Jurisdiction: SUPREME COURT OF WESTERN AUSTRALIA Citation No: [2007] WASCA 11
Court: THE COURT OF APPEAL (WA)
Case No: CACR:19/2006 Heard: 7 NOVEMBER 2006
Coram: ROBERTS-SMITH JA
McLURE JA
PULLIN JA
Delivered: 2007-01-12
No of Pages: 18 Judgment Part: 1 of 1
Result: Application for leave to appeal against sentence dismissed
Category: D
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On Appeal from: Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GROVES DCJ
File Number: IND 456 of 2005
Parties: BRETT CLAUDE PARFITT
THE STATE OF WESTERN AUSTRALIA
Catchwords: Criminal law and procedure
Sentencing
Assault with intent to cause grievous bodily harm
Stealing with violence
Offender a juvenile at time of offending
Joint trial with adult cooffender
Sentence of 33 months' imprisonment and intensive supervision order
Whether manifestly excessive
Whether adequate consideration given to principles of juvenile justice
Parity
Legislation: Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA), s 46, s 50B
Case References: "I" (A Child) v The State of Western Australia [2006] WASCA 9
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Mallet v Mallet (1984) 156 CLR 605
Pearce v The Queen (1998) 194 CLR 610
C (A Child) (1995) 83 A Crim R 561
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mallard v The Queen [2003] WASCA 85
Nevermann (1989) 43 A Crim R 347
Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999
Postiglione v The Queen (1997) 189 CLR 295
State of Western Australia v Parfitt & Anor [2006] WADC 17
Thomson v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998
Ward v The Queen [2002] WASCA 335
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Last Updated: 2007-01-12
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : PARFITT -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 11
CORAM : ROBERTS-SMITH JA
McLURE JA
PULLIN JA
HEARD : 7 NOVEMBER 2006
DELIVERED : 12 JANUARY 2007
FILE NO/S : CACR 19 of 2006
BETWEEN : BRETT CLAUDE PARFITT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : IND 456 of 2005
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing - Assault with intent to cause grievous bodily harm - Stealing with violence - Offender a juvenile at time of offending - Joint trial with adult cooffender - Sentence of 33 months' imprisonment and intensive supervision order - Whether manifestly excessive - Whether adequate consideration given to principles of juvenile justice - Parity
Legislation:
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA), s 46, s 50B
Result:
Application for leave to appeal against sentence dismissed
Category: D
Representation:
Counsel:
Appellant : Ms H E Prince
Respondent : Mr S Vandongen
Solicitors:
Appellant : Lyn Zinenko
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
"I" (A Child) v The State of Western Australia [2006] WASCA 9
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Mallet v Mallet (1984) 156 CLR 605
Pearce v The Queen (1998) 194 CLR 610
Case(s) also cited:
C (A Child) (1995) 83 A Crim R 561
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mallard v The Queen [2003] WASCA 85
Nevermann (1989) 43 A Crim R 347
Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999
Postiglione v The Queen (1997) 189 CLR 295
State of Western Australia v Parfitt & Anor [2006] WADC 17
Thomson v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998
Ward v The Queen [2002] WASCA 335
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1 ROBERTS-SMITH JA: I agree with reasons of Pullin JA.
2 McLURE JA: This is an application for leave to appeal against sentence. The facts are detailed in the reasons of Pullin JA and not repeated here unless required for an understanding of these reasons.
3 The appellant was convicted of one count of assault with intent to do grievous bodily harm contrary to s 317A(b) of the Criminal Code (WA) and one count of aggravated robbery contrary to s 392 of the Criminal Code. The appellant was a juvenile at the time the offences were committed but an adult when sentenced by Groves DCJ on 23 February 2006. At the time of sentencing, the appellant had been in custody for almost 66 weeks in relation to these offences.
