Court of Appeal (WA)|2000-06-01|Before: Wallwork J, Templeman J, Sheller AJ

Van De Worp v The Queen [2000] WASCA 154 (1 June 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : VAN DE WORP -v- THE QUEEN [2000] WASCA 154

Criminal law - Sentencing - Three co-offenders dealt with on separate occasions - Different versions of offences given to Court - One offender gave evidence on oath - His sentence suspended - His evidence disputed by co-offenders - Whether their sentences should be suspended - Decided on facts

Dickson v The Queen, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

Goddard v The Queen [1999] WASCA 281

Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 8 May 1994

Kilner v The Queen [1999] WASCA 189

Nguyen v R; Tran v R [1999] WASCA 54

Sein-Thet v The Queen [1999] WASCA 186

Swain v The Queen [1999] WASCA 22

1 WALLWORK J: The facts concerning the offences the subject of these applications for leave to appeal are set out in the reasons of Justices Templeman and Sheller. I will not repeat them except as is necessary.

2 When considering the sentences which were imposed it is significant that the moneys which the three offenders were to collect at Mr Matthew's house were said to be moneys owed to Mr Ross for drugs purchased from him. Mr Ross told the police in his video interview after he was apprehended, that he had asked Mr Watson to come and help him get the money. He said that he had told Mr Watson that he needed help and that he owed a drug dealer a substantial sum of money. He said that he had wanted Mr Watson to come and stand there with the gun. He said that he had said to Mr Watson:

"Help me get my money back. I will give you 30% ... all you have to do is hold the gun."

3 Mr Van de Worp said in his video interview that Ross had asked Watson to help Ross to get the money. Also that he and Ross had been "kicked out of their house". Further that Ross had told Watson that Huw had ripped him off. Van de Worp said that he knew that Ross had been ripped off and that Huw owed him money. Also that Ross was "ringing people up". He said that Ross was "running the show".

4 The substantial difference between Watson's evidence on oath to the learned sentencing Judge and the version of events which is now advanced by the two applicants is that they say that Watson brought the shotgun with him, whereas he had said that he had been unaware of the shotgun until it was produced by Ross. Further, Watson said that he had taken it upon himself to threaten the persons with the shotgun so as to avoid the risk of one of the other two offenders shooting someone with it. Watson had said on oath that he had not known that the gun was loaded.

5 It should be recorded that neither Ross nor van de Worp have given contradictory evidence on oath to the evidence which was given by Watson although they know what Watson said on oath.

6 Whether or not Watson misled the Court is not the question in these applications. The question is whether the two applicants, or one of them, have established that "a different sentence should have been passed" - Criminal Code, s 689(3).

7 Ross told the authorities that prior to the offences he had been threatened by drug dealers and that he had a daily dependency on drugs. On 4 August 1999 he had been charged and convicted of the possession of a prohibited drug. The relevant offences were committed 10 days later.

8 Van de Worp admitted that he knew that the gun was loaded and that he had expected to be paid a portion of the moneys which Ross hoped to extract from the complainant. Van de Worp was armed with a knife. He told the authorities that he had been introduced to amphetamines whilst staying with friends in Perth prior to the offences. He said that he had been using that drug approximately two or three times a week prior to the commission of the offences.

9 It has not been suggested that Watson was a drug dealer or a drug user.

10 Leaving aside for the present the question of parity and the fact that the three offenders came before the Court on different occasions, in the light of the above facts which were admitted by the two applicants, in my view it could not be said that "a different sentence should have been passed" - s 689(3). The offences which were committed by the two applicants were very serious and involved an armed hold up with a loaded shotgun in order to enforce the payment of moneys owing for drugs which had been supplied by Ross.

11 The prison sentences imposed on the applicants were well within the discretionary limit. The maximum penalty for an offence of armed robbery with violence and in company is 20 years imprisonment. However, the question remains whether the principle of parity and the facts surrounding their appearances before the Court require that one or both of the applicants' sentences be changed having in mind the sentence which was imposed upon Watson.

12 Both Justices Templeman and Sheller have agreed that the principle of parity and the other circumstances concerning the way in which the three offenders were dealt with on separate occasions, should not result in their sentences being suspended. For the reasons given by their Honours, and in agreement with them, I am not persuaded that either the principle of parity or the circumstances generally, justify this Court in suspending the sentences of the two applicants.

13 I agree with the orders proposed by Justice Sheller.

14 TEMPLEMAN J: Each of the appellants and Benjamin James Watson pleaded guilty to offences of aggravated burglary with intent, and stealing with violence while armed and in company with each other.

15 All three offenders were sentenced by Miller J to immediate terms of imprisonment. Watson received a sentence of 3 years imprisonment, van de Worp, 2 years 9 months and Ross, 2 years 6 months.

16 Watson appealed against his sentence. The Court of Criminal Appeal, by a majority, allowed the appeal and suspended the term of imprisonment. Wallwork and Murray JJ were of the opinion that the learned sentencing Judge had fallen into error, in what they regarded as an exceptional case, in holding that the offences were too serious to allow the sentences of imprisonment to be suspended: see Watson v The Queen [2000] WASCA 8.

17 Van de Worp and Ross now appeal against their sentences. They contend that the learned sentencing Judge fell into a similar error in relation to each of them. They contend also, having regard to the principle of parity stated by the High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, that they would suffer an injustice if they were not dealt with in the same way as Watson, because of the disparity between their sentences and his.

18 Ross goes further. He complains that as a result of an administrative decision of the Supreme Court Registry, whereby the hearing in relation to Watson's sentence was conducted without notice to him, he was denied the opportunity of cross-examining Watson. Ross contends that Watson was thereby able, without challenge, to present a version of the material events which attributed a greater degree of culpability to him.

19 In my view, these circumstances raise the following primary questions for the Court.

1. Did the learned sentencing Judge err in sentencing Ross or van de Worp?

2. If there was no error, should their sentences now be varied to give effect to the parity principle?

3. Even if, strictly, the parity principle has no application, should Ross' sentence be reduced because of an injustice visited on him by his inability to cross-examine Watson about the material events?

