The appellant was convicted on his pleas of guilty of two counts:
Attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA).
Possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act.
Those counts were counts 3 and 4 on the indictment. The other counts (counts 1 and 2) related to another offender. Count 3 related to [redacted] kg of an inert substance [redacted]. Count 4 related to [redacted] g of methylamphetamine that was found by police in the appellant's pocket on the same day. The appellant was sentenced to 6 years' imprisonment on count 3 and 12 months' imprisonment on count 4. The sentences were ordered to be served cumulatively, thus producing a total effective sentence of 7 years' imprisonment.
The appellant seeks leave to appeal against his sentence on the sole ground that it breaches the parity principle having regard to the sentences imposed on two purported co‑offenders. Though the ground does not specify, it appears to relate to both the individual sentence on count 3 and the total effective sentence. The appellant has also applied to adduce additional evidence on the appeal, being the written submissions on sentence made on behalf of one of the other offenders.
The appeal notice was filed approximately one month late. The delay is partially explained in an affidavit of the appellant. In any event, the delay is relatively short, and an extension of time is not opposed by the respondent. An extension of time should be granted.
The other two offenders mentioned in the ground of appeal will be referred to as X and Y. X, who was dealt with on a separate indictment, was sentenced to a total effective sentence of 8 years' imprisonment. Y, who pleaded guilty to count 1 on the indictment that also charged the appellant, was sentenced to 11 years' imprisonment.
The appellant, X and Y were each charged with offences relating to different quantities of drugs. X and Y's offending related to approximately [redacted] kg of methylamphetamine, being the total quantity [redacted]. Having regard to the quantity of drugs involved in X and Y's offending, and their more significant roles, the appellant contends that the differences between their sentences and his own do not fairly reflect the different levels of criminality. He claims that there is insufficient disparity in the sentences and that this has caused him to have a justifiable sense of grievance. A critical assumption in this argument is that, for the purposes of the parity principle, the appellant, X and Y are co‑offenders.
On a proper analysis of the facts, the contention that X was a co‑offender of the appellant cannot be sustained. There were two separate criminal enterprises. The first related to possession of the [redacted] kg of methylamphetamine and only involved X and Y. The second related to the attempt to possess the [redacted] kg of methylamphetamine and only involved Y and the appellant. Thus, the appellant and X were not involved in the same criminal enterprise. A comparison between the sentence imposed on the appellant and that imposed on X cannot be undertaken for the purposes of the parity principle. In any event, the sentence imposed on X was significantly reduced for totality reasons because he was already serving a sentence of imprisonment for other unrelated matters. X also received a larger discount for pleading guilty.
As regards Y, her offending encompassed the attempt to possess the [redacted] kg of methylamphetamine, although she was also involved in the possession of the larger quantity of [redacted] kg of methylamphetamine. The appellant and Y were involved in the same criminal enterprise, but only in relation to the attempt to possess [redacted] kg of methylamphetamine. They were co‑offenders to that limited extent. In those circumstances, the parity principle can be applied in respect of Y. However, the sentence of 11 years' imprisonment imposed on Y properly reflected the difference between her criminality and that of the appellant, as well as their different personal circumstances. There is no basis for the appellant to have a justifiable sense of grievance having regard to the sentence imposed on Y.
For the more detailed reasons that follow, leave to appeal should be granted, and the appeal dismissed.
[2]
The following facts cover the criminal conduct of X and Y, as well as that of the appellant.
In [redacted], police officers commenced an investigation into the suspected criminal activities of X.[1] During those investigations police officers lawfully intercepted telephone communications between X, Y and others. Police also obtained photographic evidence, telephone records, trip data and CCTV footage. This revealed the existence of a drug trafficking business enterprise, in which both X and Y were involved.[2]
On [redacted], between approximately 9.45 am and 10.15 am, Y leased a storage unit [redacted] for one month.[3] The storage unit premises were at [redacted]. The complex was multi‑level with the relevant storage unit being on the [redacted] level. The unit was accessible from the ground level by a lift.[4]
On the same day, at approximately 10.30 am, Y was joined by X at the storage units.[5] X arrived in a separate vehicle. While Y entered the office of the storage unit complex, X removed a suitcase and a black tub from the boot of his vehicle. He then retrieved a trolley and brought it back to his vehicle. He placed the suitcase and black tub on the trolley and pushed the trolley with the items on it to the lift. Y and X then entered the lift together. About 12 minutes later, Y returned to her car and drove off. About five minutes later, X returned to his car and drove off.[6]
Later that afternoon, at about 4.30 pm, X returned to the storage units and used the lift.[7] He returned to his car about 80 minutes later pulling a suitcase. X placed this suitcase into his vehicle and drove off.[8]
On [redacted], at approximately 9.30 pm, Y and X attended the storage units in a vehicle driven by Y.[9] X got out of the vehicle, collected a basket and Y joined him briefly near the lifts on the ground floor. X then entered the lift and took it to level [redacted] where the relevant storage unit was located. Y returned to the vehicle and stayed there until X returned a short time later holding the basket. Y then drove the vehicle away with X in the front passenger seat holding the basket.[10]
On [redacted], at about 12.10 am, Y and X attended the storage units in a vehicle driven by X.[11] X got out of the vehicle and entered the lift on the ground floor. Y remained in the vehicle. About five minutes later, X entered the lift on level [redacted] where the storage unit was located. At that time, he was holding a shopping bag. X returned and got into the vehicle and Y drove away at approximately 12.20 am.[12]
Later that day, at approximately 11.35 am, police executed a search warrant on the storage unit.[13] The search revealed that the only items in the unit were a trolley on which was a large plastic tub with a lid. Inside that tub was a black bag and inside the black bag were [redacted] packages, each covered in what appeared to be [redacted]. Police seized the [redacted] packages as well as some white crystalline powder that was loose at the bottom of the black container. Analysis of those packages revealed that they were each approximately [redacted] kg in weight ranging from [redacted]. Each contained methylamphetamine with a purity ranging between 69% ‑ 82%. The loose white crystalline powder consisted of [redacted] g of methylamphetamine of 82% purity. The total amount of methylamphetamine was [redacted] kg.[14]
The police constructed substitute packages each containing an inert substance.[15] They then returned those reconstructed packages to the storage unit. They also installed a surveillance device to record activity at the storage unit.[16]
On [redacted], at approximately 2.20 pm, X arrived at the storage unit as a passenger in a vehicle driven by Y.[17] X collected a trolley from the trolley area on the ground floor and returned to the vehicle. A black plastic tub was put on the trolley which X pushed to the lifts on the ground floor. He took the lift to level [redacted] and placed the large black plastic tub in the storage unit. He then left the unit about 4 minutes later pushing an empty trolley. He returned to the vehicle and entered the front passenger seat. Y then drove the vehicle away from the storage unit.
