La Bianca v The King - [2023] WASCA 109

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LA BIANCA -v- THE KING [2023] WASCA 109
CORAM:   QUINLAN CJ
MAZZA JA
HALL JA

HEARD:   3 APRIL 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CACR 49 of 2022
BETWEEN:   DAVIDE CALOGERO LA BIANCA
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   FLYNN DCJ
File Number            :   IND 1035 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of one count of attempting to possess a commercial quantity of cocaine - Appellant sentenced to 9 years' imprisonment with non-parole period of 5 years 3 months - Where appellant suffers from serious medical condition - Whether sentence manifestly excessive - Whether parity principle infringed

Legislation:

Criminal Code (Cth), s 11.1, s 307.5
Crimes Act (Cth), s 16A

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Representation:

Counsel:

Appellant	:	D Grace KC
Respondent	:	D Renton SC

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (Cth)

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

Awraham v The Queen [2021] NSWCCA 241
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ljuboja v The Queen (2011) 210 A Crim R 374
Martellotta v The Queen [2021] NSWCCA 168
Ng v The Queen [2010] NSWCCA 232
Ngo v The Queen [2017] WASCA 3
O'Shaughnessy v The Queen [2020] NSWCCA 124
R v Boimah [2017] QCA 50
R v Calis [2013] QCA 165
R v Karan [2013] NSWCCA 53
R v Tran; Tran; Nguyen [2013] NSWCCA 136
Salazar v The Queen [2021] VSCA 125
Webber v The Queen [2014] NSWCCA 111

JUDGMENT OF THE COURT:

This is an appeal against sentence.
On 25 January 2022, the appellant and his co‑offender, Justin Edward Natale, were each convicted after trial of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine, contrary to s 307.5 and s 11.1 of the Criminal Code Act 1995 (Cth) (the Commonwealth Code).
On 3 June 2022, Flynn DCJ imposed a sentence of 9 years' imprisonment with a non‑parole period of 5 years 3 months on the appellant, and a sentence of 8 years' imprisonment with a non‑parole period of 4 years 3 months on Mr Natale. Both sentences were backdated to commence on 23 January 2022.
The appellant appeals to this court on three grounds. In substance, ground 1 alleges that the sentence imposed on the appellant was manifestly excessive. Ground 2 alleges that the sentence infringed the parity principle. Ground 3 alleges that the learned sentencing judge erred in finding that the co‑offender took guidance from the appellant.
The question of leave to appeal on these grounds has been referred to the hearing of the appeal.
For the reasons that follow, we would allow the appeal and resentence the appellant.

