Hollingsworth v The State of Western Australia
[2018] WASCA 47
•10 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOLLINGSWORTH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 47
CORAM: BUSS P
MAZZA JA
HEARD: 8 MARCH 2018
DELIVERED : 10 APRIL 2018
FILE NO/S: CACR 8 of 2018
BETWEEN: JOSHUA CHARLES HOLLINGSWORTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DERRICK DCJ
File Number : IND 46 of 2017, IND 47 of 2017
Catchwords:
Criminal law - Application for leave to appeal against sentence - Possession of a prohibited drug with intent to sell or supply - Parity principle - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Mark Andrews Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Barnden v The State of Western Australia [2014] WASCA 161
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant and Joel Kurt Sims were charged on indictment 46 of 2017 as follows:
(1)On 5 May 2016 at Mount Nasura [the appellant] had in his possession a prohibited drug, namely 3, 4‑methylenedioxy‑N,alpha‑dimethylphenylethylamine (MDMA) with intent to sell or supply it to another.
(2)On the same date and at the same place as in Count (1), [the appellant] was in possession of a thing capable of being stolen, namely $2,525 in Australian currency, that was reasonably suspected to be unlawfully obtained.
(3)On the same date and at the same place as in Count (1) Joel Kurt Sims was in possession of a thing capable of being stolen, namely $625 in Australian currency, that was reasonably suspected to be unlawfully obtained.
(4)On 5 May 2016 at Seville Grove Joel Kurt Sims was in possession of a firearm, namely a .22 Stirling Rifle whilst not being the holder of a licence or permit under the Firearms Act 1973 entitling him to do so
And that a number or identification mark on the firearm had been defaced or removed
And that the firearm had been altered from the design or characteristics of its original manufacture.
(5)On the same date as in Count (1) at Seville Grove, Joel Kurt Sims and [the appellant] had in their possession a prohibited drug, namely MDMA, with intent to sell or supply it to another.
Counts 1 and 5 are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Counts 2 and 3 are contrary to s 417(1) of the Criminal Code. Court 4 is contrary to s 19(1ac) of the Firearms Act 1973 (WA).
The appellant was charged alone on indictment 47 of 2017 with the following offences:
(1)On 2 November 2016 at Cannington [the appellant] had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another.
(2)On the same date and at the same place as in Count (1) [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(3)On the same date and at the same place as in Count (1) [the appellant] was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained.
On 2 October 2017, the appellant was convicted upon his pleas of guilty to counts 1 and 2 in indictment 46 of 2017. A trial then took place in respect of counts 3, 4 and 5 in indictment 46 of 2017.
The appellant and Mr Sims were each found guilty of count 5. Mr Sims was also found guilty of count 4, but he was acquitted of count 3.
On 23 November 2017, the appellant was convicted upon his pleas of guilty to the three counts in indictment 47 of 2017. On that day, the sentencing judge sentenced the appellant and Mr Sims to terms of imprisonment as follows:
| IND 46/2017 | Appellant | Sims |
| Count 1 - Possession of MDMA with intent to sell or supply | 2 years 4 months | Not applicable |
| Count 2 - Possession of money suspected of being unlawfully obtained | 12 months | Not applicable |
| Count 4 - Possession of firearm | Not applicable | 6 months immediate imprisonment (reduced from 12) |
| Count 5 - Possession of MDMA with intent to sell or supply | 7 years 6 months | 4 years 6 months immediate imprisonment |
| IND 47/2017 | Appellant |
| Count 1 - Possession of MDMA with intent to sell or supply | 3 years immediate imprisonment |
| Count 2 - Possession of methylamphetamine with intent to sell or supply | 2 years 6 months immediate imprisonment |
| Count 3 - Possession of money suspected of being unlawfully obtained | 16 months immediate imprisonment |
With respect to the appellant, his Honour ordered that the sentence imposed on count 5 of indictment 46 of 2017 be served cumulatively upon the sentence imposed on count 2 of indictment 47 of 2017. All of the other sentences were ordered to be served concurrently. Thus, the total effective sentence imposed upon the appellant was 10 years' imprisonment. He was made eligible for parole and the sentence was backdated to 2 November 2016.
With respect to Mr Sims, his Honour ordered the sentences on counts 4 and 5 in indictment 46 of 2017 to be served cumulatively. Thus, the total effective sentence imposed upon him was 5 years' immediate imprisonment. His Honour ordered that Mr Sims be eligible for parole and backdated his sentence to commence on 29 August 2017.[1]
[1] ts 392 ‑ 395.
