Ma v The Queen
[2001] WASCA 325
•26 OCTOBER 2001
MA -v- THE QUEEN [2001] WASCA 325
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 325 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:85/2001 | 3 OCTOBER 2001 | |
| Coram: | STEYTLER J TEMPLEMAN J ROBERTS-SMITH J | 26/10/01 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | RONG MA THE QUEEN |
Catchwords: | Criminal law Sentence Attempting to obtain possession of trafficable quantity of prohibited drugs imported into Australia Guilty plea Cooperation with authorities Sentencing discount Criminal law and procedure Sentencing Disparity 6 months discount for plea of guilty Cooffender given discount of 12 months for plea of guilty Applicant given head term of 5 years imprisonment Cooffender who went to trial sentenced to 51/2 years |
Legislation: | Crimes Act 1914 (Cth), s 21E(1)(a), s 21E(3) Customs Act 1901 (Cth), s 233B(1)(c) Sentencing Act 1995 (WA), s 8(5) |
Case References: | Atholwood v The Queen (1999) 109 A Crim R 465 Duffy (1996) 85 A Crim R 456 Goddard v The Queen (1999) 21 WAR 541 Hayes v The Queen [1981] WAR 252 Little v The Queen [2001] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 McKeagg v The Queen [2001] WASCA 99 Postiglione v The Queen (1997) 189 CLR 295 R v Capper (1993) 69 A Crim R 64 R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 R v Golding (1980) 24 SASR 161; 3 A Crim R 26 R v Hayes (1981) 3 A Crim R 286 R v Nagy [1992] 1 VR 637 R v Perez-Vargas (1987) 8 NSWLR 559 Radebe v The Queen [2001] WASCA 254 Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999 Veneziani v The Queen [2001] WASCA 246 Cottrell (1989) A Crim R 31 Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 Foster and D'Anna (1992) 59 A Crim R 14 Heryadi v The Queen (1998) 19 WAR 383 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Mustafa v The Queen [2001] WASCA 92 Quach v The Queen [1999] WASCA 219 R v Dinic (1997) 149 ALR 488 R v Thompson & Houlton (2000) 49 NSWLR 383 Roberts v The Queen [1999] WASCA 273 X v The Queen [2000] WASCA 355 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MA -v- THE QUEEN [2001] WASCA 325 CORAM : STEYTLER J
- TEMPLEMAN J
ROBERTS-SMITH J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Attempting to obtain possession of trafficable quantity of prohibited drugs imported into Australia - Guilty plea - Cooperation with authorities - Sentencing discount
Criminal law and procedure - Sentencing - Disparity - 6 months discount for plea of guilty - Cooffender given discount of 12 months for plea of guilty - Applicant given head term of 5 years imprisonment - Cooffender who went to trial sentenced to 51/2 years
(Page 2)
Legislation:
Crimes Act 1914 (Cth), s 21E(1)(a), s 21E(3)
Customs Act 1901 (Cth), s 233B(1)(c)
Sentencing Act 1995 (WA), s 8(5)
Result:
Leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr M G A Plummer
Solicitors:
Applicant : Laurie Levy
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Atholwood v The Queen (1999) 109 A Crim R 465
Duffy (1996) 85 A Crim R 456
Goddard v The Queen (1999) 21 WAR 541
Hayes v The Queen [1981] WAR 252
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
McKeagg v The Queen [2001] WASCA 99
Postiglione v The Queen (1997) 189 CLR 295
R v Capper (1993) 69 A Crim R 64
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Golding (1980) 24 SASR 161; 3 A Crim R 26
R v Hayes (1981) 3 A Crim R 286
R v Nagy [1992] 1 VR 637
R v Perez-Vargas (1987) 8 NSWLR 559
(Page 3)
Radebe v The Queen [2001] WASCA 254
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999
Veneziani v The Queen [2001] WASCA 246
Case(s) also cited:
Cottrell (1989) A Crim R 31
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
Foster and D'Anna (1992) 59 A Crim R 14
Heryadi v The Queen (1998) 19 WAR 383
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Mustafa v The Queen [2001] WASCA 92
Quach v The Queen [1999] WASCA 219
R v Dinic (1997) 149 ALR 488
R v Thompson & Houlton (2000) 49 NSWLR 383
Roberts v The Queen [1999] WASCA 273
X v The Queen [2000] WASCA 355
(Page 4)
1 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Roberts-Smith J. I agree with them and have nothing to add.
2 TEMPLEMAN J: The applicant, Mr Rong Ma was sentenced to a term of five years imprisonment on each of three counts of attempting to obtain possession of prohibited imports consisting of quantities of heroin, to which s 233B of the Customs Act 1901 applied. The sentences were to be served concurrently. A non-parole period was fixed at 2 years 6 months.
3 The applicant contends in this appeal that the sentence imposed on him was excessive, having regard to sentences imposed on his co-offenders, and in any event.
4 The applicant was charged on indictment with three others; Shi Ping Li, Say Tsuong Lu and Phuong Due Nguyen. There were 10 counts. Each charged the relevant accused with attempting to obtain possession of a quantity of heroin contained in an envelope addressed to various properties in the Perth metropolitan area. Mr Li and Mr Lu were charged in the first five counts, the applicant was charged on three counts and Mr Nguyen on two counts.
5 For reasons which are not clear, the prosecution did not proceed against Mr Lu.
6 The trial of the applicant, Mr Li and Mr Nguyen was due to commence on 7 May 2001. On 30 April the applicant, through his solicitor, indicated that he would plead guilty to the three charges against him and would give evidence against Mr Li. The applicant provided a statement which he signed on 2 May. On 3 May, Mr Li indicated through his solicitor that he would plead guilty to the five charges against him.
7 When the matter came on for trial on 7 May, the applicant and Mr Li pleaded guilty. Mr Nguyen pleaded not guilty and proceeded to trial. On 10 May the jury returned a verdict of guilty in respect of both charges against Mr Nguyen. All three offenders were sentenced by the trial Judge on 11 May.
8 The prosecution arose out of arrangements made by someone in Hong Kong to post five envelopes, apparently containing only cards, but in fact containing quantities of heroin also, to addresses in Wanneroo Road, Wynyard Street, Wethered Street, Krugger Place and Burns Avenue.
(Page 5)
9 Each envelope contained little over 40 grams of heroin of approximately 70 per cent purity. The total weight of heroin was 150.8 grams.
10 On 27 January 2000, Mr Li and another person visited each of the properties for the purpose of retrieving the envelopes. However, they were unable to do so because the envelopes had been intercepted by the police and were then in the process of being reconstructed.
11 On 31 January, the applicant attended at the addresses in Wanneroo Road, Burns Avenue and Wynyard Street and retrieved an envelope from each location.
12 On 2 February, Mr Nguyen attended the Wethered Street and Krugger Place premises and retrieved the two remaining envelopes.
