1. The facts of the offending were not in dispute.[25] The sentencing judge adopted the facts of the offending as outlined by the prosecutor.[26]
2. The particulars of the counts, facts connected to those counts and penalties imposed are contained in the table below.

Number of tablets offered unclear, other than '100s'

Number of tablets offered unclear, other than '100s'

Number of tablets offered unclear, other than '100s'

3 bottles of testosterone and 3 bottles of other illicit substances

Unidentified number of kits for $350 each and other illicit substances

50 tablets for $100 and 10 tablets of a different type for $300

1. From 29 January 2016 until 10 May 2016, the police lawfully intercepted two mobile telephone lines used by the appellant.[27] Counts 1 to 36 relate to calls and SMS messages made from these two lines, offering to sell quantities of MDMA, anabolic steroids, testosterone and human growth hormones to others.[28] It is not necessary to set out the details of every one of these counts. The following examples suffice to illustrate the nature of the offences.
2. Count 1 relates to an offer to sell MDMA.[29] Between 3 and 10 February 2016, the appellant communicated by SMS and mobile with another person. The appellant sent the first SMS message on 4 February 2016, stating: 'Bananas are BK'. 'Bananas' referred to MDMA pills. The other person replied by asking if the appellant 'could do' 50. The appellant responded by indicating that he was only selling them by the hundreds. They made arrangements for the customer to pay and meet with the appellant. The appellant was later seen meeting the customer and receiving money from her.
3. Similar conversations were the subject of counts 3 - 8, 12 - 20 and 22 - 36 in relation to offers to supply the prohibited drugs referred to in those counts.
4. Count 2 relates to an offer to sell MDMA.[30] On 4 February 2016, the appellant had telephone conversations with another person. The appellant said that the 'yellow things' were in, there were only 800 available, and they would be gone by Saturday and then not available for a while. On 5 February 2016, in another telephone conversation with the same person, the other person asked for 50. The appellant said he only did hundreds and they might not be available. The appellant mentioned a price, 'two-two', which was $2,200 per 100 tablets. The appellant offered to sell 800 tablets.
5. Counts 9, 10 and 11 relate to three separate, but substantially similar, offers to sell MDMA.[31] On 8 February 2016, the appellant sent the same SMS message to three different persons offering to sell 100 'Facebook' MDMA tablets for $2,200. The SMS messages stated that those tablets were 'way stronger' than the 'banana' MDMA tablets the appellant had offered previously.
6. Count 21 relates to an offer to sell MDMA.[32] On 16 March 2016, the appellant had telephone conversations with another person. The appellant indicated that he had something from another supplier that the person was after. The other person asked if it was 'juice', which was a reference to steroids, or 'the other thing'. The appellant replied 'the other thing' and said the price was $850 for 1,000. The other person said he only wanted 200, to which the appellant replied that he was only doing them by the thousand.

1. Counts 37, 38 and 40 relate to the sale of methylamphetamine to others. Count 39 relates to an offer to sell cocaine to another. All four counts involved the appellant's dealings with a police undercover operative (UCO).[33]
2. The appellant and the UCO began communicating by mobile telephone in February 2016. The appellant used one of the mobile telephone lines being intercepted by the police to do so.[34] The appellant also met with the UCO at the appellant's home on seven separate occasions between 26 February 2016 and 24 March 2016. These meetings were covertly audio recorded by the UCO and parts were also separately audio visually recorded.[35]
3. The UCO informed the appellant that he was particularly interested in purchasing 1 kg of methylamphetamine.[36] The appellant was good friends with Josh MacDonald, a co-accused for counts 37 and 39. The appellant knew that Mr MacDonald had a supplier from whom he was able to source very large quantities of methylamphetamine.[37]

1. On 26 February 2016, the UCO met with the appellant at the appellant's home.[38] They discussed illicit drugs, including methylamphetamine. The appellant said he would speak to Mr MacDonald about providing a sample. The appellant then sent an SMS message to Mr MacDonald saying that he wanted to meet with him to discuss something important.[39] Later that day, the appellant spoke by phone with the UCO. The UCO said he wanted to get half an ounce of methylamphetamine for $4,000.[40]
2. On 29 February 2016, the UCO met with the appellant and Mr MacDonald at the appellant's home. The appellant and Mr MacDonald gave the UCO what was said to be half an ounce of methylamphetamine.[41] In exchange, the UCO gave $4,000 to Mr MacDonald, who indicated that he needed to give the money to his supplier.[42] When later analysed, the methylamphetamine was found to weigh 13.6 g and have a purity of 78%.[43]

1. On 8 March 2016, the UCO visited the appellant. The UCO informed the appellant that he was impressed with the quality of the half ounce he had purchased previously and wanted to purchase another two ounces. The appellant said he would arrange for the supply. The appellant was subsequently in contact with Mr MacDonald. Later that day, the appellant called the UCO to tell him that it would be $15,000.[44]
2. On 10 March 2016, the UCO visited the appellant's home. The appellant retrieved the two ounces of methylamphetamine that he said Mr MacDonald had hidden the night before and gave it to the UCO. In exchange, the UCO gave $15,000 to the appellant. After this meeting, Mr MacDonald arranged to go to the appellant's home.[45]
3. When later analysed, the methylamphetamine was found to weigh 55.7 g and have a purity of 75%.[46]

1. On 13 April 2016, the appellant sent a Wickr message to the UCO stating that he had a friend looking to get rid of nine ounces (approximately 255 g) of cocaine for $7,500 an ounce.[47]

1. On 29 February 2016, after the sale the subject of count 37 was completed at the appellant's home, the UCO had a discussion with Mr MacDonald in which Mr MacDonald said his supplier could provide 1 kg of methylamphetamine for $192,500. The appellant was present during the discussion.[48]
2. The appellant discussed the proposed purchase with the UCO on further occasions on which they met. During this time, the appellant was effectively acting as a go-between between the UCO and Mr MacDonald.[49] Ultimately, no deal eventuated with Mr MacDonald because his supplier wanted the money the day before delivery, which was not something to which the UCO was prepared to agree.[50]
3. On 24 March 2016, during a meeting between the appellant and the UCO at the appellant's home, the appellant indicated that he might be able to source the drug elsewhere.[51] An alternative supplier was also discussed at a meeting between the appellant and the UCO on 29 March 2016.[52]
4. On 15 April 2016, the appellant sent a Wickr message to the UCO stating, in effect, that he could have a taster of methylamphetamine in the next two days.[53] On 27 April 2016, the appellant and the UCO met at the appellant's home. The appellant gave the UCO two small clip-seal bags containing methylamphetamine. One bag contained 0.06 g and the other bag contained 0.05 g.[54]
5. On 28 April 2016, the UCO sent a Wickr message to the appellant stating that the sample was 'A grade' and that he wanted to do business. Later that day, the appellant sent a Wickr message to the UCO stating that it would cost $180,000.[55] The UCO told the appellant to get the appellant's 'contact' to message the UCO directly. The appellant's contact was Roberta Costa Ramirez, who contacted the UCO on Wickr.[56]
6. On 29 April 2016, Mr Costa Ramirez met with the UCO at an IGA Supermarket in Maylands. Afterwards, Mr Costa Ramirez and the UCO went to Mr Costa Ramirez's unit, inside which they discussed the sale of 1 kg of methylamphetamine.[57] The UCO sent a Wickr message to the appellant informing him that the meeting went well, to which the appellant responded.[58] The appellant played no further role in the sale after this point.
7. On 2 May 2016, the police began lawfully intercepting Mr Costa Ramirez's mobile phone services. Mr Costa Ramirez was in contact with another co-accused, Larry Perlin, to set up the sale to the UCO.[59]
8. On 3 May 2016, the UCO went to Mr Costa Ramirez's unit with $180,000 in cash. Mr Costa Ramirez counted it and discussed the sale of 1 kg of methylamphetamine. They then drove, separately, to Mr Perlin's unit, where the UCO, Mr Costa Ramirez and Mr Perlin discussed drugs.[60]
9. In the days that followed, the UCO tried to arrange with Mr Costa Ramirez the purchase of the methylamphetamine. On 9 May 2016, Mr Costa Ramirez sent a Wickr message to the UCO asking him to be at Mr Costa Ramirez's unit at 12:45 pm the next day.[61]
10. On 10 May 2016, the UCO went to Mr Costa Ramirez's unit with $180,000 in cash.[62] Mr Costa Ramirez and the UCO then drove separately to Mr Perlin's unit. The UCO and Mr Costa Ramirez went into the unit and met with Mr Perlin. Mr Perlin directed the UCO and Mr Costa Ramirez to an upstairs bedroom. A short time later, Mr Perlin returned to the bedroom with 989.3 g of methylamphetamine. In exchange, the UCO gave Mr Perlin the $180,000. When later analysed, 89.3 g of the methylamphetamine had a purity of 82% and the remaining 900 g had a purity of 84%.[63]
11. Another offender, Mark Woodcock, was present at the unit, and it is alleged that he was the person who supplied the methylamphetamine that day.[64]
12. The co-offenders, Mr Costa Ramirez, Mr Woodcock and Mr Perlin, were arrested a short time later.[65] Each was in possession of part of the $180,000 paid by the UCO. Mr Costa Ramirez was in possession of $40,000.
13. The appellant was arrested on the same day.[66] He told police that he was to be paid $10,000 from the sale.[67]

