Krakouer v R [1999] WASCA 147

Sentencing - Principle of parity - Whether sentences imposed upon other offenders convicted in another State of different offences under a different statute were to be taken into account in relation to the sentence upon the appellant

Misuse of Drugs Act, s 6, s 33(1) and s 33(2)

Chen v R [1993] VicRp 64; (1993) 66 A Crim R 154

Duncan v R (1983) 47 ALR 746

Lowe v R [1984] HCA 46; (1984) 154 CLR 606

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

R v Calder, unreported; CCA SCt of WA; Library No 960534; 11 September 1996

R v Markovina, unreported; CCA SCt of WA; Library No 940671; 30 November 1994

R v Williams (1981) 5 A Crim R 81

Roeton v The Queen, unreported; CCA SCt of WA; Library No 990118; 16 March 1999

1 IPP J: I have read the reasons to be published by White J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 WHITE J: This is an application for leave to appeal against the sentence of 16 years' imprisonment, imposed upon the applicant following his conviction on a retrial on a charge pursuant to s 6 of the Misuse of Drugs Act of conspiring with one, Calder, to possess a quantity of methylamphetamine with intent to sell or supply to another, and the concurrent sentence of 8 years' imprisonment imposed upon him on a charge pursuant to s 6(1)(a) of that Act, again with Calder, of an attempt to possess a quantity of methylamphetamine with intent to sell or supply to another. The applicant was convicted by the verdicts of a jury following a trial in which he had pleaded not guilty.

3 This was the second trial that had been held in relation to these charges. The first trial, before Gunning J, who imposed the aforesaid sentences, was the subject of an appeal to this Court against both conviction and sentence. That appeal failed, and the applicant applied to the High Court for special leave to appeal against both conviction and sentence. The High Court granted special leave to appeal against conviction, but did not deal with the application for special leave to appeal against sentence. The appeal against conviction was allowed and a new trial ordered. The second trial was held as soon as practicable thereafter, the applicant being released on bail pending the hearing. At the retrial, the applicant again pleaded not guilty and he was again convicted by the verdict of a jury and sentenced to the same terms of imprisonment as had been imposed at the conclusion of the first trial.

4 The applicant now seeks to appeal on six grounds, namely:

"1. The learned trial Judge erred by failing to take into account in mitigation of sentence the fact that the Applicant was tried twice.

2. The learned trial Judge erred by failing to take into account in mitigation of sentence the delay between the commission of the offences and the sentencing of the Applicant.

3. The learned trial Judge erred by failing to apply the principle of parity in sentencing to the sentence he imposed upon the Applicant.

4. The sentence imposed by the learned trial Judge is impermissibly disparate from the sentence imposed by the County Court of Victoria on the Applicant's co-conspirator Ronald Foster.

5. The Applicant has a justifiable sense of grievance warranting the intervention of the court as a result of the sentence imposed on John Higgs by the County Court of Victoria on the 11 March 1999.

6. In all the circumstances the sentence is manifestly excessive."

5 The applicant pleaded not guilty at both trials and was convicted at the conclusion of each trial. In respect of the first trial, the applicant appealed unsuccessfully to this Court in respect of both his conviction and the sentence imposed upon him, and successfully to the High Court in relation to his conviction. The High Court did not grant special leave to appeal against sentence and, I am informed from the Bar Table, the issue of the sentence was not canvassed in the High Court. The second trial was the result of that successful appeal by the applicant to the High Court. The applicant had spent some time in custody in respect of the first trial following his arrest, and, pending the second trial, he was released on bail. The time spent by him in custody was taken into account by the learned sentencing Judge following the second trial.

6 Counsel for the applicant was not able to point to any authority in support of his submission that the fact that the applicant had suffered the hardship of undergoing two trials should result in a reduction of his sentence. The only relevant principle established by authority seems to be that, in such circumstances, the sentence imposed upon a prisoner following his conviction on a retrial should not exceed that imposed upon him at the conclusion of the first trial. The applicant was found guilty when his plea was not guilty on both occasions. The fact that there were two trials could, no doubt, have been avoided had he pleaded guilty on the first occasion. He was, of course, perfectly entitled to plead not guilty, and his having exercised his right to do so could not in any way be regarded as an aggravating feature in relation to sentence. However, I am not persuaded that there is substance in the submission that his undergoing two trials is a mitigatory factor which should result in his receiving a lesser sentence on the second occasion. I would not uphold this ground of appeal.

