Walker v The State of Western Australia
[2022] WASCA 100
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WALKER -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 100
CORAM: QUINLAN CJ
BUSS P
BEECH JA
HEARD: 12 JANUARY 2022
DELIVERED : 8 AUGUST 2022
FILE NO/S: CACR 21 of 2021
BETWEEN: LUKE ROBERT WALKER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1164 of 2020
Catchwords:
Criminal law – Appeal against sentence – Appellant convicted on one count of supplying a trafficable quantity of methylamphetamine and one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply – Parity principle – Whether sentence for possessing a trafficable quantity of methylamphetamine with intent to sell or supply unreasonable or plainly unjust
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 34(1)(a), s 34(1)(aa)
Result:
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S D Freitag SC |
| Respondent | : | P M Usher |
Solicitors:
| Appellant | : | Tudori Hager Grubb |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Baker v The State of Western Australia [2020] WASCA 117
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Giangiulio v The State of Western Australia [2022] WASCA 77
Giglia v The State of Western Australia [2010] WASCA 9
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
House v The King (1936) 55 CLR 499
HSV v The State of Western Australia [2020] WASCA 5
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McAlpine v The State of Western Australia [2018] WASCA 195
McGrath v The State of Western Australia [2021] WASCA 118
MHE v The State of Western Australia [2019] WASCA 133
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musulin v The State of Western Australia [2020] WASCA 18
Ngo v The Queen [2017] WASCA 3
Nickson v The State of Western Australia [2021] WASCA 40
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Stanley v The State of Western Australia [2018] WASCA 229
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Paolucci [2020] WASCA 188
Table of Contents
QUINLAN CJ & BEECH JA:
Introduction and overview
Facts and circumstances of the offending
Appellant's personal circumstances and antecedents
Mr Alo's personal circumstances and antecedents
Sentencing remarks
Sentencing remarks in relation to Mr Alo
Sentencing remarks in relation to the appellant
Grounds of appeal
Ground 2 – manifest excess
Ground 1 – parity
Ground 1 – the appellant's submissions
Ground 1 – the respondent's submissions
Ground 1 – disposition
Conclusion
BUSS P:
The facts and circumstances of the offending
Mr Alo and the appellant's personal circumstances and antecedents
The primary judge's sentencing remarks including his findings of fact
The organisation of the balance of these reasons
The appellant's submissions and the State's submissions in the appeal
The merits of ground 2
The merits of ground 1
The outcome of the appeal and the resentencing of the appellant
QUINLAN CJ & BEECH JA:
Introduction and overview
This is an appeal against sentence.
The appellant was convicted, on his pleas of guilty, of two counts in an indictment: supplying a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (Count 6) and possession of a trafficable quantity of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act (Count 9). In particular:
(a)Count 6 concerned the supply of 83.3 g of methylamphetamine by the appellant to a co‑offender, Anthony Michael Alo, on 10 January 2019, which Mr Alo then sold to an undercover operative; and
(b)Count 9 concerned the possession of 373.6 g of methylamphetamine by the appellant in three separate areas of a property in Alkimos: 82.9 g packaged on the table in the living room, 277 g in two smaller clip seal bags found on the floor behind the lounge chair in the living room and 13.7 g in a clip seal bag found in the driver's side door of the appellant's car.
As both Count 6 and Count 9 involved trafficable quantities of methylamphetamine, the maximum penalty for each offence was life imprisonment.[1]
[1] Misuse of Drugs Act, s 34(1)(a).
On 29 January 2021, Birmingham DCJ sentenced the appellant to a total effective sentence for the two counts of 10 years imprisonment. The appellant was made eligible for parole. The individual sentences imposed were as follows:
Count Sentence Concurrent/Cumulative 6 5 years and 6 months imprisonment Partially cumulative (commencing after the appellant has served 4 years and 6 months in relation to Count 9) 9 8 years and 6 months imprisonment Head sentence
On the same day, Birmingham DCJ sentenced the appellant's co‑offender, Mr Alo, in relation to seven offences on the same indictment. Two of those offences arose from an overlapping, albeit not identical, set of facts as Count 6 and Count 9 against the appellant, namely:
(a)Count 5 (selling a trafficable quantity of methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act) concerned the sale by Mr Alo of the drugs, the subject of Count 6, to the undercover operative; and
(b)Count 7 (offering to sell a trafficable quantity of methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act) concerned an offer by Mr Alo, on 20 February 2019, to sell to the undercover operative 280 g of methylamphetamine. It was in the course of facilitating this sale that the appellant was in possession of the drugs, the subject of Count 9.
The remaining counts on the indictment, for which Mr Alo was also sentenced, concerned his involvement in the distribution of other drugs, namely cocaine and cannabis:
(a)Count 1 concerned Mr Alo supplying 0.52 g of cocaine to the undercover operative on 16 October 2018;
(b)Count 2 concerned Mr Alo selling 167 g of cocaine to the undercover operative on 19 October 2018;
(c)Count 3 concerned Mr Alo offering to supply 1.12 kg of cannabis to the undercover operative on 5 November 2018;
(d)Count 4 concerned Mr Alo offering to supply 70 g of cocaine to the undercover operative on 15 December 2018; and
(e)Count 8 concerned Mr Alo possessing 140 g of cannabis with intent to sell or supply on 21 February 2019.
The sentencing judge also sentenced Mr Alo to a total effective sentence of 10 years imprisonment and made him eligible for parole. The individual sentences imposed were as follows:
Count Sentence Concurrent/Cumulative 1 6 months imprisonment Concurrent with head sentence 2 4 years and 6 months imprisonment Concurrent with head sentence 3 2 years imprisonment Concurrent with head sentence 4 3 years imprisonment Concurrent with head sentence 5 5 years imprisonment Partially cumulative (commencing after the appellant has served 5 years in relation to count 7) 7 7 years and 6 months imprisonment Head sentence 8 1 year imprisonment Concurrent with head sentence
The individual sentence for Count 5 was reduced from 5 years and 6 months imprisonment to 5 years for reasons of totality.
The appellant appeals his sentence on two grounds:
(a)that the sentencing judge erred in imposing the same total effective sentence on each of the appellant and Mr Alo in breach of the parity principle (ground 1); and
(b)that the individual sentence imposed on Count 9 was manifestly excessive (ground 2).
The appellant's contention, in ground 2, that the sentence of 8 years and 6 months imprisonment for Count 9 was unreasonable or plainly unjust must be rejected. While we would grant leave to appeal on that ground, ground 2 must fail.
Ground 1 ultimately turns upon whether, bearing in mind the discretionary nature of a sentencing judge's judgment as to parity, the lack of disparity in the total effective sentence imposed on each of the appellant and Mr Alo 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.
The fact that Mr Alo was convicted of a series of offences in addition to the set of offences that involved both he and the appellant does provide some pause for thought as to whether justice was done in this case. For that reason, we would also grant leave to appeal in relation to ground 1. Ultimately, however, having regard to all of the facts and circumstances of the case, including the relative seriousness of the offences that they did have in common, in our view, the sentencing judge's qualitative and discretionary judgment on the issue of parity did not produce a result that was unreasonable or plainly unjust.
We would therefore dismiss the appeal.
Facts and circumstances of the offending
We commence with the facts and circumstances of the offending as they related to both the appellant and Mr Alo.[2]
[2] The facts are taken from the prosecutor's submissions at the sentencing hearing (WAB 39 - 42). Counsel for the appellant and Mr Alo accepted those facts (WAB 43 - 44).
Between May 2018 and February 2019, police conducted an operation which included an undercover operative becoming a member of a martial arts academy (academy). The academy was operated by another co‑offender, Adam Leslie Hyde. Mr Alo was a Di Si Hing, which translates as the role of 'big brother', and managed the academy on behalf of Mr Hyde.
After building a trusted relationship with Mr Alo and Mr Hyde, the undercover operative made a number of purchases of prohibited drugs from Mr Hyde through Mr Alo. The undercover operative communicated with Mr Alo using an encrypted messenger service, Cipher.
On 16 October 2018, the undercover operative communicated with Mr Alo via Cipher. Mr Alo told him to attend training at the academy that night as he had a sample for him. When the undercover operative attended the academy that night, Mr Alo supplied him with half a gram of cocaine. No payment was received for this transaction. The seized cocaine weighed 0.52 g and had a purity of 36%. These facts constituted Count 1 (against Mr Alo).
At that meeting, Mr Alo spoke to the undercover operative about the supply of 6 ounces of cocaine for $7,000 per ounce.
On 19 October 2018, Mr Alo arranged to meet with the undercover operative via Cipher to sell him 6 ounces of cocaine. The undercover operative attended the academy later that day and purchased the 6 ounces of cocaine from Mr Alo for $42,000. The seized cocaine weighed 167 g with a purity of 33%. These facts constituted Count 2 (against Mr Alo).
On 5 November 2018, the undercover operative attended the academy and spoke to Mr Alo, who provided him with one bud of cannabis as a sample. They discussed the supply of cannabis for $4,800 per pound. Mr Alo offered to sell the undercover operative two and a half pounds (1.12 kg) of cannabis at $4,800 per pound. These facts constituted Count 3 (against Mr Alo).
Over the course of 14 and 15 December 2018, Mr Alo and the undercover operative conversed via Cipher in relation to the purchase of two and half ounces of cocaine. On 14 December 2018, the undercover operative met Mr Alo in the car park of a 7‑Eleven store in Wangara and paid $20,000 for two and a half ounces of cocaine. They both returned to the same car park later that day, at which time Mr Alo told the undercover operative that there was a problem with the supply of cocaine because Mr Hyde had not authorised the supplier. Mr Alo returned the $20,000 to the undercover operative. The following day, 15 December 2018, Mr Alo and the undercover operative spoke via Cipher about the supply of the two and a half ounces of cocaine. Mr Alo told the undercover operative words to the effect that, if he still wanted it, Mr Hyde would sort it out. These facts constituted Count 4 (against Mr Alo).
On 9 January 2019, the undercover operative attended the academy and spoke with Mr Hyde in relation to drugs and the failed cocaine purchase, for which Mr Hyde apologised. Mr Hyde indicated that the next shipment of cocaine was due on the weekend. The undercover operative asked whether Mr Hyde could supply methylamphetamine.
On 10 January 2019, Mr Alo communicated with the undercover operative via Cipher, to arrange the sale of three ounces of methylamphetamine. On the same day, the appellant met with Mr Alo at an address in Scarborough and supplied Mr Alo with 3 ounces of methylamphetamine. The seized methylamphetamine was later analysed and weighed 83.3 g with a purity of approximately 53%. These facts constituted Count 6 (against the appellant).
Later that day the undercover operative attended the academy and met with Mr Alo. The undercover operative gave Mr Alo $15,000 and Mr Alo gave the undercover operative the 3 ounces of methylamphetamine that had been supplied by the appellant. These facts constituted Count 5 (against Mr Alo).
