Curry v The State of Western Australia
[2023] WASCA 10
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CURRY -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 10
CORAM: BEECH JA
VAUGHAN JA
HALL JA
HEARD: 19 DECEMBER 2022
DELIVERED : 25 JANUARY 2023
FILE NO/S: CACR 130 of 2021
BETWEEN: SIMON PATRICK CURRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 1987 of 2019
Catchwords:
Criminal Law - Sentencing - Application for leave to appeal against sentence - Appellant convicted of conspiring to pervert the course of justice contrary to s 135 of the Criminal Code (WA) - Appellant serving existing total effective sentence of 7 years 2 months' imprisonment at time of sentencing - Appellant sentenced to 2 years' immediate imprisonment - Sentence of 2 years' imprisonment to be served cumulatively on existing total effective sentence of 7 years 2 months - Whether sentence infringed parity principle by reference to sentences imposed on co-offenders - Whether overall total effective sentence of 9 years 2 months' imprisonment infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 135, s 417(1)
Misuse of Drugs Act 1981 (WA), s 34(1)(a)
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Curry v The State of Western Australia [2022] WASCA 36
Dudzik v The State of Western Australia [2012] WASCA 195
Garlett-Exell v The State of Western Australia [2020] WASCA 179
Gaskell v The State of Western Australia [2018] WASCA 8
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
House v The King (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Ngo v The Queen [2017] WASCA 3
Roffey v The State of Western Australia [2007] WASCA 246
Stanley v The State of Western Australia [2018] WASCA 229
JUDGMENT OF THE COURT:
Overview
This is an appeal against sentence.
On 11 March 2021 the appellant was convicted, after a lengthy trial, of one count of conspiring to pervert the course of justice, contrary to s 135 of the Criminal Code (WA). The maximum penalty for that offence is 7 years' imprisonment. The appellant was sentenced on 27 August 2021. At the time of sentencing the appellant was already serving a total effective sentence of 7 years 2 months' imprisonment for unrelated offending. For the further offending the appellant was sentenced to a term of 2 years' imprisonment (reduced from 3 years' imprisonment for totality purposes) to be served cumulatively on his existing sentence. The sentencing judge ordered that the appellant was to be eligible for parole.
The appellant was tried jointly with three other offenders who participated in the conspiracy and who were also convicted of the offence: Steven Taylor; Christine Taylor (Ms Taylor being the mother of Mr Taylor); and Gary Rodgers. The three other offenders were sentenced at the same time as the appellant.
The other three offenders were sentenced as follows:
1.Mr Taylor - 2 years' imprisonment (reduced from 3 years' imprisonment for totality purposes) to be served cumulatively on an existing total effective sentence of 6 years' imprisonment.
2.Ms Taylor - 2 years' imprisonment conditionally suspended for 2 years.
3.Mr Rodgers - 3 years' immediate imprisonment.
There are two grounds of appeal. Ground 1 asserts that the appellant's sentence infringed the parity principle when regard is had to the sentences imposed on Mr Taylor and Mr Rodgers. Ground 2 asserts that the appellant's overall total effective sentence infringed the first limb of the totality principle.
Both grounds of appeal are without merit. Neither ground justifies the grant of leave to appeal.[1] Leave to appeal should be refused and the appeal must be dismissed.
[1] The question of leave having been referred to the appeal hearing by order of Buss P made 22 June 2022: WAB 4.
The circumstances of the offending
The sentencing judge made extensive findings of fact in her sentencing remarks. None of those findings are challenged on appeal.[2] To recount the whole of the facts as found by the sentencing judge would unnecessarily prolong these reasons. What follows is instead a broad summary of the circumstances of the offending as found by the sentencing judge.
[2] Appeal ts 19; Appellant's submissions par 9 WAB 8.
In 2018 Mr Taylor was remanded in custody on charges of deprivation of liberty, assault causing bodily harm and doing an act with intent to harm as a result of which bodily harm was caused. The charges concerned serious offending against a person to be referred to in these reasons as 'V'. Those charges arose out of a single incident on 12 June 2017. Mr Taylor, then a senior member of the Rebels Motorcycle Club, together with a co-offender Luke Noormets, severely beat and later held V overnight in a car boot over a drug-related dispute. Mr Taylor was subsequently convicted of those charges after a trial that took place between 31 July 2019 and 12 August 2019.
V provided statements to the Western Australian police force implicating Mr Taylor in the offending. The State's prosecution was proceeding to trial based on V's statements.
Between 9 May and 9 July 2018 Mr Taylor and the appellant were both in the same unit at Casuarina Prison. The appellant was serving a sentence in relation to an aggravated burglary offence and had pending drug charges. There was no suggestion that the appellant had any involvement in Mr Taylor's offending against V. Mr Taylor and the appellant knew each other in prison. There was also a further connection between Mr Taylor and the appellant. Ms Taylor (Mr Taylor's mother) was a friend of the appellant's mother.
In late June 2018, V made contact with Mr Noormets' partner indicating a preparedness to provide a new statement to assist Mr Noormets. Mr Taylor somehow became aware of the overture from V. Mr Taylor then enlisted Ms Taylor to make contact with Mr Noormets' partner. At or about the same time, Mr Taylor discussed the situation with the appellant. Mr Taylor provided the appellant with a version of events about the incident concerning V that Mr Taylor could live with having regard to the circumstance that Mr Taylor had already spent a year in custody. That version of events significantly minimised the incident and Mr Taylor's involvement in it. The appellant agreed with Mr Taylor that he, the appellant, would approach V to prevail on V to change his account of the incident. The appellant later confirmed that agreement in discussions with Ms Taylor on his release from prison.
