Gray v The State of Western Australia
[2023] WASCA 188
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GRAY -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 188
CORAM: QUINLAN CJ
MAZZA JA
VANDONGEN JA
HEARD: 7 DECEMBER 2023
DELIVERED : 22 DECEMBER 2023
FILE NO/S: CACR 28 of 2023
BETWEEN: JASON GRAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : INS 26 of 2020
Catchwords:
Criminal law - Appeal against sentence - Parity principle - Whether justifiable sense of grievance arising from inadequate disparity with sentence imposed on co-offender
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 33(1), s 34(1)(a)
Result:
Application for an extension of time refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | E Zillessen |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Garlett‑Exell v The State of Western Australia [2020] WASCA 179
Gaskell v The State of Western Australia [2018] WASCA 8
Gianguilio v The State of Western Australia [2022] WASCA 77
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Ho v The State of Western Australia [2023] WASCA 160
House v The King (1936) 55 CLR 499
McKay v The State of Western Australia [2023] WASCA 140
Moore v The State of Western Australia [2006] WASCA 121
Nguyen v The State of Western Australia [2023] WASCA 151
R v Olbrich [1999] HCA 564; (1999) 199 CLR 270
Siskopoulos v The State of Western Australia [2022] WASCA 138
The State of Western Australia v Newton [2022] WASCSR 25
JUDGMENT OF THE COURT
Introduction
The appellant was one of three men convicted of playing an important part in an unsuccessful attempt to transport approximately 56 kg of methylamphetamine from New South Wales to Western Australia, with the intention that it come into the possession of a sophisticated and significant drug syndicate for commercial distribution into the community. The appellant was jointly charged with another man, Quinn Paul Newton, with one offence of attempting to supply a trafficable quantity of methylamphetamine to another, contrary to s 6(1)(c), s 33(1) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Another man, Nikola Maksimovic, was charged in the same indictment with a separate offence of attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a), s 33(1) and s 34(1)(a) of the MDA.
On 28 March 2022, after a trial in the Supreme Court before Derrick J and a jury, the appellant was convicted of the offence with which he was charged. On 29 June 2022 the appellant was sentenced to 20 years' imprisonment. On the same day, his Honour sentenced Mr Maksimovic to 24 years' imprisonment. Both the appellant and Mr Maksimovic were made eligible for parole.
The appellant appeals against his sentence, relying on one ground of appeal in which he complains that the sentence of 20 years' imprisonment infringed the parity principle. The appellant argues that there is an absence of a marked and justifiable disparity between his sentence and the sentence of 24 years' imprisonment imposed on Mr Maksimovic.
The appeal notice was filed approximately eight months out of time. Accordingly, the appellant requires an extension of time within which to appeal. For the following reasons we are of the view that time within which to appeal should not be extended, and that leave to appeal should be refused, with the result that the appeal is taken to be dismissed.
Factual basis for sentencing
The trial judge made detailed findings of fact for the purposes of sentencing,[1] which the appellant does not challenge. The following is a summary of those findings.
[1] The State of Western Australia v Newton [2022] WASCSR 25.
In September 2016, Mr Newton established a company called Seven Roads Pty Ltd which traded as 7 Roads Logistics (7 Roads). He was the sole director and secretary of, and shareholder in, that company. He had worked in the transport and logistics industry for a significant period and planned for 7 Roads to become a successful transport and logistics business. However, 7 Roads was never successful.
In around 2018, Mr Newton arranged for the appellant to become involved in 7 Roads. The two of them were long‑term friends. The appellant also had considerable experience working in the transport and logistics industry. Mr Newton was living in Sydney, while the appellant was living in Melbourne. Sometime before 2019, Mr Newton and the appellant arranged for 7 Roads to make use of warehouse premises in Williamstown, Melbourne. The appellant held the keys to the warehouse and had full control over who could access the warehouse.
At that time, Mr Maksimovic was the head of a sophisticated and significant drug syndicate operating in Western Australia. The syndicate imported methylamphetamine into Western Australia and then distributed it within the State. Mr Maksimovic and the other members of the syndicate communicated by using secure, encrypted mobile phones. Each member had a 'handle' or 'username'. Mr Maksimovic's username was 'EBP', which was short for 'Ethnic Brad Pitt'. Everyone in the syndicate played certain roles and Mr Maksimovic was at its head. Accordingly, he was not directly involved in importing drugs or in dealing with the money generated by the syndicate. He paid other members of the syndicate to perform these roles.
