File No : IND 1138 of 2015, IND 1505 of 2015

Criminal law - Appeal against sentence - One count of possession of methylamphetamine with intent to sell or supply - Misuse of Drugs Act 1981 (WA), s 6(1)(a) - Total of 1.014 kg of methylamphetamine of high level purity - Appellant more than courier - Sentence of 8 years' imprisonment

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

Benter v The State of Western Australia [2005] WASCA 245

Chan v The Queen (1989) 38 A Crim R 337

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

Ly v The State of Western Australia [2015] WASCA 18

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

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

MSO v The State of Western Australia [2015] WASCA 78

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Nembousse v The State of Western Australia [2015] WASCA 68

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

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

2 NEWNES JA: This is an application for leave to appeal against sentence. The appellant was convicted in the District Court on his plea of guilty to one count of supplying methylamphetamine to another (count 1) and one count of possession of methylamphetamine with intent to sell or supply (count 2), contrary to s 6 of the Misuse of Drugs Act 1981 (WA) (the Act). He was sentenced by Staude DCJ to 5 years' imprisonment on count 1 and to 8 years' imprisonment on count 2, to be served concurrently.

3 The appellant contends that the sentencing judge made an express error in finding that he was 'more culpable than a mere courier' and that the sentence on the second count was manifestly excessive.

4 I would dismiss the application for leave to appeal and the appeal for the following reasons.

Background Count 1 - supplying methylamphetamine to another: s 6(1)(c)

5 On 28 January 2015, a third party arranged with the appellant's co-accused on this count, Mr Wang, to supply her with methylamphetamine at her home in Doubleview. That afternoon, Mr Wang and an associate drove to the appellant's Mounts Bay Road unit in a Toyota Hilux utility. The appellant walked out of the unit carrying a white plastic bag. In the bag was a perfume box containing 137 g of methylamphetamine with a purity of 80%. The appellant spoke briefly with Mr Wang before placing the plastic bag in the tray of the utility. The appellant walked back into his apartment and Mr Wang and his associate drove off.

6 Later that afternoon, police stopped the utility in which Mr Wang and his associate were travelling. A search of the vehicle located the perfume box containing the methylamphetamine in the tray of the utility.

Count 2 - possession of methylamphetamine with intent to sell or supply: s 6(1)(a)

7 On 12 February 2015, police executed a search warrant at the appellant's Mounts Bay Road unit. During the search, they located numerous used wet clipseal bags and latex gloves each with traces of white crystal or powder residue, two sets of digital scales, a large quantity of unused latex gloves and clipseal bags in various sizes, multiple mobile telephones, and multiple travel documents in the name of the appellant for

flights between Perth and Sydney, with the most recent being for a flight from Sydney to Perth on 11 February 2015. In a small manhole off the laundry area, a white plastic bag containing three clipseal bags was located. The first bag contained 24 g of methylamphetamine with a purity of 74%, the second bag contained 494 g of methylamphetamine with a purity of 78%, and the third bag contained 496 g of methylamphetamine with a purity of 88%. In total, the plastic bag contained 1.014 kg of methylamphetamine.

8 On 11 December 2015, the appellant pleaded guilty in the District Court to both counts.

9 The sentencing judge found that both counts related to significant amounts of high grade methylamphetamine and concluded that, although the appellant was not the owner of the drugs or the organiser of the enterprise, he was engaged at the high end of the chain of distribution of methylamphetamine.

10 His Honour noted that the appellant had been born in China. He was 20 years of age at the time of the offences and 21 years old at sentencing. His parents had separated when he was about 8 years of age and he was brought up largely by his grandparents. The appellant had come to Australia on a student visa that had since expired.

11 After he had ceased studying, the appellant had worked for three years as a ceiling fixer in Sydney before coming to Perth to look for work. According to the appellant, in Perth he had been recruited by a drug dealer and the offences had been committed at the direction of the drug dealer, who had provided him with accommodation and advanced him the sum of $27,000 for medical expenses for the appellant's grandfather who had become seriously ill.