Later the same day at approximately 9.40 pm, police executed a further search warrant on the storage unit.[18] Police saw that the first black storage tub was still on the trolley in the storage unit. A search of that tub revealed that all [redacted] packages containing the inert substance were still in the tub. There was, however, a second black storage tub now located on the trolley. In that second tub was [redacted].[19]
Analysis of the [redacted] packages revealed each was approximately [redacted] kg in weight, ranging from [redacted], and each contained methylamphetamine with purities ranging between 74% ‑ 82%. The total amount of methylamphetamine in the [redacted] packages was [redacted] kg. Police seized the [redacted] packages containing methylamphetamine and reconstructed substitute packages each containing an inert substance. They then returned those [redacted] reconstructed packages to [redacted] in the storage unit.[20]
The following day, [redacted], at approximately 11.00 am, X entered the storage unit and left about 5 minutes later.[21]
[Redacted]. Y and the appellant were both arrested and police conducted a roadside search of the vehicle and its contents.[22]
Police located a [redacted] package in the appellant's backpack.[23] In the front pocket of the appellant's jeans, police also located [redacted] g of methylamphetamine at 72% purity in a medium sized clipseal bag. They also found a further [redacted] g of methylamphetamine in the appellant's backpack. These latter drugs were in six separate clipseal bags, weighing [redacted] g, [redacted] g, [redacted] g, [redacted] g, [redacted] g, and [redacted] g respectively. The appellant was also found in possession of $240 in cash, two sets of electronic scales, and various sized clipseal bags.[24]
The appellant spoke to police at the roadside search.[25] [Redacted]
The appellant told police that the two digital scales in his backpack were used by him to weigh methylamphetamine for his personal use so that he did not overdose when he injected it.[26] As regards the various clipseal bags, the appellant said these were used to mix up the methylamphetamine with water in preparation for his use of it. He said that he had used a couple of points of methylamphetamine a day, up to about a gram, and that he would pay for it in any way that he could. He said that he had been using methylamphetamine for 'a fair while'. He said that he was 'on the dole' at the time and that he would do 'a bit of painting work for a mate' and also engage in online gambling.[27]
[Redacted]
In relation to the bag of [redacted] g of methylamphetamine located in his front pocket, the appellant [redacted].[28] He then changed his story and told the police that the [redacted] g was given to him by a man whose name he did not know and for which he paid no money. He said that the man had given it to him to on sell to someone else. [Redacted]. He said that he was expecting to receive some methylamphetamine in exchange for doing this transaction. He claimed that he had never met the man before and had never done anything like this for the man previously.[29]
In relation to the [redacted] g of methylamphetamine in clipseal bags located in his backpack, the appellant told police that he had purchased those drugs from a man the previous evening.[30] The appellant said that [redacted].[31]
In relation to the $240 in cash, the appellant told police that he could not remember where it came from, but it might have been cash that he withdrew from his bank account. He said that the cash was in his possession for about a day.[32]
Y was also spoken to by the police at the roadside.[33] She also elected to participate in an electronically recorded interview. In summary, Y told the police that she had met X at her friend's house on [redacted]. She thought that X was using her friend's home as a safe house. She said that her friend pulled out of helping X and that she then asked X what he wanted. He said that he wanted to put 'a bit of stuff' in a storage unit.[34] She agreed to rent the storage unit so that X would leave her friend alone. She said that she believed that X wanted the unit to store stolen goods, not methylamphetamine.[35]
Y agreed that she had rented the storage unit for one month in her name and that X had paid for the rental.[36] To get into the storage unit, she said she had set up a code which was [redacted]. She agreed that she had taken X to the storage unit on [redacted]. She said that X arrived with a suitcase and opened it up in the storage unit and told her that it was [redacted] kg of '[redacted]'.[37]
Y said that on another occasion she had seen X with approximately $[redacted] in cash.[38] She said that X would come to her friend's house with hundreds of thousands of dollars daily. X would borrow her and her friend's cars.[39] She said that on the occasions that she had taken X to the storage unit she had not gone into the unit but had stayed in the car and not asked any questions. She had also been driving X around to a few places including locations where she understood that he was burying and retrieving things.[40]
Y said that she had an argument with X about the drugs in the storage unit and told him that they needed to be moved.[41] X decided that he would not remove the drugs, instead he wanted the unit for another month. [Redacted]
X was arrested at a different location at about 9.55 pm on the same evening, that is, [redacted].[42]
The value of the nearly [redacted] kg of methylamphetamine was between $4.6 million, if sold by the kilogram, and $21 million, if sold by the point (0.1 g). The value of the drugs the subject of count 3, that is the approximately [redacted] kg of methylamphetamine that Y and the appellant attempted to possess, was approximately $250,000, if sold by kilogram, and approximately $1.1 million, if sold by the point. The value of the [redacted] g of methylamphetamine found in the appellant's pocket was approximately $11,000, if sold by the ounce, and $32,000, if sold by the point.[43]
[3]
These events resulted in two indictments; one charging X only, and one charging Y and the appellant.
