Chin v The King

[2024] WASCA 17

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CHIN -v- THE KING [2024] WASCA 17

CORAM:   BUSS P

HALL JA

HEARD:   29 JANUARY 2024

DELIVERED          :   13 FEBRUARY 2024

FILE NO/S:   CACR 84 of 2023

BETWEEN:   YOKE CHENG CHIN

Appellant

AND

THE KING

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

File Number            :   INS 332 of 2016

Catchwords:

Criminal law - Appeal against sentence - Possession of commercial quantity of border controlled drugs (methamphetamine) - Where role and personal circumstances comparable with co‑offender - Where appellant pleaded guilty but co‑offender convicted after trial - Where difference in other mitigating factors - Whether sentence breached parity principle - Whether sentence manifestly excessive

Legislation:

Criminal Code (Cth), s 307.8

Result:

Extension of time refused
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	D Renton SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

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

Garlett-Exell v The State of Western Australia [2020] WASCA 179

Gaskill v The State of Western Australia [2018] WASCA 8

Giangiulio v The State of Western Australia [2022] WASCA 77

Gray v The State of Western Australia [2023] WASCA 188

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342

Ho v The State of Western Australia [2023] WASCA 160

Kabambi v The State of Western Australia [2019] WASCA 44

Law v The Queen [2020] WASCA 196

Luo v The Queen [2020] WASCA 184

McKay v The State of Western Australia [2023] WASCA 140

Siskopoulos v The State of Western Australia [2022] WASCA 138

Tang v The Queen [2020] WASCA 194

Wong v The Queen [2020] WASCA 195

JUDGMENT OF THE COURT:

1. This is an application for leave to appeal against sentence.

2. The appellant was convicted on his plea of guilty of one count of possession of a commercial quantity of a border controlled drug, namely methamphetamine, that was reasonably suspected of having been unlawfully imported, contrary to s 307.8 of the Criminal Code (Cth) (the Code). He was sentenced to 15 years' imprisonment with a non‑parole period of 9 years 8 months.

3. The appellant was sentenced on 23 March 2017.  He filed an appeal notice on 13 July 2023.  Accordingly, he is more than six years out of time and requires an extension.  In an affidavit in support of his application for an extension of time, the appellant states that one of his grounds raises the parity principle in relation to a co‑offender who was sentenced on 9 June 2021 and that he only became aware of the sentence imposed on that co‑offender 'recently'.  The delay is not adequately explained but an extension may be granted if a miscarriage justice would be caused if an extension of time was denied.  This requires a consideration of the merits of the grounds of appeal. 

4. The appellant is self‑represented.  His grounds of appeal, in essence, are that the sentence imposed on him was manifestly excessive and that the sentence involved a miscarriage of justice because there was insufficient disparity between his sentence and that imposed on a co‑offender, who will be referred to in these reasons as BG. 

5. For the reasons that follow, neither of the grounds of appeal has a reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal dismissed. 

The facts

1. The appellant is a citizen of Malaysia.  He came to Australia on 20 October 2015, arriving at Coolangatta International Airport in Queensland.  He entered on a tourist visa but came to Australia on the understanding that he would be doing a job in Perth for someone in Malaysia.  He had been given cash and an airline ticket to travel to Australia.[1] 

   [1] ts 3.

2. After arriving in Queensland, the appellant travelled to Sydney, where a contact provided him with more cash to open a bank account.  On 22 October 2015, he opened a St George bank account in Burwood, New South Wales.  He then travelled to Perth in November 2015. In December 2015, he entered into a tenancy agreement for a house in Embleton (the Embleton house).  He lived in that house until 23 May 2016.[2] 

   [2] ts 3.

3. On 1 May 2016, a very large shipment of methamphetamine, which is a border controlled drug, was unlawfully imported into Australia by a marine vessel and was landed at a beach location in the vicinity of Port Denison, near Geraldton.[3] 

   [3] ts 3.