By around early 2019, Mr Newton and the appellant had decided to use 7 Roads to transport a large quantity of methylamphetamine to Western Australia for supply to the syndicate, for financial reward. Mr Newton and the appellant then carried out a 'dry run' to test whether the proposed plan for transporting the methylamphetamine could be carried out without attracting the attention of law enforcement authorities. The dry run involved using 7 Roads to transport a box containing a large, vacuum‑sealed package of 30 kg of salt, in a shipping container, by rail from Melbourne to Perth. However, having done so, and unbeknown to them, the police conducted a covert search of 7 Roads' storage unit in Belmont where they found the box containing the salt.
During the period 30 April 2019 to 3 May 2019, Mr Newton and the appellant arranged for a subsequent shipping container to be transported by rail from Melbourne to Perth. They planned to hide a large quantity of methylamphetamine in the shipping container. While making the arrangements, the two of them used encrypted mobile phones to communicate.
On or around 3 May 2019, the appellant received approximately 56 kg of methylamphetamine at the warehouse in Melbourne. At that time, the methylamphetamine was packaged in 59 vacuum‑sealed plastic bags, most of which contained approximately 1 kg of the drug. The trial judge found that the appellant, either by himself or with the assistance of one or more other people, packed the drugs into garbage bags, then packed the garbage bags into the three containers and placed the three containers into the shipping container, ensuring that they were towards the back of the shipping container and hidden by the other contents of the container. Alternatively, his Honour found that the appellant provided one or more other people with access to the warehouse so that they could engage in that conduct.
On 6 May 2019, the shipping container left Melbourne on a train bound for Kewdale in Western Australia. The appellant signed and submitted to Quarantine WA a false Notice of Intent to Import the contents of the shipping container. On 7 and 8 May 2019, Mr Newton arranged for the shipping container to be collected, and for it to be delivered to the storage unit in Belmont. He and the appellant then travelled to Perth from the eastern states on separate flights to ensure that the methylamphetamine was handed over to Mr Maksimovic's syndicate.
Mr Newton had organised for another man to travel to Perth to provide assistance. That man was also given an encrypted mobile phone. Mr Newton arrived in Perth first, on 8 May 2019, and he collected a hire car at the airport. He then met the other man, who had by then also arrived in Perth, before the two of them then went to the storage unit where they hired an additional storage unit. Mr Newton subsequently met with the appellant, who arrived in Perth later that day.
In the early hours of Thursday, 9 May 2019, the shipping container arrived in Kewdale. At 4.00 am, police conducted a covert search of the shipping container. In order to access the shipping container, they had to break a locking seal that the appellant had placed on the doors of the container. The police then found the 56 kg of methylamphetamine in the three black plastic containers. A subsequent analysis of the methylamphetamine revealed that the average purity of the drug was 80.91%. It was valued at between approximately $4.5 million and approximately $6.4 million. The police then seized the methylamphetamine and replaced it with an inert substance. However, the police were not able to find a locking seal identical to the seal that they had broken in order to access the shipping container. They therefore obtained a different type of locking seal which, while like the one the appellant had used, was different on close inspection.
Later that morning, the appellant rang the storage unit and advised that the shipping container was being delivered. He asked that the shipping container be placed close to the two storage units that had been hired. The shipping container was then transported to the storage unit. When the appellant inspected the shipping container, he saw that the locking seal was different in appearance to the one that he had affixed in Melbourne, so he left it untouched and drove away.
The following morning, 10 May 2019, the appellant drove back to the storage unit. He broke the locking seal, opened the shipping container, and unloaded some of its contents, including the three black plastic containers, which he put into the van. He then drove the van to Belmont, where he eventually left it in the car park of a Bunnings store, with the keys on the right rear tyre. During this time, the appellant was communicating with Mr Maksimovic using an encrypted mobile phone. Later, under instructions from Mr Maksimovic using one of these phones, one of the members of the syndicate drove into the Bunnings car park in a white van. He parked his van next to the appellant's van, got out of his vehicle, retrieved the keys from the right rear tyre, and transferred the three containers containing the inert substance into his van. He then put $142,500 cash into the appellant's van, returned the keys of that van to the right rear tyre, and drove away. The $142,500 was payment for the roles that Mr Newton and the appellant had played in transporting the methylamphetamine to this State.