On 20 February 2019, Mr Alo and the undercover operative communicated via Cipher in relation to the purchase of 10 ounces (280 g) of methylamphetamine for $5,500 per ounce. They arranged to complete the sale on 21 February 2019. These facts constituted Count 7 (against Mr Alo).
On the morning of 21 February 2019, the appellant and another co‑accused, Blair Robinson, met at an address in Alkimos. The meeting was arranged by the appellant in order to facilitate the sale of the 10 ounces of methylamphetamine to Mr Alo.
At approximately 9.00 am that day, police executed a search warrant at the address. The appellant and Mr Robinson were located by police in the living room of the house and were arrested. The search revealed:
(a)on a coffee table, a clip seal bag containing methylamphetamine; several white plastic gloves, one of which contained an amount of methylamphetamine; a small package of methylamphetamine wrapped in a Chux cloth; and $950. The seized methylamphetamine from the coffee table weighed 82.9 g and had purities ranging from 65% to 67%;
(b)on the floor behind the lounge chair in the living room, a larger wrapped package that contained 10 smaller clip seal bags containing 1 ounce of methylamphetamine in each. The seized methylamphetamine from that package weighed a total of 277 g with purities ranging 57% and 76%; and
(c)in the appellant's car, in the driver's side door, a tissue‑wrapped clip seal bag that contained 13.7 g of methylamphetamine with a purity of 65%.
These facts constituted Count 9 (against the appellant). It was an accepted fact that the 277 g of methylamphetamine behind the lounge chair in the living room was the 10 ounces the subject of the offer made by Mr Alo the day before (i.e. Count 7).
On 21 February 2019, the police also arrested Mr Alo at his work address. During the search of Mr Alo's car police located 1 ounce of cannabis concealed within a liquid nails or glue gun. The police then conveyed Mr Alo to his home address where they executed a search warrant and found a further 4 ounces of cannabis concealed behind panelling above a doorframe. The total weight of the seized cannabis was 140 g. These facts constituted Count 8 (against Mr Alo).
Appellant's personal circumstances and antecedents
The appellant was 40 years of age at the time of sentencing.[3]
[3] The appellant's personal circumstances are taken from the sentencing judge's sentencing remarks (WAB 69 ‑ 74).
The appellant was born in Brisbane and moved to Western Australia at the age of 25 years.
The appellant had a difficult upbringing marred by domestic violence and drug abuse by his parents. He entered into a relationship at a young age and his first child was born when he was a teenager. At the time of sentencing, he had two children aged 17 and 20 years old.
The appellant was married for 15 years until the relationship broke down. The appellant's family returned to Queensland, and he remained in Western Australia where he was in a relationship with a much younger partner, which ended upon his arrest.
The appellant has a history of association with an outlaw motorcycle club. His gang affiliation was a particular source of structure and support to the appellant, particularly after his marriage breakdown. The appellant had held the position of sergeant at arms in the gang. At the time of sentence the appellant advised that he had ceased all involvement with the gang and had left in good standing.
The appellant had a criminal record. He served a term of imprisonment for a violent offence when he was a young man in Queensland and otherwise had a history of traffic and drug possession offences in Western Australia.
Mr Alo's personal circumstances and antecedents
Mr Alo was also 40 years of age at the time of sentencing.[4]
[4] Mr Alo's personal circumstances are taken from the sentencing judge's sentencing remarks (WAB 64).
Mr Alo had been married for 20 years and has three children who, at the time, were 16, 13 and 6 years of age. Following high school, he completed a diploma in advanced business systems, later working in hospitality, security work, as a professional musician and as a glazier.
While Mr Alo had past convictions for some dishonesty offences, there was nothing in his criminal history of recent origin.
Sentencing remarks
The learned sentencing judge sentenced each of Mr Alo and the appellant separately. His Honour sentenced Mr Alo first.
Sentencing remarks in relation to Mr Alo
After setting out the relevant facts in relation to Mr Alo's offending, the sentencing judge characterised the offending as 'exceptionally serious'. His Honour said:[5]
You were selling a variety of drugs and the offending seemingly evidences an ongoing dealing of significant quantities of drugs using premises managed by you under the cover of your reputation to enable the distribution of significant quantities of illicit drugs into the community. Over four months, you were involved in the sale and distribution of significant quantities of harmful drugs into the community as evidenced by your dealings with the undercover officer.
There can be little doubt that this was perhaps only a sample of the dealings that you were doing at that time. I would be surprised if there weren't customers other than the undercover officer during that period of time. But you're to be sentenced in relation to the offending dealing with the undercover officer. But by any measure, this demonstrates that there was large sale activities being undertaken by you and Hyde on those premises involving significant quantities of illicit drugs.
The quantity of drug and the level of dealing is significant. Clearly, you were able to readily source large quantities of drug to supply to others for significant financial reward. With others, you played a significant role in the distribution of drugs in Perth.
[5] Sentencing remarks (WAB 63 - 64).
The sentencing judge referred to Mr Alo's personal circumstances and noted that there was 'nothing in [Mr Alo's] criminal history of recent origin'. He accepted that Mr Alo's pleas of guilty were an acceptance of responsibility and a willingness to facilitate the course of justice. His Honour stated that he would reduce the head sentence by 20% in order to recognise the benefit from the pleas of guilty.[6]
[6] Sentencing remarks (WAB 64).
The sentencing judge set out the significance of parity in the following terms:[7]
It's important that I give consideration to the issue of parity between the sentence imposed on you and any co‑offenders and in this case Mr Walker. As between co‑offenders there should not be a marked disparity that gives rise to any justifiable sense of progress (sic grievance).
It's obviously desirable that people who have been party to the same offence should, all other things being equal, receive the same sentence. However, if there are factors that support differences in treatment because of differences in degrees of culpability or their circumstances, then it's appropriate to treat people differently. Matters of age, background, prior criminal history are said to be factors which all need to be taken into account.
[7] Sentencing remarks (WAB 64 - 65).
His Honour continued, in relation to the factors relating to Mr Alo and the appellant:[8]
There are differences in relation to the antecedence between you and your co‑accused Walker and the quantity of drug in relation to count 7, being 270, whilst your co‑accused Walker was found to be in possession of 373 grams in relation to count 9.
Further, the respective positions in the drug hierarchy needs to be considered. Whilst Mr Walker was a person supplying to you, I consider that each of you are equally culpable in respect of both being involved at the upper end of the hierarchy in the drug dealing world.
In respect of the roles, both you and Walker and the relationship in relation to counts 5 and 6 and 7 and 9, as I said, you are seemingly at the same level in the hierarchy and the same high level of dealing, in my view both trusted members in [an] organisation at the top or near the top, and as said by [the appellant's counsel] but adopted by [Mr Alo's counsel] as well, performing different tasks but at similar levels.
[8] Sentencing remarks (WAB 65).
After referring to the relevant sentencing considerations, and observing that the principal consideration was both general and specific deterrence, the sentencing judge announced the individual sentences as being:
(a)in relation to Count 1: 6 months imprisonment;
(b)in relation to Count 2: 4 years and 6 months imprisonment;
(c)in relation to Count 3: 2 years imprisonment;
(d)in relation to Count 4: 3 years imprisonment;
(e)in relation to Count 5: 5 years and 6 months imprisonment;
(f)in relation to Count 7: 7 years and 6 months imprisonment; and
(g)in relation to Count 8: 1 year imprisonment.
The sentencing judge then turned to issues of totality. His Honour stated that, in his view, the total criminality of the offending warranted a total effective sentence of 10 years imprisonment. To achieve this result his Honour ordered that Count 7 be the head sentence and that Count 5 be reduced to 5 years imprisonment (for totality) and be partly cumulative on Count 7, to commence after Mr Alo had served 5 years of that sentence. All other counts were ordered to be served concurrently.
Sentencing remarks in relation to the appellant
The sentencing judge incorporated reference to the facts and circumstances from his remarks in relation to Mr Alo, insofar as they applied to the appellant. In relation to the circumstances of Count 6 and Count 9, his Honour added:[9]
In relation to count 6, when the undercover officer had arranged to buy the 3 ounces of drug, it was you who met with Alo and supplied him with those drugs. When the undercover officer made arrangements to purchase the 10 ounces of drugs again, it was you who intended to supply and fulfill that order to Alo and Hyde through to the undercover officer. You were prevented from doing so by your arrest together with Robinson where you were then found in possession of some 373 grams of methylamphetamine, which is the subject of count 9.
These are very significant quantities of drug. At the time, you were a member of the Rebels Outlaw motorcycle club. You were the sergeant at arms of the Northside chapter. The relationship between all these transactions and the role played by yourself, Hyde and Mr Alo must be acknowledged.
Mr Hyde was, at the time, sergeant at arms, I recall, for the – I think it's the Wangara. This involved very significant quantities of a relatively high purity drug. It's capable of causing significant harm. You were the person who Alo sought to source the drugs from in accordance with the arrangements that were being made within the organisation that you both operated in.
You demonstrated a capacity to be able to fulfill the drugs at relatively short notice, 3 ounces and then 10 ounces, and that highlights the level of your involvement in the hierarchy of the drug dealing community, and in particular, within this organisation, where, with the co‑accused, you seemingly warehouse a large quantity of illicit drug for sale and distribution.
[9] Sentencing remarks (WAB 69 - 70).
The sentencing judge referred to the appellant's personal circumstances, including his difficult upbringing and criminal history. As with Mr Alo, his Honour determined that the sentence should be reduced by 20% in order to recognise the benefit from the pleas of guilty.[10]
[10] Sentencing remarks (WAB 72).
In relation to parity with Mr Alo, the sentencing judge said:[11]
As I said in relation to Mr Alo issues of parity need to be considered by me because clearly you both should get as far as appropriate the same sentence when the offences are the same such as there's no marked disparity that gives rise to a justifiable sense of grievance.
In this case there are some factors that are different, factors in relation to antecedents, but those are made up for and reflected on differences in the nature of the total range of offences for which you're to be sentenced. In relation to the offences where you committed those effectively at the same time with Alo, as I've said you were performing different tasks at similar levels and essentially I see you as being equally culpable in those, although in relation to count 9 the quantity of drugs you were charged with in relation to that is significantly greater than the quantity that Alo has been convicted of.
The 280 grams he was convicted of is just part and parcel of the 370 that you had. As I said earlier the starting point really is that both of you are major figures in the drug enterprise of the Rebels motorcycle club and you were each seemingly working at the same level and culpable at a similar level as you were with Hyde.
[11] Sentencing remarks (WAB 73).
The sentencing judge later emphasised:[12]
The nature and level of your participation within the organisation in which this offending occurred is high, near the top of the organisation, if not at the top, with others in your capacity as a sergeant at arms of one of the chapters.
…
You had the capacity to source significant quantities of illicit drugs and play a major role in the distribution of drugs. You're undoubtedly high up in the chain of command in relation to the distribution of drugs within the community through that organisation.
