GODDARD -v- the STATE of WESTERN AUSTRALIA - [2014] WASCA 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GODDARD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 59

CORAM: PULLIN JA
BUSS JA
MAZZA JA

HEARD: 8 NOVEMBER 2013

DELIVERED : 21 MARCH 2014

FILE NO/S: CACR 90 of 2013
CACR 91 of 2013

BETWEEN: CALVIN TYSON GODDARD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CURTHOYS DCJ
File No  :IND 1618 of 2010

Catchwords:

Criminal law - Appeal against conviction - Whether trial judge declining to answer hypothetical question from jury amounted to miscarriage of justice - Whether trial judge's failure to direct jury to distinction between willingness to assist others sell or supply drugs and unlawful agreement amounted to miscarriage of justice

Criminal law - Appeal against sentence - Whether sentence was manifestly excessive - Whether sentence infringed principle of parity

Legislation:

Misuse of Drugs Act 1981 (WA), s 34(1)(a), s 34(1)(b)

Result:

Appeal against conviction dismissed
Appeal against sentence allowed in part

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J A Scholz

Solicitors:

Appellant: Lumlan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Bahn v The State of Western Australia [2008] WASCA 40
Barry v The State of Western Australia [2012] WASCA 175
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lai v The State of Western Australia [2012] WASCA 181
Lowe v The Queen (1984) 154 CLR 606
Munda v The State of Western Australia [2013] HCA 38
Neumann v The State of Western Australia [2013] WASCA 70
Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595
R v Simmonds [1969] 1 QB 685
Ruich v The State of Western Australia [2006] WASCA 241
Savvas v The Queen (1995) 183 CLR 1
Sweetland (1957) 42 Cr App R 62
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v Andela [2006] WASCA 77
Yazdani v The State of Western Australia [2006] WASCA 221