4. The importation came to the attention of the authorities and a number of search warrants were executed on residential premises in the Perth metropolitan area.  On 23 May 2016, police executed a search warrant at the Embleton house.  The appellant was present at the time.  He was in possession of keys that opened the front door and the doors to two bedrooms in the house.  The door to one of the bedrooms was unlocked and it appeared that that bedroom was being used by the appellant for sleeping.[4] 

   [4] ts 3 - 4.

5. The door to the second bedroom was locked.  When the door was unlocked and police searched the room, they found two suitcases.  One was on a shelf in a built‑in wardrobe and the other was concealed under a double bed against the wall.  The room was otherwise largely empty.  The first suitcase contained 25.03 kg gross of methamphetamine in the form of a white crystalline substance packed into clear clipseal bags of 1 kg lots.  The second suitcase contained 25.06 kg gross of methamphetamine in the same form, similarly packed in 1 kg lots.  The total gross weight was a little over 50 kg.[5] 

   [5] ts 4.

6. The drugs were seized by the Australian Federal Police.  The contents of the bags were analysed by the National Measurement Institute, which found that the white crystalline substance contained methamphetamine of a purity of 80.1%, thus the net weight of the methamphetamine in the suitcases was 40.12 kg.  The total value of those drugs if sold on the street was estimated to be from $4,814,400 ‑ $10,030,000 if sold by the kilogram or $5,653,727 ‑ $21,201,477 if sold by the ounce.[6] 

   [6] ts 4 - 5.

7. At the time of the police search, the appellant was in possession of three mobile telephones.  He claimed that only one was used for making calls and that the other two were used for either watching movies or recording movies.  When the data on one of the telephones was later checked, there were messages between the appellant using the name Jack and someone identified as Big Block on an application called Line (the Line messages).  The Line messages occurred on 5 May 2016 and between 11 and 14 May 2016 and concerned deposits to be made into bank accounts.  Each message concerned an amount of $7,500.  In each series of messages, the appellant gave instructions as to where the money was to be deposited and then later confirmed when the sum was cleared.  Between 22 October 2015, when the appellant first opened the bank account in Sydney and 21 April 2016, a total sum of $35,600 was deposited into the account by way of ATM cash deposits.[7] 

   [7] ts 5.

8. After the Embleton house was searched on 23 May 2016, the appellant was interviewed by police.  The interview was electronically recorded.  While the appellant made admissions about his arrival in Australia, his leasing of the Embleton house and the fact that someone else also had keys to the house and had been living there, he denied having anything to do with the suitcases or the drugs.  In fact, he denied having been in the relevant bedroom at all.  The appellant said he came to Australia to travel and have a holiday and that a friend had paid for his airline ticket.  He said he arrived with $1,000 in cash.  He could not say why he had come to Perth or why or how he had come to lease the Embleton house.  He said that he paid $2,000 per month in rent for the Embleton house but would not say where he obtained the money to pay for the rent or other bills.  He said he rented out the second bedroom to someone by the name of Aachen, who had approached him two months prior to his arrest and that that person had paid half the rent.  However, the appellant said he did not know when he had last seen Aachen or whether he had moved out.  The appellant said he did not know how the suitcases full of drugs got into the bedroom.  He denied touching them.  He admitted that he opened an Australian bank account but claimed that he did not know who deposited money into the account.  He could not explain why between $10,000 - $16,000 Australian had been deposited into the account in February 2016.[8]

   [8] ts 5 - 6.

9. When the suitcases were examined by forensic officers, the appellant's fingerprints were found on them.  The fingerprints of a person named Yong were also found on one of the suitcases (Yong is a different person to BG).  Yong was connected with two properties, one in Canning Vale and one in East Cannington that had also been searched as part of the police operation on 20 and 21 May 2016.  Methamphetamine was found and seized at both of those locations.  The amount seized from the East Cannington address was 120 kg.  At that location, police also found paraphernalia associated with preparing methamphetamine for distribution, such as scales and clipseal bags.  Comparison by the National Measurement Institute of the methamphetamine seized from the Embleton house with the drugs seized from the two premises connected with Yong revealed chemical links between all of the drugs, indicating that the methamphetamine found at all three locations was from the same batch.[9] 

   [9] ts 6 - 7.

