Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 33

Sentence of 12 years' imprisonment reduced to 9 years' imprisonment with eligibility for parole

Abela v The Queen [2002] WASCA 279

Aconi v The Queen [2001] WASCA 211

Cabassi v The Queen [2000] WASCA 305

Cameron v The Queen [2000] WASCA 286

Fazari v The Queen, unreported; CCA SCt of WA; Library No 960651A; 14 November 1996

Kezkiropoulos v The Queen [2002] WASCA 352

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

Quach v The Queen [1999] WASCA 210

R v Atholwood [2000] WASCA 76; (2000) 110 A Crim R 417

R v Brindley (1993) 66 A Crim R 204

R v Krakouer [1999] WASCA 147; (1999) 107 A Crim R 408

R v Nevermann (1989) 43 A Crim R 347

R v Ritter [2000] VSCA 135

R v Tien & Ors [1998] VSCA 6

R v Votano [2000] WASCA 144

R v Wright [2003] WASCA 56

1 ANDERSON J: I have read the judgment of Steytler J and agree entirely with it. There is nothing I wish to add.

2 STEYTLER J: The applicant, in this application for leave to appeal against sentence, was convicted on one count of supplying methylamphetamine to another (count 1 on the indictment) and three counts of having in his possession methylamphetamine with intent to sell or supply it to another (counts 2, 3 and 4 on the indictment). He pleaded guilty to all four counts.

3 The offence the subject of count 1 occurred on about 15 March 2001. The sentencing Judge was told that, some time early in the year 2001, the applicant received at least 1 kilogram of methylamphetamine from a drug syndicate based in Sydney. The drug was contained in two separate packages. The total amount was said to have been purchased on credit, with the applicant having made irregular payments into a bank account as he sold part of the drugs. However, the sentencing Judge was told by the prosecutor that the applicant considered that the shipment of drugs was of poor quality and consequently made arrangements to return one of the two packages to his suppliers. With that in mind, on 15 March 2001, he met with an associate, Mr Mark Argiropoulos, and persuaded him to convey the package to Sydney. He handed to Argiropoulos a quantity of 502 grams of methylamphetamine still in its original packaging, but placed inside an old sock. On the following day, Argiropoulos departed from Perth on board a Qantas flight to Sydney. On arrival in Sydney he was searched and the methylamphetamine was found. The methylamphetamine in his possession was found to have had a purity of 34 per cent.

4 Then, on 6 April 2001, police officers executed a search warrant at the applicant's home and at an adjacent shop which he was in the process of fitting out to be a hairdressing salon. The police located a Chivas Regal whisky box in the kitchen of his home containing a calico bag holding three plastic bags, each of which contained methylamphetamine. The first plastic bag contained 24.8 grams of the drug with a 52 per cent purity, the second contained 54.5 grams of .1 per cent purity and the third contained 45.4 grams of the drug, consisting of traces of methylamphetamine only. These packages contained the drugs the subject of count 2 on the indictment.

5 A third quantity of methylamphetamine (the subject of count 3) was found in two plastic clipseal bags located under mattresses in the lounge area of the applicant's home. One of these contained 6.84 grams of the

drug with a 30 per cent purity and the other contained 13.9 grams of the drug with a 66 per cent purity. Electronic scales, unused clipseal bags and documentation were also seized.

6 The methylamphetamine the subject of count 4 was located in a toolbox inside a storage room in the shop premises. The drugs were found in seven plastic clipseal bags and three aluminium foil packages kept in a coloured plastic shopping bag located inside the toolbox. The drugs, which were in tablet form, weighed a total of 158.42 grams, ranging in purity from 2 to 4 per cent.

7 The sentencing Judge was told that the applicant was "more or less bankrupt" and that he had committed these offences because he needed money. Notwithstanding that he had been a hairdresser with good prospects, he had, as his counsel put it, been foolish in his attempts to gain more money at a time when his wife, who had been assisting him in the hairdressing business, had fallen victim to cancer and became unable to work in the business with him. He had no previous convictions of any real significance and was able to produce a number of favourable character references. He was said to have been a model prisoner while in custody pending his sentencing for these offences. He was, at the time of sentencing, 32 years old.

