Ta v The State of Western Australia - [2022] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 49
CORAM:   BUSS P
HALL J
TOTTLE J

HEARD:   25 NOVEMBER 2021
DELIVERED          :   5 MAY 2022
FILE NO/S:   CACR 8 of 2021
BETWEEN:   DEP MONG TA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number            :   IND 1841 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of two counts of possessing a prohibited drug with intent to sell or supply and one count of engaging in a transaction involving money that was the proceeds of an offence - Parity principle

Legislation:

Criminal Code (WA), s 563A(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a), s 34(1)(aa)

Result:

Appeal allowed
Sentences imposed by primary judge set aside
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms H K Watson

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King [1936] HCA 40; (1936) 55 CLR 499
NGO v The Queen [2017] WASCA 3
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Stanley v The State of Western Australia [2018] WASCA 229

JUDGMENT OF THE COURT:

The appellant appeals against sentence.
The appellant and her co-offenders, Phuoc Van Le and Van Hoang Tran, were charged on indictment. The appellant, Mr Le and Mr Tran were jointly charged with count 1. The appellant and Mr Le (but not Mr Tran) were also jointly charged with counts 2, 3 and 4.
Count 1 alleged on 15 November 2018, at East Perth, the appellant, Mr Le and Mr Tran had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(a) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged that on 15 November 2018, at East Perth, the appellant and Mr Le had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(a) read with s 34(1)(a) of the MD Act.
Count 3 alleged that on 15 November 2018, at East Perth, the appellant and Mr Le had in their possession a prohibited drug, namely heroin, with intent to sell or supply it to another, and that the offence involved a trafficable quantity of heroin, contrary to s 6(1)(a) read with s 34(1)(aa) of the MD Act.
Count 4 alleged that on 15 November 2018, at East Perth, the appellant and Mr Le engaged in a transaction that involved money that was the proceeds of an offence, namely the sale or supply of a prohibited drug to another person, contrary to s 563A(1)(a) of the Criminal Code (WA) (the Code).

The quantity of methylamphetamine the subject of count 1 was 2.875 kg with a purity between 78% and 81%.
The quantity of methylamphetamine the subject of count 2 was 245 g with a purity of 79%.
The maximum penalty for each of counts 1 and 2 was life imprisonment. See s 34(1)(a) of the MD Act.
The quantity of heroin the subject of count 3 was 527.3 g with a purity between 76% and 80%. The maximum penalty for count 3 was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MD Act.
The amount of money the subject of count 4 was $361,000 cash. The maximum penalty for count 4 was 20 years' imprisonment. See s 563A(1) of the Code.
After negotiations with the State, the appellant agreed to plead guilty to counts 1, 2 and 4 and the State agreed to discontinue the charge against her in count 3. The appellant was convicted on her pleas of guilty of counts 1, 2 and 4. The State discontinued count 3 in relation to her.
Mr Le was convicted after trial of counts 1, 2, 3 and 4.
Mr Tran was convicted after trial of count 1.
On 18 December 2020, Goetze DCJ sentenced the appellant to 11 years' imprisonment for count 1; 2 years 6 months' imprisonment (reduced from 6 years' imprisonment in the application of the totality principle) for count 2; and 3 years 6 months' imprisonment for count 4. His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentence for count 4 be served concurrently with the sentence for count 1. The total effective sentence was therefore 13 years 6 months' imprisonment. His Honour backdated the total effective sentence to 15 November 2018. A parole eligibility order was made.
Goetze DCJ sentenced Mr Le to 14 years' imprisonment for count 1; 7 years' imprisonment for count 2; 2 years 6 months' imprisonment (reduced from 9 years' imprisonment in the application of the totality principle) for count 3; and 4 years 6 months' imprisonment for count 4. His Honour ordered that the sentence for count 3 be served cumulatively upon the sentence for count 1 and that the sentences for counts 2 and 4 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 16 years 6 months' imprisonment. A parole eligibility order was made.
Goetze DCJ sentenced Mr Tan to 11 years' imprisonment for count 1. A parole eligibility order was made.
The police investigation of the offending by the appellant, Mr Le and Mr Tran resulted in the charging of another co‑offender, ELA. ELA was charged with four counts that were substantially similar to counts 1, 2, 3 and 4 of the indictment relating to the appellant, Mr Le and Mr Tran. However, as to count 4 against ELA, an additional $37,000 cash was located on ELA when he was arrested. ELA committed the offences for personal gain. He pleaded guilty. ELA gave evidence as a State witness at Mr Le and Mr Tran's trial.
Davis DCJ sentenced ELA on 18 December 2019, before Mr Le and Mr Tran were tried. Her Honour discounted the head sentence she would otherwise have imposed on ELA for each of the counts by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in recognition of his pleas of guilty. Her Honour also found mitigation in ELA's past cooperation with police, his promised future cooperation (which he gave as a State witness at Mr Le and Mr Tran's trial) and his remorse. Davis DCJ accepted that ELA had put himself at risk by cooperating with police; in particular, the risk of retribution including within the prison system. Davis DCJ imposed on ELA sentences of 7 years 6 months' imprisonment for the equivalent of count 1 (reduced from 10 years' imprisonment on account of ELA's promised future cooperation); 5 years' imprisonment for the equivalent of count 2; 2 years' imprisonment (reduced from 6 years' imprisonment in the application of the totality principle) for the equivalent of count 3; and 3 years' imprisonment for the equivalent of count 4. Her Honour ordered that the individual sentences for the equivalent of counts 1 and 3 be served cumulatively and that the individual sentences for the equivalent of counts 2 and 4 be served concurrently with each other and concurrently with the individual sentence for count 1. The total effective sentence imposed on ELA was therefore 9 years 6 months' imprisonment. A parole eligibility order was made.
The appellant's sole ground of appeal, as developed in argument, alleges, in essence, that the total effective sentence imposed on the appellant infringed the parity principle having regard to the total effective sentence imposed on Mr Le. On 28 April 2021, Buss P granted leave to appeal on that ground.
We would allow the appeal.

