Criminal law and procedure - Appeal against sentence - Five counts of selling a prohibited drug and one count of possession of a prohibited drug with intent to sell or supply - Whether total period of imprisonment was manifestly excessive - Whether sentencing Judge failed to consider parity principle - Whether sentences should have been made concurrent - Approach to determining whether sentences should be made cumulative or concurrent - Turns on own facts

1 STEYTLER J: On 11 August 2003 the applicant pleaded guilty to three counts of selling a prohibited drug to another, two counts of selling methylamphetamine to another and one count of being in possession of methylamphetamine with intent to sell or supply. He was sentenced to a total of 5 years' imprisonment, with effect from 1 July 2003 (the date upon which he was taken into custody), and was declared to be eligible for parole on all counts. He applied for leave to appeal against the sentences imposed on him. At the conclusion of argument at the hearing of the application for leave to appeal we dismissed that application and said that we would later give our reasons for doing so. These are my reasons for joining in that decision.

2 The applicant was apprehended after an intense undercover police operation. The police obtained a telephone intercept warrant enabling them to intercept and record telephone conversations conducted by a person of interest to them, Shane Lehman, on his mobile telephone. By that means the police learned that Lehman was involved in the commercial distribution of prohibited drugs as a "street" dealer and that he acquired the drugs sold by him from the applicant.

3 So far as counts 1 and 2 on the indictment are concerned, Lehman was approached by a man named Sutcliffe who wanted six tablets (accepted to have been ecstasy or "MDMA" tablets) and a gram of methylamphetamine. On the following day the applicant supplied Lehman with the tablets. However, later that day, Lehman told the applicant that Sutcliffe was unhappy with the tablets supplied to him (these were "blue" tablets) and that he wanted tablets of a different kind. The applicant supplied him, later that day, with six tablets (also accepted to have been ecstasy tablets) described as "red apples".

4 As to count 3, on 3 February 2001 Lehman's sister asked him to get her three ecstasy tablets. Lehman contacted the applicant, who supplied him with the tablets.

5 Count 4 involved the sale of methylamphetamine. On the evening of 6 February 2001 an undercover police operative contacted Lehman and placed an order for 50 methylamphetamine tablets. Lehman approached the applicant who supplied him with the drugs. Lehman then sold the tablets to the undercover police operative for $1800. The 50 tablets were later weighed and analysed. They weighed 17.5 grams and had a purity of approximately 2 per cent.

6 Count 5 was the most serious offence charged. Once again, it involved a purchase by an undercover police operative. On this occasion he purchased from Lehman methylamphetamine weighing 29 grams with a purity of 11.2 per cent. The purchase price was $20,000. The methylamphetamine was supplied to Lehman by the applicant on 15 February 2001.

7 The offence the subject of count 6 arose out of the execution, by police, of a search warrant at the applicant's home in Como on 15 February 2001. There, they located 15 small "deal" bags on a coffee table in the lounge. These contained methylamphetamine weighing 2.68 grams with a purity of 3.7 per cent. The police also located a brown Billabong wallet containing a deal bag holding 0.11 grams of methylamphetamine with a purity of 3.1 per cent and a black plastic container containing two bags of amphetamine, the first containing a quantity of 3.1 grams with a purity of 5.1 per cent and the second containing 3.31 grams with a purity of 4.5 per cent.

8 Also located during the search were an MDMA test kit, electronic scales, an airmail envelope containing numerous small deal bags, a black bag containing deal bags, various containers of Glucodin and Epsom Salts, a tablet bottle containing 41 Ephedrine tablets, three Valium tablets and a note pad containing various handwritten calculations and initials.

9 When first interviewed by the police, the applicant admitted to knowing Lehman, but denied being involved in selling drugs to him. He said that the drugs found in his unit were for his own use. He denied selling or supplying drugs to anyone else. He claimed that the deal bags were for his coin collection, that the electronic scales were used for cooking, that the Glucodin was glucose for energy and that the Epsom Salts were for washing sores.