His Honour found that the appellant had been communicating directly or indirectly with Mr Maksimovic throughout the course of the transaction. Further, he concluded that when the appellant drove away from the Bunnings car park, he knew that the three containers had been removed from the van and that a large sum of money had been left in their place.
The three containers were taken to a house in South Lake, which was a residential address used by the syndicate as a safehouse and warehouse for drugs. A short while later police raided that address, where they found two men who were in the process of unpacking and photographing the contents of the containers. Police also found three additional separate quantities of methylamphetamine weighing a total of 2.8 kg. This was what remained from a delivery of drugs that had been previously made to the South Lake address. One of the members of the syndicate drove to the address in South Lake, but on seeing the police, drove off at speed. He was later stopped by the police and arrested, at which point he gave them access to his encrypted phone, which contained communications between Mr Maksimovic and other members of the syndicate.
Later that same afternoon, about two hours after the police had raided the South Lake address, the appellant and Mr Newton met in a park for a period of approximately 20 minutes. They met in this open location because they feared their conversation might be overheard. The trial judge was not prepared to find that the appellant knew at this time that the syndicate's operations had been compromised. Given the fact that the appellant's encrypted mobile phone had been remotely wiped shortly before this meeting, his Honour strongly suspected that the appellant did know, but was unable to satisfy himself of that fact beyond reasonable doubt.
After the meeting, the two of them went back to Mr Newton's hotel room in the Crowne Plaza and remained there until later that evening when they went to the storage unit and unloaded the rest of the shipping container. The appellant then gave Mr Newton approximately half of the $142,500 cash.
The appellant was arrested that night, and the police found his encrypted phone and $71,575 in cash. However, police were unable to gain access to the contents of the phone, both because it was encrypted and because it had been remotely wiped approximately one hour after the raid on the South Lake address. On 17 May 2019, the police searched the warehouse in Melbourne, where they found various items connecting that location with the contents of the shipping container, including the methylamphetamine.
When Mr Maksimovic found out that the syndicate's operations had been compromised, he fled the country, leaving his wife and child behind. At this time the police did not know who 'EBP' was. However, while he was out of the country, the police executed a search warrant on his house in Safety Bay and found a total of $59,155 in cash. On 19 January 2020, Mr Maksimovic flew back into Perth. He was under the impression that he was not a suspect and was not going to be arrested. He was wrong. Mr Maksimovic was arrested and charged on arrival at Perth airport.
The appellant's personal circumstances
The trial judge also made detailed findings about the appellant's personal circumstances.
The appellant was 48 years of age at the time of sentencing. He was born in New South Wales and his parents separated shortly after his birth. He lived with his mother during his early childhood years, but his father was still involved in his upbringing. His mother re‑partnered when he was still very young, and he had two half‑siblings from that relationship. Although his mother and stepfather separated, he maintained good relationships with his stepfather and half‑siblings. The appellant alleged that his mother had some mental health issues and that she subjected him to physical and emotional abuse.
The appellant lived with his father from the age of 13 years and was given a loving and stable upbringing. He had a close relationship with his father, paternal grandmother, and paternal aunt. He attended several schools because the family needed to relocate on occasions for his mother's work, eventually leaving school in year 10 before starting an apprenticeship in cabinetmaking. Eventually, the appellant found himself working in transport and logistics, which led to the establishment of 7 Roads.
The appellant had previously been married but was not in a relationship when he committed the offence. He also did not have any children. The appellant had no family connections in Western Australia and, therefore, had received no social visits for more than two years. His Honour accepted that he would have limited, if any, face‑to‑face contact with his close family members as a result of being imprisoned and that his isolation from close family over a lengthy period would result in him suffering some emotional hardship, concluding that this had 'some limited mitigatory value'.[2]
[2] Newton [223].
