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FARQUHAR -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 49

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 49
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:150/2004	Heard:	8 FEBRUARY 2005
Coram:	MALCOLM CJ ROBERTS-SMITH JA PULLIN JA	Delivered:	16/03/05
No of pages:	29	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Appellant resentenced
Category:	B
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Parties:	GEORGE HARDY FARQUHAR THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Sentencing Parity of sentences Multiple offences Co-offender sentenced under previous sentencing regime prior to Sentencing Act 1995 to imprisonment for a total of 5 years and 6 months Appellant sentenced for the same offences to a total of 5 years Co-offender eligible for parole after serving onethird of sentence, but appellant not eligible for parole until he has served onehalf of the sentence Need to adjust sentence to ensure that appellant did not spend more time in prison than the co-offender
Legislation:	Criminal Code (WA), s 378 Offenders Community Corrections Act 1963 (WA), s 37A Sentencing Act 1995 (WA), s 3, s 80, s 93, s 94 Sentencing Legislation Amendment and Repeal Act (2003) (WA), Sch 1
Case References:	Archibald v The Queen (1989) 40 A Crim R 228 Capper v The Queen (1993) 69 A Crim R 64 Deville v The State of Western Australia [2004] WASCA 264 Dinsdale v The Queen (2000) 202 CLR 321 Goddard v The Queen (1999) 21 WAR 541 Jarvis v The Queen (1993) 20 WAR 201 Kirby v The Queen [2003] WASCA 239 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Siganto v The Queen (1998) 194 CLR 656 Wicks v The Queen (1989) 3 WAR 372 Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996 S v The Queen [2001] WASCA 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FARQUHAR -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 49 CORAM : MALCOLM CJ

ROBERTS-SMITH JA

PULLIN JA

HEARD : 8 FEBRUARY 2005 DELIVERED : 16 MARCH 2005 FILE NO/S : CCA 150 of 2004 BETWEEN : GEORGE HARDY FARQUHAR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

File No : IND 1189 of 2004

Catchwords:

Criminal law and procedure - Sentencing - Parity of sentences - Multiple offences - Co-offender sentenced under previous sentencing regime prior to Sentencing Act 1995 to imprisonment for a total of 5 years and 6 months - Appellant sentenced for the same offences to a total of 5 years - Co-offender

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eligible for parole after serving onethird of sentence, but appellant not eligible for parole until he has served onehalf of the sentence - Need to adjust sentence to ensure that appellant did not spend more time in prison than the co-offender

Legislation:

Criminal Code (WA), s 378

Offenders Community Corrections Act 1963 (WA), s 37A
Sentencing Act 1995 (WA), s 3, s 80, s 93, s 94
Sentencing Legislation Amendment and Repeal Act (2003) (WA), Sch 1

Result:

Leave to appeal granted

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr D Dempster

Solicitors:

Appellant : In person

Respondent : State Director of Public Prosecutions

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

Archibald v The Queen (1989) 40 A Crim R 228
Capper v The Queen (1993) 69 A Crim R 64
Deville v The State of Western Australia [2004] WASCA 264
Dinsdale v The Queen (2000) 202 CLR 321
Goddard v The Queen (1999) 21 WAR 541
Jarvis v The Queen (1993) 20 WAR 201
Kirby v The Queen [2003] WASCA 239

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Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Siganto v The Queen (1998) 194 CLR 656
Wicks v The Queen (1989) 3 WAR 372
Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

Case(s) also cited:

S v The Queen [2001] WASCA 245

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1 MALCOLM CJ: This is an application for leave to appeal against sentence. The appellant was unrepresented, but presented a well-prepared argument in support of his application.

2 On 30 July 2004, the appellant was convicted in the District Court of one count of cultivation of cannabis with intent to sell and supply, five counts of possession of prohibited drugs with intent to sell or supply, ten counts of stealing, one count of possession of a prohibited drug and one count of possession of an unlicensed firearm. He was sentenced on 20 August 2004 to imprisonment for 3 years for the cultivation, 3 years on each of five counts of possession of anabolic steroids, all of which sentences were concurrent with the 3 years for cultivation; 2 years on each of ten counts of stealing a motor vehicle to be served concurrently with each other, but cumulative upon the concurrent sentences of 3 years; 6 months concurrent with the other sentences for the possession of cannabis; and 8 months concurrent with the other sentences for the possession of an unlicensed firearm. The total sentence was imprisonment for 5 years. All of the sentences were backdated to commence from 25 February 2004 when the appellant was taken into custody.

3 The appellant's co-offender, one Yanko, was earlier convicted of the same offences in the District Court in 1995. Yanko was sentenced for his offences on 25 August 1995 to a total head sentence of 5 years and 6 months for the offences committed with the appellant. In sentencing the appellant on 20 August 2004, the learned Judge referred to the appellant's plea of guilty to the offences which I have described. His Honour also referred to the fact that Yanko had been sentenced in 1995 following his plea of guilty to the cultivation of cannabis, the four offences involving the steroids and the eight offences in relation to stealing the motor vehicles. Yanko was also sentenced for an additional count of fraud in which the appellant was not involved.

4 The grounds upon which the appellant seeks leave to appeal are:

"The learned sentencing Judge imposed a sentence that was manifestly excessive because:

1. the sentencing Judge did not properly take into account Schedule 1 of the Sentencing Legislation and Repeal Act 2003 where the court must impose a term that is two thirds of the term that would have been imposed had the old provisions (Sentencing Act 1995) been in operation at

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the time of sentencing for offences that occurred before August 2003.

2. the sentencing Judge did not apply correctly the sentence discount given to the Appellant in relation to the Appellant's co-offender's sentence.

3. the sentencing Judge did not properly take into account the parity of sentence in relation to the anabolic steroid offences.

4. the sentencing Judge did not properly take into account the rehabilitation level of the Appellant and the very lengthy period of time that took place between these offences and the Appellant's conviction (12 years).

5. the sentencing Judge overlooked the double jeopardy element that had an effect on the sentence given."

