MALPUSS -v- GIUFFRE [2020] WASC 303 (21 August 2020)

1. The circumstances of the assault charges were outlined in the facts that were relied upon by the prosecution and accepted by Mr Malpuss. The facts are as follows.
2. On 4 September 2018, Mr Malpuss was the front passenger in a motor vehicle that was travelling along Camberwarra Drive, Craigie. At approximately 5.00 pm, whilst sitting in the vehicle, Mr Malpuss fired several gel pellets from a gel blaster at the first complainant. The pellets hit the complainant in the right shoulder with no physical injury being sustained. The complainant was unknown to Mr Malpuss.[9]
3. The vehicle then continued before coming alongside the second complainant who was walking her dog with her partner. Mr Malpuss, whilst sitting in the vehicle, discharged several pellets from the gel blaster which hit the complainant in the left upper arm with no physical injuries being sustained. The complainant was unknown to Mr Malpuss.[10]
4. The vehicle continued down the street slowing to a speed of between 5 km ‑ 10 km per hour. The vehicle then passed the third complainant who had just alighted from his own vehicle with his 8‑year‑old son. At that time, Mr Malpuss discharged up to ten pellets which hit the complainant in the chest and stomach area with no physical injuries being sustained. The complainant was unknown to Mr Malpuss.[11]
5. The animal cruelty charge involved a violent attack on a kangaroo by two co-offenders, Mr Dempster and Mr Griffin. Mr Malpuss was convicted as a person who aided or encouraged the principal offenders by his presence and by holding a mobile phone that illuminated the area. I will further outline the factual findings of the learned magistrate when considering the grounds of appeal.
6. In relation to the animal cruelty offence, Mr Malpuss' counsel delivered a plea in mitigation, submitting that Mr Malpuss' role in the offence was significantly less than the principal offender's role, given that he was not involved in physically assaulting the animal. For this reason counsel submitted that Mr Malpuss' offending in relation to this offence did not warrant a term of imprisonment.[12] Counsel also submitted that Mr Malpuss narrowed the issues to be determined at trial, being whether he was a party to the offence, and facilitated justice by making comprehensive admissions.[13]
7. In relation to the assault offences, Mr Malpuss' counsel submitted that he pleaded guilty at the first reasonable opportunity,[14] and cooperated by handing himself in to police.[15] Further, that Mr Malpuss was not intending to cause any physical injury to the complainants and did not believe that discharging the gel blaster would do so.[16]
8. In relation to Mr Malpuss' personal circumstances, his counsel submitted that he had no prior criminal record,[17] that the offending was out of character,[18] he was very remorseful,[19] and he had ceased involvement with the others involved.[20] Further, that he had a close‑knit family and his family's support, a supportive girlfriend of seven years and stable employment.[21]
9. The prosecutor submitted that a term of imprisonment was the appropriate disposition.[22]
10. The learned magistrate imposed an immediate term of imprisonment of 6 months in respect of the animal cruelty charge, 3 months' immediate imprisonment in respect of the offence of common assault in circumstances of aggravation, and 2 months' immediate imprisonment respectively for the two offences of common assault. The learned magistrate ordered that the term of imprisonment of 3 months was to be served cumulatively, and the two terms of 2 months concurrently, with the 6 month term. Therefore, the total effective sentence was 9 months' immediate imprisonment.[23]
11. The learned magistrate considered suspending the terms but declined to do so.[24]

1. The Notice of Appeal pleaded one ground of appeal in respect of the conviction appeal contending that her Honour erred in finding that Mr Malpuss was a party to the animal cruelty offence.[25] The Notice of Appeal pleaded one ground in respect of the sentence appeal being the contention that 'Her Honour erred in imposing an immediate term of imprisonment.'
2. Subsequently, the appellant made application to rely on two further grounds of appeal with respect to the sentence appeal in the following terms:[26]

Ground 2

The Appellant has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence of his co-offenders.

Particulars

1. In that the disparity did not allow for differences in the factual circumstances of the co-offenders being involved with brutalising the kangaroo in another video.
2. The weight given to the limited actions of the Appellant as opposed to the co-offenders.
3. The antecedence of the Appellant.

Ground 3

Her Honour erred in acknowledging the dispositions of the co‑offenders Dempster and Griffin however did not refer to their differing factual situation, thereby leaving a question over what influence this had on the ultimate sentence of the Appellant, making the final determination of immediate imprisonment unsafe and the Appellant should be resentenced according to law.

