Petrusic v The State of Western Australia
[2020] WASCA 62
•24 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PETRUSIC -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 62
CORAM: MAZZA JA
BEECH JA
VAUGHAN JA
HEARD: 14 FEBRUARY 2020
DELIVERED : 24 APRIL 2020
FILE NO/S: CACR 82 of 2019
BETWEEN: JOSIP MATTHEW PETRUSIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 596 of 2015
Catchwords:
Criminal law - Sentence appeal - Sale or supply of methylamphetamine in contravention of s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) - Whether sentence imposed infringed parity principle - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), 6(1)(c)
Result:
Time to commence appeal against sentence extended
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | MD Howard SC & J Solliss |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | N/A |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Barden v State of Western Australia [2014] WASCA 161
Castrilli v The State of Western Australia [2019] WASCA 135
EXF v The State of Western Australia [2015] WASCA 118
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
HSV v The State of Western Australia [2020] WASCA 5
Jardim v The State of Western Australia [2011] WASCA 83
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Moore v The State of Western Australia [2006] WASCA 121
R v Ng [2012] WASCA 180
Roffey v The State of Western Australia [2007] WASCA 246
Stanley v The State of Western Australia [2018] WASCA 229
Wimbridge v The State of Western Australia [2009] WASCA 196
Wong v The State of Western Australia [2019] WASCA 8
JUDGMENT OF THE COURT:
Overview
On 1 September 2015 the appellant, Josip Petrusic, was convicted following a guilty plea of a single count of selling or supplying 3.85 kg of methylamphetamine in contravention of s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). Thereafter, on 18 February 2016, Mr Petrusic was sentenced to a term of 12 years' immediate imprisonment with eligibility for parole. The sentence was backdated to commence on 20 February 2015. The sentencing judge (Birmingham DCJ) also made a drug trafficker declaration.
On 4 June 2019 Mr Petrusic filed an appeal notice against his sentence. The substantial delay in the application is explained by the circumstance that the substantive appeal ground is that the sentence imposed infringed the parity principle. One co‑offender,[1] Yik Chiu Wong, was re-sentenced by this court on 16 January 2019.[2] Mr Petrusic only became aware of Mr Wong's re-sentencing in March 2019 and thereafter made arrangements to contact senior counsel involved in Mr Wong's appeal.[3] Another co-offender, Patrick Preston, was sentenced in the District Court on 13 June 2019.
[1] As to the use of the term 'co-offender' see [42] - [43] below.
[2] Wong v The State of Western Australia [2019] WASCA 8 (Wong).
[3] Affidavit of J M Petrusic sworn 30 May 2019 pars 7 - 19.
For the reasons that follow Mr Petrusic should have an extension of time and leave to appeal. However, the appeal should be dismissed because we are not persuaded that the parity principle has been infringed.
The circumstances of the offence and Mr Petrusic's sentence
During the afternoon of 20 February 2015 Mr Petrusic was observed by police to meet with Mr Wong near the corner of Hay Street and Victoria Avenue in Perth. Mr Wong proved his identity to Mr Petrusic. Mr Petrusic and Mr Wong then walked to a white Hyundai, parked in Hay Street, of which Mr Preston was the driver. Police observed Mr Petrusic open the boot of the Hyundai and show Mr Wong a Diesel branded workman bag. Mr Wong removed the bag from the boot and walked away. Mr Preston - accompanied by Mr Petrusic in the front passenger seat - drove off in the Hyundai.
Mr Wong was apprehended by police in possession of the Diesel bag. It was found to contain four bags of methylamphetamine weighing 3.85 kg.
The Hyundai was stopped by police on Bennett Street in East Perth. Mr Petrusic and Mr Preston were arrested. Mr Petrusic was questioned by police but made no admissions. He was charged and remanded.
Mr Petrusic pleaded guilty on 1 September 2015. On 22 October 2015 Mr Petrusic, by counsel, informed the sentencing judge that the facts were admitted in substance.[4] It was suggested, however, that Mr Petrusic was a mere courier who was to derive little or no financial benefit. The contention was that Mr Petrusic was simply transferring the drugs on direction.[5] Mr Petrusic, by counsel, did however state that he had a cocaine drug debt in the region of $10,000 which would be cleared as a result of his participation in the offending.[6]
[4] ts 10.
[5] ts 11.
[6] ts 13, 20 - 21; psychologist report pages 2 - 3.
Arrangements were made for a trial of issues. Subsequently, however, Mr Petrusic conceded the issue, accepting the facts as stated by the State. Mr Petrusic accepted that he was not merely a courier, but was a facilitator.[7] On that basis the trial of issues was not required.
[7] ts 19, 21.
Mr Petrusic was sentenced on 18 February 2016. The sentence of 12 years' immediate imprisonment, backdated to 20 February 2015, included a discount of 10% for Mr Petrusic's plea of guilty and a further reduction of 5%.[8]
[8] ts 36 - 38.
It is convenient to describe the circumstances of the offending and the basis for Mr Petrusic's sentence in more detail after first outlining the position in relation to Mr Wong and Mr Preston.
The sentences for the co-offenders
Mr Wong's sentence
Mr Wong was charged with five offences:[9] two money laundering offences (in amounts of $100,000 each);[10] being in possession of the 3.85 kg of methamphetamine with intent to sell or supply (count 3);[11] being in possession of a further 7.6 kg of methylamphetamine with intent to sell or supply;[12] and being in possession of property reasonably suspected of being unlawfully obtained (money in an amount of $400,938.50).[13]
[9] Wong [3]. See also at [12] - [16], [18] - [20] (as to count 3, [21] - [22]).
