EDR v The State of Western Australia
[2024] WASCA 61
•28 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EDR -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 61
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 11 MARCH 2024
DELIVERED : 28 MAY 2024
FILE NO: CACR 68 of 2022
BETWEEN: EDR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHARP DCJ
File Number : IND 2334 of 2021
Catchwords:
Criminal law – Appeal against sentence – Appellant convicted of one count of attempting to possess a prohibited drug, namely ketamine – Co-offender convicted of additional count of attempting to possess an unlawfully imported border control drug, namely cocaine – Parity principle – Impact of totality and cooperation with authorities on co-offender's sentences
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Result:
Extension of time granted
Leave to appeal on sole ground of appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | P D Yovich SC |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Peter Ash & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
House v The King [1936] HCA 40; (1936) 55 CLR 499
Humes v The State of Western Australia [2023] WASCA 110
JRE v The State of Western Australia [2023] WASCA 100
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Ngo v The Queen [2017] WASCA 3
Papp v The State of Western Australia [2020] WASCA 125
Stanley v The State of Western Australia [2018] WASCA 229
The State of Western Australia v Billett [2022] WASCA 158
JUDGMENT OF THE COURT:
Introduction and overview
In May 2021, the appellant and another man, JRE, were both involved in an attempt to possess 4.877 kg of a prohibited drug, namely ketamine, that had been imported into Western Australia by a well organised drug importation enterprise. The drugs were sent from Spain in two boxes addressed to a residence in Como.
JRE's role was as the Australian agent of the enterprise, responsible for arranging receipt of the drugs. The appellant was a courier recruited by JRE to collect the boxes and deliver them to another address, for which he would be paid $10,000, $4,000 of which was to be retained by the appellant and the balance given to JRE's girlfriend.
The drugs were intercepted by authorities at Perth Airport and substituted with flour. The appellant was later apprehended in possession of the boxes. He subsequently admitted that it was JRE who had asked him to collect the boxes.
The appellant and JRE were jointly charged with attempting to possess a prohibited drug, namely ketamine, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (the ketamine offence). They both pleaded guilty to that charge.
JRE was separately charged with an offence that on 21 June 2021, he procured another person to attempt to possess a commercial quantity of an unlawfully imported border control drug, namely cocaine, contrary to s 11.3 and s 307.5(1) of the Criminal Code (Cth) (the cocaine offence). The cocaine offence involved the attempted possession of 3.99 kg of cocaine.
On 29 June 2022, Sharp DCJ sentenced the appellant to 6 years and 3 months imprisonment for the ketamine offence. He was made eligible for parole, and his sentence was backdated to commence on 8 May 2022.
The following day, on 30 June 2022, JRE was sentenced to 6 years imprisonment for the ketamine offence and 7 years imprisonment for the cocaine offence. JRE was sentenced to a total effective sentence, for both offences, of 10 years imprisonment, with an effective non‑parole period of 7 years.
JRE sought leave to appeal to this Court against each of the individual sentences for the ketamine offence and the cocaine offence on the basis that they were manifestly excessive and against the total effective sentence, on the basis that it infringed the first limb of the totality principle. Leave to appeal was refused in relation to the individual sentences, but the appeal was allowed against the total effective sentence. JRE was resentenced to a total effective sentence of 8 years imprisonment, with an effective non‑parole period of 5 years and 6 months imprisonment.[1]
[1] JRE v The State of Western Australia [2023] WASCA 100 (JRE v Western Australia).
A 'critical factor' in the success of JRE's appeal in JRE v Western Australia was the unique mitigating circumstances of JRE,[2] which included significant assistance that JRE had provided to the police after his arrest. The nature of that assistance was the subject of a confidential addendum to the Court's reasons. The significance of those matters was such that JRE's pleas of guilty and his cooperation with police were accorded a 50% discount.[3]
[2] JRE v Western Australia [80] (Quinlan CJ, Mazza & Hall JJA).
[3] JRE v Western Australia [78] (Quinlan CJ, Mazza & Hall JJA).
The appellant now appeals his sentence on the sole ground that the sentence imposed on him infringes the parity principle when regard is had to the sentences imposed on JRE. As the appeal notice was filed approximately one week out of time, the appellant requires an extension of time within which to appeal.
The ground of appeal ultimately turns upon whether the lack of disparity in the sentences imposed on each of the appellant and JRE is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of the objective observer that justice has not been done.