The facts

The facts of the offending as found by the sentencing judge have not been challenged and may be summarised as follows.
On 27 November 2018, a rol1 of electrical cable in a UPS package arrived at Perth Airport, having been sent from France, via Singapore. The package was addressed to Edition Swanbourne Pty Ltd at an address in the suburb of Swanbourne. The package was taken to a depot near Perth Airport, where it was examined by members of the Australian Border Force (ABF).
The electrical cable was wrapped around a wooden spool which was sealed with a lid. The seal was removed by ABF officers who discovered, inside the centre of the spool, a lead‑lined empty cylinder and four wrapped packages containing 3.976 kg of a substance. A subsequent analysis of the substance found it to be 59.5% cocaine; that is, 2.365 kg of pure cocaine. At the time, the price of 28 g of cocaine was $7,280.
The ABF officers reconstructed the package, replacing the cocaine with an inert substance. Devices were placed in the package to track its movement and to record conversations.
At about 1.00 pm on 29 November 2018, the package was delivered to a café in Swanbourne and left on the floor, at the counter. The package was signed for by a person who appeared to be the café manager. The café was owned by a man who was subject to surveillance by the Australian Federal Police (AFP). The owner conducted himself in a way that was said to be consistent with someone who was anticipating the arrival of someone or something. Upon becoming aware of the package arriving, he entered the café and gave instructions to the manager to sign for the package.
At about 3.37 pm, a black Toyota Hilux and a white Toyota Hilux arrived at the rear of the café. The appellant drove one of the vehicles. The other was driven by Mr Natale. Shortly after, the package was placed in one of the vehicles and then the vehicles travelled, one after the other, to an address in Balcatta. The vehicles, together with the package, arrived at the address at approximately 4.16 pm. At 4.26 pm, AFP officers entered the property. They found the appellant and Mr Natale just outside the door of a small storeroom, at the rear of the property. The two men were arrested. No one else was at the address.
His Honour was satisfied, on the evidence of three covert operatives who gave evidence at the trial, that no one left the property and that the appellant and Mr Natale were alone with the package in the 10‑minute interval between their arrival and the entry of the AFP officers.
The AFP officers found the package inside the storeroom at the rear of the property. It had been opened. The role of cable was on the floor and the lid to the spool was broken. The four packages of the inert substance had been removed, and there was a small incision in one of the packages. The device inside the package recorded a discussion between the appellant and Mr Natale, which occurred immediately before the AFP officers arrived. The conversation was consistent with what the AFP officers found. The recordings captured discussions between the appellant and Mr Natale about how to access the wooden spool around which the electrical cable had been wound. The recording also captured the wooden spool breaking. The appellant and Mr Natale then had a discussion from which it is apparent that one of them was smelling the content of one of the packages. It is at this point that the AFP officers arrived.
In addition to the items already referred to, the AFP officers found in the storeroom electronic scales, plastic gloves and clipseal bags. They also found a substance sometimes used as a cutting agent for illicit substances.
The listening device also recorded either the appellant or Mr Natale asking, when the wooden spool was opened, 'What is it?', to which the other does not respond. This was taken by the sentencing judge as evidence that neither the appellant nor Mr Natale knew or believed as a fact that the substance they were attempting to possess was cocaine. The appellant and Mr Natale were sentenced on the basis that they were aware, from the time they took possession of the package at the café, of the substantial risk that the substance was cocaine. Further, having regard to all of the circumstances known to them, it was unjustifiable to take the risk that the substance was cocaine when they took possession of it.
His Honour found that there was no evidence that the appellant or Mr Natale were involved in arranging for the cocaine to be imported to Australia. Nor was there evidence that either man had an association with the person who was said to have been expecting the delivery. However, his Honour was satisfied that the appellant and Mr Natale were trusted by others to transport the package the relatively short distance between Swanbourne and Balcatta, to open the package, break open the spool, remove the substance secreted in it and cut one of the packages to smell the substance, thereby confirming that the contents was a drug.
His Honour said that there was no evidence that the appellant or Mr Natale were to perform any other role. His Honour did not infer from the presence of the items in the storeroom, such as the scales and the cutting agent, that the two men were going to repackage the substance.
His Honour summarised the role that the appellant and Mr Natale played as follows:[1]
Your role in transporting the cocaine across suburban Perth and to unpackage it was a relatively small role over a relatively short period of time. But to be clear, it was an essential role if a little bit more than two kilograms of cocaine was to be distributed in the Perth community.
[1] ts 509.

Personal circumstances - the appellant

The appellant was 41 years old at the time of sentencing. He left school after completing year 10. After working as a tiler, the appellant, at the age of 30, became a licensed builder and worked in his family building company. The appellant is single and has never married. He has been in one long‑term relationship. He has no relevant prior criminal convictions.
At the age of 21, the appellant was diagnosed with cystic fibrosis. A report by Clinical Professor Siobhain Mulrennan dated 18 January 2021 states that the appellant has cystic fibrosis with the complication of bronchiectasis, a chronic lung condition. As a result of the appellant's illness, which worsens progressively, the appellant has 'moderately severe lung function impairment'. As at the time of writing the report, Professor Mulrennan stated that the appellant's lung function level was 43%. While not predicting the appellant's life expectancy, Professor Mulrennan noted that, according to 2019 figures, the median survival age in Australia for someone with cystic fibrosis is 53 years. The appellant requires oral and intravenous antibiotic treatment for exacerbations of his lung disease, which needs to be managed aggressively to prevent deterioration in lung function. According to Professor Mulrennan, incarceration could potentially impact the monitoring of the appellant's cystic fibrosis, as well as early access to treatments and expertise when his condition deteriorates.
The sentencing judge was provided with a letter from Dr Adam Tomison, the Director General of the Department of Justice, dated 30 March 2022. In the letter, Dr Tomison stated that while in custody, the appellant would be provided with specialist medical care if clinically necessary, and referred for tertiary care if required. Dr Tomison noted that the appellant suffers from cystic fibrosis and stated that this condition can be managed by the Department's Health Service within 'the prison estate'. Dr Tomison said that the appellant will be given intravenous antibiotics when required.