[10] Contrary to s 563A(1)(b) of the Criminal Code (WA).
[11] Contrary to s 6(1)(a) of the Misuse of Drugs Act.
[12] Contrary to s 6(1)(a) of the Misuse of Drugs Act.
[13] Contrary to s 417(1) of the Criminal Code (WA).
It was accepted, for the purposes of this appeal, that count 3 was the only offence for which Mr Wong was a co-offender with Mr Petrusic.
In the District Court Mr Wong was sentenced to a total effective sentence of 16 years and 6 months' immediate imprisonment with eligibility for parole. On count 3 the sentence was 14 years' immediate imprisonment.[14]
[14] Wong [6].
Mr Wong's brother, Yik Cheun Wong, was charged as a co‑offender with Mr Wong on two of the counts (counts 4 and 5). However, Yik Cheun Wong was not a co-offender with Mr Petrusic. Yik Cheun Wong received a total effective sentence of 13 years' immediate imprisonment with eligibility for parole.[15] On appeal this was reduced to a total effective sentence of 11 years' immediate imprisonment. There was, however, no suggestion on the present appeal that Yik Cheun Wong's sentence was relevant in parity terms in assessing whether there was error in the sentence imposed on Mr Petrusic.
[15] Wong[6].
Mr Wong appealed on the ground that the sentences imposed were manifestly excessive and that the total effective sentence infringed the totality principle. At the hearing of Mr Wong's appeal it was clarified that the allegation of manifest excess was restricted to the sentence of 14 years imposed on count 3.[16] This court concluded that the sentence of 14 years was manifestly excessive.[17] In re-sentencing Mr Wong on count 3 this court concluded that the appropriate sentence was one of 11 years' imprisonment.[18]
[16] Wong [46].
[17] Wong [80], [100].
[18] Wong [82], [100].
In coming to a sentence of 11 years' imprisonment on count 3 the court referred to the following (in addition to relevant authorities including comparable cases):[19]
1.Like the sentencing judge, this court reduced the head sentence by 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). It was accepted that, while not entered at the first reasonable opportunity, a plea of guilty was entered at an early stage.[20]
2.Mr Wong was recruited by a drug dealer in Hong Kong and acted at his direction for financial reward.[21]
3.The offending was 'undoubtedly serious'.[22]
4.Mr Wong's criminality in respect of count 3 had to be seen in its broader context. He came to Australia as part of an international drug distribution network. Mr Wong did so for commercial gain.[23] The scale of the operations was large. Count 3 was no one-off aberration. Over eight months Mr Wong had received and carried out instructions given to him by his boss in Hong Kong. His duties involved collecting and delivering drugs as well as holding cash which was the proceeds of drug dealing.[24]
5.Mr Wong was 'vital to the operation' being a 'highly trusted operative towards the top of the hierarchy'.[25] (For example, Mr Wong's position was higher than his brother's.)[26]
6.Mr Wong's criminality in relation to count 3 was consistent with the drug distribution network in which he was involved. He took delivery of the methylamphetamine. Had he not been caught Mr Wong would have kept the drugs at his residence until given instructions about what to do with them. The drugs would eventually have been sold or supplied to others causing great harm to the community.[27]
7.However, Mr Wong did not own the drugs and was not in control of the operations.[28]
8.By way of mitigation it was necessary to take into account Mr Wong's relative youth, his favourable antecedents and his acceptance of responsibility for his offending.[29] (Mr Wong was 23 at the time of offending and did not have a prior criminal record.[30] On arrest he made full admissions as to the charged offences.[31])
[19] Wong [82]. See also at [45], [70] - [76].
[20] Wong [82].
[21] Wong [9].
[22] Wong [77]. See also at [61].
[23] The sentencing judge found that Mr Wong's rent was paid and he received a food allowance. Mr Wong was paid between $2,000 and $5,000 for each errand he was directed to perform. In addition, Mr Wong expected to be paid a large - but unspecified - amount on his return to Hong Kong: Wong [9].
[24] Wong [62] - [63].
[25] Wong [65]. See also at [68], [97].
[26] Wong [88].
[27] Wong [64].
[28] Wong [77].
[29] Wong [82].
[30] Wong [8].
[31] Wong [14], [20], [25] - [26].
This court imposed a total effective sentence of 15 years' imprisonment. Mr Wong was made eligible for parole and his sentence was backdated to commence on 20 February 2015.[32]
[32] Wong [90], [100].
Mention should also be made of the court's re-sentencing conclusions on the other charges. The most serious was count 4 concerning possession of 7.6 kg of methylamphetamine with intent to sell or supply. The court concluded that the appropriate sentence with respect to count 4 was 12 years' imprisonment.[33] A term of 12 months imprisonment was provided for each of the money laundering counts.[34] As to the remaining count, concerning the possession of the $400,938.50, the sentence was a term of imprisonment of 2 years.[35]
[33] Wong [88].
[34] Wong [89].
[35] Wong [89].
In imposing a total effective sentence of 15 years' imprisonment, the sentences on count 2 (one of the money laundering counts) and count 3 (possession of the 3.85 kg of methamphetamine with intent to sell or supply) were to be served concurrently with the sentence on count 4 (possession of the 7.6 kg of methamphetamine with intent to sell or supply). The other sentences were to be served cumulatively.[36]
Mr Preston's sentence
[36] Wong [90].
Mr Preston was sentenced on two counts following guilty pleas: first, in common with Mr Petrusic, on a count of selling or supplying the 3.85 kg of methylamphetamine; second, on a count of breaching bail. As to the second, Mr Preston, who was later found in Queensland living under an assumed name, failed to appear at the District Court when required while on bail after his initial trial was aborted.[37]
[37] ts 396 (Mr Preston's sentencing) WAB 74.