Was there an error in relation to Ross' sentence?

20 In order to consider this question, it is necessary to set out the way in which the three offenders came before the learned sentencing Judge, and the facts as he found them.

21 On 1 November 1999, Watson was arraigned and pleaded guilty before Miller J.

22 The prosecutor recited the facts as follows (for convenience, I insert the names of the co-offenders):

"At about 8 pm on Saturday 14 August 1999 the offender and two co-offenders also charged [Ross and van de Worp] went to the complainant Matthew's house at 56 Lushington Drive, Padbury, with the intention of taking money from him owed for drugs purchased from a co-offender [Ross]. Three of them approached the backyard fence. The offender, who attempted to hide his identity, by wearing a bandanna across his nose and lower part of his face, was armed with a loaded double-barrel, over and under shotgun, whilst a co-offender [van de Worp] was armed with a knife.

The offender then kicked the gate in on the back fence and the three of them entered the complainant's yard. Matthews saw them approaching and he armed himself with a baseball bat and stepped outside the back door. As he did so, the offender, who was approximately 5 feet away, pointed the shotgun at Matthews head so that the barrel was about 1 foot from his face.

Matthews retreated into his house where he was followed by the offender who repeatedly demanded that he get on his knees and shouted at him, 'Don't fuck with the Mafia.' Matthews complied. The offender then backed out of the house with the shotgun, covering Matthews, and went and joined the co-offenders at a shed at the side of the house where the complainant Waller and four friends were sitting inside.

A co-offender [Ross] pushed the complainant Waller in the chest several times and demanded money from him. Whilst he did so the offender pointed the shotgun at Waller's chest and the other co-offender [van de Worp] stood near the door with his knife in his hand. The co-offender [Ross] saw Waller's wallet sitting on the chair next to him and he picked it up and removed the $20 in it and replaced the wallet. The three then left via the backyard."

23 Watson's counsel then made a lengthy plea in mitigation during which Watson himself gave evidence. In so doing, he confirmed, in effect, that his counsel had been correct in informing the Judge that:

1. he had been unaware of the existence of the shotgun until it was produced by Ross, shortly before the three offenders set off for Padbury; and

2. he had taken it upon himself to use the shotgun to threaten the persons at the Padbury premises so as to avoid the risk of Ross and/or van de Worp actually shooting someone with it.

24 On the day after Watson was arraigned before Miller J, Ross was arraigned before the learned Chief Justice. He pleaded guilty.

25 It seems that although charged in the same indictment, Watson and Ross were separated as a result of an administrative decision in the Registry, it being thought that there were too many guilty pleas for one Judge to deal with. However, the Chief Justice directed that Ross be sentenced also by Miller J, before whom he duly appeared on 18 November.

26 By then, those representing Ross were aware that Watson had been sentenced on 1 November, on a version of the facts which Ross did not entirely accept. This was drawn to the attention of Miller J who noted that questions were being asked about the submissions put on behalf of Watson.

27 Counsel for Ross submitted to Miller J that her client had been disadvantaged, procedurally, because he had not been able to challenge:

"... the extraordinary version of facts put forward by Watson and his counsel [which] were very much in disagreement with those in the statement of material facts and certainly the version given by Mr Ross." (AB 31)

28 One of the issues of principal concern to Ross was Watson's assertion that he had taken the shotgun to prevent his co-offenders from using it. However, Miller J told Ross' counsel that he had refused to accept that proposition "in any shape or form". The Judge said it was clear that Watson had taken the shotgun and was "the major perpetrator" (AB 32).

29 At that point in the proceedings, the prosecutor recited the facts to the Judge, substantially in the terms recited by a different prosecutor in relation to Watson on 1 November.

30 Ross' counsel then told the Judge that on her instructions the shotgun had been brought by Watson to the flat where Ross and van de Worp were living: that her client had never had the gun in his control and had never intended to have it in his control.

31 However, as the Judge pointed out a little later in the submissions, Ross admitted during a video-recorded interview that he had asked Watson to hold the gun (AB 43). That passage was read to the Judge by the prosecutor later in the proceedings, albeit with an objection from Ross personally that he had not said those words (AB 48).

32 At the conclusion of the submissions the Judge proceeded to sentence Ross. His Honour first summarised the facts. He then set out Ross' personal history and circumstances. In so doing, his Honour quoted from a pre-sentence report in which it was said that Ross:

"...is assessed as being a moderate to high risk of becoming involved in future drug-related offending unless he participates in a program of drug use education and counselling, either before and/or after his release from custody."

33 The Judge then referred to his obligation to take account of a number of factors in determining the proper sentence. His Honour made specific reference to "the tariff for armed robbery", the gravity of the offences, the effect on one of the victims, Ross' antecedents, his early plea of guilty and his prospects of rehabilitation.

34 No complaint has been made about the way in which the Judge dealt with these matters.

"I have considered carefully whether I could suspend the term but I have taken the view that the seriousness of the offences is such that it is not possible to suspend the sentences I intend to impose."

36 At that point it is submitted, his Honour erred. Although Ross' counsel did not address the issue specifically, she adopted the submissions made on behalf of van de Worp, in respect of whom Miller J took a similar view.

37 The point, stated shortly, is that the Judge took into account only the seriousness of the offences in concluding that the sentence of imprisonment should not be suspended. It is submitted that the Judge should have revisited all the other factors which he took into account in determining that imprisonment was the appropriate option.

38 I do not accept that the Judge failed to give proper consideration to the question of suspension. In my view, the submission ignores the context in which the Judge said he had considered carefully whether he could suspend the term of imprisonment. From that context, which I have summarised above, it is plain that the Judge had regard to all the relevant factors. It was a matter for him, in the proper exercise of his discretion, to decide what weight should be given to those factors. He concluded that the seriousness of the offences was such that it was not possible to suspend the sentences. In other words, the Judge concluded that those factors which militated in favour of immediate imprisonment and to which he had just referred, outweighed those which did not.