4 The sentencing Judge imposed a term of imprisonment of 33 months, backdated to commence from 22 November 2004, for the assault offence and ordered that the appellant be eligible for parole. He imposed an intensive supervision order for a period of 12 months commencing from 23 February 2006 for the offence of aggravated robbery. The circumstances of aggravation were that the appellant was in company and did bodily harm to the complainant. The maximum penalty for the assault was 5 years and the maximum penalty for the aggravated robbery was 20 years. The earliest eligibility date for parole was around 25 February 2006. However, the appellant was not released on parole until 25 August 2006.
5 The appellant's first ground of appeal is in substance that the sentencing Judge intended that the appellant be immediately released from custody on 23 February 2006 (the date of sentencing). The appellant also contended that the sentencing Judge failed to give any or adequate weight to the fact that the appellant was a juvenile at the date of the offence (ground 2), imposed a sentence for the assault that was manifestly excessive (ground 3) and which did not comply with the parity principle (ground 4).
6 There are two unusual features in the appellant's sentencing. First is the imposition of an intensive supervision order together with a term of immediate imprisonment and second is the imposition of a custodial sentence for the less serious offence and a non-custodial sentence for the more serious offence. The proper course is to determine the appropriate penalty commensurate with the seriousness of each offence (having regard to, inter alia, the statutory penalty and the circumstances of the commission of the offence), ensuring there is no element of double
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penalty where the elements of the offence or statutory aggravating factors overlap (Pearce v The Queen (1998) 194 CLR 610). The most serious offence committed by the appellant, both in terms of its nature and the circumstances of its commission, is the aggravated robbery. Robbery is stealing with violence. The facts and consequence of the assault are an element and an aggravating factor respectively, of the offence of aggravated robbery.
7 The unusual sentencing features are not the subject of challenge in the appeal. The appellant does not challenge the imposition of the intensive supervision order for the aggravated robbery (and the State does not appeal against that sentence). Not surprisingly, the appellant's focus is solely on the sentence imposed for the assault conviction.
Ground 1
8 In support of this ground, the appellant relies on the fact that the sentencing Judge imposed an intensive supervision order for a period of 12 months commencing from 23 February 2006 for the aggravated robbery together with a statement by the sentencing Judge that the appellant had spent sufficient time in custody. It is necessary to consider that statement in its context. The sentencing Judge said:
"Both offences of course arise out of the same incident. The effect of the sentence is that the 33 months' imprisonment with the benefit of parole will mean that you will be entitled or due for parole in the matter of - by my calculation, that is - in the next few days. So by my calculation you would be entitled to parole in the next few days. Whether or not you are granted parole, that's a matter for the parole authorities to consider.
In my view, given your youth, your prior history and so forth, the sentence, the time that you have been in custody now, is sufficient so far as these offences are concerned. If you are granted parole, then of course you will be under the parole regime and together with the intensive supervision order will provide supervision and support for you in the community for the period of 12 months from today." (emphasis added)
9 It is clear from this passage that the sentencing Judge understood that the earliest eligibility date for parole was a few days after the commencement of the intensive supervision order. Further, the sentencing Judge recognised the possibility that the appellant may not be released on parole at the earliest eligibility date. I am satisfied that the
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sentencing Judge was of the (mistaken) opinion that it was open to him to impose a term of immediate imprisonment and an intensive supervision order and that he did not intend that the appellant be immediately released from custody. I agree with Pullin JA, for the reasons he gives, that it was not open to the sentencing Judge to impose a term of immediate imprisonment together with an intensive supervision order.
10 In context, the observation as to the time spent in custody being sufficient suggests the sentencing Judge selected the term of 33 months by reference to whether the earliest eligibility date for parole (that is, after 16? months) would be sufficient time in custody. Although that approach is flawed, neither party contended that the trial Judge erred in approaching the determination of the appropriate term in this way.
