Higgins v The State of Western Australia
[2019] WASCA 78
•21 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HIGGINS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 78
CORAM: BUSS P
BEECH JA
PRITCHARD JA
HEARD: 8 FEBRUARY 2019
DELIVERED : 21 MAY 2019
FILE NO/S: CACR 72 of 2018
BETWEEN: DANIEL HIGGINS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND 152 of 2017
Catchwords:
Criminal law and sentencing - Whether discounts for pleas of guilty under s 9AA of the Sentencing Act 1995 (WA) manifestly inadequate - Parity - Whether parity comparison involves sentences for common offences or total effective sentences
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to adduce additional evidence granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | G M Cleary |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Genevieve Cleary |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ayik v The Queen [2013] NSWCCA 119
Bell v The Queen [2008] NSWCCA 206
Billing v The State of Western Australia [No 2] [2008] WASCA 11
D'Lima v The State of Western Australia [2012] WASCA 191
El‑Helou v The Queen [2014] NSWCCA 209
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
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
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kelly v The Queen [2017] NSWCCA 256
Lloyd v The Queen [2017] NSWCCA 303
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
Matthews v The Queen [2014] VSCA 291; (2014) 44 VR 280
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Nguyen v The State of Western Australia [2009] WASCA 8
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pham v The State of Western Australia [2016] WASCA 201
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Qing An v The Queen [2007] NSWCCA 53
R v Dang [2018] QCA 331
R v Galea [2001] VSCA 115
R v Lomax [1998] 1 VR 551
R v Taudevin [1996] 2 VR 402
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Sampson v The Queen [2010] NSWCCA 119
Saner v The Queen [2014] VSCA 134
Savory v The State of Western Australia [2018] WASCA 165
Staker v The State of Western Australia [2012] WASCA 63
Stanley v The State of Western Australia [2018] WASCA 229
Stokke v The State of Western Australia [2015] WASCA 131
Stoysich v The State of Western Australia [2014] WASCA 208
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
Tomov v The Queen [2011] WASCA 189
Tran v The Queen [2006] NSWCCA 266
Tresnjo v The State of Western Australia [2015] WASCA 193
Ugle v The State of Western Australia [2018] WASCA 97
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The State of Western Australia [2019] WASCA 8
BUSS P:
The appellant has applied for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty in the District Court, of 40 counts in indictment 152 of 2017. All of the counts concerned dealings in prohibited drugs. The maximum penalty for each count was 25 years' imprisonment or a fine of $100,000, or both.
Count 40 alleged that on 10 May 2016, at East Perth, the appellant sold a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
On 6 April 2018, Stone DCJ sentenced the appellant in relation to the 40 counts in the indictment. The individual sentence for count 40, which involved the sale of 989.3 g of methylamphetamine (89.3 g at 82% purity and 900 g at 84% purity), was 8 years' imprisonment. His Honour imposed a total effective sentence of 12 years 6 months' imprisonment. The total effective sentence was backdated to 10 May 2016. A parole eligibility order was made.
The appellant relies on two grounds of appeal.
Ground 1 alleges, in essence, that the sentencing judge erred in law in the discount his Honour afforded, pursuant to s 9AA of the Sentencing Act 1995 (WA), for the appellant's pleas of guilty. In particular, it is alleged that the discount of 16% in relation to counts 10, 11, 37, 38 and 40 and the discount of 18% in relation to the other counts were manifestly inadequate in that the appellant pleaded guilty 'at the first or close to the first reasonable opportunity'.
Ground 2 alleges that his Honour erred in law in the application of the parity principle in relation to count 40, in that the appellant's co‑offenders on that count, Mark Woodcock and Roberto Costa Ramirez, 'had more significant roles in the offence than the appellant and yet received either very similar or lesser sentences for that offence'.
On 3 July 2018, I referred the appellant's application for leave to appeal to the hearing of the appeal.
I agree with Beech and Pritchard JJA that the appellant should have leave to adduce the additional evidence referred to in the appellant's application in the appeal dated 31 August 2018, leave to appeal on ground 1 should be refused, leave to appeal on ground 2 should be granted and the appeal should be dismissed. My reasons are as follows.
The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the appellant's personal circumstances and antecedents and the submissions of the parties
The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the appellant's personal circumstances and antecedents and the submissions of the parties are, to the extent relevant, contained in the reasons of Beech JA. I will not repeat them except as necessary to explain my reasons.
The appellant's application in the appeal for leave to adduce additional evidence in the appeal
I agree with Beech JA, for the reasons he gives, that the appellant's application in the appeal dated 31 August 2018 for leave to adduce additional evidence in the appeal should be granted.
The merits of ground 1
I agree with Beech JA, for the reasons he gives, that ground 1 is without merit.
The merits of ground 2
I will examine the nature and content of the parity principle and the proper approach to the application of the principle where co‑offenders have committed common offences and some or all of the co‑offenders have also committed other unrelated offences.
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).
In Pearce, McHugh, Hayne and Callinan JJ's observation that a failure to ensure proper sentencing on each count in an indictment containing multiple counts 'may give rise to artificial claims of disparity between co‑offenders' concerned artificial claims of an infringement of the parity principle [48]. Their Honours referred with approval to the reasons of Ormiston JA in R v Lomax,[6] where his Honour said:
inadequate individual sentences may lead to what may seem to be artificial claims of disparity in that other co-offenders, charged on fewer counts, may claim injustice if not given sentences similar to those of a principal offender.
[6] R v Lomax [1998] 1 VR 551, 564.
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:[7]
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.
[7] 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;[8] Postiglione v The Queen;[9] R v Taudevin.[10] The applicable test is objective not subjective.
[8] Lowe (609 ‑ 610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J).
[9] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).
[10] 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.[11]
[11] 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;[12] Billing v The State of Western Australia [No 2];[13] Green v The Queen.[14]
[12] I (a child) v The State of Western Australia [2006] WASCA 9 [66] (Steytler P; McLure JA agreeing).
[13] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).
[14] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] (French CJ, Crennan & Kiefel JJ).
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].
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].
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen;[15] Tomov v The Queen.[16]
[15] Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 [202] ‑ [203] (Campbell JA; Rothman J agreeing generally), [245] ‑ [246] (Howie J; Rothman J agreeing generally).
[16] Tomov v The Queen [2011] WASCA 189 [100] (Buss JA; Newnes JA & Hall J agreeing).
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]).
In Postiglione, the appellant and a co‑offender, Savvas, were convicted of offences committed together while they were in custody. At the time, they were serving different sentences for unrelated offences.
The appellant was sentenced for the new offences to 18 years' imprisonment with a non‑parole period of 13 years 10 months, dating from 7 May 1993. When he was sentenced for the new offences, the appellant was serving a sentence of 12 years' imprisonment with a non‑parole period of 9 years. He would have been eligible for parole on 8 March 1996.
Savvas was sentenced for the new offences to 25 years' imprisonment with a non‑parole period of 18 years, dating from 17 June 1994. When he was sentenced for the new offences, Savvas was serving a sentence of 25 years' imprisonment with a non‑parole period of 18 years. He would have been eligible for parole on 23 August 2006.
The effect of the new sentence imposed on the appellant was to extend his overall sentence by 12 years and 2 months and his non‑parole period by 11 years, making him ineligible for release on parole until 6 March 2007. When released, he would almost certainly be deported to Italy to serve the balance of a sentence imposed for previous offences he committed in Italy. If so, he would be in custody at least until July 2012.
By contrast, the effect of the new sentence imposed on Savvas was to extend his overall sentence and his non‑parole period by only 5 years and 10 months, making him ineligible for release on parole until one month before the earliest date on which the appellant was likely to be finally released from custody.
In Postiglione, a majority (Dawson, Gaudron and Kirby JJ; McHugh and Gummow JJ dissenting) allowed the appellant's appeal on the basis of the parity principle.
Dawson and Gaudron JJ said that, in the circumstances of the particular case, the 'real punishment' for the appellant and Savvas was 'the extra period which they must spend in prison' (303). Due proportion as between their sentences could not be determined without taking the extra period into account, but that was not to say that the extra period was the only matter to be taken into account. Their Honours added that the sentences imposed on the appellant and Savvas for the new offences were set having regard to the prior sentences which each was serving. The sentences for the new offences operated 'for all practical purposes' to bring the earlier sentences to an end (303). In the circumstances, and putting aside the appellant's offences against the laws of Italy, the proper course was 'to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased' (303).
The conclusion of Dawson and Gaudron JJ that the parity principle had been infringed resulted from the different manner in which the totality principle had been applied to the appellant and Savvas when they were sentenced for the new offences. The application of the totality principle was, in the circumstances, significantly more favourable to Savvas than to the appellant. The different manner in which the totality principle had been applied gave rise to a legitimate or justifiable sense of grievance on the appellant's part (304).
Kirby J said that the disparity between the extra period in custody which the appellant and Savvas were each required to serve for the new offences was 'clearly offensive to the sense of justice' (343).
In Ayik v The Queen,[17] the applicant and C were co‑offenders in relation to a serious drug dealing offence. C also committed a less serious offence on the day before the common offence was committed. The sentencing judge sentenced the applicant to 9 years' imprisonment, with a non‑parole period of 5 years 6 months, for the common offence. The sentencing judge sentenced C to 6 years' imprisonment, with a non‑parole period of 3 years 6 months, for the common offence. C had significant mitigation (which the applicant did not have) in relation to the common offence. The sentencing judge sentenced C to 4 years 6 months' imprisonment, with a non‑parole period of 3 years, in relation to the additional offence (not in common with the applicant). C received a total effective sentence for both offences of 6 years 6 months' imprisonment, with a non‑parole period of 4 years.
