MEHTA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 24 | Case summary

Court of Appeal (WA)|2023-02-08|Before: Quinlan CJ

The application of the parity principle involves a discretionary judgment to which the principles in House v The King[95] apply.[96]
In the present case there was clearly a disparity between the sentence imposed on Mr Mehta and the sentence imposed on Mr Sachdeva. The learned trial judge expressly recognised that Mr Mehta's offending was more serious than that of Mr Sachdeva, which her Honour reflected in an additional 6 months imprisonment being imposed on Mr Mehta.
It therefore could not be concluded that the sentencing judge made any express error in the application of the parity principle. Mr Sachdeva did not suggest otherwise. Indeed, Mr Sachdeva submitted that the learned trial judge correctly found that Mr Mehta's offending was more serious, but that her statement that his role would be reflected in the sentence imposed was 'not borne out by the sentence imposed'.[97] Thus, ground 2 (Sachdeva) asserts implied error, namely that the degree of disparity between the sentence imposed on Mr Mehta and Mr Sachdeva was unreasonable or plainly unjust so as to reveal implied error.
It will be apparent from what we have already said in relation to ground 1 (Sachdeva) that, while the learned trial judge was correct to characterise Mr Mehta's offending as more serious than that of Mr Sachdeva, Mr Sachdeva's criminality was nevertheless high. It was not, as Mr Sachdeva submitted in relation to this ground, a 'more minimal role'.[98]
Having recognised the need for some disparity in their sentences, the degree of that disparity was, within the limits of a reasonable exercise of discretion, a matter for the discretionary judgment of the learned trial judge. The issue is not whether we would have exercised the qualitative and discretionary judgment in relation to parity differently. It is whether the result produced in this case was unreasonable or plainly unjust, such as to give 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. We are not satisfied that it was. In our view, it was open to the learned trial judge to impose sentences with the degree of disparity that her Honour did.

For the foregoing reasons, we would make the following orders in each appeal.
In Mr Mehta's conviction appeal (CACR 116 of 2021):

(1) Leave to appeal on the ground of appeal is refused.

In Mr Mehta's sentence appeal (CACR 114 of 2021):

In Mr Sachdeva's conviction appeal (CACR 121 of 2021):

(1) The application to adduce additional evidence on the appeal is refused.

(2) The application for an extension of time within which to appeal is refused.

In Mr Sachdeva's sentence appeal (CACR 120 of 2021):

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[5] BAB (CACR 120 of 2021; CACR 121 of 2021), 150.

[6] BAB (CACR 120 of 2021; CACR 121 of 2021), 148 ‑ 149 (minor transcription errors have been corrected in this extract).

[31] Appeal ts 29; Further Submissions on Behalf of the Appellant dated 2 December 2022 [8].

[32] Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ; Mason and Jacobs JJ agreeing); Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (Webb), 90 (Toohey J); Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [31] (Buss JA; Martin CJ & Wheeler JA agreeing); Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [67] (French CJ, Hayne, Kiefel & Bell JJ).

[33] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 (VIM).

[34] NTH v The State of Western Australia [2020] WASCA 22 (NTH).

[35] VIM [247] (Wheeler & Roberts-Smith JJA, Miller AJA).

[36] Webb, 56 (Mason CJ & McHugh J). See also 88 (Toohey J).

[38] VIM [236], [250] (Wheeler & Roberts-Smith JJA, Miller AJA).

[39] NTH [85], [86] (Buss P, Mazza & Beech JJA).

[40] I v The State of Western Australia [2006] WASCA 204.

[41] I v The State of Western Australia [16] (Steytler P).

[42] I v The State of Western Australia [22] (Steytler P).

[43] The Queen v GH (No 3) [2018] NTSC 25 (GH).

[46] Goodall [27] ‑ [29], [31] (Redlich JA).

[49] Webb, 53 (Mason CJ & McHugh J); I v The State of Western Australia [14] (Steytler P); VIM [251] (Wheeler & Roberts-Smith JJA, Miller AJA).

[50] NTH [84] (Buss P, Mazza & Beech JJA).