PULLIN JA:
On 13 February 2013, the appellant was convicted after a trial in the District Court of Western Australia before a judge and jury on one count in an indictment which read:
Between 5 January 2010 and 15 January 2010 at Perth and elsewhere, Adrian Bernard Williams, Calvin Tyson Goddard and Neven Sinevo Jasa conspired together and with Kare Janakievski and Vlado Ruvinovski to sell or supply a prohibited drug, namely methylamphetamine, to another.
On 4 April 2013, the appellant was sentenced to 6 years 6 months' imprisonment and made eligible for parole. The appellant appeals against his conviction and against his sentence. There are two grounds of appeal in the appeal against conviction. Leave to appeal has been granted in respect of ground 1, and the question of leave with respect to ground 2 was referred to the hearing of the appeal. There are also two grounds of appeal in the appeal against sentence. Leave to appeal has been granted in respect of ground 1, and, in respect of ground 2, the question of leave was referred to the hearing of the appeal.
The prosecution led evidence that three men, namely Janakievski, Ruvinovski and Williams, conspired to transport methylamphetamine from New South Wales to Western Australia and to sell it, and that the appellant joined that conspiracy. Janakievski died before trial, and the charge against Ruvinovski was discontinued as part of a plea negotiation in relation to other charges. The remaining persons named in the indictment, namely Williams, the appellant and Jasa, were tried jointly. At the conclusion of the trial, the appellant and Williams were convicted, and Jasa was acquitted.
The appellant did not give evidence at trial. The evidence revealed that Janakievski was in New South Wales. He had regular contact with Ruvinovski who lived in Perth. On 6 January 2010, the two men discussed in a telephone call that Williams should go to Sydney to collect methylamphetamine, which was to be transported back to Western Australia and sold. On 8 January 2010, Janakievski rang Williams and told him that Ruvinovski would pay for his airfare to Sydney. Ruvinovski and Williams were observed to meet later that same day, and Williams subsequently flew to Sydney and returned with 435 g of methylamphetamine. Williams provided a sample of the methylamphetamine to Ruvinovski. It was found to be of very low purity. Ruvinovski rang Janakievski and complained about the quality of the methylamphetamine. Ruvinovski's son, Ivan Ruvinovski, then went to Williams' residence and complained about the quality of the drug. Ruvinovski's involvement in the conspiracy ended at that time.
On 12 January 2010, Janakievski rang Williams and told him that Ruvinovski was 'whingeing' and asked Williams whether he could see his 'mate'. Later that same day, Williams rang the appellant and asked him to come to his residence 'straight away if you can'. The appellant agreed to do so. Unbeknown to Williams and the appellant, the police had inserted an optical and audio surveillance device in Williams' residence. The appellant attended at Williams' residence, and Williams was heard to ask the appellant if he could 'get rid of a pound'. The appellant asked Williams if it was any good and what it was worth. Williams told the appellant that it was worth $67,000. The appellant said that he could 'get rid of a lot of that for you, mate'. The appellant tested the drug by smoking some of it in a pipe. The appellant then telephoned a third party about the sale or supply of methylamphetamine. After the appellant made the call, he arranged to meet Williams the following day.
On 13 January 2010, the appellant met again with Williams at Williams' residence. The appellant informed Williams that he had left a sample of the methylamphetamine at a third party's house to be tested. Williams let the appellant know that he had an alternative person that he could supply to, but that the appellant would have 'first go at it'. The next day, Williams rang the appellant and they met at the Osborne Park Hotel. It may be inferred that the appellant's involvement in the conspiracy ended at that time.
After the meeting between the appellant and Williams, Janakievski rang Williams. Williams told him, in effect, that the appellant was 'no good'. They agreed that Williams would contact Jasa. Williams made contact with Jasa that same day with a view to recruiting him to sell the methylamphetamine for Williams. The police raided Williams' residence while Williams and Jasa were present, and the methylamphetamine was seized by the police. It was later analysed and found to weigh 435 g at 7% purity.
A conspiracy is complete as a crime when an agreement to embark on a course of criminal conduct is made. The continuing nature of the offence of conspiracy means that a number of individuals may be held to be parties to the same conspiracy, although they join at different times, and even though they may not have been parties to the agreement at the same time: Sweetland (1957) 42 Cr App R 62, 67; R v Simmonds [1969] 1 QB 685, 696.
The evidence led established that the appellant knew that Williams had been out of the State, and that while out of the State, he had collected a pound of methylamphetamine and smuggled it into the State. He was aware that Williams was a courier for another or others. The appellant also knew that Williams wished to sell or supply the methylamphetamine in this State to another, that Williams was giving the appellant the first opportunity to find a buyer for him, and that if the appellant could not find a buyer, Williams would go to someone else. It could also be inferred from the evidence that the appellant knew that Williams was dealing with the person who had provided the drugs to Williams, and that that person was involved in Williams' desire to sell or supply the drugs. Thus, he knew that Williams had agreed with others on an unlawful common design, namely that Williams would sell or supply the drugs to another in this State.
The prosecution's case, therefore, was that the appellant had joined an existing conspiracy between Williams and another or others not known to the appellant, and that Williams would supply or sell the methylamphetamine in this State. The appellant's proposed involvement was to ensure, if it was within his power, that the unlawful object be performed.

Grounds of appeal concerning conviction

The grounds of appeal against conviction read as follows.
Ground One
There was a miscarriage of justice when, in dealing with a question from the jury ('the question'), his Honour declined to answer their query.
Particulars
1.1The question revealed the jury were troubled as to whether the appellant was part of the actual conspiracy relied upon by the State;
1.2There was a risk that absent their question being properly answered the jury may have convicted the appellant based on his involvement in an unlawful agreement separate to the one actually relied upon by the prosecution.
Ground Two
There was a miscarriage of justice when the learned trial judge failed to direct the jury that there was a contrast between a willingness on the part of the appellant to assist others to sell or supply methylamphetamine and an unlawful agreement, of which he was a part, to sell or supply methylamphetamine.

