Stoysich v The State of Western Australia
[2014] WASCA 208
•10 NOVEMBER 2014
STOYSICH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 208 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:5/2014 | 3 SEPTEMBER 2014 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 10/11/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER MICHAEL STOYSICH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Sale of methylamphetamine Parity principle Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(c) |
Case References: | Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jardim v The State of Western Australia [2011] WASCA 83 Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Taudevin [1996] 2 VR 402 Rooke v The Queen [2011] VSCA 49 Tomov v The Queen [2011] WASCA 189 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STOYSICH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 208 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 634 of 2013
Catchwords:
Criminal law - Appeal against sentence - Sale of methylamphetamine - Parity principle - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms A C Longden
Solicitors:
Appellant : David Walls & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274
Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
Rooke v The Queen [2011] VSCA 49
Tomov v The Queen [2011] WASCA 189
1 MARTIN CJ: This appeal should be dismissed for the reasons given by Buss JA, with which I agree.
2 BUSS JA: This is an appeal against sentence.
3 On 18 December 2013, the appellant was convicted, on his very late pleas of guilty in the District Court, of two counts in an indictment.
4 Count 1 alleged that on 21 June 2012, at South Perth, the appellant sold a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act).
5 Count 2 alleged that on 27 June 2012, at Victoria Park, the appellant sold a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act.
6 On 18 December 2013, Stevenson DCJ (the primary judge) imposed a sentence of 6 months' immediate imprisonment (reduced from 3 years' immediate imprisonment in the application of the totality principle) for count 1 and a sentence of 3 years 6 months' immediate imprisonment for count 2. His Honour ordered that the sentences be served cumulatively. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.
The ground of appeal
7 Initially, the appellant relied on three grounds of appeal. At the hearing, counsel for the appellant abandoned two of the grounds (appeal ts 2). The remaining ground alleges that the sentences imposed on the appellant infringed the parity principle. On 4 May 2014, Mazza JA granted leave to appeal on that ground.
The facts and circumstances of the offending by the appellant and his co-offenders
8 The quantity of methylamphetamine the subject of count 1 was 56.8 g. This quantity included 28.1 g with a purity of 40% and 27.7 g with a purity of 42%.
9 The quantity of methylamphetamine the subject of count 2 was 56.4 g. This quantity included 27.8 g with a purity of 36% and 27.6 g with a purity of 34%.
10 So, the total quantity of methylamphetamine the subject of counts 1 and 2 was 113.2 g.
11 The appellant committed count 1 with a co-offender, Steven John Noakes. He committed count 2 with Mr Noakes and another co-offender, Carol Margaret Duthie.
12 The appellant's offending involved two separate drug transactions in which Mr Noakes sold methylamphetamine to an undercover police officer. The appellant assisted Mr Noakes in relation to both transactions. Ms Duthie assisted Mr Noakes in relation to one of the transactions.
13 The appellant was originally charged with Mr Noakes and Ms Duthie. However, on 23 May 2013, at a disclosure committal hearing in the Magistrates Court, Mr Noakes and Ms Duthie (but not the appellant) entered pleas of guilty. Mr Noakes and Ms Duthie were committed to the District Court for sentence. On 6 September 2013, a joint indictment was presented against Mr Noakes and Ms Duthie and they were sentenced by Bowden DCJ. His Honour allowed each of Mr Noakes and Ms Duthie a 20% discount, for the pleas of guilty, on the individual sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA).
14 The sentences imposed by Bowden DCJ were as follows.
Steven John Noakes:
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Carol Margaret Duthie:
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15 Bowden DCJ made a parole eligibility order in respect of each of Mr Noakes and Ms Duthie.
16 Count 2 relating to Mr Noakes correlates with count 1 relating to the appellant. Count 3 relating to Mr Noakes correlates to count 2 relating to the appellant.
17 Count 3 relating to Ms Duthie correlates to count 2 relating to the appellant.
18 As to count 1 relating to the appellant and count 2 relating to Mr Noakes:
(a) On the afternoon of 21 June 2012, the appellant drove Mr Noakes to meet the undercover police officer at a McDonald's restaurant in East Victoria Park.
(b) After meeting the undercover police officer, Mr Noakes travelled with the undercover police officer to the South Perth foreshore while the appellant stayed at McDonald's awaiting Mr Noakes' return.