Given the relative roles of both JRE and the appellant in the ketamine offence, and the fact that JRE was sentenced for an additional serious drug offence, the fact that the total effective sentence imposed on JRE was only 1 year and 9 months (and the non‑parole period 1 year and 3 months) greater than that imposed on the appellant does appear, at first glance, incongruous. Indeed, it is understandable that the appellant would have a subjective sense of grievance at the apparent lack of marked disparity between those sentences. For that reason, we would grant an extension of time within which to appeal and grant leave to appeal on the ground of appeal.
Nevertheless, having regard to all of the facts and circumstances of the case, and in particular the significant impact of the cooperation and assistance to authorities provided by JRE, in our view, the degree of disparity between the sentences imposed on the appellant and JRE did not produce a result that was unreasonable or plainly unjust. Once the significant impact of JRE's cooperation and assistance is borne in mind, the sentence imposed on the appellant is not capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of the objective observer that justice has not been done.
We would therefore dismiss the appeal.
The facts and circumstances of the ketamine offence
The facts and circumstances of the ketamine offence were set out in JRE v Western Australia.[4] Save for one matter (referred to at [26] below), the appellant accepted that those facts were accurate as they related to the appellant's involvement in that offence.[5]
[4] JRE v Western Australia [5] - [12] (Quinlan CJ, Mazza & Hall JJA).
[5] Which is just as well, given that the learned sentencing judge did not set out findings of fact but rather 'incorporated' into his sentencing remarks the facts read by the prosecutor. As this Court has previously observed, such a practice is not one to be encouraged, at least in the case of serious offences: The State of Western Australia v Billett [2022] WASCA 158 [48] (Buss P, Mazza & Hall JJA); Humes v The State of Western Australia [2023] WASCA 110 [12] (Quinlan CJ).
The facts may be briefly stated.
On 26 May 2021, officers from the Australian Border Force operating out of the Perth Cargo Centre at the Perth Airport identified two boxes of interest during a routine x‑ray of air cargo. The two boxes had been sent from Spain and were addressed to residential premises in Como.
The boxes were found to contain 20 purses, each of which contained a vacuum sealed plastic package of white powder. The weight of the powder in each of the packages ranged between 230 g and 249 g. Preliminary testing of the white powder confirmed that it contained the prohibited drug ketamine. The total weight of the 20 packages was 4.877 kg.
Police officers substituted the ketamine for flour, resealed the purses and organised for the packages to be delivered to the Como address. At about 1.30 pm on 31 May 2021, the appellant arrived at the Como residence. The two boxes had been left outside the residence as per the delivery instructions. The appellant placed the boxes into his car and drove away. He was followed by police to an address in Murdoch.
That evening, police attended at the Murdoch address and arrested the appellant. During a search of his vehicle police located the two boxes. The appellant initially told police that he did not know what was in the boxes and could not tell police anything about them. He said that he had been told to collect the boxes from the Como address but was reluctant to identify the person who had given him those instructions. The appellant told police that the person was someone he had communicated with through Snapchat but had never met, although he later admitted that he was suspicious that the boxes contained illicit drugs because of his previous interactions with the person who had asked him to collect them.
At a later time, the appellant admitted that he had been asked to collect the boxes by JRE, and that he knew the boxes contained ketamine, although he did not know how much of the drug was inside the boxes.
The appellant said that JRE told him to deliver the packages to another address, at which time an unknown person was to pay him $10,000. JRE later told the appellant that he was to hold onto the boxes overnight as the drop‑off had been delayed. JRE had informed the appellant that of the $10,000 he would receive on delivery, the appellant was to take out $4,000 and drop the remaining $6,000 to JRE's girlfriend. JRE told the appellant that the people that the drug was being supplied to were not his friends but 'customers of a guy I am working for'. JRE and the appellant communicated using the Wickr application.
In other messages between JRE and the appellant, JRE made references to other packages. In particular, on 26 May 2021, JRE told the appellant that there should not be any issues with the packages because 'we got someone in Customs now'. In another message JRE said that he had 'about five packs coming round next week' and that 'once they land we will be selling two'. The messages showed that JRE was engaged in a continuing commercial venture and had recruited the appellant to assist him in that venture.
The ketamine was valued at $1,560,000 if sold in 1 g quantities, $1,393,000 if sold in 3.5 g quantities and $1,254,000 if sold in 7 g quantities.
