Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Sentence - Attempt to pervert the course of justice - 15 months' immediate imprisonment - Whether manifestly excessive - Range of sentences ordinarily imposed for offences of the kind - Traffic offence - Speeding - Notice to police falsely nominating other appellant as driver - Other appellant signing false declaration asserting he was driving - Whether suspended sentence appropriate - Whether distinction should have been drawn between offenders

Ranford v The State of Western Australia - CACR 72 of 2006:

Sentence of 8 months' imprisonment substituted and backdated to 15 May 2006

Bassan v The State of Western Australia - CACR 73 of 2006:

Sentence of 6 months' imprisonment suspended for 12 months with effect from 15 May 2006 substituted

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 7623; 24 April 1989

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Goulding (1991) 56 A Crim R 75

Hatty v Pilkinton (No 2) [1992] FCA 226; (1992) 35 FCR 433

Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992

Macri v The State of Western Australia [2005] WASCA 225; (2005) 31 WAR 233

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

R v Hunter, unreported; CCA SCt of WA; Library No 8990; 7 August 1991

R v Rogerson [1992] HCA 25; (1992) 174 CLR 268

R v Swain [1999] WASCA 22

Ranford v The State of Western Australia [2006] WASCA 134

Rauhina v The Queen [2002] WASCA 91

Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992

Hull v The State of Western Australia [2005] WASCA 194; (2005) 156 A Crim R 414

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

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

1 MARTIN CJ: At the hearing of this appeal on 26 July 2006, I joined with the other members of the Court in allowing the appeals, quashing the sentences imposed and substituting the sentences set out in the reasons given by Roberts-Smith JA, with which I agree.

2 ROBERTS-SMITH JA: These two appeals against sentence were heard on 26 July 2006. Each appellant had been sentenced by Groves DCJ in the District Court at Broome on 15 May 2006 to 15 months' immediate imprisonment for an offence of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (WA).

3 Following the hearing the Court unanimously allowed the appeal and quashed the sentences. In relation to the appellant Ranford ("Ranford"), we substituted a sentence of 8 months' immediate imprisonment to commence on 15 May 2006. In relation to the appellant Bassan ("Bassan"), we substituted a sentence of 6 months' imprisonment with effect from 15 May 2006, but ordered that it be suspended for a period of 12 months. We indicated that we would publish our reasons later. These are my reasons.

4 Both appellants had previously applied for bail. Those applications came before me. They were dismissed. My reasons were published on 3 July 2006 (Ranford v The State of Western Australia [2006] WASCA 134) ("the bail judgment").

5 The facts of the offences, the matters put to the sentencing Judge in the primary court and an outline of his Honour's sentencing remarks are set out at [24] - [50] of the bail judgment. I adopt without repeating what I said there and those paragraphs are to be read as part of these reasons.

"1. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion, by imposing a sentence that was manifestly excessive when proper regard is had to all the circumstances of the offence and to all the circumstances of the appellant.

(a) The learned sentencing Judge erred by failing to give sufficient weight to the antecedents of the Appellant.

(b) The learned sentencing Judge erred by giving excessive weight to general deterrence.

2. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion by not properly considering whether to suspend the sentence and failing to suspend the sentence."

7 Those are grounds 1 and 3 in Bassan's appeal. Bassan has an additional ground (ground 2) which is:

"The Learned Sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence on the Appellant which had an unjustified parity to the sentence imposed on the co-offender thus failing to reflect the respective lower level of culpability of the Appellant in comparison to the culpability of the co-offender."

8 It is convenient to deal with ground 1 in both appeals first.

9 As framed, ground 1 suffers from the deficiency identified by Wheeler JA in Macri v The State of Western Australia [2005] WASCA 225; (2005) 31 WAR 233, at [5] - [8]:

"[5] The Supreme Court (Court of Appeal) Rules 2005 (WA), provide by r 32(4)(b)(iv) that grounds of appeal must not merely allege that a sentence is excessive or inadequate. It follows that such a ground must be particularised, or must be stated in some different way. However, as Gleeson CJ and Hayne J observed in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]:

'Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.'

