Criminal law - Appeal against sentence - Conviction after trial - Possession of a prohibited drug with intent to sell or supply it to another - Total of 2.137 kilograms of methylamphetamine - Alleged implied error - Manifest excess - 14 years 6 months' imprisonment

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

Bull v The State of Western Australia [2019] WASCA 24

Chadburne v The State of Western Australia [2017] WASCA 216

Chen v The State of Western Australia [2017] WASCA 99

Fernando v The Queen [2017] VSCA 208

Gaskell v The State of Western Australia [2018] WASCA 8

Grenfell v The State of Western Australia [2018] WASCA 31

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

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

Mather v The State of Western Australia [2017] WASCA 148

Mikulic v The State of Western Australia [2011] WASCA 127

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

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

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

Neumann v The State of Western Australia [2013] WASCA 70

Ng v The State of Western Australia [2017] WASCA 124

Rinaldi v The State of Western Australia [2017] WASCA 48

Rowson v The State of Western Australia [2018] WASCA 82

Santos v The State of Western Australia [2016] WASCA 107

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

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

1. The appellant and Larry Wayne Bull were charged in the District Court on indictment as follows:[1]

Count 1 On a date unknown between 19 March 2015 and 28 March 2015 at Perth, Larry Wayne Bull had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

Count 2 On 27 March 2015 at Golden Bay [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

These offences are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and at the time carried a maximum penalty of 25 years' imprisonment and/or a fine of $100,000.

1. On 13 February 2017, Mr Bull was convicted of count 1 on his plea of guilty.[2] On 7 March 2017, the appellant was found guilty after trial of count 2 and was duly convicted.[3]
2. On 4 September 2017, Mr Bull was sentenced to 11 years 4 months' imprisonment with eligibility for parole, backdated to commence on 26 January 2017.[4] The appellant was sentenced to 14 years 6 months' imprisonment with eligibility for parole, backdated to commence on 18 February 2017.[5]
3. The appellant and Mr Bull have each appealed against their sentences. The appeals were heard separately on the same day before the same coram. The reasons in Mr Bull's appeal are to be delivered separately: Bull v The State of Western Australia [2019] WASCA 24.
4. The appellant relies on a single ground of appeal which alleges that the sentence that was imposed upon him was manifestly excessive. While we would grant leave to appeal in respect of the ground, the ground has not been made out and the appeal must be dismissed. Our reasons for these conclusions are as follows.

1. There is no dispute as to the facts of the offending. They may be summarised in this way.
2. The appellant and Mr Bull were close friends from their days in high school. The appellant trusted Mr Bull.[6]
3. On 22 January 2015, the appellant's partner, Ms Jaclyn Evans, with the appellant's knowledge, entered into a contract to purchase a property at 2320 Mandurah Road, Golden Bay on which was built a house and a swimming pool (the property). Settlement of the purchase of the property occurred on 27 March 2015.[7]
4. Prior to settlement, the appellant and others attended at the property on several occasions to perform various works.[8]
5. On 19 March 2015, the appellant suffered an injury to his ankle, as a result of which he was hospitalised.[9]
6. From his hospital bed, the appellant arranged for further work to be performed at the property. The appellant also spoke to Mr Bull by telephone on a number of occasions from his hospital bed. These telephone conversations were lawfully intercepted and recorded by the police. The relevant recordings were played at the appellant's trial.[10] On several occasions between 20 and 24 March 2015, Mr Bull attended at the property. Mr Bull also visited the appellant in hospital on 25 March 2015.[11]
7. At the appellant's instruction, on 24 March 2015, Mr Bull obtained a large quantity of high-purity methylamphetamine from an unknown source. The appellant instructed Mr Bull to take the drugs to the property and hide them there.[12] Mr Bull did as he was instructed. He buried two packages containing methylamphetamine near the swimming pool and secreted a third package into a ceiling recess inside the house.[13]
8. On 27 March 2015, police officers executed a Misuse of Drugs Act search warrant at the property and discovered all three packages of methylamphetamine. Of the two packages buried near the swimming pool, one contained 986 g of 77% pure methylamphetamine and the other contained 988 g of 77% pure methylamphetamine. The package in the ceiling recess contained 163 g of 67% pure methylamphetamine. The total weight of methylamphetamine found on the property, the subject of the counts in the indictment, was 2.137 kg, the great bulk of which was 77% pure.[14] If sold by the kilogram, the methylamphetamine was worth approximately $500,000. If distributed in smaller amounts of methylamphetamine 'cut' to increase the quantity, the potential value was 'significantly greater'. His Honour found that given the quantity and purity of the methylamphetamine, it would have been 'reduced' into smaller quantities and then 'cut', thereby 'significantly increasing' the profit to be made.[15]
9. Later on 27 March 2015, the police executed a search warrant at the appellant's home. The home had CCTV security surveillance and other security measures consistent with, and supporting, the inference that the appellant was dealing in illicit drugs. Further, the police located a vacuum-sealing machine and a quantity of vacuum-seal bags which were similar to, or the same as, the bags in which the methylamphetamine was found. The police also located a roll of paper towels similar in appearance to the paper towel in which the drugs in the ceiling recess had been wrapped.[16]
10. His Honour found that the appellant exercised control over the property from at least mid-March 2015, including working on it himself until he was injured and admitted to hospital on 19 March 2015. The appellant continued to exercise control over the property while he was in hospital by arranging for other people to work on it. The appellant exercised control over the methylamphetamine which had been secreted there by telling others to keep away from the areas where the drugs were hidden. His Honour found that at the meeting in hospital on 25 March 2015, the appellant and Mr Bull discussed the drugs that had been hidden on the property and that it was likely Mr Bull told the appellant exactly where the bulk of the drugs had been buried.[17]
11. His Honour found that the appellant exercised control over the drugs while he was in hospital for the purpose of selling and supplying them when he was discharged from hospital. His Honour found that the appellant and Mr Bull agreed that Mr Bull would be paid $10,000 for his role in sourcing the drugs and hiding them.