The appellant relies on one proposed ground of appeal which alleges an infringement of the parity principle. The ground, as originally expressed, read:
1.The sentence imposed infringed the principle of parity when compared to the sentence received by the co‑offender, Joel Kurt Sims:
Particulars
1.1The sentence imposed on the appellant of 7 years and 6 months immediate imprisonment in relation to the joint offence [being count 5 on indictment 46 of 2017] infringed the principle of parity when compared to the sentence of 4 years and 6 months imposed on the co‑offender.
1.2The total effective sentence of 10 years imprisonment imposed on the appellant infringed the principle of parity when compared to the total effective sentence of 5 years imprisonment imposed on the co‑offender.
At the hearing of the application for leave to appeal, counsel for the appellant abandoned particular 1.2 and relied only on particular 1.1.[2] Thus the sole issue for determination in this appeal is whether the sentence imposed on count 5 on indictment 46 of 2017 (count 5) infringed the parity principle.
[2] Leave to appeal ts 5.
In our opinion, the sentence under challenge did not infringe the parity principle. Leave to appeal should be refused on the proposed ground and the appeal dismissed. Our reasons for this conclusion are as follows.
The facts
The appellant did not challenge any findings of fact made by the sentencing judge.
The appellant and Mr Sims met in late 2015 or early 2016 through mutual acquaintances in the drug scene. The appellant was a user of MDMA and a dealer in that drug and, in the first half of 2016, dealt in methylamphetamine.[3] Mr Sims had a chronic and significant methylamphetamine addiction.[4] Over time they became friends, or at least associates. On occasions, the appellant would supply methylamphetamine to Mr Sims. Mr Sims was aware of the appellant's significant drug dealing activities.[5]
[3] ts 368.
[4] ts 368.
[5] ts 368.
On 4 May 2016, the appellant and Mr Sims drove to Mr Sims' mother's house. The appellant had with him a backpack in which there were a number of large clipseal bags which contained in total 3,488 MDMA tablets ranging in purity between 15% and 19%. The total weight of the tablets was just under 1.4 kg.[6] The backpack was left in Mr Sims' bedroom. The sentencing judge found that the appellant used the bedroom as a place to store the tablets so that he did not have to carry the entire amount around while engaging in his drug selling activities.[7] The sentencing judge also found that, even if Mr Sims had not known prior to arriving at his mother's house that the appellant's backpack contained MDMA tablets, he certainly became aware of that fact once he was at the house.[8] His Honour did not find that Mr Sims knew precisely how much MDMA was in the backpack, but he found that Mr Sims knew that it was a significant amount. The sentencing judge further found that Mr Sims, either expressly or impliedly, gave permission to the appellant to leave the backpack in his room.[9] These were the circumstances surrounding count 5 on indictment 46 of 2017.
[6] ts 373.
[7] ts 369.
[8] ts 369.
[9] ts 369.
On the morning of 5 May 2016, one of the appellant or Mr Sims, with the knowledge of the other, contacted a Mr Donovan, who was a customer of the appellant, and arranged for Mr Donovan to bring to Mr Sims' house a sawn‑off Sterling .22 calibre Winchester rifle. The butt stock of the rifle had been shortened and the serial number had been erased.[10] After Mr Donovan had shown the appellant and Mr Sims the rifle, it was placed on the bed next to the backpack either by the appellant or Mr Sims.[11] The sentencing judge found that if the appellant had taken the rifle into Mr Sims' bedroom, he did so with Mr Sims' knowledge and permission. From this point, the sentencing judge held that Mr Sims was in possession of the rifle. These facts constitute count 4 on indictment 46 of 2017.
[10] ts 370.
[11] ts 370.
Later on 5 May 2016, the appellant, along with Mr Donovan and Mr Sims, drove to at least three locations in the Kelmscott/Armadale area. The appellant had with him a quantity of MDMA which he had taken from the backpack and which he intended to sell at the locations he visited. The appellant drove to an address in Kelmscott, and dropped Mr Donovan off. At this address, the appellant and Mr Sims remained in the car.[12]
[12] ts 370 - 371.
The appellant conducted the drug transactions on this journey by himself. At all material times, Mr Sims remained in the vehicle.[13]
[13] ts 370 ‑ 371.
