Ottaway v The State of Western Australia
[2012] WASCA 21
•30 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OTTAWAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 21
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 3 NOVEMBER 2011
DELIVERED : 30 JANUARY 2012
FILE NO/S: CACR 44 of 2011
BETWEEN: WILLIAM JAMES OTTAWAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 871 of 2010
Catchwords:
Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Parity principle - No merit in the ground of appeal - Application for an extension of time to appeal dismissed
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Application for an extension of time to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J McGrath
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274
Farrugia v The Queen [2011] VSCA 24
Jardim v The State of Western Australia [2011] WASCA 83
Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Pan [2005] NSWCCA 114
R v Taudevin [1996] 2 VR 402
Tomov v The Queen [2011] WASCA 189
Wimbridge v The State of Western Australia [2009] WASCA 196
McLURE P: I agree with Buss JA.
BUSS JA: On 26 November 2010, the appellant was convicted, after a trial in the District Court before Scott DCJ and a jury, of one count in an indictment. This count alleged that on 14 October 2009, at Waikiki, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
On 28 January 2011, the trial judge imposed a sentence of 2 years 8 months' immediate imprisonment. A parole eligibility order was made.
The appellant has applied to this court for an extension of time to appeal against sentence.
On 29 June 2011, McLure P ordered that the application for an extension of time be referred to the hearing of the appeal.
The application for an extension of time to appeal
The last date for the appellant to appeal against sentence was 18 February 2011. He did not file his appeal notice until 15 March 2011.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
The appellant's delay has been explained satisfactorily in an affidavit of his solicitor, Gerald Chui Ren Yin, sworn 14 March 2011. The State does not oppose the application for an extension of time. In my opinion, whether an extension should be granted depends, in the circumstances of this case, upon the merits of the proposed ground of appeal.
The material facts and circumstances of the offending
The indictment presented against the appellant also charged a related offender, Paul Raymond Burkhardt, with a different count. It was alleged that, also on 14 October 2009, at Waikiki, Mr Burkhardt sold or supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act. Mr Burkhardt pleaded guilty to this offence.
The counts against the appellant and Mr Burkhardt were related in that the methylamphetamine in the appellant's possession had been sold or supplied to him by Mr Burkhardt.
In 2009, police investigated the activities of Mr Burkhardt. As part of the investigation, police obtained an intercept warrant in relation to Mr Burkhardt's mobile telephone. This warrant enabled police lawfully to intercept all telephone calls and SMS messages to and from this telephone. The intercepted communications included 20 telephone conversations and 12 SMS messages between Mr Burkhardt and the appellant.
A police officer, Jamie Douglas Paterson, was involved in the police investigation.
On 14 October 2009, at 9.50 am, Officer Paterson drove a motor vehicle past Mr Burkhardt's home. He stopped his vehicle and watched the home. There were a number of vehicles parked in the driveway.
At 10.33 am, the appellant arrived at Mr Burkhardt's home. He was in the front passenger seat of a Mitsubishi vehicle being driven by a woman, Evie Ekland. Officer Paterson saw the appellant get out of the vehicle and go into Mr Burkhardt's home.
At 11.40 am, Officer Paterson saw the appellant leave Mr Burkhardt's home in the Mitsubishi vehicle. The appellant was in the front passenger seat and the vehicle was being driven by Ms Ekland. Other police officers required her to stop. They searched the vehicle. This initial search failed to find anything of interest. Shortly afterwards, additional police officers arrived at the scene. Further searches of the vehicle were undertaken. Eventually, police found several items of interest under the panelling on the left‑hand side of the centre console.
These items of interest included a bag containing methylamphetamine. The drug had been divided into two quantities. When the methylamphetamine was analysed it was found that the two quantities each weighed 14 g. One quantity had a purity of 15% and the other had a purity of 19%. Other items found included a pipe, which had methylamphetamine residue in it; a cigarette box containing a small set of digital scales; some empty clipseal bags; and another quantity (1.1 g) of methylamphetamine.
The appellant was taken to Rockingham police station for questioning. He participated in a video‑recorded interview with police. Later that day, the appellant was charged with the offence in question.
The appellant's case at trial
The appellant gave sworn evidence in his own defence at trial.