1. The appellant was 31 years of age when he was sentenced. He grew up in a supportive family. He experienced learning difficulties and left school after completing year 10. He has attention deficit hyperactivity disorder (ADHD). He has problems with literacy and numeracy.[18] After leaving school, the appellant worked as a labourer, but in about 2012 he suffered a serious neck injury. Since then he has not been employed.[19]
2. The appellant has a criminal and traffic record which the sentencing judge (correctly) described as 'extensive'.[20] He has been convicted of being disorderly in a public place, possession of weapons, possession of prohibited drugs, offences involving violence (including assault occasioning bodily harm in 2013 and 2005), driving while disqualified and breach of bail. In 2009, he was sentenced to 12 months' immediate imprisonment for an offence of deprivation of liberty.[21] Of particular significance to the present case, on 9 August 2013, the appellant was sentenced in the District Court to 1 year and 9 months' immediate imprisonment for an offence of possession of methylamphetamine with intent to sell or supply it to another.[22] The quantity of methylamphetamine involved in that offence was 4.27 g with a purity of 75%. The appellant was sentenced on the basis that the methylamphetamine was partly for his own use.[23]
3. The sentencing judge was provided with a psychiatric report by Dr Sam Febbo. Dr Febbo expressed the opinion that the appellant had an intellectual disability and 'intellectual mild development disorder'.[24] However, his Honour rejected these opinions.[25] No issue is taken with this conclusion.
4. His Honour was also provided with a report written by a neuropsychologist, Dr Mandy Vidovich. Dr Vidovich concluded that the appellant was not intellectually disabled, but suffered from a low level of cognitive functioning consistent with a diagnosis of ADHD and the learning difficulties the appellant experienced at school. She expressed the opinion that these conditions were 'influential' in the appellant's offending.[26] The sentencing judge did not accept this opinion.[27] No issue is taken with this conclusion.
5. His Honour found that there was no causal link between the appellant's ADHD and the offending. His Honour found that the appellant was fully aware of what he was doing.[28] His Honour said that the appellant's actions were not those of a person suffering from a mental impairment.[29] He also found that the need for personal and general deterrence was not reduced by reason of the learning difficulties the appellant has experienced.[30]
6. It is clear from the numerous character references that were provided to the sentencing judge that the appellant has the continued support of his family and others in the community.[31]

1. In addition to the findings of fact we have summarised, the description of the appellant's personal circumstances and the findings as to the appellant's alleged mental impairment, his Honour made other findings as follows:

(1) The appellant's drug dealing was solely for the purpose of commercial gain.[32]

(2) The appellant (and Mr Bull) 'were each involved towards the upper end of the distribution chain close to the supply or source [of the methylamphetamine]'.[33]

