D'Lima v The State of Western Australia

[2012] WASCA 191

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   D'LIMA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 191

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   23 AUGUST 2012

DELIVERED          :   8 OCTOBER 2012

FILE NO/S:   CACR 127 of 2011

BETWEEN:   TRISTAM DOMINIC JUDE D'LIMA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STONE DCJ

File No  :IND 704 of 2011

Catchwords:

Criminal law - Appeal against sentence - Whether lack of disparity between the sentences imposed on the appellant and his co-offender - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Sentence set aside

Category:    B

Representation:

Counsel:

Appellant:     Mr B S Hanbury

Respondent:     Mr J McGrath SC

Solicitors:

Appellant:     Evangel Legal Services

Respondent:     Director of Public Prosecutions (WA)

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

Farrugia v The Queen [2011] VSCA 24

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

Jardim v The State of Western Australia [2011] WASCA 83

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

1McLURE P:  This is an appeal against sentence.  Following a leave hearing on 15 November 2011, the court ordered that:

1.Leave to appeal on grounds 1 and 2 is refused.

2.Leave to appeal on ground 3 is granted insofar as it might raise a question of whether the parity principle is capable of applying where the co‑offender has committed further offences in which the appellant was not involved, of the same type and at approximately the same time as those committed by the appellant and the co‑offender together.

2The appellant was given liberty to file additional written submissions in support of ground 3, which was done.  The relevant background is as follows.  On 14 July 2011, the appellant was sentenced to a total effective sentence of 9 years' imprisonment for nine offences the subject of indictment IND 704/2011.  Four of the nine offences for which he was sentenced involved a co‑offender, Lee Adam Murray (the common offences). 

3On 18 February 2011, prior to the appellant's sentencing, Murray was sentenced by a different judge to a total effective sentence of 9 years' imprisonment for 30 offences the subject of indictment IND 489/2010.  The common offences are included in that indictment.

4The details relating to the appellant's offending and Murray's offending are set out in Schedule A to these reasons.  The common offences are asterisked.  The appellant and Murray received the same individual sentences for the common offences (counts 1, 2, 8 and 9 in the appellant's indictment and counts 3, 4, 26 and 28 in Murray's indictment).  The appellant's five other convictions were for selling, or offering to sell to Murray, a prohibited drug being 14 g of methylamphetamine (count 3), 500 MDMA pills (count 4), 14 g of methylamphetamine (count 5), 28 g of methylamphetamine (count 6) and 14 g of methylamphetamine (count 7) respectively (the appellant's other drug offences).

5Murray's 26 other convictions were for selling (6), offering to sell (17), attempting to possess (1) and possessing with intent (1) prohibited drugs and attempting to pervert the course of justice (1) (Murray's other offences).  The prohibited drugs in question were MDMA, methylamphetamine and BZP pills in quantities that generally exceeded the quantities involved in the appellant's other drug offences. 

6The appellant was aged 26 at the time of sentencing, was gainfully employed, had no relevant prior convictions, had entered pleas of guilty and had significant substance abuse problems.  Based on the appellant's ability to source significant quantities of drugs, the sentencing judge concluded that he was 'actively involved in the high end of the drug trade' and that Murray 'sat beneath [the appellant] in the scheme of things' (ts 30 ‑ 31).

7Murray was aged 23 at the time of sentencing, had entered fast‑track pleas of guilty, was diagnosed with ADHD at an early age, had a history of drug and gambling addictions and had a prior conviction in 2008 for supplying MDMA to another and a number of convictions for dishonesty offences.

8The respondent accepts that the parity principle was applicable directly or by way of analogy in the sentencing of the appellant.  That concession is consistent with authority in the High Court (Green v The Queen (2011) 244 CLR 462 [28] ‑ [34]) and in this court (Jardim v The State of Western Australia [2011] WASCA 83 [14] ‑ [16], [27] ‑ [28]). See also Farrugia v The Queen [2011] VSCA 24 [25] ‑ [29].

9The High Court in Green said that consistency in the punishment of offences is a reflection of the notion of equal justice [28] and that:

The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form [30].

10As in Jardim, this case is concerned with whether the norm of equality before the law has been infringed as a result of a lack of disparity between the total sentences imposed upon the appellant and Murray.  The purpose of the norm of equality before the law and the parity principle on which it is based is to ensure an appropriate level of consistency in the sentencing of persons who participate in the commission of one or more offences. 

11The question to be posed is whether the disparity, or lack of disparity, in sentences is capable of giving rise to a justifiable sense of grievance:  Lowe v The Queen (1984) 154 CLR 606. Whether there is a justifiable sense of grievance in circumstances such as the present has to be determined by taking into account differences in the nature, circumstances and extent of the offences to which the co‑offenders were sentenced, the personal circumstances of the co‑offenders and the application and effect of relevant sentencing principles, including the totality principle.

12As explained in Jardim, the rationale and effect of the totality principle means there is not a linear relationship between the number of offences committed and the length of the total term imposed [13].  Thus the fact that the appellant committed approximately one‑third of the number of roughly equivalent types of drug offences committed by Murray does not mean, everything else being equal, that the appellant should receive one‑third of the  total sentence imposed on Murray.  Further, everything else was not equal.  Murray had pleaded guilty on the fast‑track system, was younger than the appellant and below him in the distribution hierarchy, although Murray must have been able to source significant quantities of drugs from sources other than the appellant.  On the other hand, Murray had a prior record of convictions.

