Astone v The State of Western Australia
[2024] WASCA 18
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ASTONE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 18
CORAM: MAZZA JA
MITCHELL JA
VANDONGEN JA
HEARD: 15 DECEMBER 2023
DELIVERED : 16 FEBRUARY 2024
FILE NO/S: CACR 41 of 2023
BETWEEN: CATENA ASTONE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 1566 of 2021
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Possession of a sum of money that was reasonably suspected of having been unlawfully obtained - Possession of trafficable quantity of methylamphetamine with intent to sell or supply it to another - Offering to sell or supply a trafficable quantity of methylamphetamine to another - Possession of heroin with intent to sell or supply it to another - Whether the total effective sentence infringes the first limb of the totality principle - Whether sentence imposed on appellant infringes the parity principle by reason of the disparity between the total effective sentence received by the appellant and a co-offender and the lack of disparity between sentences for individual offences where the appellant's culpability was lower due to mitigating factors
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 3
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | J D Edwardson KC |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | David Manera, Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Blasco v The State of Western Australia [2021] WASCA 26
Curry v The State of Western Australia [2022] WASCA 36
Den Ridder v The State of Western Australia [2022] WASCA 113
Garlett‑Exell v The State of Western Australia [2020] WASCA 179
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Gray v The State of Western Australia [2023] WASCA 188
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Ho v The State of Western Australia [2023] WASCA 160
Humes v The State of Western Australia [2023] WASCA 110
Jardim v The State of Western Australia [2011] WASCA 83
Kabambi v The State of Western Australia [2019] WASCA 44
Le v The State of Western Australia [2022] WASCA 163
McKay v The State of Western Australia [2023] WASCA 140
Mehta v The State of Western Australia [2023] WASCA 24
Nguyen v The State of Western Australia [2009] WASCA 8
Nguyen v The State of Western Australia [2023] WASCA 151
Tresnjo v The State of Western Australia [2015] WASCA 193
Wong v The State of Western Australia [2019] WASCA 8
JUDGMENT OF THE COURT:
Summary
On 31 March 2023, the appellant was sentenced to a total effective sentence of 7 years 6 months' imprisonment for drug and drug-related offending. The sentences for the charged offences were structured as follows:
| Offending by the Appellant | ||||
| Count | Offence | Maximum penalty | Sentence | Cumulation |
| 1 | Possession of a thing capable of being stolen, namely a sum of money ($13,950 cash) reasonably suspected of having been unlawfully obtained. (Criminal Code (WA), s 417(1)) | 7 years | 9 months | Concurrent |
| 2 | Offering to supply a prohibited drug (27.96 g of methylamphetamine) to another. (Misuse of Drugs Act 1981 (WA), s 6(1)(c)) | 25 years | 3 years 3 months | Cumulative |
| 4 | Offering to supply a trafficable quantity of a prohibited drug (28 g of methylamphetamine) to another. (Misuse of Drugs Act, s 6(1)(c)) | Life imprisonment | 4 years 3 months | Head sentence |
| 5 | Possession of a trafficable quantity of a prohibited drug (111 g of methylamphetamine) with intent to sell or supply it to another. (Misuse of Drugs Act, s 6(1)(a)) | Life imprisonment | 4 years | Concurrent |
| 6 | Possession of a prohibited drug (60.79 g of heroin) with intent to sell or supply it to another. (Misuse of Drugs Act, s 6(1)(a)) | 25 years | 3 years 3 months | Concurrent |
| 7 | Possession of a thing capable of being stolen, namely a sum of money ($3,000 cash) reasonably suspected of having been unlawfully obtained. (Criminal Code, s 417(1)) | 7 years | 6 months | Concurrent |
| Total effective sentence | 7 years 6 months | |||
The appellant was made eligible for parole and the sentences were backdated to 31 January 2023 to take into account time spent in custody on remand. The appellant pleaded guilty to counts 1 - 2 and counts 4 ‑ 7 and received a discount of 17.5% for each count under s 9AA of the Sentencing Act 1995 (WA). Count 3 (which charged a conspiracy offence) was discontinued.
Previously, on 16 September 2021, the same sentencing judge had sentenced the appellant's son, Calogero La Bianca, to a total effective sentence of 5 years 3 months' imprisonment in respect of two drug offences. The sentence imposed on Calogero La Bianca was structured as follows:
| Offending by Calogero La Bianca | ||||
| Count | Offence | Maximum penalty | Sentence | Cumulation |
| 1 | Possession of a prohibited drug (13.8 g of methylamphetamine) with intent to sell or supply it to another. (Misuse of Drugs Act, s 6(1)(a)) | 25 years | 15 months (reduced from 2 years for totality) | Cumulative |
| 2 | Supplied a trafficable quantity of a prohibited drug (111 g of methylamphetamine) to another. (Misuse of Drugs Act, s 6(1)(c)) | Life imprisonment | 4 years | Head sentence |
| Total effective sentence | 5 years 3 months | |||
Calogero La Bianca was made eligible for parole and his sentence was backdated to 25 February 2020 to take account of time spent in custody on remand. Calogero La Bianca received a discount of 20% under s 9AA of the Sentencing Act in respect of each count.
The 13.8 g of methylamphetamine which was the subject of count 1 on Calogero La Bianca's indictment was located on 20 August 2019 at a search of the premises at which he and the appellant both lived. The same search of that premises located the cash which was the subject of count 1 on the appellant's indictment. The 111 g of methylamphetamine which was the subject of count 2 on Calogero La Bianca's indictment was also the subject of count 5 on the appellant's indictment.