In sentencing Mr Preston the sentencing judge (Glancy DCJ) had regard to the sentences imposed on Mr Petrusic and Mr Wong as co‑offenders.[38]
[38] ts 404 - 405 (Mr Preston's sentencing) WAB 82 - 83.
For the breach of bail Glancy DCJ imposed a term of 12 months' imprisonment.[39] Her Honour would have imposed a term of immediate imprisonment of 10 years in relation to the count under the Misuse of Drugs Act.[40] However, for reasons of totality, Glancy DCJ reduced the 10 year term on the supply count to 9 years and ordered that the two terms be cumulative. That resulted in a total effective sentence of 10 years' immediate imprisonment. Her Honour ordered that Mr Preston be eligible for parole.[41]
[39] ts 405 - 406 (Mr Preston's sentencing) WAB 83 - 84.
[40] ts 405 (Mr Preston's sentencing) WAB 83.
[41] ts 406 (Mr Preston's sentencing) WAB 84.
In coming to that sentencing disposition, Glancy DCJ made the following findings, among others, in relation to the supply count:
1.Mr Preston was recruited by Mr Petrusic (Mr Petrusic was living with Mr Preston in Mr Preston's house at the time).[42] Mr Petrusic had been contacted by a drug syndicate in the Philippines and had been asked to courier drugs from Sydney to Perth for reward.[43]
2.Mr Preston's role was less than that of Mr Petrusic: he, Mr Preston, was not in contact with the drug syndicate in the Philippines; he, Mr Preston, acted on Mr Petrusic's direction.[44] Accordingly, Mr Preston was the least culpable of the three people charged.[45] (Later her Honour noted that Mr Petrusic played a more significant role in the offending than Mr Preston did.)[46] However, the transportation of the drugs to Perth was planned and organised and Mr Preston had a role in that planning.[47] Moreover, Mr Preston's car, a green Porsche, was used to transfer the drugs from Sydney (where Mr Preston lived) to Perth.[48] Mr Preston knew that the intention of the trip to Perth was to supply drugs - an endeavour in which Mr Preston assisted.[49]
3.Mr Preston participated without any intention of immediate financial benefit. He was hopeful of some indirect financial gain in the form of Mr Petrusic putting him in touch with potential investors into his, Mr Preston's, business.[50] But there was no direct commercial gain for Mr Preston.[51]
4.Mr Preston's plea of guilty was a mitigating factor. While it was not proffered at the earliest opportunity it came after there was a significant change in the State's position as to Mr Preston's role. Her Honour concluded that she would discount the head sentence that would otherwise have been imposed by 10%.[52]
5.Mr Preston was 41 at the time of the offending.[53] He had no criminal record that included this type of offending but had various driving offences that were essentially neutral for sentencing purposes.[54] However, Mr Preston was remorseful and there was mitigation in that remorse.[55] Also, Mr Preston was unlikely to reoffend.[56]
6.There ought to be some regard to the fact that Mr Preston would serve his sentence in a location away from his family and without family support.[57]
[42] ts 395 (Mr Preston's sentencing) WAB 73.
[43] ts 395 (Mr Preston's sentencing) WAB 73.
[44] ts 398 (Mr Preston's sentencing) WAB 76. See also ts 396 WAB 74, ts 405 WAB 83.
[45] ts 399 (Mr Preston's sentencing) WAB 77.
[46] ts 404 (Mr Preston's sentencing) WAB 82.
[47] ts 400 (Mr Preston's sentencing) WAB 81.
[48] ts 395 (Mr Preston's sentencing) WAB 73.
[49] ts 396 (Mr Preston's sentencing) WAB 74.
[50] ts 396 - 397 (Mr Preston's sentencing) WAB 74 - 75.
[51] ts 398 (Mr Preston's sentencing) WAB 76.
[52] ts 399 (Mr Preston's sentencing) WAB 79.
[53] ts 396 (Mr Preston's sentencing) WAB 77.
[54] ts 402 (Mr Preston's sentencing) WAB 80. See also ts 398 WAB 76.
[55] ts 402 (Mr Preston's sentencing) WAB 80.
[56] ts 403 (Mr Preston's sentencing) WAB 81.
[57] ts 403 (Mr Preston's sentencing) WAB 81.
So far as Glancy DCJ made findings about Mr Petrusic's involvement in the offending in the course of sentencing Mr Preston, they are not findings that bind Mr Petrusic. Mr Petrusic was sentenced on the basis of the findings made by Birmingham DCJ. But it is relevant to note Glancy DCJ's findings as to the respective involvements of Mr Preston and Mr Petrusic so far as they inform and explain her Honour's sentence in relation to Mr Preston.
The basis for Mr Petrusic's sentence
At the sentencing hearing Mr Petrusic admitted, by counsel, that he had packaged the drugs and thereafter he had facilitated their transport and delivery from Sydney to Western Australia.[58] The State admitted that Mr Petrusic was not a principal of the relevant organisation (ie he was not 'the brains of the operation'). While more than a mere courier, the State did not take issue with classifying Mr Petrusic's offending as 'being somewhat of a facilitator'.[59]
[58] ts 21.
[59] ts 27.
The sentencing judge made findings as to the circumstances of the offending that were consistent with the facts stated at [4] - [6] above.[60] His Honour also referred to the procedural background as previously recounted at [7] above.[61]
[60] ts 33.
[61] ts 32.
