KYULDZHIEV -v- THE QUEEN [2019] WASCA 162 (24 October 2019)

1. In March 2017, Ms Bratanova and Mr Stanchev were granted Australian tourist visas to enter Australia. The visas permitted multiple entries into Australia. Ms Bratanova and Mr Stanchev entered and departed Australia at Perth International Airport on the following dates:[1]

1. In sentencing Mr Stanchev, the sentencing judge found, in effect, that the purpose of these trips was to prepare for the drug importation.[2]
2. On 23 January 2018, Mr Stanchev and Ms Bratanova hired a campervan which they subsequently drove to Port Dennison, Carnarvon, Karratha/Dampier, Coral Bay and Kalbarri. They returned to Perth on about 3 February 2018.[3]
3. On 21 February 2018, Ms Bratanova hired a campervan. On 24 February 2018, she and Mr Stanchev left Perth for Karratha. Ms Bratanova remained in Karratha until the day of her arrest.[4]
4. Mr Stanchev left Karratha with the campervan on 6 March 2018. He arrived in Perth on 8 March 2018 and returned the campervan. He subsequently hired another vehicle and drove back to Karratha, arriving on 10 March 2018.[5]

1. The appellant resided in Bulgaria and had worked in the Merchant Navy on ocean‑going vessels since 2000.[6] The appellant was approached by a person in Bulgaria offering to pay him €5,000 per kilogram of drugs if he agreed to transport the drugs from China to Australia. The appellant agreed to transport the drugs for financial gain, as the wages earned by sailors in Bulgaria are poor.[7]
2. The appellant flew to China, with the intention of picking up the drugs there and bringing them to Dampier.[8]
3. In early March 2018, the appellant was sailing on the 'Cape Owl', a bulk ore carrying vessel. The vessel was sailing from China to Dampier.[9] While his ship was docked, the appellant was advised by a text message as to where to pick up the drugs in China. He was subsequently given a large suitcase containing a total of 30.2 kg of methamphetamine.[10] The appellant brought the drugs onto the vessel.[11]
4. The sentencing judge appeared to accept that the appellant expected that the amount of methamphetamine involved would be 5 - 10 kg. When he opened the suitcase, the appellant appreciated that it contained a substantially larger quantity. The appellant hesitated about bringing such a large quantity of drugs into Australia, but felt that he could not back out of what he had agreed. The sentencing judge observed:[12]

The fact is that you proceeded with the importation and, of course, you were to be paid according the quantity imported. The fact you were to be paid according to the quantity imported means you must have known at least the approximate weight of the drugs you received in China.

1. The total amount that the appellant would have received had he not been apprehended was approximately €150,000.[13]
2. Once the Cape Owl left China, the appellant exchanged messages with Mr Stanchev to arrange the collection of the drugs in Australia.[14] Between 3 March and 12 March 2018, the appellant communicated with Mr Stanchev concerning the progress of the vessel and arrangements for meeting in Dampier.[15]

1. Late on the afternoon of 12 March 2018, Ms Bratanova and Mr Stanchev drove to the carpark of the Dampier shopping centre in their hire vehicle.[16]
2. The Cape Owl had berthed at Dampier by that time. Later on the afternoon of 12 March, the appellant disembarked the vessel carrying a large black backpack and a handheld black bag. He was wearing a life vest. The black backpack, the handheld black bag and the life vest contained the drugs that had been given to the appellant in China.[17]
3. The appellant entered the Dampier Seafarers Centre. Shortly afterwards, he left the Centre with an unidentified male. The two men went to a carpark adjacent to the Hampton Harbour Boat and Sailing Club.[18]
4. At around that time, Ms Bratanova and Mr Stanchev left the carpark of the Dampier shopping centre and travelled to a carpark adjacent to the Harbour Boat and Sailing Club. At the carpark, the appellant handed Ms Bratanova a small black handheld bag. Ms Bratanova placed that bag in the vehicle in which she had arrived with Mr Stanchev.[19]
5. The appellant then placed the backpack he was carrying in the vehicle. The appellant subsequently removed a satchel type shoulder bag and a black backpack from the rear of the vehicle. He left the carpark and returned to the Dampier Seafarers Centre.[20]
6. The appellant came back to the carpark a short time later, carrying the black backpack and the satchel type shoulder bag. The appellant, Ms Bratanova and Mr Stanchev were then apprehended by police while they were still with the vehicle in the carpark.[21]
7. A search of the vehicle and its contents located:[22]