The appellant appealed against her sentences on three grounds. Ground 1, as amended at the hearing of the appeal, alleges the total effective sentence of 7 years 6 months' imprisonment infringes the first limb of the totality principle. Ground 2 was abandoned at the hearing of the appeal. Ground 3 contends the sentencing judge failed to have regard or proper regard to the parity principle. The appellant contends the sentencing judge made an express error by finding the appellant and Calogero La Bianca to be equally culpable for the offences charged in count 5 on the appellant's indictment and count 2 on Calogero La Bianca's indictment. The appellant also contends that error in the application of the parity principle is to be inferred from the lack of disparity in the sentences in circumstances where the appellant's culpability is less than that of Calogero La Bianca.
The appellant's application for leave to appeal on the above grounds has been referred to the hearing of the appeal.
We would refuse leave to appeal on ground 1, grant leave to appeal on ground 3 and dismiss the appeal. In summary, that is because:
1.The total effective sentence of 7 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the appellant's offences.
2.The difference between the appellant's and Calogero La Bianca's total effective sentences reflects the greater level of overall criminality involved in the larger number of offences of which the appellant was convicted.
3.The sentencing judge did not make the express error alleged by the appellant in relation to parity.
4.Despite the appellant's better antecedents, no practical injustice or unfairness arises from the lack of disparity in the individual sentences for count 5 on the appellant's indictment and count 2 on Calogero La Bianca's indictment. It was reasonably open for the sentencing judge to consider the difference in culpability for the individual offences to be sufficiently reflected in the fact that the appellant's sentence for count 5 was to be served concurrently with her other sentences, while Calogero La Bianca's sentence for count 2 on his indictment was the head sentence. It was therefore reasonably open for the sentencing judge to take the view that the parity principle was appropriately accommodated by the difference in the total effective sentences imposed on the appellant and Calogero La Bianca.
Circumstances of the appellant's offending
The circumstances of the appellant's offending are reflected in the facts stated by the prosecutor and accepted by the appellant, and the findings made by the sentencing judge.[1]
[1] Sentencing ts 107.
Between June 2019 and April 2020, the appellant's and Calogero La Bianca's telephones were monitored by the police while they were each subject to a national crime investigation in relation to drug trafficking offences.[2]
Count 1
[2] Sentencing ts 107.
On 20 August 2019, police executed a search warrant at the appellant's home in Stirling whilst Calogero La Bianca was present. The appellant and Calogero La Bianca were both living in the appellant's home at the time. The police seized, and charged Calogero La Bianca with possessing, a quantity of methylamphetamine together with a firearm, firearm parts and ammunition. The police also located a total of $13,950 cash hidden in various places within the house. This cash was the subject of count 1 on the appellant's indictment. A telephone conversation between the appellant and her former husband shortly after the execution of the search warrant revealed she was aware of the presence of the cash in her home.[3]
Count 2
[3] Sentencing ts 107.
On 2 February 2020, a listening device which was installed at the appellant's home recorded a conversation between the appellant and Calogero La Bianca during which the appellant offered to supply him with 28 g of methylamphetamine. The device captured the appellant measuring 27.96 g of methylamphetamine and asking Calogero La Bianca whether he wanted her to put it in an ounce bag to which he responded 'yeah'.[4]
Count 4
[4] Sentencing ts 107 - 108.
On 24 March 2020, the listening device captured the appellant offering to supply an individual with 28 g of methylamphetamine at her home. The individual told the appellant he had 'money up-front' for something and the appellant explained to him that she had 'more coming in a couple of hours'. The appellant explained to the individual that the package was sealed for the purpose of being buried and that she could supply 'five ounces a week'. The offer to supply the 28 g, rather than the five ounces a week, is the subject of count 4 on the appellant's indictment and was the basis on which the appellant was sentenced.[5]
Count 5
[5] Sentencing ts 108.
On 26 and 27 March 2020, the appellant, Calogero La Bianca and another co-offender, David Tito, were under police surveillance. Surveillance devices recorded a conversation between Calogero La Bianca and Mr Tito on 26 March 2020 in which a plan to collect drugs was discussed.[6]
[6] Sentencing ts 108.
On the morning of 27 March 2020, Mr Tito sent a text message to the appellant to say he had arrived at her home. Shortly afterwards, Calogero La Bianca arrived. The appellant and Calogero La Bianca told Mr Tito of the plan for the day. This plan involved the three of them driving towards Yanchep in two vehicles, and the appellant and Calogero La Bianca collecting the drugs while Mr Tito travelled to a cafe on Indian Ocean Drive to wait for them. Calogero La Bianca would then transfer the collected drugs to Mr Tito's car and the three of them would return to the appellant's house where Mr Tito would be paid for acting as courier.
Once Mr Tito had been advised of the plan, the appellant gave Mr Tito $40 for fuel and instructed him to fuel up at a service station in Gwelup.[7] While Mr Tito was at the service station, the appellant and Calogero La Bianca drove up next to him and both cars drove towards Yanchep, travelling in convoy. The appellant instructed Mr Tito to stop and wait for a time at a truck stop on Indian Ocean Drive while the appellant and Calogero La Bianca headed further north.[8] Mr Tito then drove his car to the cafe. He parked on the roadside, where the appellant and Calogero La Bianca met him. Mr Tito lifted the bonnet of his car and Calogero La Bianca placed a package of methylamphetamine beneath the bonnet. The two cars then drove away towards Perth until stopped by police, and both cars were searched.[9]
[7] Sentencing ts 108 - 109.
