Peagram v The State of Western Australia
[2024] WASCA 144
•14 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PEAGRAM -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 144
CORAM: BUSS P
HALL JA
DALTON AJA
HEARD: 17 OCTOBER 2024
DELIVERED : 14 NOVEMBER 2024
FILE NO/S: CACR 20 of 2024
BETWEEN: MATHEW PEAGRAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND 1949 of 2021
Catchwords:
Criminal law - Appeal against sentence - Sale or supply of trafficable quantity of methylamphetamine - Where appellant and co‑offender received same sentence - Whether significant differences in culpability and personal circumstances - Whether sentence breached parity principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | P Lange & O Juweinat |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Aquila Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Giangiulio v The State of Western Australia [2022] WASCA 77
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
JUDGMENT OF THE COURT:
The appellant was convicted on his plea of guilty of one count of selling or supplying a prohibited drug, namely a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). He was jointly charged with a co‑offender, Samuel Wood, who also pleaded guilty. The appellant and Wood were each sentenced to 11 years and 6 months' imprisonment.
The appellant seeks leave to appeal against his sentence. The appellant's sole ground of appeal is that the sentence imposed on him breached the parity principle, in that he contends that there should have been a disparity between the sentence imposed on him and that imposed on Wood. Wood has also separately appealed his sentence, but on a different ground.
The lack of disparity is said to have engendered a justifiable sense of grievance in the appellant. The appellant essentially relies on two factors as justifying a lower sentence for him. First, that he had less culpability because he only came to know that illicit drugs were involved the day before the sale or supply occurred. Secondly, that the appellant's deprived childhood was more significant than that of Wood. The only other distinguishing factor of significance was that Wood was younger than the appellant, but that was a factor that could only be accorded very minor weight. Having regard to these considerations, the appellant submits that his sentence should have been less than that imposed on Wood.
For the reasons that follow, the ground of appeal has no reasonable prospect of success. We would refuse leave to appeal and dismiss the appeal.
Circumstances of the offending
On 6 April 2021, the appellant and Wood drove a car from Victoria to Sydney. They were unknown to each other prior to this journey.
On arrival in Sydney, a bag containing 9.974 kg of methylamphetamine was placed into the car. The appellant and Wood were each provided with a cipher (encrypted) mobile telephone. They then drove together to Wagga Wagga, where the appellant was dropped off. Wood continued the journey to Perth, arriving on 9 April 2021. Meanwhile, the appellant travelled independently by plane, arriving in Perth on 8 April 2021.[1]
[1] ts 939 - 940.
The police became aware of Wood's presence in Western Australia and began observing his movements. On the morning of 10 April 2021, the appellant and Wood met at a carpark at the Stratton Shopping Centre and spent approximately half an hour together. They then drove together to the Blackadder Nature Reserve. They both walked through the reserve and the appellant took some photographs. They then returned to the shopping centre.[2]
[2] ts 940.
At about 11.50 am, the appellant and Wood drove back to the reserve and, whilst Wood remained in the car, the appellant took a bag containing the drugs into the reserve, where he left it. He then returned to the car and he and Wood drove off.[3]
[3] ts 940.
The drugs were collected by a third man, who left a quantity of cash in a box. About 30 minutes later, the appellant and Wood returned to the reserve. The appellant walked into the reserve and collected the box containing the cash. He then returned to the car.[4]
[4] ts 940.
A short time later, police stopped the car and arrested the appellant and Wood. The box of money was still in the car and was seized by the police. The man who had collected the drugs was also intercepted by police and the drugs were seized.[5]
[5] ts 940 - 941.
The box in the car contained a total of $888,650 Australian dollars. The drugs in the bag consisted of 9.974 kg of methylamphetamine with a purity of between 78% and 80%. The drugs were packaged into 10 smaller bags, each of which contained approximately 1 kg.[6]
[6] ts 857, 941.
Wood knew from the outset of his involvement that drugs were involved, and he agreed to participate on that understanding. It was, however, accepted that he was not aware of the weight, purity or type of drug. He did know that it was a substantial quantity. He did not know that after delivering the drugs to Perth, there would be money to collect.[7]
[7] ts 945 - 946.
The appellant knew that he was involved in criminal activity from the outset, but initially believed that what was being transported from Sydney was foreign currency that was to be exchanged in Perth for Australian currency. He became aware the day before the exchange that a substantial quantity of drugs was to be delivered. He took part in the conduct on 10 April 2021 with that knowledge.[8]
[8] ts 941.