5 The appellant spent a significant period in the United Kingdom. He voluntarily returned to Western Australia in February 2004. The appellant also wanted the Court to take into account two further offences which occurred in 1992. One was possession of cannabis which was found in a motor vehicle when it was searched and the other was an offence of possession of a firearm and ammunition without a licence. The firearm was a World War II vintage Luger.

6 The cultivation of cannabis, the subject of count 1, was discovered when police executed a search warrant on the morning of 21 January 1992 at a unit occupied by the appellant and Yanko in Wangara. The police found inside the premises some 270 cannabis plants which were growing in buckets. There was a lighting system set up by the offenders to provide light and heat to the plants. The plants ranged in height from 2 to 60 centimetres. It was classified by the learned Judge as "a hydroponic set-up".

7 The police also went to a self-lock garage occupied by the two offenders at Berriman Drive, Wangara. Inside the storage area the police located a large amount of anabolic steroids. The steroids the subject of count 2 on the indictment comprised 182 boxes of methandienone containing 50 tablets in each box. There was also found 84 bottles each containing 10 millilitres of cypionate testosterone the subject of count 3; 222 bottles each containing 50 millilitres of nandrolone the subject of count 4; six bottles each containing 10 millilitres of stanazol the subject of

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count 5; and 25 boxes each containing 30 tablets of tamoxifen the subject of count 6 on the indictment.

8 The appellant and Yanko were also convicted of nine counts of stealing a motor vehicle contrary to s 378 of the Criminal Code, together with one count of possession of a prohibited drug and one count of possession of an unlicensed firearm.

9 Following their arrest in January 1992, the appellant and Yanko were unco-operative and made little in the way of admissions. They were charged and released on bail. They were due to appear in the Court of Petty Sessions on 1 April 1992, but in the meantime, they had both absconded by flying to London.

10 The police continued their investigations, particularly into the car stealing activities in which both men had been involved. They discovered a separate criminal enterprise in which the appellant was apparently the prime mover. Yanko was found to have a secondary role, although he was accepted by the Judge who sentenced him and the Court of Criminal Appeal as being "critical to the success of the enterprise". The scheme involved the purchase of a wrecked motor vehicle at a low cost. A similar motor vehicle would then be stolen. With the assistance of the appellant, it would be passed off as the wrecked vehicle, now repaired, and sold, generally to the motor trade. Yanko's role was principally to assist the appellant by removing the identification number from the stolen vehicle so that the process could not be detected. He would then re-stamp the numbers of the stolen vehicle on the wrecked vehicle.

11 Yanko contended that the appellant was the principal offender. He said that most of the proceeds from the sale of the cars went to the appellant. He admitted, however, that he had been paid some money. The learned sentencing Judge in the District Court concluded that most of the proceeds had been received by the appellant and that Yanko had assisted in the commission of the offences by purchasing some of the cars using the appellant's money and then selling them in false names.

12 The investigation which revealed the scheme, but not the role the two men played in it, was concluded while both Yanko and the appellant were overseas. The total value of the stolen vehicles involved was approximately $140,000. Eight separate motor vehicles were involved and eight stealing charges were laid in respect of them. The offences took place over a period of 15 months. In each case, either the car yard to which the vehicle was sold or an insurer which became involved suffered

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a loss. As Murray J (with whom Kennedy J agreed) said in

Yanko v The Queen

, unreported; CCA SCt of WA; Library No 960030; 23 January 1996 at 7 - 8:

"The investigation which established that procedure, but not the role each man played in it, was concluded during the period of [Yanko's] absence overseas. The total value of the stolen vehicles with which [Yanko] had been involved was approximately $140,000. Eight separate motor vehicles were involved and eight separate charges of motor vehicle theft were laid. The offences were said to cover a period of 15 months. In each case, either the car yard to which the vehicle was disposed or an insurer who became involved with it found itself out of pocket. The offences so charged clearly represent a major criminal enterprise and were accepted as being of that character by learned defence counsel in the District Court.

There was one further quite separate but related offence in which [Yanko] was involved. A vehicle stolen from the car park of the Raffles Hotel on 12 October 1990 was similar in kind to a motor vehicle registered in the name of [Yanko's] then defacto wife Sarah Cook. [Yanko] has not admitted involvement directly in the theft of the vehicle, but when ultimately interviewed by the police he admitted that the stolen vehicle was given to him for his defacto wife's use, that he transferred the registration particulars to it and it was used by her. In November 1990 it was comprehensively insured for the sum of $8,000.

On 5 September 1991 Miss Cook reported the vehicle to have been stolen from the car park of the Warwick Shopping Centre. She claimed its value from the insurance company and received a payout of $7,700. [Yanko] later admitted that it was he who, he asserted without his defacto wife's knowledge, had stolen the vehicle so that the claim could be made upon the insurance policy because for personal reasons she needed cash quickly. He was involved in the fraud committed upon the insurer when he procured her innocent claim under the policy. He was charged with gaining that benefit for her by fraud and that offence can be seen, according to the admissions of [Yanko], to be one devised and executed by him. The fact that it was committed to benefit another and not [Yanko] personally seems to me not to provide any mitigation for [Yanko]."

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13 Yanko returned to Western Australia and was convicted on his plea of guilty and sentenced in the District Court on 25 August 1995. The appellant ultimately returned to Australia and was arrested on 25 February 2004.

14 As appears from the judgment of Murray J in the Court of Criminal Appeal in Yanko v The Queen (supra) at 4 – 5, Yanko was aged 34 when he was sentenced by Kennedy DCJ, as she then was, in August 1995. At that time, Yanko had previously been convicted in New South Wales of receiving goods stolen outside New South Wales. In each case he was sentenced to imprisonment for 3 years and 6 months to be served concurrently, commencing from 17 August 1989. It was after he had served these sentences that he came to Western Australia early in 1990 and obtained employment as a spray painter. Shortly afterwards, he commenced work at the Raffles Hotel. Both he and his de facto wife were keen weightlifters and body builders. Yanko was competing in this field, about which he was said to be obsessive, with the result that their combined activities were a drain on their finances.

