Evans v The Queen
[1999] WASCA 195
•11 OCTOBER 1999
EVANS -v- R [1999] WASCA 195
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 195 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:153/1998 | 8 JUNE 1999 | |
| Coram: | PIDGEON J ANDERSON J STEYTLER J | 11/10/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted but appeal dismissed | ||
| PDF Version |
| Parties: | GARRY JOHN EVANS THE QUEEN |
Catchwords: | Criminal Law and Procedure Sentencing Parity Comparison between a seller and purchaser of an illicit drug Held offenders not in the position where the sentences demanded comparison |
Legislation: | Nil |
Case References: | Lowe v R (1984) 154 CLR 606 Postiglione v R (1996) 189 CLR 295 R v Tiddy (1969) SASR 575 Allen v R, unreported; CCA SCt of WA; Library No 950215; 27 April 1995 Australian Coal v Commonwealth (1953) 94 CLR 621 Bellissimo v R (1996) 84 A Crim R 465 Caritativo v R; Fisher v R, unreported; CCA SCt of WA; Library No 970033; 10 February 1997 Darwell v R (1997) 94 A Crim R 35 Hanna v R (1994) 15 Cr App Rep(S) 44 House v R (1936) 55 CLR 499 Koushappis v R, unreported; CCA SCt of WA; Library No 950729; 6 December 1995 Leonard v R, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 Lowe v R (1984) 154 CLR 606 R v Bozo Jurkovich (FFC) (1981) 6 A Crim R 215 R v Reppucci (1994) 74 A Crim R 353 R v Tait (1979) 46 FLR 386 Vodanovic v R, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 Vuckov and Romeo (1986) 22 A Crim R 10 Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EVANS -v- R [1999] WASCA 195 CORAM : PIDGEON J
- ANDERSON J
STEYTLER J
- Applicant (Defendant)
AND
THE QUEEN
Respondent (Complainant)
Catchwords:
Criminal Law and Procedure - Sentencing - Parity - Comparison between a seller and purchaser of an illicit drug - Held offenders not in the position where the sentences demanded comparison
Legislation:
Nil
Result:
Leave granted but appeal dismissed
(Page 2)
Representation:
Counsel:
Applicant (Defendant) : Ms H E Prince
Respondent (Complainant) : Mr R E Cock QC & Ms V R Campbell
Solicitors:
Applicant (Defendant) : Chilvers Marshall
Respondent (Complainant) : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowe v R (1984) 154 CLR 606
Postiglione v R (1996) 189 CLR 295
R v Tiddy (1969) SASR 575
Case(s) also cited:
Allen v R, unreported; CCA SCt of WA; Library No 950215; 27 April 1995
Australian Coal v Commonwealth (1953) 94 CLR 621
Bellissimo v R (1996) 84 A Crim R 465
Caritativo v R; Fisher v R, unreported; CCA SCt of WA; Library No 970033; 10 February 1997
Darwell v R (1997) 94 A Crim R 35
Hanna v R (1994) 15 Cr App Rep(S) 44
House v R (1936) 55 CLR 499
Koushappis v R, unreported; CCA SCt of WA; Library No 950729; 6 December 1995
Leonard v R, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
R v Bozo Jurkovich (FFC) (1981) 6 A Crim R 215
R v Reppucci (1994) 74 A Crim R 353
R v Tait (1979) 46 FLR 386
Vodanovic v R, unreported; CCA SCt of WA; Library No 960056; 9 February 1996
Vuckov and Romeo (1986) 22 A Crim R 10
Weng Keong Chan (1989) 38 A Crim R 337
(Page 3)
1 PIDGEON J: The applicant and Ian Martin Leonard appeared before her Honour Judge Yeats in the District Court at Port Hedland and each pleaded guilty to an offence of which they were jointly charged with selling or supplying a quantity of methylamphetamine to another. The amount involved was 22.4 grams of 8.5 per cent purity. The Applicant was 44 years of age and Leonard was 31 years. Her Honour sentenced each to a term of 5 years imprisonment with an order that each be eligible for parole. The Applicant is appealing on a number of grounds which claim, amongst other things, that the sentence was excessive having regard to the circumstances of the offence and the antecedents of the offender. It is also claimed that her Honour made some mistakes of fact in her sentencing remarks and it is claimed, further, that there was a failure by her Honour to make a reduction by reason of the fact that the drug was sold to an undercover police officer who requested the sale to be made. Each of these grounds, with one exception, was raised either as a ground of appeal or in argument by the co-offender Leonard in an appeal which was heard by this Court on 16 February 1999. These reasons were delivered on 29 March 1999 in the matter of Ian Martin Leonard v R, (Library No 990152). While leave was granted to Mr Leonard the appeal was dismissed. In those reasons Heenan J set out the full circumstances of the offence, the actual grounds being considered and the reasons why they were not upheld. There is no need to set these out again and I would, for the same reasons of Heenan J, grant leave in this appeal but dismiss each of these grounds with the exception of a new ground which I shall now consider
2 This ground relates to the question of parity with a sentence imposed on another offender involved in the distribution of the drug concerned, Miss Kilgour, who was sentenced shortly before the hearing of the earlier appeal. It can be seen from a reading of the reasons of Heenan J, that the offence for which the applicant and Leonard were sentenced was committed when they agreed to sell the drug, the subject of the offence, to an undercover police officer. They had received from him, in advance, an amount of $3500 as the purchase price. They then obtained the amount of the drug from Miss Kilgour. Miss Kilgour was charged with selling to the applicant and Leonard the quantity they obtained from her. There was, however, found in her possession a further quantity of methylamphetamine which did not concern the applicant and Leonard. She was, accordingly, charged with and sentenced for a further offence of possession of this amount. She was sentenced to a total term of three years imprisonment for the two offences. The ground of appeal claims that the sentence imposed on the applicant for the one offence was
(Page 4)
- manifestly excessive having regard to the disparity between the sentence imposed on Miss Kilgour for the two offences.
