KJL -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 65 (22 April 2021)

1. Her Honour incorporated into her sentencing remarks the statement of material facts read aloud by the prosecutor.[6] The facts read aloud by the prosecutor were not materially challenged by the appellant, either at first instance or before this court. They may be summarised as follows.
2. As to count 1, on 17 June 2018, Australian Border Force officers examined an international mail package at the Melbourne Gateway Facility. The package had been sent from the United States and was addressed to Mark Howard at a parcel locker located at a post office situated at 1195 Hay Street, West Perth. The package was seized and found to contain 113 g of methylamphetamine[7] at approximately 78% purity, concealed in some men's shoes. Police officers substituted an inert substance for the methylamphetamine. On 22 June 2018, the appellant was captured on CCTV collecting the package from the parcel locker. On 4 August 2018, the police located the same package in the front spare room of the appellant's home address. The approximate value of the methylamphetamine was, if sold in ounce lots at the time it was seized, between $18,000 and $24,000.[8]
3. As to count 2, on 27 July 2018, Australian Border Force officers examined another package sent from the United States, which was again addressed to Mark Howard at the same parcel locker at the same address as in count 1. The package was found to contain 27.5 g of methylamphetamine, with a purity of approximately 79%, inside a foil sachet. The methylamphetamine was substituted with an inert substance. The package was delivered to the parcel locker. At approximately 3.50 am on 4 August 2018, the appellant was observed by police retrieving the package, and was arrested while walking away from the post office. He was wearing the same distinctive hat that he wore when collecting the package the subject of count 1 on 22 June 2018.[9]
4. At the time of his arrest, the appellant was in possession of a Samsung mobile telephone which was found to contain the Wickr application and recent messages that related to the sourcing of drugs through the mail system. The methylamphetamine contained in the second package was valued, if sold as an ounce at the time it was seized, between $4,500 and $6,000.[10]
5. As to count 3, during the search of the appellant's home address on 4 August 2018, police located, hidden beneath the kitchen sink, a package containing four separate packages of a brown paste. The total weight of the brown paste was 60.84 g. Subsequent analysis showed that the brown paste was amphetamine with a purity of 4%.[11]
6. As to count 4, during the search of the appellant's home address on 4 August 2018, police also located, in a large top drawer in the kitchen, 15 capsules containing a dark powder. The capsules were seized and subsequent analysis found that they contained a total of 10.4 g of psilocin at a purity of 0.2%. Psilocin is a synthetic hallucinogenic analogous to that found in 'magic mushrooms'. Consistently with the submissions of the prosecutor and defence counsel, her Honour treated the drug as being lower in the hierarchy of illicit drugs than methylamphetamine, amphetamine, heroin and MDMA. It was not disputed that most of the psilocin was for the appellant's personal use.[12]
7. During the search of the appellant's home on 4 August 2018, the police located scales, empty clipseal bags, small amounts of methamphetamine, cocaine, MDMA and cannabis, along with associated used paraphernalia, knuckledusters and an expandable baton.[13]
8. The police also located a laptop computer, loaded with the Tor browser used to access the dark web, which was found to contain evidence of cryptocurrency transactions that, when read with the text messages referred to earlier, revealed it to be at least one of the methods which the appellant could have utilised to pay for the drugs he acquired.[14]
9. In the front spare room of the appellant's house, police found a large heat vacuum‑sealing machine and vacuum‑seal bags. Cloth gloves and a box of latex gloves were located and seized from the appellant's study. All of these items were consistent with the packaging of drugs for sale.[15]
10. As to count 5, on 8 August 2018, Australian Border Force officers examined a mail package at the Sydney Gateway Facility in New South Wales. The package, which had come from the United States, was addressed to James McFarlane at a parcel locker situated at a post office at Shop 158, 227 Belmont Avenue in Cloverdale. The package was examined and found to contain 991 g of MDMA powder concealed inside some boxing equipment. The MDMA was approximately 79% pure. The parcel locker address was identical to a package which the police had discovered during the search of the appellant's house on 8 August 2018. The value of the MDMA powder was approximately $50,000 if sold by the kilogram, and approximately $141,000 if sold in ounce lots.[16]
11. The text messages found on the appellant's Samsung mobile telephone revealed that:[17]

(a) the appellant sourced drugs through the mail system;

(b) whoever was supplying the drugs to the appellant had strategies in place to bypass the X‑ray facilities used by law enforcement authorities to detect the importation of drugs through the parcel system;

(c) at about the time of his arrest, the appellant was actively inquiring about the purchase of 84 g of cocaine; and

(d) a kilogram of MDMA (the MDMA the subject of count 5) was on its way to the appellant.

