Court of Appeal (WA)|2004-08-27|Before: Templeman J, Murray J, Steytler J

Sutton v The Queen [2004] WASCA 200 (27 August 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SUTTON -v- THE QUEEN [2004] WASCA 200

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against sentence - Conspiracy to possess prohibited drug with intent to sell or supply - Guilty plea - Parity - Whether equality of circumstances - Whether disparity gives rise to justifiable sense of grievance or to appearance justice has not been done

Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994

Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970525; 14 October 1997

1 MURRAY J: I agree with Templeman J that leave to appeal should be refused. I have nothing to add to his Honour's reasons.

2 STEYTLER J: I have had the advantage of reading the judgment of Templeman J. I agree with it and with his conclusion that the application should be dismissed.

3 TEMPLEMAN J: The applicant, Barry Carlyle Sutton seeks leave to appeal against a sentence of four years' imprisonment imposed on him following his plea of guilty to a charge of conspiring to possess a prohibited drug with intent to sell or supply the drug to another. The drug in question was 437 grams of methylamphetamine at a purity of 58 per cent.

4 The applicant's co-conspirator was Stephen Jeffrey Sokol, who was charged on the same indictment, together with three other accused. They were Bernard John Stapleton, who was charged with supplying the drug to another; and Anthony La Bianca and Frank Charles Agostino who were charged with having the drug in their possession with intent to sell or supply to another.

5 The applicant pleaded guilty to the conspiracy charge on 4 June 2002, the day his trial was due to commence. La Bianca had already pleaded guilty.

6 The trial of Sokol, Agostino and Stapleton was delayed until 17 June 2002, because Stapleton was unwell. He pleaded guilty before the adjourned trial.

7 At trial, Agostino was acquitted and Sokol was convicted by the jury.

8 On 25 July 2002, all the offenders were sentenced by the trial Judge. The applicant was sentenced to imprisonment for four years with parole. Sokol was sentenced to imprisonment for three years with parole.

9 The applicant seeks leave to appeal against his sentence on the single ground that:

"The learned Judge erred in law by failing to apply the parity principle by applying a sentence of 4 years' imprisonment in respect of the applicant while applying a sentence of 3 years' imprisonment of the co-offender, Stephen Sokol."

10 The material facts were set out by the learned Judge in her sentencing remarks. They are not in dispute and I take the following summary from that source.

11 At 8 pm on 18 June 1999, La Bianca and Agostino got into a motor vehicle parked at the Dianella Plaza Shopping Centre. Agostino was the driver. As he drove away, he and La Bianca were apprehended by police officers. The vehicle was searched. In the boot, a thermos flask was found in which there was a vacuum sealed bag containing a dark brown powder. The powder was found to be 437 grams of methylamphetamine having a purity of 58 per cent.

12 At that time, the drug was worth about $40,000. However, if cut to the expected three to five per cent purity, the drug would have been sold for $50 a point. A gram would have been worth about $150.

13 The offenders were apprehended as a result of what the Judge described as "brilliant police work" which resulted in an overwhelming prosecution case. The offenders' plan was that La Bianca, acting on behalf of the applicant, would contact Stapleton, who was in the eastern States. Stapleton was to obtain a quantity of drugs for distribution. La Bianca was to be the middle man while the applicant was to be the ultimate distributor. Sokol was "an assistant and a colleague in this business of (the applicant's)". The Judge said that all offenders "had an important and integral part in the ultimate distribution in the streets of this much amphetamine".

14 The prosecution case was based on a number of telephone intercepts. It was clear from those intercepts that Stapleton and another would be able to provide regular supplies of drugs to La Bianca. The applicant made it known that he wanted to be in the business on a regular basis.

15 The offenders' plan involved La Bianca and Stapleton going to a hotel in the Dianella Plaza where they were met by the applicant who was being driven by Sokol.

16 It appears that money changed hands on that occasion, and that Stapleton then went to collect the drug. He left the drug in a vehicle parked at the Dianella Plaza Shopping Centre. Stapleton telephoned the applicant and told him the vehicle was there. He then left in a taxi.

17 For several hours thereafter, the applicant and Sokol drove round the area, keeping the car containing the drug under observation. Although the applicant telephoned La Bianca saying he thought there was something suspicious and that the vehicle was being watched, eventually, they collected La Bianca and Agostino and took them to the vehicle. As I have noted, when Agostino and La Bianca drove off in the vehicle containing the drug, they were apprehended by police officers. The applicant, Sokol and Stapleton were arrested later.

18 The Judge noted that the applicant was 35 years of age and divorced, although on reasonably good terms with his former wife. He had two children.

19 The Judge noted also that the offence had been committed while the applicant was on bail in relation to another offence in respect of which he had been sentenced subsequently. Her Honour said:

"It is apparent from the telephone intercepts which I have listened to at great length that you were the one who was to get this drug and to put up most of the money for it and you were the one who was going to distribute it."

20 The earlier offence had been committed on 9 March 1999. Sokol had been involved in that offence also. Sokol and another man had brought a similar quantity of methylamphetamine of similar purity from Sydney.

21 The Judge who sentenced the applicant and Sokol for the earlier offence did so on the basis that they were equally culpable. The applicant received 9 years' imprisonment while Sokol was sentenced to imprisonment for 8 years and six months.

22 In relation to the present offence, the learned Judge said of the applicant:

"Having listened to your telephone calls and intercepts, it's quite apparent that you were a more senior offender than Sokol."