[17] Ayik v The Queen [2013] NSWCCA 119.
The applicant appealed against his sentence of 9 years' imprisonment, with a non‑parole period of 5 years 6 months, on the ground that the sentencing judge erred in her application of the parity principle having regard to the sentences (and the structure of the sentences) imposed on C.
In the Court of Criminal Appeal of New South Wales, Hoeben CJ at CL (Hall and Davies JJ agreeing) said that, unlike Postiglione, the case before their Honours was not a case where both the applicant and C were serving prior lengthy terms of imprisonment at the time of sentencing. The circumstances of Postiglione were very different from the case before their Honours in that C was being sentenced for two related offences and both the applicant and C were serving their first terms of imprisonment [34]. His Honour observed that counsel for the applicant had focussed upon the additional time which C would spend in custody as a result of the sentence imposed for the common offence. His Honour then said [36]:
Another and more logical way of approaching the structure of the sentences imposed on C is that in accordance with the principle of totality, her Honour determined that only six months of the sentence imposed for the first and lesser count should be served by C, with the remainder of the sentence for that first count being subsumed by the sentence imposed for the second, more serious, count. In other words, her Honour concluded that a level of partial accumulation of six months was sufficient to reflect the additional criminality of the less serious offence in the first count.
In Ayik, the Court of Criminal Appeal was not persuaded that there was any marked and unjustified disparity between the sentence imposed on the applicant and the sentence imposed on C.
In El‑Helou v The Queen,[18] the appellant was sentenced by a District Court judge to a total effective sentence of 10 years 6 months' imprisonment with a non‑parole period of 6 years 6 months. The appellant had pleaded guilty to an offence of knowingly taking part in the supply of the prohibited drug pseudoephedrine. The Court of Criminal Appeal of New South Wales allowed a Crown appeal and re‑sentenced the appellant to a total effective sentence of 12 years' imprisonment with a non‑parole period of 8 years. Later, the same District Court judge sentenced a co‑offender of the appellant to a total effective sentence of 12 years 9 months' imprisonment with a non‑parole period of 8 years 6 months. The offence committed by the co‑offender involved two distinct acts of supplying different quantities of pseudoephedrine. The sentence of 12 years 9 months' imprisonment, with a non‑parole period of 8 years 6 months, was made wholly concurrent with an existing total effective sentence of 11 years' imprisonment, with a non‑parole period of 6 years 6 months, imposed on the co‑offender in 2010 for related offences of drug importation and dealing with the proceeds of crime.
[18] El‑Helou v The Queen [2014] NSWCCA 209.
The appellant in El‑Helou appealed against his sentence of 12 years' imprisonment, with a non‑parole period of 8 years, on a number of grounds including on the ground that the sentence infringed the parity principle as between the appellant and the co‑offender.
In the Court of Criminal Appeal of New South Wales, Macfarlan JA (Hidden and Adams JJ agreeing) made the following observations in relation to the manner in which the sentences imposed upon the appellant and the co‑offender should be considered in determining whether the parity principle had been infringed [30] ‑ [31]:
In comparing the sentences imposed upon the appellant and the co‑offender regard must be had to the actual period that each is to serve by reason of his commission of the common offence (Postiglione at 301‑2, 303 and 343). This does not mean that there should be a simple comparison between the appellant's head sentence of 12 years imprisonment and the additional period of 1 year and 9 months that the co-offender is required to serve by reason of the common offence. Such a 'merely arithmetical comparison' would not be appropriate (Tran v The Queen[2006] NSWCCA 266 at [24] and see Ayik v The Queen [2013] NSWCCA 119 at [33]). Nevertheless, the limited length of the additional sentence imposed upon the co-offender is a significant matter to consider in assessing whether the appellant would have a justifiable sense of grievance by reason of the sentences imposed upon him and the co‑offender (see R v Freeman[2005] NSWCCA 460 at [20]‑[23]; Bell v The Queen[2008] NSWCCA 206 at [37]‑[40]).
Another way of looking at the issue is that the co-offender's overall head sentence of 12 years and 9 months effectively reflected the co‑offender's offence of importation as well as that of supply, whereas the applicant's head sentence of 12 years related only to his offence of supply.
In El‑Helou, the Court of Criminal Appeal held that the parity principle had been infringed in that 'a reasonable bystander would consider that the appellant [had] a justifiable sense of grievance that the sentences imposed on him and the co‑offender for their supply offences [did] not reflect the marked differences … between their respective offences and circumstances particularly … when the co‑offender's sentence was made concurrent with that for his importation offence and the co‑offender's supply offence sentence concerned two distinct acts of supply, whereas that of the appellant concerned only one' [39].
In Kelly v The Queen,[19] Beech‑Jones J (Basten JA and Fagan J agreeing) noted two matters in relation to the majority's decision in Postiglione. First, the analysis of Dawson and Gaudron JJ does not apply to a case where a co‑offender benefits from the application of the totality principle because he or she committed multiple offences and another co‑offender is sentenced only for a common offence [31]. Secondly, Postiglione is not authority for the general proposition that 'a justifiable sense of grievance is established by merely identifying a substantial difference between the extra sentences that are [to be] served for the commission of a common offence by two equally culpable offenders where either both or one are also imprisoned for other unrelated offences' [32].
[19] Kelly v The Queen [2017] NSWCCA 256.
Beech‑Jones J said that the Court of Criminal Appeal of New South Wales had considered in a number of cases a claim of a lack of parity between a sentence imposed on a co‑offender who had been sentenced for multiple offences and had received the benefit of the totality principle, on the one hand, and another offender who had been sentenced for a common offence only and had therefore not received the benefit of the totality principle, on the other [33]. His Honour referred to the decisions in Bell v The Queen;[20] Tran v The Queen;[21] Ayik and El‑Helou, and observed [33]:
Consistent with Postiglione in each of these four cases the Court took into 'account' the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co‑offender.
[20] Bell v The Queen [2008] NSWCCA 206.
[21] Tran v The Queen [2006] NSWCCA 266.
Beech‑Jones J emphasised in Kelly that 'what must be compared is all the components of the sentence for all the offences that each of the offenders is serving and the circumstances of the common and unrelated offending of the co‑offender' [39]. His Honour observed that:
(a)in Ayik, the Court found that the unrelated offending of the co‑offender was 'lesser' than the common offence, such that 'it was artificial to isolate out that part of the sentence of the co‑offender that was solely referable to the common offence and ignore that part of the sentence for the common offence that was running concurrently with the sentence for the other offences' [39]; and
(b)in El-Helou, the unrelated offending was significant when compared to the common offence such that 'a comparison of the applicant's criminality in committing the common offence with the co-offender's criminality in committing the common offence and the unrelated offences against their respective sentences led to the conclusion that there was a justifiable sense of grievance' [39].
Accordingly, Beech‑Jones J rejected the applicant's contention in Kelly that a comparison of the 'actual effect' of the co‑offender's sentence for the common offence with the applicant's sentence for that offence demonstrated a lack of parity. His Honour elaborated that, although a comparison between the applicant's sentence and the co‑offender's sentence for the common offence must be taken into account, 'what must ultimately be considered is all the components of the sentence imposed on the co‑offender including the facts and the circumstances of the related and unrelated offences' [40].
There is a line of authority in this court concerning the proper approach to the application of the parity principle where co‑offenders have committed common offences and some or all of the co‑offenders have also committed other unrelated offences. See Nguyen v The State of Western Australia;[22] Jardim; Tresnjo v The State of Western Australia;[23] and Wong v The State of Western Australia.[24]
[22] Nguyen v The State of Western Australia [2009] WASCA 8.
[23] Tresnjo v The State of Western Australia [2015] WASCA 193.
[24] Wong v The State of Western Australia [2019] WASCA 8.
In Wong, the appellants comprised Chiu Wong and Chuen Wong. Chiu Wong was convicted of counts 1, 2, 3, 4 and 5 on a joint indictment. Chuen Wong was convicted of counts 4 and 5 on the joint indictment. Counts 4 and 5 were joint offences committed by both Chiu Wong and Chuen Wong. Counts 1, 2 and 3 were separate or unrelated offences committed by Chiu Wong only. Chiu Wong was sentenced to a total effective sentence of 16 years 6 months' imprisonment, backdated to 20 February 2015, with eligibility for parole. Chuen Wong was sentenced to a total effective sentence of 13 years' imprisonment, backdated to 20 February 2015, with eligibility for parole. Both Chiu Wong and Chuen Wong appealed against sentence.
This court allowed both appeals against sentence. In respect of Chiu Wong, different individual sentences were substituted on some of the counts. A lower total effective sentence, namely 15 years' imprisonment, was imposed.
One of Chuen Wong's grounds of appeal invoked the parity principle. Senior counsel for Chuen Wong raised the question as to the correct comparison for the purposes of the parity principle. In particular, on the facts of the case, was the correct comparison between the sentences imposed upon the co‑offenders for the joint counts only or between the total effective sentences imposed upon the co‑offenders for the joint counts and, in the case of Chiu Wong, the other separate or unrelated counts? Mazza and Beech JJA (Mitchell JA relevantly agreeing) observed [93] ‑ [94]:
The question raised by senior counsel for [Chuen Wong] as to the correct comparison for the purposes of the parity principle was answered by this court in Jardim. In that case, McLure P (with whom Pullin JA agreed), said that the question of whether there was a justifiable sense of grievance had to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle. Her Honour went on to explain that the comparison, for the purposes of the totality principle, was not concerned with the individual or total sentence for the common offences, but rather the total sentences imposed for all the offending (Jardim [14]). Her Honour's statement in Jardim was consistent with what her Honour had said earlier in Nguyen [27].
