Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Attempt to possess methylamphetamine with intent to sell or supply - Manifest excess

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)

Basilio v The State of Western Australia [2010] WASCA 202

Bond v The State of Western Australia [2011] WASCA 123

Fragomeni v The State of Western Australia [2011] WASCA 67

Galbraith v The State of Western Australia [2011] WASCA 70

Hoang v The State of Western Australia [2015] WASCA 130

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kitis v The State of Western Australia [2013] WASCA 34

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

Phan v The State of Western Australia [2014] WASCA 144

Stokes v The State of Western Australia [2016] WASCA 87

Tanner v The State of Western Australia [2013] WASCA 142

The State of Western Australia v Atherton [2009] WASCA 148

Tran v The State of Western Australia [2016] WASCA 37

Ye v The State of Western Australia [2016] WASCA 103

(This judgment was delivered extemporaneously on 22 September 2016 and has been edited from the transcript.)

1 This is an application for leave to appeal against sentence. On 6 May 2015, the appellant was convicted after his fast-track plea of guilty to one count in an indictment.

2 The count alleged that on 29 September 2015, at Cloverdale, the appellant attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA) (MDA).

3 The appellant was sentenced to 9 years' imprisonment with eligibility for parole. The sentence was backdated to 28 September 2015.

4 The sole ground of appeal alleges that this sentence was manifestly excessive.

The facts and circumstances of the offending

5 The facts and circumstances of the offending as found by the learned sentencing judge were as follows. The appellant is a Chinese national. At 10.30 pm on 22 September 2015, he arrived at Perth Airport on a flight from Hong Kong. He had a tourist visa. He told authorities that he intended to stay in Australia until 8 October 2015. It was noted that the appellant's address in Western Australia was at a house in the suburb of Cloverdale.

6 The following day, Australian Border Force officers intercepted a glass aquarium with a false bottom. Underneath the false bottom, the officers found a quantity of methylamphetamine which upon later analysis, was found to have a gross weight of 987 g with a purity of 79.6%. The paperwork which accompanied the aquarium showed that it had been sent from an address in Hong Kong for delivery at the same address the appellant gave to the authorities on the night of his arrival. The name of the recipient was recorded as Andy Lo.

7 On 25 September 2015, an Australia Post parcel slip was left at the Cloverdale address requesting Mr Lo to contact a designated mobile telephone number. Shortly after, the appellant contacted that number and identified himself as Mr Lo. The appellant was told that the aquarium had been broken and was unsafe to handle, but the appellant said that he did not care if the item was broken and that he still wanted it.

8 On 28 September 2015, the appellant sought to make arrangements to collect the aquarium. Police officers then attended at the Cloverdale address and executed a search warrant issued under the MDA. In the appellant's bedroom, police officers located a bag that contained a set of kitchen scales, a box-cutter and some latex gloves, as well as a dustpan and brush. The appellant was arrested and interviewed. He admitted attempting to collect the parcel containing the aquarium, but denied any knowledge of its contents. Depending on the quantities in which the methylamphetamine would have been sold, its value was assessed at being between $846,020 and $1,208,600 (sentencing remarks ts 3).

9 His Honour found that the appellant was 'plainly not merely a courier', and that he would have been involved in repackaging the drugs once they had been removed from the aquarium (sentencing remarks ts 4). His Honour accepted that someone else was involved in sending the drugs from Hong Kong, but described the appellant as playing 'a pivotal role' in the transaction, and that he was trusted by the person who had dispatched the drugs. Based on the submissions of defence counsel, his Honour found that the appellant was to be paid the equivalent of $8,500 for his role (sentencing remarks ts 3).

10 The appellant was aged 24 years at the time of the offence, and 25 years when he was sentenced. He was engaged to be married. At the time of the offence, his fiancée was pregnant, but while the appellant was in custody on remand, she, unfortunately, suffered a miscarriage. His Honour acknowledged that this would have been a very distressing experience for the appellant.

11 The appellant has a diploma in accounting, and was described by the sentencing judge as 'an intelligent man'. The appellant is not a user of illicit substances and is in sound physical and mental health (sentencing remarks ts 4). He has no convictions in Western Australia and no criminal convictions in Hong Kong.