The facts and circumstances of the offending

In September 2018, police commenced investigating a criminal syndicate that was believed to be transporting significant quantities of prohibited drugs from Victoria to Western Australia.
Police identified the appellant, Mr Le, Mr Tran and ELA as members of the syndicate.
By telecommunications intercepts, surveillance and other investigations, police established that the syndicate used Unit 41, 60 Forrest Avenue, East Perth (the Forrest Avenue unit) to store prohibited drugs and cash.
Police observed the appellant, Mr Le and ELA attending the Forrest Avenue unit on numerous occasions, often together. Mr Le had control of the Forrest Avenue unit. Each of Mr Le and ELA had a set of keys to the premises. Initially, ELA's keys were given to him by Mr Le.
Police investigations revealed that the appellant had flown from Melbourne to Perth on 19 occasions in 2018. On each occasion she remained in Perth for a short period before returning to Melbourne. The appellant had leased seven hire cars from various companies at Tullamarine Airport in Victoria. The vehicles were driven to Western Australia and were returned to Victoria by train.
Over several days before 13 November 2018, police intercepted telephone messages and conversations between the appellant, Mr Le, Mr Tran and ELA. Those communications indicated that the appellant, Mr Le, Mr Tran and ELA were planning to transport a significant quantity of prohibited drugs from Melbourne to Perth.
On 13 November 2018, the appellant went to Tullamarine Airport and leased a Toyota Kluger vehicle from a car rental company. The appellant drove the Toyota Kluger to Mr Tran's premises where she gave him possession of the vehicle.
During the late evening of 13 November 2018, Mr Tran departed from Melbourne and began driving the Toyota Kluger to Perth. He arrived in Perth at 6.35 pm on 15 November 2018. Upon arrival, Mr Tran stayed at the Flag Motor Lodge in Rivervale.
At about 2.35 pm on 15 November 2018, the appellant left Melbourne on a commercial airline flight and arrived in Perth at 7.00 pm that day. Upon arrival, the appellant travelled by taxi from Perth Domestic Airport to the Rendezvous Hotel in Perth.
At 7.41 pm on 15 November 2018, police intercepted a telephone conversation between the appellant and Mr Tran. The appellant told Mr Tran that she was in Perth and requested him to meet with her. At 8.00 pm, Mr Tran arrived at the Rendezvous Hotel. He gave the appellant the keys to the Toyota Kluger. Mr Tran remained at the Rendezvous Hotel while the appellant drove the Toyota Kluger to the Forrest Avenue unit.
Police observed ELA open the electronic gate to the car park of the Forrest Avenue unit complex. The appellant parked the Toyota Kluger in the car park. She alighted from the driver's seat and walked to the passenger side while ELA approached the driver's seat. At that point, police arrested the appellant and ELA.
Police searched the Toyota Kluger and located 12 cryovac bags containing a total of 2.875 kg of methylamphetamine with a purity between 78% and 81% concealed in the centre console (count 1).
Police searched ELA and located a black satchel bag containing $30,835 cash, the keys to and an electric gate fob for the Forrest Avenue unit and the keys to and an electric gate fob for other premises.
Police then executed a search warrant at the Forrest Avenue unit. Police located $361,000 cash concealed in the lining of three eskies (count 4). The cash was packaged in bundles and either cryovac sealed or wrapped with glad wrap.
Police located 245 g of methylamphetamine with a purity of 79% in a large clip seal bag concealed within an esky situated in a wardrobe (count 2).
Police also located 527.3 g of heroin with a purity between 76% and 80% in numerous clip seal bags (count 3).
Various items connected with the sale and supply of prohibited drugs were found in the Forrest Avenue unit, including a CD case‑style set of digital scales with detectable traces of a white powder substance; large‑size scales with detectable traces of a white crystal substance; a cryovac machine and unused cryovac rolls; a money counter; large glad wrap rolls; several tick lists; and a press machine and cast which could be used to compress heroin into block form.
Police then arrested Mr Tran at the Rendezvous Hotel.
On 17 November 2018, Mr Le was arrested at the Perth Domestic Airport.