The indictment relating to Y and the appellant contained four counts. Count 1 charged Y with possession of the [redacted] kg of methylamphetamine found at the storage unit on [redacted].[44] Count 2 charged Y with possession of the [redacted] kg of methylamphetamine found at the storage unit on [redacted].[45] Originally, count 3 jointly charged the appellant and Y with attempting to possess the [redacted] kg quantity of methylamphetamine.[46] Count 4 charged the appellant with possession of the [redacted] g of methylamphetamine found in his pocket when he was arrested.
The appellant pleaded guilty to counts 3 and 4 on [redacted].[47] That was shortly prior to the joint trial of the appellant and Y, which was due to commence on [redacted].
Y proceeded to trial, however on the second day ([redacted]) a negotiated plea agreement was reached with the prosecution.[48] Pursuant to that agreement, count 1 was amended so that it covered the whole of Y's conduct covered by original counts 1 to 3. This was achieved by amending the date of count 1 to cover the period between [redacted]. Y entered a plea of guilty to the amended count 1 and the prosecution accepted that plea in discharge of the indictment as against Y.[49] Counts 2 and 3 were later formally discontinued as against Y.[50] The facts alleged against Y did not substantially change.
The effect of this was that the appellant and Y were not convicted of any common offence. However, count 1 against Y was amended to encompass the criminality that was formerly covered by count 3.
X was charged on a separate indictment with five offences.[51] Count 1 charged X with possession of the [redacted] kg of methylamphetamine found at the storage unit on [redacted]. Count 2 charged X with possession of the [redacted] kg of methylamphetamine found at the storage unit on [redacted]. Count 3 charged X with possession of [redacted] g of methylamphetamine found at the time of his arrest on [redacted]. Count 4 charged X with possession of $[redacted] in cash that was reasonably suspected to have been unlawfully obtained. Count 5 charged X with possession of [redacted] g of methylamphetamine found on [redacted] following his arrest.[52]
X pleaded guilty to all counts on [redacted],[53] and was sentenced on [redacted] to a total effective sentence of 8 years' imprisonment (reduced from 10 years' imprisonment for totality reasons).[54] At the time of his sentencing X was a serving prisoner. The term of 8 years' imprisonment was ordered to be served cumulatively on an existing term of 6 years' imprisonment with the result that X was to serve an overall total effective sentence of 14 years' imprisonment.
[4]
The appellant and Y were sentenced on [redacted].[55]
In sentencing Y, the sentencing judge noted that when Y leased the storage unit, she knew that X was going to use it for something illegal but did not know that it was going to be used to store large quantities of methylamphetamine.[56] However, on [redacted] X told Y that he was storing large quantities of methylamphetamine at the storage unit, and she continued to hire the unit with that knowledge. Her Honour said that Y's conduct also included the assistance that Y provided each time she attended at the storage unit in company with X when he delivered or collected drugs.[57] [Redacted]
The sentencing judge noted that the State had accepted that Y was 'not the principal offender'; rather, X was the principal offender and that Y had aided him in committing his offence.[58] Her Honour said that that was not to suggest that Y's offending was not serious. Her Honour said that Y had facilitated the large‑scale warehousing of drugs in readiness for distribution into the community. That distribution would have occurred but for the intervention of the police. Y had allowed her name and personal details to be associated with the warehousing of the drugs and this had allowed X an opportunity to plausibly deny any involvement.[59]
[Redacted]
In relation to the appellant, the sentencing judge described his role in respect of counts 3 and 4 in the following terms:[60]
[5]
You, [the appellant], in relation to count 3, will be sentenced on the basis that you took possession of that [redacted] kilogram parcel at the request of [Y] to give it back to her with the expectation that it contained methylamphetamine, and that you would receive some of the methylamphetamine for your own use.
You, [the appellant], in relation to count 4, will be sentenced on the basis that you had the methylamphetamine, that is the [redacted] grams, in your possession, to deliver ·to another person at the request of [X], and that doing such activity would cut out partly or entirely the drug debt that you owed to him.
[6]
The sentencing judge described the seriousness of Y's offending in the following terms:[61]
[7]
For you, [Y], such matters include your role in this offending which I canvassed earlier in my remarks. Of course, your involvement was not fleeting. Your involvement was over the course of about 10 days.
It not only involved you continuing to lease the storage unit in the full knowledge that it stored a very large quantity of drugs, but you also ferried [X] to and from the storage unit on a number of occasions over that 10‑day period in the full knowledge that he was moving drugs to and from that location.
