Kelly v The Queen
[2011] VSCA 10
•20 January 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| JASON MARTIN KELLY | S APCR 2010 0143 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and WEINBERG JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 20 January 2011 |
DATE OF JUDGMENT: | 20 January 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 10 |
JUDGMENT APPEALED FROM | R v Kelly [2010] VCC 451 (Judge Millane) |
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CRIMINAL LAW – Sentence – Parity principle – Whether disparity between co-offenders’ sentences sufficiently explained – Personal circumstances of co-offenders different – Whether disparity between co-offenders should be reduced – No error in sentencing discretion
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms H Spowart | Victoria Legal Aid |
| For the Crown | Mr P N Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
WEINBERG JA:
The appellant pleaded guilty in the County Court to one count of trafficking in a drug of dependence between 3 and 10 September 2008 in a joint criminal enterprise to manufacture methylamphetamines with co‑offenders Stephen Rowett and Frank Totta. He also pleaded guilty to one summary offence of driving whilst his authorisation to do so was suspended.
The appellant was sentenced to 26 months' imprisonment on the count of trafficking and to two months' imprisonment for driving whilst suspended, one month of which was cumulated on the sentence imposed on the trafficking count making a total effective sentence of 27 months' imprisonment. The sentencing judge fixed a non‑parole period of 16 months.
Grounds 2 and 3 having been rightfully, in our opinion, abandoned, we turn to the principal contention advanced on the appeal that there is an unjustifiable disparity between the sentence imposed upon the appellant for the count of trafficking and the sentence which her Honour imposed on his co‑offender, Mr Totta, for the same offence. Totta had been sentenced to 26 months' imprisonment wholly suspended for 26 months. He was further sentenced to a 15 month community‑based order on one count of possessing methylamphetamine.
On the appeal, the Crown submitted that her Honour had been entitled to take the view that she did in drawing a distinction between the appellant and Totta. In her sentencing remarks, her Honour said as to the question of parity:
I have already touched on the issue of parity. Mr Rowett was the principal in the manufacturing operation and the person who appears to have had the most to gain from this. He probably did, as you claim, exploit the fact that both you and Mr Totta were users, although Mr Totta was still a functional member of the community and he was not leading the drug-related lifestyle to which you had succumbed. Both you and Mr Totta may be said to be at a similar level because he supplied the premises and you sourced and supplied a significant component in the manufacture of the illicit drug.[1]
Her Honour then proceeded to sentence the appellant upon the basis that these factors did constitute a real distinction between the appellant and Totta.
[1]R v Kelly [2010] VCC 451, [49].
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal.[2] This Court will interfere in such cases where it considers that the disparity between the co‑offenders is ‘marked’[3] or, as Dawson J said in Lowe v R,[4] where the differences between the sentences are ‘manifestly excessive'.
[2]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ).
[3]Ibid 610 (Gibbs CJ), 611 (Mason J); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
[4](1984) 154 CLR 606, 623.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done.[5] To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co‑offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.[6]
[5]Ibid 610 (Gibbs CJ), 613-14 (Mason J).
[6]Ibid 611-12 (Mason J).
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the co‑offender. While the sentence imposed on the co‑offender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the co‑offender.[7]
[7]R v Tisalandis (1982) 2 NSWLR 430, 431 (Street CJ); R v Reardan (1996) 89 A Crim R 180, 182 (Gleeson CJ); Goddard v R (1999) WAR 541, [31] (Kennedy J); R v Kai Kong Li (2005) NSWCCA 154, [40] (Barr J); McKenna v R (2007) NSWCCA 113, [49] (Rothman J).
The appellant contended that there was no rational relationship between a sentence which required the appellant to serve 26 months' imprisonment and the sentence imposed on Totta, which had been wholly suspended. It is therefore necessary to consider whether the disparity between the appellant's sentence and that imposed upon Totta can be adequately explained by the respective degrees of criminality of the co‑offenders, or by personal factors.