The appellant's case was that he was a heavy user of amphetamines on a daily basis. Mr Burkhardt was his supplier. According to the appellant, he knew nothing about the 28 g of methylamphetamine that had been hidden in the Mitsubishi vehicle until he heard police officers talking about it at Rockingham police station. During his evidence, the appellant gave explanations about the intercepted telephone conversations and SMS messages, and endeavoured to place an innocent interpretation upon them.
Defence counsel called Ms Ekland (the driver of the Mitsubishi vehicle) as a witness. The trial judge granted her a certificate under s 11 of the Evidence Act 1906 (WA). Ms Ekland said in evidence that the 28 g of methylamphetamine was her property, and she had purchased it on credit from Mr Burkhardt.
Plainly, the jury, by its verdict, rejected the evidence of the appellant and Ms Ekland.
The sentencing remarks in relation to the appellant
The trial judge, in sentencing the appellant, made findings of fact and observations on the facts, relevantly, as follows.
At the material time, the appellant was a regular user of methylamphetamine. Mr Burkhardt and the appellant were friends. Mr Burkhardt was the appellant's primary supplier of the drug (ts 621).
On 14 October 2009, Mr Burkhardt supplied the appellant with the 28 g of methylamphetamine and the appellant caused the drug to be secreted in the Mitsubishi vehicle. There was some potential for the methylamphetamine to be diluted so as to increase its volume (ts 621).
His Honour was satisfied beyond reasonable doubt that the appellant was purchasing the methylamphetamine from Mr Burkhardt for himself and also on behalf of his friends. The appellant was in possession of the 28 g of methylamphetamine with an intent to sell at least some of it. His Honour was unable to make a finding as to whether the supply of part of the drug to the appellant's friends was for a profit (ts 622).
The trial judge characterised the appellant as a low to mid‑level dealer. His Honour said that the appellant was 'effectively the go to man for at least [his] friends' because he had a relationship with Mr Burkhardt who was a known supplier of methylamphetamine (ts 622 ‑ 623).
The appellant had a dysfunctional family background. It was marred, in his early childhood, by his father's alcohol abuse and domestic violence. The appellant had limited parental guidance. He was educated to Year 9. He was then expelled from school and commenced work.
The appellant was married in about 2003. He and his wife have separated. They have four children.
The appellant commenced using alcohol and cannabis when he was aged 13. His alcohol use escalated. He used methylamphetamine between the ages of 18 and 23 and then abstained between the ages of 23 and 28. The appellant resumed using methylamphetamine when he was 28 upon encountering difficult emotional issues as a result of his father's death.
A pre‑sentence report and a psychological report before the trial judge indicated that the appellant had abstained from illicit drug use since being held in custody following his conviction.
The appellant has a criminal record. He has previous convictions for traffic offences, making threats to kill, obtaining a benefit from the Commonwealth that was not payable, breach of a community based order and breach of bail. However, he had not previously been convicted of a drug offence or sentenced to a term of imprisonment.
The appellant was aged 29 years when he committed the offence in question and was 31 when sentenced.
The author of the pre‑sentence report recorded that the appellant maintained, despite his conviction, that the 28 g of methylamphetamine did not belong to him. Also, the author was of the view that the appellant had minimised the extent to which he had used illicit substances throughout his teenage and adult years.
Ms Naomi Oliver, a clinical psychologist, prepared the psychological report. She noted that the appellant had asserted that he did not have 'a drug problem as he has ceased drug use since being incarcerated'. Ms Oliver said that this stance could provide some barrier to addressing drug related issues in the future. According to Ms Oliver, the appellant has a tendency to '[blame] others for his misfortunes and life events' and, in consequence, the probability of meaningful long‑term change is low unless the appellant addresses his underlying psychological and emotional issues through individual counselling and appropriate programmes.
The trial judge observed that rehabilitation was important for the appellant. He added that, even though the appellant asserted that he was 'off drugs' and even though he had apparently shown a capacity in the past to cease using illicit drugs, it was important that the appellant obtain ongoing counselling (ts 623 ‑ 624, 625 ‑ 626).