[8] Sentencing ts 109.
[9] Sentencing ts 109.
The police found a black sock containing a cryovac package of 111 g methylamphetamine with a purity of 81% inside the air filter of Mr Tito's car. Calogero La Bianca's DNA was found on the cryovac packaging containing the methylamphetamine.[10]
[10] Sentencing ts 109.
The appellant's possession of this methylamphetamine is the subject of count 5 on the appellant's indictment. Calogero La Bianca's supply of the methylamphetamine to Mr Tito is the subject of count 2 of Calogero La Bianca's indictment.
The appellant's role and motivation in relation to counts 1, 2, 4 and 5
The sentencing judge accepted that the appellant's involvement in the offending conduct the subject of counts 1, 2, 4 and 5 was a misguided attempt to help her son, Calogero La Bianca, who was a drug user and drug dealer. The appellant became involved in Calogero La Bianca's drug dealing business to assist him to pay off his drug debts.[11] She was fearful for her son's life because of threats made to him by drug dealers to whom he owed money.[12]
[11] Sentencing ts 111.
[12] Sentencing ts 111.
However, the sentencing judge found the appellant's role was at least equal to, if not greater than, her son's role because of his impaired ability to properly operate his drug dealing business. The appellant had ready access to significant quantities of methylamphetamine and discussed being able to supply up to five ounces a week of methylamphetamine at that time. She was also in possession of a significant quantity of methylamphetamine (111 g with a purity of 81%).[13] Her offending occurred over at least 7 months. The offending was not isolated and involved a degree of planning and sophistication. This included formulating plans with Calogero La Bianca and Mr Tito, and using Mr Tito as courier in an attempt to hide or distance the appellant and Calogero La Bianca's involvement in the offending the subject of count 5.[14] The sentencing judge found the appellant's role in the offending was at least in the mid-levels of a drug distribution network.[15]
[13] Sentencing ts 110.
[14] Sentencing ts 110 - 111.
[15] Sentencing ts 112.
The appellant offended for commercial purposes. While the appellant may not have personally profited, she knew that significant money would be made from the drug dealing business, which she intended would be received by her son to assist him to pay off his drug debts while he was continuing to use methylamphetamine and continuing his drug dealing business.[16]
Counts 6 and 7
[16] Sentencing ts 112.
After police searched the vehicles on 27 March 2020, they conducted a search of the appellant's home. Police found 60.79 g of heroin with a purity of 74% - 77% hidden in a box on top of the oven (count 6). Police also located $3,000 cash beneath the oven (count 7).[17]
[17] Sentencing ts 109.
The appellant was holding and hiding the heroin and money on behalf of her then-partner, Mr Kirk Ettia, who was a heroin user and dealer. The appellant was not personally selling or supplying heroin for commercial purposes. The sentencing judge found the appellant was a bailee of the drugs, which she was keeping for Mr Ettia. She knew the quantity of heroin and cash which was hidden. She knew the heroin was going to be distributed into the community for commercial purposes. She knew the harm the distribution of drugs into the community would cause given her experiences with Mr Ettia and Calogero La Bianca, both of whom used drugs.[18]
[18] Sentencing ts 112.
The appellant did not personally commercially benefit from the possession of the heroin and cash but assisted Mr Ettia to do so. The appellant knew Mr Ettia was selling heroin to fund his own drug habit. To that extent, the appellant's offending was for commercial purposes.[19]
[19] Sentencing ts 112.
Appellant's personal circumstances
The sentencing judge made the following findings as to the appellant's personal circumstances.[20]
[20] Sentencing ts 113 - 115.
The appellant was 59 years old at the time of sentencing. She is the youngest of three sisters. The appellant's parents migrated to Australia from Sicily in the early 1950s. The appellant's parents were strict, resulting in the appellant having limited freedom as a child. The appellant was raised on a farm in a reclusive environment where she was made to work from an early age. She was not permitted to have friends or participate in daily activities with other school children.
The appellant was afraid of her father who was frequently physically and emotionally abusive towards her. She was raised to believe that men were superior and women were to be 'obedient to and could not survive without a man'. The appellant was often beaten with a strap and threatened to 'do as she was told' by her father.
The appellant was bullied and ostracised in high school due to her ethnicity and the way she was dressed and groomed. The appellant often felt humiliated. The appellant left high school after completing year 10 and then completed a 12-month clerical course at TAFE. The appellant then completed a 12-month traineeship as a seamstress with an aunt and then worked for an extended period in bookkeeping and clerical positions.
At about the age of 17 the appellant had her first relationship. The appellant's parents did not approve of the relationship. In 1983, the appellant's parents arranged her marriage to a Sicilian man, Anthony La Bianca, whose family was known to her father. The appellant barely knew Anthony La Bianca and did not want to marry him. She was forced to do so. The appellant was physically and emotionally abused by Anthony La Bianca. He was an alcoholic, a gambler and had relationships with other women. He started using illicit drugs and became involved in drug dealing activities. He was sentenced to increasingly longer periods of imprisonment. The appellant was afraid of Anthony La Bianca and felt unable to leave the marriage.
The appellant had two children with Anthony La Bianca - Calogero La Bianca who was born in 1992 and a daughter who was born in 1994. The appellant brought up her two children alone as her husband spent most of their childhood in prison. Eventually, after about 20 years, the marriage ended.
The appellant's father passed away in 1998. The appellant found this to be a relief as she no longer had to fear him.