10. The methamphetamine found at the Embleton house is suspected to have been imported on 1 May 2016 as part of the shipment mentioned earlier.  Although the methamphetamine found at the Embleton house appears to have been linked with the drugs found at the premises connected with Yong, there was nothing found at the Embleton house that indicated that the appellant was involved in the distribution of the methamphetamine.[10]

    [10] ts 7.

11. The Crown accepted that the appellant's role was essentially that of a store person who was providing a warehouse for the drugs in the suitcases.  However, the appellant also had other responsibilities concerning the bank account and directing where money should be deposited, as well as some other tasks.  In storing the drugs, the appellant knew that they would be distributed within the wider community and perhaps beyond Western Australia.[11]

    [11] ts 7 - 8.

12. In sentencing submissions, counsel for the appellant provided further information which explained the appellant's involvement.  The appellant had accumulated debts in Malaysia as a result of incurring significant medical expenses after suffering an injury in a traffic accident.  He was unable to meet those debts from his wages as a tyre repairer.  He was offered a job in Australia by an unidentified male in Kuala Lumpur.  The details of the job were not explained to him at that time.  He was provided with about $700 Australian and a ticket to fly to Australia.  In Sydney and later in Perth, the appellant dealt with a number of people involved with the job, each of whom he referred to as Big Brother.  There was a suggestion that Big Brother may correspond with the Big Block referred to in the Line messages.  The appellant was taken to the Embleton house by one of the persons he referred to as Big Brother and received calls from the man in Kuala Lumpur telling him that the job would start shortly.  He was told to purchase the suitcases, which he did.  The suitcases were then collected by another person and in mid‑May the appellant received a telephone call informing him that the suitcases would be returned with drugs in them.  When the suitcases were returned the appellant was instructed to open them, ensure the packages inside were not water‑damaged and to keep them in the house.  He did as he was asked and the suitcases remained in the house until the police search on 23 May 2016.  The appellant admitted knowing that the suitcases would contain drugs before they were returned to him and that he received them and agreed to keep them safe in that knowledge.  He also admitted knowing the quantity of drugs in the suitcases because he opened them and checked that the packages were not water‑damaged.[12] 

    [12] ts 8 - 10.

13. Counsel for the appellant also advised that sometime between when the appellant arrived in Perth and November or December 2015, he became frustrated at the delay in the job and called the man in Kuala Lumpur, who told him that he should stop asking questions, that it was better for him not to ask questions and that he would be told what to do.  Counsel said that around November or December 2015, the appellant was told that he would be tasked with taking out vehicle panels and he understood that the purpose of that was that drugs would be put into those panels.  However, that task was never carried out.[13] 

    [13] ts 10.

14. The appellant remained involved in the enterprise for at least five months.  During that time, he received money for his living expenses and rent.  Some of it came into the bank account, other payments were made in cash that was dropped off in the letterbox at the Embleton house.  The appellant was be told by mobile telephone when that would occur.[14] 

    [14] ts 10 - 11.

Personal circumstances

1. The appellant was born and raised in Malaysia.  He was 33 years old at the time of the offence and 34 at the time of sentencing.  He comes from a single parent home, having been brought up by his mother, to whom he is close.  He has no siblings and he and his mother lived with his maternal grandparents when he was a child.  The appellant described his childhood as hard and that he had no contact with his biological father.  Although his mother provided for him to the best of her ability, he had to work and earn his own money from a young age.[15]  

   [15] ts 25 - 26.

