Court of Appeal (WA)|2012-01-31|Before: Mr J, Mazza JA, Lure P, Buss JA

MGM -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 24 (31 January 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MGM -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 24

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - One count of supplying MDMA to another - 966 g of MDMA at 23% purity - Parity principle - Whether lack of disparity between the sentences imposed on the appellant and his co-offender - Whether sentence manifestly excessive

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Cameron v The Queen [2000] WASCA 286

Cartwright v The State of Western Australia [2010] WASCA 4

Galbraith v The State of Western Australia [2011] WASCA 70

Goddard v The Queen (1999) WASCA 281; 21 WAR 541

Green & Quinn v The Queen [2011] HCA 49

I (a child) v The State of Western Australia [2006] WASCA 9

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

Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Magdi v The State of Western Australia [2010] WASCA 234

Monument v The State of Western Australia [2007] WASCA 239

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

R v MacGowan (1986) 42 SASR 580

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v Atherton [2009] WASCA 148

3 MAZZA JA: This is an appeal against sentence. The appellant pleaded guilty on the fast-track system to one count of supplying 3,677 tablets of MDMA (ecstasy) to another. The ecstasy weighed 966 g and was 23% pure. He was sentenced by Yeats DCJ to 2 1/2 years' immediate imprisonment with eligibility for parole.

4 The facts of the offending are as follows. During June 2009, S, E and the appellant each participated in a criminal enterprise to bring ecstasy into Western Australia from New South Wales. The three offenders had previously known each other for many years. The plan was to conceal the drugs in a Datsun vehicle which the appellant had purchased in New South Wales, on S's behalf, and transport the vehicle across the country. S was the mastermind. It was intended that he would take delivery of the ecstasy when it arrived in Western Australia, where it would be sold to others. E and the appellant resided in New South Wales. E sourced the ecstasy. He then passed it on to the appellant who concealed it in the vehicle and then arranged for its despatch to Western Australia on 9 June 2009.

5 Unknown to the offenders, law enforcement authorities in Western Australia were aware of their plan. After the vehicle arrived in Western Australia, at a transport depot in Welshpool on 11 June 2009, the police found and removed the drugs. On 15 June 2009, S attended the depot and took possession of the car. He looked for the drugs, but could not find them.

6 Intercepted telephone conversations between S and the appellant, both before the vehicle was despatched from Sydney and after S took delivery of it in Welshpool, reveal the appellant's willing role in the offence: AB 176 - 179.

7 Ultimately, S, E and the appellant were arrested. E and the appellant were extradited from New South Wales.

8 In relation to this transaction, S was charged with attempting to possess ecstasy with intent to sell or supply it to another. He also faced three other unrelated drug offences. E and the appellant were each charged with supplying ecstasy to another. After his arrest, the appellant

agreed to cooperate with the police. In December 2010, he signed a statement which implicated himself and his co-offenders. He undertook to give evidence against S, who was the only offender to plead not guilty. As a result of the appellant's cooperation, S changed his plea to guilty.

The sentences imposed upon S, E and the appellant

9 Each offender was sentenced by different judges on different days.

10 E was sentenced first, by Eaton DCJ on 17 December 2010. He pleaded guilty on the fast-track system. He was, at the time of sentencing, 24 years of age. Eaton DCJ found that E was prevailed upon by S, whom E regarded as an older brother. His Honour found that although E was to profit from the transaction to the extent of receiving $2,000, he did not do so 'for any significant commercial gain': AB 122. His Honour thought that E acted out of a sense of 'misguided loyalty' to S. It is clear that his Honour was impressed by E's good antecedents and particularly by the fact that he was an intelligent, well-qualified person who held an engineering degree conferred by the University of Sydney: AB 123. His Honour described E's role in sourcing the almost 1 kg of ecstasy as 'something of an incidental role': AB 128. His Honour made this finding in the face of earlier findings in which his Honour said that E was not only involved in the sourcing of the product, but in its quality control: AB 124. His Honour said the starting point in sentencing E was 6 years' imprisonment. After taking into account mitigating factors, he imposed a term of 4 1/2 years' immediate imprisonment with eligibility for parole. The State did not appeal against this sentence.