12 His Honour took into account as matters in mitigation the appellant's early plea of guilty, for which he gave a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA); the appellant's age; the absence of prior convictions; and that the appellant would have to serve a term of imprisonment away from his family in a foreign country.

Disposition of the proposed ground of appeal

13 This court can only intervene if the appellant demonstrates that the learned sentencing judge erred in the exercise of his sentencing discretion. The proposed ground of appeal does not allege any express error on his Honour's part. Rather, it alleges implied error. In order for the ground to succeed, the appellant must demonstrate that the sentence that was imposed for the offence is so unreasonable or unjust that this court should conclude that a substantial wrong has occurred. It follows from this that this court will not intervene simply because had it been sentencing the appellant at the original hearing, a different sentence might have been imposed: House v The King [1936] HCA 40; (1936) 55 CLR 499 (505).

14 The orthodox approach in determining whether a sentence is manifestly excessive is to examine it from the perspective of the maximum penalty for the offence, the standard of sentencing customarily observed with respect to the 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.

15 The thrust of the appellant's written and oral submissions is that the sentence imposed upon him is inconsistent with the outcomes in a number of cases which he says are comparable. The cases cited by the appellant are: Ye v The State of Western Australia [2016] WASCA 103; Stokes v The State of Western Australia [2016] WASCA 87; Phan v The State of Western Australia [2014] WASCA 144; Hoang v The State of Western Australia [2015] WASCA 130; Kitis v The State of Western Australia [2013] WASCA 34; Bond v The State of Western Australia [2011] WASCA 123; Galbraith v The State of Western Australia [2011] WASCA 70; Pham v The State of Western Australia [2011] WASCA 244; Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Tanner v The State of Western Australia [2013] WASCA 142; and The State of Western Australia v Atherton [2009] WASCA 148.

16 As this court has said on many occasions, the guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

17 A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

18 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

19 These propositions are well established by the case law, and were recently reiterated by Buss JA in Tran v The State of Western Australia [2016] WASCA 37 [24] - [26].

20 The maximum penalty for the offence committed by the appellant is the same for a completed offence, that is, 25 years' imprisonment or a fine of $100,000 or both: see s 33(1) read with s 34(1)(a) MDA.

21 The major sentencing considerations for offences of the type committed by the appellant 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. The greater the weight and the purity of the drugs the greater the potential harm to the community. Other relevant matters include the nature and level of the offender's participation in the transaction within a particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to the offender will almost always be subsidiary considerations, but they are not completely irrelevant: see Tran [29].

22 We have taken into account the cases cited by the appellant. It is unnecessary to examine each and every one of them in detail. It is enough to say that the sentence imposed upon the appellant in the present case is broadly consistent with the outcomes in those cases. A comparison of the sentence imposed upon the appellant with the cases does not indicate that his Honour erred.

23 The offence committed by the appellant was a serious one of its kind. The appellant travelled from Hong Kong to Perth specifically to play a pivotal role in the distribution of a large quantity of high purity methylamphetamine into the community. While the appellant may not have been involved directly in the sale and supply of the methylamphetamine, he was no mere courier. The offence was committed solely for commercial gain. The appellant told the court today that the money he was to be paid would have been used to pay his fiancée's debts and for her medical care. Assuming these matters are true, they do not detract from the commercial purpose of the offence. The offence was executed with some ingenuity, persistence and commitment. The appellant's conduct exhibited a high degree of criminality.

24 The most significant mitigating factor was the appellant's plea of guilty. The other mitigating factors, while not irrelevant, could not be accorded much weight, having regard to the need to appropriately punish the appellant and provide appropriate personal and general deterrence.

25 Having regard to all of the relevant circumstances, we are of the opinion that the sentence imposed upon the appellant was clearly within the range of a sound exercise of the sentencing discretion. The sentence imposed upon the appellant was not unreasonable or unjust. It is not manifestly excessive. We are satisfied that the ground has no reasonable prospect of succeeding. Accordingly, the appeal must be taken to have been dismissed.

1. Leave to appeal on the proposed ground is refused.
2. The appeal is dismissed.