Ground one

After the jury had retired, they asked a question which was answered adequately by the trial judge. No complaint was made by trial counsel in relation to the answer that was given by the trial judge and no such complaint is made in this appeal.
The jury asked a further question in these terms:
If A and B enter in a conspiracy to sell or supply drugs, B then contacts C, and agrees with C to supply a quantity of drugs to C, is C a part of the conspiracy, C being end use? (ts 784)
The trial judge discussed the question with counsel, and the consensus was that the question was hypothetical. The trial judge then brought the jury back to the court and read the question which the jury had posed and said:
On the facts of this case that's a hypothetical question which is something that … [is] not appropriate to answer. The case alleged by the State is that the conspiracy, the unlawful agreement, was that Mr Williams would sell or supply methylamphetamine to another. And because this question is hypothetical, it's not one that's appropriate that I answer (ts 786).
Neither the appellant's trial counsel nor any other counsel complained about the trial judge's answer to the jury's question.
Counsel for the appellant, who was not counsel at the trial, now submits that the jury's question went to the heart of the State's case, and that the question suggested that the jury were contemplating whether the appellant was, in fact, a party to a different unlawful agreement confined to himself and Williams and was not a party to the conspiracy alleged by the State. Counsel for the appellant submitted that the question was not hypothetical and that the question the jury was 'essentially' asking was that:
If A (which could be either Janakievski or Ruvinovski) and B (Williams) enter into a conspiracy to sell or supply drugs, B (Williams) then contacts C (the appellant) and agrees with C (the appellant) to supply a quantity of drugs to C, is C a part of the conspiracy, C (the appellant) being end use.
The appellant referred to Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595, where Mason and Wilson JJ said:
A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury (612).
The appellant submitted in this court that a more elaborate answer was required to avoid detriment to the appellant, and that the failure to do so constituted a miscarriage of justice. The appellant submitted that it was necessary for the trial judge to clarify the question or to make further enquiry of the jury about what they meant. These submissions must be rejected. The question was hypothetical. The attempt by counsel to suggest who the jury had in mind in referring to 'A', 'B' and 'C' reveals why it was not appropriate to answer the question. Counsel for the appellant revealed that he was not certain whether the jury might have meant that 'A' was Janakievski or Ruvinovski.
A trial judge should always be wary about a question formulated without reference to the facts of the case. If the jury had formulated a question by reference to the names of the particular parties, the question might have been answered. However, to speculate why the jury was asking the question, not by reference to the names of the parties involved in this case, but by reference to 'A', 'B' and 'C', would not have been appropriate.
In any event, the trial judge did not simply dismiss the question. The trial judge, in answer to the jury's question, reminded the jury that the conspiracy alleged by the prosecution was that Williams would sell or supply methylamphetamine to another. In his directions, the trial judge explained who the conspirators were; that they had allegedly agreed that Williams would sell or supply methylamphetamine; and that each of the conspirators had allegedly played some part in the furtherance of the common object.
Ground 1 should be dismissed.

Ground two

The appellant submitted that the trial judge missed the opportunity to give a direction that should have been given when the jury asked the question referred to above. The appellant submitted that the trial judge should have given a direction that allowed for the possibility of the appellant being involved in a conspiracy other than the conspiracy alleged by the prosecution.
The trial judge instructed the jury that it had to be satisfied that there existed a conspiracy between Williams, the appellant, Janakievski and Ruvinovski, whereby Williams was to sell or supply methylamphetamine to another. His Honour directed the jury that, in relation to the appellant, the jury had to be satisfied beyond reasonable doubt that the appellant had joined that conspiracy. The only case put forward by the appellant was that the appellant did not form the intention to enter into an agreement because of intoxication due to ingestion of methylamphetamine. The appellant did not submit that there was no conspiracy as alleged by the prosecution, and the evidence overwhelmingly pointed to the existence of the conspiracy to have Williams sell or supply a prohibited drug in this State. The appellant conceded that the trial judge's directions to the jury were unimpeachable. If the trial judge had given the direction now suggested in relation to ground 2, it would have involved a contradiction of the directions which he had earlier given to the jury and, as conceded by the appellant, correctly given to the jury.
Leave to appeal on ground 2 should be refused.
The appeal against conviction should be dismissed.