The appellant's motivation was financial gain. He was offered $20,000, of which he had received $10,000 at the time of his arrest. Wood was promised between $10,000 and $15,000, but had not received any payment prior to his arrest.[9]
[9] ts 943, 947.
Personal circumstances
The appellant was born in Melbourne on 3 January 1991 and was 33 years old at the time of sentencing. He is the youngest of three brothers, the next eldest being six years older than him. His parents ran a café and struggled financially.[10]
[10] ts 950; defence written submissions on sentence, dated 2 February 2024, 5.
The appellant reported that both of his parents were alcoholics who gambled and devoted little time to parenting. They were often absent, frequently argued and his father had a bad temper. The appellant's father was a disciplinarian who used violence in dealing with his three sons, typically with a belt.[11]
[11] ts 950; defence written submissions on sentence, dated 2 February 2024, 5.
When the appellant was aged 17, his mother abruptly disappeared. A few days later he learnt that she had left the family home to pursue another relationship and had moved to Sydney. The appellant was bitter towards his mother's sudden departure and left home himself soon afterwards. His father's drinking and gambling continued, and the appellant had little further contact with him. His father died in January 2022, while the appellant was in custody. His mother eventually returned to Melbourne, where she now leads a stable life with a new partner. The appellant's relationship with his mother has improved.[12]
[12] ts 951; defence written submissions on sentence, dated 2 February 2024, 5 - 6.
The appellant's education was adversely impacted by frequent truanting and alcohol and cannabis use. This led to his expulsion in year 10. He reports that his parents were barely aware of his absenteeism from school.[13]
[13] ts 951; defence written submissions on sentence, dated 2 February 2024, 6.
After leaving school, the appellant worked at fast food outlets until he commenced an apprenticeship as a painter. He worked for about 10 years as a painter. He also worked in construction and became qualified as a personal trainer. The appellant has an interest in music which led to him spending two summers in Mykonos working as a DJ before the COVID‑19 pandemic in 2020.[14]
[14] ts 951; defence written submissions on sentence, dated 2 February 2024, 6.
The appellant commenced use of cannabis and alcohol at the age of 13. By age 17, he began using amphetamines and MDMA in the context of partying and nightclubbing. He became addicted to cocaine during the COVID‑19 pandemic. Whilst he regarded his drug use at the time as recreational, in hindsight he has come to view it as excessive. He has been drug‑free for almost three years whilst in custody and has expressed a determination to remain abstinent on his release.[15]
[15] ts 951; defence written submissions on sentence, dated 2 February 2024, 6.
The appellant has a history of short‑term relationships and has never lived with a partner. His girlfriend at the time of the offence remained committed to their relationship at the time of sentencing.[16]
[16] ts 951; defence written submissions on sentence, dated 2 February 2024, 6.
In custody, the appellant had maintained a trusted job as a cleaner and undertaken courses in substance use recovery and occupational health and safety. He had participated in individual counselling focusing on his upbringing and substance abuse. He is isolated in custody, with his family and friends mainly residing in Victoria, limiting the opportunity for them to visit.[17]
[17] Defence written submissions on sentence, dated 2 February 2024, 6.
Personal circumstances of the co-offender
Wood was 26 years old at the time of the offending. He was 29 years old at the time of sentencing.[18]
[18] ts 951.
Wood was born and raised by his biological parents in regional Victoria. He has three siblings, an older brother, a younger brother and a younger sister. When he was around 6 years old, his parents separated, and he remained in his mother's care with ongoing contact with his father. His mother re‑partnered and had another daughter. His father also had another daughter to one of his subsequent partners.
Wood reported that one of his stepfathers was violent to him, his sister, his younger brother and his mother. He described another stepfather in positive terms but that man's relationship with his mother did not last. Wood said that his father's partner was also emotionally abusive and would hit him if his father was not around. Wood reported good current relationships with his mother and father.[19]
[19] ts 951 - 952.
Wood attended regional Victorian primary schools and then high school to the start of year 11. He then moved to Townsville with his father, where he completed year 11. He remained in Townsville for nearly three years, until 2013. He reported difficulties in concentrating at school and described himself as hyperactive and compulsive. He said there was some bullying and fighting at school. He had difficulty with reading.[20]
[20] ts 952; psychological report, dated 4 February 2024, 4.