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[27] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[28]
2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[29] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[30]
3. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[31]

1. On 1 July 2019, Mr Malpuss appeared before the magistrate for the hearing of the animal cruelty charge. Mr Malpuss was represented by a legal practitioner and the prosecution by a police prosecutor.
2. At the commencement of the trial on 1 July 2019, counsel for Mr Malpuss stated that admissions were made pursuant to s 32 of the Evidence Act 1906 (WA).[32] Regrettably, the terms of the admissions were not made in writing. Accordingly, it is necessary that I outline the submissions made during the trial regarding the admissions by Mr Malpuss.
3. On 1 July 2019, counsel made submissions outlining the scope of the proposed admissions by Mr Malpuss, stating that the video footage to be relied upon by the prosecution depicts an offence of animal cruelty being conducted by another person, Mr Dempster, and that the identity of Mr Malpuss holding a mobile phone is admitted. Counsel stated that the issue at trial was whether Mr Malpuss was a party to the offence pursuant to s 7(c) of the Criminal Code.[33]
4. On 18 November 2019, being the second day of the trial, counsel for Mr Malpuss confirmed that the admissions made pursuant to s 32 of the Evidence Act were:[34]
   1. an offence which constitutes animal cruelty occurred on 19 May 2018;
   2. the offence occurred in Western Australia;
   3. Mr Malpuss was present during the commission of the offence but he did not physically take part; and
   4. the image seen in the last frames of the video footage (exhibit 1) is an image of Mr Malpuss.
5. During the closing submissions counsel for Mr Malpuss confirmed that by the admission that an offence which constitutes animal cruelty occurred, it was being admitted that the animal was alive during the act of violence.[35] By way of further clarification, counsel for Mr Malpuss stated that the admission was that the animal was alive during the course of the video constituting exhibit 1.[36]
6. Her Honour proceeded on the basis that Mr Malpuss made five admissions. Her Honour stated that the admissions made by Mr Malpuss were in the following terms:[37]

(1) An offence which constitutes animal cruelty occurred on [19 May 2018].

(2) The offence occurred in Western Australia.

(3) The accused was present during the commission of the offence but he did not physically take part.

(4) The image seen in the last frames of the footage [exhibit 1] is an image of the accused.

(5) The animal was alive during the assault captured in the footage.

1. Mr Malpuss does not dispute that her Honour correctly understood and applied the admissions that he made at trial.
2. At trial the prosecution called one witness being Senior Constable Giuffre.[38] Mr Giuffre gave evidence that he seized a mobile phone from a person named Luke Dempster.[39] The police examined the mobile phone and located video footage of 26 seconds duration stored on the mobile phone. That video footage was played to the court and received in evidence.[40] The footage depicts two persons attacking a kangaroo. Mr Giuffre gave evidence that the footage was downloaded 'from a gallery' that he believed was 'one of the Snapchat files' that was date stamped 19 May 2018.[41]
3. The prosecution produced two still photographs taken from the video footage.[42] The first photograph depicted a person that Mr Giuffre identified as being Mr Malpuss.[43] The second photograph depicted two other persons attacking a kangaroo who were identified by Mr Giuffre as being Mr Dempster and Mr Griffin.[44] The photograph of Mr Malpuss,[45] and the photograph of Mr Dempster and Mr Griffin,[46] were received in evidence. The photograph of Mr Dempster and Mr Griffin depicts both persons each having 'knuckle dusters' and blood on their respective hands. The photograph of Mr Malpuss depicts him holding a mobile phone with the light torch illuminating.
4. The prosecution then proposed to lead further evidence from Mr Giuffre regarding the relationship between Mr Malpuss, Mr Dempster and Mr Griffin. That evidence was the subject of objection and was not received. The hearing was then adjourned part‑heard to 16 August 2019.[47]
5. On 16 August 2019, at the resumption of the hearing, the prosecutor confirmed that no further evidence would be relied upon by the prosecution.[48] Counsel for Mr Malpuss stated that by agreement the parties had determined that the only evidence to be relied upon at the hearing was the evidence received on 1 July 2019.[49] Mr Malpuss then entered pleas of guilty to the assault charges. Her Honour adjourned the proceedings to 18 November 2019.
6. On 18 November 2019, her Honour inquired of the prosecutor whether the prosecution case was closed and the prosecutor confirmed that it was.[50] Counsel for Mr Malpuss confirmed that he did not intend to give evidence or adduce any evidence.[51]

1. After receiving oral closing submissions, her Honour reserved her judgment. On 22 November 2019, her Honour gave oral reasons and convicted Mr Malpuss. Her Honour outlined the elements of the offence and made factual findings without error.
2. Her Honour stated that the admission that an offence which constitutes animal cruelty was committed must be understood with reference to the offending depicted in the video footage. Her Honour observed that the prosecution did not lead any evidence concerning the 'full background of what occurred on the evening' including how the incident began, who was present, and how each person happened to be present at the incident.[52] Her Honour correctly observed that 'though very brief, the footage provides a context for the accused's image seen in the moments before the filming ceases, and what is shown on that footage is very clear. Beyond that, though, I cannot and do not go.'[53]
3. Her Honour then found that whilst utterances may be heard on the video footage directing Mr Dempster and Mr Griffin where to strike the kangaroo, it could not be inferred that the persons speaking included Mr Malpuss.[54] Further, it was not possible to make the finding that Mr Malpuss was one of the persons who was heard laughing during the infliction of the attack on the animal.[55] However, her Honour found that given the short length of the video footage, it may be inferred that Mr Malpuss was present whilst the utterances and laughter occurred.[56]
4. Her Honour then made the following findings:[57]

