Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether parity principle infringed - Whether sentence manifestly excessive - Turns on own facts

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

Nguyen v The State of Western Australia [2009] WASCA 8

1 McLURE P: The appellant seeks leave to appeal against sentence. He was convicted on his fast-track plea of guilty of one count of aggravated armed robbery for which he was sentenced by Murray J on 1 November 2010 to 3 years' imprisonment.

2 The appellant's co-offender and step-brother, Ashley Glossop, who also pleaded guilty on the fast-track system, was sentenced by Murray J on the same date to 3 years and 6 months' imprisonment for the same offence.

3 The appellant relies on two grounds of appeal. He contends in substance that his sentence offends the parity principle and is manifestly excessive. The facts of the offending are as follows. On 12 May 2010, the appellant and Glossop discussed their intention to commit an armed robbery. They went in Glossop's motor vehicle to the vicinity of the Kwinana area where they placed a set of stolen registration plates on the vehicle in order to avoid detection by police. They then drove to the Rockingham area where they searched for open business premises to rob. They decided a nearby delicatessen was in a suitable location to commit the offence. The appellant drove to its location and parked the vehicle at a place from where they observed the delicatessen for approximately 15 minutes.

4 At about 8.00 pm, the appellant drove the vehicle to the delicatessen and parked on the side of the road. Glossop left the vehicle and entered the delicatessen wearing a dark blue hooded jumper, a cream coloured shirt which was covering his face and a pair of black woollen gloves. Glossop was in possession of a kitchen knife. He made his way to the counter where he confronted the delicatessen owner and demanded money, banging the knife on the counter and yelling at the owner to open the cash register. Fearing for his life, the owner ran to the back of the delicatessen. Glossop then walked around the counter and attempted to open the cash drawer himself. He was unsuccessful. He then located and stole a laptop and ran from the delicatessen to his vehicle which was driven away by the appellant. The appellant was aware prior to the commission of the offence that Glossop had taken measures to conceal his identity and was in possession of the kitchen knife. The appellant participated in a video record of interview with police and admitted his participation in the offence.

5 The appellant was aged 30 at the time of sentencing. He was married with a young son. He committed the offence whilst under the influence of alcohol. The appellant consumes a significant quantity of alcohol but does not regard his use to be problematic. He has a prior record of offending, primarily for driving-related offences (no authority to drive and drinking - driving offences).

6 Glossop was aged 25 at the time of sentencing. He had a significant prior record of committing serious offences including armed robbery (4), lighting a fire likely to injure or cause damage (4) and assault with intent to commit a robbery (1). At the time of sentencing, Glossop was serving a total sentence of 8 months' imprisonment for indecent assault and common assault.

7 Further, the commission of the aggravated armed robbery for which Glossop was being sentenced constituted a breach of an 18-month intensive supervision order (ISO) which had been imposed on 15 January 2010 for the offence of aggravated common assault. The sentencing judge cancelled the ISO and in lieu imposed a term of 8 months' imprisonment for that offence.

8 Glossop also participated in a video-recorded interview with police and made admissions. The sentencing judge accepted that Glossop was at a relatively high risk of reoffending.

9 As Glossop was being sentenced for multiple offences, the sentencing judge was required to take into account totality considerations that had no application to the appellant. The sentencing judge said:

The sentences and the multiplicity of them raise what this court refers to as totality considerations. In other words, I need to respond to the fact that there are a number of them and make sure that the increasing period of imprisonment does not make it all come out too great. There are the terms that you are currently serving with a maximum of 25 April 2011, and I see no reason why, and I do propose that the sentences I am to impose will be served cumulatively on those sentences which were quite different and independent matters.

So for the armed robbery in company, in your case I impose a sentence of 3 1/2 years' imprisonment. That will be served cumulatively, and as I say it is a term which I have reduced, not only from the considerations that I have mentioned, but also having regard to the total length of the term that should be imposed. A period of 3 1/2 years' imprisonment to be served cumulatively on existing terms.

For the aggravated assault, the term that I think is appropriate, because it seems to me that this was a serious matter, is a term of 8 months' imprisonment ... That also, it seems to me, is a sentence in relation to a quite different matter which, having regard to the reduction of the terms, should be imposed to be served cumulatively (ts 42).

10 The result of the sentencing exercise was that Glossop was sentenced to a total effective sentence of 4 years and 2 months to be served cumulatively with the sentence he was then serving. As I read the sentencing judge's reasons, the sentence of 3 1/2 years' imprisonment imposed for the offence of aggravated armed robbery reflected a reduction to take into account totality considerations because of his intention to order total cumulation.

11 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).

12 The question is whether disparity, or lack of disparity, in sentence is capable of giving rise to a justifiable sense of grievance: Lowe (610). Whether there is a justifiable sense of grievance has to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle: Nguyen v The State of Western Australia [2009] WASCA 8 [27]. It is sufficient for present purposes to note that the practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual sentences. A variant to this approach, which has the same effect, is to reduce the otherwise appropriate length of the individual sentences and order total cumulation, which is what the sentencing judge did in this case. The appellant has no reasonable prospect of establishing that his sentence infringes the parity principle.

13 The appellant contends the sentencing judge erred in the type of sentence he imposed. He claims that the appropriate sentencing option was a suspended term of imprisonment. This submission reflects a failure to understand the seriousness of both the offence committed by the appellant and his participation in that offence.

14 The offence of aggravated armed robbery is very serious, having a maximum penalty of life imprisonment. Ordinarily, a sentence of immediate imprisonment for that offence is the only appropriate penalty. The circumstances of this offence involved pre-planning, included the use of a knife and the victim was put in fear of his life. The sentencing judge found that the appellant's role was central to the commission of the offence. The appellant's motive for the offending (to assist his step-brother) and the fact that he was not to participate in the spoils do not materially reduce the level of his culpability. The appellant has no reasonable prospect of establishing that the sentencing judge erred in imposing a term of immediate imprisonment.

15 For these reasons I would refuse leave to appeal on both grounds and dismiss the appeal.