KNOWLER -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 27 (10 February 2023)

1. The appellant was 28 years old at the time of offending and 29 years old at the time of sentencing.
2. The appellant's parents separated when he was 3 years old because of his father's violence towards his mother. His childhood was marred by exposure to domestic violence and abuse.
3. The appellant completed year 11 and then commenced an apprenticeship. However, three months into the apprenticeship he broke his arm and did not return to it. Since then, the appellant has not worked for a sustained period. The judge observed that this appeared to be because of the appellant's drug use.[3]
4. The judge said that drugs have likely played a significant role in the appellant's criminal history. The appellant did not have any concrete plans to stay off drugs if released from custody.[4]
5. The appellant, at the time of sentencing, had a 12-month-old child with his former partner, with whom he stays in touch and who is willing to allow him to have contact with his child. The appellant has a supporting friend with whom he can live when released.[5]
6. The pre‑sentence report identified some outstanding treatment needs and a degree of insight and remorse on the part of the appellant. During the sentencing hearing, the appellant said that he had addressed those treatment needs by obtaining work and a secure place to live that took him away from his previous peers. He had participated in a rehabilitation course at Whitehaven and would take advantage of further such opportunities upon his release.

1. The sentencing judge identified a number of aggravating features of the appellant's offence.[6] These included that:

(1) the appellant was on bail for other serious offending at the time he committed this offence;

(2) the appellant was an integral part of a very organised and somewhat sophisticated scheme;

(3) the appellant had been involved in the scheme from the outset and so had full knowledge of what he was involved in;

(4) the appellant disguised himself so as to avoid detection and used false number plates;

(5) the appellant knew that the petrol stations being targeted were vulnerable in that they worked on the basis of having to trust people; and

1. The sentencing judge noted the maximum penalty of 20 years' imprisonment, contrasting it with the maximum of 7 years' imprisonment for an offence of stealing.[7]
2. The judge observed that the appellant had a 'really bad' criminal record and committed the present offence only two months after being released from custody in New South Wales for an offence of property laundering, during the 12 months on which he was supposed to be of good behaviour.[8] Her Honour observed that the appellant's actions in committing the offence while subject to the obligation of good behaviour underlined the importance of personal deterrence.[9]
3. The judge gave the appellant credit for pleading guilty at a reasonably early time. Notwithstanding that the case against the appellant was, as the judge described, 'pretty solid', her Honour discounted the sentence by 22%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[10]
4. As already noted, the judge imposed a sentence of 2 years 4 months' imprisonment, with eligibility for parole.

1. The sole ground of appeal asserts that the sentence imposed on the appellant was manifestly excessive.
2. The appellant commenced the appeal approximately eight weeks after the last day for appealing and consequently requires an extension of time.

1. The appellant submits that the value of any property laundered is a significant factor in sentencing.[11]
2. The appellant summarises several property laundering cases where the sentences range from 3 to 7 years' imprisonment, noting that these cases are not easily comparable because they mostly concern the transportation of significant amounts of cash. The cases cited by the appellant involve property worth significantly more than the diesel stolen in this case.[12]
3. The appellant submits that the appellant's sentence of 2 years 4 months' imprisonment is outside the anticipated range of sentences for $23,400 in property.[13]
4. The appellant submits further that the sentencing judge did not acknowledge the appellant's mitigating circumstances, beyond his plea of guilty.[14]

General principles as to an appeal on the ground of manifest excess

1. The following general principles are well established:

(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 plainly 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.

(2) 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 crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) 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.

(4) 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 appellant was convicted of a charge of property laundering contrary to s 563A of the Code. The maximum penalty for that offence is 20 years' imprisonment. General deterrence is an important sentencing factor in relation to offences of property laundering contrary to s 563A of the Code.[15]
2. Contrary to the apparent assumption within the appellant's submission - see [19] and [21] above - the value of the property involved is not of primary importance in evaluating the seriousness of an offence under s 563A. Rather, while the value of the property is a relevant factor, it is not determinative when assessing the seriousness of the offending. The value of the property the subject of the offending is simply one of many factors bearing on the evaluation of an offender's criminality.
3. In Tan v The State of Western Australia,[16] this court outlined some principles relevant to sentencing for offences against s 563A of the Code:

(1) The most important consideration is what the offender did, as there may be little evidence before the court as to the organisation behind the offence, or the source of the funds or their ultimate intended use.

(2) The number of transactions carried out and the period over which the transaction(s) occurred are significant, in that they may indicate the extent of the offender's criminality, whereas a single transaction may reflect an isolated offence.

(3) Also relevant is the degree of authority reposed in the offender, the role of the offender in the particular money laundering arrangement, and the amount of money involved in the offending.

(4) Money laundering is 'vital to the functioning of organised criminal syndicates' and the money launderer is an 'important cog in the wheel of organised crime'. Thus, money laundering is an offence in respect of which general deterrence is given significant weight. (footnotes omitted, emphasis added)

1. When the appellant's offence is viewed in this framework, its seriousness is readily apparent. The appellant was a key member of an organised syndicate. Unlike the offenders in most of the cases to which the appellant referred, he was not in the nature of a courier. The appellant was a full participant in the enterprise, from start to finish. The appellant dealt with the stolen property - namely, the fuel - in full knowledge that it had been stolen, having himself been involved in the original theft. The appellant's offence involved a number of transactions and so was not isolated. The offence was motivated by financial gain.
2. Apart from his plea of guilty, the mitigating factors in favour of the appellant were limited. The appellant was not youthful and not of prior good character.
3. Moreover, as the sentencing judge noted, the fact that the appellant was on bail for other serious offending at the time he committed this offence, and that he committed the offence only two months after being released from custody for property laundering in New South Wales - when he was supposed to be on good behaviour - all underlined the significance of personal deterrence.
4. Having regard to what we have said, in our view, the appellant has fallen well short of demonstrating that his sentence was manifestly excessive. To the contrary, in our view, the sentence of 2 years 4 months' immediate imprisonment was well within the range of a sound exercise of the sentencing discretion.

1. For the above reasons, we would refuse the application for an extension of time, refuse leave to appeal, and dismiss the appeal.

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

[12] Appellant's submissions [23] - [27], citing H v The State of Western Australia [2020] WASCA 211; Tan v The State of Western Australia [2019] WASCA 112; Phan v The State of Western Australia [2019] WASCA 163; The State of Western Australia v Zhuang [2021] WASCA 56.

[15] Tan v The State of Western Australia [49] - [50]; H v The State of Western Australia [104]; The State of Western Australia v Zhuang [158] - [159], [172], [178] - [179].

[16] Tan v The State of Western Australia [49].