What the accused is seen to be doing also allows for that inference to be drawn. The group is in very close proximity to the principal during the course of the assault. They are clearly a vocal audience and the accused is part of that audience although, as I say, he may not have uttered anything. Furthermore, the footage captures the accused smiling, laughing and clearly holding something which is giving off a light.

It can only be inferred that he is either filming too, [or] assisting in illuminating the area. That combination of factors, the proximity of a clearly cohesive group watching the assault, the expression of apparent enjoyment and·the holding of an illuminated object on the accused's behalf clearly define the bond between the accused and the principal. His is not merely a fortuitous and passive presence but clearly he provides an intentional encouragement to the principal offender.

The only inference I can draw from all of the facts I've outlined is that his presence, his gestures, his expression clearly shows his approval and he is, therefore, well and truly within the realms of section 7(c) and is caught by that section as a party to the offence. I therefore find the elements of the offence proven beyond a reasonable doubt and, accordingly, I enter a conviction

1. Mr Malpuss contends that her Honour erred in finding that he aided or encouraged the principal offenders and further erred in finding that he intended to aid or encourage the principal offenders. That is, the learned magistrate erred in law in finding that Mr Malpuss was a party to the offending pursuant to s 7(c) of the Criminal Code. Counsel for Mr Malpuss contended that there is a reasonable possibility that Mr Malpuss was no more than an interested observer who filmed the acts of others.
2. Section 7 of the Criminal Code provides that there are four categories of parties to an offence. A person who falls within one of the categories is deemed to have taken part in committing the offence and deemed to be guilty of the offence, and may be charged with actually committing the offence.
3. Section 7 of the Criminal Code provides:

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ‑

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

1. The prosecution relied upon s 7(c) of the Criminal Code to establish Mr Malpuss' criminal liability. For a person to be criminally liable under s 7(c) the prosecution must prove beyond a reasonable doubt that:[58]

(a) a person (the principal) has committed the offence;

(b) the person alleged to be the aider had actual knowledge of the facts constituting the offence that was being or was about to be committed or might be committed by the principal;

(c) the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and

(d) what the aider did or omitted to do actually aided or assisted the principal in committing the offence.

1. At trial Mr Malpuss contended that there was insufficient evidence to prove elements (c) and (d) of s 7(c) of the Criminal Code. Therefore, the issues at trial were whether the prosecution proved beyond a reasonable doubt that Mr Malpuss did something with the intention of aiding or assisting in the doing of acts which constituted the offence and whether what Mr Malpuss did actually aided or assisted the principals, namely Mr Dempster and Mr Griffin.
2. With respect to element (c), a person will do or omit to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts or omissions were willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence.[59]
3. As Macrossan CJ stated in R v Beck:[60]

Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess.

It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offences is actually provided.

1. Mere presence at the commission of the offence does not amount to an aiding. Nor would it amount to aiding if the acts of an accused inadvertently provided encouragement or assistance to the principal offender.
2. As Malcolm CJ stated in O (a Child) v The Queen:[62]

Mere presence at the commission of an offence will not of itself be sufficient to constitute aiding. There must be, at least, a positive encouragement: R v Corey. In R v Clarkson, Carroll and Dodd it was held that on a charge of aiding and abetting a rape on the basis of continuing and non-accidental presence, the prosecution must establish actual encouragement of the commission of the offence, as well as an intention to encourage. In R v Beck Macrossan J (as he then was) said:

It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided.

Macrossan J however acknowledged that voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. Intentional encouragement may also be inferred from expressions, gestures or actions intended to signify approval: Beck. (citations omitted)

1. The question on appeal is whether on the evidence the only reasonable inference open is that Mr Malpuss did something with the intention of aiding the principal offenders in doing the acts that constitute the offence, and that what he did actually aided or assisted the principals in committing the offence. The prosecution case comprised solely the admissions, the video footage,[63] a photograph of Mr Dempster and Mr Griffin,[64] and the evidence of Officer Guiffre.
2. Mr Malpuss contends that a reasonable inference which is open is that his presence was fortuitous and passive, being merely a spectator.

