Jenkin v The State of Western Australia
[2014] WASCA 226
•4 DECEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JENKIN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 226
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 3 SEPTEMBER 2014
DELIVERED : 4 DECEMBER 2014
FILE NO/S: CACR 11 of 2014
BETWEEN: COREY ADAM JENKIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND GER 10 of 2010
Catchwords:
Criminal law and procedure - Appeal against sentence - Appellant convicted after trial of possession of methylamphetamine and MDMA with intent to sell or supply and sentenced to a total effective sentence of 6 years' imprisonment - Whether sentence infringed the parity principle - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 7(1)(a)
Sentencing Act 1995 (WA), s 32
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Ms A C Longden
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Pittard v The State of Western Australia [2013] WASCA 126
Stoysich v The State of Western Australia [2014] WASCA 208
MARTIN CJ: This appeal against sentence should be dismissed for the reasons given by Mazza JA with which I agree.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against sentence. On 15 November 2013, the appellant was convicted after trial of the following charges:
(1)On 20 July 2009 at Geraldton [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2)On 20 July 2009 at Geraldton [the appellant] had in his possession a prohibited drug, namely [MDMA], with intent to sell or supply it to another.
These charges were brought pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and carry a maximum penalty of 25 years' imprisonment and/or a fine of $100,000.
On 17 December 2013, the appellant was sentenced to 5 years 6 months' imprisonment on count 1 and 6 months' imprisonment on count 2, to be served cumulatively. Thus the total effective sentence imposed upon the appellant was 6 years' imprisonment. He was made eligible for parole.
The sole ground of appeal alleges an infringement of the parity principle having regard to the sentences imposed upon two co‑offenders. Leave to appeal has been granted in respect of this ground. In my opinion, the ground of appeal has not been made out. My reasons for this conclusion are as follows.
The facts of the offending by the appellant and his co‑offenders
The appellant and Trevor Forman were together involved in the routine distribution of drugs in Geraldton for profit. The appellant had an established relationship with a drug dealer in Perth, Johnathan George Pittard.
The appellant arranged for Pittard to supply Forman with a quantity of methylamphetamine and MDMA. On the night of 19 July 2009, Forman drove from Geraldton to Perth in the appellant's wife's utility. While in Perth, Forman visited Pittard at his address in Craigie. There he collected a vacuum‑sealed bag containing 54.8 g of methylamphetamine with a purity of between 20 and 21% (count 1) and 199 MDMA tablets
weighing 58.7 g with a purity of 23% (count 2). Forman secreted the drugs in the tailgate of the vehicle and, on 20 July 2009, drove back to Geraldton. At about 9.45 am, the vehicle was stopped by police near Dongara who seized the drugs. Although Forman had physical possession of the drugs, the appellant also had possession as he had control or dominion over them. In effect, Forman had physical possession of the drugs on behalf of himself and the appellant.