In the early 2000s, just before her 40th birthday, the appellant met her second partner, Mr Ettia. In 2004, they started living together, but the relationship started to break down when the appellant learned that Mr Ettia was addicted to heroin. Thereafter the relationship was strained and was on and off.
Mr Ettia became involved in drug dealing activities and associating with other drug users and people involved in criminal activities. Mr Ettia became physically and emotionally abusive towards the appellant. His relationship with her two children was also strained. Mr Ettia threatened to harm himself if the appellant left him. In 2005, the appellant and her children moved away from Mr Ettia. However, Mr Ettia stalked the appellant and they later moved back in together. The appellant frequently tried to leave Mr Ettia. She suffered anxiety and depression and became dependent on opioid medication.
Mr Ettia was imprisoned in 2015 and later died in a car crash in March 2022.
The appellant had a good relationship with her son Calogero La Bianca until he reached the age of 17, when he started to deal drugs and incur drug debts. On one occasion, the appellant's home was involved in a drive-by shooting which the appellant never reported to police as she knew Calogero La Bianca was 'in the wrong' and owed money. At this time, Calogero La Bianca was on bail for drug-related charges.
The appellant often drove for Calogero La Bianca as he was frequently drug fuelled and at times incoherent. As his mother, the appellant felt the need to keep her son safe. The appellant became involved in the offending to assist Calogero La Bianca with his drug debts.
The appellant has worked for extended periods in a variety of positions. After the appellant married Anthony La Bianca, they moved to Perth where she worked in his family's restaurant delicatessen business. After this, the appellant worked for extended periods in a variety of positions, including bookkeeping, administration, and managerial positions. More recently, the appellant has worked in various positions in the legal and construction industry, where she was well regarded by her employers and colleagues.
The appellant had no prior criminal record and only a minor road traffic record which the sentencing judge did not find to be relevant to sentencing. The sentencing judge considered the appellant to be a person of good character to some extent prior to this offending.
Sentencing judge's approach
After referring to the circumstances of the appellant's offending and her personal circumstances, the sentencing judge referred to the appellant's pleas of guilty which his Honour accepted reflected the appellant's remorse for her offending.[21] His Honour allowed a discount of 17.5% on each of the individual sentences under s 9AA of the Sentencing Act.[22]
[21] Sentencing ts 115 - 116.
[22] Sentencing ts 127.
The sentencing judge referred to a report prepared by the appellant's treating psychologist.[23] The sentencing judge accepted the appellant suffered from poor mental health throughout her life, including anxiety, depression and possibly post-traumatic stress disorder related to domestic violence and abuse to which the appellant was subject to throughout her life.[24] The sentencing judge also observed:[25]
While […] I accept those conditions explain how you became involved in the offending, they don't to any significant extent reduce your moral culpability for the offending because you knew that what you were doing was unlawful. You acknowledge that you knew that what you were doing was wrong.
While your relationship with your former partners and with your son may in part explain how you became involved in the offending, it does not to any significant extent reduce your moral culpability for the offending or the seriousness of the offending. From the fact that each of your former partners and your son were sentenced to terms of imprisonment, you knew the consequences of becoming involved in drug dealing activities, yet you were not deterred and chose to become involved, I accept from a misguided attempt principally to help your son and out of fear of physical violence from your former partners.
Also from the harmful impact of drugs on your son and your former partner, you were well aware of the harmful consequences of drug use, yet chose to become involved in the drug dealing activities knowing significant quantities of drugs would be distributed in the community which would result in harm being caused.
[23] Sentencing ts 116 - 117.
[24] Sentencing ts 117.
[25] Sentencing ts 117.
The sentencing judge then gave a detailed account of a report by a court-appointed psychologist, who was engaged after the judge expressed doubts about the treating psychologist's report which his Honour thought lacked objectivity.[26] The sentencing judge said he generally accepted the opinions and recommendations of the court-appointed psychologist. His Honour said:[27]
They confirm matters from your background, including being in physically abusive relationships with men are causally related to the offending in the sense that they explain how you became involved in the offending. But they do not, to any significant extent, reduce your moral culpability for the offending for the reasons I have explained.
[The court-appointed psychologist] also confirms that it is premature to conclude that you are fully rehabilitated, and that you need ongoing treatment, counselling and time before it can be said you are fully rehabilitated.
However, I accept that the early signs are encouraging and that it is to your credit that you have started to take positive steps towards rehabilitation and to gaining proper insight into what led to the offending. And importantly, how to avoid it happening again.
[26] Sentencing ts 117 - 123.
[27] Sentencing ts 123.
The sentencing judge then referred to various character references produced by the appellant from former employers who spoke highly of the appellant's work ethic and said she was a highly valued employee. The referees confirmed the appellant was drug free.[28]
[28] Sentencing ts 123.
The sentencing judge considered personal and general deterrence to be important sentencing considerations. The sentencing judge noted that a necessary consequence of giving effect to the sentencing consideration of general deterrence is that less weight must be given to personal mitigating circumstances.[29]
[29] Sentencing ts 124.
The judge then referred to the parity principle and the need for the sentence imposed on the appellant to be comparable with those imposed on Calogero La Bianca and Mr Tito.[30] As there is no complaint made about parity in relation to Mr Tito's sentence, it is unnecessary to refer to his role in these reasons.
[30] Sentencing ts 124.
