MCGRATH -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 118 (6 July 2021)

1. The appellant was 27 years of age at the time of the offending.[8] He had a positive upbringing and his family were and had been supportive of him, continuing to do so after the offending.[9]
2. In 2012, the appellant's family suffered a financial trauma when an employee of the family business stole a significant amount of money from the business.[10] This caused significant disruption in the appellant's family and led to his parents separating and developing personal struggles. The appellant and his brother found this difficult. The appellant moved out of home and started using drugs, to the point that it became a repeated lifestyle.
3. The appellant's twin brother had previously served a term of imprisonment, which caused a lot of stress for the appellant and his family.[11]
4. The appellant had a good education, attending high school through to year 10. The appellant also had a good work history, completing an apprenticeship in carpentry after leaving school. The appellant then worked in security before returning to work in carpentry.[12] The appellant's drug use then escalated to the point where he was no longer able to hold down a job.[13]
5. The appellant had two prior convictions for possession of methylamphetamine in 2018 and 2020, for which he received fines.[14]

Sentencing remarks Appellant's role in the offending

1. The judge stated that the State took no issue with the characterisation that the appellant was at the lowest end of the hierarchy and agreed that his role was that of someone who was involved only in the transportation of methylamphetamine.[15] The State further accepted that he did not know the quantity of the drugs although he knew that it was methylamphetamine.[16] Implicit in the finding that the appellant did not know the weight of the drugs was an acceptance of the plea in mitigation to the effect that the appellant had not touched the bag, which the driver had placed in the footwell, before police stopped the vehicle.[17] Her Honour referred to the comfort and security of having more than one person involved in a journey transporting drugs.[18]
2. The judge also remarked that the State confirmed that when the appellant's residence was searched, there was nothing to indicate that he was involved in the distribution or sale of methylamphetamine other than the drugs the subject of the offending.[19] The appellant was to obtain a commercial benefit in the form of an amount of drugs for his use, although the quantity had not been agreed.[20]

1. The judge identified the following aggravating factors:

(1) The quantity of the methylamphetamine, namely 985 g. While the appellant did not know the quantity of the drugs being transported, his counsel accepted that that was the risk he ran in being involved in the transportation of methylamphetamine.[21] Her Honour remarked that given the quantity of methylamphetamine involved, the offending must be seen as being 'very serious'.[22]

(2) The appellant was going to receive a commercial benefit.[23] For his role in the offending, the appellant was going to receive an amount of methylamphetamine for his own use, which counsel for the appellant accepted was a commercial benefit,[24] although the amount had not been settled prior to the offending.[25]

1. The judge remarked that while authorities refer to a high level of purity being a significant factor in sentencing, some authorities make clear that purity is not the only significant factor.[26] Her Honour said that it is not uncommon to now see high levels of purity, of between 70% and 80%, for both large and small quantities of methylamphetamine. Her Honour stated that the level of purity, being 78%, did not assist in understanding the nature or seriousness of the offending.[27] The more important indicators were the appellant's role, whether he had authority over the drugs, what he was going to obtain for his involvement and the quantity of the drugs.[28]

1. The judge identified the following mitigating factors:

(1) The appellant's plea of guilty, which her Honour referred to as the most significant mitigating factor.[29] The judge found that the appellant's plea was at the earliest opportunity. In accordance with s 9AA of the Sentencing Act 1995 (WA), the judge allowed a discount of 25% for the appellant's plea.[30]

(2) While the judge accepted that the appellant was a person of good character, she remarked that he had a criminal record involving some offending, albeit nothing of the magnitude of the present offending.[31]

(3) The appellant was remorseful for his offending.[32] The judge found that the appellant, as he outlined in his letter to the court, understood the significance of his offending and the effect that it had on the community. The appellant was also regretful of his conduct.[33] The judge observed that the appellant described his arrest as a massive wake-up call and that he told the author of the pre-sentence report that he wanted better for himself and his family.