The sentence appeal

In sentencing remarks, the trial judge made findings about the circumstances of the offending and the part played by the men convicted, as indicated at the beginning of these reasons. The trial judge then turned in more detail to the role played by Williams and by the appellant in the performance of the conspiracy. The trial judge noted that Williams was 'trusted with the methylamphetamine by people at a high level in the chain of distribution … [and that he] was more than a mere courier' (ts 812). The trial judge observed that Williams engaged in the activity purely for commercial gain and was not a drug user. The trial judge observed that the appellant had a lower level of participation in the offence than Williams. The trial judge noted that the appellant's behaviour was part of a significant drug enterprise, and that his involvement was important in the sense that he was to supply it to a third party, and that he would have done so if the drug had been of sufficient purity. The trial judge observed that the appellant was also involved in the conspiracy for monetary reward, although he was a drug user. However, there was no evidence that his drug use influenced his participation in the offence or, at least, 'very little evidence' (ts 813).
The trial judge referred to the fact that Williams had largely avoided legitimate employment throughout his life, choosing instead to earn an income through questionable schemes and illegal activity, and that he was revealed as a long‑term petty criminal.
The trial judge spent some time mentioning matters which emphasised the appellant's youth, the fact that he suffered from ADHD, and that he was impulsive and immature in his behavioural choices. The trial judge accepted that the appellant was involved in the conspiracy because of some incidental advantage in the form of personal use of the drug, but found that the appellant's predominant reason for joining the conspiracy was for commercial gain. The trial judge then sentenced Williams to 8 years 6 months' imprisonment and the appellant to 6 years and 6 months' imprisonment.

The grounds of appeal concerning sentence

The appellant, by ground one, alleged that the sentence imposed by the trial judge was manifestly excessive. By ground 2, the appellant alleged that the sentencing judge erred in imposing a sentence that infringed the principle of parity.
The co‑offender, that is Williams, was sentenced to a longer term of imprisonment than the appellant. He was sentenced to 8 years 6 months' imprisonment. The appellant was sentenced to two years less. The ground of appeal alleging that the sentence was manifestly excessive must be dismissed.
This was a conspiracy arranged between people in two States involving the transport from one State to another of a large quantity of methylamphetamine in order to sell for commercial gain. The appellant's submissions in support of this ground referred to the extent of the appellant's criminality and the appellant's antecedents. They were taken into account by the trial judge. In any event, this is not a ground of appeal alleging express error by the trial judge. The maximum penalty for the substantive offence of selling or supplying methylamphetamine is 25 years' imprisonment or a fine not exceeding $100,000: s 34(1)(a) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for conspiracy to do so is 20 years' imprisonment or a fine not exceeding $75,000: s 34(1)(b) of the Misuse of Drugs Act. In Yazdani v The State of Western Australia [2006] WASCA 221, a number of conspiracy cases were collected together by Martin CJ and referred to in respect of sentence. It is to be noted that the range of sentences cited by his Honour for conspiracy to sell or supply methylamphetamine or conspiracy to possess methylamphetamine with intent to sell or supply ranged between approximately 2 years' imprisonment to 9 years' imprisonment.
In Yazdani, the offender, Yazdani, was given a total effective sentence of 5 years 8 months' imprisonment, and a total sentence of 5 years 4 months' imprisonment was imposed on the co‑offender, Chopra. These sentences were upheld following conviction after trial in relation to three counts of conspiring to sell methylamphetamine. The first involved an agreement to sell 85.05 g of methylamphetamine, the second concerned 28.5 g of methylamphetamine, and the third concerned 150 ecstasy tablets. There was no evidence that the conspiracy the subject of count 1 was acted upon, and the sentencing judge found that the conspiracy the subject of counts 2 and 3 lasted approximately 15 minutes. Thus, Yazdani and the cases referred to in it do not support the appellant's contention that the present sentence was manifestly excessive given the greater amount of drug involved in this matter and the time of involvement in the conspiracy.