10 When his trial was imminent, the applicant reconsidered his position. On 5 August 2003, six days before his trial was due to commence, he indicated, for the first time, that he might plead guilty. He then did so, in the face of overwhelming evidence.

11 Lehman and another co-offender, Richard Roberts (who had also supplied drugs to Lehman), had by then been sentenced.

12 Roberts was sentenced by Fenbury DCJ on 21 February 2003. He had pleaded guilty to four counts involving the supply of methylamphetamine. The first of those involved the sale of 14.1 grams with a purity of 29 per cent, the second involved the supply of 22.9 grams with a purity of 22.9 per cent, the third involved the supply of 29 grams with a purity of 11.2 per cent and the fourth involved possession, with intent to sell or supply, of 8.33 grams with a purity of 21 per cent and .82 of a gram with a purity of 6.2 per cent. The offences were committed in January and February 2003. Roberts was then on bail in respect of two other drug offences committed by him in June 1999.

13 Fenbury DCJ found that Roberts had had access to significant quantities of methylamphetamine and that he had "played a role in the chain of distribution at a level significantly above the bottom". Roberts was then 23 years old and had a criminal record encompassing a number of minor drug offences, as well as some more serious offences involving the possession of amphetamine with intent to sell or supply. He was, at the time at which he was sentenced, already serving a sentence of 8 years' imprisonment. Fenbury DCJ said that a total sentence of 7 years' imprisonment, reduced to 6 years to take account of the pleas of guilty, would have been appropriate for the four drug offences committed by Roberts but, given that he was already serving a very lengthy sentence of imprisonment, totality considerations were such that a more appropriate sentence was one of 3 years' imprisonment, with eligibility for parole, to be served cumulatively upon that already being served by him. Because Roberts had already served a period of time in custody in respect of the matters for which he was then being sentenced, Fenbury DCJ reduced that period by a further period of 6 months, resulting in a period of 21/2 years' imprisonment on each offence, with each of those periods to be served concurrently with each other but cumulatively upon that already being served by Roberts.

14 Lehman was sentenced by French DCJ on 22 July 2003. He was then 28 years old. He, too, had pleaded guilty. He had a relatively lengthy criminal record encompassing mostly minor offences. He had not previously been imprisoned. The offences for which he was sentenced involved one count of offering to sell ecstasy to another, two counts of selling ecstasy to another and four counts of selling methylamphetamine to another. The weight and purity of the ecstasy was not known, but the counts involving methylamphetamine involved a total of 83.5 grams of that drug with a purity ranging between 2 per cent and 29 per cent. He was also then sentenced for an offence of burglary which had taken place in February 2001.

15 Lehman was described by French DCJ as having had a tragic childhood and adolescence, marked with a degree of physical abuse, and as having had a very good work record. He was married with three children. His wife had been ill and he had found it difficult to cope with the stress of his situation and the financial difficulties in which he found himself and this, it seems, led to his offending behaviour through his involvement with an organised crime group. Importantly, French DCJ was told that Lehman had provided a very significant level of co-operation to the authorities such that the Crown submitted that a sentencing discount of 50 to 60 per cent should be given in respect thereof. French DCJ also found that Lehman had shown a "significant and very real degree of remorse". Quite apart from his co-operation and remorse, the mitigating factors in his case, arising from the circumstances in which he had found himself, were described by her Honour as being "quite exceptional". She considered that an appropriate starting point would have been one of 7 years' imprisonment but that, given the various matters to which she referred, a total sentence of 3 years' imprisonment, suspended for a period of 2 years, was more appropriate, so far as the drug offences were concerned. She imposed a 12-month intensive supervision order with a programme requirement in respect of the burglary charge.

16 The sentencing Judge in the applicant's case (Hammond CJDC), although having been made aware of the sentences imposed in the case of each of Roberts and Lehman, did not refer to those sentences in the course of his sentencing remarks. His Honour restricted his remarks to the circumstances of the applicant's offending and to the applicant's antecedents.