(1) approximately 10 kg of methamphetamine in a white backpack;

(2) approximately 10 kg of methamphetamine in the black backpack;

(3) two bags of methamphetamine, each weighing approximately 1 kg, on the front passenger seat;

(4) one bag of methamphetamine, weighing approximately 1 kg, on the driver's side rear seat; and

(5) approximately 3 kg of methamphetamine inside the orange life vest that the appellant had been wearing when he left the vessel and travelled to the Dampier Seafarers Centre.

1. A total of 30.2 kg of methamphetamine was seized. The purity of the methamphetamine was 78.5% so that the total pure weight of the imported methamphetamine was 23.7 kg. The estimated value of the drug seized was between approximately $3.22 million and $8.775 million, depending upon how the methamphetamine was sold.[23]
2. The appellant was arrested on 12 March 2018, and indicated that he would plead guilty to the offence at a hearing in the Magistrates Court on 4 July 2018. Any delay in indicating that plea of guilty is explained by the appellant's difficulty in obtaining legal advice and giving instructions. The appellant did not speak English, and was not familiar with Australian legal procedures.[24]
3. The appellant did not organise the importation, and was not to be involved in the distribution and supply of the drugs within Australia.[25]
4. Even if the appellant did not know that the drug he was importing was methamphetamine, or how valuable that drug is in Australia, he knew that he was involved in importing an illegal drug that had a substantial value.[26]

1. The sentencing judge made the following unchallenged findings of fact as to the appellant's personal circumstances.
2. The appellant was 39 years old at the time of the offending.[27] He was born in Bulgaria and had an unremarkable childhood. He joined the Navy after completing high school, and then left the Navy and completed an apprenticeship as a chef. The appellant joined the merchant Navy and had worked on ocean-going vessels since 2000. He worked away from his home and family for up to 10 months at a time.[28]
3. The appellant married his wife about 11 years before he was sentenced, and they have one son. The appellant maintains contact with his wife, son and other family members.[29]
4. The appellant does not have a history of offending or substance abuse, and appeared to have lived a 'blameless life' prior to this offending, which was a misguided attempt to improve his family's financial circumstances.[30]
5. The appellant was remorseful for committing the offence and the potential consequences that such drug importations have on the community in Australia. He chose not to cooperate with law enforcement authorities, but did give a frank account of his involvement in the offence, including by disclosing what he was to receive.[31]

1. The sentencing judge appreciated that the maximum penalty for the offence is life imprisonment and a fine of $1,575,000.[32] His Honour observed:[33]

The penalties for trafficking in a commercial quantity of a border controlled drug indicate the seriousness of the offence. The distribution and abuse of methamphetamine, in particular, has a highly detrimental effect in the community - because of the effect it has on those who abuse the drug and their families and because of the way in which it is associated with criminal conduct, particularly violent offending, in this State. As I have frequently observed, methamphetamine distribution and abuse forms part of the facts of nearly every crime dealt with by this court.

1. After referring to applicable statutory provisions, the sentencing judge identified the following well established principles for sentencing for this type of offence:[34]

(1) The major sentencing considerations for offences of possessing or importing or trafficking in drugs such as methamphetamine are general and personal deterrence. The difficulty of detecting possession and trafficking offences and the consequences for the community that follow from the distribution of controlled drugs, such as methamphetamine, indicate that a severe sentence will be warranted in almost every case. The sentence to be imposed must signal to those who may be tempted to become involved in drug trafficking that the potential financial rewards are neutralised by the risk of severe punishment.

(2) Because general deterrence is the most important sentencing consideration, the prior good character of the person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.

(3) The amount of the drugs involved is not generally the chief factor to be taken into account in fixing a sentence, but it is an important factor. All other things being equal, the larger the quantity imported, the more serious the offence.

(4) The nature, quantity, purity, source and value of the drugs concerned are highly relevant to assessing the objective seriousness of a federal drug offence. However, it is necessary to bear in mind that often those involved in an importation of drugs will know nothing about what they are dealing with except that it is a quantity of an illicit substance. It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved.