39 In my view, the process of reasoning adopted by his Honour, demonstrates that he exercised his discretion in a proper manner. I am not persuaded that he was in error.

40 Van de Worp was arraigned before Miller J on the next available pleas day, 1 December 1999. He pleaded guilty.

41 The facts were recited to the Judge once again, by a third prosecutor. The prosecutor referred also to admissions made by van de Worp in a video-recorded interview with police officers. In the interview van de Worp said that he and his co-offenders had gone to the complainant's house to see if there was any money and to scare the complainant and his friends. He said also that he first became aware of the existence of the gun when he was in Watson's car. He admitted knowing the gun was loaded. He admitted also that he was expecting to be paid a portion of moneys which Ross hoped to extract from the complainant.

42 Van de Worp's counsel then made a plea in mitigation during which he informed the Judge that, on his instructions, van de Worp was unaware of the existence of the shotgun until he saw it in Watson's car, on the way to Padbury.

43 The Judge then referred to the dispute between Watson and Ross as to the production of the shotgun.

44 Counsel went on to say that although his client had the knife with him during the commission of the offences, it was not alleged that he had threatened anyone with the knife, nor that he had taken the money.

45 Counsel submitted that although the offence was serious, his client was the least culpable of the three "... it was not his debt, it was not his gun". It was submitted that he was a very young man who had been susceptible to the influence of others.

46 The Judge however, informed counsel that he did not accept the submission about the level of van de Worp's culpability. His Honour referred to the fact that Watson was armed with a shotgun, van de Worp was armed with a knife and Ross was unarmed. He said he would put van de Worp second "in the ladder of responsibility".

47 After some further submissions, the Judge said it was necessary for him to find the facts. His Honour continued:

"... the facts I find are, on the information I have so far, that three young men, stupidly admittedly, went to the house of others, burst in through the back gate, one armed with a double-barrel shotgun and disguised, one armed with a knife, one unarmed. There they stole money and in the course of the stealing of the money the man with the double-barrel shotgun pointed it at the victim. Your client stood outside the door of the shed with a knife plainly visible and therefore threatening, therefore a party to the total criminal enterprise."

48 The plea in mitigation proceeded. Van de Worp's counsel referred to the fact that his client had returned to Port Hedland where he was living with his parents and was subject to their control; and that he was on a tight rein. It was submitted that if van de Worp was imprisoned, that tight rein would be lost; and that it was in the interests of the community that van de Worp should not be put in a position of associating with people of the kind who had brought about his downfall.

"That is the issue: is the offence so serious that I have no alternative or can I make an exception because of his age, background, parents' concern and control of him?"

50 After hearing from the prosecutor, the Judge said he would take time to consider the submissions made on behalf of van de Worp and would sentence him on 20 December.

51 Van de Worp was sentenced by the Judge on that date. In his sentencing remarks, his Honour recited the facts and referred to the admissions made by van de Worp: that he had gone to the house in Padbury for the purpose of scaring the occupants to get money and that he knew there was a loaded firearm in the car.

52 His Honour then turned to matters personal to van de Worp. He referred to the pre-sentence report which described van de Worp as:

"A pleasant naive young man who at 18 years of age finds himself before the Court as a result of involvement with illicit substances."

53 His Honour went on to refer to van de Worp's willingness to comply with an intensive supervision order if a non-custodial sentence was appropriate (AB 78).

54 The Judge referred also to counsel's submission that it was not in the interests of the community that van de Worp be imprisoned because of his background and what was contended to be the least serious role which he had played in the commission of the offences.

55 However, the Judge referred to the tariff for armed robbery, in the range of 6 to 9 years imprisonment for a single offence, depending on the circumstances. His Honour continued:

"It is true that on rare exceptional cases or extraordinary circumstances a non-custodial sentence may be appropriate, particularly if the offender has no or no significant prior record and the prospects of rehabilitation are good". (AB 79)

56 His Honour went on to set out the factors he had taken into account in arriving at an appropriate sentence. These were the gravity of the offence, the effect on the victims and van de Worp's personal factors which had been urged upon him by counsel. In particular, the Judge referred to the submission that it was not in the interests of the community to imprison van de Worp:

"... but this submission overlooks the community's interests in ensuring that there is just punishment for offences of the nature committed by you." (AB 80)

57 His Honour went on to say that in relation to van de Worp's co-offenders, he had no alternative but to impose sentences of imprisonment because the crimes were so serious. His Honour said he had felt unable to suspend the sentences of imprisonment in relation to either of them.

"As I have indicated during the course of the plea put on your behalf the offences are so serious that I consider a sentence of imprisonment as the only disposition which is open. I am unable to suspend the sentence of imprisonment because of the seriousness of the offences committed. The fact that people were held up in their own house with an armed shotgun and a large knife which you were wielding puts the offences in the very serious category. Notwithstanding your lack of prior convictions and good antecedents I am of the view that a sentence of imprisonment is the only disposition open."

59 It is conceded on behalf of van de Worp that a sentence of imprisonment was called for because of the seriousness of the offences. However, it is submitted that the Judge should have considered, "whether as an inducement to reform or by virtue of a combination of factors in the particular case, including a component of leniency, it would have been appropriate to send van de Worp to prison for the first time". Reliance is placed on R v Liddington (1997) 18 WAR 394 and R v GP (1997) 18 WAR 196.

60 In Liddington, Malcolm CJ approved the following passage from the judgment of Murray J in GP:

"... I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful." (At 399)

61 In my view, it is plain from the question raised by the Judge in the course of the plea in mitigation and from the sentencing remarks themselves, that his Honour was well aware of the need to consider whether it was appropriate to suspend van de Worp's sentence. He gave careful consideration to that issue and exercised the discretion in a proper manner. He concluded, as he had done in the case of Watson and Ross, that it would not be appropriate to suspend van de Worp's sentence. I am not persuaded that his Honour was wrong in exercising his discretion as he did.

