Court of Appeal (WA)|2011-11-04|Before: Lure P, Mazza J

PHAM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 244 (4 November 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PHAM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 244

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Manifest excess - Turns on own facts

Cameron v The Queen [2002] WASCA 81

Giglia v The State of Western Australia [2010] WASCA 9

Kezkiropoulos v The Queen [2002] WASCA 352

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

Stapleton v The Queen [2004] WASCA 130

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

1 McLURE P: This is an application for leave to appeal against sentence.

2 The appellant was convicted on his fast-track plea of guilty of:

- possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act), being 498.7 g of methylamphetamine of between 47% - 52% purity (count 1);

- possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Act, being 167 g of heroin of between 64% - 66% purity (count 2);

- possession of $3,230 that was reasonably suspected of being unlawfully obtained (s 32 notice).

3 On 27 May 2011, the appellant was sentenced by Yeats DCJ to 7 years' imprisonment on count 1, 2 years' imprisonment on count 2 and 8 months' imprisonment for the offence the subject of the s 32 notice, which was ordered to be served concurrently. The sentences on counts 1 and 2 were ordered to be served cumulatively, resulting in a total effective sentence of 9 years' imprisonment. The only ground of appeal is that the sentence on count 1 is manifestly excessive.

4 The relevant facts are as follows. On 23 September 2010, the appellant arrived in Perth on a flight from Sydney. He was found by police to be in possession of the drugs and money the subject of the convictions. The drugs were located in two separate vacuum sealed bags wrapped in black socks in the appellant's luggage. He had $3,230 in cash in his wallet and in one of his socks. The cash was part of a sum of $10,000 paid to the appellant to convey the drugs to Perth.

5 The appellant was aged 52 at the time of sentencing. He was born and educated in Vietnam. He served in the Vietnamese Army until he fled to Hong Kong in 1988. In 1990, the appellant came to Australia with his wife and children. He had stable employment until July 2010. The appellant was under extreme financial duress at the time of the offending. His wife had incurred very considerable gambling debts which they were unable to repay.

6 The sentencing judge found that the appellant was deeply sorry that he had been caught and for bringing shame on his family. She sentenced him as a person involved in the drug trade on a purely commercial basis. The sentencing judge continued:

In sentencing [the appellant] I look first at the overall circumstances, not just the quantity and purity of the drugs but the role that [the appellant] played in the distribution or effort to distribute this large amount of methylamphetamine and heroin in Western Australia. [The appellant's] role was that of a courier but because of the very high purity of the drugs [the appellant was] involved near the top of the distribution of these drugs (ts 41).

7 The appellant had no relevant prior record of offending. The sentencing judge accepted that he had a one-off involvement in the commercial drug trade and was not himself a drug user.

8 This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. Manifest excess relies on the implication of error from the sentence itself. The appellant does not challenge the type of sentence imposed. Rather, he contends the sentence of 7 years on count 1 is too long.

9 When considering whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's personal antecedents.

10 The maximum penalty for an offence under s 6(1)(a) of the Act is 25 years' imprisonment. General deterrence is the primary sentencing consideration with the consequence that less weight is given to matters personal to an offender. The sentencing judge accepted the appellant's unchallenged claim that he did not know the quantity and purity of the drugs in his possession. Even so, the quantity and purity of the drugs remain relevant and important sentencing considerations. First, they impact on the scope and extent of the potential harm to the community. Secondly, they are part of the factual basis for the sentencing judge's finding that the appellant was involved near the top level of the distribution of the drugs in question. The evidence also established that the appellant had telephone contact with a person of interest who was closely involved in this large drug importation into Perth.

11 Regard is had to sentences customarily imposed in order to ensure broad consistency in the sentencing of offenders who have committed similar types of offences. Broad consistency is assessed by reference to all relevant sentencing considerations, including matters personal to the offender. On my review of the case law, the sentence of 7 years' imprisonment imposed for count 1 is broadly consistent with sentences imposed in comparable cases. See, in particular, Kezkiropoulos v The

Queen [2002] WASCA 352, The State of Western Australia v Toothill [2007] WASCA 236, Le v The Queen [2004] WASCA 214; (2004) 147 A Crim 269, Cameron v The Queen [2002] WASCA 81, Stapleton v The Queen [2004] WASCA 130, Monument v The State of Western Australia [2007] WASCA 239. Thus, the manifest excess claim must fail.

12 Further and in any event, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40]. The sentence of 2 years for possession of 167 g of heroin of between 64% - 66% purity is at the low end of the range of sentences customarily imposed. The order for cumulation was appropriate. There being no infringement of the totality principle, the court would decline to intervene even if error was demonstrated in relation to the sentence on count 1.

13 As the ground of appeal has no reasonable prospect of succeeding, leave to appeal must be refused and the appeal dismissed.

Cameron v The Queen

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PHAM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 244 (4 November 2011)

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