Court of Appeal (Qld)|2014-11-18|Before: Fraser and Morrison JJA and Henry J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Fraser and Morrison JJA and Henry J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – JUDGE ACTED ON
WRONG PRINCIPLE –
where the applicant pleaded guilty to trafficking in the dangerous drug cannabis
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – JUDGE ACTED ONWRONG PRINCIPLE –where the applicant pleaded guilty to trafficking in the dangerous drug cannabisand was sentenced to twoyears imprisonment, suspended after two months for anoperational period of two years – where there was a three year delaybetween arrest and sentence, and at sentence the applicant submitted she had notused cannabis since arrest and no indication wasgiven by the prosecutor orsentencing judge that that submission on rehabilitation would not be accepted– where the sentencingjudge did not refer to the delay since arrest orthe rehabilitation submission – whether the sentencing judge erred byomittingto take the delay and rehabilitation of the applicant into account inexercising the sentencing discretionCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – GENERALLY –
where the applicant
was sentenced to two years imprisonment suspended after two months for
trafficking in cannabis – where
the applicant’s de facto partner and
co-offender was sentenced to three years imprisonment suspended after six months
for trafficking
in cannabis – where the applicant was not the principal
offender, had been a drug addict, had eight dependent children, and
had
rehabilitated herself since arrest – where the applicant argued the
sentencing judge, in imposing actual imprisonment,
gave insufficient weight to
the effect of imprisonment on the applicant’s children –
consideration of the application
of the parity principle and principle of equal
justice to persons who are not co-offenders – whether, in re-exercising
the
sentencing discretion, the Court ought to impose a different sentence
– whether a period of actual imprisonment ought to be
imposed
Farrugia v The Queen (2011) 32 VR 140
[2011] VSCA 24,
discussed
Green v The Queen (2011) 244 CLR 462
[2011] HCA 49,
considered
R v AAH & AAG (2009) 198 A Crim R 1
[2009] QCA
321, cited
R v Burton, unreported, North J, SC No 65 of
2013, 2 December 2013, cited
R v Dolan [2008] QCA
41, considered
R v Dowel
Ex parte Attorney-General (Qld)
[2013] QCA
8, cited
R v Eves, unreported, North J, SC No 20 of 2014, 6 June
2014, cited
R v Gault [2006] QCA
316, distinguished
R v Guzman [2005] QCA
158, cited
R v Phillips & Woolgrove (2008) 188 A Crim R
133
[2008] QCA
284, considered
R v Roberts, unreported, Durward DCJ, DC No 152 of
2014, 27 August 2014, cited
R v Tiburcy (2006) 166 A Crim R
291
[2006] VSCA 244, cited
R v Todd [1982] 2 NSWLR 517, cited
R
v Van Der Zyden [2012] 2 Qd R 568
[2012] QCA
89, cited
Judgment (95 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE - where the applicant pleaded guilty to trafficking in the dangerous drug cannabis and was sentenced to two years imprisonment, suspended after two months for an operational period of two years - where there was a three year delay between arrest and sentence, and at sentence the applicant submitted she had not used cannabis since arrest and no indication was given by the prosecutor or sentencing judge that that submission on rehabilitation would not be accepted - where the sentencing judge did not refer to the delay since arrest or the rehabilitation submission - whether the sentencing judge erred by omitting to take the delay and rehabilitation of the applicant into account in exercising the sentencing discretion
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY - where the applicant was sentenced to two years imprisonment suspended after two months for trafficking in cannabis - where the applicant's de facto partner and co-offender was sentenced to three years imprisonment suspended after six months for trafficking in cannabis - where the applicant was not the principal offender, had been a drug addict, had eight dependent children, and had rehabilitated herself since arrest - where the applicant argued the sentencing judge, in imposing actual imprisonment, gave insufficient weight to the effect of imprisonment on the applicant's children - consideration of the application of the parity principle and principle of equal justice to persons who are not co-offenders - whether, in re-exercising the sentencing discretion, the Court ought to impose a different sentence - whether a period of actual imprisonment ought to be imposed
Director of Public Prosecutions (Queensland) for the respondent
[18]
[1] FRASER JA: On 15 September 2014 the applicant pleaded guilty to trafficking in the dangerous drug cannabis between 1 April 2011 and 13 July 2011. Her de facto partner Mr Leathers pleaded guilty to unlawfully trafficking in the same dangerous drug between 1 April 2011 and 19 October 2011. Mr Leathers was sentenced to three years imprisonment suspended after serving six months for an operational period of three years, within which he must not commit another offence punishable by imprisonment within a period of three years if he was to avoid being dealt with for the suspended term of imprisonment. The applicant was sentenced to two years imprisonment suspended after serving two months for an operational period of two years, within which she must not commit another offence punishable by imprisonment to avoid being dealt with for the suspended term of imprisonment. The applicant was also convicted but not further punished upon three summary charges of possession of cannabis and things used in connection with her possession and use of cannabis.
