Court of Appeal (WA)|2011-03-23|Before: Buss JA, Lure P

GALBRAITH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 70 (23 March 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GALBRAITH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 70

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence by offender - Possession of 486 g of methylamphetamine (74% purity) and 485.6 g of methylamphetamine (78% purity) with intent to sell or supply - Sentence of 9 years' imprisonment - Whether sentence manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Bahn v The State of Western Australia [2008] WASCA 40

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Cameron v The Queen [2000] WASCA 286

Civello v The State of Western Australia [No 2] [2008] WASCA 163

Coleski v The State of Western Australia [2008] WASCA 260

Delovski v The Queen [2002] WASCA 88

Kezkiropulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Koncurat v The State of Western Australia [2010] WASCA 184

Monument v The State of Western Australia [2007] WASCA 239

Quach v The Queen [1999] WASCA 210

Sabau v The State of Western Australia [2010] WASCA 3

Swains v The State of Western Australia [2007] WASCA 251

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Higgins [2008] WASCA 157

The State of Western Australia v Toothill [2007] WASCA 236

Tran v The State of Western Australia [2010] WASCA 38

2 BUSS JA: The appellant was convicted in the District Court, on his pleas of guilty, of one count in an indictment, seven charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA) and a breach of a suspended imprisonment order imposed in the Magistrates Court.

3 The count in the indictment alleged that on 23 February 2010, at Caversham, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The sentencing judge, Stone DCJ, imposed a term of 9 years' immediate imprisonment for this offence.

4 The charges in the s 32 notice comprised two charges of driving a motor vehicle without any authority to drive, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA); two charges of possessing a prohibited drug, contrary to s 6(2) of the Misuse of Drugs Act; one charge of possession of stolen property, contrary to s 428(1) of the Criminal Code (WA); one charge of possessing unlicensed ammunition, contrary to s 19(1) of the Firearms Act 1973 (WA); and one charge of possessing a certain substance or thing, contrary to s 14(1) of the Misuse of Drugs Act. On each of these charges the appellant was sentenced to a term of immediate imprisonment. The terms were made concurrent with each other and with the sentence of 9 years' imprisonment for the count in the indictment, except for a term of 6 months' imprisonment on the charge of possessing stolen property, which was made cumulative on all the other sentences.

5 No penalty was imposed for the breach of the suspended imprisonment order. That order related to two charges of possessing a firearm in circumstances of aggravation and one charge of possessing a prohibited drug with intent to sell or supply. The magistrate had imposed a sentence of 6 months 1 day's imprisonment on each charge and had suspended the terms. The sentencing judge ordered that the appellant serve the suspended terms of imprisonment but reduced the sentences to 6 months. His Honour ordered that these terms be served concurrently with each other, but cumulative on the terms imposed for the count in the indictment and the charges in the s 32 notice.

6 The total effective sentence was therefore 10 years' immediate imprisonment. A parole eligibility order was made.

7 The appellant has applied to this court for leave to appeal against the individual sentence of 9 years' imprisonment.

The material facts and circumstances of the offending in relation to the count in the indictment

8 On 23 February 2010, the appellant was a passenger in the front passenger seat of a taxi. Police stopped the taxi and located a black satchel belonging to the appellant. The satchel contained two clipseal bags wrapped in plastic wrap, bubble wrap and brown tape. The first clipseal bag contained 486 g of methylamphetamine with a 74% purity. The second clipseal bag contained 485.6 g of methylamphetamine with a 78% purity. Police then searched his house and found plastic clipseal bags, scales, $4,850 cash, a cutting agent (about 220 g of MSM) and a 'tick list' (26/08/2010: ts 11).

9 The appellant's plea commenced on 26 August 2010. It was then adjourned, part heard, to 8 October 2010. On that date there was a trial of issues as to the appellant's role in the drug dealing hierarchy concerning the drugs the subject of the count in the indictment. At the trial, evidence was adduced by each of the State and the appellant. According to the appellant, he was a mere courier of the drugs. The State argued that he was returning to his home with the drugs for the purpose of dividing them into smaller quantities and selling them.

On the totality of the evidence, I'm not satisfied beyond reasonable doubt that [the appellant] intended to return to his home with the kilogram of crystalline methylamphetamine, and distribute it from there after adding cutting agent to it. I am satisfied [the appellant] knew he was couriering a bulk quantity of drugs under instructions from someone he owed a considerable drug debt to.