(c) At the South Perth foreshore, Mr Noakes sold the methylamphetamine to the undercover police officer for $32,000.
(d) Mr Noakes and the undercover police officer returned to the McDonald's restaurant in East Victoria Park.
(e) The appellant drove Mr Noakes to Burswood Casino.
19 As to count 2 relating to the appellant and count 3 relating to Mr Noakes and Ms Duthie:
(a) On the afternoon of 27 June 2012, Mr Noakes arranged to meet the undercover police officer again at McDonald's restaurant in East Victoria Park so that he could again sell the undercover police officer methylamphetamine for $32,000.
(b) Mr Noakes and Ms Duthie met the appellant near the McDonald's restaurant before the scheduled meeting with the undercover police officer.
(c) The appellant drove Ms Duthie in her vehicle to McDonald's and Mr Noakes drove his truck to a park in the vicinity.
(d) Ms Duthie alighted from her vehicle and waited for the undercover police officer to arrive.
(e) The appellant drove in Ms Duthie's vehicle to the park where Mr Noakes was waiting and stopped on the opposite side of the park to provide surveillance and, if necessary, other assistance to Mr Noakes.
(f) Meanwhile, Ms Duthie met the undercover police officer at McDonald's and drove the undercover police officer, in his car, to Mr Noakes' truck.
(g) Ms Duthie and the undercover police officer got into the truck and Mr Noakes sold the methylamphetamine to the undercover police officer.
The sentencing of the appellant
20 The appellant does not challenge the findings of fact made by the primary judge in his sentencing remarks.
21 On 21 June 2012, Mr Noakes contacted the appellant and requested his assistance with the sale and supply of methylamphetamine. The appellant agreed to provide assistance. The primary judge described the appellant's role in relation to count 1 as follows:
Your role on that occasion was to provide services as the driver for Mr Noakes to and from the place where the transaction was conducted and in that role you would have also been providing an additional set of eyes, therefore there was, no doubt, surveillance contribution by you and perhaps, if necessary, you would have come to the aid of Mr Noakes … in the event there was any need to do so. So you were there providing backup for him for that offence (ts 52).
22 On 27 June 2012, Mr Noakes contacted the appellant and requested his assistance again with the sale and supply of methylamphetamine. His Honour said the appellant participated in count 2 '[by] providing surveillance cover which [he] communicated by telephone to Mr Noakes to facilitate the meeting' between Mr Noakes and the undercover police officer (ts 52).
23 The primary judge made these findings:
(a) his Honour accepted that the appellant did not know the 'exact quantity' of methylamphetamine involved in the transactions (ts 53);
(b) however, his Honour inferred from the text of intercepted communications between the appellant and Mr Noakes that the appellant knew, at least in relation to one of the transactions, that two ounces of the drug were being sold and supplied;
(c) the appellant therefore had 'some knowledge of the scale and the extent of the criminality' in which he chose to become involved (ts 53);
(d) the appellant 'also appreciated the scale and seriousness of the matter by the clandestine way in which [he] conducted [himself] with the other offenders' (ts 53);
(e) the appellant 'would also have appreciated the scale of the criminality involved in the offending by reason of [his] own use of methylamphetamine at the time' and, accordingly, the appellant 'would have appreciated something about the quantities and the value involved in each offence' (ts 53).
24 His Honour noted the appellant's pleas of guilty. The pleas were very late. They were not entered until the working day before the scheduled commencement of his trial. His Honour allowed the appellant a 10% discount, for the pleas of guilty, on the individual sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act.
25 The appellant was born on 23 July 1973. He was aged 39 at the time of the offending and was 40 when sentenced. The primary judge mentioned various aspects of the appellant's personal circumstances and antecedents:
(a) The appellant had 'a strong work ethic' (ts 54).
(b) After his eight-year relationship with a woman disintegrated and he lost his employment, the appellant came into contact with Mr Noakes and Ms Duthie and commenced using illicit drugs.
(c) As a result of his dependency on methylamphetamine, the appellant participated in the distribution of illicit drugs.
(d) The appellant did not receive 'commercial gain' for his role in the offending, but was given quantities of methylamphetamine for his personal use (ts 57).
(e) It was to his credit that the appellant made some limited admissions to the police when he was arrested, but any credit had to be 'tempered by' his late pleas of guilty (ts 55).
(f) The appellant's current employer was of the view that the appellant had a professional and ethical attitude towards his work and the employer's clients.