Ground 2 - Inadequate weight
11 This has no merit as an independent ground of appeal. A failure to give proper weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the Court: Dinsdale v The Queen (2000) 202 CLR 321 at 330 approving the statement of Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614. That is a very high threshold that is rarely satisfied and is not met in this case. The appellant contended that the sentencing Judge failed to give any or adequate weight to the fact that the appellant was 17 years old at the date of the offences. Section 46 of the Young Offenders Act 1994 (WA) continues to apply to an offender who is aged 18 or over at the time of sentence but was under 18 when the offences were committed: s 50B(5) of the Young Offenders Act. Otherwise the Sentencing Act 1995 (WA) applies: s 50B(2). The sentencing Judge expressly stated that he took into account the fact that the appellant was only aged 17 at the time of the offences and had applied the sentencing principles applicable to juveniles. There is no arguable claim that the sentencing Judge erred in failing to give adequate weight to that matter.
Ground 3 - Manifest excess
12 The appellant was jointly charged with Bevan Ugle who was aged 24 at the time of the offences. Part of the events were captured on a security video. The trial Judge (also Groves DCJ) described the contents of the video as follows:
"The security video … commences at a point in time showing a person, the complainant, lying on the brick paved concourse with two persons standing over him in proximity to the
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complainant's head and upper body. The person shown on the right is, and there is no issue about this, Ugle and the other person by his own admission is Parfitt. The video runs for approximately 40 seconds. Ugle is standing and Parfitt is leaning over the complainant. Parfitt appears to be holding or lifting the complainant's arm and removing a bag or item of clothing from him as Ugle kicks the complainant in the area of the head. Ugle then punches and continues to kick the complainant to the head as Parfitt is seen to lean over the body to pick up or remove something. At this point a third person, the juvenile, appears at some distance in the background. Parfitt appears to pocket the item he picked up and then steps over the lower portion of the complainant's prone body. Ugle punches the complainant in the area of the head and then proceeds to stomp on the head a number of times with force with the sole of his footwear. Parfitt is observed standing over the complainant whilst this is happening and then bends down and appears to remove something from the complainant's person/clothing. While he is doing that Ugle continues to stomp on the complainant's head. Parfitt appears to put something into his right hand pocket, stands upright, straddles the complainant, bends over again as if going through the complainant's pockets and appears to remove something and pocket it before walking off in the direction away from the camera. As that is happening the juvenile is seen to run from a distance and with both feet off the ground jumps onto the complainant's head. Just before this Ugle again kicks the complainant in the head. The juvenile appears to pick up something from near the complainant's head. Ugle and the juvenile are then seen to depart away from the camera before the juvenile stops, returns to the body and picks up something before running off away from the camera."
13 There was eye witness evidence that before the events captured on video Ugle and the appellant kicked the complainant to the head or body whilst he lay on the ground. The trial Judge found that the appellant punched the complainant at least twice after the complainant had gone to ground and that he, in concert with Ugle, kicked the complainant either to the head or upper body.
14 The juvenile was convicted of one count of assault with intent to do grievous bodily harm contrary to s 317A(b) of the Criminal Code and one count of stealing contrary to s 378(5)(a) of the Criminal Code. Unlike Ugle and the appellant, the juvenile was not convicted of aggravated
(Page 8)
robbery. I infer that the assault by the juvenile was not seen to be relevantly connected with the stealing. The juvenile was sentenced to concurrent terms of 3 years for the assault and 2 years and 6 months for stealing which were upheld on appeal: "I" (A Child) v The State of Western Australia [2006] WASCA 9.
15 The appellant pleaded not guilty to the assault charge. He pleaded guilty to the charge of aggravated robbery on the first day of trial. The trial Judge found the appellant guilty of the assault charge both as a principal and under s 8 of the Criminal Code (he found the assault to be a probable consequence of the prosecution of the unlawful purpose of robbing the complainant).
16 The appellant commenced offending at the age of 15 and had convictions for aggravated robbery, burglary and unlawful wounding. As already noted, he was aged 17 at the time the offences were committed. Based on an oral pre-sentence report, it appears the appellant's offending commenced after the death of his mother which traumatised him.