Further, I find that [the appellant] appreciated that he was couriering a very large quantity of drugs at a wholesale level given the weight [of] the drug. And that he was doing the couriering because he owed [$23,760] to his drug dealer. [The appellant], in my view, obviously appreciated he was trusted to pick up and deliver, by persons high up the drug distribution chain, a wholesale quantity of drugs which could then be cut by others to put a considerable amount of drugs on the street.

By acting as a courier, [the appellant], in my view, was ingratiating himself with his drug supplier and to whom he owed a large amount of money. I do not accept that [the appellant] was doing this to avoid a beating. I say that because if he was so concerned, I would have expected him to have handed over at least the $5,000 that he had - or $4,850 in cash that he had - at the house if he was concerned that [if] he didn't produce any money he would be beaten.

I say that also because of his appearance and demeanour in the search video on the day of his arrest when he was taken from the taxi, and his criminal history indicates that he is a person who has access to firearms and it doesn't suggest to me that he's a person who is easily intimidated (08/10/2010: ts 104).

11 The appellant was born on 28 March 1982. He was aged 27 years when he committed the count in the indictment and was 28 at the time of sentencing.

12 There is nothing remarkable about the appellant's family background.

13 The appellant completed year 12 at school. He went to university but dropped out in his third year after succumbing to illicit drug use. He has been addicted to illicit substances, especially methylamphetamine, since the age of 20.

14 The appellant had worked in a spa hire business. After that business was sold, he worked sporadically as a roof carpenter.

15 The sentencing judge recounted the material facts of the appellant's criminal conduct. His Honour also noted the appellant's personal circumstances.

16 His Honour referred to the appellant's prior criminal record. He had an extensive record of offending in relation to illicit drugs, weapons and traffic matters. His Honour said that the appellant was not entitled to any leniency for good character.

17 The sentencing judge mentioned the appellant's plea of guilty on the fast-track system, and said that this operated to the appellant's credit and was a mitigating factor. His Honour added, however, that the appellant was caught 'red handed' and, in the circumstances, the plea of guilty was 'no more than a realistic acceptance of an inevitable end result' (ts 128). The plea demonstrated a willingness to facilitate the course of justice, but his Honour was not satisfied that the plea demonstrated remorse (08/10/2010: ts 128 - 129).

18 The sentencing judge made this assessment of the appellant's culpability:

In assessing the extent of your culpability I bear in mind ... that you were caught in possession of a significant quantity of methylamphetamine - 971 grams. The purity of it ranged between 74 per cent and 78 per cent. That indicates that the drug itself was close to the source of supply - close to the source of manufacture.

It also indicates that when it's cut to street level purity, the quantity in question in this case would be considerable. It was a very valuable commodity that you'd been asked to go and collect and deliver.

I am satisfied that even if you did not know what the purity of the methylamphetamine was, and I've mentioned this earlier in my ruling, you undoubtedly knew that you were dealing - you were couriering a very large quantity of drugs at a wholesale level. The very fact that you were doing that for a person to whom you owed over $23,000 must have indicated to you that you were doing a substantial favour for these people; it had to be worth a lot of money.

As I said in my ruling, you knew you were couriering a bulk quantity of drugs under instructions from someone you owed a considerable drug debt to. You appreciated you were couriering a very large quantity of drugs at a wholesale level, given the weight of the drug, which must have been obvious to you the moment you picked it up in that car park. And that you were doing that couriering because you owed [$23,760].

And it would have been obvious to you also that you were trusted by these people to pick up and deliver a wholesale quantity of drugs which could then be cut by others to put a considerable amount of drugs on the street. You were not transporting the drug to support a habit, but as a favour to the person to whom you owed drugs.

I view your offending also, in the context of the drug related incidents on 7 January 2010 and 3 April 2007, which makes your involvement in the drug offending on this occasion, at a higher level of seriousness.

Bear in mind also that you've been entrenched in the drug trafficking subculture for some time during which you've had access to firearms and considerable amounts of cash as a result of drug dealing; 23,760 that we just heard of, the amounts of $20,000 and $48,480 on the earlier occasion (08/10/2010: ts 129 - 130).

