Dutton v Tasmania
[2007] TASSC 66
•27 August 2007
[2007] TASSC 66
CITATION: Dutton v Tasmania [2007] TASSC 66
PARTIES: DUTTON, Karen Penelope
v
TASMANIA (State of)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 294/2007
DELIVERED ON: 27 August 2007
DELIVERED AT: Hobart
HEARING DATE: 14 August 2007
JUDGMENT OF: Underwood CJ, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Grounds for interference – Disparity – Co-offenders.
Lowe v R (1964) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; Riley v R [1986] Tas R 199, applied.
Warner, Sentencing in Tasmania, 2nd ed (2002).
Aust Dig Criminal Law [1005]
REPRESENTATION:
Counsel:
Appellant: S C Chopping
Respondent: K Brown
Solicitors:
Appellant: Steven Chopping
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 66
Number of paragraphs: 20
Serial No 66/2007
File No 294/2007
KAREN PENELOPE DUTTON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
BLOW J
TENNENT J
27 August 2007
Order of the Court
That the appeal against sentence be dismissed.
Serial No 66/2007
File No 294/2007
KAREN PENELOPE DUTTON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
27 August 2007
I have had the advantage of reading in draft, the reasons for judgment of Tennent J, and agree with the substance of them and the order that she proposes should be made on this appeal.
Although charged by separate indictments, both the appellant and her partner, Joshua Steane, were charged with the same crime. Accordingly, the following proposition articulated by Brennan J (as he then was) in Lowe v R (1964) 154 CLR 606 at 617, is applicable:
"The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case."
This proposition was endorsed by the High Court in the later decision of Postiglione v R (1997) 189 CLR 295. At 301, Dawson and Gaudron JJ said:
"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. On some occasions, different sentences may indicate that one or other of them is infected with error Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice."
The nub of the appellant's case is that she has a justifiable grievance because there is not due proportion between her sentence and that imposed upon her partner. Although she was not, as Tennent J says, the entrepreneur of the trafficking, she was a completely willing participant throughout the whole of the relevant period. She obtained direct and indirect benefits from the unlawful business. Importantly, she had a prior conviction for selling cannabis. Her partner was described by the learned judge who sentenced him as "a young first offender".
Having regard to the circumstances of the crime and the circumstances of the appellant and her partner set out in the reasons for judgment of Tennent J, the appellant cannot justifiably claim that there is no due proportion between her sentence and the one imposed upon her co-offender.
File No 294/2007
KAREN PENELOPE DUTTON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
27 August 2007
In my view this appeal should be dismissed, for the reasons stated by Tennent J.
File No 294/2007
KAREN PENELOPE DUTTON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
27 August 2007
The appellant seeks a review of her sentence of 15 months' imprisonment, with eligibility for parole after serving half that sentence, for trafficking in ecstasy. There are two grounds of appeal. The first is that the sentence was, in all the circumstances, manifestly excessive, and the second dealt with issues of parity as between the sentence imposed on the appellant and that imposed on her male partner, Joshua Steane. At the hearing of the appeal, counsel for the appellant conceded that, standing alone, the ground asserting the sentence was manifestly excessive would be difficult to maintain. It became apparent the substantive issue in the appeal was that of parity of sentence.
Steane pleaded guilty to trafficking and was sentenced to serve a period of two years' imprisonment. Six months of the sentence were suspended and it was ordered he be eligible for parole after serving nine months of his sentence. A comparison of the sentences of the appellant and Steane reveals that, in terms of the head sentences, there are nine months between the two sentences; in terms of actual custodial sentences, there are three months between the two; and in terms of the likely time to be served after the application of the non-parole periods, there are one and a half months' difference between the two sentences.
Accepting Steane's sentence as appropriate, counsel for the appellant submitted that the sentence imposed on the appellant by the learned sentencing judge did not adequately reflect the differences in the circumstances of the two offenders and their involvement in the offending.
The appellant also pleaded guilty. She did so a little later than Steane. However, in my view, nothing turns on that. The charges were laid after Steane was intercepted by police with a large quantity of tablets in his possession. The indictment alleged trafficking over a period of a year until December 2006. Both the appellant and Steane made admissions to police when interviewed. Without those admissions the cases against each may not have been able to be sustained to the extent they were. Both accused were given credit for their co-operation with police. It was not possible on the facts before us to make any determination that one may have co-operated to a greater degree than the other.
The appellant was 21 at the time of sentence. Steane was a similar age. He had no prior convictions. The appellant had convictions for sale, use and possession of cannabis on one complaint in 2004 in respect of which she was fined. Steane was an ecstasy user who, when he began selling, had a drug habit costing him about $300 per week. He began selling initially to fund his own habit. The business grew until he was dealing as a wholesaler selling to other dealers. It was calculated he received about $204,000 from his sales.
The appellant was sentenced on the basis she was introduced to the use of ecstasy by Steane, based on what both counsel said at the sentencing hearing. It became apparent on the hearing of the appeal that this was contrary to the appellant's admissions to police. However, counsel for the Crown did not become alert to the misinformation at the time of sentencing and, with respect, it is too late to rely upon the appellant's admission to police now.
