Siskopoulos v The State of Western Australia
[2022] WASCA 138
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SISKOPOULOS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 138
CORAM: BUSS P
MITCHELL JA
LIVESEY AJA
HEARD: 13 OCTOBER 2022
DELIVERED : 28 OCTOBER 2022
FILE NO/S: CACR 124 of 2021
BETWEEN: ANASTASIS SISKOPOULOS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 2439 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count of attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply to another - Parity principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)(a), s 34(1)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Jiang Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Giangiulio v The State of Western Australia [2022] WASCA 77
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78
Kelly v The Queen [2017] NSWCCA 256
Kezkiropoulos v The Queen [2002] WASCA 352
Kezkiropoulos v The State of Western Australia [2018] WASCA 58
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Roffey v The State of Western Australia [2007] WASCA 246
Stoysich v The State of Western Australia [2014] WASCA 208
Walker v The State of Western Australia [2022] WASCA 100
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
Introduction
The appellant seeks leave to appeal against sentence on the ground that the sentence which was imposed infringed the parity principle.
After pleading guilty shortly before trial, the appellant was sentenced to 16 years' imprisonment for attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) read with s 33(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA), for which the maximum penalty was life imprisonment.
The offending involved an attempt to possess over 40 kg of methylamphetamine. The sentence was backdated to commence on 18 August 2021. The sentencing judge made an order that the appellant was eligible for parole.
The appellant's co‑offender, Mr Kezkiropoulos, pleaded guilty at the same time and was sentenced to 21 years' imprisonment with eligibility for parole.
However, it was necessary for the sentencing judge to deal with the issue of totality because Mr Kezkiropoulos was incarcerated at the time of offending, serving a term of 13 years' imprisonment, with eligibility for parole, which commenced on 19 July 2015. On account of totality, the 21 year sentence was reduced to 18 years' imprisonment, and that term was ordered to be served concurrently with a portion of the prior term of 13 years. That meant that Mr Kezkiropoulos was required to serve a total effective sentence of 24 years and 1 month's imprisonment with eligibility for parole.
The ground of appeal and the contentions of the parties
The sole ground of appeal for which leave to appeal is sought is as follows:
The sentence of 16 years' imprisonment that was imposed on the appellant infringed the parity principle.
Particulars
There was insufficient disparity between the sentence that was imposed on the appellant and the aggregate sentence that was imposed on the appellant's co‑offender, Peter Kezkiropoulos, having regard to the differentiating circumstances which favoured the appellant's case from Kezkiropoulos' case, giving rise to a justifiable sense of grievance.
The appellant points to the fact that Kezkiropoulos had been sentenced on two previous occasions to substantial terms of imprisonment for serious drug related offending, but was undeterred when attempting to possess the 40 kg of methylamphetamine involved in the subject offending while he was in custody.
The appellant also emphasised that the offending by Kezkiropoulos took place shortly before the court heard the appeal concerning his 13 year sentence in Kezkiropoulos v The State of Western Australia,[1] and that the offending continued during the period this court's decision was reserved. Reasons for decision were published on 2 May 2018.
[1] Kezkiropoulos v The State of Western Australia [2018] WASCA 58.
Although the appellant accepts that the sentencing judge was required to apply the totality principle when sentencing Kezkiropoulos, so that the total effective sentence bore a proper relationship to his overall criminality, it is submitted that the lack of disparity between the sentence ultimately imposed on Kezkiropoulos and the sentence imposed on the appellant cannot be explained on that basis. As the appellant put it:
The sentence of 18 years' imprisonment, to be served concurrently, effectively eliminated the need for Kezkiropoulos to serve the balance of the 13 year sentence that was previously imposed on him. Kezkiropoulos is now liable to serve a maximum of 18 years for his role in the attempted possession offence (with the prospect of release on parole after 16 years) he having only served about 6 years of the 13 year sentence that he was serving at the time he committed that offence. On the other hand, the appellant is liable to serve a total of 16 years' imprisonment (with the prospect of release on parole after 14 years) for his role in the offending.
For the State, it was submitted that when consideration is given to the sentencing judge's findings about the seriousness of the offending and the respective roles and culpability of the appellant and the co‑offender, none of which are challenged, there can be no justifiable sense of grievance.
The State submits that this is so regardless of whether the comparison is undertaken between the individual sentence of 16 years imposed on the appellant and the indicative sentence of 21 years imposed on the co‑offender, or the individual sentence of 16 years imposed on the appellant and the aggregate sentence of 24 years and 1 month imposed on the co‑offender.
Indeed, the State submits that this court is not assisted by a comparison of the individual sentence of 16 years imposed on the appellant with the totality‑adjusted sentence of 18 years' imprisonment imposed on the co‑offender. The State submits that that approach improperly focuses on the length of the term of 18 years for the subject sentence without considering its contribution to the total effective sentence.