(4) The appellant had used his time in custody on remand well, becoming a trusted worker as a cook for the staff at Casuarina prison and obtaining better living conditions.[34]

1. The judge remarked that while the appellant's time in custody while on remand had been made more difficult due to the restrictions on social visits arising from the COVID-19 pandemic, at the time of sentencing social visits had returned to normal.[35]
2. With respect to the appellant's prospects of rehabilitation, the judge noted that he had the continuing support of his parents, who had not attempted to downplay the seriousness of his offending.[36] This meant that the appellant's return to the community will be with people who understand his failings and are prepared to support his recovery.[37]
3. The judge acknowledged that while, given the nature of the offending, the factors personal to the appellant are given less weight, they are not irrelevant. Her Honour stated that she took those factors into account and as a result reduced the sentence she would have otherwise imposed.[38]

1. The judge stated that after reviewing the cases that dealt with similar quantities of methylamphetamine, namely around 1 kg, where the offender was at the lowest end of the scale of distribution, she did not find any comparable authority since the increase in the maximum penalty to life imprisonment.[39] Her Honour made specific reference to Ye v The State of Western Australia;[40] Tago v The State of Western Australia;[41] and Galbraith v The State of Western Australia[42].

1. The maximum penalty for possession of a trafficable quantity of methylamphetamine with intent to sell or supply is life imprisonment.[43]
2. The judge observed that the main sentencing considerations for drug offending are general and personal deterrence.[44] Her Honour said that in this case general deterrence was 'very significant' and that while counsel for the appellant submitted that personal deterrence can be given less weight, there was still the need for personal deterrence in the appellant's circumstances.[45]
3. The judge also stated that she was required to take into account the increase in the maximum penalty, it being an indication of the seriousness of the offending and the way in which such offences must be dealt with.[46]

1. The judge imposed a sentence of 8 years' imprisonment, backdated to commence on 22 March 2020.[47]
2. The appellant was made eligible for parole.[48]

1. The appellant's sole ground of appeal alleges that the sentence of 8 years' imprisonment was manifestly excessive.
2. On 30 October 2020, Buss P referred the application for leave to appeal to the hearing of the appeal.[49]

1. The appellant contends that his low level of criminality makes this an exceptional case. The appellant characterises his criminality as being 'very low' and argues that the sentence of 8 years' imprisonment is plainly excessive given that cases which have attracted a similar sentence involved a higher degree of criminality.[50]
2. The appellant submits, correctly, that it is necessary to focus on what he actually did, and that the use of labels, such as 'courier', can be misleading.[51] The appellant characterises his role as being 'brief', involving him transporting in company the methylamphetamine from one person to another, and with no ongoing connection with the drug hierarchy.[52]
3. The appellant also submits that his antecedents are 'towards the most favourable end of the range' as revealed in the comparable cases.[53]
4. With respect to the increase in the maximum penalty, the appellant refers to the statement of this court in Musulin v The State of Western Australia[54] to the effect that the increase in the maximum penalty does not mean that in every case there will be a discernible increase in the penalty imposed.[55]
5. The appellant submits that, as was agreed at sentencing, this court has not dealt with any cases that are closely comparable given the appellant's very minor role, before or since the increase in the maximum penalty to life imprisonment in 2017.[56]
6. Of the cases that the court has dealt with since the increase in the maximum penalty, the appellant refers, as being potentially useful, to Musulin and Baker v The State of Western Australia[57]. However, the appellant submits, the criminality involved in both cases is substantially different from the present case, meaning that they are of little assistance.[58]
7. The appellant refers to the following cases in which the offender was described as being a courier or other short term participant in a drug enterprise, decided under the previous maximum penalty, as being factually somewhat comparable: Bond v The State of Western Australia;[59] Pham v The State of Western Australia;[60] Guler v The State of Western Australia;[61] Phan v The State of Western Australia;[62] Tran v The State of Western Australia;[63] Yiu v The State of Western Australia;[64] Al-Rafei v The State of Western Australia;[65] Jneid v The State of Western Australia;[66] and Jiang v The State of Western Australia[67].
8. The appellant also refers to the following cases as involving comparable sentences but for offending of greater seriousness: Nembousse v The State of Western Australia;[68] Tresnjo v The State of Western Australia;[69] Sheriff v The State of Western Australia;[70] Nguyen v The State of Western Australia;[71] Separovic v The State of Western Australia;[72] Mussarri v The State of Western Australia;[73] and LAT v The State of Western Australia[74].
9. The appellant accepts that the cases referred to reveal that the sentence of 8 years' imprisonment is within the range of sentences for the quantity and purity of methylamphetamine involved in the offending, but submits that his low level of criminality is exceptional, so as to make the sentence imposed on him manifestly excessive.[75]