At around 2.30 pm, the appellant's vehicle was observed by police in an unmarked car. The police vehicle eventually pulled the appellant's vehicle over on Rushton Terrace in Mount Nasura.[14] As this occurred, the appellant bent and broke one of four mobile phones he had in the vehicle. His Honour found that the appellant did this because he knew that the telephone had on it records of communications relating to his drug dealing activities.[15]
[14] ts 371.
[15] ts 371 ‑ 372.
When the appellant was searched, a clipseal bag containing MDMA tablets was found in the front pocket of his jacket. Subsequent analysis of the tablets revealed there were 105 tablets in total, which weighed 29.9 g, with a purity of 16%.[16] The sentencing judge found that the appellant intended to sell these tablets. These are the facts of count 1 in indictment 46 of 2017. The police also found that the appellant was carrying $2,525 in cash on his person and in his car. This money was property reasonably suspected of having been unlawfully obtained. The cash is the subject of count 2 on indictment 46 of 2017. In addition to the mobile phones, the police also located a Collins A24 exercise book which the sentencing judge found was a record of the appellant's drug dealing business.[17]
[16] ts 371 - 372.
[17] ts 371 ‑ 372.
Mr Sims was found with $625 in cash in his wallet. This was the subject of count 3 on indictment 46 of 2017. Mr Sims was acquitted of this charge.[18]
[18] ts 372.
Later on 5 May 2016, police executed a search warrant at Mr Sims' mother's house, where they discovered the backpack containing the MDMA and the modified rifle described at [16].[19]
[19] ts 372 ‑ 373.
The appellant was charged with offences which correlate with counts 1, 2 and 5 on indictment 46 of 2017. He was granted bail in respect of these charges. Mr Sims was charged with offences that correlate with counts 3, 4 and 5 on indictment 46 of 2017.
In his sentencing remarks, his Honour found, consistently with the State's case at trial, that the MDMA tablets in the backpack belonged to the appellant and that, as a drug dealer, he intended to sell all, or at least the vast majority, of the tablets found in the backpack.[20]
[20] ts 378.
With respect to Mr Sims, his Honour found that his intention with respect to the MDMA in the backpack was limited to making the tablets available for collection by the appellant as and when required by him.[21]
[21] ts 378.
The three offences the subject of indictment 47 of 2017 only concern the appellant. All of them were committed while he was on bail for the offences he committed on 5 May 2016.
On 2 November 2016, police executed a search warrant at an apartment in Cannington in which the appellant and his partner were living. Police found a large clipseal bag which contained MDMA tablets and powder (count 1 of indictment 47 of 2017) and various quantities of methylamphetamine which were hidden in a number of locations in the apartment. Later analysis revealed the MDMA tablets and powder weighed 148 g, and had a purity of 1%. The methylamphetamine weighed a total of 23.5 g, much of which was between 75% and 87% purity (count 2 of indictment 47 of 2017).[22]
[22] ts 354 ‑ 356, 378.
In the kitchen of the apartment in Cannington, the police located $AUD21,250 and $US800 (count 3 of indictment 47 of 2017).
The appellant's antecedents
The appellant was born on 5 October 1992. He was 23 when he committed the offences the subject of indictment 46 of 2017 and 24 when he committed the offences the subject of indictment 47 of 2017. His Honour found that his age carried 'some limited mitigatory value'.[23] His parents separated when he was 2. Essentially, the appellant was brought up by his mother and stepfather who remain highly supportive of him and are prepared to assist in his reintegration into the community when he is released.[24] The appellant did reasonably well at school. After completing his schooling, he completed a plumbing apprenticeship and worked for some time in that trade.[25] However, he eventually lost his job as a result of his increasing drug use.[26]
[23] ts 383.
[24] ts 383.
[25] ts 383.
[26] ts 384.
Before becoming involved in drugs, the appellant was involved in pro‑social activities in the community such as playing football.[27]
[27] ts 384.
Prior to committing the offences the subject of indictment 46 of 2017, the appellant had a minor record of convictions. The sentencing judge found that the appellant's criminal history prior to the time that he became involved in drugs and drug dealing was 'a relatively good one' and was a mitigating factor.[28]
[28] ts 384 - 385.