JRE was sentenced on the basis that his involvement only became apparent in June 2021 when JRE was arrested in respect of the cocaine offence and his mobile telephone was examined, at which time the appellant was re‑interviewed and admitted that it was JRE who had asked him to collect the boxes of ketamine.[6]
[6] JRE v Western Australia [9] (Quinlan CJ, Mazza & Hall JJA).
The timing of the appellant's disclosure of JRE's involvement was the one matter in relation to which the appellant took issue with the facts as they related to him. In that regard, the appellant referred to additional evidence before the sentencing court, to the effect that he had identified JRE as the person with whom he was communicating around the time of his (the appellant's) arrest and had offered to provide assistance to police in relation to JRE, although that assistance ultimately proved unnecessary as a consequence of JRE's arrest in respect of the cocaine offence. As will be apparent, the learned sentencing judge gave the appellant 'credit' for that offer of assistance.
Appellant's personal circumstances
The appellant was 24 years old at the time of sentence. He was born in Geraldton, and is the younger of two siblings. After his parents separated when he was young, the appellant lived with his grandparents, and had a particularly close relationship with his grandfather who died when the appellant was 10 years old.[7]
[7] WAB 118.
After living in a regional town with his mother, sister, and grandmother for 11 years, the appellant moved to Perth with his mother due to the better job prospects. He maintained a close relationship with his mother, sister and grandmother, all of whom remained supportive of him.[8]
[8] WAB 118.
The appellant is single and has no children.[9]
[9] WAB 118.
In terms of employment, the appellant completed a carpentry apprenticeship and was employed in fly‑in/fly‑out work for four and a half years prior to sentencing, the final six months being in a supervisory role.[10]
[10] WAB 119.
The appellant was a social drinker and had used cannabis from age 16 until he began working in fly-in/fly-out work. He had also used other drugs recreationally, including cocaine.[11]
[11] WAB 119.
The appellant had a minor criminal history, with one conviction for driving under the influence of alcohol, as well as convictions for possessing a prohibited drug and a controlled drug, including LSD, which were found in his possession at the time of his arrest for the ketamine offence.[12]
[12] WAB 50, 119.
Following his arrest, the appellant voluntarily enrolled in counselling sessions as part of an addiction recovery program. As at the date of sentencing, the appellant had completed 19 one‑on‑one counselling sessions and was described as having made excellent progress.[13]
[13] WAB 119.
The learned sentencing judge was provided with a number of references from the appellant's friends, family and employers (both current and former), which attested to his good character.[14]
[14] WAB 119.
Sentencing remarks
Having incorporated the facts of the appellant's offending into his sentencing remarks, the learned sentencing judge referred to the maximum penalty for the ketamine offence, being a fine not exceeding $100,000 or imprisonment for 25 years or both.[15]
[15] WAB 118.
His Honour characterised the appellant's offending as very serious. In that regard the learned sentencing judge observed that the quantity of ketamine was significant, and that the appellant knowingly engaged in the commercial enterprise for personal financial gain. His Honour said that while the appellant's role was as a courier, his participation in the enterprise facilitated a scheme, the intention of which was to distribute on an ongoing basis a large quantity of illicit drugs into the community.[16]
[16] WAB 119.
The learned sentencing judge said that, while the appellant was not aware of the precise quantity of the drugs he was to courier, it would nevertheless have been apparent to him that it was a substantial quantity.[17]
[17] WAB 119.
His Honour observed that the appellant had entered a plea of guilty at a 'relatively early stage but not at the first available opportunity' and concluded that a discount of 20% for his plea of guilty was appropriate.[18]
[18] WAB 120.
Referring to the appellant's age, limited criminal history and character references, the learned sentencing judge identified the appellant's otherwise good character as a mitigating factor, as were the appellant's remorse and efforts at rehabilitation. In that regard, his Honour concluded that the appellant's risk of reoffending was low.[19]
[19] WAB 121.
In relation to his cooperation with police, the learned sentencing judge observed that the appellant indicated a willingness to assist the police by collecting further packages when requested to do so by JRE and also voluntarily opened his telephone to allow the police access to it. His Honour concluded in that regard:[20]
It's unclear what, if any, benefit was gained by the police from this in their pursuit of [JRE]. It is apparent that the police did not in fact approach you for that assistance. Nonetheless, you do get credit for this, and it is a mitigating factor that I can take into account for sentencing purposes.