62 In concluding that Miller J did not fall into error in sentencing either Ross or van de Worp, I am mindful of the fact that his Honour appeared to exercise a similar discretion in relation to Watson, whose appeal against sentence was successful.

63 Indeed, it may be said that in sentencing Watson, as his Honour did on 1 November 1999, he set out in greater detail his reasons for declining to suspend Watson's sentence of imprisonment: see AB 153 - 155.

64 In these circumstances, the question may legitimately be asked: if the Judge was wrong in relation to Watson, why was he not wrong also in relation to Ross and van de Worp?

65 In answering that question it must be appreciated that the decision of the Court of Criminal Appeal in Watson was very much on the borderline. It was, as I have noted, a majority decision. Murray J, who agreed with Wallwork J that the appeal should be allowed, said:

"I joined in making orders with considerable diffidence because of the thoroughness with which the case was presented to his Honour and because of the care and attention that his Honour gave to it." [2000] WASCA 8 at 55.

66 Wallwork J regarded it as "a most exceptional case". His Honour went on at par 47:

"Most unusually the applicant had nothing to gain by his offences. From all the information the Court has at its disposal, the offences appear to have been committed without the applicant giving the matter serious thought. He was young and had no relevant criminal record at all. It was not as if he had been attempting to obtain money for drugs, or anything similar. He was apparently asked by his co-offenders to drive them to commit the offences for their purposes and not his own."

"In this case there was no element of persistence. There is no real prospect of the applicant lapsing into further offences, but there is, in the community's interests, a need that this young man be rehabilitated, in the sense of being encouraged to get on with his life and to put these offences behind him. In my opinion, error on the part of the sentencing Judge has been demonstrated."

67 Murray J referred to the decision of Malcolm CJ in R v Shaharuddin [1999] WASCA 229 in which the learned Chief Justice recognised that in some cases it is in the best interests of the community not to imprison an offender, even for a serious offence.

68 Applying that decision to Watson, Murray J said at pars 66 and 67:

"This in my opinion was, in its most unusual circumstances, such a case. I am moved by the unusual, indeed bizarre, circumstances surrounding the commission of the offences by the applicant, his youth, his remorse, his unblemished character prior to his involvement in the commission of these offences and the powerful mitigation provided by his antecedents, to the conclusion that particular deterrence was not required and general deterrence could be sufficiently served by the imposition of sentences of imprisonment and their length.

But in my view the circumstances were not such as to demand that this young offender should be immediately sent to prison for the first time. The particular circumstances of the case were such that a merciful disposition by suspending imprisonment was required. It was an exceptional case. The best interests of the community were served by a merciful disposition which built upon the remedial shock of the pronouncement of his Honour's view that imprisonment was the appropriate punishment to reinforce in the applicant the necessity never again to behave in such a way as to bring him before a criminal court."

69 In short, the majority in Watson were clearly of the view that Miller J had erred in failing to accord sufficient weight to the mitigating circumstances to which they referred when exercising his discretion against suspension of the sentences of imprisonment he imposed.

70 On the facts as they were presented to the earlier Court of Criminal Appeal, there were several features which distinguished Watson's case from those of Ross and van de Worp. They sought to gain from the offences, whereas Watson did not. They were both drug users, whereas Watson was not. Indeed, Ross was a dealer in drugs: the money which he sought was to be used in payment of a drug debt.

71 Ross planned the offences: and van de Worp supported him in the enterprise on the promise of financial gain. Watson was not an instigator.

72 Although Watson brandished the shotgun, the Court apparently accepted his evidence that he had done so to ensure that no harm came to anyone, being unaware that the gun was loaded. The Court was apparently aware of Miller J's rejection of Watson's explanation for his conduct.

73 Watson was not regarded as presenting any risk of re-offending. Ross was assessed as being at a "moderate to high risk of becoming involved in future drug related offences" unless he participated in a programme of drug use education and counselling. Van de Worp also presented a risk. He had informed the Community Corrections Officer who prepared the pre-sentence report, that he had ceased involvement with amphetamines and was "making a concerted effort to reduce his cannabis intake". It was said that:

"With benefit of a stable home environment, employment opportunities and drug awareness programmes, van de Worp's risk of any future offending would be significantly reduced."

74 Watson was regarded as having employment prospects which should be encouraged, whereas Ross and van de Worp had no such promising prospects.

75 In short, the majority of the Court of Criminal Appeal was persuaded that Watson was a young man of unblemished character, who had been drawn into a criminal enterprise instigated by Ross with van de Worp's support: that he had acted in a manner which was more stupid than criminal and that he did not require rehabilitation. The Court considered that Miller J had failed to attribute sufficient weight to these factors, and had erred in regarding it as inappropriate to suspend an otherwise appropriate sentence.

76 It seems to me, therefore, that the factors which persuaded the majority in Watson to allow his appeal are such as to distinguish that case from those of Ross and van de Worp. I do not therefore find anything in Watson which causes me to depart from my view that Miller J did not err in sentencing Ross or van de Worp.

77 I would add that even if I am wrong in my conclusion that Miller J exercised his discretion properly, I would not myself have suspended either Ross' or van de Worp's sentences, it being conceded by them that sentences of imprisonment were appropriate. I accept that they are young men who have not been imprisoned previously. I accept that there are other mitigating factors to which reference was made on their behalf. However, in my view, these factors are far outweighed by the seriousness of the offences, involving the threatening use of a loaded shotgun and a knife by a drug dealer and a drug user to obtain money in connection with drug dealing. The need for deterrence in these circumstances is also a powerful factor against suspension.

Should the sentences of Ross and van de Worp be varied to give effect to the parity principle?

78 The principle of parity in sentencing is based on the philosophy that any difference between sentences imposed upon co-offenders for the same offence should not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence: or to give the appearance that justice has not been done: see Lowe v The Queen (supra) at 623 per Dawson J.

79 As Mason J said in the same case, inconsistency in punishment is regarded as a badge of unfairness. Unequal treatment under the law is calculated to lead to an erosion of public confidence in the integrity of the administration of justice (at 610 - 611).