1. I am of the view that there was sufficient evidence for her Honour to find that Mr Malpuss was a party to the offending pursuant to s 7(c) of the Criminal Code. That finding is based upon the following.
2. The act of animal cruelty was committed by the two principals, Mr Dempster and Mr Griffin. Mr Malpuss was present within very close proximity of the principals when the offence was being committed.
3. The offending occurred at an unknown location, that appears to be bushland, and at night-time. Mr Malpuss was present at that location at night.
4. The video footage supports a finding that Mr Malpuss was relaxed and most comfortable with the offending that he was observing. Moreover, the principals were engaging in a brutal act of animal cruelty yet they appeared unconcerned by the presence of Mr Malpuss.
5. Mr Malpuss was smiling, expressing approval, during the commission of the offence. I do not accept Mr Malpuss' counsel's submission that the smiling was a response to the unknown person dropping his mobile phone (which was recording the incident). The image of Mr Malpuss smiling is recorded simultaneously with the mobile phone being dropped. A second later laughter is heard, which laughter may be as a consequence of the persons present realising that the mobile phone had been dropped.
6. The video footage records that the mobile phone held by Mr Malpuss was being operated with the bright torch light clearly activated. The bright torch light beam was directed towards the exact location where the animal was situated. Mr Malpuss was standing within one to two metres of the animal. This finding is supported by the fact that one of the principal's hands (with knuckledusters attached) is recorded within the same frame, being in close proximity to the kangaroo's head, and the recording from the mobile phone was, immediately prior to being dropped, over the head region of the kangaroo.
7. Through directing the torch beam towards the animal, Mr Malpuss, whilst standing within a very short distance of the animal, is providing direct assistance to the principal offender by illuminating the location, giving light to enable the offence to be committed.
8. The proximity of Mr Malpuss to the act of violent cruelty further supports the finding that Mr Malpuss was encouraging and assisting.
9. Mr Malpuss contended that there is another reasonable inference open that is consistent with innocence, which is that Mr Malpuss happened to come across the act of animal cruelty being committed and was no more than an interested observer. I do not accept that submission. Mr Malpuss held a mobile phone that was being used by him to assist the principal offenders by illuminating the crime scene and in order to do so, he stood in very close proximity to the animal during the attack. Further, Mr Malpuss was smiling whilst illuminating the area during the attack.
10. Accordingly, I grant leave on ground 1 but the ground is not upheld. The appeal against conviction is dismissed.

1. By ground 1 of the sentence appeal, Mr Malpuss contends that the learned magistrate erred in imposing an immediate term of imprisonment.
2. The ground therefore appears to assert that each of the immediate terms of imprisonment imposed were manifestly excessive.

1. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Malpuss contends that the wrong type of sentence has been imposed, in that a term of immediate imprisonment should not have been imposed.
2. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[65]
3. Properly understood, ground 1 asserts that the learned magistrate breached the totality principle by imposing an immediate term of imprisonment.
4. A claim that the totality principle is breached asserts implied error. The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences. The total effective sentence must not be unreasonable or plainly unjust.
5. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to the offender personally.[66]
6. Mr Malpuss' contention is that in all the circumstances, including those personal to him, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[67]
7. In considering ground 1, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[68]
8. The sentencing options available to the court are set out in s 39 of the Sentencing Act 1995 (WA). The ultimate option in s 39(2) is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires imprisonment.[69]
9. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[70] Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
10. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[71] That is, all of the circumstances must be revisited. The magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.

1. Section 19(1) of the Animal Welfare Act provides that the minimum penalty for the offence of cruelty to an animal is $2,000 and the maximum penalty is $50,000 and imprisonment for 5 years.

1. The maximum penalty for the offence of common assault under s 313(1)(b) of the Criminal Code is 18 months' imprisonment and a fine of $18,000.
2. The maximum penalty for the offence of common assault in circumstances of aggravation under s 313(1)(a) of the Criminal Code is 3 years' imprisonment and a fine of $36,000.

Circumstances of the offending - animal cruelty charge

1. I have outlined the circumstances of the offending in respect of the animal cruelty charge. Mr Malpuss was not a principal rather he aided and assisted. Her Honour found that the attack on the animal was extreme and unrelenting,[72] and that Mr Malpuss was aiding and encouraging.[73]
2. Mr Malpuss' involvement in the offending was limited. Mr Malpuss was present in close proximity to the animal, smiling and illuminating the location. However, Mr Malpuss did not physically attack the kangaroo. The period of time for which Mr Malpuss was present is unknown. The learned magistrate made the finding that it was not possible to determine for how long Mr Malpuss was present and therefore, sentenced him on the basis that 'he was present at some point'.[74]

Circumstances of the offending - assault charges

1. I have outlined the circumstances of the offending in respect of the assault charges. Her Honour determined that the assaults were placed high on the scale of seriousness for offences of that type.[75] Her Honour stated that the victims were all unknown to Mr Malpuss and his companions and were innocently going about their own business when Mr Malpuss fired the gel pellets at them, seemingly for his and his friends' own amusement.[76] Further, that the victims could not have known that the gel blaster was not a real weapon, and that accordingly the victims must have been shocked and frightened, and that they must have been hurt upon initial impact of the pellets.[77] There was no evidence that the victims were hurt or injured.
2. The offending is serious but did not involve the actual inflicting of injury on the victims. However, the offending must have been disconcerting to the victims.