15 Kennedy DCJ found that Yanko, as Murray J recounted in Yanko at p 4 in the Court of Criminal Appeal:

" … was introduced to the commission of these offences by a man named Farquhar, a co-offender and the principal in each of the separate criminal enterprises in which over a period of time both men were engaged. Her Honour accepted that in his obsession to do well as a body builder, [Yanko] was in the habit of consuming anabolic steroids. It was put in mitigation that he did not know that the consumption and supply of such drugs was illegal. It does not seem that her Honour accepted that and for my part, on the evidence before the Court, neither would I. Anabolic steroids are not only accepted as being deleterious drugs, but they are prohibited drugs when not prescribed by a lawful authority and they are drugs which, in the context of their unlawful possession for sale or supply, are included with all drugs other than cannabis so that their possession with that intent, contrary to the Misuse Of Drugs Act s6(1)(a), is punishable very severely."

16 Counsel for Yanko told the District Court that during the time of his intensive training and competition, Yanko was spending at least $415 per week on body building, including about $200 each week on steroids. As Murray J put it in Yanko at p 5:

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"The temptation to engage in illegal activities is obvious enough."

17 The appellant obtained the drugs and Yanko assisted in marketing them to body builders. Yanko's remuneration was to receive an adequate supply of steroids for his own use. In that context, the appellant was regarded by Kennedy DCJ, as well as Murray J (with whom Kennedy J agreed) in the Court of Criminal Appeal, as the principal offender. In these circumstances, Murray J commented that:

"… although no doubt Farquhar might be regarded as the principal offender, if for no reason than that he apparently retained the money derived from the sale of the steroids, [Yanko] played a significant part in the criminal enterprise and his role was important to its success.

When the matter came to light by the execution of search warrants on 21 January 1992 upon premises in Wangara, the men were found to be jointly in possession of substantial quantities of four different kinds of steroid drugs. That possession translated into four separate counts of possession with intent to sell or supply and in addition, [Yanko] was discovered to be in possession of six different kinds of steroid drugs for his own use. These six charges appeared on the s 656A notice as did a further count of possession of a quantity of cannabis. It can be seen that the illegal trafficking in these drugs constituted a distinct and criminal activity."

18 So far as the 270 cannabis plants were concerned, Murray J said in Yanko at 5 – 6:

"In addition, one of the premises searched at Wangara revealed a crop of 270 small cannabis plants growing in plastic buckets under artificial lights. It was apparent that the crop was at an early stage, but it was clearly being cultivated for commercial purposes and although it was difficult to put a value on the crop it could be seen to be an enterprise of some commercial significance in itself. Sophisticated arrangements had been made for the cultivation and care of the cannabis and its commercial value was perhaps underlined when [Yanko] ultimately confessed that the initiative to establish the crop had been that of Farquhar who met most of the establishment costs and actually employed [Yanko] to assist in the establishment of

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the crop and its regular care during its growth. Farquhar was to receive the net proceeds of its ultimate sale, but in the meantime he was incurring expense, particularly in the employment of [Yanko], to bring it to fruition. So that was intended to be and was to be regarded as a further discrete illegal enterprise which was to lead to trafficking in cannabis."

19 Following the completion of the police investigations in Western Australia, all of the indictable offences were notified to the authorities in England to support an application for the arrest and extradition of both the appellant and Yanko. For reasons not explained, the extradition was not proceeded with. It appears, however, that both the appellant and Yanko committed a number of criminal offences in the United Kingdom which involved steroids. As Murray J said in Yanko v The Queen (supra) at 8 – 9:

"It was not made precisely clear to the learned sentencing Judge what the offences were. It was not made clear whether in England the possession of steroids was of itself a criminal offence, but apparently they may be produced and marketed by licenced pharmaceutical companies. Whether they may only be purchased on prescription was not made clear, but [Yanko's] offence apparently involved him in some way coming into possession of steroids which were manufactured clandestinely. These [Yanko] would label so that the drugs might be passed off as being manufactured by a licensed company. The drugs would apparently not necessarily match those identified on the label. I presume that [Yanko] was involved in that scheme so that the illicit drugs could then be marketed at a profit, but little detailed information was provided to the District Court.

It emerged however, that both [the appellant] and [Yanko] had pleaded guilty to the offences with which they were charged and they had been sentenced to terms of imprisonment. [The appellant] was said to have received a shorter term, but why that was so does not appear clearly from the papers. In any event [Yanko] was sentenced to 44 months' imprisonment, appealed and had that sentenced [sic] reduced to 33 months' imprisonment, the minimum term before eligibility for parole being half the head sentence or a period of 16 1/2 months. It was said that by the time the decision of the Court of Appeal was available, [Yanko] had in fact served that period of time. He then remained in custody, presumably for the purpose of the

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application for his extradition, but after some time, when that was not proceeded with, he successfully applied by

habeas corpus

for his release. As a result he had remained in custody in England from 1 May until 30 June 1995, a period of some two months. He then remained in custody from 30 June to the date of sentencing on 25 August 1995, a further period of two months for which the learned sentencing Judge allowed a direct credit of three months by the ordinary scaling up process.

It appears that upon the issue of the writ of habeas corpus the English authorities suggested to [Yanko] that he could await the processing of the extradition proceedings upon his arrest on a provisional warrant, a process which might take some time and which would presumably involve a further period in custody, or he could accept immediate deportation at his own expense. This was the option he chose and so by that means he was returned to Australia, ultimately being arrested in Queensland to which State he travelled to make contact with family members."

20 Yanko was extradited from Queensland to Western Australia, coming before the Court of Petty Sessions on 13 July 1995. He then entered a plea of guilty under the fast-track procedure and was sentenced in the District Court on 25 August 1995. The learned sentencing Judge said she would take into account, but not provide a direct credit for the period spent in custody in the United Kingdom. Murray J (with whom Kennedy J agreed) was of the opinion that the allowance made by the sentencing Judge was all that was required in relation to that period, although, to some extent, it might have been contributed to by dilatoriness on the part of the English authorities. It was, however, primarily a consequence of Yanko having absconded from bail granted in Australia which prompted the attempts made by the Western Australian authorities to obtain his extradition upon completion of the service of the sentence imposed in England.