The sentencing judge took into account the appellant's mental health, including his history of suffering from depression, as part of his overall personal circumstances. However, he concluded that his mental health was not a 'material mitigating factor'.[3] His Honour also noted that the appellant had a relatively minor criminal record and, although he could not be described as a first offender, his good antecedents and the fact that the offending was out of character carried mitigatory value.
[3] Newton [226].
Because the ground of appeal asserts that it should be inferred from a purported lack of disparity between the sentence imposed on the appellant and the sentence imposed on Mr Maksimovic that the sentencing judge erred in the exercise of his discretion, it is necessary to also refer to the sentencing judge's findings concerning Mr Maksimovic's personal circumstances.
Mr Maksimovic's personal circumstances
The sentencing judge began his remarks about Mr Maksimovic's personal circumstances by noting that he had been provided with a 'relatively limited amount of information'.[4]
[4] Newton [232].
Mr Maksimovic was 35 years old when he was sentenced. He was also born in New South Wales, where he spent his early childhood. When he was about 13 years of age, his parents separated, and he moved to Western Australia to live with his mother and his sister. Despite this, Mr Maksimovic remained in contact with his father and other family members. In a character reference, his sister said that the family was close‑knit.
Mr Maksimovic was married to a woman with whom he had been in a relationship since around 2011. His wife remained highly supportive of him. Together they have two very young sons. In her reference, his wife described the emotional hardship that she and Mr Maksimovic's older son had experienced due to his imprisonment. Although his Honour accepted that they would suffer hardship as a consequence of Mr Maksimovic's imprisonment, he did not find that it was mitigatory.
The sentencing judge found that Mr Maksimovic had a relatively minor criminal record. However, his Honour also found that as he had been engaging in very high‑level drug dealing for some time before committing the offence charged, his minor criminal record carried limited mitigatory weight.
His Honour also took into account the fact that he had undertaken employment since he was remanded in custody, and his cooperation in the trial process, as mitigating factors.
The sentencing remarks
The sentencing judge noted that the maximum penalty for the offence committed by the appellant, and for the offence committed by Mr Maksimovic, was life imprisonment. He then turned to deal with the circumstances of the offending and its seriousness.
After observing that the general principles relating to the sentencing of offenders for serious drug offences are well established, and that the dominant sentencing considerations are general and personal deterrence, his Honour also said that other relevant matters included the weight and purity of the drugs, the nature and level of the offender's participation and whether the offending was committed for commercial gain. He then dealt with the circumstances of the offence committed by the appellant and Mr Newton.
His Honour found that they both played an integral role in bringing a very large amount of valuable methylamphetamine into Western Australia. He described them as 'the essential conduits between the eastern states‑based supplier of the methylamphetamine and the syndicate',[5] who used their knowledge of the transport and logistics industry to facilitate and enable the importation of a large amount of methylamphetamine into Western Australia by adopting a carefully planned and considered course of conduct. He referred to their use of 7 Roads in order to provide false legitimacy to their activities, the use of a warehouse and storage units, the expenditure of money to cover the costs of transport and storage, the use of encrypted mobile phones, the fact that they personally travelled to Western Australia to facilitate the delivery of the methylamphetamine to the syndicate, the fact that they undertook a 'dry run' to test their planning, and the fact that they committed the offence for financial reward. As the sentencing judge correctly observed, if the methylamphetamine had been distributed into the community, given the quantity and purity of the drug, immense harm would have been caused.
[5] Newton [136].
The sentencing judge said that in his view the culpability or moral blameworthiness of each of the appellant and Mr Newton was 'high'.[6] He said that they had jointly planned for the appellant to deliver methylamphetamine to the syndicate, and that they were equal partners who received roughly equal shares in the $142,500 cash that was paid to them by the syndicate.
[6] Newton [138].
In relation to Mr Maksimovic, his Honour found that he was the head of a syndicate that operated a large‑scale and sophisticated drug dealing business, and which involved the use of leased residential premises and encrypted mobile phones to avoid detection. He also found that as the head of the syndicate, Mr Maksimovic sourced large quantities of drugs for distribution in this State, and that he provided instructions and directions to the various members of the syndicate. The sentencing judge was satisfied beyond reasonable doubt that he operated the syndicate solely for significant financial reward, and that he was at the top level of the drug distribution hierarchy in this State.