1. The respondent submits that, bearing in mind the significant quantity of methylamphetamine involved, the appellant's attempt to put the drugs beyond the reach of police by throwing the package towards the driver, and the increase in the maximum penalty, the sentence imposed on the appellant cannot be said to be manifestly excessive.
2. As to the appellant's role in the offending, the respondent highlights the appellant's actions at the time police searched the vehicle, stating that his physical resistance and actions in throwing the bag over the roof provided the driver the opportunity to take the drugs and flee on foot, although the driver held up his hands and did not attempt to take the bag.[76] The respondent submits that the appellant's actions represented a viable and determined attempt to prevent the drugs from being seized, and increased his involvement in the offending and his culpability.[77]
3. The respondent agrees that Musulin and Baker involved offending of greater seriousness than the present case, and submits that neither reveal error.[78] The respondent submits that the remaining cases decided after the increase in the maximum are not of assistance.
4. The respondent addresses the cases referred to by the appellant as involving a comparable level of criminality (see [42] above), submitting that none of the cases r[79]eal error.79

1. The principles relevant to an allegation that a sentence is manifestly excessive are well‑established. They were summarised in Kabambi v The State of Western Australia relevantly as follows:[80]

(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 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 general sentencing considerations for serious drug offences are well‑established, and were summarised in Gaskell v The State of Western Australia in the following terms:[81]

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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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.

As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.

1. This court has decided a number of appeals from sentencing decisions concerning trafficable quantities of methylamphetamine since the maximum penalty was increased to life imprisonment. Many of those decisions were outlined in Cochrane v The State of Western Australia.[82] See also Trainor v The State of Western Australia[83] and Ramachandran v The State of Western Australia.[84]
2. As both parties ultimately accepted, none of those cases are reasonably comparable because none of the offending in those cases parallels the very limited nature and extent of the appellant's offending in the present case.
3. The same is true, in our view, of cases decided before the increase in the maximum penalty.
4. Of course, the absence of reasonably comparable cases against which to measure the sentence does not prevent this court from considering and determining whether a given sentence is manifestly excessive.[85] It simply means that the question of manifest excess must be approached by reference to the maximum sentence for the relevant offence, the place which the offending conduct occupies on the scale of seriousness of offences of that kind, and the personal circumstances of the offender.[86]
5. There is no doubt that the appellant's offending is properly characterised as serious. The appellant willingly involved himself in assisting the transportation of a substantial quantity of methylamphetamine, almost 1 kg. The quantity of the drug is significant in the evaluation of an offender's criminality, not least because the greater the quantity of the drug the greater the potential harm to the community if the drug had been distributed.
6. Further, the appellant offended for commercial gain, in the sense and to the extent that he was to receive an unidentified quantity of methylamphetamine in return for his assistance to his friend, who was transporting the drugs.
7. However, as the High Court emphasised in Wong v The Queen,[87] the gravity of a drug offence is not to be assessed solely or chiefly by the weight of the prohibited drug involved. Rather, the gravity of a drug offence is to be assessed by reference to all relevant circumstances. In addition to the quantity and purity of the drug involved, those circumstances include the nature of the drug enterprise in which the offender was involved, the role that the offender played in the enterprise, the offender's motive for becoming involved in the enterprise, whether the offender pleaded guilty and the offender's personal circumstances.[88] The nature and level of an offender's participation in a drug enterprise is a significant sentencing factor.[89]
8. Given the factual basis on which the appellant was sentenced, we accept the submission of senior counsel for the appellant that, putting to one side the quantity of drugs involved, the extent of the appellant's involvement, and what he actually did, puts his criminality towards the lowest end of the scale of seriousness of offences of this kind. The appellant's offending is fairly described as both fleeting and opportunistic. He had no contact with those who were instructing his friend to transport the drugs. There is nothing to suggest that they knew of the appellant's involvement or even that those instructing his friend had any contemplation that the friend would engage another person to assist in the transportation of the drugs. In return for an unspecified quantity of drugs, the appellant agreed to be a passenger in a car travelling between two locations in the metropolitan area, in which the driver placed drugs in the footwell near his feet. There was nothing to suggest that he had any other role in the drug dealing or had met or communicated with anyone involved in the enterprise other than the driver.
9. This feature of the appellant's offending distinguishes it from many cases - often termed 'courier' cases - in which a person is engaged by one or more others to transport a quantity of drugs from one location to another as part of a drug dealing enterprise. Examples of cases of that kind can be found in the list of cases in [42] above, including Bond (7 years), Pham (7 years), Guler (8 years) and Phan (7 years 4 months), all of which involved interstate transport of the drugs, as well as in Al‑Rafei (8 years 6 months). The appellant's criminality is appreciably lower than the criminality of the offending in those cases.
10. In Jiang, the offender's assistance was summarised as follows:[90]