3 The facts relating to Miss Kilgour's involvement as outlined by the prosecutor and as found by his Honour Judge Wisbey were:
"...during the month of May 1998 a covert police operation was commenced in the areas of South and Port Hedland, named Operation Wren. During that a covert police officer met with some associates of Miss Kilgour, who have also been charged, and on 27 May that meeting took place and the covert officer placed an order to purchase some amphetamines to the value of $3500. He handed the money to the associates who later went to Miss Kilgour's home address. Both the offenders subsequently supplied approximately 28 grams of methylamphetamine to the associates and that was later sold to the covert police officer. On 29 May, police ---
WISBEY DCJ: That's a total of 28 grams?
O'SULLIVAN, MR: Yes, at that point. On 29 May police went to Miss Kilgour's home address and executed a search warrant under the provisions of the Misuse of Drugs Act and during that search a total of approximately 74.67 grams of methylamphetamine, some cash and other items were located at the address. Both - this relates to count 2 - both Miss Kilgour and the person she was living with at that address possessed that methylamphetamine with intent to sell or supply it to others to support their own heroin addiction.
The drug was found variously and ranged in purity. Most of it was between 9 and 10 per cent pure methylamphetamine mixed with other material - glucose, and one lot went as high as - that's one lot of 23.6 grams was as high as 20 per cent pure. There is a request that Miss Kilgour be declared a drug trafficker within the meaning of the Act in light of this and prior matters, and we also seek an order for destruction of the drugs.
When she was spoken to she admitted selling the drugs to her associates believing it was to be further sold to another person from Broome, and she also admitted conveying approximately 102 grams of methylamphetamine from Perth to Port Hedland to sell and supply in order to support her then heroin addiction. They are the facts.
(Page 5)
- WISBEY DCJ: Yes, thank you, Mr O'Sullivan. Yes?
RUSSELL, MS: The facts are admitted save that the person that she was living with was not involved in the drugs at all and in fact his charges were withdrawn. The other thing is that the 102 grams that it is said she admitted bringing from Perth to Port Hedland, certainly on the video she admitted bringing a quantity up to Port Hedland and it totalled 102 grams including the 28 grams that were sold only after the glucose had been added to it. So it was a lesser amount that she brought from Perth.
WISBEY DCJ: But essentially she has sold 28 grams and been left with effectively 75 grams."
4 Miss Kilgour was 42 years old. The reasons Judge Wisbey imposed the sentence he did are contained in the following portions of his sentencing remarks:
"WISBEY DCJ: …Miss Kilgour, you have been convicted on your own plea of the two counts presented on indictment, namely that on 27 May 1998 at Port Hedland you sold or supplied a quantity of methylamphetamine to another, and further, that on 29 May 1998 at Port Hedland you had in your possession a quantity of methylamphetamine with intent to sell or supply it to another.
….no dispute was taken as to the accuracy of the facts. I therefore propose merely to summarise the position for the purpose of these sentencing remarks.
It appears that as a result of a covert police operation evidence was obtained that you transacted the sale of 28 grams of methylamphetamine on 27 May 1998 and on 29 May 1998 were found in possession of a further, 74.67 grams of that substance. The substance, of course, was mixed with other material but was of a high level of purity.
…
The issue to be decided is what length that term should be, and in that respect I look at matters personal, but in doing so I bear in mind that the Court of Criminal Appeal has again emphasised that for this type of behaviour matters personal can have very
(Page 6)
- little weight in mitigation. The information in my possession indicates that you are 42 years of age, having been born on 20 December 1956. As has been pointed out by your counsel, you have had some unfortunate life experiences, particularly when quite young.
I have been provided with a detailed psychological report and a report from a social worker which refers to some of the difficulties that you have had. That material provides some insight into the type of person you are and the type of difficulties that you have faced, and indeed those matters will be reflected in the term of imprisonment that I must hand down.