The approach taken in Jardim was followed by this court in Tresnjo, where it was said that it was incorrect to focus on the individual sentences for the common offences or the total sentence imposed for the common offences only and the correct comparison is between the total effective sentences for all of the offending committed by the co‑offenders in question (Tresnjo [100]).
Mazza and Beech JJA said that, as the new total effective sentence imposed on Chiu Wong was 15 years' imprisonment, 'the relevant comparison [for the purposes of the parity principle] is between [the sentence of 15 years' imprisonment] and the 13 years' imprisonment that was imposed on [Chuen Wong]' [95]. Their Honours added that 'the question is whether a disparity of what is now 2 years gives rise to an objectively justified sense of grievance on [Chuen Wong's] part' [95]. Their Honours concluded [98]:
While totality plays a part in the total effective sentence imposed upon [Chiu Wong] and is a factor to be considered in determining whether there was a legitimate or justifiable sense of grievance, in our opinion, when all of the differences between [Chiu Wong] and [Chuen Wong] are considered, a disparity of 2 years gives rise to an objectively justifiable sense of grievance on [Chuen Wong's] part. Such a disparity, in our view, does not reflect the very considerable differences in criminality between [Chiu Wong] and [Chuen Wong].
In my 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.
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.
In the present case, I agree with Beech JA, generally for the reasons he gives, that the sentence imposed upon the appellant did not infringe the parity principle and that ground 2 has not been made out.
BEECH JA:
Introduction
The appellant challenges the sentence imposed upon him following his conviction, on his plea of guilty, on 40 drug offences. 37 of those offences involved offering to sell a prohibited drug. The other three were offences of selling a prohibited drug, the most serious of which, count 40, was a sale of almost 1 kg of methylamphetamine.
The appellant was sentenced to a total effective sentence of 12 years 6 months' imprisonment. He appeals on the grounds that: (1) the discount applied by the sentencing judge under s 9AA of the Sentencing Act 1995 (WA) was manifestly inadequate; and (2) the sentencing judge erred in the application of the parity principle in relation to count 40. For the reasons that follow, in my opinion, neither ground of appeal has been made out, and the appeal must be dismissed.
Facts of offending
The facts of the offending were not in dispute.[25] The sentencing judge adopted the facts of the offending as outlined by the prosecutor.[26]
[25] ts 114.
[26] ts 114. The facts of the offending as described by the state prosecutor are at ts 35 - 47.
The particulars of the counts, facts connected to those counts and penalties imposed are contained in the table below.
Summary table
| Count | Date | Offence | Penalty imposed |
| 1 | 03/02/16 - | Offer to sell MDMA | 12 months' imprisonment Cumulative Discount for plea of guilty: 18% |
| 2 | 04/02/16 - | Offer to sell MDMA | 2 years' imprisonment Discount for plea of guilty: 18% |
| 3 | 04/02/16 - | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 18% |
| 4 | 05/02/16 - | Offer to sell anabolic steroids | 3 months' imprisonment Discount for plea of guilty: 18% |
| 5 | 06/02/16 | Offer to sell anabolic steroids | 3 months' imprisonment Discount for plea of guilty: 18% |
| 6 | 08/02/16 | Offer to sell testosterone | 3 months' imprisonment Discount for plea of guilty: 18% |
| 7 | 08/02/16 | Offer to sell testosterone | 3 months' imprisonment Discount for plea of guilty: 18% |
| 8 | 08/02/16 | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 9 | 08/02/16 | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 18% |
| 10 | 08/02/16 | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 16% |
| 11 | 08/02/16 | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 16% |
| 12 | 08/02/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 13 | 12/02/16 - | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 18% |
| 14 | 13/02/16 | Offer to sell MDMA | 3 months' imprisonment Discount for plea of guilty: 18% |
| 15 | 12/02/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 16 | 15/02/16 - | Offer to sell anabolic steroids | 3 months' imprisonment Discount for plea of guilty: 18% |
| 17 | 25/02/16 | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 18% |
| 18 | 25/02/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 19 | 03/03/16 | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 20 | 04/03/16 | Offer to sell human growth hormones | 3 months' imprisonment Discount for plea of guilty: 18% |
| 21 | 16/03/16 | Offer to sell MDMA | 2 years' imprisonment Discount for plea of guilty: 18% |
| 22 | 16/03/16 - | Offer to sell human growth hormones | 6 months' imprisonment Discount for plea of guilty: 18% |
| 23 | 24/03/16 | Offer to sell human growth hormones | 6 months' imprisonment Discount for plea of guilty: 18% |
| 24 | 24/03/16 | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 25 | 24/03/16 - | Offer to sell testosterone | 6 months' imprisonment Discount for plea of guilty: 18% |
| 26 | 27/03/16 | Offer to sell MDMA | 12 months' imprisonment Discount for plea of guilty: 18% |
| 27 | 27/03/16 - | Offer to sell human growth hormones | 3 months' imprisonment Discount for plea of guilty: 18% |
| 28 | 30/03/16 | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 29 | 30/03/16 - | Offer to sell human growth hormones | 6 months' imprisonment Discount for plea of guilty: 18% |
| 30 | 05/04/16 | Offer to sell testosterone | 6 months' imprisonment Discount for plea of guilty: 18% |
| 31 | 05/04/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 32 | 05/04/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 33 | 15/04/16 - | Offer to sell human growth hormones | 3 months' imprisonment Discount for plea of guilty: 18% |
| 34 | 15/04/16 - | Offer to sell human growth hormones | 6 months' imprisonment Discount for plea of guilty: 18% |
| 35 | 21/04/16 - | Offer to sell anabolic steroids | 3 months' imprisonment Discount for plea of guilty: 18% |
| 36 | 23/04/16 - | Offer to sell anabolic steroids | 6 months' imprisonment Discount for plea of guilty: 18% |
| 37 | 29/02/16 | Sold methylamphetamine | 2 years' imprisonment Discount for plea of guilty: 16% |
| 38 | 10/03/16 | Sold methylamphetamine | 3 years' imprisonment Drug Trafficker Declaration |
| 39 | 13/04/16 | Offer to sell cocaine | 3 years' imprisonment Drug Trafficker Declaration |
| 40 | 10/05/16 | Sold methylamphetamine | HEAD SENTENCE Drug Trafficker Declaration |
Counts 1 to 36
From 29 January 2016 until 10 May 2016, the police lawfully intercepted two mobile telephone lines used by the appellant.[27] Counts 1 to 36 relate to calls and SMS messages made from these two lines, offering to sell quantities of MDMA, anabolic steroids, testosterone and human growth hormones to others.[28] It is not necessary to set out the details of every one of these counts. The following examples suffice to illustrate the nature of the offences.
[27] ts 35.
[28] ts 35 - 41, 114.
Count 1 relates to an offer to sell MDMA.[29] Between 3 and 10 February 2016, the appellant communicated by SMS and mobile with another person. The appellant sent the first SMS message on 4 February 2016, stating: 'Bananas are BK'. 'Bananas' referred to MDMA pills. The other person replied by asking if the appellant 'could do' 50. The appellant responded by indicating that he was only selling them by the hundreds. They made arrangements for the customer to pay and meet with the appellant. The appellant was later seen meeting the customer and receiving money from her.
[29] ts 35 - 36.
Similar conversations were the subject of counts 3 - 8, 12 - 20 and 22 - 36 in relation to offers to supply the prohibited drugs referred to in those counts.
Count 2 relates to an offer to sell MDMA.[30] On 4 February 2016, the appellant had telephone conversations with another person. The appellant said that the 'yellow things' were in, there were only 800 available, and they would be gone by Saturday and then not available for a while. On 5 February 2016, in another telephone conversation with the same person, the other person asked for 50. The appellant said he only did hundreds and they might not be available. The appellant mentioned a price, 'two-two', which was $2,200 per 100 tablets. The appellant offered to sell 800 tablets.
[30] ts 36.
Counts 9, 10 and 11 relate to three separate, but substantially similar, offers to sell MDMA.[31] On 8 February 2016, the appellant sent the same SMS message to three different persons offering to sell 100 'Facebook' MDMA tablets for $2,200. The SMS messages stated that those tablets were 'way stronger' than the 'banana' MDMA tablets the appellant had offered previously.
[31] ts 37.
Count 21 relates to an offer to sell MDMA.[32] On 16 March 2016, the appellant had telephone conversations with another person. The appellant indicated that he had something from another supplier that the person was after. The other person asked if it was 'juice', which was a reference to steroids, or 'the other thing'. The appellant replied 'the other thing' and said the price was $850 for 1,000. The other person said he only wanted 200, to which the appellant replied that he was only doing them by the thousand.
Counts 37 to 40
[32] ts 38 - 39.
Counts 37, 38 and 40 relate to the sale of methylamphetamine to others. Count 39 relates to an offer to sell cocaine to another. All four counts involved the appellant's dealings with a police undercover operative (UCO).[33]
[33] ts 41.