[19]
[2] The applicant applied for leave to appeal against her sentence on the grounds that it was manifestly excessive and that the sentencing judge failed to give sufficient weight to the effect of imprisonment on the applicant's eight dependent children in weighing up whether a short period of actual imprisonment was warranted.
[20]
[3] At the hearing of the application on 24 October 2014 the Court ordered that the application be granted, the appeal be allowed, the sentence be varied by varying the period after which the sentence of imprisonment is suspended from two months to a period of 40 days, and the sentence otherwise be confirmed. These are my reasons for agreeing with those orders.
[21]
[4] The Crown case against the applicant was that for a little more than half of the six and a half month period in 2011 during which Mr Leathers trafficked in cannabis the applicant aided him in that trafficking. Mr Leathers was a street level dealer who was used by a wholesaler as part of his drug distribution syndicate, which included up to 14 couriers and on-suppliers. The applicant and Mr Leathers had been identified as secondary participants in the distribution of cannabis by interceptions of telephone conversations and coded texts with the wholesaler.
[22]
[5] The wholesaler usually supplied cannabis in pound lots. A schedule of agreed facts referred to 13 separate "incidents". The first incident, on 8 April 2011, referred to a purchase of the drug by Mr Leathers and advice given by the applicant that Mr Leathers had left $1,500 for the drugs at a restaurant. The applicant was involved in telephone conversations or messages with the wholesaler in seven of the subsequent eight drug purchases by Mr Leathers between April and July 2011. The quantity of drugs purchased and the amount of money which changed hands were not known, save for references in the intercepted communications to the applicant chasing two pounds of cannabis, ordering another pound of cannabis, arranging to meet to pay for the three pounds of cannabis, and to her only having $4,500 of the $6,000 she owed the wholesaler. In the period after the conclusion of the trafficking period charged against the applicant, there are references to Mr Leathers acquiring two lots of two pounds of cannabis and a further unknown quantity. A search warrant executed at the home of the applicant and Mr Leathers led to the discovery of $1,780 in cash, mobile phones, plastic bags, order books, scales and a gram of cannabis. The applicant and Mr Leathers declined to answer questions by police and they were arrested.
[23]
[6] Mr Leathers offended in order to fund the applicant's cannabis habit or addiction. It was accepted at the sentence hearing that the applicant and Mr Leathers lived in modest circumstances. There was no tangible material benefit to either of them beyond the funding of the applicant's habit.
[24]
[7] The applicant was 39 years old when she offended and she was 42 years old when she was sentenced. Her criminal history, which the sentencing judge considered was not relevant, consisted of offences committed about 20 years earlier and about 13 years earlier for which convictions were not recorded. At the time of sentence the applicant and Mr Leathers had eight children, aged 2, 4, 5, 6, 7, 9, 10 and 12. The three youngest children had not yet commenced school, with the third youngest attending kindergarten. The other children were in grades 1, 2, 4, 5 and 7 at a State School. The family lived in a Housing Commission home. The applicant's parents lived in a two bedroom flat nearby. They would be required to look after the children if both the applicant and Mr Leathers were incarcerated. Counsel for the applicant told the sentencing judge that the eight children were "too much" for the applicant's parents to look after.