[20] WAB 122.
Taking into account all relevant sentencing considerations, including the appellant's age, remorse, cooperation with police, good prospects of rehabilitation, but also the need for general deterrence, the learned sentencing judge sentenced the appellant to 6 years and 3 months imprisonment for the ketamine offence, backdated to commence on 8 May 2022. The appellant was made eligible for parole.
Sentence imposed on JRE
As noted above, in JRE v Western Australia this Court resentenced JRE to a total effective sentence of 8 years imprisonment, with an effective non‑parole period of 5 years and 6 months imprisonment. The Court did not alter the sentence of 6 years imprisonment for the ketamine offence imposed by the District Court but reduced the sentence for the cocaine offence from 7 years to 6 years imprisonment and ordered that the sentence for the cocaine offence commence after JRE has served 2 years of the sentence for the ketamine offence.[21]
[21] JRE v Western Australia [83] (Quinlan CJ, Mazza & Hall JJA).
Given the relevance of JRE's offending to the ground of appeal in this appeal, it is necessary to summarise the seriousness of JRE's offending, his personal circumstances and the considerations that led to the imposition of his total effective sentence.
Seriousness of JRE's offending
The circumstances of the ketamine offence have been set out above.
The cocaine offence involved a similar process to that in the ketamine offence. On 6 June 2021, officers from Australian Border Force intercepted a consignment sent from the United Kingdom addressed to residential premises in Willagee. The consignment contained 16 purses, each of which contained a vacuum sealed plastic package of white powder. The packages contained a total of 3.99 kg of cocaine with 72% purity.[22] The value of the cocaine was estimated to be between $598,500 and $877,800 if sold by the kilogram. If sold by the ounce it was estimated to be worth between $844,458 and $1,266,687.[23]
[22] JRE v Western Australia [14] (Quinlan CJ, Mazza & Hall JJA).
[23] JRE v Western Australia [21] (Quinlan CJ, Mazza & Hall JJA).
Police arranged for a controlled delivery of a substituted package to the Willagee address, and another person, A, signed for and took possession of the package. JRE recruited A and communicated with him by the Wickr application. When A was apprehended by police, he provided access to his mobile telephone, which revealed the messages with JRE. JRE was later apprehended by police.[24]
[24] JRE v Western Australia [16] - [20] (Quinlan CJ, Mazza & Hall JJA).
JRE pleaded guilty to the ketamine offence and the cocaine offence at the earliest reasonable opportunity.[25]
[25] JRE v Western Australia [22] (Quinlan CJ, Mazza & Hall JJA).
In relation to the seriousness of his offending, the Court concluded that JRE was involved in a significant commercial venture for the regular distribution of drugs. JRE was 'not the principal offender in the sense that he was at the top of the tree', although he coordinated the delivery of the drugs and had recruited both the appellant and A, matters which aggravated his offending. JRE was motivated by the promise of financial reward and had admitted that he would receive $10,000 for each consignment.[26]
JRE's personal circumstances
[26] JRE v Western Australia [31] - [32] (Quinlan CJ, Mazza & Hall JJA).
While he was five years older than the appellant, JRE's personal circumstances were otherwise similar to that of the appellant. Born in New Zealand, JRE had one sister and lived with his mother after his parents separated when he was seven years old. JRE's early years had been punctuated by domestic violence and the involvement of his father in crime.[27]
[27] JRE v Western Australia [23] - [24] (Quinlan CJ, Mazza & Hall JJA).
JRE completed a flooring apprenticeship and later secured fly‑in/fly‑out work operating mining equipment. He was engaged in that employment at the time of his offending. During a period of downturn, when he was unemployed for six months, JRE heavily used alcohol and MDMA and came into contact with the network involved with the importation of drugs.[28]
[28] JRE v Western Australia [26] - [27] (Quinlan CJ, Mazza & Hall JJA).
JRE had been in a stable relationship since 2018. His partner has a son by a previous relationship and JRE had taken on the role of stepfather to the child. JRE's partner continued to support him.[29]
[29] JRE v Western Australia [28] (Quinlan CJ, Mazza & Hall JJA).
JRE had no relevant prior criminal record.[30]
JRE – mitigating factors
[30] JRE v Western Australia [29] (Quinlan CJ, Mazza & Hall JJA).