2. The appellant attended school in Malaysia, which he had not enjoyed. He reported being the victim of bullying at school. After completing three years of high school, he undertook an apprenticeship as a tyre fitter and repairer.  He worked in that industry in Malaysia for three to four years.  He tried other jobs, but they did not suit him.  At some stage he was hit by a car while cycling to work and suffered a foot injury, which required surgery, ongoing treatment and medical supplies.  That injury resulted in the appellant being out of work for a period and eventually caused him to leave the tyre fitting industry.  At the time the appellant was recruited to come to Australia, he was working in an administrative role for a transport business.[16] 

   [16] ts 26 - 27.

3. The appellant accrued considerable debts as a result of his medical treatment and was angry about being refused compensation for the injury he suffered.  He felt unsupported in trying to find other work that he was medically fit to do.  He believed that he would be better paid for the work that he was to do in Australia.  The work in Australia offered the opportunity to pay off his medical debts.[17]

   [17] ts 27.

4. The appellant has never used illicit drugs and has only ever drunk alcohol in moderation.  He has no history of prior offending.[18]

   [18] ts 25.

5. The appellant has no diagnosed mental illness.  The possibility was raised at sentencing that the appellant may have a cognitive deficit that made him vulnerable to being manipulated.  A psychologist's report was to the effect that despite limitations resulting from the need to use an interpreter, the appellant was able to communicate competently.  The impression of the psychologist was that the appellant was within an average range of intelligence.  Having regard to that opinion, the sentencing judge was not satisfied that the appellant had any deficit in his intellectual abilities that would make him vulnerable to being manipulated.[19] 

   [19] ts 27 - 29.

6. The psychologist also conducted a risk assessment and considered that there was a lack of risk factors such that it was unlikely that the appellant would reoffend in the same manner.  However, as the appellant's stated motivation for his offending was to obtain money, the psychologist said that that such a need could influence the appellant's future behaviour.[20] 

   [20] ts 29 - 30.

Sentencing remarks

1. As the grounds of appeal do not assert any express errors by the sentencing judge, it is unnecessary to detail the sentencing remarks.  It is sufficient for present purposes to summarise the learned sentencing judge's findings regarding the role of the appellant and the seriousness of the offence. 

2. As regards the appellant's role, the learned sentencing judge acknowledged that the use of labels to identify offenders in the hierarchy of an unlawful enterprise of this kind is not always useful and might skew a court's assessment of the offender's actual conduct.  However, his Honour noted that the Crown accepted that the appellant provided a warehouse for the drugs, although his responsibilities went beyond simply receiving the drugs and storing them.[21] 

   [21] ts 17 - 18.

3. The sentencing judge said that the appellant was not a passive participant in the enterprise.  He opened and operated a bank account for the transfer of money for the purposes of the enterprise and gave instructions as to where the money needed to be deposited.  He leased the Embleton house in his own name, he bought the suitcases and made them available to be collected and when they were returned with the drugs inside, the appellant received them and, on being instructed to do so, checked that the packaging of the drugs was not damaged.  In doing so, he played a role in ensuring that the quality of the drugs was maintained.  He then stored the drugs in a locked bedroom of the house, for which he had the key.  In doing this, he ensured that the drugs were kept safe.[22] 

   [22] ts 18 - 19.

4. The sentencing judge concluded that although the appellant was supervised by others in the enterprise, a significant degree of trust was reposed in him.  The appellant received and stored the drugs knowing that they would be distributed within the wider community, and perhaps beyond Western Australia.  However, his Honour accepted that there was no evidence that the appellant was himself involved in the sale or further supply of the drugs.  He also accepted that the appellant played no part in the actual importation of the drugs.[23] 

   [23] ts 18 - 19.

5. The sentencing judge rejected a submission made on behalf of the appellant that his role was not vital to the criminal enterprise.  The fact that other premises were also used for the storage of drugs did not detract from the appellant's role because, as his Honour found, the obvious purpose of spreading the drugs across a number of premises was to minimise the damage to the enterprise if any one of the safe houses was discovered by the authorities.  Nor did the fact that the appellant could have been replaced by someone else reduce the importance of his role.[24] 

   [24] ts 19.