The appellant and the UCO began communicating by mobile telephone in February 2016. The appellant used one of the mobile telephone lines being intercepted by the police to do so.[34] The appellant also met with the UCO at the appellant's home on seven separate occasions between 26 February 2016 and 24 March 2016. These meetings were covertly audio recorded by the UCO and parts were also separately audio visually recorded.[35]
[34] ts 41.
[35] ts 41.
The UCO informed the appellant that he was particularly interested in purchasing 1 kg of methylamphetamine.[36] The appellant was good friends with Josh MacDonald, a co-accused for counts 37 and 39. The appellant knew that Mr MacDonald had a supplier from whom he was able to source very large quantities of methylamphetamine.[37]
Count 37
[36] ts 41.
[37] ts 41.
On 26 February 2016, the UCO met with the appellant at the appellant's home.[38] They discussed illicit drugs, including methylamphetamine. The appellant said he would speak to Mr MacDonald about providing a sample. The appellant then sent an SMS message to Mr MacDonald saying that he wanted to meet with him to discuss something important.[39] Later that day, the appellant spoke by phone with the UCO. The UCO said he wanted to get half an ounce of methylamphetamine for $4,000.[40]
[38] ts 41.
[39] ts 41.
[40] ts 41.
On 29 February 2016, the UCO met with the appellant and Mr MacDonald at the appellant's home. The appellant and Mr MacDonald gave the UCO what was said to be half an ounce of methylamphetamine.[41] In exchange, the UCO gave $4,000 to Mr MacDonald, who indicated that he needed to give the money to his supplier.[42] When later analysed, the methylamphetamine was found to weigh 13.6 g and have a purity of 78%.[43]
Count 38
[41] ts 41.
[42] ts 41 - 42.
[43] ts 42.
On 8 March 2016, the UCO visited the appellant. The UCO informed the appellant that he was impressed with the quality of the half ounce he had purchased previously and wanted to purchase another two ounces. The appellant said he would arrange for the supply. The appellant was subsequently in contact with Mr MacDonald. Later that day, the appellant called the UCO to tell him that it would be $15,000.[44]
[44] ts 42.
On 10 March 2016, the UCO visited the appellant's home. The appellant retrieved the two ounces of methylamphetamine that he said Mr MacDonald had hidden the night before and gave it to the UCO. In exchange, the UCO gave $15,000 to the appellant. After this meeting, Mr MacDonald arranged to go to the appellant's home.[45]
[45] ts 42.
When later analysed, the methylamphetamine was found to weigh 55.7 g and have a purity of 75%.[46]
Count 39
[46] ts 42.
On 13 April 2016, the appellant sent a Wickr message to the UCO stating that he had a friend looking to get rid of nine ounces (approximately 255 g) of cocaine for $7,500 an ounce.[47]
Count 40
[47] ts 42. Wickr is an application which encrypts messages and provides for them to be automatically deleted after a set time: ts 42.
On 29 February 2016, after the sale the subject of count 37 was completed at the appellant's home, the UCO had a discussion with Mr MacDonald in which Mr MacDonald said his supplier could provide 1 kg of methylamphetamine for $192,500. The appellant was present during the discussion.[48]
[48] ts 42, 43.
The appellant discussed the proposed purchase with the UCO on further occasions on which they met. During this time, the appellant was effectively acting as a go-between between the UCO and Mr MacDonald.[49] Ultimately, no deal eventuated with Mr MacDonald because his supplier wanted the money the day before delivery, which was not something to which the UCO was prepared to agree.[50]
[49] ts 43.
[50] ts 43.
On 24 March 2016, during a meeting between the appellant and the UCO at the appellant's home, the appellant indicated that he might be able to source the drug elsewhere.[51] An alternative supplier was also discussed at a meeting between the appellant and the UCO on 29 March 2016.[52]
[51] ts 43.
[52] ts 43.
On 15 April 2016, the appellant sent a Wickr message to the UCO stating, in effect, that he could have a taster of methylamphetamine in the next two days.[53] On 27 April 2016, the appellant and the UCO met at the appellant's home. The appellant gave the UCO two small clip-seal bags containing methylamphetamine. One bag contained 0.06 g and the other bag contained 0.05 g.[54]
[53] ts 44.
[54] ts 44.
On 28 April 2016, the UCO sent a Wickr message to the appellant stating that the sample was 'A grade' and that he wanted to do business. Later that day, the appellant sent a Wickr message to the UCO stating that it would cost $180,000.[55] The UCO told the appellant to get the appellant's 'contact' to message the UCO directly. The appellant's contact was Roberta Costa Ramirez, who contacted the UCO on Wickr.[56]
[55] ts 44.
[56] ts 45.
On 29 April 2016, Mr Costa Ramirez met with the UCO at an IGA Supermarket in Maylands. Afterwards, Mr Costa Ramirez and the UCO went to Mr Costa Ramirez's unit, inside which they discussed the sale of 1 kg of methylamphetamine.[57] The UCO sent a Wickr message to the appellant informing him that the meeting went well, to which the appellant responded.[58] The appellant played no further role in the sale after this point.
[57] ts 45.
[58] ts 45.
On 2 May 2016, the police began lawfully intercepting Mr Costa Ramirez's mobile phone services. Mr Costa Ramirez was in contact with another co-accused, Larry Perlin, to set up the sale to the UCO.[59]
[59] ts 45.
On 3 May 2016, the UCO went to Mr Costa Ramirez's unit with $180,000 in cash. Mr Costa Ramirez counted it and discussed the sale of 1 kg of methylamphetamine. They then drove, separately, to Mr Perlin's unit, where the UCO, Mr Costa Ramirez and Mr Perlin discussed drugs.[60]
[60] ts 45.
In the days that followed, the UCO tried to arrange with Mr Costa Ramirez the purchase of the methylamphetamine. On 9 May 2016, Mr Costa Ramirez sent a Wickr message to the UCO asking him to be at Mr Costa Ramirez's unit at 12:45 pm the next day.[61]
[61] ts 45 - 46.
On 10 May 2016, the UCO went to Mr Costa Ramirez's unit with $180,000 in cash.[62] Mr Costa Ramirez and the UCO then drove separately to Mr Perlin's unit. The UCO and Mr Costa Ramirez went into the unit and met with Mr Perlin. Mr Perlin directed the UCO and Mr Costa Ramirez to an upstairs bedroom. A short time later, Mr Perlin returned to the bedroom with 989.3 g of methylamphetamine. In exchange, the UCO gave Mr Perlin the $180,000. When later analysed, 89.3 g of the methylamphetamine had a purity of 82% and the remaining 900 g had a purity of 84%.[63]
[62] ts 46.
[63] ts 46.
Another offender, Mark Woodcock, was present at the unit, and it is alleged that he was the person who supplied the methylamphetamine that day.[64]
[64] ts 46.
The co-offenders, Mr Costa Ramirez, Mr Woodcock and Mr Perlin, were arrested a short time later.[65] Each was in possession of part of the $180,000 paid by the UCO. Mr Costa Ramirez was in possession of $40,000.
[65] ts 46.
The appellant was arrested on the same day.[66] He told police that he was to be paid $10,000 from the sale.[67]
[66] ts 46.
[67] ts 47.
Personal circumstances
The appellant was 29 years old at the time of sentence and 27 years old during the period of his offending.
The appellant was born in England and lived there until his family moved to Ireland when he was about 12.[68] He completed the equivalent of year 12 and then worked in construction, in the same company as his father. A year later, he lost his job during the recession in Ireland.[69] In the years that followed, the appellant described himself as 'living on the breadline'; he struggled to pay rent and put food on the table and he began to drink heavily.[70]
[68] ts 116; Psychological report of Ms Julie Hasson dated 21 October 2017 (psychological report) [2].
[69] ts 116; psychological report [4] - [5].
[70] Psychological report [5].
In or around 2012 or 2013, the appellant moved to Western Australia on a visa, later gaining permanent residency.[71] In the first year, he worked in construction, reduced his alcohol consumption, attended the gym after work, and began competing in bodybuilding. In order to devote more time to training, he started security work.[72]
[71] ts 117; psychological report [5].
[72] ts 117; psychological report [6] - [7].
The use of steroids and hormone therapy was a common activity amongst the appellant's peers at the gym and in security work. The appellant fell into the same practice.[73] Although he had started using steroids in Ireland, the appellant's use became problematic in Australia, where it began to consume a large part of his daily routine.[74] He would inject six to seven times per day, using insulin, peptides, anti-oestrogens and breast cancer drugs, all of which have known side effects.[75] He was hospitalised for heart pain and developed abscesses at the injection sites.[76] The costs associated with his use of performance enhancing drugs progressively increased to thousands of dollars per week.[77]
[73] ts 114; Pre-sentence report (2).
[74] ts 117; psychological report [15].
[75] ts 117; psychological report [15].
[76] ts 117; psychological report [15].
[77] ts 114; pre-sentence report (2).
Security work paid less than construction and the appellant found himself struggling financially to meet his rent, food expenses, car expenses and the cost of supplements, steroids and other bodybuilding requirements.[78] Despite working as many shifts as he could, the appellant was soon in financial stress. His offending began as a means of making up the shortfall between his income and his expenses.[79]
[78] ts 117; psychological report [8].
[79] ts 117; psychological report [8].
The issues underlying his offending were issues regarding self-esteem and self-image, associated substance misuse and poor consequential thinking.[80]
[80] ts 120.