Further, the appellant referred to four cases to support its contention that the sentence imposed by the trial judge was manifestly excessive. They were Bahn v The State of Western Australia [2008] WASCA 40; Ruich v The State of Western Australia [2006] WASCA 241; Lai v The State of Western Australia [2012] WASCA 181; and Neumann v The State of Western Australia [2013] WASCA 70.
In Bahn, the appellant pleaded guilty to one count of conspiracy to sell or supply 2 kg of methamphetamine, one count of offering to sell 10,000 ectasy tablets and one count of supplying 1 kg of heroin. The appellant received a total effective sentence of 10 years' imprisonment. His co‑offender, who pleaded guilty in relation to those charges as well as an additional count of supplying heroin, also received a total effective sentence of 10 years' imprisonment. Each co‑offender entered an early plea of guilty, demonstrated genuine remorse and had no relevant history of offending. Wheeler JA, with whom Buss JA and Miller AJA agreed, dismissed the appeal against sentence, noting that there was a large quantity of drug involved in respect of the conspiracy to sell methylamphetamine, and that the content, duration and reality of the conspiracy was such that the co‑offenders had the capacity and willingness to obtain illicit drugs for sale.
In Ruich, the appellant pleaded guilty to one count of conspiracy to sell or supply heroin, one count of supplying 2.02 g of heroin with a purity of 36%, and one count of possession of 35.75 g of heroin with a purity of 38% with intent to sell or supply. The appellant pleaded guilty to all three charges, although not at the first available opportunity, and had a significant record of relevant prior convictions. The appellant's appeal against a total effective sentence of 7 years and 4 months' imprisonment was dismissed.
In Lai and Neumann, the appellants received a total effective sentence of 13 years' imprisonment and 15 years' imprisonment respectively. In each appeal, the appellant complained that their sentence with respect to conviction for possession of a prohibited drug with intent to sell or supply to another was manifestly excessive. The cases did not consider manifest excessive in relation to sentences imposed for conspiracy to sell or supply a prohibited drug. As such, these cases do not assist the appellant's appeal against sentence.
There was nothing in any of the cases outlined above which supports a conclusion that the sentence imposed was manifestly excessive. Ground 1 should be dismissed.
Ground 2 relies upon the parity principle. An appellate court may interfere with a sentence on the ground of a marked and clearly unjustifiable disparity between sentences: Tanner v The State of Western Australia [2013] WASCA 142 [210]. The principle may also be relied upon where there is a marked absence of disparity between sentences imposed on two offenders, taking into account circumstances where, for example, the appellant has played a lesser role in the offence, and the criminality of the appellant is markedly less than the criminality of the other offender.
In this case, the appellant joined the conspiracy and was apparently willing to participate, but withdrew after two days, either because he thought the drug was not of sufficient quality or because he could not find a purchaser. However, Williams knew this and he persisted in his efforts. When the comparison is made between the conduct of Williams and the conduct of the appellant, it may be seen that the period of the appellant's involvement was much shorter than that of the period of Williams' involvement. The appellant's involvement was for a period of only two days. Secondly, the actual involvement, that is the conduct of the appellant, was far less substantial than the involvement of Williams. Williams was the person who was in contact with the two conspirators, Janakievski and Ruvinovski. Williams was the person who met with Ruvinovski, travelled to New South Wales, collected the drug, transported the drug across State borders and back into Western Australia, and then was set the task of finding a local distributor to sell the drug. Williams clearly knew the appellant, and therefore, it may be inferred that the appellant had some expertise about drug distribution. However, the appellant's involvement extended to meeting with Williams on two occasions to discuss distribution, making one attempt to find someone who would purchase the drug, and then withdrawing from the conspiracy. That involvement was markedly less than the involvement of Williams described above.
Although the fact that the appellant is youthful was not to be given any great weight, it is a factor. He was a young man (22 years of age at the time of offending), whereas Williams was in his 60s. Finally, Williams' antecedents were not as good as those of the appellant. Both had a record involving offences not involving imprisonment, but Williams' record extended back over a much longer period of time.
A two year disparity in sentence was not an adequate difference in sentences. It would justifiably induce a sense of grievance in the appellant against what was, relatively, a harsher penalty than that imposed on Williams, given Williams' substantial participation and the other factors mentioned. There was such an insufficiently marked disparity in sentences to amount to error. A different sentence should have been imposed on the appellant. Leave to appeal should be granted, this ground of appeal should be upheld, the sentence imposed by the trial judge should be set aside and the appellant resentenced to a term of imprisonment of 5 years 6 months with parole eligibility.