8 The sentencing Judge, after reciting the pertinent facts and circumstances of the offence, and after referring to the generally favourable antecedents of the applicant, stressed the need for sentences of personal and general deterrence. He also accepted that the applicant should get credit for his pleas of guilty. He then went on to say that, so far as count 1 was concerned, a sentence of 14 years' imprisonment was appropriate, but that he would allow a discount of 2 years for the plea of guilty. He imposed terms of imprisonment of 4 years in respect of each of counts 2 and 3 and one of 5 years in respect of count 4. He said that, because the offences the subject of counts 2, 3 and 4 occurred at the same time, he would make those sentences concurrent with each other and he would also make them concurrent with that imposed in respect of count 1. He directed that the applicant should be eligible for parole and that his sentence should be taken to have commenced on 4 May 2001, from which date he had been in custody.

9 There are five grounds of appeal. The first is that the sentence imposed on count 1 is manifestly excessive. The second is that the sentencing Judge erred in taking into account the fact that the applicant had had at least 1 kilogram of methylamphetamine in his possession in early 2001, and had sold part of that quantity, when he had neither been charged nor convicted in respect of that amount. The third was that the sentencing Judge failed to have regard to the sentence imposed upon Argiropoulos, who had been sentenced, on 20 July 2001, to a period of 3 years' imprisonment, the sentencing Judge having been told, in error, that Argiropoulos had yet to be sentenced. The fourth is that the sentencing Judge failed to give any or sufficient discount for matters personal to the applicant, in particular his prospects of rehabilitation and his remorse. The fifth is that the sentencing Judge gave to the applicant an insufficient discount for his plea of guilty.

10 I propose, first, to deal with ground 2 and then to consider, together, grounds 1, 3, 4 and 5.

11 As to ground 2, I have earlier mentioned that the sentencing Judge was told, by the prosecutor, that early in the year 2001 the applicant received at least 1 kilogram of methylamphetamine from a drug syndicate based in Sydney and that the applicant purchased the drug on credit, making irregular payments into a bank account when he sold some of the drugs. I have also mentioned that his Honour was then told that the applicant considered that this particular shipment of drug was of poor quality and consequently made arrangements to return one package of methylamphetamine to his suppliers. None of this evidence was objected to by the then counsel for the applicant. Indeed, the applicant's counsel confirmed to the sentencing Judge that the facts were as outlined by the prosecution.

12 The sentencing Judge, in the course of his sentencing remarks, referred to the fact of the receipt, by the applicant, of 1 kilogram of methylamphetamine in early 2001. He also referred to the fact that the supply, the subject of count 1 on the indictment, was a consequence of the decision to return one of the two packages to the syndicate in Sydney. In my opinion, none of this discloses any error on his Honour's part. The evidence to which I have referred explained the circumstances of the supply for which the applicant was to be sentenced and placed that single offence in a context in which the applicant's role might be understood. No doubt it was for this reason that no objection was made by the then counsel for the applicant, who is very experienced, to the placing of this information before the sentencing Judge. In my opinion, the sentencing Judge treated that information as being relevant only for that limited purpose and it is quite plain from his Honour's sentencing remarks that the applicant was sentenced only for those offences of which he had been convicted. There is consequently no substance to this ground.

13 As to grounds 1, 3, 4 and 5, methylamphetamine has, on many occasions, been recognised by this Court to be in the higher range of seriousness in the scale of drug trafficking offences: R v Bellissimo (1996) 84 A Crim R 465 at 471 and R v Darwell (1997) 94 A Crim R 35 at 40. It follows from such cases as these that methylamphetamine, together with heroin and cocaine, is in the most serious category of drugs, although it is lower in the range of that category than either of heroin or cocaine (cf, in this respect R v Nai Poon [2003] NSWCCA 42).

