Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply to another - Whether sentence of 17 years 6 months' imprisonment manifestly excessive - Whether sentence in breach of parity principle

Director of Public Prosecutions for Western Australia

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

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

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

Kezkiropoulos v The Queen [2002] WASCA 352

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

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

R v Kilic [2016] HCA 48; (2016) 259 CLR 256

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

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

Tago v The State of Western Australia [2018] WASCA 59

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

1. The appellant pleaded guilty to one count of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 17 years 6 months' imprisonment with eligibility for parole. The sentence was backdated to start on 19 July 2015.
2. The appellant appeals against the sentence on two grounds, that it was manifestly excessive and that it breached the parity principle having regard to the sentences imposed on two co-offenders. On 3 July 2017 Mazza JA granted leave to appeal in respect of the first ground and referred the application for leave in respect of the second ground to the hearing of the appeal.
3. For the reasons that follow we have concluded that the sentence is manifestly excessive and the first ground of appeal should succeed. It is unnecessary to determine the second ground of appeal, although questions of parity must be taken into account in the resentencing process.

1. The admitted facts were as follows.
2. At about 7.40 pm on Sunday 19 July 2015, the appellant was driving a white BMW X5 motor vehicle in the vicinity of the Karrinyup shopping centre. He met two men, Sam Tago and Phillip Simons, who were driving a white Nissan X Trail motor vehicle. The two cars were then driven in convoy in an easterly direction on Karrinyup Road.[1]
3. Just past the intersection of Karrinyup Road and Francis Avenue, both vehicles pulled over to the side of the road. The appellant got out of his vehicle and walked towards the other vehicle, which was parked behind him. He was carrying a black bag containing $89,650 in cash. He placed the bag into the rear passenger footwell of the Nissan X Trail and collected a black sports bag with a white Nike logo, which contained a quantity of methylamphetamine. The appellant then returned to his vehicle and placed the second black bag into the boot.[2]
4. These events were observed by undercover police officers. A short time later, police stopped the appellant's vehicle on Karrinyup Road near the intersection of Cedric Street. A search of the vehicle was conducted and recorded on video. The appellant told the police that there was an item in the rear of his vehicle that police would be interested in. He told police 'it's mine'. He also told police that the BMW X5 that he was driving was his wife's vehicle. He admitted that the black bag found in the rear of the vehicle contained drugs, specifically methylamphetamine. Police also found cash totalling $5,500 in a compartment in the driver's side door. The appellant told police that he had obtained this cash earlier in the week from the TAB.[3]
5. The weight of the methylamphetamine in the black bag was 11 kg. One of the police officers asked the appellant if he was being paid $500 per kilogram. This question appears to have been based on dividing the amount of cash by the number of kilograms of drugs. The appellant laughed and said 'that would be mad'. When one of the officers suggested that the appellant may only be a courier, the appellant rolled his eyes and said 'first time I've heard about it'.[4]
6. A Blackberry device was located by police and the appellant admitted that it was his. However, he told police that he did not know, or had forgotten, the password for the device. This device had a North American SIM card and was running on the 'Phantom Secure' network.[5]
7. As noted above, the black bag was found to contain 11 kg of methylamphetamine. Each kilogram was separately packaged in a Cryovac plastic bag and wrapped in orange Chux cloth material. The purity of the drugs in the bags ranged from 75% - 79%. The value of the drugs was estimated to be between $2.75 million (if sold wholesale in kilogram lots) and $11 million (if sold on the street in lots of 0.1 g).[6]
8. The appellant was taken to his home address in Stirling where a further search was conducted. No further relevant items were located and the appellant was then conveyed to a police station and bail was refused.[7]
9. The appellant first appeared in the Magistrates Court on 20 July 2015. He then appeared a further 20 times in the Magistrates Court before entering a plea of guilty in August 2016. The plea was entered after the preparation and service of a committal brief.[8]