After leaving school, Wood worked at a cheese factory for two years and then at a fitness centre as he attempted to complete a qualification in personal training. He found the theoretical modules of his studies too difficult to complete and fell further and further behind, until he eventually dropped out. He then returned to working at the cheese factory. He remained in that job for about 18 months, until he was arrested and remanded in custody.[21]
[21] ts 952; psychological report, dated 4 February 2024, 4 - 5.
Wood has no dependents, but has had a number of relationships. He described one of these relationships as being abusive on the part of his former partner. He said that in 2020, his then partner was unfaithful, transferred their home into her name and ran up large debts. He was working at the cheese factory at the time. When they separated, he walked away with only $5,000 and a car. He said that he was depressed and did not want to face the legal processes required to recover his house, so he let it go. It was six months after that breakup that the offence occurred.[22]
[22] ts 947; psychological report, dated 4 February 2024, 3 - 4.
Whilst Wood was on bail, he met his current partner and had been with her for eight months at the time he was sentenced. His current partner is a manager for a real estate company, resides in Perth, does not have any children and is a positive influence. She does not use drugs and Wood had not relapsed into drug use whilst he was on bail.[23]
[23] ts 873, 952; psychological report, dated 4 February 2024, 4.
When Wood was released on bail, his father moved to Western Australia and rented a home in this State. Wood lived with his father and worked at a job in construction for three months and then in another job forklift driving.[24]
[24] ts 872 - 873, 952; psychological report, dated 4 February 2024, 3.
As to Wood's health, he reported having suffered eight or nine concussions between the ages of 2 and 22. There was no medical report as to any ongoing repercussions of these injuries. As to his mental health, Wood reported that he had been diagnosed with attention deficit hyperactivity disorder (ADHD) during his childhood and was prescribed dexamphetamine. His only experience with mental health professionals as an adult occurred when he was about 25 years old, when he was assessed by a psychologist and a psychiatrist and diagnosed with ADHD and was again prescribed dexamphetamine. At the time of sentencing, he was not taking any prescribed medication nor was he receiving any other treatment.[25]
[25] Psychological report, dated 4 February 2024, 5 - 6.
Wood has a long history of substance use. He reported that when he was 12 years old, he started drinking alcohol in the company of a stepbrother. By the time he was 13 years old, he was drinking alcohol every weekend. At 16 years old, he started smoking cannabis and subsequently smoked it nearly every day until the age of 21 years. He first tried methylamphetamine when he was 17 years old. He denied ever engaging in intravenous drug use. From the age of 22 years until late 2020, Wood was an occasional user of methylamphetamine, ketamine, amphetamine, MDMA, 'magic mushrooms' and LSD. After he and his partner separated in late 2020, he became chronically distressed and started using illicit drugs on a habitual basis and also began drinking alcohol to excess.[26]
[26] Psychological report, dated 4 February 2024, 7.
A psychologist reported that Wood's functional intelligence and general cognitive function fell well within the normal range. The psychologist assessed Wood as suffering from a mixed depressive and anxiety disorder at a mid‑level of intensity with anxiety as the dominant symptom. Wood appeared to have overcome a pre‑existing substance abuse disorder, one that it was suggested he was struggling with at the time of the offence.[27]
[27] Psychological report, dated 4 February 2024, 9.
The psychologist stated that Wood suffers from several symptoms associated with complex post‑traumatic stress disorder (CPTSD), including flashbacks and ruminations but does not appear to suffer from 'full blown' CPTSD. Rather, anxiety and depression appear to be his primary mental health difficulties. The psychologist noted that Wood does not have any prior criminal history and expressed the view that he is at a low risk of recidivism.[28]
[28] Psychological report, dated 4 February 2024, 10 - 12.
Sentencing remarks
After setting out the facts of the offence, the sentencing judge noted that the appellant would be sentenced on the basis that his role was that of a courier. Her Honour noted that the appellant flew to Western Australia and did not drive the car that contained the drugs.[29] Her Honour then said:[30]
But I have been told by your counsel that the basis ‑ and I've seen in the affidavit that you have signed and put before the court ‑ that the basis upon which you became involved is that you believed you were going to be collecting a quantity of cash as deposits for units in Castle Hill on behalf of Mr Nassif, and that you were instructed to deliver a package of foreign currency from Mr Nassif as well, so those were the instructions you had received.
The State does not wish to challenge what has been said in that regard, and so I will sentence you on that basis. Ultimately, what that means is that, when you became involved, you were not aware that what your task was was [sic] to be involved in the couriering of a significant amount of methylamphetamine.