[6] That is, the rule requires appellants to particularise something which will generally not be susceptible of detailed explanation or argument, but, rather, will either appear or not on the face of the sentence.

[7] It seems to me that there are a number of ways in which useful assistance can be afforded to the Court of Appeal, and the ground particularised in respect of allegations of this kind, however. For example, as Gleeson CJ and Hayne J noted, the respect in which the sentence is alleged to be inadequate or excessive may be stated. For example, it may be asserted that the wrong type of sentence entirely has been imposed (for example, by imposing a custodial rather than a non-custodial). It may be that, although it is conceded that the sentence falls within the usual range of sentences for the relevant offence, the personal circumstances of the offender are such as to render the sentence manifestly excessive in relation to him or her. It may be that it is asserted that the sentence falls outside the range of sentences usually imposed and, where that is the case, it will usually be possible to particularise the allegation by referring to, or listing, those cases which the appellant asserts demonstrate what the usual range is. Where there is no established range, it may be asserted simply that, seen against the statutory maximum able to be imposed, the sentence is excessive. Where sentences are imposed in respect of more than one offence, it may be conceded that the individual terms are not excessive, but it may be asserted that they are, in their totality, either disproportionate to the criminality of the offending overall, or that their cumulative effect is such as to be 'crushing'.

[8] No doubt there are other sorts of particularisations which will be appropriate in particular cases, but it can be seen from these observations that an allegation of manifest excess is susceptible of some further elaboration, although not necessarily elaboration of a detailed kind."

10 In this case, the particulars assert specific error - but the submissions do not go to show how such errors are said to appear in his Honour's sentencing remarks, and it is apparent the contention really is that the sentences fell outside the appropriate range for offences of this kind.

11 The appellant submits the sentencing Judge categorised the offences committed by these appellants as being "among the most serious instances" of the offence of attempting to pervert the course of justice.

12 It is true to say that any offence of that kind is serious, but clearly circumstances vary and it is always necessary to make an assessment of the criminality of the circumstances of the offending in the particular case, when imposing sentence. The ways in which offences of this kind may be committed can take many forms and can strike at any point of the administration of justice (R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 280, per Brennan and Toohey JJ). In Hatty v Pilkinton (No 2) [1992] FCA 226; (1992) 35 FCR 433, it was by a lawyer representing a client in court knowing the client was using a false name. Black CJ there adumbrated other examples (438):

"The offence has been said to be broadly conceived and defined: P-Gillies, Criminal Law (2nd ed, 1990), p 771. It can be committed in a wide range of circumstances including making threats to witnesses (see R v Kellett [1976] QB 372), tampering with a blood sample (see R v Murray [1982] 1 WLR 475; [1982] 2 All ER 225) and requesting a potential witness to make a false statement for the purpose of preventing a proper investigation which may thereby render less likely the possibility of a criminal prosecution being undertaken or succeeding (see R v Sinclair (1989) 44 A Crim R 449). In its Report No 96, Criminal Law - Offences Relating to Interference with the Course of Justice (1979), p 85, the Law Commission referred to then recent instances of persons pleading in another's name and cited newspaper reports of such cases in which there had been convictions for attempting to pervert the course of justice or for conspiring to do so."

13 In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, the offence involved endeavours to bribe or intimidate a woman to plead guilty to an offence.

14 The present case involved the execution and presentation of a statutory declaration to police so as to attract the administrative allocation of a conviction and demerit points to a person other than the offender who had been the driver, so that Ranford would not lose four demerit points and the breach of his extraordinary licence conditions would not be detected, thus potentially leading to the loss of it. That is assuredly serious, but given the possible ways of committing the offence, it is not difficult to imagine there may be many more serious.

15 In my opinion it would have been erroneous for his Honour to have categorised this offence as amongst the most serious instances of attempting to pervert the course of justice. However, that is not what his Honour said. He described it (AB 63) as "... clearly a serious instance of attempting to pervert the course of justice" and later (at AB 65), as "serious". He was not wrong to so describe it.

16 What this ground calls for is an examination of cases of this kind to ascertain whether or not there is a "range" of sentences, and if so, what that is.