Sentencing submissions on behalf of the appellant

Senior counsel for the appellant submitted, at first instance, that the appellant was, having regard to the mean life expectancy of a person with cystic fibrosis, 'in the twilight of his years and cannot look forward to enjoying the healthy life expectancy that others may expect to enjoy'. Senior counsel submitted that much of the appellant's remaining life expectancy would be spent in custody and that his condition would, during that time, deteriorate.
Senior counsel also submitted that because of the appellant's cystic fibrosis, his time in gaol would be much harder than that of a normal, fit person. Senior counsel contended that although the appellant's condition could be managed in prison, he would be unable to access his long‑term specialist and that accessing a specialist would be stressful and time consuming.

Mr Natale's personal circumstances

As ground 2 concerns an alleged infringement of the parity principle, it is necessary to say something about Mr Natale's personal circumstances.
Mr Natale was 21 years old at the time of the offending, and 24 at the time of sentencing. Three months prior to the commission of the offence, Mr Natale's father, with whom he had a close relationship, died. Mr Natale's father's death had a profound impact on Mr Natale and his judgement at the time of the offending.
The sentencing judge received a number of references from Mr Natale's family and others. They all spoke well of him and were prepared to support him upon his release.
In the period leading up to his incarceration, Mr Natale played what his Honour considered to be an indispensable role as operations manager in his family's business. Mr Natale's mother derived her income from this business. His Honour found that the financial hardship that would be caused to Mr Natale's mother by his absence while he was in prison was exceptional. His Honour elaborated, finding that there were real risks that, as a result of Mr Natale's incarceration, the business would fail and his mother would be unable to defend litigation arising from her husband's estate or meet personal debts secured against her home.
Like the appellant, Mr Natale had no prior convictions.

The sentencing remarks

After describing the facts of the offence and the basis upon which the appellant and Mr Natale would be sentenced, his Honour dealt with an issue raised by Mr Natale in a letter he wrote, in which Mr Natale suggested that his offending was an isolated incident. No such submission was made on the part of the appellant. The Crown took issue with Mr Natale's assertion. Prior to being sentenced, Mr Natale withdrew the assertion that what took place on 29 November 2019 was an isolated incident.
In his assessment of the criminality of the appellant and Mr Natale, the sentencing judge focused, correctly, on what each man did, rather than attaching some label to their conduct.
His Honour's summary of the role played by the appellant and Mr Natale is described at [19] above.
Importantly, his Honour said that he was unable to distinguish between the appellant and Mr Natale as to the roles that each played in the offence.[2]
[2] ts 516.
In assessing Mr Natale's prospects of rehabilitation, his Honour took into account his youth and his 'peculiar vulnerability' at the time of the offence, which he said arose 'both from the recent death of [his] father and from the presence of someone who was older who [he] knew as a co‑offender'.[3]
[3] ts 511.
In sentencing Mr Natale, his Honour had regard to:
(a)his lack of criminal record;[4]
(b)his youth;[5]
(c)his good prospects of rehabilitation, based upon the strong network of family, friends and business associates who were willing to support him;[6] and
(d)the exceptional hardship that would be caused to his mother as a result of his incarceration.[7]
[4] ts 506.
[5] ts 510.
[6] ts 510 - 511.
[7] ts 511 - 513.
With respect to the appellant, his Honour accepted that the appellant had no prior relevant convictions,[8] and had expressed some contrition for his offending.[9] His Honour appeared to accept that the appellant had good prospects of rehabilitation.[10]
[8] ts 514.
[9] ts 513.
[10] ts 513 - 514.
His Honour said that so far as mitigatory factors were concerned, the dominant issue for the appellant was his physical condition.[11]
[11] ts 514.
His Honour accepted that the appellant suffered from cystic fibrosis, which he acknowledged was a serious illness.
Having had regard to Dr Tomison's letter, his Honour found that there was no evidence to suggest that the appellant would be inadequately treated for his condition while in custody.[12] However, his Honour found that in a number of respects, the appellant's time in custody would be more onerous than that of someone who did not have cystic fibrosis. His Honour accepted that it would be traumatic for the appellant, who has difficulty breathing, to suffer from his symptoms in a custodial setting, not knowing when they were going to be alleviated by treatment. His Honour also accepted that the appellant would have to spend his time in custody at Casuarina Prison (a maximum security prison) and that, because of his cystic fibrosis, he would not be able to be transferred to 'other less onerous custodial settings'.[13] Most significantly, from his Honour's point of view, the appellant would have to live in prison with the uncertainty of knowing when his condition was going to worsen, and with the knowledge that his life expectancy compared to others was much shorter.
[12] ts 514.
[13] ts 515.
As to the appellant's life expectancy, his Honour remarked that there was no evidence before him as to his 'particular life expectancy'. Nevertheless, his Honour accepted that the evidence before him showed that people with cystic fibrosis live a significantly shorter life than others. His Honour found that this knowledge would weigh heavily upon the appellant. His Honour also noted that the appellant's diet would be different in prison compared to the diet he would enjoy in the community, as would his exercise regime, and that these matters 'may well impact upon [the appellant's] health'.[14]
[14] ts 515.
His Honour observed that up to the time he was sentenced, the appellant had 'suffered particularly harsh conditions' in custody, and that these conditions would continue 'for the foreseeable future'.
His Honour, having described the personal circumstances of the appellant and Mr Natale, then stated that:[15]
when it comes to sentencing for drug offences, objectives of general deterrence are such that matters which are personal to offenders generally are of less significance.
[15] ts 515.
His Honour expressly had regard to the parity principle. After stating that he was unable to distinguish between the roles the appellant and Mr Natale had in the commission of the offence, he said that he was able to distinguish their personal circumstances. In this regard, his Honour said:[16]
Mr Natale, being someone who is relatively young, being someone who had recently suffered the loss of his father.
And [the appellant], someone who has a very serious medical condition.
[16] ts 516.
Although his Honour does not expressly state so, it is apparent from the different sentences imposed upon the appellant and Mr Natale that his Honour regarded Mr Natale's youth and the loss of his father as having greater mitigatory significance than the appellant's 'very serious medical condition'. The difference in the sentences as between the appellant and Mr Natale may be seen in both the head sentence and the non‑parole period.