1. Mr Malpuss entered his plea of guilty to the three assault charges at the first reasonable opportunity and was therefore afforded a 25% discount under s 9AA of the Sentencing Act.[78] This is a significant mitigating factor for Mr Malpuss. Mr Malpuss made full admissions to the police and is remorseful for this offending.
2. In respect of the animal cruelty charge, Mr Malpuss exercised his right to proceed to trial and therefore is not entitled to the discount that would otherwise have been afforded for an early plea of guilty. I accept that Mr Malpuss, though proceeding to trial, is remorseful for his aiding of the principal offenders.
3. Her Honour noted that whilst Mr Malpuss was 26 years of age at time of the offending, he was not so youthful that an allowance should be made for youth.[79]
4. In mitigation, her Honour accepted that Mr Malpuss' conduct during the course of the trial,[80] including the admissions he made, was a mitigating factor.[81] I agree that the conduct of Mr Malpuss facilitated justice by ensuring that the issue in dispute was identified and necessary admissions were made.
5. Mr Malpuss does not have a criminal record and therefore, is to be sentenced on the basis that he is a person of good character. Mr Malpuss has the strong support of his immediate family, is employed as a qualified glazier and is in a stable relationship with his partner of seven years.[82]
6. The court received a number of written references from persons who speak highly of Mr Malpuss' positive qualities.[83] The learned magistrate observed that the character references spoke highly of him and that they carried considerable weight given that the referees were informed of the circumstances of the offending. Her Honour also took into account that Mr Malpuss was remorseful and had ceased involvement with other persons involved with the offending.[84]`

1. The guidance afforded by comparable cases is flexible rather than rigid. A sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
2. There is no established tariff for common assault offences.[85] The authorities do not reveal an established range of sentences customarily imposed for offences of common assault because of the enormous variety of circumstances in which the offence of common assault may be committed.[86] The parties did not rely upon any cases that are comparable.
3. With respect to the animal cruelty offence there is also no established tariff. The respondent referred to Holding v Parkin.[87] I have considered that authority and the cases considered therein. However, it is not possible to discern an established range of sentences for the animal cruelty offence. In Holding v Parkin it was observed that it could not be said that imprisonment is the usual sentence.[88] However, in serious cases of animal cruelty a term of imprisonment is certainly within the court's discretion depending upon the entire relevant sentencing factors.

1. After considering all relevant sentencing factors, I have determined that whilst the imposition of a term of imprisonment for the assault offences and the animal cruelty offence is within the range of the sentencing discretion, I am of the view that the terms of imprisonment should be suspended. That is, the learned magistrate erred in imposing an immediate term of imprisonment. I am not positively satisfied that it is not appropriate to suspend or conditionally suspend the term of imprisonment. I am mindful that Mr Malpuss is a young man who is of good character with good prospects for rehabilitation and he is remorseful. Further, the involvement of Mr Malpuss in the animal cruelty offending was very limited with respect to both acts and time. The role of the two co-offenders being principals was significantly greater.
2. Therefore, I grant leave on ground 1 and uphold that ground.

1. By ground 2 Mr Malpuss contends that the total effective sentence infringes the parity principle.
2. Mr Malpuss submitted that the parity principle arises with respect to co‑offenders Mr Dempster and Mr Griffin. I must consider the sentences imposed on the co-offenders and the application of the parity principle. At Mr Malpuss' sentencing, the magistrate did not consider the issue of parity. The learned magistrate observed that parity did not arise for consideration,[89] and counsel did not make submissions regarding issues of parity.
3. I have received the sentencing transcripts for both Mr Dempster and Mr Griffin. I am of the view that the parity principle does apply with respect to the co-offenders Mr Dempster and Mr Griffin.
4. The parity principle requires appropriate consistency in the sentencing of co-offenders. The principle is based upon the norm of equality before the law and requires, so far as the law permits, that like cases be treated alike. It 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.[90] The question that arises is whether the 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.[91]
5. In Higgins v The State of Western Australia[92] the Court of Appeal considered the application of the parity principle in circumstances where co-offenders had committed one or more offences but some or all of them had also committed other unrelated offences. In Petrusic v The State of Western Australia,[93] the Court of Appeal stated the applicable principles as follows:
   1. A person's sentence, for the purposes of the parity principle, is comprised of the sentence imposed in respect of each individual offence, any minimum non-parole period, orders for accumulation and concurrence and the resulting total effective sentence, and, where a person is already serving an earlier term of imprisonment, the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence. The parity principle may apply to each and any of these components.
   2. There is no hard and fast rule that, in cases of co-offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. An infringement of the parity principle may arise from a marked disparity in the respective sentences imposed on co-offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though either, or both, of the co‑offenders was sentenced for other offences.
   3. In evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences and all relevant sentencing principles, including the totality principle.
6. Therefore, it is necessary to consider all the relevant facts and circumstances as well as all of the components of the offenders' respective sentences.