14 Because of the seriousness with which trafficking in methylamphetamine is viewed by the courts in this State, a generally high starting point has been adopted, at least in more recent years, for cases involving large quantities of the drug.

15 In R v Reppucci (1994) 74 A Crim R 353 a starting point of 10 years' imprisonment was adopted in a case in which the offender sold a kilogram of amphetamine of 8 per cent purity to an undercover police officer. However, as was pointed out by Pidgeon J in Miller v The Queen [1999] WASCA 66 at [28], this was prior to the court re-examining the place of amphetamine on the scale of seriousness of prohibited drugs. Reppucci had proceeded upon the basis that amphetamine was in the "middle range" in the hierarchy of seriousness.

16 In Miller, the offender had had in his possession 454 grams of methylamphetamine of a purity of 6 per cent and had attempted to sell it to an undercover police officer for an amount of $56,000. The sentencing Judge considered that an appropriate starting point would be one of 9 years and that starting point was considered, on the subsequent appeal, to be within range.

17 In Kirby v The Queen [2003] WASCA 164, the offender was convicted, inter alia, of having in his possession a quantity of 3.168 kilograms of amphetamine with a purity ranging between 9.1 per cent and 10.6 per cent with intent to sell or supply it to another. The sentencing Judge adopted a starting point of 15 years' imprisonment. The court, on the appeal, made no criticism of that starting point.

18 While the weight and purity of a drug are not, of course, determinative of the sentence which should be imposed and should not be given a predominance which results in other relevant matters being overlooked or downplayed in importance, they are significant (see R v Hafner [2002] WASCA 211 at [23]; Dodd v The Queen [2002] WASCA 55 at [5] and [55]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [70] and Marker v The Queen [2002] WASCA 282 at [29]). In this case there was a very substantial quantity of the drug with a reasonably high level of purity and that, and the important role which the applicant had in the distribution of these drugs, no doubt led to the adoption of what was, undoubtedly, a starting point at the higher end of the range for cases of this kind. Looked at on its own, I would not have been disposed to criticise it. However, there are other factors which must be taken into account in considering that starting point and, more importantly, the ultimate sentence of 12 years' imprisonment arrived at by the sentencing Judge.

19 The first of these is the quite startling (at least at first sight) disparity between the starting point adopted in this case and that adopted in the District Court of New South Wales in respect of Argiropoulos. There Judge Woods, who sentenced Argiropoulos, said that, in the absence of any other considerations, an appropriate penalty for supplying "half a pound of methylamphetamine" would be in the vicinity of 5 years' imprisonment. However, there are distinctions between that case and this.

20 Judge Woods was dealing with an offence under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW), breach of which carries a maximum penalty, under s 33 of that Act, of a fine of $385,000 or imprisonment for 20 years or both. Under s 6(1) and s 7(1) of the Misuse of Drugs Act 1981 (WA) the applicant, in this case, was subject to a maximum penalty of a fine of $100,000 or imprisonment for a term of 25 years, or both. More importantly, Argiropoulos was, on the evidence, no more than a "one off" courier who was himself a drug user who had agreed to carry the drug in return for the forgiveness of a debt of around $1500 owed by him for drugs supplied to him. Argiropoulos, who was at the time of sentencing 26 years old, was said to have had "a good reputation despite the fact that he does have a prior conviction for drugs". Argiropoulos had pleaded guilty early and had agreed to assist the authorities, inter alia, by giving evidence against the applicant. However, these factors were taken into account by way of a reduction of the sentence to one of 3 years' imprisonment and by way of the setting of a non-parole period of 15 months.

21 It is quite plain that, even given the significant differences, inter alia, in the roles played by the two men, and also the differences in the two sentencing regimes, there was a very substantial disparity as between the sentences imposed on each of them. I have earlier mentioned that, through an error on the part of the prosecutor, the sentencing Judge was never told of the sentence imposed on Argiropoulos or of the basis upon which it had been calculated and consequently did not take it into account.