Conclusion

Leave to appeal on ground 2 of the conviction appeal should be refused.
The appeal against conviction should be dismissed.
In relation to the sentence appeal, ground 1 should be dismissed. In relation to ground 2, leave to appeal should be granted, the appeal upheld, the sentence should be set aside and, in lieu, the appellant should be sentenced to a term of imprisonment of 5 years 6 months commencing on 13 February 2013. The appellant should be made eligible for parole, which means that if parole is granted, he will be released on 13 August 2016.

BUSS & MAZZA JJA: We have had the advantage of reading in draft the reasons of Pullin JA. In relation to the appeal against conviction (CACR 90 of 2013), we agree that leave to appeal should be refused on ground 2 and the appeal should be dismissed, generally for the reasons that he gives. In relation to the appeal against sentence (CACR 91 of 2013), we would grant leave to appeal on ground 2, allow the appeal and resentence the appellant to 5 years 6 months' imprisonment commencing on 13 February 2013, with eligibility for parole. Our reasons for doing so are as follows.

Background

The appellant, Adrian Bernard Williams and Neven Sinevo Jasa were jointly charged with conspiring, together with Kire Janakievski and Vlado Ruvinovski, to sell or supply methylamphetamine to another contrary to s 6(1)(c), read with s 33(2)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). The appellant and Williams were convicted after trial. Jasa was acquitted.
On 4 April 2013, Williams was sentenced to 8 years 6 months' imprisonment with eligibility for parole. On the same day, the appellant was sentenced to 6 years 6 months' imprisonment with eligibility for parole, backdated to commence on 13 February 2013.
There are two grounds of appeal. Ground 1, for which leave to appeal has been granted, alleges that the sentence was manifestly excessive. Ground 2, for which the question of leave has been referred to the hearing of the appeal, alleges a breach of the parity principle in that there was insufficient disparity between the sentence imposed on him as against the sentence on Williams.
The facts of the offending have been described by Pullin JA. It is unnecessary for us to repeat them.