The sentencing judge accepted that the appellant had made a determined effort resulting in significant gains since he had ceased drug use following his arrest.[81]
[81] ts 118.
Sentencing remarks
In light of the grounds of appeal, it is not necessary to detail all aspects of the sentencing judge's comprehensive sentencing remarks.
The sentencing judge identified the following aggravating factors:[82]
(1)The appellant's actions were 'deliberate, repeated and persistent'.[83]
(2)The quantity, purity and value of the drugs in which the appellant dealt were significant and varied and some involved substantial quantities.[84]
(3)There were others involved in the offences.[85]
(4)The appellant was motivated in each instance by commercial gain.[86]
[82] ts 114 - 116
[83] ts 114.
[84] ts 115 - 116.
[85] ts 116.
[86] ts 116.
After considering the appellant's personal circumstances,[87] the sentencing judge noted that the appellant had no relevant criminal history and should therefore be considered a first offender.[88]
[87] ts 116 - 118.
[88] ts 118.
His Honour referred to the following mitigating factors:
(1)The appellant cooperated with the police and participated in interviews with them, in which he made 'fairly frank admissions'.[89]
(2)The appellant demonstrated remorse: by his plea of guilty, to the author of the pre-sentence report, in undertaking various prison programs to address the issues underlying his offending, and in taking private substance misuse counselling.[90]
(3)The appellant pleaded guilty to each count, although in the face of a strong prosecution case and, in relation to counts 10, 11, 37, 38 and 40, after committal for trial.[91] The pleas of guilty for the other counts were entered at the disclosure committal stage on 25 January 2017.[92] For the first group of five offences, the discount under s 9AA was 16% and, for the other 35 offences, 18%.[93] This approach is challenged by ground 1.
(4)The appellant took steps towards rehabilitation after going into custody, including participation in prison programs.[94]
(5)The appellant would suffer in prison as a result of having no family in the state, limited community ties and concern about his father's health,[95] who was about to undergo a significant vascular procedure at the time of sentence.[96]
(6)The appellant had prior good character and prior good employment history.[97]
[89] ts 118.
[90] ts 118.
[91] ts 118 - 119.
[92] ts 119.
[93] ts 123.
[94] ts 119.
[95] ts 119.
[96] ts 51.
[97] ts 119 - 120.
The sentencing judge made a number of observations as to the seriousness of the appellant's offending. His Honour stated that the appellant's offending was very serious. The appellant was dealing in large volumes of various prohibited drugs including steroids, MDMA, cocaine and methylamphetamine for commercial gain.[98] The sentencing judge observed that the appellant 'present[ed] as a one-stop shop for illicit drugs'.[99] In relation to counts 37, 38 and 40, the appellant was a facilitator of a syndicate who was able to bring people higher up in the syndicate to meet with the UCO so that substantial quantities of drugs could be sold.[100]
[98] ts 120.
[99] ts 121.
[100] ts 120.
The sentencing judge stated that he had considered the sentencing proceedings for both Mr Costa Ramirez and Mr Woodcock, observing, correctly, that the count that the appellant had in common with them was count 40.[101] His Honour stated that he was aware of the discount Mr Costa Ramirez got for his plea of guilty, and the sentence imposed on Mr Woodcock.[102] The sentencing judge observed that it was difficult, in some respects, to reconcile how Mr Costa Ramirez ended up with a sentence longer than Mr Woodcock in respect of the offence the subject of count 40.[103]
[101] ts 120.
[102] ts 120.
[103] ts 120.
The sentencing judge considered that the appellant's involvement in relation to count 40 dated from 29 February 2016 to 10 May 2016, because throughout this time the appellant was endeavouring to facilitate the supply of 1 kg of methylamphetamine to the UCO.[104] The first plan was to source 1 kg from Mr MacDonald for $192,000, which, if successful, would have seen the appellant make $8,700.[105] Counts 37 and 38 were, in effect, 'tasters' for the purposes of that plan. The second plan, when the first fell through, was to source 1 kg from Mr Costa Ramirez for $180,000, from which the appellant stood to make $10,000.[106] This plan was ultimately successful, and involved methylamphetamine of a high grade.[107] Both plans were motivated by greed.[108]
[104] ts 120 - 121.
[105] ts 121.
[106] ts 121.
[107] ts 122.
[108] ts 121.
These factors, combined with the need for general deterrence and specific deterrence, led the sentencing judge to conclude that the offences required an immediate term of imprisonment.[109]
[109] ts 123.
The sentencing judge imposed the individual sentences set out in the table at [59] above. After referring to the totality principle, the sentencing judge ordered that the sentences on counts 1, 8, 39 and 40 be cumulative upon one another and the remaining counts be concurrent, resulting in a total effective sentence of 12 years 6 months' imprisonment.[110]
[110] ts 125.
Grounds of appeal
The appellant appeals on two grounds.
1.The sentencing judge erred in law in reducing the sentences on counts 10, 11, 37, 38 and 40 by 16% and the sentences on the remaining counts by 18%, in that those reductions were manifestly inadequate, having regard to the fact that the appellant pleaded guilty at the first or close to the first reasonable opportunity.
2.The sentencing judge erred in law in the application of the parity principle in relation to count 40, in that the co‑offenders Mr Woodcock and Mr Costa Ramirez had more significant roles in the offence than the appellant and yet received either very similar or lesser sentences for that offence.
The question of leave to appeal was referred to the hearing of the appeal.[111]
[111] Order of Buss P, 3 July 2018, AB 5.
Application for leave to adduce additional evidence at the hearing of the appeal
The appellant applied, on 31 August 2018, for leave to adduce additional evidence on the appeal. In substance, the evidence the subject of the application is:
(1)the transcript of the sentencing of Mr MacDonald;
(2)the affidavit of the appellant's former solicitor, Ms Cain;
(3)a table containing the sentences imposed upon Mr MacDonald.
There was no opposition to the receipt of the additional evidence. I would grant leave to adduce the evidence. Ms Cain's affidavit contains evidence relevant to the evaluation of ground 1. The other material relates to the sentencing of Mr MacDonald. That evidence is received by way of background; the appellant's parity ground does not point to the sentencing of Mr MacDonald as revealing any parity error in relation to the appellant's sentence.
I turn to ground 1.
Ground 1: were the discounts under s 9AA inadequate?
Ground 1 contends that the discounts applied by the sentencing judge under s 9AA were manifestly inadequate, having regard to the fact that the appellant pleaded guilty at, or close to, the first reasonable opportunity.
That contention requires attention to the course of the proceedings prior to the appellant's entry of his pleas of guilty.
The course of the proceedings prior to the pleas of guilty
The appellant was charged on 10 May 2016. He first appeared in the Magistrates Court the following day, when he was remanded to 25 May 2016. He had further appearances on 22 June 2016, 15 July 2016, 5 August 2016, 16 September 2016, 22 November 2016, 28 November 2016 and 9 December 2016.[112]
[112] AB 286 - 287.
During this period, the appellant was facing 50 charges, two of which were charges of simple offences.[113]
[113] Affidavit of Felicity Cain, affirmed 17 August 2018 (Cain affidavit) [2].
From 25 July 2016, the appellant was represented by Ms Cain. She first appeared for the appellant on 16 September 2016.[114] Ms Cain's affidavit includes the following, concerning the period prior to January 2017:
(1)In August and September 2016, Ms Cain went through the search video and the appellant's VROI, as well as the statement of material facts for the 50 charges.[115]
(2)Ms Cain examined a spreadsheet relating to the calls and SMS messages from the appellant's two mobile phones.[116]
(3)During November and December 2016, Ms Cain received disclosure of two lever arch files of material, and some digital material.[117]
(4)A number of conferences with the client, visiting him in prison, were necessary to explain to him the criminal liability attaching to his role as a 'liaison for a potential fee'.[118]
(5)The process of assessing the overall strength of the prosecution case also took time.[119]
[114] Cain affidavit [4].
[115] Cain affidavit [2].
[116] Cain affidavit [2].
[117] Cain affidavit [2].
[118] Cain affidavit [3].
[119] Cain affidavit [3].
The first committal hearing occurred on 9 December 2016, at which time the charges were adjourned to 25 January 2017.
At the hearing on 25 January 2017, the following occurred:
(1)The respondent discontinued seven charges.
(2)The appellant pleaded not guilty to six charges, five of which became the subject of counts 10, 11, 37, 38 and 40. He was committed to the District Court for trial on those offences.
(3)The appellant pleaded guilty to 35 charges, which became the subject of counts 1 - 9, 12 - 36 and 39.
(4)The appellant pleaded guilty to two simple offence charges.
On 27 February 2017, Ms Cain sent a letter to the respondent with a formal plea offer regarding four of the six charges.[120] In substance, the offer was to plead guilty to three of the charges if the respondent discontinued the fourth, namely the charge of an offer to sell 1 kg of methylamphetamine.[121] Over the following months, counsel for both parties discussed the offer and an amended statement of material facts.[122] Ultimately, the offer was accepted and the respondent discontinued the charge relating to the offer to sell 1 kg of methylamphetamine.[123] The facts concerning that charge were incorporated as background facts concerning count 40.[124]
[120] Cain affidavit [7], annexure FAC 2.
[121] Cain affidavit annexure FAC 2.
[122] Cain affidavit [7].
[123] Cain affidavit [7]; respondent's submissions [23].
[124] ts 101 - 102.
The appellant was first arraigned in the District Court on 28 August 2018. On that date, the appellant pleaded guilty to the five remaining charges, which were the subject of counts 10, 11, 37, 38 and 40.[125]
The appellant's submissions
[125] ts 118 - 119.