The appellant was released from custody, on bail, on 22 July 2018.
Two weeks later the appellant contacted V. The appellant let V know that he, the appellant, was acting on behalf of people in prison - one of whom was Mr Taylor (a person responsible for the ordeal V had undergone the previous year). The appellant did not expressly threaten V. However, the sentencing judge found that the appellant did not need to. V could only have understood the appellant's approach to mean that Mr Taylor, with his connections, could still reach V - and that V was to cooperate. V understood the veiled threat. V indicated that he would cooperate.
The appellant reported to Ms Taylor, and in turn Ms Taylor reported to Mr Taylor, that the appellant had made contact with V and V had agreed to cooperate in changing his account of the incident on 12 June 2017.
Much then ensued with a view to having V see a lawyer to change his statement. By mid-August 2018 the appellant had contacted Mr Rodgers, an experienced solicitor practising in the area of criminal law, who was representing the appellant's girlfriend in a separate matter. The appellant made various attempts to set up an appointment for V to see Mr Rodgers. V stalled about seeing Mr Rodgers. The appellant kept at V with a view to having V meet with Mr Rodgers. While this took place Ms Taylor continued to report to Mr Taylor on developments. Eventually, on 27 August 2018, the appellant met with V and drove him to Perth to meet with Mr Rodgers. The appellant told V that he, the appellant, was glad V was coming to see the lawyer instead of the appellant having to do things differently - it had saved the appellant having to send out a particular person (known to V to be a standover debt collector and extortionist) to the address where V's two-year-old son lived with V's former partner.
The meeting between Mr Rodgers and V resulted in a two-page handwritten statement on yellow notepaper written by Mr Rodgers and signed by V. The sentencing judge found that, prior to preparation of the new statement, Mr Rodgers had 'massaged' major changes in V's account of the events out of V. At the time Mr Rodgers was well aware that V was there to falsely recant important parts of his earlier statements to the police.
Mr Rodgers messaged the appellant after V left Mr Rodgers' office. The appellant asked Mr Rodgers whether everything was 'good'. Mr Rodgers replied: 'Yep. Might need another visit though to tidy it up as he [ie V] doesn't get much time out'.
V provided the new statement to the appellant who provided it to Ms Taylor. Mr Rodgers also apparently provided a copy of the statement to Mr Noormets' lawyer. There were suggestions at trial that the new statement was only of assistance to Mr Noormets. The sentencing judge rejected that proposition. The sentencing judge found that the new statement contained a major change to V's account and was likely to have significantly damaged V's overall credibility. The new statement had real potential to be used in Mr Taylor's favour. It created a major issue for the prosecution. The new statement was, however, disappointing to Mr Taylor, Ms Taylor and the appellant because it was thought that the statement did not go far enough. The appellant then took steps to have V see Mr Rodgers again as Mr Rodgers had foreshadowed. The appellant sent various messages to and had various telephone calls with V. The appellant told V that he, V, had to see Mr Rodgers again to produce a further statement. While this occurred there were continuing communications between the appellant and Ms Taylor and between Ms Taylor and Mr Taylor. The appellant was also in contact with Mr Rodgers.
On 5 September 2018 V contacted the police and informed them what was happening.
The appellant continued to be in contact with V, Ms Taylor and Mr Rodgers. Mr Rodgers also attempted to contact V. On Friday 7 September 2018, V contacted Mr Rodgers trying to arrange a meeting. After that Mr Rodgers messaged the appellant to tell him that V was trying to arrange an appointment. Matters continued after the weekend with further messaging between V, the appellant and Mr Rodgers. Ms Taylor was also in contact with the appellant. In the latter communications the appellant suggested that V 'will end up with a rather sore head' in the event that V was playing a game. A meeting between V and Mr Rodgers was arranged for the afternoon of 11 September 2018. It was V's and the appellant's expectation that Mr Rodgers would have pre-drafted a statement for V that met the demands of the appellant and the people for whom he acted.
The meeting between V and Mr Rodgers was recorded. What was said by Mr Rodgers at the meeting is not material to the proper disposition of the appeal. Mr Rodgers had not pre-prepared a further statement for V and the meeting finished without V making a further statement. Immediately after the meeting Mr Rodgers attempted to contact the appellant.
Post-11 September 2018 there were further communications between V and the appellant, the appellant and Ms Taylor, and Ms Taylor and Mr Taylor. However, on 4 October 2018 the appellant was arrested on unrelated matters. That ended any potential for the appellant to further pursue V about providing a further statement.
While the preceding account suffices to summarise the circumstances of the offending, the sentencing judge made other detailed findings of fact as to the acts done by each offender in furtherance of the conspiracy to pervert the course of justice.[3] Those findings included specific findings of fact regarding the acts done by the appellant.[4] In substance, however, the gravamen of the offending was that Mr Taylor, Ms Taylor, the appellant and Mr Rodgers conspired to pervert the course of justice by pressuring and prevailing on V to provide a false statement in the prosecution of the 2017 incident.
[3] See generally ts 1716 - 1782.
[4] ts 1719 - 1720, 1724 - 1729, 1731 - 1738, 1744, 1750 - 1762, 1771 - 1778.
Her Honour made findings as to the role played by each of Mr Taylor, Ms Taylor, the appellant and Mr Rodgers. Broadly speaking:
1.Mr Taylor played the least active role but was the one who stood to benefit from the conspiracy and was the one who 'set the ball rolling' knowing who would be involved.[5]
2.Ms Taylor was involved as the go-between for Mr Taylor and the appellant knowing that the appellant was actively engaged in pressuring V to change his statement to water down the allegations against Mr Taylor.[6]
3.The appellant had one of two critical roles in carrying out the conspiracy.