In terms of personal antecedents the sentencing judge found that Mr Petrusic was born in Canada and was 36 years old at the time of sentencing[62] (making him 35 at the time of offending). The sentencing judge also referred to Mr Petrusic as having travelled to the Philippines in about 2010 and then remaining there.[63] In a finding which was initially sought to be challenged on appeal, the sentencing judge found that Mr Petrusic had no prior convictions in Australia but admitted to serious offences in Canada.[64] The sentencing judge referred to various personal references and found that Mr Petrusic had made every effort to proceed towards his rehabilitation.[65]
[62] ts 34.
[63] ts 34.
[64] ts 36.
[65] ts 38.
The sentencing judge went on to find that:
1.The offence was a serious example of its type demonstrating a degree of sophistication and planning.[66]
2.The methylamphetamine was of high purity capable of being cut or bulked-up to increase the volume and value at sale.[67]
3.Mr Petrusic was not a mere courier but a trusted member of a criminal organisation entrusted with a very considerable quantity of drugs.[68] Although not a principal offender, Mr Petrusic had handled the drugs, packing the bags for transportation, and made the necessary arrangements to facilitate the transfer of the drugs. Mr Petrusic was and had to be treated as being trusted by those high in the chain of distribution and as playing an important role in the distribution of a large quantity of drugs of considerable value.[69] His place and involvement in the organisation was important.[70]
4.Mr Petrusic bore considerable criminal culpability in the offence for the part that he played in facilitating the delivery of the drugs.[71]
5.Mr Petrusic was motivated by financial gain.[72] (In context this could only refer to clearing the $10,000 drug debt.)
6.The plea of guilty was a mitigating factor that entitled Mr Petrusic to a reduction in sentence. However, having regard to the initial dispute as to the facts requiring preparation for a trial of issues, and the 'exceptionally strong' case against Mr Petrusic, the reduction was limited to 10% of the head sentence that would otherwise have been imposed.[73]
7.The sentence that might otherwise have been imposed was also reduced by a further 5%.
8.Regard would be given to the circumstance that any term of imprisonment served would be away from Mr Petrusic's family.[74]
[66] ts 39.
[67] ts 34.
[68] ts 34.
[69] ts 39 - 40.
[70] ts 40.
[71] ts 40.
[72] ts 39.
[73] ts 36 - 37.
[74] ts 36. See also at ts 38 - 39, 40.
The sentencing judge referred to accepted sentencing principles. As no exception is taken with that aspect of his Honour's remarks it is not necessary to re-state those matters. It suffices to note that the sentencing judge referred to the principles evinced in s 6 of the Sentencing Act[75] and the specific principles applying to offences of dealing or trafficking in dangerous drugs of addiction.[76]
[75] ts 33.
[76] ts 33, 39 - 40.
The sentencing judge concluded that the only appropriate disposition was a term of immediate imprisonment. In all the circumstances his Honour concluded that the appropriate sentence was one of imprisonment for 12 years. An order was made that Mr Petrusic be eligible for parole.[77]
[77] ts 40.
Extension of time to appeal
Mr Petrusic's application for leave to appeal was lodged more than three years after the time allowed under statute.[78] The principles on which this court will grant an extension of time are well-established and need not be repeated.[79] While Mr Petrusic's delay was lengthy, the application was made in circumstances that are special and unusual: the appeal raised questions of parity based on the recent sentencing of Mr Petrusic's co-offenders. The timing of Mr Petrusic becoming aware of Mr Wong's re-sentencing was explained. So too was the relatively short delay in Mr Petrusic thereafter obtaining legal representation and the lodgement of the appeal notice.
[78] cf Criminal Appeals Act 2004 (WA) s 28(4).
[79] Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [26], [42] - [49]; EXF v The State of Western Australia [2015] WASCA 118 [5] - [8].
The State did not oppose Mr Petrusic's application for an extension of time.[80] In the circumstances before the court there should be an extension of time.
[80] Respondent's submissions par 2 WAB 29.
Grounds of appeal
In his written appellant's case Mr Petrusic relied on two grounds of appeal. He alleged that:
1.The sentence imposed constituted an error of law in that it infringed the parity principle when compared to the sentences imposed on Mr Wong and Mr Preston (ground 1).
2.The sentencing judge erred in law by taking into account a history of offending in Canada for which there was no evidence and which was not accepted by either the prosecution or the defence at sentencing (ground 2).
Ground 2: prior offending in Canada
Ground 2 was abandoned at the hearing of the appeal.[81] Senior counsel for Mr Petrusic suggested, however, that a proper understanding of the true state of affairs would be relevant to any re‑sentencing.[82] We accept that qualification. The ground focused on the following statement of the sentencing judge:
You [referring to Mr Petrusic] obviously had no prior convictions in this country however admit to serious offences in your country of birth.[83]
[81] Appeal ts 10 - 11.
[82] Appeal ts 10 - 11.
[83] ts 36.
Mr Petrusic was born in Canada. However, he spent several years living in the Philippines before coming to Australia. It was common ground before the sentencing judge that the appellant had no prior criminal history in Western Australia.