19 His Honour said that the appellant had little insight into his criminal conduct.

20 If the methylamphetamine the subject of the count in the indictment had been sold in ounce lots, at 10% purity, their value would have been 'in millions once they hit the street' (08/10/2010: ts 130).

21 The sole ground of appeal alleges that the sentence of 9 years' imprisonment for count 1 was manifestly excessive.

22 Counsel for the appellant made five points in his oral submissions. First, the appellant was 'merely' a courier for a short period. Secondly, commensurate with the sentencing judge's finding that the appellant was a courier, there must be an acknowledgement that the appellant was at a low level in the hierarchy of the distribution organisation. Thirdly, the appellant entered a fast-track plea of guilty. Fourthly, the appellant's sentence was outside the range of sentences revealed by comparable cases. Fifthly, it was important to ensure an appropriate level of consistency in sentencing outcomes for comparable offences.

23 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Misuse of Drugs Act.

24 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.

25 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. See The State of Western Australia v Higgins [2008] WASCA 157 [19]. Sentencing ranges of the kind discussed in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, The State of Western Australia v Toothill [2007] WASCA 236 and Swains v The State of Western Australia [2007] WASCA 251 can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16]. The limits of the guidance afforded by comparable cases are flexible rather than rigid. See Quach v The Queen [1999] WASCA 210 [27].

26 In Quach, the offender was convicted after a trial on one count of possessing heroin with intent to sell or supply. The offender arrived by bus in Perth from New South Wales. Shortly after his arrival, the offender and his luggage were searched by police. Three packages were concealed in a cassette player in his luggage. The packages contained a total of 653 g of heroin, ranging in purity from 58% to 63%. The heroin was in rock form, and had an estimated street value of $650,000. The packages were wrapped in plastic bags and tape, and smeared with a thick, sweet-smelling, honey-like substance. The substance was strong-smelling, and would prevent sniffer dogs from detecting the heroin. The offender's fingerprints were found on the inside wrapping of two of the packages. The offender had no criminal record except for two gaming convictions in New South Wales. His poor command of English and the location of his relatives in another State would make prison more onerous.

27 The sentencing judge said that the offender 'should be dealt with at the higher range of penalties for couriers' [9]. The offender was sentenced to 15 years' imprisonment. His appeal against sentence was dismissed. The offender was sentenced before the introduction of the 'transitional provisions' introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

28 On appeal, Ipp J (Wallwork & White JJ agreeing) said:

The applicant's role in wrapping (or in assisting in wrapping) the carefully packaged cache, as evidenced by his fingerprints on the inner wrapping, is significant. It does not necessarily follow that because the applicant was involved in the wrapping he was more than a courier. But involvement to that extent indicates that he carried a greater degree of responsibility than being a mere conduit. He actively participated in the methods that were employed to foil detection. Moreover, the existence of the fingerprints indicates knowledge on the applicant's part of the large quantity of heroin involved.

The learned Judge noted that the rock form of the heroin indicated that it was obtained from individuals close to the source of importation ...

Accordingly, while the applicant was not the importer or manufacturer himself, he was close to the source, and close to the higher end of the scale of responsibility for the dealing in the heroin concerned. His Honour found the importation into Perth to be 'a well-planned operation with a high likelihood of success'. This finding is not relevant to the applicant's place in the hierarchy of responsibility. But, having regard to the applicant's knowledge and degree of participation in what was involved, the high level of professionalism in the offence bears on his criminal culpability [9] - [11].

29 In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, the offender was convicted after a trial of possessing 805 g of methylamphetamine, with a purity of about 60%, with intent to sell or supply. He was aged 28 years. Although he had a criminal record, they were only minor convictions for cultivation of cannabis and possession of an offensive weapon. The offender was sentenced to 15 years' imprisonment. His appeal against sentence was dismissed. The offender was sentenced before the introduction of the 'transitional provisions'. McLure J said that in her assessment, having regard to relevant factual variations, the sentence of 15 years was within a 'relatively consistent sentencing range'.