1. The appellant was 29 years old at the time of sentence and 27 years old during the period of his offending.
2. The appellant was born in England and lived there until his family moved to Ireland when he was about 12.[68] He completed the equivalent of year 12 and then worked in construction, in the same company as his father. A year later, he lost his job during the recession in Ireland.[69] In the years that followed, the appellant described himself as 'living on the breadline'; he struggled to pay rent and put food on the table and he began to drink heavily.[70]
3. In or around 2012 or 2013, the appellant moved to Western Australia on a visa, later gaining permanent residency.[71] In the first year, he worked in construction, reduced his alcohol consumption, attended the gym after work, and began competing in bodybuilding. In order to devote more time to training, he started security work.[72]
4. The use of steroids and hormone therapy was a common activity amongst the appellant's peers at the gym and in security work. The appellant fell into the same practice.[73] Although he had started using steroids in Ireland, the appellant's use became problematic in Australia, where it began to consume a large part of his daily routine.[74] He would inject six to seven times per day, using insulin, peptides, anti-oestrogens and breast cancer drugs, all of which have known side effects.[75] He was hospitalised for heart pain and developed abscesses at the injection sites.[76] The costs associated with his use of performance enhancing drugs progressively increased to thousands of dollars per week.[77]
5. Security work paid less than construction and the appellant found himself struggling financially to meet his rent, food expenses, car expenses and the cost of supplements, steroids and other bodybuilding requirements.[78] Despite working as many shifts as he could, the appellant was soon in financial stress. His offending began as a means of making up the shortfall between his income and his expenses.[79]
6. The issues underlying his offending were issues regarding self-esteem and self-image, associated substance misuse and poor consequential thinking.[80]
7. The sentencing judge accepted that the appellant had made a determined effort resulting in significant gains since he had ceased drug use following his arrest.[81]

1. In light of the grounds of appeal, it is not necessary to detail all aspects of the sentencing judge's comprehensive sentencing remarks.
2. The sentencing judge identified the following aggravating factors:[82]

(1) The appellant's actions were 'deliberate, repeated and persistent'.[83]

(2) The quantity, purity and value of the drugs in which the appellant dealt were significant and varied and some involved substantial quantities.[84]

(3) There were others involved in the offences.[85]

(4) The appellant was motivated in each instance by commercial gain.[86]

1. After considering the appellant's personal circumstances,[87] the sentencing judge noted that the appellant had no relevant criminal history and should therefore be considered a first offender.[88]
2. His Honour referred to the following mitigating factors:

(1) The appellant cooperated with the police and participated in interviews with them, in which he made 'fairly frank admissions'.[89]

(2) The appellant demonstrated remorse: by his plea of guilty, to the author of the pre-sentence report, in undertaking various prison programs to address the issues underlying his offending, and in taking private substance misuse counselling.[90]

(3) The appellant pleaded guilty to each count, although in the face of a strong prosecution case and, in relation to counts 10, 11, 37, 38 and 40, after committal for trial.[91] The pleas of guilty for the other counts were entered at the disclosure committal stage on 25 January 2017.[92] For the first group of five offences, the discount under s 9AA was 16% and, for the other 35 offences, 18%.[93] This approach is challenged by ground 1.

(4) The appellant took steps towards rehabilitation after going into custody, including participation in prison programs.[94]

(5) The appellant would suffer in prison as a result of having no family in the state, limited community ties and concern about his father's health,[95] who was about to undergo a significant vascular procedure at the time of sentence.[96]

(6) The appellant had prior good character and prior good employment history.[97]

1. The sentencing judge made a number of observations as to the seriousness of the appellant's offending. His Honour stated that the appellant's offending was very serious. The appellant was dealing in large volumes of various prohibited drugs including steroids, MDMA, cocaine and methylamphetamine for commercial gain.[98] The sentencing judge observed that the appellant 'present[ed] as a one-stop shop for illicit drugs'.[99] In relation to counts 37, 38 and 40, the appellant was a facilitator of a syndicate who was able to bring people higher up in the syndicate to meet with the UCO so that substantial quantities of drugs could be sold.[100]
2. The sentencing judge stated that he had considered the sentencing proceedings for both Mr Costa Ramirez and Mr Woodcock, observing, correctly, that the count that the appellant had in common with them was count 40.[101] His Honour stated that he was aware of the discount Mr Costa Ramirez got for his plea of guilty, and the sentence imposed on Mr Woodcock.[102] The sentencing judge observed that it was difficult, in some respects, to reconcile how Mr Costa Ramirez ended up with a sentence longer than Mr Woodcock in respect of the offence the subject of count 40.[103]
3. The sentencing judge considered that the appellant's involvement in relation to count 40 dated from 29 February 2016 to 10 May 2016, because throughout this time the appellant was endeavouring to facilitate the supply of 1 kg of methylamphetamine to the UCO.[104] The first plan was to source 1 kg from Mr MacDonald for $192,000, which, if successful, would have seen the appellant make $8,700.[105] Counts 37 and 38 were, in effect, 'tasters' for the purposes of that plan. The second plan, when the first fell through, was to source 1 kg from Mr Costa Ramirez for $180,000, from which the appellant stood to make $10,000.[106] This plan was ultimately successful, and involved methylamphetamine of a high grade.[107] Both plans were motivated by greed.[108]
4. These factors, combined with the need for general deterrence and specific deterrence, led the sentencing judge to conclude that the offences required an immediate term of imprisonment.[109]
5. The sentencing judge imposed the individual sentences set out in the table at [59] above. After referring to the totality principle, the sentencing judge ordered that the sentences on counts 1, 8, 39 and 40 be cumulative upon one another and the remaining counts be concurrent, resulting in a total effective sentence of 12 years 6 months' im[110]sonment.110

1. The appellant appeals on two grounds.
   1. The sentencing judge erred in law in reducing the sentences on counts 10, 11, 37, 38 and 40 by 16% and the sentences on the remaining counts by 18%, in that those reductions were manifestly inadequate, having regard to the fact that the appellant pleaded guilty at the first or close to the first reasonable opportunity.
   2. The sentencing judge erred in law in the application of the parity principle in relation to count 40, in that the co-offenders Mr Woodcock and Mr Costa Ramirez had more significant roles in the offence than the appellant and yet received either very similar or lesser sentences for that offence.
2. The question of leave to appeal was referred to the hearing of the appeal.[111]

Application for leave to adduce additional evidence at the hearing of the appeal

1. The appellant applied, on 31 August 2018, for leave to adduce additional evidence on the appeal. In substance, the evidence the subject of the application is:

(1) the transcript of the sentencing of Mr MacDonald;

(2) the affidavit of the appellant's former solicitor, Ms Cain;

(3) a table containing the sentences imposed upon Mr MacDonald.