17 Rauhina v The Queen [2002] WASCA 91 was a case in which the appellant had been convicted of four offences, the fourth of which was attempting to defeat the course of justice. The other three were assault occasioning bodily harm, entering a residence with intent to commit an offence therein, and stealing a vehicle with threats of actual violence. He had pleaded guilty to the first count and was convicted of the remainder after trial before a jury.

18 In broad terms, the facts were that the appellant's car had been damaged while parked in a car park. He believed it was the complainant who had done the damage. He went to the appellant's home, taking with him his young nephew. He and his nephew were both of large and powerful build. The complainant was a relatively small man, approaching 50 years of age. The appellant kicked the door and demanded the complainant come out. He then assaulted him, punching him to the head. At first the complainant denied damaging the car, but after being punched a number of times, agreed he had done so. The appellant demanded the complainant give him his car whilst the appellant's was being repaired. The complainant agreed to do that and went into the house to get the keys. The appellant followed him in. The appellant kicked a mirror in the bedroom, and continued to assault the complainant. Once he had obtained the keys, the appellant left, threatening the complainant that if he contacted the police, the appellant would kill him. Nonetheless, the complainant did tell the police. There were then three telephone conversations between the appellant and the complainant. Certainly in at least one of these, the appellant threatened the complainant with violence if he did not withdraw the charges. The appellant had previous convictions for breach of a violence restraining order and for assault.

19 The appellant was sentenced to 9 months' imprisonment on count 1, 3 years' imprisonment on each of the second and third counts to be served concurrently and a further sentence of 3 years' imprisonment on the fourth count to be served cumulatively. The total effective sentence was therefore 6 years.

20 On the application for leave to appeal against sentence, it was submitted the sentence for the offence of attempting to defeat the course of justice was manifestly excessive. As to that, Wheeler JA (Malcolm CJ and McKechnie J concurring) pointed out (at [16]):

"So far as the first of those arguments is concerned, it has often been noted in this Court that offences of this type strike at the heart of the criminal justice system and that there is a need for general deterrence in such cases. There is no tariff for such offences. However, the giving of a false name to the police, entering into a false recognisance and the like in the context of traffic offences, have not unusually attracted sentences of imprisonment of the order of 12 to 18 months (eg Jeffrey [sic: Jeffery] v The Queen, unreported; CCA SCt of WA; Library No 925357 [sic: 920357]; 3 June 1992 and Wright v The Queen, unreported; CCA SCt of WA; Library No 925531 [sic: 920531]; 20 August 1992). More serious offences of this type have met with longer sentences; in Connell v The Queen, (unreported; CCA SCt of WA; Library No 940731; 22 December 1994 at 356 and following) the Court upheld a sentence of 5 years' imprisonment for a sophisticated, prolonged and persistent attempt, albeit one which was undertaken to protect that appellant from investigation and prosecution rather than to shield the guilty from conviction, and in which there was no suggestion of violence or a threat of violence."

21 Her Honour noted that the threat in that case had been made approximately two weeks after the other offences. She contrasted that with the common situation in relation to traffic offences where a false name may be given in panic on the spur of the moment. Also, there it was a threat made to shield the guilty person who was the appellant himself and it was a threat of violence made to a person who had already been the subject of a violent assault by the appellant. He was the central witness in the case against the appellant. In her Honour's view those factors justified the sentencing Judge reaching the view that was one of the more serious examples of such an offence and that the sentence of 3 years' imprisonment was not a disproportionate one, having regard to those circumstances.

22 It is important to bear in mind here, that Rauhina and the cases there referred to, concerned sentences imposed before 31 August 2003, the date upon which amendments to the Sentencing Act 1995 (WA) requiring reduction of sentences by one-third to accommodate changes in the parole and remissions regime, came into effect (see s 22, s 29(2) and Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). By cl 2(1) of that Schedule, a court imposing a fixed term of imprisonment after 30 August 2003, must impose one that is two-thirds of the sentence it would have imposed prior to the amendments). For purposes of comparison of sentences imposed after that date, with sentences imposed prior to it, it is therefore necessary to add one-third to the former or deduct one-third from the latter. Thus, the 3 year sentence in Rauhina equates to a 2 year sentence imposed after 31 August 2003, and a "range" of 12 to 18 months expressed prior to 31 August 2003 equates to a "range" of 8 to 12 months after that date. And the sentences of 15 months' imprisonment imposed here, are equivalent to sentences of just under 23 months before 31 August 2003.