The grounds of appeal

The grounds of appeal relied upon by the appellant are in these terms:
1.The learned sentencing judge erred in imposing a sentence which was manifestly excessive in all the circumstances of the offence and of the offender
Particulars
By Implication:
(a)Insufficient regard to the nature and effect of the appellant's medical condition;
(b)Insufficient weight given to the appellant's reduced life expectancy;
(c)No adequate weight given to the fact that the appellant's time in custody would be more onerous as compared to a healthy person because of his cystic fibrosis;
(d)No adequate regard given to the fact that the disease suffered by the appellant is progressive so that there will be significant decline in his health with the passage of time;
and
(e)The sentence was outside the range of sentences open to be imposed in the proper exercise of the sentencing discretion.
2.The learned sentencing judge erred in imposing a sentence which was manifestly disparate to that of the co‑offender having regard to the finding that there was no distinction to be made as to their respective roles in the offence, thereby giving rise to a justifiable sense of grievance and a miscarriage of justice.
3.The learned sentencing judge erred in finding (in the absence of any evidence) that 'it would not be surprising that you [Mr Natale] would take your guidance from someone who was older [the appellant] …' [ts 511].

Grounds 2 and 3 - alleged infringement of the parity principle

As expressed in the appellant's written submissions, the error in ground 3 may be regarded as a particular of ground 2. It is convenient to deal with grounds 2 and 3 together on the basis that the real issue raised by both grounds is whether the sentence imposed upon the appellant infringed the parity principle.

Grounds 2 and 3 - submissions

On behalf of the appellant, senior counsel submits that the differences in the personal circumstances between the appellant and Mr Natale, if anything, favoured the appellant and should have resulted in the appellant receiving a lower sentence than that imposed on Mr Natale. At the very least, the appellant submits that the appropriate way to deal with the personal circumstances attaching to both offenders 'would have been to balance each of them out so as to give rise to the same level of mitigation'.[17] Senior counsel elaborates:
There was no basis to find that the moral culpability of the [appellant] was higher than that of Mr Natale. Both had good prospects of rehabilitation and family support. Both had members of the community provide impressive character references. Both had express contrition and remorse. No different sentence should have been imposed upon the [appellant]. He has a justifiable sense of grievance and the court should correct the error.
[17] Appellant's case, par 17.
The appellant also submits that his Honour should not have found, in the case of Mr Natale, that he took guidance from the appellant as to his offending conduct and that he was more vulnerable by reason of the appellant's presence at the time of the commission of the offence. It was submitted that his Honour was not entitled, in the absence of any evidence or a submission to that effect, to make the findings to the effect that Mr Natale was somehow influenced by the conduct or presence of the appellant.
The respondent submits that the different mitigating circumstances between the appellant and Mr Natale permitted the sentencing judge to impose different sentences, notwithstanding that their objective criminality was the same.
As to the sentencing judge's remarks concerning Mr Natale being vulnerable and taking guidance from the appellant, the respondent submits that, on a plain reading of the sentencing remarks, these comments did not result in any differentiation between the roles each offender played and their objective culpability.[18]

Grounds 2 and 3 - the parity principle

[18] Respondent's written submissions, par 37.