[12] Sentencing remarks (WAB 73, 74).
The sentencing judge announced the individual sentences as being:
(a)in relation to Count 6: 5 years and 6 months imprisonment; and
(b)in relation to Count 9: 8 years and 6 months imprisonment.
The sentencing then turned to issues of totality. His Honour stated that, in his view, the total criminality of the offending warranted a total effective sentence of 10 years imprisonment. To achieve this result his Honour ordered that Count 9 be the head sentence and that Count 6 be partly cumulative on Count 9, to commence after Mr Alo had served 4 years and 6 months of that sentence.
Grounds of appeal
As noted earlier, the appellant appeals the total effective sentence on two grounds:
(a)that the sentencing judge erred in imposing the same total effective sentence on each of the appellant and Mr Alo in breach of the parity principle (ground 1); and
(b)that the individual sentence imposed on Count 9 was manifestly excessive (ground 2).
While the appellant's principal focus, at the hearing of the appeal, was on ground 1, it is appropriate to deal first with ground 2, which alleges manifest excess in relation to the sentence of 8 years and 6 months imposed in relation to Count 9.
In that context, it will be apparent that, while ground 1 is put on the basis that the total effective sentence of 10 years for each of Mr Alo and the appellant offended the parity principle, the appellant did not contend that the total effective sentence of 10 years imprisonment infringed the totality principle. Rather his submission was that the individual sentence for Count 9 was manifestly excessive.
It is appropriate to commence with the individual sentence for Count 9, as 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.[13]
[13] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] (McHugh, Hayne & Callinan JJ); Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
Ground 2 – manifest excess
Ground 2 asserts implied error. The relevant principles in that regard are well settled. They include the following matters, which we have taken from the summary in Kabambi v The State of Western Australia.[14]
[14] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
In support of this ground, the appellant referred to three recent decisions of this Court. Each was decided after the maximum penalty for possession of a trafficable quantity of methylamphetamine was increased to life imprisonment.
The first decision, chronologically, is HSV v The State of Western Australia.[15]
[15] HSV v The State of Western Australia [2020] WASCA 5 (HSV).
In HSV, the appellant (31 years old at the time of sentencing) was sentenced, on his guilty plea, in relation to five offences: one count of sale or supply of methylamphetamine (count 1), two counts of possession of a prohibited drug (cocaine and MDA) with intent to sell or supply (counts 2 and 3), one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply (count 4) and one count of possession of stolen or unlawfully obtained property ($33,075). The total amounts of methylamphetamine seized were 27.8 g (72% purity), in relation to count 1, and 977.82 g (69% to 80% purity) in relation to count 4. Count 2 involved 630.07 g of cocaine (of varying purities) and count 3 involved 138.3 g of MDA (of varying purities).
Count 4 was committed after the increase in the maximum penalty to life imprisonment. The appellant received a 20% discount for his guilty plea. The appellant in HSV was sentenced to a total effective sentence of 13 years imprisonment, which included sentences of 3 years and 6 months in relation to count 1 and 9 years and 6 months in relation to count 4.
The appeal against the total effective sentence in HSV was dismissed. In dismissing the appeal, the Court observed that there was 'no challenge, and in the circumstances there could be no challenge, to the individual sentence of 9 years 6 months' imprisonment imposed on count 4'.[16]
[16] HSV [47] (Buss P, Mazza & Mitchell JJA).
The second decision relied upon by the appellant was Baker v The State of Western Australia.[17] The appellant in that case (who was 34 years old at the time of sentencing) was sentenced, on his guilty plea, to eight counts of offering to sell or supply methylamphetamine. The eight counts, respectively, involved the following quantities of methylamphetamine: 10.5 g, 28 g, 112 g, 28 g, 56 g, 84 g, 23 g and 448 g. The appellant in Baker was sentenced by the sentencing judge to a total term of 8 years 8 months imprisonment, plus an additional 12 months by reason of the fact that he had breached a suspended term of imprisonment when he committed five of the offences. The total effective sentence was therefore 9 years 8 months imprisonment.
[17] Baker v The State of Western Australia [2020] WASCA 117 (Baker).
An appeal against sentence in Baker was allowed on the basis that the State had failed to prove, beyond reasonable doubt, that the appellant had the capacity to fulfil his offer to supply 448 g of methylamphetamine as alleged in count 8. The Court resentenced the appellant in Baker to a total term for the eight offences of 8 years, and ordered that the suspended 12‑month imprisonment term be served cumulatively, bringing the total effective sentence to 9 years. The individual sentence for count 8 was 6 years imprisonment.
Finally, the appellant relied upon Nickson v The State of Western Australia.[18] The appellant in Nickson was sentenced to a total effective sentence of 11 years imprisonment in respect of six offences, including being in possession of 505.59 g of methylamphetamine with intent to sell or supply it to another. The individual sentence for that count was 7 years and 6 months imprisonment.
[18] Nickson v The State of Western Australia [2021] WASCA 40 (Nickson).
The appellant appealed on the ground that the total effective sentence of 11 years imprisonment was manifestly excessive. The Court refused leave to appeal on the grounds that it was not reasonably arguable that the total effective sentence of 11 years imprisonment was unreasonable or plainly unjust.
None of the cases relied upon by the appellant support the contention that the individual sentence for Count 9 was manifestly excessive. In HSV and Nickson, the individual sentences identified by the appellant as being comparable were not the subject of consideration by the Court as to whether they were manifestly excessive. On the contrary, those offences fell to be considered in the context of an argument in relation to the total effective sentence and, in each case, the Court rejected the argument that the total effective sentence was unreasonable or plainly unjust. Those decisions provide no basis to conclude that the individual sentence in respect of Count 9 in the present case was unjust or unreasonable.
In addition, unlike in Baker, where the Court could not be satisfied that the appellant had the capacity to fill the order for the significant quantity of methylamphetamine the subject of count 8 in that case (448 g), in the present case (while the quantity the subject of count 9 involved was somewhat less (373.6 g)), the appellant clearly had the capacity to source the significant quantities of drugs the subject of the offence. As the sentencing judge in this case found, the appellant demonstrated a capacity to be able to fulfill orders for drugs at relatively short notice and 'seemingly warehouse[d] a large quantity of illicit drug for sale and distribution'.[19] There was no challenge to that finding of fact by his Honour.
[19] WAB 70.
As the authorities reveal, and as the sentencing judge recognised, the major sentencing considerations for offences of this type are general and personal deterrence. Given that the appellant was, on the judge's findings 'undoubtedly high up in the chain of command in relation to the distribution of drugs',[20] it was necessary that the sentence for Count 9 achieve the required deterrence by reflecting the criminality involved in that position in the chain of command.
[20] WAB 74.
We accept that the individual sentence for Count 9 may properly be described as heavy and that the exercise of a sound sentencing discretion could have lead to a lighter individual sentence. Nevertheless, taking into account the maximum penalty, the circumstances of the offending, the appellant's plea of guilty, his personal circumstances and all relevant sentencing principles, in our view the sentence cannot properly be characterised as unreasonable or plainly unjust.
It may also be observed that, to the extent that the individual sentence for Count 9 was heavy (albeit not manifestly excessive), it was in any event softened by the order that it be served partly concurrently with the sentence for Count 6, with that sentence commencing 4 years and 6 months into the sentence for Count 9. Save for his reliance on the parity principle, to which we will turn next, the appellant did not otherwise contend that the total effective sentence of 10 years imprisonment imposed on him offended the totality principle.[21]
[21] See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA); MHE v The State of Western Australia [2019] WASCA 133 [59] (Mitchell & Beech JJA; Quinlan CJ agreeing).
While we would grant leave to appeal, ground 2 must fail.
Ground 1 – parity
The principles in relation to the parity principle are also well‑settled.
Those principles were summarised by Buss P in Ngo v the Queen,[22] in a passage that has been adopted or reproduced in many subsequent decisions of this Court:
[22] Ngo v The Queen [2017] WASCA 3 (Ngo).
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].
A judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[23] apply.[24]
[23] House v The King (1936) 55 CLR 499.
[24] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32] (French CJ, Crennan & Kiefel JJ) (Green); Stanley v The State of Western Australia [2018] WASCA 229 [40] (Buss P, Mazza & Beech JJA).
In Higgins v The State of Western Australia,[25] this Court considered the application of the parity principle where the co‑offenders had committed one or more common offences but some or all of them had also committed other unrelated offences. Relevantly, the Court came to the following conclusions:
(a)a person's sentence, for the purposes of the parity principle, is comprised of the sentence imposed in respect of each individual offence, any minimum non‑parole period, orders for accumulation and concurrence and the resulting total effective sentence, and, where a person is already serving an earlier term of imprisonment, the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence. The parity principle may apply to each and any of these components;[26]
(b)there is no hard and fast rule that, in cases of co‑offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. An infringement of the parity principle may arise from a marked disparity in the respective sentences imposed on co‑offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though either, or both, of the co‑offenders was sentenced for other offences;[27] and
(c)in evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences[28] and all relevant sentencing principles, including the totality principle.[29]
[25] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins).
[26] Higgins [25] (Buss P) [178] - [179] (Beech JA), [199] - [208] (Pritchard JA).
[27] Higgins [169] - [177] (Beech JA), [204] - [210] (Pritchard JA).
[28] Higgins [53] ‑ [54] (Buss P), [184] (Beech JA).
[29] Higgins [19] (Buss P) [168] (Beech JA).
As the above principles make clear, just as marked and unjustified disparity between co‑offenders whose culpability and circumstances are comparable may give rise to a legitimate or justifiable sense of grievance, so too a lack of disparity between co‑offenders whose culpability and circumstances differ may justify an appellate court's interference. As Brennan J observed in Lowe v The Queen:[30]
The imposition of comparable sentences upon co‑offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.
Ground 1 – the appellant's submissions
[30] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617 (Brennan J).
The appellant's submissions in relation to ground 1 were focused, principally, on the lack of disparity between the total effective sentence imposed upon him and on Mr Alo. That is, the legitimate or justifiable sense of grievance was, in this case, said to arise from the fact that both the appellant and Mr Alo were sentenced to a total effective sentence of 10 years imprisonment, in circumstances in which, the appellant submitted, there ought to have been a marked disparity between their total effective sentences.
As will become apparent, the appellant did not identify marked or unjustified disparity in relation to the individual sentences imposed with respect to the offences that the appellant and Mr Alo had 'in common'. Indeed, insofar as there were differences in the sentences for the offences that involved both the appellant and Mr Alo, those differences could be readily justified. For this reason, issues of totality loom large in the resolution of ground 1.
The appellant submitted that there were, in essence, four matters that ought to have resulted in a difference in the total effective sentence between the appellant and Mr Alo.[31]
[31] Appellant's Submissions [22] ‑ [34] (WAB 14 - 16); Appeal ts 8 ‑ 9.