1. The appellant was 30 years of age at the time of the commission of the offences, and 32 years of age at sentencing.[18] He was born in New Zealand and has no children.
2. After completing high school in Victoria, the appellant returned to Perth where he worked for two years as a bank teller. He then travelled to Thailand where he met his former partner. Together, they ran a bar in Laos. Eventually, the appellant returned to Perth, where he worked at a tavern until he was about 26.
3. After the appellant returned from Laos, he began to earn additional money by selling drugs. After leaving his employment at the tavern, drug dealing became his principal source of income. He told clinical and forensic psychologist, Dr Leonie Coxon, that he considered that he would make more money selling drugs than he would in an 'ordinary' job.[19]
4. After his arrest and up to the date upon which he was sentenced, the appellant engaged in both paid and volunteer employment. Since 2019, he had worked for an automotive company. A letter provided to the sentencing judge from that company spoke highly of him and his work.[20]
5. The appellant is close to his parents and sister, all of whom are very supportive of him, as their letters to the sentencing judge attest.[21] Character references tendered to the sentencing judge spoke highly of the appellant and his personal qualities.[22] They showed that he has support in the wider community.
6. For many years leading up to his arrest, the appellant was a user of and dealer in illicit drugs, particularly methylamphetamine. These aspects of his life were hidden from his family.
7. Since his arrest, the appellant, with the assistance of counselling sessions at Cyrenian House and psychological treatment over a period of 17 months with Dr Coxon, ceased using illicit drugs and has remained abstinent from illicit drug use.[23]
8. In 2012, the appellant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He was treated by Dr R Paterson between 2012 and 2013, who prescribed him dexamphetamine. The appellant responded well to this treatment.[24] In 2019, Dr Coxon referred the appellant to consultant psychiatrist, Dr S D Febbo, in respect of the appellant's ADHD. Dr Febbo confirmed the diagnosis of ADHD and, again, the appellant was placed on stimulant medication which elicited a good response. However, after Dr Febbo became aware of the appellant's history of substance abuse, he was unable to further prescribe the appellant with stimulant medication without specific approval from the Health Department.[25]
9. The appellant has no prior criminal history.

1. Her Honour identified the statutory penalties for the offences and, in particular, that count 1 concerned the recently introduced statutory penalty of life imprisonment.[26]
2. In her sentencing remarks, her Honour identified the following aggravating features:[27]

(1) The offending involved a significant variety of drugs in significant quantities and, in respect of the MDMA (the subject of count 5) and methylamphetamine (the subject of counts 1 and 2), very high purity.

(2) In respect of count 5, the appellant attempted to possess 991 g of MDMA, at least 90% of which was to be distributed into the wider community.

(3) The offending involved a significant element of planning and sophistication. The appellant utilised the dark web to purchase illicit drugs online at a cheap price to increase profit. He also set up parcel lockers at post offices as early as May 2019 to which the drugs he had purchased over the dark net would be delivered.

(4) The offending occurred in the context that the appellant had been commercially dealing in illicit drugs over a significant period of time as part of a regular business. It was evident that the appellant's drug dealing was funding the appellant's lifestyle, which her Honour described as 'very comfortable'. As her Honour put it, drug dealing was the appellant's 'job' at the time of the offending. The offences were committed not only to enable the appellant to stockpile illicit drugs for his own use, but also for profit.

(5) In the period between June to August 2018, the appellant had conducted 'a lot of transactions ... [involving] an awful lot of drugs'.

(6) The appellant was at the mid to high‑level (but not at the highest level) of the drug hierarchy. He was 'nowhere near the low‑level street dealer situation' often seen by her Honour.

1. Her Honour identified the following mitigating factors:[28]

(1) The appellant pleaded guilty to the offences in the indictment at the earliest opportunity and was thereby accorded 'the full discount' of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA).

(3) The appellant had made 'every effort' to rehabilitate himself since his arrest. He had the support of his close family and friends, and had undertaken counselling (from Cyrenian House and with Dr Coxon), engaged in paid employment and undertaken voluntary work.