The State's submissions at the sentencing hearing before Goetze DCJ

The prosecutor submitted at the sentencing hearing before Goetze DCJ that Mr Le's role in relation to the offending was at a higher level than the appellant's. In particular, the prosecutor said:
(a)The evidence at the trial indicated that Mr Le had 'a higher role than both [the appellant] and [ELA]'. The telephone intercept evidence clearly indicated that Mr Le was 'directing' the appellant. Mr Le was directing the appellant in respect of 'must go', 'turning off the phone' and 'taking out the SIM'. Mr Le was 'tracking, from his perspective, [the appellant's] movements in regards to when and where the drugs are at'. The drugs were being 'transported by [Mr Le's] direction'. Mr Le communicated with ELA about the appellant's arrival in Perth and told ELA 'tell [the appellant] ring me' (ts 646).
(b)Mr Le's involvement in the drug dealing business being carried by the criminal syndicate '[stemmed] back to June 2018 and his role was critical'. Mr Le introduced ELA to the Western Australian drug safe house. While Mr Le was in Victoria, he directed the appellant to transport drugs 'which ended up being 2.875 kg of methylamphetamine from Victoria to that safe house [in Perth]' (ts 646 ‑ 647).
(c)Mr Le's role was 'critical, it was crucial, as opposed to his [co‑offenders]'. Mr Le's moral culpability 'because of his elevated role is higher' (ts 647).
The prosecutor contended in his written submissions, for the purposes of the sentencing hearing before his Honour, that while the appellant was 'predominantly responsible for organising transportation of the drugs at Mr Le's direction', her culpability '[was] not vastly different [from] the culpability of Mr Le' [32].