(a) The appellant travelled as a passenger in a car driven by a co‑offender to a Bunnings store. She remained in the car outside the front of Bunnings while the co-offender went inside and purchased some tools. The purpose of travelling to Bunnings to purchase the tools was to obtain equipment to open the cylinder containing the drugs.

(b) Upon returning from Bunnings to the Hay Street apartment, the appellant carried some of the purchased tools from the car to the apartment.

(c) The appellant drove a car with a co-offender as a passenger and with the cylinder containing the drugs in the boot of the car from the Hay Street apartment to the Bedford address.

(d) The appellant travelled as a passenger in a car driven by a co‑offender to a Bunnings store on a second occasion to purchase some additional tools to open the cylinder containing the drugs. Both the appellant and the co-offender went inside the Bunnings store. The appellant paid for the tools that were selected by the co-offender. The appellant then travelled as a passenger in the car with the tools to the Bedford address.

Her assistance occurred on a single day, over the space of a few hours. She did not expect or obtain financial reward, committing the offence with the intention of helping her friend to pay a substantial drug debt. The offender entered a very late plea of guilty for which she received a 5% discount under s 9AA of the Sentencing Act. She had very good antecedents.

1. The majority, Buss P and Mitchell JA, observed that the sentence of 6 years' imprisonment could properly be regarded as high but dismissed a ground of appeal asserting that her sentence of 6 years' imprisonment was manifestly excessive. Mazza JA in dissent concluded that the ground was made out, resentencing the offender to a term of 4 years 6 months' immediate imprisonment. While there are material differences in the offending and the offender's personal circumstance, the decision in Jiang tends to suggest that the appellant's sentence was at least high. In so observing, we do not overlook the increase in the maximum penalty, nor the considerable limits to what can be derived from consideration of a single case as a comparator.
2. We accept that, as the respondent submits, an offender's attempt to avoid detection is conduct that adds to the criminality of the offender's drug offence.[91] We also accept that, in throwing the bag containing the methylamphetamine over the car and toward his friend, the appellant sought to prevent the police from taking possession of the bag. Nevertheless, in our view, that conduct does not undermine the opportunistic and fleeting character of the appellant's involvement. The conduct does not, in our view, support the inference invited by the respondent[92] that the appellant was trusted by those in the hierarchy of this operation to take the drugs into his charge. What the appellant did is consistent with a panicked and desperate attempt to avoid detection of the drugs he had at his feet when the police stopped the car.
3. In the present case, there is nothing to suggest any conduct in the nature of drug dealing on the part of the appellant, distinguishing it from many of the decided cases.
4. Whether the sentence of 8 years is manifestly excessive must take into account the fact of the 25% discount for the appellant's plea of guilty, together with the judge's recognition of other mitigating factors, namely the appellant's remorse and the steps towards rehabilitation taken by him since committing the offence. Taking those matters into account, the judge's starting point, before discounting for mitigating factors, must have been not less than 11 years.
5. Having regard to:

(1) the maximum penalty of life imprisonment for count 1;

(2) the limited nature and extent of the appellant's offending conduct, as summarised in [62] above;