Finally, the State submits that it is artificial to look at the sentence imposed upon the co‑offender as requiring him to 'only' serve 6 of the original 13 years imposed for his initial offending (which offence was, in any event, subject to a 25 year maximum term) because one cannot ignore the practical operation of the totality principle which will generally result in a lesser aggregate term.[2]
[2] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing).
For the reasons that follow, leave to appeal should be granted but the appeal dismissed.
The circumstances of the offending
The facts relied upon by the State were generally not in contest. Kezkiropoulos was the subject of an investigation by the Australian Criminal Intelligence Commission notwithstanding that he was in custody, serving a 13 year sentence of imprisonment from July 2015 for the offence of possession of 11 kg of methylamphetamine with intent to sell or supply.
As part of the investigation, conversations with Kezkiropoulos were covertly recorded during the appellant's visits to Casuarina prison. These revealed that Kezkiropoulos and the appellant settled on a plan to acquire a large quantity of methylamphetamine through an Asian syndicate, members of whom were known to Kezkiropoulos and with whom he had been in contact whilst in prison. It was agreed that Kezkiropoulos would arrange the transaction and that the appellant would deal with the methylamphetamine. The appellant was expected to sell or supply large quantities, around 1 or more kilograms, to various associates.
On 19 June 2018 a police undercover operative spoke with the appellant by telephone and, thereafter, they communicated by WhatsApp messages. An arrangement was made to meet at a café in North Perth. During that meeting the appellant confirmed an order for 20 kg of methylamphetamine and arrangements were made for delivery the following day. The appellant was given a $5 note with a serial number and was told to use that as a token to validate his identity with the delivery driver.
The appellant was later told that there was a delay with delivery and, during subsequent WhatsApp messages, the appellant increased the amount of methylamphetamine ordered to 40 kg. Later still, the appellant became suspicious and stopped communicating.
On 5 July 2018 the appellant was arrested in a shopping centre car park in North Perth and a search of his car revealed paperwork concerning the lease of a storage unit. The appellant disputed that this had been leased for the purpose of storing drugs. A search of the appellant's home unearthed notes containing names and telephone numbers of associates who had been referred to in the course of the recorded conversations between Kezkiropoulos and the appellant, as well as the $5 note that the undercover operative had given to the appellant.
A week before trial the appellant pleaded guilty and was sentenced on the basis that he intended to gain possession of 40 kg of methylamphetamine from the undercover operative and that he carried out a series of acts which were more than merely preparatory, with the result that he had attempted to commit the substantive offence.
The circumstances of the offenders
The sentencing judge sentenced the appellant on the basis of a written pre‑sentence report, a psychological report, written sentencing submissions and brief oral submissions in mitigation.
The appellant was 42 years at the time of offending and 45 years at the time of sentence. He had been married for 21 years and had a daughter who was aged 20 years. He was unemployed but assisted his wife in her business. He had no assets and had outstanding debts to family of around $100,000.
The appellant had experienced trauma throughout his life but had no criminal record.
A review of earlier decisions of this court reveals the following regarding the sentences imposed on Kezkiropoulos. The first case is Kezkiropoulos v The Queen [2002] WASCA 352:
(a)The offending occurred on 11 March 2000. As at 2002, he was aged 37 years.
(b)Kezkiropoulos was sentenced to 10 years' imprisonment with parole eligibility for possession of 422.5 g of methylamphetamine having a purity of 59.3% with intent to sell or supply.
(c)The Court of Criminal Appeal dismissed his appeal.
The second case, already mentioned, is Kezkiropoulos [2018] WASCA 58:
(a)The offending occurred on 19 July 2015.
(b)Kezkiropoulos was sentenced at first instance to 17 years 6 months' imprisonment for possession of 11 kg of methylamphetamine having a purity between 75% and 79% with intent to sell or supply.
(c)This court allowed his appeal and substituted a sentence of 13 years' imprisonment, with eligibility for parole, backdated to 19 July 2015.
The approach of the sentencing judge
The sentencing judge rejected the submission that certain of the recorded conversations did not concern drugs but the purchase and sale of gold (ts 145). Similarly, the sentencing judge rejected the submission that the appellant did not become aware that Kezkiropoulos had been talking to him about drugs until 11 February 2018 (ts 145 ‑ 146).
The sentencing judge found that the prosecution had proved that the appellant and Kezkiropoulos anticipated deriving a profit in the order of between $200,000 to $400,000 and they hoped that this would be an ongoing, profitable operation (ts 147).
The sentencing judge described the quantity the subject of the attempt as 'vast', reflecting a large‑scale, wholesale drug operation (ts 148).
