McConnell v The State of Western Australia
[2020] WASCA 59
•24 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCCONNELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 59
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 18 FEBRUARY 2020
DELIVERED : 24 APRIL 2020
FILE NO/S: CACR 107 of 2019
BETWEEN: MICHAEL JOHN MCCONNELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 51 of 2018
Catchwords:
Criminal law - Sentence appeal - Sale or supply of methylamphetamine and MDMA in contravention of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) - Whether sentence imposed infringed parity principle - Turns on own facts
Legislation:
Misuse of Drugs (Methylamphetamine Offences) Act 2017 (WA)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal is refused on ground 2
Leave to appeal is allowed on ground 3
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnden v State of Western Australia [2014] WASCA 161
Beins v The State of Western Australia [2014] WASCA 54
Birdsall v The State of Western Australia [2019] WASCA 79
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
House v The King [1936] HCA 40; (1936) 55 CLR 499
HSV v The State of Western Australia [2020] WASCA 5
Jardim v The State of Western Australia [2011] WASCA 83
Musulin v The State of Western Australia [2020] WASCA 18
Ngo v The Queen [2017] WASCA 3
Roffey v The State of Western Australia [2007] WASCA 246
Stanley v The State of Western Australia [2018] WASCA 229
Stoysich v The State of Western Australia [2014] WASCA 208
Wong v The State of Western Australia [2019] WASCA 8
JUDGMENT OF THE COURT:
Overview
The appellant was convicted, following his pleas of guilty, of two offences. The more serious was possession of 60.94 grams of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA)[1] (count 1). The other was possession of 2.5 grams of MDMA with intent to sell or supply, also contrary to s 6(1)(a) of the MDA (count 2).
[1] Referred to as the 'MDA'.
The offences occurred after the commencement of the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA).[2] The Amending Act had the effect of increasing the maximum penalty for a crime under s 6(1) of the MDA that involved a 'trafficable quantity of methylamphetamine' to imprisonment for life.[3] Previously the maximum penalty for crimes under s 6(1) relating to methylamphetamine had been one or both of a fine of $100,000 or imprisonment of 25 years[4] (that being the maximum penalty that continued to apply to count 2).
[2] Referred to as the 'Amending Act'. The relevant provision of the Amending Act (s 7(2)) commenced operation on 18 September 2017: Amending Act s 2(b).
[3] See now MDA s 34(1)(a); cf MDA s 34(1)(aa).
[4] MDA s 34(1)(a) (before the commencement of the Amending Act).
A trafficable quantity of methylamphetamine is a quantity not less than 28 grams[5] (ie about 1 ounce).
[5] MDA s 34(1A), sch VII div 1 item 8.
On 13 May 2019 the appellant was sentenced in the District Court (Lonsdale DCJ) to 5 years and 9 months' immediate imprisonment on count 1. He was also sentenced to 2 years' immediate imprisonment on count 2. However, the sentence on count 2 was made concurrent with the sentence on count 1 resulting in a total effective sentence of 5 years and 9 months' immediate imprisonment. An order was made that the appellant be eligible for parole.
The appellant has applied for leave to appeal against his sentence on count 1 and his total effective sentence. The application for leave was referred to the hearing of the appeal. The appeal raises issues of manifest excessiveness, totality and the parity principle.
For reasons which follow, the appellant has established an infringement of the parity principle. After the appellant was sentenced, his co-offenders each received sentences of 2 years 8 months' immediate imprisonment for the offending which was the subject of count 1. Unlike the appellant, they did not plead guilty. While the appellant's culpability for the offences was greater than that of his co-offenders, when regard is had to the appellant's guilty pleas and all other sentencing considerations (including those personal to the offenders), the extent of the marked disparity between the sentences was not justifiable. The fact that the appellant received a sentence over three years longer and over double that received by his co-offenders gives rise to an objectively justifiable sense of grievance on his part. The appeal should be allowed and the appellant sentenced to a total effective sentence of 4 years 8 months' immediate imprisonment.
Circumstances of the offending
At sentencing the appellant accepted the statement of material facts as read by the State.[6] Based on those facts, and the findings of the sentencing judge, the circumstances of the offences were as follows.[7]
[6] ts 54.
[7] See ts 51 - 52, 68.
On 26 January 2018 at about 5.20 am the appellant was a passenger in the front passenger seat of a car travelling north on the Brand Highway in Greenough. Also present in the car was a Rommel Lauder (the driver) and a Kurtis Brennan (in the back passenger seat). The car was stopped by police officers at a carpark on Flat Rocks Road and searched. A total of 60.94 grams of methylamphetamine was located in three locations. In addition the officers located nine MDMA tablets weighing 2.5 grams and a 'tick list' containing a list of names and money owed.
More specifically, the drugs as located comprised:
1.3.41 grams of methylamphetamine of 81% purity located in a toiletry bag in the driver's footwell. (Also found in that location was a set of electronic scales).[8]
2.0.27 grams of methylamphetamine located in a black plastic cylindrical container in the driver's side door compartment (together with a glass pipe).[9]
3.The following as located in separate clipseal bags in a black Nike bag behind the glove box:[10]
(a)2.5 grams of MDMA (nine tablets) of 15% purity;
(b)1.56 grams of methylamphetamine (the purity of which was not mentioned); and
(c)55.7 grams of methylamphetamine of 77% purity.
[8] ts 51.
[9] ts 51.
[10] ts 51 ‑ 52.
Also located was 0.19 grams of powder containing benzocaine, cocaine and lidocaine.[11]
[11] ts 52.
Initially, after his arrest and in the course of being interviewed at Geraldton Police Station, the appellant denied knowledge and ownership of the drugs.[12] Subsequently, the appellant pleaded guilty after his committal for trial.