22 The principle of parity in sentencing was defined in R v Tiddy [1969] SASR 575 at 577, as follows:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

23 This definition was referred to in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 309, by McHugh J. His Honour went on to say (ibid):

"If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ, with whom Wilson J agreed (.. at 616), said (.. at 610) that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.' Mason J stated (.. at 613) that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J (.. at 624) with whom Wilson J also agreed (.. at 616), was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice.'"

24 The application of the parity principle raises additional difficulties when the lower of the two sentences is clearly inadequate. In my respectful opinion, that difficulty arises in this case. That is because it is, I think, fair to say that Argiropoulos was fortunate in the starting point adopted by the sentencing Judge in his case.

25 Some of the more recent cases in New South Wales have been reviewed by the Court of Criminal Appeal in that State in R v Nai Poon, above. That case involved the importation into Australia, in August 1999, of a trafficable quantity of the drug commonly known as "MDMA" or "ecstasy". The quantity involved consisted of about 5800 tablets with gross and net weights of 1458.6 and 339.2 grams respectively. The sentence imposed was one of 7 years' imprisonment with a non-parole period of 4 years. The applicant, who was from Kuala Lumpur, had been apprehended at Sydney Airport and found with the drugs in his possession. The sentencing Judge had not been prepared to find that he was a principal in the importation, although, in his interview with the police, the applicant had said that he had intended himself selling the tablets. He pleaded guilty at an early stage. His appeal against sentence was dismissed.

26 Hulme J (with whom Ipp JA and Bell J were in agreement) referred to a number of other decisions. Amongst these were R v Benais [1999] NSWCCA 236, R v Bushell, unreported; NSWCCA; 7 August 1998, R v Spillane [1999] NSWCCA 280 and R v Schmakowski [2001] NSWCCA 395. While these cases all involved the drug ecstasy, they are nevertheless of assistance.

27 Benais, who was regarded as a courier, had imported only 61 grams of ecstasy. He pleaded guilty and was sentenced to imprisonment for 6 years with a non-parole period of 3 years. Bushell, who had pleaded not guilty, imported some 332 grams of the drug and was given a sentence of 7 years' imprisonment with a non-parole period of 4 years. However, that sentence reflected a discount of 6 months for assistance and an unspecified discount because of health problems. Spillane, an Irish national, had imported some 5686 tablets containing ecstasy with a gross weight of 1706 grams and an ecstasy content of 447.3 grams. He was sentenced to a period of imprisonment of 6 years with a non-parole period of 3 years and 6 months, after some discount for assistance. However, he was a chronic alcoholic and was affected by alcohol at the time of his arrest. Schmakowski was apprehended at the airport in possession of 410 grams of pure ecstasy. He assisted the authorities in attempting to effect a controlled delivery of the drug and pleaded guilty. He was sentenced to a period of 8 years' imprisonment with a non-parole period of 4 years and 9 months. On the appeal, the Court described the sentence as "heavy", but not as falling outside the legitimate exercise of a sentencing discretion.

28 In R v Schofield [2003] NSWCCA 3 Hulme J conducted an extensive review of the authorities and prepared a schedule reflecting the sentences imposed in a large number of the cases. While most of them dealt, once again, with the importation of ecstasy (that being the drug with which his Honour was concerned in that case), they nonetheless provide useful guidance as regards the level of sentences generally imposed. They do not, in my opinion, support the proposition that a starting point of 5 years was appropriate, in the absence of any other considerations, for the supply of half a kilogram of methylamphetamine with a purity of 34 per cent.

29 So, by way of example, in R v Capper [2000] NSWCCA 63, the Court refused the applicant leave to appeal against a sentence of 5 years' imprisonment, including a non-parole period of 3 years, imposed on an offender who pleaded guilty to being knowingly concerned in the importation of 167.1 grams of pure ecstasy. A similar sentence was imposed in the case of R v Dinic (1997) 149 ALR 488, in which the applicant had pleaded guilty to possession of 159.4 grams of pure weight of ecstasy and was sentenced to imprisonment for 5 years with a non-parole period of 3 years. He was regarded as "in the nature of a middle-man" and had provided some assistance to the authorities, albeit it proved to be of little value. Newman J, with the concurrence of the other members of the Court, said that it was "difficult to see how his Honour could have passed a more lenient sentence".