[25]
[8] A reference given by Mr Leathers' uncle referred to Mr Leathers and the applicant undertaking rehabilitation and family counselling together to reform themselves and to recognise the hurt, sorrow and shame they had caused their extended families. Similarly, a reference by the General Manager of the Palm Island Community Company observed that since October 2011 the applicant had concentrated on rebuilding her life and that, three years on, she was again a well respected young woman in the community with a strong focus on her children. Other references spoke glowingly of the applicant's dedication to and care for her children, her good character, her valuable participation in community affairs, and her remorse for this offence.
[26]
[9] The applicant's counsel told the sentencing judge that the applicant's parents had been good, hard working people. They had provided a stable life for the applicant, but she ran off the rails and starting smoking cannabis at 15 and using alcohol regularly. The applicant was assisted by her family to return to a more stable life. She did some childcare and hospitality courses and worked as a cleaner after she had moved to Toowoomba. Subsequently she returned to Townsville and worked in various occupations for about a decade before meeting Mr Leathers and starting their large family. It was the applicant's cannabis addiction that led to her involvement in the trafficking by Mr Leathers. She took no active role except when she was able to assist and she then assisted if Mr Leathers asked her.
[27]
[10] The applicant's counsel told the sentencing judge that an unsuccessful attempt had been made to obtain a report from the applicant's medical practitioner in relation to the applicant's attendance and treatment, the applicant had not smoked cannabis since her arrest in 2011, Legal Aid had declined to fund the medical report so that it had not been obtained but the applicant's instructions were that she had not touched cannabis since 2011, and the applicant had attended the medical centre on various occasions because of anxiety associated with the potential loss of her children.
[28]
[11] The sentencing judge summarised the circumstances of the offences by the applicant and Mr Leathers and their personal circumstances, except that the sentencing judge did not refer to the three year delay between the applicant's arrest and her sentence or the submission that the applicant had not used cannabis in the three years after she was arrested.
[29]
[12] The sentencing judge referred to sentences imposed upon other offenders who trafficked cannabis supplied by the same drug syndicate and observed that "maintaining parity between co-offenders is a principle that must be kept firmly in mind". The sentencing judge referred to the maximum penalty for trafficking in a Schedule 2 drug (which includes cannabis) of 20 years and noted that the sentence must be proportionate to the criminality. The sentencing judge referred to the statement by Muir JA, with which I and Dalton J agreed in R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8 at [21] that the cases demonstrated, if any demonstration were needed, "that even in drug trafficking cases there is no inflexible rule necessitating the imposition of a custodial sentence", and that "[e]ach sentence must be imposed by reference to the facts of the case in light of the relevant statutory requirements, sentencing principles and standards derived from statute, decided cases and comparable sentencing decisions."
[30]
[13] In relation to the applicant, the sentencing judge referred to the submission made on her behalf that a wholly suspended sentence of imprisonment was within range despite the serious nature of the offence and having regard to the short period of her involvement, her role as an aider largely during school holiday periods, the lack of any (relevant) criminal history, her eight dependent children, and her drug dependence. The sentencing judge accepted for both the applicant and Mr Leathers that the sentences should reflect a significant discount for the utilitarian value of their pleas of guilty, their level of cooperation with the authorities, their personal factors including their parenthood "in addition to the established range and parity considerations", and the requirements for punishment, deterrence, denunciation and rehabilitation.
[31]
[14] The sentencing judge found that "sending both or even one of these offenders to jail will cause significant, if not exceptional, hardship to their dependent children", and that was a relevant factor (R v McConachy [2011] QCA 183) although not a primary or paramount consideration in sentencing.
[32]
[15] Counsel for the applicant argued that the circumstance mentioned in defence counsel's submission that the applicant had ceased using cannabis for the three years between her arrest and the sentence hearing was a significant mitigating factor which should have been taken into account. Counsel for the respondent replied to this argument on its merits and, appropriately in my respectful opinion, did not take any point that it should have been identified in a separate ground of appeal.
[33]
[16] It was submitted for the respondent that the sentencing judge was entitled to be circumspect about defence counsel's submission that the applicant had not used cannabis since her arrest in circumstances in which she had been using it since she was 15 years old, the many people who gave character references appeared to be unaware of the applicant's drug dependency, and no details were supplied about any particular treatment the applicant had received to address her drug dependency. It may readily be accepted that those factors would have made it reasonable for the prosecutor to challenge defence counsel's submission and the sentencing judge in any event might have indicated an unwillingness to act upon the submission without supporting evidence, but there was no such challenge or indication. It is apparent that the sentence hearing was conducted upon the common assumption that defence counsel's submissions about the applicant's personal circumstances, including the submission that the applicant had ceased using cannabis, would be accepted in the absence of a challenge by the prosecutor or any contrary indication by the sentencing judge.
