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[2020] WASCA 211
Court of Appeal (WA)
2020-12-16
Buss P
Original judgment source is linked above.
The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious, the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities. The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. This underscores the importance of general deterrence in sentencing for offences of this kind.
(4) The sentence imposed by Stone DCJ on 27 March 2020 is set aside.
(5) The appellant is resentenced to 3 years 6 months' immediate imprisonment with eligibility for parole backdated to 18 December 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[15] Statement of material facts [24]; AB 122.
[21] Statement of material facts [42]; AB 124 - 125.
[25] Offender's submissions on sentence [1a]; AB 127.
[26] Offender's submissions on sentence [1b]; AB 127.
[29] Offender's submissions on sentence; AB 126 - 135.
[30] Offender's submissions on sentence [7]; AB 127.
[31] Offender's submissions on sentence [8]; AB 129.
[32] Offender's submissions on sentence [10]; AB 129 - 130.
[33] Offender's submissions on sentence [11]; AB 131 - 132.
[34] Offender's submissions on sentence [12]; AB 132 - 133.
[35] Offender's submissions on sentence [14]; AB 133 - 134.
[36] Offender's submissions on sentence; AB 149 - 151.
[50] State's written sentencing submissions [12], [16]; AB 138 - 139.
[51] State's written sentencing submissions [59], [61]; AB 146.
[52] State's written sentencing submissions [62]; AB 146.
[64] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[65] Ngo v The Queen [2017] WASCA 3 [36] ‑ [40].
[71] Baker v The State of Western Australia [2020] WASCA 117 [41].
[72] Cooper v The State of Western Australia [2020] WASCA 199 [150].
[79] See M Bagaric, T Alexander and R Edney, Sentencing in Australia (8th ed) Lawbook Co [350.1700].
[80] See Khoury v The Queen [2011] NSWCCA 118; (2011) 209 A Crim R 509 [71].
[81] Tepania v The Queen [2018] NSWCCA 247; (2018) 275 A Crim R 233 [113].
[83] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477.
[84] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [58].
[85] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [57].
[86] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
[87] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [70].
[90] Tan v The State of Western Australia [2019] WASCA 112 [50].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 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 a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a) the parity principle is based upon the norm of 'equality before the law' [28];
(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
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. See Lowe (617, 622); Postiglione (320).
(1997) 189 CLR 295
(2011) 244 CLR 462
(2013) 249 CLR 571
(2015) 256 CLR 47
(1984) 154 CLR 606
(1988) 164 CLR 465
(2011) 244 CLR 120
(2013) 249 CLR 600