JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : YYS -v- THE QUEEN [2017] WASCA 12 CORAM : MAZZA JA HEARD : 2 DECEMBER 2016 DELIVERED : 20 JANUARY 2017 FILE NO/S : CACR 221 of 2015 BETWEEN : YYS Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : MARTINO CJDC
File No : IND 1112 of 2014
Catchwords:
Criminal law - Appeal against sentence - Whether sentence violates the parity principle
Legislation:
Criminal Code Act 1995 (Cth), s 307.2
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr F P Merenda
Respondent : Mr H C Quail
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):NGO v The Queen [2017] WASCA 3R v Ly [2005] NSWCCA 571 REASONS OF THE COURT: The appellant and a co-accused, C, were convicted after trial of importing a marketable quantity of a border controlled drug, namely methamphetamine. That is an offence against s 307.2(1) of the Criminal Code (Cth), for which the maximum penalty is imprisonment for 25 years and a fine of $850,000. 2 The methamphetamine was brought into Australia by another co-offender, B. B had ingested nearly 600 g of methamphetamine pellets with a purity of 51.8% (equating to 346.5 g of pure methamphetamine). The appellant and B had travelled to Australia on a flight from Thailand, where the pellets were obtained. B was intercepted by police at Perth Airport and taken to hospital, where he passed the pellets. C had participated in the planning of the importation and financed the operation.
3 The appellant was sentenced to 8 years' imprisonment, with a non-parole period of 5 years 3 months. C received a sentence of 8 years 9 months' imprisonment with a non-parole period of 5 years 11 months. B had previously pleaded guilty to the offence and been sentenced to a term of 7 years' imprisonment with a non-parole period of 4 years 9 months.
4 The appellant now seeks leave to appeal against his sentence on the ground that it violates the parity principle in relation to the sentence received by C. The application for leave to appeal on this ground was referred to the hearing of the appeal.
5 The appellant submits that the sentencing judge made an error of fact in finding that C was less culpable than the appellant. The gist of the appellant's argument is that the appellant was subservient to C, who financed the operation and was able to have the appellant and B 'go about and do his bidding in the Thai jurisdiction' without being subjected to the risk of possibly being encountered by the Thai authorities. The appellant notes that the sentencing judge indicated that he would have sentenced the appellant to 9 years 6 months' imprisonment but for the appellant's cooperation with authorities (a mitigating factor that did not apply to C). He submitted that the 'starting point' of 9 years 6 months' imprisonment gives rise to an unjustifiable sense of grievance.
6 The alleged error of fact is said to arise from the emphasised words in the following passage of the sentencing judge's remarks:
[C], there is some difference between your level of culpability as between you and [B], and as between you and [the appellant]. There are some factors relevant, but both do not exist in the case of [the appellant]. You were a significant user of the drug, and it is the case that the Crown accepts, as I do, that some of the drug was going to be used by you. Nonetheless, ultimately I am of the view that the vast majority of the drugs that you were going to receive, or your cut of it, was for financial gain (ts 2160). (emphasis added)
7 This passage must be read in light of the particular findings which the sentencing judge had made about the roles which C and the appellant played in the importation. 8 The sentencing judge found that C had transferred money to Thailand for the purpose of purchasing the drugs, arranged for the payment of B's travel and made travel arrangements for B (ts 2150). He found that the appellant dealt with the methamphetamine in connection with its importation by:
1. arranging for funds from C to be put into the appellant's girlfriend's bank account; 2. receiving the funds from C in Thailand;
3. withdrawing the funds (900,000 baht) and giving the money to B;
4. collecting B from the airport in Phuket;
5. accommodating B in Phuket;
6. driving B to Bangkok;
7. booking and paying for a hotel in Bangkok;
8. helping source the drugs for B through a contact in Bangkok;
9. being present when another co-offender wrapped the drugs in a hotel room in Bangkok;
10. driving B from Bangkok to Phuket;
11. relaying messages on a phone between B and C;
12. accommodating B when he ingested the drugs in Phuket;
13. organising B's flight arrangements with C;
14. driving B, who had ingested the drugs, to the airport; and
15. sitting next to B on the plane back from Phuket to Perth (ts 152).
The sentencing judge was also satisfied that, had the venture succeeded, the appellant would have then made arrangements for the pellets to be passed by B and for their later distribution within the community (ts 2152).