[12] ts 52.
The appellant, by his counsel, admitted that he would have sold a portion of the drugs to a small group of friends.[13] There was acceptance that there was an element of commercial gain.[14] But it was also said that some of the methylamphetamine was to be smoked at a last drug‑taking session before the appellant entered rehabilitation.[15] Thus the appellant was going to sell into the community and also apply the methylamphetamine to his personal use.[16] There was evidence before the sentencing judge that, when he committed the offences, the appellant had been booked to attend rehabilitation about two days later.[17]
[13] ts 55.
[14] ts 64.
[15] ts 55.
[16] ts 62.
[17] WAB 87 - 88.
Personal circumstances
At the time of his offending the appellant was 29 and living in the Geraldton area.[18] He had a troubled childhood.[19] The appellant suffered some mental health difficulties having been diagnosed with depression at 17.[20] He had used illicit substances (including methylamphetamine) to try and manage his mental health struggles. In that respect the appellant had continuing treatment needs.[21] The appellant was not working at the time of his offending, but had previously worked in a number of jobs and was a good worker. He had prospects of employment on release.[22]
[18] ts 69; WAB 74 pars 5, 11.
[19] ts 69.
[20] ts 70.
[21] ts 70.
[22] ts 69.
The appellant had considerable support from family and friends.[23] The sentencing judge referred to letters of support that had been provided from the appellant's mother,[24] the mother of his young son[25] and a more recent partner[26] as well as from a former employer (who remained willing to employ the appellant in a supervisory capacity in the scaffolding industry).[27] Her Honour concluded that the appellant was well‑loved by family and friends.[28]
[23] ts 69 - 70.
[24] WAB 79 - 80.
[25] WAB 84.
[26] WAB 81 - 82.
[27] WAB 83.
[28] ts 70.
It was common ground that at the time of the offending the appellant had a prior criminal record including, from September 2016, a record for drug offences dealt with in the Magistrates Court. The latter included supply of a prohibited drug on 8 February 2017 and various simple possession charges. Counsel for the appellant informed this court, without any objection by the State, that the supply offence concerned 0.01 grams of methylamphetamine which the appellant admitted sharing with a passenger when they ran out of fuel.[29] The appellant received a pre‑sentence order (PSO) in respect of, among other things, the supply offence.
[29] Appellant's submissions par 11 WAB 11; appellant's undated supplementary submissions par 24; appeal ts 6.
The offences on 26 January 2018 occurred while the appellant remained subject to the PSO. The offences were a breach of the PSO and also a breach of conditional bail to which the appellant was subject at the time of the offences.[30] (After being sentenced in the District Court the appellant received a further 1‑month sentence for the offences the subject of the PSO. However, this was to be served concurrently with the 5 year 9 month term the subject of the appeal).[31]
[30] ts 60. See also WAB 69 - 72.
[31] WAB 69 - 70.
Sentencing remarks
No issue is taken with any aspect of the sentencing judge's remarks in sentencing. Accordingly, it is not necessary to refer to those remarks in detail. It suffices to say that her Honour outlined the facts of the offending and the appellant's personal circumstances. The sentencing judge also referred to relevant sentencing principles. No issue is taken with her Honour's recitation of the relevant sentencing principles.
The sentencing judge was aware of, and referred to, the maximum penalty for the methylamphetamine offence.[32] Her Honour was also aware of, and said that she was 'factoring in', that Parliament had increased the maximum penalty for possession of a trafficable quantity of methylamphetamine.[33]
[32] ts 68.
[33] ts 71.
As well as referring to the offending and the appellant's personal circumstances, the sentencing judge made findings that:
1.The offending was 'self-evidently very serious'.[34]
2.The appellant was a 'user-dealer'. However, given the quantities involved, he was not a low‑level user‑dealer. Based on text messages as read by the sentencing judge the appellant was engaged in ongoing drug dealing.[35]
3.Most of the MDMA would have been for the appellant's personal use.[36]
4.At the time of the offence the appellant was contemplating going into a rehabilitation facility.[37]
5.The appellant was remorseful, having developed considerable insight since he was in custody.[38]
6.It was to the appellant's credit that while in prison he had engaged in a number of programs to further his rehabilitation. He now had insight into the negative impact of methylamphetamine and was willing to continue to engage in counselling and intervention to address his illicit substance abuse.[39]
7.While in custody the appellant had been subject to a restrictive regime as a result of the Greenough Prison riot and this was something to be taken into account in determining the length of sentence to be imposed.[40] (While this was not an irrelevant consideration, it was not, in our view, a significant mitigating factor on the facts of this case.)
8.The appellant did not have a clean record having a number of convictions.[41] An element of personal deterrence was warranted.[42]
[34] ts 68.
[35] ts 68.
[36] ts 68.
[37] ts 68.
[38] ts 68.
[39] ts 70.
[40] ts 68 - 69.
[41] ts 69, 71.
[42] ts 70.
The sentencing judge concluded that the appellant's plea of guilty was not made at the earliest opportunity. However, it was deserving of credit. Her Honour applied a discount of 15% in relation to the head sentence that would otherwise have been imposed.[43]
[43] ts 68.
Before the sentencing judge the then counsel for the appellant sought that, the appellant having already spent 16 months in custody, any further term that the appellant be required to serve be conditionally suspended.[44] The State contended that given the large quantity of drugs only a term of immediate imprisonment was appropriate. The point was made that the amount was double the trafficable quantity amount set out in sch VII of the MDA.[45] Having regard to the relevant authorities the sentencing judge considered there was nothing exceptional which would cause her to conclude that anything other than an immediate term of imprisonment was appropriate.[46] As the sentence was greater than 5 years' imprisonment, suspension was not an option in any event.[47]
[44] ts 63 - 65.
