Papp v The State of Western Australia
[2020] WASCA 125
•13 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PAPP -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 125
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 23 JULY 2020
DELIVERED : 13 AUGUST 2020
FILE NO/S: CACR 152 of 2019
BETWEEN: KURT MICHAEL PAPP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND 658 of 2018
Catchwords:
Criminal law and sentencing - Whether sentence imposed for five drug or drug‑related offences infringed the parity principle - Whether difference between the criminality of the appellant and that of his co‑offender justified the disparity between their sentences
Legislation:
Nil
Result:
Leave to appeal on ground 1 granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | L A Margaretic |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | MGM O'Connor Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Gaskell v The State of Western Australia [2018] WASCA 8
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
McConnell v The State of Western Australia [2020] WASCA 59
Ngo v The Queen [2017] WASCA 3
Petrusic v The State of Western Australia [2020] WASCA 62
Stanley v The State of Western Australia [2018] WASCA 229
JUDGMENT OF THE COURT:
Introduction
The appellant appeals on parity grounds against the sentence imposed on him for five drug or drug‑related offences. He was convicted, after his pleas of guilty, of three counts of selling a prohibited drug (counts 1, 3 and 6), one count of possessing a prohibited drug (count 12), and one count of possessing money reasonably suspected of having been unlawfully obtained (count 13).
Some of his offending involved other offenders: Mr Pilgrim, Mr Jeremy Vidich and Mr Bradley Vidich. The appellant twice sold a quantity of methylamphetamine to Mr Pilgrim (counts 1 and 3), which in each case Mr Pilgrim then sold to another person. The appellant sold Mr Pilgrim a third, and larger, quantity of methylamphetamine (count 6). The appellant had sourced those drugs from Mr Bradley Vidich; they were delivered and sold to the appellant by Mr Jeremy Vidich. Mr Pilgrim then sold those drugs to another person.
During a search of the appellant's house, police found more methylamphetamine (count 12) and money reasonably suspected of being received from the sale of drugs (count 13). There were no co‑offenders for these counts.
The appellant was sentenced to a total effective sentence of 6 years 3 months' immediate imprisonment. He appeals on the sole ground that his sentence breaches the parity principle, with respect to Mr Pilgrim only. Mr Pilgrim was sentenced after the appellant by a different judge. Mr Pilgrim received a total effective sentence of 4 years' immediate imprisonment for his offending in selling the drugs the subject of counts 1, 3 and 6. Mr Pilgrim was not charged with, or convicted of, any other offences.
The appellant acknowledges that his culpability was greater than that of Mr Pilgrim, but he asserts that it was not so much greater as to warrant the 2 year 3 month disparity between their sentences.
For the reasons that follow, while we would grant leave to appeal, the ground of appeal has not been made out.
Facts of the offending
The material facts of the appellant's offending were not in dispute before the sentencing judge.[1] They may be summarised as follows.
[1] ts 876, 878, 912, 926.
The appellant was carrying on an ongoing business as a seller of methylamphetamine.[2] The appellant disputed the State's assertion that he, Mr Pilgrim, Mr Jeremy Vidich and Mr Bradley Vidich were in a criminal syndicate.[3] It was then agreed, between the appellant and the State, that the appellant was carrying on an ongoing business as a seller of methylamphetamine and that he had an established business relationship with Mr Bradley Vidich, who was his supplier.[4]
[2] ts 912 ‑ 913.
[3] ts 876 ‑ 877, 879, 926.
[4] ts 913.
He would obtain drugs from Mr Bradley Vidich and was involved in the distribution of those drugs.[5] However, the judge said that the appellant was not, in any sense, in business with Mr Bradley Vidich.[6]
[5] ts 927.
[6] ts 927.
On 18 August 2017, the appellant supplied Mr Pilgrim with 10.7 g of methylamphetamine and, on 28 August 2017, the appellant supplied Mr Pilgrim with 10.4 g of methylamphetamine (counts 1 and 3, respectively). Mr Pilgrim sold those drugs to an undercover operative, in each case for $3,000.[7]
[7] ts 879 ‑ 880, 930.