Before sentencing a psychological report was prepared in relation to Mr Petrusic. The report was before the sentencing judge and his Honour quoted from it in making his sentencing remarks.[84] Among other things, the psychological report stated that Mr Petrusic denied any involvement with drug culture or drug trafficking activities in Canada. However, under the heading 'Offending History' the report stated:
Mr Petrusic reported that he was convicted of assault and extortion in Canada when he was aged 18 years. Mr Petrusic claimed he was also charged with threats to kill but this charge was dropped. Mr Petrusic claimed the offence pertains to him assaulting a friend who owed him money and that he extorted the money from his friend. Claiming he pleaded not guilty to the offenses and spent several months remanded in custody Mr Petrusic claimed he was subsequently released on bail for 18 months awaiting trial but that he pleaded guilty the day the trial was due to commence. Mr Petrusic claimed he avoided imprisonment due to time served. As the writer does not have access to Mr Petrusic's Canadian record this could not be verified. Mr Petrusic also reported having convictions for traffic offences. He initially reported that he also had convictions for Driving Under the Influence however he then retracted this comment.[85]
[84] ts 35 - 36. See also at ts 40.
[85] Psychologist report pages 3 - 4.
Mr Petrusic did not dispute that he informed the psychologist of these things.
The sentencing judge was entitled to have regard to the contents of the psychological report.[86] Accordingly, there was evidence before the sentencing judge of an admission, on the part of Mr Petrusic, to the effect that he had been convicted (on pleas of guilty) of offences of assault and extortion in Canada when aged 18. Such offences are correctly characterised as 'serious offences'. The factual finding initially challenged by ground 2 was open to the sentencing judge. In the circumstances senior counsel for Mr Petrusic was correct to abandon reliance on ground 2.
[86] Sentencing Act 1995 (WA) s 15.
Nevertheless, so far as the sentencing judge found that Mr Petrusic had admitted to serious offences in Canada, the finding must be understood in light of the information provided in the psychological report. The offences occurred when Mr Petrusic was 18 years of age, some 17 years prior to the offence for which Mr Petrusic was sentenced in the District Court. The prior offending was not recent and was of a different nature to the offence for which Mr Petrusic was sentenced.
Ground 1: Alleged infringement of the parity principle - the parties’ submissions
Ground 1 raised the parity principle. In substance Mr Petrusic contended that the 12 year term of imprisonment to which he had been sentenced infringed the parity principle when compared to the sentences imposed on his co-offenders - Mr Wong (11 years) and Mr Preston (10 years before the discount for totality).[87] In so contending senior counsel for Mr Petrusic primarily invited attention to the sentencing outcomes on the 'common count' as demonstrating the alleged infringement, but accepted that, in the end, the court had to look at everything.[88]
[87] Appellant's submissions pars 16, 38 WAB 12, 15-16.
[88] Appeal ts 4 - 5
Adopting that terminology, we will refer to the 'common count' and the 'common offence' (or sometimes the 'comparable offence') even though, as explained below, Mr Petrusic and Mr Wong committed different crimes.
Strictly Mr Petrusic and Mr Wong were not co-offenders in the sense that they committed the same crime.[89] Mr Petrusic was charged with sale or supply of the methylamphetamine (under s 6(1)(c) of the Misuse of Drugs Act) whereas Mr Wong was charged with possession with intent to sell or supply the methylamphetamine (under s 6(1)(a) of the Misuse of Drugs Act). In substance, however, Mr Petrusic and Mr Wong were sentenced with similar offences, of equal seriousness, arising out of the same criminal enterprise. The different charges reflected the different stages of Mr Petrusic's and Mr Wong's respective involvement in the distribution of the drugs.
[89] By contrast Mr Petrusic and Mr Preston were charged and convicted of the same crime.
Before this court no party suggested that the different charges precluded the application of the parity principle. The parties were correct not to do so. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition for the application of the parity principle.[90] The application of the parity principle is concerned with substance over formality. Mr Petrusic and Mr Wong were charged with offences that were materially comparable from a culpability perspective and in respect of which they are properly referred to as co‑offenders. However, the fact that Mr Wong also faced additional charges makes comparison more difficult.
[90] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30]; Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins) [23] - [24].
Senior counsel for Mr Petrusic submitted that the re-sentencing of Mr Wong in this court made good the infringement of the parity principle.[91] Mr Wong's criminality was said to be 'much greater' than that of Mr Petrusic.[92] With Mr Preston, while it was accepted that Mr Preston played a lesser role than Mr Petrusic, it was said to be not very much less.[93]
[91] Appeal ts 7.
[92] Appeal ts 7.
[93] Appeal ts 6 - 7.
The State accepted that there were differences in the sentences imposed on Mr Petrusic and his co-offenders. However, the State submitted that this was due to their different roles in the offending.[94] The State also submitted that:[95]
1.Mr Wong was punished by a total effective sentence of 15 years' immediate imprisonment.
2.When that was factored in, and all relevant factors were considered objectively, Mr Petrusic could have no justifiable sense of grievance based on the circumstance that he received a term of 12 years' immediate imprisonment on the common count while Mr Wong received a term of 11 years.
[94] Respondent's submissions par 10 WAB 31.
[95] Appeal ts 12 - 13, 14.
Parity: the applicable legal principles
The legal principles applicable to the parity principle are well established. The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v the Queen has been adopted or reproduced in this court many times:[96]
[96] Ngo v The Queen [2017] WASCA 3 [36] - [39]. Statements in substantially the same terms may be found in Stoysich v The State of Western Australia [2014] WASCA 208 [39] - [45] and Barnden v State of Western Australia [2014] WASCA 161 [55] - [58]; see also Stanley v The State of Western Australia [2018] WASCA 229 [38], Wong [92] and Birdsall v The State of Western Australia [2019] WASCA 79 [313].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
While the parity principle may permit a court to impose what it considers to be a manifestly inadequate sentence (but not an affront to justice), it does not require the court to do so.[97]
[97] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33]; Beins v The State of Western Australia [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[98] apply.[99]
[98] House v The King (1936) 55 CLR 499.
