Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Whether sentence manifestly excessive

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

Sentencing Act 1995 (WA), s 9AA

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

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

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

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

Kezkiropoulos v The Queen [2002] WASCA 352

Lai v The State of Western Australia [2012] WASCA 181

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

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

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

Wilson v The State of Western Australia [2010] WASCA 82

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA, with which I agree.

3 MAZZA JA: This is an appeal against sentence.

4 On 4 May 2013, the appellant flew from Sydney to Perth. As he walked to the taxi rank at Perth Airport, he was stopped by police. A search of his luggage revealed that he was carrying four professionally-sealed tins of what appeared to be jasmine tea. Secreted beneath the tea leaves in each tin were bags of methylamphetamine. Altogether, five bags of methylamphetamine were discovered. The total weight of methylamphetamine being carried by the appellant was 1.0507 kg with an average purity of 73.9%.

5 In what was accepted in the sentencing proceedings to be a candid interview with police, the appellant said:

(b) he had been given the drugs in their sealed container in Sydney and had been instructed to bring them to Perth;

(c) he expected to receive instructions as to where to deliver them after his arrival;

(e) he had taken drugs from Sydney to Perth twice before and on each of these occasions he was paid $5,000;

6 The appellant told the author of the pre-sentence report that he had approached a drug dealer through friends in Sydney, offering to act as a courier.

7 At the time of the offence he was 19 years of age. He was 20 when he was sentenced. The appellant had no prior record of offending. He came from an impoverished background. The references tendered to the

sentencing judge, including a heartfelt letter from his mother, spoke of his positive personal qualities.

8 The appellant was charged with possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), an offence which carries a maximum penalty of 25 years' imprisonment or a fine of $100,000 or both: s 34(1)(a). On 19 September 2013, he pleaded guilty on the fast-track system. He was sentenced that day to 7 years 4 months' imprisonment with eligibility for parole, backdated to commence on 4 May 2013.

9 The appellant relies on one ground of appeal which reads:

The learned sentencing judge made an error of law in imposing a sentence of 7 years and 4 months immediate imprisonment for the count of possession of methylamphetamine with intent to sell or supply which was manifestly excessive having regard to the circumstances of the offence and the appellant's personal circumstances.

Particulars

• Remorse
• Mental health issues
• Youth
• Rehabilitation
• Starting point of sentence

10 Leave to appeal has been granted with respect to this ground.

11 None of what follows was challenged by the appellant.

12 His Honour accepted that the appellant was brought up by his mother in impoverished circumstances. As a result, he felt responsible to financially support and provide for his mother. The learned sentencing judge found that part of the motivation for the offending was to provide his mother with financial support. He also wanted money for himself. His Honour acknowledged as mitigating factors all of the matters raised by the appellant in the particulars to his ground of appeal.

13 As to the plea of guilty, his Honour gave the maximum discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour had before him expert reports and other materials which showed that the appellant had, for some time, been suffering from a depressive illness. His Honour found that although there was some causal connection between the offending and this illness, its mitigatory effect was limited because the appellant was fully aware of the wrongfulness of his actions.

The sentencing judge's unchallenged findings as to the seriousness of the offence

14 His Honour noted the very large quantity and high purity of the methylamphetamine which the appellant carried, but correctly noted that these matters were not determinative of the seriousness of the offence. His Honour drew attention to the deleterious nature of methylamphetamine and the harm caused to the community by it. His Honour observed that the methylamphetamine was of such a purity that is was highly likely it would be further cut or diluted. His Honour found that although the appellant did not precisely know what drug he was carrying, he knew that the tins contained a significant and valuable quantity of a prohibited drug.

15 His Honour described the appellant's role as that of a courier. He said that this role was not as 'high up' as that of the purchaser of the drugs. Nonetheless, his Honour said that the appellant's role was 'integral to the distribution of this dreadful drug into this State'.

16 His Honour acknowledged the appellant's candid admissions to the police about his commercial motivation for the offending and that he had been a courier of drugs into Western Australia on two prior occasions. In light of this last matter, his Honour said that the appellant could not be sentenced on the basis that the offence was a 'one-off isolated incident of criminal conduct'.

17 His Honour assessed the appellant's risk of reoffending as 'probably low or perhaps low to moderate'. He said that he did not think that the protection of the public or personal deterrence 'loom[ed] large'. His Honour said that he had regard to this court's reasons in Bond v The State of Western Australia [2011] WASCA 123 and the cases referred to in that case in fixing the appropriate sentence.

The general principles relevant to appeals against sentence

18 The relevant general principles which must be applied to this case are well established and were accurately and succinctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated here.

The orthodox approach to an allegation of manifest excess

19 Whether a sentence is manifestly excessive (or inadequate) requires a consideration of the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

20 The appellant's written and oral submissions go beyond the particulars of the ground of appeal and allege, in effect, that the sentence that was imposed was manifestly excessive having regard to:

(f) that he will be serving his sentence away from his family and friends in Sydney.