Count 6 involved all four offenders. On 14 September 2017, the appellant agreed with Mr Pilgrim that he would sell Mr Pilgrim 56 g of methylamphetamine and that Mr Pilgrim would sell those drugs to another person for $15,000.[8] Mr Pilgrim supplied the appellant $15,000, which he had received as payment in advance from the end purchaser.[9] The appellant contacted Mr Bradley Vidich, who arranged for 56 g of methylamphetamine to be delivered by Mr Jeremy Vidich to the appellant.[10] Mr Jeremy Vidich then went to the appellant's house and sold him 55.2 g of methylamphetamine for $11,950.[11] The appellant retained the difference, $3,050, as payment for facilitating the deal.[12] The appellant gave the drugs to Mr Pilgrim, who then gave them to the customer who initially provided the $15,000.[13]
[8] ts 880, 930.
[9] ts 880, 931.
[10] ts 880, 931.
[11] ts 880, 931.
[12] ts 880, 931.
[13] ts 880.
Later that day, police executed a search warrant at the appellant's home.[14] In the course of that, the appellant threw some drugs wrapped in a paper towel over his back fence.[15] Police found a small clip seal bag, containing 4.1 g of methylamphetamine, in the paper towel (count 12).[16] During the search, the appellant declared $3,050 in a bedside drawer and a further $500 was found in his wallet (count 13).[17] Both amounts of money were reasonably suspected of being received from the sale of drugs.[18] The sum of $3,050 was reasonably suspected of being received by the appellant for facilitating the sale of drugs between Mr Bradley Vidich and Mr Pilgrim.[19]
[14] ts 880, 931.
[15] ts 880, 931.
[16] ts 880 ‑ 881, 931.
[17] ts 880, 931.
[18] ts 931.
[19] ts 880.
The appellant's personal circumstances
The appellant was 41 years old at the time of sentencing.[20] He was born in Perth and has a daughter, who was 19 years old at the time of sentencing.[21] The judge observed that the appellant had significant family support from his parents and his brother.[22]
[20] ts 932.
[21] ts 932.
[22] ts 932, 933.
The appellant is a qualified jeweller and worked in his parents' jewellery business for 16 years.[23] After his parents' business closed, he worked for other jewellers and then worked in carpentry.[24]
[23] ts 932.
[24] ts 932.
The judge found that the appellant had a significant drug addiction and was dealing in order to fund that addiction.[25] Otherwise, the appellant did not have any mental health or physical health issues.[26]
[25] ts 931, 932.
[26] ts 932.
The appellant had prior convictions for a number of traffic offences, three convictions for possession of drug paraphernalia (or the equivalent), one conviction for common assault, and one conviction for possession of a prohibited weapon.[27]
[27] ts 932.
The judge rejected the characterisation, given in a reference written by a business associate of the appellant, that the appellant's offending was out of character.[28] The offences were not isolated incidents, but occurred as part of a business of dealing in drugs of significant quantities and on a regular basis.[29] This, the judge said, was borne out by counts 1, 3 and 6 ‑ the convictions for selling methylamphetamine.[30]
[28] ts 932.
[29] ts 932.
[30] ts 932.
Sentencing remarks
The judge identified the following aggravating factors:
(1)The appellant was selling drugs for commercial gain and received significant amounts of money in relation to each of the offences.[31]
(2)The appellant sold drugs as part of an ongoing business, rather than in isolated incidents.[32]
(3)The appellant was selling drugs to people who he knew were planning to deal in drugs themselves, which extends the scope of the harmful effects that drugs can have in the community.[33]
[31] ts 931, 934.
[32] ts 931.
[33] ts 931.
We will say more as to these findings, and their significance, later in these reasons.
The judge identified the appellant's pleas of guilty and his remorse as mitigating factors:
(1)The appellant pleaded guilty to counts 1 and 3 before committal.[34] He pleaded guilty to counts 6, 12 and 13 on the day that his joint trial with Mr Jeremy Vidich was scheduled to commence.[35] His guilty plea on count 12 followed negotiations that resulted in that count being reduced from a charge of possession with intent to sell or supply to a charge of simple possession. Accordingly, the appellant's plea on count 12 was entered at the earliest reasonable opportunity.[36] The judge observed that his guilty pleas on counts 6 and 13 facilitated the course of justice by securing convictions and reducing the length and complexity of the trial.[37] However, her Honour also noted that the only witnesses in the appellant's trial would have been police officers and that the appellant's guilty pleas were entered in the face of a strong State case.[38] The judge reduced the appellant's sentences on counts 1 and 3 by 22%, the sentences on counts 6 and 13 by 10%, and the sentence on count 12 by 25%.[39]
(2)The judge found that the appellant was remorseful.[40]
[34] ts 893, 933.
