Sentencing Legislation Amendment and Repeal Act 2003, s 29, Sch 1

Appeal allowed and total sentence reduced from 8 years to 7 years

1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 1 November 2002, the appellant and a co-offender, Ms Turner, pleaded guilty in the Supreme Court to two counts of aggravated armed robbery contrary to s 392 of the Criminal Code.

2 Count (1) was that on 4 September 2002 at Leederville, the appellant and one Narelle Cherie Turner stole from a Mr Toombs, with threats of violence, money, the property of Clifton Nominees Pty Ltd trading as Caltex Service Station Leederville. The indictment alleged that the appellant and Ms Turner were armed with offensive weapons, namely, a knife and a syringe, and also that they were in company with each other.

3 Count (2) was that on 19 September 2002, they stole from one Chin Sing Lam, with threats of violence, money the property of Clifton Nominees Pty Ltd trading as Caltex Service Station Leederville. On this occasion it was alleged that the appellant and Ms Turner were armed with an offensive weapon, namely, a knife and that they were in company with each other. The maximum penalty for each of these offences is life imprisonment as provided in s 392(c) of the Criminal Code.

4 The facts as found by the learned sentencing Judge, Miller J, were that, in relation to count (1), at about 5.20 am on 4 September 2002, the appellant and Ms Turner went to the Caltex Service Station at 319 Vincent Street, Leederville. The appellant was armed with a large kitchen knife and Ms Turner was armed with a syringe. The appellant approached the service attendant behind the counter and demanded money, holding the knife in clear view of him. Cash was handed over and the offenders ran from the scene taking $218.

5 Subsequently at about 5.30 am on 19 September 2002, the appellant and Ms Turner again went to the same Caltex Service Station. The appellant was again armed with a kitchen knife and demanded cash from the attendant, holding the knife in clear view of him. Ms Turner stood inside the store and was keeping a lookout. Once the cash was handed over, they tried to leave, but the exit door was locked. The appellant then demanded that the attendant open the doors, which he did. $400 was stolen, but the two offenders were apprehended by police from the nearby Oxford Street station.

6 His Honour noted that the appellant was 34 years of age, unemployed and in a de facto relationship with Ms Turner. The appellant's explanation for the commission of the offences was that they needed money to pay for accommodation and to purchase food and drugs. The appellant had a record of convictions beginning in 1983 when he was a juvenile. As an adult, he had been convicted of numerous stealing offences and also offences of violence, including assaulting a public officer and indecent assault. He was sentenced to imprisonment for 6 months for assaulting a public officer and 2 years for an indecent assault. He was convicted of burglary in 1997 and imprisoned for 2 years and 6 months and was released in December 2001 after serving the full sentence.

7 The appellant was educated to year 10 at Perth Modern School where he was regarded as a good student. He worked in various unskilled jobs after leaving school but, as his criminal record began to mount, he found difficulty obtaining employment and had not worked for some time. He had a history of substance abuse dating back to the age of 13 and had been a regular user of cannabis, amphetamines and heroin. He was described in his pre-sentence report as a 34-year-old man who minimised the seriousness of his offending behaviour, finding it easier to blame the victim rather than take responsibility for his own actions. The report pointed out that having reached the age of 34, he could be expected with maturity to have begun to modify his behaviour. The learned Judge noted, however, that the seriousness of his offences seemed to have escalated and that the writer of the pre-sentence report had correctly pointed out that a custodial sentence was inevitable.

8 So far as the co-offender, Ms Turner, was concerned, the learned Judge noted that she was "a very sad case". At the time of sentencing, Ms Turner was aged 34, unemployed, and in a de facto relationship with the appellant. She had two children aged 13 and 14 who were in her mother's care. Ms Turner had been addicted to heroin for approximately eight years. She had resorted to prostitution and crime to enable her to obtain the drugs she needed. She had a record of convictions including stealing, assaulting a public officer, attempted robbery and drug offences. She also had a poor history of response to community-based orders. The pre-sentence report described her situation as follows:

"Presented before the Court is a 34-year-old lady who has a major addiction to Heroin. She accepts responsibility for her actions in the current offence and reported that her actions were taken in a state of desperation. Her response to community supervision in the past has been unsatisfactory, having completed only 1 of the 4 Orders that she has been subject to. Ms Turner's Court History consists of a number of offences, the majority of which she reports to be related to her drug addiction. She is currently subject to a Suspended Imprisonment Sentence. Ms Turner requires intensive substance abuse counselling, possibly residential rehabilitation, if she is to commence breaking the cycle of her illicit substance abuse. She reported being motivated to remain drug free for her children's sake and has listed numerous community supports to assist her. Of concern to the writer, is the fact that she will remain in a relationship with [the appellant], who also consumes illicit substances, once released from custody.

