Fza v The State of Western Australia

[2022] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FZA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 124

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   15 AUGUST 2022

DELIVERED          :   23 SEPTEMBER 2022

FILE NO/S:   CACR 202 of 2021

BETWEEN:   FZA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LONSDALE DCJ

File Number            :   IND XXXX of XXXX

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another, two counts of possessing a non‑trafficable quantity of methylamphetamine with intent to sell or supply it to another and one count of possessing a sum of money that was reasonably suspected to have been unlawfully obtained - Co-offender convicted of one common count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another and two additional offences - Whether the sentencing judge erred in failing to take into account the appellant's past cooperation - Whether there was insufficient disparity between the sentences of the appellant and co-offender

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a), s 34(1)(aa)
Sentencing Act 1995 (WA), s 8(5), s 9AA

Result:

Extension of time to appeal granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed
Sentences imposed by the primary judge set aside
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms M Ajduk
Respondent	:	Ms G Beggs

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Garlett - Exell v The State of Western Australia [2020] WASCA 179

JUDGMENT OF THE COURT:

1. This is an appeal against sentence.

2. The appellant was convicted on her pleas of guilty of four offences, all of which took place on 10 June 2020 at a house in a suburb of Perth which was, at the time, occupied by the appellant and a man whom we will refer to as A.

3. Count 1 alleged that the appellant had in her possession a trafficable quantity of methylamphetamine with intent to sell or supply it to another.  Counts 2 and 3 each alleged that the appellant had in her possession methylamphetamine with intent to sell or supply it to another (not being a trafficable quantity of methylamphetamine).  Count 4 alleged that the appellant was in possession of a sum of money that was reasonably suspected to have been unlawfully obtained.[1] 

   [1] Count 1 is contrary to s 6(1)(a), read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Counts 2 and 3 are contrary to s 6(1)(a), read with s 34(1)(aa) MDA. Count 4 is contrary to s 417(1) of the Criminal Code (WA).

4. The maximum penalty for count 1 is life imprisonment; for counts 2 and 3 it is 25 years' imprisonment and/or a fine of $100,000; and for count 4 it is 7 years' imprisonment. 

5. On 11 March 2021, the appellant was sentenced by Lonsdale DCJ as follows:

   Count 1 - 4 years' immediate imprisonment.

   Count 2 - 14 months' immediate imprisonment.

   Count 3 - 9 months' immediate imprisonment.

   Count 4 - 6 months' immediate imprisonment.

   Her Honour ordered that the sentences on counts 1 and 4 be served cumulatively and that the sentences on counts 2 and 3 be served concurrently with the sentence on count 1.  Thus, the total effective sentence was 4 years 6 months' immediate imprisonment.  The appellant was made eligible for parole and the sentences were backdated to commence on 10 June 2020.

6. The appellant's appeal was filed almost nine months out of time. The delay is sought to be explained in the affidavit of the appellant's lawyer, Miranda Jane Ajduk, sworn 31 December 2021.  Whether an extension of time is granted in this case will depend upon the merits of the appeal. 

7. Originally, the appellant relied upon a single ground of appeal which, in substance, alleged that the sentencing judge erred in law by not giving the appellant a sentencing discount for her past cooperation.  Subsequently, the appellant was given leave to add a second ground of appeal which, in substance, alleges that there was insufficient disparity between the sentences imposed upon the appellant and that of A.  The appellant's application for leave to appeal on these two grounds was referred to the hearing of the appeal.[2]

   [2] Order of Buss P, 16 March 2022.

8. On 6 May 2022, the appellant filed an application for an urgent appeal order.  An urgent appeal order was granted by Buss P on 10 May 2022. 

9. For the reasons that follow, we would grant an extension of time, allow the appeal and resentence the appellant.

The facts of the appellant's offending

1. There was no dispute in the sentencing proceedings before Lonsdale DCJ, nor in this court, as to the facts of the appellant's offending.[3] 

   [3] See prosecutor's recital of the State's amended statement of material facts, ts 15 and 16, and Lonsdale DCJ's summary of those facts, ts 25 - 26.

2. At 8.50 am on 10 June 2020, police officers executed a search warrant at the house occupied by the appellant and A. 

3. The appellant and A were located in the master bedroom.  A CCTV home security system was operating through the television on the wall in that bedroom.  During the search of the master bedroom, police located a number of items. 