[35] ts 52 ‑ 53, 933.
[36] ts 933.
[37] The trial proceeded in relation to three of Mr Jeremy Vidich's charges.
[38] ts 933.
[39] ts 933.
[40] ts 933.
The fact that the appellant was selling drugs to fund his own significant drug addiction was not a mitigating factor,[41] but was taken into account as part of his personal circumstances, as summarised above.[42]
[41] ts 931.
[42] ts 931, 932.
Her Honour described the appellant's role as a middleman, negotiating the sale and taking a cut of the profits ‑ just over 20% ‑ which the judge described as a significant cut.[43] The judge characterised the appellant's role as somewhat below Mr Bradley Vidich, who was the ultimate source of the drugs, but not significantly different from Mr Jeremy Vidich's role who couriered the drugs to, and accepted the money from, the appellant.[44]
[43] ts 935.
[44] ts 935.
The judge also made the following observations:
(1)The appellant's prior convictions were 'largely neutral' in his sentencing; they were not aggravating, but nor were they mitigating in any way.[45]
(2)The appellant would remain at a risk of reoffending until he successfully resolved his substance abuse issues.[46] At the time of sentencing, the appellant had not taken any steps towards rehabilitation, other than being abstinent while in prison. The judge accepted that he had limited access to programs in prison while on remand, but that he did not take any steps to address his substance abuse issues while he was on bail.[47] However, the judge also said that his supportive family and partner and his skills, which will enable him to obtain employment upon his release, were protective factors against him reoffending.[48]
(3)The primary considerations in sentencing for serious drug offences are specific and general deterrence. An offender's personal mitigating circumstances carry less weight.[49]
[45] ts 934.
[46] ts 933.
[47] ts 933.
[48] ts 934.
[49] ts 934.
The judge noted the maximum penalty for each of the appellant's offences:
(1)for selling a prohibited drug to another ‑ a fine of $100,000, 25 years' imprisonment or both;[50]
(2)for possession of money reasonably suspected of being unlawfully obtained ‑ 7 years' imprisonment;[51]
(3)for possession of a prohibited drug ‑ a fine not exceeding $2,000, 2 years' imprisonment or both.[52]
[50] ts 915, 944 ‑ 945; Misuse of Drugs Act 1981 (WA) s 34.
[51] ts 915; Criminal Code (WA) s 417(1).
[52] ts 915; Misuse of Drugs Act s 34.
Sentences imposed on the appellant
It was conceded that the appellant's offences were so serious that a term of immediate imprisonment was the only appropriate disposition.[53] The judge took into account the discounts to which we have already referred.[54] Her Honour imposed the following sentences:[55]
[53] ts 895, 935.
[54] ts 935.
[55] ts 936.
| Count | Offence | Sentence |
| Count 1 | Selling a prohibited drug | 2 years 3 months (Cumulative) |
| Count 3 | Selling a prohibited drug | 2 years 3 months (Concurrent) |
| Count 6 | Selling a prohibited drug | 4 years (Head Sentence) |
| Count 12 | Possession of a prohibited drug | 3 months (Concurrent) |
| Count 13 | Possession of money reasonably suspected of being unlawfully obtained | 7 months (Concurrent) |
This produced a total effective sentence of 6 years 3 months' immediate imprisonment. The judge explained that counts 6 and 13 were committed in the same course of conduct and that it would be inappropriate for those sentences to be served cumulatively.[56] Her Honour also explained that the other offences were separate from each other and separate from counts 6 and 13. They would ordinarily have been served cumulatively, but for totality considerations.[57]
[56] ts 936.
[57] ts 936.
The appellant was made eligible for parole.[58]
[58] ts 936.
Ground of appeal
The appellant contends that the parity principle was infringed in relation to Mr Pilgrim; he makes no complaints as regards the other co‑offenders.
We turn to Mr Pilgrim's offending and sentence.
Mr Pilgrim
Mr Pilgrim was the last of the four offenders to be sentenced. He was sentenced by a different judge to Mr Bradley Vidich and to the appellant and Mr Jeremy Vidich.
Mr Pilgrim was charged, on the same indictment as the appellant and Mr Jeremy Vidich, with three counts of selling a prohibited drug to another (counts 2, 4 and 7). Mr Pilgrim pleaded guilty to all counts at his trial listing hearing, which was the first appearance in the District Court before the trial had been listed.[59]
[59] ts 945.