(3) The offending involved, particularly on the part of the appellant, extensive planning, organisation and coordination.[34]

(4) In planning and coordinating the offence, the appellant exhibited an awareness or appreciation of the risks of detection and spoke in code in his telephone conversations with Mr Bull and others.[35]

(5) The community could have suffered significant harm had the drugs not been seized.[36]

(6) Apart from the appellant's learning difficulties, 'there were really no mitigating circumstances'.[37]

(7) Mr Bull's role in the commission of the offence was important, but was less significant than the appellant's.[38]

(8) It was clear from the intercepted telephone conversations that the appellant was 'quite capable of manipulating and instructing others as to what to do and ordering people around'.[39] One of the 'others' his Honour referred to was Mr Bull.[40]

(9) The appellant would have been involved in the distribution of the drug into the community.[41]

1. Senior counsel for the appellant submitted that the sentence of 14 years 6 months' imprisonment was manifestly excessive having regard to the appellant's place in the drug hierarchy and the outcomes in comparable cases, including Rowson v The State of Western Australia;[42] Gaskell v The State of Western Australia;[43] Chadburne v The State of Western Australia[44] and Milenkovski v The State of Western Australia.[45] Senior counsel submitted that there had been a 'compression' of sentences in respect of drug trafficking offences involving large quantities (in the kilograms) of illicit drugs such as methylamphetamine. He submitted that having regard to the outcomes in the cases he cited, all of which involved quantities of methylamphetamine considerably greater than in the appellant's case, the sentence imposed upon the appellant was excessive. Senior counsel cited the Victorian case of Fernando v The Queen[46] as providing some guidance to this court.[47]
2. Senior counsel also referred this court to some matters personal to the appellant including his limited literacy, his serious neck injury, his drug problem and his supportive family.[48]
3. Senior counsel accepted that the appellant 'was higher up the hierarchy than [Mr Bull]'.[49]

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates an express or implied material error. In the present appeal, the appellant alleges that his Honour made an implied or inferred error. Such an error arises where, while it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[50] Thus, this court cannot intervene simply because, had this court been sentencing the offender at first instance, it might have imposed a different sentence.
2. The orthodox approach to a claim of manifest excess is to examine the sentence 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.
3. Because of the reliance the appellant places on comparable sentences, it is necessary to say something more about this factor. Systematic fairness in the administration of justice involves, amongst other things, reasonable consistency.[51] Reasonable consistency in this context requires consistency in the application of the relevant legal principles[52] and a consideration of what has been done in other cases. However, care must be taken in the use of what has been done in other cases. [53]
4. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The range is a yardstick or reference point for ensuring consistency, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. 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, and are no more than historical statements of what has happened in the past.[54] A disparity between the sentence in question and the range of sentences customarily imposed is but one pointer towards implied error.[55] When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of a sound exercise of the sentencing discretion.[56]

1. The approach to sentences for offences against s 6(1)(a) of the Misuse of Drugs Act is well established. In Rowson v The State of Western Australia,[57] that approach was described in these terms:

The principal sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. The weight of the drugs is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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. (citations omitted)

