Lowe v The State of Western Australia
[2015] WASCA 83
•30 APRIL 2015
LOWE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 83
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 83 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:175/2014 | 19 FEBRUARY 2015 | |
| Coram: | BUSS JA MAZZA JA | 30/04/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JASON THOMAS LOWE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Manifestly excessive Infringement of the first limb of the totality principle Infringement of the parity principle Inadequate discount given for plea of guilty None of the grounds have any reasonable prospect of success Appeal dismissed |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(b) Sentencing Act 1995 (WA), s 9AA |
Case References: | Apkarian v The State of Western Australia [2015] WASCA 67 Bomford v The State of Western Australia [2013] WASCA 153 Dooling v The State of Western Australia [2012] WASCA 95 Ho v The State of Western Australia [2011] WASCA 108 Johnston v The State of Western Australia [2008] WASCA 221 Lovett v The State of Western Australia [2013] WASCA 78 Perry v The State of Western Australia [2012] WASCA 124 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Rumenos v The State of Western Australia [2011] WASCA 59 Stoysich v The State of Western Australia [2014] WASCA 208 The State of Western Australia v Hyder [2011] WASCA 256 The State of Western Australia v Jenkin [2011] WASCA 171 Vagh v The State of Western Australia [2007] WASCA 17 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LOWE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 83 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : IND GER 38 of 2013
Catchwords:
Criminal law - Appeal against sentence - Manifestly excessive - Infringement of the first limb of the totality principle - Infringement of the parity principle - Inadequate discount given for plea of guilty - None of the grounds have any reasonable prospect of success - Appeal dismissed
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(b)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : No appearance
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Bomford v The State of Western Australia [2013] WASCA 153
Dooling v The State of Western Australia [2012] WASCA 95
Ho v The State of Western Australia [2011] WASCA 108
Johnston v The State of Western Australia [2008] WASCA 221
Lovett v The State of Western Australia [2013] WASCA 78
Perry v The State of Western Australia [2012] WASCA 124
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Rumenos v The State of Western Australia [2011] WASCA 59
Stoysich v The State of Western Australia [2014] WASCA 208
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Jenkin [2011] WASCA 171
Vagh v The State of Western Australia [2007] WASCA 17
Wilson v The State of Western Australia [2010] WASCA 82
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence.
3 On 28 April 2014, 11 days before the scheduled commencement of his trial, the appellant was convicted on his pleas of guilty of two counts of manufacturing a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (MDA).
4 Subsequently, a trial of issues was held to determine the appellant's role in respect of count 1 on the indictment. The learned sentencing judge determined that the appellant was an aider and not the actual manufacturer of the drug. There was no issue in relation to the facts with respect to count 2.
5 On 24 September 2014, the appellant was sentenced on count 1 to 16 months' imprisonment (reduced from 2 years for totality) and, on count 2, to 2 years' imprisonment. His Honour ordered that the sentences be served cumulatively. Thus the total effective sentence imposed upon the appellant was 3 years 4 months' immediate imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 21 January 2014.
6 There are three proposed grounds of appeal. It is unnecessary to set them out. The proposed grounds and the written submissions that support them are not a model of clarity. For example, ground 3 rolls up various weighting errors (as to which see Vagh v The State of Western Australia [2007] WASCA 17), infringements of the so-called one transaction rule and the parity principle, and an allegation that the learned sentencing judge erred by not giving the appellant a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).
7 A consideration of the proposed grounds of appeal and the written and oral submissions in support of them reveals that the appellant's primary complaints are:
(1) the individual sentences were manifestly excessive;
(2) the total effective sentence infringed the first limb of the totality principle;
(3) there was an infringement of the parity principle;
(4) the learned sentencing judge erred in not discounting the sentences by 25% pursuant to s 9AA of the Sentencing Act.
8 For the reasons which follow, none of the proposed grounds of appeal have any reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed.
The facts of the offending
9 The appellant was, at all relevant times, a long-term user of methylamphetamine who resided in or near the city of Geraldton.
10 In respect of count 1, on a date between 1 December 2012 and 23 December 2012, Mr Rory Linturn manufactured an unknown, but evidently small, quantity of methylamphetamine at the appellant's house. His Honour found that the appellant aided Mr Linturn by:
(a) Allowing his premises to be used for the manufacture.
(b) Obtaining pseudoephedrine, a precursor chemical for the manufacture of methylamphetamine. He did this by purchasing cold and flu tablets from pharmacies or recruiting others to do so in return for a small amount of methylamphetamine.
(c) Purchasing some of the chemicals (toluene and caustic soda) used in the manufacturing process.
(d) Assisting in cleaning up the premises after the manufacture had been completed and removing rubbish associated with it.
11 For all of this work, the appellant received half of whatever was manufactured by Mr Linturn.
12 With respect to count 2, on 6 February 2013, police searched the appellant's vehicle and, a short time later, his home. These searches revealed that the appellant had himself manufactured a small quantity of the drug for his own use. It appears that, in doing so, he used equipment which he had taken from Mr Linturn without his permission. The methylamphetamine the appellant manufactured was of poor quality and caused him to become ill. There was no evidence adduced in the sentencing proceedings as to the purity of the drug. When the appellant committed count 2, he was on bail in respect of what would become, in due course, count 1.
