DIAMANTOPOULOS -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 82 (12 July 2024)

1. The appellant did not challenge the sentencing judge's findings as to the circumstances of the offending.
2. On 3 February 2021, at around 2.40 pm, Mr Edwards parked a white Volvo truck in a truck bay on the south‑bound lanes on South Western Highway, Fairbridge. Shortly after, a person named Guy Radford arrived in a white Zippy hire van and parked next to the Volvo truck. Mr Edwards exited the cab of the truck and entered the rear of the truck. Mr Edwards retrieved multiple boxes from his truck and handed them to Mr Radford. Mr Radford loaded the boxes into the Zippy van and drove away. Later the police conducted a search of the Zippy hire van at Mr Radford's address. The police located 11 boxes inside the van. The boxes contained approximately 119 kg of methylamphetamine.
3. On the same day, at around 2.48 pm, the appellant drove a white Thrifty hire van into the same truck bay alongside the Volvo truck being driven by Mr Edwards. The appellant exited the Thrifty hire van and removed a number of large suitcases from the van, placing them in the rear tray cargo area of the Volvo truck. Mr Edwards entered the rear of the Volvo truck. Mr Edwards retrieved multiple boxes from his truck and handed them to the appellant. The appellant loaded the boxes into the Thrifty van.
4. The police, who had been observing the scene, attempted to arrest the appellant in the truck bay. The appellant sought to evade the police by speeding away. During the pursuit the appellant threw several items from his vehicle. These items included a Samsung mobile phone. The device was later found by the police. The police alleged that the device was a dedicated encryption communication device. In any event the appellant was eventually taken into custody.
5. A subsequent search of the Thrifty van driven by the appellant revealed four cardboard boxes. On later analysis, the boxes were found to contain 42.92 kg of methylamphetamine at a purity of 77% ‑ 82%. The appellant was arrested and gave a no comment interview.
6. Mr Edwards was arrested in the truck bay. A subsequent search of the Volvo truck driven by Mr Edwards revealed five suitcases, individually padlocked, stacked in the rear of the Volvo truck. The suitcases contained a total of $4,498,790 in cash.
7. For the purpose of sentencing the appellant provided a detailed explanation for his offending. The sentencing judge accepted that explanation on the balance of probabilities. At the time of the offending the appellant was on parole for previous drug‑related offences. After being released on parole, and prior to the offending, the appellant was approached by some associates. The appellant was informed that a drug debt of between $10,000 and $20,000 he had incurred before his previous prison sentence had increased to $60,000. The appellant was told to settle the debt or face the consequences.
8. The appellant was unable to pay the $60,000. He was worried about the people who were seeking payment threatening his parents. The sentencing judge held that there was 'some basis for that concern'. The appellant was informed that if he completed a courier job his debt would be cleared. Accordingly, the appellant agreed to carry out the courier job.
9. The appellant was given a Ciphr phone. The appellant was also given instructions to collect the cash and the equipment to count and package it for delivery. The appellant packaged and prepared the suitcases containing the $4,498,790 in cash. The appellant was given instructions via the Ciphr phone for delivery. The appellant was told to hire the van and dress like a tradesperson. He did so. The appellant was not told the precise type of prohibited drugs he would be collecting or the quantity of the drugs he would be collecting. However the sentencing judge found that the appellant knew that the quantity of drugs he would be receiving was a substantial amount. His Honour also found that the appellant knew that the prohibited drug he would be receiving was either methylamphetamine or a drug of equal seriousness. The sentencing judge found that the appellant knowingly involved himself in a large‑scale, well‑organised, drug‑distribution operation.

1. The appellant was 30 years old at the time of the offending and 32 years old at the time of sentencing. He is the second of three children born to his parents. The appellant came from a good family. The appellant acknowledged that his parents worked hard to provide for him and his siblings. The appellant's parents remained supportive of him although the appellant acknowledged that his drug use and consequent antisocial behaviour had adversely impacted his relationship with his parents and his siblings. While having the advantage of a good family the appellant had some difficulties in his childhood which made him feel self‑conscious. In his late teens the appellant became closer to antisocial peers.
2. The appellant left school mid‑way through year 12. He only had sporadic employment since that time. The appellant's ability to maintain stable employment had been affected by drug use.
3. The appellant started using cannabis at the age of 13. He would drink alcohol and use cannabis with friends and occasionally use ecstasy or amphetamines. The appellant was introduced to methylamphetamine at the age of 17 and by 21 was using up to 2 g a week. He reported having his first drug induced psychosis as a 23‑year‑old. This resulted in the appellant destroying his room. There had been occasions where the appellant was hospitalised due to drug overdoses and self‑harm. The appellant had longstanding issues with his mental health. A psychological report recorded that the appellant met the diagnostic criteria for a stimulant use disorder (in remission) and a borderline personality disorder. The appellant also had symptoms consistent with major depression, generalised anxiety and post‑traumatic stress disorder.
4. The sentencing judge found that the appellant's mental health issues correlated with his drug dependence and each fed off the other in an unhealthy way. The appellant had made genuine attempts to stop using methylamphetamine. However, the appellant's drug dependency was deep rooted. The sentencing judge found that, despite a strong support network around him, the appellant's drug dependence had a significant impact on his life.
5. The appellant had an extensive criminal record dating back to when he was 19 years of age. This included convictions for possession of controlled weapons and firearms, possessing prohibited drugs, criminal damage and stealing. Significantly, the appellant had two prior convictions for possession of methylamphetamine with intent to sell or supply. The first such offence occurred in March 2012. The second occurred in July 2019. The appellant was sentenced to 2 years' immediate imprisonment for the second offence. The appellant was on parole in respect of that term of imprisonment at the time of the offending the subject of the appeal.