30 In Toothill, the State appealed against sentences imposed on the offender on three counts. Count 1 alleged possession of 499 g of methylamphetamine with intent to sell or supply, count 2 alleged possession of 11.4 g of MDMA with intent to sell or supply and count 3 alleged possession of 3.36 g of methylamphetamine with intent to sell or supply. The 499 g of methylamphetamine had a purity of about 78%, the MDMA a purity of 27% and the 3.36 g of methylamphetamine a purity of 34%. The court allowed the State's appeal against the primary judge's sentence of 4 years 8 months' imprisonment for count 1 and against the net effective sentence of 4 years 8 months' imprisonment for all of the counts. A majority of the court imposed a sentence of 6 years' imprisonment for count 1 and a net effective sentence of 6 years' imprisonment for all of the counts. The offender was convicted on count 1 after a trial. He had pleaded guilty to counts 2 and 3. The traditional principles governing State appeals against sentence applied in Toothill. The majority expressed the view that, '[h]aving regard to the quantity and purity of the drug involved and the nature and level of the [offender's] participation in the distribution of the drug', the usual range of sentences for an offence such as possession of 499 g of methylamphetamine, with intent to sell or supply, is 6 - 10 years' imprisonment, after taking into account the one-third reduction required by the transitional provisions [39].

31 In Monument v The State of Western Australia [2007] WASCA 239, the offender was convicted on his pleas of guilty on one count of possession of methylamphetamine with intent to sell or supply and one count of possession of somatropin with intent to sell or supply. He was sentenced to 6 years' imprisonment on the first count and 1 year's imprisonment on the second. The sentences were ordered to be served cumulatively, giving rise to a net effective sentence of 7 years. The methylamphetamine the subject of the first count weighed 499 g and had a purity of 78%. When the police searched the offender's home they found various items connected with the sale and distribution of illicit drugs including about $22,860 in cash, a set of scales and numerous notes containing information relating to drug dealing. The business premises and residence of the offender's co-accused was also searched and 24 boxes of somatropin were found. Somatropin is a prescribed human growth hormone intended only for children and obtainable only on prescription. It can have deleterious effects if used in an uncontrolled way. Telephone intercepts revealed the offender engaged in the selling of that drug. Half of the somatropin would have been used by the offender to endeavour to alleviate his neck pain, while the other half would have been sold. The offender was aged 37 years at the time of sentencing and had a relatively minor prior record of driving offences. He was a user of amphetamines. He cooperated with the authorities and the sentencing judge considered that the offences were 'out of character'. The offender nevertheless played an important role in their commission. His appeal to this court was dismissed.

32 In Bahn v The State of Western Australia [2008] WASCA 40, this court dismissed an appeal by two offenders against, relevantly, a sentence of 8 years' imprisonment for supplying heroin (a prohibited drug comparable, for sentencing purposes, to methylamphetamine) to another. The weight of the heroin was 1,011.5 g and its purity ranged from 18% to 26%. Wheeler JA (Buss & Miller JJA agreeing) said that, having regard to the drug trafficking cases cited by McLure J in Tulloh at [48] - [50], it appeared the sentence of 8 years' imprisonment imposed on each appellant was within an appropriate range [45].

33 In Civello v The State of Western Australia [No 2] [2008] WASCA 163, the offender was convicted after a trial on three counts of possessing methylamphetamine with intent to sell or supply. The substantial quantity of methylamphetamine found in the offender's possession (381 g, if no account is taken of 156 g with a purity of only about 0.3%) indicated that he was heavily involved in drug dealing. That conclusion was reinforced by the high purity of some of the drugs. The quantity of pure methylamphetamine in the offender's possession was about 220 g. He was knowingly involved in large-scale dealing for commercial gain. The sentencing judge found that he was 'one step removed, at most' from the manufacturing process and consequently was very high in the drug hierarchy, and that he played an important role in the distribution chain [56]. This court held that the total effective sentence of 10 years' imprisonment, while 'relatively severe', was appropriate [56]. The offender's appeal against sentence was dismissed.

34 In Sabau v The State of Western Australia [2010] WASCA 3, the offender, his son and brother were seen driving into a national park. They parked the vehicle and alighted. Shortly afterwards they returned to the car and drove away. Police searched the area and located two containers, one with a blue lid and the other with a black lid. The area was placed under surveillance. The following day, the offender returned to the national park. He opened one of the containers and removed a package containing about 28 g of heroin. When apprehended by police, a few seconds later, he threw away the package. The container with the blue lid contained 12 one-ounce packages of heroin (363 g in total) and a package of cocaine (10.1 g). The container with the black lid contained 17 packages of heroin (450 g in total). The offender was charged with two counts of possessing prohibited drugs with intent to sell or supply. Count 1 related to the heroin and count 2 related to the cocaine. He pleaded guilty to both counts about 13 months after being charged. After a trial of issues, the sentencing judge found that the offender was in possession of 391 g of heroin, being the 363 g in the container with the blue lid and the 28 g of heroin he threw away. The heroin had a purity of between 12% and 15%. The cocaine had a purity of 63%. The sentencing judge imposed a term of 7 years' imprisonment for count 1 and a term of 12 months' imprisonment for count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 7 years' imprisonment.