13 Each of the three offenders was apprehended as a result of surveillance activities and telephone interceptions.
14 In his sentencing remarks, the learned Judge related the facts as I have summarised them above. He then said he was satisfied that Mr Li had played the most active role of the three offenders by establishing the facility necessary to arrange collection of the heroin. The Judge noted that Mr Li had entered a plea of guilty, albeit at a late stage, but that the case against him was strong. Nevertheless, the Judge said, Mr Li was entitled to a discount for his guilty plea.
15 The Judge then referred to further evidence against the applicant. He said that a search of the applicant's residence resulted in two of the envelopes being located in a walk-in wardrobe in his bedroom. The third envelope was located in a hiding place behind a number of telephone books. In addition, there was found in the applicant's wallet a piece of paper on which was written the three addresses he had attended.
16 Further, electronic scales containing traces of heroin were found in the applicant's possession.
17 Initially, the applicant denied possession of the envelopes. Later, he admitted possession but said he had collected the envelopes at the request of one Ah Ping, who was, in fact, Mr Li, although the applicant did not provide that information. The applicant claimed not to have known what was in the envelopes, although he admitted he expected to be paid for collecting them.
(Page 6)
18 The Judge then referred to the fact that the applicant pleaded guilty and gave information to the police about his involvement and gave other information intended to be of assistance. The Judge said the case against the appellant was strong and that he had played an active and important role in the importation, although at a lower level than Mr Li.
19 In relation to Mr Nguyen, the Judge said the evidence suggested that he was, to an extent, guided and encouraged by another or others.
20 The Judge said that Mr Nguyen was observed collecting the envelopes. When he was arrested, the envelopes were found in his vehicle. Mr Nguyen told the police he had arranged to collect the envelopes on behalf of a friend. He believed them to contain sponsorship papers. Mr Nguyen had continued to maintain and advance that falsehood during the trial. As a result, the Judge said, there could be no suggestion of remorse on Mr Nguyen's part. The Judge said he was satisfied however, on all the materials, that Mr Nguyen played a lesser role than the other offenders.
21 The Judge went on to say that it was not necessary to identify with particularity the relative positions of the offenders in the hierarchy of the drug importation. It was sufficient to say that each offender was "actively and necessarily engaged in the receipt upon its arrival in this country of the narcotic substance heroin".
22 The Judge then referred to the personal circumstances of each of the offenders. Referring first to Mr Li, the Judge noted that he had been born in China on 23 March 1972 and had limited education. Mr Li entered Australia illegally in 1992 and spent four years in detention before being granted refugee status in 1996. During his stay in the Port Hedland detention centre, Mr Li became depressed and engaged in conduct which resulted in a significant injury to himself.
23 Having been granted refugee status Mr Li worked as a factory hand and in a restaurant. The Judge noted that Mr Li may have had some addiction to heroin in the past which may have had some influence upon his behaviour.
24 The Judge then referred to Mr Li's guilty plea which, although occurring at a late stage, was indicative of remorse on his part and had led to a saving of cost to the community. The Judge said he had been provided with a reference for Mr Li which spoke well of him.
(Page 7)
25 Turning to the applicant, the Judge noted that he also had an unfortunate background with limited education. The applicant was 34 years old and was apparently subject to some persecution in his country of origin before entering Australia, which he did illegally, in 1991. The applicant was detained at the Port Hedland detention centre where he met Mr Li. The applicant was granted refugee status and thereafter went to Melbourne where he worked in various forms of employment including a factory and restaurant.
26 The Judge noted that the applicant had maintained a plea of not guilty until a very late stage, when he had changed his plea and indicated an intention to co-operate with the authorities. The Judge said that to an extent at least, the applicant's early co-operation had an exculpatory basis: and that his later offer of co-operation had a limited value. Nevertheless, the Judge said, the applicant was entitled to a discount for his plea of guilty.
27 The Judge dealt finally with Mr Nguyen who he noted was 35 years old with a wife and children from whom he was separated. Mr Nguyen left Vietnam in about 1982 and spent some years in refugee camps before arriving in Sydney as a refugee in 1988. Mr Nguyen's status in Australia had been recognised and he had been in fairly steady employment. The Judge said he had the advantage of hearing on the previous day from a person who spoke well of Mr Nguyen.
28 The Judge then proceeded to sentence the offenders. He said that in considering the penalty in respect of each offender, he had had regard to the personal matters which I have summarised above and to a number of factors including "the paramount consideration that it is necessary to impose a sentence that is of a severity appropriate, in all the circumstances, to adequately recognise the seriousness of your offending behaviour".
29 In respect of Mr Li and the applicant, the Judge said he was satisfied that by their pleas of guilty they were remorseful of their conduct and appreciated the enormity of it. However, the Judge said he regarded their guilty pleas as having been made "in the face of the inevitable". The Judge said he had had regard also to the antecedents and personal circumstances of each of the offenders.
30 In the case of Mr Li, the Judge was of the view that the appropriate starting point for his criminality would have been a sentence of 8 years
(Page 8)
- imprisonment. He reduced that to a term of 7 years to acknowledge the guilty plea and directed a non-parole period of 3 years and 6 months.
31 The Judge said it would be unrealistic to apportion the term between the offences because they constituted one course of criminal conduct. He therefore directed that Mr Li be sentenced to 7 years imprisonment on each of the five counts on the indictment, the terms to be served concurrently. The non-parole period was 3 years and 6 months.
32 The Judge then said that in the applicant's case the appropriate starting point would have been a term of 6 years and 6 months imprisonment. That was reduced by a period of 6 months to reflect the applicant's plea of guilty and a further 12 months to acknowledge his co-operation. The result was a term of 5 years which would be imposed on each of the three counts but the terms were to be served concurrently. The non-parole period was 2 years and 6 months.
33 In the case of Mr Nguyen, the Judge was of the view that the appropriate sentence to acknowledge his criminality was a term of 5 years and 6 months imprisonment. There was no reason to discount that figure. The non-parole period was 2 years and 9 months.
34 The sentences imposed on Mr Li and the applicant were backdated to 31 January 2000 to acknowledge the time already spent in custody. Mr Nguyen's sentence was not backdated because he had not been in custody until the trial.
35 In summary, the applicant was given a discount of 6 months on a sentence of 6 years and 6 months to take account of his plea of guilty. That represents a reduction of 7.7 per cent. The discount of twelve months for co-operation represents 15.4 per cent of the starting sentence.
36 Mr Li, who pleaded guilty at a slightly later stage, received a discount of 12 months for that plea, on a sentence of 8 years improvement. That represents a discount of 12.5 per cent.
37 The applicant's grounds of appeal are as follows:
"1. The learned sentencing Judge erred by failing to properly apply the parity principle, such error giving rise to a justifiable sense of grievance with respect to the sentence imposed upon the Applicant.