[34]
[17] The statements in the applicant's references to the effect that she had concentrated on rebuilding her life and that she and Mr Leathers had undertaken rehabilitation and counselling to reform themselves were consistent with defence counsel's submission that the applicant had given up cannabis. The absence of a medical report which directly corroborated that submission may be explained by defence counsel's remark that the applicant was unable to pay for a medical report. (The respondent argued that the medical report to which defence counsel referred related only to the applicant's attendances for treatment about her anxiety, but that argument was inconsistent with the terms of defence counsel's submission.) In any case, the applicant might have been able to adduce other corroborative evidence upon the point if she had been put on notice that defence counsel's submission might not be accepted in the absence of supporting evidence. It should not be assumed that the sentencing judge rejected this unchallenged submission by defence counsel without having afforded the applicant any opportunity of adducing evidence to support it. For these reasons, the manner in which the sentence hearing was conducted requires this application to be determined upon the footing that the applicant gave up cannabis upon her arrest and did not use it during the three years up to her sentence hearing.
[35]
[18] I am unable to accept the submission for the respondent that it should be implied from the shortness of the custodial period that the sentencing judge took this circumstance into account in fixing upon the sentence. The fact that the sentence had been hanging over the applicant's head for the surprisingly lengthy period of three years between arrest and sentence was itself relevant, but the circumstance that she had rehabilitated herself to the extent of abstaining from using cannabis for three years from her arrest until she was sentenced - a drug to which she was said to have been addicted and which she had commenced to use when she was as young as 15 years old - was much more significant. The sentencing judge's omission to mention those circumstances in otherwise comprehensive sentencing remarks which referred to some less significant circumstances indicates that it was inadvertently overlooked.
[36]
[19] I endeavoured to summarise the relevant principles in the following passage in R v Phillips & Woolgrove [2008] QCA 284 at [52] and [53] (I have omitted citations):
[37]
"In R v L; ex parte Attorney-General of Queensland, this Court held that the lapse of time between the commission of the offence and the imposition of sentence should ordinarily not be a mitigating factor in the sentence unless that delay had resulted in some unfairness to the offender. The principle was expressed in terms which required the offender to discharge a burden of proof that the unfairness complained of existed and was caused by a "failure to prosecute his case more quickly". The Court gave two examples in which there might be such unfairness which should be held to mitigate the sentence that otherwise would have been imposed. The first example was where delay between the date of apprehension of the offender (or the first indication to the offender by the authorities of a likely prosecution) and the day of the sentence resulted in the offender having had his liberty curtailed or his reputation called in question or, at least, being left in a state of uncertainty caused by a failure to prosecute his case more quickly. The second example given by the court was where the time between commission of the offence and the sentence was sufficient to enable the court to see that the offender had become rehabilitated or that the rehabilitation process had made good progress.
[38]
In R v Tiburcy; R v Gardner; R v Zeuschner, Maxwell P quoted the following passage from the judgment of Chernov JA in R v Cockerell:
[39]
"The courts have ... recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels - see, for example, Miceli, Todd, Schwabegger, MWH, Blanco. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. ... As Wood CJ at CL said in Blanco:
[40]
'... it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account in sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.'"
[41]
[20] In R v Van Der Zyden [2012] 2 Qd R 568 at 592 [102], Muir JA, with whose reasons de Jersey CJ and Margaret Wilson AJA agreed, referred with approval to Street CJ's observation upon this topic in R v Todd [1982] 2 NSWLR 517 at 519 - 520 that "passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the ...sentence; at times that can require what might otherwise be a quite undue degree of leniency being extended...".