4. As to count 1, in the walk‑in wardrobe, police discovered a small cylindrical package which consisted of black electrical tape wrapped around some paper towels.  Within the paper towels there was a clipseal bag containing 28.9 g of methylamphetamine with a purity of 62%.  In close proximity to the package there was a roll of paper towels and a roll of black electrical tape.

5. As to count 2, on a shelf in a jewellery cabinet, police found a storage box which contained eight clipseal bags of methylamphetamine.  The weight of the methylamphetamine in the bags varied between 1.62 g and 1.72 g, with a purity ranging between 64% and 71%.  The total weight of the methylamphetamine in the eight clipseal bags was 13.46 g.

6. As to count 3, in a drawer, police found a small storage box which contained 17 clipseal bags of methylamphetamine.  The weight of the methylamphetamine in the bags varied between 0.08 g and 0.5 g.  Each clipseal bag had a small sticker affixed to the outside and each sticker had a handwritten number on it.  The total weight of the methylamphetamine in the 17 bags was 2.87 g. 

7. As to count 4, police found a black zip‑up bag with a white envelope which contained a total of $11,750 in cash, separated into bundles. 

8. At various places in the master bedroom police officers located items commonly associated with the sale of prohibited drugs, including numerous unused clipseal bags, several sets of working electronic scales, two glass smoking implements and handwritten notes or 'tick lists'.

9. The appellant's mobile telephone was examined.  It contained messages which related to the sale and supply of prohibited drugs.

The appellant's personal circumstances

1. Lonsdale DCJ was provided with a report about the appellant written by a clinical psychologist, Ms Gosia Stasinski, dated 26 August 2020, which described the appellant's personal circumstances in some detail.

2. The appellant was aged 38 years at the time of the commission of the offences and 39 years when she was sentenced.  She was born in Perth and is close to her parents.  The appellant described her family in positive terms.  She left school following year 10 and, after working in the retail sector, became an assistant pharmacy technician.  Upon completing a degree in 2005 or 2006, the appellant worked at a pharmacy in a private hospital for about 15 years.

3. The appellant has experienced a number of negative events in her life.  As a 17‑year‑old, while working in a pharmacy, she was the victim of two armed robberies.  Later, in the course of her second marriage, she engaged in sex work to alleviate financial difficulties which had arisen for her and her then husband.  About six years ago, the appellant was injured in a motor vehicle accident, which has caused her back and neck pain. 

4. The appellant commenced using methylamphetamine in order to cope with her sex work.  Her drug use continued in order to manage and cope with physical and emotional pain, a sense of loneliness, stress and anxiety.

5. In Ms Stasinski's opinion, the appellant's offending was closely tied to her drug dependency.[4]  Ms Stasinski noted the appellant's stated desire to engage in treatment and live a prosocial lifestyle.  However, Ms Stasinski made no clear prediction as to the appellant's risk of reoffending.

   [4] Report of Ms Stasinski, page 6.

6. While she was remanded in custody, the appellant completed a drug and alcohol rehabilitation course.  She has been employed as a kitchen attendant in prison and has worked her way to a senior position in the kitchen. 

7. The appellant has a prior criminal record comprising a substantial number of offences, all of which have been dealt with in the Magistrates Court.  Among the offences committed by the appellant are offences for driving under suspension (multiple offences), possession of a prohibited drug (multiple offences), possession of drug paraphernalia (multiple offences), possession of prohibited weapons and stealing.  Prior to being sentenced, the appellant had not served a term of imprisonment. 

The sentencing remarks

1. Lonsdale DCJ's sentencing remarks included the following.

2. Her Honour expressly acknowledged the following mitigating factors:[5]

   (a)The appellant's pleas of guilty. Her Honour found that the appellant entered her pleas of guilty at the earliest reasonable opportunity and gave the appellant a discount of 25% on her sentence, the maximum discount allowable under s 9AA of the Sentencing Act.

   (b)The appellant is remorseful for her offending.

   (c)The appellant has insight into her drug addiction and is motivated to continue her rehabilitation in the future.

   [5] ts 26.

3. As to the appellant's involvement in the distribution of methylamphetamine, her Honour noted the State's submission that the appellant's offending should be characterised as 'mid‑level commercial distribution of methylamphetamine' while defence counsel submitted that the appellant was 'a low‑level dealer'.[6]  Her Honour did not accept defence counsel's submission.  She characterised the appellant's offending in this way:[7]

   I think your offending is properly characterised as mid-level commercial distribution of methylamphetamine but perhaps at the lower end of the scale within what can be said to be mid-level commercial distribution.

