Giangiulio v The State of Western Australia
[2022] WASCA 77
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GIANGIULIO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 77
CORAM: QUINLAN CJ
BUSS P
BEECH JA
HEARD: 12 JANUARY 2022
DELIVERED : 1 JULY 2022
FILE NO/S: CACR 13 of 2021
BETWEEN: JOHN JOSEPH GIANGIULIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 672 of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant and co-offender convicted of supplying methylamphetamine to another - Appellant also convicted of possessing cannabis with intent to sell or supply to another - Parity principle - Totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 34(1)(a), s 34(2)(a)
Result:
Application for an extension of time within which to appeal granted
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr G C R Yin |
| Respondent | : | Mr P M Usher |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78
House v The King [1936] HCA 40; (1936) 55 CLR 499
I (a child) v The State of Western Australia [2006] WASCA 9
Jardim v The State of Western Australia [2011] WASCA 83
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
Roffey v The State of Western Australia [2007] WASCA 246
Stanley v The State of Western Australia [2018] WASCA 229
JUDGMENT OF THE COURT:
The appellant has applied for an extension of time within which to appeal and for leave to appeal against sentence.
The appellant was charged on indictment with two counts.
Count 1 alleged that on 13 November 2018, at Martin, the appellant and a co-offender, Mark Liadow, supplied a prohibited drug to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged that on the same date as in count 1, at Gosnells, the appellant had in his possession a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
The prohibited drug the subject of count 1 comprised 2 kg of methylamphetamine with a purity between 74% and 76%. The maximum penalty for this offence is life imprisonment. See s 34(1)(a) of the MD Act.
The prohibited drug the subject of count 2 comprised 3.48 kg of cannabis. The maximum penalty for this offence is 10 years' imprisonment or a fine not exceeding $20,000 or both. See s 34(2)(a) of the MD Act.
The appellant was convicted, on his pleas of guilty, of count 1 and count 2.
Mr Liadow was convicted, on his plea of guilty, of count 1.
On 22 December 2020, Gillan DCJ sentenced both the appellant and Mr Liadow.
The appellant was sentenced to 9 years' imprisonment for count 1 and 2 years' imprisonment for count 2. The sentencing judge ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 11 years' imprisonment. A parole eligibility order was made.
Mr Liadow was sentenced to 11 years' imprisonment for count 1. A parole eligibility order was made.
The last date for appealing against sentence was 2 February 2021. The appellant did not file his appeal notice until 4 February 2021. The appellant's application for an extension of time within which to appeal is supported by an affidavit of his solicitor, Gerald Yin, sworn 4 February 2021. In the circumstances, it is appropriate to grant the extension.
The appellant relies upon two grounds of appeal. Ground 1 alleges, in essence, that the sentences imposed on the appellant infringed the parity principle. Ground 2 alleges, in essence, that the appellant's total effective sentence infringed the first limb of the totality principle.
We would grant leave to appeal on ground 1 and refuse leave to appeal on ground 2. Neither ground of appeal has been made out. The appeal must be dismissed.
The facts and circumstances of the offending
The facts and circumstances of the offending, as read aloud by the prosecutor at the sentencing hearing and as found by the sentencing judge, were as follows.
As to count 1, in October 2018 an undercover police officer began training at a gymnasium in Canning Vale for the purpose of befriending Mr Liadow as part of an ongoing police investigation. The undercover officer and Mr Liadow became acquainted. They trained together at the gymnasium.
Mr Liadow began to engage in drug related conversation with the undercover officer. Mr Liadow encouraged the undercover officer to deal in illicit drugs. Mr Liadow indicated that he could supply the undercover officer with large quantities of methylamphetamine which the undercover officer could sell at a profit.
Mr Liadow and the undercover officer agreed that the undercover officer would attend at Mr Liadow's home address in Martin the following day to collect a large quantity of methylamphetamine.
On the afternoon of 13 November 2018, the undercover officer went to Mr Liadow's home address. Mr Liadow invited the undercover officer into Mr Liadow's home gymnasium. Shortly after, the appellant entered the gymnasium. He was carrying a plastic shopping bag. The appellant placed the shopping bag near the entrance to the gymnasium. He engaged in a general conversation with Mr Liadow and the undercover officer. The appellant left the premises after a short time.
After the appellant left, Mr Liadow told the undercover officer that the appellant was his courier. Mr Liadow handed the shopping bag, which contained 2 kg of methylamphetamine, to the undercover officer. Mr Liadow sold the methylamphetamine to the undercover officer on credit for $306,000.
Later on 13 November 2018, police executed a search warrant at Mr Liadow's home address. Mr Liadow participated in an electronic record of interview with police. However, he did not make any admissions against interest.
As to count 2, on 13 November 2018 police executed a search warrant at the appellant's home address in Gosnells. During a search of a bedroom, police located four cardboard boxes containing large clipseal or vacuum sealed bags of cannabis. The total weight of the cannabis was 3.48 kg.
On 14 November 2018, the appellant participated in an electronic record of interview with police. During the interview the appellant maintained his right to silence.