The appellant's antecedents
13 At the time he was sentenced, the appellant was 28 years of age. The appellant had a difficult upbringing. He left school in year 10. He has been intermittently employed, principally as a bricklayer. The appellant has been a user of cannabis since the age of 14 and methylamphetamine since the age of 17. He told the author of the pre-sentence report, in effect, that he has no intention of ceasing his use of cannabis and regards it as beneficial. The author of the pre-sentence report observed that the appellant 'lacks insight into his illicit substance use and has demonstrated reluctance to engaging in ongoing programmatic interventions'.
14 The appellant has a prior history of convictions in the Magistrates Court, commencing in 2004, for various offences including the possession of drugs, possession of drug paraphernalia, burglary, stealing, traffic offences, aggravated assault and breach of bail. He had never previously been sentenced to a term of immediate imprisonment.
The sentencing remarks
15 His Honour had regard to the appellant's pleas of guilty which he said were entered at 'a very late stage', but said that the appellant would not be penalised in relation to the trial of issues which he had determined in his favour. His Honour gave a discount of 10% pursuant to s 9AA of the Sentencing Act on each offence.
16 His Honour also had regard to matters put in mitigation on the appellant's behalf by his counsel, including that, up until his remand in custody, he was on bail, subject to a curfew 'for some time', and that the appellant had been 'waiting' to be sentenced.
17 His Honour addressed the question of concurrency and cumulacy and decided that, because the two offences were 'separate and distinct', cumulative sentences were required. As mentioned, his Honour reduced the sentence he imposed on count 1 to take into account the totality principle.
Offences committed by Mr Linturn
18 Although Mr Linturn was said to be the principal offender in respect of count 1, he was not charged in connection with that offence. However, he was charged with two offences of manufacturing methylamphetamine which occurred on 1 and 7 February 2013. It appears that these offences did not involve the appellant in any way.
19 Mr Linturn pleaded guilty at an early stage in the proceedings before Bowden DCJ. He was given a discount of 25% pursuant to s 9AA of the Sentencing Act. On 2 December 2013, Mr Linturn was sentenced to 2 years' imprisonment on each offence, to be served concurrently. Thus the total effective sentence imposed on Mr Linturn was 2 years' imprisonment. His Honour ordered concurrency because he considered that the two offences constituted 'ongoing criminal conduct'.
General appellate principles
20 The general principles applicable to this appeal were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is unnecessary to repeat those principles here.
Were the individual sentences manifestly excessive?
21 In assessing whether a sentence is manifestly excessive, regard is had to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed, the seriousness of the circumstances of the offence and the personal circumstances of the offender.
22 The maximum penalty for the manufacture of a prohibited drug is 25 years' imprisonment and/or a fine of $100,000: s 34(1) MDA.
23 As was observed by this court in The State of Western Australia v Jenkin [2011] WASCA 171, there has recently been a very significant increase in improvised clandestine drug laboratories in Western Australia. These laboratories present significant dangers to the people undertaking the manufacturing activity, people within its immediate vicinity and the police and emergency services personnel who are required to deal with them. The close association between the use of methylamphetamine and the commission of criminal offences is well documented. Against this background, a sentence of immediate imprisonment will ordinarily, as a matter of fact, be imposed for manufacturing methylamphetamine. General deterrence is an important factor, particularly because of the prevalence of the offending.
24 This court has considered a number of cases involving the manufacture or attempted manufacture of methylamphetamine, including Johnston v The State of Western Australia [2008] WASCA 221; Rumenos v The State of Western Australia [2011] WASCA 59; Jenkin; The State of Western Australia v Hyder [2011] WASCA 256; Dooling v The State of Western Australia [2012] WASCA 95; Perry v The State of Western Australia [2012] WASCA 124; Lovett v The State of Western Australia [2013] WASCA 78 and Bomford v The State of Western Australia [2013] WASCA 153. Of course, each case must be determined on its own facts and circumstances and the fact that a sentence is within the range of sentences customarily imposed does preclude a finding that a sentence is manifestly excessive. The facts and circumstances of each of the cases I have referred to do not need repetition. It is sufficient for me to say that the individual sentences imposed in the present case conform with the range of sentences customarily imposed.
25 Each of the offences committed by the appellant was serious. In count 1, although the appellant was not the 'cook', his role, which I have already described, was multifaceted and crucial to the commission of the offence. It was an aggravating factor that he involved others by having them purchase pseudoephedrine on his behalf. The importance of his role is reflected by the fact that he shared equally with Mr Linturn in the methylamphetamine that was produced.
26 Of course, in count 2, the appellant was the principal. The offending was aggravated by the fact that it was committed while on bail.
27 The appellant's personal circumstances were unfavourable. At 28 years of age, he does not have the mitigation of youth. Nor can it be said that he is a man of prior good character. The appellant does not appear, at the moment, to be willing to undertake any rehabilitative programs. There was no evidence of remorse. The only matter of significant mitigation was his pleas of guilty. As I will shortly explain, the discount given for the pleas of guilty was not erroneous.