   [6] ts 26.

   [7] ts 26.

4. Her Honour elaborated:[8]

   And the reason why I say that is because of all of the things that were discovered by the police when they executed the search warrant on your place.  That is, the presence of closed‑circuit television, the tick lists, the scales, the bags, the phone messages and of course what must be said to be a substantial quantity of methylamphetamine.

   I can infer from all of that that the operation that you had with your co‑accused was reasonably well organised, and this is not one of those cases where it can be said that most of the methylamphetamine was for your personal use, although I can accept you did have a habit, and no doubt, some of it was for your personal use.

   So this was, as the State submit to me, a joint operation with your co‑offender, and maybe you were not the main driver of the operation or the driving force, if you like, but I find that you were actively involved in the operation.  So all in all, …this is really pretty serious offending.

   [8] ts 26 - 27.

5. Her Honour said that unless the appellant is treated for her addiction to methylamphetamine she is 'a reasonable risk of re‑offending'.[9]

   [9] ts 28.

6. Lonsdale DCJ acknowledged (correctly) that the primary sentencing objectives with respect to offending of the kind committed by the appellant are general and personal deterrence.  Her Honour said that personal deterrence was a relevant sentencing consideration for the appellant having regard to her history of drug use, as reflected in her criminal record.[10]

   [10] ts 29.

7. Immediately before announcing the sentences her Honour said:[11]

   So having regard to all of the circumstances of the case that I have just outlined, and having discounted your sentences by 25% for your pleas of guilty and then after making a further reduction for the other matters in mitigation I have mentioned, the appropriate sentences are … [her Honour then announced the individual sentences set out in [5] of these reasons.]

   [11] ts 29

8. Her Honour made no direct reference in the sentencing remarks to any cooperation given by the appellant to law enforcement authorities.

Ground 1

1. Ground 1 is in these terms:

   The learned sentencing judge erred in law by not giving the appellant a discount for her cooperation.

2. By this ground the appellant does not assert that Lonsdale DCJ erred by giving the appellant a discount for cooperation that was manifestly inadequate.  Rather, the ground asserts that the sentencing judge failed to give a discount at all.

The appellant's cooperation

1. Ground 1 is to be decided against the following background.  Prior to the appellant's sentencing by Lonsdale DCJ, a number of emails concerning the appellant's cooperation with law enforcement authorities were exchanged between defence counsel and the DPP.  These emails were admitted into evidence in this appeal.[12]

   [12] Order of Buss P, 12 May 2022.

2. It is evident from the emails that, prior to sentencing and while in custody on remand, the appellant met with a detective and provided certain information pertaining to persons engaged in criminal activity.

1. In an email sent by the detective to the DPP dated 5 January 2021, the detective stated that he had engaged in discussions with the appellant 'of a preliminary nature to ascertain whether she could provide specific, relevant and recent information that would assist police'.  The detective stated that the appellant was only able to provide 'general, non-specific and obviously not current, information on persons involved in criminal activity'.  The detective advised that the information that could be provided by the appellant related to persons 'that already have significant recordings, most of which [are] more current and specific than [the appellant] can provide'.  The detective said that no letter of recognition would be forthcoming 'as there is no information [the appellant] could provide to police that is not already recorded, and no information that would or will be actioned'.[13]

   [13] WAB 10.

2. On 8 March 2021, defence counsel sent an email to Lonsdale DCJ's associate and the State prosecutor enquiring whether a letter of recognition had been provided to the court.  On 9 March 2021, after being advised that no such letter had been received, defence counsel sent an email addressed to Lonsdale DCJ's associate with a copy to the State prosecutor which materially stated:[14]

   [14] WAB 109.

   In the absence of the letter of comfort, I make the following submission:

   -That [the appellant] met with the police in prison and provided them with some information;

   -the police did not believe that information to be of particular use to them; and

   -that despite the absence of the letter of comfort, [the appellant] ought to receive some mitigation for the information that had been provided by [the appellant].

   It is accepted that any mitigation that [the appellant] receives would be minor given that the information was not considered significant.  I understand that the State do not have any objection to the contents of this submission.

   I confirm that it is not my intention to address this in open court, however if her Honour requires it to be address [sic] I would ask that that portion of the sentencing be conducted in a closed court environment.