The sentencing remarks

It is clear that his Honour regarded the conspiracy committed by the appellant and Williams as a serious offence of its kind, involving, as it did, the actual importation into Western Australia of 435 g of methylamphetamine for the purpose of sale and ultimately for distribution into the community.
His Honour rightly regarded Williams as more culpable than the appellant. As he observed, Williams was more than a mere courier. He carried the methylamphetamine from Sydney to Perth and, upon his return, contacted others, including the appellant, with a view to finding a purchaser for the drug. Williams' role in the conspiracy was summarised in this way:
His role in the enterprise was important both as courier of the drugs and the attempts he made for the - to sell or supply the drugs initially to Ruvinovski, then when the quality - when the low purity became apparent to [the appellant] and when that became apparent to Jasa (ts 811 ‑ 812).
His Honour noted that although the purity of the drug was low (7%), the parties to the conspiracy believed that it was of higher quality (ts 812).
His Honour said that the appellant 'had a lower level of participation in the offence than did … Williams' (ts 812). That said, it was noted that the appellant was actively involved in the conspiracy. His Honour said that the appellant's role was important 'in the sense that he was to supply [the methylamphetamine] to a third party had it been of sufficient purity and he engaged in the offending for monetary reward' (ts 813). His Honour recognised that at the time the offence was committed the appellant was a user of methylamphetamine, but his Honour said that there was no or very little evidence that his use of the drug influenced his participation in the conspiracy.
His Honour dealt with the personal circumstances of the appellant and Williams in some detail. At the time he was sentenced, Williams was 63 years of age. He had an extensive criminal history in both New South Wales and Western Australia which his Honour said was 'that of a long‑term petty criminal' (ts 814).
His Honour found that Williams had not demonstrated any remorse for his actions and continued to deny the offence. His Honour recognised that Williams had a number of very significant health problems, including chronic obstructive lung diseases, non-Hodgkin's lymphoma, lung cancer and lesions on the liver consistent with metastases from the lung. His Honour concluded that Williams was likely to die 'within the next 12 months'.
The appellant's antecedents were more favourable. At the time of the offending, he was 22 years of age and 25 years old at sentencing. His Honour accepted that the appellant came from a stable background. His Honour had regard to the contents of a pre‑sentence report and psychological report. These documents revealed that the appellant had, at an early age, been diagnosed with attention deficit disorder. By year 8 he had begun 'to go off the rails', involving himself with 'marginalised peers'. The appellant has a history of illicit drug use and was using illicit substances at the time of the offence. He had a criminal history of minor offending.
His Honour quoted extensively from the psychological report and appeared to accept the conclusions in that report, including that the appellant was 'highly compulsive and immature in his behavioural choices'.
His Honour noted that the appellant was presently involved in a relationship and that his partner was 'a stabilising influence … substance abstinent and supportive of him' (ts 815).
Although his Honour did not expressly say so, it may be inferred from reading his sentencing remarks as a whole that he imposed different sentences upon the appellant and Williams because Williams was clearly the more culpable of the two, and the appellant had the advantage of youth.

Ground 1 - Was the sentence manifestly excessive?