Although the sentencing judge found the drug dealing business to belong to Calogero La Bianca, his Honour found the appellant's role allowed the business to operate more efficiently.[31] After referring to the co-offenders' sentences for the drugs the subject of count 5 on the appellant's indictment, the sentencing judge said:[32]
Ms Astone, I've formed the view that the circumstances of your offending are at least equal to that of your son. Although I accept that your involvement was principally motivated by your desire to assist your son to pay off his drug debts, your involvement was at a relatively high level in the drug distribution network.
Your son had a worse background than you in that he had a reasonably significant criminal history and had been sentenced to terms of imprisonment, which did not deter him from continuing to offend, whereas you do not have a criminal record. You were his mother and knowing both the legal consequences and the harm caused to the community by becoming involved in the drug dealing activities, you chose to become involved and helped facilitate his drug dealing activities.
I also acknowledge to some extent your involvement and your offending is related to a long history of being exposed to domestic violence and being fearful of your then partner, Mr Ettia.
[31] Sentencing ts 111.
[32] Sentencing ts 125 - 126.
The sentencing judge noted the appellant's counsel conceded that a term of immediate imprisonment was the only appropriate sentencing disposition but submitted that, having regard to all of the circumstances, the judge should sentence the appellant 'in a merciful way'.[33]
[33] Sentencing ts 126.
The sentencing judge was satisfied the seriousness of the offending was such that only a term of immediate imprisonment could be justified. His Honour indicated that the individual sentences referred to in the table at [1] above should be imposed. The judge then considered the totality principle. His Honour determined that a sentence of 7 years 6 months' imprisonment reflected the appellant's overall criminality in committing the offences, having regard to all relevant circumstances including the need for protection of the public, the need for punishment and the need for personal and general deterrence. To achieve that overall sentence, the sentencing judge ordered that the sentence imposed on count 2 be served cumulatively upon the sentence imposed for count 4, and the sentences imposed on counts 1 and counts 5 - 7 be served concurrently. The appellant was made eligible for parole and the sentences were backdated to 31 January 2023 to take account of time spent in custody on remand.[34]
[34] Sentencing ts 127 - 128.
Ground 1: totality
For the following reasons, there is no merit in the appellant's contention that the total effective sentence of 7 years 6 months' imprisonment infringed the first limb of the totality principle.
General principles
The relevant principles are well established, and were relevantly summarised in Kabambi v The State of Western Australia in the following terms:[35]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
…
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[35] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia in the following terms:[36]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. (citations omitted)
[36] Gaskell v The State of Western Australia [2018] WASCA 8 [128] (Mazza & Beech JJA).
The maximum penalty for possession of a trafficable quantity of methylamphetamine is life imprisonment. The maximum penalty was increased as a result of amendments made to the Misuse of Drugs Act in 2017 from 25 years' imprisonment.[37] Where Parliament increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding sentencing outcomes. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. However, the increase in the maximum penalty does not necessarily mean that in every case there will be a discernible increase in the penalty imposed. This is because the penalty imposed in an individual case will depend not only on the maximum penalty, but on all of the relevant facts, matters personal to the individual offender, and all other relevant sentencing considerations.[38]
Appellant's submissions
[37] Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA).
[38] See Humes v The State of Western Australia [2023] WASCA 110 [89] (Mazza & Hall JJA) and cases there cited.
The appellant's written submissions acknowledge the offences to which she pleaded guilty were serious offences. The appellant contends the sentencing judge fell into error in failing to recognise or sufficiently recognise the mitigating factors available to the appellant and in sentencing her in respect of count 5 to the same sentence as Calogero La Bianca.
In oral submissions, senior counsel for the appellant submitted there is a fundamental point of distinction between:[39]
1.a person who involves themselves in drug dealing activities of their own will and seeks to commit further drug offences to get themselves out of accrued debts; and
2.a person who involves themselves for no benefit other than to secure the protection of another person from harm consequent upon their involvement in their own drug dealing activities.
Senior counsel submitted the sentencing judge's findings in the present case placed the appellant squarely within the latter category.
[39] Appeal ts 3.
The appellant referred to four cases where offenders engaged in dealing with similar amounts of methylamphetamine for their own benefit received sentences broadly comparable to the appellant.[40] These cases are said to illustrate the failure of the total effective sentence imposed on the appellant to recognise that she was not acting for her own benefit.[41]
[40] Blasco v The State of Western Australia [2021] WASCA 26; Den Ridder v The State of Western Australia [2022] WASCA 113; Curry v The State of Western Australia [2022] WASCA 36; Le v The State of Western Australia [2022] WASCA 163.
[41] See appeal ts 12.
Senior counsel for the appellant also emphasised the appellant's personal background and psychological history, which informed the quality of her decision-making,[42] and the absence of any prior criminal record.[43]
Disposition of ground 1
[42] Appeal ts 4 - 5, 15.
[43] Appeal ts 11.
Ground 1 was amended at the hearing of the appeal to make it clear that it was confined to alleging a breach of the first limb of the totality principle.[44] The appellant does not complain that the length of any of the individual sentences was manifestly excessive.
[44] Appeal ts 2 - 3.
The appellant played a sustained and integral role in her son's drug dealing business, which involved selling trafficable quantities of methylamphetamine. The effect of Calogero La Bianca's personal drug use was such that the business required the appellant's organisation to function. The appellant herself offered to supply 28 g of methylamphetamine to a client and 27.96 g of methylamphetamine to her son. She was closely involved in the transport of 111 g of methylamphetamine from Yanchep to Perth. The transport involved a degree of planning in which a third person was recruited in an effort to conceal the appellant and her son's role in the offending. Separately, she held just over 60 g of heroin for Mr Ettia in her home, which she knew was to be used by Mr Ettia in a commercial operation. A significant degree of accumulation of at least some of the individual sentences was required for the total sentence to reflect the overall criminality involved in all of the appellant's offending.