The sentencing judge recognised that the offending by Kezkiropoulos was aggravated by the fact that he committed the offence while in custody, serving a significant sentence for possession of another large amount of methylamphetamine (11 kg). Although Kezkiropoulos held the more prominent role because of his extensive criminal connections, the appellant was an equal and active participant, undertaking significant and crucial steps in what was effectively a joint venture. They would have each derived an equal share of the profits (ts 148).
Whereas the domain of Kezkiropoulos was the pricing and repayment terms, the appellant was to decide the precise quantities to be ordered, meet with the supplier, place the order and coordinate and receive the delivery of drugs. He was also expected to hide or store the drugs and then distribute it in 1 kg amounts to various associates (ts 149).
Whilst the appellant's role was 'somewhat lesser', it was 'nevertheless significant and absolutely crucial' (ts 149).
The sentencing judge described Kezkiropoulos as occupying the position of a high level offender towards the top of the drug dealing hierarchy, with the appellant also placed towards the upper end of that hierarchy though his culpability was somewhat less (ts 149 ‑ 150).
In relation to mitigating factors, the sentencing judge found that both offenders were entitled to a reduction of 17% for their pleas of guilty but that neither were genuinely remorseful. As a result, that factor was not taken into account in mitigation. The sentencing judge recognised that the appellant had no criminal record and that Kezkiropoulos had a very significant criminal record (ts 150 ‑ 151).
When turning to sentence, the sentencing judge expressly recognised the need to apply the parity principle and no issue has been taken with the sentencing judge's summary of the relevant principles.
The judge addressed the various factors that differentiated the appellant from Kezkiropoulos. These were, first, that the appellant's culpability was less, although not significantly less, and secondly, unlike Kezkiropoulos, the appellant was otherwise of good character and had not previously been imprisoned. Finally, Kezkiropoulos committed the offence whilst in prison serving a term of 13 years (ts 157).
Accordingly, the sentencing judge indicated that an appropriate sentence for Kezkiropoulos would be a term of 21 years, whereas a term of 16 years was appropriate for the appellant.
It was then necessary for the sentencing judge to address the issue of totality concerning Kezkiropoulos. As his sentence of 13 years was due to expire on 19 July 2028, the sentencing judge recognised that this required a reduction in the subject sentence irrespective of the fact that she would also be ordering that it would be served concurrently (ts 158).
The sentencing judge reduced the 21 year sentence to 18 years and ordered that it be served concurrently with the existing 13 year sentence. As mentioned, that resulted in a total effective sentence of 24 years and 1 month for Kezkiropoulos.
The parity principle
The proper approach to the parity principle has been considered on a number of occasions by this court.[3] There was no disagreement or debate about the principle at the hearing of this appeal.
[3] Higgins v The State of Western Australia [2019] WASCA 78; Giangiulio v The State of Western Australia [2022] WASCA 77; Walker v The State of Western Australia [2022] WASCA 100.
In Stoysich v The State of Western Australia,[4] Buss JA (as he then was) emphasised that the object of the parity principle was to ensure appropriate consistency in the sentencing of co‑offenders.[5] Relying upon extensive High Court authority,[6] the principle was put in terms of whether 'disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance' or, alternatively, whether it might 'give the appearance in the mind of an objective observer that justice has not been done'.[7]
[4] Stoysich v The State of Western Australia [2014] WASCA 208.
[5] Stoysich [39] (Buss JA, Martin CJ & Mazza JA agreeing).
[6] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 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).
[7] Stoysich [39] (Buss JA, Martin CJ & Mazza JA agreeing).
In Higgins, Buss P referred with approval to the decision of Beech‑Jones J (as he then was) in Kelly v The Queen[8] and, in particular, the following passage:[9]
Consistent with Postiglione in each of these four cases the Court took into 'account' the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co‑offender.
[8] Kelly v The Queen [2017] NSWCCA 256.
[9] Kelly [33] (Beech‑Jones J, Basten JA & Fagan J agreeing).
After considering a number of authorities, Buss P concluded:[10]
[10] Higgins [52] ‑ [54].
In my opinion, it is apparent from decisions of the High Court (in particular, Postiglione and Green) that the parity principle is concerned with substance rather than form, and that the manner in which the principle is to be applied will vary according to the facts and circumstances of the case.
All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed. The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:
(a)the objective seriousness of each offence which each offender has committed;
(b)the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;
(c)whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;
(d)each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;
(e)whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;
(f)the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;
(g)whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;
(h)the non‑parole period to be served by each offender; and
(i)the personal circumstances and antecedents of each offender.
The application of the parity principle is often nuanced. Although the court must take into account the actual custodial term to be served by each of the offenders which is solely attributable to the common offences, the weight to be given to that factor will vary. The application of the parity principle does not involve a strict arithmetical comparison between the head sentences and the non‑parole periods to be served by each of the offenders. Rather, the sentencing court must evaluate and take into account all of the components of the relevant sentences, including any sentences being served for separate or unrelated offences, in the context of all factors of relevance.
