Criminal law - Appeal against sentence - Appellant and co-offender convicted after trial of one count of possession of methylamphetamine with intent to sell or supply it to another - 164 g of methylamphetamine with a purity of 82% - Sentence of 5 years 10 months' imprisonment - Appellant a courier of the drug - Prior criminal convictions for illicit drug dealing - Manifest excess - Parity principle

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Barnden v The State of Western Australia [2014] WASCA 161

Cameron v The Queen [2002] WASCA 81

Dao v The State of Western Australia [2007] WASCA 237

Guler v The State of Western Australia [2014] WASCA 83

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

Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218

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

Pham v The State of Western Australia [2011] WASCA 244

Stapleton v The Queen [2004] WASCA 130

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

1. This is an application for leave to appeal against sentence.
2. The appellant and Tien Toan Nguyen were convicted, after a joint trial in the District Court before Derrick DCJ and a jury, of one count in an indictment. The count alleged that on 15 March 2016, at Meekatharra, the appellant and Tien Nguyen had in their 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 MD Act).
3. On 21 December 2017, the trial judge sentenced:

(a) the appellant to a term of 5 years 10 months' imprisonment, backdated to 17 November 2017; and

(b) Tien Nguyen to 5 years 7 months' imprisonment, backdated to 21 February 2017.

Each of the offenders was made eligible for parole.

1. The appellant relies on two grounds of appeal. Ground 1 alleges that the sentence of 5 years 10 months' imprisonment was manifestly excessive. Ground 2 alleges that the sentence imposed on the appellant, when compared to the sentence imposed on Tien Nguyen, infringed the parity principle.
2. We are satisfied that neither of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused and the appeal must be dismissed. Our reasons are as follows.

The facts and circumstances of the offending

1. The trial judge made findings of fact in his sentencing remarks as follows:

(a) On 15 March 2016, the appellant and the co-offender were stopped by police while driving north in an unlicensed motor vehicle on Great Northern Highway, about 40 km north of Meekatharra.

(b) The police officers suspected that the co-offender was under the influence of drugs. They searched the vehicle.

(c) This initial search, together with a later more extensive search at Meekatharra police station, revealed that 164 g of methylamphetamine was in the vehicle.

(d) The appellant's evidence at the trial as to why he was in the vehicle at the material time was untruthful.

(e) Both the appellant and the co-offender were in possession of the 164 g of methylamphetamine.

(g) The appellant and the co-offender played some role in the packaging of the methylamphetamine.

(h) The appellant and the co-offender were not the beneficial owners of the methylamphetamine. They were delivering the methylamphetamine to an unknown person or persons for financial reward. The financial reward that the appellant and the co-offender were expecting to receive must have been reasonably significant.

(i) There was no proper basis in the evidence for his Honour to draw any material distinction between the roles that the appellant and the co-offender played in committing the offence.

The appellant's personal circumstances and antecedents

1. The trial judge referred to the appellant's personal circumstances and antecedents in his sentencing remarks as follows:

(b) The appellant was born and raised in Vietnam and arrived in Australia at the age of 15.

(c) The appellant completed his schooling in Melbourne. He then obtained employment in Darwin working on fishing boats. The appellant also spent some time in Sydney working in the building industry.

(d) When he was arrested, the appellant had for some time been earning money by purchasing cars, fixing them and then selling the cars for profit.

(e) The appellant has two adult children from a previous relationship.

(f) When he was sentenced, the appellant was in an 11-year relationship. The appellant and his partner have two children, aged 9 and 6.

(g) The appellant's partner has a limited command of the English language. She has little support in the community.

(h) The appellant's son has some health issues and his daughter has some behavioural issues.

(i) In the past, the appellant abused methylamphetamine. However, when sentenced, he had not used illicit drugs for about three or four years.

(j) The appellant has 'a relatively lengthy criminal record', including prior convictions for possession of prohibited drugs and possession of prohibited drugs with intent to sell or supply. He had previously served sentences of imprisonment.

(k) The appellant has not evinced an acceptance of responsibility or any remorse for his offending.

(l) The appellant's pre-sentence report identifies numerous risk factors, namely illicit substance and alcohol abuse, negative peer associations, a lack of insight into his offending, a failure to accept responsibility for his offending and limited support in the community.

(m) The appellant is at risk of committing further drug-related and other offences.

The co-offender's personal circumstances and antecedents

1. The trial judge referred to the co-offender's personal circumstances and antecedents in his sentencing remarks as follows:

(b) The co-offender was born in Vietnam. He was one of four children. Two of his sisters died, as a consequence of the war and famine in Vietnam, when the co-offender was a child. His parents separated when he was aged 8. The co-offender left Vietnam with an uncle when the co-offender was aged 15. They travelled to Thailand. The co-offender remained in Thailand in a refugee camp for about five and a half years. He then came to Australia as a refugee. The co-offender was alone upon arrival in Australia because his uncle went to the United States. The co-offender's childhood and his teenage and early adult years were very difficult and traumatic.

(c) Since his arrival in Australia, the co-offender has worked in a number of unskilled jobs, primarily in the dry cleaning industry. He has also worked in a metal factory, in restaurants and as a wildflower picker. When he was arrested for the offence in question he had been unemployed for about six months.