[42]
[21] The sentencing judge's omission to take the delay and the rehabilitation of the applicant into account was an error of principle in the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499 at 505. Such an error was found in a similar case, in R v Tiburcy, Gardner & Zeuschner [2006] VSCA 244; (2006) 166 A Crim R 291 (referred to in R v Phillips & Woolgrove [2008] QCA 284 at [85] - [86]). It follows that the application for leave to appeal should be granted, the appeal should be allowed, and the Court must resentence the applicant afresh unless it concludes "in the separate and independent exercise of its discretion" that no different sentence should be passed: Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947 at 956 [35], 957 - 958 [42] - [43].
[43]
[22] Counsel for the respondent referred to R v Dolan [2008] QCA 41 and R v Gault [2006] QCA 316. In Gault the Court was not persuaded that there was manifest excess in a sentence of two and half years imprisonment suspended after six months, with an operational period of three years, for trafficking in the dangerous drug cannabis sativa during a six month period. The issue was whether the sentencing judge should have suspended the sentence at an earlier time. Like the applicant, that offender was of mature age (he was aged 49 when sentenced), he had no relevant criminal history, and good character references were tendered at the sentence hearing. Unlike the applicant, that offender sold the drug for the purpose of profiting, although he did so to meet medical expenses required to treat illnesses from which he suffered. The sentencing judge also took into account that imprisonment would be a more severe punishment for him than for someone without the same medical afflictions, although his illnesses could be treated in prison. Another mitigating factor which is not present in the case of the applicant was that the offender was entitled to special leniency in the sentence because he had made detailed admissions to police, without which he could not have successfully been prosecuted for trafficking: see AB v The Queen [1999] HCA 46; (1999) 198 CLR 111. On the other hand, that offender was not driven to offend by a habit or addiction, it was not suggested that he had rehabilitated himself to any substantial extent, and there was nothing equivalent to the consideration in the present case that the applicant has eight dependent children. The decision in Gault does not dictate the result in this case.
[44]
[23] In Dolan, the Court (McMurdo P and myself; Mullins J dissenting) found a specific error in the exercise of the sentencing discretion, set aside the sentence for trafficking in cannabis sativa of two years imprisonment suspended after serving four months with an operational period of three years, and ordered that the offender be resentenced to two years imprisonment with release on parole at the date of the hearing of the application. McMurdo P concluded that the preferable sentencing option involved immediate or early release on parole at the time of the sentence. I concluded that it would not have been appropriate for the sentencing judge to have ordered immediate release on parole, but that it was appropriate to order release at the time of the hearing of the application, when the offender had served almost three months in custody. Mullins J considered that the appropriate sentence was that which was imposed by the sentencing judge. That offender was much younger than the applicant; he was 23 years old when he offended. Like the applicant he had no previous convictions, although he had been placed on a good behaviour bond for drug offending which was part of the relevant offending. There was evidence that he had embarked upon rehabilitation, including clear urine drug screens. The offending was more serious than that of the applicant in that the offender was the principal offender, he used money derived from his offending for daily living expenses, and although he was a regular user of cannabis he denied addiction. On the other hand he cooperated with the authorities, and without admissions which he made to police he could not have been charged with the trafficking offence. It is difficult to make comparisons between this case and Dolan because of those differences in the factual circumstances and because it was not necessary in Dolan to identify the appropriate period of incarceration before early release on parole. The fact that the offender in Dolan had served nearly three months in custody before being released at the time of the application for leave to appeal does not evidence any conclusion about the appropriateness of that period of incarceration.
[45]
[24] The sentencing judge considered it necessary to maintain parity between the sentence imposed on the applicant and the sentences previously imposed on other persons who were involved in the distribution of cannabis supplied by the same wholesaler. The "parity principle" is designed to ensure equality before the law and takes into account that equal justice according to law generally requires that "like cases be treated alike" and that there be "differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law": Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 472 - 473 [28] (French CJ, Crennan and Kiefel JJ). In order to achieve those objectives, an appellate court may interfere with a sentence which is not manifestly excessive if, upon an objective analysis, a disparity between that sentence and the sentence of a co-offender may give rise to a legitimate sense of grievance or create the appearance that justice has not been done; conversely, the parity principle does not justify interference in a sentence where its disparity with the sentence of a co-offender is explicable by differences in the circumstances of the offences or the offenders' personal circumstances: see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, and Green v The Queen.