(4) As urinalysis tests showed, the appellant had been abstinent from illicit drug use since the date of his arrest.

(5) The appellant had no prior convictions, although the mitigating effect of this factor had 'to be tempered' with the appellant's admitted ongoing use and distribution of illicit drugs.

(6) Matters which are referred to in the confidential annexure attached to these reasons.

1. Her Honour appears to have adopted Dr Coxon's assessment that the appellant was a low risk of reoffending, having regard to the steps he had taken towards his rehabilitation and his ability to remain abstinent from methylamphetamine since his arrest.[29]
2. Her Honour accepted that a portion of some of the drugs that the appellant possessed were to be utilised for his personal use,[30] specifically half of the methylamphetamine, half of the amphetamine, 10% of the MDMA and a significant proportion of the psilocin.[31]
3. In accordance with established authority of this court, her Honour stated that the principal sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. Her Honour observed that, while in the present case personal deterrence was 'somewhat lessened' having regard to the appellant's rehabilitation, general deterrence required that the sentences she was obliged to impose had to send a clear message to the community 'that if you deal in drugs on this level, you're going to go to gaol and you're going to go to gaol for a long time'.[32]
4. Her Honour explained that, while matters personal to the appellant were not irrelevant, they were subsidiary considerations in cases of this nature.[33] Her Honour also explained, again in accordance with established authority, that, while the weight of the illicit drugs in question was not the chief factor to be taken into account in sentencing the appellant, it was a matter of importance. Her Honour said that other matters to be taken into account included the nature and level of the appellant's participation in drug dealing or trafficking (within a particular organisation or generally), and whether the offending was committed for personal gain. The sentencing judge observed that the appellant offended to fund his lifestyle.[34]
5. Her Honour referred to a number of sentencing decisions from this court in order to identify the customary sentencing standards for offences involving commercial dealing in prohibited drugs, where the statutory penalty was 25 years' imprisonment and/or a fine of $100,000, being Zanon v The State of Western Australia;[35] Gaskell v The State of Western Australia[36] and Carlucci v The State of Western Australia.[37] Her Honour observed that there are 'a number of cases, including some where the offender pleaded guilty, in which a total quantity of prohibited drugs of around one kilo attracted sentences of 9 to 12 years' imprisonment'.[38] In the context of count 1, which involved a statutory penalty of life imprisonment, her Honour referred to HSV.[39]
6. Her Honour expressly had regard to both limbs of the totality principle.[40] As stated earlier in these reasons, she reduced the sentence she would have otherwise imposed on counts 1 and 5 for reasons of totality.[41]

1. The general principles governing appeals that contend, as the appellant does in this case, inferred error on the basis that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well established. We adopt the statement of these principles made by this court in Kabambi v The State of Western Australia,[42] which we will repeat for the sake of convenience.
2. 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 a sentencing discretion differently.
3. In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of offences of that type, and the offender's personal circumstances.
4. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
5. The range of sentences customarily imposed for an offence 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.
6. 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.
7. The general principles applicable to sentencing offenders for serious drug offences are also well established. They were stated by this court in HSV and, again for the sake of convenience, we will repeat them here.
8. 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 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 invariably be subsidiary considerations, but they are not irrelevant.[43]

Appellant's submissions in support of the grounds of appeal

1. In support of ground 1, senior counsel for the appellant submitted that in respect of count 5, her Honour over‑emphasised the sophistication of the offending and did not 'adequately' take into account all of the mitigating circumstances that she had identified.
2. In his oral submissions in support of ground 1, senior counsel for the appellant highlighted the appellant's rehabilitation since the date of his arrest.[44] Senior counsel for the appellant also contended that in order for her Honour to arrive at the sentence she did on count 5, the starting point, prior to the discount for the appellant's guilty plea and before taking into account other mitigating circumstances, must have been approximately 12 years' imprisonment.[45] Such a starting point, he argued, was incommensurate with the objective seriousness of the offending. Senior counsel encapsulated the appellant's submissions in respect of ground 1 as being that the objective seriousness of the offending warranted a starting point, before matters of mitigation were taken into account, towards the lower to mid‑range of between 9 and 12 years' imprisonment.[46] Senior counsel added that her Honour's sentence on count 5 was not 'out by a massive margin ... it was possibly a year out'.[47]
3. In respect of ground 2, senior counsel for the appellant accepted that the individual sentences imposed on counts 1 to 4 'were within the acceptable range of sentences'.[48] However, the appellant submitted that the total effective sentence did not constitute 'just punishment for the entirety of the offending'.[49]
4. In his oral submissions in support of ground 2, senior counsel again emphasised the appellant's rehabilitation, and submitted that the total effective sentence of 10 years 6 months' imprisonment infringed the first limb of the totality principle.
5. Senior counsel submitted that the total effective sentence imposed by her Honour was 'unduly high ... not massively', but was just 'a little too high'.[50]
6. The appellant did not cite any comparable cases specifically in support of ground 2.