1. There was no opposition to the receipt of the additional evidence. I would grant leave to adduce the evidence. Ms Cain's affidavit contains evidence relevant to the evaluation of ground 1. The other material relates to the sentencing of Mr MacDonald. That evidence is received by way of background; the appellant's parity ground does not point to the sentencing of Mr MacDonald as revealing any parity error in relation to the appellant's sentence.
2. I turn to ground 1.

Ground 1: were the discounts under s 9AA inadequate?

1. Ground 1 contends that the discounts applied by the sentencing judge under s 9AA were manifestly inadequate, having regard to the fact that the appellant pleaded guilty at, or close to, the first reasonable opportunity.
2. That contention requires attention to the course of the proceedings prior to the appellant's entry of his pleas of guilty.

The course of the proceedings prior to the pleas of guilty

1. The appellant was charged on 10 May 2016. He first appeared in the Magistrates Court the following day, when he was remanded to 25 May 2016. He had further appearances on 22 June 2016, 15 July 2016, 5 August 2016, 16 September 2016, 22 November 2016, 28 November 2016 and 9 December 2016.[112]
2. During this period, the appellant was facing 50 charges, two of which were charges of simple offences.[113]
3. From 25 July 2016, the appellant was represented by Ms Cain. She first appeared for the appellant on 16 September 2016.[114] Ms Cain's affidavit includes the following, concerning the period prior to January 2017:

(1) In August and September 2016, Ms Cain went through the search video and the appellant's VROI, as well as the statement of material facts for the 50 charges.[115]

(2) Ms Cain examined a spreadsheet relating to the calls and SMS messages from the appellant's two mobile phones.[116]

(3) During November and December 2016, Ms Cain received disclosure of two lever arch files of material, and some digital material.[117]

(4) A number of conferences with the client, visiting him in prison, were necessary to explain to him the criminal liability attaching to his role as a 'liaison for a potential fee'.[118]

(5) The process of assessing the overall strength of the prosecution case also took time.[119]

1. The first committal hearing occurred on 9 December 2016, at which time the charges were adjourned to 25 January 2017.
2. At the hearing on 25 January 2017, the following occurred:

(2) The appellant pleaded not guilty to six charges, five of which became the subject of counts 10, 11, 37, 38 and 40. He was committed to the District Court for trial on those offences.

(3) The appellant pleaded guilty to 35 charges, which became the subject of counts 1 - 9, 12 - 36 and 39.

(4) The appellant pleaded guilty to two simple offence charges.

1. On 27 February 2017, Ms Cain sent a letter to the respondent with a formal plea offer regarding four of the six charges.[120] In substance, the offer was to plead guilty to three of the charges if the respondent discontinued the fourth, namely the charge of an offer to sell 1 kg of methylamphetamine.[121] Over the following months, counsel for both parties discussed the offer and an amended statement of material facts.[122] Ultimately, the offer was accepted and the respondent discontinued the charge relating to the offer to sell 1 kg of methylamphetamine.[123] The facts concerning that charge were incorporated as background facts concerning count 40.[124]
2. The appellant was first arraigned in the District Court on 28 August 2018. On that date, the appellant pleaded guilty to the five remaining charges, which were the subject of counts 10, 11, 37, 38 and 40.[125]

1. The appellant submits that he was unable to enter pleas to counts 1 - 36 until receiving full disclosure from the respondent. Pleading to all of the charges without full disclosure would have meant potentially pleading to charges that were duplicates; this was not a case of the appellant withholding pleas for a forensic advantage. Therefore, it was not reasonably possible for the appellant to plead guilty to counts 1 - 36 at an earlier stage.[126]
2. The appellant submits further that his pleas to counts 1 - 9, 12 - 36 and 39 were of great value to the state. The pleas saved the state and the court days of trial presenting the texts and intercepted calls and possibly the UCO revealing his identity. Therefore, the discount should not have been 18% but 'closer to' 25%.[127]
3. As to the remaining counts, the appellant submits that the facts in relation to count 40 did not necessarily disclose distinct offers to sell drugs, but, rather, negotiations in the lead up to the final sale of 1 kg of methylamphetamine. The appellant submits that this complex set of facts meant he had a right to have the respondent determine the appropriate method of charging, which could only occur after the matter was taken up by the Office of the Director of Public Prosecutions (DPP).[128] The appellant submits that strictly indictable charges can only be negotiated with the DPP, but this can only occur when the DPP takes carriage of a matter after an accused has indicated a need for full disclosure pursuant to s 41(4) of the Criminal Procedure Act 2004 (WA).[129] It appears that the DPP took carriage of the matter in 'late 2016'.[130] In written submissions, the appellant contends that the letter Ms Cain sent to the respondent on 27 February 2017 was the earliest reasonable opportunity to negotiate,[131] with the consequence that the appellant's plea of guilty to count 40 on 28 August 2017 was the earliest reasonable opportunity to plead guilty.[132]
4. Despite the appellant's written submissions, the appellant accepted, in oral submissions, that his pleas of guilty were not at the earliest reasonable opportunity.[133]

1. The following well-established principles concerning s 9AA were outlined in Ugle v The State of Western Australia:[134]

Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The court may reduce the head sentence:

[i]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.

The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:

(a) Securing the conviction of a person who has committed a criminal offence;

(b) The Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;

(c) If the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;

(d) Avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and

(e) The more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.

Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.

The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [18](a) above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.

In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.

In evaluating the appropriate discount for a plea of guilty, the evident purpose of s 9AA should be borne in mind. The following observations in Gobetti v The State of Western Australia [[2017] WASCA 130] are apposite.