23 In Goulding (1991) 56 A Crim R 75, the applicant was a passenger in a motor vehicle which was involved in an accident. Her boyfriend ("K") was the driver. He had no licence, having previously been suspended for life from holding or obtaining one. K and the applicant had discussions with the driver of the other car in which K agreed to pay her damages and not report the accident. The other driver did subsequently report it, and identified K as the driver. K subsequently acknowledged in a telephone conversation with a police officer that he was the driver, but nothing further was heard for some time. In the meantime, the applicant and K discussed it and became concerned about the possibility of K going to prison. They decided the applicant would make a false report to police, naming herself as the driver and fabricating an account of how the other driver had mistakenly identified K. The applicant gave that account to police when she attended at the Traffic Branch. The police officer there explained to her that the information police had indicated that K had been driving and if she was lying, they could be charged with conspiracy. She maintained she was the driver. She was warned not to fill out and sign an accident report form if that was not true. She nevertheless did so. In it, she gave a detailed false account.

24 She was later interviewed again, at some length. She adhered to her false story.

25 Sometime after that, K was interviewed. He admitted he had been the driver and that the two of them had concocted a false story.

26 The applicant was interviewed again the following day and when confronted with her co-accused's confession, admitted the offence.

27 The two offenders were charged, pleaded guilty, and each was sentenced to 12 months' imprisonment.

28 In Goulding, Franklyn J (with whom Rowland and Owen JJ agreed) said (at 78 - 79):

"The courts have often and firmly expressed the view that an offence of this nature is a serious one which would normally attract a custodial term. That view has been restated recently in Dempsey (unreported, Court of Criminal Appeal, WA, Malcolm CJ, Brinsden and Rowland JJ, No 24 of 1989, 24 April 1989); Higgins and Bejawn (unreported, Court of Criminal Appeal, WA, Wallace, Pidgeon and Rowland JJ, No 40 of 1990, 25 July 1990) and in the Crown appeal Hunter (unreported, Court of Criminal Appeal, WA, Library No 8990, 7 August 1991). In Hunter his Honour the Chief Justice quoted the following passage from Wallace J in Higgins and Bejawn:

'Whilst each of the applicants are very young indeed, the offence of attempting to defeat the course of justice has consistently been treated, like perjury, as a crime that strikes at the very heart of the administration of justice and, as such, deserving of custodial punishment: Baba [1977] 2 NSWLR 502 and Dempsey.'

He then pointed out that Higgins and Bejawn was a case 'regarded as falling between the middle and top of the scale of the statutory punishment'. It involved a preconceived plan and put the police to considerable trouble. The mitigating factors were the ages of the applicants, their previous good character and pleas of guilty. The offences sought to be concealed were quite serious drug offences. The Court of Criminal Appeal refused to interfere with the sentence of 17 months imprisonment.

In Hunter a fine of $500 had been imposed at first instance when, following an accident with a motor vehicle driven by him whilst his licence was under cancellation, Hunter gave the name of a friend as his name, informed the friend that he had so done and agreed with the friend that the deception would be maintained for insurance purposes. When interviewed by the police concerning the accident he initially denied that he was the driver but later admitted the true facts. In imposing a fine of $500 the sentencing judge was of the view that he was likely to be imprisoned for driving under suspension. His Honour the Chief Justice said (at p 10):

'I remain of the view that the offences of attempting to pervert the course of justice, or conspiring to pervert the course of justice, are offences which are sufficiently serious, in that they strike at the heart of the administration of justice, as not to be offences which could ordinarily be disposed of by the exercise of a non-custodial option such as the payment of a small fine. I would not exclude a period of probation coupled with a community service order in an appropriate case, particularly of a youthful first offender.'

A sentence of six months imprisonment was imposed in lieu of the $500 fine.