It was accepted that JRE was extremely ashamed and remorseful for his offending. As noted above, he pleaded guilty to the ketamine offence and the cocaine offence at the earliest reasonable opportunity. JRE was afforded discounts for his pleas of guilty of 25%. As in the appellant's case, JRE's risk of reoffending was low.[31]
[31] JRE v Western Australia [34], [36] (Quinlan CJ, Mazza & Hall JJA).
A significant mitigating factor in JRE's case was the level and nature of his assistance and cooperation with police. The detail of that assistance must remain confidential, but it suffices to observe that it was significant, and, together with JRE's pleas of guilty, was accorded a 50% discount on JRE's sentence.[32]
Conclusion as to JRE's sentence
[32] JRE v Western Australia [37] (Quinlan CJ, Mazza & Hall JJA).
In concluding that JRE's initial total effective sentence of 10 years did not bear a proper relationship to his overall criminality, we said:[33]
In this case the discounts for pleading guilty and other mitigating factors (including cooperation) were applied, appropriately, in calculating the individual sentences. That does not, of course, mean that those factors were no longer relevant when it came to determining the total effective sentence. The total sentence should have reflected not only the overall criminal conduct but also the personal circumstances of the appellant, including his guilty pleas and his cooperation.
Whilst there are obvious problems in trying to determine what the notional starting point of any sentence must have been, it is possible to calculate what an equivalent total sentence would be if the pleas of guilty and cooperation discounts were removed. Together those factors were accorded a 50% discount. That must mean that, absent those factors, the criminal conduct would have attracted a total sentence of 20 years' imprisonment. That figure would also have to account for the appellant's other personal mitigating factors, such as his prior good character and good prospects of rehabilitation.
Seen in that light, the total sentence imposed on the appellant is not a proper reflection of all of the relevant factors. In particular, it does not reflect the fact that the appellant entered early pleas of guilty and cooperated with the authorities. The importance of such factors lies not only in producing a just result in the individual case, but in furthering the public policy of encouraging other offenders to plead guilty at an early stage and to cooperate with the police. If those discounts are not real, and seen to be real, the policy objective will be defeated.
Because the critical factor in assessing the total effective sentence is the unique mitigating circumstances of the appellant, no assistance can be derived by considering the total sentences imposed in other cases. It may be accepted that but for those circumstances the total sentence may well have been appropriate.
The total effective sentence imposed on the appellant did not bear a proper relationship to the overall criminality, including the appellant's personal circumstances. The total sentence was unreasonable or plainly unjust.
[33] JRE v Western Australia [77] - [81] (Quinlan CJ, Mazza & Hall JJA).
Ground of appeal
The sole ground of appeal is as follows:[34]
The sentence imposed on the appellant infringed the parity principle when regard is had to the sentences imposed on the appellant's co‑offender.
Particulars
There was insufficient disparity between the sentence imposed on the appellant and the aggregate sentence ultimately imposed on the appellant's co‑offender JRE, having regard to JRE's greater culpability for their common offence and his greater overall criminality, and notwithstanding the greater discounts available to JRE because of his pleas of guilty and co‑operation with the authorities.
[34] WAB 8.
As will be apparent, the appellant does not contend that the sentence of 6 years and 3 months imposed on him was manifestly excessive, or that the learned sentencing judge made any express error of fact or law in sentencing the appellant. The appeal is wholly one in relation to parity with the sentence imposed on JRE.
Parity – legal principles
The principles in relation to the parity principle are well‑settled.
Those principles were summarised by Buss P in Ngo v the Queen,[35] in a passage that has been adopted or reproduced in many subsequent decisions of this Court:[36]
[35] Ngo v The Queen [2017] WASCA 3 (Ngo).
[36] Ngo [36] ‑ [39].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].
A judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[37] apply.[38]
[37] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[38] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32] (French CJ, Crennan & Kiefel JJ) (Green); Stanley v The State of Western Australia [2018] WASCA 229 [40] (Buss P, Mazza & Beech JJA).