[46]
[25] In Queensland the parity principle has been held to apply only as between "co-offenders", a term which has been regarded as being capable of applying to people who commit different offences in the course of participating in a common criminal enterprise: see R v AAH & AAG [2009] QCA 321 at [9], [21]-[22]. In Green v The Queen at 473 - 474 [30], French CJ, Crennan and Kiefel JJ adopted that approach, citing Campbell JA's judgment in Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at 558 - 589 [201] - [203] and referring also to the judgment of Redlich and Bongiorno JJA in Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 at 142 - 145 [8] - [19]. In Farrugia at 146 - 147 [26] - [27], in a passage which was not cited in Green v The Queen, Redlich and Bongiorno JJA held that although offenders may not be co-offenders or in a common criminal enterprise "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", including in cases in which the offending involves the same victim or the same subject matter or where there may be some other connection. It therefore appears that in this respect there is a difference between the law applicable in Victoria and law applicable in Queensland according to R v AAH. In Queensland, a sentence imposed upon an offender who committed a related offence but who was not a "co-offender" within the extended sense of that term described in Green v The Queen might be taken into account by a sentencing judge only as a "guide" or "yardstick" against which to examine the proposed sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537 ; Munda v Western Australia (2013) 249 CLR 600 at 615 [39]. Upon that view of the law, the sentencing judge was in error in holding that it was necessary to maintain parity between the sentence imposed on the applicant and sentences previously imposed on persons who were involved in the distribution of cannabis supplied by the same wholesaler. The prosecutor did not submit that the applicant was in any way involved in or even knew of any aspect of the offences committed by those other persons who had been sentenced. It was not the Crown case that the applicant was a co-offender with any such person. The only link between her offence and offences committed by those other persons who had been sentenced was that, unbeknownst to the applicant, she trafficked cannabis which had been supplied by a person who had supplied the different cannabis which those other persons had trafficked.
[47]
[26] It is inappropriate here to consider whether the Court should follow the broader approach to the application of the parity principle adopted by the Victorian Court of Appeal. No submissions were addressed to that question. Whether or not that principle was applied in this case would make no difference to the result. The sentences of other offenders to which the sentencing judge referred encompassed a two year wholly suspended sentence in the District Court for a 31 year old offender with a criminal history who had not served time in prison and entered an early plea of guilty to trafficking in the drug, over a 10 month period with eight sales in amounts totalling between 11 and 20 pounds (R v Roberts, Durward DCJ, DC No 152 of 2014, 27 August 2014); three and a half years imprisonment suspended after nine months for an operational period of five years for an offender with a young daughter who had prospects of rehabilitation and had sold a minimum of six pounds of cannabis during a trafficking period of seven months (R v Burton, North J, SC No 65 of 2013, 2 December 2013); and three years imprisonment suspended after six months for an operational period of three years for an offender with a minor criminal record who was otherwise of good character who trafficked in cannabis at a street level and also trafficked sometimes in methylamphetamine (R v Eves, North J, SC No 20 of 2014, 6 June 2014). It is not necessary to analyse these cases. None of them involved an offender whose circumstances could be regarded as analogous with the applicant's circumstances that she was charged only as an aider in street level trafficking over three months, the purpose of her offending was to feed her habit or addiction, she had given up using cannabis for three years after her arrest and before sentence, and her confinement in custody would result in significant or exceptional hardship to her eight young children. Whether the other sentences are relevant only as guides to the sentencing discretion or as sentences which must be taken into account under an extended application of the parity principle, none of them could be regarded as requiring the imposition of a custodial sentence in the very different circumstances of this case.
[48]
[27] The applicant did not challenge the head sentence of imprisonment of two years. A salutary head sentence was required to take into account the need to impose a sentence which would deter others from engaging in this seriously anti-social and destructive offence of trafficking in a dangerous drug. In the circumstances of this case, two years imprisonment was an appropriate head sentence: see R v Guzam [2005] QCA 158. However, in light of the applicant's substantially successful efforts at rehabilitation over a period as long as three years commencing upon her arrest, any need to deter the applicant from future offending was not a significant factor and could not justify any period of actual custody.