(Page 9)
- a) The learned sentencing Judge indicated a starting point of 6 years and six months for each of the Applicant's 3 offences before taking into account the relevant mitigating factors, whereas the sentences imposed upon the Applicant's co-accused Phuong Due Nguyen were terms of 5 years and six months for each of his offences, such sentences being imposed upon conviction following trial.
b) The learned sentencing Judge indicated that the Applicant's plea of guilty afforded him a discount of 6 months, whereas the Applicant's co-accused Shi Ping Li received a discount of 12 months for his plea of guilty.
- 2. The learned sentencing Judge erred in the exercise of his discretion by failing to give sufficient weight to the following mitigating factors, thereby failing to reduce the Applicant's sentence accordingly:
Particulars
- a) The Applicant's plea of guilty
b) The Applicant's co-operation with the relevant authorities."
39 I do not accept that submission. In my view, it was a matter for the Judge to form an assessment of the criminality of both the applicant and Mr Nguyen and to impose sentences which reflected any relevant difference in the degree of criminality.
40 In each case, the Judge imposed a sentence which reflected his view of the overall criminality of each offender. The applicant's criminality was undoubtedly greater than that of Mr Nguyen: the applicant had committed three offences involving 88.5 grams (net) of heroin. Mr
(Page 10)
- Nguyen had committed two offences involving 62.2 grams (net). Furthermore, the Judge was entitled to take the view, on the evidence as presented to him, that Mr Nguyen played the lesser role in the enterprise: although, as I have noted above, the Judge did not regard that as a matter of any great significance.
41 In my view, the Judge exercised his discretion in a way which was fully open to him after giving careful consideration to all relevant matters. I am not persuaded therefore that there is any substance to ground 1(a).
42 As to ground 1(b): although the applicant's complaint is that the discount granted to him for his plea of guilty was only half of that granted to Mr Li, the applicant's counsel conceded in the course of his submissions that at the most, the applicant's discount could be raised by only about 2 or 3 per cent. In my view, that was an appropriate concession. That is because the applicant changed his plea at a very late stage, only a few working days before the trial was due to commence.
43 It is well settled that an offender who pleads guilty on what has come to be known as the fast track system is entitled to a substantial discount. This would ordinarily fall within the range 25 to 35 per cent. The policy considerations underlying this practice and the authorities in which it has been implemented were reviewed by McKechnie J in Radebe v The Queen [2001] WASCA 254 at [16]-[28].
44 That there is a range from 25 to 35 per cent even when there has been an early plea on the fast track system, emphasises the extent of the discretion involved in determining a discount. Clearly, a late plea of guilty should attract a lower discount. And in my view, the later the plea the greater is the potential for the exercise of judicial discretion in determining the appropriate discount.
45 In the present case, as appears from the Judge's sentencing remarks, his Honour took into account the circumstances in which the applicant changed his plea as well as other circumstances personal to the applicant.
46 In the exercise of his discretion, the Judge arrived at a discount of 6 months which was equivalent to 7.7 per cent of the starting sentence. If that discount had been increased to 10.7 per cent the result would have been a discount of a little over 8 months.
47 As I have noted above, counsel for the appellant conceded that his client could not have expected a discount of more than say 10.7 per cent.
(Page 11)
48 I am not persuaded that the difference of two months between the discount actually granted to the applicant and the maximum he might have expected in the circumstances reflects a mis-exercise by the Judge of his sentencing discretion. Furthermore, I am not persuaded that the difference between the applicant's discount and the 12 months granted to Mr Li is such as to give rise to a justifiable sense of grievance in the applicant. Although, Mr Li pleaded guilty at a slightly later stage than the applicant, he pleaded to five offences involving a total of 150.9 grams (net) of heroin compared with 88.5 grams (net) in the applicant's case. For that reason alone, it is my view, Mr Li was entitled to a greater discount than the applicant. Although Mr Li and the applicant were co-accused, they were not co-offenders in the strict sense.
49 I am not persuaded, therefore, that the discrepancy between the discount granted to Mr Li and the applicant's discount reflects a mis-exercise by the Judge of his sentencing discretion.
50 I turn to ground 2. It is to be noted that the applicant does not here complain about the disparity between his sentence and those imposed on his co-accused. The applicant contends only that the sentencing Judge erred in the exercise of his discretion in relation to the plea of guilty and the offer of co-operation. Given his counsel's concession "that in isolation, the applicant would not be able to complain about the overall result", it is surprising that this ground was pursued. It was, however, put in the forefront of counsel's submissions.
51 I have already expressed my view about the discount for the applicant's plea of guilty. However, it is the matter of co-operation which the applicant's counsel described as "pivotal" to this appeal.
52 The applicant bases his submission that the discount was manifestly inadequate upon the decision of this Court in Duffy (1996) 85 A Crim R 456, the majority of the Court of Criminal Appeal made plain that there is no tariff for discounts arising from co-operation with the authorities. Everything depends on the circumstances, including the quality and quantity of the material disclosed, its accuracy and the willingness of the applicant to confront other offenders or to give evidence against them.
53 I have referred above to that part of the Judge's sentencing remarks in which he referred to the applicant's co-operation. The Judge noted that, to an extent at least, the applicant's early co-operation had an exculpatory basis and that his later co-operation had a limited value.
(Page 12)
54 The reference to early co-operation is, I think, to some admissions made by the applicant in the early part of the investigation. The prosecutor referred to these matters when relating the material facts to the Judge. He said the applicant was interviewed at his residence while a search was in progress. The applicant was interviewed again later.
55 Initially, the applicant admitted he had gone with a friend to collect letters from various addresses. However, he denied knowledge of the two pink envelopes found in the walk-in wardrobe: he denied knowledge of the contents of the envelopes and denied that he had collected them. Furthermore, the applicant said there were only two envelopes: he denied there was a third. It was only after the third envelope had been located that the applicant admitted collecting that envelope as well. He then said that Ah Ping (Mr Li) had asked him to collect the envelope. The applicant asserted also that the electronic scales found at his residence had been used to weigh gold. However, traces of heroin were found on the scales.
56 Those facts amply justify the sentencing Judge's view that the applicant's early co-operation was intended to be exculpatory.
57 On 2 May, after the applicant had indicated his intention to plead guilty, he signed an undertaking to give evidence for the Crown against Mr Li. On the same day, the applicant gave a statement pursuant to that undertaking. However, the statement provided no more information than was already in the possession of the prosecution.
58 The statement might have been more useful had it been given at an early stage of the investigation. But, as appears from the transcripts of the interviews conducted by police officers on 31 January 2000, the applicant was then evasive. I appreciate that the first interview was conducted without the assistance of an interpreter and that the applicant may have had some difficulty in understanding English. However, in the second interview, when an interpreter was present, that the applicant admitted he had lied initially about the presence of the third envelope.
59 Although these materials were not before the Judge, they support the conclusion he reached.
60 Furthermore, although the applicant told the police from the outset that the person who had asked him to collect the envelopes was Ah Ping, he gave no information which might have assisted in locating Ah Ping: nor did he say that Ah Ping was Mr Li. In fact, the police soon became aware that Ah Ping was Mr Li and obtained his telephone number.