The applicant has referred to a number of decisions relating to offences of the same or a similar nature and to the penalties imposed in respect of each. A custodial term was imposed in all but one, the terms ranging from nine months to two years. The one exception was distinguishable on its own facts. Each of the others also has to be considered on its own facts. In some of those cases the deception was carried through to the extent of deceiving the court, a circumstance which, as counsel rightly points out, adds to the gravity of the circumstances. That however was not common to every case and cannot be said to be the factor which determined whether or not imprisonment should be imposed. As I said in Dawes (unreported, Court of Criminal Appeal, WA, Library No 8944, 12 July 1991):

'There is an increasing tendency on appeals against sentence to cite cases with overall similar facts but with lesser penalties than that the subject of the appeal. That was done in this case. Although in the interests of consistency regard must be had to such cases they cannot be determinative of the appropriate penalty. There are always differences. Without being exhaustive they may lie in the relationship between the offender and victim, the circumstances of the offence, the antecedents of the offender and/or the victim, the circumstances of the victim, the effect of the offence on the victim and even conduct of the offender subsequent to the offence. Unless all relevant matters from each such case are fully before the court the case decision is not a good guide to the appropriate disposition of the matter before the court. The application of such cases without a full appreciation of all relevant circumstances would encourage a 'tariff' approach to sentencing, a result which in my view is undesirable and not within the contemplation of the legislation. Consistency in sentencing is another matter. It is achieved by a recognition of the similarities and dissimilarities between the facts of the case in question and those of the purportedly similar cases which the court is asked to apply in fixing sentence.'

In the present case there is no 'victim' in the sense there referred to but the principle is the same."

29 His Honour went on to say that on the facts of the case, there was no sufficient reason for the sentencing Judge to consider anything other than a custodial term as the appropriate disposition of the offence. There were no mitigating circumstances of a sufficiently persuasive nature as to call for a departure from imprisonment which the offence "ordinarily" would attract. Noting that the offence carries a maximum term of 7 years' imprisonment, his Honour was unable to say that 12 months with eligibility for parole, rather than some lesser term, was wrong. In addition, he considered it relevant that to quash the sentence of 12 months and impose a lesser term would deprive the applicant and the public of the benefit of the parole eligibility ordered. That is because custodial terms less than 12 months do not attract eligibility for parole (Offenders' Community Corrections Act 1963 (WA), s 37A). So it was his Honour thought that unless the sentence were to be reduced to a term which on his view would be clearly inadequate, a reduction would have only minimal effect on the period the applicant would in fact have to serve in custody, assuming parole. Finally, it was his view that the sentence was within the appropriate range.

30 The case of R v Hunter, unreported; CCA SCt of WA; Library No 8990; 7 August 1991, discussed in Goulding, involved an offence of conspiracy to pervert the course of justice. The facts are sufficiently set out in the passage quoted above. The Chief Justice referred to Dempsey v The Queen, unreported; CCA SCt of WA; Library No 7623; 24 April 1989, in which the appellant gave a false name to police and so eluded the authorities for 18 months. He persisted in the deception using the same false name in the court proceedings before the Justices. The deception had the added advantage that it was not brought to the court's attention that he had previously been convicted of a similar traffic offence. He was young and without a substantial record. In that case, upholding a sentence of 9 months' imprisonment, Malcolm CJ (with whom Brinsden J agreed) said although it might be considered a relatively severe sentence having regard to the youth of the offender notwithstanding the severity of the offence, no error in the exercise of the sentencing Judge's discretion had been shown.

31 Rowland J, dissenting, thought a probation order should have been given, although he observed (at 6):

"I accept everything said by counsel for the respondent that the offence of attempting to pervert the course of justice is an extremely serious offence - see Baba v The Queen [1977] 2 NSWLR 502. It is basic to the administration of justice that those offences are seen to be recognised by the courts as serious. I do not accept the suggestion by counsel for the applicant that that particular offence is one which would normally be dealt with by a small fine. There is a difference between giving a false name to a police officer and carrying the deception through to answering prosecution for offences under a false name.