80 However, as Dawson and Gaudron JJ pointed out in Postiglione [1997] HCA 26; (1997) 94 A Crim R 397 at 401:

"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (My emphasis)

81 In the present case, it must be accepted, I think, that there is a marked disparity between the sentences imposed on Watson on the one hand and Ross and van de Worp on the other. Although a suspended sentence is a sentence of imprisonment, from the perspective of Ross and van de Worp, Watson has hardly been punished at all. That, I suspect, is a perception which a significant proportion of the population would share.

82 However, it must be borne in mind that pursuant to s 76 of the Sentencing Act 1995, a term of imprisonment of up to 60 months may be suspended for a period of not more than 24 months.

83 It must follow that the legislature has now incorporated into the system the objective possibility that, in appropriate circumstances, one co-offender may be sentenced to an immediate term of imprisonment while another has a similar sentence suspended. While that might result in the imprisoned offender feeling a sense of grievance, it would not be justifiable. That is because the different sentences would reflect the different circumstances of the co-offenders: the point made by Dawson and Gaudron JJ in Postiglione.

84 In my view, that objective possibility has become a reality in the present case. The Court of Criminal Appeal in Watson took the view that his circumstances were so exceptional as to warrant the suspension of his sentence of imprisonment. Indeed, Murray J referred to the "highly unusual circumstances, which set [Watson] apart from his two co-offenders": [2000] WASCA 8 at par 59.

85 I have given anxious consideration to the question whether the disparity between sentences of immediate imprisonment for 2 years and 9 months and 2 years and 6 months and a suspended sentence of 3 years imprisonment is such as itself to give rise to a justifiable sense of grievance. I have come to the conclusion it is not, once it is accepted that the system allows that result: and that Watson's circumstances, as the Court of Criminal Appeal found them to be, were so markedly different from those of Ross and van de Worp.

86 I therefore conclude that the parity principle provides no basis for interfering with the sentences of immediate imprisonment imposed on Ross and van de Worp.

Should Ross' sentence be reduced by reason of injustice on other grounds?

87 I have set out above the sequence in which Watson, Ross and van de Worp appeared before the Court. Ross and his counsel were unaware of Watson's appearance on 1 November and therefore had no opportunity to challenge his account of the material events.

88 In these circumstances it is submitted on behalf of Ross, that in the interests of preserving the integrity of the criminal justice system, he should not be disadvantaged by the loss of the opportunity of challenging Watson's evidence, having lost that opportunity by administrative procedures about which he had no knowledge and over which he had no control.

89 It is undoubtedly unsatisfactory that the three co-offenders should have been dealt with as they were.

90 It is also unfortunate that the prosecution of the three offenders was apparently assigned to three different prosecutors in the office of the Director of Public Prosecutions. If it was not possible for one person to deal with all three prosecutions, then at least there should have been some liaison between those concerned to ensure that any appropriate challenge to Watson's evidence was made.

91 However, despite these matters, I am not persuaded that Ross was disadvantaged by his inability to challenge Watson's evidence. In my view, the reality is that both Ross and van de Worp benefited from the administrative arrangements which had been made.

92 When Miller J sentenced Ross on 18 November, he remarked that Watson had been sentenced leniently because of his excellent antecedents. Referring to the contest which had then emerged between Watson and Ross, his Honour said:

"Whether in the circumstances there should have been any contest to some of what was put on behalf of Watson is another question, but that can now no longer be the case." (AB 51)

93 His Honour had previously noted the importance of parity as between Watson and Ross. Having regarded Watson as the primary offender, it being he who had held the shotgun, his Honour said he was prepared to deal with Ross more leniently than he would have done otherwise.

94 Van de Worp also benefited because of the application of the parity principle. In his case, the Judge said "it may be that Watson has been let off lightly" (AB 65).

95 It therefore seems to me likely that if Watson's evidence had been challenged successfully, so as to result in a more serious view being taken of his culpability, all three offenders would have received more substantial sentences.

96 It is true that this might have affected Watson's prospects of succeeding in his appeal. It was, as I have noted, a borderline case. However, it would have been open to the Crown to apply to have additional evidence admitted on the hearing of Watson's appeal, had it been thought appropriate to do so.

97 I am therefore of the view that the administrative arrangements which were made in relation to these matters have not resulted in any disadvantage to Ross or van de Worp.

98 For all these reasons, I would grant leave to appeal in each case but I would dismiss the appeals.

99 At about 8.00 pm on Saturday 14 August 1999 the applicants, Dominic Michael van de Worp and Gary Brendan Ross, together with Benjamin Watson, went to a house at 56 Lushington Drive, Padbury occupied by Huw David Matthews with the intention of taking money from Matthews. Matthews was alleged to owe money for drugs purchased from the applicant Ross.

100 In an attempt to hide his identity Watson was wearing a bandanna across his nose and the lower part of his face. He was armed with a loaded double-barrelled over and under shotgun. Van de Worp was armed with a knife.

101 On their arrival at the premises, Watson kicked in the gate in the back fence. The three offenders entered the yard. Matthews saw them approaching and armed himself with a baseball bat. When approximately five feet away from Matthews, Watson pointed the shotgun at his head. The barrel was about a foot away from his face. Matthews retreated into the house followed by Watson who repeatedly demanded he get on his knees. Matthews complied. Watson then backed out of the house with the shotgun still covering Matthews in the house and joined the other offenders at a shed at the side of the house where Andrew Waller and his four friends were sitting inside. Ross pushed Waller in the chest several times and demanded money from him. At the same time Watson pointed the shotgun at Waller's chest. Van de Worp stood near the door with a knife in his hand. Ross picked up Waller's wallet and removed $20 from it. He then replaced the wallet and the three offenders left the premises.

102 On 15 August 1999 Ross' mother and her husband handed the shotgun into police at Warwick Police Station. On 16 August Ross attended at Warwick Detectives' Office and participated in a video record of interview before the matter was reported by the victims. On 17 August Ross and van de Worp attended Warwick Detectives' Office and participated in a video record of interview. On 19 August the three offenders were arrested and each charged.