7 The delay between the commission of the offences and the date on which the applicant was sentenced on the second occasion was caused by the circumstances, which I have outlined in relation to the first ground of appeal above. The delay was not the fault of either the prosecution or the applicant, but was an inevitable consequence of the appeals to this Court and to the High Court and the necessity to arrange the hearing of the second trial. In these circumstances, that delay was not a matter which should have influenced the learned sentencing Judge in assessing an appropriate sentence.

8 It seems that the applicant and his co-offender, Calder, obtained the methylamphetamine the subject of the first count from a criminal organisation located in Victoria, the "master mind" of which was one Higgs. One Foster and one McLennan, who acted, played a lesser role in the organisation, it would seem, on the instructions of Higgs.

9 None of those persons, namely Higgs, Foster or McLennan, was charged in this State with the offences committed by the applicant and by Calder. However, they were charged in the State of Victoria with certain offences under the Victorian legislation.

1. 2 years and 3 months' imprisonment for the offence of trafficking in a drug of dependence;

2. 20 months' imprisonment for the offence of aiding and abetting in trafficking in a drug of dependence;

3. 3 months' imprisonment for the offence of possession of a drug of dependence.

Six months of the sentence for aiding and abetting was ordered to be served cumulatively and the sentences were otherwise ordered to be served concurrently and 21 months of the total sentences were suspended.

11 Higgs was sentenced to 6 years' imprisonment for the offence of conspiring to traffick (by manufacture) in a drug of dependence, namely methylamphetamine, with a minimum of 4 years' imprisonment before being eligible for parole.

12 It is to be noted that the maximum penalty under the Victorian Act for the relevant offence by Higgs was 15 years' imprisonment.

13 Counsel for the applicant argued that those sentences should have been taken into account by the learned sentencing Judge in the application of the principle of parity in sentencing. In support of that submission, counsel referred to the judgment of Gaudron J in Siganto v The Queen (1998) 73 ALJR 162, at 170, where her Honour said:

"The principle invoked by the appellant in ground 1(c) of his amended grounds of appeal to the Court of Criminal Appeal and in ground 2 of his Notice of Appeal to this Court is the principle of parity or consistency in sentencing. The principle most commonly falls for consideration in the case of co-offenders.

However, it is not restricted to cases of that kind. A contention that a sentence is manifestly excessive or manifestly inadequate is a contention of disparity or inconsistency measured over the range of sentences imposed on those convicted of a particular offence. And to say that a particular sentence is 'within range' is simply to say that there is no disparity or inconsistency of that kind.

As Mason J pointed out in Lowe v The Queen, the notion of parity in sentencing as 'a matter of abiding importance to the administration of justice and to the community'. His Honour explained its importance in these terms:

'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.'

Once it is appreciated that the principle of parity in sentencing is concerned with consistency in punishment, it is apparent that all components of a sentence must be taken into account to determine whether the principle has been violated, including the maximum and minimum periods of actual incarceration. That is so whether the question is that of parity between co-offenders or parity across the range of those convicted of the offence in question." (emphasis added)

14 I have emphasised two phrases in the passage quoted above in order to point up the significant feature that her Honour was directing her remarks to the cases of co-offenders in the same offence and to others convicted of the same kind of offence. In the latter case, her Honour was directing attention to the range of sentences imposed for such an offence rather than to the specific sentence imposed upon a co-offender of the prisoner to be sentenced.

15 Foster and Higgs were sentenced for different offences, being contraventions of a different Act. Accordingly, they were not sentenced as co-offenders with the applicant, or for an offence of the kind in respect of which the applicant was sentenced.

16 In Thorp v The Queen, unreported; CCA SCt of WA; Library No 970584; 5 November 1997, Ipp J said, at 9 - 10:

"I turn now to the argument based on the parity principle, directed as it was to the non-parole period (and not to the head sentence). That such an argument is open is established by Postiglione v The Queen.

The argument advanced on the applicant's behalf was substantially based on the non-parole periods imposed on other offenders who were convicted of offences relating to the fourth importation involving the 10,970 ecstasy tablets. However, some reliance was also sought to be placed on the fact that Herwig and Mohr were not charged with any offence, and that Tan's conviction was quashed on appeal by this Court.

I consider that the omission to charge Herwig and Mohr is irrelevant to the sentence imposed on the applicant. As is explained by Dawson and Gaudron JJ in Postiglione v The Queen at 878, the parity principle concerns due proportion between sentences for the same offence: 'that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality'. See also McHugh J at 882, Gummow J at 889-891, Kirby J at 897-901 and Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 generally. It is plain from these authorities that the parity principle applies to differences between sentences which are imposed. It has no application to the situation which may occur where not all the offenders involved in a particular crime are charged with offences arising therefrom. The reason for this is self-evident. There could be many reasons for an administrative decision being taken not to prosecute a particular participant. For example, it might be that one of the persons so involved might have left the country and be beyond the reach of the police, it might be that such a person might have co-operated with the prosecution to such an extent that an administrative decision is taken not to charge him, or it might be that the person is not capable of being charged through reasons of ill health. It would be contrary to the due administration of justice if, in such circumstances, others who are convicted of offences stemming from the same or related criminal conduct were to receive lesser sentences simply because there was an omission to bring to justice those not charged."