21 So far as the offences of stealing motor vehicles are concerned, the loss to the various individuals who were the victims of the offences was $142,000. The appellant was also convicted of the possession of an unlicensed firearm, a quantity of ammunition and the possession of a small amount of cannabis. So far as the stealing of the motor vehicle offences was concerned, it was found by the learned sentencing Judge that Yanko's role was secondary to that of the appellant, although it was "critical to the success of the enterprise".

22 The learned sentencing Judge went on to say:

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"There is a dispute with [

sic

about] the roles that you played. Obviously, it's accepted that you were partners in this enterprise and the exact role that each of you played really doesn't affect the criminality of either of you because both of you knew very well what the business was and what was going on, and you each played an integral part in carrying that business of rebirthing cars. Yanko had a criminal history, but wasn't a regular offender.

He received credit for his pleas of guilty after he had been apprehended and extradited from the eastern states. In sentencing in April 1995, the sentencing Judge sentenced him on the basis that he was in a secondary role, but was nonetheless essential and, as I said, it doesn't really matter as to categorising one person as being the principal and another being an assistant because the business was run by the both of you and both of you knew what was going on."

Ground 1: Sentencing Legislation Amendment and Repeal Act 2003

23 The issue raised by ground 1 is whether the learned sentencing Judge interpreted and applied the provisions of Sch 1 par 2.1 when sentencing the appellant.

24 It was noted that when Yanko was sentenced, regard was had to the fact that he had spent 16½ months in custody in the United Kingdom in relation to offences committed together with the appellant and, because that sentence had only been completed shortly before she sentenced him, her Honour took it into account in the totality of the sentence. When Yanko's case went to the Court of Criminal Appeal, the majority concurred with this approach. In Yanko's case, although the sentences in the United Kingdom and in Australia were not served concurrently, they were served in close proximity. In these circumstances, it was considered appropriate that there be some recognition of that fact in the context of totality. When sentencing the appellant, the learned Judge said:

"That's not the case with you and I can't see any reason to take account of the time that you spent in custody in the United Kingdom, albeit it was a lesser time than your co-offender, as I understand, in fixing your sentence in relation to these matters.

I say that bearing in mind that you've got the additional offence of possession with intent to sell or supply the drug and two additional motor vehicle offences, although you don't face an

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offence of fraud. I'm also aware of the difference in the sentencing regime under which your co-offender Yanko was sentenced and you. The sentencing laws have changed since that time but the bottom line is that if there is to be parity, then you should not spend any more time in custody now than he did receive back in 1995."

25 Yanko received a total sentence of 5 years and 6 months with eligibility for parole for the offences in respect of which he was a co-offender with the appellant. In the meantime, however, under the Sentencing Legislation Amendment and Repeal Act (2003) (WA) Sch 1 par 2.1, which came into force on 1 August 2003, a Court passing sentence after the coming into force of that Act is required to impose a sentence which is two-thirds of the term which would have been imposed under the former legislation, namely, a sentence of 3 years and 8 months.

26 As a result of the total sentence of 5 years and 6 months imposed on Yanko, it was said by the appellant that Yanko would be required to serve a total of 22 months before being eligible for parole. That proposition assumed that when Yanko was sentenced, s 93(1)(a) of the Sentencing Act 1995 (WA) applied which provided that, subject to s 94, (which had no application in Yanko's case), a prisoner serving a sentence of 6 years less, who was serving a parole term, was eligible for release on parole when he or she had served one-third of the term. Thus, Yanko would have been eligible for release on parole after serving 22 months of the sentences imposed upon him.

27 In fact, Yanko was sentenced on 24 August 1995. The Sentencing Act 1995 did not receive the royal assent until 16 January 1996 and was not proclaimed to commence until 4 November 1996. It follows that when Yanko was sentenced, the parole regime was that provided for in the Offenders Community Corrections Act 1963 (WA) by s 37A of that Act. The discretion to order that a convicted person be eligible for parole under s 37A(2)(a), which applied where the term was not more than 6 years, was that he or she would be eligible for parole after serving one-third of the term. It follows, on the face of it, that Yanko was still required to serve a minimum of one-third of his sentence of the equivalent of 66 months, namely, 22 months before being eligible for parole. Section 3(1) of the Sentencing Act 1995, however, provided that:

"Subject to this section, this Act applies to all persons convicted of an offence whether or not the offence was committed before this Act comes into operation."

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28 In my opinion, s 3(1) did not apply to a person who had already been convicted and sentenced under the previous legislation, although it did apply to persons who had been convicted but not sentenced under the previous legislation. Consequently, Yanko's sentence was to be served in accordance with the relevant provisions of the Offenders Community Corrections Act, to which I have referred, rather than in accordance with the Sentencing Act 1995 on which the appellant relied. It follows that Yanko was still required to serve only one-third of this sentence, namely, 22 months before he was eligible for parole. By contrast, (because the appellant's sentence was more than 4 years) the appellant will be required to serve 2 years less than the full term before being eligible for parole as provided in s 93 of the Sentencing Act 2003, namely, 3 years or 36 months.

29 Yanko was sentenced to a total of 5 years and 6 months for the relevant offences and the appellant was sentenced to a total of 5 years. The appellant submitted that, although the sentence of 5 years or 60 months was a lesser term than that imposed upon Yanko, and the learned Judge referred to Sch 1 par 2.1 of the Sentencing Legislation Amendment and Repeal Act (2003) (WA), his Honour failed to apply it correctly because, under the new legislation, the appellant will be required to serve 36 months in prison which, on the appellant's calculation, is 14 months longer than Yanko was required to serve in prison. The appellant submitted that the result of the correct application of the above Act would be that his sentence of 5 years or 60 months should be reduced to 3 years and 4 months, namely, 40 months, with the result that under the new legislation he would be eligible for release 1 year and 8 months after 25 February 2004, namely, on 26 October 2005.