(5) However, that does not mean that in an appropriate case the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence. In many cases the only factor that would lead to a determination that one importation is worse than another is the amount of the drug involved where otherwise the circumstances of the importation were the same or very similar.

1. In relation to general deterrence, the sentencing judge also observed that:[35]

An obvious and common way of attempting to import drugs is to use the crew of ships and aircraft who routinely travel to and from Australia for legitimate commercial purposes. It is anticipated they will not arouse suspicion as they have a legitimate reason for entering the country. The use of ship and airline crew to import border controlled drugs makes the task of detecting illegal drug importations even more difficult. The sentence to be imposed in such circumstances must act as a deterrent - it must warn others who might be tempted to become involved in such illegal activities that they will be severely punished on being caught.

1. In relation to personal deterrence, the sentencing judge remarked:[36]

I accept that personal deterrence is not a significant factor in sentencing you. You do not have a history of offending or of substance abuse. There is nothing in your history or personal circumstances that suggest you are likely to engage in such an offence in the future. You appear to have lived a blameless life until you committed this offence and I have reviewed a number of character references that speak well of you. I accept that you were previously of good character but that is a factor that must be given less weight than it might be given for other types of offences.

1. The sentencing judge also made the following observations as to the principles concerning the setting of a non-parole period:[37]

(1) Fixing a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. The non‑parole period is the minimum period of imprisonment that justice requires the offender to serve.

(2) Section 19AB of the Crimes Act 1914 (Cth) confers a discretion on the sentencing judge to determine the appropriate non parole period. The section does not require the non-parole period to bear any particular relationship to the head sentence.

(3) The appropriate non parole period must be determined in each case by applying the established legal principles to the facts of the particular offence and the circumstances of the offender. The process is not rigid or mathematical. Sentencing judges must not determine the non-parole period in any case by applying automatically the general rule that the non-parole period will be approximately two thirds of the head sentence.

1. Neither party in this appeal took any issue with the above statements of general principle, which we also accept.

1. The sentencing judge made a number of findings in relation to the appellant's and Mr Stanchev's respective roles in the offending. We will deal with these findings when considering ground 1.
2. The sentencing judge identified the following mitigating factors:

(1) Given his antecedents, personal deterrence is not a significant factor in sentencing the appellant.[38]

(2) The appellant did not speak English, and will be isolated while in prison for that reason. He will also be isolated from his family, and will not have external supports.[39]

(3) The appellant entered an early plea of guilty.[40]

1. The sentencing judge recognised that the appellant's incarceration would impose hardship on his family, but observed that any hardship would be the result of the appellant's choice to be involved in the importation of the methamphetamine.[41]

1. The sentencing judge, who was also responsible for sentencing Ms Bratanova and Mr Stanchev, recognised that:[42]

It is also necessary that the sentence that I impose on you is comparable with the sentences imposed on Mr Stanchev and Ms Bratanova. None of you should be left with a justifiable sense of grievance that one of you has been treated either more leniently or more harshly than the other.

1. The sentencing judge sentenced the appellant on the basis that his role was not relevantly different to that of Mr Stanchev. He took into account differences in their personal circumstances,[43] which led to Mr Stanchev receiving a slightly higher sentence.

Ground 1: determining the role of the appellant and Mr Stanchev

1. Ground 1 contends that the sentencing judge erred in fact and law when determining the relevant role of the appellant in the offending in comparison with the co-offenders. The particulars and written submissions advanced in support of this ground are somewhat confused.
2. However, in oral submissions,[44] senior counsel for the appellant indicated that the ground challenges the sentencing judge's factual finding that the role played by the appellant and Mr Stanchev was broadly equivalent,[45] so that the appellant's role was not relevantly different from that of Mr Stanchev.[46]
3. In advancing this ground, the appellant does not challenge any of the sentencing judge's findings of primary fact noted above.[47]
4. Nor does the ground challenge the sentencing judge's application of the parity principle based on the challenged finding. Of course, if this court were to uphold ground 1 and conclude that the appellant's level of criminal responsibility was significantly less than that of Mr Stanchev, the parity principle would come into play when this court resentenced the appellant. In resentencing, the court would be mindful to ensure that the different roles were appropriately reflected in the different sentences imposed. It would ensure that a lack of difference in sentences between offenders with significantly different levels of criminal responsibility did not give rise to an objectively justifiable sense of grievance on the part of the appellant. However, as the appellant's counsel ultimately accepted,[48] the parity principle has no role to play in resolving the challenge to the finding that the roles played by the appellant and Mr Stanchev were broadly equivalent.