We do not accept the appellant's submission that there is a material distinction to be drawn between a person pursuing a drug dealing enterprise for their own financial benefit and doing so for the financial benefit of a close family member. Nor does the appellant's motivation to protect Calogero La Bianca from threats of violence associated with his drug debts, including the drive-by shooting, fundamentally alter the appellant's culpability. Violence, including violence associated with drug debts, is a common feature of the methylamphetamine trade. The appellant did not attempt to extricate Calogero La Bianca from that trade by finding a lawful means of assisting him to repay his debts or to encourage him to cease his own drug use. Rather, she chose to facilitate the continuation of her son's unlawful drug dealing business. There is no evidence of any proposal to cease that business once drug debts were repaid. The appellant allowed the business to continue knowing the risks of violence inherent in the business and the damage methylamphetamine causes to the community, including through inducing violent behaviour by methylamphetamine users.
In addition to the appellant's pleas of guilty, there was mitigation to be found in her deprived childhood, her good antecedents and the other matters to which the sentencing judge referred. However, the appellant was a mature adult who chose to become involved in commercial drug dealing operations while being aware of the harm which could be caused by illicit drug use. While she was involved for the benefit of her son and partner rather than her own financial benefit, the nature and extent of her involvement limited the degree to which that reduced the criminality of her conduct. Both general and personal deterrence remained major sentencing considerations. The significance of the appellant's personal circumstances, while not irrelevant, was correspondingly reduced.
The total effective sentence imposed on the appellant is broadly comparable to the sentences imposed in the cases to which the appellant referred, which are noted at [54] above. Those cases do not suggest that the total effective sentence imposed in the present case was unreasonable or plainly unjust.
It is not reasonably arguable that the total effective sentence was unreasonable or plainly unjust. Having regard to all relevant sentencing principles, the total effective sentence of 7 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the appellant's offences viewed in their entirety, having regard to all relevant facts and circumstances including those personal to the appellant. Leave to appeal on ground 1 should be refused.
Ground 3: parity
For the following reasons, ground 3, which alleges the appellant's sentence infringed the parity principle, is not established.
The sentencing of Calogero La Bianca
Calogero La Bianca pleaded guilty before the same sentencing judge to two counts on an indictment. The offence charged in count 1 was that, on 20 August 2019, Calogero La Bianca was in possession of 13.8 g of methylamphetamine (63% purity) found in the search of the appellant's house. During this search, the police also located the cash which was the subject of count 1 on the appellant's indictment. Count 2 charged Calogero La Bianca with supplying 111 g of methylamphetamine to Mr Tito on 27 March 2020. This methylamphetamine was also the subject of count 5 on the appellant's indictment. The circumstances of the offending were in substance the same as found against the appellant.[45]
[45] See ts of Calogero La Bianca's sentencing (16/9/2021) 34 - 36.
The sentencing judge found Calogero La Bianca was involved in ongoing drug dealing activities and was trusted with being in possession of a significant and valuable quantity of methylamphetamine. While Calogero La Bianca's intentions for the 111 g of methylamphetamine were disputed, the sentencing judge determined he was at least going to supply the drug package to somebody for commercial purposes to pay off a drug debt. Calogero La Bianca's offending was for commercial purposes.[46]
[46] See ts of Calogero La Bianca's sentencing (16/9/2021) 37.
Calogero La Bianca was on bail for the offence charged in count 1 when convicted of the offence charged in count 2 of his indictment. Calogero La Bianca was sentenced against a background of and in the context of him having been involved in drug dealing activities over an extended period.[47]
[47] See ts of Calogero La Bianca's sentencing (16/9/2021) 37.
Calogero La Bianca was 29 years old at the time of sentence. He left school at the age of 17 and, after a period of study from which he dropped out, was using drugs and receiving Centrelink benefits in his late teens and early 20s. He was convicted of serious drug offences, including offences committed in 2014 and 2015 for which he received sentences of imprisonment in 2016 and 2017. He relapsed into methylamphetamine use after his release and in 2018 and 2019 had been convicted of further drug and weapons offences in the Magistrates Court.[48]
[48] See ts of Calogero La Bianca's sentencing (16/9/2021) 38 - 39.
The sentencing judge allowed a discount of 20% for Calogero La Bianca's pleas of guilty, under s 9AA of the Sentencing Act.[49] The sentencing judge also found that, although the pleas reflected limited remorse, Calogero La Bianca had started to gain insight into the harmful effects of methylamphetamine in the community and had started to take steps towards rehabilitation.[50]
[49] See ts of Calogero La Bianca's sentencing (16/9/2021) 44.
[50] See ts of Calogero La Bianca's sentencing (16/9/2021) 39.
Calogero La Bianca was in good physical health. A psychiatrist's report found no history of psychotic symptoms and that his risk of reoffending was dependent upon the success of treatment for depressive symptoms and for his long-term illicit drug use.[51]
[51] See ts of Calogero La Bianca's sentencing (16/9/2021) 41.