1. The sentencing judge characterised the appellant's offending as 'a very serious instance of this type of offending'. His Honour referred to five factors which established the seriousness of the offending:
   1. The weight and purity of the methylamphetamine (approximately 43 kg at a purity of 77% ‑ 82%).
   2. The large‑scale operation that the appellant was involved in - his Honour referred to the enterprise as 'sophisticated, well planned and well resourced' and having a 'clear commercial motivation'.
   3. The appellant prepared the cash for the exchange and thus knew that he was receiving a substantial amount of prohibited drugs being either methylamphetamine or a drug of equal seriousness.
   4. The appellant's role as a trusted courier who prepared the cash for exchange, made the exchange and was to transport the prohibited drugs to others in the drug‑dealing operation.
   5. At the time of the offending the appellant was on parole for drug‑related offences.
2. In terms of mitigating factors, the sentencing judge was satisfied that the pleas of guilty were early albeit not at the first reasonable opportunity. The sentencing judge provided for a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). The sentencing judge was satisfied that the appellant was genuinely remorseful for his offending. His Honour was satisfied that there were good prospects of rehabilitation and that the appellant would emerge from imprisonment as someone who had broken his addiction to methylamphetamine to lead a law‑abiding and pro‑social lifestyle. The sentencing judge also accepted that, while in custody, COVID‑19 restrictions had made prison more restrictive than normal, limiting access to rehabilitation programs, and had undermined the appellant's mental health.
3. The sentencing judge acknowledged the appellant's longstanding mental health issues but was not satisfied that these would make imprisonment more onerous for the appellant.
4. The appellant's prior criminal record - and in particular his two prior convictions for possession of methylamphetamine with intent to sell or supply - meant that the appellant did not come to be sentenced as a person of prior good character. Moreover, in the sentencing judge's view, it was clear that his Honour needed to impose a sentence of sufficient severity to deter the appellant from committing any further drug‑related offences and to protect the community from further offending by the appellant.
5. The sentencing judge referred to the relevant maximum penalties and sentencing principles for offending of the type committed by the appellant. There is no complaint about the sentencing judge's recitation of the relevant sentencing principles. The sentencing judge then turned to the issue of parity. In this respect the sentencing judge stated as follows:

I need to deal with you in a manner that gives rise to fundamental notions of fairness and equality before the law, in particularly [sic] between you and Mr Edwards. Now, Mr Radford was also involved in the same overall transaction. But I can put his sentencing to one side as his offending was primarily concerned with a 119‑kilogram parcel of methylamphetamine delivered by Mr Edwards, and he [ie Mr Radford] had other serious offending.

So the key issue is parity between you and Mr Edwards in relation to his involvement in the offences concerning you. So Mr Edwards was sentenced, following appeal, to a term of imprisonment of 17 years for the supply of the 119 kilograms to Mr Radford, 15 years for the supply of the 43 kilograms of methylamphetamine to you, and 8 years for dealing with the $4.5 million which you had delivered to him. (emphasis added)