In relation to the specific offence, the sentencing judge concluded that Mr Maksimovic, as the head of the syndicate, was responsible for sourcing the 59 kg of methylamphetamine and that he intended it to be distributed into the community of this State in return for significant financial reward. He also found that if Mr Maksimovic had succeeded, then immense harm would have been caused to the community.
His Honour found that Mr Maksimovic's culpability or moral blameworthiness was 'very high' and that it was 'at a higher level than the culpability of Mr Newton and [the appellant]'.[7] However, he expressly noted that although Mr Maksimovic was the head of the syndicate and that he had previously engaged in very high‑level drug dealing activities, he could not sentence him for offences of which he had not been convicted. He further said that the fact that Mr Maksimovic was the head of the syndicate, who had been engaged in drug dealing activities an ongoing basis, was relevant to his assessment of his culpability as it was not out of character.
[7] Newton [145].
The sentencing judge also said that he had not overlooked the fact that Mr Maksimovic, Mr Newton and the appellant did not actually succeed in obtaining the methylamphetamine for the syndicate. However, he said that the fact that their attempts in that regard were thwarted by the police did not justify a conclusion that their culpability was anything other than very high.
The sentencing judge said that he was satisfied that each of Mr Maksimovic, Mr Newton and the appellant had, since being remanded in custody, experienced some hardship as a result of the COVID‑19 pandemic and that it was likely that they would continue to experience some additional hardship. His Honour took this into account as a mitigating factor but indicated that it was of limited weight.
His Honour took some time to carefully deal with the parity principle. This was because sentences had already been imposed by other judicial officers on several other participants in the failed scheme to import a significant quantity of methylamphetamine into Western Australia. However, he made no express reference in his sentencing remarks to the parity principle in its application to the appellant in light of the sentence imposed on Mr Maksimovic. The appellant does not complain about this issue. He contends that there was, objectively considered, a manifest lack of disparity between their sentences which gives rise to a justifiable sense of grievance on his behalf.
Grounds of appeal
The sole ground of appeal is expressed in the following way:
The sentenced [sic] imposed infringes the parity principle having regard to the sentence imposed on the appellant's co-offender Mr Maksimovic, in that there is an absence of marked and justifiable disparity between the sentences imposed when the role and context of the respective offending is viewed objectively.
The appellant does not challenge any of the sentencing judge's findings of fact, does not suggest that he made any express errors, and has not made any submission that the sentence that was imposed on him was manifestly excessive.
Relevant legal principles
As was recently noted by this court in Ho v The State of Western Australia,[8] the principles relating to the parity principle are well established. Convenient summaries of those principles can be found in Higgins v The State of Western Australia[9] and in Garlett‑Exell v The State of Western Australia.[10]
[8] Ho v The State of Western Australia [2023] WASCA 160 [38].
[9] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [14] - [25] (Buss P).
[10] Garlett‑Exell v The State of Western Australia [2020] WASCA 179 [48] - [52].
In McKay v The State of Western Australia,[11] Mitchell JA summarised the parity principle in the following manner:
The operation of the parity principle has been summarised in a number of recent decisions of this court, including Siskopoulos v The State of Western Australia [[2022] WASCA 138 [39] ‑ [45]], and Gianguilio v The State of Western Australia [[2022] WASCA 77 [60] ‑ [71]]. In essence, the principle is concerned to ensure appropriate consistency in the sentencing of co-offenders. It applies where disparity or lack of disparity in the sentencing outcome can give rise to objectively justifiable sense of grievance on the part of one of the offenders. The parity principle is concerned with substance rather than form, and the application of the principle will vary according to the facts and circumstances of the case. The application of the parity principle may require a reduction in a sentence that is not otherwise manifestly excessive. However, the principle does not require the imposition of a sentence that is wholly inadequate or so lenient as to be an affront to the proper administration of justice.
[11] McKay v The State of Western Australia [2023] WASCA 140 [53].