The sentencing judge considered the appropriate individual sentences to be 2 years' immediate imprisonment for count 1 and 4 years' immediate imprisonment for count 2 on Calogero La Bianca's indictment. His Honour considered the appropriate total effective sentence for Calogero La Bianca to be 5 years 3 months' imprisonment. His Honour achieved that overall sentence by reducing the sentence for count 1 to 15 months for totality and ordering that sentence to be served cumulatively upon the sentence imposed for count 2.[52]
General principles
[52] See ts of Calogero La Bianca's sentencing (16/9/2021) 44.
The general legal principles in relation to the parity principle are well established and are summarised in Higgins v The State of Western Australia[53] and Garlett‑Exell v The State of Western Australia.[54] In essence, the principle is concerned with ensuring appropriate consistency in the sentencing of co-offenders. It applies where disparity or lack of disparity in the sentencing outcome can give rise to an objectively justifiable sense of grievance on the part of one of the offenders. The parity principle is concerned with substance rather than form, and the application of the principle will vary according to the facts and circumstances of each case. The application of the parity principle may require a reduction in a sentence that is not otherwise manifestly excessive. However, the principle does not require the imposition of a sentence that is wholly inadequate or so lenient as to be an affront to the proper administration of justice.[55]
[53] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [14] - [25] (Buss P).
[54] Garlett‑Exell v The State of Western Australia [2020] WASCA 179 [48] - [52].
[55] See McKay v The State of Western Australia [2023] WASCA 140 [53]; Nguyen v The State of Western Australia [2023] WASCA 151 [66]; Ho v The State of Western Australia [2023] WASCA 160 [38]; Gray v The State of Western Australia [2023] WASCA 188 [47].
Where a sentencing judge has applied the parity principle in relation to a co-offender's sentence, and no express error is alleged, the question for this court is whether the differentiation made by the sentencing judge, or lack thereof, was open in the exercise of the sentencing discretion. The issue is not whether this court would have exercised the qualitative and discretionary judgment in relation to parity differently. The issue is rather whether the result was unreasonable or plainly unjust, such as to give rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.[56]
[56] Mehta v The State of Western Australia [2023] WASCA 24 [208]; McKay [68] - [69]; Nguyen [68]; Ho [39]; Gray [48].
In Higgins,[57] Pritchard JA (Beech JA agreeing) noted that the punishment to which the parity principle might apply should be regarded as encompassing all the legal and practical effects of the sentence imposed by the court on the offender. Each of those practical and legal effects may be regarded as a component of the punishment imposed on the offender, and (without being exhaustive) may include:
1.the sentence imposed in respect of an individual offence;
2.any minimum non-parole period;
3.the total effective sentence; and
4.where the offender is already serving a term of imprisonment, the additional period of imprisonment which is required to be served.
[57] Higgins [198] - [203] (Pritchard JA), [179] (Beech JA).
Pritchard JA then observed:[58]
In a case where one or more of the co-offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co‑offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes. In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.
A manifest disparity in any component of the punishment imposed on co‑offenders, which is not explicable by differences in the circumstances of the co-offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co‑offender subjected to the greater punishment.
(citations omitted)
[58] Higgins [207] - [208] (Pritchard JA), [179] (Beech JA); see also [182] - [184] (Beech JA).
Pritchard JA referred to previous decisions of this court which contain statements that might, on initial examination, be understood to suggest that the only proper comparator for parity purposes is the total effective sentence imposed on each co-offender.[59] Her Honour held that those cases did not establish such a principle but were rather examples of cases where, because multiple offences were involved, comparison between the total effective sentences imposed on the co-offenders was the more appropriate comparator.
Appellant's submissions
[59] Higgins [209] - [210] (Pritchard JA) referring to Nguyen v The State of Western Australia [2009] WASCA 8; Jardim v The State of Western Australia [2011] WASCA 83; Tresnjo v The State of Western Australia [2015] WASCA 193 and Wong v The State of Western Australia [2019] WASCA 8; see also [168] - [176] (Beech JA).
The appellant submits the objective seriousness of the offending by Calogero La Bianca in relation to count 2 on his indictment was more serious than that of the appellant in relation to count 5 on her indictment, as it occurred in pursuit of his illicit drug dealing business. The appellant obtained no financial gain from her participation in the offending, as Calogero La Bianca was the sole beneficiary. The appellant also submits that she had significant mitigating factors in her favour in addition to her pleas of guilty, while Calogero La Bianca had an extensive criminal history.
In these circumstances, the appellant submitted she ought to have received a lower sentence for count 5 on her indictment than Calogero La Bianca received for count 2 on his indictment. The appellant contends an objectively justifiable sense of grievance arises from the lack of disparity between the sentences received for those individual offences.
In oral submissions, senior counsel for the appellant confirmed the argument in relation to count 5 on the appellant's indictment was the critical point for ground 3.[60] Ultimately, senior counsel for the appellant put the argument in two ways. First, it was submitted the sentencing judge made an express error in concluding that the appellant and Calogero La Bianca's culpability for the offending in relation to the 111 g of methylamphetamine was the same.[61] Secondly, it was submitted that error in the application of the parity principle was to be inferred from the result of the exercise of discretion.[62]
Disposition of ground 3
Total effective sentence
[60] Appeal ts 8, 13.
[61] Appeal ts 13.
[62] Appeal ts 9 - 10.
Senior counsel for the appellant was correct to eschew an argument that an objectively justifiable sense of grievance arose from the longer total effective sentence received by the appellant as compared to Calogero La Bianca.