13However, having regard to all relevant sentencing factors applicable to both offenders, the lack of disparity in the total sentences does not properly reflect the substantial difference in the total criminality involved in the respective offending and is not objectively justifiable.  There should be a reduction of 2 years in the appellant's total sentence.

14Accordingly, I would allow the appeal, set aside the orders for cumulation and concurrence and in lieu thereof order that the sentences on counts 2, 5 and 7 be served cumulatively with the remaining sentences to be served concurrently resulting in a total effective sentence of 7 years' imprisonment.

15BUSS JA:  I agree with McLure P.

16MAZZA JA:  I agree with McLure P.

Schedule A

Appellant's Offences

Count	Date of offence	Offence	Description	Sentence
1    *        *	18-23 May 2009	Conspiracy to possess prohibited drug with intent to sell/supply	Conspired with Murray to obtain 448 g methylamphetamine (M/A)	6 years
2    *	19-22 May 2009	Conspiracy to possess prohibited drug with intent to sell/supply	Conspired with Murray to obtain 112 g M/A	3 years
3	23 May 2009	Offer to sell prohibited drug	Offered to sell 14 g M/A to Lee Murray	2 years
4	19 June 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills to Lee Murray	3 years Cumulative on count 1
5	10 July 2009	Sold a prohibited drug	Sold 14 g M/A to Lee Murray	2 years
6	16 July 2009	Offer to sell prohibited drug	Offered to sell 28 g M/A to Lee Murray	3 years
7	20 July 2009	Offer to sell prohibited drug	Offered to sell 14 g M/A to Lee Murray	2 years
8    *	22 July 2009	Sold a prohibited drug	Sold 28 g M/A to Lee Murray	3 years
9    *	31 July 2009	Sold a prohibited drug	Sold 23.9 g M/A at 17% purity to another (with Lee Murray)	3 years

Murray's Offences

Count	Date of offence	Offence	Description	Sentence
1               *	14 May 2009	Sold prohibited drug	Sold 501 MDMA pills to another (total cost $10 000)	3 years
2	16 May 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $18.50 each or $9 250)	3 years
3     *	18-21 May 2009	Conspired to sell a prohibited drug	Conspired with [the appellant] to obtain 16 oz (448 g) M/A	6 years Cumulative on count 1
4      *	20 May 2009	Conspired to sell a prohibited drug	Conspired with [the appellant] to obtain 4 oz (112 g) M/A	3 years
5	18-23 May 2009	Offer to sell prohibited drug	Offered to sell 1100 MDMA tablets (at $17 each or $18 700)	4 years
6	21 May 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA tablets (at $18.50 each or $9 250)	3 years
7	22 May 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $18 each or $9 000)	3 years
8	22 May 2009	Sold prohibited drug	Sold 110 g M/A (at cost of $34 400)	4 years
9	26-29 May 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $17 each or $8 500)	3 years
10	28 May 2009	Offer to sell prohibited drug	Offered to sell 2000 MDMA pills (cost see count 11)	4 years

11	28 May 2009	Offer to sell prohibited drug	Offered to sell 224 g M/A (total cost 10 & 11 $99 800)	5 years
12	30 May 2009	Attempt to pervert course of justice	Attempted to conceal identity on charge of driving without valid motor driver's licence	8 months
13	30 May 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $18 each or $9 000)	3 years
14	29 May - 3 June 2009	Offer to sell prohibited drug	Offered to sell 600 MDMA pills (at $18 each or $10 800)	3.5 years
15	2 June 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $16.50 each of $8 250)	3 years
16	2 June 2009	Sold prohibited drug	Sold 1000 BZP pills (at $17.50 each or $17 500)	4 years
17	4 June 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $18 each or $9 000)	3 years
18	5 June 2009	Offer to sell prohibited drug	Offer to sell 400 MDMA pills (at $18.50 each or $7 400)	3 years
19	6 June 2009	Offer to sell prohibited drug	Offered to sell 2000 MDMA pills (at $16.50 or $17 each)	4.5 years
20	10 June 2009	Offer to sell prohibited drug	Offered to sell 500 MDMA pills (at $18.50 or $9 250)	3 years
21	6-11 June 2009	Offer to sell prohibited drug	Sold 1800 MDMA pills (for total $34 500)	4 years

22	15-20 June 2009	Offer to sell prohibited drug	Offered to supply 224 g M/A	4.5 years
23	17 June 2009	Sold prohibited drug	1000 BZP pills (see count 24)	4.5 years
24	17 June 2009	Sold prohibited drug	194.3 g M/A at 17% purity (total cost 23 & 24 $76 200)	4.5 years
25	26 June 2009	Offer to sell prohibited drug	Offered to sell 1000 MDMA pills (at $19.50 each or $19 500)	4 years
26     *	22 July 2009	Sold prohibited drug	With [the appellant], sold 56 g M/A	3 years
27	24 July 2009	Attempt to possess prohibited drug	Attempted to possess 1000 MDMA pills from NSW	4.5 years
28    *	31 July 2009	Sold prohibited drug	With [the appellant], sold 23.9 g M/A to another	3 years
29	10 August 2009	Possess prohibited drug with intent to sell/supply	Possessed 93 g MDMA	3 years
30	23 April 2010	Sold prohibited drug	Sold 58.62 g M/A at 26-37% purity to another	4 years