The State noted that parity was the real issue in sentencing Mr Pilgrim.[60]
Facts of Mr Pilgrim's offending
[60] ts 945.
The facts of Mr Pilgrim's offending, which were not in dispute[61] and were adopted by the judge,[62] were read out by the prosecutor[63] in terms broadly consistent with the facts outlined above. The prosecutor added that there was no indication that Mr Pilgrim benefited, financially or otherwise, from his offending.[64]
[61] ts 946.
[62] ts 967.
[63] ts 942 ‑ 944.
[64] ts 944.
Counts 2 and 4 (against Mr Pilgrim) correspond to counts 1 and 3 (against the appellant) respectively and concerned Mr Pilgrim selling the 10.7 g and 10.4 g of methylamphetamine that he had obtained from the appellant. Count 7 was the charge for Mr Pilgrim's involvement in the transaction that involved all four offenders. It corresponds to count 6 against the appellant.
Sentencing remarks on Mr Pilgrim's sentencing
The judge identified four factors that indicated the seriousness of Mr Pilgrim's offending:
(1)The total weight of the drugs he sold, being 77.1 g of methylamphetamine.[65]
(2)The ongoing nature of Mr Pilgrim's involvement. Specifically, he sold methylamphetamine on three separate occasions during a period of approximately one month.[66]
(3)Mr Pilgrim was involved in a significant mid‑level distribution business.[67]
(4)He was trusted by those higher up in the distribution chain. He was trusted with significant amounts of drugs and significant sums of money. The judge referred to the State's characterisation of Mr Pilgrim as the middleman as regards counts 2 and 4 and the courier in respect of count 7.[68]
[65] ts 970.
[66] ts 970.
[67] ts 970.
[68] ts 970.
The judge found that Mr Pilgrim had proven the following facts:
(1)Mr Pilgrim did not know who Mr Bradley Vidich and Mr Jeremy Vidich were.[69]
(2)The target of the police operation was the appellant.[70]
(3)Mr Pilgrim was not the source of the methylamphetamine.[71]
(4)Mr Pilgrim did not gain from the transactions.[72]
(5)His actions were not part of an ongoing drug dealing operation by him.[73]
(6)This was not a case in which the undercover police officer, to whom Mr Pilgrim sold the drugs, provided him with an opportunity to commit an offence which he was in any event disposed to commit.[74]
[69] ts 970.
[70] ts 970.
[71] ts 970.
[72] ts 970.
[73] ts 970.
[74] ts 970 ‑ 971.
His Honour allowed a 17% discount for Mr Pilgrim's guilty pleas.[75] The judge also noted that Mr Pilgrim had knee issues which would make his time in prison more difficult compared to an ordinary prisoner.[76]
[75] ts 971.
[76] ts 972.
The judge outlined Mr Pilgrim's personal circumstances. He was 41 years old at the time of sentencing.[77] His family were supportive of him.[78] He has worked as a jeweller his whole life.[79] In addition to his knee issues, he had suffered a shoulder injury[80] and had mental health issues.[81] He previously used methylamphetamine once or twice per week and, at the time of sentencing, he was still using methylamphetamine occasionally.[82]
[77] ts 971.
[78] ts 971, 973 ‑ 974.
[79] ts 971 ‑ 972.
[80] ts 972.
[81] ts 972 ‑ 973.
[82] ts 973.
The judge concluded that Mr Pilgrim presented with a very strong prospect of rehabilitation.[83]
[83] ts 974.
Mr Pilgrim had a 'modest, but extensive' criminal record, including prior convictions for drug related offences.[84]
[84] ts 974.
The judge set out the sentences that the other offenders received and the remarks of the appellant's sentencing judge as to the offenders' respective roles in the offences.[85]
[85] ts 975 ‑ 976.
The judge said that Mr Bradley Vidich was the source of the drugs and was higher in the chain of distribution than Mr Jeremy Vidich, the appellant and Mr Pilgrim.[86] His Honour later reiterated that Mr Bradley Vidich was 'at the top of the chain', such that there were 'no real comparability issues there'.[87]
[86] ts 975.
[87] ts 977.
