Downes v The State of Western Australia - [2005] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DOWNES -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 21

CORAM: MALCOLM CJ
ROBERTS-SMITH JA
MCLURE JA

HEARD: 14 FEBRUARY 2005

DELIVERED : 14 FEBRUARY 2005

FILE NO/S: CCA 122 of 2004

BETWEEN: MATTHEW GREGORY DOWNES
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND KAL 46 of 2002

Catchwords:

Criminal law - Sentence - Appeal - One offence of possessing methylamphetamine with intent to sell or supply - Cooffender successfully appealed - Sentencing Judge found cooffenders to be equally culpable - Different personal circumstances

Criminal law and procedure - Appeal - Appeal conceded by the State - Not by itself determinative

Legislation:

Nil

Result:

Application for extension of time granted
Application for leave to appeal allowed
Appeal allowed

Category: A

Representation:

Counsel:

Applicant: Ms E A Hamilton
Respondent: Mr L P Rayney & Ms S Markham

Solicitors:

Applicant: Legal Aid Western Australia
Respondent: State Director of Public Prosecutions

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

Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Schlenka v The Queen [2004] WASCA 142

Case(s) also cited:

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621

ROBERTS-SMITH JA: The State concedes that this application for leave to appeal should be granted and the appeal should be allowed.
On an appeal against sentence, however, it is still for this Court to satisfy itself that a different sentence should have been passed so the concession of the prosecution in a case of this kind is not of itself determinative. Unless the Court is satisfied that a different sentence ought to have been passed, the Court is required to dismiss the appeal; s 689(3) of the Criminal Code.
The application arises out of the following circumstances, briefly described.
On 8 October 2003 the applicant and his co‑accused were found guilty in the District Court at Kalgoorlie of one count of possessing a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another. On 25 November 2003 each of the applicant and his co‑offender, Schlenka, were sentenced by her Honour Judge Deane to a term of imprisonment of 2 years 4 months with eligibility for parole. Her Honour ordered that the sentence be backdated to commence on 8 October 2003.
The applicant obtained legal advice initially and was apparently told there were no arguable grounds of appeal. Nonetheless, his co‑offender, Schlenka, did appeal and that appeal was heard on 21 June 2004. On 30 June that year the Court delivered its reasons for judgment and Schlenka's sentence was reduced to one of 1 year 8 months, again dating from 8 October 2003 and with an order that he be eligible for parole (Schlenka v The Queen [2004] WASCA 142).
By notice dated 20 but not filed until 26 July 2004 the applicant sought an extension of time for leave to appeal. The sole ground of appeal on the notice of appeal and the notice of application for leave to appeal filed the same day was that the learned sentencing Judge erred in her sentencing discretion by failing to give due weight to the mitigating circumstances surrounding the applicant. That was subsequently changed following the appearance of the applicant before a motions Judge so that the ground of appeal presently reads:
"The applicant's co‑accused, Paul Ross Schlenka, who was initially sentenced to 28 months' imprisonment, had that sentence reduced … to a sentence of 20 months. By reason of this fact there is a lack of parity between the sentences imposed on Schlenka and the applicant, both of whom were found by the learned trial Judge to be equally culpable."
The delay in filing the notice of application for leave to appeal is understandable. Whether or not to grant the extension will depend upon whether there would be a miscarriage of justice if the application were not granted, which in turn depends upon whether or not the appeal would be allowed.
The ground of appeal as presently framed raises what has been described as the parity principle. That has been explained by the High Court in Postiglione v The Queen (1997) 189 CLR 295 where at 301 Dawson and Gaudron JJ pointed out that it is based upon the notion of equal justice which requires that like should be treated alike, although if there are relevant differences then allowance must be made for them. Their Honours said in relation to that:
"In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
The proposition is, as established by authority, that where there is a differential in sentencing between co‑offenders which is not explained by either the circumstances of their involvement in the particular offence or matters personal to the individual offenders, then a significant degree of difference gives rise to a justifiable sense of grievance and that will be a ground for adjusting the sentence (see Lowe v The Queen (1984) 154 CLR 606 at page 610 per Gibbs CJ).
Given the finding of the learned sentencing Judge that the applicant and his co‑offender were equally criminally culpable in committing this offence, the question is whether there is anything in their personal circumstances or background which would justify the imposition of different sentences. Their backgrounds are of course not identical but they are similar and would not require nor justify different treatment in sentencing.
It is apparent from the reasons of the Court of Criminal Appeal in Schlenka's case that the critical feature which called for a reduction in his sentence was the substantial constructive and sustained effort he had made following his arrest to demonstrate his successful rehabilitation.
At [12] of the judgment the Court referred to the argument which was then being advanced before it. The Court pointed out that the argument was that the sentence was manifestly excessive, having regard to the rather unusual circumstances of the demonstration to the sentencing Judge that the applicant had, by the time of sentence, shown that he had successfully rehabilitated himself, that he had put behind him what had been an involvement with methylamphetamine of a limited duration and that he had rebuilt a law-abiding way of life involving a stable personal relationship and stable employment.
That was founded on circumstances described by the Court in the following way at [5] to [7] inclusive:
"5It appears to have been accepted that in retrospect the applicant was genuinely pleased that he was apprehended. He had acquired the habit to which we have referred when he was diverted from a stable lifestyle and employment by associating with a group of people who used the drug for recreational purposes. For a period of some months he engaged in what was described as a destructive lifestyle. Immediately following the arrest and the charge of this offence, when the applicant was released on bail, he voluntarily undertook a two months residential course of rehabilitation at a place called Hannick House, an institution run under the auspices of St Patrick's Catholic Church in Fremantle. He completed the course successfully, undertaking counselling sessions twice weekly. He remained drug free during this period.
