ATH v The State of Western Australia
[2021] WASCA 149
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATH -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 149
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 JUNE 2021
DELIVERED : 24 AUGUST 2021
FILE NO/S: CACR 118 of 2020
BETWEEN: ATH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND X of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant and a co-offender convicted of one count of possession of methylamphetamine with intent to sell or supply it to another - Appellant sentenced to 7 years' imprisonment and the co-offender to 6 years' imprisonment - Substantial mitigation available to the co-offender that was not available to the appellant - Parity principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1A), s 34(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms S H King |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | Legal Aid - Perth – Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King [1936] HCA 40; (1936) 55 CLR 499
NGO v The Queen [2017] WASCA 3
Stanley v The State of Western Australia [2018] WASCA 229
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was charged on indictment with one count which alleged that on 23 October 2018, at Mount Adams, the appellant had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
The appellant pleaded not guilty.
On 5 June 2020, after a trial before Herron DCJ without a jury, the appellant was convicted as charged.
The quantity of methylamphetamine was 977 g with a purity between 75% and 77%. The appellant was therefore in possession of a 'trafficable quantity of methylamphetamine' as defined in s 34(1A) of the MD Act. The maximum penalty is life imprisonment. See s 34(1)(a) of the MD Act.
On 24 July 2020, the trial judge sentenced the appellant to 7 years' imprisonment. The sentence was backdated to 6 December 2019 to take into account time the appellant had spent in custody in relation to the offence. A parole eligibility order was made.
The appellant relies upon one ground of appeal. The ground alleges, in essence, that the sentence of 7 years' imprisonment infringed the parity principle having regard to the sentence imposed upon a co‑offender. On 9 November 2020, Buss P referred the application for leave to appeal to the hearing of the appeal.
Leave to appeal should be refused. The appeal must be dismissed. Our reasons are as follows.
The facts and circumstances of the offending
The facts and circumstances of the offending are as follows.
On 24 October 2018, the appellant drove the co-offender (M) from a rural location to a Perth suburb for the purpose of M taking delivery of a package of methylamphetamine. M hid the package in the roof cavity of the appellant's vehicle. The appellant and M then commenced the return journey to the rural location in the appellant's vehicle. Initially, the appellant drove. After a time, the appellant fell asleep and M drove the vehicle instead. During the return journey police stopped the appellant's vehicle. The police confiscated the vehicle because M, who was driving, did not have a valid motor vehicle driver's licence. Police searched the vehicle and found the drugs in the roof cavity.
M was charged with the same offence as the appellant. M pleaded guilty to the offence. On 5 August 2019, Troy DCJ sentenced M to 6 years' imprisonment. Significant mitigating factors that were present in M's case, but absent in the appellant's case, included M's plea of guilty (for which he was given a 20% discount pursuant to s 9AA of the Sentencing Act 1995 (WA)) and M's cooperation with and assistance to the law enforcement authorities.
In the appellant's case, the trial judge was satisfied that the only rational and reasonable inference was that:
(a)the appellant agreed to drive M from the rural location to the Perth suburb in the knowledge that M was intending to take possession of a significant quantity of methylamphetamine;
(b)the appellant gave M permission to hide the package of methylamphetamine in the roof cavity of her vehicle;
(c)the appellant commenced the return journey to the rural location in the knowledge that the drugs were hidden in her vehicle; and
(d)the appellant intended to supply the drugs to M upon their return to the rural location by permitting M to retrieve the drugs from her vehicle.
The length of the return journey was about 1,000 km.
His Honour was satisfied that it was a reasonable inference that:
(a)the appellant would not have agreed to drive M to and from the rural location in one day unless she stood to gain a benefit; and
(b)the benefit to the appellant would have been either being supplied with some of the methylamphetamine or receiving payment.
Relevant findings and comments by the trial judge about the appellant's offending
The trial judge made the following findings and comments about the appellant's offending in his sentencing remarks:
(a)The appellant drove M between the rural location and the Perth suburb knowing that M was intending to and did collect a package of methylamphetamine.
(b)Although the appellant did not know the exact quantity of methylamphetamine, she did know that it was a significant quantity of that drug.
(c)If the appellant's vehicle had not been stopped by police and if the appellant had not fallen asleep on the return journey, the appellant would have driven M back to the rural location and would have allowed him to retrieve the package from the roof cavity.
(d)The extent of the appellant's involvement in selling or supplying the methylamphetamine would have been to supply the package to M by permitting him to retrieve the package from the vehicle's roof cavity. The appellant would not have been involved in the sale or supply of the methylamphetamine more widely into the community for commercial purposes.
(e)The appellant's role in the offending was similar to that of a courier. Any financial benefit she would have received would have been small.
(f)The appellant drove M because M did not hold a valid motor vehicle driver's licence and she did.