To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to it, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender. The maximum penalty for conspiring to sell or supply methylamphetamine to another is 20 years' imprisonment, a fine not exceeding $75,000 or both: MDA s 34(1)(b).
The general principles applicable to the sentencing of those who deal or traffic or conspire to commit offences in respect of dangerous drugs of addiction are well known and undisputed. The major sentencing considerations are general and personal deterrence. The weight and purity of the drugs in question are not generally the chief factor to be taken into account when fixing a sentence, but they are matters of importance. Other relevant factors include the nature and level of the offender's participation in the venture within a particular organisation or generally and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant: see The State of Western Australia v Andela [2006] WASCA 77 [16], [17] (McLure JA) and Neumann v The State of Western Australia [2013] WASCA 70 [26] (Buss JA). Matters relevant to a conspiracy include its content, duration and reality: Savvas v The Queen (1995) 183 CLR 1.
The appellant participated in a conspiracy to distribute into the community a large amount of a dangerous drug. Although the purity was low compared to other cases, it was not said that the methylamphetamine was valueless or harmless. Indeed as to value, Williams told the appellant that the methylamphetamine was worth $67,000 and evidence was led at trial to the effect that, as at January 2010, a pound of methylamphetamine was worth approximately $150,000 to $200,000 (ts 812). The parties themselves believed they were dealing with higher quality methylamphetamine. The appellant's participation in the conspiracy was significant because he agreed to provide the drug to another for sale. His primary motive was commercial gain. If the methylamphetamine had been of a higher quality, as the appellant initially believed, it is highly likely that he would have found a purchaser for it.
The most mitigating aspect of his personal circumstances was his relative youth. Of course, the appellant was unable to rely upon his plea as a mitigating circumstance.
We have considered a number of comparable cases. In particular, we have had regard to Yazdani v The State of Western Australia [2006] WASCA 221 and the cases referred to by Martin CJ in that case, between [26] and [33], as well as a number of cases which have been decided since then, including those referred to by the appellant, being Ruich v The State of Western Australia [2006] WASCA 241, Bahn v The State of Western Australia [2008] WASCA 40 and Lai v The State of Western Australia [2012] WASCA 181.
It is important to understand the utility of comparable cases. They do not, by themselves, dictate the appropriate sentence in a particular case. This is because each case must be decided on a consideration of all of its own facts and circumstances. Sentencing ranges provide only general guidance and are used to ensure broad consistency. The historical range of sentences imposed does not fix the boundaries within which future judges must, or even ought, to sentence. Munda v The State of Western Australia [2013] HCA 38, 39 (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
It is unnecessary for us to canvass the facts and circumstances of the cases to which we have referred. We have read them and had regard to them. They vary considerably in their facts and circumstances. It is sufficient for us to observe that they do not indicate that the sentence imposed upon the appellant was manifestly excessive.
We have already referred to the appellant's personal circumstances. While the appellant's relative youth was a relevant mitigating factor, the other considerations we have mentioned had a greater call on the sentencing discretion.
The conspiracy entered into by the appellant was plainly a serious one. Had the police not intervened, it is highly likely that 435 g of methylamphetamine would have been distributed into the community. Although the appellant was involved in the conspiracy for only two days, his role was nevertheless important. The appellant's primary motive for his offending was commercial gain. We have not been persuaded that the sentence of 6 years 6 months' immediate imprisonment was, in all of the circumstances of the case, manifestly excessive. Ground 1 has not been made out.

Ground 2 - Did the sentence imposed upon the appellant infringe the parity principle?

The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ). Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, marked disparity or, relevantly to this case, lack of it, gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ). When the parity principle is infringed, an appellate court may intervene and resentence, even though the sentence imposed at first instance, when looked at in isolation, is not manifestly excessive. This court has intervened where, as the appellant claims here, there has been insufficient disparity between sentences imposed upon offenders having regard to, amongst other things, their different roles in the offending and their personal circumstances: see, for example, Barry v The State of Western Australia [2012] WASCA 175.
Williams received a sentence which was 2 years longer than the appellant's. Williams was involved in the conspiracy almost from the outset and continued to be involved right up until the police intervened. He dealt with the main figures in the conspiracy in Sydney and Perth, he transported the drugs into this State and he was actively involved in finding someone to sell them. His personal circumstances were unfavourable, although he was, without doubt, in very poor health. Personal deterrence was no longer a matter of importance. But a long sentence that exceeded his life expectancy was unavoidable having regard to the seriousness of the offence.
When compared with Williams, the appellant's involvement in the conspiracy, while significant, was not as great as Williams'. Moreover, the appellant's antecedents, particularly his relative youth, were more favourable.
In our opinion, the disparity between Williams and the appellant of 2 years was an insufficient reflection of the differences in the cases and objectively gives rise to a justifiable sense of grievance on the appellant's part. Accordingly, and with great respect to the learned sentencing judge, ground 2 has been made out. It is appropriate to resentence the appellant. In our opinion, the appellant's justifiable sense of grievance is properly addressed by the imposition of a sentence of 5 years 6 months' imprisonment with eligibility for parole to commence on 13 February 2013.
The orders we would make are:
1.In relation to the appeal against conviction:
(a)leave to appeal is refused on ground 2;
(b)the appeal is dismissed.
2.In relation to the appeal against sentence:
(a)leave to appeal is granted on ground 2;
(b)the appeal is allowed;
(c)the sentence imposed by the primary judge is set aside and in lieu thereof the appellant is sentenced to 5 years 6 months' imprisonment with eligibility for parole to commence on 13 February 2013.