The parity principle applies to the sentencing of federal offenders. The relevant principles were explained by this court in Ngo v The Queen as follows:[19]
[19] Ngo v The Queen [2017] WASCA 3 [36] - [39].
[36]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, 609 ‑ 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).
[37]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. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
[38]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].
[39]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].

Grounds 2 and 3 - disposition

In our view, there is an unjustifiable disparity between the sentence imposed on the appellant, on the one hand, and Mr Natale, on the other. Our reasons for this conclusion may be briefly stated. Although their objective criminality was equal, the same could not be said of their personal circumstances. While it is true that Mr Natale was a youthful offender and a sentence of imprisonment would adversely affect his mother, there was no evidence, and no justification, for his Honour to find that Mr Natale was somehow more vulnerable or that he took guidance from the appellant.
In any event, the appellant's very serious medical condition comprehensively outweighed the mitigation available to Mr Natale by reason of the personal factors that applied to him. The appellant suffers from a chronic and deteriorating condition that will substantially curtail his life expectancy. He faces the prospect that a very significant portion of his remaining life, if not all of it, will be spent in prison. Moreover, the time that he spends in prison will be much harder for him than for other prisoners who are not afflicted by an illness of the kind suffered by the appellant. Contrary to what may be inferred as to the learned sentencing judge's assessment of their relative mitigatory significance, in our view the impact of the appellant’s cystic fibrosis carried significantly greater weight than Mr Natale's youth and the loss of his father.
For these reasons, in our view, his Honour's decision to give the appellant a longer sentence than Mr Natale, both in terms of the head sentence and the non‑parole period, gives rise to a justifiable sense of grievance. Given that their objective criminality was the same, the appellant's unusual medical condition justified a sentence that was less than that of Mr Natale.
Grounds 2 and 3 have been made out. The appeal must therefore be allowed and the appellant should be resentenced.