(d) The co-offender married in 1998 but the marriage ended in 2005 when the co-offender was imprisoned for drug-related offences. After his release from prison the appellant formed a relationship with a woman, Lisa, which continued until late 2015. The relationship ended because of the co-offender's drug use. Nevertheless, the co-offender appears to have been a good stepfather for Lisa's children.

(e) The co-offender began using illicit drugs at the age of 23. He became addicted to heroin. In 2005, he was convicted and sentenced to 4 years 9 months' immediate imprisonment for drug-related offences. He was released on parole on 10 February 2008. On 26 November 2009, his parole was cancelled because he had breached the conditions of his parole, including by testing positive to illicit drugs.

(f) In about 2015, the co-offender began using methylamphetamine. He became addicted to the drug. He returned to Vietnam and endeavoured to rid himself of the addiction. Unfortunately, upon his return to Australia he relapsed. The co-offender had a significant and entrenched illicit substance abuse problem, but otherwise had no physical or mental health issues.

(g) The co-offender has a relevant prior criminal record. His previous convictions include possession of goods reasonably suspected to have been stolen; supplying prohibited drugs on an ongoing basis; possession of drugs; possession of heroin, cocaine and MDMA with intent to sell or supply; possession of heroin; possession of smoking implements; possession of stolen or unlawfully obtained property; possession of a controlled weapon; and possession of MDMA.

(h) The co-offender has not evinced an acceptance of responsibility or any remorse for his offending.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. At the material time, the maximum penalty for the offence of possession of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the MD Act.
3. 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.
4. 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. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
5. We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to the appellant's offending. See Cameron v The Queen;[1] Kezkiropoulos v The Queen;[2] Stapleton v The Queen;[3] The State of Western Australia v Toothill;[4] Dao v The State of Western Australia;[5] Monument v The State of Western Australia;[6] Pham v The State of Western Australia;[7] Lai v The State of Western Australia[8] and Guler v The State of Western Australia.[9] We have also considered other cases cited by the appellant.
6. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
7. The appellant was, of course, entitled to proceed to trial, but he was unable to claim the mitigation that a plea of guilty would have brought.
8. The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed did not, of course, aggravate the offending in question, but his record demonstrated that he was not of good character.
9. There was little by way of mitigation. The appellant was not youthful or inexperienced for sentencing purposes. He did not have the mitigation of being otherwise of good character. The appellant was unremorseful and did not accept responsibility for his criminal conduct.
10. In our opinion, after taking into account:

(c) the sentences imposed in previous cases with at least some features comparable to the appellant's offending;

(d) the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind;

(e) the importance of appropriate punishment and personal and general deterrence as sentencing factors;

(f) the appellant's personal circumstances and antecedents;

(g) the mitigating factors referred to by the trial judge; and

the sentence of 5 years 10 months' imprisonment was not unreasonable or plainly unjust.

1. In Barnden v The State of Western Australia,[10] Buss JA summarised (Martin CJ & Mazza JA agreeing) the parity principle. It is unnecessary to repeat that summary.
2. In the present case, the trial judge noted that both the appellant and the co-offender had demonstrated a continuing attitude of disobedience to the law.
3. His Honour considered that the co-offender's prior drug-related offences were more serious than those of the appellant. However, his Honour did not consider that there was any material distinction, for sentencing purposes, between the prior criminal record of the appellant and the prior criminal record of the co-offender.
4. The trial judge explained the difference in the sentencing outcome between the appellant (5 years 10 months' imprisonment) and the co-offender (5 years 7 months' imprisonment) as follows:

In my view, the appropriate term of imprisonment for [the co-offender's] offence is five years and seven months' imprisonment. The slightly lesser length of [the co-offender's] sentence compared to [the appellant's] is a reflection of the mitigatory benefit that I have attributed to [the co-offender's] particularly difficult start in life.

The weight that I have placed on this mitigatory factor is, as is apparent from the fact that [the co-offender's] sentence is only three months less than [the appellant's], very limited though. It is necessarily very limited given the primacy which I am required to and have given to general deterrence (ts 21).

1. We are not persuaded that the appellant's complaint about the disparity between his sentence and the co-offender's sentence has any merit. His Honour found no evidential basis for materially distinguishing between the role of the appellant and the role of the co-offender in the commission of the offence or for materially distinguishing between their objective criminal culpabilities. The most significant factors in the sentencing of the appellant and the co-offender were appropriate punishment and personal and general deterrence. The differences between their respective prior criminal records were not, in all the circumstances, of any significance for sentencing purposes. However, the personal circumstances and antecedents of the appellant and the co-offender were not irrelevant. His Honour was entitled to afford the co-offender the discount of three months to recognise his 'particularly difficult start in life' (ts 21).
2. In our opinion, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to the appellant and the co-offender, the disparity in the sentencing outcomes did not infringe the parity principle or the principle of equal justice. We are satisfied that the disparity cannot be characterised as marked or unjustified. It is not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and the co-offender, or generally.
3. Ground 2 is without merit.

1. Leave to appeal should be refused and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Cameron v The Queen [2002] WASCA 81.

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

[3] Stapleton v The Queen [2004] WASCA 130.

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

[5] Dao v The State of Western Australia [2007] WASCA 237.

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

[7] Pham v The State of Western Australia [2011] WASCA 244.

[8] Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218.

[9] Guler v The State of Western Australia [2014] WASCA 83.

[10] Barnden v The State of Western Australia [2014] WASCA 161 [55] - [59].