(Page 13)
61 In my view, these circumstances justify fully the comment made by the sentencing Judge that the applicant's offer of co-operation at a late stage had a limited value.
62 In R v Cartwright (1989) 17 NSWLR 243, Hunt and Badgery-Parker JJ who formed the majority of the Court of Criminal Appeal, observed that an offender will not receive any discount where he tailors his disclosure so as to reveal only the information which he knows is already in possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows.
63 In the present case, when the applicant decided to change his plea and co-operate, he must have known from the Crown brief the extent of the evidence against Mr Li.
64 In the plea of mitigation made on the applicant's behalf, his counsel reminded the Judge about Cartwright (supra) and Duffy (supra). Counsel urged the Judge to give the applicant credit "approaching the 50 per cent discount". In my view, that would have been far too generous. I accept that such a substantial discount might be appropriate where there has been full and useful, or potentially useful co-operation, particularly if the offender is thereby put at risk. However, this case warranted a far lower discount.
65 In my view, the discount of 12 months which the Judge allowed on a sentence of 6 years and 6 months which had already been reduced by 6 months was justified in all the circumstances as I have summarised them above. While other judges might have allowed a greater discount, I am not persuaded that the discount here was so low as to reflect a mis-exercise of the judicial discretion. On any view, 12 months was a significant discount.
66 I think it important not to de-value the currency of discounts. As the authorities make plain, substantial discounts should be reserved for cases where there has been substantial co-operation.
67 For these reasons, I am not persuaded that the applicant should succeed on ground 2.
68 I would therefore dismiss the application.
69 ROBERTS-SMITH J: This is an application for leave to appeal against sentence imposed in the District Court on 11 May 2001.
(Page 14)
70 By an indictment dated 31 July 2000, the applicant and three others were charged with a number of offences of attempting to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin. There were some 10 counts on the indictment, but only three of them related to the applicant, they being counts 6, 7 and 8. The Crown apparently did not in the end proceed against the fourth accused.
71 In short form, each charge was a count of attempting to obtain possession of a trafficable quantity of heroin imported into Australia, contrary to s 233B(1)(c) of the Customs Act. They related respectively to the applicant attending to, and obtaining an envelope from premises at Wanneroo Road, Yokine, Burns Avenue, Yokine and Wynyard Street, Yokine on 31 January 2000. The quantities of heroin were 29.7 gms, 29.7 gms and 29.1 gms respectively.
72 The applicant's co-offenders who were proceeded against were Shi Ping Li and Due Phuong Nguyen.
73 Li was charged with five similar counts involving his attendance at five separate addresses for the purpose of collecting envelopes containing heroin on 28 January 2000; Nguyen was charged with two similar counts in respect of attendances at premises on 2 February 2000.
74 All three offenders pleaded not guilty. The trial was scheduled to commence on 7 May 2001. On 30 April 2001, the applicant through his solicitor, indicated to the Crown that he would plead guilty to the three counts on the indictment and he would give evidence against Li (known to the applicant as Ah Ping). Arrangements were made for the Australian Federal Police to take a statement from the applicant and that was done on 2 July 2001. The following day Li indicated through his solicitors that he too would plead guilty.
75 On 7 May 2001 the applicant and Li entered pleas of guilty. Nguyen maintained his pleas of not guilty but was subsequently convicted by a jury of the two counts charged against him, following trial.
76 The learned sentencing Judge ultimately sentenced the applicant to 5 years imprisonment and ordered that he serve a non-parole period of 2-1/2 years before becoming eligible for parole. He sentenced Li to 7 years imprisonment with a non-parole period of 3-1/2 years. Nguyen was sentenced to 5 years imprisonment with a non-parole period of 2 years 9 months.
(Page 15)
77 The applicant's grounds of appeal are set out in his notice dated 29 May 2001 as follows:
"1. The learned sentencing Judge erred by failing to properly apply the parity principle, such error giving rise to a justifiable sense of grievance with respect to the sentence imposed upon the Applicant.
Particulars
- a) The learned sentencing Judge indicated a starting point of 6 years and six months for each of the Applicant's 3 offences before taking into account the relevant mitigating factors, whereas the sentences imposed upon the Applicant's co-accused Phuong Due Nguyen were terms of 5 years and six months for each of his offences, such sentences being imposed upon conviction following trial.
b) The learned sentencing Judge indicated that the Applicant's plea of guilty afforded him a discount of 6 months, whereas the Applicant's co-accused Shi Ping Li received a discount of 12 months for his plea of guilty.
2. The learned sentencing Judge erred in the exercise of his discretion by failing to give sufficient weight to the following mitigating factors, thereby failing to reduce the Applicant's sentence accordingly:
Particulars
- a) The Applicant's plea of guilty
b) The Applicant's co-operation with the relevant authorities."
(Page 16)
- community at great cost financially and personally to the community and the members of it.
79 The facts as broadly described by his Honour were that an arrangement had been made by a person to post from Hong Kong a number of envelopes containing heroin, to certain nominated addresses in Perth.
80 On 27 January 2000, Li and another by the name of Lu, went to Bayswater Car Rentals and hired a white Toyota. Sometime later, Li applied for residential tenancy of one of the nominated addresses at Leeming. He otherwise ascertained that each of the properties referred to in the indictment were vacant and on 28 January 2000, he and another person visited at each of them and checked the letterboxes.
81 However, in the meantime, the envelopes containing greeting cards which in turn contained heroin, had been detected in the course of post. The Australian Federal Police decided to deconstruct the envelopes and the cards, remove the heroin and replace it with a substitute. That was done. It had not been completed and the envelopes had not been sent on by 28 January.
82 Federal Police had also accessed Li's telephone service and telephone monitoring and physical surveillance had been put in place.
83 The learned sentencing Judge concluded that of the three offenders, it was Li who played the most active role by establishing the facility necessary to arrange collection of the heroin.
84 The total amount of the drug involved in the five counts relating to Li was 208.9 gms, which comprised 149.9 gms of pure heroin.
85 As to the roles of the applicant and Nguyen, his Honour said (AB 50):
"The facts that specifically relate to you, Mr Ma, are that on 31 January 2000 you attended at Wanneroo Road, Burns Avenue and Wynyard Street and picked up a pink envelope from each of those addresses. A subsequent search of your residence located two of the envelopes in a walk-in bedroom robe. You were interviewed and a piece of paper was located in your wallet on which was written the three addresses that you had attended. The third envelope was located hidden behind a number of telephone books.
(Page 17)
- In addition, electronic scales containing traces of heroin were found in your possession. Initially you denied possession of the envelopes but later admitted possession, stating that you had collected the envelopes at the request of Ah Ping, a reference apparently to your co-offender. You claimed not to know what was in the envelopes but admitted that you were going to be paid for collecting the envelopes.
On 30 April last your counsel indicated to the prosecution that it was your intention to plead guilty to the charges against you and on the following day you spoke to the police, providing information as to your involvement and other information intended to be of assistance. Again the case against you was strong. Clearly you played an active and important role in the importation although at a lower level than Mr Li.