[45] ts 66.
[46] ts 70 - 71.
[47] ts 71.
One matter was left unresolved in the sentencing judge's remarks.
Counsel for the appellant submitted before her Honour that the 55.7 grams of methylamphetamine had been purchased 'on tick' on 26 January 2018. Counsel's instructions were that the appellant 'was liable' for 12 grams[48] (presumably intended to convey that the appellant was to pay for that portion of the drugs only). However, according to counsel's submissions, there was to be a separation of the 55.7 grams with 42 grams to be provided to Mr Lauder. Mr Lauder would then have the obligation to make payment for that 42 grams. Thus the contention was that 42 grams were to be supplied back to Mr Lauder. The appellant, by counsel, contended that insofar as the appellant was in possession with intent to sell or supply, it was going to be a large amount of supply (to Mr Lauder) and a smaller amount that the appellant was going to sell into the community and use personally.[49]
[48] ts 54.
[49] ts 54 - 56, 62, 64.
The State did not dispute that some of the methylamphetamine was to be supplied to Mr Lauder; nor that some would be used to support the appellant's own habit. But, according to the State, there was nothing to support an assertion that Mr Lauder was to receive a significant portion of the drugs.[50]
[50] ts 66.
The sentencing judge did not resolve this conflict one way or the other. It is difficult to see how her Honour could have done so in the absence of a trial of issues. At no time did either the appellant or the State suggest that there should have been a trial of issues.
There is no suggestion on appeal that the sentencing judge erred in not making a finding on this issue. Accordingly, it is not for this court, on appeal, to consider this conflict and attempt to resolve it. The court must act on the unchallenged findings of fact as made by the primary judge. Relevantly, this was that the appellant was going to sell into the community and also apply the methylamphetamine to his personal use.
The sentencing of the appellant's co-offenders
As mentioned, Mr Lauder and Mr Brennan were in the car with the appellant when it was stopped on 26 January 2018. Mr Lauder was the driver. He was a good friend of the appellant.[51] Mr Brennan was the appellant's half-brother[52] and was in the back passenger seat. Messrs Lauder and Brennan were charged with the same two offences as the appellant but pleaded not guilty.
[51] ts 69 (13/09/19).
[52] ts 69 (13/09/19).
Messrs Lauder and Brennan proceeded to a trial before Davis DCJ and a jury between 22 and 24 May 2019. They were found guilty of count 1; but not guilty of count 2 - meaning that the offence of possession with intent in respect of the 2.5 grams of MDMA was solely attributable to the appellant. Importantly, as was highlighted by Davis DCJ in sentencing, the finding of guilt in relation to count 1 was based on the State's case as run at trial, namely, that Messrs Lauder and Brennan were aiding and assisting the appellant to commit the offence.[53]
[53] ts 67 (13/09/19).
On count 1 Messrs Lauder and Brennan were each sentenced to a term of immediate imprisonment of 2 years and 8 months. Both were made eligible for parole.
Davis DCJ expressly referred to the parity principle in sentencing Messrs Lauder and Brennan.[54] In so doing it was apparent that her Honour had regard to the sentence imposed on the appellant and the transcript of Lonsdale DCJ's sentencing remarks in relation to the appellant. Davis DCJ compared the appellant's and Messrs Lauder's and Brennan's respective roles in the offending and their personal circumstances. Her Honour noted that, whereas the appellant was sentenced on the basis that there was a joint enterprise, based on the way the trial had been run Messrs Lauder and Brennan fell to be sentenced on the basis that the appellant was the principal offender and Messrs Lauder and Brennan were aiding and assisting him.[55]
[54] ts 82 - 84 (13/09/19).
[55] ts 84 (13/09/19).
Davis DCJ found that Messrs Lauder's and Brennan's culpability was 'significantly less' than the appellant's (observing that there was 'no commerciality' in Messrs Lauder's and Brennan's roles).[56]
The offending of Mr Lauder and Mr Brennan
[56] ts 84 (13/09/19).
Davis DCJ made clear that the sentence she imposed was based on the State's case at trial: Messrs Lauder and Brennan were sentenced on the basis that they were aiding and assisting the appellant.[57] The appellant was the principal offender.[58] Davis DCJ considered that the appellant was dealing commercially and was intending to sell at least part of the methylamphetamine, profiting financially.[59]
[57] ts 68, 75, 83 (13/09/19).
[58] ts 68 - 69, 74, 83 (13/09/19).
[59] ts 75 (13/09/19).
Her Honour found that Mr Brennan decided to accompany the appellant having received an early morning text message (sent at 2.01 am) from the appellant asking him, Mr Brennan, whether he wanted to come for a drive.[60] Davis DCJ noted that the appellant had earlier had an exchange with his supplier making arrangement for the purchase and collection of the drugs halfway between Geraldton and Perth. The appellant referred to making arrangements with his driver.[61] Mr Lauder was staying the night at the appellant's house. Davis DCJ appeared to accept that Mr Lauder made a last‑minute decision to become involved by providing his car and driving the appellant.[62]
[60] ts 70 (13/09/19).
[61] ts 69 - 70 (13/09/19).
[62] ts 74 - 75 (13/09/19).
Messrs Lauder's and Brennan's respective involvement was as follows:
1.Mr Lauder played an important role in providing the car and driving the car.[63] The sentencing judge considered that although it might have been a last-minute decision for Mr Lauder to become involved that provided very little mitigation.[64] Davis DCJ also considered that Mr Lauder must have informed the appellant about a hidden space behind the glovebox compartment in which the bulk of the drugs were found.[65]
2.Mr Brennan played an important role in providing support to the appellant, as his brother, actively encouraging him in the commission of the offence.[66] In that respect Mr Brennan had knowledge of the appellant's drug dealing business.[67]
[63] ts 74 - 75 (13/09/19).