[51] Australian Bureau of Statistics, Sexual Violence - Victimisation (2021) - Released 24 August 2021, Table 1. (https://www.abs.gov.au/articles/sexual-violence-victimisation#data-downloads)

[52] As to which see Glanville Williams, Textbook of Criminal Law (1978), 196 ‑ 197.

[53] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J); LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [333] (Buss JA).

[54] See [38] above.

[55] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [114] (Buss JA, Steytler P agreeing), [9] (Pullin JA).

[60] Appellant's Amended Submissions dated 15 June 2022 [35] (WAB 28).

[62] Appellant's Amended Submissions dated 15 June 2022 [56] (WAB 31).

[65] Trial ts 1059; BAB (CACR 114 of 2021; CACR 116 of 2021), 62.

[66] Trial ts 1060; BAB (CACR 114 of 2021; CACR 116 of 2021), 63.

[67] Trial ts 1061; BAB (CACR 114 of 2021; CACR 116 of 2021), 64.

[68] Trial ts 1063; BAB (CACR 114 of 2021; CACR 116 of 2021), 66.

[69] Trial ts 1067; BAB (CACR 114 of 2021; CACR 116 of 2021), 70.

[70] Trial ts 1068; BAB (CACR 114 of 2021; CACR 116 of 2021), 71.

[71] Trial ts 1069; BAB (CACR 114 of 2021; CACR 116 of 2021), 72.

[72] Trial ts 1069; BAB (CACR 114 of 2021; CACR 116 of 2021), 72.

[73] Trial ts 1070; BAB (CACR 114 of 2021; CACR 116 of 2021), 73.

[74] Trial ts 1071; BAB (CACR 114 of 2021; CACR 116 of 2021), 74.

[75] Trial ts 1071 - 1074; BAB (CACR 114 of 2021; CACR 116 of 2021), 74 - 77.

[76] Trial ts 1074 - 1075; BAB (CACR 114 of 2021; CACR 116 of 2021), 77 - 78.

[77] Trial ts 1076; BAB (CACR 114 of 2021; CACR 116 of 2021), 79.

[78] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); North v The State of Western Australia [2020] WASCA 6 [32] (Buss P & Mitchell JA).

[79] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).

[80] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] (Steytler P).

[81] Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 (Musgrave) [7] (Quinlan CJ).

[82] See R v Clark [2000] WASCA 229 [11] (Wheeler J, Kennedy & Pidgeon JJ agreeing); The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P, Martin CJ, McLure, Buss & Miller JJA agreeing); The State of Western Australia v Hussian [2020] WASCA 186 (Hussian) [119] - [120] (Buss P, Mazza & Beech JA); Musgrave [110] ‑ [113] (Buss JA).

[83] Hussian [120] (Buss P, Mazza & Beech JA); Thong v The State of Western Australia [2020] WASCA 182 (Thong) [221] (Buss P, Mazza & Beech JA).

[84] Thong [217] (Buss P, Mazza & Beech JA).

[85] See [153] above.

[86] SJN v The State of Western Australia [2016] WASCA 215 (SJN).

[87] Appellant's Submissions dated 21 December 2021 [24] (WAB 76).

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

[89] Clarke v The State of Western Australia [2013] WASCA 67.

[90] Lindsay v The State of Western Australia [2010] WASCA 142.

[91] See particular (a) of ground 2 (Sachdeva) (WAB 67).

[92] Appellant's Submissions dated 1 November 2022 [28] (WAB 73).

[93] Appellant's Submissions dated 1 November 2022 [28] (WAB 73).

[94] Ngo v The Queen [2017] WASCA 3 (Ngo).

[95] House v The King (1936) 55 CLR 499.

[96] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32] (French CJ, Crennan & Kiefel JJ) (Green); Stanley v The State of Western Australia [2018] WASCA 229 [40]; Dunn v The King [2023] NSWCCA 1 [46] ‑ [48].

[97] Appellant's Submissions dated 1 November 2022 [32] (WAB 75).

[98] Appellant's Submissions dated 1 November 2022 [34] (WAB 75).

The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1995] VICSC 205; [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).

An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).

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

MEHTA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 24 (8 February 2023)

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