The facts relating to you, Mr Nguyen, are that as a result of police accessing your telephone it became apparent that you were actively engaged in arrangements to collect some of the heroin when it arrived although the intercepted calls seem to suggest that you were, to an extent, being guided and encouraged by another or others. In the result on 2 February 2000, as a result of a prior arrangement made, you attended at 17 Wethered Street, Leeming and 7B Krugger Place, Leeming and there collected two envelopes which you hoped would have contained a significant quantity of heroin.
You were observed to collect the envelopes, were subsequently arrested and the envelopes discovered in your vehicle. You told the police that you had arranged to collect the envelopes on behalf of a friend and believed them to contain sponsorship papers. You continued to maintain and advance that falsehood at trial although it is to be noted that you declined to give evidence.
In the result, there can be no suggestion of remorse on your part. I am satisfied, however, on all the material that of the three of you played the lesser role. It is on those facts that each of you are to be sentenced. It is not necessary to identify with particularity your position in the hierarchy of this drug importation, it being sufficient to say that each of you was actively and necessarily engaged in the receipt upon its arrival in this country of the narcotic substance heroin.
(Page 18)
- You were engaged in a covert operation designed to achieve that end and would, no doubt, if these activities had not been discovered, then [sic: have] been actively involved in the dissemination of at least a substantial part of the heroin in the community for financial reward."
86 His Honour then turned to matters personal to each of the offenders, albeit noting that this Court has indicated on numerous occasions the limited extent to which personal matters can aid in mitigation of drug offences.
87 In this application there is no complaint made that the learned sentencing Judge misapprehended any relevant facts arising out of, or in respect of the applicant's background or personal circumstances, nor that he made any other error in relation to those. It is therefore unnecessary to detail them here. He did note that following the applicant's arrest, he maintained his plea of not guilty until a very late stage, and then changed that and indicated an intention to cooperate with the authorities. In that regard his Honour said (AB 53):
"It must be said that to an extent at least your early cooperation had an exculpatory basis and at the time of the indication your intention to plead guilty had a limited value, nevertheless you are entitled to a discount for it."
88 He found that both Li and the applicant by their pleas of guilty, had indicated remorse for their conduct and an appreciation of the enormity of it - although he reiterated that the plea came at a late stage and in the face of what he would regard as the inevitable.
89 In respect of Li, his Honour took the view the appropriate starting point to reflect his criminality would have been a sentence of 8 years imprisonment, but he reduced that to a term of 7 years by reason of the plea of guilty. He directed there be a non-parole period of 3-1/2 years. The sentence overall was obviously regarded by his Honour as a proper reflection of the overall culpability of the offender, it being one course of criminal conduct and he accordingly directed that there be a sentence of 7 years imprisonment on each of the five counts, but that they be concurrent.
90 In relation to the applicant, the learned sentencing Judge considered the appropriate starting point would have been a term of 6 1/2 years imprisonment. He reduced that by 6 months to reflect the plea of guilty and a further 12 months to acknowledge the applicant's cooperation. That
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- 5 year term was then imposed in respect of each of the three counts to which he had pleaded guilty, but these terms were ordered to be served concurrently.
91 His Honour considered the appropriate sentence to acknowledge Nguyen's criminality was one of 5-1/2 years imprisonment. There was of course no reason to discount that for any plea of guilty or cooperation.
92 The position may be summarised in the following two tables:
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Quantity of Heroin (net) |
30/1/00 |
30.2 g 29.7 g 29.1 g 29.7 g ___________________ Total 150.9 g |
31/1/00 |
29.1 g 29.7 g ___________________ Total 88.5 g |
2/2/00 |
30.2 g ___________________ Total 62.2 g |
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94 The applicant was under surveillance by Federal Police officers when he collected three pink envelopes, one from each of the nominated addresses. He was subsequently apprehended by police and the residence at which he was staying was later searched. As appears from his Honour's sentencing remarks, two of the pink envelopes were found hidden in a walk-in robe in one of the bedrooms; the third was found hidden behind telephone books in another room. A piece of paper on which the three addresses were written was located in the applicant's wallet. Police found a set of electronic scales, subsequent analysis of which revealed traces of heroin. They also found a number of small plastic bags of a kind suitable for holding coins.
95 Although during the search and subsequently, the applicant admitted going to the addresses, he initially denied knowledge of the two envelopes found in the walk-in robe and having collected mail from the addresses. Further, he initially said there were only two letters and denied there was a third. When it was put to him that a third had been found, he admitted collecting that and said the person he knew as Ah Ping had given him each of the addresses and asked him to collect envelopes from them. His explanation for the electronic scales was that they were to weigh gold.
96 In the course of his interview, the applicant said that Ah Ping had told him the envelopes contained valuable items but not what the contents were. He was to be paid $300-$400 by Ah Ping for collecting the envelopes. At interview, when asked why he had originally lied with respect to the third envelope, he said he was worried that Ah Ping would "scold" him.
97 Because the applicant's statement to police went only to the involvement of Li (Ah Ping) he was not called at Nguyen's trial. Nonetheless, the Crown conceded on sentence that had he given evidence
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- at a trial involving Li and had he been believed, his evidence would have been of substantial assistance to the Crown and he was therefore entitled to receive an appropriate discount on sentence for that.
98 On the hearing of the application, counsel for the applicant conceded that if the applicant's sentence stood alone it could not be said to be outside a proper discretionary range. As I see it, the applicant's case really comes down to arguments put in two ways: first, it is said that a discount of 7.7 per cent for the applicant as against one of 12.5 per cent for Li (albeit the former was off a lower base) was both quite inadequate in principle for the applicant's plea of guilty, and in any event was such as to give rise in the applicant to a justifiable sense of grievance; secondly, the end result of the sentencing process which was that the applicant who had pleaded guilty and cooperated with the authorities, received a sentence of only 6 months less (and a non-parole period only 3 months less) than a co-offender who had pleaded not guilty and been convicted after trial without cooperation, demonstrated a miscarriage of the sentencing discretion.
99 A sentencing court is obliged to take into account the fact that an offender has pleaded guilty (Crimes Act 1914 (Cth) s 16A(2)(g)).
100 In Atholwood v The Queen (1999) 109 A Crim R 465, Ipp J said (at [9]) that a bare plea of guilty, even at a late stage, is a mitigating factor.
101 Even where not necessarily indicative of remorse, there are reasons of high policy why a plea of guilty should attract a substantial discount on sentence. That would ordinarily range between 25 and 35 per cent: Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995; Little v The Queen [2001] WASCA 87; McKeagg v The Queen [2001] WASCA 99 and Radebe v The Queen [2001] WASCA 254.
102 True it is that the allowance to be made for a plea of guilty still remains within the discretion of a sentencing Judge, but in the absence of some specific reason why it should be less, it could normally be expected to be within that range.