The appellant, during the period of the trafficking, knew what Steane was doing. She used some of the tablets he acquired, as did he. She also sold some tablets to close friends independently of the selling Steane was doing. She helped Steane count tablets for delivery on at least 10 to 15 occasions. She also assisted with some deliveries, but not as much towards the end because she was working. She helped Steane with calculations of costs and money owed. Steane handled the money gained from the sales which he accumulated. The appellant planned to use some to get a tooth fixed and the pair also planned a holiday. They also used to get a lot of takeaways.
In mitigation, the learned sentencing judge was told the appellant was employed as a café attendant at K & D. She had had a difficult childhood and became her mother's carer as a result of her mother's ill health. Her mother died in March 2003. The appellant became depressed, although she felt emotionally stable enough to be able to visit her mother's final resting place on the fourth anniversary of her death. She had obtained some hospitality industry qualifications. At the time of her offending, her employment was part time, and she also received Centrelink benefits. Her counsel submitted she was effectively sucked into the offending vortex by her partner.
The learned sentencing judge took the view the appellant's actions were not impetuous. She had been dealt with before for selling drugs, albeit at a minor level, and knew what she was doing. He accepted she was not the prime mover, but that she was a willing participant in the exercise and benefited from it directly and indirectly. He took into account her age, her good employment history and imposed sentence taking the view that there was no option but to impose a custodial sentence.
In her text Sentencing in Tasmania, 2nd ed, the learned author Professor Warner summarised the principles relating to issues of parity. At 115 she said:
"The parity principle:
It is a general principle that 'where other things are equal persons concerned in the same crime should receive the same punishment, and that where other things are not equal a due discrimination should be made between them' (Tiddy [1969] SASR 575; Kite (1971) 2 SASR 94 at 95) (per Neasey J in Prestage [1979] Tas R 270 at 272 – 273).
It follows that included among the relevant circumstances in imposing sentence is any sentence that is passed upon a co-offender. The rationale of the requirement to consider parity with sentences imposed upon co-offenders is based upon two grounds. First, that the offender should not be left with a justifiable sense of grievance and, secondly, the appearance to objective bystanders of injustice by unfair and unequal penalties should be avoided. In Riley [1986] Tas R 199 at 203, Green CJ said:
The obligation to have regard to the sentence imposed upon a co-offender thus does not rest merely upon the need to avoid imposing a sentence which could engender a feeling of grievance or resentment in the person being sentenced, but is a corollary of the fundamental postulate of the common law that like cases should be treated alike and is converse and is a factor which must accordingly be given substantial weight in the sentencing process.
Therefore, an appellate court will interfere where there is an unjustified and marked disparity between sentences imposed upon co-offenders whether by the same or different courts, even if the sentence under appeal was appropriate when considered alone. Similarly, intervention will occur when respective conduct and/or antecedents warrant disparate sentences imposed upon co-offenders, but similar sentences are imposed. The power of the Court of Criminal Appeal, on an appeal against sentence, to quash the sentence imposed and to substitute another 'if it is of opinion that some other sentence whether more or less severe, is warranted in law and should have been passed' is wide enough to empower the court to reduce a sentence not in itself manifestly excessive in order to avoid an unjustified marked disparity."
The sentences imposed on the appellant and Steane were different. On any basis the period ordered to be served by the appellant was less than that to be served by Steane. Counsel for the appellant does not suggest Steane's sentence is other than an appropriate one, but submits that the difference between the two should have been greater. The main factor relied upon by counsel for the appellant is what he describes as her lesser role in the offending. He described her as being "towed along" by Steane. He submitted she derived only indirect profit from Steane's venture and had a generally much lesser role in what was a commercial venture. The learned sentencing judge clearly took the view that the appellant's role was much more than just incidental in the sense of someone drawn reluctantly into their partner's activities to a minor degree. He noted she was a willing participant. There was nothing before him to suggest otherwise. She took an active part in all levels of the venture over a relatively long period. There was no suggestion she thought up the scheme or had regular contact with suppliers. Clearly Steane was what could be described as the entrepreneur of the two.
However, she embraced the venture, she took advantage of the availability of the drugs to use herself and to sell to her friends. She had previously been dealt with by the courts for selling cannabis and could not have been unaware the ecstasy was considered a more "serious" drug and that consequences would be more severe if she and Steane were caught. She anticipated using monies obtained for her own dental work and holidays. Her role was not the same as that of Steane. However, trafficking in ecstasy is a serious crime, this enterprise was a significant commercial one, and she played an active part. Any sentence had to be significant. The learned sentencing judge took into account her plea of guilty, her co-operation, her age and employment. There is no suggestion he failed to take into account any other particular relevant matter.
It may be that a different judge may have imposed a sentence on the appellant which was less than that the learned sentencing judge imposed. However, that in itself is not a basis for appellate intervention. Any difference between the sentence imposed on the appellant and Steane must be justified on the facts. In this case counsel's arguments for a greater difference were largely based on an interpretation of the facts with which the learned sentencing judge did not agree, namely that there was a significant difference in the level of culpability of the two offenders.
I am not satisfied that either the sentence imposed in itself was manifestly excessive or that what is referred to as the "parity principle" by Professor Warner has been offended to a degree which warrants this Court's intervention. I would dismiss the appeal.
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