[99] Green v The Queen [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40].
In Higgins v The State of Western Australia,[100] 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.[101]
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.[102]
3.In evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences[103] and all relevant sentencing principles, including the totality principle.[104]
[100] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins).
[101] Higgins [25], [178] - [179], [199] - [208].
[102] Higgins [169] - [177], [204] - [210].
[103] Higgins [53] - [54], [184].
[104] Higgins [19], [168].
Thus, it is permissible, in considering whether the parity principle has been infringed, to compare the individual sentences imposed on Mr Petrusic and Mr Preston (as to the sale or supply of the 3.85 kg of methylamphetamine) and Mr Wong (as to the possession of the same methylamphetamine with intent to sell or supply). But that is not the end of the parity enquiry. It is necessary to consider all the relevant facts and circumstances as well as all of the components of the three offenders' respective sentences as explained in Higgins. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account.[105]
[105] Higgins [53].
Disposition: the parity principle is not infringed
As already noted, senior counsel for Mr Petrusic relied only on the comparison of the sentences on the common count as revealing infringement of the parity principle; he did not suggest that comparison of the total effective sentence revealed an infringement. In support of the appellant's parity argument senior counsel for the appellant invited comparison between Mr Petrusic's sentence of 12 years' imprisonment and both: (1) Mr Wong's sentence of 11 years' imprisonment for his comparable offence (ie the offence the subject of count 3); and (2) Mr Preston's sentence for the same offence as Mr Petrusic - one of 10 years' imprisonment before reduction to 9 years' imprisonment for totality purposes. The infringement of the parity principle - put in terms of disparity - was said to be starker in relation to Mr Wong than it was in relation to Mr Preston.[106]
[106] Appeal ts 7.
Before considering Mr Petrusic's argument it should be observed that in four respects there was little differentiation between the three offenders. First, each was sentenced to a term of immediate imprisonment. That is hardly surprising. A term of immediate imprisonment is, ordinarily, the only appropriate sentencing option for the serious type of drug offence as constituted by the common offence. Second, each sentence was backdated to reflect the time already spent in custody. Third, each offender was made eligible for parole. Fourth, so far as personal circumstances were concerned, to the extent that the sentencing judges for Mr Petrusic and Mr Preston took into account that their terms of imprisonment would be served away from their family, that was also the case for Mr Wong.[107]
[107] Although this court considered Mr Wong to have been 'fortunate' to have this given any weight so far as it was Mr Wong's deliberate decision to involve himself in drug dealing in a foreign country: Wong [69].
In inviting comparison between the respective sentences for the common offence, senior counsel for Mr Petrusic initially sought to arrive at notional head sentences for each offender taking into account his respective discount for the plea of guilty.[108] This is of limited usefulness. Sentencing is not a mechanical or mathematical exercise to be broken down into some set of component parts.[109] Such reverse engineering assumes all things other than the discount for the plea of guilty are equal. They were not. Rather than engaging in a quantitative reconciliation in respect of the sentences for the common offence the task is one of qualitative evaluation of all relevant facts and circumstances (including the sentences being served for separate or unrelated offences) in the manner explained in Higgins.
[108] Appeal ts 2 - 3.
[109] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [34].
In any event, as explained below, if the exercise invited by senior counsel for the appellant is undertaken, the analysis does not assist the appellant.
Senior counsel for the appellant argued that Mr Wong's criminality was 'much greater' than that of Mr Petrusic. That being so, the re‑sentencing of Mr Wong to 11 years' imprisonment on the common count (when a sentence of 12 years was imposed on Mr Petrusic) was said to lead to the disparity which made out the infringement of the parity principle. Based on the matters recounted by this court in Wong (see at [16] above) senior counsel for the appellant sought to emphasise three matters. First, that Mr Wong's offending was not a one-off aberration but extended over eight months. By contrast, Mr Petrusic, like Mr Preston, was said to be a one-off offender. Second, Mr Wong was towards the top of the distribution chain. Third, Mr Wong had a very significant role in the operation which he had been conducting knowingly for a sustained period.[110]
[110] Appeal ts 5, 7.
We are unable to accept that, so far as the common offence is concerned, the culpability of Mr Wong's offending is much greater than that of Mr Petrusic.
It is well-established that the nature and level of an offender's participation in drug dealing or trafficking within a particular organisation or generally is a relevant sentencing consideration to be taken into account.[111] However, the court has emphasised that it is important to recognise that the characterisation of the offender's role, where possible, must not obscure an assessment of what the offender did.[112] An offender is sentenced not for his or her role or place in a hierarchy but for a particular dealing with a particular drug at a particular time.[113]
[111] See eg R v Ng [2012] WASCA 180 [34]; HSV v The State of Western Australia [2020] WASCA 5 [38].
[112] Gaskell v The State of Western Australia [2018] WASCA 8 [129]; HSV v The State of Western Australia [39].
[113] Moore v The State of Western Australia [2006] WASCA 121 [17].
In the present case Mr Petrusic and Mr Wong had different roles in the distribution network for the same methylamphetamine. Mr Petrusic, with the assistance of Mr Preston, packaged and transported the illicit drugs from Sydney to Perth. Mr Wong was to warehouse the methylamphetamine pending further instructions. Neither Mr Petrusic nor Mr Wong controlled the operations. Neither owned the drugs. Both carried out instructions from overseas. Both performed an integral function in the illicit drug distribution network. Mr Petrusic's role was indispensable to that performed by Mr Wong. But for the transportation of the methylamphetamine, as effected by Mr Petrusic with Mr Preston's assistance, Mr Wong would not have been able to commit his offence in relation to the 3.85 kg of methylamphetamine.