103 Counsel for the respondent, Mr Plummer, submits that if an early plea is to be encouraged by a greater discount the earlier it is made, it necessarily follows that the discount will be less the later the plea is made. That of course must be accepted. Nonetheless, the discount for even a late plea should ordinarily be substantial for the reasons articulated by
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- McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Radebe at [16] - [28].
104 On the face of it, a discount of approximately 8 per cent here looked at in isolation, would appear to have been quite insufficient, even making full allowance for the fact that the plea was not indicated until shortly before trial.
105 The applicant raises a parity argument here too: the submission is that he is justifiably aggrieved by the fact that for his plea of guilty, Li was given a discount of 12.5 per cent - and coming off a higher starting point, that represented an actual reduction of 12 months imprisonment as against 6 months for the applicant. There is, I think, some merit in this submission. The applicant was the first of these offenders to indicate a plea of guilty. It was only after he had done that and signed a statement for the police giving effect to his undertaking to cooperate with them, that Li pleaded guilty. In principle it might reasonably be expected that the percentage discount applied to each would at least be the same, or if anything, greater in favour of the applicant - yet the reverse was the case.
106 For the respondent it is said that it is necessary to have regard to the allowance made by the sentencing Judge for the plea of guilty and for the applicant's cooperation with the authorities together, rather than in isolation, and looked at in that way the total discount of 23 per cent was appropriate.
107 Section 21E(1)(a) of the Commonwealth Crimes Act requires a sentencing court to specify the extent to which a sentence is being reduced for the offender's cooperation. It has been held that this applies only to a promise of future cooperation (R v Nagy [1992] 1 VR 637). The purpose of that is to enable the Director of Public Prosecutions to appeal against sentence on the ground that the offender has not cooperated (or not cooperated to a satisfactory extent). The appeal court, if satisfied that ground has been made out, must then substitute the sentence that would have otherwise have been imposed (s 21E(3)). It would clearly be inconsistent with the legislative purpose, and unjust, for an offender to have their sentence increased to that extent on appeal on the ground of failure to cooperate, in circumstances in which the reduction originally made also included a component for the plea of guilty.
108 In fact of course, in the present case, the learned sentencing Judge specified 12 months as the relevant discount. At AB 55 his Honour described that as being to acknowledge the applicant's cooperation. In the
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- context, and having regard to the nature of the cooperation as it had been explained to his Honour, it is apparent he was referring to the applicant's past cooperation - which thus did not fall under s 21E, notwithstanding his Honour's acknowledgment that it should be so attributed. That his Honour himself recognised it was not future cooperation he was talking about is reflected in his comment (at AB 56) that:
"That's attributable. Although in the context of this case and as it has now been resolved, it seems it will never become a matter of consequence."
110 Where the court is concerned with some allowance for past cooperation, as here, there is no obligation on the court to specify the reduction so allowed, although the practice often is to do so - as it is to specify the discount for a plea of guilty. There is an obligation upon a court to specify the fact and extent of a reduction for cooperation when sentencing for State offences (s 8(5) Sentencing Act 1995 (WA)).
111 None of this is to say the exercise is simply mathematical - clearly it is not. The object must always be to determine a sentence which is appropriate and proportionate to the circumstances of the offence and the circumstances of the offender. In the end the features of the particular case may necessitate sentencing reductions less than they might ordinarily be for a plea of guilty and cooperation. I accept the respondent's submission that care must be taken to ensure that the ultimate sentencing result produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that it constitutes an affront to community standards (R v Gallagher (1991) 23 NSWLR 220). But in the absence of some feature of that kind, and unless to do so would result in an obviously inadequate sentence, in principle the discount afforded for a plea of guilty should in my view be the same whether or not the offender is given a further reduction for cooperation beyond that.
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112 In R v Cartwright (1989) 17 NSWLR 243 a discount of one-third for prompt and extensive cooperation was held to be inadequate - the court considered the appropriate discount was at least one-half.
113 In their joint judgment, Hunt and Badgery-Parker JJ noted that the leniency to be afforded in sentencing for assistance or cooperation given to authorities had been the subject of a number of decisions of the New South Wales Court of Criminal Appeal. They also referred to R v Golding (1980) 24 SASR 161; 3 A Crim R 26, a decision of the Supreme Court of South Australia in which Wells J discusses the relevant English authorities, and R v Hayes (1981) 3 A Crim R 286 in which the Western Australian Court of Criminal Appeal approved of the judgment of Wells J. Both of those decisions were followed by the New South Wales Court of Criminal Appeal in R v Perez-Vargas (1987) 8 NSWLR 559. As their Honours observed in Cartwright (250):
"The main point made in R v Golding and in R v Perez-Vargas was that, in order to encourage other offenders to give useful information to the authorities and in order to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information, a substantial discount must be given (and be seen to be given) for significant assistance provided by the particular offender: see also R v Heard aka Summers (1987) 11 NSWLR 46 at 49, 50."
114 Their Honours then turned to a consideration whether a sentencing discount for an offender's cooperation is to be justified upon the subjective issue of the offender's remorse or contrition or whether there is an independent basis for the giving of such a discount where, no matter what the subjective intention or knowledge of the offender, the information which has been provided has in fact objectively been of assistance to the authorities. Both propositions find support in the cases. Their Honours concluded it is not necessary for the information to have been effective in the law enforcement processes before a discount can be given - although if it has been, that may attract a greater discount. Whilst acknowledging that in no sense should any of the decisions of that Court with respect to sentencing discounts be construed as intending to circumscribe the exercise of the sentencing discretion in a particular case, their Honours summarised the basic principles to be distilled. They said (ibid 252 - 253):
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- "There are, however, certain broad general principles which may be discerned from all these cases and which may be stated as being applicable to the discount to be given for assistance provided to the authorities. It is, we feel, unnecessary to identify the source from which each is taken. Many of them overlap. None is necessarily more important than the others. The weight to be given to each will depend upon the circumstances of the particular case.
It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.
In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.
Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as couldsignificantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the
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- authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source - or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.
All of these matters should be dealt with in a broad and general way and without descending in minute detail. It would entirely subvert the benefit otherwise afforded to the public interest, if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective."
115 In Duffy (1996) 85 A Crim R 456, Kennedy J said (at 457):
"It is not in question that, purely upon the basis of expediency, a sentence which would otherwise be imposed upon an informer may be reduced by reason of assistance he has given to the police. The amount by which what would otherwise be the sentence should be reduced will depend upon a number of variable features, including, in particular, the quality and quantity of the material disclosed by the informer, its accuracy and his willingness to confront other offenders or to give evidence against them. It has repeatedly been said that one of the most effective weapons in the hands of the police is the informer, because once the identity of a suspect can be established, even if he does not confess, it will often be possible to obtain scientific or other evidence to connect him with the crime, so as to corroborate the informer. It has also been said to be to the advantage of law abiding citizens that criminals should be encouraged to inform upon their criminal colleagues. An
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- expectation of a substantial reduction in what would otherwise be a proper sentence is required in order to produce the result sought."