   If you require any further information, please do not hesitate to contact me further.  (emphasis added)

3. At the sentencing hearing on 11 March 2021, defence counsel gave his plea in mitigation without expressly addressing the issue of the appellant's cooperation.  However, in the course of the State prosecutor's submissions in reply, the issue of the appellant's cooperation was raised in this exchange with Lonsdale DCJ:[15]

   STATE PROSECUTOR:  In relation to the matter my learned friend did raise by your associate earlier this week, I believe it's probably been covered sufficiently in that email, but the State would say that it's limited in mitigation for the reasons as outlined.

   LONSDALE DCJ:  But she should be afforded some mitigation?

   STATE PROSECUTOR:  Yes, your Honour, yes.  The main factor in mitigation in the State's submission is the early plea of guilty.  But the State accepts that there are prospects for this offender's rehabilitation which is why parole would be appropriate in this case.  Unless I can assist further, those are the State's submissions.

   LONSDALE DCJ: No.  Thank you …  (emphasis added)

   [15] ts 24.

4. In this appeal, it is common ground that this exchange refers to the email described at [39] above.

The appellant's submissions - ground 1

1. It was submitted on behalf of the appellant that the cooperation given by the appellant to law enforcement authorities, as described in defence counsel's email to Lonsdale DCJ's associate on 9 March 2021, was a mitigating factor which warranted some, albeit modest, reduction in the sentences imposed on the appellant.  The appellant submitted that when regard is had to her Honour's sentencing remarks, particularly the fact that there is no express reference to the appellant's cooperation, this court should conclude that her Honour failed to give a discount for cooperation.

The respondent's submissions - ground 1

1. The respondent submitted that her Honour took into account the appellant's cooperation.  The respondent contended that Lonsdale DCJ's sentencing remarks must be considered against the background of the need to protect the appellant's safety.  This, in combination with defence counsel's statement in his email of 9 March 2021 that he would not address the appellant's cooperation in open court, and the practice of the District Court to make only an oblique reference in sentencing remarks to an appellant's cooperation,[16] provides the proper context in which the sentencing remarks must be construed. 

   [16] See Practice Direction 12, District Court of Western Australia Consolidated Practice Directions & Circulars to Practitioners, Criminal Jurisdiction which in substance states that in cases where there is a letter of recognition, the practice at the sentencing hearing is that the sentencing judge will make an oblique reference to an offender's cooperation.  Although the present case is not a case involving a letter of recognition, the State submitted that the present situation is analogous.

2. The respondent pointed to the exchange between the State prosecutor and Lonsdale DCJ at [40] above and submitted that, in light of this exchange, it was highly unlikely that her Honour did not take into account the appellant's cooperation.

3. The respondent also submitted that in stating she had made 'a further reduction for the other matters in mitigation [she had] mentioned', her Honour was referring to all of the mitigating factors, in addition to the appellant's pleas of guilty, including her cooperation. 

Disposition - ground 1

1. In our opinion, the ground of appeal has not been made out.  In context, her Honour's statement that she had given 'a further reduction for the other matters in mitigation [she had] mentioned', should be understood as including a reduction for the appellant's cooperation. 

2. Two days prior to the appellant's sentencing hearing, defence counsel sent the email referred to in [39] of these reasons, setting out his submissions in relation to the appellant's cooperation with police. Defence counsel stated that it was not his intention to address the matter in open court. Having indicated that he would not be addressing the matter in open court, it would reasonably be expected that her Honour would not refer to the matter in open court other than in an oblique way. As the appellant's cooperation was limited to past cooperation and did not include an undertaking to give future assistance, her Honour was not obliged to comply with s 8(5) of the Sentencing Act.[17]

   [17] Section 8(5) of the Sentencing Act states:  'If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court'.

1. It is clear from the exchange between the State prosecutor and Lonsdale DCJ referred to in [40] of these reasons that her Honour was aware of the email sent to her associate by defence counsel on 9 March 2021.  In that exchange, her Honour confirmed with the State prosecutor that the appellant's cooperation should afford some mitigation.  Her Honour did not indicate, nor state, that she was, despite the State's position, unwilling to give some discount for the appellant's cooperation.  It is significant that the exchange occurred immediately before her Honour commenced her sentencing remarks.  It is, as the respondent submitted, highly unlikely that, having engaged in an exchange in which the State agreed that some mitigation should be given for the appellant's cooperation, her Honour would then omit to do so.

2. Having regard to the circumstances set out above, we would construe her Honour's statement set out at [32] of these reasons and, in particular, the words 'a further reduction for the other matters in mitigation I have mentioned', to be a reference to the appellant's remorse, her efforts towards her rehabilitation and her cooperation.  All of these were matters mentioned in her sentencing remarks or immediately before she commenced her sentencing remarks.  They are plainly mitigating factors.