1. The appellant is 52 years of age. He was born in Melbourne and remained living there until 2000. When he was about 5 years old his family returned to Greece for two or three years. On his return to Australia he had some language related learning difficulties. He spent a great deal of time as a teenager and young adult caring for a younger brother who had mental health issues.[9]
2. The appellant was good at sport and, in particular, was a talented soccer player. He also became interested in boxing and attended a gymnasium where drug use was condoned. He is not, and has never been, a drug user, other than some recreational use of cannabis as a teenager. However, he saw people making considerable amounts of money from drugs and was drawn into this sub-culture.[10]
3. In 2002 the appellant was convicted on his pleas of guilty of one offence of possessing methylamphetamine with intent to sell or supply and one offence of supplying a quantity of methylamphetamine to another. The offences were committed in 2000 when the appellant travelled to Perth from Victoria. He met another man at a hotel room and supplied him with a small quantity of methylamphetamine as a 'taster' from a larger quantity that he had in the room. When police later executed a search warrant on the room they found a plastic bag containing 422.5 g of methylamphetamine of 59.3% purity. The police also found two quantities of cash, in sums of $1,230 and $39,950. The appellant was sentenced on the basis that he was 'a courier for reward, delivering a bulk quantity of prohibited drug'. Sentences of 10 years' imprisonment for possession of the large quantity and 15 months' imprisonment concurrent for the supply offence were imposed. An appeal against the sentence of 10 years' imprisonment on the ground that it was manifestly excessive was dismissed.[11] On his release from prison in 2006, the appellant met and married his now wife. They have since had two children; girls aged 5 and 2 years at the time of sentencing. The appellant decided to remain living in Perth and began working as a boxing trainer. He was then employed as a driver and manager of a limousine service and as part-owner of a business trading in gold. The appellant fell into debt and this necessitated borrowing money from family members. He attributes financial pressure and a desire to provide a better financial future for his family as the reasons for committing the present offence.[12]
4. As mentioned above, the appellant is not a drug user and his motivation for committing the offence was entirely financial gain. The psychological report stated that the appellant has a profile that suggests that he suffers from anxiety and that he may also have experienced periods of depression in the past. There is nothing to suggest that these conditions were causative of the offending.

1. It is not suggested that there was any specific error in the sentencing judge's remarks. Accordingly, it is not necessary to analyse those remarks in any detail.
2. His Honour noted that the appellant's plea of guilty came after 21 appearances in the Magistrates Court. However, he accepted that the plea meant that it was not necessary to inconvenience a jury or witnesses. He concluded that the appropriate discount under s 9AA of the Sentencing Act 1995 (WA) was 20%.[13]
3. His Honour referred to the facts, the appellant's personal circumstances, the psychological report and character references tendered on the appellant's behalf.[14]
4. It was suggested on the appellant's behalf that his involvement in this offence was an isolated event that had been caused by increasing financial pressure. This was challenged by the State, which provided a statement from Sam Tago in which Mr Tago said that he had travelled to Western Australia on two previous occasions and met with the appellant and handed packages to him. There were no charges in respect of these previous meetings; however, the judge found that this evidence did serve to rebut the appellant's claim that his involvement was limited to his conduct on 19 July 2015.[15]
5. His Honour stressed the need for general deterrence and then referred to the role of the appellant:[16]

In your case clearly you knew that you were going to collect drugs. You knew, as is evidenced by what you said to the police, it was methylamphetamine. I accept that you may not have known the exact quantities, ie almost 11 kilograms, but you knew it was a significant quantity. And as I have said, you were prepared to involve yourself for what appears to have been at least a minimum of $5,500.

The monetary consideration to be paid seems to me not to be of significance. It's the fact that you were prepared to involve yourself in the distribution of these drugs by way of collecting them that marks the seriousness of this offence.

The whole aim of the legislation is to stop the distribution of these drugs within the community. It's put to me by Mr Nicholls that you were more than a traditional courier because you used the encrypted Blackberry. You met with others. You delivered cash. You collected methylamphetamine.

It seems to me it's probably not useful to try and put a tag or description on your role as opposed to punishing you for what your role is. And on any view of your role in this offence you were prepared to be involved in the distribution of drugs within the community for reward.

And the fact that you weren't at the top of the tree doesn't mean that you weren't an important part in this network of distribution of methylamphetamine. You played a significant role. You were clearly trusted to deliver money. You were trusted to take possession of the drugs. You were entrusted with an encrypted phone. And that's, of course, the very seriousness of the offence.