9 The sentencing judge found that the appellant and C stood to gain financially from their involvement in the offence (ts 2153). He also found that the appellant, C and B were all involved in the planning of the offence, and did so well before B arrived in Phuket. The sentencing judge found that B was engaged because the appellant and C could not, or would not, personally take the risk of importing the drugs. He found that they had little regard for B's safety, and that this aggravated the offence for the purposes of sentencing (ts 2154). 10 The sentencing judge found that C was 'in the throes of a raging methamphetamine addiction', but did not accept that he intended to use most of the drugs for his own purposes. The sentencing judge was satisfied that C was partly motivated to make a financial profit from the drugs. He said that the fact that C was motivated to feed his drug habit, either by using some of the drugs himself or selling the drugs, was not in itself mitigatory (ts 2151). The sentencing judge noted that the appellant claimed no usage of methamphetamine, and was satisfied that his involvement in the offence was for purely commercial purposes (ts 2152).
11 The sentencing judge also referred to the appellant's and C's antecedents, which were broadly consistent. Each was in their mid-40s, had a current partner and a number of children. Each had a significant employment history. Each also had an extensive criminal record, including convictions for drug offences for which terms of imprisonment were imposed.
12 It appears that the alleged error of fact which the appellant seeks to establish concerns the relative degree of criminality involved in the circumstances of the offenders' participation in the importation. However, the passage which the appellant relies on to establish the alleged error of fact does not differentiate between the offenders by reference to the relative degree of criminality involved in their participating acts. Rather, the paragraph identifies an aggravating factor - participation for purely commercial purposes1 - that was present in the appellant's case, but not in C's case. During the course of the hearing, the appellant abandoned an argument that it was an error to regard C's relative culpability as lessened by the fact that he was a drug addict who intended to personally use some of the imported methamphetamine.
13 When the sentencing judge's remarks are considered as a whole, they do not contain a finding that C was less culpable than the appellant.
14 Further, there is no proper foundation in the evidence for concluding that the appellant was subservient to C. The roles played by C and the appellant were different, but each was integral to the execution and planning of the importation. Financing an illegal importation operation is not necessarily to be regarded as involving a higher degree of criminality than the organisation and execution of the plan. Neither C nor the appellant gave evidence at trial that the appellant was subject to C's direction. Text messages and intercepted telephone calls between C and the appellant, referred to in a schedule of evidence produced by the respondent after the hearing of the appeal, do not suggest any degree of subservience by the appellant. The appellant did not seek to identify any further evidence in support of the proposition that the appellant was subservient to C.
15 The principles to be applied in determining whether this court should interfere with a sentence on parity grounds are not controversial, and were recently summarised in NGO v The Queen.2 The question is essentially whether a marked disparity or lack thereof gives rise to an objectively justifiable sense of grievance.
16 In all the circumstances of the present case, including those personal to the offenders, the difference between the sentence imposed on the appellant and that imposed on C is not a marked difference which gives rise to an objectively justifiable sense of grievance. Each offender played an important organising role in the importation, and performed acts which were critical to the operation. Although the roles were different, there was no marked difference in the degree of criminality involved in the appellant's and C's acts of participation in the importation. The offenders' antecedents were broadly similar. The appellant's conduct involved a circumstance of aggravation (acting purely for commercial gain) absent in C's case.
17 Questions of parity are, at least ordinarily, assessed by comparing the sentences ultimately imposed on the relevant offenders, having regard to all the circumstances of the offending and all matters personal to the offenders. In the present case the appellant invites a comparison between a 'starting point' adopted by a court in imposing a sentence on one of the offenders and the ultimate sentence imposed on another. However, even assuming (without deciding) that this is a relevant comparison, no infringement of the parity principle is established in this case. When all the considerations to which we have referred are taken into account, the fact that the starting point for the appellant's sentence (before reduction for the appellant's cooperation with authorities) was 9 months more than C's does not arguably give rise to any justifiable sense of grievance. Nor does the fact that the appellant's ultimate sentence was 9 months less than C's give rise to any justifiable sense of grievance.
18 The proposed ground of appeal has no reasonable prospect of success. Leave to appeal on the sole ground of appeal should be refused3 and the appeal dismissed.
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1 The fact that an offender who is being sentenced for an offence of dealing in drugs committed the offence, not for the purpose of feeding an addiction, but purely for the purpose of making a commercial profit, was identified as a circumstance of aggravation in R v Ly [2005] NSWCCA 57 [22].2NGO v The Queen [2017] WASCA 3 [36] - [39]. 3 Section 9 of the Criminal Appeals Act 2004 (WA).