6. The sentencing judge noted that drug traffickers often seek to use individuals who do not have criminal histories and are not likely to attract the attention of the authorities when entering the country.  His Honour found that the appellant was motivated by financial reward.  Whilst the full amount of money the appellant was to receive was unknown, his Honour found that it would have been at least sufficient to clear his debts in Malaysia, which were estimated to be about $30,000.  His Honour accepted that what the appellant was likely to be paid was an insignificant amount in comparison with what those running the enterprise stood to make financially.[25]

   [25] ts 19 - 22.

7. The sentencing judge said that there was no suggestion that any pressure was placed on the appellant to undertake the tasks he performed.  He did not make any such suggestion to the psychologist or the author of the presentence report, however, he did tell the psychologist that once he received the drugs, he had no way of removing himself from the situation and did not have the financial means to be able to 'run away' because what he was paid was barely enough for his rent.  His Honour found that the idea that the appellant would want to run away once he received the drugs was inconsistent with his knowledge that the enterprise involved drug trafficking at least from November or December 2015, when he was told about the proposal to take panels off cars.  His Honour did not accept that the appellant was naive and unsophisticated, rather he was satisfied that the appellant chose to continue to be involved in the enterprise, understanding that it involved drug trafficking because of the financial benefit that he expected to receive.  Whilst it was accepted that the appellant may not have known how much profit those running the enterprise stood to make, it was nevertheless obvious to him that it was a large commercial enterprise.[26] 

   [26] ts 19 - 22.

1. The sentencing judge accepted that the appellant entered his plea of guilty at a relatively early stage and that by pleading guilty he had demonstrated his willingness to facilitate the course of justice.  His Honour said that while the case against the appellant was strong, it would appear that the appellant was not aware of the forensic evidence linking him to the suitcases when he entered his plea.  For that reason, his Honour said that this was not a case in which he should regard the strength of the case as reducing the value of his plea.  His Honour also accepted that the plea was some indication of remorse, even though the appellant did not indicate any remorse and demonstrated a lack of appreciation of the personal and social problems which result from drug trafficking when interviewed by the psychologist.  His Honour also found that the appellant was not forthcoming about the true nature of his involvement in the offence when he was interviewed for the presentence report or by the psychologist.[27]

   [27] ts 31.

2. The sentencing judge considered a number of comparable cases that had been referred to him and noted the various similarities and differences in those cases.  He concluded that the appropriate sentence for the appellant was one of 15 years' imprisonment.  He set a non‑parole period of 9 years 8 months.[28] 

   [28] ts 32 - 41.

Grounds of Appeal

1. The grounds of appeal are as follows:[29]

   1.The sentence imposed on the appellant was manifestly excessive, unreasonable and unjust:

   1.1The appellant's plea of guilty prior to committal/disclosure hearing.  The plea of guilty was entered at the earliest opportunity which facilitated the efficient course of justice, whilst, the co‑accused, [BG] went on trial and was found guilty by the trial court and received a similar sentence as [the] appellant.  Furthermore, on the co‑accused appeal against sentence the co‑accused's sentence was given substantially [sic] reduction.  The appellant claims his sentence was manifestly excessive and did not reflect the fairness and equity [sic].

   1.2Appellant's excessive sentence was based on [BG's] uncorroborated - unconfirmed evidence on [the] appellant's degree of criminal and normal [sic] culpability. 

   2.The appellant's sentence was not congruent with the 'principle of parity' as there was not a proper relationship between the sentence imposed on the co‑accused involving the offence.  The sentence imposed on the appellant did not follow the 'principle of parity', the like cases were not treated alike and therefore there was a difference in outcome.

   [29] Appellant's submissions, 1.

2. Although the co‑accused referred to in ground 2 is not identified, it would appear that it is the same person referred to in ground 1, namely BG.

