DAVIES v The State of Western Australia

[2015] WASCA 14

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 14

CORAM:   MAZZA JA

HALL J

HEARD:   3 NOVEMBER 2014

DELIVERED          :   22 JANUARY 2015

FILE NO/S:   CACR 147 of 2014

BETWEEN:   JASON LESLIE DAVIES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :McCANN DCJ

File No  :IND 648 of 2013

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Whether sentence infringed parity principle - Whether inadequate discount given for plea of guilty

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

MGM v The State of Western Australia [2012] WASCA 24

Rossi v The State of Western Australia [2014] WASCA 189

1. MAZZA JA:  I agree with Hall J.

2. HALL J: On 17 April 2014 the appellant was sentenced to 3 years' imprisonment for supplying a prohibited drug, namely MDMA, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The sentence was backdated to 2 September 2013 to take into account time spent in custody. An order was made that the appellant be eligible for parole. He now seeks leave to appeal against that sentence.

3. The notice of appeal was filed on 28 July 2014, some 2½ months out of time, and an extension is required.  In support of his application for an extension of time the appellant has sworn an affidavit.  He states that after being sentenced he was unable to speak to a lawyer for three weeks, did not receive the transcripts of the trial for four weeks and was unable to get access to law books in the prison library for five weeks due to prison lockdowns.  It should be noted that the appellant is self‑represented on this appeal.  Whilst the delay is not insignificant there is no reason to doubt the difficulties that the appellant has referred to.  Some leeway may be justified in the case of self‑represented appellants, particularly when they are in prison.  In the circumstances I would grant the extension of time.

4. The grounds of appeal raise two issues.  The first is that there is a disparity between the sentence imposed on the appellant and sentences imposed on his co‑offenders.  The second issue is that it is suggested that the sentencing judge failed to make an adequate reduction for the appellant's plea of guilty. 

The facts

1. Between June and August 2012 the police conducted an investigation into the activities of the appellant.  This included obtaining a warrant to lawfully intercept his telephone calls.  During this time the appellant was residing in Melbourne.  Between 28 June and 3 July 2012 the appellant made arrangements to supply an associate in Perth with a quantity of MDMA tablets.  The man to whom the tablets were to be supplied was Deon Mellican. 

2. The appellant asked a friend in Perth, Hayati Gok, to arrange for the tablets to be delivered to Mellican.  After receiving instructions from the appellant, Gok arranged for a fourth man, Alexander Rogers, to make the delivery.  Gok asked the appellant whether he needed him to collect payment for the drugs and the appellant responded that this was 'sorted'.

1. At about 9.18 am on 3 July 2012 police observed Rogers and Mellican to meet in the car park of the Rosemount Hotel in Fitzgerald Street, North Perth.  After Rogers left police arrested Mellican in possession of the MDMA tablets.  Approximately 940 tablets were seized.  Analysis established that the weight of the tablets was 246 grams with a purity of between 10% ‑ 16%.  The appellant subsequently flew to Perth and was arrested on 22 August 2012.

2. Whilst the appellant pleaded guilty to the charge he disputed some of the assertions made by the State in regard to his role.  He maintained that his role was limited to coordinating the arrangements for the supply of the drugs.   He denied having any ownership interest in the drugs.  He claimed that Gok was the principal in the drug deal and that any benefit to him only arose out of Gok being able to repay an existing debt to him if the drug deal was successful.  A trial of issues to resolve this dispute was conducted from 17 to 18 February 2014.

3. Following the trial of issues the sentencing judge made the following findings.  The pills seized from Mellican were in two parcels each of which was wrapped in cling wrap.  The appellant's DNA was found on the outer wrapping of the larger package.  His Honour concluded that at some stage the appellant had been in Perth in the presence of that package of pills.  This was consistent with text messages and telephone calls that indicated that the appellant had been in Perth on several occasions prior to July 2012.  Gok's DNA was also found on the wrapping of both parcels. 

4. On the basis of telephone intercept material, his Honour concluded that the appellant discussed quality, price and volume of the drugs with Mellican.  It was the appellant, rather than Gok, who dealt with these important matters.  The appellant exercised a degree of control over Gok including directing him as to the hour, place and to whom the drugs would be supplied.  Gok was required and expected to account for all of the proceeds.  One of the reasons for this was that Gok and the appellant had dealt in significant quantities of illicit drugs in the past and that this had resulted in Gok owing some $70,000 to the appellant.  The appellant had a significant hold over Gok and, indeed, prior to the drug deal had been putting pressure on Gok to repay the money.  His Honour concluded that the supply of drugs was planned and organised by the appellant for his own commercial benefit (ts 334 ‑ 343).