[64] ts 74 (13/09/19).
[65] ts 75 (13/09/19).
[66] ts 75 (13/09/19).
[67] ts 69, 75 (13/09/19).
Mr Lauder also admitted that the 3.41 grams of methylamphetamine found in the toiletry bag in the driver's footwell belonged to him.[68]
[68] ts 71 (13/09/19).
Davis DCJ characterised Messrs Lauder's and Brennan's circumstances of offending as being at a 'very low level'. This was because, in contrast to the finding that the appellant was the principal offender and was to profit financially, there was no suggestion that either Mr Lauder or Mr Brennan would be profiting financially from their respective roles.[69] Messrs Lauder and Brennan were only likely to benefit insofar as they were users[70] (inferentially suggesting that some of the drugs might have been made available for their use).
Personal circumstances of Mr Lauder
[69] ts 75, 84 (13/09/19).
[70] ts 75 (13/09/19).
Mr Lauder was 24 at the date of sentencing and 22 at the time of the offence. Davis DCJ found that he had the benefit of youth.[71] Mr Lauder's background was one of an absent father, a mother with mental health issues, a reasonable education to Year 10 and an introduction to illicit substances as a teenager.[72] He had some mental health issues in the form of mood disorder and anxiety.[73] Mr Lauder commenced using methylamphetamine at the age of 17 and was an occasional user throughout January 2018.[74]
[71] ts 79 (13/09/19).
[72] ts 79 - 80, 83 (13/09/19).
[73] ts 80 (13/09/19).
[74] ts 80 (13/09/19).
Mr Lauder had a criminal record, but one not as serious as Mr Brennan's. It included use of a prohibited drug and possession of drug paraphernalia. Mr Lauder had no previous conviction for a drug dealing offence.[75] However, his prior criminal record meant that Davis DCJ did not treat Mr Lauder as being a person of otherwise good character.[76] Despite the not guilty plea it was accepted that Mr Lauder had demonstrated some remorse.[77] He had also taken some steps towards rehabilitation.[78]
Personal circumstances of Mr Brennan
[75] ts 81 (13/09/19).
[76] ts 81 (13/09/19).
[77] ts 84 (13/09/19).
[78] ts 84 (13/09/19).
Mr Brennan was 24 at the date of sentencing and 22 at the time of the offence. Davis DCJ found that he also had the benefit of youth.[79] Mr Brennan's background was similar to the appellant's: an absent father, a limited education and an introduction to illicit substances as a teenager.[80] By the time he was 18 Mr Brennan was using methylamphetamine daily and had begun selling to cover the cost of his habit.[81]
[79] ts 76 (13/09/19).
[80] ts 76 - 77, 83 (13/09/19).
[81] ts 77 (13/09/19).
Mr Brennan had a prior criminal record including two convictions in October 2017 for possession of methylamphetamine (1.22 grams) and MDMA (10 tablets) with intent to sell or supply. There were other convictions for simple possession.[82] An aggravating circumstance to Mr Brennan's offending was that he was subject to a pre-sentence order at the time of the offending in relation to the two possession with intent convictions.[83] Because of Mr Brennan's prior criminal record the sentencing judge was unable to treat him as a person otherwise of good character.[84]
[82] ts 75, 77 - 78 (13/09/19).
[83] ts 75 (13/09/19).
[84] ts 78 (13/09/19).
However, having spent time in custody Mr Brennan was drug free.[85] Despite the plea of not guilty the sentencing judge accepted that Mr Brennan had demonstrated some remorse and insight.[86] Insofar as Mr Brennan had been incarcerated and subjected to a restrictive regime following the Greenough Prison riot (in the same manner as the appellant) those difficulties in custody were to be taken into account.[87] Also, like Mr Lauder he had taken some steps towards rehabilitation.[88]
[85] ts 78 (13/09/19).
[86] ts 79, 84 (13/09/19).
[87] ts 78 - 79, 84 (13/09/19).
[88] ts 84 (13/09/19).
While Mr Lauder provided the car and drove - something Mr Brennan's counsel argued meant that Mr Lauder did more to assist - the sentencing judge considered that was balanced out by two factors: (1) Mr Brennan had a worse criminal record; and (2) Mr Brennan's offending was aggravated because he was on the PSO at the time.[89] Davis DCJ considered there was very little that distinguished Messrs Lauder and Brennan and that they should be sentenced equally.[90]
Totality principle applied in relation to Mr Brennan
[89] ts 84 (13/09/19).
[90] ts 84 (13/09/19).
A totality issue arose in respect of Mr Brennan. On 26 November 2018, Mr Brennan was sentenced in the Geraldton Magistrates Court to 10 months' imprisonment for the drug offences the subject of the PSO. This sentence was backdated to commence on 27 January 2018. Davis DCJ, for reasons of totality, ordered the sentence she imposed to be served 'partly cumulatively' on the 10‑month term of imprisonment so as to provide for a total effective sentence for all of Mr Brennan's drug offences of 3 years 2 months' imprisonment, which she backdated to commence on 26 July 2018.[91]
[91] Given that at the time her Honour sentenced Mr Brennan he had served the sentence imposed in the Geraldton Magistrates Court, it is doubtful that, pursuant to s 88 of the Sentencing Act, it was open to order the sentence she imposed to be served partly concurrently with a completed sentence. The approach her Honour took was, in substance, suggested to her by the prosecutor.