Given the violent nature of the current offences, Ms Turner's poor response to community supervision in the past and the fact that she is currently subject to a Suspended Imprisonment Order, a community-based disposition is not recommended. Should the Court choose to impose a form of community supervision, substance abuse counselling and psychological counselling may prove to be beneficial to Ms Turner. She would also be able to attend community service. Should the Court impose a custodial sentence, parole eligibility is recommended, upon completion of relevant prison programmes."

9 The learned sentencing Judge commented that it was within this passage that Ms Turner's problem had been identified. His Honour described the problem as follows:

"You want to remain with this man but he, as you can see, is himself drug addicted and there's no hope for you, I don't possibly think, for the future the way you are going. So it is the case that, as the writer of the pre-sentence report appreciates, really a custodial term is the only thing possible for you. You've breached that 18-month suspended sentence by offences of drug offences, possession of property suspected of being stolen and Judge Groves in the District Court on 26 July was very merciful to you by confirming the suspended sentence instead of calling it in, but you have breached it again by reason of these offences and I am going to call it in."

10 His Honour noted that the offences were very serious and that long sentences of imprisonment will ordinarily be imposed for armed robbery.

11 In imposing sentences on the appellant and Ms Turner, his Honour said:

"I take into account personal factors relevant to each of you. I take into account your plea of guilty entered in each case at the earliest opportunity. That's probably the most that can be said for you Spina and for you, Ms Turner, there are some other factors to which I have referred. In imposing sentence I take account of just punishment, deterrence, prevalence of these offences and the possible prospect of rehabilitation and your antecedents in each case.

The sentences to be imposed upon each of you are sentences of imprisonment. I have considered whether they could be suspended but they cannot. I can find no basis to suspend those sentences. You, Ms Turner, are already on a suspended sentence."

12 In the result, the appellant was sentenced to imprisonment for 4 years on both counts to be served cumulatively with an order for eligibility of parole.

13 Ms Turner was sentenced to imprisonment for 21/2 years on count (1) and 2 years' imprisonment on count (2). For the conviction of attempted robbery for which she had been given a suspended sentence, the learned Judge directed that she serve 12 months of that sentence cumulatively upon the other sentences. The result was that the appellant was sentenced to a total of 8 years and Ms Turner was sentenced to a total of 51/2 years' imprisonment with eligibility for parole dating from 20 September 2002.

14 The appellant seeks leave to appeal against the sentences imposed upon him on the following grounds:

"1. The sentencing Judge erred in failing to give proper weight to parity in determining the sentences on counts one and two.

PARTICULARS

1.1 Sentenced the co-offender Turner to 2 1/2 years imprisonment on count one when her role in the offences was the same as the appellant's (she was armed with a syringe), her antecedents were similar to his and her position was aggravated by being on a suspended sentence for attempted armed robbery at the time of committing the offence.

1.2 Sentenced the co-offender Turner to 2 years imprisonment on count two when her role in the offence was only slightly less than the appellant's, her antecedents were similar to his and her position was aggravated by being on a suspended sentence for attempted armed robbery at the time of committing the offence.

2. The sentencing Judge erred in failing to give effect to totality by accumulating the sentences on counts one and two.

3. The sentencing Judge erred in failing to give an appropriate discount for the appellant's co-operation with police and fast track plea of guilty."

15 It needs to be steadily borne in mind that before this Court can interfere with a sentence imposed, it must be shown that the learned sentencing Judge has failed to properly exercise his or her discretion. A Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from that of the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15, 671 - 672] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The proper exercise of the discretion requires the imposition of equality of sentence for the same offence. Different sentences are only justified if the background, previous criminal history and general character of the offender and/or the respective roles of co-offenders in the commission of the offence are not such that require different sentences to be imposed: Cabassi v The Queen [2002] WASCA 305 per Wheeler J at [13].

