Bayliss v The Queen, unreported; CCA SCt of WA; Library No 920111; 3 March 1992

Bellamy v The Queen, unreported; CCA SCt of WA; Library No 970148; 14 April 1997

Goddard v The Queen [1999] WASCA 281

Keatley v The Queen [2000] WASCA 30

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

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Negri v The Queen, unreported; CCA SCt of WA; Library No 980649; 9 November 1998

R v Rafferty [1999] WASC 254

R v "S" (A Child), unreported; CCA SCt of WA; Library No 920189; 3 April 1992

R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993

Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999

1 KENNEDY J: On 13 July 1999, the applicant and a co-accused, Craig John Howard, pleaded guilty in the District Court of Western Australia to count 1 in a joint indictment charging them with having, on 17 April 1999, at Orelia, wilfully and unlawfully damaged the property of one Bruce Hornidge, contrary to s 444 of the Criminal Code. The applicant also pleaded guilty to two charges the subject of a notice under s 32 of the Sentencing Act 1995, comprising one charge of driving a motor vehicle with a blood alcohol content exceeding 0.08 per cent and one charge of driving a motor vehicle without a valid motor driver's licence. Howard pleaded guilty to two additional counts in the indictment of assaulting a public officer who was then performing a function of his office and to one charge, the subject of a notice under s 32 of the Sentencing Act, of having resisted arrest. The applicant and Howard were each sentenced to a term of imprisonment of 18 months on the charge of wilful and unlawful damage.

2 Previously, on 22 April 1999, the applicant's brother, Jayson Charles Weston ("Jayson"), had pleaded guilty in the Court of Petty Sessions at Perth to a charge of having wilfully and unlawfully damaged four vehicles and a house at 64 Orelia Avenue, Parmelia, to the value of $2000, the property of Bruce Hornidge. This charge related to the same offence alleged in count 1 of the joint indictment. The charge against Jayson was heard summarily, pursuant to the provisions of s 465 of the Criminal Code and, on 1 June 1999, he was fined $300 and ordered to pay compensation of $666, being one-third of the estimated cost of reinstatement of the damaged property. The maximum penalty for the offence dealt with in the District Court was 10 years' imprisonment, while on summary conviction the maximum penalty was 3 years' imprisonment or a fine of $12,000. At the time of his sentencing, Jayson was subject to an intensive supervision order for driving under the influence of alcohol. He was therefore re-sentenced for this offence and fined the sum of $1,200.

3 The applicant now seeks leave to appeal against his sentence of 18 months' imprisonment on the one ground only, as follows:

"I have a justifiable sense of grievance caused by the disparity between the sentence of 18 months imprisonment passed upon me for the offence of wilful damage, and the sentence of a $300 fine imposed by the Perth Court of Petty Sessions on 1 June 1999 on the co-offender Jayson Charles Weston."

It is therefore accepted that, standing alone, the sentence could not successfully be challenged.

4 The facts presented to the learned Judge in the District Court on the count of wilful damage in the indictment were that, at about 7.20 pm on Saturday, 17 April 1999, the three offenders drove to the complainant's home in Orelia in the appellant's white Ford Falcon sedan. There, they tried to unlock the front flyscreen door. The complainant, having heard a noise, opened the wooden front door of the house. One of the offenders asked him whether "Bruce" was in the house. The complainant then noticed the other offenders hiding beside a wall and saw that they were wearing full face balaclavas. The complainant therefore shut his front door. All three offenders then proceeded to pull the grille off the flyscreen door and threw rocks at windows at the front of the house, thereby breaking them. The windows of four vehicles parked at the front of the complainant's house were also smashed. After several minutes, they left the scene in the applicant's motor vehicle.

5 Later that night, at about 9.15 pm, the three offenders were seen driving past the complainant's house. The registration plates on the car had now been covered with black material. Police subsequently stopped the vehicle and apprehended the offenders. The vehicle was searched and three balaclavas, together with a cricket bat belonging to the complainant, were found in it. The three were conveyed to the Kwinana Police Station; but they were not interviewed on video due to their intoxication and their aggressive manner. It was conceded that the applicant had been drinking prior to the offence as well as taking prescription medication for a bad back which had resulted from an injury sustained by him at his work.

6 It was claimed by the applicant that the owner of the damaged property owed Jayson $3,000. Apparently, there had been some suggestion that this sum had been repaid, but it had not in fact been repaid, despite repeated requests by Jayson for the complainant to do so. The applicant claimed that he had not attempted to open the front door.