In my view, your offending is far from the low end of offending of this kind. You were not a courier or intermediary. You are placed in the chain of offending where you have warehoused these drugs for further distribution into the community.
Your motive for committing this offence was for financial gain in the sense that you had an expectation that you would receive drugs in return for your assistance. The quantity of drugs involved in your offending was in the order of [approximately] [redacted] kilograms. On any view of it, that is a very large quantity of drugs you were warehousing in the knowledge that they would be distributed into the community to cause the destruction in our community that you are well aware.
The degree of purity of the methylamphetamine was around 80 per cent, that being of such purity that it could easily have been diluted a number of times for sale in the community. The value of the drugs that you were warehousing was significant, and the value of the [redacted] kilogram of drugs you were to [on sell] was also significant.
[8]
The sentencing judge described the seriousness of the appellant's offending in the following terms:[62]
[9]
For you, [the appellant], such matters include your role in this offending which I have canvassed earlier in my remarks. Your offending in relation to the [redacted] kilogram package which you believed to be methylamphetamine in count 3 is at the lower end of the range of offending of this kind. [Redacted] the parcel at the request of [Y], but knowing that it was drugs for which you were going to get some to feed your own drug habit, and you had an appreciation, of course, that some of those drugs would be distributed in the community.
In relation to your offending in count 4, it is accepted that you were taking the drugs from one place to another to cut out a drug debt you owed to [X]. It is difficult to accept that this is at the absolute lowest end of offending of this kind because this is exactly the conduct that is critical to the drug business, that is, getting those that are drug addicts, that have drug debts to engage in delivering drugs to cut out drug debts, and it just continues on. It's the vicious cycle.
The motive for committing these offences, for committing count 3, was to help out [Y], but appreciating that you were going to get some drugs out of it, and your motive for committing count 4 was to take the risk in getting the drugs from one place to another to cut out a drug debt. The quantity of drugs in count 3 was [redacted] kilogram of methylamphetamine. That is a serious amount of drugs, and in count 4 was [redacted] grams of methylamphetamine.
The degree of purity of both lots of methylamphetamine was such that they could have been diluted further for sale. The value of both lots of drugs was significant, that is, the [redacted] kilogram of methylamphetamine was valued at approximately 1.1 million and the [redacted] grams of methylamphetamine was valued at approximately 32,000 if they were both sold in points. Your offending was not a one‑off but, rather, a piece of ongoing drug offending by you.
[10]
The sentencing judge was alive to the issue of parity, at least insofar as it related to Y and X.[63] Her Honour considered whether the sentence of 8 years' imprisonment imposed on X, for the equivalent offence to that of Y, justified a lower starting point for Y. She noted that X's sentence had been significantly reduced for totality reasons because it was made cumulative on an existing sentence (resulting in a total effective sentence for X of 14 years' imprisonment). It is unnecessary to explore further her Honour's reasons for concluding that X's sentence was of limited utility in determining the appropriate sentence for Y, given that this appeal does not relate to Y.
The sentencing judge made no express reference to parity as being a consideration as regards the appellant. However, during sentencing submissions, her Honour commented that she did not think that parity applied in respect of the appellant.[64]
The sentencing judge imposed a sentence of 11 years' imprisonment on Y for count 1.[65]
The appellant was sentenced to 6 years' imprisonment on count 3 and 3 year's imprisonment on count 4.[66] The sentence on count 4 was reduced to 1 years' imprisonment for totality reasons. The sentences on counts 3 and 4 were ordered to be served cumulatively, resulting in a total effective sentence of 7 years' imprisonment.
Both Y and the appellant were made eligible for parole.[67]
[11]
The appellant was 32 years of age at the time of the offences and 34 years of age when he came to be sentenced. He was born in [redacted] and is the eldest of three children born to his parents' union. His parents separated when he was 11 years of age.
The appellant reported that his father was violent towards his mother and had a gambling problem, which led to financial difficulties for the family.[68] His parents often argued, and his mother struggled with depression and anxiety. His parents had a highly acrimonious relationship until the appellant was in his teenage years, when they became more amicable. After his parents separated, the appellant and his siblings lived between the parental homes on alternate weeks until the appellant was 17 years of age. He found this regular relocation unsettling and disliked the instability. When he turned 17 years old, he commenced living with his mother permanently.[69]
In addition to his full siblings, the appellant has two half‑siblings on his father's side from his father's current relationship, and an older half‑sibling on his mother's side.[70] The appellant feels that his father favours his new family over the family he had with the appellant's mother. The appellant has always had a close relationship with his mother, sister, and brother.