In this case the appellant does not suggest that the sentencing judge failed to apply the parity principle, or that he made any express error in applying that principle. The appellant's contention is that error should be inferred from what he submits is a lack of disparity between the sentence of 20 years' imprisonment imposed on him, and the sentence of 24 years' imprisonment imposed on Mr Maksimovic. As was noted in Ho:
A judge's application of the parity principle involves a discretionary judgement to which the principles in House v The King [(1936) 55 CLR 499] apply. The appellant did not suggest that the sentencing judge failed to apply the parity principle or made any express error in the application of that principle. Consequently, the question raised by the ground of appeal is whether the disparity in the relevant sentences was open in the exercise of the sentencing discretion; it is not whether this court would have exercised the discretionary judgement in relation to parity differently.[12] (citations omitted)
[12] Ho [39].
Appellant's submissions
On behalf of the appellant, it is accepted that his offending was very serious. However, it is submitted that there is a significant gap between the appellant's criminal culpability and the culpability of Mr Maksimovic. In that regard, the appellant refers to the fact that the sentencing judge found that Mr Maksimovic was the head of a significant drug dealing syndicate.
In her written submissions, the appellant's counsel submitted that the relationship between the appellant and Mr Maksimovic was akin to a master and servant relationship. She also submitted that the offending was out of character for the appellant, but that it was not out of character for Mr Maksimovic. In her written submissions, counsel argued that the appellant was paid a 'comparatively paltry sum for assuming the highest exposure and risk exercise in the interstate transportation of over 4 million dollars' worth of drugs to a drug syndicate in Western Australia'.[13] At the hearing of the appeal, counsel accepted that the use of the word 'paltry' was 'perhaps wrong' but nevertheless maintained that the amount of money at stake for Mr Maksimovic was 'orders of magnitude higher'.[14] Finally, counsel submitted that the offence committed by the appellant was different to the offence committed by Mr Maksimovic because the appellant had no property in the methylamphetamine and that what he was attempting to do was supply the methylamphetamine for commercial reward as opposed to attempting to sell the drugs.
[13] Appellant's submissions [94].
[14] Appeal ts 9.
In essence, it is submitted that, objectively, the appellant has a justifiable sense of grievance arising from the lack of disparity between his sentence and the sentence that was imposed on Mr Maksimovic, because the appellant's culpability was significantly less than Mr Maksimovic's culpability.
Respondent's submissions
On behalf of the respondent, it is submitted that the lesser degree of criminality attributable to the appellant in comparison to Mr Maksimovic was properly reflected in their respective terms of imprisonment. It is also argued that the differences between the appellant's and Mr Maksimovic's criminality were not such as to warrant any greater disparity in their sentences, that the disparity is not unreasonable or plainly unjust, and that it does not give rise to a justifiable sense of grievance.
The respondent contends that the appellant's submissions overstate the degree of disparity between the criminality of the appellant's conduct in comparison to Mr Maksimovic's criminal behaviour. The respondent also takes issue with the appellant's characterisation of the relationship as akin to one of a master and servant, as well as the assertion that the appellant was paid a 'comparatively paltry sum'.[15] The respondent submits that it is 'reductive (and inconsistent with established authority [R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19]]) to describe the appellant's considered, detailed, premeditated and deliberate course of conduct in importing the methylamphetamine as "one job" performed by a "servant"'.[16] It is further submitted that the trial judge's findings demonstrate that the appellant undertook many logistical steps to arrange for a very large quantity of prohibited drugs to be brought into Western Australia by rail.
[15] Respondent's submissions [15]; appellant's submissions [94].
[16] Respondent's submissions [13].
The respondent says that in terms of assessing relative criminality, 'there is very little distinction between an offender [such as Mr Maksimovic] who intends to retail a large quantity of methylamphetamine to upper-level dealers and distributors, and an offender [such as the appellant] who facilitates that enterprise by importing the methylamphetamine across state lines in a manner designed to avoid detection for financial reward'.[17]
[17] Respondent's submissions [16].
Consideration of ground of appeal
The appellant does not suggest that the trial judge failed to apply the parity principle, or that he made any express error in his application of that principle. The key question raised by the ground of appeal is whether there is an absence of a marked and justifiable disparity between the sentence imposed on the appellant and the sentence imposed on Mr Maksimovic, such that it should be concluded that the result produced was not open in the proper exercise of the sentencing judge's discretion. As there is no challenge to the sentencing's judge's factual findings, that question must be answered based on those unchallenged findings.[18]
[18] Nguyen v The State of Western Australia [2023] WASCA 151 [69].