4.Mr Rodgers had the other critical role in carrying out the conspiracy. He was entrusted with the drafting of a false statement to ensure that Mr Taylor avoided or reduced his responsibility for the serious offences committed against V. Mr Rodgers was briefed about the need to produce a statement that significantly downgraded the allegations. He was there to give the false impression of legitimacy about the process.[7]
[5] ts 1782 - 1783.
[6] ts 1785 - 1786, 1798.
[7] ts 1786 - 1787, 1805 - 1806.
Specifically, as to the appellant, the sentencing judge found that the appellant carried out a critical role in carrying out the conspiracy - the appellant was tasked with ensuring that V substantially watered down his allegations and letting V know that there would be unpleasant consequences if V was not cooperative.[8] The sentencing judge stated of the appellant:
[8] ts 1783, 1803.
You had been given a version of events that he [ie V] was supposed to stick to, you told [V] what he had to achieve when he went to see Mr Rodgers. Above all you had to get [V] to drop the most serious allegations being the deprivation of liberty and the act with intent to harm.
You knew the basics of what had occurred including that he had been deprived of his liberty and given a flogging. You acted at the behest of Mr Taylor and once out of custody you reported to his mother, Christine Taylor, knowing she was in regular contact with her son and would inform him of your progress.
You established contact with [V], making it plain to him on whose behalf you acted, expecting that to carry weight with him. You were well aware that Mr Taylor was then a senior member of the Rebels. You effectively let [V] know that although those people for whom you acted were in prison they could still reach him.
You expected [V] to understand he had no choice but to cooperate with you and he did understand that by means of your veiled threats, but you kept things ostensibly civil and friendly as that was the best way to keep [V] from going to ground or contacting the police.
You also made it plain he [ie V] had to speak to your nominated lawyer and you arranged the meeting and drove him there. You had private conversations with Mr Rodgers which have not been recorded in which you briefed him and you expected him to report back to you what progress had been made.
You promised to pay him [ie Mr Rodgers]. You chose Mr Rodgers because he was your girlfriend's lawyer. You believed Mr Rodgers would not insist on going by the book and would be willing to craft a statement for [V] to sign which would have the desired effect.
You trusted him [ie Mr Rodgers] to know how to achieve that and have it look legitimate. You knew this was not a case of [V] having realised he had made some genuine errors in his statement that he wished to correct. You knew the statement would be false.
You were either complacent, not feeling the need to attend that meeting yourself, or you figured it was best to distance yourself from it trusting Mr Rodgers to get it sorted. You were shocked to discover after the event that the statement purported to exculpate Luke Noormets but did not to your mind assist Steven Taylor any who was your main concern.
You then increased the pressure on [V] to fix that situation until he reached tipping point and contacted the police for help. You rationalised to yourself because at some stage … you were told that the witness [ie V] had made an approach to someone suggesting he might be willing to make a statement and you considered that if he whined about being leant on to do so or didn't make the right changes to his statement he was just messing people around and the matter would be dealt with by another means.
You were certainly not concerned with his [ie V's] wishes at any stage. As to what motivated you there's no evidence that you were to receive money or anything else for your services, although if you did pay Mr Rodgers … you might perhaps have expected to be reimbursed.
There's also no evidence that you were then a member of the Rebels or a nominee. I don't need to reach a finding about what motivated you, but I think it most likely you acted to ingratiate yourself with Mr Taylor and possibly others to become known as a fixer and to foster good relations with people who were good contacts to have, particularly given the lifestyle you and your girlfriend were then living.[9]
[9] ts 1783 - 1784.
The sentencing judge found that the conspiracy stood no chance of succeeding without the appellant's actions.[10]
[10] ts 1803.
The appellant's personal circumstances
The appellant was a qualified electrician.
At the time of sentencing the appellant was 31 years old and about to turn 32. He had a long criminal record. The appellant had been sentenced to several terms of imprisonment. The sentencing judge characterised the appellant's criminal record as the record of a person with an entrenched drug problem who had a problem controlling his emotions and a lack of respect for the law.
The appellant was on bail at the time he committed the offence of conspiracy to pervert the course of justice.
The appellant had a dysfunctional childhood. The appellant was raised by his mother, with whom he had a close relationship, and who remained supportive of the appellant. The appellant's father was not present in his life until the appellant turned 12 years old. Thereafter the appellant's father was physically and psychologically abusive. The appellant nevertheless sought his father's approval and eventually joined him in using drugs. The appellant had a long-term problem with methylamphetamine coupled with a desire to ingratiate himself with others.
The sentencing judge agreed with an earlier assessment of the appellant as someone who had a great capacity to organise, manage, charm and, if necessary, threaten people.
The appellant's prior offending
Ground 2 invokes the first limb of the totality principle. In this respect, as previously mentioned, the appellant was a serving prisoner at the time he was sentenced on the count of conspiring to pervert the course of justice. In considering the application of the first limb of the totality principle it is necessary to address the nature of the offending that resulted in the appellant being a serving prisoner at the time he came to be sentenced for the offence of conspiring to pervert the course of justice.
The appellant's prior offending was unrelated to his offence of conspiring to pervert the course of justice.
In summary, on 12 March 2021 the appellant was sentenced to a total effective sentence of 7 years 2 months' imprisonment following conviction, on pleas of guilty, of one count of possession of 248 g of methylamphetamine with intent to sell or supply and one count of possession of $146,225 in cash reasonably suspected to have been stolen or unlawfully obtained.