Personal circumstances

1. At the time of sentencing the appellant was 41 years old.  He was born in Western Australia, but at the time of the offending was living in Melbourne with his wife.  He had no relevant prior criminal record, though the significance of this was diminished by the fact that the sentencing judge found that this conduct was not an aberration but formed part of a course of drug dealing.

2. A number of positive character references were submitted on behalf of the appellant.  They included references from his brother, wife and mother.  They spoke of him as being hardworking, kind and loving.  They also referred to the appellant suffering significant financial stress at around the time of the offending.  There was reference to the appellant having loaned money to Gok which was not repaid.  As the sentencing judge noted, it would not appear from these references that the appellant had been honest with his family in regard to this debt having arisen in a drug dealing context.

Sentencing of the co‑offenders

1. The co‑offenders were sentenced at different times by different judges.  Rogers was sentenced on 15 March 2013, Mellican on 14 October 2013 and Gok on 20 June 2014.  The appellant was sentenced on 17 April 2014.  That is, after Rogers and Mellican but before Gok.

2. Rogers was arrested on 23 August 2012 when police executed a search warrant at his home.  He pleaded guilty at the first reasonable opportunity and agreed to cooperate with the police.  He provided a complete account of his own role and of that of Mellican and Gok.  He had had no involvement with the appellant.  He agreed to give evidence against Mellican and Gok and provided witness statements to the police.  The sentencing judge was satisfied that those statements provided potentially valuable evidence, particularly in respect of Gok.  Rogers subsequently gave evidence in accordance with his statements at Gok's trial. 

3. The sentencing judge found that Rogers' role was limited to delivering the drugs to Mellican on 3 July 2012.  He did not derive any commercial benefit from this and did it as a favour to his friend Gok.  Rogers was aged 26 at the time and had no relevant prior criminal history, though he did admit to being a user of illicit drugs.  He had undertaken counselling and written a letter to the court that the sentencing judge described as being 'unusually insightful'.  Rogers was sentenced to 2 years' imprisonment suspended for 2 years with supervision and programme conditions.

4. Mellican was arrested on 3 July 2012.  After his arrest police took him to his home in Victoria Park where a search warrant was executed.  During that search police found a further 33 grams of ecstasy tablets, 350 LSD tabs and 33 cannabis plants.  He admitted that these drugs and plants were his and he was charged with further offences in respect of them. 

5. Mellican entered pleas of guilty at a relatively early stage in the Magistrates Court, after he had received the committal papers but before being committed for sentence. In these circumstances the sentencing judge considered that the appropriate discount pursuant to s 9AA of the Sentencing Act 1995 (WA) was 20%. Mellican had been a user of illicit drugs for a significant period and had ended up in debt. He did not know the precise quantity of MDMA that he was to receive, but was aware that if he distributed the drugs $10,000 would be deducted from his debt. He was aged 37 and had significant health problems that required surgery and medication. He was in long term employment and was the subject of favourable character references.

6. Mellican was sentenced to 2 years and 9 months' imprisonment on count 1 (the possession of the MDMA), 12 months' imprisonment concurrent on count 2 (the smaller quantity of MDMA), 2 years' imprisonment cumulative on count 3 (possession of the LSD) and 12 months' imprisonment concurrent on count 4 (the cultivation of cannabis).  The total effective sentence was one of 4 years and 9 months' imprisonment.  The relevant comparator is the sentence of 2 years and 9 months imposed on count 1 for possession of the 940 tablets of MDMA.

7. Gok pleaded not guilty and went to trial between 10 and 18 March 2014.  He was found guilty after trial on one count of supplying MDMA.  The sentencing judge found that Gok had a very significant role in the drug transaction, albeit that the appellant was higher in the hierarchy.  Gok was aged 38 at the time of sentencing and had a significant criminal record.  It included previous drug related offences. 

8. The sentencing judge found that Gok had been subjected to threats by the appellant but that he was not unduly intimidated by them.  He had been diagnosed with bipolar effective disorder which was likely to have caused him to be impulsive and exercise poor judgment.  He also was a significant user of illicit drugs.  He was sentenced on the basis that he played a critical role in holding the drugs and then arranging for them to be delivered to Mellican but that he would not have received any benefit other than a reduction of an outstanding debt to the appellant.  He was sentenced to 3 years' imprisonment.