First, Mr Alo was sentenced in relation to five additional offences. Each of the sentences for those offences were ordered to be served concurrently with the offences that involved both Mr Alo and the appellant.[32]
[32] Appellant's Submissions [23] ‑ [24] (WAB 14 - 15); Appeal ts 8.
Secondly, it was an aggravating factor that the additional offences committed by Mr Alo involved a number of different drugs, namely cocaine and cannabis. The sentence on Mr Alo, the appellant submitted, did not reflect this aggravating factor.[33]
[33] Appellant's Submissions [25] ‑ [26] (WAB 15); Appeal ts 8.
Thirdly, Mr Alo's offending occurred over a longer period of time; that is, 4 months as opposed to the appellant's 5 weeks. The lengthier duration of offending aggravated Mr Alo's offending when compared with the appellant's offending.[34]
[34] Appellant's Submissions [27] ‑ [28] (WAB 15); Appeal ts 8.
Finally, the appellant submitted that his personal circumstances and background were significantly more deprived than that of Mr Alo. He submitted that while he and Mr Alo were of similar age, his own childhood had been marred by domestic violence and exposure to drug use from an early age.[35]
[35] Appellant's Submissions [29] ‑ [34] (WAB 15 - 16); Appeal ts 9.
The combination of these four matters, the appellant submitted, was such that the sentencing judge should have imposed a lesser sentence on the appellant than he imposed on Mr Alo.[36] Again, it will be apparent that the appellant's submission in this regard was a reference to the total effective sentence of 10 years imprisonment.
[36] Appeal ts 9.
At the hearing of the appeal, the appellant accepted that, while Count 7 (committed by Mr Alo) and Count 9 (committed by the appellant) arose from a related set of facts (and so could be regarded as 'common'), Count 9 was nevertheless more serious, involving as it did a larger quantity of methylamphetamine. Indeed, that difference was reflected in the different individual sentences imposed with respect to Count 7 and Count 9, namely 7 years and 6 months imprisonment and 8 years and 6 months imprisonment, respectively.[37]
Ground 1 – the respondent's submissions
[37] Appeal ts 13 -14.
The respondent submitted, in essence, that the uncommon features between the appellant and Mr Alo's offending served, in effect, to balance each other out and, thus, there was no breach of the parity principle.[38] The respondent emphasised not only the greater quantity of drugs involved in Count 9, when compared to Count 7, but also the fact that as the 'common' offences involved methylamphetamine, only those offences attracted a maximum penalty of life imprisonment.[39] The remaining offences, committed by Mr Alo alone, attracted the high but nonetheless lesser maximum penalty of 25 years imprisonment.[40]
[38] Respondent's Submissions [31] (WAB 27).
[39] Misuse of Drugs Act, s 34(1)(a).
[40] Respondent's Submissions [27] (WAB 26); Misuse of Drugs Act, s 34(1)(aa).
The respondent also submitted that a distinction could be drawn between the seriousness of the appellant and Mr Alo's offending by reference to the position held by the appellant in the outlaw motorcycle club. In that regard, the respondent relied to the sentencing judge's references to the fact that the appellant was the sergeant at arms of a chapter of the club.[41] The fact that 'the appellant, within that criminal organisation, was in a relatively superior position', the respondent submitted, 'is significant when considering the seriousness of his offending' as distinct from Mr Alo.[42]
Ground 1 – disposition
[41] See [45] above.
[42] Respondent's Submissions [24] (WAB 25).
Ground 1 also asserts implied error. In that regard, it is clear from the sentencing remarks in relation to both the appellant and Mr Alo that the sentencing judge was cognisant of the parity principle and correctly identified the various factors relevant to the application of that principle.
It is also clear, from the sentencing judge's sentencing remarks, that his Honour took into account each of the four matters that the appellant relied upon in support of the submission that the total effective sentence imposed on appellant should have been less than that imposed on Mr Alo. That is, his Honour expressly referred to the number of offences, the variety of drugs and the period of time over which Mr Alo's offences were committed[43] and he expressly referred to the appellant's difficult upbringing.[44]
[43] See [39] above.
[44] See [46] above.
It therefore cannot be concluded, and indeed the appellant did not contend, that the sentencing judge made any express error in the application of the parity principle. Rather, the appellant's contention must be that the result (that is the lack of any disparity in the total effective sentence) was unreasonable or plainly unjust so as to reveal implied error.
In approaching that question, it is convenient to commence with the respondent's submission that a distinction can be drawn between the seriousness of the appellant's and Mr Alo's offending by reference to the position held by the appellant in the outlaw motorcycle club.
We reject that submission. In our view, the fact that the appellant was the sergeant at arms of a chapter of the outlaw motorcycle club cannot, in the circumstances of this case, be a basis for concluding that the appellant's offending was objectively more serious than that of Mr Alo. Such a conclusion would be inconsistent with the express factual findings made by the sentencing judge in relation to the relative roles of the appellant and Mr Alo in the drug dealing enterprise.
As is reflected in the sentencing remarks for each of the appellant and Mr Alo, the sentencing judge made a finding that they were 'seemingly at the same level in the hierarchy and at the same high level of dealing'; performing different tasks but at similar levels.[45] In relation to the appellant in particular, his Honour, while referring to the appellant's role as sergeant at arms of one of the chapters, expressly found that both the appellant and Mr Alo were 'major figures in the drug enterprise of the Rebels motorcycle club and [they] were each seemingly working at the same level and culpable at a similar level as [they] were with Hyde'.
[45] See [42] above.
In light of these express findings as to the relative level and culpability of the appellant and Mr Alo (which findings were not challenged on appeal) in our view the lack of disparity in the total effective sentence imposed on each of them cannot be explained by an implicit finding on the part of the sentencing judge that the appellant's offending was more serious because of his particular 'office' within the outlaw motorcycle club.
Indeed, were that the case, it would have been expected that such a distinction would be reflected in the individual sentences for Count 5 (committed by Mr Alo) and Count 7 (committed by the appellant), which concerned the same transaction for the same 83.3 g of methylamphetamine. Yet the sentencing judge considered that those offences should attract the same individual sentence of 5 years and 6 months imprisonment, both of which were ameliorated for reasons of totality.[46]
[46] The net effect of totality on these individual sentences was the same. In Mr Alo's case the sentence was reduced 'for totality' to 5 years imprisonment and is to commence 5 years into the sentence for Count 7, whereas in the appellant's case the sentence for Count 6 was not reduced for totality but is to commence 4 years and 6 months into the sentence for Count 9.
Rather, in the present case, the lack of disparity in the total effective sentence imposed on each of the appellant and Mr Alo must be explained, if it can be, by the greater seriousness of Count 9 (committed by the appellant), compared to Count 7 (committed by Mr Alo), and the impact of the totality principle on the total effective sentences for each of them.
As to the first of these matters, in our view, the additional quantities of methylamphetamine included in Count 9 compared to Count 7, readily justify the disparity of 1 year imprisonment for the individual sentences imposed in relation to those counts. In the circumstances, and leaving to one side (for the moment) the additional offences committed by Mr Alo, the appellant's possession of an additional 93.6 g of methylamphetamine was a significant distinguishing feature of that offending.
The sentencing judge described Count 9 as involving a 'significantly greater quantity than the quantity that [Mr] Alo has been convicted of'. That was, in the circumstances, an apt description of the comparison. The quantity was, for example, more than three times the size of a trafficable quantity of methylamphetamine. While the weight of the drugs is not, generally, the chief factor in sentencing, it is a matter of importance.[47] In this case, the various locations of the drugs and their packaging, as outlined in [27] above, was also important. They revealed that the appellant's possession of methylamphetamine was part of an ongoing operation in which he was able to fulfill multiple orders of the drug that Parliament has determined to be the most serious in its criminality.
[47] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37] (Mazza, Mitchell & Beech JJA).
Again, leaving to one side (for the moment) the additional offences committed by Mr Alo, the relative seriousness of their 'common' offending was such that a sound exercise of the sentencing discretion would have required that the appellant's total effective sentence (for those offences) be longer than that imposed on Mr Alo. In that regard, the differences between the appellant's personal circumstances and background and those of Mr Alo would not, on any reasonable exercise of the sentencing discretion, have justified the same sentencing outcome for those 'common' offences. While the appellant did have a more difficult upbringing compared with Mr Alo, they were both mature men at the time of sentencing and Mr Alo had the benefit of a more favourable criminal history. In any event matters personal to an offender who commits serious drug trafficking offences are invariably subsidiary considerations and carry only modest weight.
The real issue, in terms of parity, is whether the impact of the further offences committed by Mr Alo was such that equal justice required that his total effective sentence be greater than that of the appellant, notwithstanding the relative seriousness of their 'common' offending. The other factors identified by the appellant (further offences, different drugs and longer period of offending) were indeed matters that informed, and were properly to be reflected in, Mr Alo's total effective sentence. As we have noted above, each of those matters was expressly referred to by his Honour and, for that reason, may be regarded as having affected that total effective sentence. But were they of such significance as to necessarily, on any reasonable exercise of the sentencing discretion, outweigh the relative seriousness of the appellant's offending in relation to Count 9?
This is, we accept, a difficult question to answer in the present case. As was observed by the majority in Green, 'there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes'.[48] In the present case that difficulty is also affected by the fact that the proper application of the totality principle required that the effect of the individual sentences be ameliorated by orders that those sentences be, at least in part, served concurrently, so as to avoid sentences that did not reflect the overall criminality involved in all of the offences, viewed in their entirety. Given that Mr Alo's offending involved a greater number of offences of smaller amounts (or offers of larger amounts he did not, or could not, fulfill), whereas the appellant's offending involved fewer offences of greater amounts, it was in our view inevitable that issues of totality would have a greater impact on the total effective sentence for Mr Alo than in the case of the appellant.
[48] Green [30] (French CJ, Crennan & Kiefel JJ).
In that regard, it may readily be accepted that the total effective sentence imposed on Mr Alo was lenient. In addition, the manner in which the sentencing judge structured the total effective sentences for each of the appellant and Mr Alo might reasonably be thought to create the impression that the additional offences committed by Mr Alo had little or no impact on his total effective sentence. Without more, the fact that all of the individual sentences for Counts 1, 2, 3, 4 and 8 were ordered to be served concurrently with the sentence for Count 7, for example, might lead an observer to that view.
However, to so reason would be flawed, as it would overlook the difference in the respective sentences for counts 7 and 9. Given that difference, a reasonable observer would discern that the imposition of equivalent total effective sentences reflects the judge's recognition of Mr Alo's additional criminality arising from the additional offences he committed. Moreover, as the majority also observed in Green, the application of the parity principle is to be governed by considerations of substance rather than form.[49] And as a matter of substance, in light of the greater seriousness of Count 9 when compared to Count 7, in the end we consider that the total effective sentence imposed on Mr Alo, while lenient, did adequately reflect the additional criminality involved in his further offending. We certainly accept that another sentencing judge may have dealt with the issue of parity differently, for example, by accumulating, in whole or in part, one or more of the sentences for Mr Alo's additional offences (thus producing a marginally higher total effective sentence).