Defence counsel for Mr Liadow's submissions at the sentencing hearing
Defence counsel for Mr Liadow submitted at the sentencing hearing, relevantly, as follows:
(a)Defence counsel accepted in essence the prosecutor's statement of the material facts of the offending (ts 12 ‑ 13).
(b)Defence counsel outlined Mr Liadow's personal circumstances and antecedents. Mr Liadow had the support of a very large family group. He had an excellent relationship with his mother and he had provided her with assistance on a daily basis. Mr Liadow had remorse and profound regret for his offending; in particular, disappointment at the impact that his offending would have on his mother, his children and other family members (ts 14 ‑ 17).
(c)Defence counsel said that Mr Liadow had 'a sense of remorse … but what weight [the sentencing judge could] give to that [was] entirely a matter for [her Honour] and [it is] very difficult in drug cases to say [it is] beyond the remorse that you have for the impact your behaviour has had on others' (ts 16).
Defence counsel for the appellant's submissions at the sentencing hearing
Defence counsel for the appellant submitted at the sentencing hearing, relevantly, as follows:
(a)Defence counsel acknowledged in relation to count 2 that the appellant was in possession of scales, a cryovac machine, cryovac bags and two mobile telephones (ts 19 ‑ 20).
(b)Defence counsel accepted that the appellant should be sentenced in relation to count 2 on the basis that he intended to sell or supply the cannabis (ts 20).
(c)Defence counsel acknowledged that the cannabis the subject of count 2 had been placed into a number of 'bags of sellable quantities' (ts 22).
(d)Defence counsel submitted that, having regard to the 'lengthy term of imprisonment' that would be imposed on the appellant for count 1, 'whether [the appellant] was selling the cannabis for profit or [whether] he was warehousing it for another person, in the circumstances … as a whole, [should not] add significantly to any ultimate sentence' (ts 22).
(e)Defence counsel said in effect that he was not suggesting that there should not be some accumulation of the individual sentences imposed on the appellant (ts 23 ‑ 24).
(f)Defence counsel informed her Honour that he had taken instructions from the appellant, during a short adjournment of the sentencing hearing, and the appellant did not want to challenge any of the material facts asserted by the State in relation to the offending the subject of count 2 (ts 23 ‑ 24).
(g)Defence counsel outlined the appellant's personal circumstances and antecedents (ts 25 ‑ 26).
(h)Defence counsel emphasised that the appellant was a courier in relation to count 1; his role in relation to that offending was relatively short; the appellant was approached about 24 hours before the offending by a person whom he had met in prison; that person asked the appellant 'to do a paid favour'; the appellant was not 'purely motivated by greed in his offending' on count 1 because there was '[an] element of not wanting to say no'; the actual quantity and type of drug the subject of count 1 was not discussed with him; his understanding was that he would be paid $4,000 for 'a relatively short job' involving '[a] not … insignificant amount of drugs' (ts 27 ‑ 28).
(i)Defence counsel accepted that in relation to count 1 the appellant 'clearly … was someone [who] was trusted enough to be in possession of these drugs' (ts 28).
(j)Defence counsel submitted that the appellant was 'obviously remorseful for being caught', but the materials before the court showed that the appellant had a level of insight. In particular, the appellant had undertaken 15 sessions of counselling (ts 29 ‑ 30).
The prosecutor's submissions at the sentencing hearing
The prosecutor submitted at the sentencing hearing, relevantly, as follows:
(a)The prosecutor accepted that the appellant was acting as a courier of the methylamphetamine the subject of count 1. The State did not have any information as to the length of the appellant's involvement in that offending, but the prosecutor submitted that the appellant must have been aware that he was couriering 'a fairly large quantity of methylamphetamine' (ts 31).
(b)The prosecutor submitted that the appellant couriered the methylamphetamine for commercial gain. He appeared to have been solely motivated by the commercial gain (ts 32).
(c)The prosecutor accepted that the appellant had a lesser role than Mr Liadow in relation to count 1 (ts 32).
(d)The prosecutor acknowledged that the evidence did not establish that the appellant was actively selling cannabis into the community. However, the State's position was that the appellant ought to be sentenced 'on joint terms of sale and supply' (ts 32 ‑ 33).
(e)The prosecutor submitted that there should be 'some accumulation of sentencing' between the appellant's individual sentences for counts 1 and 2 (ts 33).
Mr Liadow's prior criminal record and the appellant's prior criminal record
Mr Liadow had numerous previous convictions as an adult. His prior offences included drug offences; relatively minor traffic offences; possessing a firearm without a licence; being on a curtilage without lawful excuse; a stealing offence; and burglary offences. In 1993 Mr Liadow committed the burglary offences. He received a total effective sentence of 2 years' immediate imprisonment. In 2008 Mr Liadow was convicted of two counts of possession of a prohibited drug with intent to sell or supply. He received a total effective sentence of 7 years' imprisonment. Mr Liadow has also committed some relatively minor drug offences for which he received fines.