Sentencing remarks

1. The sentencing judge stated that the appellant was part of a three person transaction (presumably discounting Rogers) involving a commercial supply of drugs to Mellican, who was an active mid‑level commercial drug dealer.  His Honour said that this was not a one off error of judgment by the appellant.  Rather the appellant's involvement arose out of his desire to recoup monies owed to him by Gok in respect of previous drug dealings.

2. His Honour said that the appellant made threats to Gok in relation to the outstanding debts and that these threats 'became quite dire at times' (ts 950).  He said that this showed a degree of desperation on the part of the appellant.  The appellant's business and personal relationships were going badly and he was unable to pay his rent. 

3. His Honour did not accept that Mellican could be regarded as lower in the drug dealing hierarchy.  He said he would treat Mellican and the appellant as equals, though when looking at their broader involvement he said that 'there is no doubt that Mr Mellican was a far more dangerous criminal than Mr Davies' (ts 951).

4. The appellant pleaded guilty two working days before his joint trial with Gok was due to commence (Gok's trial was subsequently adjourned).  In sentencing submissions the appellant's counsel said that the delay was explained by the prosecution not providing all the relevant materials, in particular all of the intercept material and the final DNA report, until shortly before the trial.  In fact copies of all of the recorded telephone calls were provided as part of the committal brief, as was a preliminary DNA report.  The final DNA report merely confirmed the preliminary report.  His Honour found that the appellant had enough information by the committal stage to know what evidence there was against him.  There was no reasonable explanation for waiting until two days before the trial to plead guilty.  In the circumstances his Honour found that a discount of 10% was appropriate.

5. His Honour referred to the parity principle and the sentences imposed on Rogers and Mellican.  Gok had not been sentenced at that stage.  His Honour considered that the sentence of 2 years and 9 months imposed on Mellican for the MDMA offence that related to the same matter was the most reliable guide.  He noted that that sentence was a result of a 20% discount for pleading guilty.  He then said:

   I think [the appellant's] starting point should be slightly higher than Mr Mellican.  I don't fully endorse the State's submission which suggests that [the appellant] was more senior simply because he was the person who supplied the drugs but [the appellant] took part for a cold blooded commercial reason.  He pressed it hard and he was pressing Mr Gok hard and if one looks through the evidence one can see the firm guiding hand of [the appellant] determinedly pushing through a transaction (ts 954).

Grounds 1 and 2 - parity

1. In MGM v The State of Western Australia [2012] WASCA 24 Mazza JA made the following observations about the parity principle:

   The parity principle is founded on the norm of equal justice:  Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

   'It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).'

   See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).

   The concept of equal justice does not equal mathematical precision.  What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done.  The fact that an appellant feels a sense of grievance is not determinative:  Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).

   Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders.  This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents:  D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J) [41] - [43].

2. Any comparison of the sentence imposed on the appellant with those imposed on the co‑offenders needs to take into account their different roles and different mitigating circumstances.  Given the findings made by the sentencing judge on the trial of issues, his conclusion that the appellant's level of culpability was comparable with that of Mellican had a sound basis.  However, Mellican's plea of guilty was entered at a very much earlier stage than that of the appellant.  This is reflected in the differing discounts, 20% for Mellican and 10% for the appellant.  In some respects the appellant was fortunate to receive the discount that he did given the very late stage at which his plea was entered.  When those differing discounts are taken into account the starting points for Mellican and the appellant must have been very close if not identical.  Their personal circumstances were of little moment, as this is a factor that has relatively little weight in offences of this type.  None of this supports any argument that there is disparity in respect of Mellican.

3. As regards Gok, his role, whilst significant, was less than that of the appellant.  He had some favourable personal circumstances, in particular mental health issues, but this was offset by his prior criminal record.  In any event, as I have noted, personal circumstances are of less significance in respect of offences of this nature.  All things being equal it would be expected that Gok would receive a lower sentence than that imposed on the appellant.  In fact he received the same sentence of 3 years, but this is accounted for by the fact that he went to trial and was not entitled to a discount for pleading guilty.  Given that the appellant only received a 10% discount for his plea of guilty, the sentence imposed on Gok provides no basis for a justifiable sense of grievance.