As for Mr Jeremy Vidich and the appellant, the judge observed that they were involved in the same amount of drugs as Mr Pilgrim, evidently referring to the transaction in which they were all involved (counts 5, 6 and 7).[88] However, Mr Jeremy Vidich did not plead guilty to his charge for that offence and the appellant pleaded guilty to his charge for that offence at a different time to Mr Pilgrim.[89]
[88] ts 976.
[89] ts 976, 977.
The judge went on to find that Mr Pilgrim's culpability was 'significantly less' than that of the appellant and Mr Jeremy Vidich.[90] Mr Pilgrim was below them in the distribution chain.[91] As will be seen, these findings are significant for the resolution of the appeal.
[90] ts 976, 977.
[91] ts 976.
The judge said that counsel had not drawn his Honour's attention to any material differences between the personal backgrounds or antecedents of the four offenders.[92]
Sentences imposed on Mr Pilgrim
[92] ts 977.
The judge imposed the following sentences on Mr Pilgrim, which for convenience are set out against the appellant's corresponding sentences:[93]
[93] ts 977 ‑ 978.
| Offence | The appellant | Mr Pilgrim | ||
| Selling a prohibited drug | Count 1 | 2 years 3 months (Cumulative) | Count 2 | 2 years (Head Sentence) |
| Selling a prohibited drug | Count 3 | 2 years 3 months (Concurrent) | Count 4 | 2 years (Cumulative) |
| Selling a prohibited drug | Count 6 | 4 years (Head Sentence) | Count 7 | 3 years 4 months (Concurrent) |
| Possession of a prohibited drug | Count 12 | 3 months (Concurrent) | ||
| Possession of money reasonably suspected of being unlawfully obtained | Count 13 | 7 months (Concurrent) | ||
| Total effective sentence | 6 years 3 months' imprisonment | 4 years' imprisonment | ||
In light of the seriousness of Mr Pilgrim's offending, the judge ordered that his sentence be served immediately.[94]
[94] ts 977.
The appellant's submissions
The appellant accepts that his conduct demonstrated greater culpability than that of Mr Pilgrim.[95] The crux of his submissions is that his culpability was not so much greater than Mr Pilgrim's culpability as to warrant the 'vast disparity' between their sentencing outcomes.[96] The appellant submits that this disparity gives rise to a justifiable sense of grievance on his behalf.[97] Accordingly, the sentence should be set aside and he should be resentenced.[98]
[95] Appellant's submissions [18].
[96] Appellant's submissions [18]; see also appeal ts 10 ‑ 11.
[97] Appellant's submissions [19]; appeal ts 11.
[98] Appellant's submissions [20].
The appellant submits that the similarities in his and Mr Pilgrim's personal circumstances and level of criminality are significant. The appellant highlights the following factors:[99]
[99] Appellant's submissions [16].
(1)He and Mr Pilgrim were the same age at the time of sentencing.
(2)Both have ongoing family support.
(3)Both were trained as jewellers and had a history of meaningful employment.
(4)Both were addicted to methylamphetamine at the time of the offending.
(5)Both had modest criminal records.
(6)They were both genuinely remorseful.
(7)He and Mr Pilgrim were characterised as lower down the drug distribution network chain than Mr Bradley Vidich and Mr Jeremy Vidich.
(8)Neither were characterised as part of the Vidichs' drug dealing network. The appellant purchased drugs from them but was not part of their wider distribution syndicate. Mr Pilgrim did not know Mr Bradley Vidich or Mr Jeremy Vidich.
(9)Neither of them were the source of the methylamphetamine.
(10)The offences were not isolated incidents for either the appellant or Mr Pilgrim.
The appellant submits that 'the significant difference' in the offending of the appellant and Mr Pilgrim is that he was dealing in drugs for financial gain whereas Mr Pilgrim was not.[100]
[100] Appellant's submissions [17].
In oral submissions, the appellant contended that the parity principle was infringed in relation to the total effective sentence and in relation to the individual sentences on each of counts 1, 3 and 6.[101]
[101] Appeal ts 2.
Parity: legal principles
The legal principles applicable to the parity principle are well established. They were recently summarised in Petrusic v The State of Western Australia.[102] It is convenient to reproduce that summary.
[102] Petrusic v The State of Western Australia [2020] WASCA 62 [46] ‑ [50]; see also McConnell v The State of Western Australia [2020] WASCA 59 [50] ‑ [54].
The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen[103] has been adopted or reproduced in this court many times:[104]
[103] Ngo v The Queen [2017] WASCA 3 [36] ‑ [39].