7 The applicant was 35 years of age at the time the offence was committed. He was living with his wife and two children. His income consisted of workers' compensation payments of approximately $350 per week. The applicant had never previously been sentenced to imprisonment, although he did have quite a long history of offences involving disorderly conduct, possession of a firearm and offensive conduct. The learned sentencing Judge described the offence, correctly, as being very close to a home invasion. It was, he said, "thuggish" and "uncalled for behaviour", which had to attract a penalty of some significance. He proceeded to sentence both the applicant and Howard to 18 months' imprisonment.

8 It had also been claimed on behalf of the applicant's brother, Jayson, in the Court of Petty Sessions that he and the co-offenders had gone to the complainant's house to recover the sum of $3,000 loaned by him from his wife's savings. His wife was then in a wheelchair, suffering from Friedreich's Ataxia, which is described as an hereditary spinal sclerosis with impairment of speech, lateral curvature of the spine and lower limb palsy. It was likened by counsel to multiple sclerosis. It was denied by Jayson that he had pulled the flyscreen grille from the door, although he accepted that he had thrown "a couple of rocks" through a window. He himself was in poor health, having been a victim of two motor vehicle accidents, and had been left with a bad back.

9 The sentence imposed upon the applicant was one which was within the jurisdiction of the Court of Petty Sessions to impose, so the fact that the two brothers were dealt with in different courts cannot explain the difference in their sentences. Nor can it be explained by any significant distinction between the respective roles played by the brothers in the commission of the offence. Unfortunately, the learned Magistrate did not detail his reasons for imposing a fine. He did, however, correctly take into account the financial capacity of the brother to pay a fine, particularly having regard to the amount of compensation which he was ordered to pay and to the fine of $1,200 which was the minimum penalty for the offence of driving under the influence of alcohol.

10 The reasoning lying behind the correction of marked disparity in sentencing was discussed in Ruby, "Sentencing", 4th edn (1994), in which, at 33, the learned author wrote:

"The notion of equal justice is the source of the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. Sir Rupert Cross has stated that the principle of justice that like cases should be treated alike is fundamental. It is "an essential consideration in the fair and just administration and enforcement of the criminal law in any democratic society" (McLean (1980), 26 Nfld & PEIR 158 at 168)."

And see also Fox and Frieberg, "Sentencing : State and Federal Law in Victoria", 2nd edn (1999) at 347.

11 This principle was considered by the High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 on an application for special leave to appeal against a sentence. By a majority of three to two, special leave was refused. The applicant had been sentenced to a term of 6 years' imprisonment. His co-offender had been placed on 3 years' probation and ordered to perform 200 hours of community service. At 609 - 610, Gibbs CJ said:

"The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. However, the Court of Criminal Appeal in Queensland, on an appeal against a sentence, may quash the sentence imposed and substitute another "if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed" : s 668E of the Criminal Code (Q). The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that 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. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal."

See also Mason J at 611 - 614, Brennan J at 617 - 618, and Dawson J at 623. The wording of s 689 of the Western Australian Criminal Code is similar to that of s 668E of the Queensland Code.

12 In a rather different context, the High Court returned to the question of parity in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 - see in particular per Dawson and Gaudron JJ at 301, McHugh J at 313 - 314, and Kirby J at 335 - 342.

13 Gummow J, in Postiglione's case at 323, observed:

"The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes when the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

In R v Taudevin [1996] VICSC 7; [1996] 2 VR 402 at 404, Callaway JA said, in a passage with which I agree:

'The important words are "manifestly", "justifiable" and "objective". There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer.'

14 The principles to be applied in these cases were also discussed by this Court in Goddard v The Queen [1999] WASCA 281, in which the majority (Pidgeon and Murray JJ) held that in a case where the sentence of a co-offender was inadequate and below the range of a sound sentencing discretion, the court should not intervene. See also R v Robertson (1989) 44 A Crim R 224; R v Capper (1993) 69 A Crim R 64, at 74; R v Ruane (1979) 1 A Crim R 284, at 286; and R v Tisalandis [1982] 2 NSWLR 430, at 431 - 432, 437 - 440 and 441.

15 Unfortunately, the learned Magistrate, in sentencing Jayson, did not explain why he had determined to fine the applicant's brother rather than to impose a sentence of imprisonment. The explanation might well, however, lie in the severe illness of his wife who was confined to a wheelchair and clearly in need of assistance. Be this as it may, in my opinion, a fine of $300 in the case of the applicant would be grossly inadequate and well below the range of a sound sentencing discretion. In the circumstances, there could be no "justifiable" sense of grievance. If there were a sense of grievance, it would certainly not be shared by an objective observer.

16 In the circumstances, I would refuse leave to appeal against the sentence.

17 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the order proposed by his Honour.

18 MURRAY J: I entirely agree with Kennedy J, and I too would refuse leave to appeal in this case.