3. It was apparent from the appellant's written and oral submissions that his essential complaint is that having regard to the role that he played compared to the role of BG and to the fact that he pleaded guilty whereas BG was convicted after trial, it would be expected that his sentence would be significantly less than that imposed on BG, and significantly less than the 15 years' imprisonment that was imposed.[30]  The appellant asserts that his sentence breached the parity principle because there was insufficient disparity with the sentence imposed on BG.  Both grounds 1 and 2 are based on a sense of grievance that the appellant has regarding the sentence imposed on him as compared to that imposed on BG.  In those circumstances, it is convenient to refer to the circumstances of BG's sentence before turning to consider the merits of the grounds of appeal.

   [30] Appeal ts 8 - 10.

The sentencing of BG

1. BG first stood trial between 9 October and 14 December 2017.  He was found guilty, but his conviction was subsequently quashed on appeal and a retrial was ordered.  The retrial took place between 27 April and 29 May 2021.  BG was again found guilty and was sentenced on 9 June 2021.[31] 

   [31] [2021] WASCS 29 (decision suppressed) [3] - [4].

2. The offence of which BG was convicted was different to that of which the appellant was convicted, in that BG was convicted of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1 of the Code.  However, the maximum penalty for that offence is the same as that of the offence of which the appellant was convicted, namely life imprisonment or a fine not exceeding $1.57 million.[32] 

   [32] [2021] WASCSR 29 (decision suppressed) [1] - [2].

3. It should be noted at this point that six other men were tried at BG's first trial and were found guilty, those men received sentences of between 26 and 23 years with non‑parole periods of between 17 and 15 years.  Four of those men appealed against either conviction or sentence or both; none of those appeals was successful. Those men occupied higher positions in the hierarchy of the drug enterprise.  It is unnecessary to refer to them further.[33]

   [33] [2021] WASCSR 29 (decision suppressed) [4]; Law v The Queen [2020] WASCA 196; Wong v The Queen [2020] WASCA 195; Tang v The Queen [2020] WASCA 194; Luo v The Queen [2020] WASCA 184.

4. BG entered Australia on 13 January 2016 on a tourist visa.  He arrived in Queensland and later travelled to Sydney before moving on to Perth.  Shortly after arrival, he opened a bank account and then commenced reporting expenses incurred by him in respect of arranging the importation of the drugs.  He received a total of $13,250 in payments into a bank account for that purpose.[34] 

   [34] [2021] WASCSR 29 (decision suppressed) [11], [13].

5. On his arrival in Perth in February 2016, BG rented a property in Thornlie with the intention of that property being used as a safe house to store drugs.  He lived at that premises with three other men.  On 12 February 2016, he purchased a Ford Ranger for the purpose of transporting those involved in the importation and to convey the drugs when they were landed in Western Australia.  On 26 April 2016, he hired a second vehicle for the same purpose.[35] 

   [35] [2021] WASCSR 29 (decision suppressed) [15] - [18].

6. On about seven occasions between February and April 2016, BG travelled to the Geraldton area with others for the purpose of identifying suitable locations for the delivery of the drugs.  He also made internet searches to identify periods of time when aircraft would not be present and members of the public would not be camping in the area.  He noted the coordinates of a proposed landing site in a notebook.[36] 

   [36] [2021] WASCSR 29 (decision suppressed) [19] - [20].

7. On 30 April 2016, BG went to the beach location with others driving the Ford Ranger.  Another man drove the second car.  BG assisted in collecting the drugs from the beach and then drove to a rest stop, where there was a change of drivers.  Subsequently, it was discovered that one of the bags of drugs had been left behind and BG and three others returned to the beach to find it.  BG had no role in repackaging the drugs or warehousing them and had no role in the distribution of those drugs.[37] 

   [37] [2021] WASCSR 29 (decision suppressed) [22] - [26].

8. The sentencing judge who sentenced BG said that he was satisfied that BG's role was pivotal to the success of the criminal enterprise.  BG assisted with the importation and had actual knowledge that the importation concerned border controlled drugs.  He knew from the time he was recruited in Malaysia that he was undertaking the importation of border controlled drugs.  The scale of the operation was known to him.[38]

   [38] [2021] WASCSR 29 (decision suppressed) [30] - [32].