Before proceeding further, it is necessary to note that the offences committed by the appellant and by Mr Maksimovic were not identical offences. The appellant was convicted of attempting to supply methylamphetamine to another, whereas Mr Maksimovic was convicted of attempting to possess methylamphetamine with intent to sell it to another. However, both offences related to the same quantity of methylamphetamine.
Regardless of whether the offences were technically common, it is settled that the parity principle applies, even when offenders are charged with different offences, where there is a meaningful connection between the offending creating a reasonable expectation that the sentences will bear some proportionality to each other.[19] In this case, there is an obvious connection between the respective offending. The appellant and Mr Maksimovic committed their individual offences in the course of acting on different sides of the same transaction. As the trial judge put it, the appellant was an essential conduit between an eastern states‑based supplier of methylamphetamine on the one hand, and Mr Maksimovic's syndicate based in Western Australia on the other.
[19] Nguyen [71].
The focus of the appellant's argument is on his level of culpability compared with that of Mr Maksimovic. This is understandable. In sentencing offenders for serious drug-trafficking offences committed for the purposes of securing a financial reward, the personal circumstances of an offender, while not completely irrelevant, will almost always be subsidiary considerations. Accordingly, any differences in the appellant's personal circumstances when compared to Mr Maksimovic's personal circumstances will be of less significance in determining whether it should be inferred that the trial judge erred in the application of the parity principle.[20]
[20] Nguyen [80].
We have already summarised the trial judge's findings about the appellant's personal circumstances, as well as his findings about Mr Maksimovic's personal circumstances. It can be seen from those summaries that, overall, those circumstances are not materially different. Further, in light of his Honour's sentencing remarks, it is apparent that none of those personal circumstances had any significant impact on the respective sentences imposed. In that regard, the appellant is older than Mr Maksimovic, but neither of them was afforded any mitigation on account of youth. The trial judge also concluded that some mitigation ought to be afforded to the appellant on account of him being imprisoned away from his immediate family, his relatively minor criminal record and the fact that his offending was out of character.[21] In relation to Mr Maksimovic, the trial judge found that his limited criminal record carried only 'some very limited mitigatory value' because he had, at the time of committing the offence, been involved in very high‑level drug dealing for some time,[22] and he gave him some additional credit for having undertaken employment whilst in custody and for his cooperation in the trial process.[23]
[21] Newton [223], [227], [231].
[22] Newton [250].
[23] Newton [253] - [254].
Accordingly, the question of whether the trial judge's sentencing discretion miscarried ultimately turns on whether the degree of disparity between the two sentences gives rise to a justifiable sense of grievance having particular regard to the appellant's level of culpability relative to Mr Maksimovic's culpability. In assessing their relative culpabilities, it is necessary to re-state several well‑known sentencing considerations for drug offences that were conveniently summarised in Gaskell v The State of Western Australia in the following way:
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did. (citations omitted)[24]
[24] Gaskell v The State of Western Australia [2018] WASCA 8 [128] - [129]. See also Ho [40].
Further, in Moore v The State of Western Australia, Wheeler JA (with whom Steytler P & McLure JA agreed) said:
It is important also, however, to ensure that there is no distortion of the sentencing process which might result in a distributor at a high level in a distribution hierarchy, who happens to be caught with a quantity of drug on one occasion, to be treated leniently by comparison with the very low level distributor who, as in this case, may as a result of surveillance be observed to engage in a very large number of transactions. Complicating that latter observation, of course, is the overriding proposition that an offender always falls to be sentenced only for the offences of which he or she has been convicted. In that sense, an offender is sentenced not for his or her role or knowledge, or place in a hierarchy, but for a particular dealing with a particular drug at a particular time.[25]
[25] Moore v The State of Western Australia [2006] WASCA 121 [17].
There is no dispute that Mr Maksimovic's culpability was greater than that of the appellant. As the head of a syndicate that operated a large‑scale, sophisticated, and commercially motivated drug dealing business in Western Australia, Mr Maksimovic was responsible for sourcing 59 kg of high quality methylamphetamine. He intended that the methylamphetamine would be distributed, based on his instructions and directions, into the Western Australian community for significant financial reward.