[49] Green [30] (French CJ, Crennan & Kiefel JJ).
The issue is not, however, whether we or another sentencing judge would have exercised the qualitative and discretionary judgment in relation to parity differently. It is whether the result produced in this case was unreasonable or plainly unjust, such as to give 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. We are not satisfied that it was. In answering that question, the effect of totality in compressing the extent to which Mr Alo's additional offences would result in a greater total effective sentence – bearing in mind that the two common sentences necessarily sustain a substantial term of imprisonment – must be borne in mind (see [103] above). Ultimately we have concluded that it was open to the sentencing judge to conclude, as a matter of substance, that having regard to the additional criminality involved in Mr Alo's further offending and the additional criminality in the appellant's warehousing of the various quantities of methylamphetamine the subject of Count 9, that their overall criminality was comparable and did not require a marked disparity in their total effective sentences.
In our view, when regard is had to the substance of the total effective sentences imposed, in light of all of the relevant sentencing considerations, including totality, the appellant's total effective sentence did not offend the parity principle or the principle of equal justice.
While we would grant leave to appeal, ground 1 must also fail.
Conclusion
Leave to appeal should be granted in relation to grounds 1 and 2. The appeal should be dismissed.
BUSS P:
This is an appeal against sentence.
The appellant and Anthony Michael Alo were charged on an indictment which contained nine counts. Two of the counts (counts 6 and 9) related solely to the appellant. The remaining counts (counts 1, 2, 3, 4, 5, 7 and 8) related solely to Mr Alo. However, count 5 (concerning Mr Alo) and count 6 (concerning the appellant) were related in that the appellant supplied to Mr Alo the methylamphetamine which Mr Alo sold. Similarly, count 7 (concerning Mr Alo) was related to count 9 (concerning the appellant) in that the appellant was in possession of the methylamphetamine which he intended to supply to Mr Alo to enable Mr Alo to fulfil an offer to sell methylamphetamine.
As to counts 6 and 9:
(a)Count 6 concerned the appellant supplying 83.3 g of methylamphetamine to Mr Alo on 10 January 2019 (which Mr Alo sold to an undercover police operative on 10 January 2019, being count 5).
(b)Count 9 concerned the appellant possessing 373.6 g of methylamphetamine with intent to sell or supply on 21 February 2019. The methylamphetamine was in three separate packages found in three separate areas of residential premises in Alkimos. One package contained 82.9 g. Another package contained 277 g. The third package contained 13.7 g. The appellant intended to supply to Mr Alo the package containing 277 g to facilitate Mr Alo fulfilling an offer to sell 280 g of methylamphetamine to the undercover operative, being count 7.
As to counts 1, 2, 3, 4, 5, 7 and 8:
(a)Count 1 concerned Mr Alo supplying 0.52 g of cocaine to the undercover operative on 16 October 2018.
(b)Count 2 concerned Mr Alo selling 167 g of cocaine to the undercover operative on 19 October 2018.
(c)Count 3 concerned Mr Alo offering to supply 1.12 kg of cannabis to the undercover operative on 5 November 2018.
(d)Count 4 concerned Mr Alo offering to supply 70 g of cocaine to the undercover operative on 15 December 2018.
(e)Count 5 concerned Mr Alo selling 83.3 g of methylamphetamine to the undercover operative on 10 January 2019 (being the quantity of the drug which the appellant supplied to Mr Alo on that date as alleged in count 6).
(f)Count 7 concerned Mr Alo offering to sell 280 g of methylamphetamine to the undercover operative on 20 February 2019 (which sale would have been facilitated by the appellant supplying to Mr Alo 277 g of methylamphetamine, being part of the quantity of the drug the subject of count 9).
(g)Count 8 concerned Mr Alo possessing 140 g of cannabis with intent to sell or supply on 21 February 2019.
The maximum penalty for each of counts 5, 6, 7 and 9 is life imprisonment.
The maximum penalty for each of counts 1, 2 and 4 is 25 years' imprisonment or a fine of $100,000 or both.
The maximum penalty for each of counts 3 and 8 is 10 years' imprisonment or a fine of $20,000 or both.
On 29 January 2021, Birmingham DCJ imposed on the appellant a total effective sentence in respect of counts 6 and 9 of 10 years' imprisonment. His Honour backdated the total effective sentence to 21 February 2019, being the date on which the appellant was taken into custody for the offending.
The individual sentences imposed on the appellant were as follows:
Count Sentence Concurrent/Cumulative 6 5 years 6 months' imprisonment Partially cumulative (commencing after the appellant has served 4 years 6 months in relation to count 9) 9 8 years 6 months' imprisonment Head sentence
The appellant was made eligible for parole.
Also on 29 January 2021, Birmingham DCJ imposed on Mr Alo a total effective sentence of 10 years' imprisonment in respect of counts 1, 2, 3, 4, 5, 7 and 8. His Honour backdated the total effective sentence to 21 February 2019, being the date on which Mr Alo was taken into custody for the offending.
The individual sentences imposed on Mr Alo were as follows:
Count Sentence Concurrent/Cumulative 1 6 months' imprisonment Concurrent with head sentence 2 4 years 6 months' imprisonment Concurrent with head sentence 3 2 years' imprisonment Concurrent with head sentence 4 3 years' imprisonment Concurrent with head sentence 5 5 years' imprisonment Partially cumulative (commencing after Mr Alo has served 5 years in relation to count 7) 7 7 years 6 months' imprisonment Head sentence 8 1 year imprisonment Concurrent with head sentence
His Honour reduced the individual sentence he would otherwise have imposed for count 5 from 5 years 6 months' imprisonment to 5 years' imprisonment in the application of the totality principle.
Mr Alo was made eligible for parole.
The appellant appeals on two grounds. Ground 1 alleges in essence that the imposition of the same total effective sentence (namely 10 years' imprisonment) on both the appellant and Mr Alo infringed the parity principle. Ground 2 alleges in essence that the sentence of 8 years 6 months' imprisonment imposed on the appellant for count 9 was manifestly excessive. On 24 May 2021, I referred the application for leave to appeal on those grounds to the hearing of the appeal.
My opinion in relation to the merits of the appeal is different from that of Quinlan CJ and Beech JA.
I would refuse leave to appeal on ground 2 because the ground does not have a reasonable prospect of success. I would grant leave to appeal on ground 1 and allow the appeal on that ground. The sentences imposed and the associated orders made by the primary judge in relation to the appellant should be set aside and the appellant should be resentenced by this court.
The facts and circumstances of the offending
The facts and circumstances of the offending were as follows.
Mr Alo managed a martial arts academy on behalf of another co‑accused, Adam Leslie Hyde.
Between 7 May 2018 and 20 February 2019, an undercover police operative befriended Mr Alo and Mr Hyde by becoming a member of the academy in an approved controlled operation. The undercover operative created a trusted relationship with Mr Alo and Mr Hyde. The undercover operative made a number of purchases of prohibited drugs from Mr Hyde through Mr Alo.
On 16 October 2018, the undercover operative communicated with Mr Alo by using an encrypted messenger service known as Ciphr. Mr Alo told the undercover operative to attend training at the academy that night because he had a 'sample' for him. After training at the academy on the evening of 16 October 2018, Mr Alo supplied the undercover operative with 0.52 g of cocaine having a purity of 36% (count 1). No payment was made in connection with this transaction. On the evening in question Mr Alo spoke to the undercover operative about the supply of 6 ounces of cocaine at a price of $7,000 per ounce.
On 19 October 2018, Mr Alo communicated with the undercover operative by using Ciphr messages. They arranged to meet at the academy in connection with the purchase by the undercover operative of 6 ounces of cocaine. On 19 October 2018, the undercover operative went to the academy. Mr Alo sold the undercover operative 167 g of cocaine having a purity of 33% (count 2). The undercover operative paid Mr Alo the purchase price of $42,000.
On 5 November 2018, the undercover operative went to the academy and spoke to Mr Alo. Mr Alo gave the undercover operative a sample of cannabis and there was a discussion about the supply of cannabis for $4,800 per pound. Mr Alo offered to supply the undercover operative with 2.5 pounds (1,120 g) of cannabis for $4,800 per pound (count 3). Mr Alo told the undercover operative that he was waiting for an 'old mate' (namely Mr Hyde) to inform him as to the quantity of cannabis he could obtain.
On 14 and 15 December 2018, Mr Alo and the undercover operative exchanged messages using Ciphr concerning the sale by Mr Alo to the undercover operative of 2.5 ounces of cocaine. On 14 December 2018, at 3.59 pm, Mr Alo met with the undercover operative, as previously arranged, at a carpark in Wangara. The undercover operative gave Mr Alo $20,000 for the purchase of 2.5 ounces (70 g) of cocaine (count 4). Mr Alo and the undercover operative then left the carpark. At 6.13 pm on 14 December 2018, the undercover operative met with Mr Alo again at the carpark in Wangara. Mr Alo told the undercover operative that there was a problem with the supply of the cocaine because Sifu (that is Mr Hyde) had not been authorised by another supplier of the drug. Mr Alo returned the $20,000 to the undercover operative. On 15 December 2018, the undercover operative and Mr Alo exchanged messages using Ciphr with a view to re‑arranging the transaction for the supply of the cocaine. Mr Alo told the undercover operative that 'Sifu wants to know if you still want it hes gonna go sort it out if u do so its definite and no fucking around'.
On 9 January 2019, the undercover operative went to the academy and spoke with Mr Hyde regarding drugs and the failed purchase of cocaine the subject of count 4. Mr Hyde apologised to the undercover operative about the failed transaction. Mr Hyde told the undercover operative that the next shipment of cocaine was due on the weekend. The undercover operative asked Mr Hyde whether he could supply methylamphetamine.
On 10 January 2019, Mr Alo used Ciphr to communicate with the undercover operative for the purpose of arranging the sale to the undercover operative of 3 ounces of methylamphetamine. On 10 January 2019, at Scarborough, the appellant met with Mr Alo and supplied him with 3 ounces (83.3 g) of methylamphetamine (count 6). Later, at 2.06 pm on 10 January 2019, the undercover operative met with Mr Alo at the academy. The undercover operative gave Mr Alo $15,000 in exchange for the 3 ounces (83.3 g) of methylamphetamine (count 5) which the appellant had supplied to Mr Alo earlier that day. The 83.3 g of methylamphetamine had a purity of about 53%.
On 20 February 2019, the undercover operative used Ciphr to communicate with Mr Alo to purchase 10 ounces (280 g) of methylamphetamine for $5,500 per ounce. Mr Alo told the undercover operative that he was with his 'old mate' (namely Mr Hyde) who would arrange to obtain the methylamphetamine. Mr Alo agreed to sell the 10 ounces (280 g) of methylamphetamine to the undercover operative on 21 February 2019 (count 7).
