THE KING -v- MHM [2023] WASCA 172 (4 December 2023)

4 years 9 months' immediate imprisonment (head sentence)

On 15 October 2019 at Perth in the State of Western Australia, the respondent dealt with money or property that was and that he believed to be proceeds of crime, namely $59,920 in cash.

Imprisonment for 15 years, or 900 penalty units being an amount of $189,000, or both.

On 15 October 2019 at Perth in the State of Western Australia, the respondent possessed a controlled drug, namely heroin.

Imprisonment for 2 years or 400 penalty units being an amount of $84,000, or both.

Other orders: The respondent was also ordered to forfeit $59,920 in cash pursuant to s 48 and s 316 of the Proceeds of Crime Act 2002 (Cth)

1. The appellant relies on three grounds of appeal. Grounds 1 and 2 allege that the sentences imposed on counts 1 and 2 respectively were manifestly inadequate. Ground 3 alleges that the total effective sentence infringes the first limb of the totality principle.
2. The question of leave to appeal in respect of these grounds has been referred to the hearing of the appeal.
3. For the reasons that follow, while we would grant leave to appeal on each ground, we would dismiss the appeal.

1. The sentencing judge's findings as to the facts of the offending are not challenged. What follows is derived from her Honour's sentencing remarks.[2]
2. Since 9 October 2019, the respondent had been under federal police surveillance.
3. On 15 October 2019 at about 3.43 pm, the respondent left his home, situated in a Perth suburb, with a small suitcase. At about 8.00 pm, police officers executed a search warrant at the home.
4. The police officers discovered a hidden compartment in the bedside table of the respondent's bedroom. The officers gained access to the hidden compartment using a magnetic card found in the kitchen. Inside the compartment was a quantity of 498 g of methamphetamine with a total pure weight of 397.4 g. This was the subject of count 1.
5. Police also located an Apple iPhone bag in the main living room, which contained $48,870 in cash. The cash was packaged in bundles, which comprised almost entirely $50 and $100 notes. Inside the computer room police located $11,050 in cash, which was also in $50 and $100 notes. The total amount of cash found by the police was $59,920. This was the subject of count 2. Her Honour found that the cash was derived from the sale of drugs.[3]
6. The police also located, on a desk in the computer room, 3.2 g of heroin with a pure weight of 2.6 g. The respondent claimed at trial that the heroin was for his own use. The jury's verdict is consistent with an acceptance of this claim.
7. On the respondent's computer, police located a folder that contained a document. The document, which her Honour found to be a 'tick list', showed a list of names and amounts, such as '$60,000, $500, $20 owed and paid'.[4] The sentencing judge was satisfied that the tick list showed that the respondent was engaged in the business of drug trading.[5]
8. Police also located a number of other items. In the laundry, police located an aluminium foil pie tin containing 37.6 g of crystal methamphetamine, clip-seal bags and a set of digital scales. Foil packets wrapped in green tea bags were found in both the outside and inside bins. In the outside bin, police found another aluminium foil pie tin, as well as a glove with traces of the cutting agent MSM and the respondent's DNA on it. Her Honour found that the respondent used the laundry and the scales to measure out his drugs.[6]
9. In the garage, police located a Mazda motor vehicle. In the glovebox were papers relating to a person from New South Wales. Car tyres against the garage wall had traces of cocaine and methamphetamine in them. Another foil packet wrapped in a green tea bag was found in one of the tyres.

1. At the time he was sentenced, the respondent was 29 years of age. His mother migrated to Australia in 1991. The respondent and his younger brother were born in Australia.
2. Counsel for the respondent informed the sentencing judge that when the respondent was 15 years old, his mother was imprisoned for drug offences. After this, the respondent's father abandoned him and his brother. At around this time, the respondent commenced using methamphetamine and heroin. He is an entrenched user of these drugs.
3. After the respondent's mother was imprisoned and his father abandoned the family, the respondent was left to care for himself and his brother without any adult supervision or financial assistance. The respondent stopped attending school and began engaging in antisocial behaviour. The respondent completed year 10. Eventually, a relative from Vietnam came to care for the respondent and his brother. After this, the respondent left home.
4. After the respondent's mother was released from prison his family ran a restaurant. However, his mother engaged in further criminal activity in which the respondent participated. The respondent's employment history is limited to working in the family‑run restaurant and briefly picking bananas in Queensland.
5. The respondent has a daughter from a previous relationship who was five years old at the time of sentencing. His current partner remains committed to their relationship and does not support his drug use.
6. The respondent is in sound physical health and there is no evidence that his mental health is of concern.
7. The respondent has, as an adult, a reasonably long criminal record including driving offences and possession of prohibited drugs and drug paraphernalia. Most significantly, in June 2016 the respondent was convicted in the District Court of one count of aggravated burglary and one count of assault occasioning bodily harm for which he was sentenced to a total effective sentence of 3 years' imprisonment. He was released on parole in November 2017.
8. A presentence report referred to the respondent as being prone to impulsivity without regard to the consequences of his actions. He has poor conflict resolution skills and associates with negative peers. Although the respondent engaged in treatment programmes when previously in prison, he has been unable to maintain treatment gains. Initially, after being charged with the present offences he was granted home detention bail but after failing a urine analysis test he was remanded in custody.