4. As regards Rogers, his role was limited to transporting the drugs on 3 July 2012.  It was accepted that he did so as a favour and without promise of payment.  On any view his role was very significantly less than that of the appellant.  Whilst there was some evidence to suggest that he had previously been involved in using illicit drugs, and indeed that he had purchased some from Gok, there was nothing to suggest that his role in respect of this drug deal was greater than has been suggested.  The fact that he offered substantial cooperation to the prosecution, which was assessed as being of significant value and that he gave evidence against Gok at his trial, further distinguished him from the appellant.  When these factors are taken into account the sentence imposed upon him could not be viewed as having an inappropriate disparity with that of the appellant.

5. The differences between the sentences imposed on the appellant and the co‑offenders were justified by their different circumstances.  Those differences are not such as to give rise to a justifiable sense of grievance.  These grounds of appeal do not have a reasonable prospect of success and leave in respect of them should be refused.

Ground 3 - plea of guilty

1. The appellant claims that any assessment of whether his plea of guilty was entered at the first reasonable opportunity needs to take into account his access to legal advice.  He says that he was largely unrepresented from a date shortly after his arrest until Legal Aid was able to provide representation for him.  The implication is that without legal advice he could not make an assessment of the prosecution case and his prospects if he went to trial.  In his written submissions he states that he agreed with his lawyer a basis of pleading guilty many months before the trial date.

2. The appellant also claims that there was a failure by the State to disclose a final DNA report and the full extent of the telephone intercept material.  In submissions on the appeal he states that 'relevant telephone material' was not disclosed until December 2013.  However this claim was made in the sentence proceedings and not accepted by the sentencing judge.  His Honour found that the appellant had the necessary material to assess the strength of the case against him at an early stage. 

1. The approach to be taken in determining whether a plea has been entered at the first reasonable opportunity was considered in Rossi v The State of Western Australia [2014] WASCA 189. In that case McLure P, with whom Mazza JA and I agreed, said that the court must take into account an indication by an accused that he or she would plead guilty. Such an indication should be unequivocal not provisional or conditional. The power to give the maximum discount is not intended to be absolute or to reward hasty or unreasonable pleas of guilty. The first reasonable opportunity for an accused will often be after the statutory requirements to provide a written statement of facts, a notice of the existence of any confessional material and a notice as to whether the accused has a criminal record: s 35 Criminal Procedure Act 2004 (WA). Her Honour also recognised that s 39 of the Criminal Procedure Act provides that, before an accused person enters a plea to an offence, they are entitled to know and understand the charge in the prosecution notice and to have had time to consider the notice and seek legal advice about it. However, an accused 'cannot sit back and fail to take the necessary steps to put himself in a position to plead' [69].

2. In Rossi the appellant claimed that he had no recollection of the telephone calls that constituted the critical evidence against him.  In those circumstances it was submitted that he did not know that he was guilty of the offence until he had an opportunity to see the evidence.  However he had not taken opportunities to obtain that evidence at an early stage.  There were opportunities for him to have done so and in those circumstances he could not claim that he had entered his plea of guilty at the first reasonable opportunity.

3. In this case the assertion of the appellant's counsel that not all of the relevant telephone intercepts had been provided until shortly before the trial date was contested by the State.  The State said the discs containing copies of recordings of all relevant calls had been provided as part of the committal brief.  A preliminary DNA report had also been included in the committal brief.  The onus was on the appellant to prove on the balance of probabilities that these claims were wrong and that adequate disclosure had not been made.  He did not do so.  In these circumstances the finding by the trial judge that the appellant possessed sufficient information to determine whether he wished to enter a plea of guilty when he received the committal brief was well‑founded. 

4. Unlike Rossi, this was not a case where the appellant suggested that he had no recollection of what he had said or done and did not know prior to seeing the evidence whether he was guilty of the offence as charged.  The fact that he was without legal advice might have explained some but not all of the delay.  He had legal representation from at least 20 September 2013.  Even taking the most beneficial view of the circumstances it is difficult to see how the appellant could have deserved more than the 10% discount that the sentencing judge granted him.

5. In my view this ground of appeal is without substance and leave in respect of it should be refused.

Conclusion

1. I would make the following orders:

   (1)Extension of time granted.

   (2)Leave to appeal refused.

   (3)Appeal dismissed.