It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless. (footnotes omitted)

1. The meaning of the phrase 'first reasonable opportunity' has been considered by this court in a number of cases.[135] The following principles are well-established:

(1) An offender who contends that they pleaded guilty at the first reasonable opportunity has an onus to prove that proposition on the balance of probabilities.[136]

(2) The first opportunity to plead guilty is not necessarily the first reasonable opportunity to plead guilty.[137] Whether or not it is requires an objective assessment of when, having regard to all the circumstances of the case, it would have been reasonable for the offender to have pleaded guilty.[138]

(3) Section 9AA does not reveal an intention to reward or require hasty or unreasonable pleas of guilty.[139]

(4) Often, but not in every case, the first reasonable opportunity to plead guilty would be after the statutory requirements in s 35(4), (5), (6), (11) and (12) of the Criminal Procedure Act 2004 (WA), as applicable, have been satisfied.[140]

1. Where the entry of a plea is delayed for the purpose of ascertaining the strength of the prosecution case, the plea cannot be said to be at the first reasonable opportunity.[141] In Savory, this court found that a plea of guilty, which was delayed in order that negotiations be conducted to resolve factual issues before the entry of the plea, could not be said to be entered at the first reasonable opportunity.[142]

1. The thrust of ground 1 is that the discounts applied by the sentencing judge are so low as to reveal error, given that the pleas of guilty were entered at, or close to, the first reasonable opportunity.
2. Before the sentencing judge, the appellant did not submit that his pleas of guilty were entered at the first reasonable opportunity. Rather, it was submitted that the appellant had pleaded guilty at 'an early stage' and should be afforded a 'significant discount'.[143] As I have said, on appeal the appellant accepted that none of his pleas of guilty were made at the first reasonable opportunity. That concession was properly made. None of the pleas were at the first reasonable opportunity. The following matters demonstrate that this was so, and also bear on the extent of the delay in the entry of the pleas.
3. The pleas of guilty to counts 1 - 9, 12 - 36 and 39 were entered on the appellant's tenth appearance. They were made at the second committal hearing, well after service of the committal brief.
4. In proceedings in the Magistrates Court, counsel for the appellant did not request early access to any evidentiary material. Even after the completion of disclosure, there was no early indication that the appellant would plead guilty to any charges.
5. By September 2016, the prosecution had discharged its obligation to provide a statement of material facts and the video record of interview. In the months from September 2016, counsel for the appellant was evaluating the strength of the prosecution case, and engaging in a number of conferences with the appellant to explain his criminal liability to him. Delay of a plea for these reasons is not consistent with the plea being at the first reasonable opportunity.
6. The appellant's submission that the delay in his pleas was justified by the need to avoid duplicity must be rejected. There is no evidence, in Ms Cain's affidavit or elsewhere, that a concern to avoid duplicity caused delay in the entry of pleas of guilty that were made on 25 January 2017. In any event, it would have been open to the appellant, through his counsel, to indicate a willingness to plead guilty subject to avoiding any duplicity in the charges.
7. In this case, because the pleas were not entered at the first reasonable opportunity, the maximum available discount was something less than 25%.[144] When a plea is entered at the first reasonable opportunity, a sentencing judge is not bound to allow a discount of 25%. The earlier a plea of guilty is made, the greater the discount may be.[145] The strength of the prosecution case is relevant to the discretion in fixing the amount of the discount. The sentencing judge correctly observed that the pleas were entered in this case in the face of a strong prosecution case. Bearing that in mind, and bearing in mind the extent of the delay in the pleas, reflected in the outline in [111] - [117] and [127] - [130] above, the discount of 18% was well within the range of an appropriate exercise of discretion. No implied error has been demonstrated.
8. The position in relation to counts 10, 11, 37, 38 and 40 is even further removed from a plea at the first reasonable opportunity. The pleas were not entered until after the charges had been committed to the District Court for trial. Counts 10 and 11 were the subject of unsuccessful negotiations. The fact that negotiations surrounding counts 37, 38 and 40 led to the discontinuance of a further charge does not, for s 9AA purposes, justify the delay in entering the pleas in relation to counts 37, 38 and 40. It was always open to the appellant to plead, or unconditionally indicate a willingness to plead, guilty in respect of counts 37, 38 and 40, and then to negotiate for the discontinuance of the other charge. While it may have been strategically advantageous for the appellant to delay the plea while those negotiations ensued, that does not justify the delay for the purposes of evaluating the s 9AA discount.
9. In those circumstances, and bearing in mind the strength of the state case, the discount of 16% applied to counts 10, 11, 37, 38 and 40, to which the appellant pleaded guilty only after committal for trial to the District Court, can fairly be said to be generous.
10. For these reasons, ground 1 is without merit. I would refuse leave to appeal on this ground.

1. Ground 2 alleges that the sentence imposed on the appellant for count 40 infringed the parity principle.
2. It is convenient to begin by outlining the sentences imposed on the appellant's co-offenders.

1. Regrettably, five offenders in relation to a common or related offence have been sentenced by five different judges.
2. Mr Woodcock and Mr Costa Ramirez were both sentenced before the sentencing of the appellant. The sentencing judge had access to their sentencing transcripts.[146] Mr MacDonald was sentenced after the appellant. We were informed at the hearing that Mr Perlin was also sentenced after the appellant.

1. Mr Costa Ramirez was charged with one count of selling methylamphetamine and one count of possessing unlawfully obtained cash, specifically $40,000.[147] He was sentenced by Eaton DCJ in the District Court on 27 October 2017.
2. Mr Costa Ramirez pleaded guilty to both counts after committal to the District Court, but before a listing for trial.[148] Eaton DCJ considered a 15% guilty plea discount to be appropriate for each count.[149]
3. Count 1 on Mr Costa Ramirez's indictment corresponds to count 40 on the appellant's indictment. Mr Costa Ramirez was convicted of selling 989.3 g of methylamphetamine, for which he was sentenced to 9 years' imprisonment.[150]
4. Mr Costa Ramirez was sentenced to 2 years 6 months' imprisonment for count 2.[151] That offence was constituted by his possession of $10,000, part of the price of $180,000 that had been paid for the 989.3 g of methylamphetamine. This count does not correspond to any of the appellant's offences.
5. Eaton DCJ made the sentence on count 2 concurrent with count 1, so that Mr Costa Ramirez received a total effective sentence of 9 years' imprisonment.[152] He was made eligible for parole, and the sentences were backdated to 10 May 2016 to take account of time spent in custody on remand.[153]

1. Mr Woodcock was charged with one count of selling methylamphetamine, one count of possessing unlawfully obtained cash, being the sum of $120,050, and three counts of possessing drugs with intent to sell or supply.[154] He was sentenced by Wager DCJ in the District Court on 2 March 2018. Regrettably, her Honour's sentencing remarks make no reference to the sentence that had been imposed on Mr Costa Ramirez.
2. Mr Woodcock pleaded guilty to all five counts in the Magistrates Court at the committal mention date.[155] A trial of issues took place over two days,[156] following which Wager DCJ found that Mr Woodcock was actively involved with others in the dissemination of very large quantities of high level drugs, playing a significant role.[157] Her Honour considered a 15% guilty plea discount to be appropriate for each count.[158]
3. Count 1 on Mr Woodcock's indictment corresponds to count 40 on the appellant's indictment. Mr Woodcock was convicted of selling 989.3 g of methylamphetamine. The sentencing judge indicated that, but for totality, she considered the appropriate sentence to be one of 7 years' imprisonment.[159]
4. Mr Woodcock was sentenced in the following way for the remaining counts, none of which correspond to the appellant's:

(1) count 2, which was the possession of $120,050 of unlawfully obtained cash, 12 months' imprisonment;[160]

(2) count 3, which was the possession of approximately 1.3 kg of methylamphetamine with intent to sell or supply, 7 years' imprisonment;[161]

(3) count 4, which was the possession of about 14.8 kg of MDMA with intent to sell or supply, 12 years' imprisonment;[162] and

(4) count 5, which was the possession of 269 g, or 1,139 pills, of ethylone with intent to sell or supply, 3 years' imprisonment.[163]

1. Wager DCJ addressed the issue of totality by reducing the term for count 1 to 4 years' imprisonment and reducing the term for count 4 to 10 years' imprisonment. Those terms were then made cumulative, meaning Mr Woodcock received a total effective sentence of 14 years' imprisonment. Mr Woodcock was made eligible for parole, and the sentences were backdated to 10 May 2016 to take account of time spent in custody on remand.[164]