Goetze DCJ's sentencing remarks

Goetze DCJ's sentencing remarks, including the findings of fact made by his Honour, were, relevantly, as follows.
His Honour recounted the facts and circumstances of the offending the subject of counts 1, 2, 3 and 4 on the indictment and the maximum penalties.
As to Mr Le's role, his Honour found that Mr Le's role was greater than the appellant's (ts 654). It was, however, difficult to separate their precise functions or to know exactly where in the overall chain each of them stood (ts 654). Although it was not known what the entire operation involved, Mr Le's organisation was central to the operation and he was more culpable than the appellant or anyone else (ts 655 ‑ 656). Mr Le was the overall coordinator (ts 656).
As to the appellant's role, his Honour found that the appellant coordinated Mr Tran who acted as a courier (ts 656). The appellant coordinated Mr Tran for the purpose of distancing herself from the prohibited drugs (ts 656). Although, like Mr Le, the appellant coordinated matters, she did not coordinate matters to the same extent as Mr Le (ts 659).
As to Mr Tran's role, his Honour found that Mr Tran acted as a courier for the purpose of transporting the methylamphetamine, the subject of count 1, from Victoria to Western Australia (ts 653). Although there was no direct evidence that Mr Tran had 'direct knowledge of what it was that [he was] couriering, [Mr Tran was] at least wilfully blind to what it was that [he was] bringing over' (ts 653).
As to the role of ELA, his Honour found that ELA was 'the warehouseman who stored drugs and cash' (ts 654). In addition, ELA packaged drugs and cash, as required, and met with the appellant to collect drugs or cash or to provide the appellant with drugs or cash to return to Melbourne (ts 654).
His Honour found that each of Mr Le, the appellant and Mr Tran were involved in the offending for personal gain.
His Honour said that overall the offending was very serious. It involved the dissemination of serious quantities of high grade drugs into the community. There was substantial profit and it involved sophisticated systems for the purpose of avoiding detection. The criminality was high (ts 656).
His Honour discounted the head sentence he would otherwise have imposed on the appellant for each of counts 1, 2 and 4 by 15%, pursuant to s 9AA of the Sentencing Act, in recognition of her pleas of guilty. His Honour also found mitigation in the appellant's acceptance of responsibility and her remorse for the offending.
As we have mentioned, Mr Le and Mr Tran were convicted after trial. However, Mr Le and Mr Tran cooperated with the State at the trial. They admitted certain matters and, as a result, the length of the trial was reduced.
Mr Le was born in 1962. He was aged 56 at the time of the offending and was 58 when sentenced. In 1985 Mr Le fled from Vietnam as a refugee. In 1991 he arrived in Australia with refugee status. Later, he became an Australian citizen. Mr Le had a traumatic and dysfunctional upbringing. Mr Le had regular employment after his arrival in Australia. He did not have a relevant prior criminal record. Mr Le is estranged from his family. He is the grandfather of ELA's young son.
The appellant was born in 1982. She was aged 36 at the time of the offending and was 38 when sentenced. In 2005 the appellant migrated from Vietnam to Australia. When sentenced the appellant was single. She had three children aged 14, 8 and 3 years. She had not seen any of her children since she was arrested. The children reside in Victoria with one of the appellant's sisters. The appellant completed the equivalent of year 12 at school in Vietnam. She began work in a bakery upon arrival in Australia. The appellant ceased working after the birth of her second child. She has not worked since 2012. The appellant has poor consequential thinking and poor decision‑making skills. She has associated with negative peers and has lacked employment and financial stability. She has struggled emotionally since the offending as a result of her separation from her children. The appellant did not have any previous convictions. There was, however, an outstanding matter in the Magistrates Court relating to the appellant's failure to obey a police order that she provide the personal identification number to her mobile telephone so that the police could access the telephone.
Mr Tran was born in 1956. He was aged 62 at the time of the offending and was 64 when sentenced. In 1981 Mr Tran arrived in Australia with refugee status. He has two daughters and a son. Mr Tran's children are adults. He is a pensioner. Mr Tran did not have any previous convictions. Mr Tran has been compliant and well‑behaved while in custody.
His Honour noted that ELA had been sentenced by Davis DCJ on 18 December 2019. His Honour had regard to the facts and circumstances of ELA's offending, including the aggravating and mitigating factors, and to the sentencing outcome for the purposes of parity as between ELA, on the one hand, and each of Mr Le, the appellant and Mr Tran, on the other.

Counsel for the appellant's submissions

Counsel for the appellant submitted that the appellant's culpability was materially less than Mr Le's having regard to their respective roles in connection with the offending, Mr Le's additional criminality in his commission of count 3 and the appellant's pleas of guilty. It was submitted that, in all of the circumstances, there should have been materially greater disparity between the total effective sentences imposed on the appellant and Mr Le.

Counsel for the State's submissions

Counsel for the State submitted that the difference between the total effective sentences imposed on the appellant and Mr Le was not outside 'the permissible range of difference'. That is, the difference between the total effective sentences appropriately reflected the different degrees of criminality and the different personal circumstances of the appellant and Mr Le. It was submitted, however, that if the court were of the view that the appellant did have a justifiable sense of grievance because of the absence of a marked disparity between her total effective sentence and Mr Le's total effective sentence, any resentencing by the court must result in a higher total effective sentence for the appellant than the sentence imposed on Mr Tran.