Grounds of appeal
Initially the appellant relied on two grounds:
1.The sentence of 5 years and 9 months' imprisonment on count 1 was alleged to be manifestly excessive having regard to the circumstances of the offence, the personal circumstances of the appellant and sentencing standards (ground 1).
2.The total effective sentence of 5 years and 9 months' imprisonment was alleged to breach the totality principle in that it did not bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety (ground 2).
It was difficult to understand the basis for ground 2. If the sentence of 5 years and 9 months was manifestly excessive, ground 1 would be successful and there was no need for ground 2. Conversely, should the sentence not be manifestly excessive, the totality principle had no scope to operate in circumstances where the sentence on count 2 was made concurrent with the sentence on count 1. Counsel for the appellant abandoned ground 2 at the hearing of the appeal.[92] Counsel was correct to do so.
[92] Appeal ts 5.
The appellant required an extension of time for his application for leave to appeal. The application for leave to appeal was filed approximately one month after the expiration of the statutory period. The delay was adequately explained by the time taken in obtaining a grant of legal aid and thereafter in assessing the merit of an appeal.[93] In the circumstances, we would grant the extension.
[93] Affidavit of S H King sworn 5 July 2019 pars 3 - 6.
The appellant's co-accused were sentenced on 13 September 2019 (after the appellant's application for leave to appeal was lodged). Their sentences were mentioned in the State's respondent's answer as filed on 24 September 2019.[94] On 22 January 2020 the appellant applied for leave to amend to add a ground of appeal. The appellant sought to rely on the additional ground that the appellant had a justifiable sense of grievance due to the marked disparity between his sentence and the sentence of each of his co‑accused (ground 3). The application for leave to amend was referred to the hearing of the appeal.
[94] Respondent's submissions fn 9 WAB 27.
The State did not concede ground 3. Nevertheless, there was no opposition to leave to amend.[95] For the reasons set out below ground 3 has merit and it was in the interests of justice that the question of parity raised by ground 3 be determined by the court. Accordingly, at the hearing of the appeal the court ordered that the appellant be granted leave to amend his grounds of appeal to add ground 3.
[95] Appeal ts 3.
In their oral submissions to the court, counsel for both parties chose to deal first with the parity issue raised by ground 3. It is convenient to take the same approach in these reasons. If the parity principle has been infringed it is not necessary to consider whether, in terms of ground 1, the sentence of 5 years and 9 months' immediate imprisonment on count 1 was manifestly excessive.
Legal principles: the parity principle
The legal principles applicable to the parity principle are well established. The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v the Queen has been adopted or reproduced in this court many times:[96]
[96] Ngo v The Queen [2017] WASCA 3 [36] - [39]. Statements in substantially the same terms may be found in Stoysich v The State of Western Australia [2014] WASCA 208 [39] ‑ [45] and Barnden v State of Western Australia [2014] WASCA 161 [55] ‑ [58]. See also Stanley v The State of Western Australia [2018] WASCA 229 [38], Wong v The State of Western Australia [2019] WASCA 8 [92] and Birdsall v The State of Western Australia [2019] WASCA 79 [313].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
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].
While under the common law the parity principle may permit a court to impose what it considers to be a manifestly inadequate sentence (but not an affront to justice), it does not require the court to do so.[97] It is not necessary for the proper disposition of this appeal to consider whether, as counsel for the State submitted,[98] on its proper construction s 6(1) of the Sentencing Act 1995 (WA) does not permit an inadequate sentence to be imposed with the result that there can be no discretion on appeal to impose one.[99] This is not a case where the application of the parity principle might, on a resentencing, justify the imposition of an inadequate sentence even assuming that is permissible under the Sentencing Act.
[97] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33].
[98] Appeal ts 20 - 21.
[99] cf Beins v The State of Western Australia [2014] WASCA 54 [40], [47], [97], [125] ‑ [127].
A judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[100] apply.[101]
[100] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[101] Green v The Queen [32]; Stanley v The State of Western Australia [40].
In Higgins v The State of Western Australia,[102] this court considered the application of the parity principle where the co-offenders had committed one or more common offences but some or all of them had also committed other unrelated offences. That arises in this case insofar as the appellant pleaded guilty to count 2 but Mr Lauder and Mr Brennan were acquitted of that charge. Relevantly, in Higgins the court came to the following conclusions:
1.A person's sentence, for the purposes of the parity principle, is comprised of the sentence imposed in respect of each individual offence, any minimum non‑parole period, orders for accumulation and concurrence and the resulting total effective sentence, and, where a person is already serving an earlier term of imprisonment, the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence. The parity principle may apply to each and any of these components.[103]
2.There is no hard and fast rule that, in cases of co‑offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. An infringement of the parity principle may arise from a marked disparity in the respective sentences imposed on co-offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though either, or both, of the co‑offenders was sentenced for other offences.[104]
3.In evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences[105] and all relevant sentencing principles, including the totality principle.[106]
[102] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins).
[103] Higgins [25], [178] - [179], [199] - [208].
[104] Higgins [169] - [177], [204] - [210].
[105] Higgins [53] - [54], [184].
[106] Higgins [19], [168].
Thus it is permissible, in considering whether the parity principle has been infringed, to compare the individual sentences imposed on the three co‑offenders in relation to their offence of being in possession of the 60.94 grams of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the MDA. But that is not the end of the parity enquiry. It is necessary to consider all the relevant facts and circumstances as well as all of the components of the three offenders' respective sentences as explained in Higgins. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account.[107]
[107] Higgins [53].
The parties' submissions on the parity question
Counsel for the appellant advanced the parity argument by reference to the sentences imposed on count 1, that being the common offence. It will be recalled that the relevant sentences were:
1.The appellant - a term of imprisonment of 5 years and 9 months.