On 21 February 2019, at about 8.40 am, the appellant and a co‑offender, Blair David Robinson, met at Mr Robinson's home in Alkimos. The appellant had previously arranged the meeting to facilitate the supply of 10 ounces (280 g) of methylamphetamine to Mr Alo.
At about 9.00 am on 21 February 2019, police executed a search warrant at the Alkimos address. The appellant and Mr Robinson were in the living room of the house. Police arrested them. On a coffee table in the living room there was:
(a)a clip seal bag containing a quantity of methylamphetamine;
(b)several white plastic gloves, one of which contained an amount of methylamphetamine;
(c)a small package of methylamphetamine wrapped in purple chux cloth; and
(d)$950 cash.
The weight of the methylamphetamine on the coffee table was 82.9 g (with a purity between 65% and 67%).
Police located on the floor behind a chair in the living room a larger, wrapped package containing 10 clip seal bags of methylamphetamine. The total weight of the methylamphetamine within this package was 277 g (with a purity between 57% and 76%).
Police searched the appellant's motor vehicle that was parked in the driveway of the Alkimos address. A clip seal bag within the driver's side door contained 13.7 g of methylamphetamine with a purity of 65%.
The methylamphetamine found by police at the Alkimos address and in the appellant's motor vehicle comprised 373.6 g (count 9).
On 21 February 2019, police arrested Mr Alo. During a search of Mr Alo's motor vehicle, police located an ounce of cannabis head material hidden within a liquid nails/glue gun. Police then executed a search warrant at Mr Alo's home in Scarborough. During the search of the Scarborough premises, police located an additional 4 ounces of cannabis head material hidden behind some panelling above a doorframe. The total weight of the cannabis seized by police was 140 g (count 8).
The offending by Mr Alo and the appellant occurred as part of a large‑scale drug distribution syndicate operated by the Rebels Outlaw Motorcycle Gang (the Rebels). The syndicate was controlled by Mr Hyde. Mr Hyde and the appellant were members of the Rebels and sergeants at arms. Mr Alo was not a member of the Rebels. Mr Hyde owned the academy and Mr Alo managed it on his behalf.
Mr Alo and the appellant's personal circumstances and antecedents
Mr Alo's personal circumstances and antecedents were, relevantly, as follows:
(a)Mr Alo was born on 8 June 1979. He was aged 39 at the time of the offending and was 41 when sentenced.
(b)Mr Alo had been married for 20 years. He has three children.
(c)Mr Alo completed year 12 at school and then completed a diploma in advanced business systems (computer programming).
(d)Mr Alo has worked in a variety of occupations including in hospitality and security work and as a professional musician. He operated his own business as a glazier for about 10 years.
(e)Mr Alo is in good physical and mental health.
(f)Mr Alo had used cannabis for about 20 years and methylamphetamine for about two years.
(g)Since his arrest, Mr Alo has been held in custody.
(h)Mr Alo had a prior criminal record including for dishonesty offences. However, he had not been convicted of any offences since 1999 and he had never previously been sentenced to a term of immediate imprisonment.
The appellant's personal circumstances and antecedents are, relevantly, as follows:
(a)The appellant was born on 7 May 1980. He was aged 38 at the time of the offending and was 40 when sentenced.
(b)The appellant had a dysfunctional upbringing. It was marred by his parents' drug use and by domestic violence.
(c)The appellant was married for 15 years. He has two children. The appellant suffered from depression after his marriage disintegrated.
(d)The information before the primary judge included a pre‑sentence report dated 28 January 2021 and a psychological report dated 24 November 2020 from Mr Nigel Cameron, a clinical and forensic psychologist. The reports highlighted the extent to which the appellant's affiliation with the Rebels and the sense of loyalty within the Rebels had provided the appellant with a sense of structure and support having regard to his difficult upbringing. His childhood history appears to have primed and desensitised the appellant to a lifestyle associated with dealing in and abusing illicit drugs.
(e)Since the offending the appellant had ceased all involvement with the Rebels.
(f)The appellant had a prior criminal record. His previous convictions concerned primarily traffic offences and drug possession offences. As a young adult the appellant served a term of immediate imprisonment for an offence of violence.
(g)Since his remand in custody on 21 February 2019, the appellant had undertaken all available programs.
The primary judge's sentencing remarks including his findings of fact
The primary judge recounted in his sentencing remarks the facts and circumstances of the offending by the appellant and Mr Alo.
His Honour made findings of fact, relevantly, as follows:
(a)Mr Alo was selling 'a variety of drugs and [his] offending seemingly [evidenced] an ongoing dealing of significant quantities of drugs using [the premises of the academy] under the cover of [his] reputation to enable the distribution of significant quantities of illicit drugs into the community' (ts 35). The absence of a recent criminal history had enabled Mr Alo to '[fly] below the radar' while he participated in the drug distribution syndicate (ts 36).
(b)During a four‑month period Mr Alo was involved in 'the sale and distribution of significant quantities of harmful drugs into the community as evidenced by [his] dealings with the undercover officer' (ts 35).
(c)There was little doubt that Mr Alo's dealings with the undercover operative were 'perhaps only a sample of the dealings that [Mr Alo was] doing at that time' (ts 35). However, Mr Alo was to be sentenced only in relation to his offending with the undercover operative. Those offences demonstrated that there were 'large sale activities being undertaken by [Mr Alo] and [Mr Hyde] on [the academy] premises involving significant quantities of illicit drugs' (ts 35).
(d)It was clear that Mr Alo was able readily to source large quantities of drugs which he would supply to others 'for significant financial reward' (ts 36). With others, Mr Alo played a significant role in the distribution of drugs in Perth. The offences were committed 'for commercial gain' (ts 38).
(e)The offer the subject of count 4 was genuine. The offer would have been completed if the drug had been made available to Mr Alo (ts 34, 38).
(f)The offer the subject of count 7 was made with the intention that it would be fulfilled. Mr Alo knew that the appellant was in possession of the drug at the time the offer was made. The offer would have been completed but for the intervention of the police (ts 39).
(g)The appellant's offending the subject of count 9 involved a very significant quantity of methylamphetamine. The supply of the drugs the subject of count 9 was prevented by the appellant's arrest.
(h)The appellant was the person from whom Mr Alo sought to source the 280 g of methylamphetamine which Mr Alo had agreed to supply to the undercover operative (count 7).
(i)The appellant was also the person from whom Mr Alo sourced the 83.3 g of methylamphetamine which Mr Alo had agreed to sell to the undercover operative (counts 5 and 6).
(j)The appellant supplied drugs to Mr Alo 'in accordance with the arrangements that were … made within the [Rebels] organisation that [they] both operated in' (ts 41).
(k)The appellant demonstrated a capacity to supply the drugs the subject of counts 6 and 9 to Mr Alo on relatively short notice. That highlighted the level of the appellant's involvement in the drug dealing hierarchy. It appeared that the appellant and Mr Hyde warehoused a large quantity of illicit drugs for sale and distribution.
(l)The appellant committed the offences 'for commercial gain' (ts 46).
The primary judge also found that:
(a)Each of Mr Alo and the appellant was 'equally culpable', in the context of the parity principle, in that both were involved 'at the upper end of the hierarchy in the drug dealing world' (ts 37). Mr Alo and the appellant were 'seemingly at the same level in the hierarchy' and at 'the same high level of dealing' (ts 37). Both Mr Alo and the appellant were 'trusted members in [the Rebels] organisation at the top or near the top … performing different tasks but at similar levels' (ts 37). Both Mr Alo and the appellant were 'major figures in the drug enterprise of the Rebels … and [they] were each seemingly working at the same level' (ts 45).
(b)The nature and level of the appellant's participation within the organisation in which the offending occurred was 'high, near the top of the organisation, if not at the top, with others in [the appellant's] capacity as a sergeant at arms of one of the chapters' (ts 45).
(c)Neither Mr Alo nor the appellant was entitled to any leniency for prior good character (ts 36, 44).
(d)Mr Alo had taken the opportunity, while he had been in custody, to address rehabilitation issues (ts 37).
(e)The appellant had made significant attempts at rehabilitation while he had been in custody (ts 43).
His Honour decided that the head sentence for each of the individual sentences that he would otherwise have imposed on Mr Alo and the appellant should be reduced by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in recognition of their pleas of guilty (ts 36, 44).
The primary judge referred to the relevant sentencing principles and considerations including the parity principle (ts 36 ‑ 37).
After imposing the individual sentences of imprisonment on Mr Alo, his Honour said that, in his view, the total criminality involved in Mr Alo's offending warranted a total effective sentence of 10 years' imprisonment (ts 40). His Honour then made the orders for concurrency and cumulacy to which I have referred at [121] above. His Honour also noted that, in applying the totality principle, he had reduced the individual sentence he would otherwise have imposed for count 5 from 5 years 6 months' imprisonment to 5 years' imprisonment.
After imposing the individual sentences of imprisonment on the appellant, the primary judge said that, in his view, the total effective sentence that the appellant should be required to serve was 10 years' imprisonment (ts 46). His Honour then made the order for partial cumulacy to which I have referred at [118] above.
The organisation of the balance of these reasons
It is convenient to consider ground 2 of the appeal before turning to ground 1.
The appellant's submissions and the State's submissions in the appeal
The appellant's submissions and the State's submissions in the appeal are summarised in the reasons of Quinlan CJ and Beech JA. I will not repeat their Honours' summary except to the extent necessary to explain my reasons.
The merits of ground 2
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[50] the maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[51] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen[52] and R v Kilic.[53]
[50] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[51] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10] (Kiefel CJ, Bell & Keane JJ).
[52] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[53] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[54] The State of Western Australia v Doyle;[55] McAlpine v The State of Western Australia[56] and The State of Western Australia v Paolucci.[57]
[54] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[55] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[56] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
[57] The State of Western Australia v Paolucci [2020] WASCA 188 [53] (Buss P, Mazza & Beech JJA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[58]
[58] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
By the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA), the maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g) of methylamphetamine, with intent to sell or supply, was increased from 25 years' imprisonment or a fine of $100,000 or both, to life imprisonment.
In the present case, the maximum penalty for count 9 was, as I have mentioned, life imprisonment.
I have considered numerous prior cases of offending against s 6(1) of the Misuse of Drugs Act 1981 (WA) involving methylamphetamine which have at least some features comparable to the appellant's offending on count 9 and where the maximum penalty was life imprisonment. I have had particular regard to prior cases where the quantity of methylamphetamine involved in the offending was more than 100 g and less than 1 kg. The prior cases in that category are HSV v The State of Western Australia;[59] Musulin v The State of Western Australia;[60] The State of Western Australia v Delaney;[61] Baker v The State of Western Australia;[62] Nickson v The State of Western Australia[63] and McGrath v The State of Western Australia.[64]
[59] HSV v The State of Western Australia [2020] WASCA 5.