16 With respect to count (1), the appellant maintained that he and Ms Turner both entered the service station together intending to commit the robbery. Ms Turner was armed with a syringe. They shared the proceeds to purchase prohibited drugs for their own use. Both of them entered the store on the second occasion. They were unable to leave because the exit door had been locked. Once the exit door had been locked, the appellant approached the attendant again and demanded the doors be opened. The doors were unlocked and the appellant and Ms Turner left, going around the side of the building. They were apprehended by police a short distance away in possession of the knife that had been held by the appellant and the cash. Both had participated in a video interview, making full admissions. They had been in custody for some 43 days prior to being sentenced on 1 November 2002.

17 The principle of parity in sentencing requires that where other things are equal, persons concerned in the commission of the same offence should receive the same punishment: see, for example, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 309 per McHugh J who said that:

"If a Judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen [(1984) [1984] HCA 46; 154 CLR 606]" Gibbs CJ, with whom Wilson J agreed [at 616], said [at 610] that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, in other words, to give the appearance that justice has not been done'. Mason J stated [at 613] that an appellate court is entitled to intervene where there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J [at 624], with whom Wilson J also agreed [at 616], was of the view that '[t] he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice.' "

18 It was contended by the Director of Public Prosecutions that the roles of the appellant and his co-offender were fundamentally different in the commission of both offences in that:

(a) the appellant approached the service station attendants on both occasions;

(b) the appellant demanded cash from the service station attendants on both occasions; and

(c) the appellant held the knife in his possession in clear view of the service station attendants on both occasions.

19 It was submitted that the appellant clearly played a more significant role in the commission of both offences. On that basis, it was contended that it was appropriate that the learned sentencing Judge imposed a harsher sentence on the appellant than on his co-offender.

20 The appellant contended, in effect, that he had a justifiable sense of grievance because he was expecting to receive the same sentences as Ms Turner. He said that he was released from Albany prison on 18 November 2001. He had no accommodation and had not been given any way of returning to Perth. Ms Turner met him at the prison gate, having come to Albany by bus the day before. They returned to Perth, where they had no accommodation and no money. They were caught after the second armed robbery some nine months later, having reverted to crime. They did not blame anyone. The appellant contended that they acted together and both agreed to do the two armed robberies.

21 In addition, the appellant contended in support of ground 2, that no allowance was made by the sentencing Judge on account of the totality principle because the two sentences were to be served cumulatively. Finally, it was contended that the sentences imposed did not give sufficient credit or weight to the fact that the appellant co-operated with the police, made full admissions and entered a fast-track plea of guilty. As he put it, "as soon as we were caught we put our hands up for the other robbery that we did".

22 The direction that 12 months of the suspended sentence of 2 years be served cumulatively had the result that Ms Turner would serve 51/2 years of which 41/2 related to the offences they had committed together.

23 In my opinion, the circumstances of this case did not justify the degree of disparity between the sentences imposed upon the appellant and Ms Turner for the armed robberies. As a result, the appellant has been left with a justifiable sense of grievance that he was sentenced to a total of 8 years' imprisonment for these two offences compared to the total of 41/2 years imposed upon Ms Turner for the same offences. At the same time, however, the appellant did play a more active role in the commission of the offences. In my view, the interests of justice and fairness would be served by a reduction of the total term imposed upon the appellant for the armed robberies to 7 years to reflect both the interests of parity and the application of the totality principle. As Steytler J has suggested, this could be achieved by reduction of each of the sentences imposed upon the appellant to imprisonment for 3 years and 6 months with eligibility for parole.

24 For these reasons, I would grant the appellant leave to appeal, allow the appeal and, subject to the comments below, reduce the sentences imposed for each of the armed robberies to 3 years and 6 months to be served cumulatively upon the other sentences. This would have the effect of reducing the total sentence to 7 years. The sentences would commence on 20 September 2002 when the appellant was first taken into custody.

25 In the meantime, however, Parliament has enacted the Sentencing Legislation and Repeal Act 2003 (WA). By proclamation in the Government Gazette dated 29 August 2003, p3833, it was proclaimed, among other things, that Pt 4, other than s 32, and Sch 1 and 2 of the Act came into operation. Section 29 in Pt 4 of the Act provides that:

29. Sentence Administration Act 1995 repealed and consequential amendments

(1) The Sentence Administration Act 1995 is repealed.