30 In R v Dizel, unreported; NSWCCA; 23 August 1996 the applicant had pleaded guilty to importing 40.9 grams of ecstasy and had been sentenced to a period of 10 years' imprisonment with a non-parole period of 71/2 years. He was a courier who had been arrested at the airport. He had pleaded guilty, although his plea was a recognition of the inevitable. He had been a prior offender as regards the importation of serious drugs.

31 In R v Durant [2002] NSWCCA 295 the Court of Criminal Appeal dismissed an appeal against sentences of 7 years' imprisonment, including a non-parole period of 4 years and 3 months, and 18 months imprisonment, to be served concurrently, imposed on charges of being knowingly concerned in the importation of ecstasy and, in the second case, 10.9 grams of cannabis resin. The ecstasy count had involved a number of tablets containing 166 grams of ecstasy. However, the applicant had been found to have been responsible for the importation and to have been "more than halfway up" the scale of culpability.

32 Importantly, in one of the cases mentioned in the schedule, that of R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355, the Court of Criminal Appeal rejected an argument that, because the bottom of the trafficable range for amphetamines was greater than for ecstasy, sentences for the former should be lower than for the latter drug. Wood CJ at CL said, at [14] and [15], that both had been treated by the Court as "mid-range" drugs and, at [16], that he was quite unpersuaded that it was either appropriate or helpful to attempt any gradation of seriousness between drugs falling within that range. In that case the offender had pleaded guilty to being knowingly concerned in the importation of 80.1 grams of methylamphetamine. He was regarded as "a prime mover if not the prime mover" in the commission of the offence. The Court dismissed an appeal against a sentence of 6 years imprisonment, with a non-parole period of 4 years.

33 Of course, as was said by Hulme J, in Nai Poon, at [48], "the infinite variation of facts and degree which fall for consideration in sentencing and the exercise of the discretionary judgment which is involved make comparison with anything but a large number of cases, and commonly even then, generally unprofitable." However, I hope that what I have said is sufficient to establish that the starting point of 5 years' imprisonment adopted in respect of Argiropoulos was low, as was the finishing point of 3 years' imprisonment, when compared with other similar cases in New South Wales. Certainly, the starting point and finishing point were very much lower than would ordinarily be the case for a like offence in this State.

34 There is no uniformity of opinion, in the cases, as regards the course which should be followed where there is a substantial disparity between the sentences imposed upon co-offenders, but where the lower sentence is clearly inadequate.

35 In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Mason J, after concluding that a Court of Criminal Appeal, confronted with the problem of discrepancy, could substitute for a severe but appropriate sentence a lesser sentence which nevertheless fell within the order of what is appropriate, went on to ask the question whether the Court could go further, by reducing a sentence which, considered apart from disparity was appropriate, to a level where it was inadequate or might be regarded as inadequate. His Honour answered that question, at 613 - 614, by saying that the correct principle is that a Court of Appeal "is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate".

"As regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender. To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying that 'where you have one wrong sentence and one right sentence [the] Court should produce two wrong sentences' - a proposition that cannot be accepted ...".

"It follows that an inappropriately lenient sentence imposed on one co-offender is not itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders."

38 Dawson and Gaudron JJ, in Postiglione, above, at 301 appear to have adopted an approach similar to that taken by Mason J (as his Honour then was) in Lowe. Their Honours there said that, in a case in which there is a marked disparity in the sentences imposed upon co-offenders, sufficient to give rise to a justifiable sense of grievance, "the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options".

