PILLING v The State of Western Australia

[2008] WASCA 3

PILLING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 3

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 3
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:39/2007	Heard:	17 DECEMBER 2007
Coram:	WHEELER JA	Delivered:	20/01/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MATTHEW RYAN PILLING THE STATE OF WESTERN AUSTRALIA
Catchwords:	Appeal Criminal law Sentencing Parity Turns on own facts
Legislation:	Nil
Case References:	Worth v The Queen [2001] WASCA 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PILLING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 3 CORAM : WHEELER JA HEARD : 17 DECEMBER 2007 DELIVERED : 21 JANUARY 2008 FILE NO/S : CACR 39 of 2007 BETWEEN : MATTHEW RYAN PILLING

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : YEATS DCJ

File No : IND 1299 of 2006

Catchwords:

Appeal - Criminal law - Sentencing - Parity - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms M M in de Braekt
Respondent : Mr J Mactaggart

Solicitors:

Appellant : Megan in de Braekt
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Worth v The Queen [2001] WASCA 303


(Page 3)

1 WHEELER JA: This application for leave to appeal concerns the sentences imposed upon the appellant in respect of two counts of a 13-count indictment. The appellant was named as the offender in 11 of those counts. In respect of four of them, there was one Jones named as co-offender. The remaining three counts were alleged to have been committed by Jones, but not by the appellant. The various offences were moderately serious offences of dishonesty, involving stealing a motor vehicle, burglary, aggravated burglary and receiving.

2 In addition, Jones was sentenced in respect of 24 summary offences contained in a s 32 notice. The appellant was sentenced in respect of six summary offences contained in a s 32 notice. By and large, the offences in Jones' s 32 notice were more serious summary offences than the offences in the appellant's s 32 notice. However, the appellant's s 32 notice did contain one count of reckless driving and two counts of breaches of orders, one being a breach of bail and one a breach of a community based order.

3 Finally, I mention by way of background that both the appellant and Jones were roughly the same age, both pleaded guilty at the same time, and both had very bad records apparently arising out of drug addiction. Jones had 26 prior offences. The appellant had more than double that number, and some of his were very serious, including two armed robberies.

4 The same sentencing judge sentenced each of the appellant and Jones, although on different occasions. It is plain from her sentencing remarks that she was aware, when she came to sentence the appellant, of the total effective sentence she had imposed on Jones. Jones received, for her seven indictable offences and 24 s 32 notice offences, an effective sentence of 4 years 8 months' imprisonment, with parole eligibility. Four years related to the indictable matters and 8 months to the s 32 notice. The appellant received an effective total of 6 years 8 months' imprisonment, with parole eligibility. All of that was attributable to the 11 indictable offences, with the s 32 notice offences being the subject of wholly concurrent terms.

5 As I have noted, the appellant seeks to appeal in respect of only two of the sentences imposed, being two of the cumulative 2-year terms. In respect of one of those, the co-offender Jones also received a 2-year term of imprisonment, but that was concurrent with the sentence imposed in respect of other of her offences. It is said, with what would be some force if the offence stood alone, that the sentence imposed on the appellant

(Page 4)

should have been equal to or less than that imposed on Jones in respect of count 11, since it concerned an aggravated burglary on a dwelling in the course of which Jones played the more active role. The occupier of that premises confronted Jones, who threw a bike at the occupier. In respect of that offence the appellant only drove the getaway car.

6 In respect of count 13, it is noted that count 12, for which Jones received a 2-year sentence of imprisonment cumulative on other offences, concerned an aggravated burglary in which she stole a laptop computer. It is submitted that the appellant should have received a lesser term for the receiving of the same laptop computer, which was dealt with in count 13. Instead, he also received 2 years cumulative on other offences. It is also noted that Jones received an effective sentence of only 8 months in respect of her receiving offences. However, those were receivings dealt with on a s 32 notice.

7 It is plain from the brief summary I have given, that questions of totality loomed large in the sentencing process in respect of each offender. Her Honour was alive to that question. It can also be seen that the differences between the total effective sentences imposed on each offender would appear to be entirely justifiable in the light of Jones' very marginally less serious record, and this appellant's somewhat greater criminality evidenced by the commission by him of a more significant number of serious (indictable) offences. Quite rightly, no complaint is made about any overall lack of parity.

8 The short answer to both of these grounds of appeal must be that, whatever the position might be if either count 11 or count 13 were to be considered in isolation, a sentence will only be interfered with on parity grounds if the sentence would engender in the offender a justifiable sense of grievance and would engender in an objective observer the view that it appeared that justice had not been done: Worth v The Queen [2001] WASCA 303.

9 So far as counts 11 and 13 are concerned, neither of the sentences complained of is outside an appropriate sentencing range for the offences committed. Any consideration of any count in the indictment (or of any of the individual components of the s 32 notice) on its own is necessarily an artificial exercise, since cumulation, concurrency, and (on occasion) the terms of individual sentences must, in cases such as the present, be adjusted in a somewhat artificial way in order to ensure that the overall sentence is proportionate to the totality of the criminality and that the overall sentence is not so long as to be "crushing". If the appellant does

(Page 5)

consider counts 11 and 13, out of all of the string of offences of which he was convicted, in isolation, and a sense of grievance is thereby engendered, that grievance would not be a justified one.

10 In my view, neither ground has a reasonable prospect of success and I would therefore dismiss the appeal.