11 S was sentenced by Martino CJDC on 5 April 2011. He was 25 years of age. He, too, had good antecedents. In addition to his plea of guilty for attempting to possess ecstasy with intent to sell or supply it to another, he also pleaded guilty to, and was sentenced for, the separate offences of possession of cocaine with intent to sell or supply it to another and two counts of selling benzylpiperazine to another.

12 In relation to the offence of attempting to possess ecstasy with intent to sell or supply it to another, his Honour found that S intended to distribute the ecstasy for profit: AB 158. His Honour was aware of the sentence imposed on E. He described S's criminality and culpability as being 'much higher than was found for Mr E, because [he] intended to distribute the drugs in the community for profit': AB 159. His Honour noted S's plea of guilty (which was not made early) and his motivation to rehabilitate himself.

13 His Honour sentenced S to a total effective sentence of 8 years' imprisonment. For the offence of attempting to possess ecstasy with intent to sell or supply it to another, he received a sentence of 6 years' imprisonment. His Honour expressly took into account considerations of totality. Although all of the offences committed by S occurred on different dates, two of the sentences were ordered to be served concurrently. A consideration of Martino CJDC's reasons as a whole suggests that the sentence of 6 years was influenced, to some extent, by the sentence imposed on E.

14 The appellant pleaded guilty before Yeats DCJ on 25 March 2011. He was, at the time, 32 years of age. On 8 April 2011, Yeats DCJ sentenced the appellant. Her Honour was aware of the sentences imposed by Eaton DCJ and Martino CJDC.

15 Her Honour found that the appellant played a lesser role than E and a 'considerably less[er]' role than S: AB 94. She also found that the appellant did not financially benefit from the drugs entering Western Australia: AB 91. Nevertheless, she found that the appellant 'very carefully hid the drugs [in the car] in an effort to avoid their detection by police' (AB 91) and that he played 'an important role in the movement of nearly a kilogram of [ecstasy] into Western Australia': AB 91.

16 Her Honour expressly referred to the issue of parity, and to the sentence imposed upon E. Her Honour observed:

It is clear and conceded by defence counsel in the matter before me that a six-year maximum for an offence involving this much [ecstasy] is well below the range of sentences appropriate to this quantity: AB 91.

17 Later in her sentencing remarks, her Honour said:

The other difficulty with the sentencing of Mr E is that the sentencing Judge found that Mr E played an incidental and lesser role to that of the other two offenders. That is not conceded by the State [in these proceedings]. And when one simply looks at the intercepted telephone messages, for the purpose of my sentencing it is clear that the principal offenders appear to me in this enterprise to be Mr S and Mr E.

[The appellant], whom I must sentence, was brought in simply to pack the drugs in the vehicle, to hide them so they wouldn't be obvious to Customs [sic]. In my view, that is a lesser role than that played by Mr E, who managed to locate this huge amount of [ecstasy] and was in close communication with Mr S: AB 91 - 92.

18 Her Honour then referred to Martino CJDC's sentencing of S.

19 Her Honour, in sentencing the appellant, found that there was 'a considerable amount of mitigation in this case': AB 90. She took into account the appellant's early plea of guilty and remorse, his cooperation with the police and his undertaking to give evidence against S. Her Honour found that, as a result, S changed his plea of not guilty to one of guilty: AB 90.

20 Her Honour specified the discount that she gave for the appellant's cooperation as 50%: AB 93.

21 Her Honour rejected defence counsel's submission that the appellant should receive a suspended imprisonment order. Her Honour rejected that submission on the basis that the appellant's knowing involvement in a criminal enterprise designed to bring a large quantity of ecstasy into Western Australia required a term of immediate imprisonment: AB 94.