1. The objective criminality involved in count 5 was very serious.
2. The appellant attempted to obtain a substantial quantity of high purity MDMA. As this court has consistently observed, MDMA is a harmful drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin: see The State of Western Australia v Higgins;[51] Tirkot v The State of Western Australia[52] and The State of Western Australia v Paolucci.[53]
3. The appellant's attempt would have likely been successful but for the intervention of Australian Border Force officers. While it must be accepted that the appellant would have kept approximately 91 g of the MDMA for his personal use, he intended to sell the rest, approximately 900 g, for a substantial profit.
4. Count 5 was committed in the context that, for a period of years, the appellant had eschewed legitimate paid work for what he considered an easier and more lucrative business as a drug dealer. From this business, he derived a comfortable standard of living. As such, the appellant's culpability was substantially greater than that of a mere courier or warehouser of prohibited drugs. The appellant's business placed him at a level far higher than a street‑level drug dealer. The offending is precisely the kind of commercial drug dealing that must attract a sentence which deters others from behaving in the same way.
5. We do not accept the submission that her Honour over‑emphasised the sophistication of what the appellant did. The offending engaged in by the appellant involved a high level of sophistication. The commission of count 5 required the appellant to source from overseas a large quantity of high purity MDMA. To do so, he used the anonymity of the dark web to hide the nature of that transaction and his participation in it. In the same vein, he leased the secure parcel locker at the West Perth post office in a false name. The text messages he exchanged with the supplier of the drug showed that he was concerned that the MDMA inside the package not be detected by X-ray machines commonly employed by customs authorities.
6. Senior counsel for the appellant pointed to features of other cases decided by this court and submitted that these involved a greater level of sophistication than the offending in count 5.
7. While it may be possible to point to a particular case as having offending of a greater level of sophistication than the offending in the present case, it does not logically follow that the offending in the present case lacked sophistication.
8. We do not accept the appellant's submission that her Honour's starting point, prior to the discount for the plea of guilty and taking into account other mitigating circumstances, was too high.
9. While her Honour observed that there were a number of cases in which sentences of 9 to 12 years' imprisonment had been imposed where the total quantity of drugs was around 1 kg, her Honour made no statement to the effect that her starting point in respect of count 5 was 12 years' imprisonment, and we would not infer that fact from her observation.
10. In any event, an appeal against sentence is not an appeal against any notional starting point. It is an appeal against the sentence that was actually imposed.
11. Of course, this court's task in ascertaining whether an individual sentence is manifestly excessive will involve, where sufficient comparable cases exist, a consideration of those cases.
12. We have had regard to the cases referred to by her Honour in her sentencing remarks, and the cases referred to by the appellant and the respondent in their respective written submissions in the appeal. We have also had regard to this court's recent decision in Paolucci and the cases cited therein. It is unnecessary to analyse the cases individually. It is enough to state the following.[54]
13. On our reading of the cases, the sentence imposed for count 5, namely 8 years 6 months' imprisonment (reduced from 9 years' imprisonment for totality), was broadly consistent with the range of sentences customarily imposed for offences of the kind committed by the appellant. This does not mean that the sentence imposed was not manifestly excessive. While a yardstick for comparison, the range of sentences customarily imposed does not determine the upper or lower limits within which the sentencing discretion must be exercised. Ultimately, each case must be determined on its own facts and circumstances.
14. We have already described the objective criminality involved in the commission of count 5. The mitigating factors referred to in [29] above, which were, in combination, substantial, must be brought to account. However, it must be borne in mind that those mitigating factors which were personal to the appellant, such as family and community support, the absence of prior convictions, remorse and rehabilitation, carry less weight in the assessment of offences involving serious drug dealing.
15. In deciding whether the sentence on count 5 was manifestly excessive, the two most favourable mitigating circumstances for the appellant are his plea of guilty and the matters referred to in the confidential annexure attached to these reasons. However, having regard to the maximum penalty, all of the relevant circumstances of the offence, the mitigating factors and the comparable cases, we have concluded that the sentence of 8 years 6 months' imprisonment (reduced from 9 years' imprisonment for totality) was not outside the range of an appropriate exercise of the sentencing discretion. The sentence was, in our opinion, commensurate with the seriousness of the offence. It was not unreasonable or plainly unjust. Inferred error has not been established. While we would grant leave to appeal on ground 1, it has not been made out.