The appellant also had numerous previous convictions as an adult. His prior offences included multiple offences of driving while his motor driver's licence was suspended. In 2006, 2007 and 2012 the appellant was sentenced to a term of immediate imprisonment for driving while his motor driver's licence was suspended. In 2006 the appellant was also sentenced to a term of immediate imprisonment for having breached suspended imprisonment orders. In 2012 the appellant received a total effective sentence of 5 years' immediate imprisonment for two counts of possessing amphetamine with intent to sell or supply and one count of possessing MDMA with intent to sell or supply. In 2012 the appellant also received terms of immediate imprisonment for two counts of possessing stolen or unlawfully obtained property. In addition, the appellant had previous convictions for relatively minor drug offences; relatively minor traffic offences; common assault; breach of a community based order; breaches of conditional release orders; and breach of a violence restraining order.
The psychological report in relation to the appellant
The information before the sentencing judge included a psychological report dated 16 December 2020 from Ms Helen Fowler, a clinical psychologist, in relation to the appellant. There were no expert reports in relation to Mr Liadow.
Ms Fowler made these comments about the appellant in her report:
(a)The appellant attended 15 sessions with her.
(b)The appellant had a number of psychological needs as a result of some of the confronting experiences he was exposed to as a child.
(c)During the 15 sessions the appellant began to address his psychological treatment needs.
(d)Ms Fowler expressed the view that the appellant genuinely regrets his offending behaviour and has gained an insight into his previous thinking style (namely, justification for acting with a short term goal in mind without remaining cognisant of the negative consequences of his decisions in the longer term).
The sentencing judge's sentencing remarks
The sentencing judge recounted the facts and circumstances of the offending in her sentencing remarks.
Her Honour referred to Mr Liadow's personal circumstances as follows:
(a)Mr Liadow was aged 47 at the time of sentencing.
(b)He had been married for many years but had recently separated from his wife. Mr Liadow had five children from that relationship and another two children from a previous relationship. Upon Mr Liadow being imprisoned, three of the children, who had been living with Mr Liadow, would live with his mother. Her Honour said that Mr Liadow had been 'a good father' and had 'some very strong relationships in the community' (ts 35).
(c)Mr Liadow left school at the end of year 10. He had been regularly employed in a variety of industries. He had worked in the construction and landscaping industries and had his own bobcat and skip bin businesses.
(d)He had used methylamphetamine from the age of 17, but had ceased using the drug in 2002. He was in good physical and mental health.
(e)Mr Liadow had a significant prior criminal record, including a previous conviction for possession of methylamphetamine with intent to sell or supply for which he served a long prison sentence. Her Honour said that the need for specific deterrence in relation to Mr Liadow was 'obvious' (ts 36).
Her Honour referred to the appellant's personal circumstances as follows:
(a)The appellant was aged 50 at the time of sentencing.
(b)He was a single man with two sons and a grandchild. Her Honour said that the appellant had a close relationship with his sons and other members of his family.
(c)The appellant left school at the end of year 10. He completed an apprenticeship in carpentry and then worked in the building industry for many years. Since 2003 his work history had been affected by injuries he had suffered, but at the time of sentencing he was working as a delivery driver. He had a very good work ethic.
(d)He suffered from anxiety, stress, depression, high blood pressure and some deafness. He had managed his life notwithstanding dyslexia.
(e)The appellant had a long history of illicit drug use including cannabis and methylamphetamine. However, since his arrest the appellant had not relapsed into methylamphetamine use.
(f)He had a prior criminal record including convictions for serious drug offences for which he had been imprisoned.
(g)A report from the appellant's treating psychologist, Ms Fowler, stated that the appellant has a cluster of personality traits which indicate that he suffers from chronic low mood and depression. Some of his illicit drug use masks emotional distress.
(h)The appellant was remorseful for his offending.
The sentencing judge noted that both Mr Liadow and the appellant had pleaded guilty. Despite a strong State case, her Honour discounted the individual sentences for Mr Liadow and the appellant by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
Her Honour said that Mr Liadow and the appellant were involved in the business of drug dealing in different respects.
The sentencing judge said that Mr Liadow had demonstrated a willingness to counsel the undercover officer on the methods which the undercover officer could use to carry out the sale of a large quantity of methylamphetamine, including the use of encrypted telephones and nondescript cars. Mr Liadow's ability to source 2 kg of methylamphetamine and to sell it to the undercover officer on credit for $306,000 demonstrated that Mr Liadow was operating 'at a reasonably high level in a commercial chain of supply of drugs' (ts 38). Mr Liadow acted in a brazen fashion in effecting the sale. His home was protected by closed circuit television and he used the appellant as a courier to shield his activities.
Her Honour sentenced the appellant on the basis that he was Mr Liadow's courier. However, her Honour emphasised that characterising the appellant as a courier did not detract from his involvement in a significant way in a criminal enterprise. Although the appellant was not 'the profit taker', he was to be paid 'several thousand dollars for what was a really short job' (ts 38). The appellant knew of the existence of the methylamphetamine and was prepared to deliver it.