1. The sentencing judge accepted that the appellant did not organise the importation and was not to be involved in the distribution and supply of the drugs within Australia. His Honour said:[49]

You were a courier but, of course, couriers are a vital link in the importation and subsequent distribution of drugs in this country.

1. The sentencing judge noted the Crown's submission that the appellant's role as a courier involved more than merely entering Australia with an illegal drug concealed, for example, in luggage. The Crown submitted that this was evidenced by the following facts:[50]

(1) The appellant repackaged the drugs into bags so that they could be more easily transported off the ship and handed over to Mr Stanchev and Ms Bratanova.

(2) The appellant had another crew member unwittingly carry one package containing the drugs off the ship and to the Dampier Seafarers Centre.

(3) The appellant modified a life vest to enable some of the drugs to be carried off the ship in that way.

(4) The appellant gave directions to Mr Stanchev and Ms Bratanova about providing luggage to enable the drugs to be transported by them.

1. The sentencing judge said that many of the above steps were equivalent to the active steps often taken by drug couriers to conceal the drugs that they attempt to bring into this country. His Honour said:[51]

What I accept is that your role as a courier involved more planning and organising than is often the case where a courier merely receives a package containing a border controlled drug.

1. The sentencing judge then dealt with the appellant's submission that his offending was less serious than that of Mr Stanchev. His Honour noted the submissions that the appellant held the drugs for a shorter period and that there was a greater level of planning by Mr Stanchev and Ms Bratanova.[52] The sentencing judge said:[53]

In my view, the role played by you and Mr Stanchev was broadly equivalent.

Mr Stanchev came to Australia with the intention of receiving the drugs in Dampier. He made whatever arrangements were necessary for that purpose.

You flew to China with the intention of picking up drugs there and bringing them to Dampier. You made whatever arrangements were necessary for that purpose. I do not think that there is any relevant difference in the seriousness of your offending and that of Mr Stanchev.

1. The appellant submits that it was not open to the sentencing judge to conclude that the role played by the appellant and Mr Stanchev was broadly equivalent.[54]
2. The appellant submits that the difference in their respective roles was evident from the following:[55]

(1) Mr Stanchev made three trips to Australia for the purpose of preparing for the drug importation, while the appellant made a single trip to Australia on a vessel which was travelling to Perth in any event.

(2) Mr Stanchev's involvement occurred over about 12 months (from March 2017 to March 2018), while the appellant was only involved for about 12 days.

(3) Mr Stanchev's acts involved a greater degree of planning, and required funding from the organiser for matters such as transport costs.

(4) Mr Stanchev must have been going to meet up with persons involved in the distribution of the drugs in this State.

(5) It was to be inferred from the facts referred to at (3) and (4) that Mr Stanchev must have been a person who was closer to the organiser of the endeavour.

1. For the following reasons, there is no merit in this ground of appeal.
2. The sentencing judge did not find that the roles played by the appellant and Mr Stanchev were exactly the same. Clearly they were not. However, in applying the parity principle the sentencing judge was required to make an evaluative assessment of the relative levels of criminality of two offenders who had performed different acts as part of the same enterprise. In doing so, the sentencing judge concluded that their roles were 'broadly equivalent' and that there was no 'relevant difference' in the seriousness of their offending.
3. On the facts found by the sentencing judge, the appellant and Mr Stanchev were consecutive links in the supply chain. There is no challenge to the finding that:[56]

Mr Stanchev came to Australia with the intention of receiving the drugs in Dampier. He made whatever arrangements were necessary for that purpose.

[The appellant] flew to China with the intention of picking up drugs there and bringing them to Dampier. [The appellant] made whatever arrangements were necessary for that purpose.