22 There are four grounds of appeal. They raise these issues:

Did the sentence infringe the parity principle (ground 1)?
Whether the sentence was manifestly excessive in that the wrong type of sentence was imposed upon the appellant. Instead of an immediate term of imprisonment, it was contended that his Honour should have made a suspended imprisonment order (grounds 2 and 4).
Whether her Honour made an express material error of fact as to when the appellant became aware that drugs were to be transported in the car (ground 3).

23 Leave to appeal has been granted in respect of the parity ground. The question of leave with respect to the other grounds was referred to the hearing of the appeal.

24 At the hearing of the appeal, the appellant's counsel submitted, rightly in my view, that the primary issue to be decided was the parity point. He acknowledged that the other grounds were 'secondary'. In dealing with the grounds of appeal, it is convenient to deal first with ground 3, then grounds 2 and 4, and finally ground 1.

Did her Honour make the alleged factual error? (ground 3)

25 Her Honour said that she was sentencing the appellant on the basis of a 'knowledgeable involvement in a criminal enterprise to bring this large amount of [ecstasy] into Western Australia': AB 94. The appellant's argument is that there is an implication in this statement that her Honour erroneously thought that the appellant knew of the criminal plan to bring ecstasy into Western Australia in the car at some point earlier than he in fact did. In her sentencing remarks, her Honour dealt with the extent of the appellant's criminality in this way:

It was originally submitted to me that [the appellant's] involvement in this matter was limited to purchasing the Datsun motor vehicle for S from a private seller and then putting a package in, not knowing what it was. The submissions were that the [appellant] was not fully aware that the parcel he was asked to hide in the vehicle by Mr S was drugs.

However, there is evidence on the papers that suggest[s] that the [appellant] did know. The telephone intercepts indicate that he knew drugs were in the package given to him by Mr E and knew he was placing drugs in the vehicle. He may not have known the exact quantity, and I accept he was not involved in the drug trade and was primarily involved in shipping the car. But it is clear that he very carefully hid the drugs in an effort to avoid their detection by police when the drugs came into Western Australia: AB 90 - 91.

26 The background to these comments is as follows. During the plea in mitigation, the appellant's counsel (not his counsel in this appeal) submitted that:

[The appellant] did not know what he - exactly he was putting in the car, until after the package was delivered to him. He had suspicions that either E and Mr S were involved in the drug industry, but he himself had never seen anything of it: AB 64.

27 The prosecution brief included transcripts of various telephone intercepts obtained by police. Amongst the calls that were intercepted were calls between the appellant and S on 8 June 2009. Her Honour referred defence counsel to these calls in the course of his plea in mitigation. It is not disputed that on that day (the day before the appellant secreted the drugs in the vehicle and despatched it to Western Australia), the appellant discussed with S concealing the drugs in the car.

28 Defence counsel then made the point to her Honour that there is no evidence that prior to 8 June 2009 the appellant had any discussion with either S or E in relation to the ecstasy. Her Honour accepted this submission: AB 69.

29 In light of this, it is plain that the telephone intercepts her Honour referred to in the sentencing remarks were those which occurred on 8 June 2009. The reference to hiding the drugs is in connection with the appellant's actions on 9 June 2009. Towards the ending of her sentencing remarks, when rejecting defence counsel's submission that the appellant should be given a suspended imprisonment order, her Honour said:

I consider that your knowledgeable involvement in a criminal enterprise to bring this large amount of [ecstasy] into Western Australia requires a sentence of immediate imprisonment: AB 94.

30 It is this statement which the appellant says is an express error. The appellant's submission is that the statement suggests 'awareness beyond [sic: before] the eleventh hour', on the part of the appellant, as to when he knew what he was to conceal was ecstasy. The expression 'eleventh hour' was not used by counsel or her Honour at the hearing. It is a pejorative expression used by the appellant's counsel in this appeal to convey, I take it, knowledge before 8 June 2009. Taken against the background and context I have described, her Honour's statement is not reasonably capable of this meaning.