1. The Australian Federal Police (AFP) provided a letter of assistance with respect to past cooperation given by the respondent.
2. After the respondent's arrest, he provided the AFP with information in respect of a syndicate responsible for the regular transport of multiple kilograms of methamphetamine from Melbourne to Perth. He also provided information in respect of the sale of methamphetamine and heroin in Perth. While the provision of this information did not result in any arrests, investigations were initiated and the information was of intelligence value to the WA police. Overall, the author of the letter assessed the value of the information provided by the respondent as 'medium'.
3. The letter of assistance was provided to the sentencing judge, who, in light of its contents, allowed a discount of 25%. Her Honour stated in a confidential memorandum that she had reduced the total overall sentence from 7 years 8 months' imprisonment to 5 years 9 months' imprisonment.

1. No issue is taken with the sentencing remarks, including as to the sentencing principles her Honour applied, her findings as to the seriousness of the offending, and her identification of the mitigating factors.
2. As to count 1, her Honour found that the quantity of methamphetamine trafficked by the respondent was 'significant' and placed the respondent at a high level of culpability because of the dangers posed by methamphetamine to the Australian community. She found that the methamphetamine was for commercial distribution. Her Honour described the amount of money the subject of count 2 as 'significant'. Her Honour also found that the respondent was 'an important cog' in the operation in which he was involved, and that he participated in the operation for financial reward. It was accepted by the appellant in the hearing of the appeal that the respondent was sentenced on the basis that he was warehousing the methamphetamine, and that her Honour's use of the expression 'important cog' should be understood in this light.[7]
3. Her Honour found that there was nothing in the circumstances of the offending that mitigated the seriousness of the offence. Her Honour made an oblique reference in the sentencing remarks to the respondent's past cooperation. Otherwise, it appears that there were no other mitigating factors of significance.
4. Her Honour had regard to the totality principle. She did so by reducing the term of imprisonment on count 2 from 16 months to 12 months, and by ordering that the term of imprisonment on count 3 be served concurrently.

1. The general legal principles to be applied in this Crown appeal are well established and are uncontroversial.
2. The discretion conferred on sentencing judges is of fundamental importance, and an appellate court may not substitute its opinion as to sentencing for that of the sentencing judge merely because the appellate court would have exercised the discretion in a different way. This court's power to intervene depends upon the establishment of material error on the part of the sentencing judge. In the present case, the grounds of appeal relied upon by the appellant allege implied error on the part of her Honour. The appellant must demonstrate that the sentence under challenge, whether it be an individual sentence or the total effective sentence, was so inadequate that it may be inferred that there was some misapplication of principle in the sentencing process, even though the 'where' and 'how' are not apparent from the sentencing remarks.
3. In determining whether a sentence is manifestly inadequate, it is necessary 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 that the criminal conduct occupies on the scale of seriousness for offences of the kind in question, and the offender's personal circumstances.
4. Where it is alleged that the total effective sentence infringed the first limb of the totality principle, it must be shown that the total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all relevant circumstances, including those personal to the offender.
5. In deciding whether an individual sentence is manifestly inadequate or a total effective sentence infringes the first limb of the totality principle, it is appropriate to have regard to any comparable cases. However, 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. Where an appellate court dismisses an appeal against sentence and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. In the end, each case must be decided on its own particular facts and circumstances.
6. 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.[8]