The appellant has no physical health issues but he has found the adjustment to being in prison psychologically challenging to the point where he has been prescribed medication in custody. He has no history of depression and he has not been formally diagnosed with that condition.[29] During the appellant's remand, to his credit, he completed a number of rehabilitative programmes and educational courses.[30] His Honour found that the appellant, belatedly, had fully accepted responsibility for his criminal conduct and had gained insight into the seriousness of his criminal conduct and he was remorseful for what he had done.[31]
[29] ts 384.
[30] ts 385.
[31] ts 386.
The sentencing judge expressed some optimism as to the appellant's ability to live a meaningful and useful life in the community after his release.[32]
[32] ts 386.
Mr Sims' antecedents
Mr Sims was born on 6 November 1981 and was 36 years of age at the time of sentencing. His parents separated when he was young. He has a close relationship with his mother who has supported him.[33]
[33] ts 386 - 387.
Mr Sims left school at year 10 and worked fairly consistently as a mechanic until he was diagnosed with epilepsy in 2008. Since then he has been in receipt of a disability support pension.[34]
[34] ts 387.
Mr Sims has three children with his former partner. Those children were aged 7, 5 and 3 at the time of Mr Sims' sentencing, and they had been in his care for some period prior to his incarceration.[35]
[35] ts 387.
Mr Sims commenced using cannabis at the age of 13 and continued to do so on a daily basis until he was diagnosed with epilepsy in 2008. He began using methylamphetamine intravenously from the age of 16. Mr Sims claimed that he had been abstinent from methylamphetamine for two years prior to being sentenced. However, the sentencing judge found that the period of abstinence was not that long.[36]
[36] ts 387 - 388.
Mr Sims has no mental health issues and has largely recovered from injuries he sustained in a motor cycle accident in May 2017.[37]
[37] ts 388.
Mr Sims has a lengthy criminal record as an adult in addition to numerous prior convictions for traffic‑related offences. He has prior convictions for offences including damage; possession of a weapon with intent to cause fear; breach of bail; assault with intent to prevent arrest; aggravated unlawful assault and stealing. He has two prior convictions for possessing methylamphetamine in 2000 and 2012, but he has no prior convictions for drug dealing. Unlike the appellant, Mr Sims has previously served terms of immediate imprisonment for traffic offences.[38]
[38] ts 388 - 389.
The sentencing judge found that Mr Sims' criminal record meant that he was not entitled to any leniency for good character. The sentencing judge also found that Mr Sims had not accepted responsibility for his offending nor was he remorseful.[39]
[39] ts 389.
The sentencing remarks
For the appellant's pleas of guilty on counts 1 and 2 on indictment 46 of 2017, the sentencing judge reduced the sentence, that he would otherwise have imposed if the appellant had not pleaded guilty and there had been no mitigatory factors, by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[40] With respect to the pleas of guilty on the counts in indictment 47 of 2017, the sentencing judge gave a reduction of 25%, pursuant to s 9AA of the Sentencing Act.[41]
[40] ts 393.
[41] ts 393 - 394.
The sentencing judge found from the quantity of MDMA the subject of count 5 and the cash that he was found in possession of on 5 May 2016, that the appellant was 'a significant mid‑level to upper‑level dealer in MDMA'.[42] Further, his Honour found that, prior to committing the offences on 5 May 2016, the appellant had been engaged, for a significant period, 'in an extensive and ongoing course of dealing in MDMA and also methylamphetamine',[43] though his Honour recognised that the appellant's dealing in methylamphetamine may well have been less extensive than his dealing in MDMA.[44] Accordingly, it could not be said that the offences committed by the appellant were isolated incidents of criminal conduct, nor were they out of character.
[42] ts 380.
[43] ts 380.
[44] ts 380.
His Honour found that the offending the subject of indictment 46 of 2017 was committed as part of an ongoing and significant course of serious criminal conduct. He characterised the criminality of the offences committed on 5 May 2016 as 'very serious'.[45] In respect of the offences the subject of indictment 47 of 2017, the sentencing judge noted the quantities of MDMA and methylamphetamine that were involved. He noted that the purity of the MDMA was 'as low as it could be'.[46] His Honour observed that the offences the subject of indictment 47 of 2017 were aggravated by the fact that they were committed while the appellant was on bail.[47]
[45] ts 380, 382.
[46] ts 381.
[47] ts 381.