116 Neither Kennedy J nor Scott J was persuaded the sentencing Judge had erred in giving some, but not a great, reduction in the sentence which would have otherwise have been imposed on the applicant for his plea of guilty to a charge for which there was "no possible defence" and no grounds for a significant reduction for assisting the police. The information provided by him was characterised by its staleness and vagueness and was of little value because of the manner in which it was supplied. Both Wallwork J (dissenting) and Scott J referred to what had been said by Burt CJ in Hayes v The Queen [1981] WAR 252 at 253 - 254:
"The English case law bearing upon the question appears to me to reveal a pragmatic case by case approach. They show that the fact that the prisoner has informed and in this way helped the police and played his part in bringing others to justice can be a potent mitigating circumstance when that prisoner comes to be sentenced. The weight, if any, to be given to that fact in any particular case will vary according to the significance in terms of law enforcement of the information given and, in so far as it can be discerned, according to the reasons for giving it. And the effect which the giving of it will have upon the prisoner both in the serving of his sentence and afterwards is not to be overlooked. The law certainly is not concerned to underpin the honour of the thief among his fellow thieves."
117 Burt CJ went on to say (at 254; 287 - 288):
""But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account."
118 The principles revealed by the authorities may in my view be summarised as follows:
1. A substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that
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- demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so.
- 2. Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.
3. The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4. The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount.
119 That brings me to the question of disparity. The principles and authorities were helpfully set out by Kennedy J in Goddard v The Queen (1999) 21 WAR 541 at [17] - [31] and it is not necessary for me to repeat them here. There is one aspect which arises from the submissions made on this application, but I shall return to that below.
120 The general principle is of course, that all other things being equal, offenders who have been party to the commission of the same offence should receive the same sentence. The principle recognises conversely, that different sentences in respect of offenders who are convicted as parties to the same offence may nonetheless be imposed where the circumstances are different. Veneziani v The Queen [2001] WASCA 246 is an illustration of the converse limb of the principle. It must be recognised that the offenders in the instant case were not co-offenders in the sense that they were parties to the same offences, but the circumstances nonetheless do, in my view, give rise to the consideration of parity.
121 In Veneziani the applicant had been convicted after a trial by jury and sentenced to a total of 14 years imprisonment. That was made up of 12 months on each of four counts of stealing a motor vehicle, 7 years on each of three counts of armed robbery in company and 8 years for a further offence of armed robbery. All sentences were made concurrent except one of the 7 year terms for one count of armed robbery was made cumulative upon one of the other 7 year terms, thus producing the overall sentence of 14 years imprisonment.
122 One co-offender ("Pridham") pleaded guilty and testified against the applicant and another co-offender ('Tyler") at their trial. Pridham had earlier been sentenced by a different Judge to a total of 4 years imprisonment, being 6 months on each of the four counts of stealing a
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- motor vehicle and 12 months on each of the four counts of armed robbery. The armed robbery sentences were ordered to be served cumulatively, producing an aggregate term of 4 years imprisonment.
123 After trial, Tyler was sentenced to 12 months on each of the four counts of stealing a motor vehicle, 4 years on each of three of the armed robberies and 5 years for the further armed robbery. All sentences were ordered to be served concurrently except one of the 4 year sentences was to be served cumulatively so producing an aggregate sentence of 8 years imprisonment.
124 The applicant's appeal was on the sole ground of parity. Malcolm CJ (with whom Wallwork and Templeman JJ agreed) held the different sentences were justified. At [37] - [40] his Honour said:
"7 In my opinion, having regard to all of the circumstances, the total sentence of imprisonment for 14 years imposed upon the applicant by the learned trial Judge was well within the range of a sound discretionary judgment and appropriately reflected the seriousness of the offences of armed robbery in which he was involved and the role that he played. Furthermore, having regard to the eight serious offences which were involved and the fact that they required a significant degree of planning, in respect of which the applicant played a leading role, the total sentence of imprisonment for 14 years could not in any way be described as excessive, whether in relation to the application of the totality principle or otherwise.
38 I accept the submission on behalf of counsel for the Crown that to the extent that the applicant had a sense of grievance arising from the leniency afforded to the co-offender Mr Pridham, such was not a legitimate sense of grievance. Not only did Mr Pridham plead guilty but he gave evidence for the Crown. In this case, Mr Pridham entered a plea of guilty at an earlier stage and was prepared to expose himself to the risks and dangers of giving evidence against his co-offenders. Consequently, he was entitled to substantial mitigation of the sentences which would otherwise have been imposed upon him. Given the circumstances, I do not consider that the applicant would be entitled to feel any justifiable sense of grievance at the extension of comparative leniency in
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- the sentencing of Mr Pridham: cf Krakouer (1999) 107 A Crim R 408 at 413 per White J."
125 Earlier in Goddard, supra, this Court had to confront directly the question whether an otherwise appropriate sentence imposed upon an applicant should be reduced on the ground of parity in light of a wholly inadequate sentence imposed on a co-offender.
126 There the applicant had been sentenced to an aggregate term of imprisonment of 7 years in respect of three offences of stealing a motor vehicle and two offences of armed robbery in company charged on indictment, together with 15 offences pursuant to s 32 of the Sentencing Act 1995 (WA). Despite the applicant's youth, he had some 67 prior offences, including 27 burglaries and 13 stealing offences in respect of which a variety of orders had been made including sentences of detention for up to 4 years.
127 Kennedy J considered the sentences did not fall outside the range of a sound discretionary judgment, but nor were they at the bottom of the range. The difficulty in that case related to the sentences imposed by another Judge some two weeks later on the applicant's co-offender "R". In the view of Kennedy J, those sentences were such as to clearly raise an issue of manifest disparity.
128 R had been charged on indictment with, and pleaded guilty to, each of the counts on which the applicant had been convicted on his own pleas of guilty. In addition, R had pleaded guilty to one count of having stolen a motor vehicle, one of armed robbery of a pharmacy in company and one of stealing cash from an unlocked motor vehicle. He had previous convictions, although unlike the applicant, he had not previously been sentenced to a period of detention. The background of the applicant and R were not markedly dissimilar. Both involved physical and mental abuse and significant deprivation. The result of the sentencing process was that R was given an effective sentence which was one-half of that imposed upon the applicant. As to that, Kennedy J said ([16]) that R's sentence was clearly inadequate having regard to the number of serious offences to which he had pleaded guilty.
129 His Honour then considered the relevant principles referring, inter alia, to Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295.