2.Mr Lauder and Mr Brennan - a term of imprisonment of 2 years and 8 months.
On behalf of the appellant it was acknowledged that his co‑offenders had the benefit of some mitigation in the form of youth that was not available to the appellant.[108] It was argued, however, that the difference in the sentences of more than 3 years additional imprisonment objectively gave rise to a justifiable sense of grievance in that:
1.The criminality of the appellant's offending was not so much more significant than that of his co-offenders that it warranted a sentence being imposed on the appellant that was more than double that imposed on Mr Lauder and Mr Brennan.[109]
2.While the appellant was subject to a PSO, so too was Mr Brennan - and in the case of Mr Brennan the previous offending concerned 1.22 grams of methylamphetamine and 10 tablets of MDMA compared to 0.1 grams of methylamphetamine in relation to the appellant.[110]
3.It was necessary to have regard to the fact that Mr Lauder and Mr Brennan were convicted after trial but that the appellant had pleaded guilty (resulting in a discount of 15% in relation to the head sentence that would otherwise have been imposed).[111]
[108] Appellant's undated supplementary submissions par 22.
[109] Appellant's undated supplementary submissions par 25.
[110] Appellant's undated supplementary submissions par 24.
[111] Appellant's undated supplementary submissions par 26.
The appellant also pointed to the fact that the co‑offenders were found to have lied to police and in their evidence in the course of their trial.[112] We accept that Davis DCJ made findings that the jury rejected the co‑offenders' evidence, not believing their explanations; and went on to say that nor did she.[113] But we do not accept that this is a material factor for the application of the parity principle. Davis DCJ sentenced Mr Lauder and Mr Brennan for their offending, not for making statements and giving evidence that was disbelieved. The relevant matter for the parity question that arises is that the appellant pleaded guilty whereas the co‑offenders did not and were convicted after trial.
[112] Appellant's undated supplementary submissions pars 25.6, 26.2; Appeal ts 8.
[113] ts 74 (13/09/19).
The State emphasised the accepted position that an appellate court will refuse to intervene on the basis of the parity principle where disparity is justified by some relevant difference or differences between the co‑offenders. The State submitted that:[114]
1.The significant differences between the appellants and his co‑offenders were the roles each played and their respective ages.
2.The appellant was significantly more culpable having regard to his role as the originator and the driving force behind the offending in circumstances where he committed the offence with a view to profiting financially. In oral submissions counsel for the State reiterated that the appellant was the principal offender whereas Mr Lauder and Mr Brennan aided and assisted[115] and that the appellant was dealing commercially, intending to sell at least some of the drugs and profit financially, whereas neither of the appellant's co-offenders were to profit financially from their roles.[116] The State also emphasised that the appellant's co-offenders were classified by Davis DCJ as being 'at a very low level'.[117]
3.The disparity in the sentences was justified and did not give rise to a legitimate or justifiable sense of grievance and would not, in the mind of an objective observer, give the appearance that justice had not been done.
[114] Respondent's supplementary submissions dated 3 February 2020 pars 36 - 37.
[115] Appeal ts 16.
[116] Appeal ts 17 - 18.
[117] Appeal ts 18.
In oral submissions counsel for the State also accepted, correctly in our view, that in addition to the offenders' respective roles and ages one of the material differences was the appellant's plea of guilty.[118] Counsel also said that, consistent with Higgins, the court should take all relevant factors into consideration including total effective sentences.[119]
[118] Appeal ts 19.
[119] Appeal ts 18.
Counsel for the State also identified one other difference. The appellant and Mr Brennan were both subject to the lockdown situation in the Greenough Prison. That was not the case with Mr Lauder.[120]
[120] Appeal ts 19.
Disposition: the parity principle has been infringed
There was a marked disparity between the sentence of immediate imprisonment imposed on the appellant (5 years and 9 months) and that imposed on his co‑offenders (2 years and 8 months). The disparity is marked in both absolute terms (an additional 3 years and 1 month) and proportional terms (more than double). The issue on appeal is whether that marked disparity is not justified, and gives the appearance that justice has not been done, because it is outside the permissible range of difference that appropriately reflects the different degrees of culpability and different personal circumstances of the three co‑offenders so as to infringe the parity principle.
This is a case where the part the appellant played in the criminal enterprise justified a difference in his sentence as against the sentences imposed on his co‑offenders.
Each offender's criminality ought to be assessed having regard to the nature of his participation in the offence. As concerns the three co‑offenders, the appellant was the organiser and principal offender. The appellant made the arrangements to purchase the methylamphetamine. He was participating in the criminal conduct for commercial gain with the intent of profiting financially. By contrast, Mr Lauder and Mr Brennan were sentenced on the basis that they were aiding and assisting the appellant to commit the offence. The appellant recruited Mr Lauder to drive the car and invited Mr Brennan, his brother, to come for the drive to provide support. Both Mr Lauder and Mr Brennan came to the enterprise late and at the invitation of the appellant. Neither Mr Lauder nor Mr Brennan were sentenced on the basis that they were to be profiting financially from their role.
In those circumstances the culpability of the appellant's offending was materially greater than that of both Mr Lauder and Mr Brennan. All other things being equal it was to be expected that a greater sentence would be imposed on the appellant based on the seriousness of his offending - this being of such a significance and extent, in comparative terms, as to increase the appellant's culpability as against that of his two co‑offenders.
