Goddard v R [1999] WASCA 281

Hall v R [1999] WASCA 176

Romero v R, unreported; CCA SCt of WA; Library No 950351; 11 July 1995

Thomson v Owen (1998) 105 A Crim R 150

1 IPP J: I have had the benefit of reading in draft the reasons proposed by the Hon Justice Wallwork. I am in agreement with those reasons and have nothing further to add.

2 WALLWORK J: The applicant in this matter was sentenced to 3 years and 3 months' imprisonment on 9 February 2000 after he had been convicted of a robbery with a female co-accused. The sentence took into account a period of 6 months, which the applicant had spent in custody prior to sentencing. He was given 9 months credit for that 6 months in custody. The sentence therefore was, in effect, a sentence of 4 years' imprisonment. It was ordered to take effect on the expiration of a sentence he was then serving. The learned sentencing Judge said that had it not been for certain matters in mitigation, he would have sentenced the applicant to a term of 5 years' imprisonment.

3 On the same day the applicant's co-accused was sentenced to a term of 18 months' imprisonment with eligibility for parole to operate from the day of sentencing, which was 9 February 2000. The reason that the co-accused was sentenced to a lesser sentence than the applicant, was that although she was nearly 30 years of age and had to some extent a troubled family background, the sentencing Judge noted that she had no record of significance and that she had a supportive family. His Honour found that the co accused had participated in the plan to rob a person who was selling heroin. She had acted as the lure. His Honour said: "... your part, although a lesser part than that of Mr Winmar, was an important part in the crime."

4 At the hearing of this application, counsel for the applicant told the court that the application came down to an issue of disparity. He conceded that the sentence in itself could not be attacked having regard to the nature of the offence, but he submitted that because the co-offender had received a sentence which was less than half of that imposed upon the applicant, the issue of disparity arose fairly and squarely.

5 Counsel for the applicant said that the facts as found by the jury, were that the applicant and the female co-offender had planned to steal heroin from a female seller of the drug. The jury found that at the time of the robbery, $50 had been taken. That $50 had been handed over for the heroin and then taken back again.

6 It was submitted for the applicant that after due allowance had been made for the two offenders' respective criminality and their different antecedents, the disparity in their sentences was unjustifiable. It was said

that the difference in the sentences was too great. The co-offender was nearly 30 at the time of the offence and the applicant was 37 years of age. The co-offender had been in a relationship with the applicant for a number of years.

7 It was conceded for the applicant that he had a history of criminal conduct. However, it was contended that for the most part his offences had been related to alcohol and aggression arising from alcohol. He had a number of assault convictions. There were also large number of traffic related matters. It was submitted that there were also street-type offences of disorderly conduct and resisting police. That type of offence formed a substantial proportion of the offences on the record. It was contended that there had not been an offence of the present type on a previous occasion.

8 It was stated for the applicant that the two offenders had set out to obtain the heroin and that the applicant had come in and grabbed the heroin very quickly in the circumstances.

9 It was said that the applicant had been in custody since May 1999. It had not been suggested that he had an on-going heroin problem. It was conceded that he had been convicted of aggravated burglary in late 1999 and imprisoned for 21 months. It was said that it was a significant consideration that the effective sentence of 4 years' imprisonment did not commence until the non-parole aspect of the 21 months' sentence for burglary had concluded. It was submitted that the personal circumstances of both the offenders tended to recede into the background for this type of offence. The fact that the applicant had received an effective 4 years' imprisonment and his co-offender something marginally above 18 months revealed a disparity in sentencing.

10 It was conceded that the co-offender had stopped using heroin. Counsel had told the learned Judge that the co-offender had been successfully taking part in a methadone program.

11 In this case, the co-offender had not previously served a term of imprisonment. Counsel for the Director of Public Prosecutions described her record as being of a minor nature. She had already served 1 month's imprisonment at the time she was sentenced to 18 months' imprisonment.

12 It was said for the Director of Public Prosecutions that it was the applicant who had used the actual violence and who had posed the element of fear to the complainant. That the applicant's criminal history demonstrated more than anti-social offending. He had been previously sentenced to 16 months' imprisonment in relation to two counts of assaulting a public officer. Also, he had been serving a suspended term of imprisonment when he had committed the aggravated burglary for which he had been convicted in November 1999. He had entered a flat in Northbridge in daylight when there was someone at home and had stolen from that place. He had committed the present relevant robbery offence within five weeks after he had been released on bail on the burglary offence. It was submitted for the Director of Public Prosecutions that the applicant was in a totally different category to the female co-offender.

13 In Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 609, when discussing disparity of sentencing, 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."

14 In this case, the criminal history and general character of the two offenders were quite different. Since first appearing in the adult courts, commencing in 1991, the applicant had been convicted of offences such as unlawful assault; breaking and entering a dwelling with intent; breaking and entering and stealing; aggravated assault on police; breaking and entering and stealing in 1984; assault occasioning bodily harm in 1989; common assault in 1990; common assault in 1991; receiving in 1991; assaulting a public officer in 1993; common assault in 1993; assaulting a public officer in 1994; threatening behaviour in 1997 on two occasions and the burglary offence, which has already been referred to in the reasons.

15 The applicant had also been given many opportunities when he was not sent to prison. However he had served terms of imprisonment in 1983, 1984, 1985, 1986 and 1987. His Honour described the co-offender as having "no record of significance".

16 The co-offender's record had been described by counsel as one of very minor offences and traffic offences. It had been submitted to the learned Judge that she had offered to plead guilty to the offence of which she had ultimately been convicted after a trial for the more serious offence of armed robbery in company, and that she therefore ought to receive a

discount for a plea of guilty at the first opportunity. The co-offender had also reported dutifully to the police officers while awaiting trial.

17 For the above reasons, and because in my view there were significant differences in the previous criminal history and the general character of the offenders, the sole ground argued on this application, which was based upon an alleged disparity of sentence between the two offenders, has not been made out.

18 I would refuse the application for leave to appeal.

19 WHEELER J: I have had the advantage of reading the draft reasons of Wallwork J with which I agree. I have nothing further to add.