6Also during this period, the applicant, who works as a boat fitter, obtained employment with a company called Shine Fisheries in Fremantle, employment described by a principal of that company as that of a casual labourer. We gathered that the work is seasonal and so the applicant is presented with periods of unemployment, but subject to that he held that employment while he remained at liberty on bail for the 2 years leading up to his trial.
7Again, shortly after completing the course at Hannick House, the applicant met a young woman with whom he formed a relationship and with whom he lived since April 2002. This young woman, herself in full-time employment, wrote to the Court that the applicant told her of the offence with which he had been charged and his determination to cease the use of amphetamines, a determination which she said he had made good. She said in her letter, honestly, that the applicant and she used only small amounts of cannabis 'on a strictly recreational basis'."
It is important to note that the Court expressed the view at [14] of that judgment that the learned sentencing Judge's sentence would ordinarily be regarded as being within the range of a proper exercise of sentencing discretion.
The Court went on to say at [14] to [15] that Schlenka's was a particularly unusual case:
"14… The applicant was a person of prior good character. He had, for a short period, fallen into a lifestyle which exposed him to the regular use of amphetamines. He took that up, and soon acquired a substantial habit. Upon his arrest, of his own volition, he immediately set about remedying his fall into serious unlawful behaviour. He undertook that task with some determination and, upon the evidence provided to the sentencing Judge, he succeeded in rebuilding his life. He deserved substantial credit for that effort.
15Although her Honour was right to have regard to the seriousness of the offence the applicant had committed, she was also right to observe that that did not mean that matters of mitigation were to be overlooked or to be regarded as being without weight. However, in our opinion, her Honour simply gave too little weight to such matters. While imprisonment to be immediately served was, we think, the appropriate disposition, we are of the view that a shorter term would adequately serve the principle of general deterrence. Particularly is that so, in our view, when regard is had to the fact that by the time the applicant came to be sentenced the requirement for particular deterrence was much reduced."
It was said on behalf of the applicant that his circumstances are extremely similar to those of his co‑offender and that he had also undertaken drug rehabilitation, albeit of an informal kind, and had always had a very good employment history and no previous convictions.
The same argument is advanced before us on this application. It is essentially put that the applicant has demonstrated his desire and determination for rehabilitation by maintaining employment since the commission of the offence.
Her Honour the learned sentencing Judge observed there were aspects of the applicant's situation since his arrest in September 2001 which gave rise to concern. They were largely drawn from observations made in the pre‑sentence report which was before her Honour. For example, the author of the report under the heading "Substance Use" at p 4 of the pre‑sentence report noted that the applicant had reported that since the commission of the offence he had used amphetamine on a few occasions and did not believe his level of use to be problematic. He stated that he intended to continue using amphetamine on a recreational basis.
The author refers to the applicant reporting the use of other illicit substances and then made the further observation that he had told her that his level of use had reduced markedly over the period of two years and that he only used ecstasy on an occasional basis and did not believe it to be problematic. She said he estimated that he had used LSD on approximately five occasions and reported availability as the primary deterrent. Under the heading "Summary" the author wrote:
"… it is clearly apparent that Mr Downes is strongly attracted to the 'rave subculture' and minimises the harmful effects of occasional use of these substances when attending such occasions. Furthermore, Mr Downes stated that he intends to continue using cannabis and does not believe his level of use to be problematic. Mr Downes is therefore assessed as pre‑contemplative in charging his drug using behaviour as he is not motivated to change his current patterns of use and displayed resistance toward engaging in substance abuse counselling at this point in time."
She added:
"Mr Downes is assessed as presenting a medium risk of reoffending and the primary factor that contributes to that risk was his decision to continue using illicit substances."
I have already mentioned briefly what Ms Hamilton submitted both to the learned sentencing Judge and to this Court in relation to that. Her Honour indeed made some reference to it in her sentencing remarks at AB 37 and 38 where she noted that it was of concern that the applicant appeared to have a distinct psychological dependence on cannabis and that it did not appear likely that he was minded to abstain from it completely in the near future.
At AB 38 her Honour said it was of considerable concern that the applicant appeared to lack a degree of insight into his problematic drug use and in fact that he had said to the writer of the pre‑sentence report that he did not believe his level of use to be problematic. Her Honour then said:
"One has to have some doubts about the genuineness of your remorse and the level of your insight because you stated to the writer of the pre‑sentence report that you intend to continue to use amphetamine on a recreational basis."
It is true, as Ms Hamilton points out, that her Honour then referred to the applicant's lack of maturity being evidenced by the fact that he remains strongly attracted to the rave subculture and tended to minimise the harmful effects of the use of illicit substances. She referred further to the observations in the Summary portion of the pre‑sentence report to which I have already referred.
The circumstances which the Court of Criminal Appeal regarded as critical as militating in favour of a reduction in Schlenka's sentence from a term which would otherwise have been entirely appropriate in my view simply do not apply to this applicant. Indeed, not only was he unable to demonstrate positive significant efforts to give up his use of drugs and to rehabilitate himself, he gave indications that he did not regard it as a problem and that he had the intention of continuing to use cannabis and amphetamines.
I have carefully considered what Ms Hamilton put to the learned sentencing Judge and has put to this Court about the applicant's position, it being said essentially that he has demonstrated his rehabilitation by continued employment. Such continued employment is a factor very much in his favour but to my mind it is not such of itself to demonstrate that degree of commitment to rehabilitation which Schlenka was able to demonstrate.
By contrast with Schlenka, therefore, of whom it could be said the requirement for particular deterrence was much reduced, it was apparent that in the applicant's case there was very much a requirement for the sentence to reflect the need to operate as a particular deterrent to him. The reduction in Schlenka's sentence was therefore made by the Court of