The sentencing judge noted that the appellant was in possession of a significant quantity of cannabis (3.48 kg) with intent to sell or supply. Although her Honour was unable to find that the appellant intended to sell the cannabis for 'a commercial return', the cannabis was 'packaged for the purposes of supply' and the appellant was prepared to be involved in the sale or supply of the cannabis (ts 38 ‑ 39).
Her Honour dealt with the totality principle in relation to the appellant as follows:
[The appellant], I need to take into account the fact that you need to be sentenced with respect to two offences and the principles of totality and what they essentially mean in this case is that I have to consider all of your offending and then ensure the total effective sentence bears a proper relationship to your overall criminality but not impose a crushing sentence on you.
So crushing means in the context of this case that I need to arrive at a sentence that gives you a reasonable expectation of useful life after your release but that the two sentences, the aggregate sentence is ‑ I don't just aggregate the two sentences together.
So the position is, it seems to me, that the starting point for two kilograms of methylamphetamine after trial would be something in the order of 14 to 15 years' imprisonment.
But taking into account all the mitigating matters, Mr Liadow, I sentence you to 11 years' imprisonment with respect to count 1.
[The appellant], to nine years with respect to count 1 and two with respect to count 2.
I've taken into account ‑ so effectively, you have the same sentence each (ts 39).
After the sentencing judge completed her sentencing remarks, defence counsel for the appellant sought confirmation that the individual sentences for counts 1 and 2 were to be served cumulatively. Her Honour confirmed that they were to be served cumulatively (ts 40).
Ground 1: the appellant's submissions
Counsel for the appellant submitted that, for the purposes of count 1, the appellant was a courier of a large quantity of methylamphetamine for profit. It was argued that there was no evidence (nor could any reasonable inference be drawn) that the appellant's involvement in count 1 continued or was intended to continue after he left Mr Liadow's home. The sentencing judge found that the appellant's involvement was a 'short job' (ts 38).
Counsel submitted that, by contrast, Mr Liadow operated in relation to count 1 at a reasonably high level in the chain of supply. He counselled the undercover officer in relation to the offence. It was argued that Mr Liadow intended to continue to be involved in relation to the distribution of the methylamphetamine.
According to counsel, the appellant was in the least culpable category in the hierarchy of the drug dealing enterprise. The appellant's criminality in relation to count 1 was substantially less than that of Mr Liadow. Despite that significant difference in their culpability, the appellant's sentence for count 1 was only 2 years less than Mr Liadow's sentence.
Counsel submitted that the difference between the length of the appellant's sentence for count 1 (9 years) and Mr Liadow's sentence for that count (11 years) did not reflect an appropriate disparity in the sentencing outcome. Consequently, the appellant had a justifiable sense of grievance.
At the hearing of the appeal:
(a)Counsel for the appellant accepted that the appellant's offending on count 2 involved significant criminality (appeal ts 3).
(b)Counsel acknowledged that it was necessary that there be at least some accumulation of the individual sentences imposed on the appellant for count 1 and count 2 (appeal ts 3).
(c)Counsel accepted that neither Mr Liadow nor the appellant had significant mitigation. It was asserted, however, that the appellant's personal circumstances were more favourable than Mr Liadow's 'in terms of what [the appellant] did leading up to the sentencing hearing, in terms of rehabilitation, attending 15 sessions with Ms Fowler' (appeal ts 3).
(d)Counsel argued that 'there was [not] a great deal between [Mr Liadow and the appellant] in terms of their ages and their [prior criminal] records' (appeal ts 5). According to counsel, the material difference between Mr Liadow and the appellant was to be found in their personal circumstances at the time of the offending (appeal ts 5).
(e)Counsel acknowledged that the sentencing judge did not make any findings as to the duration of Mr Liadow's drug dealing business. However, it was asserted that it was to be inferred that Mr Liadow would have had an ongoing role in the transaction with the undercover officer because the undercover officer owed $306,000 to Mr Liadow in connection with the sale of the drugs on credit. Mr Liadow would undoubtedly have endeavoured to collect the money he was owed. By contrast, the appellant was merely a paid courier for a very short job. The job was completed when he delivered the bag containing the drugs (appeal ts 6 ‑ 7).
(f)Counsel submitted that her Honour said in effect that the gravamen of the offending on count 2 was the appellant's willingness to permit a very large quantity of cannabis to be disseminated into the community. Whether the appellant would make a commercial return or not, he was willing to facilitate the distribution of the cannabis (appeal ts 10 ‑ 11).
(g)Counsel acknowledged that, by virtue of the appellant's conviction on count 2, the appellant was to be sentenced on the basis that he intended to sell or supply the cannabis (appeal ts 11).
(h)Counsel confirmed that there were two limbs to his argument on the parity principle. First, the principle was infringed in relation to the individual sentences for count 1. Secondly, there was an infringement of the principle in relation to the total effective sentences. Counsel acknowledged that, logically, the allegation of an infringement of the parity principle should be dealt with initially by reference to the individual sentences for count 1. Counsel also acknowledged that if the appellant failed to establish an infringement of the parity principle in relation to the individual sentences for count 1 then counsel would 'struggle' to make out an infringement of the parity principle in relation to the total effective sentences (appeal ts 10 ‑ 13).