However, it is accepted by your counsel and in your affidavit, that by 9 April, the evening of, I believe it was, of 2021, you knew that the job now involved, or had come to know, that the job involved the delivery of a significant quantity of methylamphetamine, and you accept that it was your intention by 10 April to be involved in the couriering of illicit drugs for the purposes of it being sold or supplied to another.
You accept, and your counsel accepted on your behalf, that you knew that there was money to be returned to Sydney, in addition to, at this stage, now knowing that drugs [were] to be dropped off.
[29] ts 941.
[30] ts 941 - 942.
A little later, her Honour said:[31]
Being a courier is a trusted role, because it allows the drugs to be moved and delivered to where they need to be in order for the purchaser to make the purchase, and also, obviously, couriering back the proceeds of that purchase is significant. But I'm mindful, of course, that there is no offending that relates to the $888,650. I think we mention that by way of the context of understanding the role of what a courier is in respect of this type of offending.
I do accept your counsel's submission that there was a degree of deception regarding the true nature of the job that you were involving yourself in at the time in which you agreed to be involved, [the appellant]. You understood that you were, in effect, going to be collecting cash in Western Australia, and that was the job that you first initially thought you were going to be involved in. But as your counsel accepts, and as was discussed on Friday, you described it in your psychological report with your psychologist that you knew what you were being involved in was dodgy.
I put it a little bit higher on Friday, and your counsel accepted that, actually, what you knew that you were being involved in was criminal activity, so you had agreed to be involved in criminal activity ‑ not exactly what that was, to what type of offending it could be, or whether or not it was as serious as the significant amount of drugs that you were being involved in, nonetheless you had agreed to be involved in some criminal activity.
That activity must have been of some seriousness because it involved interstate travel, it involved other people making arrangements and providing transport for you, it involved, it seems, cypher phones and it involved you being paid money in order to undertake that task.
And whilst it may be a comparative exercise, you were offered $20,000. That is still a significant amount of money. And you agreed to be involved for $20,000. Although you'd only received [$]10,000 upfront, you had agreed to be involved for $20,000. So that is still a significant amount of money.
So that indicates to me that whilst you didn't know that it related to drugs at the time you got involved, you knew it was some sort of criminal activity. It must have been of some seriousness because somebody was prepared to pay you a significant amount of money to be involved.
[31] ts 942 - 943.
The sentencing judge noted that the offence consisted of the sale or supply of the prohibited drug on 10 April 2021 and that on that day, the appellant knew that what he was involved in was a drug‑related transaction involving the sale or supply of a significant amount of methylamphetamine. Her Honour said that whilst the appellant was not aware of the exact weight or purity of the drug or its value (or even necessarily the type of drug), he knew it was a substantial quantity of drugs, particularly because he was the person who carried the bag containing the drugs to the delivery location.[32]
[32] ts 943.
The sentencing judge accepted that by the time the appellant became aware that the offending involved illicit drugs, he was no longer in his home State and was confronted with a difficult decision because he was already implicated. Her Honour accepted that it was possibly harder to extricate himself than to agree to become involved in a drug transaction. She said that the appellant became aware of the drugs on the night of 9 April 2021 and agreed to continue to be involved and took no action to extricate himself.[33]
[33] ts 943 - 944.
The sentencing judge accepted that the appellant's involvement was a single transaction and not an ongoing course of conduct. Her Honour said that the appellant committed the offence for financial gain. He had been offered $20,000 and had received $10,000 by the time of his arrest. She accepted that the decision to become involved was made in circumstances where the appellant was struggling financially and was at a low emotional ebb due to financial pressures. At the time, he had increased his alcohol and drug use.[34]
[34] ts 944.
The sentencing judge referred to the appellant's personal circumstances and said the following:[35]
You were born in Melbourne. You are the youngest of three brothers. Your parents suffered from alcohol addiction. They were both engaged in gambling. Your childhood has been described in the report as being marked by neglect. Your father had a temper which manifested in violence towards you and your brothers. You reported to your psychologist that you often had to look after yourselves.
When you were 17, your mother suddenly left the family home. That had a very big impact on your relationship with her. After she left, your father's behaviour escalated. Your brother reports that you were the most impacted by your father's temper as you were the youngest. Your [brothers] have gone on to live stable lives. Your father passed away whilst you were in custody. You missed his funeral because you were in custody, and that has had a significant impact on you, notwithstanding the difficulties in your relationship.