9. When police executed search warrants they found five suitcases at a property in East Cannington containing a total of 131.32 kg of methamphetamine.  Another man (Yong) was the lessee of that property.  They also found the 50.09 kg found at the Embleton house of which the appellant was the lessee.  These amounts had a purity level of between 79.5% and 80.1%.[39]

   [39] [2021] WASCSR 29 (decision suppressed) [33].

10. In comparing BG's role to that of other offenders, the sentencing judge dealing with BG said that he found that BG's role to be similar to that of the appellant, but that BG's criminality was greater given the significantly larger quantity of border controlled drugs for which he was responsible.[40] 

    [40] [2021] WASCSR 29 (decision suppressed) [50].

11. BG's personal circumstances were that he was 29 years of age at the time he was sentenced and 23 - 24 years of age at the time of the offences.  He is a Malaysian citizen who had worked in that country in several jobs, including as an electrician.  His parents separated when he was very young and he has two siblings.  His mother was unwell and was unable to visit him in prison and he has no contact with his father.  He was said to be suffering anxiety and stress following his arrest and had received counselling.  He had no history of substance abuse and no prior criminal record.  It was accepted that BG was remorseful.[41]

    [41] [2021] WASCSR 29 (decision suppressed) [53] - [57].

12. There was an important mitigating factor in BG's favour.  It is inappropriate to refer to that factor in any more detail as a suppression order was made in respect of the sentencing remarks.  It is sufficient to note that the sentencing judge accepted that it was a very significant factor in mitigation and relevant to the determination of the appropriate length of any sentence.[42]  This was not a factor which arose in respect of the appellant.

    [42] [2021] WASCSR 29 (decision suppressed) [71].

13. BG was sentenced to a term of 17 years 3 months' imprisonment with a non‑parole period of 11 years 3 months.[43] 

    [43] [2021] WASCSR 29 (decision suppressed) [76].

Merits of the appeal

1. The grounds focus on an allegation that there was insufficient disparity between the sentence imposed on the appellant and that imposed on BG. 

2. The parity principle is an aspect of equal justice.  It is concerned to ensure appropriate consistency in the sentencing of co‑offenders. Equal justice requires that like offenders should be treated alike but, if there are relevant differences, due allowance should be made for them.  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. [44]

   [44] McKay v The State of Western Australia [2023] WASCA 140 [53]; Siskopoulos v The State of Western Australia [2022] WASCA 138 [39] - [45]; Gray v The State of Western Australia [2023] WASCA 188 [47]; Ho v The State of Western Australia [2023] WASCA 160 [38]; Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [14] - [25]; Garlett-Exell v The State of Western Australia [2020] WASCA 179 [48] - [52]; Giangiulio v The State of Western Australia [2022] WASCA 77 [60] - [71].

3. An appellate court can refuse to intervene on the basis of the parity principle where disparity is justified by differences between co‑offenders.  This may include differences in relation to age, background, criminal history, general character and the role each co‑offender has played in the relevant criminal conduct or enterprise. [45]

   [45] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].

4. In the present case, the appellant was sentenced before BG and there can be no suggestion the judge who sentenced the appellant erred in failing to consider BG's sentence when sentencing him.  Rather the appellant's contention is that his sentence of 15 years with a non‑parole period of 9 years 8 months involves a miscarriage of justice in that the lack of disparity between his sentence and that imposed on BG is such as to leave him with a justifiable sense of grievance.  In particular, the appellant submits, having regard to his plea of guilty and the lesser quantity of drugs involved in his offence, that the difference between his sentence and that of BG is not great enough.

5. The appellant and BG were co‑offenders in that they were both involved in the same criminal enterprise.  Whilst they committed different offences, they were of a similar nature and were punishable by the same maximum penalty.  Their personal circumstances were also comparable. 