17 The term of imprisonment of 33 months (2 years 9 months) equates to a term of 4 years and 2 months under the sentencing regime that applied prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act"). It was accepted that the transitional provisions of the Sentencing Amendment Act applied to the appellant. Although the statutory maximum penalty is 5 years, the practical effect of the Sentencing Amendment Act is to prevent the Court from imposing more than two-thirds of the statutory maximum, being 3 years and 4 months. The appellant contends that the length of the sentence was at the upper end of the maximum sentence that could have been imposed. Although that proposition may be accepted, it is of limited weight. That is particularly so when the sentencing Judge did not impose the custodial penalty for the more serious offence of aggravated robbery.
18 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337 at 342). The appellant does not refer to or rely on any authorities to establish the standard of sentencing customarily observed for the offence of assault with intent to do grievous bodily harm. No doubt the circumstances of the offence can be highly variable and the
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cases of limited assistance. However, the sentencing Judge, correctly in my view, described the circumstances of the commission of the offence in this case as terribly serious. Having regard to all relevant matters, I am not persuaded that the sentence of immediate imprisonment for a term of 33 months is manifestly excessive.
Ground 4 - Parity
19 The principles relating to parity are discussed in detail in the judgment of Steytler P in "I" (A Child) at [64] - [76]. In particular, he said (at [65]):
"Speaking generally, justice should be equal and like offenders should be treated alike: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606 at 617 - 618, per Brennan J, and Postiglione, ibid. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently … In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance."
20 As noted by Steytler P (at [66]), the imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. The Court in "I" (A Child) concluded that the sentence imposed upon Ugle was excessively lenient when regard was had to the extremely serious nature of the conduct engaged in by him.
21 It was accepted by the parties in this case that the appellant's involvement and culpability was less than that of Ugle and the juvenile. Ugle had a significant record of prior offences. However, he entered a fast track plea of guilty to the assault count and was sentenced to a term of immediate imprisonment of 2 years and 4 months. The fast track plea presumably resulted in the usual discount of around 30 to 35 per cent, the absence of which discount would increase the term to around 3 years and 6 months compared with the appellant's sentence of 2 years and 9 months.
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Although the appellant was a juvenile at the time of the offending and played a lesser role in the offending, he pleaded not guilty. The difference in the sentences given to the appellant and Ugle is a reasonable consequence of the different relevant factors and there can be no justifiable sense of grievance.
22 The juvenile pleaded guilty to the assault count but there was a trial of issues for sentencing purposes. The sentencing Judge expressly stated that he gave a discount for the plea of guilty of about 14 to 15 per cent. Further, the juvenile had no prior record of offences involving violence. The juvenile was sentenced under the Young Offenders Act to which the transitional provisions of the Sentencing Amendment Act have no application. In "I" (A Child), Steytler P said (at [73]):
" … for the purposes of the parity principle, the sentence which should be compared with that imposed on the juvenile offender is that which was actually imposed upon the adult offender, rather than that which, were it not for the operation of the transitional provisions, the sentencing Judge would have imposed on the adult offender."
23 Applying that approach, the appellant can have no justifiable sense of grievance. The juvenile received a longer sentence than the appellant notwithstanding that he received a discount of between 14 to 15 per cent for his plea of guilty and had no prior record of offences of violence. Further, there is an element of artificiality in confining attention to the assault count rather than the totality of the offending when the appellant was also convicted of the more serious charge of aggravated robbery whereas the juvenile was convicted of the lesser offence of stealing. I am satisfied that the parity principle has not been breached.
Conclusion
24 I would grant leave to appeal but dismiss the appeal.
25 PULLIN JA: This is an application for leave to appeal against sentence. Roberts-Smith JA made an order that the application for leave to appeal be listed together with the appeal if leave be granted.
26 The appellant was charged with one count of assault with intent to do grievous bodily harm (count 1), and one count of stealing with violence while in company (count 2). The maximum penalty for count 1 was 5 years and the maximum for count 2 was 20 years.
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27 On 23 February 2006, Groves DCJ sentenced the appellant to 33 months' imprisonment on count 1, backdated to 22 November 2004, and on count 2 made an intensive supervision order of 12 months commencing 23 February 2006.