21 The appellant also submitted that the sentence would be crushing for the appellant in that he would abandon attempts to rehabilitate himself.

22 The respondent submitted that the predominant sentencing considerations were punishment and deterrence and that the appellant's favourable subjective circumstances were outweighed by the seriousness of the offending. The respondent emphasised the quantity and purity of the methylamphetamine the appellant carried and the commercial motivation for his offending. The respondent also submitted, having regard to the previous trips undertaken by the appellant, that it could not be said the offence was a one-off aberration.

23 I have already referred to the maximum penalty for the offence of possessing a prohibited drug such as methylamphetamine with intent to sell or supply it to another.

24 The case law in this area establishes that the major sentencing consideration for offences of dealing or trafficking in dangerous drugs of addiction such as methylamphetamine 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. See Tanner v The State of Western Australia [2013] WASCA 142 [196] (Buss JA, with whom Martin CJ and I agreed).

25 Couriers such as the appellant play an important role in the distribution of prohibited drugs in the community. In the absence of individuals undertaking this role, the dissemination of drugs into the community would become much more difficult. I respectfully agree with the learned sentencing judge that although the appellant in this case was not as culpable as others in the drug hierarchy, his role was integral.

26 An aggravating factor in this case was that the appellant was motivated by commercial gain. His impoverished circumstances and his desire to provide for his mother were not significantly mitigatory. It cannot be ignored that the appellant brought into Western Australia a very substantial amount of methylamphetamine with a high purity. The potential for it to be further cut or diluted is obvious.

27 An unusual and aggravating factor in this case is that it was the appellant who sought out the drug dealer and offered that person his services as a courier. It may be thought that dealer regarded the appellant as someone who, by virtue of his good antecedents, was trustworthy and unlikely to attract the attention of law enforcement officers. If the experience of this court is anything to go by, it is usually the drug dealer who seeks to recruit, and often to exploit, persons who are vulnerable to act as couriers. This is not the case here.

28 The offence committed by the appellant was not, as his Honour observed, a one-off aberration. Although the appellant is not to be sentenced for offences for which he has not been charged, it is relevant that he had, on two prior occasions, brought prohibited drugs into Western Australia. The appellant's prior conduct casts the present offence in the light of persistent and calculated behaviour.

29 It must be accepted that the appellant's personal circumstances were favourable. He pleaded guilty at the first available opportunity, he is genuinely remorseful and poses a low to moderate risk of further similar offending. He is very young. His depressive illness was, to some extent, causative of his behaviour, but it does not substantially diminish his culpability because, as the learned sentencing judge pointed out, the appellant at all times knew that what he was doing was wrong. The appellant's prospects of rehabilitation are good. It is clear that he is well-supported by family and friends and has, in my view, the capacity to make something positive of his life in the future. Contrary to his counsel's submission, I do not think that, as a result of his imprisonment, it is likely that he will abandon his rehabilitation. In any event, his rehabilitation is largely a matter for him. No doubt having to serve a lengthy term of imprisonment in Western Australia, away from his family and friends, will be a matter of hardship for him.

30 I have had regard to a number of sentencing cases decided by this court which have features similar to the present case, including Kezkiropoulos v The Queen [2002] WASCA 352; The State of Western Australia v Toothill [2007] WASCA 236; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Pham v The State of Western Australia [2011] WASCA 244; Lai v The State of Western Australia [2012] WASCA 181; Tanner; and Guler v The State of Western Australia [2014] WASCA 83.

31 His Honour referred to this court's decision in Bond. In that case, the appellant pleaded guilty after committal to possession of 3.061 kg of low-grade methylamphetamine (the purity varied between 3 to 7%) which was concealed in a car. After a trial of issues, the learned sentencing judge found that the appellant, who was 23 years of age at the time of the offence, had acted as a courier. The offender in that case was sentenced to 9 years' imprisonment. Newnes JA, with whom McLure P and Hall J agreed, concluded that the sentence was manifestly excessive and resentenced the appellant to 7 years' imprisonment with eligibility for parole. While the gross quantity of methylamphetamine in that case was greater than in the present case, the purity of the drug here was much greater.

32 The assistance that can be gained from past cases is limited. Historical sentencing outcomes are a yardstick against which to measure a proposed sentence to ensure broad consistency. But such cases do not fix the range of a sound sentencing discretion. Ultimately, each case must be decided upon a consideration of its own facts and circumstances. Having said this, upon my reading of the cases, the sentence imposed upon the appellant was broadly consistent with the comparable cases. The comparable cases do not point to error.

33 Although the appellant's subjective circumstances were favourable, these factors carry less weight because of the importance that must be attached to general deterrence.

34 The sentence imposed upon the appellant was, in my opinion, substantial, but I have not been persuaded that it was unreasonable or plainly unjust. Having regard to all of the relevant circumstances, it has not been demonstrated that his Honour fell into error in the exercise of his sentencing discretion. Accordingly, the ground of appeal must fail and the appeal must be dismissed.