The appellant submits that he was unable to enter pleas to counts 1 - 36 until receiving full disclosure from the respondent. Pleading to all of the charges without full disclosure would have meant potentially pleading to charges that were duplicates; this was not a case of the appellant withholding pleas for a forensic advantage. Therefore, it was not reasonably possible for the appellant to plead guilty to counts 1 - 36 at an earlier stage.[126]
[126] Appellant's submissions [23].
The appellant submits further that his pleas to counts 1 - 9, 12 - 36 and 39 were of great value to the state. The pleas saved the state and the court days of trial presenting the texts and intercepted calls and possibly the UCO revealing his identity. Therefore, the discount should not have been 18% but 'closer to' 25%.[127]
[127] Appellant's submissions [24].
As to the remaining counts, the appellant submits that the facts in relation to count 40 did not necessarily disclose distinct offers to sell drugs, but, rather, negotiations in the lead up to the final sale of 1 kg of methylamphetamine. The appellant submits that this complex set of facts meant he had a right to have the respondent determine the appropriate method of charging, which could only occur after the matter was taken up by the Office of the Director of Public Prosecutions (DPP).[128] The appellant submits that strictly indictable charges can only be negotiated with the DPP, but this can only occur when the DPP takes carriage of a matter after an accused has indicated a need for full disclosure pursuant to s 41(4) of the Criminal Procedure Act 2004 (WA).[129] It appears that the DPP took carriage of the matter in 'late 2016'.[130] In written submissions, the appellant contends that the letter Ms Cain sent to the respondent on 27 February 2017 was the earliest reasonable opportunity to negotiate,[131] with the consequence that the appellant's plea of guilty to count 40 on 28 August 2017 was the earliest reasonable opportunity to plead guilty.[132]
[128] Appellant's submissions [25].
[129] Appellant's submissions [13].
[130] Cain affidavit [4].
[131] Appellant's submissions [13].
[132] Appellant's submissions [25].
Despite the appellant's written submissions, the appellant accepted, in oral submissions, that his pleas of guilty were not at the earliest reasonable opportunity.[133]
Section 9AA: legal principles
[133] Appeal ts 3, 13.
The following well‑established principles concerning s 9AA were outlined in Ugle v The State of Western Australia:[134]
[134] Ugle v The State of Western Australia [2018] WASCA 97 [17] - [23].
Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The court may reduce the head sentence:
[i]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.
The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:
(a) Securing the conviction of a person who has committed a criminal offence;
(b) The Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c) If the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d) Avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e) The more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [18](a) above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.
In evaluating the appropriate discount for a plea of guilty, the evident purpose of s 9AA should be borne in mind. The following observations in Gobetti v The State of Western Australia [[2017] WASCA 130] are apposite.
It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless. (footnotes omitted)
The meaning of the phrase 'first reasonable opportunity' has been considered by this court in a number of cases.[135] The following principles are well-established:
(1)An offender who contends that they pleaded guilty at the first reasonable opportunity has an onus to prove that proposition on the balance of probabilities.[136]
(2)The first opportunity to plead guilty is not necessarily the first reasonable opportunity to plead guilty.[137] Whether or not it is requires an objective assessment of when, having regard to all the circumstances of the case, it would have been reasonable for the offender to have pleaded guilty.[138]
(3)Section 9AA does not reveal an intention to reward or require hasty or unreasonable pleas of guilty.[139]
(4)Often, but not in every case, the first reasonable opportunity to plead guilty would be after the statutory requirements in s 35(4), (5), (6), (11) and (12) of the Criminal Procedure Act 2004 (WA), as applicable, have been satisfied.[140]
[135] See, for example, Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99; Pham v The State of Western Australia [2016] WASCA 201; Savory v The State of Western Australia [2018] WASCA 165.
[136] Rossi [74].
[137] Rossi [53]; Savory [45].
[138] Rossi [53]; Savory [45].
[139] Rossi [67]; Savory [45].
[140] Rossi [68]; Savory [45].
Where the entry of a plea is delayed for the purpose of ascertaining the strength of the prosecution case, the plea cannot be said to be at the first reasonable opportunity.[141] In Savory, this court found that a plea of guilty, which was delayed in order that negotiations be conducted to resolve factual issues before the entry of the plea, could not be said to be entered at the first reasonable opportunity.[142]
Ground 1: disposition
[141] Rossi [76] - [77].
[142] Savory [50].
The thrust of ground 1 is that the discounts applied by the sentencing judge are so low as to reveal error, given that the pleas of guilty were entered at, or close to, the first reasonable opportunity.
Before the sentencing judge, the appellant did not submit that his pleas of guilty were entered at the first reasonable opportunity. Rather, it was submitted that the appellant had pleaded guilty at 'an early stage' and should be afforded a 'significant discount'.[143] As I have said, on appeal the appellant accepted that none of his pleas of guilty were made at the first reasonable opportunity. That concession was properly made. None of the pleas were at the first reasonable opportunity. The following matters demonstrate that this was so, and also bear on the extent of the delay in the entry of the pleas.
[143] Offender's outline of sentencing submissions [26], [27], AB 231; ts 67. Note, however, that, in relation to some of the counts, the submission was made that the plea of guilty was at the first 'available opportunity', ts 59.
The pleas of guilty to counts 1 - 9, 12 - 36 and 39 were entered on the appellant's tenth appearance. They were made at the second committal hearing, well after service of the committal brief.
In proceedings in the Magistrates Court, counsel for the appellant did not request early access to any evidentiary material. Even after the completion of disclosure, there was no early indication that the appellant would plead guilty to any charges.
By September 2016, the prosecution had discharged its obligation to provide a statement of material facts and the video record of interview. In the months from September 2016, counsel for the appellant was evaluating the strength of the prosecution case, and engaging in a number of conferences with the appellant to explain his criminal liability to him. Delay of a plea for these reasons is not consistent with the plea being at the first reasonable opportunity.
The appellant's submission that the delay in his pleas was justified by the need to avoid duplicity must be rejected. There is no evidence, in Ms Cain's affidavit or elsewhere, that a concern to avoid duplicity caused delay in the entry of pleas of guilty that were made on 25 January 2017. In any event, it would have been open to the appellant, through his counsel, to indicate a willingness to plead guilty subject to avoiding any duplicity in the charges.
In this case, because the pleas were not entered at the first reasonable opportunity, the maximum available discount was something less than 25%.[144] When a plea is entered at the first reasonable opportunity, a sentencing judge is not bound to allow a discount of 25%. The earlier a plea of guilty is made, the greater the discount may be.[145] The strength of the prosecution case is relevant to the discretion in fixing the amount of the discount. The sentencing judge correctly observed that the pleas were entered in this case in the face of a strong prosecution case. Bearing that in mind, and bearing in mind the extent of the delay in the pleas, reflected in the outline in [111] ‑ [117] and [127] ‑ [130] above, the discount of 18% was well within the range of an appropriate exercise of discretion. No implied error has been demonstrated.
[144] Sentencing Act, s 9AA(4)(b).
[145] Sentencing Act, s 9AA(3).
The position in relation to counts 10, 11, 37, 38 and 40 is even further removed from a plea at the first reasonable opportunity. The pleas were not entered until after the charges had been committed to the District Court for trial. Counts 10 and 11 were the subject of unsuccessful negotiations. The fact that negotiations surrounding counts 37, 38 and 40 led to the discontinuance of a further charge does not, for s 9AA purposes, justify the delay in entering the pleas in relation to counts 37, 38 and 40. It was always open to the appellant to plead, or unconditionally indicate a willingness to plead, guilty in respect of counts 37, 38 and 40, and then to negotiate for the discontinuance of the other charge. While it may have been strategically advantageous for the appellant to delay the plea while those negotiations ensued, that does not justify the delay for the purposes of evaluating the s 9AA discount.
In those circumstances, and bearing in mind the strength of the state case, the discount of 16% applied to counts 10, 11, 37, 38 and 40, to which the appellant pleaded guilty only after committal for trial to the District Court, can fairly be said to be generous.
For these reasons, ground 1 is without merit. I would refuse leave to appeal on this ground.
Ground 2: parity
Ground 2 alleges that the sentence imposed on the appellant for count 40 infringed the parity principle.
It is convenient to begin by outlining the sentences imposed on the appellant's co‑offenders.
The sentencing of co‑offenders
Regrettably, five offenders in relation to a common or related offence have been sentenced by five different judges.
Mr Woodcock and Mr Costa Ramirez were both sentenced before the sentencing of the appellant. The sentencing judge had access to their sentencing transcripts.[146] Mr MacDonald was sentenced after the appellant. We were informed at the hearing that Mr Perlin was also sentenced after the appellant.
Mr Costa Ramirez
[146] ts 47.
Mr Costa Ramirez was charged with one count of selling methylamphetamine and one count of possessing unlawfully obtained cash, specifically $40,000.[147] He was sentenced by Eaton DCJ in the District Court on 27 October 2017.
[147] The State of Western Australia v Costa Ramirez, District Court, 27 October 2017, ts 34.
Mr Costa Ramirez pleaded guilty to both counts after committal to the District Court, but before a listing for trial.[148] Eaton DCJ considered a 15% guilty plea discount to be appropriate for each count.[149]
[148] Costa Ramirez ts 37 - 38.
[149] Costa Ramirez ts 38.