31 Her Honour's use of the expression, 'knowledgeable involvement in a criminal enterprise', relates to the events of 8 and 9 June 2009 when the appellant obtained from E the package which he knew contained drugs, and then concealed it in the car. Her Honour did not incorrectly characterise the appellant's criminality. There is no merit in the appellant's contention of factual error. Ground 3 has no reasonable prospect of success.

Did her Honour impose the wrong type of sentence? (grounds 2 and 4)

32 The gravamen of grounds 2 and 4 is that the sentence imposed upon the appellant was manifestly excessive because, in all of the circumstances of the case, he should have been placed on a suspended imprisonment order.

33 In Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10], McLure P, with whom Owen and Wheeler JJA agreed, succinctly and accurately described the principles which apply to the imposition of suspended imprisonment in respect of serious drug offending:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

34 While it is wrong to focus solely on the quantity and purity of the drug concerned, such matters are important factors which are to be taken into account: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [17] (Miller J), [50] (McLure J).

35 I have already, in these reasons, set out her Honour's findings in respect of the appellant's offending. Her assessment of the appellant's role in the offending as 'important' is correct. Although he did not stand to gain commercially, he knew that S stood to profit. It cannot be ignored that the amount of ecstasy sent to this State by the appellant was large, by any measure. The greater the quantity, the greater the potential to harm the community.

36 Her Honour expressly referred to all relevant mitigatory factors, describing those factors as 'considerable'. She gave the appellant a significant (and appropriate) discount for cooperation, recognising the public interest in offenders such as the appellant providing information to law enforcement authorities.

37 Notwithstanding these mitigating factors, the seriousness of the offending and the need to provide general deterrence made the imposition of a suspended term of imprisonment, in all of the circumstances of the case, wholly inappropriate. Had her Honour imposed such a sentence, she would have fallen into error.

38 The length of the term imposed upon the appellant was well below the range of sentences customarily imposed for similar offences. I will say something more about this when I deal with the appellant's submissions on the parity principle. No doubt the extremely lenient sentence that was imposed upon the appellant is primarily explained by his cooperation with the authorities.

39 For these reasons, her Honour did not impose the wrong type of penalty upon the appellant. A term of immediate imprisonment was the only appropriate disposition in this case. Grounds 2 and 4 have no reasonable prospect of success and must be dismissed.

Did the sentence offend the parity principle? (ground 1)

40 The argument put by the appellant in this case is similar to that put by the appellants in the cases of Magdi v The State of Western Australia [2010] WASCA 234 and Jardim v The State of Western Australia [2011] WASCA 83. The appellant's written submissions were to the effect that there was insufficient disparity between the appellant and the sentences imposed upon both of his co-offenders. However, in his oral submissions, the appellant's counsel acknowledged that the disparity was not evident upon a comparison of the sentences imposed on the appellant and S. This is because questions of totality impacted on the sentence that was passed on S. The focus of the appellant's submissions was upon a comparison of the sentences imposed on E and the appellant. Counsel's submission, in essence, was that, having regard to the appellant's lesser role and his cooperation, the 2-year difference between the sentences insufficiently reflected the disparity between the offenders.

41 The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).

42 The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).

43 Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J).

44 Some difficulty may be encountered in the application of the parity principle where a court dealing with an offender, whether at first instance or on appeal, is faced with a sentence imposed on a co-offender which it concludes was inadequate.