1. The sentencing judge then addressed the similarities and differences between the offending and the two offenders. His Honour first noted similarities. The sentencing judge observed that, in many respects, the appellant and Mr Edwards were at more or less the same level in the drug distribution operation's hierarchy, although performing different tasks. They were, as the sentencing judge put it, at different sides of the same transaction. Neither was involved in the planning, organising or funding of the operation. Nor were they to share in the profits generated from the sale of the drugs. As to personal circumstances, Mr Edwards was 40; the appellant was 30. Neither had the benefit of youth. Both had very supportive character references and good prospects of rehabilitation.
2. The sentencing judge identified two facts which suggested that Mr Edwards' offending was more serious and that he had a greater culpability than the appellant:
   1. Mr Edwards' role was more significant as he transported the methylamphetamine from the Eastern States into Western Australia.
   2. Mr Edwards' motivation was pure commercial gain - Mr Edwards was to receive $30,000. The sentencing judge viewed this as being more culpable than the appellant's motivation of clearing a drug debt in the circumstances confronting the appellant.
3. The sentencing judge then went on to identify three countervailing factors which suggested that the appellant's offending was more serious and that the appellant had a greater culpability than Mr Edwards:
   1. Mr Edwards pleaded guilty at an earlier stage than the appellant - Mr Edwards received a 25% discount rather than the 20% discount received by the appellant.
   2. The appellant had a significant criminal record. Considerations of personal deterrence were elevated. Mr Edwards' criminal record was modest. It was essentially 'neutral' in the sentencing process.
   3. The appellant was on parole when he offended.
4. Taking all matters into account, the sentencing judge imposed a term of imprisonment of 8 years for count 1 (the $4,498,790) and a term of imprisonment of 15 years for count 2 (the 43 kg of methylamphetamine). The sentencing judge was satisfied, after evaluating and weighing all relevant sentencing factors in the context of the facts and circumstances of the offending and after taking account of the similarities and differences between the appellant's and Mr Edwards' roles, personal circumstances and antecedents, that sentences of these lengths respected the principles of parity and equal justice.
5. The sentencing judge then turned to cumulacy, concurrency and totality. His Honour considered that the two offences were the opposite sides of the same transaction in which the appellant exchanged money for drugs. Accordingly, the sentencing judge considered that the sentences should be wholly concurrent. As to totality, as a result of the appellant's offending his parole was cancelled. The appellant continued to be a sentenced prisoner until 21 November 2021. In determining the appropriate total effective sentence the sentencing judge took into account that the appellant was in custody for 9 months as a sentenced prisoner before the backdated commencement of his sentence for the offending the subject of counts 1 and 2. That, in his Honour's view, justified a modest reduction in the sentence to be imposed.
6. Accordingly, for totality purposes, the sentencing judge reduced the sentence imposed on count 2 from 15 years to 14 years and 6 months. As the two sentences were to be served concurrently that gave a total effective sentence of 14 years and 6 months' imprisonment.

**Disposition grounds 1 & 2: alleged error in relation to the parity principle

1. The legal principles applicable to the parity principle are well established. The following outline of principles by Buss P (Mazza JA agreeing) in Ngo v The Queen[3] has been adopted or reproduced in this court many times:

The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.

An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.

In Green v The Queen French CJ, Crennan and Kiefel JJ said:

'(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

(c) equal justice also requires, where the law permits, "differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law" [28].'

Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co‑offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].

It has often been said that it is desirable for co‑offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. ([36] ‑ [40]) (citations omitted)

1. A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[4] apply: Green v The Queen;[5] EDR v The State of Western Australia.[6] Consequently, the question raised by ground 2 is whether the lack of disparity in the relevant sentences was open in the exercise of the sentencing discretion; it is not whether this court would have exercised the discretionary judgment in relation to parity differently: Ho v The State of Western Australia.[7]
2. The parity principle is concerned with substance rather than form. The manner in which the principle is to be applied will vary according to the facts and circumstances of the case. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed.
3. The relevant factors will vary according to the facts and circumstances of the case. In Higgins v The State of Western Australia[8] Buss P (Beech JA agreeing) observed that the factors will ordinarily include ([52] ‑ [53], [184]):
   1. The objective seriousness of each offence which each offender has committed.
   2. The culpability of each offender.
   3. The aggravating and mitigating factors in relation to each offence which each offender has committed.
   4. Whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders.
   5. Each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed.
   6. Whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively.
   7. The total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender.
   8. Whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made.
   9. The non‑parole period to be served by each offender.
   10. The personal circumstances and antecedents of each offender.
4. In Higgins, Pritchard JA (Beech JA agreeing) noted that:

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. ([179], [207])

1. A manifest disparity in any component of the punishment imposed on co‑offenders (such as the sentence imposed in respect of an individual count), 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: Higgins [179], [200], [208].
2. In Higgins, Beech JA observed:

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'.

...

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. ([177], [182])