[60] Musulin v The State of Western Australia [2020] WASCA 18.
[61] The State of Western Australia v Delaney [2020] WASCA 93.
[62] Baker v The State of Western Australia [2020] WASCA 117.
[63] Nickson v The State of Western Australia [2021] WASCA 40.
[64] McGrath v The State of Western Australia [2021] WASCA 118.
In HSV, the appellant was convicted, on his pleas of guilty, of five drug dealing offences. He received a total effective sentence of 13 years' imprisonment. On one of the offences (count 4) he was convicted of possessing 977.82 g of methylamphetamine with intent to sell or supply. He was sentenced to 9 years 6 months' imprisonment for that offence. The appellant was aged 30 at the time of the offending and was 31 when sentenced. He had a minor criminal record. The primary judge sentenced the appellant on the basis that he was a first offender. The primary judge applied a discount of 20%, pursuant to s 9AA of the Sentencing Act, to the head sentence she would otherwise have imposed for each offence. The primary judge applied a further discount of 20% (which, in this court's opinion, was generous) for another matter referred to in the confidential annexure to this court's reasons for judgment. The appellant was operating a commercial drug dealing business involving significant quantities of drugs. He was in possession of the 977.82 g of methylamphetamine (count 4) with intent to sell or supply at least most of it to others as part of his regular business. The appellant was dealing with a range of other kinds of prohibited drugs. There was a significant aspect of planning and sophistication in the appellant's steps to conceal the drugs. He was engaged in a commercial operation for profit. Although the appellant acted as agent for another person, he was paid $5,000 per week plus drugs for his own use. His role in the drug dealing enterprise was important. His offending was not fleeting, isolated or out of character. The appellant did not challenge (and this court observed that, in the circumstances, there could be no challenge to) the individual sentence of 9 years 6 months' imprisonment for count 4. The appellant's appeal based on an alleged infringement of the first limb of the totality principle was dismissed.
HSV is distinguishable from the present case. On the one hand, the quantity of methylamphetamine the subject of count 4 (977.82 g) exceeded the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g). On the other hand, the appellant in HSV had the benefit of an additional 20% discount for a matter of mitigation which the appellant in the present case did not have; the appellant in the present case was higher in the criminal hierarchy than the appellant in HSV; and the personal circumstances and antecedents of the appellant in HSV were better than the personal circumstances and antecedents of the appellant in the present case. The appellant in HSV received a sentence of 9 years 6 months' imprisonment for count 4 whereas the appellant in the present case received a sentence of 8 years 6 months' imprisonment for count 9.
In Musulin, the appellant was convicted, on his pleas of guilty, of two offences. On one of the offences (count 1) he was convicted of possessing 178.2 g of methylamphetamine with intent to sell or supply. He was sentenced to 7 years' imprisonment for that offence. The appellant was aged 36 at the time of the offending and when sentenced. The appellant was sentenced on the basis that he was, in effect, warehousing the methylamphetamine. The primary judge found that the appellant was aware that he was storing a considerable quantity of drugs and that the appellant appreciated that he was part of a large‑scale drug distribution network. The appellant's actions permitted those higher up in the chain of distribution to avoid detection. The appellant was a trusted person within the drug distribution network. He engaged in the offending for commercial reasons. His culpability was not reduced by the fact that those reasons were limited to extinguishing a pre‑existing drug debt. The appellant engaged in the offending shortly after commencing parole for earlier drug offences, including possession of methylamphetamine with intent to sell or supply. There were no mitigating factors on which the appellant could rely apart from a discount of 25% for his plea of guilty at the first reasonable opportunity. This court was not persuaded that the sentence of 7 years' imprisonment for count 1 was unreasonable or plainly unjust. The appellant's appeal was dismissed.
Musulin is distinguishable from the present case. On the one hand, the appellant in Musulin received a discount of 25% for his plea of guilty, whereas in the present case the appellant received a discount of 20% for his plea; the quantity of methylamphetamine possessed by the appellant in Musulin (178.2 g) was less than the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g); and the appellant in Musulin was lower in the criminal hierarchy than the appellant in the present case. On the other hand, the appellant in Musulin offended while he was on parole for earlier drug offences, including possession of methylamphetamine with intent to sell or supply.
In Delaney, the respondent was convicted, on his plea of guilty, of one count of possessing 111.51 g of methylamphetamine with intent to sell or supply. He was sentenced to 3 years 2 months' immediate imprisonment. This court allowed the State's appeal on the ground that the sentence was manifestly inadequate. The respondent was resentenced to 4 years 9 months' immediate imprisonment. The respondent was aged 34 when sentenced. He was conducting a drug dealing business for profit. The offending was not fleeting or unplanned, but involved steps to secrete the drug and establish surveillance of the premises from which the business was conducted. This court characterised the offence as a relatively serious example of its type. However, there were mitigating factors. In particular, the respondent pleaded guilty at the earliest reasonable opportunity. A discount of 25% was given for the plea. Other mitigation included the respondent's genuine remorse, acceptance of responsibility and plans for rehabilitation. The respondent had a deprived upbringing. His father was engaged in drug dealing and, when the respondent was a teenager, his father was unlawfully killed. Since his sentencing by the primary judge, the respondent had made progress towards his rehabilitation.
Delaney is distinguishable from the present case. The quantity of methylamphetamine possessed by the respondent in Delaney (111.51 g) was less than the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g). The respondent in Delaney received a 25% discount for his plea of guilty, whereas the appellant in the present case received a 20% discount for his plea. The respondent in Delaney was lower in the criminal hierarchy than the appellant in the present case. The prior criminal record of the respondent in Delaney was worse than the prior criminal record of the appellant in the present case, but overall there was little relevant difference between their personal circumstances and antecedents.
In Baker, the appellant was convicted, on his pleas of guilty, of eight drug dealing offences. Count 8 involved an offer to sell 448 g of methylamphetamine. He was sentenced to 6 years 6 months' imprisonment on that count. This court allowed the appellant's appeal against sentence. On count 8, this court resentenced the appellant to 6 years' imprisonment. The appellant was resentenced on count 8 on the basis that, when he made the offer the subject of count 8, the appellant believed that he had the capacity to fulfil the offer. However, this court found that the appellant had not established, on the balance of probabilities, that he did not have the actual capacity at any material time to sell or supply the 448 g of the drug the subject of the offer in count 8. This court was of the view that there was at least a significant prospect that the appellant could have acquired the 448 g and supplied it to the offeree. The appellant was carrying on a business of drug dealing for profit. He was aged 31 or 32 at the time of the offending and was 34 when sentenced. He had a substantial prior criminal record, including a previous conviction for possession of MDMA with intent to sell or supply. There were some mitigating factors. The principal mitigation was the appellant's plea of guilty for which he received a discount of 10%. The appellant had worked constructively in the past in the community and had made efforts towards his education and personal development. The appellant had been held and was likely to be held in special conditions while in custody that were more onerous than the conditions applicable to the general prison population.
Baker is distinguishable from the present case. On the one hand, the quantity of methylamphetamine possessed by the appellant in Baker (448 g) was more than the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g); the appellant in Baker received a discount of 10% for his plea of guilty, whereas in the present case the appellant received a discount of 20% for his plea; and the prior criminal record of the appellant in Baker was worse than the prior criminal record of the appellant in the present case. On the other hand, the appellant in the present case was higher in the criminal hierarchy than the appellant in Baker; the appellant in the present case had actual possession of the 373 6 g of methylamphetamine, whereas there was some doubt as to whether the appellant in Baker could have acquired the 448 g of the drug the subject of the offer in count 8; and the appellant in the present case, unlike the appellant in Baker, would be held in the conditions applicable to the general prison population. Apart from the worse prior criminal record of the appellant in Baker, there was little relevant difference between their personal circumstances and antecedents.
In Nickson, the appellant was convicted, on his pleas of guilty, of a number of drug‑related offences, including one count of possession of 505.59 g of methylamphetamine with intent to sell or supply. The primary judge sentenced the appellant to 7 years 6 months' imprisonment on that count. At the time of sentencing the appellant was aged 58. He had an extensive prior criminal record, including previous convictions for drug dealing. The offence was committed in the context of the appellant's conduct of an ongoing drug dealing business for commercial gain. He was within the mid to high‑level user/dealer range. The appellant committed the offence while he was on bail for another drug dealing charge. The principal mitigating factor was a 20% discount for the plea of guilty. Other mitigating factors comprised the appellant's participation in The Whitehaven Clinic addiction recovery process programme and steps the appellant had taken while in prison on remand to endeavour to rehabilitate himself. The primary judge also noted the demonstration of some remorse. The sole ground of the appellant's appeal was that his total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle. This court refused leave to appeal and dismissed the appeal.
Nickson is distinguishable from the present case. On the one hand, the quantity of methylamphetamine possessed by the appellant in Nickson (505.59 g) was more than the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g); the appellant in Nickson had a worse prior criminal record than the appellant in the present case; and the offending by the appellant in Nickson was aggravated by his having committed the offence while he was on bail for another drug dealing charge, a factor that did not apply to the appellant in the present case. On the other hand, the appellant in the present case was higher in the criminal hierarchy than the appellant in Nickson. Apart from the appellant in Nickson having a worse prior criminal record, there was little relevant difference between their personal circumstances and antecedents.
In McGrath, the appellant was convicted, on his plea of guilty, of possessing 985 g of methylamphetamine with intent to sell or supply. This court allowed the appellant's appeal on the ground that the sentence imposed by the primary judge was manifestly excessive. The appellant was resentenced to 5 years 9 months' imprisonment. The appellant was aged 27 at the time of the offending. He had two previous convictions for possession of methylamphetamine for which fines were imposed. The appellant committed the offence in question by agreeing to a friend's request to assist in transporting the drug in exchange for an amount of methylamphetamine for his personal use. This court noted that the appellant's offending was properly characterised as serious because he willingly involved himself in assisting the transportation of a substantial quantity of methylamphetamine, almost 1 kg. However, this court held that, having regard to the factual basis on which the appellant was sentenced by the primary judge and putting to one side the quantity of drugs involved, the extent of the appellant's involvement and what he actually did put his criminality towards 'the lowest end of the scale of seriousness of offences of this kind' [58]. This court said that the appellant's offending was fleeting and opportunistic. He had no contact with those who were instructing his friend to transport the drugs. In return for an unspecified quantity of drugs for his personal use, the appellant agreed to be a passenger in a car travelling between two locations in the Perth metropolitan area, in which the driver had placed the drugs in the footwell near the appellant's feet. There was nothing to suggest that the appellant had any other role in the drug dealing or had met or communicated with anyone involved in the drug dealing enterprise, other than the driver. The principal mitigating factor was the appellant's plea of guilty for which he received a 25% discount. Other mitigating factors comprised the appellant's remorse and the steps he had taken to towards rehabilitation since committing the offence.