103 On 1 November 1999 Watson and Ross were together indicted on two counts, one of burglary with intent to commit an offence while armed with a dangerous weapon and in company, and the other of armed robbery in company. On 18 November van de Worp was indicted on the same offences. All three pleaded guilty and came before his Honour Justice Miller on fast track pleas of guilty. They did so on different occasions. For reasons which appear to have resulted from an accident of listing, Watson came up for sentencing on 1 November 1999 and was sentenced on that day. The sentencing proceedings for Ross took place on 18 November 1999 and for van de Worp on 20 December 1999.

104 Van de Worp was sentenced for each offence to a term of two years and nine months, the sentences to be served concurrently and date from 1 December 1999 when he was taken into custody. His Honour ordered that the applicant be eligible for parole. In imposing these sentences, Miller J took into account the sentences already imposed on Watson of three years' imprisonment and on Ross of two years and six months' imprisonment. His Honour said:

"I accept that you have good prospects of rehabilitation in the sense that you are unlikely to go back to drug use and you are with your family where you can be properly cared for and guided. Your antecedents are also good because you have no prior convictions. It has been urged upon me that a sentence other than a fixed term of imprisonment would be appropriate in this case. As I have said, your counsel urged that it is not in the community's interests to put you in gaol, but this submission overlooks the community's interests in ensuring that there is just punishment for offences of the nature committed by you.

I said in relation to your co-offenders I had no alternative but to impose sentences of imprisonment because the crimes were so serious. I felt unable to suspend the sentence of imprisonment in relation to either of them. As I indicated during the course of the plea put on your behalf the offences are so serious that I consider a sentence of imprisonment as the only disposition which is open. I am unable to suspend the sentence of imprisonment because of the seriousness of the offences committed. The fact that people were held up in their own house with an armed shotgun and a large knife which you were wielding puts the offences in the very serious category. Notwithstanding your lack of prior convictions and good antecedents I am of the view that a sentence of imprisonment is the only disposition open." (my emphasis)

105 In the course of sentencing Ross on 18 November 1999, Miller J said:

"I accept that you have been basically conviction-free before this time. You have had opportunities in life but from the age of 15 you threw them away. I accept that since commission of this offence you have engaged in preliminary counselling sessions in relation to family problems, and your substance abuse problem. The pre-sentence report is pessimistic, however, about your future unless you participate actively in a program of drug-abuse education.

I take into account your plea of guilty because you have pleaded guilty to these offences at an early opportunity and have avoided the necessity of a trial. This is very much in your favour and indicates an acceptance of responsibility on your part. I accept Ms Amsden's submission that you show remorse.

I must impose [a] sentence having regard to just punishment, deterrence, prevalence of the offences, prospects of rehabilitation and your antecedents. Just punishment and deterrence are very important in relation to these offences. Breaking into people's property and holding them up with weapons will not be tolerated by the courts, and a deterrent sentence is therefore called for.

Your prospects of rehabilitation remain somewhat unknown. You have some favourable aspects in your antecedents but the pre-sentence report indicates a need to address problems that you have in relation to substance abuse. I consider the seriousness of the crimes committed such that there is only a sentence of imprisonment that can be imposed. I have considered carefully whether I could suspend that term but I have taken the view that the seriousness of the offences is such that it is not possible to suspend the sentences I intend to impose.

It is, however, important that there be parity with Watson. Watson was sentenced to 3 years' imprisonment and I took the view that he was the primary offender in that he held the shotgun as I have indicated. The fact that you told him you wanted him to hold the gun, however, tells against you. Watson was sentenced leniently because of his excellent antecedents. Whether in the circumstances there should have been any contest to some of what was put on behalf of Watson is another question, but that can now no longer be the case.

Having regard to parity of sentence and the sentence imposed upon Watson, having regard to all factors, I'm prepared to deal with you leniently, more leniently than I would otherwise have done so. So I will impose upon you on count 1 a sentence of 2 years 6 months' imprisonment; on count 2, 2 years 6 months' imprisonment. They will be concurrent sentences. You will be eligible for parole.

I recommend that as a condition of parole you be required to undergo appropriate drug education programs, and I recommend that whilst in prison you undertake the substance abuse resource unit program. The sentences will date from 19 August 1999, the date on which you went into custody." (my emphasis)

106 On 21 December 1999 this Court granted Watson leave to appeal from his sentence and by a majority (Wallwork and Murray JJ, Kennedy J dissenting) allowed the appeal and varied the sentences by ordering that they be suspended for two years. On 31 December 1999 van de Worp filed an application for leave to appeal. The grounds relied on were error in failing to suspend the sentence for a set period and the principle of parity having regard to the Court of Criminal Appeal's order suspending the sentence imposed on Watson. On 3 February 2000 Ross filed an application for an extension of time within which to seek leave to appeal. The Crown does not oppose that application. The grounds of appeal were in substance the same as those of van de Worp. On 7 January 2000 van de Worp was released on bail pending the hearing of his application and on 3 February 2000 Ross was released on bail pending the hearing of his application. The applications for leave to appeal of van de Worp and Ross are now before the Court to be dealt with.

107 As the sentencing Judge recognised and correctly emphasised, the offences with which the applicants were charged were of a most serious kind. Particularly is this so because Watson and van de Worp were armed with weapons capable of killing or inflicting serious injury. The gravity of the offences is recognised by the statutory maximum penalty for armed robbery of life imprisonment, and for aggravated burglary of 20 years' imprisonment.