1. Ground 1 alleges express error. The appellant submits that the sentencing judge erred by putting to one side the totality of Mr Edwards' offending and the total effective sentence of 17 years' imprisonment imposed on Mr Edwards. The appellant refers to Papp v The State of Western Australia[9] so far as that decision summarises aspects of Higgins. The appellant submits that:
   1. It was necessary for the sentencing judge to consider all aspects of Mr Edwards' offending and the 17‑year term of imprisonment imposed, not just the common offences and the sentences imposed for the common offences.
   2. The sentencing judge did not conduct a comparison between the totality of the offending and the total effective sentences imposed on the two offenders. Nor did his Honour take account of the circumstance that, in relation to Mr Edwards, the common counts were ordered to be served wholly concurrently for totality reasons.
2. In oral submissions, counsel for the appellant contended that the parity principle necessarily always involves a consideration of the total effective sentences as well as the sentences imposed on the common counts.
3. As to ground 2, which asserts implied error, the appellant submits that Mr Edwards' offending was 'much more' serious than the appellant's offending. The appellant emphasises the co‑offenders' different roles and motivations. It is said that Mr Edwards was 'much more' culpable than the appellant in terms of what Mr Edwards actually did. Also, as to motivation, the appellant submits that the 'non‑exculpatory duress' which explained his offending was a 'significant mitigating factor' in the circumstances which was to be contrasted with the fact that Mr Edwards offended purely for financial reward. The appellant submits that, irrespective of whether the comparison was made between the common offences or the total effective sentences, the court should find that there was a justifiable sense of grievance that there was not a greater disparity between the respective outcomes.
4. As to ground 1, the State submits that the sentencing judge was plainly aware of the nature and structure of the sentences imposed on Mr Edwards, including the total effective sentence and the order for concurrency, having read and having referred to this court's decision in Edwards. So far as the sentencing judge referred to the 'key issue' as being parity between the appellant and Mr Edwards in respect of the common offences the State points out that this approach, now challenged on appeal, was expressly accepted by then senior counsel for the appellant before the sentencing judge.
5. In any case, in the State's submission, the sentencing judge's observation has to be considered in the context of the sentencing remarks as a whole. The State submits that the sentencing judge had regard to all relevant sentencing factors in relation to parity. That was particularly so when the parity principle is concerned with substance, not form, and the manner in which the principle is to be applied will vary according to the facts and circumstances of the case. There was no express error insofar as the sentencing judge regarded a comparison as to the common offences to be the key issue (or the focus) of the parity issue in the circumstances before the sentencing court.
6. As to ground 2, the State addressed various authorities dealing with non‑exculpatory duress. It is not necessary to consider those authorities. That was not the basis on which the appellant's position was advanced before the sentencing judge. Senior counsel for the appellant then acknowledged that the appellant 'doesn't say it was a situation of duress'. There was no assertion of any direct threat. Rather, both before the sentencing judge and on appeal, the critical matter was the appellant's motivation for the offending. In this respect the State submits that acting reluctantly and desperately to discharge a debt is still offending for monetary gain or reward.
7. More generally, the State emphasises the discretionary character of the application of the parity principle. The State submits that error has not been demonstrated in the sentencing judge's application of the parity principle. There was, according to the State, no marked and unjustified disparity between the individual sentences for the common offences. Nor was there a marked and unjustified disparity between the total effective sentences.

1. Ground 1 alleges express error of the kind that the sentencing judge failed to take into account a material consideration in applying the parity principle.
2. There is no need to examine whether, as counsel for the appellant submitted, the proper application of the parity principle necessarily always involves a consideration of the co‑offenders' total effective sentences. It is enough that it may be accepted that in the present context the appellant's and Mr Edwards' respective overall total effective sentences were relevant comparators for the purpose of the application of the parity principle. The authorities make it clear that there is no hard and fast rule in terms of what might be a relevant comparator as to sentence in the case of co‑offenders. The parity principle may apply to each and every component of the co‑offenders' respective sentences. Generally speaking, in evaluating parity, all the facts and circumstances must be considered, together with all relevant components of the sentences and all relevant sentencing principles (including the totality principle).
3. In Higgins Buss P (Beech JA agreeing) observed that, in determining whether the parity principle has been infringed, the relevant factors will ordinarily include:

[T]he total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender. ([53](f), [184])