Mr Rowett was the principal offender in the manufacturing of the methylamphetamine. That process continued between 28 July and 10 September 2008. He set up a clandestine laboratory in the garage connected to the house in which Totta lived. Totta’s offending spanned a 45 day period being the duration of the enterprise. He was in a position of control over the trafficking enterprise although he did not physically participate in the manufacturing process. Totta controlled Rowett's access to the garage and was in a possession to appreciate the scale of the manufacturing enterprise.
The appellant's role may be viewed as more limited as he provided the pseudoephedrine for use in the manufacturing process over an eight day period, but he was only one of a number of persons who supplied pseudoephedrine to Rowett for that purpose. The amount which the appellant supplied could not be precisely quantified, but it was said to involve the content of some 50 empty boxes found by police when his apartment was searched. A far greater amount than that was located in the garage upon execution of a search warrant on Totta's premises.
The differences in the co‑offender's roles would not, in our view, warrant the imposition of disparate sentences. The sentencing judge placed considerable weight on the fact that Totta was not financially rewarded for his involvement whereas the appellant was paid in cash. Totta was a user of amphetamine who received a small amount of that drug from Rowett in return for the use of the garage. The appellant was also a drug addict. He was addicted to heroin at the time of the offending and it was not in dispute that the amount that he received from Rowett, which was estimated to be between $1,500 and $2,500, was used to feed his addiction. In our view, there was no distinction of substance to be drawn between the reward received by the appellant or Totta for their participation in this offence.
Both offenders had prior convictions. Totta's convictions were more directly related to the current offending as he had two prior convictions for trafficking in 1987 and 1993. On the other hand, the appellant also had prior convictions involving drug offences, although they were for the less serious offences of possession or use of drugs. The appellant also had numerous convictions for dishonesty and prior convictions for driving offences, many of which were much more recent than the prior convictions of Totta.
On the plea in mitigation, the appellant had relied upon the fact that he had been employed in the family business for a period of some ten years and that upon his release he would be re-employed in that business. It had been submitted that he had the support of his family and a stable environment to which he could return upon his release. But the sentencing judge regarded it as significant that the appellant had a number of subsequent convictions for which he had been sentenced in the Magistrates' Court in January 2010, some four months before the sentence with which we are concerned. They included offences for which there were outstanding warrants from 2006, 2007 and 2008. A sentence of four months' imprisonment had been imposed which was wholly suspended for a period of two years. Furthermore, the appellant had absconded on bail in relation to the offences with which we are concerned.
Her Honour concluded that in view of the appellant's history and his re‑offending between December 2008 and 2009, she was not persuaded that the appellant had been drug abstinent and was living a better lifestyle. Her Honour considered that his prospects for rehabilitation were poor and that his chance of re‑offending was high. By contrast, she had found that Totta's prospects for rehabilitation had been positive.
The appellant submitted that his antecedents and subsequent convictions, together with the findings as to his lifestyle, did not warrant the grave conclusions reached by the sentencing judge as to his prospects for rehabilitation.
In our view those facts entitled the sentencing judge to conclude that the lifestyle to which the appellant could return was not one which engendered confidence as to his prospects for rehabilitation. It was open to her Honour to treat his criminal history and lifestyle as features which distinguished the appellant's circumstances from those of Totta.
Counsel for the appellant before us rightly conceded that these points of differentiation were such that the appellant should not receive the same sentence as that imposed upon his co‑offender, but in accordance with the principles which we have discussed it was submitted that the disparity between their sentences should be reduced.
We should not adopt such a course merely because it is one that we may have followed at first instance. We should not do so unless it could be said that it was not reasonably open to the sentencing judge to treat the history of the appellant, or his poor prospects for rehabilitation, as a sufficient basis for imposing on the appellant this markedly different sentence from Totta. We have concluded that it was open to her Honour to so sentence the appellant.
In these circumstances to interfere with the sentence imposed would be to unduly circumscribe the sentencing discretion. Accordingly, in our view, no error in the sentence has been disclosed. The appeal must therefore be dismissed.
The order of the Court is that the appeal is dismissed.
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