Viewed objectively, insofar as Mr Petrusic was responsible for transportation and Mr Wong was responsible for warehousing, the two offenders' culpability in respect of the particular offending was broadly equivalent. Each performed a vital function within the chain of distribution where he was entrusted by those at the overall top of the hierarchy with a large quantity of illicit drugs. Indeed, the view is open that Mr Petrusic's criminality was greater when account is taken of the elaborate arrangements for the transportation of the drugs and of Mr Petrusic’s recruitment of Mr Preston, who then acted under his direction.
As well as the nature and level of an offender's participation in drug dealing, one of the matters taken into account is whether the offending was committed for personal gain. Here, again, there is nothing of substance to distinguish Mr Petrusic's and Mr Wong's respective culpability. Both Mr Petrusic and Mr Wong acted for commercial gain. Nothing of substance arises from the amount of expected gain. Mr Petrusic was working off a drug debt in the amount of around $10,000 whereas Mr Wong was paid between $2,000 to $5,000 for each 'errand'. To the extent that Mr Petrusic had a greater immediate gain, that was offset by Mr Wong's expectation of receiving a larger amount on return to Hong Kong for the whole of his activities on behalf of the syndicate.
We accept, however, that Mr Wong's offending was not one-off. In that respect senior counsel for the appellant correctly identified that there was a relevant difference between Mr Petrusic and Mr Wong. Two things should be mentioned as to that difference. First, so far as the submission is based on Mr Wong's eight months' engagement in the drug dealing operation, Mr Wong made full admissions on his arrest. The eight month figure is known as a result of those admissions. Mr Petrusic made no admissions. Second, and more importantly, Mr Wong's ongoing involvement in the drug dealing operation was taken into account in the sentences imposed on him in relation to counts 1, 2, 4 and 5. Mr Wong received a total effective sentence of 15 years' immediate imprisonment across the five counts, not just the 11 years' immediate imprisonment on the common count. Insofar as Mr Wong had that additional ongoing involvement in the drug dealing operations it resulted in additional punishment. In undertaking the parity comparative analysis it is necessary to take into account Mr Wong's total effective sentence rather than limit the examination to the sentence that is solely attributable to the common offence.
As part of the consideration of the question of parity having regard to the sentences on the comparable offence (and the total effective sentences), account must be taken of Mr Petrusic's and Mr Wong's respective personal circumstances. While relevant, these are subsidiary considerations. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. Nonetheless, in some cases, different personal circumstances may result in different sentences being imposed on otherwise like offenders without infringement of the parity principle.
Mr Wong's personal circumstances were distinctly more favourable than those of Mr Petrusic. First, Mr Wong's early plea of guilty resulted in a discount of 20% compared to Mr Petrusic's 10% (although Mr Petrusic received an additional 5%). Second, Mr Wong made full admissions. Among other things, this enabled the court to make reliable findings of fact about Mr Wong's role and involvement in the offending. Mr Petrusic made no admissions. Third, Mr Wong had the benefit of relative youth. Mr Petrusic did not. Fourth, Mr Wong accepted responsibility for his offending. Mr Petrusic's sentencing judge made no express findings in this regard. However, it is clear that the same could not be said of Mr Petrusic given his lack of admissions, initial refusal to accept the material facts as alleged and his statements made in the psychologist report.[114] Fifth, unlike Mr Petrusic, Mr Wong did not have a prior criminal record (although in noting this difference we are conscious of what is stated at [39] above).
[114] Psychologist report pages 2 - 3, 8.
One matter in Mr Petrusic's comparative favour was his efforts towards rehabilitation.
When all the relevant factors are identified and evaluated, we do not accept that, viewed objectively, the disparity between Mr Petrusic's sentence and Mr Wong's sentence was marked and unjustified so as to infringe the parity principle. Looking at the common offence in isolation, we accept that the sentence of immediate imprisonment imposed on Mr Petrusic - 12 years - is longer than that imposed on Mr Wong - 11 years. But, the significance of the difference of one year must be evaluated having regard to the magnitude of both sentences. In culpability terms Mr Petrusic's offending was of broadly equivalent seriousness to that of Mr Wong. As already explained, personal and other mitigating circumstances distinctly favoured Mr Wong as against Mr Petrusic.
If the mathematical exercise suggested by senior counsel for Mr Petrusic is undertaken, and the sentences are adjusted for the various discounts as acknowledged by the sentencing courts, the difference in terms of notional starting sentence is just under four and a half months (Mr Wong having the lesser notional starting point).
Bearing in mind that the parity principle does not dictate a single correct relationship between the respective sentences of co-offenders, the difference in the sentences is justified having regard to the broadly equivalent degrees of culpability and the two offenders’ different personal circumstances. It does not engender a justifiable sense of grievance or give the appearance that justice has not been done.
As already noted, Mr Petrusic does not suggest that comparison of the respective total effective sentences reveals an infringement of the parity principle. Nevertheless, Mr Petrusic's focus on Mr Wong's extended period of offending invites consideration of each offender's total effective sentence, as does Higgins. The difference of three years must be considered in terms of the seriousness of the separate and unrelated offences committed by Mr Wong as well as the two offenders' personal circumstances. Mr Wong's additional offences were also serious. In particular, count 4's possession of 7.6 kg of methylamphetamine with intent to sell or supply involved a quantity of drugs nearly twice the amount of the drugs the subject of the comparable offence. However, as to the separate and unrelated offences Mr Wong again had the benefit of a greater discount for an early plea of guilty and more favourable personal circumstances than Mr Petrusic.