(2) Schedule 1 has effect in relation to the repeal effected by subsection (1).

(3) Schedule 2 has effect."

26 Schedule 1 of the Act provides for a number of transitional provisions. In particular, cl 2.1 of Schedule 1 - Transitional Provisions provides that:

"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."

27 There is a question whether cl 2 of Sch 1 applies to the resentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation.

28 If this requirement does apply, the sentences of 3 years and 6 months would each have to be reduced by one-third, namely, 1 year and 2 months, resulting in an adjusted sentence of 2 years and 4 months. The total sentence would then be 4 years and 8 months.

29 In the circumstances, I would invite submissions on the question whether the new provisions apply to the resentencing by this Court of a sentence imposed under the former legislation following a successful appeal against sentence.

30 Finally, I would order that the appellant be eligible for parole in respect of each of the sentences so imposed. While this creates some disparity between the offenders, such disparity is a result of the application of the new legislation applying to one of two co-offenders and not to the other.

31 STEYTLER J: I have had the advantage of reading the judgment of Malcolm CJ. I agree with him that the circumstances of this case did not justify the degree of disparity between the sentences imposed upon the appellant and his co-accused, Ms Narelle Turner, for the two armed robberies.

32 While there was some distinction as regards the role played by each of the two co-offenders in the two robberies, that distinction was not, in my respectful opinion, one of much significance. In the first robbery both were armed, although it is plain that the appellant took the lead, having demanded the money and having held the large kitchen knife with which he was armed in clear view. In the second robbery only the appellant was armed and, once again, he took the lead role. However, his co-accused, Turner, was very much involved, having played her part as a look-out. The two shared the proceeds of both robberies.

33 As to their antecedents, both were 34 years of age. Both were drug addicts, Turner having resorted to prostitution in order to pay for her habit. Both had an unenviable criminal record. The appellant had not long previously been released from prison after serving a sentence of imprisonment for an offence of burglary (he was released in December 2001). Turner was, at the time of each robbery, still subject to a suspended sentence of imprisonment. Both have children. Turner has two daughters who were then aged 13 and 14, both of them having been under the care of her mother. The father of the two girls, who was a heroin user, died some 13 years previously. He was said to have committed suicide, although Turner believes he was murdered by way of the administration of a "hot shot". The appellant has a daughter from a previous marriage, which lasted only seven months. She was aged 14 at the time of sentencing. She was then in the care of her mother. The appellant's parents are both ill. His mother suffers from Alzheimer's disease and his father has an asbestos-related disease. Both the appellant and Turner had troubled childhoods characterised by domestic violence.

34 In my respectful opinion, there was, in all of the circumstances, little to choose between them. That being so, the disparity in the sentences imposed, being one of 11/2 years on count 1 and 2 years' imprisonment on count 2, was too great, even allowing for the different roles played by each and the fact that Turner was also required to serve 12 months of the sentence which had previously been imposed upon her cumulatively upon the other sentences.

35 The principle of parity in sentencing was defined in R v Tiddy [1969] SASR 575 at 577, as follows:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

36 That definition was referred to in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 309, by McHugh J. His Honour went on to say:

"If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ, with whom Wilson J agreed (... at 616), said (... at 610) that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done'. Mason J stated (... at 613) that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J (... at 624), with whom Wilson J also agreed (... at 616), was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice.'"

37 In R v Wilson [2000] VSCA 202; (2000) 116 A Crim R 90 at 95, Chernov JA, with whom Winneke P and Buchanan JA were in agreement, said:

"It seems clear enough that where there is a marked discrepancy in the sentences imposed on two co-offenders (by different judges) such as to give rise to a justifiable sense of grievance in the applicant and to a concern in the mind of an objective bystander that justice has not been done, such a discrepancy is, in itself, a ground on which the appellate court may intervene, even if the sentence in question is unaffected by relevant error ... The requirement for such intervention is founded in fairness, more particularly on the acceptance that there should be equality and treatment as between relevant co-offenders. As the President said in Stirling [2000] VSCA 8 at [40], 'consistency in punishment is a fundamental element in any rational and fair system of criminal justice, and that inconsistency is calculated to erode public confidence in the integrity of the administration of justice.'"

38 The principle there cited is no different when the sentences in question are imposed by the same Judge rather than by different Judges.