1. In our opinion, the overall criminality revealed in the five offences committed by the appellant involved a high degree of culpability. While count 5 was undoubtedly the most serious of the offences, counts 1, 2, 3 and 4 were also serious.
2. As we explained in dealing with ground 1, the appellant established and conducted a lucrative commercial business as a drug dealer. He dealt in significant quantities of various illicit drugs. Rather than obtaining an income legitimately, the appellant made the conscious and deliberate choice to make his living as a drug dealer. The offending was sophisticated and involved the importation into Australia from the United States, via the postal system, of his stock‑in‑trade. In these circumstances, the offending could hardly be described as isolated or a short‑term aberration. Count 1 involved a significant quantity (113 g) of high purity methylamphetamine. As the quantity of methylamphetamine in count 1 exceeded 28 g, the appellant was subject to the higher statutory penalty of life imprisonment (as to which, see HSV).[55]
3. It is to be noted that her Honour, for reasons of totality, very significantly reduced the sentence that she would have otherwise imposed on count 1. Of course, no challenge was made by the appellant to any of the individual sentences imposed on counts 1 to 4.
4. In order to properly reflect the appellant's overall criminality, some accumulation of the individual sentences that were imposed was required. To have imposed concurrent sentences for each of counts 1 to 4 would have resulted in the imposition of a total effective sentence which would not have properly reflected the appellant's overall criminality.
5. Having regard to the maximum penalties for the five offences committed by the appellant, the overall criminality involved in their commission, the offending viewed in its entirety, the aggravating and mitigating circumstances including the pleas of guilty, the matters referred to in the confidential annexure attached to these reasons and all other relevant sentencing factors to be taken into account (in particular, the need to provide general deterrence and proper punishment), a total effective sentence of 10 years 6 months' imprisonment was within the discretionary range properly open to her Honour.
6. The total effective sentence did not infringe the first limb of the totality principle. It was not unreasonable or plainly unjust. Inferred error has not been established. In our view, ground 2 has no reasonable prospects of succeeding. We would refuse leave to appeal in relation to it.

1. Neither ground of appeal has been made out. The appeal must be dismissed. The orders that we would make are:

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

[2] On 18 September 2017, the maximum penalty for an offence against s 6(1) MDA involving 28 g or more of methylamphetamine (but not amphetamine) was increased from 25 years to life imprisonment: HSV v The State of Western Australia [2020] WASCA 5 [41].

[5] Order of Buss P dated 9 April 2020; AB 4.

[7] The prosecutor and the sentencing judge referred to the substance interchangeably as methamphetamine and methylamphetamine. Methamphetamine and methylamphetamine are the same substance as acknowledged in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [614].

[18] The sentencing judge erroneously stated in her sentencing remarks that the appellant was 33 years old: ts 38.

[19] Dr Coxon's report dated 13 January 2020, page 11.

[20] Letter to sentencing judge from Matina Sanders dated 20 January 2020; AB 124.

[21] Character references from KJL's father and mother dated 8 January 2020; AB 104 - 107, and KJL's sister dated 16 January 2020; AB 108 - 109.

[24] Report of Dr R Paterson dated 13 January 2020.

[25] Report of Dr S D Febbo dated 19 January 2020.

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

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

[37] Carlucci v The State of Western Australia [2019] WASCA 37.

[42] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[48] Appellant's submissions, par 55; AB 16.

[49] Appellant's submissions, par 60; AB 16.

[51] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111] - [121].

[52] Tirkot v The State of Western Australia [2018] WASCA 41 [73].

[53] The State of Western Australia v Paolucci [2020] WASCA 188 [64].