Jardim v The State of Western Australia

[2011] WASCA 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JARDIM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 83

CORAM:   McLURE P

PULLIN JA
HALL J

HEARD:   22 FEBRUARY 2011

DELIVERED          :   6 APRIL 2011

FILE NO/S:   CACR 122 of 2010

BETWEEN:   JOSE DUARTE JARDIM

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 643 of 2009

Catchwords:

Criminal law - Appeal against sentence - Parity principle - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 32

Result:

Extension of time to appeal granted
Appeal allowed
Sentence set aside

Category:    B

Representation:

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27

Lovelock v The Queen [1978] FCA 8; (1978) 33 FLR 132

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Magdi v The State of Western Australia [2010] WASCA 234

Nguyen v The State of Western Australia [2009] WASCA 8

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Roffey v The State of Western Australia [2007] WASCA 246

Russell v The State of Western Australia [No 2] [2010] WASCA 159

1. McLURE P: The appellant applies for an extension of time within which to appeal against his total effective sentence of 6 years' imprisonment in respect of three convictions on indictment of offences under s 6(1) of the Misuse of Drugs Act 1981 (WA).

2. Two of the offences were committed with a co‑offender, Justin Russell.  The appellant contends that the total sentence infringes the parity principle (ground 1) and the totality principle (ground 2).

3. The details relating to the appellant's offending are as follows:

Count	Date	Offence	Description	Sentence
1	17 April 2008	Offered to sell a prohibited drug to another	Unknown quantity of MDMA	1 year
2	14 June 2008	Sold a prohibited drug to another	Appellant (with Russell) sold 421 MDMA tablets (121 g, purity 37%).  Each tablet was sold for $24	3 years
3	25 June 2008	Sold a prohibited drug to another	Appellant (with Russell) sold 585 MDMA tablets (175.8 g, purity 36% or 37%) to another	2 years

1. The appellant was sentenced by Keen DCJ on 16 July 2009.  The sentencing judge considered that 4 years' imprisonment for each of counts 2 and 3 was appropriate but reduced the terms to 3 years and 2 years respectively for totality considerations.  He ordered that all the sentences be served cumulatively.

2. The appellant was aged 25 at the time of sentencing.  He was found to be in the business of selling ecstasy for commercial gain, using part of the proceeds to support his drug habit or pay off a drug debt.  The appellant was taken into care when he was 14 as a result of domestic violence.  However, he continued to have the support of his foster parents.  He was the owner of a towing business and did not have a significant prior record.  He was found to have shown some remorse for his offending.

3. Offences 2 and 3 were committed with Russell who pleaded guilty to those and other offences in November 2009. In particular, Russell was convicted on indictment of seven offences under s 6(1) of the MDA and a further 15 drug offences and three traffic offences the subject of two notices issued under s 32 of the Sentencing Act 1995 (WA). Details of Russell's drug offences and the sentences imposed by the sentencing judge are as follows:

   COUNTS IN THE INDICTMENT

Count	Date	Offence	Description	Sentence
1	6 June 2008	Offered to sell a prohibited drug to another	Russell offered to sell 50 MDMA pills to another	1 year
2	13 June 2008	Offered to sell a prohibited drug to another	Russell offered to sell 56 g of methylamphetamine to another	3 years
3	14 June 2008	Sold a prohibited drug to another	Russell (with appellant) sold 421 MDMA tablets (121 g, purity 37%).  Each tablet was sold for $24	4 years
4	15 June 2008	Offered to sell a prohibited drug to another	Russell offered to sell 50 MDMA pills to another.  The offer price was $25 per pill	1 year
5	25 June 2008	Sold a prohibited drug to another	Russell (with appellant) sold 585 white and green MDMA tablets (175.8 g, purity 36% or 37%) to another	4 years
6	18 July 2008	Offered to sell a prohibited drug to another	Russell offered to sell 50 MDMA pills to another	1 year

7 Between 21 July 2008 and 14 August 2008 Attempted to obtain a prohibited drug with intent to sell or supply it to another Russell attempted to obtain 2000 MDMA pills with intent to sell or supply it to another 3 years and 6 months 