The appellant suffered a traumatic event when he was 12 years of age, which was canvassed in a psychological report. He suffers unresolved trauma as a result of that event. After this event, his school grades deteriorated, and he became involved with antisocial peers. He also began using illicit substances and lost positive direction in his life.[71]
As to education, the appellant attended primary and high school in [redacted] until year 10.[72] After leaving school, he pursued a trade in concreting and frame working and subsequently completed an apprenticeship. He was then employed in [redacted] before moving to Western Australia in or about 2011 to obtain work in the mining industry. He found work predominantly as a concreter in the construction of bridges, mining camps, tilt panels, pipelines, and pumpstations. He had a relatively good employment history until about 2016, when his methylamphetamine addiction got out of control.[73]
The appellant has had two significant relationships in his life.[74] He was in a three‑year relationship from 21 years of age with an older woman. The relationship was marred by substance abuse and was otherwise an unhealthy one. The appellant has a child from that relationship who is now 11 years of age. He separated from the child's mother when the child was 2 years of age, and he has very limited contact with the child. The appellant was then in a relationship from 24 ‑ 34 years of age. That relationship was also marred by substance abuse.[75]
The appellant does not have any major physical health issues.[76] As to his mental health, he has suffered from anxiety and depression from about 11 years of age due to the acrimony and instability of his parents' separation, as well as feeling neglected by his father. This anxiety and depression was exacerbated by the trauma he suffered as a 12‑year‑old, as well as his intimate relationship problems, lack of contact with his child, imprisonment, and lack of positive direction. He has expressed shame and embarrassment about some of his life decisions and behaviour.[77]
The appellant has used prescription medication sporadically for his anxiety and depression, but with little reported benefit.[78] He was not medicated at the time of the offending. He had not engaged in counselling in order to address the unresolved trauma in his life. The psychologist who prepared a report expressed the opinion that the appellant may have antisocial personality disorder with depressive personality traits. He is also likely to have mild anxiety, chronic depression, and a significant dependence on alcohol and illicit substances. He does not reach levels sufficient to support a diagnosis of posttraumatic stress disorder.
The appellant has a significant history of drug use, especially cannabis, which commenced when he was 15 years of age.[79] He then progressed to using methylamphetamine on the weekends until the age of 18. He became a regular user of methylamphetamine at the age of 24 years, during his time off when he was working on a fly‑in/fly‑out basis. In the immediate lead up to the current offending the appellant was a daily user of methylamphetamine. He has also used other drugs such as cocaine, ecstasy, and hallucinogenic drugs. His use of alcohol has also been significant since the age of 15. He has used illicit substances predominantly to self‑soothe, and to escape and distract from negative feelings and problems in his life. He also developed a gambling addiction between the ages of 25 ‑ 28.[80]
The appellant has a lengthy criminal history.[81] In June 2018, he committed numerous offences, including firearm and weapon offences, possession of stolen property, possession of drug paraphernalia, possession of methylamphetamine, and possession of methylamphetamine with intent to sell or supply.[82] He was sentenced to terms of imprisonment for the drug offences. In September 2018, he committed further drug offences, including possession of drug paraphernalia, selling methylamphetamine, as well as possessing methylamphetamine with intent to sell or supply.[83] In May 2020, the appellant was sentenced for a number of firearm and drug offences, including two offences of possession of methylamphetamine with intent to sell or supply it to another, for which he received a total effective sentence of 3 years' imprisonment.[84] On 5 August 2020, he was released from prison on parole. He initially complied with the parole order, but then resumed using methylamphetamine and failed to attend supervision. He also committed offences in breach of his parole, including in July 2021, when he was found in possession of drug paraphernalia as well as carrying an article with intent to cause fear.[85] In August 2021, the appellant was found in possession of methylamphetamine as well as drug paraphernalia, for which he was fined. His parole was breached in 2021 and he was returned to prison. In January 2022, he committed offences of stealing property, possessing drug paraphernalia, and possessing methylamphetamine, for which he was again fined.[86] The current offences were committed in May 2022.
The sentencing judge noted that the appellant had a history of drug offending, including dealing in significant quantities of drugs, and offending whilst on bail.[87] He had been provided with numerous opportunities to stop offending but had continued, with the current offences being a significant elevation in that offending. The sentencing judge noted that whilst the appellant's criminal history did not aggravate the current offending, it revealed a disregard for the law and meant that personal deterrence and punishment assumed greater importance.[88]
As regards the appellant's pleas of guilty, those pleas were indicated at different times, and her Honour assessed the value of those pleas as being 7% for count 3 and 15% for count 4.[89]
As regards whether the appellant had shown genuine remorse, the sentencing judge took into account his pleas of guilty and his police interview.[90] She noted that in the interview, the appellant had sought to minimise his role in the distribution of drugs. Her Honour also referred to a letter from the appellant and said that she found it difficult to know the true extent of the remorse expressed in that letter. However, her Honour was prepared to give the appellant the benefit of the doubt and to accept that he was remorseful, though she could not determine to what degree. She said that any remorse was tempered by the appellant's self‑serving versions of events to the police and his late plea of guilty to count 3.[91]
The sentencing judge summarised the appellant's account of how he came to commit the offences in the following terms:[92]
[12]
Again, I consider why or how it is that a 32‑year‑old man, as you were then, would commit such offences. Your counsel tells me that - tells me that, at around the time of this current offending, you were effectively homeless. As at [redacted] you and [Y] had recommenced contact with each other, after having parted company some months earlier after the end of a brief intimate relationship. Two days before your offending, [Y] put you in contact with someone you could purchase drugs off for your own use.
You then purchased the drugs off [X], but you could not fully pay upfront for the drugs, and you accrued a debt. On the day of your offending, that is [redacted], you had asked [Y] to take you to [X's] place, which she did. It was at that time that [X] asked you to courier some methylamphetamine, [redacted], to another person, and then - and that would then pay the debt off you owed him.
Whilst at that address, [X], you - whilst at that address with [X], you, [the appellant], consumed methylamphetamine intravenously, and you were significantly intoxicated by the time you were on your way to deliver [redacted] of methylamphetamine. [Redacted]
[Y] did not tell you what was in the package, but you knew that any package was likely to contain illicit drugs, particularly methylamphetamine, although I'm told you had no idea about the amount. [Redacted]
At that time you appreciated that the package had some weight to it. Your intention at that time was to supply the package back to [Y], or to [Y] with no expectation that you would receive anything from it.