Ground 1: the State's submissions
Counsel for the State submitted that the personal circumstances of Mr Liadow and the appellant were not sufficiently unusual or extraordinary so as to be afforded any significant degree of mitigation.
It was submitted that Mr Liadow's family and parenting responsibilities had some significance to the limited extent that mitigation can derive from personal circumstances in sentencing for serious drug dealing offences.
Although the sentencing judge did not refer to the issue of remorse in relation to Mr Liadow in her sentencing remarks, defence counsel for Mr Liadow addressed this issue at some length at the sentencing hearing. Her Honour did not reject the submissions made by defence counsel as to the nature and extent of Mr Liadow's remorse.
Counsel contended that, on balance, the personal circumstances and mitigating factors in favour of each of Mr Liadow and the appellant did not require any greater degree of disparity between the sentences they received.
Counsel for the State took issue with counsel for the appellant's contention that the only reasonable inference from Mr Liadow's provision of methylamphetamine on credit to the undercover officer was that it was 'intended Mr Liadow's offending in relation to the methylamphetamine would be ongoing'. Counsel for the State noted that the sentencing judge did not make any findings about Mr Liadow's intention in relation to further offending in respect of the methylamphetamine sold to the undercover officer. It was submitted that her Honour was not obliged to make any finding on that issue in determining the nature and extent of Mr Liadow's criminality. Counsel for the State argued that a different reasonable inference was open in relation to Mr Liadow's sale of the methylamphetamine on credit, namely, that Mr Liadow expected that the undercover officer would repay the outstanding debt with money obtained from the on sale of the methylamphetamine.
According to counsel, Mr Liadow's provision of the methylamphetamine on credit to the undercover officer is a neutral consideration on the question of whether Mr Liadow's involvement in the offending was 'intended to be ongoing'.
Counsel acknowledged that at the sentencing hearing it was an agreed fact that the appellant had a lesser role than Mr Liadow in the commission of count 1. However, counsel contended that the degree of difference between Mr Liadow's criminality and that of the appellant was not as significant as the appellant asserts on appeal.
It was submitted that, although the appellant was sentenced on the basis that he was a courier of the methylamphetamine and on the basis that he was not a 'profit taker', the appellant was nevertheless involved in a significant way in the criminal enterprise. The appellant anticipated being paid $4,000 for couriering the methylamphetamine. That was a significant reward for what was, as her Honour observed, 'a really short job'. It was submitted that the quantum of the payment for 'a really short job' indicates the level and the importance of the appellant's involvement in the success of the criminal enterprise.
Counsel for the State argued that the appellant assumed a high degree of risk and responsibility in attending at the location where he took possession of the methylamphetamine. He then travelled by motor vehicle, with the methylamphetamine, from the pick-up location to Mr Liadow's home. During the journey the appellant was at risk of detection by the authorities while he was in sole physical possession of the methylamphetamine. At Mr Liadow's home, the appellant exposed himself to additional risk by delivering the methylamphetamine to Mr Liadow in the presence of the undercover officer. It was argued that, although the appellant's role was subordinate to Mr Liadow's, the appellant played a central role in the commission of the offence.
It was submitted that the appellant's offending on count 1 was aggravated by the fact that he was prepared to courier a very significant quantity of the methylamphetamine for commercial gain. The bulk of the methylamphetamine was obvious. The appellant must have been aware that he was couriering a very significant quantity of drugs. He demonstrated a willingness to facilitate the dissemination of that quantity of drugs into the community.
Counsel argued that, in the circumstances, the appellant had not made out his allegation that a greater disparity between the sentence he received for count 1 and the sentence Mr Liadow received was warranted.
Finally, in relation to ground 1, counsel for the State submitted that, to the extent that the appellant contends that there is a lack of disparity in relation to the total effective sentence imposed on the appellant compared to the sentence imposed on Mr Liadow, the appellant was sentenced for two offences whereas Mr Liadow was sentenced for one offence. The appellant's further offending in relation to count 2, being his possession of a very considerable quantity of cannabis, with intent to sell or supply, was a separate and discrete serious offence which required additional punishment.
Ground 1: its merits
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[1] Nguyen v The Queen.[2]
[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[2] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering that one or more of the individual sentences be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[3] Johnson v The Queen[4] and Nguyen v The Queen.[5] Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[3] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[4] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
[5] Nguyen v The Queen [64] (Gageler, Nettle & Gordon JJ).
The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters. As Brennan J noted in Lowe v The Queen:[6]
The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.
[6] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617.
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe;[7] Postiglione v The Queen;[8] R v Taudevin.[9] The applicable test is objective not subjective.
[7] Lowe (609 ‑ 610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J).
[8] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).
[9] R v Taudevin [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).