1. Likewise in Higgins, Pritchard JA considered that a proper comparison of the punishment imposed on co‑offenders was not limited to a comparison of the sentences imposed for the common offending; it may involve a comparison of any or all of the components of the punishment imposed on each offender: [204]. Those components included the total effective sentence: [202]. Her Honour observed that, in some cases - particularly where a comparison of the sentence imposed on the co‑offenders was of limited practical utility as a sentence had been reduced for totality purposes - the total effective sentence may be a more meaningful comparator: [207].
2. Higgins concerned whether there had been an infringement of the parity principle. The same parity principles as explained by the court in Higgins were applicable to the sentencing exercise performed by the sentencing judge. Mr Edwards' total effective sentence was something to be taken into account in the application of the parity principle.
3. We are, however, not persuaded that the sentencing judge failed to take into account the totality of Mr Edwards' offending and the total effective sentence imposed on Mr Edwards in the way alleged by ground 1.
4. In his sentencing remarks the sentencing judge expressly referred to Mr Edwards' additional offending (the 119 kg of methylamphetamine supplied to Mr Radford) and the term of imprisonment imposed on Mr Edwards for that offending (17 years). As the State submitted, it was plain that in sentencing the appellant the sentencing judge had considered this court's reasons in Edwards. That is unsurprising when it is appreciated that the sentencing judge was also the sentencing judge in relation to Mr Edwards. The sentencing judge was plainly well aware of the totality of Mr Edwards' offending, the aspects of that offending that were common with the appellant's offending, and the sentences that had been imposed on Mr Edwards. In that respect the sentencing judge raised the parity issue with both counsel for the State and senior counsel for the appellant.
5. Importantly, in addressing the question of parity, the sentencing judge referred to parity as between the appellant and Mr Edwards in relation to the common offending as the 'key issue'. His Honour did not refer to this as being 'the' issue or the 'sole' or 'only' issue. Rather, in identifying that this matter was the 'key issue' in evaluating the question of parity, the sentencing judge acknowledged that there were other relevant factors. Some of them, like Mr Edwards' additional offending and the sentence in respect of that additional offending (which was coextensive with Mr Edwards' total effective sentence), had already been mentioned by the sentencing judge in his Honour's sentencing remarks. And, when the sentencing judge came to impose sentences, his Honour took all the matters into account. Necessarily this included what had been said by his Honour as to Mr Edwards' additional offending and the sentence in respect of that additional offending.
6. We accept that, having identified the 'key issue', his Honour's sentencing remarks thereafter concentrated on the similarities and differences in the offending and the offenders through the lens of the common offending.
7. There was, however, no error in terms of ground 1 in this approach. The sentencing judge took into account the totality of Mr Edwards' offending and the total effective sentence imposed on Mr Edwards. The weight to be given to those considerations in evaluating the application of the parity principle was a matter for the sentencing judge. His Honour evidently considered that they were of lesser weight in that the 'key issue' as to parity concerned the common offending. That approach was well open to the sentencing judge. It was the common approach of counsel for the State and senior counsel for the appellant before the sentencing judge. Indeed, even before this court counsel for the appellant accepted that the common offending was probably the 'most important' or the 'most relevant' parity consideration. To similar effect, counsel for the appellant accepted, with respect correctly, that the 'key issue' for the application of the parity principle was parity between the appellant and Mr Edwards in relation to the common offending.
8. Ground 1 fails. In our view the ground was based on an overly technical view of the sentencing remarks. When the sentencing remarks are read in full and in context, as they should be, ground 1 had no reasonable prospect of succeeding. Leave to appeal on ground 1 should be refused.
9. The appellant advanced ground 2 by inviting a comparison as to each of: (1) the appellant's and Mr Edwards' sentences for the common offences; and (2) the appellant's and Mr Edwards' total effective sentences.
10. In respect of both comparisons counsel for the appellant suggested that the appeal would turn on the court's assessment of the appellant's motivation for his offending. That, it was said, put the appellant's offending into a different category from most cases of its type. Initially counsel for the appellant sought to characterise the appellant's motivation in terms of this being a case of 'non‑exculpatory duress'. Almost immediately, however, the characterisation of 'duress' was softened to an assertion that the appellant was under 'a degree of perhaps pressure'.
11. We accept that there was a relevant difference between the appellant's motivation for his offending and Mr Edwards' motivation for Mr Edwards' offending. Mr Edwards was solely motivated by commercial gain. Mr Edwards was to be paid $30,000 to take prohibited drugs into Western Australia. By contrast the appellant was clearing a $60,000 drug debt. In that respect the sentencing judge found that the appellant was worried about the persons seeking payment threatening his parents and that there was some basis for that concern.
12. It follows that the appellant was, as counsel submitted, under a degree of pressure to participate in the offending. It is apparent, however, that Mr Edwards was also under pressure, albeit pressure of a different kind. In Edwards this court recorded that as a result of the COVID‑19 pandemic Mr Edwards was desperate for money to keep making payments on his truck: [16].
13. The unfortunate reality is that many offenders commit offences because they are under pressure of some kind. The extent to which this minimises the criminal culpability of the offender for the offending, if at all, depends on the facts and circumstances that bring about the pressure. While it is not the present case, it might, for example, be difficult - depending on the circumstances - to persuade a sentencing court that an offender's criminal culpability is lessened because the offender is susceptible to pressure being exerted on him or her to offend because of his or her prior offending.
14. In the present case no actual threats were directed to the appellant's family. The appellant was simply told to settle the debt or face the consequences. Otherwise the appellant was susceptible to the pressure applied on him to offend because of his $60,000 drug debt. So understood the appellant was in a position of situational disadvantage because of his prior actions and involvement with illicit drugs. Demands of the kind experienced by the appellant are objectively likely where a person has a substantial drug debt. It may be accepted that the appellant was prepared to offend both to clear his drug debt and to avoid the potential for threat to his parents. That, in the circumstances of this case, has no more than a very modest effect in terms of lessening the appellant's criminal culpability.
15. The primary consideration in assessing the seriousness of the appellant's offending is to consider what the appellant did. That is unaffected by the appellant's motivation. In terms of what motivated the appellant to offend there was, on his own account, a personal advantage that accrued by reason of the offending - the appellant cleared a substantial drug debt. At the same time the appellant averted the possibility of his associates threatening his parents. That possibility was a consequence of the appellant's prior actions and involvement with illicit drugs. Accordingly, so far as the appellant was under a degree of pressure to participate in the offending, it was the appellant's prior actions and involvement with illicit drugs that made the appellant susceptible to that pressure.
16. In any event, to the extent that the appellant was worried about the people seeking payment threatening his parents, it was open to the appellant to report the approach to law enforcement authorities. There were lawful means readily available to the appellant to avoid the possibility that his parents might be threatened by reason of his drug debt. Even accepting that the appellant was exploited by his associates, and pressured to offend, it remains the case that the appellant consciously chose to commit the offences. The circumstance that the appellant was subjected to a degree of pressure to offend does not, in the circumstances of the case, afford significant mitigation.