(g) In the course of his current employment the appellant had not failed any illicit drug tests at the various mine sites where he was working. Between 12 December 2012 and 4 November 2013 he had not returned a positive test to any prohibited drugs.
(h) After his arrest for the offences in question, the appellant participated in a rehabilitation programme with Next Step and had ceased using prohibited drugs.
(i) The appellant had 'some insight' into his offending and 'a degree of remorse', even though those matters were not indicated by the late pleas of guilty or the manner in which he had responded to the proceedings against him for the offences (ts 56).
(j) The appellant had some prior convictions but, in his Honour's view, they were not relevant to sentencing for the offences in question.
(k) The appellant had not previously been sentenced to a term of imprisonment.
26 His Honour referred to the parity principle and gave detailed consideration to the offences committed by Mr Noakes and Ms Duthie and the sentences imposed on them (ts 53, 58 - 60).
The sentencing of Mr Noakes
27 As to count 1 on the indictment relating to Mr Noakes and Ms Duthie (being a different offence from those committed by the appellant), on 13 June 2012 Mr Noakes sold 13.9 g of methylamphetamine, with a purity of about 57%, to an undercover police officer for $8,000. Ms Duthie took possession of the $8,000 and counted it. Also, she had the methylamphetamine in her purse and handed it to Mr Noakes before the sale.
28 As to count 4 on the indictment relating to Mr Noakes and Ms Duthie (being an offence committed solely by Mr Noakes), on 27 June 2012 Mr Noakes had in his possession, with intent to sell or supply to another, 15.8 g of methylamphetamine with a purity of about 62%.
29 Bowden DCJ found that Mr Noakes had been carrying on a business of dealing in illicit drugs. He was involved in the acquisition and distribution of methylamphetamine. Mr Noakes was 'quite willing to meet any request' made of him by the undercover police officers (ts 35).
30 As I have mentioned, his Honour allowed Mr Noakes a 20% discount, for his early pleas of guilty, on the individual sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act.
31 Mr Noakes was born on 13 May 1974. He was aged 38 at the time of the offending and was 39 when sentenced. His personal circumstances and antecedents, as noted by Bowden DCJ, were as follows:
(a) Mr Noakes' family background was dysfunctional. He left home at a young age and has had limited contact with his parents.
(b) Mr Noakes was married for a number of years. He was devastated when that relationship broke down in about 2002.
(c) After his marriage ended, Mr Noakes' life changed dramatically. He lost his family home and a business he and his wife had worked hard to establish. He was made bankrupt.
(d) Mr Noakes had a very good work record.
(e) He had some prior convictions but, in Bowden DCJ's view, they were not relevant to sentencing for the offences in question.
(f) He had not previously been sentenced to a term of imprisonment.
(g) Mr Noakes was a user of methylamphetamine and at the material time the cost of his addiction was about $2,500 per week.
(h) At the time of the offending Mr Noakes was in a personal relationship with Ms Duthie. Their relationship had produced a daughter who was aged about 7 months at the time of sentencing.
32 Mr Noakes continued to be employed as a road-train driver until he was sentenced. After his arrest for the offences in question, he did not return a positive test to any prohibited drugs when tested at mine sites in the course of his employment.
33 The author of a pre-sentence report dated 9 July 2013 expressed the view that Mr Noakes was motivated to address his offending behaviour and was willing to engage in any counselling or treatment to assist in the skills and strategies necessary to continue to abstain from using illicit substances and maintain a prosocial lifestyle. He expressed 'deep regret' for his involvement in the offences in question and did not attempt to minimise the seriousness of his offending or avoid acceptance of responsibility.
The sentencing of Ms Duthie
34 I have already described the facts and circumstances of Ms Duthie's offending.
35 As I have mentioned, Bowden DCJ allowed Ms Duthie a 20% discount, for her early pleas of guilty, on the individual sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act.
36 Ms Duthie was born on 5 August 1980. She was aged 31 at the time of the offending and was 33 when sentenced. Her personal circumstances and antecedents, as noted by Bowden DCJ, were as follows:
(a) Ms Duthie's early upbringing was 'very happy' and she had a 'very supportive' family (ts 33).
(b) Ms Duthie had a 'very good working record' in the community (ts 33).