1. We have already set out the maximum penalty for an offence under s 6(1)(a) of the Misuse of Drugs Act.
2. In Gaskell v The State of Western Australia, the plurality reviewed the sentences imposed in cases involving a very large quantity of methylamphetamine.[58] In doing so, their Honours summarised the facts and circumstances of a number of cases, including Zanon v The State of Western Australia;[59] Neumann v The State of Western Australia;[60] MSO v The State of Western Australia;[61] Milenkovski v The State of Western Australia;[62] Rinaldi v The State of Western Australia;[63] Mikulic v The State of Western Australia;[64] Santos v The State of Western Australia;[65] Chen v The State of Western Australia;[66] Ng v The State of Western Australia[67] and Chadburne. We incorporate into these reasons the summary of those cases.
3. In Gaskell itself, the offender pleaded guilty to seven charges. The most serious of these charges was count 1 which alleged possession of 21.74 kg of methylamphetamine with a purity of between 73.5 - 80.3%. The value of the drug if sold in 1 kg parcels was approximately $4.3 million.[68] The primary judge found that the offender was engaged in the distribution of drugs 'at the very highest level of commercial activity', although he accepted 'that there was someone higher than the appellant in the hierarchy'. His Honour described the offending as 'at a very high level of objective criminality and extremely serious' and said that it 'was only really the absence of prior drug offending convictions ... that meant it was not appropriate to use the maximum punishment as the starting point to the sentencing exercise'.[69] The offender pleaded guilty and was given a reduction of 12% pursuant to s 9AA of the Sentencing Act 1995 (WA). It was accepted that he had no relevant history of offending and that his antecedents appeared to be good.[70] At first instance, the appellant was sentenced to 18 years 6 months' imprisonment. The total effective sentence, taking into account the other offences, was 20 years' imprisonment. The offender challenged the individual sentence imposed on count 1 and the total effective sentence.[71]
4. The plurality (Mazza and Beech JJA) concluded that the sentence of 18 years 6 months' imprisonment was manifestly excessive. Their Honours substituted a sentence of 16 years' imprisonment on count 1 and reduced the total effective sentence to 18 years' imprisonment.[72] In separate reasons, Buss P also upheld the claim that the sentence on count 1 was manifestly excessive, but not the claim against the total effective sentence. His Honour would have imposed a sentence of 16 years 6 months' imprisonment on count 1.[73]
5. In their discussion of the comparable sentences, the plurality concluded that the outcomes in other cases provided limited assistance.[74] Their Honours noted that, with the exception of the sentence imposed on the offender Quaid in Zanon v The State of Western Australia, the highest sentence for a single offence, contrary to s 6(1)(a) of the Misuse of Drugs Act had been in the region of 14 to 15 years.[75]
6. In Rowson v The State of Western Australia, the offender was convicted after trial of three offences, including two offences of possession of methylamphetamine with intent to sell or supply it to another (counts 1 and 2). For present purposes, it is only necessary to refer to the facts of count 1. This count related to about 2.131 kg of methylamphetamine which was located by police in and about a spa at the offender's house, together with an unascertained additional quantity dissolved in spa water which had been disposed of on the offender's lawn.[76] The premises occupied by the offender had features and paraphernalia consistent with drug dealing. Present in the house were numerous weapons. A photograph taken about two weeks before the police entered the house showed the appellant displaying cash totalling at least $400,000. At the time of his arrest, the offender was processing the drug for its distribution.[77] The offender was sentenced to 15 years' imprisonment in respect of this offence.[78] At the time of sentencing, the offender was 31 years of age and had a lengthy record of prior convictions, including four convictions in the Magistrates Court for possession of a prohibited drug with intent to sell or supply, three of which related to methylamphetamine.[79] Leave to appeal was refused.[80]
7. At the hearing of the current appeal, the case of Mather v The State of Western Australia[81] was discussed with senior counsel.[82] This case concerned an appeal by a co-offender in Rowson v The State of Western Australia and involved the same quantity of methylamphetamine. Mather pleaded guilty (and received a discount of 15%, pursuant to s 9AA of the Sentencing Act) and was sentenced to 12 years 6 months' imprisonment.[83] On the day of the offence, Mather (who was at the time subject to a suspended imprisonment order) was observed by police to purchase the methylamphetamine from a patched member of an outlaw motorcycle gang. Mather brought the drug to Mr Rowson's house and assisted him in processing it.[84] Mather was 35 when he was sentenced. He had a lengthy criminal history, including a prior conviction in a court of summary jurisdiction for an offence contrary to s 6(1)(a) of the Misuse of Drugs Act.[85] Leave to appeal against sentence was refused.[86]
8. As McLure P pointed out in Zanon, there is a cluster of cases in which a total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 and 12 years' imprisonment.[87]
9. Leaving aside the sentence imposed on the offender Mr Quaid in Zanon, and including Gaskell, the highest sentence for a single count undisturbed or imposed by this court is now 16 years' imprisonment.
10. There is another cluster of cases involving or including single counts of possession of a prohibited drug with intent to sell or supply it to another where sentences range between 12 years and 14 years 6 months' imprisonment. Some of the individual sentences towards the upper end of this range have been upheld in this court for offences involving a quantity of a prohibited drug greater than in the present case.
11. For example, in Milenkovski, the offender was convicted after trial of two counts. Count 1 involved the possession with intent to sell or supply of 2.675 kg of methylamphetamine with a purity of between 17% and 19%, and count 3 involved the attempted possession of 4.983 kg of methylamphetamine with a purity of between 53% and 69%.[88] The offender was sentenced to 12 years' imprisonment on count 1 and 14 years 6 months' imprisonment on count 3.[89] Appeals against the individual sentences on the grounds of manifest excess were dismissed.[90]
12. In Chen, the offender was convicted after trial of one count of possession of 3.426 kg of methylamphetamine with a purity of between 80% and 81%. The offender was sentenced to 14 years' imprisonment.[91] Leave to appeal on the ground that this sentence was manifestly excessive was refused.[92]
13. In Chadburne, the offender was convicted after trial of four counts of possession of a prohibited drug with intent to sell or supply, and one other offence. Count 1 concerned the transportation from Sydney to Perth of 8.4153 kg of MDMA with a purity of 30%. The offender was sentenced to 14 years 6 months' imprisonment in respect of this count.[93] One of the grounds of appeal alleged that this sentence was manifestly excessive. The ground was dismissed.[94]
14. If the quantity of an illicit drug was the most important sentencing consideration, there may be some merit in the appellant's ground of appeal. However, as we have already said, quantity (and purity) are important, but are not generally the chief factor to be taken into account in fixing a sentence. There are additional matters which must also be taken into account.
15. In the present case, the quantity of methylamphetamine was very substantial and its purity was high. The appellant orchestrated the acquisition of the methylamphetamine, and directed that it was to be secreted on a property which he, in effect, controlled. He carried out the offence with persistence. Even while incapacitated in hospital, he, through Mr Bull, directed the operation. The offending was committed for commercial gain. The appellant would have been involved in distributing the drug into the community.
16. There was very little that could be said in mitigation. The appellant did not plead guilty and, accordingly, could not claim the mitigation that a plea of guilty would have given him. He is a man of mature years. His antecedents are unfavourable. Other matters personal to him could carry only modest weight, given the need for general deterrence. Although the fact that the appellant had a prior criminal record and the fact that previous sentences imposed on him had not achieved the purposes for which they were imposed did not aggravate the seriousness of the offending in question, they indicated that the appellant was not entitled to any leniency on the ground that he was ordinarily of good character. His prior conviction for drug trafficking underscored the importance of personal deterrence as a relevant sentencing consideration.
17. It is clear that the appellant was at the upper end of the drug distribution chain and was close to the supply or source of the drugs. The appellant was the principal offender and told Mr Bull what to do.
18. We have read the case of Fernando v The Queen. It does not assist in resolving the issues raised for decision by this court in the present case.
19. Having regard to the maximum penalty, the facts and circumstances of the offending, the comparable cases, the appellant's personal circumstances, the need to provide appropriate punishment, and general and personal deterrence, we have not been persuaded that the sentence imposed upon the appellant was unreasonable or plainly unjust. It is not manifestly excessive. Implied error has not been established. The ground of appeal must be dismissed with the consequence that the appeal is dismissed.

