17 His Honour then proceeded to sentence Tiernan, as described, followed immediately by the sentence of the appellant.
18 The appellant appeals against the sentence on six grounds. Ground 1 was that the sentences imposed were manifestly excessive. Ground 2 was that the sentencing judge attributed too much weight to the appellant's prior convictions. Ground 3 alleged that the sentencing judge imposed sentences that were disproportionate to the gravity of the offences in the light of their objective circumstances. Ground 4 asserted that the judge erred in not considering the period of breached parole owed by the appellant in fixing sentence. Ground 5 was that the judge erred in applying s.16(3B) of the Sentencing Act. Ground 6 asserted that the sentence was manifestly and unjustifiably disparate from that imposed upon the co-offender, Tiernan, (in other words, lack of parity).
19 Turning to the grounds of appeal, it is preferable to leave Ground 1 to the last and, therefore, I turn to the second ground, namely, the allocation of disproportionate weight to the prior convictions of the appellant. It is convenient at this point (as the appellant's counsel had prepared his submissions that way) to deal at the same time with ground 6, that is, disparity with the sentence imposed on the co-accused. It was emphasised in the course of submissions for the appellant that, whilst he had a significant prior history and the co-accused had only one prior conviction, nevertheless, the offences represented "a joint enterprise" with the benefit accruing to the co-accused. As observed above, the co-accused was sentenced to a term of imprisonment of 13 months with eight months of that period being suspended. When compared with the co-accused it was submitted that the sentence imposed on the appellant was inappropriate and disparate. It was submitted that too much weight was placed on the appellant's prior convictions.
20 In my view the sentencing judge was entitled to take into account the extensive criminal history of the appellant. His Honour made comparative remarks with respect to the history of the co-accused. However, those remarks, in my view, can be considered in the context of the comparison with the record of the appellant. As observed by Tadgell, J.A. in R. v. Cuong Manh Tien[3], significant disparity should be capable of "rational explanation". In my view the rational explanation in this case lies in the substantial differences between the criminal records of the appellant and the co-accused. Consideration of his Honour's reasons reveals that Tiernan had a number of factors that the judge weighed in her favour: her relative youth, her lesser number of convictions, her relationship with her young children, her employment and living arrangements and the impact on her life of her relationship with the appellant. The sentencing judge said of Tiernan that she was at a stage of her life when she had to make choices about the future and referred to the aforesaid factors. When the circumstances of Tiernan and the appellant are compared I do not consider that the disparity in their sentences is capable of giving rise to "a justifiable sense of grievance" or "the appearance that justice has not been done"[4]. It follows that in my view grounds 2 and 6 were not made out.
21 The third ground of appeal was that the sentences imposed on the appellant were disproportionate to the gravity of the crime. A number of factors were submitted on behalf of the appellant: that the burglary was of a shop as distinct from a residential property; that the items that were the subject of the theft had a value of $1,700.00 being for the scooter, and between $3,000.00 and $5,000.00 being for the red Holden Commodore car; that the charges could readily have been disposed of in the Magistrates' Court and were not extreme examples of the particular offences; the personal circumstances and history of the appellant and, in particular, his work history up until a car accident combined with his positive attempts at rehabilitation; and, most of all, his relationship with his partner and her children. It was submitted that these matters were not allocated sufficient weight by the sentencing judge. In my view consideration of the reasons below discloses that all of those matters were considered in the overall sentencing synthesis. In all the circumstances of the appeal, the sentences could not be described as disproportionate to the facts underlying the offences. It follows that I do not consider that ground 3 is made out.
22 I turn to grounds 4 and 5 concerned with the treatment of the breach of parole and the operation of s.16(3B) of the Sentencing Act. It was submitted that, as a result of the breaches of parole by the appellant, he is required to spend a period of more than four and half years in custody. It was submitted that, as a matter of totality, this factor should have been taken into account by the sentencing judge and that his Honour erred in not considering all the requirements of s.16(3B) of the Sentencing Act.
23 Section 16(3B) of the Sentencing Act provides that sentences for offences committed whilst a person is on parole must, unless otherwise directed by the Court because of the existence of "exceptional circumstances", be served cumulatively on the outstanding period of parole which may be required to be served. It is apparent that the sentencing judge was not urged to find exceptional circumstances in this case. Indeed, there was no submission made to his Honour to the effect that s.16(3B) was not operative. Even so, if consideration is given to the overall circumstances of the offences and as applied to the appellant, in my view there is nothing in the nature of exceptional circumstances that would warrant the exercise of the discretion under s.16(3B) in this case.
24 In my view, it is clear that the judge below took account of the operation of s.16(3B) of the Act. Indeed, his Honour specifically stated so in his reasons. As observed earlier, no submissions were made to the judge concerning exceptional circumstances for the purposes of the relevant section. In my view, in light of the overall circumstances of the offences, the prior history of the appellant and, in particular, the fact that counsel for the appellant below made submissions to the sentencing judge in relation to the anticipated parole period to be served, it is
apparent that the sentence was imposed after due regard to all the circumstances was given. When consideration is given to the submission that, overall, the sentence was manifestly excessive, I do not consider the sentences offended the principal of totality. It follows that in my view grounds 4 and 5 of the appeal were not made out.
25 I turn, finally, to the first ground of appeal, namely, that the sentence was manifestly excessive. The submissions on behalf of the appellant criticised the sentencing judge for taking into account prior court statistics that reflected certain median terms for the offences of burglary and car theft. It was submitted on the appeal that the circumstances of the appellant's offences did not represent extreme examples of the offences and that, therefore, they did not fall within or beyond the median. In the course of the reasons for sentence a further passing observation was made to the effect that the breach of parole by the appellant led to the sentence that was imposed below being served cumulatively.
26 In the course of sentencing the appellant, the judge took into account all matters that were relevant to the commission of the offences and also the circumstances of the offender, including his prior convictions. In particular, I note there were 20 prior convictions for theft and 14 prior convictions for burglary in the appellant's record of convictions before the sentencing judge. It is not apparent in my view that there was any error in the nature of manifest excess especially when the maximum penalties are considered. The sentence imposed was within range. I do not consider that the first ground of appeal was made out.
27 Accordingly, I would dismiss the appeal against sentence and order accordingly.