(c) She was involved in a personal relationship with Mr Noakes for about two years and they had a daughter aged about 7 months. Her relationship with Mr Noakes ended before they were sentenced.
(d) Ms Duthie had experimented with and used methylamphetamine for some time. Her use of this drug did not 'spiral out of control' until she obtained a reasonably lucrative position in the oil and gas industry (ts 33).
(e) After being arrested for the offending in question, Ms Duthie made positive changes to her lifestyle. She addressed her substance abuse issues and was anxious to care properly for her daughter.
(f) His Honour accepted that Ms Duthie was unlikely to reoffend and that she was 'well and truly … ashamed and embarrassed' about her criminal conduct (ts 34).
(g) Ms Duthie's prior criminal record comprises three traffic offences, namely two convictions for driving without a motor driver's licence and one conviction for driving with a blood alcohol level in excess of 0.08%.
37 Ms Duthie was sentenced on the basis that she did not receive any money from the drug dealing transactions. She did, however, receive quantities of methylamphetamine for her personal use.
38 The author of a pre-sentence report dated 27 June 2013 noted that Ms Duthie had, for several years before the offending, engaged in a lifestyle of 'having money and spending it as she wanted, which involved partying, gambling and drug taking'. She thought the 'good life' would continue and gave no thought to the consequences of her behaviour. Ms Duthie presented to the author of the report as 'polite and cooperative … and expressed regret and shame for her offending behaviour'. She made no attempt to minimise the seriousness of her offending or deflect personal responsibility for what she had done.
The merits of the ground of appeal
39 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, 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).
40 An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a 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.
41 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].
42 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].
43 The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] - [203] (Campbell JA, Rothman J generally agreeing), [245] - [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] - [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] - [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] - [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
44 However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].
45 The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [27].
- See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing).
46 In the present case, there was some overlap between the offences for which the appellant, Mr Noakes and Ms Duthie were sentenced. I accept that the parity principle or the principle of equal justice applied to their sentencing.
47 The maximum penalty for each of the offences in question is 25 years' imprisonment or a fine of $100,000 or both.
48 It is apparent that the primary judge was fully informed about Bowden DCJ's sentencing of Mr Noakes and Ms Duthie.
49 The facts and circumstances of the offending by the appellant, Mr Noakes and Ms Duthie reveal that Mr Noakes had a higher level of culpability than the appellant and Ms Duthie. Mr Noakes acquired the methylamphetamine for distribution and he arranged for the sales. He committed more offences than the others. The participation of the appellant and Ms Duthie was important in facilitating the drug dealing transactions but their roles were subsidiary to that of Mr Noakes.
50 The overall quantity of methylamphetamine the subject of Ms Duthie's offending was less than the overall quantity of the drug the subject of the appellant's offending.
51 A significant distinguishing feature, for sentencing purposes, between the appellant, on the one hand, and Mr Noakes and Ms Duthie, on the other, was the early pleas of guilty entered by Mr Noakes and Ms Duthie. The appellant did not plead guilty until the working day before the scheduled commencement of his trial. The 10% discount on sentence allowed by the primary judge for the appellant's pleas was generous.
52 Ms Duthie's personal circumstances and antecedents, and her prospects of rehabilitation, appear to have been at least slightly more favourable than those of the appellant and Mr Noakes.
53 I am satisfied, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the offending by the appellant, Mr Noakes and Ms Duthie, and after taking into account the similarities and differences between their offending and their personal circumstances and antecedents, that the sentences imposed on the appellant by the primary judge did not infringe the parity principle or the principle of equal justice. In particular:
(a) the sentences imposed on the appellant, compared to those imposed on Mr Noakes, do not reveal a marked and unjustifiable absence of disparity, adverse to the appellant and favourable to Mr Noakes; and
(b) the sentences imposed on the appellant, compared to those imposed on Ms Duthie, do not reveal a marked and unjustifiable disparity, adverse to the appellant and favourable to Ms Duthie.
54 In my opinion, the sentencing outcome in relation to the appellant, compared to the sentencing outcome in relation to each of Mr Noakes and Ms Duthie, does not give rise to a legitimate or justifiable sense of grievance on the appellant's part, and is not such as to give the appearance in the mind of an objective observer that justice has not been done as between the three offenders or generally.
55 The ground of appeal has not been made out.
Conclusion
56 I would dismiss the appeal.
57 MAZZA JA: I agree with Buss JA.
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