The difference in the total effective sentences must also be assessed taking into account relevant sentencing principles, including, most significantly, the totality principle. In Wong this court expressly observed that in arriving at a total effective sentence of 15 years' immediate imprisonment for Mr Wong there had been an application of the first limb of the totality principle.[115] Given the rationale for the first limb of the totality principle - assumed rehabilitation and reduced demand for retribution after the initial sentence had been served[116] - it is understandable that no suggestion was made that comparison of the total effective sentences revealed a breach of the parity principle.
[115] Wong [90].
[116] See Roffey v The State of Western Australia[2007] WASCA 246 [26].
The appellant's invocation of the parity principle fails so far as Mr Petrusic sought to establish infringement by comparing his sentence against that imposed on Mr Wong.
The appellant's parity argument was also advanced by way of comparing the sentences of Mr Petrusic and Mr Preston. That has obvious difficulties given that senior counsel for Mr Petrusic submitted that the infringement was starker in relation to Mr Wong. For completeness, however, the parity principle should also be examined in its application to the sentences imposed on Mr Petrusic and Mr Preston.
Mr Preston's sentence of immediate imprisonment for the common offence was reduced from 10 years to 9 years for reasons of totality. The sentencing judge having specified what was considered to be the appropriate sentence before adjusting it on account of totality, the notional sentence of 10 years' immediate imprisonment in relation to Mr Preston is, as senior counsel for the appellant acknowledged,[117] the most meaningful comparator for parity purposes.[118]
[117] Appeal ts 4.
[118] Higgins [183], cf [207].
Mr Petrusic and Mr Preston each received a 10% discount for a plea of guilty. Mr Petrusic received a further 5% discount for reasons that did not apply to Mr Preston. In terms of personal mitigating circumstances - necessarily subsidiary considerations given the nature of the offending - Mr Preston was considered to be remorseful and unlikely to reoffend. Mr Petrusic's remorse was taken into account in the 5%.[119] The sentencing judge accepted that Mr Petrusic had made every effort towards rehabilitation. Neither Mr Petrusic nor Mr Preston had the benefit of youth. Mr Preston's personal antecedents were better than Mr Petrusic's given the offences committed by Mr Petrusic in Canada, although we accept that those offences were different in nature to and were committed many years prior to the supply offence of which Mr Petrusic and Mr Preston had been convicted.
[119] ts 37 - 38.
There were, however, differing degrees of culpability as between Mr Petrusic and Mr Preston. Senior counsel for Mr Petrusic acknowledged this, but contended that Mr Preston's role was not much less than Mr Petrusic's role. We do not accept that submission. Mr Preston was sentenced on the basis that the circumstances of the offending were that:
1.Mr Preston was recruited by Mr Petrusic.
2.It was Mr Petrusic, not Mr Preston, who was contacted by the Philippines drug syndicate. Mr Preston was not in contact with the drug syndicate but acted on Mr Petrusic's direction.
3.Mr Preston hoped to receive some indirect financial advantage. However, his participation was without expectation of immediate financial benefit. By contrast Mr Petrusic was to obtain a direct commercial gain by being relieved of a substantial drug debt.
Also, as is apparent from the circumstances of the offending, Mr Petrusic had handled the drugs, packing the bags, and made the arrangements to facilitate the transfer. It was Mr Petrusic who met with and confirmed Mr Wong's identity. Mr Preston was the driver of the vehicle and had no direct contact with Mr Wong.
Self-evidently Mr Preston's offending was serious. Mr Preston had a significant role in the planning and organisation of the transport of 3.85 kg of methylamphetamine from Sydney to Perth. Mr Preston knew of and assisted in the supply of a substantial quantity of an illicit drug. Nevertheless, having regard to the features recounted above, Mr Petrusic's offending ought fairly to be seen as distinctly more serious than that Mr Preston. Mr Preston's involvement in the offending was brought about by Mr Petrusic and was by way of assisting Mr Petrusic, at his direction, in circumstances where Mr Petrusic was the person in contact with the overseas syndicate. Those differences satisfactorily justify the difference in the two offenders' sentences on the common offence and the total effective sentences. So far as there is a disparity in the sentences between Mr Petrusic and Mr Preston the difference properly reflects Mr Petrusic's higher degree of culpability.
In the circumstances the disparity between Mr Petrusic's and Mr Preston's respective sentences was not marked and unjustified so as to infringe the parity principle.
Conclusion and orders
It has not been demonstrated that, on an objective basis, Mr Petrusic has a justifiable sense of grievance based on marked disparity between the sentence imposed on him and the sentences imposed on his two co‑offenders, Mr Wong and Mr Preston. Nor, evaluating and taking into account the components of the offenders' respective sentences, the circumstances of their offending and their personal circumstances, would the differences give rise to the appearance in the mind of a reasonable observer that justice has not been done. The differences in the sentences are justified and within the range of what is appropriate. They reflect the proper application and effect of sentencing principles, and the different degrees of culpability and personal circumstances, as between Mr Petrusic and Mr Wong, on the one hand, and Mr Petrusic and Mr Preston, on the other.
Ground 1 had a rational and logical prospect of succeeding and in that sense had reasonable prospects of succeeding. Mr Petrusic should have leave to appeal, but the appeal should be dismissed.
We propose orders that:
1.The time for the appellant to commence an appeal against the sentence imposed by the District Court on 18 February 2016 is extended to 7 June 2019.
2.The appellant has leave to appeal on ground 1.
3.Leave to appeal on ground 2 is refused (the ground being abandoned).
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Vaughan24 APRIL 2020
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