39 These, and other, cases were considered by Kennedy J in Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541. His Honour said, at 554:

"In a number of cases, Australian courts have indicated that a sentence may be reduced in the case of a manifest or excessive disparity, even though it may result in the reduction of a sentence to a point where, standing alone, it might be regarded as inadequate: see, eg, Lowe's case, per Mason J (at 613-614); R v Goldberg [1959] VicRp 52; (1959) VR 311 at 312; R v Maslen (1995) 79 A Crim R 199 at 208; R v Hodges (1997) 95 A Crim R 85 at 96.

A narrower view than that taken by Mason J was expressed by Brennan J in Lowe v The Queen (at 617) whilst in Robertson v The Queen (1989) 44 A Crim R 224, this Court, differently constituted, expressed the view that the parity argument must give way when a patently inadequate sentence has been imposed on a co-offender. With respect, it is one thing to decline to lower an otherwise appropriate sentence to the level of a patently inadequate sentence, but it is quite another to decline to make any reduction at all, particularly when the higher sentence is not such as to be at the lowest level of the appropriate range and could, on appeal, fairly be lowered to a level 'which might be regarded as inadequate'. The latter, it would seem, was the approach adopted by Anderson J in Capper v The Queen (1993) 69 A Crim R 64 at 74. He did not express the view that the parity argument must fail when a patently inadequate sentence has been imposed on a co-offender. See also Thorne v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 990154, 29 March 1999), in which the view expressed by Anderson J was adopted. See also Ruane v The Queen (1979) 1 A Crim R 284 at 286 and R v Tisalandis (at 437-440) (cf Street CJ (at 431-432) and Nagle CJ at CL (at 441)). The application of this test would give parity a restricted application.

In my opinion, the better view, having regard to the underlying principle, is that Courts of Criminal Appeal may intervene in the event of there being a manifest disparity in the sentences imposed upon co-offenders, notwithstanding that they regard the sentences imposed upon the applicant as falling within the range of the exercise of a sound discretionary judgment and notwithstanding that they regard the co-offenders' sentences as being inadequate. As indicated by Gibbs CJ and Mason J in Lowe's case (at 610 and 611 respectively), 'marked disparity' is itself a ground for reducing the more severe sentence, provided, of course, that the disparity is such as to give rise to a justifiable sense of grievance: see also R v MacGowan (1986) 42 SASR 580 at 583, per King CJ. But it does not follow from this that the court will reduce the higher sentence so that it equates in all respects to the sentence imposed on the co-offender. The position was explained by Gleeson CJ when sitting in the Court of Criminal Appeal in New South Wales in R v Reardan (1996) 89 A Crim R 180 at 182. He said: '[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co-offender]. Rather, it is a matter to be taken into account in a broad discretionary exercise.'

This is the discretion of which Gibbs CJ also spoke in Lowe's case: see also R v Cox (1991) 55 A Crim R 396 at 401-402, per Thomas J."

40 Pidgeon J, in that case, was of the view that the sentence imposed on the applicant was as lenient as could be justified and that any lesser sentence would be inadequate. He consequently considered that an objective bystander would not see the applicant as having been unjustly treated. Murray J, was of a similar opinion. His Honour drew attention to the provisions of s 689(3) of the Criminal Code (WA) and took the view that the effect of that section was that the court could only quash a term of imprisonment on the basis of the parity principle if it were to form the view that it was open to the court to pass a more lenient sentence or impose a shorter term of imprisonment. His Honour concluded (at 562) that:

"The parity principle does not cease to apply simply because the sentence with which the instant case needs to be compared is adjudged to be outside the range of appropriate sentencing discretion, but in such a case the second sentencing judge and the appellate court required to substitute a sentence which should have been passed by the court at first instance are required to bear in mind that to do justice in the instant case, they are confined to the imposition of a sentence which is proportionate to the gravity of the offence, in the circumstances of its commission and in the light of the circumstances personal to the offender. That is the dictate of the common law now enshrined in this state in the Sentencing Act, s 6(1) which provides that 'a sentence imposed on an offender must be commensurate with the seriousness of the offence' determined as the section goes on to provide. In that case, the proper application of the parity principle will lead the court making the comparison with the earlier sentence to impose a sentence which is as close to the previous sentence as may be achieved without error on its part."