28 In my opinion, the individual sentences imposed upon the appellant with respect to each of counts 1 and 2 were within the range of a sound exercise of the sentencing discretion. Neither sentence was unreasonable or plainly unjust. The allegation that the individual sentences were manifestly excessive has no reasonable prospect of success.
Did the total effective sentence infringe the first limb of the totality principle?
29 The first limb of the totality principle requires that the total effective sentence imposed upon an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all the relevant circumstances including those referable to the offender personally.
30 The appellant's principal argument in support of the contention that the total effective sentence infringed the first limb of the totality principle, was to rely upon the so-called one transaction rule.
31 The nature and the scope of the so-called one transaction rule and its application are well-known and do not require repetition: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]. It is sufficient for present purposes to note that there is no principle of law or sentencing that requires concurrent sentences to be imposed for multiple offences constituting one transaction or a continuing episode. Wholly concurrent sentences may not reflect the total criminality of the offending. The guiding principle is whether the punishment imposed on the appellant reflected the total criminality of what he did: Ho v The State of Western Australia [2011] WASCA 108 [16].
32 As the learned sentencing judge correctly observed, the two offences were separate and distinct. They were not, in truth, part of one transaction. Even if they were, this fact does not compel concurrency.
33 I have already described the circumstances of the offending, the comparable cases and the appellant's personal circumstances.
34 Having regard to the separate nature of the offending and the aggravating factor that count 2 was committed while the appellant was on bail for count 1, cumulative sentences were justified. In my opinion, the total effective sentence imposed upon the appellant was not disproportionate to the appellant's offending as a whole, having regard to all of the circumstances. The contention that the total effective sentence infringed the first limb of the totality principle has no reasonable prospect of success.
Was there an infringement of the parity principle?
35 The parity principle derives from the norm of equal justice. In Stoysich v The State of Western Australia [2014] WASCA 208 [39] - [45], Buss JA (with whom Martin CJ and I agreed) set out the relevant law with respect to the parity principle. His Honour said:
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).
36 The parity principle had no role to play in the appellant's sentencing.
37 The appellant and Mr Linturn were not co-offenders in any sense. The offences committed by Mr Linturn were different to the offences committed by the appellant.
38 There was nothing before his Honour to indicate that the offences committed by Mr Linturn were for their mutual benefit or that the appellant was, in any relevant sense, connected with Mr Linturn's offending. As the parity principle or norm of equal justice did not apply, parity or equality of outcomes was not mandated. As this court said in Apkarian v The State of Western Australia [2015] WASCA 67 [45], absent such considerations, error cannot be established by comparing sentences imposed upon offenders who may have similar characteristics and may have committed similar offences. This is because the imposition of a sentence involves the exercise of a discretion based on all relevant considerations. This allows for different outcomes within an appropriate range. There is no one mathematically correct sentence.
39 The appellant sought to mount an argument that as Mr Linturn received a 25% discount pursuant to s 9AA of the Sentencing Act, so should the appellant. This argument has no merit. The circumstances in which Mr Linturn entered his pleas were different to that of the appellant. As I will shortly discuss, there was no basis upon which to give the appellant a 25% discount pursuant to s 9AA of the Sentencing Act.
40 The contention that the sentences imposed upon the appellant infringed the parity principle has no reasonable prospect of success.
The discount pursuant to s 9AA of the Sentencing Act
41 The appellant submitted that the learned sentencing judge should have given the appellant a 25% discount pursuant to s 9AA of the Sentencing Act.
42 This argument cannot be accepted. Section 9AA(4) of the Sentencing Act provides:
If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
43 On the evidence before the learned sentencing judge, the appellant neither pleaded guilty nor indicated that he would plead guilty at the first reasonable opportunity. In these circumstances, his Honour was unable to give a 25% discount.
44 Originally, the appellant was charged by prosecution notices dated 30 January 2013 and 7 February 2013 with offences of attempting to manufacture methylamphetamine. The indictment to which he ultimately pleaded guilty was filed on 24 September 2013. The appellant pleaded not guilty and the matter was listed for trial to commence on 28 April 2014. The appellant's pleas of guilty were first communicated to the prosecution on 17 April 2014. His Honour was correct to characterise the pleas as having been entered at a 'very late stage'. The 10% discount given to the appellant was well within a proper exercise of his discretion.
45 The contention that his Honour should have given a 25% discount pursuant to s 9AA of the Sentencing Act has no reasonable prospect of success.
Other matters
46 The appellant submitted that the learned sentencing judge did not 'give adequate weight' to the fact that the appellant was under strict bail conditions, including a curfew, prior to being sentenced or to what he claimed to be delay in the sentencing proceedings. Weighting errors such as those alleged by the appellant are not proper grounds of appeal. His Honour, as I have already observed, perhaps generously, took these matters into account as mitigating factors. These contentions have no reasonable prospect of success.
Conclusion and orders
47 In summary, none of the grounds of appeal have any reasonable prospect of succeeding. The appeal must be taken to have been dismissed.
48 The orders that I would make are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
3
24
2