Having said that, however, the law is not so rigid that it cannot deal with such offences otherwise than by way of a custodial sentence." (Emphasis added)

32 In Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992, a sentence of 18 months' imprisonment on one count of attempting to pervert the course of justice was reduced to 12 months' imprisonment on appeal. The 30-year-old offender had provided a false name to police. Significantly he had also entered into a false bail recognisance and failed to appear in court, with the result that a warrant was issued in that false name. The deception continued for 2 years 3 months. Malcolm CJ noted a serious aspect of the offence was the entering of the bail undertaking. Having reviewed a number of authorities, his Honour concluded they did not suggest any particular "tariff" for such offences and that allowance must be made for variations in the circumstances of individual cases. There, the sentence was held to be manifestly excessive because the applicant was not given sufficient credit for his co-operation with police once apprehended, the fact that he pleaded guilty at the first opportunity, and the fact it was not a case where the deception was persisted to a point where the court was deceived.

33 An aggregate sentence of 18 months' immediate imprisonment for two offences of attempting to pervert the course of justice was reduced on appeal to 12 months' imprisonment in Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992. There were very particular features going to mitigation in that case. When she was detected shoplifting, the applicant gave a false name and address. She had previously stolen a driver's licence from a friend and she produced that to support the false details. Later, she took part in a police interview under that name and subsequently attended a police station and received a summons in that name. Finally, she went to court, pleaded guilty to stealing and was fined in the false name. That was the first count. The second count arose out of a speeding offence. When she was stopped by police she gave another false name. That was a different one. A traffic infringement notice was issued in that name. When she was interviewed by police about the use of the false names, she told them she did not use her own name on the first occasion because she had a previous record, and did not use it on the second because she did not hold a current motor driver's licence.

34 She was a 32-year-old mother of a 12-year-old child from her first marriage and two children aged 7 and 8 from her second. She had been separated for three years from her second husband. After the offences were committed, her husband moved back into the house and took control of the 7 and 8-year-old children. The applicant had then moved into another house with her 12-year-old daughter, who she was supporting by a supporting parent's benefit. Following her imprisonment, the applicant's 12-year-old daughter went to live with the applicant's mother, who was 64 years of age and not coping well. The child had also been seriously affected and was seeing a counsellor and undergoing psychiatric counselling. The effect of the applicant's imprisonment on the young child was a significant factor in Wallwork J (with whom Pidgeon and White JJ agreed) concluding that the aggregate term was too severe. There were also other substantial mitigating circumstances.

35 R v Swain [1999] WASCA 22 was a case in which the offending continued over a five year period. The offender used a false licence to register and transfer three vehicles over that period. He also produced them to police on a number of occasions when he was stopped by them in relation to infringement notices, thus avoiding convictions for those offences. He was charged with attempting to pervert the course of justice by the use of another person's driving licence whilst he was suspended from holding a driver's licence for life. He was sentenced to 18 months' imprisonment, suspended for 2 years. The Crown appealed. On appeal, the term of imprisonment was reduced to 15 months' imprisonment but was ordered to be served immediately. The reduction in the term was made because of the "double jeopardy" aspects applicable to a Crown appeal and because the respondent had already served part of the suspended sentence.

36 Without being at all exhaustive, the following considerations may be discerned from the authorities as affording guidance to sentencing in cases involving the giving of a false name to avoid the consequences of traffic offences:

(1) Offences of attempting to pervert the course of justice strike at the heart of the justice system and there is a need for general deterrence in such cases.

(3) A term of imprisonment will ordinarily be imposed, although other dispositions are not excluded in an appropriate case, particularly for a youthful first offender. A fine would normally not be appropriate.

(4) Where imprisonment has been imposed, sentences have ranged from around 6 to 17 months pre-31 August 2003, or around 4 to 11 months after 31 August 2003. Clearly these are not fixed starting and ending points of sentences which may be imposed, but are general indicia only, for purposes of broad comparison.