I take into account that I am told that you have used heroin and that your use of heroin has in part at least contributed to this offence. In fact, your counsel advises that you had some substantial debts because of your use of heroin and that your criminal activities here were inter alia designed to pay off some of those debts and finance your habit. That, of course, is a matter that can be taken into account in penalty, in that if the habit could be broken it may well be that you would not engage in this type of behaviour. On the other hand, it needs to be said that a person who has their own drug problem and who has therefore personal knowledge of the misery that it causes, who is then prepared to go out and disseminate further misery of that sort in the community is a person who cannot receive considerable concessions by way of mitigation for that activity.
I note, and there is no dispute before me, that you have been very cooperative since this investigation commenced and you were apprehended, you made a full and frank confession on video, that you have pleaded guilty at the earliest opportunity and are remorseful, although the extent to which that remorse reflects the position in which you now find yourself as distinct from your remorse for engaging in this type of behaviour is not easy to determine.
In my view, having regard to the seriousness of these - well, perhaps before I say that, it needs to be said that although there are two offences they really amount to the one course of criminal behaviour; that is, the dissemination of the methylamphetamine and the desire to do so, and therefore the sentences in respect of each will be concurrent. In my view,
(Page 7)
- before making an appropriate reduction for your cooperation and early plea, the appropriate head term to give effect to the seriousness of this criminal behaviour would be one of 5 years' imprisonment. I reduce that to give effect to your early plea and cooperation, which of course has resulted in considerable saving of judicial time and community expense and indicates remorse on your part, to one of 3 years' imprisonment."
5 The principle of parity as referred to in Lowev R(1984) 154 CLR 606 applies when there are co-offenders who have committed the same crime. As Gummow J said in Postiglione v R (1996) 189 CLR 295 at 325: "The disparity principle in Lowe only applies to co-offenders." McHugh J referred to the principle of parity generally by quoting the following passage from R v Tiddy (1969) SASR 575 at 577.
"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."
6 Kirby J at 338 referred to the principle ordinarily arising in respect of co-offenders and "offenders in a situation demanding comparison and contrast". I do not consider that the applicant and Kilgour come within this latter category. The sale by Kilgour to the applicant was a different crime from the sale by the applicant to the undercover police officer. It involved the same narcotic goods, but there were different circumstances surrounding each sale. The criminality of a seller higher in the chain of distribution would normally be regarded as greater. There are, however, circumstances present here to point to the applicant and not Kilgour as being the more serious offender. The applicant held a responsible position in the community as a private law enforcement officer. He had made the commitment to purchase the drug and took steps to find a supplier. He found an addict who was prepared to sell drugs. He did not know her or her circumstances. The fact that the applicant, with the position he held in the community, committed this type of offence makes it more serious, particularly as his position and good character means he would not normally come under suspicion. For these reasons I do not consider the applicant and Kilgour were in the situation where their sentences demanded comparison. Another factor to justify a disparity is that Judge Wisbey, in sentencing Miss Kilgour, took into account a number of personal factors peculiar to her and which were not available to the applicant.
(Page 8)
7There are further reasons present in this case to inhibit this court from interfering even if some disparity were shown. The sentence imposed has already been adjudicated by this Court as being a proper sentence and any reduction to a significant degree would lead to an ostensibly wrong sentence. The next factor is that a reduction of the applicant's sentence would lead to a much greater sense of grievance on the part of the applicant's co-offender Leonard.
8 I would grant leave but dismiss the appeal.
9 ANDERSON J: I agree with the judgment of Pidgeon J and the orders he proposes. There is nothing I wish to add.
10 STEYTLER J: I have read the reasons for decision proposed to be published by Pidgeon J.
11 I agree with his Honour that the various factors identified by him, particularly those personal to Miss Kilgour, were such as to render her situation and that of the applicant not sufficiently comparable to warrant any interference with the sentence imposed upon the applicant upon the ground of disparity.
12 As has been mentioned by Pidgeon J the learned sentencing Judge was influenced by matters personal to Miss Kilgour. He said in terms that the term of imprisonment that he would hand down would be influenced by the psychological report which had been prepared in respect of her and also by a report which had been prepared by a social worker. Each of these reports demonstrated that Miss Kilgour had something of a tragic background leading ultimately to her becoming a heroin addict. She was also suffering from aggressive menopause at the time of the commission of the offences in respect of which she was sentenced.
13 Miss Kilgour's circumstances were, as Pidgeon J has pointed out, consequently very different from those of the applicant.
14 I agree, also, with Pidgeon J's comments to the effect that any reduction in the applicant's sentence could not be justified and would, furthermore, lead to a real sense of grievance on the part of his co-offender Leonard.
15 I, too, would consequently grant leave to appeal but dismiss the appeal.
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