[104] See the cases in footnote 96 of Petrusic.
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]. (emphasis added)
While 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.[105]
[105] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33]; Beins v The State of Western Australia[No 2] [2014] WASCA 54 [40], [47], [126] ‑ [127].
A judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[106] apply.[107]
[106] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[107] Green [32]; Stanley v The State of Western Australia [2018] WASCA 229[40].
In Higgins v The State of Western Australia,[108] 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. Relevantly, 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.[109]
(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.[110]
(3)In evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences[111] and all relevant sentencing principles, including the totality principle.[112]
[108] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
[109] Higgins [25], [178] ‑ [179], [199] ‑ [208].
[110] Higgins [169] ‑ [177], [204] ‑ [210].
[111] Higgins [53] - [54], [184].
[112] Higgins [19], [168].
Thus, in considering whether the parity principle has been infringed, it is permissible to compare the individual sentences imposed on the appellant and Mr Pilgrim for the three offences in which they were both involved (counts 1 and 2, counts 3 and 4, and counts 6 and 7). 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 offenders' respective sentences, as explained in Higgins. All factors relevant to the offenders, the offences they have committed and the sentences they have received, including the totality principle, must be evaluated and taken into account.[113]
[113] Higgins [53]; Petrusic [50].
Disposition
For the reasons that follow, we are not persuaded that comparison of the appellant's sentence with that of Mr Pilgrim reveals a breach of the parity principle. In short, that is because in our view the disparity between the respective sentences is justified by the difference in the criminality of the appellant's overall offending and that of Mr Pilgrim.
The general principles applicable to sentencing offenders for serious drug offences are also well‑established and were stated in Gaskell v The State of Western Australia in these terms:[114]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. … Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. (footnotes omitted)
[114] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
The evaluation of each offender's criminality was of critical importance for the sentencing of the appellant and Mr Pilgrim. That required the identification of what each of them did, his role in the drug dealing the subject of the offending and whether and to what extent the offending was committed for commercial gain. When attention is given to the differences in these respects, a significant disparity in the sentences imposed on the appellant and on Mr Pilgrim was and is justified.
The sentencing judge found that the appellant sold drugs as part of an ongoing business, not simply in isolated incidents.[115] Her Honour described the appellant's role as a middleman, negotiating the sale and taking a significant cut of the profits ‑ just over 20%.[116] The judge rightly found that the fact that the appellant sold drugs for commercial gain was an aggravating factor.[117]
[115] ts 931, 932.
[116] ts 935.
[117] ts 931, 934.
The appellant sought to downplay the judge's finding that the appellant sold drugs as part of an ongoing business. In the appellant's submission, that finding did not extend beyond the conduct the subject of counts 1, 3 and 6. In other words, the appellant submitted that the judge made no finding as to an ongoing business beyond the conduct the subject of those three counts.[118]
[118] Appeal ts 7 ‑ 8, 19.
There is no merit in this submission. It is not supported by the substance of the judge's sentencing remarks. Moreover, it is contrary to the position agreed by counsel for the appellant before the sentencing judge.
As already noted, at the hearing before the sentencing judge, the prosecutor initially asserted that the appellant was, with Mr Jeremy Vidich, Mr Bradley Vidich and Mr Pilgrim, part of a criminal syndicate involved in the sale and supply of trafficable quantities of methylamphetamine within the Perth metropolitan area.[119] Counsel for the appellant denied that that was so, saying there was no evidence of it.[120] Counsel accepted, however, that telephone intercepts showed that the appellant was dealing with others in quantities of drugs similar to those involved in counts 1 and 3.[121] The judge returned to the conflict on this point at the subsequent hearing of the appellant's plea in mitigation. The prosecutor stated that the appropriate characterisation of the State's position was that the appellant was 'carrying on business as a seller of methylamphetamine and had an established relationship with his supplier, Bradley Vidich'.[122] The judge observed that that meant that 'it [meaning the appellant's offending] was part of an ongoing business'.[123] Counsel for the appellant accepted that position.[124]
[119] ts 879.
[120] ts 876 ‑ 877.
[121] ts 877.
[122] ts 913.
[123] ts 913.
[124] ts 913; see also ts 877.