You have had a series of short‑term relationships. You met your current partner some three months before you were arrested, and it seems that you have continued this relationship. As your counsel said, what happens remains to be seen, but nonetheless you enjoy the support of the relationship. Your education was marked by a lot of absenteeism. You had issues with education, also as a result of your alcohol and cannabis use. You said that your parents hardly knew that you weren't going to school and, ultimately, you were expelled from year 10.
[35] ts 950 - 951.
Later, her Honour noted that whilst the appellant does have a criminal record, it largely consists of traffic‑related offending. However, there was an offence in 2010 of trafficking in ecstasy for which the appellant received no conviction and a 12-month community‑based order. Her Honour said that whilst the appellant did not come before the court as a first offender, that previous offence was very different from the offending she was dealing with.[36]
[36] ts 953 - 954.
The sentencing judge accepted that the plea of guilty was deserving of a discount and determined that the appropriate discount from the head sentence was one of 10%.[37] Her Honour then returned to the appellant's childhood and said:[38]
Now, your counsel has made submissions to me [that] matters relating to your childhood can essentially fit into the category of what has been described in the authorities as Bugmy factors. That case isn't being relied upon by somehow comparing your circumstances to Mr Bugmy but rather the principles that are set out in that case, which is that when there has been what's described in Bugmy, a profound dysfunction or some dysfunction in early childhood that that can impact upon the culpability of someone who comes before the court.
It's not been disputed by the State [that] what has been put forward by your counsel in this regard, being the factual parts that are relied upon. I raised with your counsel whether or not there needed to be any causative link having reviewed the authorities both in New South Wales that were provided to me, and also in Western Australia, I accept that there does not need to be a causative link between the dysfunction as a child and the Bugmy principles in order for that mitigation to arise. The case law speaks of there being a stronger degree of mitigation if it does but it is not necessary for there to be a causal link.
[37] ts 956.
[38] ts 956 - 957.
Her Honour then went on to say:[39]
But in a high way of describing it, by that I mean I'm not going to delve into the personal individuality of it in open court but given it's not being disputed I think I can describe it in this way, is it was a dysfunctional home life. You lacked a nurturing environment.
There were inadequate parental controls and guidance, as has been described by your counsel. You were exposed to alcoholism. You were exposed to physical discipline. You were exposed to cannabis and alcohol early and you were exposed to violence, it seems. Sorry, my apologies. You were exposed to your father's drinking and gambling and his irascible nature.
[39] ts 957.
The sentencing judge accepted that the appellant had used his time on remand wisely and was remorseful for the offending. He had made efforts towards his rehabilitation.[40]
[40] ts 958.
The sentencing judge concluded that a sentence of 11 years and 6 months' imprisonment was appropriate. She said that the culpability of the appellant and Wood was essentially the same, and imposed the same sentence on Wood.[41]
[41] ts 965 - 967.
The ground of appeal
There is one ground of appeal. It is:
1.The [appellant] suffers a justifiable sense of grievance when comparing the sentence imposed on him with the sentence imposed upon his co-offender, Wood.
Appellant's submissions
The appellant submitted that whilst the offending was serious, his level of culpability was significantly less than that of Wood. The appellant contrasted Wood's knowing involvement from 6 April 2021 with his own lack of knowledge that drugs were involved until the evening of 9 April 2021. Prior to that time, the appellant was of the belief that what was being transported was foreign currency which was to be exchanged for Australian currency in Perth. Whilst he appreciated that he was playing a role in a significant criminal enterprise, it was submitted that money laundering is significantly less serious than selling or supplying a trafficable quantity of methylamphetamine. This is reflected in the comparable maximum penalties for such offences.[42]
[42] WAB 9; appeal ts 5 - 6.
The appellant submitted that the sentencing judge narrowly focused on the events of 10 April 2021. This was the date on which the sale or supply occurred and was the nominated date of the offence. However, the appellant suggested that by focusing on what was done on that day, her Honour failed to give appropriate weight to the fact that the appellant did not become aware of the drugs until the night before the offence. The suggestion was that the length of the appellant's knowing involvement in the drug enterprise was less than that of Wood and this was not properly taken into account.[43]
[43] WAB 10 - 11.
The appellant also submitted that his personal circumstances included significant childhood deprivation (the Bugmy factors[44]). Whilst Wood also had some difficulties in childhood, they were said to be less significant than those of the appellant. In those circumstances, the appellant was deserving of a greater discount.[45]
[44] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[45] WAB 14 - 15; appeal ts 11 - 13.