[13]
The sentencing judge referred to the appellant's references from his parents and friends, and also to his prospects of rehabilitation.[93] Her Honour noted that the appellant had reverted to drug use after previous sentences of imprisonment but had expressed a wish to undertake a drug rehabilitation program. She said that the appellant would need to address his addiction and the underlying causes of that addiction if he was to have a prospect of avoiding further offending.[94]
[14]
Y was 34 years of age at the time of the offence and 36 years of age when she came to be sentenced. She was born in Perth and is the eldest of two children born to her parent's union.[95] She reported a positive and stable upbringing, and she continues to enjoy close relationships with her family.
Y attended a primary school in metropolitan Perth and had no learning or behavioural difficulties.[96] She then attended high school where she faced severe physical and psychological bullying from year 8. As a result she transferred to another high school where the bullying continued throughout the rest of her high school years. This experience led her to become somewhat isolated. She is reported to have low self‑esteem, anxiety and depression. She has developed a strong aversion to confrontation. She left school three weeks before completing year 12.[97]
After leaving school Y completed a [redacted] and briefly worked at a [redacted].[98] She then worked in a department store and then a retail electrical store, where she became a team leader. From 2011 ‑ 2015 she worked [redacted] and then returned to employment in retail for about 12 months. She then did not work between 2016 ‑ 2020, which she has attributed to addiction to drugs. Whilst Y was on home detention bail from early February 2022 ‑ May 2024, Y was employed with a [redacted] in various positions commencing as a night packer and then moving to daytime work in administration. After being remanded in custody, Y requested work in the prison system and was assigned to the kitchen, progressing to a privilege unit within a short time.[99]
Y has had three significant intimate relationships.[100] The first was when she was 16 years of age. She married her partner when she was 21 years of age and they had one child together, a daughter who was [redacted] at the time of sentencing. She separated from her husband when she was 25 years of age due to his infidelity, which caused her to struggle emotionally. She briefly reconciled with her husband a few years later but there was ultimately another separation, and finally divorce when she was 29 years of age.[101]
Y then formed a second relationship of three years duration which ended in 2019.[102] This relationship was marred by mutual alcohol misuse and physical abuse towards Y and her daughter. More recently, Y commenced a relationship when she was 33 years old which initially lasted for five months. There was then a separation, followed by a short reunion, but ultimately this relationship came to an end when Y was aged 34.[103]
Y's [redacted] daughter is cared for by her (Y's) parents. Her daughter's father has unrestricted visitation rights.
Y reported no physical health issues. In terms of mental health, she has experienced recurring bouts of anxiety and depression which she attributes to being bullied at high school. Her unhealthy intimate relationships have contributed to those issues. Y returned to live with her parents while she was on home detention bail and this alleviated some of her anxiety. She was not medicated for any health issues at the time of sentencing.
In terms of substance abuse, Y reported that whilst at high school she began experimenting with dexamphetamines.[104] She turned to using methylamphetamine on her eighteenth birthday. Thereafter she used this drug on weekends or social occasions. By the time that she was about 25 years of age she found herself unable to function without drugs which included sporadic use of cannabis. From when she was about 31 years of age, she engaged in habitual intravenous daily use of methylamphetamine until she was arrested. She commenced using alcohol when she was 16 years of age and did so socially until the age of 23. At the time of her arrest her alcohol use was problematic and she was consuming two to three bottles of champagne daily, often commencing in the morning. She said that she now appreciated the negative impact that drugs and alcohol had had on her life and the lives of those around her, particularly her daughter. She reported being abstinent from illicit substances from the time of her arrest in May 2022. She said that being on home detention bail and then being remanded in prison had been the circuit breaker that she needed to get her life back on track. She claimed to have no interest in using illicit substances in the future.[105]
In or about 2020, when Y was approximately 32 or 33 years of age, she developed a gambling problem after she experienced some mood lift following a win with a friend.[106] This escalated into a daily addiction to gambling both at casinos and online. She reported that she sometimes gambled to support her drug habit and manage her mood, convinced that she would always win. She admitted to frequently seeking money, including from her parents, often with fabricated reasons to support her drug and gambling addictions. She reported that her last gambling episode was in May 2022 coinciding with her decision to quit drugs after her arrest in relation to the current offending.[107]
As regards her adult criminal history, Y has been convicted of offences of aggravated assault occasioning bodily harm, and breach of a violence restraining order, in relation to her ex‑husband. In December 2019, she was convicted of driving under the influence of alcohol, and in March 2020, with driving whilst under the influence of illicit drugs.[108] In June 2020, she committed two criminal damage offences, and a trespass offence. In December 2020, she was found in possession of methylamphetamine. In August 2021, she was again found in possession of methylamphetamine, as well as cannabis and drug paraphernalia. For those past offences she was either fined or dealt with by way of a community‑based order.[109]
As noted earlier, Y entered a plea of guilty to an amended count 1 on the indictment. The sentencing judge found that it was always open to Y to plead guilty to count 1, and that, accordingly, her guilty plea was very late. A discount of 5% was allowed for that plea.[110]
The sentencing judge found that, prior to being sentenced, Y had made important steps towards turning her life around, including by obtaining employment and remaining abstinent from illegal drugs, alcohol and gambling.[111] Her Honour found that Y had made good progress towards rehabilitation but had a long way to go.[112]
The appellant has a justifiable sense of grievance due to the insufficient disparity between his sentence and the sentences of co‑accused [Y] and [X].