1. On 12 November 2018, Mr Griffin pleaded guilty to two offences being one charge of cruelty to animals contrary to s 19(1) of the Animal Welfare Act and one charge of possession of things intended to inflict cruelty contrary to s 31(1) of the Animal Welfare Act.
2. The animal cruelty charge arose from the same event that grounds Mr Malpuss' charge. However, the facts upon which Mr Griffin was convicted included a further six second video depicting Mr Griffin holding a rifle against the eye of a kangaroo and discharging a round, causing the eye to dislodge. Shortly after, a second video showed Mr Griffin in company with Mr Dempster assaulting the kangaroo. That second video was exhibit 1 in the trial of Mr Malpuss. The possession of things intended to inflict cruelty charge concerned Mr Griffin's possession of the knuckledusters that were used in the attack on the kangaroo.
3. In relation to Mr Griffin's antecedents, the magistrate made findings that Mr Griffin was 22 years of age with a relative lack of criminal record.[94] Further, that Mr Griffin was in a positive and supportive relationship, had stable employment, and that whilst he had a history of substance abuse, he had abstained from drugs since the offending.[95] The magistrate also found that in the period prior to the offending, Mr Griffin had lost family members and was suffering from depression.[96]
4. His Honour imposed a term of immediate imprisonment of 11 months in respect of the animal cruelty charge and 1 month imprisonment in respect of the possession of things intended to inflict cruelty charge. The terms were made concurrent.

1. On 12 September 2018, Mr Dempster pleaded guilty to 12 charges and was sentenced on 5 December 2018 to a total effective sentence of 2 years' imprisonment. The charges and the respective sentences are outlined in the table below.

Discharged a firearm to the danger of or to cause fear to the public (s 23(9a) Firearms Act)

Discharged a firearm to the danger of or to cause fear to the public (s 23(9a) Firearms Act)

Discharged a firearm to the danger of or to cause fear to the public (s 23(9a) Firearms Act)

Possess prohibited drug (cannabis) (s 6(2) Misuse of Drugs Act)

Possess any drug paraphernalia in or on which there was a prohibited drug or plant (s 7B(6) Misuse of Drugs Act)

Cruelty to animals (s 19(1) Animal Welfare Act)

Cruelty to animals (s 19(1) Animal Welfare Act)

Possession of things intended to inflect cruelty (s 31(1) Animal Welfare Act)

Cruelty to animals (s 19(1) Animal Welfare Act)

1. The facts in respect of charge MCJOO180012194 concerned the acts of Mr Dempster on 31 March 2018 which were recorded on video. The footage depicted cruelty to an animal namely a chicken, which comprised in part setting fire to the animal with the use of an accelerant. Mr Dempster is then recorded making utterances.
2. The facts in respect of charge MCJOO180012195 concerned the acts of Mr Dempster on 19 May 2018 which are recorded on mobile phone footage. The footage depicts Mr Griffin holding an adult kangaroo, which has an extensive wound injury to its torso, by the right ear. Mr Griffin then discharges a firearm that causes the right eyeball of the kangaroo to leave the socket. Mr Dempster held the mobile phone and could be heard laughing at the time that Mr Griffin inflicted the injuries. Shortly after, the video footage discloses the assault on a kangaroo by both Mr Dempster and Mr Griffin, which video footage was exhibit 1 in the trial of Mr Malpuss.
3. Charge MCJOO180012196 related to Mr Dempster's possession of knuckledusters.
4. The facts in respect of charge MCJOO180012197 concerned the acts of Mr Dempster between 19 May 2018 and 16 June 2018 which were recorded on a 29 second Snapchat video. The video footage was made by Mr Dempster and recorded a third person chasing an adult kangaroo and then using a large knife to stab the kangaroo in the back of the neck. The third person stabbed the kangaroo 22 times to the neck while making utterances. During the commission of that offence Mr Dempster and other unknown persons could be heard encouraging the third person to commit the offence.
5. The facts in respect of the firearm and assault offences committed on 4 September 2018 are in the same terms as the facts that support the assault and aggravated assault charges committed by Mr Malpuss. With respect to Mr Dempster, he pleaded on the basis that he was the driver of the car and that Mr Malpuss was the person who discharged the pellets.
6. The facts in respect of the charges under the Misuse of Drugs Act concerned Mr Dempster's possession of 1 g of cannabis and a plastic bottle which was converted into a smoking implement with traces of cannabis which were both found during the execution of a search warrant at Mr Dempster's house.
7. The sentencing magistrate made findings that Mr Dempster was 26 years of age, was in a stable relationship and had a 6-year-old son. Further, Mr Dempster had a relatively minor criminal record with no prior convictions for similar offending but there was an escalation in behaviour concerning the use of weapons. The learned magistrate accepted that Mr Dempster was no longer involved with the group of people involved with the offences.[97]