(g)The appellant was a drug user who was supplied with the methylamphetamine by, amongst others, M.
(h)Despite being convicted of the offence, the appellant continued to deny her offending. She did not evince any remorse.
The appellant's personal circumstances were as follows:
(a)The appellant was aged 36 at the time of sentencing.
(b)The appellant had been brought up in a stable household until she was aged 11. Her parents then separated. Her mother entered into another relationship which was marred by domestic abuse. The appellant was sexually abused on an occasion by the mother's new partner. The appellant's relationship with her mother broke down after the mother refused to believe that her new partner had sexually abused the appellant. The appellant then began living with her father and subsequently her aunt. The appellant moved to Darwin at the age of 17.
(c)The appellant has three children, one of whom has ADHD and another has autism. The appellant's relationship with the father of her children ended about five years before the appellant was sentenced.
(d)In 2005 the appellant suffered stress after her sister died in a motor vehicle accident.
(e)The appellant receives support from her father. After the appellant was taken into custody her father cared for her children.
(f)One of the appellant's children is suffering from trauma after being abused by a step-brother.
(g)After the appellant's relationship with the father of her children ended, she began a new relationship. This relationship was marred by domestic abuse. On one occasion, the appellant was admitted to hospital after the new partner fractured her ribs. The partner was arrested after he had threatened to kill her.
(h)The appellant has worked casually as a relief education assistant. She has also worked for a catering company. When the appellant was taken into custody for the current offence she was in receipt of Centrelink benefits. The information before his Honour included written references from people who spoke positively about the appellant's character.
(i)In 2018, the appellant started using methylamphetamine. Subsequently, her methylamphetamine use escalated. On 10 December 2019, the appellant was admitted to Serenity Unit for detoxification. On 14 December 2019, the appellant was transferred to Cyrenian House for residential rehabilitation. On 17 February 2020, the appellant was told to leave Cyrenian House because she had been smoking on the premises.
(j)The appellant has genuinely attempted to abstain from illicit drugs and rehabilitate herself.
(k)The appellant takes medication for depression and anxiety. In December 2018 she attempted suicide. In March 2019 the appellant sought assistance from Central West Mental Health Service and received counselling and a referral to the Life Skills Program run by the Salvation Army.
Prior to the current offending, the appellant had a relatively minor criminal record consisting of road traffic offences only for which she was fined and for which she was disqualified from holding or obtaining a motor driver's licence. Prior to the current offending, it could not be said that the appellant was a person of good character without any breaches of the law, but she was a person of generally good character. However, arising out of the current offending, the appellant was convicted of possessing drug paraphernalia, fined and given a spent conviction. That offending related to the police seizing a smoking implement at the appellant's house. Subsequently, the appellant committed another offence on 16 September 2019 when she drove with a prescribed illicit drug in her system. She was convicted of that offence in November 2019 and was fined. Also, the appellant committed other offences on 23 September 2019, by possessing methylamphetamine and drug paraphernalia. She was convicted of those offences in February 2020 and was fined. Prior to her conviction in February 2020 the appellant had been granted bail on two occasions. However, on each occasion the appellant breached the conditions of her bail by giving urine samples which tested positive for illicit drugs.
Relevant findings and comments by Troy DCJ about M's offending
Troy DCJ made the following findings and comments about M's offending:
(a)M engaged in the offending in order to reduce a substantial drug debt that he owed.
(b)M acted as a courier. He did not intend to sell any of the methylamphetamine. However, M knew that the owner of the drugs did intend to sell the drugs.
(c)When M committed the offence he was in the grip of a raging addiction to methylamphetamine. That circumstance explained but did not mitigate his offending.
The principal mitigating factors in relation to M's offending were these:
(a)M pleaded guilty at an early stage and received a discount of 20% on the head sentence he would otherwise have received.
(b)After he was arrested and charged with the current offence, M cooperated with police and gave them significant assistance. M's cooperation and assistance resulted in the police seizing substantial quantities of prohibited drugs.
(c)M was remorseful for his offending.
M's personal circumstances were as follows:
(a)M was aged 32 at the time of sentencing.
(b)M had a prior criminal record for drug related offending. He therefore did not have the mitigation of prior good character. However, M had not previously been sentenced to a term of imprisonment.
(c)M had a supportive family and partner. He had a young son. M had a good work record and had served in the military.
The trial judge's reference to the parity principle
As we have mentioned, the trial judge sentenced the appellant on 24 July 2020. Troy DCJ sentenced M on 5 August 2019.
The trial judge referred to M's sentencing and said that he had read Troy DCJ's sentencing remarks.
The trial judge referred to the parity principle. His Honour compared and contrasted the facts and circumstances of the appellant's offending and her personal circumstances, on the one hand, and the facts and circumstances of M's offending and his personal circumstances, on the other.