3. In our opinion, ground 1 has no reasonable prospect of succeeding and leave to appeal should be refused in respect of it.

Ground 2

1. Ground 2 alleges:

   There was insufficient disparity between the sentence of the appellant and that of a co‑offender in all the circumstances, giving rise to a justifiable sense of grievance.

Background - ground 2

1. It is unnecessary to repeat the details of the offences committed by the appellant or her personal circumstances.  However, it is necessary to refer to the offences committed by A, his personal circumstances and the sentencing proceedings which concerned him.

2. Almost one year after the appellant's sentencing, on 10 May 2022, A was sentenced by MacLean DCJ, after pleas of guilty to three offences. Count 1 was an offence that, on 22 May 2020, A possessed $19,500 in cash that was reasonably suspected of having been unlawfully obtained. While A was on bail for this offence, he committed two further offences, both of which occurred on 10 June 2020 and arose out of the search referred to at [11] above. Count 2 was an offence of possession of methylamphetamine with intent to sell or supply to another. This count concerned 5.75 g of methylamphetamine which police found in a blue shoulder bag worn by A. Count 3 was an offence of possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another. Count 3 concerned the same package of methylamphetamine described in [13] above. Thus, count 3 in the indictment against A is the same offence as count 1 in the indictment against the appellant. We will refer to this offence as the 'common offence'.

3. The facts of A's offending as found by MacLean DCJ are as follows.  As to count 1, at about 9.15 pm on 22 May 2020 police officers executed a search warrant at a hotel room in Northbridge which was, at the time, occupied by A.  During the search, police located a locked safe to which A provided the PIN.  Within the safe, police found two bundles of cash in various denominations totalling $19,500.  In a bedside drawer, police officers also found a small set of scales, empty clipseal bags and small quantities of the prohibited drugs GHB and MDMA.  In a shoulder bag on the bed were two small clipseal bags, which contained the cutting agent, MSM.  Among other items located in the room were a Samsung CIPHER phone and other electronic devices.  On A's mobile telephone were messages consistent with dealing in prohibited drugs.  The hotel room was booked in a false name using an altered Western Australian driver's licence as identification.[18]

   [18] Sentencing transcript, A, ts 16 - 17.

4. As we have already said, counts 2 and 3 arose from the search of the house being occupied by the appellant and A on 10 June 2020.  Relevantly to count 2, during the search A was observed to be carrying a blue shoulder bag.  A search of the bag revealed, among other things, three clipseal bags containing a total of 5.75 g of methylamphetamine and 8.34 g of a cutting agent.  The facts of count 3 do not require repetition.  A, in substance, denied knowledge of the package of methylamphetamine the subject of the common charge.  A subsequent forensic examination revealed a DNA profile matching that of A on the black tape which was wrapped around the paper towel that contained the clipseal bag with the 28.9 g of methylamphetamine inside it.[19]

   [19] Sentencing transcript, A, ts 18.

5. At the time A was sentenced, he was 47 years of age.  He had been a long-term user of prohibited substances.  MacLean DCJ said that A had 'sought recourse in illicit drug use in order to manage difficulties that had been presented to [him]'.[20]  A had, what MacLean DCJ described as, 'a significant criminal history for supplying dangerous drugs into the community'.[21]  The criminal history which was provided to this court, without objection, reveals that on 6 November 2009 A was sentenced in the District Court to a total effective sentence of 6 years 3 months' imprisonment for three offences of possession of methylamphetamine with intent to sell or supply to another.  On 7 April 2017, A was sentenced to 3 years' imprisonment for selling methylamphetamine.  In addition to these offences, A has been convicted in the Magistrates Court for possession of a prohibited drug with intent to sell or supply to another, possession of a prohibited drug, fraud and forgery. 

   [20] Sentencing transcript, A, ts 36

   [21] Sentencing transcript, A, ts 37

6. At the time he was sentenced, A had the support of his family and expressed his hope to develop a positive and meaningful relationship with his daughter.

7. In his sentencing remarks MacLean DCJ found that A was a mid-level commercial supplier of methylamphetamine into the community.[22] He found that count 2 on the indictment and the common offence were aggravated because they were committed on bail. MacLean DCJ acknowledged A's pleas of guilty, noting that they were entered after the charges were listed for trial. His Honour gave a discount of 15% pursuant to s 9AA of the Sentencing Act.  MacLean DCJ was not satisfied that A was remorseful for his offending.  MacLean DCJ also referred to A's criminal history and to the particular need for personal deterrence.[23]

   [22] Sentencing transcript, A, ts 34.