1. Leave to appeal is granted.
2. The appeal is dismissed.

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

[42] Rowson v The State of Western Australia [2018] WASCA 82.

[43] Gaskell v The State of Western Australia [2018] WASCA 8.

[44] Chadburne v The State of Western Australia [2017] WASCA 216.

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

[46] Fernando v The Queen [2017] VSCA 208.

[50] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].

[51] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [6] (Gleeson CJ).

[52] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[55] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

[56] Grenfell v The State of Western Australia [2018] WASCA 31 [59] (Buss P, Beech JA & Hall J).

[57] Rowson v The State of Western Australia [36].

[59] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.

[60] Neumann v The State of Western Australia [2013] WASCA 70.

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

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

[63] Rinaldi v The State of Western Australia [2017] WASCA 48.

[64] Mikulic v The State of Western Australia [2011] WASCA 127.

[65] Santos v The State of Western Australia [2016] WASCA 107.

[66] Chen v The State of Western Australia [2017] WASCA 99.

[67] Ng v The State of Western Australia [2017] WASCA 124.

[72] Gaskell [80], [153], [157].

[73] Gaskell [13], [76] - [77].

[77] Rowson [7] - [9], [14].

[81] Mather v The State of Western Australia [2017] WASCA 148.

[83] Mather [2], [4] - [5].

[84] Mather [3], [8] - [9].

[88] Milenkovski [20], [23], [25], [37], [44].

[90] Milenkovski [1], [191], [208].

[92] Chen [32], [41] - [42].

[93] Chadburne [1] - [2], [8].

[94] Chadburne [3] - [4], [66], [72].