1. His Honour then noted that there was a need for personal deterrence in circumstances where the appellant had been convicted of trafficking drugs previously. The sentence previously imposed on the appellant had not served to deter him from becoming involved in drug trafficking again.[17]
2. His Honour concluded that only a sentence of immediate imprisonment was appropriate. He imposed a sentence of 17 years 6 months' imprisonment with eligibility for parole. The appellant was declared to be a drug trafficker. His Honour ordered that the sentence be backdated to commence from the date of the appellant's arrest on 19 July 2015.[18]

1. The grounds of appeal are as follows:[19]
   1. The sentencing judge erred by imposing a sentence that was manifestly excessive in the circumstances, having regard to the offender's plea of guilty, his role in the offence, the maximum penalty for the offence and the standards of sentencing customarily imposed.
   2. The sentence imposed had an injustifiable [sic] disparity with the sentences imposed on co-offenders Tikeri Tago and Phillip Simons.

1. The principles relevant to appeals on the ground that a sentence is manifestly excessive are well established. They were recently summarised by Mazza and Beech JJA in Gaskell v The State of Western Australia in the following terms:[20]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

(2) A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to 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, and the personal circumstances of the offender.

(3) [This paragraph is not relevant to the present case as it refers to the first limb of the totality principle]

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) 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.

1. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction 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. The greater the quantity and purity of the drugs, the greater the harm which may be done to the community. Other relevant factors include the nature and level of the offender's participation within a particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be a subsidiary consideration, though they are not completely irrelevant.[21]
2. The sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[22] The statutory requirement that a sentence must be commensurate with the seriousness of the offence reflects the common law principle that a sentence should be proportionate to the offence.[23]
3. At the relevant time, the maximum penalty for the offence of being in possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act was 25 years' imprisonment or a fine of $100,000 or both.[24]
4. Offending that is in the 'worst category' may warrant the imposition of the maximum penalty. Where offending, though grave, does not fall into this category, the sentencing judge is obliged to decide where the case falls on the spectrum extending from least serious instances of the offence to the worst category of the offence.[25] In doing so, account must be taken of the nature and facts of the offence and the circumstances of the offender.
5. As to the seriousness of this offence, it involved a large quantity of methylamphetamine with a high purity that was clearly intended for commercial sale. However, the appellant's participation was confined to a relatively short period of time and appears to have been limited to delivering the cash and receiving the 11 kg of methylamphetamine. Clearly he played an important and trusted role but there is nothing to suggest that he was in a high position in the hierarchy of distribution. On the other hand, his involvement was not confined to this instance and needed to be seen in the context of the evidence that he had received similar parcels on two previous occasions. His actions were motivated entirely by financial gain. The amount he expected to gain is unknown. This financial gain was not less than $5,500, though there were indications in the appellant's response to police enquiries that he expected to receive significantly more.
6. The appellant does not dispute that the offence was serious and deserving of an immediate term of imprisonment. The essential argument is that the length of the term was manifestly excessive having regard to comparable cases, the appellant's role and the particular circumstances of this offence. It was submitted that, allowing for the discount of 20% for pleading guilty and the limited mitigation allowed for in respect of the appellant's personal circumstances, the starting point must have been greater than 21 years and 10½ months. This is said to be markedly inconsistent with sentences imposed for offending in cases of comparable or greater criminality.
7. There are relatively few cases in which sentences at or approaching that received by the appellant have been imposed.
8. The appellant relies on Zanon v The State of Western Australia[26] and Milenkovski v The State of Western Australia.[27]
9. In Zanon a co-offender, Marc Quaid, was convicted after trial of two counts of selling or supplying methylamphetamine. The first count involved 8.75 kg and the second count involved 4 kg, both amounts being of high purity. He was sentenced to 20 years' imprisonment on the first count and 15 years' imprisonment on the second count. The sentencing judge ordered that the 15 year term commence after the offender had served 8 years of the 20 year sentence, resulting in a total effective sentence of 23 years' imprisonment.[28] The offender was sentenced on the basis that he was the principal in a large scale ongoing drug enterprise. He had reaped significant financial rewards. He was described as being 'at the top or near the top of the drug industry'. His drug dealing business was described as 'sophisticated, well directed and orchestrated and conducted in a manner aimed at avoiding detection'. The offences were not isolated incidents. Quaid was aged 40 at the time of sentencing and had a prior criminal record. His appeal against the total effective sentence was dismissed.[29]
10. In Milenkovski the offender was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply to another and one count of attempted possession of methylamphetamine with intent to sell or supply to another. The total amount of the drug was 7.658 kg, of which 4.983 kg was of high purity. The offender was sentenced to 12 years' imprisonment on the first count and 14 years and 6 months' imprisonment on the second count, with a total effective sentence of 17 years' imprisonment. The two offences were committed almost 3 months apart and were not isolated incidents.[30] The offender was described as being 'at the top of the Western Australian chain of distribution of illicit drugs'. He was in charge of a significant criminal enterprise and his operations were well organised. He had numerous people working for him at different levels. He committed the offences solely for financial gain. The offending was aggravated by the commission of the second offence after one of the offender's subordinates had been arrested. He recruited a close friend and cousin to commit the offence.[31] He demonstrated no contrition, remorse or acceptance of responsibility.[32] His appeal against both the individual sentences and the total effective sentence was dismissed.
11. Sentences in these and other comparable cases were recently reviewed in Gaskell.[33] In that case, the offender was convicted on his pleas of guilty of one count of possession of methylamphetamine and other offences relating to firearms, ammunition and large amounts of cash reasonably suspected of having been unlawfully obtained. On the count of possessing methylamphetamine with intent to sell or supply, a sentence of 18 years and 6 months' imprisonment was imposed. The quantity of methylamphetamine was 21.74 kg and the purity was between 73.5% and 80.3%. A reduction of 12% was allowed for the plea of guilty.[34] It was apparent from the circumstances of the offences that the offender had been involved in the drug trade for some time. He was dealing for commercial gain and was instrumental in the distribution into the community of great quantities of a drug that is causing immeasurable harm to individuals and the community.[35] However, he was not at the top of the drug dealing hierarchy and his level of offending was contrasted with Milenkovski and Quaid.[36] The appeal was allowed and the sentence on the relevant count was reduced to 16 years' imprisonment.
12. We have also considered other cases that were referred to in Gaskell, being MSO v The State of Western Australia,[37] Mikulic v The State of Western Australia,[38] Neumann v The State of Western Australia,[39] Rinaldi v The State of Western Australia,[40] Santos v The State of Western Australia,[41] Chen v The State of Western Australia,[42] Ng v The State of Western Australia,[43] and Chadburne v The State of Western Australia.[44] It is unnecessary to review the facts of those cases, other than to note that the highest sentences imposed for a single count were in the region of 14 to 15 years' imprisonment for convictions that occurred after a trial and, in most cases, for offending markedly more serious than that of the appellant in this case.
13. Sentences at the maximum statutory penalty should be reserved for cases that fall into the worst category of offending. In the case of drug offending this will generally mean those who are at the top of the hierarchy of a significant drug dealing enterprise. The amount and purity of the drugs involved will always be a relevant, though not necessarily the most important, consideration.
14. There are insufficient comparable cases to establish with any certainty a customary range of sentences for an offence like that committed by the appellant. However, this does not prevent a conclusion that the sentence imposed on the appellant is manifestly excessive. It may be apparent that a sentence is unreasonable or unjust having regard to the maximum statutory penalty, the place the offending occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.[45]
15. As serious as the appellant's role was, his level of criminality was significantly less than that of either Quaid or Milenkovski. Unlike those offenders, he was not at or close to the top of a major drug distribution enterprise. There was no suggestion that he was directing others or was responsible for running a sophisticated illicit operation. It was not suggested that he was in receipt of profits derived from large scale continuing drug dealing. Whilst the distinction between the appellant and others who have received comparable sentences does not alone lead to a conclusion that the sentence was unreasonable or plainly unjust, it is a relevant consideration.
16. The sentence of 17 years 6 months' imprisonment is not consistent with the place that the appellant's offending occupies on the scale of seriousness of offences of this kind, taking into account the maximum statutory penalty and the fact that he pleaded guilty. Such a sentence did not properly reflect the particular circumstances of the appellant's offending conduct, in particular the limited role that he played. The sentence is manifestly excessive.
17. Ground 1 should succeed, the appeal should be allowed and the appellant should be resentenced.