17. We are, for these reasons, unable to accept the appellant's submission that the pressure on the appellant to participate in the offending is a significant mitigating factor in the circumstances of the case. There is, at most, a very modest effect in terms of lessening the appellant's criminal culpability. In saying that we do not question that, all other things being equal, the appellant had a lesser criminal culpability than an offender who was to be paid $30,000 for the same offending. But it remains the case that the appellant was actuated, at least in part, by commercial gain. The appellant was clearing a substantial drug debt. The appellant therefore acted for reward.
18. Once this point is reached there is no merit in ground 2 irrespective of whether the parity analysis is conducted by a comparison of the sentences for the common offending or by a comparison of the total effective sentences.
19. Mr Edwards was sentenced to a 15‑year term of imprisonment in relation to the 43 kg of methylamphetamine and an 8‑year term of imprisonment in relation to the approximately $4.5 million. Each sentence was to be served concurrently with the 17‑year term of imprisonment in relation to the 119 kg of methylamphetamine. That meant Mr Edwards was to serve a 17 year total effective sentence. The appellant was sentenced to a 14 year and 6‑month term of imprisonment in relation to the 43 kg of methylamphetamine and an 8‑year term of imprisonment in relation to the approximately $4.5 million. As the 8‑year term was to be served concurrently with the 14 year and 6‑month term the appellant's total effective sentence was 14 years and 6 months.
20. The appellant's sentence of 14 years and 6 months on count 2 (the 43 kg of methylamphetamine) was reduced from 15 years for totality reasons. The State accepted, correctly, that for the parity analysis the relevant comparator was the sentence before any reduction for totality - as a matter of substance the relevant comparator was a sentence of 15 years' imprisonment.
21. In alleging an infringement of the parity principle the appellant's complaint as to parity is one of a lack of disparity in the sentences imposed on him and Mr Edwards.
22. There was no relevant disparity in the sentences imposed for the common offences. However, in circumstances where Mr Edwards had the additional offending involving the 119 kg of methylamphetamine supplied to Mr Radford, Mr Edwards received a total effective sentence that was 2 years more than the appellant's total effective sentence (adjusting the appellant's total effective sentence to take account of the totality reduction on the sentence imposed on count 2). So understood, ground 2 turns on whether that absence of disparity (as to the common offences) or the 2 year disparity (as to the total effective sentences) constitutes a lack of disparity that 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.
23. The appellant relied on two matters in asserting that there was a legitimate or justifiable sense of grievance or injustice. First, the appellant's different motive for his offending. We have already dealt with that matter. The appellant's different motivation for offending is not a 'significant' mitigating factor as contended for by counsel for the appellant. Second, the appellant's different role. We accept, in that respect, that Mr Edwards' role was somewhat more serious in terms of criminal culpability. Mr Edwards transported the methylamphetamine from the Eastern States whereas the appellant's role was to pick up the methylamphetamine and deliver it to persons unknown. However, it cannot be overlooked that the appellant's role had an additional aspect that was over and above the role carried out by Mr Edwards. The appellant collected the approximately $4.5 million cash and packaged it for delivery. The appellant, like Mr Edwards, must have been aware that the offending involved a large quantity of prohibited drugs. The appellant's role, although somewhat less serious than Mr Edwards' role, is not to be diminished. The appellant's role was still vital in the illicit drug‑distribution enterprise. The difference in the appellant's and Mr Edwards' respective roles cannot sustain counsel for the appellant's submission that Mr Edwards was 'much more' culpable in terms of what Mr Edwards did.
24. While, in these two respects, the appellant's offending was less criminally culpable than the equivalent offending of Mr Edwards as to the common offences, the parity analysis must consider all relevant sentencing factors. Here, as the sentencing judge correctly identified, there were three ways in which the appellant's offending was more criminally culpable than the offending of Mr Edwards.
25. First, the timing of the pleas of guilty meant that Mr Edwards received a further 5% discount in terms of s 9AA of the Sentencing Act. That difference is material given the length of sentence that is ordinarily to be expected for an offence under s 6(1) of the Misuse of Drugs Act involving 43 kg of methylamphetamine. Second, while being a subsidiary consideration given the major sentencing considerations for drug offences of the kind that the appellant and Mr Edwards had committed, the appellant's antecedents were markedly less favourable than those of Mr Edwards. Personal deterrence was a more significant factor as far as the appellant is concerned. Third, the appellant was on parole when he offended. That, in our view, is a significant distinguishing feature so far as the appellant's and Mr Edwards' respective criminal culpability is concerned. The commission of an offence while on some form of conditional release from custody is an aggravating factor, particularly where the offence is of a similar nature to the offending that brought about the offender's conditional release. It demonstrates that the offender has disregard for the law and is prepared to offend despite him or her having been granted liberty on condition of being on good behaviour. It displays contempt for the law and enhances the need for personal deterrence.
26. Thus, when all relevant sentencing factors and considerations are taken into account, in some respects the appellant's criminal culpability is less than that of Mr Edwards' and in other ways the appellant's criminal culpability is more than that of Mr Edwards'. However, we are satisfied that, viewed objectively, overall the appellant's and Mr Edwards' criminal culpability for the common offending was broadly equivalent.
27. There is a relatively modest disparity in the total effective sentences. Mr Edwards was convicted of the additional offending of supplying 119 kg of methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act. Viewed in isolation that is extremely serious offending. However, notwithstanding that additional offending involving an amount of methylamphetamine nearly three times that involved in the appellant's offending, Mr Edwards' total effective sentence is only 2 years more than the appellant's total effective sentence.
28. In Edwards this court explained that the imposition of a very long individual sentence can reduce the imperative to impose additional cumulative sentences in order to arrive at a total effective sentence which bears a proper relationship to the overall criminality involved in multiple offences considered as a whole: [62]. It was for that totality reason that, in resentencing Mr Edwards, the court ordered that the three sentences imposed on Mr Edwards were to be served concurrently to achieve a total effective sentence of 17 years' imprisonment. So understood the limited disparity in the two total effective sentences, despite Mr Edwards' very serious additional offending as to the 119 kg of methylamphetamine, is wholly explicable by the proper application of sentencing law and principles.
29. In any case it is well established that the gravity of a drug offence is not to be assessed solely or chiefly by the weight of the relevant prohibited drug: Wong v The Queen.[10] Once very lengthy sentences are reached there is a diminishing marginal effect so far as personal and general deterrence are concerned in further increases in the severity of the sentence imposed on an offender. Accordingly, it is not to be expected that sentences concerning very large quantities of prohibited drugs (as was the position for both the appellant and Mr Edwards) should have a linear relationship with the weight of the prohibited drugs involved in the offending. As this court said in Edwards, in relation to general deterrence:

While considerations of general deterrence ordinarily require very long sentences for very serious drug offences, those considerations do not necessarily demand increases in the severity of sentences that are proportional to the quantity of drugs involved, particularly where the benefit obtained by the individual offender for his or her role in the criminal enterprise remains relatively modest. ([42])

1. In all the circumstances, and in particular having regard to the conclusions expressed at [75] ‑ [78] above, we are satisfied that, so far as common offences are concerned, the absence of disparity in the sentences between the appellant and Mr Edwards is incapable, objectively, of giving rise to a legitimate or justifiable sense of grievance. Nor, in the mind of an objective observer, would the absence of disparity give the appearance that justice has not been done. The appellant and Mr Edwards received equivalent sentences for offending that is equally serious when considered in the broad taking into account all relevant sentencing factors and considerations. There can be no legitimate or justifiable sense of grievance, or injustice, where, in substance, the appellant and Mr Edwards received an equivalent sentencing outcome for offending in respect of which they are, in the broad, equally criminally culpable.
2. The limited disparity in the total effective sentences is explained by the proper application of sentencing law and principles. Again, viewed objectively, no legitimate or justifiable sense of grievance arises. Nor, in the mind of an objective observer, would the limited disparity in the total effective sentences give the appearance that justice had not been done.
3. All the more so, as to both the sentences on the common offending and the total effective sentences, it cannot be said that the absence of disparity (as to the common offending) or the limited degree of disparity (as to the total effective sentences) is unreasonable or plainly unjust. The lack of disparity in the sentences was well open to the sentencing judge in the exercise of his Honour's sentencing discretion. No House v The King error is revealed.
4. Ground 2 fails. Ground 2 was premised on a misconception that the appellant's motivation for his offending rendered his offending significantly less serious. In that respect ground 2 had no reasonable prospect of succeeding. Leave to appeal on ground 2 should be refused.

Disposition ground 4: was the appellant's sentence on count 2 manifestly excessive? Applicable legal principles

1. The general principles governing sentencing appeals are well known and have been stated in many cases in this court. We adopt without repetition the statement of principles made by this court in Kabambi v The State of Western Australia[11] [21]. A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently.
2. For present purposes, so far as the relevant contention underlying grounds 3 and 4 is one of implied error, it suffices to state that the real question is whether the sentence as challenged is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
3. The general principles concerning the sentencing of offenders who possess or traffic in illicit drugs are also well known.
4. The major sentencing considerations for offences of the kind committed by the appellant are general and personal deterrence. The weight of the drugs in question is not, generally speaking, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

1. In written submissions the appellant says that in support of the contention that the sentence imposed on count 2 is manifestly excessive that he simply repeats his submissions in respect of ground 3.
2. The appellant's written submissions in support of ground 3 are relatively sparse. The appellant accepts that the offending was plainly very serious. The appellant concedes, with respect correctly, that the total effective sentence of 14 years and 6 months imprisonment was within the range of sentences imposed for this type of offending. That said, the appellant goes on to submit that:
   1. The comparable cases do not involve the same favourable finding as to the motivation for the appellant's offending - this is said to significantly reduce the appellant's culpability.
   2. The total effective sentence is plainly unreasonable or unjust and does not bear a proper relationship to the overall criminality of the appellant's conduct (referring, again, to the sentencing judge's finding as to the appellant's motivation in offending).
3. Counsel for the appellant did not develop any oral submissions in support of grounds 3 and 4.
4. The State, by reference to Edwards, says that this court had already considered the seriousness of the offending and relevant customary sentencing standards with respect to offending of the type committed by the appellant. The State submits that the sentence imposed on count 2 is not manifestly excessive. Nor does the total effective sentence (which was no greater than the individual sentence on count 2) infringe the first limb of the totality principle. In both respects the State contends that the mitigatory weight to be given to the appellant's motivation to discharge a drug debt was marginal at best. It was not such as to render the sentences excessive.