His Honour was aware of the sentencing disposition in relation to Mr Burkhardt. He said:
I have before me the sentences that were imposed on Mr Burkhardt. One of the difficulties is that I don't know exactly how it was that his Honour came to the individual sentences or the total sentences. But it is important to note that there were a number of sentences … which Mr Burkhardt had imposed on him, and he was also a sentenced prisoner. All of those matters are taken into account when a total term of imprisonment is imposed (ts 626).
Mr Burkhardt's offending and the sentencing remarks in relation to him
On 14 December 2010, Martino CJDC sentenced Mr Burkhardt to a term of 2 years 1 month's immediate imprisonment for selling or supplying the 28 g of methylamphetamine to the appellant.
Contemporaneously, Martino CJDC sentenced the appellant for three other offences.
Previously, on 23 September 2010, Stone DCJ had sentenced Mr Burkhardt to 20 months' immediate imprisonment for making a threat to compel the doing of an act, contrary to s 338A(d) of the Criminal Code (WA). His Honour backdated the sentence to 8 March 2010 (ts 604).
Details of the offences for which Mr Burkhardt was sentenced by Martino CJDC, and the sentences imposed by his Honour, are these:
Indictment 1140 of 2010
Offence date
Offence
Sentence
2/12/08
Possession of 18.6 g methylamphetamine (10% purity) with intent to sell or supply
2 years
19/03/09
Possession of 5.64 g methylamphetamine (12% purity) with intent to sell or supply
2 years concurrent
19/03/09
Possession of a firearm in circumstances of aggravation
1 year concurrent
3/04/09
Possession of 11.2 g methylamphetamine (9% purity) with intent to sell or supply
2 years concurrent
Indictment 871 of 2010
14/10/09
Sold or supplied 28 g of methylamphetamine (made up of two quantities of 14 grams of 15% purity and 19% purity) with intent to sell or supply
2 years 1 month cumulative on the 2 year sentence for the 2/12/08 offence
Total effective sentence 4 years 1 month
The total effective sentence of 4 years 1 month imposed by Martino CJDC was ordered to be served cumulatively on the sentence of 20 months imposed by Stone DCJ. The totality of the sentences imposed by their Honours was therefore 5 years 9 months' imprisonment.
When sentencing Mr Burkhardt for the offence committed on 14 October 2009 (that is, the offence related to the appellant's offence), Martino CJDC said that he had reduced the sentence by 5 months to reflect time spent in custody. Otherwise, the sentence imposed on Mr Burkhardt would have been 2 years 6 months (ts 605).
Martino CJDC made various findings of fact in relation to his sentencing of Mr Burkhardt for the offence of selling or supplying the 28 g of methylamphetamine to the appellant. The findings are, relevantly, as follows.
Mr Burkhardt sold or supplied the 28 g of methylamphetamine to the appellant in the knowledge that the drug would be distributed in the community (ts 603).
Mr Burkhardt pleaded guilty to the offence in question about two weeks before the trial was due to commence. His plea of guilty demonstrated a willingness to facilitate the course of justice, and an acceptance of responsibility for his offending behaviour. His Honour reduced the sentence that he would have imposed if Mr Burkhardt had been convicted after trial (ts 603).
Mr Burkhardt was aged 34 years when the relevant offence was committed and was 35 when sentenced. He had previously lived a productive and hardworking life. However, he had suffered significant personal difficulties including the disintegration of his marriage, the loss of a friend in terrorist bombings in Bali and a motor cycle accident which had the effect of preventing him from working. These difficulties had made him vulnerable to the temptation of illicit drugs. He was addicted when he committed all of the offences for which he was sentenced by Martino CJDC (ts 603 ‑ 604).
Mr Burkhardt sold and supplied illicit drugs to maintain a lifestyle that involved using a substantial quantity of these drugs. He was at a higher level in the chain of distribution than a street dealer, but he was not a 'commercial mastermind' (ts 604).
Martino CJDC noted that Mr Burkhardt had 'strong family support'. His Honour made a positive finding that Mr Burkhardt was motivated to rehabilitate himself and that he had taken active steps in prison to engage in rehabilitation programmes. He also made a positive finding that there were good prospects for Mr Burkhardt's rehabilitation in the community upon his release from prison (ts 604).