Criminal Appeal having regard to the particular unusual personal circumstances which applied to him but which, in my view, do not apply to the applicant.

If that were all to this application I would have thought it must be refused, but there is more.
The first factor is that the State concedes the circumstances as they stand following Schlenka's successful appeal do give rise to a justifiable sense of grievance on this applicant's part.
As I have said at the outset, that by itself is certainly not determinative and the Court must satisfy itself that the concession is properly made and that a different sentence should have been passed. The critical factor, in my view, is that the learned sentencing Judge, having expressly noted the relatively good antecedents of both Schlenka and the applicant and having found both were equally culpable in the criminal enterprise, concluded that the same sentence should be imposed in respect of each.
It is clear that her Honour regarded the degree of criminal culpability as being the primary determinant of sentence. That being so, it follows that the applicant would be justified in feeling aggrieved that he is now confronting a substantially greater sentence than Schlenka when the sentencing Judge's view was that their sentences should be the same. In those circumstances there is an appearance that justice has not been done.
In my view it is in that way, in this case, that the principle of parity requires the applicant's sentence to be set aside and one of one year eight months substituted to bring it into line with that which now stands in respect of Schlenka. I would accordingly grant the extension of time, grant leave to appeal, set aside the sentence of 2 years 4 months and substitute for that a sentence of 1 year 8 months backdated to 8 October 2003 and order that the applicant be eligible for parole.
MALCOLM CJ: I agree with the reasons which have been stated by Roberts‑Smith JA and with the orders which he proposes. I would only add that I have had some misgivings, having regard to the apparent reluctance of the applicant to commit himself to abstaining from the future use of drugs.
That is a matter of some concern and it clearly would be taken into account against the applicant should he be convicted of any future drug offence. The Court having shown considerable lenience on this occasion,

it should be taken into account by the applicant that he would expect no leniency in the future if he were convicted of any further drug offences. Otherwise, I agree with the orders which have been proposed.

MCLURE JA: I agree with the orders proposed by Roberts‑Smith JA for the reasons that he gives.
MALCOLM CJ: The order of the Court will be that the extension of time be granted, leave to appeal is granted, the appeal allowed and the sentences varied as indicated by Roberts‑Smith JA.