In Higgins v The State of Western Australia,[39] this Court considered the application of the parity principle where the co‑offenders had committed one or more common offences but some or all of them had also committed other unrelated offences. Relevantly, the Court came to the following conclusions:
(a)a person's sentence, for the purposes of the parity principle, is comprised of the sentence imposed in respect of each individual offence, any minimum non‑parole period, orders for accumulation and concurrence and the resulting total effective sentence, and, where a person is already serving an earlier term of imprisonment, the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence. The parity principle may apply to each and any of these components;[40]
(b)there is no hard and fast rule that, in cases of co‑offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. An infringement of the parity principle may arise from a marked disparity in the respective sentences imposed on co-offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though either, or both, of the co-offenders was sentenced for other offences;[41] and
(c)in evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences[42] and all relevant sentencing principles, including the totality principle.[43]
[39] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins).
[40] Higgins [25] (Buss P), [178] ‑ [179] (Beech JA), [199] ‑ [208] (Pritchard JA).
[41] Higgins [169] ‑ [177] (Beech JA), [204] ‑ [210] (Pritchard JA).
[42] Higgins [53] ‑ [54] (Buss P), [184] (Beech JA).
[43] Higgins [19] (Buss P), [168] (Beech JA).
As these principles make clear, just as a marked and unjustified disparity between co‑offenders whose culpability and circumstances are comparable may give rise to a legitimate or justifiable sense of grievance, so too a lack of disparity between co‑offenders whose culpability and circumstances differ may justify an appellate court's interference.[44]
[44] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617 (Brennan J).
In the present case, of course, it is a lack of sufficient disparity with the sentence imposed on JRE of which the appellant complains.
Parties' submissions
The appellant's submissions focused on both a comparison of the individual sentences to the appellant and JRE for the ketamine offence and a comparison of their total effective sentences.
In that regard, the appellant submits that his maximum sentence is just less than 22% lower than JRE's total maximum sentence, and his effective non‑parole period is just less than 23% lower than JRE's total non‑parole period.[45] Having regard to the ketamine offence alone, the appellant submitted that he must serve more than double the term imposed on JRE (4 years and 3 months compared to 2 years).[46]
[45] Appellant's submissions [36] (WAB 16).
[46] Appellant's submissions [37] (WAB 16).
While recognising the impact of totality considerations and the greater assistance to authorities by JRE, the appellant submits that their relative criminality, as well as the appellant's offer to cooperate with the authorities (even if it did not bear fruit), was such as to give rise to 'an objectively justifiable sense of grievance on the appellant's part'.[47] In relation to the appellant's level of cooperation and assistance, however, the appellant's counsel accepted in oral submissions that his cooperation 'would [not] be at or approaching 25%' (being the quantification of JRE's assistance).[48]
[47] Appellant's submissions [39] (WAB 16).
[48] Appeal ts 26.
The State, for its part, submitted that the degree of disparity between the sentences imposed on the appellant and JRE, in either absolute or proportional terms, was justified in all of the circumstances. The State observed that in resentencing JRE this Court in JRE v Western Australia must be taken to have taken into account the sentence imposed on the appellant.[49] The State emphasised the discretionary character of the application of the parity principle and the fact that there is a 'permissible range of difference' that reflects co-offenders' different degrees of culpability and personal circumstances.[50]
[49] Respondent's submissions [12] ‑ [13] (WAB 25).
[50] Respondent's submissions [14] (WAB 26), citing Papp v The State of Western Australia [2020] WASCA 125 [72] (Buss P, Mitchell & Beech JJA).
While accepting that JRE's culpability was greater than that of the appellant, the State nevertheless submitted that they both performed an integral function in the drug distribution network and they were to be sentenced for their particular actions in relation to the offending. In that regard, the State submitted that JRE's role in the ketamine offence itself was not 'that dissimilar to [that of the] appellant'.[51]
[51] Appeal ts 38.
The State submitted that the additional mitigation for the appellant's youth was counterbalanced by JRE having received a greater discount for his earlier pleas of guilty.[52] Otherwise, the State emphasised the unique mitigating circumstances of JRE's level of cooperation with authorities.[53]
[52] Respondent's submissions [19] (WAB 29).
[53] Respondent's submissions [14], [22] (WAB 26, 30).
Disposition
There can be no doubt that JRE's culpability, both in relation to the ketamine offence and in relation to the criminality of his offending as a whole, was significantly greater than that of the appellant. JRE was 'higher' in the criminal enterprise than the appellant and his conviction for two offences demonstrated that he had an ongoing involvement in that enterprise.