Count 1 on Mr Costa Ramirez's indictment corresponds to count 40 on the appellant's indictment. Mr Costa Ramirez was convicted of selling 989.3 g of methylamphetamine, for which he was sentenced to 9 years' imprisonment.[150]
[150] Costa Ramirez ts 41.
Mr Costa Ramirez was sentenced to 2 years 6 months' imprisonment for count 2.[151] That offence was constituted by his possession of $10,000, part of the price of $180,000 that had been paid for the 989.3 g of methylamphetamine. This count does not correspond to any of the appellant's offences.
[151] Costa Ramirez ts 41.
Eaton DCJ made the sentence on count 2 concurrent with count 1, so that Mr Costa Ramirez received a total effective sentence of 9 years' imprisonment.[152] He was made eligible for parole, and the sentences were backdated to 10 May 2016 to take account of time spent in custody on remand.[153]
Mr Woodcock
[152] Costa Ramirez ts 41.
[153] Costa Ramirez ts 41.
Mr Woodcock was charged with one count of selling methylamphetamine, one count of possessing unlawfully obtained cash, being the sum of $120,050, and three counts of possessing drugs with intent to sell or supply.[154] He was sentenced by Wager DCJ in the District Court on 2 March 2018. Regrettably, her Honour's sentencing remarks make no reference to the sentence that had been imposed on Mr Costa Ramirez.
[154] The State of Western Australia v Woodcock, District Court, 2 March 2018, ts 176 - 178.
Mr Woodcock pleaded guilty to all five counts in the Magistrates Court at the committal mention date.[155] A trial of issues took place over two days,[156] following which Wager DCJ found that Mr Woodcock was actively involved with others in the dissemination of very large quantities of high level drugs, playing a significant role.[157] Her Honour considered a 15% guilty plea discount to be appropriate for each count.[158]
[155] Woodcock ts 177.
[156] Woodcock ts 177.
[157] Woodcock, 2 February 2018, ts 199 - 200.
[158] Woodcock ts 176, 177.
In this context, her Honour explained why a focus on the orders for cumulation and concurrence as between the common offences, or upon the total sentences for the common offences, without regard to the total effective sentence for the overall offending, would be erroneous. Nothing in her Honour's observations suggests that a comparison between the individual sentences or the total sentences for the common offences is impermissible. Moreover, as I have mentioned, her Honour considered and determined the merits of the appellant's contention that there was disparity in the individual sentences.[197]
[197] Nguyen [24] ‑ [26].
In Tresnjo v The State of Western Australia,[198] Mazza JA (with whom McLure P and Hall J agreed) said that in undertaking the comparison with the sentences imposed upon the co‑offender, it was 'incorrect' to concentrate, as the ground of appeal did, on the individual sentence for the common offences.[199] Nor was it correct for the focus to be on the total sentence for the common offences only. Rather, his Honour said, the appropriate comparison was between the total effective sentences for all their offending, referring to [14] of Jardim.[200] Mazza JA further observed that a complaint of lack of disparity between the sentences for the individual offences common to the two offenders was 'not the correct approach'.[201] However, his Honour observed that, in any event, if analysis were confined to the individual sentences, there was no justifiable sense of grievance.[202]
[198] Tresnjo v The State of Western Australia [2015] WASCA 193.
[199] Tresnjo [100].
[200] Tresnjo [100].
[201] Tresnjo [103].
[202] Tresnjo [103].
More recently, in Wong v The State of Western Australia,[203] Mazza JA and I considered a submission that comparison was permissible between both the sentences for the common offences, and the total effective sentences.[204] We said as follows:[205]
The question raised by senior counsel for Chuen as to the correct comparison for the purposes of the parity principle was answered by this court in Jardim. In that case, McLure P (with whom Pullin JA agreed), said that the question of whether there was a justifiable sense of grievance had to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle. Her Honour went on to explain that the comparison, for the purposes of the totality principle, was not concerned with the individual or total sentence for the common offences, but rather the total sentences imposed for all the offending [Jardim [14]]. Her Honour's statement in Jardim was consistent with what her Honour had said earlier in Nguyen [Nguyen [27]].
The approach taken in Jardim was followed by this court in Tresnjo, where it was said that it was incorrect to focus on the individual sentences for the common offences or the total sentence imposed for the common offences only and the correct comparison is between the total effective sentences for all of the offending committed by the co‑offenders in question [Tresnjo [100]].
[203] Wong v The State of Western Australia [2019] WASCA 8.
[204] Wong [50].
[205] Wong [93] - [94].
As would be apparent from what I have said in [169]‑ [173] above, on further reflection, I do not consider that what was said by McLure P in Jardim and Nguyen supports the universal statements made in [93] ‑ [94] of Wong, and apparently made in [100] and [103] of Tresnjo.
Nor, in my view, are fundamental principles concerning parity consistent with a hard and fast rule that, in cases of co‑offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. Parity is founded on the norm of equal justice. That norm may be engaged by a marked disparity in the respective sentences imposed on co‑offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though one, or both, of the co‑offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.[206] That being so, it is difficult to accept that the circumstance that one or both offenders are sentenced for additional offences renders direct comparison of the sentences for the common offence(s) impermissible.
[206] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609.
Moreover, in Postiglione v The Queen,[207] Dawson and Gaudron JJ rejected a suggestion that the comparison required by parity had a singular focus on the head sentence imposed on each offender. Their Honours observed that the head sentence 'is but one component of the sentence. A proper comparison involves a consideration of all components'.[208] Their Honours proceeded to also compare other components of the respective sentences, namely, (1) the non‑parole periods of each sentence, and (2) the extent to which each sentence increased the time to be served by each offender after completion of the (different and unrelated) sentences each offender was then serving.[209] Kirby J took a similar approach.[210] In my view, the approach of the majority in Postiglione authoritatively rejects a singular focus on a particular component of the sentence when the parity principle is invoked.
[207] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
[208] Postiglione (302).
[209] Postiglione (302 - 303, 338).
[210] Postiglione (342 - 343).
I agree with what Pritchard JA has said, at [199] - [208], as to the potential application of the parity principle to each and any of the components of a person's punishment referred to by her Honour.
Also, what was said by McHugh, Hayne and Callinan JJ in Pearce,[211] as to the desirability of a sentencing judge fixing an appropriate sentence for each offence before considering questions of totality, does not sit easily with any hard and fast rule that a comparison of the individual sentences on the common offence(s) is impermissible or not relevant.
[211] Set out above at [166].
Further, consideration of decisions of other intermediate appellate courts does not support the existence of any such universal rule. I have found no decision stating or suggesting such a rule. While many cases emphasise the need to bear in mind the influence of totality considerations, examples can be found where regard is had, albeit in some cases not as the exclusive consideration, to a comparison between the individual sentence(s) for the common offence(s).[212]
[212] See, for example, Tran v The Queen [2006] NSWCCA 266 [22] - [24]; Qing An v The Queen [2007] NSWCCA 53 [96]; Sampson v The Queen [2010] NSWCCA 119 [52] - [53]; Ayik v The Queen [2013] NSWCCA 119 [30] - [32]; R v Galea [2001] VSCA 115 [13], cited with approval in Matthews v The Queen [2014] VSCA 291; (2014) 44 VR 280 [130]; Saner v The Queen [2014] VSCA 134 [61] - [64]; R v Dang [2018] QCA 331 [40], second and third sentences.
In my view, it is open to an appellant to contend that the individual sentence imposed on a co‑offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co‑offender were also sentenced for other offences. In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences.
Consideration of the merits of an argument involving comparison of the sentence(s) for the common offence(s) will require attention to the extent to which, and the manner in which, totality considerations were applied in determining the length of individual sentences and in structuring the relationship between them. In some cases, those matters may leave little room for the practical application of the parity principle. For example, if there were only one common offence, and in sentencing the co‑offender in relation to it, the sentencing judge said that a sentence of a particular length was imposed having regard to totality considerations, without specifying what would otherwise have been an appropriate sentence, there may be little or no room for a parity argument. Where, however, as here, the sentencing judge indicates what was considered to be the appropriate sentence without regard to totality, before adjusting it on account of totality, there is room for a contention that a comparison between the indicative sentence for the co‑offender and the sentence imposed on the appellant reveals or suggests an infringement of the parity principle.
In evaluating a parity argument, all the facts, circumstances and the components of the sentences must be considered, as explained by Buss P at [53] - [54] of his Honour's reasons.
Ground 2: disposition
Proceeding on the basis invited by the appellant, that the relevant comparison is between the sentences for the common offences, for the reasons that follow, in my opinion the sentence imposed on the appellant does not infringe the parity principle.
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[213] apply.[214]
[213] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[214] Green [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40]; Lloyd v The Queen [2017] NSWCCA 303 [97].
The strongest element of the appellant's parity argument arises from the comparison between the appellant's sentence of 8 years' imprisonment on count 40 and Mr Woodcock's sentence of 7 years' imprisonment for the same offence (subject to reduction on the grounds of totality). Mr Woodcock's role in the sale of the methylamphetamine was undoubtedly higher in the chain of supply hierarchy than the appellant's. In that respect, Mr Woodcock's offence reflected a higher degree of culpability and yet the appellant received a higher sentence than Mr Woodcock's indicative sentence.