17 As to the latter, the applicant did not have a very lengthy criminal record, although he had, in June 2001, been convicted of possession of amphetamines with intent to sell or supply, that offence having been committed whilst he was on bail in respect of the charges the subject of these proceedings. He had been sentenced to a period of 6 months' imprisonment suspended for 18 months and also to a fine of $1000 in respect of that offence.

18 The applicant had been an amphetamine user until the time at which the current charges were brought. He said, and Hammond CJDC appeared to accept, that he was remorseful for his offending and that he accepted full responsibility for his actions.

19 Hammond CJDC found, with good reason, that the applicant had been "a very active distributor of amphetamines within the community" and that it was:

"... impossible to come to any other conclusion, when looking at the various items of drug paraphernalia that were found in the ... [applicant's] residence at the time of the search ... than [that] the ... [applicant] was involved in dealing in drugs for commercial gain ...".

20 His Honour said, so far as each of the counts other than count 5 was concerned, that an appropriate sentence would have been one of 3 years' imprisonment but, in order to comply with the provisions of s 2(1) of Schedule 1 to the Sentencing Legislation Amendment and Repeal Act 2003 ("the transitional provisions"), he would reduce that term to a period of 2 years' imprisonment. As to count 5, his Honour said that a term of 41/2 years' imprisonment was appropriate but that, having regard for the transitional provisions, he would reduce that to a period of 3 years' imprisonment. Because of totality considerations, his Honour ordered that the five 2-year terms should be concurrent. However, he ordered that the sentence imposed in respect of count 5 should be cumulative upon the other terms referred to, giving rise to the total of 5 years' imprisonment. I have earlier said that that period of imprisonment was ordered to date from 1 July 2003 and that the applicant was declared to be eligible for parole on all sentences.

21 Hammond CJDC then went on to explain to the applicant that this meant that a term of 21/2 years' imprisonment would have to be served before he became eligible for parole.

22 There are four grounds of appeal. The first contends that the total period of 5 years' imprisonment was manifestly excessive. The second is that the sentencing Judge failed properly to consider the principle of parity having regard to the sentences imposed on Lehman and Roberts. The third is that the sentencing Judge misunderstood the transitional provisions in saying that the applicant would have to serve 21/2 years' imprisonment before being eligible for parole when, in truth, he would have to serve 3 years' imprisonment before being so eligible. The fourth is that the sentence imposed on count 5 should have been made concurrent with those imposed on the other counts, that count having formed part of the same set of transactions and there having been nothing to distinguish it from the other counts.

23 As to ground 1, there is no basis for the contention that a total period of 5 years' imprisonment was excessive in all of the circumstances of this case.

24 The maximum penalties prescribed for the offence of selling a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 and for that of possession of a prohibited drug with intent to sell or supply (contrary to s 6(1)(a) of that Act) is in each case imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000, or both: s 34(1)(a) of the Act. This Court has repeatedly said that offences involving amphetamines and ecstasy are at the higher end of the scale of seriousness in the hierarchy of crimes involving prohibited drugs: see, for example, R v Bellissimo (1996) 84 A Crim R 465 and R v Darwell (1997) 94 A Crim R 35. The sentencing Judge accurately characterised the applicant as an active distributor of drugs for commercial gain. So much is apparent from the offences themselves and from the drug paraphernalia found in the applicant's premises. In those circumstances, even taking into account the plea of guilty and the limited value of those few matters in the applicant's antecedents which were favourable to him, it cannot be said that the total sentence imposed was outside the exercise of a sound sentencing discretion (as to which see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672).

25 As to ground 2, it is important to bear in mind, when considering sentences imposed on co-offenders, that mere disparity is not of itself a sufficient ground for intervention. It must be such as to engender a justifiable sense of grievance on the part of the offender on whom the heavier sentence is imposed or, to put it differently, be such as to give the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610, per Gibbs CJ. Also, where there are relevant differences between co-offenders, due allowance must be made for them: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. In my opinion, given the very different circumstances as between the applicant, on the one hand, and each of Roberts and Lehman, on the other, there is nothing, in this case, which should give rise to any justifiable sense of grievance arising out of the disparity in the sentences imposed.