30 As Pullin JA has correctly pointed out in his reasons, there are decisions in this State to the effect that in comparing sentences in the context of alleged disparity, the non-parole period fixed in relation to one co-offender should not be taken into account in relation to another co-offender. The decisions cited by Pullin JA make that clear, including my own decision in Archibald v The Queen (1989) 40 A Crim R 228. In that case I said at p 230:

"The substance of the new scheme is that a statutory formula is laid down whereby the minimum term is fixed by the Act which will apply if an order is made under s 37A that an offender be eligible for parole. Thus the question of eligibility for parole must be considered once a sentence of imprisonment

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appropriate to the gravity of the offence in the light of antecedents of the offender has been determined."

31 While in Postiglione v The Queen (1997) 189 CLR 295 the High Court was unanimously of the view that the application of the parity principle extended to the non-parole period as well as the sentence of imprisonment, the position in Western Australia is that the non-parole period is fixed by statute, rather than as the result of the exercise of the discretion. The exercise of discretion relates only to the length of the sentence and the decision whether or not to order that the offender be eligible for parole.

32 It follows that ground 1 necessarily fails.

Ground 2

33 In my opinion, ground 2 adds nothing of substance to ground 1. It was contended that the sentence of 5 years under the new legislation imposed on the appellant will require him to be in prison for 36 months which would be the opposite of what the learned sentencing Judge was trying to achieve. This was so because of the comparative sentences of 5 years and 6 months imposed on Yanko for the offences, excluding the offence of fraud with which the appellant was not charged. Yanko was required to serve one-third of his sentence before being eligible for parole, namely, 22 months. The appellant, however, is required to serve a minimum of 36 months in respect of the sentence of 5 years imposed upon him. It seems clear, however, that the learned sentencing Judge intended to ensure that the appellant spent proportionately less time in prison than Yanko. In the result, however, the effect of the sentences imposed on the appellant will be that he will be required to spend 14 months longer in prison than Yanko, which is the opposite of the result that the learned Judge intended to achieve. As already stated in respect of ground 1, the non-parole periods are irrelevant in the present statutory context, notwithstanding that the result entitles the appellant to have a justifiable sense of grievance on the part of the appellant because the disparity gives the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ; at 610 – 614 per Mason J; and at 617 – 621 per Brennan J. That is a consequence of the changes in the applicable legislation which means that the Court has no power to adjust non-parole periods.

34 For these reasons I consider that ground 2 fails.

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Ground 3: disparity in relation to anabolic steroid offences

35 Yanko was sentenced to imprisonment for 12 months in respect of each of the anabolic steroid offences the subject of counts 3 to 6 in respect of which the appellant also pleaded guilty. The appellant was sentenced to a total of 36 months in respect of the same offences under the 2003 legislation. In order to achieve parity, the sentences imposed upon the appellant for these offences needed to be adjusted. This would require a reduction of each of the resulting sentences of 12 months by one-third to 8 months.

36 It was also submitted by the appellant that in relation to count 6 on the indictment, the drug Tamoxifen is not an anabolic steroid, but an anti-cancer drug routinely used by women. No evidence was adduced in support of this contention. Such evidence could only be received by leave. None was sought, and in the general scheme of things, this is not a material matter. In the result, the appellant submitted that in all the circumstances, his sentences for the anabolic steroid offences should be reduced from 1 year or 52 weeks to 50 weeks. In my opinion, subject to the qualification regarding Tamoxifen, ground 3 was made out.

Ground 4: rehabilitation

37 It was contended by the appellant that the sentences imposed were manifestly excessive and failed to take into account the extent of his rehabilitation and the very lengthy period of 12 years between the commission of the offences and his conviction and sentence. When sentencing the appellant on 20 August 2004, the learned sentencing Judge said to him:

"It's clear that you're a different man now than you were when you left the State and an older and a wiser man with a good appreciation of what the future may hold for you."

38 At the time the offences were committed, the appellant was aged 37. He is now 49 years of age. He accepts that he offended as a result of selfishness and immaturity and has since had deep feelings of regret and guilt because of the unnecessary suffering that he caused the victims.

39 When he absconded from Australia, he travelled to the United Kingdom where he enrolled in a course of Sports Injury Therapy at Landudno College in Wales. He successfully completed the course. In the mid-1990s he spent a significant period in aid work in Asia. In particular, he was involved in getting abandoned children off the streets

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into safe havens, such as monasteries and hospitals. He worked in and gave financial aid to various humanitarian aid projects, including work for the Mother Theresa Foundation in Calcutta, India. He also enrolled in meditation retreats and religious studies where he spent "quality time" contemplating the nature of his past negative acts and planning for his future.

40 In the late 1990s he returned to the United Kingdom. From that time until 2003, between periods of hard work, he became engaged full-time in human rights activities and, in particular, campaigning against the sexual abuse of children. He has written numerous papers and designed several websites for the purpose of informing the public about human rights abuses taking place worldwide. These websites provide information rarely reported in the mainstream media. He is a member of the International Men's Organisation (IMO) and Fathers Fighting Injustice (FFI), both of which are well respected human rights groups, involving the protection of children.

41 The appellant says that the 12 years that he has spent as a fugitive has had a major detrimental effect upon him and his family who live in Australia. He accepts that his lengthy period away has destroyed the natural bonding relationship between himself and his young daughter. He does not wish to have his daughter visit him in prison because he does not consider it an appropriate environment for bonding.

42 The appellant has a number of long-term goals. He is currently studying a TAFE course in horticulture. It is his intention to continue his TAFE studies with a more advanced horticulture course as well as a course in stone masonry after he is released from prison. He has offers of employment which he intends to pursue immediately upon his release. It is his intention, on the completion of his studies, to start his own business as a garden designer and landscaper. When he has saved enough capital, he intends to travel to Africa to work in communities to assist in providing clean water, suitable housing, adequate health care and education.

43 The appellant's contention that he was fully rehabilitated was supported by more than a dozen references from relatives and other persons who knew him.