The maximum penalty for the offence of possession of a trafficable quantity of methylamphetamine with intent to sell or supply was life imprisonment.[11] The maximum penalty for possession of the $146,225 in cash reasonably suspected to have been stolen or unlawfully obtained was 7 years' imprisonment.[12]
[11] Misuse of Drugs Act 1981 (WA), s 34(1)(a).
[12] Criminal Code s 417(1).
The facts of the offending were summarised in a decision of this court refusing leave to appeal in relation to the sentence:
At 5.45 pm on Monday 30 April 2018, officers from the Organised Crime Squad executed a Misuse of Drugs Act 1981 (WA) search warrant at an apartment in Innaloo. The police arrested the appellant inside a bedroom at the apartment.
The police searched the bedroom. They found a vacuum sealed bag with 248 g of methylamphetamine at 74% purity (count 1). They found $146,225 in cash (count 2). They also found part of a rifle (namely a box magazine), five shotgun rounds, an electronic stun device, a metal baton, and identification documents in the name of the appellant. The box magazine fitted a rifle that police had seized earlier from a locked security cage in the apartment complex.
The appellant was involved with a group of people who dealt drugs. The appellant did not possess the drugs and the cash alone. The appellant was not merely a courier. The appellant's position in the group is otherwise unknown.
The appellant was on parole for an offence of aggravated burglary at the time of the offending.[13]
[13] Curry v The State of Western Australia [2022] WASCA 36 [5] - [8].
The sentencing judge (MacLean DCJ) found that the offending formed part of a prolonged drug dealing operation and a serious criminal enterprise. The appellant was an essential part of the criminal enterprise.[14] The appellant's involvement in the overall drug enterprise was much more than a courier or storekeeper, and encompassed dealing with users and dealers at a number of levels.[15]
[14] Curry v The State of Western Australia [20].
[15] Curry v The State of Western Australia [22].
The appellant was given a 20% discount for his pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
MacLean DCJ imposed an immediate term of imprisonment of 6 years 6 months for count 1. His Honour imposed an additional cumulative term of 8 months (reduced from 1 year) for count 2, having regard to totality. The total effective sentence of 7 years 2 months' imprisonment was backdated to 5 October 2018 to account for time spent by the appellant in custody. His Honour ordered that the appellant be eligible for parole.
An appeal against sentence was dismissed.
Among other things the appellant contended that the sentence infringed the first limb of the totality principle - in particular by failing to properly take into account a term served by the appellant for another offence (the appellant having been sentenced to 2 years 2 months' imprisonment backdated to commence on 23 May 2016 in respect of an aggravated burglary offence committed on 11 June 2015). The terms in which that contention was rejected by this court are relevant to the present appeal:
Bearing in mind:
(i)the appellant's essential role in what the judge found, without challenge on the appeal, to be a prolonged drug-dealing enterprise…
(ii)the weight and purity of the methylamphetamine; and
(iii)the fact that the appellant committed the offence while on parole,
the appellant's sentence on count 1 was well within the range of sentences available on a proper exercise of the sentencing discretion. A materially higher sentence could have been imposed without revealing error.
The same is true, in our opinion, of the sentence imposed on count 2, and the total effective sentence on counts 1 and 2 as a whole.[16]
[16] Curry v The State of Western Australia [60] - [61].
The court concluded that the appellant had fallen 'well short' of demonstrating that the total effective sentence infringed the first limb of the totality principle.[17]
[17] Curry v The State of Western Australia [62].
The sentencing disposition
In sentencing submissions the appellant conceded that a term of imprisonment was the only appropriate sentencing disposition. However, the appellant contended that the term of imprisonment should be served concurrently with the total effective sentence of 7 years 2 months' imprisonment that the appellant was already serving.[18]
[18] ts 1704.
The sentencing judge identified, with respect correctly, that - like the offence of attempting to pervert the course of justice - the major sentencing considerations for an offence of conspiring to pervert the course of justice are general and personal deterrence. These are offences that strike at the heart of the administration of criminal justice. The effective functioning of the system of criminal justice requires that potential witnesses (and in particular victims) not be subjected to threats or inducements by or on behalf of those charged with offending lest witnesses be affected in their preparedness to give truthful evidence. The necessity to protect and promote the due administration of justice means that offenders and others minded to participate in a conspiracy to pervert the course of justice will ordinarily be punished by an immediate term of imprisonment.
In characterising the offending, the sentencing judge stated that the conspiracy was not in the 'worst case' category.[19] However, it was a 'serious example' of a conspiracy to pervert the course of justice.[20] The sentencing judge reached that categorisation having regard to the seriousness of the offending against V, the consequences for that offending that Mr Taylor wished to minimise, the difficulties faced by a person in V's position in contemplating testifying against a senior member of an outlaw motorcycle gang and the necessity for the due administration of justice that persons in V's position be prepared to testify. The sentencing judge also observed that the offending was a premeditated and prolonged effort to thwart a prosecution by prevailing upon a complainant by a combination of subtle coercion, faked friendliness, threats, persistence and pressure.[21]
[19] ts 1789.
[20] ts 1790.
[21] ts 1789 - 1790.
On appeal there is no challenge to the sentencing judge's characterisation of the offending as a serious example of a conspiracy to pervert the course of justice. For the reasons as given by the sentencing judge that characterisation should be accepted.
The sentencing judge dealt separately with each offender's personal circumstances, role in the offending and sentence.
The sentencing judge assessed Mr Taylor, the appellant and Mr Rodgers to bear the same degree of culpability.[22] Ms Taylor's role was assessed as not being as critical as that of the appellant or Mr Rodgers.[23] On appeal the appellant accepted that he, Mr Taylor and Mr Rodgers bore a similar level of culpability in relation to their offending.[24] Accordingly, there was acceptance of the sentencing judge's characterisation of the parties' respective culpability.