In the same case, Beech JA considered whether parity invited a comparison between the respective sentences for each individual common offence, the total sentence for the common offences or the total effective sentence for all of the offences for which the offenders were sentenced. Alternatively, his Honour posed the question whether parity invited a comparison of 'any or all of the above, depending upon the circumstances'.[11] Consistently with the views of Buss P, Beech JA concluded that there was 'no universal answer' and it was always necessary to have regard to the extent to which totality considerations influence any individual sentence.[12]
[11] Higgins [160].
[12] Higgins [162].
Pritchard JA, in separate reasons, emphasised that equal justice requires identical outcomes in cases that are relevantly identical but different outcomes in cases that are different in relevant respects.[13] The principle of equal justice is applied in sentencing through the parity principle which concerns the punishment imposed for common offending on two or more offenders.[14] Her Honour explained that a proper comparison of the punishment imposed on co‑offenders is not limited to a comparison of the sentence imposed on each offender for common offending but may involve a comparison of any or all of the components of the punishment imposed on each offender.[15]
[13] Higgins [198] citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow & Hayne JJ).
[14] Higgins [198] citing Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
[15] Higgins [204] citing Postiglione 303 (Dawson & Gaudron JJ), 342 ‑ 343 (Kirby J).
Pritchard JA concluded that a manifest disparity in any component of the punishment imposed on co‑offenders which is not explicable by differences in the circumstances of the co‑offenders, or by the application of sentencing principles such as the totality principle, is liable to result in the appearance of injustice to an objective observer and a justifiable sense of grievance for the co‑offender subjected to the greater punishment.[16]
[16] Higgins [208].
With respect to the approach of the appellant on this appeal, it is significant that the sentence of 18 years received by Kezkiropoulos for the subject offending was imposed after the sentencing judge considered the question of totality. Whilst all elements of the sentence imposed on Kezkiropoulos are relevant, the need to reflect principles of totality in his sentence represents an obvious reason why there is not a marked difference between the sentence imposed on him and the sentence imposed on the appellant for their common offending. The question of parity cannot overlook that the sentence of Kezkiropoulos was affected by totality, an issue which was not relevant to the appellant.
Similarly, the order made for concurrency in the case of Kezkiropoulos is also explained by the totality principle which does not apply to the appellant. The question of parity cannot be approached by examining whether, in the case of Kezkiropoulos, the earlier 13 year sentence or the later 18 year sentence have effectively been 'truncated'.
Even if some criticism could be made of the sentence imposed in the case of Kezkiropoulos, which has not been suggested, that does not necessarily mean that the appellant’s sentence should be reduced.[17] As was recently emphasised in Giangiulo:[18]
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. See Lowe (609). But parity of sentencing does not require the imposition of a sentence that is wholly inadequate having regard to the facts and circumstances of the offence and the criminality of the offender or a sentence that is so lenient as to be an affront to the proper administration of justice. See I (a child) v The State of Western Australia; Billing v The State of Western Australia [No 2]; Green v The Queen. (footnotes omitted)
[17] Hassan v The Queen [2022] SASCA 56 [90] (Doyle JA; Livesey P agreeing); cf [2] (Kourakis CJ).
[18] Giangiulio [63] (Quinlan CJ, Buss P & Beech JA).
Rather, after examining the circumstances of these co‑offenders, the sentencing judge reflected the disparity in their circumstances and offending by the starting point of 21 years for Kezkiropoulos and the 16 year sentence imposed on the appellant. It cannot be said that this difference reveals any failure to properly apply the parity principle, or that the difference between these should necessarily have been more pronounced.
When looking at the total effective sentence imposed on each co‑offender, the 16 years imposed on the appellant as compared with the 24 years and 1 month imposed on Kezkiropoulos, these do not suggest any failure to properly apply the parity principle.
The sentencing judge appropriately recognised that the appellant and Kezkiropoulos were engaged in a joint venture, albeit that it was necessary to reflect the appellant's good record and lower level of culpability. Her Honour also recognised the need to reflect that Kezkiropoulos had a poor record and that his latest offending was committed whilst incarcerated, indicating criminality of a very high order. These considerations, and the need to bring to account the prior offending of Kezkiropoulos, explain the sentence of 24 years and 1 month. These considerations resulted in a sentence which was, appropriately, heavier than the appellant's sentence.
It cannot be said that, in the proper exercise of her sentencing discretion, the sentencing judge failed to properly bring these matters to account when addressing the parity principle. It cannot be said that, when all considerations relevant to the sentences imposed on the co‑offenders are brought to account, that the appellant's 16 year sentence reflects a failure to properly apply the parity principle, or that those principles required a shorter sentence.
Conclusion
We would grant leave to appeal. However, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
28 OCTOBER 2022
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