1. Mr MacDonald was charged with two counts of selling methylamphetamine and seven counts of offering to sell methylamphetamine.[165] He was acquitted of one count of selling methylamphetamine (which corresponds to count 38 on the appellant's indictment) but sentenced in relation to the other counts by Lonsdale DCJ in the District Court on 9 May 2018.[166]
2. Mr MacDonald pleaded guilty to counts 1 and 3 - 9 after committal to the District Court and after a trial of the issues, which involved the calling of witness and several days in court time.[167] Lonsdale DCJ applied a 10% discount, on account of the plea of guilty, to each count.[168]
3. Count 1 on Mr MacDonald's indictment corresponds to count 37 on the appellant's indictment. Mr MacDonald was charged with selling 13.6 g of methylamphetamine and sentenced to 2 years' imprisonment.[169]
4. Mr MacDonald was convicted of offering to sell 1 kg of methylamphetamine and sentenced to 5 years 6 months' imprisonment.[170] That charge does not correspond to any of the charges of which the appellant was convicted, although it appears to correspond to the charge that was ultimately discontinued against the appellant.
5. Mr MacDonald was sentenced to 18 months' imprisonment for each of counts 4 - 9.[171] None of these counts correspond to the appellant's offences.
6. Lonsdale DCJ referred to the sentences imposed on the appellant, observing that there were some similarities, but also a number of differences, such that parity was not a major consideration.[172] Her Honour observed that the appellant had received 2 years in respect of what was count 1 against Mr MacDonald, the appellant having pleaded guilty and received a 16% discount for that plea. Her Honour also observed that the appellant was charged with considerably more offences and had dealt with a variety of drugs. Her Honour further observed that the appellant had engaged in the completed sale of 1 kg of methylamphetamine for $180,000, for which the appellant was sentenced to 8 years' imprisonment.[173]
7. Lonsdale DCJ made the sentences on counts 1 and 3 cumulative and counts 4 - 9 concurrent, meaning Mr MacDonald received a total effective sentence of 7 years 6 months' imprisonment. He was made eligible for parole, and the sentences were backdated to 4 May 2018 to take account of time spent in custody on remand.[174]

1. The appellant submits that the issue is whether there was parity between the sentences imposed on Mr Costa Ramirez, Mr Woodcock and the appellant in relation to the offence the subject of count 40, allowing for their respective roles in the offending and their personal circumstances.[175] The appellant made clear that he does not contend that any disparity arises from the sentencing outcomes for Mr MacDonald or Mr Perlin.[176]
2. The appellant submits that the relevant personal circumstances of Mr Costa Ramirez (36 years old at sentencing), Mr Woodcock (55) and the appellant (29) are not materially different: none of them appear to have entrenched drug habits, each was involved for commercial gain, and none of them had significant criminal records.[177]
3. The appellant submits that, although the appellant had a larger number of offences, Mr Costa Ramirez's and Mr Woodcock's offending was equally as serious.[178] That is because both were found with substantial quantities of other prohibited items, and both were present at the sale and in positions of greater trust than the appellant.
4. Therefore, the appellant submits that his penalty of 8 years' imprisonment on count 40 is inconsistent with: (1) his involvement in the sale compared to Mr Costa Ramirez and Mr Woodcock; (2) the findings of the other sentencing judges as to the levels of involvement of each; (3) and the background of the offending of Mr Costa Ramirez and Mr Woodcock.[179]

Parity, totality, and common offences: what is the relevant comparator?

1. A question of principle arose in the course of argument as to the appropriate comparator for the purposes of the application of the parity principle. In cases where either (or both) offender is sentenced for offences in addition to the common offence(s), does parity invite a comparison between the respective sentences for:

(3) the total effective sentence for all of the offences for which the offenders were sentenced?

Or, does it invite a comparison of any or all of the above, depending upon the circumstances?

1. The appellant's ground and submissions invite a comparison, in accordance with option (1) above, between the respective sentences imposed in relation to the single common offence: count 40 on the appellant's indictment.[180]
2. There are recent statements in this court, including in a joint judgment of Mazza JA and me, which may be taken to suggest that option (3) above is the only correct answer in all cases. However, in my view, there is no universal answer to this question. Rather, it depends on the circumstances of the case and the nature of the parity argument that is raised. However, one must bear in mind that, in comparing sentences for an individual common offence, it will always be necessary to have regard to the extent to which totality considerations influenced any individual sentence.
3. I begin with some fundamental principles applicable to the parity principle.
4. The principles concerning parity established by the decisions of the High Court and by other intermediate appellate courts were outlined by Buss JA (with whom Martin CJ and Mazza JA agreed) in Stoysich v The State of Western Australia:[181]

The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] VICSC 7; [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 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.

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].

The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] - [203] (Campbell JA, Rothman J generally agreeing), [245] - [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] - [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] - [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] - [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).

However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:

'The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].'

The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:

'If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [27].'

See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing).

1. Because the foundation of the parity principle is the norm of equality before the law, the application of the parity principle is governed by considerations of substance rather than form.[182]
2. In Pearce v The Queen,[183] McHugh, Hayne and Callinan JJ explained the proper approach to sentencing on multiple offences:[184]

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59].

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision [cf House v The King (1936) 55 CLR 499]. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules [See Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9; see also Sentencing Act 1991 (Vic), s 16]. 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.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a 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 [R v Lomax [1998] 1 VR 551 at 564, per Ormiston JA].

1. As has been accepted in this court,[185] this is the orthodox and preferable approach. However, departure from it does not, of itself, reveal error in all cases.[186]
2. As McLure P explained in Jardim v The State of Western Australia,[187] whether there is a justifiable sense of grievance has to be determined by taking into account the application and effect of relevant statutory provisions, including the totality principle. What her Honour said in this respect has been followed numerous times in this court.
3. In some cases, the particular parity complaint that is made requires attention to the total effective sentence rather than to the individual sentence for each common offence, or to the total sentence for the common offences. For example, in Jardim, the appellant in that case was sentenced for three offences, two of which were committed in common with a co-offender. The co-offender was sentenced for the common offences and for over 20 other offences. The appellant was sentenced to a total effective sentence of 6 years' imprisonment. Following a successful appeal, the co-offender was resentenced to a total effective sentence of 6 years' imprisonment. McLure P observed that, if attention were confined to the individual sentences for the common offences, the appellant could have no complaint.[188] Her Honour then observed that:[189]

They are not the relevant comparators in the circumstances of this case. We are not here concerned with the individual or total sentences for the common offences, but rather the total sentences imposed for all the offending. (emphasis added)

1. The italicised words indicate that her Honour's observations were made with reference to the circumstances of the case and not as a universal proposition. In circumstances where the co-offender had committed so many more offences, her Honour (Pullin JA agreeing and Hall J agreeing in the result) determined that imposing equivalent total effective sentences on the appellant and the co-offender infringed the parity principle and, consequently, reduced the appellant's sentence to account for the lack of disparity.[190]
2. There are other examples of cases where the individual sentences for the common offences did not offend parity, but the lack of disparity in the total effective sentences, in circumstances where the co-offender's overall criminality was substantially greater because of additional offending, meant there was a breach of the parity principle.[191] However, nothing in these cases suggests that a comparison of the individual sentences imposed in respect of a common offence might not, in some circumstances, reveal or suggest a breach of the parity principle.
3. In Nguyen v The State of Western Australia,[192] the court considered, and determined the merits of, arguments of disparity between individual sentences for common offences, as well as disparity between the total effective sentences.[193] For example, Steytler P (with whom McLure JA agreed in this respect)[194] compared both the individual sentences and the total sentence for the common offences of the appellant with those of two co-offenders.[195] After considering questions of parity between individual offences, McLure JA turned to whether the total effective sentences gave rise to an infringement of the parity principle. In that regard, McLure JA said as follows:[196]