In her sentencing remarks, the judge observed that the appellant did not accept the allegation that he was part of a criminal syndicate,[125] stating that the appellant was not in business with Mr Bradley Vidich but that the appellant obtained his drugs from Mr Bradley Vidich and was involved in the distribution of drugs so obtained. Thus the appellant was part of a chain of distribution, but was not in any sense in business with Mr Bradley Vidich.[126] The judge found that the offending was not isolated but was part of an ongoing business.[127] That is plainly a reference to the three offences being part of an ongoing business, not merely a statement that the three offences themselves constituted an ongoing business. That is made clear beyond argument by the judge's subsequent observation that the offences 'were not isolated incidents, but part of a business of drug dealing that [the appellant was] engaged in, of significant quantities of drugs on a regular basis'.[128]
[125] ts 926.
[126] ts 927.
[127] ts 931.
[128] ts 932.
None of the serious features of the appellant's offending outlined in [61] were mirrored in Mr Pilgrim's offending. The judge who sentenced Mr Pilgrim found that what he did was not part of an ongoing drug dealing operation by him and that he did not gain financially from the transactions.[129]
[129] ts 970.
In these circumstances, the judge's conclusions that the appellant was above Mr Pilgrim in the distribution chain and that Mr Pilgrim's culpability was significantly less than that of the appellant[130] were well‑founded. Those conclusions are not challenged on appeal.
[130] ts 976 ‑ 977.
Moreover, the appellant committed two additional offences ‑ counts 12 and 13 ‑ for which he received additional terms of imprisonment. While those terms were ordered to be served concurrently with other terms, the offending the subject of counts 12 and 13 added to the appellant's overall criminality that informed evaluation of the appropriate total effective sentence for him.
The majority of the matters to which the appellant points as indicating the similarities between him and Mr Pilgrim are matters that are, at best, of secondary significance in sentencing for offences of the kind the appellant committed. Given that, for drug offences of the kind committed by the appellant, an offender's personal circumstances are subsidiary considerations, the first six of the matters set out at [49] above ‑ all of which relate to the offenders' personal circumstances ‑ are of little weight. Because personal circumstances are afforded less weight, similarities in the personal circumstances of co‑offenders are of less significance in determining whether an offender has a justifiable sense of grievance about the disparity between their sentence and the sentence imposed upon a co‑offender. Moreover, Mr Pilgrim had a knee injury making his time in prison more difficult compared to an ordinary prisoner.[131] That mitigating factor was not present in the case of the appellant.
[131] ts 972.
There is, of course, no single correct difference between the appellant's sentence and Mr Pilgrim's sentence, given the discretionary character of the application of the parity principle. There was only a 3 month difference between the individual sentences the appellant received for each of counts 1 and 2 and the sentences received by Mr Pilgrim for the corresponding offences. A difference of that magnitude would not give rise to a justifiable sense of grievance even in the absence of any substantial difference in the criminality of the two offenders. It is also debateable whether the 8 month difference in the individual sentence the appellant received for count 6 and the sentence received by Mr Pilgrim for the corresponding offence would have given rise to a justifiable sense of grievance even in the absence of any substantial difference in the criminality of the two offenders. However, when account is taken of the findings as to the greater criminality involved in the appellant's offending as compared to Mr Pilgrim's, there is no reasonable basis for contending that the individual sentences imposed on the appellant for counts 1, 2 or 6 infringe the parity principle.
There is a greater difference between the total effective sentences received by the appellant and Mr Pilgrim. However, the combined force of the appellant's greater criminality, the additional offences for which the appellant was sentenced and the difference in the personal circumstances justified that difference in the total effective sentences. In our view, those matters did not merely justify the appellant's total effective sentence being appreciably higher than Mr Pilgrim's sentence ‑ they required it. Any other result would have revealed error.
The appellant has not demonstrated that the difference between his and Mr Pilgrim's sentences is outside the permissible range of difference that appropriately reflects his and Mr Pilgrim's different degrees of criminality and ‑ to the relatively minor extent they differ ‑ personal circumstances. Taking into account all of the matters to which we have already referred, we are not persuaded that there is a marked and unjustifiable disparity between the individual sentences imposed on the appellant for counts 1, 3 and 6 and those imposed for the corresponding offences on Mr Pilgrim. Nor are we persuaded that there is a disparity of this kind between the appellant's and Mr Pilgrim's respective total effective sentences. Consequently, while we would grant leave to appeal, the ground of appeal is not made out.
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on ground 1 is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Orderly to the Honourable Justice Beech13 AUGUST 2020
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