[49]
[28] Whilst the applicant benefited from Mr Leathers' offending she was less culpable because she was not the principal offender and the period during which she offended was much more limited than the period during which Mr Leathers offended. Adopting the sentencing judge's findings, the Court should act on the view that any incarceration of the applicant would involve significant or exceptional hardship to her eight dependent children. The additional mitigating factors already discussed, particularly that the applicant had rehabilitated herself to the extent of abstaining from use of the dangerous drug for three years whilst the sentence was hanging over her head, provide further support for a sentence which allows for her rehabilitation to continue within the community: see [19] and [20] of these reasons. Although the seriousness of the offence of trafficking in dangerous drugs, including Schedule 2 drugs, very often calls for a custodial sentence, the sentencing judge correctly recognised that "there is no inflexible rule necessitating the imposition of a custodial sentence": R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8 at [21].
[50]
[29] For these reasons, I concluded that the just sentence did not require the applicant to serve further time in custody beyond the 40 days she had served by the time the application was heard. Accordingly, it was appropriate to vary the sentence imposed in the Trial Division by varying the period after which the sentence of imprisonment was suspended from two months to a period of 40 days.
[51]
[30] MORRISON JA: I have had the advantage of reading the draft reasons of Fraser JA. I agree with those reasons subject to one qualification which I set out below.
[52]
[31] In paragraph [25] Fraser JA has referred to the approach of the Victorian Court of Appeal in Farrugia v The Queen.[1] That case involved two brothers who had targeted the same victim and robbed him numerous times of varying amounts, and over various periods of time. The brothers were not co-offenders or complicit in each other's criminal activity in any way. However, the appellant in that case submitted that because of the common factors present in each of the brothers' offending, the principle of parity applied. Alternatively, it was submitted, even if the principle of parity was inapplicable, the broad concept of equal justice, which underpins the principle of parity, required that there be an appropriate measure of parity, in terms of due proportion, between their sentences.[2]
[53]
[32] The court proceeded on the basis that the brothers "were not co-offenders in the strict sense as they did not commit the self-same crime or unlawful act, nor were they complicit in each other's acts"[3]. The court turned first to the contention that the parity principle applied directly to the two brothers as they were involved in "a common criminal enterprise".[4] Having examined that question the court came to the conclusion that the conduct of the two brothers did not come within the concept of a "common criminal enterprise".[5] The court then turned to the next issue, described in these terms:
[54]
"[24] Although the appellant's conduct cannot be characterised as part of a common criminal enterprise, it is necessary to consider whether the fundamental principle of equal justice, from which the parity principle derives, none the less requires some proportionality between the brothers' sentences."[6]
[55]
[33] It was in that context that the court made the statements referred to by Fraser JA, which bear setting out in full:
[56]
"[25] The appellant's alternate argument was that, even if the brothers were not in a common criminal enterprise, there was a sufficient nexus between, and such important common features of, the brothers' offending that the principle of equal justice required that Matthew's sentence should have been given significant weight in fixing the appellant's sentences.
[57]
[26] There is considerable force in that submission. While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable, the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender. But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime. Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purpose of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case.