Against this, however, is that the appellant's offending in relation to count 40 involved a high degree of persistence over a lengthy period of time. From early March 2016, the appellant engaged in discussions with the UCO with a view to a sale of 1 kg of methylamphetamine. When it became apparent in late March 2016 that a supply by Mr MacDonald may not come to fruition, the appellant raised the possibility of sourcing the 1 kg from a different supplier. From mid to late April 2016, the appellant pursued and facilitated the sale that ultimately was count 40. This significant aggravating feature of the appellant's offending did not apply to Mr Woodcock's offending in relation to the count equivalent to count 40.
When proper weight is given to this consideration, the force of the appellant's complaint of disparity between his sentence in count 40 and Mr Woodcock's sentence for the offence corresponding to count 40 is greatly diminished.
When the appellant was sentenced, parity demanded attention to the sentences of both Mr Costa Ramirez and Mr Woodcock, not solely to Mr Woodcock's sentence. Mr Costa Ramirez was sentenced to a term of 9 years' imprisonment, having pleaded guilty and received a discount of 15% for the plea. I respectfully agree with the sentencing judge's observation that it is difficult to reconcile Mr Costa Ramirez's sentence of 9 years with the 7 years said to be appropriate for Mr Woodcock. Mr Costa Ramirez's offending was undoubtedly less serious than Mr Woodcock's. In this respect, I note that the judge who sentenced Mr Woodcock, subsequent to the sentencing of Mr Costa Ramirez, did not refer to Mr Costa Ramirez's sentence.
Comparison between Mr Costa Ramirez's sentence and the appellant's sentence provides no support for a conclusion that the parity principle was infringed. While Mr Costa Ramirez's offending might fairly be seen as somewhat more serious than the appellant's, that is comfortably accommodated by the 1 year higher sentence imposed on Mr Costa Ramirez.
In my opinion, in the circumstances outlined in [187] and in circumstances where there was a degree of disparity between the sentences imposed on Mr Costa Ramirez and Mr Woodcock, the sentencing judge's discretionary decision, in applying the parity principle and imposing a sentence of 8 years' imprisonment for count 40, cannot be said to reveal appellable error.
To the extent that the appellant invites comparison between the respective total effective sentences, given the very substantial differences in the respective offending, no appellably erroneous disparity is revealed.
In my view, it has not been shown that the appellant has, on an objective basis, a legitimate or justifiable sense of grievance. The comparison of the appellant's sentence with the sentences of the two relevant co‑offenders does not give rise to the appearance in the mind of a reasonable observer that justice has not been done. No express or implied error concerning parity has been revealed.
For these reasons, while I would grant leave to appeal on ground 2, the ground has not been made out.
Conclusion
For the above reasons, I would make the following orders:
(1)The appellant has leave to adduce the additional evidence referred to in the application filed 31 August 2018.
(2)Leave to appeal on ground 1 is refused.
(3)Leave to appeal on ground 2 is granted.
(4)The appeal is dismissed.
PRITCHARD JA:
I have had the advantage of reading the draft reasons of Beech JA. I respectfully agree with his Honour's reasoning and conclusions in respect of the appellant's application for leave to adduce additional evidence and in respect of ground 1. In respect of ground 2, I would also grant leave to appeal and would also dismiss that ground. While I agree generally with his Honour's reasoning in relation to ground 2, I would prefer to add some observations of my own in relation to the operation of the parity principle.
Equal justice requires identical outcomes in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[215] In the sentencing context, the principle of equal justice is applied through the parity principle, which
concerns the punishment imposed on two or more co-offenders for a common offence or offences.[216]
[215] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow & Hayne JJ).
[216] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ); Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 611 (Mason J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 335 (Kirby J).
In my view, the punishment imposed on an offender should be regarded as encompassing all of the legal and practical effects, on the offender, of the sentence imposed by the court. Each of those legal and practical effects may be regarded as a component of the punishment imposed on that offender. Without attempting an exhaustive list, the punishment imposed on an offender may include the following components.
The first component is the sentence imposed in respect of an individual offence. That sentence represents the outcome of the sentencing process, which commences with the identification of a sentence that reflects the seriousness of the offending conduct,[217] and which may then be adjusted, having regard to matters such as any discount for a plea of guilty,[218] and any mitigating factors.
[217] Sentencing Act 1995 (WA), s 6.
[218] See, eg, Sentencing Act, s 9AA.
Secondly, in cases where the court is required to fix a minimum non-parole period,[219] that period will constitute another component of the punishment imposed on the offender.[220] This component has a practical significance, namely that it dictates the minimum period that the offender must spend in custody before being eligible to serve the balance of the sentence on parole in the community.
[219] See, eg, Sentencing Act, s 90(1)(a).
[220] Postiglione (302) (Dawson & Gaudron JJ).
Thirdly, where an offender is sentenced to terms of imprisonment for multiple offences, questions of accumulation and concurrence in the service of those terms will arise, and reductions to one or more of those individual sentences may be required, in the application of sentencing principles, including the totality principle.[221] The total effective sentence represents the practical effect of the exercise of the sentencing discretion across all of the offences for which an offender is being sentenced on one occasion. The total effective sentence thus constitutes a further component of the punishment imposed on the offender.
[221] cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
Finally, where an offender is already serving a term of imprisonment, and is sentenced to a term of imprisonment for another offence, another component of the punishment imposed for the later offence will be the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence.[222] That will depend on whether the term is to be served cumulatively on, or wholly or partly concurrently with, the earlier term of imprisonment. The practical significance of the punishment imposed on the offender for the later offence will be felt in the additional period of imprisonment which is actually required to be served.[223]
[222] Postiglione (303) (Dawson & Gaudron JJ), (342 - 343) (Kirby J).
[223] Postiglione (303) (Dawson & Gaudron JJ), (342 - 343) (Kirby J).
A proper comparison of the punishment imposed on co-offenders is not limited to a comparison of the sentence imposed on each offender for the common offence, but may involve a comparison of any or all of the components of the punishment imposed on each offender.[224]
[224] Postiglione (302) (Dawson & Gaudron JJ); see also, to similar effect, (338) (Kirby J).
In the simplest hypothetical case, where a court is required to sentence two co-offenders, with identical antecedents and in identical circumstances, for one common offence, the application of the parity principle would require that the court treat the offenders alike at each stage of the sentencing process. In that simplest of scenarios, there should be no marked disparity in any component of the punishment imposed on each co-offender.
Conversely, differences between the co-offenders may warrant differences in one or more components of the punishment imposed on them.
In a case where one or more of the co-offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co-offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes. In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.
A manifest disparity in any component of the punishment imposed on co-offenders, which is not explicable by differences in the circumstances of the co-offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co-offender subjected to the greater punishment.[225]
[225] Postiglione (301 ‑ 302) (Dawson & Gaudron JJ); Green [31] (French CJ, Crennan & Kiefel JJ); Lowe (610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J); Stoysich v The State of Western Australia [2014] WASCA 208 [39] (Buss JA, Martin CJ & Mazza JA agreeing).
There are some authorities in this jurisdiction - namely Nguyen v The State of Western Australia;[226] Jardim v The State of Western Australia;[227] Tresnjo v The State of Western Australia[228] and Wong v The State of Western Australia[229] - which contain statements that might, at first blush, be understood to suggest that the only proper comparator, for parity purposes, is the total effective sentence imposed on each co-offender. However, in my view, those cases, properly understood, do not purport to establish any such principle, and should not be read in that way. Any such principle would be at odds with the approach taken by a majority of the Court in Postiglione.[230]
[226] Nguyen v The State of Western Australia [2009] WASCA 8.
[227] Jardim v The State of Western Australia [2011] WASCA 83.
[228] Tresnjo v The State of Western Australia [2015] WASCA 193.
[229] Wong v The State of Western Australia [2019] WASCA 8.
[230] Postiglione (302) (Dawson & Gaudron JJ), (338) (Kirby J).
Each of Nguyen, Jardim, Tresnjoand Wong involved a contention of disparity in the sentences imposed on co-offenders who were sentenced for multiple offences. In each of those cases, it was contended that a comparison between the total effective sentence imposed on the co-offender, and that imposed on the appellant, revealed that the parity principle had been infringed.[231] However, in Nguyen, Jardimand Tresnjo, members of the Court also compared other components of the punishment imposed on the co-offenders, namely the individual sentences for the common offence or offences.[232] Furthermore, in neither Nguyen, Jardim, Tresnjonor Wong did the Court preclude comparison of the individual sentences, or indeed any other component of the punishment imposed on the co-offenders, in the application of the parity principle. Instead, the approach of the Court in those cases reflected the fact that because multiple offences were involved, the more appropriate comparison was between the total effective sentences imposed on the co-offenders.[233]
[231] Nguyen [79] - [80] (Miller JA); Jardim [2] (McLure P); Tresnjo [97] - [99] (Mazza JA); Wong [50] (Mazza & Beech JJA).
[232] See, eg, Jardim [14] (McLure P, Pullin JA agreeing), [27] - [28] (Hall J); Tresnjo [103] (Mazza JA); Nguyen [6], [8] (Steytler P), [24] - [25] (McLure JA), [107] (Miller JA).
[233] Tresnjo [100] (Mazza JA); Nguyen [27] (McLure JA); Wong [94] - [98] (Mazza & Beech JJA); Jardim [14] (McLure P, Pullin JA agreeing), [27] ‑ [28] (Hall J).
For the reasons given by Beech JA at [185] - [194], the appellant has not demonstrated a marked disparity between the punishment imposed on him, and the punishment imposed on the other offenders convicted of offences corresponding to count 40 on the appellant's indictment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech21 MAY 2019
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