The facts
28 At about 2 am on 10 October 2004, the complainant was on the overpass over Roe Street between the Art Gallery of Western Australia and the Perth Railway Station. The complainant was a 31-year-old English backpacker. The appellant was with two other males on the overpass, one an adult (Bevan John Ugle) and the other a juvenile. The complainant was knocked to the ground and viciously assaulted. He was also robbed of his wallet and mobile telephone. Having been alerted to the incident via security camera, two police officers attended the scene and found the complainant unconscious with obvious head injuries. One of the police officers stayed with the complainant while the other ran to locate the offenders. The complainant was treated at Royal Perth Hospital for his injuries, including bruising and laceration to his left ear and bruising over his left mandible. He remained in hospital for two days and was then discharged.
29 The appellant and Ugle were apprehended by Senior Constable Cumbers near a garden area and were taken into custody. The area was searched and complainant's wallet was found in amongst bushes in the garden.
30 Part of the incident was captured by security video at the Perth Railway station. The video commenced running when the complainant was lying on the ground with Ugle and Parfitt standing over him. Parfitt was seen to remove various items from the complainant's person or clothing. While he was doing that, Ugle punched and kicked the complainant in the head a number of times, and then stamped on the complainant's head a number of times. Parfitt walked off in a direction away from the camera, and at that time the juvenile was seen to run from a distance and jump with both feet onto the complainant's head. The juvenile and Ugle departed from the camera before the juvenile stopped, returned to the complainant's unconscious body and picked up something before running away and off camera.
31 The incident was also witnessed by a man who was with a friend on the upper concourse of the railway station, walking towards the Roe Street overpass. The man, a Mr Vaughan, gave evidence at trial that he observed two Aboriginal males kicking the complainant while he was
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lying on the ground. He gave evidence that a third, who was "hovering around", then ran up and gave the complainant a kick in the head. He also said he saw them reaching into the complainant's pockets and removing something before running off. The trial Judge found that the appellant kicked the complainant.
32 The appellant also participated in a video record of interview, in which he admitted hitting the complainant. His version of events was that he had been in the area with Ugle, the juvenile, and another. He looked back to see the complainant lifting the juvenile off the ground by his throat, and so went to the aid of the juvenile and hit the complainant with a punch to the head, and "hit him again and again …". The appellant claimed that while Ugle was stamping on the complainant's head that he was "freaking out". The sentencing Judge found that this explanation was "not borne out on the security video which depicts [the appellant] apparently calmly going about his business of searching and removing items from the complainant's person whilst Ugle continued to stomp on his head." The trial Judge also rejected the appellant's claim that he removed the items from the complainant's clothing at the behest of Ugle, finding instead that the appellant was a principal offender and also a party to the joint criminal enterprise.
Sentencing Remarks
33 The sentencing Judge noted that it was a "terribly serious offence". His Honour said it was apparent to him from the appellant's video record of interview that the appellant was remorseful for his participation.
34 The sentencing Judge had the benefit of an oral pre-sentence report detailing the appellant's personal circumstances. This revealed that he had a record commencing when he was 15 and which included aggravated robbery, burglary and unlawful wounding. His Honour said he was mindful that at the time of offending, the appellant was 17 years old and still a juvenile, and that he had "to take that into account in sentencing and the sentencing principles applicable to juveniles". His Honour noted the appellant's family background, unstable circumstances, his relationship with his mother and his abandonment following his mother's unexpected death when he was aged 15. His Honour referred to the good relationship the appellant had with his father, and the support of the appellant's wider family.
35 His Honour noted that the appellant had demonstrated changes since incarceration, and that he had been in custody since the offending. The sentencing Judge then concluded that in all the circumstances, only a
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sentence of immediate imprisonment was appropriate in respect of count 1. In relation to the issue of parity with the co-offenders, his Honour noted that the appellant's situation was distinguishable from that of the co-offenders, as they each pleaded guilty on the fast-track system and were accorded a reduction in sentence for their pleas of guilty in relation to the assault charge.