Forman was not only charged with offences relating to the methylamphetamine and MDMA found on 20 July 2009, he was also charged with a number of other offences. Eventually he pleaded guilty in the District Court at Geraldton before Schoombee DCJ and was sentenced by her on 6 September 2010 in respect of 11 counts on indictment and six counts on a notice pursuant to s 32 of the Sentencing Act 1995 (WA) as follows:
Indictment offences
| Count | Date of offence | Offence | Sentence |
| 1 | 20 June 2009 | Conspiracy to sell an unknown quantity of methylamphetamine to another | 12 months' imprisonment |
| 2 | Date unknown | Conspiracy to supply an unknown quantity of cannabis to another | 6 months' imprisonment |
| 3 | 3 July 2009 | Conspiracy to sell an unknown quantity of methylamphetamine to another | 12 months' imprisonment |
| 4 | 13 July 2009 | Supplied 3.9 g of methylamphetamine to another | 18 months' imprisonment |
| 5 | 13 July 2009 | Received a laptop computer which the appellant knew to have been stolen | 8 months' imprisonment |
| 6 | 15 July 2009 | Supplied 3.5 g of methylamphetamine to another | 18 months' imprisonment |
| 7 | 16 July 2009 | Supplied 1.75 g of methylamphetamine to another | 18 months' imprisonment |
| 8 | On or about 17 July 2009 | Received diesel fuel which the appellant knew had been stolen | 12 months' imprisonment |
| 9 | 19 July 2009 | Supplied 20 tablets of MDMA to another | 18 months' imprisonment |
| 10 | 20 July 2009 | Possession of methylamphetamine with intent to sell or supply it to another | 4 years' imprisonment |
| 11 | 20 July 2009 | Possession of MDMA with intent to sell or supply it to another | 18 months' imprisonment |
Section 32 notice offences
| Count | Date of offence | Offence | Sentence |
| 1 | 20 July 2009 | Possession of stolen or unlawfully obtained property | 3 months' imprisonment |
| 2 | 20 July 2009 | Possession of 1.5 g of methylamphetamine | 3 months' imprisonment |
| 3 | 20 July 2009 | Possession of 4.5 g of cannabis | 2 months' imprisonment |
| 4 | 20 July 2009 | Possession of a smoking utensil | 2 months' imprisonment |
| 5 | 20 July 2009 | Possession of 0.5 g of methylamphetamine | 2 months' imprisonment |
| 6 | 20 July 2009 | Possession of an unlicensed firearm | 6 months' imprisonment |
Counts 10 and 11 in Forman's indictment correspond with the offences committed by the appellant. Schoombee DCJ accumulated the sentences she imposed on counts 4 and 10 in the indictment and reduced the sentence on count 6 in the s 32 notice from 1 year to 6 months' imprisonment for totality reasons and ordered that sentence be served cumulatively. All the other sentences were ordered to be served concurrently. Thus, the total effective sentence imposed upon Forman was 6 years' imprisonment with eligibility for parole - the same sentence as imposed upon the appellant.
At the time he was sentenced, Forman was 32 years of age. He had a short record of convictions, including of some minor drug offences. He had been a recreational user of illicit drugs and began dealing in substantial quantities in 2008 and 2009. In 2009, he began travelling to Perth to bring large quantities of methylamphetamine to Geraldton. Schoombee DCJ described him as a street level dealer selling to people in small quantities, but also noted that he was clearly 'supporting' a larger drug dealing operation in Geraldton.
Her Honour gave a substantial discount for Forman's pleas of guilty at the first opportunity. She described those pleas as a 'significant indication of remorse'. Her Honour acknowledged that Forman had taken substantial steps to rehabilitate himself from his illicit drug use.
At about the same time as Forman's car was being searched, police executed a search warrant at Pittard's house. He was charged with two counts of selling or supplying to another a prohibited drug being the methylamphetamine and MDMA found in Forman's car, contrary to s 6(1)(c) of the Misuse of Drugs Act (counts 1 and 2). He was also charged with possession of cannabis with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act (count 3). Pittard pleaded not guilty to these charges and stood trial before Sweeney DCJ and a jury. On 21 June 2012, he was convicted as charged. On 6 August 2012, he was sentenced as follows:
•Count 1 - 6 years' imprisonment;
•Count 2 - 1 year's imprisonment, cumulative; and
•Count 3 - 6 months' imprisonment, concurrent.
Thus the total effective sentence imposed upon Pittard was 7 years' imprisonment. He was made eligible for parole.
Pittard appealed against his convictions and sentence. Leave to appeal against conviction was refused. His grounds of appeal against sentence included an allegation that the total effective sentence imposed upon him infringed the parity principle having regard to the sentence imposed upon Forman. Leave to appeal was refused on this and all other grounds and the appeal was dismissed: Pittard v The State of Western Australia [2013] WASCA 126.
The appellant's background and personal circumstances
The appellant was 34 years of age at sentencing and 29 at the time he committed the offences. He had a history of substance abuse commencing with cannabis at the age of 18, followed by methylamphetamine at the age of 20. He was drug free between 2000 and 2006, but fell back into methylamphetamine use after injuring his spine in a serious motor vehicle accident. After being charged with the offences the subject of the indictment, the appellant stopped using illicit drugs and disassociated himself from adverse influences. By the time of his sentencing he had recommenced work in the mining industry where he had been regularly and randomly subjected to drug testing, the results of which had been negative.