CHARGES IN THE FIRST SECTION 32 NOTICE

Charge	Date	Offence	Description	Sentence
1	17 May 2008	Offered to sell or supply a prohibited drug to another	Russell was asked to supply 1.75 g of methylamphetamine to another.  He said he would do so the following day	6 months
2	19 May 2008	Offered to sell or supply a prohibited drug to another	Russell was asked to supply 1/2 ounce of cannabis to another.  He said he would do so, for $150 and he was paid that amount	12 months
3	21 May 2008	Offered to sell or supply a prohibited drug to another	Russell was asked to supply 14 g of cannabis to another for $4500.  Russell agreed but said he would have to find someone who would give him the drugs on credit	12 months
4	23 May 2008	Supplied a prohibited drug to another	Russell was contacted by a person who said he (or she) had sold all the cocaine Russell had supplied to him (or her) and that he (or she) was now able to pay	12 months

5	27 May 2008	Sold a prohibited drug to another	Russell sold an unknown quantity of methylamphetamine to another	12 months
6	28 May 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 1 ounce of hydroponic cannabis to another for $300	6 months
7	6 June 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 5 MDMA pills to another	6 months
8	7 June 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 10 MDMA pills to another	6 months
9	12 June 2008	Supplied a prohibited drug to another	Russell supplied 1 g of methylamphetamine and several MDMA pills to another	6 months
10	13 June 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 11 MDMA pills to another for $25 each	6 months
11	1 July 2008	Offered to sell or supply a prohibited drug to another	Russell was asked to supply 5 MDMA pills to another for $25 each	6 months
12	10 July 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 10 MDMA pills to another	6 months
13	12 July 2008	Offered to sell or supply a prohibited drug to another	Russell offered to sell or supply 4 MDMA pills to another	6 months

14	22 July 2008	Offered to sell or supply a prohibited drug to another	Russell obtained 1 ounce of cannabis from a person for $300 and then offered to sell it to a third party for $350	6 months
15	22 July 2008	Possession of a prohibited drug with intent to sell or supply	During a search of Russell's house, the police located a clip seal bag containing 3.5 g of either MDMA powder or ecstasy	12 months

1. Russell was also convicted of three offences of driving a motor vehicle without a valid driver's licence for each of which he was sentenced to 3 months' imprisonment and fined $1,000. 

2. Counts 2 and 3 in the appellant's indictment correspond with counts 3 and 5 in Russell's indictment.  The judge sentencing Russell, Scott DCJ, ordered that the sentences on counts 5 and 7 be served cumulatively with the remaining sentences to be served concurrently, resulting in a total effective sentence of 7 years and 6 months' imprisonment.  It is apparent that Scott DCJ took into account parity considerations when sentencing Russell.

3. Russell appealed against the total effective sentence, claiming it breached the totality principle.  The appeal was successful and his sentence was reduced by the Court of Appeal from 7 years and 6 months' imprisonment to 6 years' imprisonment:  Russell v The State of Western Australia [No 2] [2010] WASCA 159. That outcome was achieved by reducing the otherwise appropriate sentence of 3 years and 6 months on count 7 in the indictment to 2 years.

4. Russell was regarded as a mid‑level dealer and user who was not selling drugs solely for commercial gain.  He was aged 35 at the time of sentencing, had good references, a good work history and had undergone an out‑patient programme at Cyrenian House to help him deal with his addiction to ecstasy.  He did not have a significant prior criminal record.  Russell had significant medical disabilities including chronic asthma, severe lower back pain and depression. 

5. The Court of Appeal made no reference to the penalties imposed on Russell's co‑offender, the appellant.  It can be assumed that this was not brought to the court's attention.

Parity

1. We are here concerned with whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon the co‑offenders (as to which see Magdi v The State of Western Australia [2010] WASCA 234 and Lovelock v The Queen (1978) 33 FLR 132, 136 ‑ 137). The purpose of the parity principle is to ensure an appropriate level of consistency in the sentencing of persons who participate in the commission of an offence. The principle is explained by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606:

   It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609). 