   [23] Sentencing transcript, A, ts 35.

8. MacLean DCJ expressly addressed the issue of parity with the appellant.[24]  His Honour noted that there were 'significant differences' between the appellant on the one hand and A on the other, which favoured the appellant.  In particular, he noted that:

   (a)unlike the appellant, A committed offences while on bail;

   (b)unlike A, the appellant entered her plea of guilty at the first reasonable opportunity and received a discount of 25% pursuant to s 9AA of the Sentencing Act; and

   (c)the appellant's antecedents were more favourable than A's.

   [24] Sentencing transcript, A, ts 37 - 38

9. MacLean DCJ said he was not in a position to make a finding that A was more significantly involved in the offending in respect of the common offence.  His Honour said that he sentenced A on the basis that the appellant and A were equally responsible.[25]

   [25] Sentencing transcript, A, ts 38

10. MacLean DCJ addressed the issue of totality as it concerned A.  His Honour did so at two stages.  Before announcing the sentence for the common offence, his Honour stated that he would reduce it for totality (without specifying the deduction).[26]  Then, after announcing the individual sentences for the three offences committed by A, his Honour again took into account totality 'by way of an order for concurrency'.[27]

    [26] Sentencing transcript, A, ts 38.

    [27] Sentencing transcript, A, ts 39.

11. On count 1, A was sentenced to 10 months' immediate imprisonment; on count 2, to 12 months' immediate imprisonment; and, on the common offence, to 4 years 4 months' immediate imprisonment.

12. MacLean DCJ ordered that the sentences on count 1 and the common offence be served cumulatively and that the sentence on count 2 be served concurrently with the sentence on the common offence.  Accordingly, A was sentenced to a total effective sentence of 5 years 2 months' imprisonment.  A was made eligible for parole and the total effective sentence was backdated to commence on 10 June 2020. 

13. A comparison of the sentences imposed upon the appellant by Lonsdale DCJ and upon A by MacLean DCJ reveals that, for the common offence, the appellant was sentenced to 4 years' immediate imprisonment and A was sentenced to 4 years 4 months' immediate imprisonment.  For the totality of their respective offending, the appellant was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment and A was sentenced to a total effective sentence of 5 years 2 months' imprisonment. 

The appellant's submissions - ground 2

1. In essence, the appellant contends that for both the common offence and the overall offending, she was less culpable than A and, in any event, there was more mitigation available to her than A.  Although A received a somewhat higher sentence than the appellant for the common offence and for his overall offending, the disparity was inadequate and gives rise to an objective sense of grievance such that this court's intervention is required to reduce the sentences imposed upon her.

The respondent's submissions - ground 2

1. The respondent submitted that the parity principle had not been infringed.

2. The State contended that the disparity between the respective sentences for the common offence and the total effective sentences adequately reflected differences between the offenders, and no objectively justifiable sense of grievance arises.

3. The respondent acknowledged that there were a number of factors relevant to A's offending that, when compared to the appellant,  justified the imposition of a higher sentence on him for the common offence and the total effective sentence.  These factors included:

   (1)that A's offending occurred on two separate dates;

   (2)that count 2 and the common offence were committed by A while he was on bail;

   (3)that A had prior convictions for drug dealing; and

   (4)that A received a discount of 15% pursuant to s 9AA of the Sentencing Act, whereas the appellant was given a discount of 25%.

4. The respondent submitted that the disparity of 4 months' imprisonment between the sentences imposed upon the appellant and A for the common offence was sufficient to mark the differences between the appellant and A, particularly because MacLean DCJ discounted the individual sentence imposed on A for the common offence for totality.

5. The respondent also submitted that if the comparison is made between the total effective sentences imposed upon the appellant and A, the disparity of 8 months' imprisonment in favour of the appellant properly reflected the differences between them.  The respondent emphasised that the appellant possessed an overall greater quantity of methylamphetamine than A.

Disposition - ground 2

1. The relevant legal principles applicable to the parity principle were recently stated by this Court in Garlett - Exell v The State of Western Australia.[28]  It is convenient to repeat that statement in full:

   [28] Garlett - Exell v The State of Western Australia [2020] WASCA 179 [48] - [52].