Also, as is accepted by the appellant, in terms of personal circumstances the two co‑offenders had the benefit of relative youth and the appellant did not. While relevant, such personal circumstances are a subsidiary consideration. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. Nonetheless, different personal circumstances may result in different sentences being imposed on otherwise like offenders without infringement of the parity principle. Mr Lauder's and Mr Brennan's relative youth was a relevant distinguishing factor. In this respect their personal circumstances were more favourable than those of the appellant.
Otherwise, subject to one important exception, there was little to significantly distinguish the three offenders' personal circumstances and the other relevant matters in terms of mitigation. All had a similar background. All were found to have remorse and to have taken positive steps by way of rehabilitation. All had a prior criminal record and were sentenced on the basis that they could not be treated as being a person of otherwise good character. True it is that the appellant's and Mr Brennan's prior criminal history was more serious than that of Mr Lauder. Moreover, both the appellant and Mr Brennan had committed the offence whilst subject to their respective PSOs (and, in the case of the appellant, the terms of his conditional bail). To that extent there was an additional basis for an element of personal deterrence directed to them (but not to Mr Lauder).
In terms of the comparisons the one substantial matter in the appellant's comparative favour was his plea of guilty. Where all other things are equal, a plea of guilty should result in an offender receiving a lower sentence than a co‑offender who did not plead guilty and was convicted of the same offence following trial. In the present case not all other things were equal. However, the appellant received a 15% discount that the sentencing judge allowed to the appellant under s 9AA of the Sentencing Act. No such discount was afforded to Mr Lauder or Mr Brennan. Having regard to the appellant's increased culpability, given the circumstances of his offending, we are satisfied that, even allowing for the discount on his guilty plea, the appellant should have received a greater term of immediate imprisonment than either of his co‑offenders.
However, the critical question is whether, having regard to the appellant's guilty pleas, the appellant's increased culpability and the differences in the offenders' respective personal circumstances can justify the extent of the disparity between the sentences. The disparity in the sentences is very substantial in both absolute and proportional terms (5 years and 9 months versus 2 years and 8 months). We are unable to accept that the marked disparity evidenced by the sentencing outcomes provides for an appropriate consistency in the sentencing of the three co‑offenders having regard to the three co-offenders' different degrees of culpability and different personal circumstances. The present case is one of marked and unjustifiable disparity.
The parity argument for the appellant is at its most acute when comparing the respective sentences and circumstances of the appellant and Mr Lauder.
While Mr Brennan's personal circumstances were less favourable than those of Mr Lauder, there was a reasonable basis to suggest that Mr Lauder's involvement in the offending was more culpable than that of Mr Brennan. Mr Lauder was sentenced on the basis that he aided and assisted the appellant as the principal offender. But Mr Lauder assisted in a significant way. Mr Lauder provided a vehicle. He also drove the vehicle for the appellant and informed the appellant of the location of the hidden compartment into which much of the methylamphetamine was secreted. While it was the case, as Davis DCJ observed, that Mr Lauder made a last-minute decision to participate, that does not affect the fact that Mr Lauder's role was indispensable to the appellant's offending. Mr Lauder made a conscious decision to aid the appellant and did so 'in a material way'.[121]
[121] ts 75 (13/09/19).
Mr Lauder's personal circumstances were more favourable than those of the appellant. Also, Mr Lauder - unlike the appellant - was not in breach of a PSO or terms of bail. However, Mr Lauder did not have the benefit of the significant mitigatory effect that resulted from the appellant's guilty plea. Even accepting, as is apparent from the basis on which Mr Lauder was sentenced, that his offending was of a lower level - being by way of assistance and without suggestion that he would be profiting financially - it was a serious offence (as Davis DCJ recognised).[122] In all the circumstances, viewed objectively, for the appellant to receive a term of immediate imprisonment more than twice that of Mr Lauder engenders a justifiable sense of grievance and gives the appearance that justice has not been done. That is particularly the case given the 15% discount which the sentencing judge considered ought to be allowed to the appellant.
[122] ts 75, 81, 82 (13/09/19).
The appellant's higher degree of culpability justified a higher sentence being imposed on him relative to Mr Lauder. However, the differences in the circumstance of the offending, and the two offenders' personal circumstances, were not such as could justify a disparity of the magnitude as evinced by the sentencing outcomes that have occurred. There is a marked disparity in the two sentences. The extent of the disparity is not rationally explained by the difference in the circumstances of the offending or the offenders. There has been an infringement of the parity principle.
In forming the view that there has been an infringement of the parity principle we have not overlooked the fact that the appellant pleaded guilty to an additional offence - count 2's possession of the nine tablets of MDMA with intent to sell or supply - of which the co-offenders were acquitted.
In applying the parity principle, Higgins permits comparison of the sentence imposed on each offender for a common offence notwithstanding that one or more co-offenders have also been sentenced for other offences. In so doing it is also necessary to evaluate and take into account sentences being served for separate or unrelated offences in the context of considering all factors of relevance. The factors suggested in Higgins include the total effective sentences for the common offence and the total effective sentences imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender.[123]
[123] Higgins [53(f)]. See also at [54], [181], [207].
The appellant was sentenced to 2 years' immediate imprisonment on count 2. However, the sentencing judge made the sentence on count 2 concurrent with the sentence on count 1. The sentencing judge did so for totality reasons.[124] That was unsurprising when it is appreciated that her Honour accepted that most of the MDMA would have been for the appellant's personal use.[125] It was all the more unsurprising taking into account the rationale for the first limb of the totality principle - assumed rehabilitation and reduced demand for retribution after the initial sentence had been served[126] - and the sentencing judge's finding that since being in prison the appellant had already engaged positively in counselling and programmatic intervention to address his illicit substance abuse.[127]
[124] ts 71.
[125] ts 68.
[126] See Roffey v The State of Western Australia[2007] WASCA 246 [26].