[22] ts 1794, 1803, 1806.
[23] ts 1799.
[24] Appellant's submissions par 18 WAB 9.
The sentencing judge was conscious that Mr Taylor and the appellant were sentenced prisoners. Her Honour took the totality principle into account. However, her Honour also stated, again correctly, that the totality principle could not reduce the sentence below what was necessary to reflect the seriousness of the offending. Thus there had to be additional punishment to Mr Taylor and the appellant's original terms. There could not be a message that offenders would not receive extra punishment for attempting or conspiring to pervert the course of justice. Likewise, the reduction on account of the totality principle could not create a marked disparity with the sentence to be imposed on Mr Rodgers.[25]
[25] ts 1794 - 1795, 1803 - 1804.
The appellant's dysfunctional childhood, and relationship with his father, was considered to be mitigating - it made it more likely that the appellant would end up living a dysfunctional life marred by dependency and trouble with the law.[26] The sentencing judge also took into account that during his time in custody the appellant had acquired insight into his entrenched drug problem and its effect on his life. The appellant had taken steps to deal with his childhood issues.[27] Based on reports, character references and a letter from the appellant to the court the sentencing judge considered that the appellant had been doing all he could to live a more positive life on his release.[28]
[26] ts 1801 - 1802.
[27] ts 1802.
[28] ts 1802.
The appellant did not have the benefit of remorse or any discount for a plea of guilty.[29]
[29] ts 1803.
In dealing with the grounds of appeal, specifically ground 1, it will be necessary to address some of the personal circumstances and antecedents of Mr Taylor and Mr Rodgers. For now it is enough to mention that Mr Taylor and Mr Rodgers had more favourable antecedents and personal circumstances than the appellant. That was particularly the case in relation to Mr Rodgers.
The sentences imposed on each of the offenders are stated at [2] and [4] above. For convenience we will repeat the sentences:
1.Mr Taylor - 2 years' imprisonment (reduced from 3 years' imprisonment for totality purposes) to be served cumulatively on his existing total effective sentence of 6 years' imprisonment.
2.Ms Taylor - 2 years' imprisonment conditionally suspended for 2 years.
3.The appellant - 2 years' imprisonment (reduced from 3 years' imprisonment for totality purposes) to be served cumulatively on his existing total effective sentence of 7 years 2 months' imprisonment.
4.Mr Rodgers - 3 years' immediate imprisonment.
Disposition ground 1: did the appellant's sentence infringe the parity principle?
Applicable legal principles[30]
[30] The summary that follows is drawn from the reasons of the court in Garlett-Exell v The State of Western Australia [2020] WASCA 179 [48] - [52].
The legal principles applicable to the parity principle are well established. The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen[31] has been adopted or reproduced in this court many times:
[31] Ngo v The Queen [2017] WASCA 3.
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. 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.
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.
In Green v The Queen 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.[32] (citations omitted)
[32] Ngo v The Queen [36] - [40].
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[33] apply.[34]
[33] House v The King (1936) 55 CLR 499.
[34] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40].
The parity principle is concerned with substance rather than form. The manner in which the principle is to be applied will vary according to the facts and circumstances of the case. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed.
The relevant factors will vary according to the facts and circumstances of the case. The factors will ordinarily include:[35]
[35] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins) [52] - [53], [184].
1.The objective seriousness of each offence which each offender has committed.
2.The culpability of each offender.
3.The aggravating and mitigating factors in relation to each offence which each offender has committed.
4.Whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders.
5.Each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed.
6.Whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively.
7.The total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender.
8.Whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made.
9.The non‐parole period to be served by each offender.
10.The personal circumstances and antecedents of each offender.
In Higgins, Pritchard JA (Beech JA agreeing) noted that:
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.[36]
[36] Higgins [207]
A manifest disparity in any component of the punishment imposed on co-offenders (such as the sentence imposed in respect of an individual count), 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.[37]
[37] Higgins [179], [200], [208].
In Higgins, Beech JA observed:
Nor, in my view, are fundamental principles concerning parity consistent with a hard and fast rule that, in cases of co‐offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. Parity is founded on the norm of equal justice. That norm may be engaged by a marked disparity in the respective sentences imposed on co‐offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though one, or both, of the co‐offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.
…
In my view, it is open to an appellant to contend that the individual sentence imposed on a co‐offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co‐offender were also sentenced for other offences. In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences. [38]
The parties' submissions
[38] Higgins [177], [182].
The appellant contended that the practical effect of the sentence as imposed resulted in a disparate outcome with respect to the sentences imposed on Mr Taylor and Mr Rodgers that gave rise to a justifiable sense of grievance.[39] The ground was not advanced by reference to the sentence imposed on Ms Taylor. In this respect it will be recalled that the sentencing judge characterised each of the appellant, Mr Taylor and Mr Rodgers to have the same level of culpability, while Ms Taylor was found to be of lesser culpability.
[39] Appellant's submissions par 17 WAB 9.
As to Mr Taylor, the appellant pointed to the following statement of principle by McLure P (Buss & Mazza JJA agreeing) in Dudzik v The State of Western Australia:
As a matter of principle, the sentence for an offence of attempting to pervert the course of justice should ordinarily be made wholly cumulative with the sentence for the offence to which the attempt was directed. Offenders who are considering engaging in further criminal conduct directed at avoiding a conviction or perverting the sentencing process should understand that the cumulation of sentences will ordinarily be the consequence.[40]
[40] Dudzik v The State of Western Australia [2012] WASCA 195 [30].