1. Although the appellant's written submissions appeared to suggest the contrary, counsel for the appellant made it clear at the hearing of the appeal that the Crown does not challenge the size of the discount given by the sentencing judge for the respondent's past cooperation.[9] The appellant submitted that this was the only substantial matter of mitigation. The respondent did not have the benefit of youth, pleas of guilty or remorse.
2. It was emphasised on the part of the appellant that the respondent was engaged in the trafficking of a significant quantity of methamphetamine for financial gain. His role in the criminal enterprise was to warehouse the methamphetamine that was brought to his house, where it was packaged and later distributed into the community.
3. The nub of the appellant's case in respect of ground 1 was that, having regard to the comparable cases to which we will shortly refer, the individual sentence imposed upon the respondent on count 1 was manifestly inadequate.
4. As to ground 2, the appellant very much relied upon cases said to be broadly comparable to the present case.
5. With respect to ground 3, counsel for the appellant, in answer to an enquiry from the Bench, told the court that the challenge was to the whole of the sentence encompassing the head sentence and the non‑parole period but the appellant did not allege that the non‑parole period was itself inadequate.[10] The appellant's case in respect of ground 3 relied predominantly upon this court upholding grounds 1 and 2.
6. It was asserted that the total effective sentence imposed after the reduction of 25% for the respondent's past cooperation resulted in a sentence 'that is an affront to community standards'.[11]

1. It was submitted on behalf of the respondent that the individual sentences for counts 1 and 2 and the total effective sentence were not inadequate. Having regard to all of the relevant circumstances, including, most significantly, the respondent's past cooperation, the individual sentences and the total effective sentence reflected an appropriate exercise of the sentencing discretion, and this court's power to intervene was not enlivened. As to the comparable cases, it was submitted on behalf of the respondent that they did not show that the individual sentences that have been challenged by the appellant were manifestly inadequate, or that the total effective sentence infringed the first limb of the totality principle. As counsel for the respondent put it, in light of the cited comparable cases, none of the sentences imposed 'leap out' as being manifestly inadequate.[12]