6. The roles of the appellant and BG were different, but their levels of criminality were broadly similar.  BG played an active role in arrangements to move the drugs once they were landed in Australia.  The appellant played an active role in providing a safe place for the drugs to be stored and in ensuring that the quality of the drugs was not compromised.  Neither of them was involved in the further distribution of the drugs. 

7. The fact that BG's offending encompassed a larger quantity of drugs was relevant, but the quantity of the drugs involved in an offence of this type is not generally the chief factor to be taken into account in fixing a sentence.  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.[46]  In the present case the quantity involved in each offence was less significant than the role each offender played. 

   [46] Gaskill v The State of Western Australia [2018] WASCA 8 [128].

8. The material differences between the appellant and BG are that the appellant pleaded guilty, whereas BG was convicted after trial, and that BG had the significant mitigating factor referred to at [49], which was not a factor that applied to the appellant.  In the case of the appellant, his plea of guilty was accepted as having been entered at an early stage.  This was clearly a mitigating factor deserving of a substantial reduction in the sentence that would otherwise have been imposed.  It was not necessary under Commonwealth sentencing legislation to quantify that discount.  However, having regard to the sentences imposed on others involved in this enterprise and the nature and circumstances of the offence committed by the appellant, there is no reason to think that the sentencing judge did not take that factor into account in imposing sentence on the appellant. 

9. As noted, BG had a significant mitigating factor that was not possessed by the appellant.  The effect of that factor would have been to significantly reduce the sentence that would otherwise have been imposed on BG.  It is likely that this factor would have carried similar weight to a plea of guilty.  In any comparison between BG and the appellant the effect of this factor needs to be considered.

10. Some other matters as between the appellant and BG that were minor but relevant to sentencing may be noted. At the time of the offending the appellant was aged 33 whereas BG was aged 23 or 24. There was some limited mitigation arising from BG's relative youth that was not available to the appellant. A finding was made that the appellant's plea of guilty was some indication of remorse whereas an unqualified finding was made that BG was remorseful. Although BG was convicted after trial, he cooperated in the trial process by confining the matters in issue.

11. We are satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning the appellant and BG, that the disparity between the appellant's sentence, on the one hand, and the sentence of BG, on the other, did not infringe the parity principle or the principle of equal justice.  The disparity (from the appellant's perspective) in the sentencing outcomes was not insufficient or unreasonable.  The disparity was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice was not done as between the appellant, on the one hand, and BG on the other.  

12. The appellant received a materially lesser sentence relative to BG and it is not arguable that the difference should have been greater.  The appellant may feel aggrieved because he is not aware of all of the relevant personal circumstances and sentencing factors pertaining to BG, but he does not have grounds for a justifiable sense of grievance.  It is not reasonably arguable that the parity principle has been infringed.

13. To the extent that the appellant complains that the sentencing judge relied on BG's evidence, there is no requirement that the evidence of an accomplice be corroborated or otherwise confirmed before it can be relied on in making findings for the purpose of sentence.  In any event, the appellant pleaded guilty and the facts were admitted.  No issue of relying on anything said by BG could possibly arise.

14. To the extent that the appellant asserts that the sentence imposed on him is manifestly excessive independent of any breach of the parity principle, it is without merit.  The relevant principles relating to appeals against sentence where there is a claim that a sentence is manifestly excessive are well established.  Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[47]  It is unnecessary to repeat them.  Having regard to the maximum penalty, the circumstances of the case, the personal circumstances of the appellant and comparable cases, it is not reasonably arguable that the sentence imposed on the appellant is plainly unreasonable or unjust. 

    [47] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

15. The grounds of appeal have no reasonable prospect of succeeding.  In those circumstances, the application for an extension of time should be refused, leave to appeal should be refused and the appeal dismissed. 

Orders

1.Extension of time refused.

2.Leave to appeal refused.

3.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AZ

Associate to the Honourable Justice Hall

13 FEBRUARY 2024