2. The question is whether disparity, or lack of disparity, in sentence is capable of giving rise to a justifiable sense of grievance:  Lowe (610).  Whether there is a justifiable sense of grievance has to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle:  Nguyen v The State of Western Australia [2009] WASCA 8 [27]. That principle is discussed in detail in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]. It is sufficient for present purposes to note first, that the practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. Secondly, once the sentencing judge has determined the appropriate total sentence, the orders for cumulation and concurrence reflect the practical need to achieve the mathematical outcome. A variant to the above approach is to reduce the otherwise appropriate length of the individual sentences and order greater cumulation, as did the judge who sentenced the appellant here. Thirdly, a rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. As a consequence, there is not a linear relationship between the number of offences committed and the length of the total term.

3. If attention was confined in this case to the individual sentences imposed on the co‑offenders for the offences they committed together, the appellant could have no conceivable cause for complaint. He received a term of 3 years and 2 years respectively whilst Russell was sentenced to a term of 4 years on each count. On the other hand, if regard is had to the orders for cumulation and concurrence for those offences alone, the appellant received 1 year more than Russell. However, they are not the relevant comparators in the circumstances of this case. We are not here concerned with the individual or total sentence for the common offences, but rather the total sentences imposed for all the offending. The appellant received a total of 6 years' imprisonment for three convictions on indictment, two offences of which he committed with the appellant, and Russell received the same total sentence for seven convictions on indictment and a further 18 offences the subject of s 32 notices, of which 15 were for drug dealing.

4. There were differences in the circumstances of the offenders that on balance, favoured Russell.  He had taken positive steps towards rehabilitation, was genuinely remorseful and had medical disabilities, some of which appear to have contributed to his substance abuse and indirectly to his offending.  However, the differences in personal circumstances are incapable of justifying the complete lack of disparity in their total sentences.

5. The outcome of the Russell appeal has resulted in the total sentence imposed on the appellant infringing the parity principle.  The appellant's delay in commencing this appeal is largely attributable to the timing of the finalisation of the Russell appeal.  An extension of time to appeal should be granted and the appeal allowed on the parity ground.  In the circumstances it is unnecessary to determine ground 2.

6. In my judgment, having regard to the operation of the totality principle, the disparity between the total sentences originally imposed on the appellant (6 years) and Russell (7 years and 6 months) appropriately reflected the relevant differences between them.  I would reduce the appellant's total sentence to 4 years and 9 months' imprisonment.  I would achieve that outcome by imposing a term of 2 years and 9 months' imprisonment on count 2 and ordering that the sentences on counts 2 and 3 be served cumulatively and concurrently with the sentence on count 1.

7. Accordingly, I would grant an extension of time within which to appeal, allow the appeal and set aside the sentence on count 2 and the

order for cumulation of all sentences.  In lieu thereof I would impose a sentence of imprisonment of 2 years and 9 months on count 2 and order that the sentences on counts 2 and 3 be served cumulatively and concurrently with the sentence on count 1.  That results in a total sentence of 4 years and 9 months' imprisonment.  The appellant will be eligible for parole after serving 2 years and 9 months. 

1. PULLIN JA:  I agree with McLure P.

2. HALL J:  I agree with McLure P that ground 1 should succeed and that the appeal should be allowed.  I wish to briefly state my reasons for coming to that conclusion.

3. Ground 1 relies upon the sentence imposed on the co‑offender, Russell, following his appeal.  Following that appeal Russell's total effective sentence of 6 years was the same as that imposed on the appellant.  It was argued that for Russell and the appellant to be given the same total effective sentence was wrong because it does not reflect the differences in the level of criminality of the two offenders.

4. The parity principle does not require that all co‑offenders receive the same sentence.  It does require that there be some proportionality based upon the level of criminality of co‑offenders.  In some cases, this will result in the same sentence being imposed.  However, in others, it will require that there be a difference in the sentences to reflect different degrees of culpability or differences in personal circumstances.  Whether a difference in sentence can be justified may depend upon the significance and extent of the differing circumstances.