1. Her Honour, when sentencing Mr Malpuss for the animal cruelty offence, was misinformed regarding the total effective sentence received by Mr Dempster and Mr Griffin in relation to the same animal cruelty offence. The prosecutor informed the magistrate that Mr Dempster and Mr Griffin each received a 6 month term of imprisonment. As outlined above, both Mr Dempster and Mr Griffin received a term of imprisonment of 11 months.
2. Further, the magistrate was not informed by the prosecutor when sentencing Mr Malpuss that Mr Malpuss was convicted of lesser facts than Mr Dempster and Mr Griffin were, in that both Mr Dempster and Mr Griffin were convicted on the basis that the animal cruelty offence also comprised the attack committed solely by Mr Griffin which involved the discharge of the firearm at the kangaroo.
3. Mr Malpuss therefore contends that the learned magistrate, in having regard to the sentences imposed upon Mr Griffin and Mr Dempster, erroneously understood the term of imprisonment to be 6 months and further, that the same facts were being relied upon in respect of the same animal cruelty charge.
4. The respondent contends that if the learned magistrate had been aware that the true sentence was 11 months' imprisonment for both Mr Griffin and Mr Dempster for the same offending, then it is likely that the term of imprisonment for Mr Malpuss would have been even greater than 6 months. However there is difficulty with that reasoning. Her Honour erroneously understood that the term of imprisonment imposed on Mr Dempster and Mr Griffin for the same offending as Mr Malpuss was 6 months' imprisonment. Her Honour then imposed the same term of immediate imprisonment for Mr Malpuss. Her Honour thereby appears to have implicitly found that the three offenders were to be treated the same for the same offending. However, Mr Malpuss was a party to the offending by undertaking a narrow role of encouragement and by illuminating the location. Accordingly, Mr Malpuss has lesser culpability.

1. It is clear that Mr Dempster and Mr Griffin are more culpable than Mr Malpuss in respect of the same animal cruelty offence. That is because both Mr Dempster and Mr Griffin physically assaulted the kangaroo by repeatedly attacking the kangaroo while wearing knuckledusters. In comparison, Mr Malpuss did not physically assault the kangaroo but was convicted on a narrow basis of aiding both Mr Dempster and Mr Griffin to commit the offence by illuminating the relevant area with the mobile phone light, within close proximity of the kangaroo and further, by providing encouragement through his presence during the commission of the offence.
2. In respect of the antecedents of the offenders, I am unable to discern any marked disparity in respect of the personal backgrounds of Mr Malpuss as against Mr Griffin and Mr Dempster. All three offenders have limited criminal records and reasonably sound antecedents.
3. Mr Malpuss was not entitled to a discount for a plea of guilty in respect of the animal cruelty offence, unlike Mr Dempster and Mr Griffin who received a 25% discount pursuant to s 9AA of the Sentencing Act.
4. The respondent correctly observes that Mr Dempster punched the kangaroo 11 times on the video footage whilst Mr Griffin punched the kangaroo 7 times on the video footage.
5. The magistrate reduced the term of imprisonment imposed on the animal cruelty offence for Mr Dempster based on the application of the totality principle.
6. The respondent contends that the five month difference in the length of sentence imposed on Mr Malpuss as against the sentence imposed upon Mr Dempster and Mr Griffin for the animal cruelty offence appropriately recognises the differences that existed between their respective participation and culpability for the offending and significantly, the pleas of guilty by both Mr Griffin and Mr Dempster.
7. Both Mr Dempster and Mr Malpuss were sentenced for four common offences being the animal cruelty offence and the assault offences. For those offences Mr Malpuss received a 9 month term of imprisonment and Mr Dempster received a 13 month term of imprisonment.
8. Mr Dempster received a 25% discount in respect of his sentences while Mr Malpuss only pleaded guilty to the assault offences and received a 25% discount in respect of those charges. Mr Dempster was sentenced for eight other offences which required further consideration of the totality principle.
9. The respondent submits that the dissimilar sentences imposed on Mr Malpuss and Mr Dempster for the four common offences do not give rise to a justifiable sense of grievance.
10. I am of the view that Mr Malpuss has a justifiable sense of grievance. The most significant offence that each offender was sentenced for was the animal cruelty charge. Mr Malpuss' involvement was limited compared to his co-offenders. His actions comprised his encouragement of the principal offenders by his presence and by holding the illuminated mobile phone. Further, the time period that Mr Malpuss was involved in the offending was very short. Accordingly, an immediate term of imprisonment of 9 months leaves Mr Malpuss with a justifiable sense of grievance. Therefore, leave is granted on ground 2 and the ground is upheld.