It is true that Calogero La Bianca was intended to receive the profits of the drug dealing business and the appellant was assisting him to this end. However, the appellant was integrally involved in the enterprise and ensured that it continued operation despite Calogero La Bianca's incapacity resulting from his own methylamphetamine use. The appellant was effectively conducting essential aspects of the drug dealing business, albeit for the financial benefit of her son rather than herself. Overall, there was little to distinguish the roles the appellant and Calogero La Bianca played in the drug dealing business, and the difference in culpability resulting from the appellant's motive for engaging in the commercial supply of methylamphetamine is limited. The criminality arising from the extent of her involvement in the drug dealing business was no greater than that of Calogero La Bianca.
It is also true the appellant's antecedents provided significantly greater mitigation than those of Calogero La Bianca. The significance of personal deterrence and community protection as sentencing considerations was elevated by Calogero La Bianca's criminal history. The appellant, by contrast, had no previous criminal convictions and significant mitigation was to be found in her deprived childhood and the other matters referred to by the sentencing judge, as detailed at [26] - [38] above. Both the appellant and Calogero La Bianca pleaded guilty and received similar discounts under s 9AA of the Sentencing Act. Based on the mitigating factors that were available to the appellant, it would be expected that she would receive a lower sentence than Calogero La Bianca for the same offending.
However, the overall criminality of the offending for which the appellant and Calogero La Bianca received their respective total effective sentences was not the same. The appellant was convicted of more offences than Calogero La Bianca in relation to his drug dealing business, including the offers to supply quantities of methylamphetamine which were the subject of counts 2 and 4 on the appellant's indictment. While the appellant was sentenced on the basis those offences were committed in the course of operating Calogero La Bianca's drug dealing business, Calogero La Bianca was not punished at all for this offending. Further, the offences the subject of counts 6 and 7 on the appellant's indictment were committed in assisting Mr Ettia's drug dealing activities in which Calogero La Bianca was not involved. Despite her better antecedents and other mitigating factors, the difference between the appellant's and Calogero La Bianca's total effective sentences reflects the greater level of criminality involved in the larger number of offences of which the appellant was convicted.
Express error in relation to comparative culpability for count 5
The sentencing judge did not make the express error asserted by senior counsel for the appellant which is noted at [77] above. The asserted error is to equate the culpability of the appellant and Calogero La Bianca for the offences concerning the 111 g of methylamphetamine. In the passage quoted at [45] above, the sentencing judge equated 'the circumstances of [the appellant's] offending' rather than the criminality involved in the offending having regard to all relevant sentencing factors including those personal to the appellant and Calogero La Bianca. His Honour then immediately went on to refer to the appellant's motivation, her son's significant criminal history and the appellant's long history of being exposed to domestic violence. It was open to the sentencing judge to regard the circumstances of the offending as equivalent while also recognising the different personal circumstances of the appellant and Calogero La Bianca which might affect their respective culpability for the offending.
Inferred error in relation to the lack of disparity for count 5
We now turn to the appellant's argument that error is to be inferred from the 4-year individual sentences which the appellant and Calogero La Bianca each received in relation to the offending the subject of count 5 on the appellant's indictment and count 2 on Calogero La Bianca's indictment.
Considered in isolation, the lack of disparity between the individual sentences for the offences relating to the same 111 g of methylamphetamine would not be justifiable given the appellant's significantly better antecedents and other mitigating factors. Neither individual sentence was reduced for totality, so the comparison between the two individual sentences for parity purposes is appropriate for that reason.
However, it is relevant that the sentence imposed for count 5 on the appellant's indictment is to be served concurrently with other sentences and so does not add to the length of her total effective sentence. The sentence imposed for count 2 on Calogero La Bianca's indictment was the head sentence on which the sentence for count 1 was to be served cumulatively. In the context of the totality principle, it is established that, as Owen JA (McLure P & Pullin JA agreeing) noted in Giglia v The State of Western Australia:[63]
A heavy individual sentence … may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.
[63] Giglia v The State of Western Australia [2010] WASCA 9 [40].
As in cases such as Tresnjo, for the purposes of this court's task of determining whether the parity principle has been infringed in the circumstances of this case the more appropriate comparison is between the total effective sentences, which in our view appropriately reflect the differences in the overall criminality of the two offenders. That is so even though neither the individual sentence for count 5 on the appellant's indictment nor the individual sentence for count 2 on Calogero La Bianca's indictment were reduced for totality. In all of the circumstances of the present case, it was reasonably open for the sentencing judge to take the view that the difference in culpability between the appellant and Calogero La Bianca arising from the appellant's better antecedents and other mitigating circumstances was sufficiently reflected in the fact that the appellant's sentence was to be served concurrently with the other sentences. It was therefore reasonably open for the sentencing judge to take the view that the parity principle was appropriately accommodated by the difference in the total effective sentences imposed on the appellant and Calogero La Bianca. No practical injustice or unfairness would arise in those circumstances.
For the above reasons, the result of the sentencing judge's exercise of discretion in applying the parity principle is not unreasonable or plainly unjust. Therefore, while leave to appeal should be granted on ground 3, the ground is not established.
We note that, if ground 3 had been established, then on resentencing we would have reduced the individual sentence for count 5 but would not have imposed a lower total effective sentence. That outcome, if the appeal were to be allowed, further illustrates that, in the particular circumstances of the present case, the appellant will not suffer any practical injustice or unfairness because of any lack of disparity in the individual sentences for count 5 on the appellant's indictment and count 2 on Calogero La Bianca's indictment.
Orders
For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal is refused on ground 1.
2.Leave to appeal is granted on ground 3.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
16 FEBRUARY 2024
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