1. The maximum penalty of imprisonment for count 1 is 25 years. A marketable quantity of methamphetamine is between 250 g and 750 g.
2. The maximum penalty of imprisonment for count 2 is, in the case of money or property the value of which exceeded $50,000, 15 years.
3. In support of ground 1, the appellant referred to a number of cases cited in the sentencing hearing, which it conceded were not 'on all fours' with the present case but were 'broadly useful as a yardstick'.[13] The cited cases are Nguyen v The Queen;[14] Director of Public Prosecutions (Commonwealth) v Merrill (a pseudonym);[15] Kleindyk v The Queen;[16] and Teoh v The Queen.[17] The respondent referred to Garcia v The Queen.[18]
4. In Nguyen the appellant was convicted on his plea of guilty of a single count under s 302.3(1) of the Code in respect of 698.3 g of heroin. The appellant supplied 139.9 g of pure heroin between 1 and 2 October 2006 and then another pure weight of 558.4 g on 13 January 2007. His role in the organisation and his participation in it involved significantly greater criminality than the respondent in the present case. The offender in Nguyen was aged 28 at the time of the offence and 31 at sentencing. He had a limited criminal history. The sentencing judge discounted the sentence imposed on the offender for his plea of guilty by 15%. At first instance the offender was sentenced to 13 years' imprisonment with a non‑parole period of 8 years and 6 months. This sentence was held to be manifestly excessive. The offender was resentenced in effect to 9 years' imprisonment with a non‑parole period of 6 years.
5. Merrill was a Crown appeal in which the offender was convicted on his plea of guilty of one offence contrary to s 302.3(1) of the Code and sentenced to 42 months' imprisonment, with a non‑parole period of 14 months which took into account a period of pre‑sentence detention. The offender in Merrill was found in possession of 688.8 g of pure methamphetamine. At the time of sentencing the respondent was aged 31 and appeared to have had good antecedents. He was sentenced on the basis that he had been subject to some form of threat or duress and that there was no evidence that he was to receive anything for his participation in the offence. The Crown's appeal was allowed. The Court of Appeal of Victoria noted that the amount of methamphetamine was at the upper end of the marketable quantity range. The offender was resentenced to 6 years' imprisonment with a non‑parole period of 4 years.
6. Kleindyk is not a helpful comparator. The offender in that case was charged with multiple drug trafficking offences, which included one offence contrary to s 302.3(1) of the Code, concerning 270.3 g of pure methamphetamine. In respect of this offence he was sentenced to 6 years' imprisonment as part of an overall total effective sentence of 18 years' imprisonment with a non‑parole period of 11 years and 3 months. The issue for determination in Kleindyk was not whether the sentence for the s 302.3(1) offence was manifestly excessive or inadequate. The issue in Kleindyk was whether the sentencing judge had erred with respect to matters personal to the appellant and whether there had been a failure to take into account exceptional hardship to his family.
7. In Teoh the offender was convicted after a late plea of guilty of two offences being one count each of attempting to possess a marketable quantity of methamphetamine and trafficking a marketable quantity of methamphetamine. The offender was sentenced to a total effective sentence of 9 years' imprisonment with a minimum non‑parole period of 7 years. With respect to the offence contrary to s 302.3(1), the offender was sentenced to 7 years' imprisonment. The amount of pure methamphetamine the subject of this count was 659.5 g. The offender was 32 years old at the time of sentencing and had no prior convictions. While not the architect of the enterprise, he was a senior member of the criminal organisation and offended for profit. The Court of Appeal of Victoria dismissed the offender's appeal including a ground that the individual sentence for the offence contrary to s 302.3(1) of the Code was manifestly excessive.
8. In Garcia the offender was convicted on his pleas of guilty of three Commonwealth and two State offences arising out of his involvement in what was described as a mid‑scale drug trafficking enterprise involving the transportation of methamphetamine from Sydney to Perth. One of the Commonwealth offences committed by the offender was an offence contrary to s 302.3(1) of the Code that concerned trafficking in 451.1 g of pure methamphetamine. The offender in Garcia received a total effective sentence of 15 years and 6 months' imprisonment with a non‑parole period of 11 years. He was sentenced to 7 years and 6 months' imprisonment for the s 302.3(1) offence. The offender was of mature years and had a prior conviction for money laundering. His role in the drug trafficking enterprise was that of a principal organiser. None of the grounds of appeal in Garcia alleged that the sentence imposed for the s 302.3(1) offence was erroneous. The appeal succeeded on several other grounds and resulted in the total effective sentence being reduced to 14 years and 9 months' imprisonment with a non‑parole period of 10 years and 3 months.
9. The comparable cases cited to this court were few in number and do not clearly establish standards of sentencing for offences contrary to s 302.3(1) of the Code. Insofar as the comparable cases provide any guidance, bearing in mind the different factual circumstances and personal circumstances of the offenders and comparing them with the present case, three matters emerge. First, apart from Kleindyk, the quantities of the relevant controlled drug involved in the comparable cases are significantly greater than in the present case. Second, the offenders' criminality is, broadly speaking, greater than that of the respondent in the present case. Third, while the respondent in the present case went to trial and did not have the mitigation of a plea of guilty, he had the advantage, not present in the cited cases, of a significant discount in sentence for his past cooperation.
10. Thus, the cases relied on by the appellant as comparable cases do not point clearly to the individual sentence that was imposed upon the respondent for count 1 being manifestly inadequate. This is not, as a matter of principle, an insurmountable barrier to a finding of manifest inadequacy, but in the circumstances of this case, where much store was put on the comparable cases, it poses a great difficulty for the appellant.
11. The respondent was trusted by those above him in the hierarchy and was, as the sentencing judge found, 'an important cog in the operation and that he participated in it for financial reward'. However, he was not its guiding force. We also observe that he is not a person of prior good character and there is little mitigation to be found in his personal circumstances. The only significant matter of mitigation is his past cooperation.
12. When all the relevant circumstances are weighed, including the sentencing objectives referred to in [35] above, we are of the opinion that the sentence imposed upon the respondent for count 1 was low, perhaps even as low as could reasonably be imposed. However, taking into account all of the matters we have referred to, we have not been persuaded that it was manifestly inadequate. While we would grant leave to appeal on ground 1, the ground has not been made out.
13. With respect to ground 2, as mentioned, the appellant very much relied upon the outcomes in a small number of cases, Harvey v The Queen;[19] Parker v The Queen[20] and R v Jacques,[21] to support its contention that the sentence on count 2 was manifestly inadequate.
14. In Harvey, the appellant was charged with five offences, including an offence contrary to s 400.6(1) of the Code (count 4). This offence carries a maximum penalty of 10 years' imprisonment, which is lower than an offence contrary to s 400.5(1) of the Code. He was convicted of this offence after trial and sentenced to 18 months' imprisonment out of a total effective sentence of 8 years 6 months' imprisonment. The circumstances of the offending in Harvey are very different to the circumstances in the present case. The sentence on count 4 was not challenged. Harvey provides no real assistance in determining ground 2 in the present appeal.
15. In Parker, the offender was convicted after trial of three counts of importing a commercial quantity of cocaine, relating to 125 kg of the drug brought into Australia over six different occasions. He also pleaded guilty to five other offences of dealing with proceeds of crime, being large quantities of cash. Two of these counts were offences contrary to s 400.5(1) of the Code involving quantities of cash, being $50,000 and $35,800. For these offences, the offender received terms of imprisonment of 5 years and 4 years, respectively. The total effective sentence imposed upon the offender was 33 years' imprisonment, with a non‑parole period of 22 years. The sole ground of appeal was that the total effective sentence was 'manifestly excessive'. The ground of appeal was dismissed. The focus of the appeal in Parker was upon the drug offences. No attention was given to the individual sentences imposed for the offences against s 400.5(1) of the Code. Parker provides no assistance.
16. In Jacques, the offender was convicted on his pleas of guilty of trafficking 97.7 g of pure methamphetamine contrary to s 302.4(1), and with offences contrary to s 400.4(2) and s 400.6(1) of the Code, but not in respect of s 400.5. At first instance, the offender was sentenced to 3 years and 1 month's imprisonment, with a non‑parole period of 9 months. The Court of Appeal of South Australia upheld an appeal by the Crown. The Court of Appeal of South Australia resentenced the offender to 6 years, 5 months and 3 weeks' imprisonment. In doing so, the offender was resentenced on the s 400.6(1) offence, which involved $20,000 in cash, to 2 years, 1 month and 2 weeks' imprisonment; 1 year, 1 month and 2 weeks of that sentence was to be served concurrently with the trafficking offence. The offender in Jacques had a prior conviction for trafficking in a large commercial quantity of a controlled drug. The sentence he received for this offence expired only six months before he committed the offences the subject of the Crown appeal. The outcome in Jacques is of limited assistance to the disposition of the present appeal.
17. As in ground 1, the cases relied on by the appellant as comparable cases do not clearly point to the sentence imposed for count 2 being inadequate. Again, we would, having evaluated all of the relevant facts and circumstances, regard the sentence imposed on count 2 as lenient. However, we have not been persuaded it is manifestly inadequate. While we would grant leave to appeal on ground 2, the ground has not been made out.