It was also suggested that any difference in the ages of the appellant and Wood could not have offset the differences in culpability and the appellant's more favourable personal circumstances. Wood's youth was a factor that was only deserving of minor weight.[46]
[46] WAB 13.
Respondent's submissions
The respondent submitted that the judge was acutely aware of the appellant's relative state of knowledge as compared to that of Wood. However, the respondent denied that this was a factor that should have had a material impact on the assessment of the appellant's culpability. The appellant was well aware that he was involved in unlawful activity from the outset. The appellant was not an innocent actor up until the point he became aware there were drugs in the bag. The respondent submitted that the more important point is that when it came time for the appellant to carry out the drop off of the drugs, he knew exactly what was required and undertook that task.[47]
[47] WAB 24 - 25.
The respondent submitted that the sentencing judge did not wrongly confine her analysis of the respective culpability of the two co‑offenders to the events of 10 April 2021. Whilst her Honour was careful to proceed on the basis that the offence occurred on 10 April 2021, she took into account the actions before that date to inform the extent of the appellant's and Wood's culpability.[48]
[48] WAB 24 - 25.
The respondent submitted that the appellant's personal mitigating circumstances were comparable to those of Wood. Both men pleaded guilty at a late stage and were allowed the same discount of 10%. Both were remorseful and both had used their time in prison 'wisely' and had made efforts towards rehabilitation and addressing the causes of their offending. While the appellant had a historic conviction for trafficking drugs, the sentencing judge expressly noted that little weight could attach to that fact. The appellant's dysfunctional upbringing was before the sentencing judge, who described the appellant as having lacked a nurturing environment with exposure to alcoholism, physical discipline, gambling addiction and violence. Wood, however, also had a background of hardship and had experienced violence in a domestic environment. The respondent submitted that there was no significant difference between the extent of childhood hardship relied on by the appellant and Wood.[49]
[49] WAB 25 - 26.
Relevant legal principles
The parity principle is an aspect of equal justice. Equal justice requires that like offenders should be treated alike but, if there are relevant differences, due allowance should be made for them. 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.
The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters.[50]
[50] Giangiulio v The State of Western Australia [2022] WASCA 77 [60].
The imposition of identical sentences upon co‑offenders whose respective conduct and antecedents warrant different sentences is unjust. Similarly, the imposition of different sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.[51]
[51] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617 (Brennan J).
The merits
In the present case, the appellant submits that the imposition of the same sentence on him as on Wood is unjust due to their different levels of culpability and different personal circumstances. To establish a ground of appeal that relies on a breach of the parity principle, it is not sufficient to show that there is some difference between co‑offenders. The difference must be such that the imposition of the same sentence is productive of an injustice.
The appellant principally relies upon the difference in culpability arising from his state of knowledge as compared to that of the co‑offender. The sentencing judge accepted that the appellant did not become aware that illicit drugs were involved until the night before the supply transaction occurred. However, that does not mean that the appellant was an innocent participant in this enterprise prior to 9 April 2021.
To the contrary, on 6 April 2021 the appellant travelled by car with Wood from Victoria to Sydney on the understanding that he would be participating in a significant criminal enterprise, for which he would be paid $20,000, $10,000 of which was paid in advance. Wood was promised $10,000 to $15,000, none of which was paid. The appellant travelled with Wood to Wagga Wagga, before travelling separately to Perth. In Perth, he again met with Wood, went to a public park where he took photographs, and then later returned to that park with the bag that he now knew contained a large quantity of methylamphetamine. The appellant took the bag into the park, where he left it. Later, when he returned to the park with Wood, the appellant went into the park and collected a box containing a very large quantity of cash. Both the appellant and Wood were categorised as couriers, but that should not diminish the trusted role that they both played. Viewed as a whole, the appellant's culpability was not significantly less than that of Wood.
As to personal circumstances, there was no significant difference between the appellant and Wood. Both had difficult childhoods in which there was deprivation and exposure to domestic violence. Both had commenced use of drugs and alcohol at an early age. It was not suggested that these histories were causative of the offending. These matters formed part of the general background of the appellant and Wood. As has been said on many occasions, personal circumstances are accorded reduced weight in respect of offences of this nature, given the importance of general deterrence.
It has not been established that there were any significant differences in terms of culpability or personal circumstances as between the appellant and the co‑offender such as to engender a justifiable sense of grievance due to the imposition of the same sentence. The ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Associate to the Honourable Justice Hall
14 NOVEMBER 2024
3
1