The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed. See Jardim v The State of Western Australia.[10]
[10] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. See Lowe (609). But parity of sentencing does not require the imposition of a sentence that is wholly inadequate having regard to the facts and circumstances of the offence and the criminality of the offender or a sentence that is so lenient as to be an affront to the proper administration of justice. See I (a child) v The State of Western Australia;[11] Billing v The State of Western Australia [No 2];[12] Green v The Queen.[13]
In Green, 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];
(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]; and
(d)the parity principle allows for different sentences to be imposed upon like offenders to reflect 'different degrees of culpability and/or different circumstances' [28].
[11] I (a child) v The State of Western Australia [2006] WASCA 9 [66] (Steytler P; McLure JA agreeing).
[12] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).
[13] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] (French CJ, Crennan & Kiefel JJ).
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].
In Green, French CJ, Crennan and Kiefel JJ noted:
(a)the foundation of the parity principle in the norm of equality before the law requires that it be applied by reference to matters of substance rather than form;
(b)formal identity of charges against the offenders whose sentences are compared is not essential;
(c)however, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences;
(d)the greater the difference between the offences, the greater the practical difficulties, especially where the alleged disparity arises out of a sentence imposed on a co‑offender who has been charged with a less serious offence than the appellant;
(e)however, those practical difficulties and limitations do not exclude the operation of the parity principle; and
(f)the effect given to the parity principle may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged [30].
An appellate court, in deciding whether a disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or of giving the appearance in the mind of an objective observer that justice has not been done, must take into account:
(a)all components of the sentence, including the head sentence, the non‑parole period and the total effective period that both offenders will serve (Postiglione (302)); and
(b)all of the facts and circumstances applicable to both offenders, including the objective seriousness of the offences, for the purpose of identifying whether the disparity was marked and unjustified (Green [30]).
An infringement of the parity principle may occur as a result of a marked disparity in the individual sentences imposed on co‑offenders for a single common offence or from the total effective sentences imposed in relation to multiple common offences, even though either or both of the co‑offenders was also sentenced for other offences. See Higgins v The State of Western Australia.[14]
[14] Higgins v The State of Western Australia [2019] WASCA 78 [25], [44] ‑ [46], [52] ‑ [54] (Buss P), [169] ‑ [177], [181] ‑ [182] (Beech JA).
In our opinion, it is apparent from decisions of the High Court (in particular, Postiglione and Green) that the parity principle is concerned with substance rather than form, and that 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.
See Higgins [53], [184].
The application of the parity principle is often nuanced. Although the court must take into account the actual custodial term to be served by each of the offenders which is solely attributable to the common offences, the weight to be given to that factor will vary. The application of the parity principle does not involve a strict arithmetical comparison between the head sentences and the non‑parole periods to be served by each of the offenders. Rather, the sentencing court must evaluate and take into account all of the components of the relevant sentences, including any sentences being served for separate or unrelated offences, in the context of all factors of relevance. See Higgins [54], [184].
A sentencing judge's application of the parity principle involves a qualitative and discretionary judgment to which the principles in House v The King[15] apply. See Green [32]; Stanley v The State of Western Australia.[16]
[15] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[16] Stanley v The State of Western Australia [2018] WASCA 229 [40] (Buss P, Mazza & Beech JJA).
Ground 1 alleges, in essence, that the sentences imposed on the appellant infringed the parity principle.
Counsel for the appellant submitted, in effect, that:
(a)there was insufficient disparity between the appellant's sentence for count 1 (9 years' imprisonment) and Mr Liadow's sentence for that count (11 years' imprisonment); and
(b)the sentencing judge's failure to impose individual sentences which resulted in materially greater disparity in favour of the appellant was unreasonable or plainly unjust.
The appellant does not allege that her Honour made any express error in her findings of fact for the purposes of sentencing.
Her Honour found (and there can be no doubt) that Mr Liadow's criminal culpability in relation to count 1 was greater than the appellant's. That finding necessarily follows from their positions in the criminal hierarchy and from what each of them did in connection with the commission of the offence.
In particular:
(a)Mr Liadow was at a reasonably high level in the hierarchy of the criminal enterprise which procured, distributed and sold the methylamphetamine. He counselled the undercover officer in relation to the commission of the offence, including methods by which a large quantity of methylamphetamine could be sold without detection by the law enforcement authorities. Mr Liadow was able to source a very significant quantity of methylamphetamine, with a high degree of purity, for sale on credit to the undercover officer. It is to be inferred that Mr Liadow would have had a continuing role in relation to the sale to the undercover officer to the extent of recovering or receiving the outstanding debt of $306,000. It is also to be inferred that Mr Liadow would have benefited financially from the transaction with the undercover officer.
(b)The appellant acted as a courier of the methylamphetamine sold to the undercover officer. The appellant went to the location where he took possession of the methylamphetamine. He then travelled by motor vehicle, with the methylamphetamine, from that location to Mr Liadow's home. During that time the appellant had sole physical possession of the drugs. He was trusted by those at a higher level in the criminal hierarchy. The appellant knew of the existence of the methylamphetamine and was willing to deliver it. It must have been obvious to him that the quantity of the methylamphetamine was very significant. His motivation for participating in the offending was financial reward. The appellant agreed to collect, transport and deliver the methylamphetamine for $4,000. He did not have any ongoing role in relation to the drugs after he had delivered them at Mr Liadow's home.