In addition to all those circumstances relating to the particular case and the particular offender which must be taken into account, some of the factors which bear upon the assessment of the seriousness of offences of this kind include:

(a) the nature and seriousness of the consequences sought to be avoided (as for example, whether to avoid demerit points, or to avoid conviction);

(b) the period of time over which the deception occurred and whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;

(c) whether the deception involved some other person, either as an accomplice or a victim;

(d) whether there was any threat or violence involved;

(e) whether the deception caused diversion of investigative, police or court resources;

(f) whether the offence was a "spur of the moment" response or was premeditated, and if so, the degree of premeditation, planning and persistence;

(g) whether the deception was carried through to the extent of deceiving a court, or the creation of false public records, and if so, the extent and consequences of that.

Against the above background, it is convenient to deal with Ranford first.

37 He pleaded guilty at an early stage. Significant credit had to be given for that. He was the instigator of the offence and the only person who would have gained from its commission. Bassan had of course agreed to be paid $1000 for his part, but that was never paid and he otherwise stood to gain nothing from the offence itself.

38 Ranford's offence was to avoid an administrative record of conviction and loss of four demerit points. It did not involve deception of a court, although it would have resulted in falsification of his own record of traffic offences and avoided the apparent breach of the conditions of his extraordinary driver's licence coming to light and the consequent cancellation of it.

39 The period of the deception was short. However, that is obviously because the police investigation exposed it at an early stage.

40 Ranford's offence necessitated the involvement of his friend Bassan as a knowing party to the deception and required Bassan to complete a false statutory declaration. Although there was no threat or violence involved, there was a promise to pay money, for Bassan to commit a criminal act.

41 The offence was premeditated and deliberate on Ranford's part. There was nothing "spur of the moment" about it.

42 Ranford had a relevantly bad history of offences. They included 11 offences of driving without a motor driver's licence (including one as a juvenile); three of driving with false or fraudulently altered numberplates; one of driving an unlicensed vehicle and one of contravening an extraordinary driver's licence. In May 2000 he was given a 6 month suspended sentence of imprisonment for driving under suspension.

43 These offences had a particular relevance to the commission of the instant offence, because it was committed to avoid the consequences of having breached his extraordinary driver's licence.

44 Even allowing for considerations of totality in Rauhina, Ranford's sentence of 15 months' imprisonment (equating to almost 23 months) here seems quite out of kilter with the current equivalent sentence of 24 months imposed in that case, especially if one assumes a discount of approximately 25 per cent for Ranford's plea of guilty. There is, I think, even greater disproportion when one considers the range of comparable sentences for offences of this kind, as identified above. Ranford's sentence is more than double the top of the range. Whilst it is always possible to impose a sentence outside an apparent range in an appropriate case, the circumstances which make that appropriate would have to be shown. There are none shown here which would justify such a marked departure from sentences of imprisonment ordinarily imposed for offences of this kind. This ground has accordingly been made out in respect of Ranford. When one has regard to Bassan's lesser involvement and personal circumstances (to which I shall return below) the departure is even more apparent. This ground is accordingly also made out in relation to him.

45 I turn now to the next ground common to both appeals.

46 The ground claims his Honour failed to properly consider the imposition of a suspended sentence, or alternatively, erred in failing to impose a suspended sentence.

47 The first limb of this ground cannot be sustained. His Honour expressly acknowledged the options open to him, including the imposition of a suspended sentence. He said it would only be in exceptional circumstances that a custodial sentence would not be imposed for such an offence and he concluded that only a sentence of imprisonment was appropriate having regard to the seriousness of the offending. He then specifically considered whether a suspended sentence could be imposed, or whether it should be a sentence to be immediately served. He adverted again to the matters which he had earlier mentioned pertaining to the offences and the circumstances of the appellants, and concluded there was no reason or circumstances which would warrant a suspended sentence. That was in accordance with the approach mandated in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

48 So far as Ranford is concerned, it cannot be said his Honour erred in reaching the conclusion he did, that the only appropriate punishment was a sentence of immediate imprisonment. The factors relating to him which I have outlined above, amply called for a term of immediate imprisonment. This ground cannot be upheld in respect of Ranford. As to Bassan, I consider his Honour erred in concluding there was no reason or circumstance which would warrant a suspended sentence rather than one to be immediately served.