The appellant argued that, notwithstanding that he was equally culpable as to the commission of the offence of conspiracy to pervert the course of justice, the principle in Dudzik did not have equal application. The appellant was not involved in the related offending. Accordingly, in the appellant's submission, the principle that the sentence should be wholly cumulative did not apply equally as between the appellant and Mr Taylor.[41]
[41] Appeal ts 19 - 21; Appellant's submissions pars 20 - 23 WAB 9 - 10.
As to Mr Rodgers, it was observed that he would be eligible for parole after serving 18 months of his 3 year term of imprisonment. However, as a sentenced prisoner, the appellant would be required to serve a further 2 years' imprisonment as a result of his sentence. The appellant contended that the effective result was one that is, as a matter of practicality, unduly disparate.[42]
[42] Appellant's submissions pars 24 - 28 WAB 10.
The State submitted that the matters raised by the appellant to suggest that there was a justifiable sense of grievance were not such as to merit disparity between the sentence imposed on him and Mr Taylor. As to Mr Rodgers, the State said that the disparity that existed was entirely explained by sentencing laws and principles. It did not give rise to a justifiable sense of grievance.[43]
Evaluation and determination
[43] Respondent's submissions pars 7, 17 - 31 WAB 18, 23 - 27.
The appellant advanced his parity argument separately by reference, first, to Mr Taylor, and then to Mr Rodgers. It is convenient to take the same approach in these reasons.
There was no material disparity in the sentencing outcomes for Mr Taylor and the appellant. Both received a 2 year term of imprisonment, reduced from 3 years for totality purposes, to be served cumulatively on their existing sentences. In that respect Mr Taylor's prior total effective sentence was a term of 6 years' imprisonment whereas the appellant's prior total effective sentence was a term of 7 years 2 months' imprisonment. Those prior total effective sentences reflected Mr Taylor's and the appellant's different prior offending. There was no suggestion that the difference in the prior total effective sentences had any implication for the appellant's parity argument.
The appellant contended that the lack of disparity gave rise to a justifiable sense of grievance. This was primarily advanced on the basis that the principle in Dudzik did not have equal application to the appellant.
Dudzik must be understood in the context of the facts of that case. In Dudzik the offender was convicted, on her plea of guilty, of one count of attempting to pervert the course of justice. The offence related to false material put to a sentencing judge on behalf of the offender in the course of a plea in mitigation in relation to five counts of fraud for which, in due course, the offender was sentenced at the same time as she was sentenced for the offence of attempting to pervert the course of justice. The passage reproduced at [62] above is directed to the facts of the case. McLure P was making an observation as to cumulacy in the context of an argument as to totality. The principle referred to by her Honour countered any suggestion that the so-called 'one transaction' rule might favour concurrency. Properly understood, nothing in Dudzik sought to confine accumulation for a sentence for an offence of attempting to pervert the course of justice (or conspiracy to pervert the course of justice) to accumulation with the sentence for the offence or offences to which the attempt (or the conspiracy) was directed.
In the present appeal, as is discussed in dealing with ground 2, a degree of accumulation was required for the appellant's further offending. That is unsurprising given the major sentencing considerations that apply to an offence of this kind (see [44] above). Ordinarily, criminal conduct directed at avoiding a conviction or perverting the sentencing process will be met with additional punishment. A sentenced prisoner ought to expect that additional punishment will be imposed for an offence of conspiring to pervert the course of justice. That is equally the case irrespective of whether the conspiracy is related or unrelated to the other offending.
The circumstance that the principle in Dudzik did not, strictly in its terms, apply to the appellant, is not to the point. The one transaction rule had no relevance in sentencing the appellant. The conspiracy offence and the earlier drug offences were unrelated in time, place or character. There was no reason, apart from totality, for the appellant's sentence to be concurrent with the term for his drug offences. This was a case where considerations of general and personal deterrence amply justified the imposition of the appellant's cumulative sentence.
Apart from the misdirected reliance on Dudzik, counsel for the appellant focused on the circumstance that Mr Taylor was the person who was to derive a benefit from the offending. It was said that the appellant was not to derive any benefit. Counsel thus contended that there should have been some difference in Mr Taylor's and the appellant's respective sentences to reflect the difference in expectation as concerns benefit.
The fallacy in that submission is that it focuses selectively on one facet of Mr Taylor's and the appellant's comparative criminality. That approach is wrong in principle. The sentencing judge found, and we accept, that Mr Taylor and the appellant bore the same degree of culpability - something also accepted on behalf of the appellant (see [48] above). That is a characterisation based on the whole of the relevant facts and circumstances. It takes into account, for example, that the appellant took more substantial active steps in the effectuation of the conspiracy than Mr Taylor.
Once that position is reached the lack of material disparity in sentence between Mr Taylor and the appellant is incapable, objectively, of giving rise to a legitimate or justifiable sense of grievance. There can be no legitimate or justifiable sense of grievance where, in substance, Mr Taylor and the appellant received a broadly equivalent sentencing outcome for offending that was equally culpable and where, as explained below, the differences in the respective mitigating factors were insubstantial and operated in Mr Taylor’s favour.
Other differences between Mr Taylor and the appellant did not justify a difference in sentencing outcome. Counsel for the appellant contended that, apart from the matters relied on, the two offenders were 'relatively on par'.[44] In fact, while the major sentencing considerations are such that personal considerations must be subservient to general and personal deterrence, the personal considerations ever so slightly favoured Mr Taylor. Mr Taylor's history of prior offending was less serious than the appellant's.[45] Mr Taylor had taken steps towards his rehabilitation.[46] And Mr Taylor had recently been diagnosed with non-Hodgkin's lymphoma requiring chemotherapy - something that would make his time in custody more difficult.[47]
[44] Appeal ts 21.