Each of Mr Liadow and the appellant had the mitigation of pleas of guilty at the first reasonable opportunity. The sentencing judge discounted the individual sentences for Mr Liadow and the appellant by 25% pursuant to s 9AA of the Sentencing Act 1995.
Both Mr Liadow and the appellant had a significant and relevant prior criminal record. Each of them had previous convictions for serious drug dealing. Although the offending of each of Mr Liadow and the appellant was not aggravated by the fact that he had a prior criminal record and that previous sentences may not have achieved the purpose for which they were imposed, neither Mr Liadow nor the appellant had the mitigation of being otherwise of good character. Personal deterrence was a significant sentencing factor in respect of each of them. The appellant's prior criminal record may have been slightly worse than Mr Liadow's in that the appellant had been imprisoned on more occasions and for a greater range of offences. However, on our assessment there is no material distinction, for the purposes of the parity principle, between their prior criminal records.
Her Honour found that the appellant was remorseful for his offending. Ms Fowler's report stated that the appellant had attended 15 sessions with her and that he had begun to address his psychological treatment needs. Her Honour did not refer to the issue of remorse in relation to Mr Liadow. However, defence counsel for Mr Liadow did make submissions to the effect that Mr Liadow had remorse and neither the prosecutor nor her Honour indicated that defence counsel's submission should not be accepted. It appears that the appellant's initial steps towards rehabilitation were greater than Mr Liadow. However, bearing in mind that in cases of this kind matters personal to an offender are ordinarily subsidiary considerations, on our assessment any distinction, for the purposes of the parity principle, between their initial steps towards rehabilitation was minimal.
It is apparent that, in all other respects, there was no material distinction, for the purposes of the parity principle, between the personal circumstances and antecedents of Mr Liadow and the appellant or between the mitigation available to them.
After evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to Mr Liadow and the appellant in the context of count 1, we consider that the absence of materially greater disparity in favour of the appellant between Mr Liadow's sentence for count 1 and the appellant's sentence for count 1 did not infringe the parity principle or the principle of equal justice. We accept that another sentencing judge may have dealt with the parity issue in relation to count 1 more favourably to the appellant; for example, by imposing a sentence of 11 years' imprisonment on Mr Liadow and a sentence of 8 years' imprisonment on the appellant. However, we are not persuaded that the qualitative and discretionary judgment of her Honour on the parity issue produced a result in relation to the extent of the disparity between the individual sentences for count 1 that was unreasonable or plainly unjust. The absence of materially greater disparity in favour of the appellant is not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between Mr Liadow and the appellant in the sentences imposed for count 1, or generally.
Further, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to Mr Liadow (in the context of count 1) and the appellant (in the context of counts 1 and 2), we consider that the absence of any disparity between Mr Liadow's sentence for count 1 and the appellant's total effective sentence for counts 1 and 2 did not infringe the parity principle or the principle of equal justice. The appellant's offending on count 2 was very serious. That offending was separate and discrete from his offending on count 1. The appellant's offending on count 2 involved the possession of a very substantial quantity of cannabis with the intention of selling or supplying the drug so that it was disseminated into the community. The appellant's offending on count 2 required additional punishment. We are satisfied that the qualitative and discretionary judgment of the sentencing judge on the parity issue did not produce a result between Mr Liadow's sentence for count 1 and the appellant's total effective sentence for counts 1 and 2 that was unreasonable or plainly unjust. The absence of disparity in favour of the appellant is not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between Mr Liadow and the appellant in the overall sentencing outcome, or generally.
Ground 1 fails.
Ground 2: the appellant's submissions
Counsel for the appellant conceded that the sentencing judge had correctly stated the totality principle. However, it was submitted that her Honour had misapplied the principle.
Counsel noted that immediately after her Honour sentenced Mr Liadow to 11 years' imprisonment, her Honour said:
[The appellant is sentenced] to 9 years with respect to count 1 and 2 [years] with respect to count 2.
I've taken into account - so effectively, you have the same sentence each (ts 39).
When the sentencing judge completed her sentencing remarks, defence counsel for the appellant sought confirmation from her Honour that the two individual sentences imposed on the appellant had been ordered to be served cumulatively. Her Honour informed defence counsel that the two sentences were to be served cumulatively.
Counsel for the appellant submitted to this court that it was unclear what her Honour took into account for the purpose of ensuring that Mr Liadow and the appellant received the same sentence. Counsel asserted:
It may probably be assumed, because of the reference to [Mr Liadow], that this was an application of the parity principle and not the totality principle.
Counsel added that the sentencing judge did not state that either or both of the individual sentences imposed on the appellant had been reduced for totality reasons. According to counsel, the proper inference is that neither of the individual sentences was reduced for totality reasons.