Ground 1 - manifest excess

Given that any resentencing by this court must be done afresh, it is unnecessary to deal with ground 1. However, had it been necessary to consider and decide ground 1, we would have allowed the appeal on this ground for the following reasons.
It is well established that in order for this court to intervene on the basis that a sentence is manifestly excessive, it is not enough for an appellate court to be satisfied that, had it been sentencing the offender at first instance, it would have imposed some other sentence. In order for ground 1 to succeed, it is necessary for the appellant to demonstrate that the sentence that was imposed was, in all of the circumstances, plainly unjust or unreasonable.
Whether a sentence is manifestly excessive requires an appellate court to consider the sentence having regard to the maximum penalty (in this case, life imprisonment), the standards of sentences customarily observed with respect to the offence, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
Relevantly to the kind of offence committed by the appellant, it is well established that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity of a drug is often regarded as significant. Matters personal to an offender are almost always subsidiary considerations, but they are not completely irrelevant.[20]
[20] See Ljuboja v The Queen [2011] WASCA 143.
As we have said, the maximum penalty for the offence committed by the appellant was life imprisonment.
The appellant's involvement in the commission of the offence was to pick up the package which contained the cocaine from the café in Swanbourne and to transport it, along with Mr Natale, to the address in Balcatta. The appellant and Mr Natale unrolled the electrical cable from the wooden spool. They broke open the spool, removed the four packages which had originally contained 2.365 kg of pure cocaine, and sought to obtain a sample from one of the bags to confirm that it in fact contained the drug.
The appellant was sentenced on the basis that while he did not know that the package contained cocaine, he was reckless as to that fact. Although the sentencing judge was unable to quantify the benefit that would have flowed to the appellant from his involvement in the enterprise, he found that some benefit would have flowed to him for his participation, which, as his Honour summarised, involved him transporting the cocaine across suburban Perth and unpacking it. While his Honour characterised this as 'a relatively small role over a relatively short period of time', it was nevertheless, as his Honour found, an essential role to a very considerable quantity of the drug being distributed into the community.[21]
[21] ts 509.
We now turn to the comparable cases cited by the parties in this appeal.
In Awraham v The Queen,[22] the offender entered early pleas of guilty to three State offences under New South Wales law and, most significantly, to a federal offence of attempting to possess a commercial quantity of a border controlled drug. The offender received an overall term of imprisonment of 9 years with a non‑parole period of 6 years 6 months. The most significant of the individual sentences imposed upon the offender was a term of 7 years 6 months' imprisonment with a non‑parole period of 5 years 15 days for the offence of attempting to possess a border controlled drug. On appeal, the offender challenged this sentence on the basis that it was manifestly excessive.
[22] Awraham v The Queen [2021] NSWCCA 241.
The applicant in Awraham was closely involved in the sense that he was 'a courier' and above the level of being 'a mere recruit' in the attempt to import 2.152 kg of pure cocaine, which was secreted in a package said to contain a water fountain. When the package was delivered, the applicant sliced open the boxes in which the cocaine was thought to be located. The applicant expected to gain significantly from the importation of the cocaine, to the extent of discharging a drug debt of between $40,000 and $50,000. The applicant had an adult record of convictions which comprised only traffic matters, he was remorseful, and had pleaded guilty at an early stage of the proceedings. By majority, Wilson J, with whom Davies J agreed, found that the sentence imposed upon the applicant was at the upper end of the available range for an offence of the type committed and dismissed the appeal. Hamill J would have allowed the appeal.
In Martellotta v The Queen,[23] the applicant was convicted of attempting to possess a commercial quantity of cocaine, namely 4.34 kg of pure cocaine, for which he was sentenced to 6 years' imprisonment with a non‑parole period of 4 years. The sole ground of appeal relied upon in this case alleged an infringement of the parity principle with a co‑offender who received a sentence of 6 years 9 months' imprisonment with a non‑parole period of 4 years. As the issue Martellotta was not whether the sentence that was imposed upon him was manifestly excessive, the case has no relevance to the present case.
[23] Martellotta v The Queen [2021] NSWCCA 168.
In Salazar v The Queen,[24] the appellant was convicted on his pleas of guilty of one count of attempting to possess 5.766 kg of pure cocaine and one count of possessing a marketable quantity, being 4.072 kg, of pure cocaine. The appellant was sentenced to a total effective sentence of 7 years 3 months' imprisonment with a non‑parole period of 5 years 6 months. On the charge of attempting to possess a commercial quantity of cocaine, the appellant was sentenced to 7 years' imprisonment. The appellant's role in the offending was essentially to act as a courier. As in Martellotta, the sole ground of appeal in Salazar was an alleged infringement of the parity principle. Again, the outcome of the appeal in Salazar is therefore of little assistance in evaluating the appellant's manifest excess ground.
[24] Salazar v The Queen [2021] VSCA 125.
In O'Shaughnessy v The Queen,[25] the applicant was convicted on his early plea of guilty of an offence of attempting to possess a commercial quantity of cocaine, being 5.39 kg of the drug, which had been secreted in the shafts of golf clubs which were imported into Australia. The applicant, along with a co‑offender, used power tools to cut open the drive shafts to remove the drug. The applicant's involvement in the offence lasted less than a day, and he committed the offence out of some misguided sense of friendship or loyalty to his co‑offender. The sentencing judge found that the objective seriousness of the applicant's offending fell 'very much at the bottom of the range for importation type offences'. The court in O'Shaughnessy found that the sentence of 6 years 9 months' imprisonment with a non‑parole period of 4 years was, in the circumstances, manifestly excessive. The applicant was resentenced to 4 years' imprisonment with a non‑parole period of 3 years. The outcome in O'Shaughnessy points to the sentence imposed on the appellant being manifestly excessive, but of course the outcome of one case does not compel a conclusion of manifest excess in the present case.
[25] O'Shaughnessy v The Queen [2020] NSWCCA 124.
The respondent pointed to a number of the decisions referred to in Awraham, including R v Tran.[26] Tran was a Crown appeal in respect of three offenders, including Peter Tran. Peter Tran pleaded guilty to one count of importing a commercial quantity of heroin, being 6.25 kg of the drug. Crates containing the heroin were imported from Vietnam and delivered to Peter Tran's home. The following day, they were transported by Peter Tran and another offender to the home of Hoang Nguyen. Peter Tran was present while the consignment was opened, had arranged payment for the consignment and customs duties and had signed for the delivery. Peter Tran was 20 years of age at the time of the offending. At first instance, Peter Tran was sentenced to 7 years 6 months' imprisonment with a non‑parole period of 4 years 6 months. The Crown appeal on a ground of manifest inadequacy was dismissed, although it was noted that the sentence imposed on Peter Tran was lenient.
[26] R v Tran [2013] NSWCCA 136.
In addition to the cases we have referred to, we have also had regard to the cases referred to in the table prepared by the Crown for this appeal, namely R v Boimah;[27] Director of Public Prosecutions (Cth) v Gow;[28] Webber v The Queen;[29] R v Calis;[30] R v Karan;[31] and Ng v The Queen.[32]
[27] R v Boimah [2017] QCA 50.
[28] Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208.
[29] Webber v The Queen [2014] NSWCCA 111.
[30] R v Calis [2013] QCA 165.
[31] R v Karan [2013] NSWCCA 53.
[32] Ng v The Queen [2010] NSWCCA 232.
The outcomes in Boimah, Gow, Webber, Calis, Karan and Ng do not, in our view, clearly point to the sentence in this case being manifestly excessive. In truth, there is a considerable variation in the outcomes of the cases cited by the parties. There are some cases in which sentences imposed were less than the sentence under consideration in this case and there are also sentences which were greater. As the court in Awraham noted at [101]:
What can clearly be taken from Gow is that 'there is a level of variation, perhaps an undesirable level of variation' in the sentences imposed for broadly comparable offending. In short, it will ordinarily be possible to find a decision or decisions in which the sentence(s) imposed will be less than the decision under consideration. That fact is not necessarily demonstrative of error; after all, it will be equally possible to find decisions where the sentences imposed were greater than that which is under review. The variation may signal no more than that consistency in sentencing 'is not demonstrated by, and does not require, numerical equivalence': Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45, at [48].
Notwithstanding the considerable variation in the sentences reflected in the cases cited by the parties, what distinguishes the present case from those others is the appellant's very serious health condition, his reduced life expectancy and the additional burden that his condition will have for his period of imprisonment. While matters personal to an offender are almost always subsidiary sentencing considerations for offences of drug trafficking, the appellant's medical condition may properly be described as an exceptional circumstance warranting a degree of mercy.[33] That condition could not, of course, justify a sentence that did not reflect the objective seriousness of the offence, but it did require that the term of imprisonment to be imposed recognise the real and significant impact that a term of imprisonment would have on the appellant when compared with others.
[33] See The State of Western Australia v Rayapen [2023] WASCA 55 [202] ‑ [205].
In all of the circumstances, we are satisfied that the sentence of 9 years' imprisonment with a non-parole period of 5 years 3 months did not reflect those exceptional circumstances and was, therefore, unreasonable or plainly unjust.
For these reasons, had it been necessary to do so, we would also have upheld ground 1.