On the other hand, the appellant engaged in a determined course of conduct using his knowledge of the transport and logistics industries in an ultimately unsuccessful effort to transport a very large quantity of valuable methylamphetamine from a supplier based in the eastern states to the syndicate operated by Mr Maksimovic in Western Australia. Inevitably, as the appellant had been the subject of various forms of surveillance over a period of time, the sentencing judge was able to make more detailed findings about his activities when compared to the findings he made about Mr Maksimovic. This cannot be allowed to unfairly slant the sentencing process. However, the sentencing judge did find that the appellant played a 'hands on'[26] role in the attempt to supply the methylamphetamine to the syndicate in Western Australia, including by:
[26] Newton [139].
engaging in a carefully planned and considered course of conduct which involved, among other things, the following:
1.The use of 7 Roads for the purpose of providing false legitimacy to the transportation and storage of the methylamphetamine;
2.The maintenance and use of commercial premises, specifically the warehouse and the storage units at Storage King;
3.The expenditure of funds to cover the costs of leasing the shipping container, transporting the shipping container and leasing the commercial premises;
4.The use of Ciphr enabled mobile phones to co-ordinate your movements and arrangements;
5.The use of innocent third parties such as Pacific National, Swan Towing and Storage King in the transportation and storage of the methylamphetamine;
6.Travelling from the eastern states to this State to carry out the delivery of the methylamphetamine to the syndicate; and
7.The undertaking of the 'dry run'.[27]
[27] Newton [136].
Further, given the sentencing judge's findings that the appellant either packaged the methylamphetamine for transportation to Western Australia or at least knowingly arranged for this to occur, and that he was the one who physically delivered what he believed was methylamphetamine into the hands of the syndicate, the appellant must have known that there was a significant quantity of prohibited drug involved in the transaction. The value and quantity of the drug would also have been readily apparent to him having regard to the significant financial reward that he expected to receive.
Accordingly, while the appellant's criminality cannot be equated with the level of Mr Maksimovic's criminality, contrary to the appellant's submissions it could not properly be described as being 'markedly less serious than that of Mr Maksimovic'.[28] Further, we do not accept the appellant's colourful submission that there is a 'significant gap between the high criminal culpability of the role played by the appellant and the stratospheric criminal culpability of the role played by Mr Maksimovic'.[29]
[28] Appellant's submissions [89].
[29] Appellant's submissions [93].
What the appellant actually did was perform a crucial role in ensuring the safe transfer of a very large amount of methylamphetamine across State borders, thereby facilitating a significant unlawful transaction. The appellant's submissions that his acts amounted to an attempt only to supply the methylamphetamine and that, unlike Mr Maksimovic, he had no intention to sell any of it for a financial benefit may be accepted. However, what should not be overlooked is that the ultimate purpose of what the appellant did was to facilitate the objectives of Mr Maksimovic and his syndicate, namely to distribute it into the Western Australian community for profit. In that regard, a proper assessment of the appellant's criminality cannot be divorced from Mr Maksimovic's criminal activities and motivations.
There was no single correct degree of disparity that the sentencing judge was required to apply. This is because of the discretionary nature of the application of the parity principle. In that light, having assessed the appellant's criminality, and comparing it to the criminality involved in Mr Maksimovic's offending behaviour, we are of the view that the disparity between the sentence of 24 years imposed on Mr Maksimovic and the sentence of 20 years imposed on the appellant was well open to the sentencing judge in the proper exercise of his discretion. In our opinion, the disparity properly reflected the different levels of criminality involved, as well as any differences in their personal circumstances. The disparity does not give rise to an objectively justifiable sense of grievance on the appellant's part.
In our view, the sole ground of appeal is not reasonably arguable. It follows that leave to appeal should be refused and the appeal will be taken to have been dismissed. The application for an extension of time within which to appeal should also be refused.
Orders
For the above reasons, we would make the following orders:
1.The application for an extension of time within which to appeal is refused.
2.Leave to appeal is refused.
As we have refused leave to appeal in respect of the sole ground, the appeal is taken to have been dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Hon Justice Vandongen
22 DECEMBER 2023
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