It was submitted that, even if each individual sentence was appropriate, her Honour erred in the application of the totality principle 'by simply adding up the individual sentences'. Counsel asserted that if the totality principle had been applied correctly, it should have resulted in an aggregate sentence of less than 11 years' imprisonment.
At the hearing of the appeal:
(a)Counsel for the appellant clarified that ground 2 alleges an express error in that her Honour allegedly failed to apply the totality principle. Ground 2 does not make a complaint about implied or inferred error. Ground 2 does not allege that the total effective sentence imposed on the appellant was unreasonable or plainly unjust (appeal ts 13 ‑ 15, 18).
(b)Counsel said that his argument in relation to ground 2 was that, after stating 'I don't just aggregate the two sentences together' (ts 39), her Honour did just that without turning her mind to what it was that she was doing in relation to accumulation (appeal ts 15).
(c)Counsel accepted that if, on a fair reading of the sentencing remarks as a whole, the sentencing judge arrived at a discretionary decision to wholly accumulate the individual sentences, then her Honour would not have made an express error of the kind alleged in ground 2 (appeal ts 19 ‑ 20).
Ground 2: the State's submissions
Counsel for the State noted the appellant's concession that the sentencing judge had correctly stated the totality principle.
It was submitted that it was significant that, in explaining the totality principle, her Honour made particular mention of the fact that the proper application of the principle did not involve simply aggregating the individual sentences.
Counsel contended that there was no substance in the appellant's argument that her Honour failed to apply or misapplied the totality principle. Rather, it is apparent, so it was submitted, that her Honour was alert to the importance of ensuring that the total effective sentence was proportionate to the appellant's overall criminality. In particular, it was submitted that there was no substance in the appellant's argument that the words 'I've taken into account' reflected her Honour having erroneously applied the parity principle in arriving at the same overall sentence for Mr Liadow and the appellant and, by doing so, failing to apply or misapplying the totality principle.
According to counsel, it appears from the transcript that her Honour began a sentence with the words 'I've taken into account' before pausing. Her Honour then began anew with the purpose of informing the appellant of the overall effect of the total sentence imposed upon him by reference to the sentence imposed on Mr Liadow.
It was submitted that the words 'I've taken into account' were not indicative of any meaningful comment or reasoning. Her Honour had previously used that phrase in commencing a sentence which addressed Mr Liadow about his sentence. It was submitted that, read in context, her Honour had merely 'lost her place in delivering the remarks'.
Counsel for the State submitted that her Honour was not obliged to state the extent of a reduction in either or both of the individual sentences if none was made. Also, it was submitted that her Honour was not obliged to reduce either or both of the individual sentences in order properly to apply the totality principle. Her Honour's essential task, in applying the totality principle, was to ensure that the overall sentence was proportionate to the overall criminality of the appellant's conduct in all of the circumstances of the case.
Counsel emphasised that it was significant, in the application of the totality principle, that the appellant's offending involved drug dealing in relation to different types of drugs.
According to counsel for the State, the total effective sentence of 11 years' imprisonment imposed on the appellant was no more than was required adequately to reflect the overall criminality of the appellant's offending involving, as it did, two serious drug offences and significant quantities of two different types of prohibited drugs.
It was submitted that the sentence of 11 years' imprisonment imposed on Mr Liadow was proportionate for his greater criminality in relation to count 1. By comparison, the total effective sentence of 11 years' imprisonment imposed on the appellant reflected his lesser criminality in relation to count 1 as well as his additional serious criminality in relation to count 2. The appellant had failed to demonstrate that the total effective sentence of 11 years' imprisonment infringed the totality principle.
Ground 2: its merits
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[17] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[18] Gaskell v The State of Western Australia.[19]
[17] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[18] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[19] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
As we have mentioned, the appellant's case on ground 2, as explained by his counsel, was as follows:
(a)the sentencing judge made an express error by failing to apply the totality principle;
(b)no complaint is made about implied or inferred error; and
(c)the appellant does not allege that his total effective sentence was unreasonable or plainly unjust.
We are satisfied, on a fair reading of the sentencing remarks as a whole, that her Honour, in arriving at the total effective sentence of 11 years' imprisonment, made a qualitative and discretionary judgment to wholly accumulate the individual sentences for counts 1 and 2. Her Honour is an experienced criminal trial and sentencing judge. Her Honour correctly stated the totality principle. Her Honour then noted, in particular, that the application of the totality principle did not involve merely aggregating the individual sentences. It is not apparent and there is no reason to infer that, contrary to what she had stated a few seconds previously, her Honour merely added up the individual sentences for counts 1 and 2 without having considered whether the sentence of 11 years' imprisonment bore a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally) and all relevant sentencing factors. Further, there is no reasonable basis for supposing that her Honour may have confused the application of the parity principle with the application of the totality principle.
Ground 2 fails.
Conclusion
As we have mentioned, it is appropriate to grant the appellant's application for an extension of time within which to appeal. Leave to appeal should be granted on ground 1 and refused on ground 2. Neither ground of appeal has been made out and, consequently, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
1 JULY 2022
12
19
0