Ground 2 and the sentences imposed on the "co-offenders"

1. Given the success of ground 1 it is unnecessary to determine ground 2. There is no utility in determining whether the sentence infringed the parity principle in circumstances where the appellant must be resentenced in any event. However, issues of parity are relevant in the resentencing exercise. For this reason we will refer to the sentences imposed on Phillip Simons and Tikeri Tago.
2. Phillip Simons and Tikeri Tago were not strictly speaking co-offenders with the appellant but there is sufficient overlap to engage the norm of equal justice that animates the parity principle. Their offending arose out of involvement with a larger quantity of methylamphetamine from which the 11 kg later possessed by the appellant was removed. They had both been recruited to assist with the transportation of 21 kg of methylamphetamine from Sydney to Perth. Tikeri Tago performed the role of a driver in circumstances where he knew that there was a significant quantity of drugs being transported in the vehicle. He received between $1,500 and $2,000 for his part.[46]
3. Phillip Simons recruited another driver, organised accommodation and helped unpack the drugs on arrival in Perth. He also met the appellant with Sam Tago to effect the drug exchange. He was to be paid $5,000 for his role.[47]
4. Tikeri Tago was 44 years old and had a minor criminal record of no significance. He was sentenced to 9 years' imprisonment. An appeal against his sentence was dismissed. Tago's sentence was described on appeal as lenient.[48]
5. Phillip Simons was 25 years old at the time of the offence and 27 when sentenced. He was given some credit for his comparatively young age as well as for his lack of criminal record, the way the trial was conducted and his efforts to rehabilitate himself in prison. He was sentenced to 11 years' imprisonment. [49]
6. Both Phillip Simons and Tikeri Tago were convicted after trial.

1. The appeal should be allowed in respect of ground 1 and the appellant resentenced. In resentencing it is necessary for this court to give fresh consideration to all of the circumstances, including the discount for pleading guilty.
2. The discount of 20% given by the sentencing judge was unduly generous. Having regard to the number of appearances in the Magistrates Court and the length of time between the appellant's arrest and his entering of the plea of guilty, a substantially lower discount was appropriate. It is also relevant to take into account that the case against the appellant was extremely strong. In our view the appropriate discount is one of 10%.
3. Personal circumstances are of relatively lesser weight in respect of offences of this nature, though not completely irrelevant. The appellant's efforts towards rehabilitation and his good character references can only be given very modest weight in the circumstances. General deterrence is an important factor, as is personal deterrence in circumstances where the appellant has previously been convicted of a similar offence.
4. It is necessary for parity reasons to take into account the sentences imposed on Tikeri Tago and Phillip Simons. The appellant's role was different from that of either Tikeri Tago or Phillip Simons. Whilst his role was of shorter duration, it involved him having sole custody of a very large amount of cash and a large quantity of drugs. Clearly he was a trusted operative who played a critical role in the intended distribution of the drugs. Although the quantity of drugs that the appellant possessed was less than that of the others, his role was more significant. Furthermore, whilst the appellant pleaded guilty, unlike Tikeri Tago and Phillip Simons, the discount to be afforded for his plea should only be 10% for the reasons that we have noted earlier. Tikeri Tago and Phillip Simons also had more favourable antecedents than the appellant, particularly having regard to the seriousness of the appellant's prior conviction.
5. Taking all of the above factors into account, the appropriate sentence is one of 13 years' imprisonment with eligibility for parole. That sentence should be backdated to 19 July 2015.
6. We would make the following orders:
   1. Appeal allowed in respect of ground 1.
   2. The sentence of 17 years 6 months' imprisonment be set aside in and lieu thereof the appellant be sentenced to 13 years' imprisonment with eligibility for parole, backdated to 19 July 2015.

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

[9] Psychological report dated 1 February 2017.

[10] Psychological report dated 1 February 2017; sentencing ts 65.

[11] Sentencing ts 64; Kezikiropoulos v The Queen [2002] WASCA 352.

[12] Psychological report dated 1 February 2017; sentencing ts 65 - 66.

[20] Gaskell v The State of Western Australia [2018] WASCA 8 [127].

[23] Gaskell [27] and cases there cited.

[24] Misuse of Drugs Act, s 34(1)(a).

[25] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] - [19]; Gaskell [144] and cases there cited.

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

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

[29] Zanon [17] - [172], [176].

[33] Gaskell [34] - [35] (Buss P), [130] - [141] (Mazza and Beech JJA).

[34] Gaskell [3], [11], [49], [145].

[36] Gaskell [34] - [35] (Buss P), [130] - [141] (Mazza and Beech JJA).

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

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

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

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

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

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

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

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

[45] Gaskell [23], [144] and cases there cited.

[46] Sentencing ts (IND 565 of 2016) 608 - 609.

[47] Sentencing ts (IND 565 of 2016) 635 - 638.

[48] Tago v The State of Western Australia [2018] WASCA 59 [50].

[49] Sentencing ts (IND 565 of 2016) 639 - 640, 642.