[17]
The appellant contends that X and Y are his co‑offenders.[114] On that premise he submits that the parity principle applies. He submits that the criminality of X and Y was significantly greater than his, and that the disparities between their sentences and his are insufficient to reflect the extent of that differing criminality.[115]
As regards X, the appellant submits that it is not necessary for co‑offenders to know each other or to be working directly in concert with each other.[116] At the hearing of the appeal, counsel for the appellant submitted that, even though the attempt by the appellant and Y to possess the [redacted] kg of methylamphetamine did not involve X, there were other factors connecting the appellant and X. Counsel identified those factors as being, first, that on [redacted] the appellant had agreed to deliver the [redacted] of methylamphetamine for X. Secondly, that Y provided the appellant with transport on that day, and she had strong links with both X and the appellant.[117]
As regards Y, the appellant submits that she and the appellant were engaged in a common enterprise to possess the [redacted] kg of methylamphetamine.[118] However, counsel for the appellant accepted that Y was not convicted of a separate charge in respect of that quantity.[119] Y was convicted of a rolled‑up count that incorporated all of her conduct. This makes comparison between her sentence and that of the appellant difficult, though not impossible. Given that Y was also involved in possessing the larger quantity of [redacted] kg of methylamphetamine and that the attempt to obtain the [redacted] kg was her idea, the appellant submits that her criminality was significantly greater and should have resulted in a larger difference between her sentence and that of the appellant.
[18]
The respondent submits that whilst X and Y were engaged in the same criminal enterprise in relation to the [redacted] kg of methylamphetamine stored in the storage unit, and Y and the appellant were engaged in the same criminal enterprise in relation to the [redacted] kg package [redacted], at no point were X and the appellant engaged in the same criminal enterprise.[120] The attempt [redacted] the [redacted] kg package occurred entirely independently of X.
The respondent submits that the appellant's explanation for the [redacted] g of methylamphetamine, namely that he was delivering it for X in order to discharge a drug debt, is of no consequence because X was not charged in relation to that quantity of drugs.[121] Nor can that connection create any common enterprise as regards the attempt to possess the [redacted] kg of methylamphetamine.
In relation to Y, the respondent submits that whilst Y and the appellant were engaged in the same criminal enterprise in relation to the [redacted] kg package, the appellant was convicted of attempting to possess it and Y was sentenced with possessing it [redacted].[122] As Y was not sentenced for her possession of the [redacted] kg separately from the remaining drugs, the parity principle had no application.
In the alternative, the respondent submits that even if the parity principle applies in respect of the appellant and Y, it was not infringed.[123] Y was sentenced to 11 years' imprisonment for her role in respect of the [redacted] kg amount. The appellant was sentenced to 6 years' imprisonment for the attempt to possess the [redacted] kg amount (count 3). The five‑year difference appropriately reflected Y's greater involvement with a much larger quantity of drugs and her lesser discount for pleading guilty.
[19]
The parity principle is an aspect of equal justice. Equal justice requires that like offenders should be treated alike but, if there are relevant differences, due allowances should be made for them. 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 parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability; the aggravating and mitigating factors that apply to each of them; and, their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters.[124]
An appellate court may interfere with a sentence on the ground of a marked and unjustifiable disparity, or on the ground of an absence of a marked or justifiable disparity, even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. Parity of sentencing does not, however, 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.[125]
An appellate court can refuse to intervene on the basis of the parity principle where disparity is justified by differences between co‑offenders. This may include 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.[126]
It has been recognised that the norm of equal justice may be engaged by a marked disparity in the respective sentences imposed on co‑offenders in relation to a single common offence, or in respect of the total effective 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'.[127]
The parity principle is not confined to offenders who are charged with the same offence in respect of the same criminal conduct. It may arise in respect of offenders who commit different offences in respect of the same criminal enterprise. In Green v The Queen, French CJ, Crennan and Kiefel JJ said:[128]
[20]
In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged. (footnotes omitted)
[21]
In Jimmy v The Queen,[129] Campbell JA noted that considerations of parity had been recognised as being difficult to apply where co‑offenders are charged with significantly different offences. His Honour then said that the parity principle had been applied in cases where multiple offenders had participated in a common criminal enterprise but not committed the same crime:[130]
[22]
[U]nequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime.
There are significant limitations, however, on reducing a sentence on the basis of that of a co‑offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:
[23]
It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: X v Howard; Wurramarba; X v Formosa.
If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: X v Gibson; X v Howard; X v Formosa.
It cannot overcome differences in sentence that arise from one of the co‑offenders having been given a sentence that is unjustifiably low: X v Armstrong; X v Diamond; X v Rexhaj; X v Ismunandar.
There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also X v Stanbouli ... However X v Nguyen stands as one example where that result arose.
[24]
It is apparent from Green and Jimmy that the parity principle is not confined to cases where co‑offenders are jointly charged, or charged with the same offences. The application of the parity principle is concerned with substance rather than form. Offenders who are part of the same criminal enterprise may rely on the parity principle because there is a meaningful connection between their offending. Participation in the same criminal enterprise creates a reasonable expectation that the sentences imposed on participants will bear some proportionality to each other. However, this should not operate to obscure the difference between the application of the parity principle and the more general principle of ensuring consistency in sentencing outcomes for unrelated offenders. Whilst the parity principle is concerned with actual outcomes and the avoidance of a justifiable sense of grievance in respect of co‑offenders, the more general principle is concerned with ensuring consistency in the application of sentencing principles.[131]
In Apkarian v The State of Western Australia,[132] this court cited Farrugia v The Queen,[133] in which the Victorian Court of Appeal referred to a common criminal enterprise for the purpose of the parity principle as involving 'a course of criminal activity usually encompassing multiple unlawful acts which may be of the same or a similar nature, but each of which is related to the same criminal purpose'.[134] However, in Farrugia, Redlich and Bongiorno JJA suggested that parity may apply in some cases that did not strictly involve a common criminal enterprise:[135]
[25]
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there [may] be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.