[45] ts 1791.
[46] ts 1791 - 1792.
[47] ts 1792.
The appellant's parity argument fails insofar as it is concerned with parity as between the appellant and Mr Taylor.
The parity argument in relation to Mr Rodgers turned on how long each of the appellant and Mr Rodgers would have to serve before becoming eligible for parole.
The appellant's sentence for the offence of conspiring to pervert the course of justice has the practical effect of extending by 2 years the time to be served before he will become eligible for parole. Accordingly, in practical effect, it was said that the appellant had to serve an additional 2 years' imprisonment. However, due to the operation of the Sentencing Act, Mr Rodgers will become eligible for parole after serving 18 months of his 3‑year term of imprisonment. Counsel for the appellant contended that the principle of parity required the court to attend to the actual period that the co-offenders would be required to serve, ie the co-offenders' respective sentences before becoming eligible for parole. Thus, in this case, parity could only be achieved in respect of the appellant by reducing the notional 3 years before application of the totality principle to a cumulative term of 18 months.[48]
[48] Appeal ts 23 - 25.
There are two obvious problems with the appellant's contention. First, it assumes that upon becoming eligible each co-offender will be granted parole. No attempt was made to establish that this assumption was based on reasonable grounds. It is speculative at best. The most that can be said is that the appellant will have to serve an additional 2 years before becoming eligible for parole whereas Mr Rodgers will have to serve 18 months before becoming eligible for parole.
Second, most importantly, as counsel for the appellant was eventually driven to concede,[49] the appellant's contention gives controlling effect to the question of when the co-offenders might be released. That is incorrect in principle. In determining whether the parity principle has been infringed the court must take into account and evaluate all factors relevant to the offenders, the offences they have committed and the sentences they have received (see [54] - [60] above). In focusing, selectively, on a single aspect of the two sentences, the appellant's argument overlooked the operation of the totality principle in respect of the appellant's prior total effective sentence and the different personal circumstances of the appellant and Mr Rodgers.
[49] Appeal ts 25.
The order for accumulation of the 2‑year sentence with the appellant's prior total effective sentence was necessary to properly reflect the overall criminality of the appellant's offending - something discussed in more detail below in relation to ground 2.
That totality consideration did not apply to Mr Rodgers. Mr Rodgers, unlike the appellant, was to be incarcerated only for the offending that he (Mr Rodgers) had committed in common with the appellant. When the appellant's offending is viewed in its entirety, and compared against that of Mr Rodgers, the sentences imposed on the appellant properly reflect the differences between the appellant's offending and Mr Rodgers' offending. Viewed objectively, having due regard to accepted sentencing principles, no legitimate or justifiable sense of grievance arises. Obviously, as the appellant pointed out, there is a disparity in terms of the time that each of the appellant and Mr Rodgers will have to serve before becoming eligible for parole. But it cannot be overlooked that the additional time that the appellant must serve before becoming eligible for parole is simply a product of the circumstance that the appellant was already serving a sentence of more than 4 years' imprisonment in relation to his prior offending.
The disparity complained of by the appellant is wholly explicable by differences in the comparative circumstances of the appellant and Mr Rodgers and the proper application of sentencing law and principles.
Even if, contrary to principle, the parity principle was to be approached only by reference to eligibility for parole, the relatively minor disparity evinced by the sentencing outcomes was reasonably open given the differences in the co-offenders' personal circumstances. Mr Rodgers was a person of otherwise prior good character.[50] His offending was an aberration.[51] Mr Rodgers had good prospects of rehabilitation and there was very little risk of him re-offending in a similar way.[52] There was a lesser need for specific deterrence than was the case with the appellant given the loss of Mr Rodgers' career.[53] Bearing these matters in mind, comparing the sentences imposed on the appellant and Mr Rodgers, no House v The King error is revealed. As, in the circumstances, the disparity as to eligibility for parole was justified by differences in the co-offenders, there was, objectively, no basis for a legitimate or justifiable sense of grievance.
[50] ts 1804.
[51] ts 1804.
[52] ts 1804 - 1805.
[53] ts 1806.
The appellant's parity argument also fails insofar as it is concerned with parity as between the appellant and Mr Rodgers.
Ground 1 is without merit. Leave to appeal on ground 1 should be refused.
Disposition ground 2: did the appellant's overall total effective sentence infringe the first limb of the totality principle?
Applicable legal principles
In Roffey v The State of Western Australia, McLure JA (Steytler P & Miller JA agreeing) described the first limb of the totality principle in these terms:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[54] (citations omitted)
[54] Roffey v The State of Western Australia [2007] WASCA 246 [24].
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.[55]
[55] Roffey v The State of Western Australia [26].
The general principles governing appeals against sentence contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established. See for example Gaskell v The State of Western Australia[56] and Kabambi v The State of Western Australia.[57] A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently.
[56] Gaskell v The State of Western Australia [2018] WASCA 8 [127] (esp. [127(3)]).
[57] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (esp. [21(3)]).
For present purposes, so far as the contention is one of implied error, it suffices to state that the real question is whether the overall total effective sentence of 9 years 2 months' imprisonment is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
The parties' submissions
The appellant contended that, when regard was had to the matters canvassed with respect to ground 1, the sentence imposed did not pay proper regard to the matters that inform the first limb of the totality principle. According to the appellant, the sentence should have been moderated by either a further reduction on the sentence as imposed or an order that the sentence be served partly concurrently with his existing sentence.[58]
[58] Appellant's submissions pars 34 - 37 WAB 12.