5. Where there are circumstances which favour the case of an appellant as compared to the case of another offender who received a comparable sentence in respect of the same offences the lack of disparity between the sentences may indicate an error: Lovelock v The Queen [1978] FCA 8; (1978) 33 FLR 132, 137 (Brennan J). In such a case it may be inferred that insufficient weight has been given to the differing circumstances. It is a question of due proportion between the sentences imposed on co‑offenders: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson and Gaudron JJ).

6. It is to be noted that in the case of the co‑offender there were 'significant medical disabilities since birth': Russell v The State of Western Australia [No 2] [2010] WASCA 159 [10]. These disabilities included chronic asthma, severe lower back pain following a spinal fusion

at 18 years of age, eczema and obesity.  A psychiatrist had said that the co‑offender suffered from low self‑esteem and depression.  He had also undergone an outpatient programme to help deal with his addiction to ecstasy.  He had entered fast track pleas of guilty and this was said to support the view that the co‑offender was genuinely remorseful and had accepted responsibility.  He did not have a significant criminal record. 

1. In my view, the favourable personal circumstances of Russell could not in themselves justify the same sentence being imposed on both offenders.  There were a number of similar such circumstances in respect of the appellant.  The appellant was younger at the time of the offending, being 25 as opposed to Russell's 35.  The appellant, similarly, had no relevant prior record.  The appellant, like Russell, had a significant drug addiction, as was accepted by the sentencing judge.  The appellant had also pleaded guilty at the earliest stage and it was submitted on his behalf that this reflected remorse and that his prospects of rehabilitation were good.

2. The factor that makes comparison between the appellant and Russell difficult is that they did not face the same sets of charges.  The appellant was convicted of one charge that did not relate to any of those of which Russell was convicted.  This was count 1 on the indictment, the charge of offering MDMA for sale.  On the other hand, Russell faced a larger number of charges including one which was very serious in itself, being the charge of attempting to obtain 2,000 MDMA pills.  Russell's offending also included numerous charges of offering or supplying smaller quantities of drugs that made it apparent he was actively involved in drug dealing.  On any view, the level of his criminality was greater than that of the appellant.

3. The parity principle is usually referred to as applying only to co‑offenders.  Whether this is confined to offenders involved in the same criminal enterprise who are charged with the same offence or can extend to those involved in the same enterprise who are charged with different offences has been recently considered by the New South Wales Court of Criminal Appeal in Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [53] ‑ [130] (Campbell JA). That, however, is not the essential problem here because the appellant and Russell were charged with two offences that were materially the same and in respect of which they are properly referred to as co‑offenders. The fact that each of them also faced other charges makes comparison more difficult, particularly where the comparison is between total effective sentences. However, it is a comparison that can still be meaningfully made and is capable of giving rise to a justifiable sense of grievance. This is because the two common charges were the most serious faced by both offenders and, in each case, represented a significant part of a series of charges of a similar type. Accordingly, there was a significant degree of shared culpability.

4. In my view, taking all relevant factors into account, there ought to have been a difference in the sentences imposed on the appellant and Russell to reflect their different levels of culpability.  To the extent that there were differences between the personal circumstances of Russell and the appellant, they do not account for the lack of disparity in the aggregate sentences that were imposed.  Accordingly, the aggregate sentence imposed on the appellant gives rise to a justifiable sense of grievance and infringes the parity principle.

1. The question of parity arises in unusual circumstances in this case because the final sentence on the co‑offender was imposed following a successful appeal.  The sentencing judge did not have the benefit of that decision when he came to sentence the appellant.  His Honour's approach to sentencing the appellant was entirely appropriate on the basis of the known facts.  However, subsequent events have resulted in there being an inappropriate lack of difference between the sentences imposed on the appellant and the co‑offender.

2. I agree with the orders proposed by McLure P and that the appellant should be resentenced to produce a total effective sentence of 4 years and 9 months' imprisonment.