36 His Honour noted that the appellant entered a plea of guilty on count 2, accepted that there should not be double punishment, and imposed the intensive supervision order in respect of count 2. His Honour said that, by his calculation, the effect of the sentence of 33 months' imprisonment on count 1 with eligibility for parole, meant that the appellant would be entitled to parole "within the next few days", although adding that the grant of parole remained a matter for the parole authorities. In fact, the appellant was not eligible for parole for more than a month but this mis-statement of the facts does not affect the outcome of this appeal.
Grounds of appeal
37 There are four grounds of appeal:
"1. The Learned Sentencing Judge erred in law and in fact in sentencing the appellant to an immediate term of imprisonment on count one (assault with intent to do grievous bodily harm) when he sentenced the appellant to an intensive supervision order to be effective immediately in relation to count 2 (aggravated robbery) when the appellant was to remain in custody unless and until he was released on parole.
Particulars
a. the learned Sentencing Judge accepted that the appellant had spent 'sufficient time in custody' and that the Appellant had a lesser role in the offending than his co-offenders (which was also accepted by counsel for the State)
b. further, by the imposition of an intensive supervision order on count 2, the Learned Sentencing Judge clearly took the view that an immediate term of imprisonment was not warranted taking into account the appellant's
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'youth, prior history, and the time spent in custody'.
2. Further, the Learned Sentencing Judge erred in law and in fact in failing to give any or adequate weight to matters relevant to mitigation of sentence and, in particular, the youth of the appellant who was a juvenile at the date of the offence but an adult at the date of sentencing and, in particular the matters set out in sections 50B(5) and 46(1) of the Young Offenders Act 1994.
3. Further and alternatively, the sentence imposed was manifestly excessive.
Particulars
The imposition of a sentence of 33 months (44 months taking into account the transitional provisions of the Sentencing Act 1995) was excessive taking into account the appellant's role in the offence, the applications of the principles which apply to offenders who are juveniles at the date of the offence(s) and in light of the maximum available (40 months taking into account the transitional provisions of the Sentencing Act 1995).
4. Further, the Learned Sentencing Judge erred in law and in fact in imposing a sentence in excess of that imposed on the adult co-offender and the juvenile co-offender in light of the Learned Sentencing Judge's findings (and the concession by counsel for the State) that the appellant's participation in the offence was lesser than that of the two co-offenders; the disparity in sentence being such that the appellant has a 'justifiable sense of grievance'. "
Ground 1
38 The appellant contends that the appropriate sentence was a non-custodial one. In my opinion, the seriousness of the offence is one which did warrant a custodial sentence. The appellant however, seizes upon the fact that after sentencing the appellant as he did, the sentencing Judge said:
"In my view, given your youth, your prior history and so forth, the sentence, the time that you have been in custody now, is
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sufficient so far as these offences are concerned. If you are granted parole, then of course you will be under the parole regime and together with the intensive supervision order will provide supervision and support for you in the community for the period of 12 months from today."
39 In my opinion, all that his Honour meant by this was that the sentence of 33 months was appropriate and that if released on parole then he was satisfied that the appellant would have spent sufficient time in custody. In fact, strictly speaking, his Honour should only have been concerned with the total sentence, because the process of release on parole is not a matter within the discretion of the court or a consideration which was relevant to the setting of an appropriate sentence. However, having mentioned the fact that the appellant was soon to be released on parole does not amount to error.
40 I should also observe that once his Honour had imposed a custodial sentence in relation to count 1, some of which remained to be served, his Honour should not have imposed an intensive supervision order in relation to count 2. This is because s 39(2)(e) of the Sentencing Act provides that when a court sentences an offender, he may "under Part 10 impose an ISO and order the release of the offender". At the time his Honour imposed the ISO it was not possible for him to order the release of the appellant, given his earlier order that the appellant should be imprisoned in relation to count 1. As a result, the imposition of an ISO was not a sentencing option open to the court. However, there is no appeal by either party against the imposition of the ISO. Further, the appellant cannot gain support for his contention that there should have been a non-custodial sentence in relation to count 1 because an ISO was incorrectly ordered in relation to count 2. Ground 1 has no merit.