41 (See also R v Ma [2001] WASCA 325; (2001) 125 A Crim R 349 at 366 - 370, per Roberts-Smith J, and R v Wilson [2000] VSCA 202; (2000) 116 A Crim R 90 at 95.)

42 It seems to me that there is in this case so manifest a discrepancy, even allowing for the different maximum penalties as between New South Wales and Western Australia, the different sentencing regimes and the very different circumstances of the two offenders, as to give rise to a justifiable sense of grievance and that the sentence imposed by the sentencing Judge can consequently not be permitted to stand. In considering what should follow from that conclusion, it is, of course, important to consider also the other factors raised on behalf of the appellant which bear upon the question of what should be an appropriate sentence.

43 The first of these is his plea of guilty to each of the counts. These pleas came relatively late. The pleas of guilty to counts 1, 2 and 3 were made only on 2 October 2002 and that in respect of count 4 was made on 1 November 2002, a fresh indictment having been served on the applicant on 20 March 2002. However, that must be seen in a context in which counsel for the applicant had said, as early as 21 March 2002, that the applicant might be pleading guilty to some, at least, of the charges but that more time was needed to consider the matter and to take instructions, more particularly in light of the fact that additional evidence had yet to be served upon the defence. Similar indications were given at the mentions on 27 May 2002 and 28 June 2002. The delay in registering a plea of guilty for count 4 seems to have arisen as a result of negotiations which had taken place between counsel for the appellant and the office of the Director of Public Prosecutions.

44 Next, it seems plain that the applicant had accepted responsibility for his offending and had, by the time of sentencing, engaged in a course of conduct, within the prison system, which was designed to promote his rehabilitation. A letter dated 14 August 2002 from a prison support officer within Hakea Prison was placed before the sentencing Judge. In it, the support officer said that the applicant had become a core member of the peer support group within the prison, the aim of which was to decrease self-harm and suicide by listening to and supporting other prisoners and by referring individuals, where warranted, to the appropriate services or staff. The applicant's contribution in assisting new prisoners was described as "selfless" and he was said to be highly respected by fellow prisoners and prison officers alike. The letter said that it was clear that the applicant had "taken a lot of time to reflect on the circumstances that ... [had] resulted in him spending time in jail" and that, having "acknowledged his mistakes in the past, he is now completely focused on being reunited with his family and friends and making a worthwhile and positive contribution to society".

45 The third factor relied upon by counsel for the applicant is that the applicant has shown what appears to be genuine remorse for his conduct.

46 The fourth, and last, factor is that the applicant's antecedents are favourable. He was able to produce a number of favourable character references and he had no criminal record of any significance.

47 In all of these circumstances, and recognising that, in cases such as this, matters personal to an offender will often play a role which is secondary to questions of general deterrence (see R v Bellissimo, above,

at 469), it seems to me that a sentence of 9 years' imprisonment should be substituted for that imposed by the sentencing Judge in respect of count 1 on the indictment. While that would still leave a significant disparity as between the sentences imposed on the two co-offenders, that must be seen in the light of the different sentencing regimes, the very different role played by each and the fact of Argiropoulos' co-operation with the authorities, and also in the light of the fact that anything less would, in my opinion, amount to an excessively lenient sentence, given the seriousness of the offence. The other sentences imposed by the sentencing Judge would stand and these would be served concurrently with that which I would impose in respect of count 1. The applicant would remain eligible for parole.

48 I would consequently grant the applicant leave to appeal, allow the appeal, set aside the sentence of 12 years' imprisonment imposed by the sentencing Judge in respect of count 1 on the indictment and impose, in lieu thereof, a sentence of 9 years' imprisonment, with eligibility for parole.

49 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Steytler J. I agree with those reasons and with the orders proposed.