17 The applicant's co-offender, Calder, had pleaded guilty to the same charges and was sentenced to 12 years' imprisonment, allowance having been made for his plea of guilty. When the applicant came to be sentenced following the first trial, the learned sentencing Judge was aware of the sentence which had been imposed on Calder. The sentence of 16 years' imprisonment imposed upon the applicant after trial is commensurate with the sentence imposed on Calder. An allowance or discount of 25 per cent for a plea of guilty would have the effect of reducing a sentence of 16 years' imprisonment to one of 12 years' imprisonment, and would have fallen within the usual range of, and such an allowance or discount for, such a plea.

18 In my opinion, the argument based on the principle of parity of sentencing cannot avail the applicant in this appeal, more particularly in that, in determining the issue, the sentences imposed upon Higgs and Foster for different offences in contravention of different statutory provisions in a different State are irrelevant to that principle. If the applicant has a sense of grievance arising from the comparatively lenient sentences imposed on those offenders, it is not a legitimate sense of grievance.

19 Accordingly, I would not uphold this ground of appeal.

20 As I have mentioned, following his retrial the applicant was again sentenced to 16 years' imprisonment on the first count and to 8 years' imprisonment, concurrent, on the second count. The learned sentencing Judge imposed the same sentences that had been imposed following the first trial. It was not argued that, in doing so, he did not apply his mind to the matter. Those were severe sentences, as was recognised by Anderson J in Krakouer v The Queen (1996) 16 WAR 1, at 22, where his Honour, dealing with the first trial of the applicant, said:

"Notwithstanding that the evidence against the applicant was overwhelming he elected to stand trial on a plea of not guilty. Although it was his right to do so, one of the consequences is that he cannot be shown leniency on the ground of remorse and a full and frank acceptance of his wrongdoing.

All in all, this was a bad case. Although concurrent sentences of 16 years and eight years is a severe aggregate sentence I am not persuaded that it was beyond the range of a sound discretionary judgment."

21 Rowland and Franklyn JJ agreed with his Honour's reasons. The applicant's subsequent successful appeal to the High Court did not involve any determination by that court in relation to the sentences imposed on the applicant by Gunning J following the applicant's conviction at his first trial.

22 In these circumstances, while accepting that the sentences were severe, I would not differ from the conclusion of this Court in Krakouer v The Queen (supra) in relation to the sentences the subject of the present appeal that they were not beyond the range of a sound discretionary judgment. This Court is well aware of the terrible cost to the community of the supply of illegal drugs and of the importance of deterrence in the sentencing process in relation to drug offenders. As Anderson J said in Krakouer v The Queen (supra), at 21, in words which I would respectfully adopt:

"The starting point is that the maximum penalty for conspiring to possess a prohibited drug with intent to sell or supply is 20 years imprisonment. Misuse of Drugs Act , s34(1)(b). From this it is evident that 'worst case' offences are regarded very seriously by Parliament and, therefore, in bad cases, the courts must ordinarily impose long prison sentences. The courts must also recognise that the principal sentencing consideration in drug trafficking cases is deterrence. People thinking of going into drug trafficking, especially on a large scale, must know that if they are caught they will be severely punished.

In this case there was a quite elaborate conspiracy involving a number of people and a transportation of the drugs across Australia. The drug was methylamphetamine which is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs, if not equated to heroin and cocaine, close enough to those drugs to be regarded as in the same category: see R v Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo v The Queen (1996) 84 A Crim R 465.

The quantity involved, 5.3 kilograms, was large. It is said to be the largest seizure to date by Western Australian police. Although no reliable figures are in evidence, from which to estimate a street value, there was obviously a great deal of money involved in this transaction. There can be no doubt the applicant played the leading role in the conspiracy. It was he who made the organising telephone calls to Foster in Victoria and gave directions as to how the consignment documents were to be made out. He actively participated in the collection of the car in which the drugs were stashed and it was he who was the dominant member of the trio at the scene ...."

23 Accordingly, while I would grant leave to appeal, I would dismiss the appeal.

24 HEENAN J: For the reasons stated by White J, I also would grant leave to appeal but would dismiss the appeal.