Ground 2
41 Ground 2 contends that the learned sentencing Judge erred in failing to give any or adequate weight to mitigating factors, particularly the fact that the appellant was a juvenile at the time of offending, and to the matters set out in s 50B(5) and s 46(1) of the Young Offenders Act 1994.
42 Section 50B(1) of the latter Act states that the section applies in respect of a young person found guilty of an offence who at the time of being sentenced was 18 years old or older. The section therefore applied. Section 50B(2) provides that the court dealing with the offender must dispose of the matter by sentencing the offender under the Sentencing Act 1995. The Sentence Administration Act 2003 (WA) is also to apply to,
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and in respect of the sentence imposed. Section 50B(2) provides that despite subs (2) s 46 applies to the court dealing with an offender. Section 46 states the principles and considerations to be applied to young offenders.
43 The ground contends that the sentencing Judge failed to give any, or adequate weight, to these statutory provisions and the youth of the appellant. This ground cannot be sustained. His Honour referred to the age of the appellant at the time of the offence, the fact that he was a juvenile and the fact that he had to take into account the principles applicable to juveniles. It was not shown that "adequate weight" was not given to these matters.
44 Ground 2 has no merit.
Ground 3
45 Ground 3 contends that the sentence was manifestly excessive. This is therefore a contention that there was implied error.
46 In my opinion the sentence was not manifestly excessive. It is not contended that the sentence was excessive by reference to sentences customarily imposed.
47 One particular to the ground refers to the sentences imposed in relation to the other offenders, but I will deal with that aspect in relation to ground 4. The final particular contends that the sentence was excessive in the light of various factors, all of which were taken into account by the sentencing Judge. Ground 3 has no merit.
Ground 4
48 This ground asserts that there was such a disparity in sentence between the term of imprisonment imposed on the appellant and that imposed on the adult co-offender, Bevan John Ugle, and that imposed on the other juvenile co-offender that error is revealed.
49 In "I" (A Child) v The State of Western Australia [2006] WASCA 9 at [65] and [65], Steytler P said:
"65 The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. Equal justice requires that, as
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between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606 at 617-618, per Brennan J, and Postiglione, ibid. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: R v Cox (1996) 66 SASR 152, per Doyle CJ, and Postiglione, at 301, per Dawson and Gaudron JJ. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance.
66 In considering the application of the parity principle, sight should not be lost of the community interest in seeing offenders appropriately punished. The imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. While parity might require a sentencing Judge to be more lenient than he or she might otherwise have been, it does not require a sentencing Judge to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence."
50 The sentencing Judge expressly acknowledged the submission concerning parity made by counsel for the appellant at the sentencing hearing. His Honour noted that the appellant's situation was distinguishable from that of the co-offenders because they had each pleaded guilty and were therefore accorded a reduction in respect of those pleas. Had the appellant pleaded guilty to count 1, he would have been entitled to receive a discount in his sentence of anywhere between 15 to 30 per cent. His co-offender Ugle, after a plea of guilty, was sentenced to 28 months' imprisonment. If the appellant had pleaded guilty and had received a discount somewhere within the range I have mentioned, then his sentence would have been similar to, or less than the sentenced imposed on Ugle. I note that the Court of Appeal in "I" v The State of Western Australia (supra) regarded Ugle's sentence as being excessively lenient. See [74] per Steytler P and [77] per McLure JA. The appellant's
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sentence of 33 months was 3 months less than that imposed on his juvenile co-offender "I" and would have been considerably less if he had pleaded guilty.
51 There is therefore no basis for concluding that the parity issues were not properly considered by the sentencing Judge. Ground 4 has no merit.
Disposition of the application
52 Because none of the grounds has any merit, I would dismiss the application for leave to appeal on all grounds with the consequence that by reason of s 27(3) of the Criminal Appeals Act, the appeal is dismissed. The only order that this Court need make is to dismiss the application for leave to appeal in relation to all grounds.