108 The sentencing discretion of the trial Judge is central to our system of criminal justice. If properly exercised the sentence imposed is inviolable. In House v The King [1936] HCA 40; (1936) 55 CLR 499, an appeal to the High Court against a sentence imposed by the Bankruptcy Court, Dixon, Evatt and McTiernan JJ said at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

109 Each of the applicants submits that Miller J erred in not suspending the sentences imposed for a set period. Section 76 of the Sentencing Act 1995 enables a court that sentences an offender to a term of imprisonment of 60 months or less to order that the whole of the term be suspended for a period set by the court not exceeding 24 months. The effect of suspending imprisonment is that the offender is not to serve any part of the imprisonment that is suspended unless during the suspension period he or she commits an offence the statutory penalty for which includes imprisonment and an order is made under s 80: s 77(1). Section 77(4) provides that an offender sentenced to suspended imprisonment is taken to be discharged from the sentence at the end of the suspension period. Section 77(6) provides that a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment. In R v Liddington (1997) 18 WAR 394 at 396 Malcolm CJ said that:

"the suspension of a sentence is the penultimate sentencing option in the scale of sentences, second only to the imposition of a sentence of imprisonment to be served immediately."

110 Although s 6, s 7 and s 8 of the Sentencing Act stipulate sentencing principles to be followed, the legislature leaves it to the judicial discretion to determine what circumstances in the particular case should be brought into account in deciding whether or not the sentence should be suspended. Outside the bounds imposed by the legislature on the occasion for the exercise of the power, no express guidance is given to the sentencing Judge as to how the discretion should be exercised. In R v Liddington Malcolm CJ and Steytler J expressed the view that, while all the relevant circumstances must be taken into account in determining whether a suspended sentence is appropriate, it should be recognised that the primary purpose of suspending the sentence is rehabilitative or reformative, although there may be some other sufficient reason for suspending a sentence: see 399 and 406. Ipp J said that in his view a broad and flexible approach in determining whether a sentence should be suspended should be followed:

"In my view, and with respect to others who have come to a different conclusion, it seems to me that the power to suspend a sentence should not necessarily be used primarily to provide an inducement to the offender to reform. It should simply be used whenever the circumstances of the case are such that a suspended sentence would be the appropriate sentencing disposition." (p 401)

111 In R v Wacyk [1996] SASC 5622; (1996) 66 SASR 530 the South Australian Court of Criminal Appeal considered the Criminal Law (Sentencing) Act 1988 of that State, s 38 of which enabled the court to suspend a sentence "if it thinks good reason exists for doing so". The legislature there expressed what must I think be implicit in the Western Australian Act. Perry J, with whose reasons Millhouse J agreed, said at 535:

"The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.

A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment."

"It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of that discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender."

113 The Queen v Wilton (1981) 28 SASR 362 raised for the South Australian Full Supreme Court a question about the supposed unfairness of not suspending a sentence of imprisonment when co-offenders had had their sentences of imprisonment suspended. At 367 King CJ, with whose judgment Mitchell and Williams JJ agreed, said:

"Considerations which are appropriate in determining sentences which fairly reflect the respective degrees of criminality in the involvement of co-offenders in crime and the differences in their relevant circumstances, are not necessarily relevant in determining whether the discretion to suspend exists or whether it should be exercised. It seems clear to me that there is no warrant in the statutory provision for treating the supposed unfairness of an unsuspended sentence for one offender as contrasted with a suspended sentence for another as founding a discretion to suspend. Nor is it a relevant factor in deciding whether to suspend where the discretion comes into existence independently of that factor. ...

The correct approach to the sentencing of these co-offenders was for the sentencing judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part."

114 Like considerations may play a part in determining the nature and length of a sentence and then, in the case of imprisonment, whether the sentence should be suspended. But the weight to be attached to each such consideration will usually be different. The seriousness of the offence, the degree of culpability and general and personal deterrence will be important factors in sentencing. In determining whether to suspend the sentence, the prospects of rehabilitation and particular hardship are likely to be more significant.

"You have testified that you went to the house with the shotgun in the car in which you were travelling and disguised yourself when you got there and took possession of the shotgun, effectively, to ensure that nothing would happen. You deliberately chose this course of action. As I said to Mr Roberts-Smith [QC], your counsel, during the course of argument, you could have refused and should have refused to have been involved, and you took the fatal step of taking possession of the shotgun, disguising yourself and going to the yard in company with the other two persons.

You have no really acceptable explanation for so doing. The fact that you didn't know the shotgun was loaded is two-edged. Had the shotgun been discharged because you had tripped, fallen, been pushed or pulled the trigger, someone would have been killed, and the seriousness of that is obvious.

Matters personal to you are very important in this case. You were born on 7 May 1981 and you are 18 years of age. You are a single man, a professional skateboard boarder [sic] by occupation. You were educated at Hamilton Senior High School in Hamilton, New Zealand to the age of 16 years. You were employed in New Zealand and more recently in Perth with a skateboard business, and the pre-sentence report I've received sets out your history. It's been elaborated upon by Mr Roberts-Smith [QC] here today.

You were raised in New Zealand by parents who were deeply involved in religion. You had a very happy childhood, a supportive home environment. You came to Perth at the age of 16 to stay with grandparents because you were a professional skateboarder and considered there were more opportunities for that occupation here than in New Zealand.

You went to Sydney for a time to live with your father who had moved to Australia from New Zealand and then came back temporarily to Perth to settle an insurance claim, and it was whilst you were here doing that that these offences occurred. The pre-sentence report describes you as an intelligent young man from a seemingly stable family environment.

The motivation for your commission of the offences appears to be a mystery. You explain your involvement in being simply that you were asked to help and took control. Your father suggests that you may have acted impulsively to show bravado. When interviewed you took full responsibility for your part in the offence and stated that you had made a foolish mistake.

The author of the pre-sentence report is concerned about the violent nature of the offence as committed and apparent lack of motivating factors, but on the other hand, it is said that you appear to have a bright future ahead of you with full support of your family. I add that you have no criminal convictions apart from a few minor traffic matters which are of no concern."

116 After referring to decisions of this Court which stressed that sentences for armed robbery must be firmed up, his Honour said:

"It is true that in rare and exceptional cases or in extraordinary circumstances a non-custodial sentence may be appropriate, particularly where the offender has no or no significant record and the prospects of rehabilitation are good and this is submitted to be a rare and exceptional case. I have listened very carefully to that submission, but I need to take into account these factors in sentencing: firstly, the gravity of the two offences. They are extremely serious offences. Breaking into somebody's property and stealing with violence whilst armed constitute very serious offences. The use of a double-barrelled shotgun in the way in which you pointed it at two victims aggravates the offences dramatically. Whatever your motivations, the offences are extremely grave.