1. Ground 4 should be dealt with quite briefly given the limited submissions made in support of the ground both in writing and orally.
2. The maximum penalty for the offence the subject of count 2 was life imprisonment. The sentencing judge was correct to characterise the appellant's offending as a very serious instance of an offence of its type. The offending had the aggravating circumstances identified at [25] above. The weight and purity of the methylamphetamine were egregious aspects of the offending. 43 kg of methylamphetamine at a purity of 77% ‑ 82% had the potential to cause great harm to the community. While, as we have mentioned, the appellant felt pressured to offend, that did not render his offending significantly less serious. In any case the appellant was also actuated by commercial gain so far as he stood to clear a $60,000 drug debt. The principal mitigating factor was the appellant's early plea of guilty for which he received a discount of 20%. While we accept that there were other mitigating factors - those being summarised at [26] ‑ [27] above - the appellant's past offending and the fact that the appellant had committed the offence while on parole meant that personal deterrence had a heightened significance.
3. In terms of customary sentencing standards, reference has already been made to Edwards. Edwards is directly comparable. Mention should also be made of Trainor v The State of Western Australia,[12] Ramachandran v The State of Western Australia[13] and the comprehensive analysis in Ramachandran as to sentencing outcomes for offending involving dealing in kilograms of methylamphetamine. It is not necessary to repeat the facts and sentencing outcomes in those authorities so far as counsel for the appellant accepted, correctly, that the appellant's sentence of 14 years and 6 months' imprisonment was within the range of sentences imposed for this type of offending. Although the concession was directed to the total effective sentence it is equally applicable to the sentence on count 2 given the order for concurrency and the circumstance that counsel for the appellant relied on his submissions in respect of ground 3 in support of the contention that the individual sentence imposed on count 2 was manifestly excessive. Edwards, Trainor and Ramachandran establish that counsel for the appellant's concession was correct.
4. Having due regard to these matters, and all other relevant sentencing factors as referred to in these reasons, we would not imply or infer error from the sentencing outcome. The sentence of 14 years and 6 months' imprisonment for the offending the subject of count 2 is not manifestly excessive. To the contrary, in our view, the sentence was commensurate with the seriousness of the offence. The sentence is not unreasonable or unjust so as to signify that a substantial wrong has occurred or there has been some misapplication of principle. It was within the range of a sound exercise of the sentencing discretion when viewed from the perspective of the maximum penalty and after taking into account all relevant facts and circumstances and all relevant sentencing factors.
5. Ground 4 fails. Given this court's decision in Edwards ground 4 had no reasonable prospect of succeeding. Leave to appeal on ground 4 should be refused.

Disposition ground 3: did the appellant's total effective sentence infringe the first limb of the totality principle?

1. The dismissal of ground 4 has implications for ground 3.
2. We have concluded that the sentence imposed on count 2 is not manifestly excessive. The sentencing judge ordered that the sentence for count 1 be served concurrently with the sentence for count 2. Ground 3 alleges that the total effective sentence infringes the first limb of the totality principle. Such a ground is directed to an inappropriate accumulation of individual sentences in a manner which does not reflect the overall criminality involved in all of the offending. There is no basis for complaint of breach of the totality principle in a case where there is no accumulation of sentences and the head sentence is not manifestly excessive. As such, ground 3 is completely without merit.
3. Leave to appeal on ground 3 must be refused.

1. Leave to appeal should be refused on each ground. It follows that the appeal is to be taken to have been dismissed. We would make orders that:
   1. Leave to appeal on each of grounds 1, 2, 3 and 4 is refused.
   2. The appeal is dismissed.

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

[1] There is an unexplained discrepancy of $4,840 between the s 563A(1)(b) offence involving the appellant (an amount of $4,498,790) and the s 563A(1)(b) offence involving Mr Edwards (an amount of $4,503,630). This is so despite the offending of both men involving cash packaged in the same five suitcases which the appellant gave to Mr Edwards. In context the discrepancy is minor. It is, in any case, immaterial to the proper disposition of the appeal.

[2] The State of Western Australia v Edwards [2022] WASCA 141; (2022) 303 A Crim R 594 (Edwards).

[3] Ngo v The Queen [2017] WASCA 3.

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

[5] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32].

[6] EDR v The State of Western Australia [2024] WASCA 61 [60].

[7] Ho v The State of Western Australia [2023] WASCA 160 [39].

[8] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Higgins).

[9] Papp v The State of Western Australia [2020] WASCA 125 [56].

[10] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73].

[11] Kabambi v The State of Western Australia [2019] WASCA 44.

[12] Trainor v The State of Western Australia [2021] WASCA 36.

[13] Ramachandran v The State of Western Australia [2021] WASCA 54.