In terms of their personal circumstances, there was little to distinguish JRE and the appellant. While JRE was older than the appellant, they both had similar backgrounds, they both had significant remorse and they both were a low risk of reoffending.
In those circumstances, all things being equal, it would be expected that JRE would have been sentenced to a significantly greater sentence than the appellant for his overall offending. And while JRE's total effective sentence was greater than that of the appellant, it was not, we accept, significantly greater. Knowing what he knows, it would be quite understandable for the appellant to subjectively feel that he has not been treated with the equality to which the law aspires.
Nevertheless, in this case all things were not equal. The sentence imposed on JRE was affected by two considerations that were either not present in the appellant's case or not present to nearly the same degree.
The first consideration was totality. As the Court concluded in JRE v Western Australia, neither of the individual sentences imposed on JRE were arguably plainly unjust or unreasonable. JRE's appeal was allowed by reason of the totality principle, and in particular the need for the total effective sentence to properly reflect his guilty pleas and cooperation as well as the individual sentences. It was therefore inevitable that totality would have an ameliorating effect on JRE's total effective sentence.
Secondly, and most significantly, was the degree of cooperation given by JRE. On any view the assistance and cooperation provided by JRE was substantially and markedly greater than that offered by the appellant. The appellant's counsel accepted as much at the hearing of the appeal. For that reason, a bare comparison of the maximum sentence and effective non‑parole periods imposed on JRE and the appellant has very little utility. Indeed, such a comparison may well be apt to mislead.
In that regard, as the Court noted in JRE v Western Australia, it was possible to calculate, in relation to JRE's initial sentence, that absent the 50% discount for his pleas of guilty and cooperation, JRE's criminal conduct would have attracted a total sentence of 20 years imprisonment (before accounting for his other personal mitigating factors).[54] Applying a similar calculation to JRE's sentence following his successful appeal, absent the discount for his pleas of guilty and cooperation, his criminal conduct would have attracted a notional total effective sentence of 16 years imprisonment. Taking the sentence for the ketamine offence on its own, JRE's criminal conduct would have attracted a notional sentence of 12 years imprisonment.
[54] JRE v Western Australia [78] (Quinlan CJ, Mazza & Hall JJA).
The calculation of a notional starting point for the appellant's sentence is more difficult, as the learned sentencing judge did not quantify the extent to which the appellant's sentence was reduced by reason of his cooperation, albeit that he did get 'credit' for it. Nevertheless, it may reasonably be said that, absent the appellant's 20% discount for his plea of guilty, his criminal conduct would have attracted a notional starting point of approximately 7 years and 10 months imprisonment, before accounting for his personal mitigating factors and his own cooperation. Even allowing for a substantial discount for the appellant's own cooperation, it is apparent that there is a large disparity in the 'notional starting point' of the sentences imposed on JRE and the appellant, both in relation to the ketamine offence and in totality. For example, even a discount of 25% for the appellant's cooperation (which counsel accepted it could not have been even 'approaching'),[55] would produce a notional starting point for the appellant of less than 11 years and 6 months. The notional starting point for the appellant's sentence, having regard to his own cooperation would therefore have been significantly less than that.
[55] See [66] above.
Sentencing is not, of course, a mathematical exercise. Nor is the application of the parity principle. Nevertheless, and recognising the limitations of the calculations in the preceding paragraphs, it is clear that the relatively modest disparity between the final sentences imposed on JRE and the appellant is readily explained and justified by the significant cooperation with authorities given by JRE.
That conclusion may be of little comfort to the appellant himself, who cannot know the extent or value of the assistance to authorities provided by JRE. It may also reflect the somewhat Faustian reality that the assistance able to be provided by a person who is higher in a drug dealing operation, such as JRE, will be greater and more valuable to authorities than that which might be offered by persons lower in that hierarchy.
Nevertheless, as the authorities make clear, the critical question in the application of the parity principle is an objective one: namely whether the outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. Having regard to the impact of totality and the unique mitigation available to JRE, it cannot be said in the present case that the degree of disparity (or lack thereof) between the sentences imposed on JRE and the appellant was unreasonable or plainly unjust.
For these reasons while we would grant an extension of time within which to appeal and grant leave to appeal on the ground of appeal, the appeal must be dismissed.
Conclusion
We would make the following orders:
1.The application for an extension of time within which to appeal is granted.
2.Leave to appeal on the ground of appeal is granted.
3.The appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
27 MAY 2024
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