35 The offender in Sabau was aged 29 years at the time of the offending. He had a good work record. He had no prior convictions for drug offences, but did have a prior record which included assault occasioning bodily harm, stealing, hindering police and possessing a controlled weapon. The sentencing judge found that of the 391 g of heroin, about 168 g was owned by the offender for distribution by him and the balance belonged to his brother whose drug trade the offender was facilitating. His Honour accepted that the cocaine was for the offender's use and the supply by him to a group of associates. His Honour also found that the offender was aware of the type of drugs that were in his possession and that they were substantial in quantity.

36 This court dismissed the offender's appeal against sentence. It held that the sentencing judge was correct to characterise the seriousness of the offending as falling towards the high end of the scale. McLure P (Owen & Wheeler JJA agreeing) said that the sentence for count 1 (7 years' imprisonment) was at the 'high end', but was not outside the range of a sound sentencing discretion and thus was not manifestly excessive [19].

37 In Tran v The State of Western Australia [2010] WASCA 38, the offender was convicted after a trial on two counts of attempting to possess methylamphetamine with intent to sell or supply. The offender had arranged for a courier to travel to Sydney to collect a quantity of methylamphetamine. The courier returned to Perth with 27.3 g of the drug having a purity of 33%. The individual sentence on this count was 4 years' imprisonment. The next month, the appellant arranged for another courier to perform the same function. This courier returned to Perth with 132 g of methylamphetamine having a purity of 70%. The individual sentence on this count was 5 years' imprisonment.

38 In addition, the offender in Tran pleaded guilty to one count of possessing methylamphetamine with intent to sell or supply (37.013 g), one count of possessing cannabis with intent to sell or supply (60 large and 125 small to medium plants) and one count of possessing heroin with intent to sell or supply (41.4 g). The offender received a 2-year term on each of those counts.

39 When the offender in Tran was arrested she had in her possession several items commonly associated with drug dealing including scales, dilutants and plastic wrap. She also had $7,100 cash.

40 The sentencing judge imposed a total effective sentence of 9 years' imprisonment. A parole eligibility order was made. This court described the total effective sentence as a 'heavy penalty', but dismissed the offender's appeal against sentence.

41 In Koncurat v The State of Western Australia [2010] WASCA 184, the offender was convicted on his pleas of guilty on the fast-track system on three counts in an indictment and four charges in a notice under s 32 of the Sentencing Act. On 2 July 2009, the offender was driving his motor vehicle when he was stopped by police. The police searched his vehicle and located 15 MDMA tablets weighing 4.09 g with a purity of 18% (count 1) and $13,125 cash. Early the next morning, on 3 July 2009, the police executed a search warrant at the offender's home. They discovered a total of 1,023.89 g of MDMA in tablet and powdered form (count 2) and $2,500 cash. Details of the MDMA, and other drug dealing paraphernalia, located by the police were set out in the reasons of Mazza J (McLure P & Buss JA agreeing):

The police found in excess of 2,000 ecstasy tablets weighing in total 583.45 g. The vast bulk of these were located in the appellant's bedroom. The police also found powdered MDMA with a total weight of 440.44 g. All of the powdered ecstasy was located in a workshop at the rear of the appellant's house. The purity of the tablets and powder varied. Nearly all the tablets had a purity of 17%. The purity of the great bulk of the powder was between 17% - 46% with a very small amount, 1.53 g, being 75% pure. In the rear workshop, police also found a pill press (charge 41527 of 2009) and other objects used to make ecstasy into pill form. These items included dye, hundreds of small caps for measuring powder, numerous trays, measuring cups and various cutting, binding and colouring agents. The police also found large digital scales, drying lamps, and machines used to package the tablets. It was obvious from all of these items that the appellant had prepared the ecstasy tablets (count 3) [11].