The next parity issue is whether the appellant has a justifiable sense of grievance when the total effective sentences are compared. It is not suggested that the parity principle has no application to the total sentence. The submissions put on behalf of the appellant focus on the orders for cumulation and concurrence in relation to the cultivation offences. When considering parity it is, in my respectful view, erroneous to focus on individual orders for cumulation and concurrence as they relate to any particular offence. It is the case that there are general rules that affect whether, on a prima facie basis, sentences for multiple offences should be served cumulatively or partly concurrently (see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [21] - [28]). However, these general rules are always subject to the totality principle. When sentencing for multiple offences, the sentencing court must apply the totality principle which requires, among other things, the total effective sentence to be a just and appropriate measure of the total criminality involved in the conduct as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The practical effect of the totality principle is ordinarily to arrive at a total sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder (1983) 3 NSWLR 245, 260. Once the sentencing judge has determined on what is to be the appropriate total sentence for multiple offences, the orders for cumulation, concurrence or partial concurrence are affected by the practical need to achieve the mathematical outcome. The judge sentencing the appellant might just as well have ordered that the sentences for the offences numbered 1, 3 and 6 in the table be served cumulatively and the balance concurrently. The consequence of the application of the totality principle is that the only relevant comparison for parity purposes is the total effective sentence for all of the offences, not the total sentence for a subset of the offences. The same reasoning justifies the dismissal of grounds of appeal 2 and 3.

1. In this context, her Honour explained why a focus on the orders for cumulation and concurrence as between the common offences, or upon the total sentences for the common offences, without regard to the total effective sentence for the overall offending, would be erroneous. Nothing in her Honour's observations suggests that a comparison between the individual sentences or the total sentences for the common offences is impermissible. Moreover, as I have mentioned, her Honour considered and determined the merits of the appellant's contention that there was disparity in the individual sentences.[197]
2. In Tresnjo v The State of Western Australia,[198] Mazza JA (with whom McLure P and Hall J agreed) said that in undertaking the comparison with the sentences imposed upon the co-offender, it was 'incorrect' to concentrate, as the ground of appeal did, on the individual sentence for the common offences.[199] Nor was it correct for the focus to be on the total sentence for the common offences only. Rather, his Honour said, the appropriate comparison was between the total effective sentences for all their offending, referring to [14] of Jardim.[200] Mazza JA further observed that a complaint of lack of disparity between the sentences for the individual offences common to the two offenders was 'not the correct approach'.[201] However, his Honour observed that, in any event, if analysis were confined to the individual sentences, there was no justifiable sense of grievance.[202]
3. More recently, in Wong v The State of Western Australia,[203] Mazza JA and I considered a submission that comparison was permissible between both the sentences for the common offences, and the total effective sentences.[204] We said as follows:[205]

The question raised by senior counsel for Chuen as to the correct comparison for the purposes of the parity principle was answered by this court in Jardim. In that case, McLure P (with whom Pullin JA agreed), said that the question of whether there was a justifiable sense of grievance had to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle. Her Honour went on to explain that the comparison, for the purposes of the totality principle, was not concerned with the individual or total sentence for the common offences, but rather the total sentences imposed for all the offending [Jardim [14]]. Her Honour's statement in Jardim was consistent with what her Honour had said earlier in Nguyen [Nguyen [27]].

The approach taken in Jardim was followed by this court in Tresnjo, where it was said that it was incorrect to focus on the individual sentences for the common offences or the total sentence imposed for the common offences only and the correct comparison is between the total effective sentences for all of the offending committed by the co-offenders in question [Tresnjo [100]].

1. As would be apparent from what I have said in [169]- [173] above, on further reflection, I do not consider that what was said by McLure P in Jardim and Nguyen supports the universal statements made in [93] - [94] of Wong, and apparently made in [100] and [103] of Tresnjo.
2. Nor, in my view, are fundamental principles concerning parity consistent with a 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. Parity is founded on the norm of equal justice. That norm may be engaged by 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 one, or both, of the co-offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.[206] That being so, it is difficult to accept that the circumstance that one or both offenders are sentenced for additional offences renders direct comparison of the sentences for the common offence(s) impermissible.
3. Moreover, in Postiglione v The Queen,[207] Dawson and Gaudron JJ rejected a suggestion that the comparison required by parity had a singular focus on the head sentence imposed on each offender. Their Honours observed that the head sentence 'is but one component of the sentence. A proper comparison involves a consideration of all components'.[208] Their Honours proceeded to also compare other components of the respective sentences, namely, (1) the non-parole periods of each sentence, and (2) the extent to which each sentence increased the time to be served by each offender after completion of the (different and unrelated) sentences each offender was then serving.[209] Kirby J took a similar approach.[210] In my view, the approach of the majority in Postiglione authoritatively rejects a singular focus on a particular component of the sentence when the parity principle is invoked.
4. I agree with what Pritchard JA has said, at [199] - [208], as to the potential application of the parity principle to each and any of the components of a person's punishment referred to by her Honour.
5. Also, what was said by McHugh, Hayne and Callinan JJ in Pearce,[211] as to the desirability of a sentencing judge fixing an appropriate sentence for each offence before considering questions of totality, does not sit easily with any hard and fast rule that a comparison of the individual sentences on the common offence(s) is impermissible or not relevant.
6. Further, consideration of decisions of other intermediate appellate courts does not support the existence of any such universal rule. I have found no decision stating or suggesting such a rule. While many cases emphasise the need to bear in mind the influence of totality considerations, examples can be found where regard is had, albeit in some cases not as the exclusive consideration, to a comparison between the individual sentence(s) for the common offence(s).[212]
7. In my view, it is open to an appellant to contend that the individual sentence imposed on a co-offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co-offender were also sentenced for other offences. In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences.
8. Consideration of the merits of an argument involving comparison of the sentence(s) for the common offence(s) will require attention to the extent to which, and the manner in which, totality considerations were applied in determining the length of individual sentences and in structuring the relationship between them. In some cases, those matters may leave little room for the practical application of the parity principle. For example, if there were only one common offence, and in sentencing the co-offender in relation to it, the sentencing judge said that a sentence of a particular length was imposed having regard to totality considerations, without specifying what would otherwise have been an appropriate sentence, there may be little or no room for a parity argument. Where, however, as here, the sentencing judge indicates what was considered to be the appropriate sentence without regard to totality, before adjusting it on account of totality, there is room for a contention that a comparison between the indicative sentence for the co-offender and the sentence imposed on the appellant reveals or suggests an infringement of the parity principle.
9. In evaluating a parity argument, all the facts, circumstances and the components of the sentences must be considered, as explained by Buss P at [53] - [54] of his Honour's reasons.