I take into account the effect on the victims. I have only one victim impact statement, that being from the victim Matthews, who says, 'Due to this crime I am having difficulty getting to sleep and having restless nights remembering how close I was to being shot to death.' Now, the fact of the matter is that this man had a double-barrelled shotgun which he didn't know was unloaded or unloaded, [sic] but which was in fact loaded, pointed at his head and it's not surprising that from his point of view he has very deep concern.

I turn to the matters personal to you. The book of references tendered has excellent references. I have checked them all carefully. I accept you are regarded as a person of good character. You have excelled as a sportsman during your life, achieving success in athletics, Rugby, freestyle wrestling and, more recently, board skating. You have become a professional board skater. You did so before these offences.

You have become capable of earning substantial moneys. How much I do not know, but it was before you committed these offences that you knew you were in that position. It is very much in your favour that you have no criminal convictions and also that you have strong family support and I take account of the fact that you and your father are working on a major skateboard enterprise, the details of which I have not been given, but which you hope will return substantial sums of money.

I have regard to your conduct since commission of this offence. I accept that you have remorse for what you did and now realise the seriousness of what you did. I have regard to your plea of guilty. You have pleaded guilty to these offences at the earliest possible opportunity, thus avoiding the necessity for a trial at which two youths would have had to give evidence. That is certainly very much in your favour, but in imposing sentence here there are five factors that I need to take into account. They are: just punishment, deterrence, prevalence of the offences in question, prospect of rehabilitation and your antecedents.

Now, just punishment and deterrence are importance [sic] in relation to these offences. People cannot be held up with double-barrelled shotguns in the way in which you held up these youths on the night in question. You were disguised holding a potentially dangerous weapon in circumstances which I regard so serious that they do call for a deterrent sentence. The offence of stealing with violence is particularly prevalent as is aggravated burglary.

You do have good prospects in life and your antecedents are extremely favourable to you. You don't seem to need rehabilitation because I accept that you're not likely to offend again. You have jeopardised a very promising commercial enterprise about which I have heard evidence, but you chose to do that and should have appreciated that at the time."

117 Miller J turned to the question of sentence and said:

"I consider that the seriousness of the crimes committed by you are such that only a sentence of imprisonment can be imposed. I have looked very carefully at the question of suspending that sentence, but I have reached the view that the seriousness of the offences is such that I am unable to do so. Although the pre-sentence report recommended that the court consider the suspension of a custodial sentence I have considered the matter as carefully as I can, but I am unable to take that step. It does not appear that you are a person who needs rehabilitation.

I do not consider that any of the other factors which are identified by Steytler J in the Liddington case as key factors in relation to the suspension of sentence are applicable and require or demand or entitle you to the suspension in this case. You are a person who offended for really no known reason. You had no prior record of convictions. There is no drug problem which would cause you to commit the offences. In short, you committed them for no justifiable reason and in circumstances in which you don't appear to be needing rehabilitation for what you have done rather, as I see it, the community expects a deterrent sentence to deter others from doing what you have done.

The sentences which I impose will reflect your excellent antecedents, your plea of guilty and your remorse and they will be as follows: on count 1, 3 years' imprisonment, on count 2, 3 years' imprisonment." (my emphasis)

118 In this Court, in upholding the appeal against Watson's sentence, Wallwork J said at [34]:

"As can be seen from the above facts, these were most serious offences. The question on the appeal is whether the learned trial Judge erred in sending the applicant to prison."

119 His Honour referred to those parts of the remarks on sentence which I have quoted and the submissions put on behalf of the applicant on the appeal. At [47] Wallwork J said:

"In my opinion this was a most exceptional case. Most unusually the applicant had nothing to gain by his offences. From all the information the court has at its disposal, the offences appear to have been committed without the applicant giving the matter serious thought. He was young and had no relevant criminal record at all. It was not as if he had been attempting to obtain money for drugs, or anything similar. He was apparently asked by his co-offenders to drive them to commit the offences for their purposes and not his own."

120 After referring to Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Wallwork J continued at [50]:

"There is nothing in the material before this Court to suggest that the applicant is likely to re-offend in any way. In my view it is important in all the circumstances of these offences, that the future of a young man with this applicant's background be not unduly jeopardised if the interests of the community do not demand an immediate prison sentence. It is not the case that every offence of armed robbery must be followed by a term of imprisonment. There are, as can be seen from the previous decided cases, exceptional cases where sentences of immediate imprisonment are not imposed. In view, in this case, it was not necessary in the community's interests that the applicant be sentenced to a term of immediate imprisonment."

121 After referring to what Steytler J had said in R v Liddington at 406 Wallwork J continued:

122 The other member of the majority, Murray J, referred to the surrounding circumstances and said at [58] - [60]:

"Although, as the learned sentencing Judge said, it provides no excuse or acceptable explanation for the applicant's involvement, it was accepted that once it became clear to the applicant what his co-offenders planned, the applicant did not think of withdrawal as he should have done, but only of how his involvement might be managed in such a way as to minimise the prospect of harm occurring to any victim upon whom the offences were to be committed, offences from which he was to gain nothing. While that is not an acceptable explanation for his involvement, it is understandable, particularly when one is speaking of such a decision taken by an obviously naïve young man just three months after his 18th birthday, on the spur of the moment when he was already caught up in the process of driving his co-offenders to the place where they wished to confront those from whom they sought to obtain money. It was not on that basis so much a matter of bravado, as surmised by the applicant's father, as appalling misjudgment which allowed him to be not only carried along by the events of the night, but also to become centrally involved in their perpetration.

Van De Worp v The Queen [2000] WASCA 154

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Judgment (268 paragraphs)

Van De Worp v The Queen [2000] WASCA 154 (1 June 2000)

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Cases Cited (8)