44 Significantly, counsel for the State submitted that the intention of the learned sentencing Judge was to impose on the appellant the same sentences as had been imposed on Yanko on the basis of the finding by his Honour that the appellant and Yanko were equally culpable. In

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particular, the reference made by the learned sentencing Judge to "a slightly different lesser sentence than the co-offender", Yanko, was related to the fact that Yanko had to be sentenced for additional offences of fraud which did not involve the appellant.

45 It was conceded on behalf of the State that, in the event, the learned Judge imposed a greater effective term on Yanko than was imposed on the appellant. Leaving aside Yanko's entitlement to a discount for time in custody of 3 months and his cumulative 18 months' term for the offences of fraud, Yanko's effective head sentence for the offences committed jointly with the appellant was 66 months. Under the sentencing regime which then applied, that amounted to a finite term before eligibility for parole of 22 months, being one-third of the sentence. By contrast, a finite term of 5 years was imposed on the appellant.

46 Counsel for the State submitted, however, that issues of totality and the difference in the sentencing regimes applicable precluded a direct comparison for sentencing purposes. In my opinion, however, it is necessary to look at the end of each sentencing process to ensure parity, taking into account the respective roles of the appellant and Yanko in relation to the offences in which they were both involved.

47 In my opinion, s 3(1) did not apply to a person who had already been convicted and sentenced under the previous legislation, although it did apply to persons who had been convicted, but not sentenced under the previous legislation. Consequently, Yanko's sentence was to be served in accordance with the relevant provisions of the Offenders Community Corrections Act, to which I have referred, rather than in accordance with the Sentencing Act 1995 on which the appellant relied. It follows that Yanko was required to serve only one-third of his sentence, namely, 22 months before he was eligible for parole. By contrast, the appellant will be required to serve one-half of the total sentence of 5 years imposed upon him, namely, 30 months, before being eligible for parole. I accept, however, that the sentences cannot be adjusted merely by reason of the differing parole provisions which were applicable under the relevant legislation when the appellant was sentenced.

48 In my opinion, in order to achieve parity and relativity between the sentences imposed, it is necessary to adjust the head sentences imposed on the appellant to reflect the respective roles of the appellant and Yanko in terms of parity, totality and all of the matters of mitigation, the transitional provisions to which I have referred, and the expressed intention of the learned sentencing Judge to impose a slightly lesser sentence on the

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appellant than that imposed on Yanko. As the appellant contended, the total sentence imposed upon him should be reduced to a sentence of 3 years and 4 months' imprisonment, a total of 40 months, with the result that the minimum term the appellant will be required to serve will be 20 months or 2 months less than the minimum term of 22 months that Yanko was required to serve. This produces a result which, in my view, is consistent with what the learned sentencing Judge seems to have intended. Without adjustment, the appellant would be entitled to a justifiable sense of grievance by reason of the differing periods they would be required to spend in prison as a result of the differing sentencing regimes under which they were sentenced:

cf

Lowe v The Queen

(

supra

) at 611 – 615 per Mason J; at 617 – 618 per Brennan J; and at 623 – 624 per Dawson J. A Court is not, however, compelled to impose a sentence on a co-offender that would result in a wholly inadequate sentence. When one co-offender has been treated with excessive leniency, for example, justice may be done if his or her co-offender is sentenced to as lenient a sentence as can be justified within the accepted range of sentences appropriate for the kind of events involved:

cf

Capper v The Queen

(1993) 69 A Crim R 64. That decision was approved in

Goddard v The Queen

(1999) 21 WAR 541 at 557 per Pidgeon J; and at 561 per Murray J. For these reasons, I would grant the appellant leave to appeal, allow the appeal and vary the sentences imposed by setting them aside and imposing the following sentences:

Count 1 3 years' imprisonment concurrent with counts 2 and 7

Count 2 2 years' imprisonment

Count 7 16 months' imprisonment cumulative on count 2

Counts 3-6 8 months in respect of each count concurrent with counts 2 and 7

Counts 8-16 2 years' imprisonment concurrent with counts 2 and 7

Section 32 matters Possession of prohibited drug – 6 months' imprisonment concurrent with count 2

Possession of unlicensed firearm – 8 months' imprisonment concurrent with count 2

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49 This results in a total sentence of 3 years and 4 months.

50 The appellant submitted that the sentences of imprisonment should all be suspended. At the date of the hearing of his application on 8 February 2005, the appellant had spent 11 months in custody. The appellant voluntarily returned to Australia to be dealt with for these offences. While Yanko also absconded at the same time as the appellant, he returned to Australia having been away for some three years. An offender is not entitled to leniency because he or she has succeeded in remaining at large for a lengthy period. In this case, however, the appellant has demonstrated that he has substantially rehabilitated himself. Not without some hesitation, I have concluded that it would be in the best interests, not only of the appellant but also of the community, if the sentences imposed were suspended for a period of two years.

51 It should be clearly understood that if the appellant were to reoffend and is brought back before the Court to be resentenced under s 80 of the Sentencing Act 1995, the sentencing Judge called upon to deal with the matter would take into account the time that the appellant has already spent in custody in relation to these matters.

52 For these reasons, I would grant the appellant leave to appeal, allow the appeal, quash the sentences imposed by the learned sentencing Judge and impose the sentences to which I have referred, which will be suspended for a period of 2 years.

53 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for decision of the Chief Justice and Pullin JA. The facts in respect of the offences and the background of this application for leave to appeal against sentence are comprehensively set out by the Chief Justice.

54 I have some difficulty in seeing in principle why a prison term served in another country for unrelated offences committed in that country, should figure in a consideration of "totality" in respect of sentencing for offences committed in Australia. The sentencing Judge did not take account here of the time the appellant had spent in custody in the United Kingdom, distinguishing the appellant's position in that respect from that of Yanko on the basis that Yanko had served a longer term of imprisonment followed by custody on remand and had then come to be sentenced in Australia quite shortly afterwards, whilst the appellant had spent less time in prison in the United Kingdom and that had been some nine years earlier. There was simply no basis for including the appellant's

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time in custody in the United Kingdom in any application of the principle of totality to his sentencing on 20 August 2004.