   The legal principles applicable to the parity principle are well established.  The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen has been adopted or reproduced in this court many times:

   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.  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.

   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.

   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].

   It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge.  Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.

   (Some citations omitted)

   The parity principle is concerned with substance rather than form, and the manner in which the principle is to be applied will vary according to the facts and circumstances of the case.  All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed.  The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:

   (a)the objective seriousness of each offence which each offender has committed;

   (b)the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;

   (c)whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;

   (d)each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;

   (e)whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;

   (f)the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;

   (g)whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;

   (h)the non‐parole period to be served by each offender; and

   (i)the personal circumstances and antecedents of each offender.

   In Higgins, Pritchard JA (Beech JA agreeing) noted that:

   In a case where one or more of the co‐offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co‐offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes.  In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.

   A manifest disparity in any component of the punishment imposed on co-offenders (such as the sentence imposed in respect of an individual count), which is not explicable by differences in the circumstances of the co‐offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co‑offender subjected to the greater punishment.

   In Higgins, Beech JA observed:

   Nor, in my view, are fundamental principles concerning parity consistent with a 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.  Parity is founded on the norm of equal justice.  That norm may be engaged by 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 one, or both, of the co‐offenders was sentenced for other offences.  The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.

   …

   In my view, it is open to an appellant to contend that the individual sentence imposed on a co‐offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co‐offender were also sentenced for other offences.  In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences.

2. The application of the parity principle in the present case is, to an extent, complicated by two factors.  First, while the appellant and A were each sentenced for the common offence, they were also sentenced for other offences which they committed separately.  Second, in the case of A, but not the appellant, the sentence he received for the common offence was reduced by some unspecified length for totality.  However, these factors do not, in the circumstances of this case, mean that the parity principle has no application.  This is because the parity principle is concerned with substance rather than form, and what is required is an evaluation of all of the relevant facts and circumstances, bearing in mind that equality before the law requires not only that like cases be treated alike, but that different treatment be given to persons according to the differences between them that are relevant to the scope, purpose and subject matter of the law.

3. It is clear that the common offence was the most serious of the offences committed by the appellant and A and, in respect of each of them, the sentence imposed for it comprised the bulk of the total effective sentence.  Like MacLean DCJ, we consider that the appellant and A were equally involved in the commission of the common offence.  As for the other offences the appellant and A each committed, viewed in isolation from the common offence, there is not a substantial difference between their seriousness.  Certainly, the appellant possessed, with intent to sell or supply, a greater quantity of methylamphetamine than A.  On the other hand, A was found in possession of a significantly greater quantity of cash and committed offences on two separate days. 

1. There were five other circumstances which, when evaluated together, justify a marked disparity, in the appellant's favour, between the sentences imposed upon her and those imposed upon A.

2. First, the appellant received a reduction of 25% for her pleas of guilty, pursuant to s 9AA of the Sentencing Act, compared to A, who was given a substantially smaller reduction of 15%. 

3. Second, although the personal circumstances of offenders who commit serious drug offences carry limited mitigating weight and the appellant was not herself a first offender, the appellant's personal circumstances were more favourable than A's personal circumstances.

4. Third, A had, on three previous occasions, been convicted of serious drug offences, including five separate convictions in the District Court.  The appellant had not previously been convicted of offences of this gravity.  Accordingly, personal deterrence was of greater significance in the sentencing of A than in the sentencing of the appellant. 

5. Fourth, the appellant had the advantage of findings (not made in A's case) that she was remorseful for her offending; had taken steps towards her rehabilitation; and had, as discussed in the context of ground 1, provided (albeit modest) past cooperation with the police. 

6. Fifth, unlike the appellant, A was on bail when he committed count 2 on the indictment against him and the common offence. 

7. It must be recognised that MacLean DCJ reduced the sentence he would have imposed for the common offence by some unspecified length to take into account totality.  That makes it difficult to draw any comparison of the sentences for the common offence for parity purposes, as the lack of disparity in the sentences for the common offence is explicable by an application of the totality principle.  However, a comparison may still be made between the total effective sentences.  MacLean DCJ's failure to specify the length of the reduction in the individual sentence for the common offence, on account of totality, is regrettable.  This court has stated repeatedly that where a sentencing judge reduces, in the course of applying the totality principle, the individual sentence he or she would otherwise have imposed for an offence, the sentencing judge should state the extent of the reduction.

8. We also note that the total effective sentence imposed on A was very lenient.  However, the State has not appealed against the sentences imposed on A, which therefore operate as a benchmark for consideration of the parity principle. 