The State submitted that, in the circumstances of the case, the order that the sentence of 2 years' imprisonment be served cumulatively on the appellant's existing sentence was a just and accurate reflection of the criminality of the appellant's offending as a whole. Thus there was no infringement of the first limb of the totality principle.[59]
Evaluation and determination
[59] Respondent's submissions pars 8, 33 - 37 WAB 18, 28 - 29.
A ground of appeal that asserts that a sentencing judge has infringed the totality principle involves an allegation of implied error.
The critical question is whether the length of the 9 years 2 months' total effective sentence is disproportionate to the overall criminality involved in all the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases), so as to be unreasonable or plainly unjust.
In considering whether a total effective sentence infringes the first limb of the totality principle it is relevant to refer to broadly comparable cases. It must, however, be recognised that the utility of the comparable cases is limited. While providing broad guidance there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, rendering the comparison of limited utility.
Neither party referred to any comparable cases. Our research has not identified any case with comparable offending - ie a total effective sentence for a serious offence of possession of illicit drugs with intent to sell or supply (together with possession of money reasonably suspected to have been stolen or unlawfully obtained) coupled with an unrelated offence of conspiring to pervert the course of justice.
The absence of directly comparable cases does not prevent the court from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It simply means that the court has no directly comparable cases to provide a yardstick against which to evaluate the appropriateness of the total effective sentence imposed at first instance. But in that respect previous sentencing ranges are only one pointer to the appropriateness of a sentence.
The appellant's prior offending, for which he had been sentenced to 7 years 2 months' imprisonment, was objectively serious offending. The appellant was in possession of approximately 8.85 times the trafficable quantity of methylamphetamine with intent to sell or supply. He was also in possession of a substantial amount of money reasonably suspected to have been unlawfully obtained. There was found to be a clear connection between the appellant's possession of the methylamphetamine and his possession of the $146,225. The offending was for commercial gain. The offending formed part of a prolonged drug dealing operation and a serious criminal enterprise of which the appellant was an essential part. The offending occurred while the appellant was on parole, demonstrating the appellant's disregard for the law. While there was mitigation, including insight and remorse and an expressed desire to avoid reoffending, the mitigatory circumstance of most force was the appellant's pleas of guilty.
The offending comprised in the conspiracy to pervert the course of justice was also objectively serious offending (see [44] - [46] above).
We are comfortably satisfied that the total effective sentence of 9 years 2 months' imprisonment bears a proper relationship to the overall criminality involved in the offences the subject of the sentencing by MacLean DCJ and the sentencing judge, viewed together, after having regard to all relevant facts and circumstances and all relevant sentencing factors.
It was necessary, to properly mark the appellant's overall criminality, to order a degree of accumulation of the sentence concerning the conspiracy to pervert the course of justice. A failure to do so would have been erroneous. It would not have given proper effect to the major sentencing considerations of general and personal deterrence. In this respect we repeat what is stated at [70] above. Ordinarily, criminal conduct directed at avoiding a conviction or perverting the sentencing process will be met with additional punishment. A person who has offended and, before being sentenced for those offences, then commits a further offence of conspiring to pervert the course of justice, ought to expect that he or she will receive additional punishment for the latter offending. Nothing in the circumstances of the appellant's offending, or his personal circumstances, militated against the application of the usual sentencing disposition. To the contrary, the high order of seriousness of the appellant's offending, and the fact that he committed the offence of conspiracy to pervert the course of justice while on bail, required a degree of accumulation.
In substance the sentencing judge provided for a degree of accumulation. The sentencing judge would have imposed a sentence of 3 years' imprisonment but, for reasons of totality, reduced that to 2 years' imprisonment to be served cumulatively on the prior total effective sentence. The same sentencing outcome could have been achieved by imposing a 3‑year term of imprisonment but ordering that it be served partly concurrently (as to 1 year) with the prior total effective sentence of 7 years 2 months' imprisonment.
In all the circumstances we are satisfied that the overall total effective sentence of 9 years 2 months' imprisonment was well within the range open on a proper exercise of the sentencing discretion.
We have reached that conclusion having taken into account: (1) the maximum penalties for the offences; (2) the objective circumstances of the offending as a whole; (3) the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; (4) the significance of general and personal deterrence and the protection and promotion of the due administration of justice - in particular the due administration of the criminal justice system; (5) the aggravating circumstance that the appellant's offending was committed while he was on bail - thereby demonstrating his disregard for the law and accentuating the need for personal deterrence and additional punishment; (6) the appellant's pleas of guilty to the earlier offences of possession of methylamphetamine with intent to sell or supply and possession of cash reasonably suspected to have been unlawfully obtained; (7) the appellant's personal circumstances and antecedents; and (8) all other relevant sentencing factors and principles as mentioned in these reasons.
It is also significant that, on the appellant's appeal against the prior total effective sentence of 7 years 2 months, this court considered that a materially higher sentence could have been imposed without revealing error. The sentence was 'well within' the range available on a proper exercise of the sentencing discretion. Those conclusions are incontestable in the present appeal. The practical effect of those conclusions is to moderate the effect of the degree of accumulation that the sentencing judge considered appropriate to impose. The overall total effective sentence is to be evaluated from a starting point that the prior total effective sentence of 7 years 2 months' imprisonment did not approach the limits of a sound exercise of the sentencing discretion for the earlier offences.
The total effective sentence of 9 years 2 months' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be implied or inferred from the sentencing outcome in relation to the overall total effective sentence. The first limb of the totality principle was not infringed.
Ground 2 is without merit. Leave to appeal on ground 2 should be refused.
Conclusion and orders
For these reasons leave to appeal should be refused in relation to both of ground 1 and ground 2. It follows that the appeal must be dismissed.
We would make orders that:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Vaughan
25 JANUARY 2023
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