3. the total sentence of 8 years offended the totality principle because it was crushing.

13 As a result of Alim's involvement in the episode to which I have referred, he was charged with one count of deprivation of liberty and two counts of aggravated armed robbery. He was not charged with the armed robbery of money from Ms Almeida. Alim pleaded guilty on the fast track system. He was sentenced by Le Miere J on 30 September 2004 to a total sentence of 4 years' imprisonment as follows:

14 Alim was 19 years old when sentenced. He had a tragic childhood in Somalia, being forced to join a guerrilla army after being kidnapped when he was seven. He was held captive in the army for six years.

15 Alim had a criminal record dating back to 2001 when as a juvenile he committed a number of nuisance type offences. In 2003 whilst still a juvenile he committed the offences of common assault and deprivation of liberty and received a 9 month intensive supervision order. There were further nuisance type offences and in October 2003 he committed common assault. In February 2004 he was sentenced to imprisonment for 1 year for armed robbery.

16 Alim was sentenced on the basis that he played a less active role in the offences than the appellant and he received a substantial reduction in sentence as a result of his fast track plea of guilty.

17 The appellant was born on 2 February 1984 and was 19 years old when he committed the offences in question. The appellant also grew up in war-torn Somalia and his childhood was marred by violence, instability, poverty, lack of education and a negative peer group. He spent seven years in a refugee camp in Kenya. He arrived in Australia when he was 14 and commenced offending very soon thereafter. Notwithstanding his youth, he has a long record of convictions which include serious offences such as attempted aggravated armed robbery in 1999 and 2000, burglary and assault occasioning bodily harm. In May 2004, he was convicted of three armed robberies in company committed in October 2002, two of which were car jackings. The appellant was on home detention bail for the three offences of armed robbery in company when he committed the present offences.

18 The sentencing Judge had regard to the parity principle. She found that:

(a) the appellant's personal circumstances were roughly similar to those of Alim;

(b) the appellant's prior criminal record showed a greater need for a deterrent sentence to be imposed upon the appellant;

(c) the appellant played a greater role in that he threatened the two complainants with a knife and drove both vehicles;

(d) the appellant was the leader in respect of the commission of the offences; and

(e) Alim received a significant discount for his early plea of guilty to which the appellant was not entitled.

19 The law relating to parity was recently considered by this Court in "I" (A Child) v The State of Western Australia [2006] WASCA 9. Steytler P said (at [65] - [66]):

"The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617 - 618, per Brennan J, and Postiglione, ibid. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: R v Cox (1996) 66 SASR 152, per Doyle CJ, and Postiglione, at 301, per Dawson and Gaudron JJ. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance.

In considering the application of the parity principle, sight should not be lost of the community interest in seeing offenders appropriately punished. The imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. While parity might require a sentencing Judge to be more lenient than he or she might otherwise have been, it does not require a sentencing Judge to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence."

20 The appellant does not contend he should have received the same sentence as Alim. His complaint is that the factors which justify different treatment cannot justify a disparity of 3 years and 6 months (which converts to a disparity of 5 years and 3 months under the sentencing regime before the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)).

21 The 3-year 6-month difference in the sentences for deprivation of liberty cannot be attributable to the reasonable consequence of the different factors correctly identified by the sentencing Judge as impacting on culpability and sentence. Those factors justify a disparity of no greater than 21/2 years. The difference in the sentences would give rise to a justifiable sense of grievance provided the sentence imposed on Alim is not itself excessively lenient.

22 On any view, Alim's sentence of 1 year for unlawful detention was very lenient. The maximum penalty for deprivation of liberty is 10 years. The circumstances of the offence are towards the upper end of the scale of seriousness of offences of that type. I am satisfied that Alim's sentence of 1 year for such a serious example of an offence of this type is excessively lenient particularly when regard is had to his prior record of offending. If that sentence was within the discretionary range, the disparity between the two sentences would be a consequence of the factors which support different treatment as between the co-offenders. Accordingly, the parity appeal must fail.

23 For the sake of completeness, I should add that even if the appellant's sentence for deprivation of liberty did offend the parity principle, that would not have resulted in a reduction in the total sentence of 8 years, 2 years of which are to be served concurrently with the appellant's existing sentences. A breach of the parity principle would enliven this Court's discretion to consider afresh the appropriate aggregate sentence to be imposed for all the offences. In this context it should be noted that there is no parity challenge to the total sentence imposed on the appellant, I assume because of the appellant's additional offence of armed robbery and the order for partial concurrency with his existing sentence. For the reasons given below, I am satisfied that the appellant's total sentence is an appropriate measure of the criminality involved in the appellant's offending. An infringement of the parity principle in respect of one offence would not result in a successful appeal in this case because I am not of the opinion that a different total sentence should have been imposed (see s 31(4) of the Criminal Appeals Act 2004 (WA)).

24 The appellant contends that the appropriate measure of the total criminality involved in the appellant's conduct required that all the sentences be made concurrent, resulting in a total sentence of 5 years' imprisonment.

25 The legal principles are not in dispute. It is a general rule that when a number of offences arise out of one transaction or a continuing episode, any terms of imprisonment for the offences are usually made concurrent. However, the Court must then consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. This second step involves the application of the totality principle. That requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. An aggregate sentence may be inappropriately long even if it cannot be described as "crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J. The word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 12 per Anderson J.

26 The total sentence must bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341. Having regard to the appellant's prior record of offending, significant weight must be given to the need for personal deterrence. Further, the circumstances of each of the offences committed by the appellant are very serious examples of their type and fully concurrent sentences would not reflect an appropriate measure of the total criminality involved in the conduct. The severity of the total sentence cannot be doubted but it is an appropriate measure of the serious criminality of the conduct. I would dismiss ground 2.

27 The appellant was aged 19 when he committed the offences. They were committed whilst he was on home detention bail for the three armed robberies committed in October 2002. The sentencing Judge found that the appellant had shown no remorse for his criminal conduct. Further, the appellant will still be a relatively young man after completing the total

sentence. There is no justification for a conclusion that the total sentence is crushing. I would dismiss this ground and the appeal.

28 PULLIN JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing to add.

• Parity
• Manifest excess - totality
• Totality - crushing