[127] ts 70.
There was no suggestion that the sentencing judge erred in providing for the sentence on count 2 to be served concurrently. Nor could there be. Before the sentencing judge the prosecutor said that, in terms of totality, the two offences were part of the same incident and could be dealt with concurrently.[128] The parity principle must be applied taking into account the application and effect of relevant sentencing principles including the totality principle.[129] In the circumstances, while on its face the appellant's additional offending in relation to count 2 might have indicated a basis for a higher total effective sentence as between the appellant and his co‑offenders, once the parity principle is applied taking the totality principle into account the additional offending as represented by count 2 is of little significance to the overall analysis.
[128] ts 67.
[129] Jardim v The State of Western Australia [2011] WASCA 83 [13]; Barnden v State of Western Australia [55]; Higgins [19]. See also Green v The Queen [32].
The conclusion that there has been an infringement of the parity principle is unaffected by the appellant's additional offending in relation to count 2.
Ground 3 should be upheld. Consequently, the appellant should be granted leave to appeal on ground 3 and, subject to the question of resentencing to which we now turn, the appeal should be allowed. The appellant's success on ground 3 means that it is not necessary to determine ground 1.
Resentencing
This court has all the materials necessary to resentence the appellant.
On a resentencing following the allowance of an appeal for infringement of the parity principle the court must have regard to the sentence imposed on the co-offenders and give it appropriate weight. However, the court is not required to achieve identity of punishment.[130] As mentioned previously, even if permissible, this is not a case where the application of the parity principle might justify the imposition of an inadequate sentence. The present case is one where the infringement of the parity principle may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.[131] Having regard to all relevant sentencing factors, the sentence we would substitute remains commensurate with the seriousness of the offences.[132]
[130] Green v The Queen [32].
[131] See the approach in Green v The Queen [33].
[132] Section 6(1) of the Sentencing Act.
Dealing first with count 1, we take into account, but will not repeat, the circumstances of the offending and the appellant's personal circumstances as previously stated. The appellant was in possession of over two times the trafficable quantity of methylamphetamine. We accept that the sentencing judge was correct to characterise the appellant's offending as very serious and that the appellant was a 'user-dealer' rather than a 'low-level user-dealer'. While some of the methylamphetamine was for personal use, the appellant was acting for commercial gain. We, like the sentencing judge, would reduce the head sentence by 15% pursuant to the Sentencing Act.
We then have regard to the sentences of 2 years and 8 months' immediate imprisonment imposed on Mr Lauder and Mr Brennan. We take into account the differences previously identified as to the circumstances of the three co‑offenders' offending and their personal circumstances. While we have regard to all the differences there are three that are of central importance and are worth re‑stating. The first two differences are to the appellant's comparative disadvantage but the third favours the appellant. First, there is the appellant's increased culpability insofar as he was the principal offender (organising the criminal enterprise and recruiting Mr Lauder and Mr Brennan) and acted for commercial gain. Second, there is the circumstance that, unlike the appellant, Mr Lauder and Mr Brennan had the benefit of relative youth. Third, there is the circumstance that the appellant pleaded guilty.
Taking these matters into account, and considering the maximum penalty for the offence and the need to properly punish the appellant and deter others from doing what he did, we would impose a sentence of 4 years and 8 months' immediate imprisonment on count 1. When regard is had to the discount allowed to the appellant for his guilty plea, the difference between this sentence and the sentences of 2 years and 8 months' imposed on Mr Lauder and Mr Brennan is a difference that is consistent with the offenders' different degrees of culpability and different personal circumstances.
We regard a sentence of 4 years and 8 months' immediate imprisonment as being within the range of appropriate sentences (albeit towards the lower end) for the appellant's offence of possession of 60.94 grams of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the MDA following the increase to the maximum penalty as effected by the Amending Act. In that regard this court has already observed twice that the increase in the maximum penalty, signifying Parliament's new view as to the gravity of the offence, must be taken into account in deciding on sentencing outcomes. The increase in the maximum penalty for the offence is an indication that sentences for that offence should be increased.[133]
[133] HSV v The State of Western Australia [2020] WASCA 5 [41] - [45]; Musulin v The State of Western Australia [2020] WASCA 18 [34] - [41].
No complaint was made in relation to the sentence on count 2 and we see no need to interfere with it. The sentence on count 2 should remain 2 years' imprisonment to be served concurrently with the sentence on count 1. The appellant should remain eligible for parole and the sentence should be backdated to commence from 26 January 2018.
For the sake of completeness it should be noted that, in this court - unlike before the sentencing judge - there was no submission that the whole or part of the appellant's sentence should be suspended. Counsel for the appellant was correct not to seek suspension. Reconsidering again all of the factors relevant to the imposition of sentence this is not a case where a suspension of the sentence can be justified.
Conclusion and orders
For these reasons there has been an infringement of the parity principle. The appeal should be allowed. It is necessary to resentence the appellant having regard to the sentence imposed on the appellant's co-offenders.
We would propose orders as follows:
1.The time for the appellant to appeal is extended to 5 July 2019.
2.Leave to appeal is granted on ground 3.
3.Leave to appeal is refused on ground 2.
4.The appeal is allowed.
5.The sentences imposed on the appellant in the District Court of Western Australia on 13 May 2019 in Indictment GER IND 51 of 2018 are set aside.
6.The appellant is resentenced as follows:
(a)count 1: 4 years 8 months' immediate imprisonment;
(b)count 2: 2 years' immediate imprisonment.
The sentence on count 2 is to be served concurrently with the sentence on count 1.
7.The appellant is eligible for parole.
8.The sentence is taken to have begun on 26 January 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Vaughan24 APRIL 2020
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