(3) the seriousness of the appellant's offending and the place occupied by that offending in the scale of seriousness of offences of the kind committed by the appellant;

(4) the general guidance provided by sentences imposed for offences of the kind committed by the appellant prior to and since the increase in the maximum penalty for the offence;

(5) the need for general deterrence in respect of the possession of trafficable quantities of methylamphetamine with intent to sell or supply;

(6) the appellant's plea of guilty, for which there was a 25% discount;

(7) the appellant's personal circumstances and the other mitigating factors; and

(8) all relevant sentencing factors and principles;

in our respectful view, the sentence of 8 years' imprisonment was not merely high, but, rather, is properly characterised as unreasonable or plainly unjust.

1. For these reasons, we would uphold the sole ground of appeal and resentence the appellant.

1. This court has the necessary material to resentence the appellant.
2. Like the sentencing judge, we would discount the sentence by 25% under s 9AA of the Sentencing Act. We have further discounted the sentence for the other mitigating factors referred to in [64] above, as updated by the information provided by counsel at the hearing of the appeal.
3. Having regard to the matters set out above, in our view a sentence of 5 years 9 months' imprisonment is commensurate with the seriousness of the appellant's offence.
4. Like the sentencing judge, we would order that the sentence be taken to have commenced on 22 March 2020 and that the appellant be eligible for parole.

1. For the above reasons, we would make the following orders:

(1) Leave to appeal on the sole ground of appeal is granted.

(3) The sentence imposed on the appellant is set aside, and in substitution, the appellant is sentenced as follows:

(a) The appellant is sentenced to a term of imprisonment of 5 years 9 months.

(b) The sentence is taken to have commenced on 22 March 2020.

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

[4] ts 34. The video footage from the police officers' body cameras shows that they did not actually search the driver before asking the appellant to step out of the vehicle. Nothing turns on this discrepancy in this appeal.

[40] Ye v The State of Western Australia [2016] WASCA 103.

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

[42] Galbraith v The State of Western Australia [2011] WASCA 70.

[43] Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a).

[50] Appellant's submissions [5], [63], [66]; appeal ts 2.

[54] Musulin v The State of Western Australia [2020] WASCA 18 [40].

[56] Appellant's submissions [24]; appeal ts 7.

[57] Baker v The State of Western Australia [2020] WASCA 117.

[59] Bond v The State of Western Australia [2011] WASCA 123.

[60] Pham v The State of Western Australia [2011] WASCA 244.

[61] Guler v The State of Western Australia [2014] WASCA 83.

[62] Phan v The State of Western Australia [2014] WASCA 144.

[63] Tran v The State of Western Australia [2015] WASCA 218.

[64] Yiu v The State of Western Australia [2016] WASCA 172.

[65] Al-Rafei v The State of Western Australia [2017] WASCA 4.

[66] Jneid v The State of Western Australia [2018] WASCA 67.

[67] Jiang v The State of Western Australia [2020] WASCA 7.

[68] Nembousse v The State of Western Australia [2015] WASCA 68.

[69] Tresnjo v The State of Western Australia [2015] WASCA 193.

[70] Sheriff v The State of Western Australia [2017] WASCA 185.

[71] Nguyen v The State of Western Australia [2017] WASCA 35.

[72] Separovic v The State of Western Australia [2018] WASCA 36.

[73] Mussarri v The State of Western Australia [2018] WASCA 46.

[74] LAT v The State of Western Australia [2018] WASCA 215.

[77] Respondent's submissions [15] - [16].

[79] Respondent's submissions [42] - [51].

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

[81] Gaskell v The State of Western Australia [2018] WASCA 8 [128] ‑ [129].

[82] Cochrane v The State of Western Australia [2021] WASCA 5.

[83] Trainor v The State of Western Australia [2021] WASCA 36.

[84] Ramachandran v The State of Western Australia [2021] WASCA 54.

[85] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39]; The State of Western Australia v Doyle [2017] WASCA 207 [36].

[87] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73].

[88] Ng v The State of Western Australia [2020] WASCA 70 [55]; Truong v The State of Western Australia [2020] WASCA 177 [99].

[91] See, for example, Mather v The State of Western Australia [2017] WASCA 148 [39].