1. Proceeding on the basis invited by the appellant, that the relevant comparison is between the sentences for the common offences, for the reasons that follow, in my opinion the sentence imposed on the appellant does not infringe the parity principle.
2. A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[213] apply.[214]
3. The strongest element of the appellant's parity argument arises from the comparison between the appellant's sentence of 8 years' imprisonment on count 40 and Mr Woodcock's sentence of 7 years' imprisonment for the same offence (subject to reduction on the grounds of totality). Mr Woodcock's role in the sale of the methylamphetamine was undoubtedly higher in the chain of supply hierarchy than the appellant's. In that respect, Mr Woodcock's offence reflected a higher degree of culpability and yet the appellant received a higher sentence than Mr Woodcock's indicative sentence.
4. Against this, however, is that the appellant's offending in relation to count 40 involved a high degree of persistence over a lengthy period of time. From early March 2016, the appellant engaged in discussions with the UCO with a view to a sale of 1 kg of methylamphetamine. When it became apparent in late March 2016 that a supply by Mr MacDonald may not come to fruition, the appellant raised the possibility of sourcing the 1 kg from a different supplier. From mid to late April 2016, the appellant pursued and facilitated the sale that ultimately was count 40. This significant aggravating feature of the appellant's offending did not apply to Mr Woodcock's offending in relation to the count equivalent to count 40.
5. When proper weight is given to this consideration, the force of the appellant's complaint of disparity between his sentence in count 40 and Mr Woodcock's sentence for the offence corresponding to count 40 is greatly diminished.
6. When the appellant was sentenced, parity demanded attention to the sentences of both Mr Costa Ramirez and Mr Woodcock, not solely to Mr Woodcock's sentence. Mr Costa Ramirez was sentenced to a term of 9 years' imprisonment, having pleaded guilty and received a discount of 15% for the plea. I respectfully agree with the sentencing judge's observation that it is difficult to reconcile Mr Costa Ramirez's sentence of 9 years with the 7 years said to be appropriate for Mr Woodcock. Mr Costa Ramirez's offending was undoubtedly less serious than Mr Woodcock's. In this respect, I note that the judge who sentenced Mr Woodcock, subsequent to the sentencing of Mr Costa Ramirez, did not refer to Mr Costa Ramirez's sentence.
7. Comparison between Mr Costa Ramirez's sentence and the appellant's sentence provides no support for a conclusion that the parity principle was infringed. While Mr Costa Ramirez's offending might fairly be seen as somewhat more serious than the appellant's, that is comfortably accommodated by the 1 year higher sentence imposed on Mr Costa Ramirez.
8. In my opinion, in the circumstances outlined in [187] and in circumstances where there was a degree of disparity between the sentences imposed on Mr Costa Ramirez and Mr Woodcock, the sentencing judge's discretionary decision, in applying the parity principle and imposing a sentence of 8 years' imprisonment for count 40, cannot be said to reveal appellable error.
9. To the extent that the appellant invites comparison between the respective total effective sentences, given the very substantial differences in the respective offending, no appellably erroneous disparity is revealed.

1. In my view, it has not been shown that the appellant has, on an objective basis, a legitimate or justifiable sense of grievance. The comparison of the appellant's sentence with the sentences of the two relevant co-offenders does not give rise to the appearance in the mind of a reasonable observer that justice has not been done. No express or implied error concerning parity has been revealed.
2. For these reasons, while I would grant leave to appeal on ground 2, the ground has not been made out.

1. For the above reasons, I would make the following orders:

(1) The appellant has leave to adduce the additional evidence referred to in the application filed 31 August 2018.

1. I have had the advantage of reading the draft reasons of Beech JA. I respectfully agree with his Honour's reasoning and conclusions in respect of the appellant's application for leave to adduce additional evidence and in respect of ground 1. In respect of ground 2, I would also grant leave to appeal and would also dismiss that ground. While I agree generally with his Honour's reasoning in relation to ground 2, I would prefer to add some observations of my own in relation to the operation of the parity principle.
2. Equal justice requires identical outcomes in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[215] In the sentencing context, the principle of equal justice is applied through the parity principle, which

concerns the punishment imposed on two or more co-offenders for a common offence or offences.[216]

1. In my view, the punishment imposed on an offender should be regarded as encompassing all of the legal and practical effects, on the offender, of the sentence imposed by the court. Each of those legal and practical effects may be regarded as a component of the punishment imposed on that offender. Without attempting an exhaustive list, the punishment imposed on an offender may include the following components.
2. The first component is the sentence imposed in respect of an individual offence. That sentence represents the outcome of the sentencing process, which commences with the identification of a sentence that reflects the seriousness of the offending conduct,[217] and which may then be adjusted, having regard to matters such as any discount for a plea of guilty,[218] and any mitigating factors.
3. Secondly, in cases where the court is required to fix a minimum non-parole period,[219] that period will constitute another component of the punishment imposed on the offender.[220] This component has a practical significance, namely that it dictates the minimum period that the offender must spend in custody before being eligible to serve the balance of the sentence on parole in the community.
4. Thirdly, where an offender is sentenced to terms of imprisonment for multiple offences, questions of accumulation and concurrence in the service of those terms will arise, and reductions to one or more of those individual sentences may be required, in the application of sentencing principles, including the totality principle.[221] The total effective sentence represents the practical effect of the exercise of the sentencing discretion across all of the offences for which an offender is being sentenced on one occasion. The total effective sentence thus constitutes a further component of the punishment imposed on the offender.
5. Finally, where an offender is already serving a term of imprisonment, and is sentenced to a term of imprisonment for another offence, another component of the punishment imposed for the later offence will be the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence.[222] That will depend on whether the term is to be served cumulatively on, or wholly or partly concurrently with, the earlier term of imprisonment. The practical significance of the punishment imposed on the offender for the later offence will be felt in the additional period of imprisonment which is actually required to be served.[223]
6. A proper comparison of the punishment imposed on co-offenders is not limited to a comparison of the sentence imposed on each offender for the common offence, but may involve a comparison of any or all of the components of the punishment imposed on each offender.[224]
7. In the simplest hypothetical case, where a court is required to sentence two co-offenders, with identical antecedents and in identical circumstances, for one common offence, the application of the parity principle would require that the court treat the offenders alike at each stage of the sentencing process. In that simplest of scenarios, there should be no marked disparity in any component of the punishment imposed on each co-offender.
8. Conversely, differences between the co-offenders may warrant differences in one or more components of the punishment imposed on them.
9. In a case where one or more of the co-offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co-offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes. In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.
10. A manifest disparity in any component of the punishment imposed on co-offenders, which is not explicable by differences in the circumstances of the co-offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co-offender subjected to the greater punishment.[225]
11. There are some authorities in this jurisdiction - namely Nguyen v The State of Western Australia;[226] Jardim v The State of Western Australia;[227] Tresnjo v The State of Western Australia[228] and Wong v The State of Western Australia[229] - which contain statements that might, at first blush, be understood to suggest that the only proper comparator, for parity purposes, is the total effective sentence imposed on each co-offender. However, in my view, those cases, properly understood, do not purport to establish any such principle, and should not be read in that way. Any such principle would be at odds with the approach taken by a majority of the Court in Postiglione.[230]
12. Each of Nguyen, Jardim, Tresnjo and Wong involved a contention of disparity in the sentences imposed on co-offenders who were sentenced for multiple offences. In each of those cases, it was contended that a comparison between the total effective sentence imposed on the co-offender, and that imposed on the appellant, revealed that the parity principle had been infringed.[231] However, in Nguyen, Jardim and Tresnjo, members of the Court also compared other components of the punishment imposed on the co-offenders, namely the individual sentences for the common offence or offences.[232] Furthermore, in neither Nguyen, Jardim, Tresnjo nor Wong did the Court preclude comparison of the individual sentences, or indeed any other component of the punishment imposed on the co-offenders, in the application of the parity principle. Instead, the approach of the Court in those cases reflected the fact that because multiple offences were involved, the more appropriate comparison was between the total effective sentences imposed on the co-offenders.[233]
13. For the reasons given by Beech JA at [185] - [194], the appellant has not demonstrated a marked disparity between the punishment imposed on him, and the punishment imposed on the other offenders convicted of offences corresponding to count 40 on the appellant's indictment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Beech

[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] (McHugh, Hayne & Callinan JJ).