McGrath is distinguishable from the present case. On the one hand, the quantity of methylamphetamine possessed by the appellant in McGrath (985 g) was less than the quantity of methylamphetamine in the present case that was the subject of count 9 (373.6 g). On the other hand, the objective facts and circumstances of the appellant's offending in the present case were more serious than the objective facts and circumstances of the offending by the appellant in McGrath; the appellant in the present case was higher in the criminal hierarchy than the appellant in McGrath; the appellant in the present case received a 20% discount for his plea of guilty whereas the appellant in McGrath received a 25% discount for his plea; and the personal circumstances and antecedents of the appellant in the present case were worse than the personal circumstances and antecedents of the appellant in McGrath.
A significant factor in evaluating the nature and extent of the criminality of the appellant in the present case, compared to the criminality of offenders in reasonably comparable previous decisions of this court, is the present appellant's status as a trusted member of the drug dealing enterprise who was at or near the top of the hierarchy. I am satisfied that the sentence of 8 years 6 months' imprisonment imposed on the appellant in the present case for count 9 is broadly consistent with the sentencing pattern for the offences of this kind revealed by previous decisions of this court. It is not reasonably arguable that the sentence of 8 years 6 months' imprisonment is inconsistent with that sentencing pattern.
The objective facts and circumstances of the appellant's offending on count 9 were egregious. That is apparent from the following:
(a)The quantity and purity of the methylamphetamine.
(b)The primary judge's unchallenged finding that the appellant supplied drugs to Mr Alo in accordance with arrangements that had been made within the Rebels organisation in which both the appellant and Mr Alo operated.
(c)His Honour's unchallenged finding that the appellant had the capacity to supply the drugs the subject of counts 6 and 9 to Mr Alo on relatively short notice.
(d)His Honour's unchallenged finding that the appellant and Mr Hyde warehoused a large quantity of illicit drugs for sale and distribution.
(e)His Honour's unchallenged finding that the appellant committed count 9 for commercial gain.
(f)His Honour's unchallenged finding that the appellant was involved at the upper end of the drug dealing hierarchy.
(g)His Honour's unchallenged finding that the appellant was a trusted member of the Rebels organisation at the top or near the top of the organisation.
(h)His Honour's unchallenged finding that the appellant was a major figure in the drug enterprise of the Rebels.
(i)His Honour's unchallenged finding that the appellant's participation within the Rebels organisation was near the top, if not at the top, of the organisation with others in the appellant's capacity as a sergeant at arms of one of the Rebels' chapters.
I accept that the egregious character of the appellant's offending on count 9 was mitigated, for sentencing purposes, by his plea of guilty and, to a significantly lesser extent, by the other matters of mitigation referred to by his Honour.
In my opinion, the sentence of 8 years 6 months' imprisonment for count 9 was commensurate with the seriousness of the appellant's offending. I consider, after having regard to all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was not unreasonable or plainly unjust. That conclusion is based upon my assessment of the sentence from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offence; the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence as sentencing factors; and all mitigating factors. It is not reasonably arguable that the sentence for count 9 is manifestly excessive.
Ground 2 does not have a reasonable prospect of success.
The merits of ground 1
Recently, this court examined the parity principle in Giangiulio v The State of Western Australia.[65]
[65] Giangiulio v The State of Western Australia [2022] WASCA 77 [58] ‑ [71] (Quinlan CJ, Buss P & Beech JA).
The following propositions, drawn from Giangiulio, are well established by the case law.
The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters.
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. The applicable test is objective not subjective.
The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed.
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 with or found guilty of committing precisely the same offence or offences.
An appellate court, in deciding whether a disparity or a lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or of giving the appearance in the mind of an objective observer that justice has not been done, must take into account:
(a)all components of the sentence, including the head sentence, the non‑parole period and the total effective period that both offenders will serve; and
(b)all of the facts and circumstances applicable to both offenders, including the objective seriousness of the offences, for the purpose of identifying whether the disparity or the lack of disparity was marked and unjustified.
An infringement of the parity principle may occur as a result of a marked disparity or a marked lack of disparity in the individual sentences imposed on co‑offenders for a single common offence or from the total effective sentences imposed in relation to multiple common offences, even though either or both of the co‑offenders was also sentenced for other offences.
The parity principle is concerned with substance rather than form, and 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.
A sentencing judge's application of the parity principle involves a qualitative and discretionary judgment to which the principles in House v The King[66] apply.
[66] House v The King [1936] HCA 40; (1936) 55 CLR 499.
In the present case, none of the primary judge's findings of fact is challenged.
A significant finding by his Honour was that each of Mr Alo and the appellant were 'equally culpable', in the context of the parity principle, in that both were involved 'at the upper end of the hierarchy in the drug dealing world' (ts 37). His Honour elaborated in relation to this issue that:
(a)Mr Alo and the appellant were 'seemingly at the same level in the hierarchy' and at 'the same high level of dealing' (ts 37).
(b)Both Mr Alo and the appellant were 'trusted members in [the Rebels] organisation at the top or near the top … performing different tasks but at similar levels' (ts 37).
(c)Both Mr Alo and the appellant were 'major figures in the drug enterprise of the Rebels … and [they] were each seemingly working at the same level' (ts 45).
The primary judge made those findings notwithstanding that the appellant was a sergeant at arms of one of the chapters of the Rebels Motorcycle Gang and Mr Alo was not a member of the gang. It was the absence of a recent criminal history (and, no doubt, not being a member of the Rebels Motorcycle Gang) that enabled Mr Alo to '[fly] below the radar' while he participated in the drug distribution syndicate (ts 36).
The related offences comprising count 5 (in the case of Mr Alo) and count 6 (in the case of the appellant) each involved the sale or supply of 83.3 g of methylamphetamine. For those offences, Mr Alo received 5 years' imprisonment (reduced from 5 years 6 months' imprisonment in the application of the totality principle) and the appellant received 5 years 6 months' imprisonment. No complaint is made about the length of those individual sentences.
The related offences comprising count 7 (in the case of Mr Alo) and count 9 (in the case of the appellant) involved 280 g of methylamphetamine (count 7) in the case of Mr Alo and 373.6 g of methylamphetamine (count 9) in the case of the appellant. Mr Alo received 7 years 6 months' imprisonment for count 7 and the appellant received 8 years 6 months' imprisonment for count 9. No complaint is made about those individual sentences. The difference of one year between the sentence Mr Alo received for count 7 and the sentence the appellant received for count 9 is explicable by the difference in the quantity of methylamphetamine (280 g in the case of count 7 and 373.6 g in the case of count 9).
A significant feature of Mr Alo's overall offending compared to the appellant's overall offending is that, in addition to the related offences, Mr Alo committed a series of five additional offences (being counts 1, 2, 3, 4 and 8). The additional offences involved multiple drugs and included significant quantities of cannabis and cocaine. The individual sentences imposed on Mr Alo for the additional offences were 6 months' imprisonment for count 1; 4 years 6 months' imprisonment for count 2 (the sale of 167 g of cocaine); 2 years' imprisonment for count 3 (an offer to supply 1.12 kg of cannabis); 3 years' imprisonment for count 4 (an offer to supply 70 g of cocaine); and 1 year imprisonment for count 8. His Honour ordered that all of the individual sentences for counts 1, 2, 3, 4 and 8 be served concurrently with each other and concurrently with the individual sentence for count 7. In other words, Mr Alo received, in effect, no additional punishment for committing counts 1, 2, 3, 4 and 8. The individual sentences for those counts were neither manifestly excessive nor manifestly inadequate.
Mr Alo's overall offending occurred over a period of about 4 months (between 16 October 2018 and 21 February 2019) whereas the appellant's overall offending occurred over a period of about 6 weeks (between 10 January 2019 and 21 February 2019).
The appellant's upbringing was significantly more dysfunctional and deprived than Mr Alo's. Also, the appellant appears to have made better progress towards rehabilitation than Mr Alo since they were remanded in custody upon their arrest. On the other hand, Mr Alo's prior criminal record was less serious than the appellant's, but neither of them had any previous convictions for drug dealing. Otherwise, there was little difference between their personal circumstances and antecedents. In any event, it is well established that matters personal to an offender who commits serious drug dealing offences ordinarily carry only modest weight.
I am satisfied, having regard to the similarities and differences between the facts and circumstances of Mr Alo's overall offending and the sentencing factors applicable to him, on the one hand, and the facts and circumstances of the appellant's overall offending and the sentencing factors applicable to him, on the other, that the absence of any disparity between the total effective sentence received by Mr Alo and the total effective sentence received by the appellant was unreasonable or plainly unjust.
The facts and circumstances of Mr Alo's offending on counts 1, 2, 3, 4 and 8 required that he be given a higher total effective sentence than the appellant, having regard to the primary judge's unchallenged findings of fact, and notwithstanding the difference in the quantity of methylamphetamine the subject of count 7 compared to count 9.
The absence of any disparity between the total effective sentences imposed on Mr Alo and the appellant was unjustified. The sentencing outcome in relation to the appellant, compared to the sentencing outcome in relation to Mr Alo, gives rise to a legitimate 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 Alo.
Ground 1 has been made out.
The outcome of the appeal and the resentencing of the appellant
I would allow the appeal and set aside the sentences imposed by the primary judge on the appellant.
This court has the materials necessary to resentence the appellant.
Like his Honour, I would allow a discount of 20%, pursuant to s 9AA of the Sentencing Act, on the head sentence I would otherwise have imposed for each offence, on account of the plea of guilty. I have taken into account (and allowed discounts for) the other mitigating factors referred to by his Honour. I have also taken into account, for the purposes of ensuring parity or equal justice between the appellant, on the one hand, and Mr Alo, on the other, the facts and circumstances of the offending by Mr Alo, his personal circumstances and antecedents, all other sentencing factors relevant to Mr Alo and the sentences he received.
In my opinion, the total effective sentences imposed by the primary judge on Mr Alo and the appellant were lenient. However, despite that leniency, the sentences imposed on Mr Alo are the benchmark against which issues concerning parity or equal justice in relation to the appellant must be assessed and determined by this court.
I would impose on the appellant the same individual sentences that were imposed by his Honour; that is, 5 years 6 months' imprisonment for count 6 and 8 years 6 months' imprisonment for count 9. The sentence for count 9 (8 years 6 months) should be backdated to 21 February 2019, being the date on which the appellant was taken into custody for the offending. The sentence for count 6 (5 years 6 months) should commence after the appellant has served 3 years 6 months of the sentence for count 9. The new total effective sentence for the appellant is therefore 9 years' imprisonment.
The appellant should remain eligible for parole. He will be eligible to be considered for release on parole when he has served 7 years in custody calculated from 21 February 2019.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
8 AUGUST 2022
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Criminal Liability
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Mens Rea & Intention
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Judicial Review
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Natural Justice & Procedural Fairness
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Sentencing
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Appeal
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Parity Principle
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