39 This was, as I have said, a case of manifest discrepancy. However, the situation is complicated by the fact that, in my opinion, the discrepancy arises primarily out of the fact that the sentence imposed upon Turner was too low. I am, with due respect, unable to accept that a total period of 41/2 years' imprisonment adequately reflected her level of criminality, even allowing for the fact that she was required to serve 12 months of the suspended sentence of imprisonment which had previously been imposed upon her and the operation of the totality principle. In such a case a court is not required to reduce the higher sentence to the point where it equates to that imposed upon the co-offender. As was pointed out by Gleeson CJ (sitting in the Court of Criminal Appeal in New South Wales) in R v Reardon (1996) 89 A Crim R 180 at 182, "[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broader discretionary exercise."

40 In all of the circumstances, it seems to me that the interests of justice and fairness require some adjustment to the sentence imposed upon the appellant solely by reason of the parity principle (the sentencing Judge having made no other error, in my opinion), but that the adjustment should be a limited one. I would reduce each of the periods of imprisonment imposed upon the appellant to one of 3 years and 6 months' imprisonment with eligibility for parole. Anything less would, in my opinion, be inadequate, even given the fact that there is still a disparity between the two sentences (cf, in this respect, R v Capper (1993) 69 A Crim R 64 at 74; Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999; Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541 and R v Ma [2001] WASCA 325; (2001) 125 A Crim R 349 at 366 - 370).

41 That disposition would, of course, assume that the resentencing is to take place under the regime which preceded the coming into force of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003 (together "the 2003 legislation"). If, as may be the case, the resentencing is to be effected under the provisions of the 2003 legislation, then, by virtue of s 29 of the Sentencing Legislation Amendment and Repeal Act, read with Sch 2 thereof, each of the sentences which I would have imposed would be required to be reduced by one third to periods of imprisonment of 2 years and 4 months, resulting in a total period of imprisonment of 4 years and 8 months. The applicant

would still be eligible for parole but this would, on this assumption, be calculated in accordance with the provisions of s 93(1) of the Sentencing Act 1995, as amended by the Sentencing Legislation Amendment and Repeal Act. Like the Chief Justice, I would invite submissions (which neither counsel have had an opportunity to make) on the question whether the 2003 legislation applies to the sentences now imposed.

42 MCKECHNIE J: I would grant leave and allow the appeal for the reasons expressed by Malcolm CJ.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SPINA -v- THE QUEEN [2003] WASCA 219 (S)

Supplementary decision - Impact of Sentencing Legislation and Repeal Act 2003 (WA) applied to the resentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation

Sentencing Legislation and Repeal Act 2003 (WA), cl 2.1 Sch 1

1 JUDGMENT OF THE COURT: Following the publication of the reasons for judgment granting the appellant leave to appeal against sentence, the Court concluded that subject to the operation of the amendments to the relevant legislation by the Sentencing Legislation and Repeal Act 2003 (WA), the sentences of 3 years and 6 months imposed upon the appellant for each of two armed robberies would be reduced to 2 years and 4 months to be served cumulatively. Those sentences were to commence on 20 September 2002 when the applicant was first taken into custody.

2 In the meantime, the Sentencing Legislation and Repeal Act 2003 (WA) was proclaimed in the Government Gazette dated 29 August 2003, p 3833. It was proclaimed that relevant provisions of the Act came into operation from 31 August 2003. Clause 2.1 of Sch 1 provides that:

"If a Court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order) it must impose a fixed term that is, two-thirds of the fixed term that it would have imposed had the old provision been in operation at the time of sentencing."

3 Following the delivery of the reasons for judgment on 19 September 2003, the Court heard submissions on the question whether cl 2 of Sch 1 applied to the re-sentencing of an offender by the Court of Criminal Appeal following a successful appeal to that Court against a sentence imposed under the former legislation. It was submitted by counsel that the relevant reference in cl 2.1 to "a court sentencing an offender to imprisonment" included the re-sentencing of an offender following a successful appeal to the Court of Criminal Appeal. In our opinion, this is clearly correct. Consequently, as foreshadowed in the reasons for judgment, the sentences of 3 years and 6 months which the Court would otherwise have imposed were each reduced by one-third, namely, 1 year and 2 months resulting in an adjusted sentence of 2 years and 4 months for each of the two offences making a total of 4 years and 8 months.