As to the appellant's motivation for committing the offences, his Honour rejected the submission made on behalf of the appellant to the effect that the appellant was dealing in drugs solely to pay a drug debt and to fund his own habit. The sentencing judge found that, at least in part, the appellant was engaged in drug dealing and committed the offences for profit, that is, to make money over and above that which he needed to repay his drug debt and fund his drug habit. In any event, his Honour found that, to the extent that the appellant's motivation for committing the offences was to pay a drug debt and fund his own addiction, they were not mitigating factors.[48]
[48] ts 382.
With respect to Mr Sims, his Honour found that his level of culpability for committing the offence the subject of count 5 fell significantly below that of the appellant's culpability. The sentencing judge also found that Mr Sims was not dealing in MDMA directly, nor was he going to make money from the appellant's drug dealing. Nevertheless, his Honour characterised Mr Sims' offending as serious because he was willing to allow the appellant to use his room to store the MDMA and cash and, to this extent, Mr Sims assisted the appellant to distribute MDMA into the community.[49]
[49] ts 382 - 383.
The ground of appeal and the appellant's submissions
The appellant does not allege that any of the individual sentences that were imposed upon him were manifestly excessive, nor does he allege that the total effective sentence infringed the totality principle. As mentioned, the only contention now advanced by the appellant is that, having regard to the sentence of 4 years 6 months' imprisonment that was imposed on Mr Sims for count 5, the sentence of 7 years 6 months' imprisonment that the appellant received for the same offence infringed the parity principle. Counsel for the appellant noted the three‑year difference between the sentences imposed upon the appellant and Mr Sims for count 5. Counsel argued that this discrepancy gave rise to an objectively justified sense of grievance, given that the appellant's personal circumstances (including his age, remorse, acceptance of responsibility and prospects of rehabilitation) were more favourable than Mr Sims' personal circumstances and the disparity could not be justified by the sentencing judge's finding to the effect that the appellant's criminality was greater than that of Mr Sims.
The parity principle
In Barnden v The State of Western Australia,[50] this court summarised the parity principle.[51] It is unnecessary to repeat the summary.
[50] Barnden v The State of Western Australia [2014] WASCA 161.
[51] Barnden [55] - [59].
In our opinion, the disparity between the sentence imposed upon the appellant on count 5 and that imposed on Mr Sims was justified, having regard to the part that each co‑offender played in the commission of the offence.
As found by the sentencing judge, the appellant:
(a)was, at the time he committed the offence, carrying on the business of a drug dealer;
(b)was the owner of the MDMA in the backpack;
(c)intended to sell all, or at least the vast majority, of the MDMA; and
(d)engaged in drug dealing and the commission of the offence in order to derive a profit over and above any money required to repay his drug debt and fund his drug habit.
Mr Sims' criminality in count 5 was of a different, and significantly lesser, quality than the criminality of the appellant. Mr Sims was not the owner of the MDMA. He possessed the drug for a period of approximately one day. Mr Sims' participation was limited to a temporary joint possession with the appellant of the MDMA for the purpose of making the tablets available for collection from his bedroom by the appellant as and when he required. Mr Sims, while aware that there was a substantial amount of MDMA in the backpack, was not aware of the precise quantity of the drug. While it cannot be contested that the offence committed by Mr Sims was serious, his role was very much secondary to that of the appellant.
It is true that the appellant's antecedents were favourable to him and were more favourable than Mr Sims' antecedents. However, it is well established that, in drug offending of the kind engaged in by the appellant, favourable personal circumstances, while not irrelevant, are subsidiary considerations because of the need to provide for general and personal deterrence.
Having evaluated all relevant facts and circumstances and all the relevant sentencing factors concerning the appellant and Mr Sims, we are satisfied that it is not reasonably arguable that the disparity of three years between the sentences imposed on the appellant and Mr Sims for count 5 infringed the parity principle or the principle of equal justice. The disparity reflected the much more serious criminality of the appellant compared with Mr Sims, even having regard to the appellant's more favourable personal circumstances. In our opinion, the disparity in this case does not give rise to a legitimate or justifiable sense of grievance on the appellant's part, nor does it give the appearance, in the mind of an objective observer, that justice was not done as between the co‑offenders.
Ground 1 has no reasonable prospect of succeeding.
Conclusion
As the only ground relied upon by the appellant has no reasonable prospect of success, leave to appeal should be refused and the appeal must be dismissed. We would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO MAZZA JA10 APRIL 2018