23 The Judge said the applicant was entitled to some credit for his plea of guilty. Her Honour went on to deal with matters personal to the applicant, including various problems he had experienced in his life.

24 The Judge then referred to Sokol, who was 30 years of age. Again, her Honour said it was apparent from the transcript of the telephone calls that Sokol was not "as high up the scale" as the other three offenders. His involvement was "as some sort of an assistant" to the applicant. The Judge noted that the applicant appeared to have blamed Sokol for the fact that they had been arrested on the previous occasion. The applicant considered it was Sokol's duty in those circumstances to assist him: and Sokol appeared to have acquiesced.

25 The Judge then noted that Sokol had an even earlier conviction for the possession of amphetamines with intent. He had been sentenced to two years and nine months' imprisonment on 18 October 1996. The present offence was therefore his third separate conviction for the possession of amphetamines with intent.

26 The Judge said the only thing she could say in Sokol's favour was the impression she had from his appearance in the witness box and from the transcripts, that he was not a man of high intelligence and that probably, he was easily led.

27 When sentencing the applicant, the Judge said that the starting point was a term of imprisonment of 10 years but that a discount should be given, not only for the applicant's plea of guilty, but also to give effect to the totality principle.

28 The Judge noted that the total amount of the drug involved in the two offences was 877 grams. Bearing in mind that the second offence was committed while the applicant was on bail, her Honour was of the view that the total criminality warranted a sentence of 13 years' imprisonment. The result was therefore an additional sentence of 4 years' imprisonment, to be served cumulatively on the 9 years, with eligibility for parole.

29 Turning to Sokol, the Judge noted that his involvement was "somehow lesser than the others". The Judge said the impression she had was that he was "not a particularly enthusiastic participant, although he played his part and was of considerable assistance to the applicant in that he spent the day driving the applicant round. He also put up some money. Obviously, the Judge said, Sokol would not be entitled to any discount because he did not plead guilty.

30 In those circumstances, the Judge was of the view that the starting point for Sokol was 9 years' imprisonment, subject again to the question of totality. There was also the fact that Sokol had the worst antecedents. In those circumstances, the Judge was of the view that Sokol's total criminality warranted a sentence of 111/2 years. This resulted in an additional term of three years' imprisonment, to be served cumulatively on the 81/2 years with eligibility for parole.

31 The applicant concedes that the Judge viewed the culpability of the applicant and Sokol differently. However, the applicant relies on the Judge's view that all the offenders had an important and integral part in the ultimate distribution of the drug.

32 The applicant submits that when "the pluses and minuses" for both the applicant and Sokol are assessed and weighed up for and against one another, it becomes apparent that the sentencing discretion miscarried. The applicant submits that the parity principle should have been applied so that both the applicant and Sokol received sentences of 3 years' imprisonment.

33 As this Court said in Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994 at p 14, there is no rule that there must be absolute parity in sentencing: an appellate court should interfere only where there is "a marked disparity giving rise to a justifiable sense of grievance and to the appearance that justice has not been done".

34 The applicant accepts that principle. However, he submits that the discrepancy of 25 per cent between the four years' imprisonment imposed on him and the three years' imprisonment imposed on Sokol is a marked disparity and that it does give rise to a justifiable sense of grievance.

35 The difficulty with the applicant's submission is that he does not contend that the learned sentencing Judge failed to take into account any of the factors he has identified which are relevant to sentence. Nor does the applicant contend that there were any additional factors which the Judge ought to have taken into account but failed to do so.

36 Thus, in my view, the applicant's case is really based on the proposition that the relevant factors - the "pluses and minuses" to which the applicant referred - should have been given different weights by the Judge, leading to the conclusion for which the applicant contends.

37 However, the weight to be given to all these factors was a matter for the sentencing Judge's discretion. As the respondent rightly says in his submissions, they cannot be assessed with any degree of mathematical precision.

38 Of course, the applicant pleaded guilty while Sokol went to trial. However, the applicant's plea of guilty, made as it was on the day his trial was due to commence, seems to have reflected, in large measure, the overwhelming nature of the case against him which had emerged only shortly before, when the results of the investigation into the offence had been laid out by the prosecution.

39 It is true, that Sokol had more serious antecedents than the applicant. However, the learned Judge was well aware of that fact.

40 To my mind, a factor of very considerable importance which must have weighed heavily against the applicant was the fact that he was to have been the ultimate distributor of the drug and that it was his intention to engage in that business in the long term. Although Sokol played an integral part in the commission of the offence, it was as a somewhat unwilling assistant to the applicant.

41 The applicant's counsel referred the Court to the judgment of Steytler J in Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970525; 14 October 1997, in which his Honour said:

"The common sense proposition that it is desirable for persons who are parties to the commission of the same offence should, all other things being equal, receive the same sentence has long been accepted. However, all other things are seldom equal and courts are required to take into account differences in such matters as age, background, character, levels of participation in the offence concerned and criminal history. It is only if, after such differences have been taken into account, the disparity in sentencing is such as to give rise to a justifiable sense of grievance or to give the appearance that justice has not been done that an appellate court will interfere. (See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609-610)."

42 In the present case, it is clear that there was not that equality of circumstances which required absolute parity in the sentences imposed on the applicant and Sokol. It was well open to the Judge to regard the applicant's criminality as much greater than Sokol's. In my view, therefore, the disparity in their sentences cannot give rise to a justifiable sense of grievance.

43 For these reasons, I would dismiss the application.

Sutton v The Queen [2004] WASCA 200

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Sutton v The Queen [2004] WASCA 200 (27 August 2004)

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