The merits of the appeal

As we have mentioned, the sole ground of appeal, as developed in argument, alleges, in essence, that the total effective sentence of 13 years 6 months' imprisonment imposed on the appellant infringed the parity principle having regard to the total effective sentence of 16 years 6 months' imprisonment imposed on Mr Le.
The appellant does not challenge any of the findings of fact made by Goetze DCJ. Also, it is not alleged that any individual sentence imposed upon the appellant was manifestly excessive or that the total effective sentence she received infringed the totality principle.
In NGO v The Queen,[1] this court stated relevant aspects of the parity principle as follows:
[1] NGO v The Queen [2017] WASCA 3 [36] ‑ [40] (Buss P; Mazza JA agreeing).
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].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[2] apply. See Green v The Queen;[3] and Stanley v The State of Western Australia.[4]
[2] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[3] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32] (French CJ, Crennan & Kiefel JJ).
[4] Stanley v The State of Western Australia [2018] WASCA 229 [40] (Buss P, Mazza & Beech JJA).
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[5] Nguyen v The Queen.[6]
[5] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[6] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
As we have mentioned, Goetze DCJ sentenced the appellant, Mr Le and Mr Tran. It is apparent that his Honour was fully informed about Davis DCJ's prior sentencing of ELA.
Our examination of the facts and circumstances of the offending by the appellant and Mr Le reveals that Mr Le had, without doubt, a materially higher level of culpability than the appellant.
In particular:
(a)Mr Le's role in the offending was greater than the appellant's. Mr Le's organisational activities were central to the drug trafficking operation. He was the overall coordinator of the operation. Mr Le was more culpable than the appellant or anyone else. Although the appellant coordinated various activities including Mr Tran's activities, she did not coordinate matters to the same extent as Mr Le.
(b)Each of the appellant and Mr Le committed counts 1, 2 and 4. However, in addition, Mr Le (but not the appellant) committed count 3. The offence charged in count 3 involved the possession of heroin with intent to sell or supply it to another. The quantity of heroin was substantial (namely 527.3 g) and the purity of the drug was high (between 76% and 80%). The maximum penalty for the offence was 25 years' imprisonment or a fine of $100,000 or both.
(c)The appellant's offending was mitigated by her pleas of guilty. Goetze DCJ recognised those pleas by affording the appellant a discount of 15% on the head sentence he would otherwise have imposed for each of counts 1, 2 and 4. By contrast, Mr Le did not have the mitigation that pleas of guilty would have brought. He did, however, cooperate with the State at the trial and consequently the length of the trial was reduced.
The differences between the appellant's personal circumstances and antecedents and those of Mr Le were not material for sentencing purposes. In any event, matters personal to an offender who commits serious drug trafficking offences ordinarily carry only modest weight.
We are satisfied, having regard to the material differences we have noted at [66] above and the absence of material differences we have noted at [67] above, that Mr Le's materially higher level of culpability was not properly reflected in the disparity between the total effective sentences received by the appellant and Mr Le.
In our opinion, the individual sentences imposed on Mr Le for counts 1 and 2 and the total effective sentence he received were, without doubt, lenient. That unwarranted leniency contributed to an outcome in the relativities as between the appellant and Mr Le, for the purposes of the parity principle, that is unreasonable or plainly unjust. The State did not appeal against Mr Le's sentences. The sentences imposed on Mr Le are therefore the benchmark against which issues concerning parity or equal justice in relation to the appellant must be evaluated.
After evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the offending by the appellant and Mr Le, and after taking into account the similarities and differences between their offending and their personal circumstances and antecedents, we consider that the total effective sentence imposed on the appellant infringed the parity principle or the principle of equal justice.
We are satisfied that the total effective sentence imposed on the appellant, compared to the total effective sentence imposed on Mr Le, reveals that there was a marked and unjustifiable lack of disparity adverse to the appellant and favourable to Mr Le.
In our opinion, the sentencing outcome in relation to the appellant, compared to the sentencing outcome in relation to Mr Le, gives rise to a legitimate or justifiable sense of grievance on the appellant's part, and is such as to give the appearance in the mind of an objective observer that justice has not been done as between the appellant and Mr Le or generally.
The ground of appeal has been made out.
We would allow the appeal and set aside the sentences imposed by his Honour on the appellant.
This court has the materials necessary to resentence the appellant.
Like Goetze DCJ, we would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty. We have taken into account (and allowed discounts for) the other mitigating factors referred to by his Honour. We have also taken into account the aggravating factors mentioned by his Honour. We have in addition taken into account, for the purposes of ensuring parity or equal justice between the appellant, on the one hand, and Mr Le, on the other, the facts and circumstances of the offending by Mr Le, his personal circumstances and antecedents, all aggravating factors and mitigating factors relevant to Mr Le and the sentences he received.
We would impose new individual sentences of immediate imprisonment in respect of the counts in the indictment relating to the appellant as follows:
(a)count 1: 11 years;
(b)count 2: 5 years 6 months; and
(c)count 4: 12 months (reduced from 3 years 6 months in the application of the totality principle).
The new sentence for count 4 (12 months) should be served cumulatively upon the new sentence for count 1 (11 years) and the new sentence for count 2 (5 years 6 months) should be served concurrently with the new sentence for count 1. The new total effective sentence in respect of the counts in the indictment relating to the appellant is therefore 12 years' imprisonment.
The new total effective sentence of 12 years' imprisonment should be taken to have taken effect on 15 November 2018. The appellant should remain eligible for parole. She will be eligible to be considered for release on parole when she has served 10 years in custody calculated from 15 November 2018.

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
5 MAY 2022