The appellant has a record of convictions including previous convictions for drug‑related offences. He has six prior convictions for simple possession of drugs and a conviction in 1999 for possession of cannabis with intent to sell or supply. Prior to his incarceration for the present offences, he had not been to prison.
Her Honour's sentencing remarks
Her Honour found that the appellant was involved in the planning and organising of the 'drug run' carried out by Forman, who acted at the appellant's direction.
Her Honour had express regard to the parity principle and gave detailed consideration to it (ts 866 ‑ 868). In terms of the appellant's role in the offending on 19 and 20 July 2009, her Honour found that the appellant's role was 'midway' between that of Pittard and Forman.
The parity principle
There is no dispute as to the legal principles relevant to the application of the parity principle. They were recently described by Buss JA (with whom Martin CJ and I agreed) in Stoysich v The State of Western Australia [2014] WASCA 208 in these terms:
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 v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See 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 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.
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 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]; and
(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].
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 [2010] NSWCCA 60; (2010) 240 FLR 27 [202] - [203] (Campbell JA, Rothman J generally agreeing), [245] - [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] - [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] - [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] - [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].
The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [27].
See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing) [39] ‑ [45].
The submissions of the parties
Senior counsel for the appellant submitted that there should have been a greater disparity between the sentences imposed upon Pittard and the appellant, because Pittard was higher in the drug hierarchy than the appellant and Pittard had been convicted of an extra offence.
With respect to the sentences imposed upon the appellant and Forman, senior counsel contended that the appellant has been left with a justifiable sense of grievance because the total effective sentence that was imposed upon him was identical to the total effective sentence that was imposed upon Forman, yet Forman was convicted of more offences than the appellant. Senior counsel submitted that this was the 'gravamen' of the appeal.
The respondent submitted that there was sufficient disparity as between the sentences imposed on the appellant and Pittard. With respect to the appellant's position vis‑a‑vis Forman, while Forman had been convicted of more offences, there was no justifiable sense of grievance because the parity of sentences was justified, having regard to the operation of the totality principle in Forman's case and the mitigating factors which were not present in the appellant's case, being Forman's early pleas of guilty, remorse and rehabilitation.
Disposition
The parity principle or the principle of equal justice applied to the present case as between the appellant, Pittard and Forman.
There was nothing that differentiated the appellant and Pittard in terms of their plea or their antecedents. Pittard received one more year of imprisonment than the appellant. In my opinion, the difference in the total effective sentences imposed upon Pittard and the appellant reflected their differing roles and the extra offence for which Pittard was convicted. There was no marked and unjustifiable absence of disparity which was adverse to the appellant.
I now turn to the position of the appellant relative to that of Forman. There is a self‑evident difference between the appellant's convictions and the number of offences committed by Forman and, to some extent, their type. That said, the most serious offences committed by Forman corresponded to the offences committed by the appellant.
To my mind there is no material difference in the personal circumstances and antecedents of the appellant and Forman.
The major and, indeed, only factor in favour of the appellant is that Forman committed more offences.
However, against this are a number of significant factors which differentiate Forman from the appellant, namely:
(a)Forman's culpability in respect of the offences committed on 20 July 2009 was less than the appellant's;
(b)Forman pleaded guilty to the offences at the earliest opportunity whereas the appellant's pleas afforded him no mitigation;
(c)Forman was found by Schoombee DCJ to be remorseful whereas no such finding could be made in the appellant's case; and
(d)Forman's total effective sentence was reduced by virtue of the totality principle.
Having taken into account the similarities and differences in the offending between the appellant and Forman, I have not been persuaded that the total effective sentence imposed upon the appellant infringed the parity principle or the principle of equal justice. In my opinion, when all relevant differentiating factors are taken into account, the total effective sentence imposed upon the appellant does not reveal a marked and unjustified parity such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or an appearance that justice has not been done. The appeal must be dismissed.
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