55 Grounds 1 and 2 were predicated on the actual time the appellant had spent in prison before becoming eligible for parole, by comparison with his co-offender, Yanko. It was submitted the expressed intention of the sentencing Judge was to fix an aggregate sentence which would result in the appellant spending less time in prison than Yanko. Just before he actually articulated the sentences, his Honour said that what he intended to do was to structure the sentence so that it would be a slightly different, lesser sentence, than the appellant's co-offender. There is no difficulty with that. However, the submission appears to have been founded in part upon the statement earlier made by his Honour that:

"… the bottom line is that if there is to be parity, then you should not spend any more time in custody now than [Yanko] did receive back in 1995".

56 Whether his Honour really meant that as a reference to the time in prison before eligibility for parole is open to conjecture. Given the context (which was that his Honour was discussing the different sentencing regime which now applied to the appellant) it is more likely he was intending to refer to the comparative head sentences. Be that as it may, I agree with what Malcolm CJ and Pullin JA have said in relation to ground 1. In this State, non-parole periods are fixed by statute and not by sentencing Judges as part of a sentence. The authorities referred to by Pullin JA make it clear that time to be served before eligibility for parole is not a factor to be taken into account for the purpose of comparing sentences or in determining whether or not a particular sentence gives rise to a justifiable sense of grievance. As the Chief Justice points out, statements to the contrary in Postiglione v The Queen (1997) 189 CLR 295 were made in the context in which the sentencing Judge was required to fix a non-parole period.

57 The appellant relied on the statement by Gaudron J in Siganto v The Queen (1998) 194 CLR 656, at [51]:

"Once it is appreciated that the principle of parity in sentencing is concerned with consistency in punishment, it is apparent that all components of a sentence must be taken into account to determine whether the principle has been violated, including the maximum and minimum periods of actual incarceration (see

Postiglione v The Queen

(1997) 189 CLR 295 at 302, per Dawson and Gaudron JJ; at 338, per Kirby J. See also

Lowe v

(Page 22)

The Queen

(1984) 154 CLR 606 at 610, per Gibbs CJ; at 620, per Brennan J; at 625, per Dawson J). That is so whether the question is that of parity between co-offenders or parity across the range of those convicted of the offence in question".

58 Although the relevant sentencing legislation in that case did require the sentencing Judge to fix a non-parole period (which in respect of offences of sexual assault, which that was, had to be 70 per cent of the head sentence), Gaudron J was in dissent and the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) dealt with that ground of appeal (at [17]) simply on the basis that differential treatment of the appellant by comparison with offenders sentenced before amendments to the sentencing legislation came into effect, was not relevantly inequality before the law, but a consequence of a change in the law.

59 I agree with Pullin JA that the sentencing Judge erred in that he failed to give effect to the imposition of the fixed sentences and their aggregation, to his expressed intention of fixing the appellant's sentence lower than that of Yanko.

60 I agree with the reasons and conclusion of the Chief Justice and Pullin JA in respect of ground 3. The intention of the sentencing Judge was clear. The terms imposed upon the appellant by him go against his Honour's expressed intention. Furthermore, there is no apparent reason why they should have been so significantly more severe than the sentences imposed on Yanko for those offences. Those sentences give rise to a justifiable sense of grievance on the part of the appellant.

61 With respect, I cannot agree with the Chief Justice that considerations of parity and totality apply in respect of ground 4 in the way expressed in his Honour's reasons. It is the fixed term (and the aggregation of the fixed terms) to which regard is to be had.

62 The sentencing Judge did take the appellant's rehabilitation into account in arriving at his conclusion that the appellant should receive a lesser sentence than Yanko, and as this Court will have to re-sentence the appellant, allowance must be made for the appellant's rehabilitation over the last 12 years. I would recognise that by suspending the terms of imprisonment. Whilst rehabilitation is by no means the only factor which may justify suspending a sentence of imprisonment (Dinsdale v The Queen (2000) 202 CLR 321) it nonetheless remains one factor which has that capacity, where it exists. Here the appellant has made a quite unusual and sustained effort to rehabilitate himself over a long period of time

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since the offences and has apparently achieved notable success. The offences were serious, but that may be recognised by the imposition of terms of imprisonment. It would be in neither the interests of the community nor those of the appellant and his family, to put at risk the prospects of his continuing rehabilitation by requiring him to spend further time in prison. To the contrary, a suspended sentence of imprisonment would avoid the counter-productive features of further immediate imprisonment and at the same time afford the community some guarantee that his apparent rehabilitation is buttressed by the knowledge that should he offend again in any way he would immediately be confronted with the prospect of having his suspended sentence activated. As it was put by the Court of Criminal Appeal (Malcolm CJ, Murray and Simmonds JJ) in

Deville v The State of Western Australia

[2004] WASCA 264 at [34]:

"… to suspend service of the sentences would enable the applicant to demonstrate that the process of his rehabilitation was complete and that he would not in the future offend again."

The same may be said of this appellant.

63 By ground 5 the appellant contends that the sentence was manifestly excessive because the sentencing Judge overlooked the "double jeopardy element" and that had an effect on the sentence given.

64 As I apprehend it, the submission is that imprisonment is only one of the forms of punishment inflicted on an offender by the judicial system; punishment may also consist of any action in any form where the offender is subjected to suffering. The appellant said he left Western Australia because he was told by one of the arresting officers that he would be spending at least 20 years in prison. During the next 12 years, during which he rehabilitated himself, he was "constantly subjected to embarrassment, expense and ordeal and compelled to live in a continuing state of anxiety and insecurity: [that] state of existence being in fact a very severe form of punishment". The way it was put then was that having suffered in that way and having fully rehabilitated himself and returned voluntarily to the jurisdiction he was sentenced to a term of immediate imprisonment and as such received another punishment for the same crimes. The appellant submitted that he has been doubly punished by spending 12 years of his life with this matter hanging over his head, as well as receiving a term of immediate imprisonment upon his voluntary return to the jurisdiction.