26 As I have already mentioned, Roberts (who had made an early plea of guilty) was already serving an 8-year sentence for drug offences and, were it not for that fact, would have been sentenced to a total term of 6 years' imprisonment. It was only for reasons of totality and because of time already spent in prison in respect of the offences for which he was then being sentenced by Fenbury DCJ that that total sentence was reduced to one of 21/2 years' imprisonment. I should add that each of the Crown and Roberts appealed against the sentence imposed, the Crown on the basis of leniency. Each appeal was dismissed (R v Roberts [2003] WASCA 203), but Wheeler J (with whom Murray and Templeman JJ were in agreement) said at [11]:

"The effective term imposed was significantly below terms commonly imposed for comparable offending. It would not have been surprising to see sentences of approximately 6 years imposed for each of the offences, and an overall sentence imposed, in recognition of the criminal enterprise in which the respondent was apparently engaged, of approximately 8 years' imprisonment in total."

27 As to Lehman, it is plain that he was lower in the criminal hierarchy than the applicant, Lehman having been, in effect, a dealer on behalf of the applicant. Even more importantly, as I have said, the sentencing Judge was heavily influenced, in his case, by the very substantial degree of co-operation provided by him to the authorities (a fact acknowledged by counsel for the applicant) and also by what she described as "quite exceptional" mitigating circumstances arising from his personal situation.

28 In these circumstances, which are, in my opinion, entirely adequate to explain the disparity in the sentencing of the three men, there is no substance to ground 2.

29 As to ground 3, Hammond CJDC was in error in informing the applicant that he would have to serve a term of 21/2 years' imprisonment, rather than 3 years' imprisonment, before being eligible for parole (see s 93(1)(b) of the Sentencing Act 1995). However, that was merely an error made in the course of explaining the effect of the sentence and not one made in the course of imposition of the sentence. Indeed, in Roberts, above, at [14], Wheeler J said that it has been doubted whether it is proper for courts in this State, which have no authority to set minimum terms, to mould head sentences with an eye to the length of the non-parole period laid down in s 93(1) of the Sentencing Act. Her Honour referred to a doubt expressed by Anderson J in that regard in Hintz v The Queen [2002] WASCA 38 at [15]. She went on to say (ibid):

"In my respectful view, that doubt is well-founded, and it is not appropriate for a sentencing Judge or an appeal court to mould a head sentence so that any particular length of non-parole period must be served."

30 It follows that there is no substance to ground 3.

31 Ground 4, as I have said, contends that the sentence imposed on count 5 should have been made concurrent with the sentences imposed on the other counts, that count having formed part of "the same set of transactions".

32 It is true that, where several offences arise out of the same transaction (and not, I should add, the same "set of transactions"), the sentences imposed for those offences are ordinarily made concurrent, that being described by Wallace J in R v Ruane (1979) 1 A Crim R 284 at 286 as a "good working rule" (see also R v Dorning (1981) 27 SASR 481 at 482; R v Hoad (1989) 42 A Crim R 312 at 315; Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93 and Johnson v The Queen [2004] HCA 15 at [4] and [5]). However, this is no more than a working rule and it may be departed from whenever that is appropriate. More importantly, for present purposes, the fact that offences are committed soon after one another does not make them part of the same transaction for this purpose and the offence the subject of count 5 was separate and distinct from any of the other offences. That being so, there was no reason to apply the "working rule" and the sentencing Judge made no error in choosing to make the sentence imposed on that count cumulative upon those imposed on the other counts in arriving at what he regarded as an appropriate total sentence of 5 years' imprisonment. Ground 4 accordingly fails.

33 It follows that there is, in my opinion, no substance to any of the grounds raised and it was for that reason that I considered that the application for leave to appeal should be dismissed.

34 EM HEENAN J: I have had the benefit of reading in draft the reasons for decision of Steytler J. I am in agreement with those reasons and they fully describe why I joined in the decision of the Court at the completion of the hearing to dismiss the appeal.

35 SIMMONDS J: I have had the opportunity of reading in draft the reasons to be published by Steytler J. I agree with those reasons and have nothing to add.