9. When all relevant facts and circumstances are evaluated, particularly those referred to in [73] to [79] above, a disparity of 8 months' imprisonment in the total effective sentences is, in our view, markedly insufficient to reflect the differences between the appellant and A which favoured the appellant.  In our opinion, the insufficiency gives rise to an objectively justifiable sense of grievance on the appellant's part and, to an objective observer, an appearance of injustice which requires this court's intervention. 

10. For these reasons, ground 2 has been made out.

Resentencing

1. This court must resentence the appellant afresh.

2. It is unnecessary to repeat the facts and circumstances of the appellant's offending and her personal circumstances.  It is rightly accepted that the seriousness of the appellant's offending is such that no sentence other than immediate imprisonment is appropriate.

3. At the hearing of the appeal, and without objection by the respondent, the court was informed by counsel for the appellant that, while in custody, she has completed a number of vocational and self‑improvement courses and has been, in effect, a model prisoner.  This augurs well for her rehabilitation, but, given the entrenched nature of her drug addiction, we cannot conclude that the appellant has been fully rehabilitated.

4. The offences committed by the appellant were undoubtedly serious.  This court has said time and again that the principal sentencing objectives in respect of offences of the kind committed by the appellant are general and personal deterrence.  The appellant was part of a reasonably sophisticated commercial drug distribution operation.  At the time of her arrest, and in respect of the common offence, the appellant was found in possession of a trafficable quantity of methylamphetamine and was liable to a maximum penalty of life imprisonment.  In respect of count 2, the appellant was found in possession of a smaller quantity of methylamphetamine and was liable to a maximum penalty of 25 years' imprisonment and a fine of $100,000.

5. We have had regard to the mitigating factors (and consequently reduced the sentences we would otherwise have imposed). The most significant mitigating factor is the appellant's pleas of guilty for which a reduction of 25% pursuant to s 9AA of the Sentencing Act is appropriate.  We have also had regard to the appellant's past cooperation, although the weight to be given to this factor is modest, taking into account the nature of that cooperation.

6. Of course, in resentencing the appellant, we have had regard to the parity principle and to the sentences imposed on A for both the common offence and his total effective sentence.  In this case the application of the parity principle must be moderated by the need to avoid imposing sentences on the appellant that are so lenient as to be substantially disproportionate to her offending.

7. Taking into account all of the relevant facts and circumstances, we would resentence the appellant as follows:

   Count 1 - 3 years 6 months' immediate imprisonment.

   Count 2 - 15 months' immediate imprisonment.

   Count 3 - 8 months' immediate imprisonment.

   Count 4 - 4 months' immediate imprisonment.

8. Having regard to the first limb of the totality principle, we are of the opinion that the appropriate total effective sentence is 4 years' immediate imprisonment.  We would achieve this by ordering that the sentence on count 3 be reduced from 8 months' immediate imprisonment to 6 months' immediate imprisonment.  The reduced sentence on count 3 is to be served cumulatively upon the sentence on count 1.  The sentences on counts 2 and 4 are to be served concurrently with each other and concurrently with the sentence on count 1.  The appellant should be made eligible for parole.  The total effective sentence is backdated to commence on 10 June 2020.

9. As the drug trafficker declaration made by Lonsdale DCJ has not been challenged, it remains in place.

Conclusion and orders

1. While ground 1 has not been made out, ground 2 has been established and the appellant should be resentenced.  An extension of time to appeal should be granted.

2. The orders that we would make are as follows:

   (1)An extension of time to appeal is granted.

   (2)Leave to appeal on ground 1 is refused.

   (3)Leave to appeal on ground 2 is granted.

   (4)The appeal is allowed.

   (5)The sentences imposed by Lonsdale DCJ on 11 March 2021 are set aside and the appellant is resentenced as follows:

   Count 1:  3 years 6 months' immediate imprisonment.

   Count 2: 15 months' immediate imprisonment.

   Count 3: 6 months' immediate imprisonment.

   Count 4: 4 months' immediate imprisonment.

   (6)The sentences on counts 1 and 3 be served cumulatively and the sentences on counts 2 and 4 be served concurrently with each other and concurrently with the sentence on count 1.  The appellant is eligible for parole.  For the avoidance of doubt, the total effective sentence is 4 years' immediate imprisonment, which is backdated to commence on 10 June 2020. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BS

Associate to the Honourable Justice Buss

23 SEPTEMBER 2022