49 Bassan, too, pleaded guilty at an early stage. He was not the initiator of the offence. He agreed to do what Ranford asked. He stood to gain nothing from the commission of the offence itself. He never received the $1000 he was promised by Ranford. Bassan's sole act in the commission of the offence was his signing of the statutory declaration. That is of course the most serious feature of his conduct and it cannot be accepted that he did not appreciate the significance of it. Again, the deception in which he became involved did not get to the point of misleading a court. Bassan had no relevant criminal history and effectively had to be taken as not having any adverse antecedents.

50 Bassan's deliberate participation in the commission of the offence, initially at least on the promise of payment of $1000, involving on his part the signing of a false statutory declaration, was such serious criminal conduct that a term of imprisonment was the only appropriate disposition. But his lesser role in the offence and the other factors I have mentioned relating to his circumstances and antecedents - in particular his lack of previous convictions - and the conclusion of the sentencing Judge that he would not offend in this way again so that rehabilitation was not an issue, were all factors indicating that a suspended sentence was an appropriate disposition in his case. I would accordingly uphold this ground in respect of Bassan.

52 The sentencing Judge found both offenders were complicit to a similar degree and he did not differentiate between them so far as their involvement in the offending was concerned. Although he did not expressly say so, it follows from the imposition of the same sentence of 15 months' imprisonment on each, that the Judge also did not differentiate between the appellants in any other respect. Yet their roles in the offending did not bear the same criminal culpability and Ranford's antecedents were quite bad, whereas Bassan had no relevant criminal history. In my opinion, both the circumstances of their respective involvements in the offence and their own personal circumstances and antecedents, properly called for some differentiation in the sentences. I would also uphold this ground in respect of Bassan.

53 It follows from what I have said about each ground that I consider a different sentence ought to have been imposed in respect of each appellant. Each appeal must accordingly be allowed (s 31(4)(a) of the Criminal Appeals Act 2004 (WA)). That requires this Court to set aside each sentence and impose a new sentence that is either more or less severe, or send the charge back to the District Court to be dealt with further (s 1(5)(a) and (b) of the Criminal Appeals Act). There was no suggestion here that the latter was necessary.

54 The circumstances of this offence were too serious for any disposition other than imprisonment. In Ranford's case, the nature of his offending, as I have articulated it above, were such that a suspended sentence would not have been appropriate. A term of immediate imprisonment was the only appropriate disposition. Prior to the amendments to the Sentencing Act 1995 (WA), I would have imposed a sentence of 12 months' imprisonment. That would fit the circumstances of his offending appropriately within the pre-amendment range. The amendments require that to be reduced by one-third, which produces a current sentence of 8 months' imprisonment. That is the sentence I would impose. No order can be made that Ranford be eligible for parole. Section 89 of the Sentencing Act stipulates that a parole eligibility order must not be made by a sentencing court if the fixed term or aggregate of fixed terms is less than 12 months. That does not mean Ranford would not be eligible for parole. That situation is now covered by s 22 and s 23 of the Sentence Administration Act 2003 (WA), the effect of which is to make parole eligibility automatic for offenders serving sentences of less than 12 months (unless the term is a "prescribed term" as defined, which these are not). By s 23(2) of the Sentence Administration Act, a prisoner serving a term of less than 12 months' imprisonment is eligible to be released on parole when he or she has served one-half of their sentence. By subs (3) of that section, the Chief Executive Officer must make a parole order in respect of such a prisoner, on his or her parole eligibility date.

55 As to Bassan, his involvement in the offence was significantly less culpable than Ranford's, he did not initiate it but was only responding to the approach from Ranford, he stood to gain nothing from the perpetration of the offence itself, his antecedents were, if not good, at least not bad and rehabilitation was not an issue. Having regard to the factors personal to him (which I will not repeat), a sentence of 6 months' imprisonment (equivalent to a pre-amendment sentence of 9 months) would adequately reflect the degree of his criminality. Considering all the matters pertaining to him again, a sentence of that term suspended for 12 months would in my view be appropriate.

56 Ranford's term of imprisonment and the period of suspension of Bassan's sentence, should both be backdated to 15 May 2006.

• Sentences manifestly excessive
• Suspended sentence
• Unjustified parity
• Conclusion