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130 Apropos the problem presented by comparison of an applicant's sentence with an obviously inadequate sentence imposed on a co-offender, his Honour said ([29] - [31]):
"29 The views which have been expressed in cases where a marked disparity is evident between the sentences imposed upon co-offenders, but where the lower sentence is clearly inadequate, are not uniform. Some of the judgments present a problem in their use of language, particularly with respect to the use of the words "inadequate" and "inappropriate", which have led to difficulties in reconciling different statements in different cases - see Pecora v R [1980] VR 499, at 503. In a number of cases, Australian courts have indicated that a sentence may be reduced in the case of a manifest or excessive disparity, even though it may result in the reduction of a sentence to a point where, standing alone, it might be regarded as inadequate - see, for example, Lowe's case (supra), per Mason J at 613 - 614; R v Goldberg [1959] VR 311, at 312; R v Maslen (1995) 79 A Crim R 199, at 208; and R v Hodges (1997) 95 A Crim R 85, at 96.
30 A narrower view than that taken by Mason J was expressed by Brennan J in Lowe v The Queen (supra) at 617, whilst in R v Robertson (1989) 44 A Crim R 224, this Court, differently constituted, expressed the view that the parity argument must give way when a patently inadequate sentence has been imposed on a co-offender. With respect, it is one thing to decline to lower an otherwise appropriate sentence to the level of a patently inadequate sentence, but it is quite another to decline to make any reduction at all, particularly when the higher sentence is not such as to be at the lowest level of the appropriate range and could, on appeal, fairly be lowered to a level "which might be regarded as inadequate". The latter, it would seem, was the approach adopted by Anderson J in R v Capper (1993) 69 A Crim R 64, at 74. He did not express the view that the parity argument must fail when a patently inadequate sentence has been imposed on a co-offender. See also Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999, in which the view expressed by Anderson J
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- was adopted. See also R v Ruane (1979) 1 A Crim R 284, at 286, and R v Tisalandis [1982] 2 NSWLR 430, at 437 - 440, (compare Street CJ at 431 - 432 and Nagle CJ at CL at 441). The application of this test would give parity a restricted application.
- 31 In my opinion, the better view, having regard to the underlying principle, is that Courts of Criminal Appeal may intervene in the event of there being a manifest disparity in the sentences imposed upon co-offenders, notwithstanding that they regard the sentences imposed upon the applicant as falling within the range of the exercise of a sound discretionary judgment and notwithstanding that they regard the co-offenders' sentences as being inadequate. As indicated by Gibbs CJ and Mason J in Lowe's case (at 610 and 611 respectively), "marked disparity" is itself a ground for reducing the more severe sentence, provided, of course, that the disparity is such as to give rise to a justifiable sense of grievance. See also R v MacGowan (1986) 42 SASR 580, per King CJ at 583. But it does not follow from this that the court will reduce a higher sentence so that it equates in all respects to the sentence imposed on the co-offender. The position was explained by Gleeson CJ when sitting in the Court of Criminal Appeal in New South Wales in R v Reardan (1996) 89 A Crim R 180, at 182. He said:
'[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broad discretionary exercise.'
This is the discretion of which Gibbs CJ also spoke in Lowe's case. See also R v Cox (1991) 55 A Crim R 396, per Thomas J at 401 - 402."
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- applicant "to the point where it might be regarded as inadequate". His Honour would have reduced the head sentence to 5 years and 6 months.
132 Pidgeon and Murray JJ took a different view. Pidgeon J saw the dilemma being that although the applicant would have a sense of grievance by reason of the fact that his co-offender had received a sentence of half of that imposed on him, if the court took the simple expedient of reducing his sentence to that of his co-offender, then the community would have a sense of grievance by reason of a crime that is prevalent and which would be repeated by the applicant not being adequately punished. His Honour drew attention to the authorities and texts dealing with the question, referred to by Wallwork J in R v Capper (1993) 69 A Crim R 64. Pidgeon J was of the view that the sentence imposed on the applicant was as lenient as could be justified and any lesser sentence would be wholly inadequate. Given that, he did not consider that an objective bystander would see the applicant as being unjustly treated. Although the applicant would undoubtedly think it unfair that his co-offender received the lesser sentence, it was not for the court to rectify that situation by reducing the applicant's sentence.
133 Murray J was essentially of the same view as Pidgeon J. He noted that the case had to be dealt with in the framework of s 689(3) of the Criminal Code (WA). His Honour said the effect of that provision was that the court could only quash a sentence or term of imprisonment on the basis of the parity principle if it were to conclude that it was open to the court to pass a more lenient sentence or impose a shorter term of imprisonment:
"… in which case the imposition of that term will mark the extent to which this Court may go to reduce the disparity." ([47]).
- That conclusion, his Honour said, was consistent with the decided authorities such as Lowe and Postiglione. He referred to the following passage from the judgment of Anderson J in R v Capper, supra at 74:
"The relevant principles do not compel the court to following the sentence imposed on the co-offender if it considers that would result in a wholly inappropriate sentence. When a co-offender has been treated with excessive leniency, justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of
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- sentences for this kind of offence in light of the matters personal to the prisoner including his record."
- (See also Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999).
134 In summary, Murray J concluded (at [61])"
"The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing Judge and the appellate court required to substitute a sentence which should have been passed by the court at first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender. That is the dictate of the common law now enshrined in this State in the Sentencing Act 1995 (WA) s 6(1) which provides that "a sentence imposed on an offender must be commensurate with the seriousness of the offence" determined as the section goes on to provide. In that case, the proper application of the parity principle will lead the court making the comparison with the earlier sentence to impose a sentence which is as close to the previous sentence as may be achieved without error on its part."
135 In my view there is such disparity evident in the present case as to give rise in the applicant to what would objectively be regarded as a justifiable sense of grievance. However his sentence might be deconstructed, the overall effect is that the disparity between the term of both his head sentence and non-parole period, and the sentences imposed on his co-offenders, reveal that he was given substantially less discount for his plea of guilty and (past) cooperation with the authorities than the circumstances called for. To put it in the terms of s 689(3) of the Criminal Code (WA), a different sentence should have been passed on the applicant to properly reflect his position comparatively to the positions of his co-offenders.
136 I would not interfere with the staring point of 6-1/2 years imprisonment.
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137 In my view a reduction of 12 months should have been allowed for the pleas of guilty. That would represent a discount of 15 per cent, which would be consistent with the lateness of the plea. It would also better reflect the applicant's position in relation to Li. I would allow a further reduction of 18 months for the applicant's past cooperation with the authorities. That would represent a discount of 23 per cent, which again I would consider as more consistent with principle, acknowledging both the need for a substantial discount for the reasons articulated in the authorities (including the applicant's expectation that he would have to testify against Li) and the relative lateness of the cooperation, the fact that it was initially made only when he was confronted with evidence and the generally exculpatory motivation for it.
138 This would produce a sentence (on each of the counts) of 4 years imprisonment - the overall discounts representing a reduction of some 38 per cent, which I would consider appropriate in the circumstances. The non-parole period I would set at 50 per cent of the total, namely 2 years. The sentences should be concurrent.
139 I would accordingly grant leave to appeal, set aside the sentences imposed in the court below and for each of them substitute a sentence of 4 years imprisonment, all to be served concurrently, and fix a non-parole period of 2 years.
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