1. The sentencing judge did not find, and we see no basis in the facts found by the sentencing judge for concluding, that Mr Stanchev occupied a higher position than the appellant in the hierarchy of the organisation conducting the importation. Certainly, the material before, and facts found by, the sentencing judge did not compel any such conclusion.
2. The appellant's criminality was significant. He was to be paid €150,000 for his role in the enterprise. His role involved collecting the drugs from China and repackaging them in a manner designed to facilitate their importation without detection by authorities. In the context of an offence of importing a border-controlled substance, it is significant that the appellant was the person who actually imported the methamphetamine.
3. In our view, the sentencing judge was correct to find that the roles played by the appellant and Mr Stanchev were broadly equivalent. Ground 1 has no reasonable prospect of succeeding.

1. Ground 2 contends that the sentence imposed on the appellant of 13 years' imprisonment, with a non‑parole period of 9 years 6 months, was manifestly excessive in the circumstances.

1. The general principles governing appeals on the ground of manifest excess are well established:

(1) A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it 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.

(2) The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.

(3) The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

(4) A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

(5) When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

1. The maximum penalty for the offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1 of the Criminal Code, is life imprisonment and a fine of $1,575,000.
2. A commercial quantity of methamphetamine is 750 g. The appellant imported 23.7 kg (pure weight). We have referred to the significant criminality involved in the appellant's offending at [58] above. He imported the drugs knowing that he was bringing a large quantity of illegal drugs into Australia. While he was a courier rather than an organiser of the enterprise, couriers are a vital link in the importation and subsequent distribution of drugs in Australia, as the sentencing judge[57]ecognised.57 Further, the volume and purity of methamphetamine involved and the period over which the appellant was involved made this a serious example of an offence against s 307.1 of the Criminal Code.
3. The sentencing considerations for this type of offence were accurately summarised by the sentencing judge in the passages referred to at [33] - [37] above. As Buss&[58]JA noted in R v Ng:58

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 almost always be subsidiary considerations, but they are not completely irrelevant.

1. The proper approach to setting a non-parole period for offences of this kind was also discussed in Stipkovich.[59]
2. Having regard to the similarities and relevant differences in the circumstances of the offending and the offenders involved, the sentence imposed on the appellant in the present case is broadly consistent with the sentencing patterns revealed in the other sentencing appeals to which the parties have referred.[60]
3. While there are mitigating features to be found in the appellant's personal circumstances, the significance of general deterrence means that less weight is to be given to these sentencing factors.
4. The appellant has not arguably established that either the head sentence or the non-parole period imposed by the sentencing judge were, in all the circumstances, unreasonable or plainly unjust.

1. For the above reasons, the following orders should be made in this appeal:

(1) Leave to appeal is refused on both grounds of appeal.

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

[1] R v Kyuldzhiev [2018] WASCSR 244 (Sentencing remarks) [4].

[2] R v Stanchev [2018] WASCSR 248 [4]. At the hearing of the appeal, counsel for the respondent did not take issue with this court having regard to the sentencing remarks for Mr Stanchev (see appeal ts 21).

[10] Sentencing remarks [19], [21].

[17] Sentencing remarks [12] - [13].

[28] Sentencing remarks [24] - [25].

[30] Sentencing remarks [27], [54], [57].

[31] Sentencing remarks [59] - [60].

[34] Sentencing remarks [35], [37] - [39].

[37] Sentencing remarks [31] - [33].

[50] Sentencing remarks [43] - [44].

[53] Sentencing remarks [44] - [46].

[56] Sentencing remarks [45] - [46].

[58] R v Ng [2012] WASCA 180 [34], adopted in Stipkovich v The Queen [2018] WASCA 63 [28].

[60] Stipkovich; Obiekwe v The Queen [2018] NSWCCA 55; Lin v The Queen [2016] NSWCCA 200; R v Yuan [2015] NSWCCA 198; (2015) 252 A Crim R 422; DPP v Peng [2014] VSCA 128; Ruiz v The Queen [2013] VSCA 313; Saab v The Queen [2012] VSCA 165; Nguyen v The Queen [2012] VSCA 119; Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274; Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673; R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106. The appellant also referred to Beqiri v The Queen [2017] VSCA 112; (2017) 270 A Crim R 523, however this was an appeal against conviction rather than sentence.