The trial judge noted, in effect:
(a)The facts and circumstances of the appellant's offending were less serious than those of M. In particular, M was more directly involved in the collection, transport and delivery of the drugs than the appellant. It is likely that M knew the quantity of the drugs whereas the appellant merely knew that the quantity was significant. M, unlike the appellant, was involved in the handling of the drugs. The appellant acted, in essence, under M's instructions. The extent to which the appellant stood to benefit from the offending was much less than that of M.
(b)M, unlike the appellant, had the benefit of three important mitigating factors; namely, M's plea of guilty at an early stage, his cooperation with and significant assistance to the police and his remorse.
The appellant's submissions
Counsel for the appellant submitted that the appellant's criminality was considerably lower than that of M, notwithstanding M's plea of guilty, his cooperation with and assistance to the police and his remorse. Counsel emphasised that although the appellant knew she was transporting a significant quantity of methylamphetamine, she did not know that it was as much as a kilogram. Counsel also emphasised the appellant's lesser role in the offending and her difficult personal antecedents. The sentence imposed upon the appellant was one year longer than the sentence imposed upon M. That disparity in favour of M and against the appellant gave the appellant a legitimate or justifiable sense of grievance. Her sentence should have been considerably lower than M's sentence.
The State's submissions
Counsel for the State submitted that the combined effect of the important mitigating factors available to M, but not the appellant, explained why M ultimately received a lesser sentence than the appellant, even though M had a greater role in the offending than the appellant. It was submitted that, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the appellant's and M's offending and their personal circumstances, the sentence imposed on the appellant by the trial judge did not infringe the parity principle.
The merits of the appeal
The sole ground of appeal alleges that the sentence imposed upon the appellant infringed the parity principle. The findings of fact made by the trial judge are not challenged. It is not alleged that the sentence imposed upon the appellant was manifestly excessive.
In NGO v The Queen,[1] this court stated relevant aspects of the parity principle as follows:
[1] NGO v The Queen [2017] WASCA 3 [36] ‑ [40].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving 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. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[2] apply. See Green v The Queen;[3] and Stanley v The State of Western Australia.[4]
[2] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[3] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32].
[4] Stanley v The State of Western Australia [2018] WASCA 229 [40].
It is apparent that the trial judge was fully informed about Troy DCJ's sentencing of M.
The facts and circumstances of the offending by the appellant and M reveal that M had a higher level of culpability than the appellant. However, the appellant's role was still important. The fact that the appellant did not know that she was transporting as much as a kilogram of methylamphetamine (in circumstances where she knew the quantity was significant) carries, at best, very limited weight in assessing her culpability. The proper inference is that the appellant decided not to inform herself of the precise quantity.
The appellant's prior criminal record was less serious than that of M. However, M had not previously been sentenced to a term of imprisonment. Also, after the current offending, the appellant committed two other offences and breached the conditions of her bail on two occasions.
The appellant's general antecedents indicate that she has had a more difficult life than M. Although M had a good work record and a supportive family, the appellant's personal antecedents were more favourable than those of M.
However, the most significant distinguishing features, for sentencing purposes, between the appellant, on the one hand, and M, on the other, comprised M's plea of guilty, his cooperation with and assistance to the police and his remorse. The appellant did not have the benefit of any mitigation of that kind.
We have read and considered a letter of recognition provided by a senior police officer in relation to M. The letter states that, as a result of information provided by M, police seized a very substantial quantity of methylamphetamine, small quantities of other prohibited drugs, drug paraphernalia, a small number of firearms, a quantity of ammunition and cash. Also, as a result of information provided by M, police charged several people with numerous drug and firearms related offences. We are satisfied that M's cooperation with and assistance to the police was significant and warranted a substantial discount on his sentence. A discount in the order of 25%, after the 20% discount for the plea of guilty, would have been appropriate.
We are satisfied, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the offending by the appellant and M, and after taking into account the similarities and differences between their offending and their personal circumstances and antecedents, that the sentence imposed on the appellant by the trial judge did not infringe the parity principle or the principle of equal justice.
In particular, we are satisfied that the sentence imposed on the appellant, compared to the sentence imposed on M, does not reveal a marked and unjustifiable disparity or a marked and unjustifiable lack of disparity, adverse to the appellant and favourable to M.
In our opinion, the sentencing outcome in relation to the appellant, compared to the sentencing outcome in relation to M, does not give rise to a legitimate or justifiable sense of grievance on the appellant's part, and is not such as to give the appearance in the mind of an objective observer that justice has not been done as between the appellant and M or generally.
The ground of appeal fails.
Conclusion
The ground of appeal did not have a reasonable prospect of succeeding.
Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
24 AUGUST 2021
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