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65 The appellant's formulation of this submission was derived from the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 614. Their Honours were there concerned with a ground of appeal that by the appellant's conviction and sentence to 12 years' imprisonment on each of two offences arising out of a single episode, he had been placed in "double jeopardy" and/or given double punishment. The appellant had broken into the complainant's home and beaten him. The appellant was convicted (amongst other offences) of maliciously inflicting grievous bodily harm with intent to do so, and breaking, entering and inflicting grievous bodily harm on the complainant. The Court held the prosecution of multiple charges containing different elements and one was not wholly included in the other was not an abuse of process and nor did it give rise to a plea in bar. It was further held, however, that to the extent charged offences contained common elements, it would be wrong to punish the offender twice for the commission of those elements.

66 In their joint judgment, McHugh, Hayne and Callinan JJ pointed out (at [9]) that the expression "double jeopardy" is not always used with a single meaning and is employed in relation to different stages of the criminal justice process: prosecution, conviction and punishment. Their Honours went on to say (at [10]):

"If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in

Green v United States

(1957) 355 US 184 at 187 - 188:

'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty'."

67 There is no merit in this ground. The situation is not one of double jeopardy or double punishment at all. The appellant has been prosecuted for these offences only once. He would have been prosecuted 12 years ago had he not left the State. It is not possible to reach any conclusion about the appellant's assertion that he left Western Australia because he
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was told by an arresting officer that he would serve at least 20 years in prison. Even if that were so (and I make no finding about it) it is no part of the criminal justice process. Any stress, expense, inconvenience or other detriment which may have been suffered by the appellant whilst out of the jurisdiction was the result of his commission of the offences. None of it was caused or imposed by the State and in particular, it was not in any sense an exercise of judicial sentencing power. It is not necessary to deal with this further.

68 I agree with the orders proposed by Pullin JA for the reasons he gives.

69 PULLIN JA: In this case the appellant was convicted of the offences referred to in the Chief Justice's reasons for decision.

70 He was sentenced on count 2 (possession of a prohibited drug with intent to sell or supply) to 3 years' imprisonment.

71 On count 7 (stealing a motor vehicle) he was sentenced to 2 years' imprisonment, cumulative on count 2. This made a total of 60 months' imprisonment.

72 In relation to counts 1, and counts 3 to 6 he was sentenced to 3 years' imprisonment concurrent with count 2. In relation to counts 8 to 16, he was sentenced to 2 years' imprisonment on each, concurrent on count 7. In relation to two offences dealt with under s 32 of the Sentencing Act 2003 (possession of cannabis and possession of an unlicensed firearm) he was sentenced to 6 months' and 8 months' imprisonment concurrent. These sentences did not therefore alter the aggregate sentence of 60 months.

73 There was a co-offender, a person by the name of Yanko, who was dealt with in relation to all but three of the offences which are on the appellant's indictment. The co-offender was also convicted of a fraud offence which the appellant was not charged with.

74 The sentencing Judge noted these differences. He then said at AB 39:

"… I also am aware of the difference in the sentencing regime under which your co-offender Yanko was sentenced and you. The sentencing laws have changed since that time but the bottom line is that if there is to be parity, then you should not spend any more time in custody now than he did receive back in 1995."

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and at AB 41:

"… what I intend to do is to structure the sentence as follows, and it will be a slightly different, lesser sentence, than the co-offender because of the fact that he faced a fraud offence and I have taken into account in fixing your term at the level that I have, albeit that you have more drug and stealing offences - bearing those things in mind and keeping the parity in mind this is what I propose to do."

75 The co-offender was sentenced to 66 months' imprisonment in aggregate (after deducting the sentence for the fraud charge).

76 Between the time the co-offender was sentenced and the appellant was sentenced, amendments to the Sentencing Act 1995 were passed, and the transitional provisions in that Act required fixed sentences to be two-thirds of the sentence which would have been imposed under the old provision.

77 If, as the learned sentencing Judge said, he intended to sentence the appellant to serve "a slightly different, lesser sentence" than Yanko, then he should have imposed a fixed term of slightly less than two-thirds of 66 months, ie slightly less than 44 months.

78 But the appellant was sentenced to 60 months' imprisonment.

79 In my opinion, and accepting as I do that the learned sentencing Judge meant to calculate a parity sentence and then reduce it slightly, he erred in sentencing the appellant to 60 months imprisonment for these offences.

80 During submissions the appellant referred to the time he would spend in prison before becoming eligible for parole compared with the time Yanko was due to spend in prison during his non-parole period. There are authorities in this State to the effect that sentencing courts should not take into account the time to be spent in prison by reference to the non-parole period. See Wicks v The Queen (1989) 3 WAR 372 at 391 where Wallace J said about the then Offenders Probation and Parole Act that "… the parole aspect of the statute is to operate administratively and at the direction of the Executive and affects no part of the sentencing process." See also Brinsden J at 394 where he quoted Malcolm CJ in Archibald v The Queen (1989) 40 A Crim R 228 at 330 where he said:

"The substance of the new scheme is that a statutory formula is laid down whereby the minimum term is fixed by the Act which

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will apply if an order is made under s 37A that an offender be eligible for parole. Thus, the question of eligibility for parole must be considered once the sentence of imprisonment appropriate to the gravity of the offence in the light of the antecedents of the offender has been determined."

81 In Jarvis v The Queen (1993) 20 WAR 201, Ipp J said at 208:

"… it is not permissible, when considering whether or not two or more sentences have a crushing effect, to have regard to the possibility that because an applicant is eligible for parole he might serve a lesser term than the total imposed … it was the intention of Parliament when enacting the system of parole and remissions under the

Prisons Act

and the

Offenders Community Corrections Act

to put in place an administrative procedure relating to the administration and governance of prisons and prisoners to which the courts, in determining the sentence to be imposed on an offender … should have no regard."

Farquhar v The State of Western Australia

[2005] WASCA 49

16 MARCH 2005

FARQUHAR -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 49