[2] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

[3] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

[4] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).

[5] Nguyen v The Queen [64] (Gageler, Nettle & Gordon JJ).

[6] R v Lomax [1998] 1 VR 551, 564.

[7] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617.

[8] Lowe (609 - 610) (Gibbs CJ), (613) (Mason J), (623 - 624) (Dawson J).

[9] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).

[10] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).

[11] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).

[12] I (a child) v The State of Western Australia [2006] WASCA 9 [66] (Steytler P; McLure JA agreeing).

[13] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).

[14] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] (French CJ, Crennan & Kiefel JJ).

[15] Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 [202] - [203] (Campbell JA; Rothman J agreeing generally), [245] - [246] (Howie J; Rothman J agreeing generally).

[16] Tomov v The Queen [2011] WASCA 189 [100] (Buss JA; Newnes JA & Hall J agreeing).

[17] Ayik v The Queen [2013] NSWCCA 119.

[18] El-Helou v The Queen [2014] NSWCCA 209.

[19] Kelly v The Queen [2017] NSWCCA 256.

[20] Bell v The Queen [2008] NSWCCA 206.

[21] Tran v The Queen [2006] NSWCCA 266.

[22] Nguyen v The State of Western Australia [2009] WASCA 8.

[23] Tresnjo v The State of Western Australia [2015] WASCA 193.

[24] Wong v The State of Western Australia [2019] WASCA 8.

[26] ts 114. The facts of the offending as described by the state prosecutor are at ts 35 - 47.

[47] ts 42. Wickr is an application which encrypts messages and provides for them to be automatically deleted after a set time: ts 42.

[68] ts 116; Psychological report of Ms Julie Hasson dated 21 October 2017 (psychological report) [2].

[69] ts 116; psychological report [4] - [5].

[71] ts 117; psychological report [5].

[72] ts 117; psychological report [6] - [7].

[74] ts 117; psychological report [15].

[75] ts 117; psychological report [15].

[76] ts 117; psychological report [15].

[78] ts 117; psychological report [8].

[79] ts 117; psychological report [8].

[111] Order of Buss P, 3 July 2018, AB 5.

[113] Affidavit of Felicity Cain, affirmed 17 August 2018 (Cain affidavit) [2].

[120] Cain affidavit [7], annexure FAC 2.

[123] Cain affidavit [7]; respondent's submissions [23].

[134] Ugle v The State of Western Australia [2018] WASCA 97 [17] - [23].

[135] See, for example, Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99; Pham v The State of Western Australia [2016] WASCA 201; Savory v The State of Western Australia [2018] WASCA 165.

[137] Rossi [53]; Savory [45].

[138] Rossi [53]; Savory [45].

[139] Rossi [67]; Savory [45].

[140] Rossi [68]; Savory [45].

[143] Offender's outline of sentencing submissions [26], [27], AB 231; ts 67. Note, however, that, in relation to some of the counts, the submission was made that the plea of guilty was at the first 'available opportunity', ts 59.

[144] Sentencing Act, s 9AA(4)(b).

[145] Sentencing Act, s 9AA(3).

[147] The State of Western Australia v Costa Ramirez, District Court, 27 October 2017, ts 34.

[154] The State of Western Australia v Woodcock, District Court, 2 March 2018, ts 176 - 178.

[157] Woodcock, 2 February 2018, ts 199 - 200.

[165] The State of Western Australia v MacDonald, District Court, 9 May 2018, ts 515, 516.

[180] See, for example, appellant's submissions [34]; appeal ts 7 - 8, 10.

[181] Stoysich v The State of Western Australia [2014] WASCA 208 [39] - [45].

[182] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30]; D'Lima v The State of Western Australia [2012] WASCA 191 [9].

[183] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

[185] See, for example, The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476 [43].

[186] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]; Tittums [44].

[187] Jardim v The State of Western Australia [2011] WASCA 83 [13].

[191] See, for example, D'Lima; Stokke v The State of Western Australia [2015] WASCA 131 [93] - [103]; Staker v The State of Western Australia [2012] WASCA 63.

[192] Nguyen v The State of Western Australia [2009] WASCA 8.

[193] See Nguyen [8] - [9], [13], [14], [24] - [26], [107].

[195] Nguyen [6] - [9], [12] - [14].

[198] Tresnjo v The State of Western Australia [2015] WASCA 193.

[203] Wong v The State of Western Australia [2019] WASCA 8.

[206] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609.

[207] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

[209] Postiglione (302 - 303, 338).

[211] Set out above at [166].

[212] See, for example, Tran v The Queen [2006] NSWCCA 266 [22] - [24]; Qing An v The Queen [2007] NSWCCA 53 [96]; Sampson v The Queen [2010] NSWCCA 119 [52] - [53]; Ayik v The Queen [2013] NSWCCA 119 [30] - [32]; R v Galea [2001] VSCA 115 [13], cited with approval in Matthews v The Queen [2014] VSCA 291; (2014) 44 VR 280 [130]; Saner v The Queen [2014] VSCA 134 [61] - [64]; R v Dang [2018] QCA 331 [40], second and third sentences.

[213] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[214] Green [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40]; Lloyd v The Queen [2017] NSWCCA 303 [97].

[215] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow & Hayne JJ).

[216] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ); Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 611 (Mason J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 335 (Kirby J).

[217] Sentencing Act 1995 (WA), s 6.

[218] See, eg, Sentencing Act, s 9AA.

[219] See, eg, Sentencing Act, s 90(1)(a).

[220] Postiglione (302) (Dawson & Gaudron JJ).

[221] cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] (McHugh, Hayne & Callinan JJ).

[222] Postiglione (303) (Dawson & Gaudron JJ), (342 - 343) (Kirby J).

[223] Postiglione (303) (Dawson & Gaudron JJ), (342 - 343) (Kirby J).

[224] Postiglione (302) (Dawson & Gaudron JJ); see also, to similar effect, (338) (Kirby J).

[225] Postiglione (301 - 302) (Dawson & Gaudron JJ); Green [31] (French CJ, Crennan & Kiefel JJ); Lowe (610) (Gibbs CJ), (613) (Mason J), (623 - 624) (Dawson J); Stoysich v The State of Western Australia [2014] WASCA 208 [39] (Buss JA, Martin CJ & Mazza JA agreeing).

[226] Nguyen v The State of Western Australia [2009] WASCA 8.

[227] Jardim v The State of Western Australia [2011] WASCA 83.

[228] Tresnjo v The State of Western Australia [2015] WASCA 193.

[229] Wong v The State of Western Australia [2019] WASCA 8.

[230] Postiglione (302) (Dawson & Gaudron JJ), (338) (Kirby J).

[231] Nguyen [79] - [80] (Miller JA); Jardim [2] (McLure P); Tresnjo [97] - [99] (Mazza JA); Wong [50] (Mazza & Beech JJA).

[232] See, eg, Jardim [14] (McLure P, Pullin JA agreeing), [27] - [28] (Hall J); Tresnjo [103] (Mazza JA); Nguyen [6], [8] (Steytler P), [24] - [25] (McLure JA), [107] (Miller JA).

[233] Tresnjo [100] (Mazza JA); Nguyen [27] (McLure JA); Wong [94] - [98] (Mazza & Beech JJA); Jardim [14] (McLure P, Pullin JA agreeing), [27] - [28] (Hall J).