On 11 January 2011, Mr Burkhardt was sentenced in the Magistrates Court for a number of offences committed in March and April 2009. These offences comprised five counts of simple possession of a prohibited drug, one count of possession of a smoking utensil, two counts of possessing stolen or unlawfully obtained property, one count of possessing an unlicensed firearm, three counts of possessing unlicensed ammunition, one count of possession of a contrivance known as a silencer and one count of assaulting a public officer. Mr Burkhardt received individual terms of imprisonment for each of these offences ranging between 3 months and 6 months. All of the sentences were ordered to be served concurrently with each other and concurrently with the sentences imposed by Stone DCJ and Martino CJDC.
The ground of appeal
The sole ground of appeal alleges that the trial judge erred by imposing a sentence that was 'manifestly disparate to the sentence imposed on [Mr Burkhardt]'.
On 29 June 2011, McLure P granted leave to appeal on this ground.
The merits of the ground of appeal
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co-offenders:
The true position, in my opinion, may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
The object of the 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 (610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 303 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. See R v Pan [2005] NSWCCA 114 [34] (Johnson J, Giles JA & Hoeben J agreeing). The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a primary 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).
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] ‑ [203] (Campbell JA, Rothman J generally agreeing), [245] ‑ [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] ‑ [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24 [11] ‑ [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] ‑ [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
In my opinion, the appellant's ground of appeal, based on the parity principle, has not been made out.
It is true that Mr Burkhardt was slightly higher in the chain of distribution than the appellant. However, the appellant was distributing into the community some of the drugs supplied by Mr Burkhardt. The appellant was a user of methylamphetamine and Mr Burkhardt was addicted.
A crucial difference between the appellant and Mr Burkhardt in relation to the sentencing process was Mr Burkhardt's plea of guilty and the positive finding as to Mr Burkhardt's prospects of rehabilitation.
Although Mr Burkhardt's plea was late, Martino CJDC made an express finding that his plea demonstrated a willingness to facilitate the course of justice, and an acceptance of responsibility for his offending behaviour. His Honour reduced the sentence he would have imposed if Mr Burkhardt had been convicted after trial. By contrast, the appellant was convicted after a trial and, despite the conviction, continued to deny his offending and failed to demonstrate any remorse or acceptance of responsibility.
Martino CJDC expressly found that Mr Burkhardt was motivated to rehabilitate himself and that there were good prospects for his
rehabilitation. By contrast, the trial judge did not make any express findings to this effect in relation to the appellant.
Mr Burkhardt's prior criminal record was more serious than the appellant's prior criminal record. However, Mr Burkhardt had not been sentenced to a term of imprisonment before 23 September 2010, when Stone DCJ imposed the 20‑month sentence. Also, although Mr Burkhardt had a previous conviction in 2008 for simple possession of methylamphetamine, and previous convictions in 1994 for simple possession of cannabis and possession of smoking implements, he had not previously been convicted of selling or supplying a prohibited drug or possession of a prohibited drug with intent to sell or supply it to another.
It is of some significance, in assessing the relative sentences imposed on the appellant and Mr Burkhardt, that Martino CJDC was sentencing Mr Burkhardt for multiple offences, and Mr Burkhardt was then serving the term of imprisonment which had been imposed by Stone DCJ. Martino CJDC decided that although the sentences he imposed on IND 1140 of 2010 would be wholly concurrent with each other, those sentences would be cumulative upon the sentence for the offence related to the appellant's offence, and the total effective sentence he imposed would be cumulative upon the sentence imposed by Stone DCJ. It is apparent, therefore, that the application of the totality principle was an important factor in the sentencing process undertaken by Martino CJDC. This was not a factor in the appellant's sentencing.
When all of the relevant sentencing factors in relation to the appellant and Mr Burkhardt are analysed and weighed, it is apparent that the disparity in the sentencing outcomes in relation to the offences in question (2 years 8 months in the case of the appellant and, in effect, 2 years 6 months in the case of Mr Burkhardt) was not inconsistent with the principles of equal justice and consistency of sentencing. The sentence imposed on Mr Burkhardt for the relevant offence was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice had not been done.
I would dismiss the application for an extension of time to appeal.
MAZZA JA: I agree with Buss JA.
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