[26]
In Apkarian, it was determined that parity did not apply to offenders selling drugs out of the same house (on at least one occasion), as they were operating independently of each other and for their own benefit.[136] The fact that the offenders in that case knew each other and were connected by the house where one sale occurred was said to be an insufficient basis to establish the existence of a common criminal enterprise. Further, these facts, together with the fact that the two men were targets of the same police operation, were said to be insufficient to establish any other connection which required parity of outcome.[137]
[27]
The appellant's submissions are premised on the assumption that the parity principle applies as between all three offenders. The threshold question is whether the appellant, X and Y are co‑offenders for the purposes of the parity principle.
There was no suggestion that the appellant was involved in the criminal enterprise of X and Y to possess the [redacted] kg of methylamphetamine in the storage unit. Whilst the appellant did have an association with X in relation to drug dealing, that association did not include any involvement by the appellant in the [redacted] kg quantity of the drug. Equally, X had no involvement in the attempt by the appellant to obtain possession of the [redacted] kg amount on [redacted] at the behest of Y. Neither Y nor the appellant were acting with the authority or knowledge of X at that time. [Redacted]
In these circumstances, it could not be said that the appellant and X had the same criminal purpose. In effect, there were two distinct criminal enterprises, first, the criminal enterprise of X and Y to possess the [redacted] kg quantity of methylamphetamine; and, second, the criminal enterprise of the appellant and Y to attempt to possess the [redacted] kg quantity of methylamphetamine. [Redacted]
There was no criminal enterprise in common between the appellant and X so far as the [redacted] kg of methylamphetamine was concerned. Nor was there any other relevant nexus or connection that justified application of the parity principle. [Redacted]. The connection with X in relation to the delivery of the [redacted] g of methylamphetamine had nothing whatsoever to do with either the possession of the [redacted] kg by X, or the attempt to obtain the [redacted] kg by Y and the appellant.
Accordingly, the appellant and X were not co‑offenders for the purposes of the parity principle. The aspect of the ground relating to alleged disparity with the sentence of X must fail for this reason.
In relation to Y, the appellant and Y were engaged in the same criminal enterprise in respect of the [redacted] kg quantity. The appellant was convicted of attempting to possess that quantity. Y was not convicted of an equivalent offence. However, her actions in attempting to possess the [redacted] kg quantity were relied on as forming part of the criminal conduct comprising her possession of the [redacted] kg quantity. In those circumstances, a part of the criminal conduct in which Y was engaged was a criminal enterprise in which the appellant was also engaged. At least to this extent, the parity principle applies.
Any comparison between the sentences of Y and the appellant is complicated by the fact that there is no common offence. The common criminal enterprise only forms a part of Y's offending and no separate component of the sentence imposed on her can be attributed to that part. Y's criminal conduct was effectively rolled‑up into the single count to which she pleaded guilty. Her criminality extended beyond the conduct in which she engaged with the appellant. However, any assessment of her greater criminality cannot be confined to a simple comparison of the quantities of drugs involved.
Y was not treated as a principal offender in respect of the [redacted] kg quantity, rather her role was to provide assistance to X by leasing the storage unit and transporting X to the unit on several occasions. There was no suggestion that she was an owner of the drugs or stood to receive a share of any profits. She was relatively low in the hierarchy, though her role was nonetheless important. She pleaded guilty to a single charge of possession of the [redacted] kg quantity. That plea was entered part way through her trial.
The personal circumstances of the appellant and Y are largely comparable. Any differences effectively cancel each other out. The appellant was entitled to a greater discount for pleading guilty, but he had a more significant prior criminal record, which increased the importance of personal deterrence. Y's prospects of rehabilitation were better than those of the appellant.
It would be expected in these circumstances that Y would receive a higher sentence than the appellant to reflect her additional criminality. However, parity does not require mathematical precision. It has been recognised that the severity of a sentence increases at a greater rate as a sentence becomes longer. Nor is there a linear relationship between the quantities of drugs involved and the length of the sentence. Factors such as the role played by an offender may be more important than the quantity of drugs involved.
Y did in fact receive a higher sentence. Y was sentenced to 11 years' imprisonment in respect of count 1, which encompassed the activity involving the appellant. The appellant received a sentence of 6 years' imprisonment for count 3, which is the comparable offence. Taking into account the difference in their respective culpability and their personal circumstances, the disparity was not such as could reasonably engender a justifiable sense of grievance on the part of the appellant. Nor, once it is appreciated that there was a proper basis for cumulacy as to the sentence imposed on the appellant for the offending the subject of count 4, can the lack of disparity as to the total effective sentences reasonably engender a justifiable sense of grievance on the part of the appellant.
Whilst we would grant leave to appeal in respect of the ground, in our view it does not succeed.
[28]
An extension of time is granted.
The appellant's application in an appeal seeking leave to adduce additional evidence is granted.
Leave to appeal is granted.
The appeal is dismissed.
[29]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.