12 The sentencing judge noted that whilst the appellant had not been shown to be instrumental in directing the distribution of the drugs, he had admitted that his task was to look after them. That task had involved delivery of the drugs. His Honour found that the appellant knew he was involved at a high level of dealing and that he was 'more culpable than a mere courier'. His Honour also found that from the airline boarding passes found in the appellant's unit, which indicated travel between Sydney and Perth on multiple occasions consistent with courier activity, it was clear that the offences were not isolated instances.

13 In sentencing the appellant, the sentencing judge took into account the appellant's plea of guilty, his young age and his prior good character. His Honour deducted 25% from the sentence that he would otherwise have imposed for the appellant's plea of guilty, which occurred at the earliest reasonable opportunity.

14 The appellant was sentenced to 5 years' imprisonment on count 1 and 8 years' imprisonment on count 2, those terms to be served concurrently, resulting in a total effective term of 8 years' imprisonment. The appellant was made eligible for parole.

15 The grounds of appeal, omitting the particulars, were as follows:

1. The learned sentencing Judge erred when he sentenced the appellant on the basis he was 'more culpable than a mere courier';
2. The sentence imposed for Count 2 ... was, in all the circumstances, manifestly excessive.

16 There is no merit in this ground. Counsel who appeared for the appellant before the sentencing judge (who was not counsel on the appeal) expressly conceded that it was not apposite to describe the appellant as a courier. That concession was properly made. The appellant's role was more aptly described by his counsel as 'aiding the principal in his drug dealings business' as 'a storeman, providing a safe house for the supply of the drugs' (ts 21 - 22). That role included delivery of the drugs, as his Honour found. The circumstances of the offending and the presence of the drug dealing paraphernalia in the appellant's unit amply demonstrated that his role was more than that of a courier.

18 In determining whether a sentence is manifestly excessive the sentence must be viewed in the light of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

19 It is important, however, to observe that while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39]. Caution must also be exercised in considering sentences imposed in other cases as inevitably there will be differences in the circumstances of the offences and the offender.

20 The maximum penalty for an offence under s 6(1)(a) of the Act is 25 years' imprisonment. The primary sentencing considerations are general and personal deterrence. The quantity and purity of the drug are generally not the chief factor but they are important because they affect the scope and extent of the potential harm to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

21 The offending was very serious. The quantity and high level of purity of the drugs in this case indicated, as the primary judge found, that the appellant was engaged at the high end of the chain of distribution. While he was not the owner of the drugs or the organiser of their distribution, he nevertheless played an important role in facilitating their distribution and he did so for commercial gain. It was also clear that this was not an isolated incident of offending by the appellant.

22 In support of his contention that the sentence was manifestly excessive the appellant relied upon the following cases: MSO v The State of Western Australia [2015] WASCA 78; Phan v The State of Western Australia [2014] WASCA 144; Ly v The State of Western Australia [2015] WASCA 18; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Pham v The State of Western Australia [2011] WASCA 244.

23 None of those cases assist the appellant. Ly, MSO and Milenkovski are not appropriate comparators. In those cases, the circumstances of the offending were very different and in MSO the offender received a very substantial discount from the total sentence that would otherwise have been imposed as a result of the very high level of cooperation he had provided, and which he had agreed to provide, to law enforcement agencies in respect of other offenders.

24 In Phan, the 19-year-old offender, described as a courier, had brought 1.0507 kg of methylamphetamine with a purity of 73.9% from Sydney to Perth. He admitted having couriered drugs on two previous occasions. An appeal against a sentence of 7 years and 4 months' imprisonment was dismissed. In Pham, the 52-year-old offender had brought 498.7 g of methylamphetamine of between 47% - 52% purity from Sydney to Perth. It was found that this was a one-off involvement by the offender in the drug trade. An appeal against a sentence of 7 years' imprisonment was dismissed.

25 Suffice it to say that in this case the appellant's offending was more than that of a courier and his offending was not a one-off involvement in the drug trade.

26 I have also had regard to a number of other cases, including Nembousse v The State of Western Australia [2015] WASCA 68; Monument v The State of Western Australia [2007] WASCA 239; Benter v The State of Western Australia [2005] WASCA 245; and Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522. It is unnecessary to canvass the details of those cases. What clearly emerges from them is that the sentence of 8 years' imprisonment on count 2 is broadly consistent with sentences imposed in comparable cases.

27 The appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.