45 In such cases, the parity principle does not compel the court to impose the same inadequate sentence or, if the circumstances of the offender are less serious, to impose an even more lenient sentence. To do either of these things may result in the imposition of a sentence on an offender which is, to use the expressions which are sometimes seen in the cases, 'unacceptable to the public conscience', or '[a] shock [to] the public conscience': see R v MacGowan (1986) 42 SASR 580, 583 (King CJ, Mohr and von Doussa JJ agreeing); I (a child) v The State of Western Australia [66] - [68] (Steytler P, McLure JA agreeing); and Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [14] (Steytler P, McLure JA agreeing). In such circumstances, the sense of grievance on the part of the offender would not be 'justifiable'. It cannot be overlooked that s 6(1) of the Sentencing Act requires a sentence to 'be commensurate with the seriousness of the offence': Goddard v The Queen (1999) WASCA 281; 21 WAR 541 [61] (Murray J).

46 In Green & Quinn v The Queen, the majority (French CJ, Crennan and Kiefel JJ) stated the position in these terms:

There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences [33].

47 The complicating factor in her Honour's consideration of the parity principle, as it related to the appellant and E, was the finding by Eaton DCJ that E played an incidental and lesser role to that of the other two offenders and the sentence that was ultimately imposed upon E was well below the range of sentences customarily imposed for offending of this type. These type of complications are apt to arise where co-offenders are dealt with by different judges. It is plainly desirable that, where possible, co-offenders should be dealt with by the same judge.

48 Her Honour was, of course, required to exercise her own sentencing judgment and discretion based upon the materials and submissions put before her. Accordingly, it was open to her to arrive at a conclusion different to Eaton DCJ as to the relative culpability of the three offenders.

49 It is clear enough that her Honour regarded the sentence imposed by Eaton DCJ as inappropriately low. Although that is a conclusion that a sentencing judge on the same level of the judicial hierarchy should not make without considerable care and reflection, it was a conclusion that her Honour was, in the circumstances of this case, entitled to make.

50 With great respect to Eaton DCJ, a perusal of his sentencing remarks reveals some material errors. To describe E's role in sourcing and acquiring almost 1 kg of ecstasy and being involved in its quality control as 'something of an incidental role' was to wrongly downplay what E did. To do these things for financial gain, whether that gain is significant or not, speaks of a high degree of criminality. On no reasonable view did E have a lesser role than the appellant. In this case, the mitigatory weight which could be given to matters personal was limited, having regard to the central sentencing objective of general deterrence.

51 In light of these errors, and the range of sentences customarily imposed where offenders have been convicted of serious drug offences involving significant quantities of drugs such as methylamphetamine, heroin and ecstasy, the sentence imposed upon E was unjustifiably lenient: see The State of Western Australia v Atherton [2009] WASCA 148; Galbraith v The State of Western Australia [2011] WASCA 70; Monument v The State of Western Australia [2007] WASCA 239; Stapleton v The Queen [2004] WASCA 130; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; and Cameron v The Queen [2000] WASCA 286. I have arrived at this conclusion, notwithstanding that the State did not appeal against E's sentence.

52 It is clear that her Honour turned her mind to questions of parity and, in particular, to parity between E and the appellant. There was, in the end, a considerable disparity of 2 years' imprisonment between the two offenders, in favour of the appellant. The appellant says that the disparity should have been greater, having regard to the appellant's lesser role and cooperation.

53 I am unable to accept this submission. The sentence imposed upon E was unjustifiably lenient and was not a proper basis upon which to compare the appellant's offending. Further, the sentence of 2 1/2 years' imprisonment imposed upon the appellant, even taking into account his lesser role and his cooperation, was very low, having regard to the overall seriousness of the offence in all of its circumstances, and to further reduce it would be 'to shock the public conscience'. When seen in this light, any lack of disparity cannot give rise to a justifiable sense of grievance on the part of the appellant, or to any appearance of injustice.

54 For these reasons, ground 1 has not been made out.

55 None of the grounds of appeal have been made out. I would not give leave to appeal on grounds 2, 3 and 4. The appeal must be dismissed.

Leave to appeal on grounds 2, 3 and 4 is refused.
The appeal is dismissed.

Billing v The State of Western Australia [No 2]

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (91 paragraphs)

MGM -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 24 (31 January 2012)

Parties

Cases Cited (4)