Direen v The State of Western Australia

[2010] WASCA 211

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DIREEN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 211

CORAM:   McLURE P

MAZZA J

HEARD:   15 OCTOBER 2010

DELIVERED          :   29 OCTOBER 2010

FILE NO/S:   CACR 96 of 2010

BETWEEN:   COREY LAWRENCE DIREEN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :IND 81 of 2010

Catchwords:

Criminal law - Sentence - Whether breach of parity principle - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

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

1. McLURE P: The appellant seeks leave to appeal, and if leave is granted, to appeal against his total sentence of 3 years 6 months' imprisonment for two counts of selling methylamphetamine to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act).

2. Count 1 concerned approximately 13.7 g of methylamphetamine at 13% purity.  Count 2 involved 52.8 g of methylamphetamine at 26% purity.  The drugs were sold to the appellant's co‑offender, Leslie Jade Grantham.

3. Grantham was convicted of two counts of selling methylamphetamine (obtained from the appellant) to another (counts 1 and 2) and one count of possession of methylamphetamine (count 3).  The drugs the subject of count 3 were received as payment in respect of the drugs the subject of count 2.  Thus, the total quantity of drugs the subject of counts 1, 2 and 3 was the same as the total quantity of drugs for which the appellant was convicted. 

4. Grantham was sentenced by Keane DCJ on 9 July 2009 to a total sentence of 2 years 6 months' imprisonment.  The sole ground of appeal is that the total sentence imposed on the appellant offended the parity principle.

5. Equal justice requires that, as between co‑offenders, there should not be a marked disparity in sentence which gives rise to a justifiable sense of grievance:  Lowe v The Queen (1984) 154 CLR 606, 617 ‑ 618. However, if the difference in sentence is a reasonable consequence of factors which support different treatment as between co‑offenders, whether because of different degrees of culpability or differences in their circumstances, there can be no justifiable sentence of grievance.

6. The appellant was aged 27 at the time of sentence.  He had a limited criminal history and a supportive family.  The appellant pleaded guilty to the offences on the morning the trial was due to start.  The sentencing judge formed an adverse view of the appellant's credibility, concluding that the offences were not isolated events and were conducted for profit.  A search of the appellant's premises located, inter alia, $17,250 in cash, drug paraphernalia and a 'tick list' showing amounts of money owed and the initials of those who owed it.

7. The sentencing judge found that the appellant's culpability was greater than that of Grantham because the appellant was one step closer to the source of the drugs.  He also concluded there was no genuine remorse in the sense of real contrition.

1. Grantham was older than the appellant (36 years) and had a prior record of offending, including a conviction in 2003 for possession of ecstasy with intent to sell or supply.  However, Grantham had entered fast‑track pleas of guilty, cooperated with police, taken significant steps towards rehabilitation and was not motivated by commercial gain but to support his drug habit.

2. Parity considerations aside, the judge sentencing the appellant would have imposed a total sentence of 4 years and 6 months.  He reduced that to 3 years and 6 months because of the total sentence imposed on Grantham.

3. The difference in total sentence imposed on the appellant and Grantham (1 year) is a reasonable consequence after weighing all the sentencing factors attributable to each offender.  The difference in their respective prior records is more than offset by Grantham's lesser culpability, fast‑track plea of guilty, cooperation, remorse and rehabilitative steps.  The appellant can have no justifiable sentence of grievance when regard is had to all relevant differences in the sentencing considerations.

4. I would refuse leave to appeal and dismiss the appeal.

5. MAZZA J:  I agree with McLure P.