1. Understandably, given the possible combination of charges and the varying circumstances in which offences of the kind with which this appeal is concerned occur, there are few comparable cases relevant to ground 3. The appellant's principal argument in support of this ground, as set out in its written submissions, was to allege that the discount for the appellant's past cooperation was too great. As mentioned, the appellant no longer maintains this submission.
2. The question is whether the appellant has demonstrated that the total effective sentence of 5 years 9 months' imprisonment with a non‑parole period of 3 years 6 months did not bear a proper relationship to the respondent's overall criminality. The respondent's overall offending was serious and involved different but related offending concerning both the trafficking in methamphetamine and money laundering. Accumulation of the sentences on counts 1 and 2 was plainly appropriate. Just as the individual sentences were lenient, we regard the total effective sentence as lenient, but it is not, to our minds, having regard to all of the relevant circumstances, so lenient as to infringe the first limb of the totality principle. While leave to appeal should be granted on ground 3, the ground has not been made out.

1. None of the grounds of appeal have been established. While we would grant leave to appeal, the appeal must be dismissed.
2. The orders that we would make are as follows:
   1. Leave to appeal is granted on grounds 1, 2 and 3.
   2. The appeal is dismissed.

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

[1] In respect of count 3, the respondent was charged with trafficking in a controlled drug, namely heroin, contrary to s 302.4(1). The jury found him not guilty of this offence, but guilty of possession.

[8] Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274 [77].

[14] Nguyen v The Queen [2010] NSWCCA 132.

[15] Director of Public Prosecutions (Commonwealth) v Merrill (a pseudonym) [2015] VSCA 52.

[16] Kleindyk v The Queen [2016] WASCA 123.

[17] Teoh v The Queen [2018] VSCA 239.

[18] Garcia v The Queen [2022] NSWCCA 172.

[19] Harvey v The Queen [2018] WASCA 188.

[20] Parker v The Queen [2020] NSWCCA 206.

[21] R v Jacques [2021] SASCA 94.