42 The offender was a drug user, but the large extent of his operation demonstrated that he was both producing and selling the drug for profit. The offender was aged 39 years at the time of the offending. He had a brief and insignificant criminal history.

43 The offender was sentenced to 7 years' imprisonment on the count of possessing the 1,023.89 g of MDMA with intent to sell or supply. He was also sentenced to 18 months' imprisonment (cumulative) for possession of the pill press. Terms of imprisonment were imposed for the other offences, but they were ordered to be served concurrently with each and with the head sentence of 7 years' imprisonment. The total effective sentence was therefore 8 years 6 months' imprisonment. The offender's appeal against sentence was dismissed.

44 In the present case, counsel for the appellant referred in his list of authorities to some of the cases I have already mentioned. He also referred to Cameron v The Queen [2000] WASCA 286; Kezkiropulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Delovski v The Queen [2002] WASCA 88; and The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119. Counsel for the appellant also relied on a table of cases headed 'Comparative Sentencing for Serious Illicit Drugs - As at 07.10.10', a copy of which had been provided to the sentencing judge. I have perused the cases in counsel's list of authorities and considered the 'Comparative Sentencing' table.

45 In my opinion, the sentence of 9 years' imprisonment on count 1 in the indictment was a high penalty. I am satisfied, however, that no error should be inferred from the sentencing outcome. It was within the range of a sound exercise of the sentencing discretion.

46 The seriousness of the appellant's offending in relation to count 1 is apparent from the following:

(a) The quantities of methylamphetamine in the appellant's possession were very large, being in total 971.6 g.

(b) The purity of the methylamphetamine was very high, being between 74% and 78%.

(c) When the drug was diluted by others for sale at street level (about 10% purity), the diluted substance would have weighed in excess of 7 kg.

(d) The value of the methylamphetamine at street level purity, if sold in ounce lots, would be measured in millions of dollars.

(e) The methylamphetamine was close to the source of manufacture.

(f) Although the appellant was 'merely' a courier of the drugs:

(i) he was being trusted (and he knew that he was being trusted) with the drugs by persons at a high level in the drug distribution chain;

(ii) he knew that he was transporting a very large quantity of drugs at a wholesale level;

(iii) he knew that the drugs would, after he had delivered them, be diluted by others for sale, with the result that a considerable quantity of drugs would come onto the market at street level;

(iv) he agreed to transport the drugs voluntarily, and for the purpose of discharging a debt of $23,760 owing by him to his drug supplier and ingratiating himself with the supplier; and

(v) he had been entrenched in the drug trafficking subculture for some time, and had little insight into his criminal conduct.

(g) Although the appellant pleaded guilty on the fast-track system and he was entitled to credit for the plea in the sentencing process, he was caught 'red handed'. The plea demonstrated a willingness, in the face of a powerful prosecution case, to facilitate the course of justice, but the plea did not demonstrate any remorse.

(h) The appellant was not a person of good character. He had an extensive criminal record in relation to illicit drugs, weapons and traffic matters. His history of drug dealing had involved the possession of substantial amounts of money including $20,000 and $48,480. When the appellant's house was searched by police, shortly after his arrest, the police found paraphernalia associated with drug dealing, including plastic clipseal bags, scales, $4,850 cash, a cutting agent (about 220 g of MSM) and a 'tick list'.

47 The facts and circumstances I have recounted put into proper context the submissions made on behalf of the appellant to the effect that he was 'merely' a courier for a short period, he was at a low level in the hierarchy of the distribution organisation and he entered a fast-track plea of guilty.

48 It is, of course, important for this court to ensure an appropriate level of consistency in sentencing outcomes for comparable offences. I am not persuaded, however, that the sentence imposed on the appellant for count 1 was outside the range of sentences revealed by comparable cases, although I accept that it is at the high end. The term of 9 years' imprisonment is not plainly unreasonable or unjust.

49 The appellant does not have a reasonable prospect of establishing inferred error by the sentencing judge, as alleged by counsel for the appellant in his submissions. I would refuse leave to appeal and dismiss the appeal.

Legislation Amendment and Repeal Act 2003

Bahn v The State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (92 paragraphs)

GALBRAITH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 70 (23 March 2011)

Parties

Legislation Cited (3)