Resentencing

This court has all the materials necessary to resentence the appellant.
We will not repeat what we have already written about the facts of the offending and the appellant's personal circumstances. Because it is necessary to apply the parity principle, we are cognisant of the involvement of Mr Natale in the offending and of his personal circumstances. We have had regard to the comparable cases and the sentencing principles in s 16A of the Crimes Act 1914 (Cth). The mitigating factors applicable to the appellant are those identified by the sentencing judge, including, of course, that the appellant suffers from cystic fibrosis and the effects of this condition upon him.
Taking into account all of the relevant facts and circumstances and the important sentencing objective of general deterrence, we would resentence the appellant to 7 years' imprisonment. We would impose a non‑parole period of 3 years 3 months.

In our view, the sentence of 7 years' imprisonment properly reflects the objective seriousness of the appellant’s offending and properly reflects parity with the sentence imposed on Mr Natale. The non-parole period, which is lenient, is, in our view, justified by the appellant's health condition and will enable the parole authorities greater capacity to properly take account of that condition as it develops in the future.

Orders

The orders we would make are as follows:
1.Leave to appeal on grounds 1, 2 and 3 is granted.
2.The appeal is allowed and the sentence imposed on 3 June 2022 is set aside.
3.The appellant is resentenced to 7 years' imprisonment with a non‑parole period of 3 years 3 months. The sentence is backdated to commence on 23 January 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
17 JULY 2023