[58]
[27] 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 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."[7]
[59]
[34] Given that the court acknowledged at paragraph [8] that the principle of parity "conventionally applied where there is a marked disparity in sentences imposed on co-offenders",[8] the court was clearly not strictly applying the parity principle, but an analogous principle which was also regarded as a subset of the principle of equal justice. Indeed, when the other brother was sentenced and the matter went on appeal, the Victorian Court of Appeal referred to Farrugia as involving the "application of the principle of equal justice".[9]
[60]
[35] That Farrugia was applying a principle different from, but analogous to, the parity principle was recognised in Tomov v The Queen,[10] though the court also seemed to recognise just how closely aligned the parity principle was:
[61]
"The Court of Appeal in Victoria has held that, apart from the parity principle, the broad principle of equal justice may, in a particular case, require some relativity between the sentences imposes on offenders. That is, the existence of a common criminal enterprise between offenders does not, at least in Victoria, delineate the outer limits of the application of the parity principle."[11]
[62]
[36] It also seems to have been recognised as such by subsequent courts of appeal in Victoria. In Quach v R[12] it was referred to in this way:
[63]
"Parity, in the strict sense, may not have arisen given that the appellant was charged with intentionally causing serious injury and Nguyen with the lesser offence of recklessly causing serious injury. For practical purposes, however, it may be assumed that although they did not commit the "self-same crime" the "broad concept of equal justice" which "underpins ... parity" required an appropriate measure of parity in this case. See, generally, Farrugia v The Queen[2011] VSCA 24, [8]-[10]."[13]
[64]
[37] In Pantazis v R; Tricarico v R[14] the Victorian Court of Appeal[15] dealt with a number of appeals arising from convictions that concerned the production and trafficking in methylampletamine as part of an organisation known as "The Company", organised by Tony Mokbel. Tricarico submitted that as he was not part of "The Company", and was not charged with trafficking as other offenders were, he was not therefore a co-offender or part of a joint criminal enterprise, and regard should not be had to the sentences imposed on other offenders, such as Ferraro, who was charged with trafficking in large commercial quantities of methylamphetamine. In the course of considering his position the court said:
[65]
"[231] Even allowing that the criminality of the appellant and Farraro was fundamentally different and that there were significant differences in their personal circumstances and the matters which may relevantly and appropriately attract mitigation in the penalty to be imposed, there can nonetheless be no impediment to his Honour having regard to the sentence imposed on Ferraro, and, indeed, the other offenders, in a general sense so at the very least to provide consistency in the sentencing process. It could not be that his Honour was obliged to sentence in ignorance of the context and relativities of the other sentences imposed simply because Ferraro was not a co-offender or that there were points of distinction between the two of them. As Crockett J observed in R v Brincoveanu:[16]
[66]
'Comparison of the sentences of all offenders may sometimes be necessary, even though a strict parity point has not arisen, in order that justice and fairness in all the circumstances attends the sentencing process and is seen to do so.'"[17]
[67]
[38] The court cited with approval the passage in paragraph [27] of Farrugia - see paragraph [4] above.
[68]
[39] Farrugia was cited by the Court of Appeal in Western Australia, in D'Lima v Western Australia[18] as authority which supported the respondent's acceptance that "the parity principle was applicable directly or by way of analogy in the sentencing of the appellant".[19]
[69]
[40] In Higgs v Western Australia[20] the Court of Appeal in Western Australia referred to the parity principle, its object and operation, citing the principal High Court decisions in that respect.[21] Buss JA[22] said:
[70]
"[33] The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences.[23]
[71]
[34] However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
[72]
'The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].'
[73]
[35] The Court of Appeal of Victoria has held that, apart from the parity principle, the principle of equal justice may, in a particular case, require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
[74]
'If there are offenders whose offending is very similar and 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 [27].
[75]
See also Rooke v The Queen[2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing)."[24]
[76]
[41] What is apparent is that in Farrugia the court did not take the view that consideration of the sentences imposed on others was an application of the strict parity principle, but rather a separate, albeit analogous, principle which came under the same umbrella principle of equal justice. The authorities referred to above acknowledge that the approach in Farrugia can apply where parity, in a strict sense, has not arisen. As a result I do not consider that the approach in Farrugia is at odds with this Court's approach to parity in R v AAH & AAG,[25] or by the High Court in Green v The Queen.[26] True it is that this Court has not yet considered whether it will take the same step as was taken in Farrugia, and what considerations would apply to that step. Those matters should await an occasion when the question is fully argued.
[77]
[42] Subject to those matters, for the reasons expressed by Fraser JA I concurred in the orders to which he refers.
[78]
[43] HENRY J: I have read and agree with the reasons of Fraser JA.
[7]Farrugia at [25]-[27]. Internal citations omitted.
[81]
[8]Farrugia at [8]; referring to Lowe v The Queen[1984] HCA 46; (1984) 154 CLR 606, at 610 (Gibbs CJ, with whom Wilson J agreed, 611 and 613 (Mason J), 623 (Dawson J, with whom Wilson J agreed); and Postiglione v The Queen[1997] HCA 26; (1997) 189 CLR 295 at 301.
[82]
[9]Martin Robert Farrugia v The Queen[2011] VSCA 201, at [30] per Redlich JA, Bongiorno JA agreeing.