1. By ground 3, Mr Malpuss contends that the magistrate erred when considering the sentences imposed on Mr Dempster and Mr Griffin by failing to state the differing factual situations that founded their convictions as compared to Mr Malpuss.
2. As I have observed the learned magistrate was not informed by the prosecutor when sentencing Mr Malpuss that Mr Dempster and Mr Griffin were convicted on the basis of further aggravating facts, being that both Mr Dempster and Mr Griffin were convicted on the basis that the animal cruelty offence also comprised the attack committed solely by Mr Griffin involving the discharge of the firearm at the kangaroo. The respondent concedes that the learned magistrate sentenced Mr Malpuss being unaware of the further aggravating facts upon which Mr Dempster and Mr Griffin were sentenced.
3. Accordingly, leave is granted on ground 3 and the ground is upheld.

1. Given that I have determined that the sentence imposed on Mr Malpuss breached the totality principle and parity principle, it is necessary that Mr Malpuss be resentenced. After considering all relevant sentencing factors, I am of the view that the terms of imprisonment imposed by the learned magistrate should not be reduced but that the terms of imprisonment should be wholly suspended.
2. Therefore, I set aside the sentences imposed by the learned magistrate and in lieu thereof impose the following.
3. A 6 month term of imprisonment is imposed on the animal cruelty charge; a 2 month term of imprisonment is imposed on each of the common assault charges; and a 3 month term of imprisonment is imposed on the aggravated assault charge. The 3 month term of imprisonment will be served cumulatively with the 6 month term of imprisonment; and the respective 2 month terms of imprisonment will be served concurrently. The total effective term of imprisonment is therefore 9 months' imprisonment. The term of imprisonment will be suspended for 12 months. In imposing the respective terms of imprisonment, I have taken into account that Mr Malpuss has served 1 day in custody.

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

[1] Prosecution Notice (charge number JO 12073/2018) dated 28 September 2018; Prosecution Notice (charge number JO 12074/2018) dated 28 September 2018.

[2] Prosecution Notice (charge number JO 12075/2018) dated 28 September 2018.

[3] Prosecution Notice (charge number JO 12076/2018) dated 28 September 2018.

[4] Prosecution Notices dated 28 September 2018 (charge numbers JO 12073/2018 ‑ JO 12075/2018).

[25] Notice of Appeal, filed 28 November 2019.

[26] Amended Notice of Appeal, filed 15 May 2020.

[27] Criminal Appeals Act 2004 (WA), s 9(1).

[28] Criminal Appeals Act 2004 (WA), s 8.

[29] Criminal Appeals Act 2004 (WA), s 9(2).

[30] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).

[31] Criminal Appeals Act 2004 (WA), s 14.

[40] Exhibit 1, Video footage from mobile phone seized from Mr Dempster.

[45] Exhibit 2, Photograph of still image of Mr Malpuss taken from video footage (exhibit 1).

[46] Exhibit 3, Photograph of still image of Luke Dempster and Dylan Griffin taken from video footage (exhibit 1).

[58] Taylor v The State of Western Australia [2016] WASCA 210 [58].

[59] Taylor v The State of Western Australia [2016] WASCA 210 [59].

[60] R v Beck [1990] 1 Qd R 30, 37.

[61] R v Beck [1990] 1 Qd R 30, 38.

[62] O (a Child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997), 7.

[63] Exhibit 1, Video footage from mobile phone seized from Mr Dempster.

[64] Exhibit 2, Photograph of still image of Luke Dempster and Dylan Griffin taken from the video footage (exhibit 1).

[65] Sentencing Act 1995 (WA), s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

[66] Roffey v The State of Western Australia [2007] WASCA 246 [24].

[67] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

[68] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

[69] Sentencing Act 1995 (WA), s 6(4).

[70] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

[71] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329, 330, 348.

[85] Medanovic v Barrett [2016] WASC 237 [20].

[86] Harrison v Hunter [2012] WASC 166 [26]; Garlett v Balic [2016] WASC 172.

[87] Holding v Parkin [2012] WASC 113.

[88] Holding v Parkin [2012] WASC 113 [35].

[90] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472 ‑ 475 (French CJ, Crennan and Kiefel JJ).

[91] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J).

[92] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.

[93] Petrusic v The State of Western Australia [2020] WASCA 62 [49].