Court of Appeal (WA)|2008-09-02|Before: As Wheeler JA, Miller JA, Steytler P, Wheeler JA

THE STATE OF WESTERN AUSTRALIA -v- TRAN [2008] WASCA 183 (2 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- TRAN [2008] WASCA 183

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Possession of methylamphetamine with intent to sell or supply - 1.213 kg of purity between 50% 56% - Offender holding drugs in safekeeping - History of having performed this role on other occasions - Drugs when cut to street level worth $3.2 million - Whether sentence of 3 years 3 months' imprisonment manifestly inadequate

1 STEYTLER P: I have had the advantage of reading the judgments of Wheeler and Miller JJA. It is unnecessary for me to repeat the relevant facts and circumstances other than so far as is necessary for me to explain the outcome at which I have arrived.

2 The appellant pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply. The quantity was large (1.213 kg) and the purity was high (between 50% and 56%). However, the respondent was at a low level of the drug hierarchy. He allowed others to use his house as a storage place for the drugs in return for a small reward. As Wheeler JA has said, his role as the keeper of a safe house was limited to that conduct alone and he neither demonstrated, nor was asked to demonstrate, any initiative in planning how the drugs would be held or conveyed.

3 At the time of sentencing, the respondent was 67 years old. He suffered from a number of chronic illnesses, including heart disease, gout, high blood pressure and asthma. He had had a difficult life, having spent five years as a prisoner of war in Vietnam and six months in a refugee camp in Indonesia. Not long after his arrival in Australia he separated from his wife. He has since had limited contact with his four children. He worked primarily as a market gardener but, by 1995, his health problems had advanced to the point at which he was no longer able to work. The sentencing judge regarded the respondent as having been 'vulnerable' to those who had stored the drugs at his house. They had befriended him at the Burswood Casino. They took advantage of the fact that he was a gambler and provided him with money at the casino when his cash ran out. He consequently felt indebted to them.

4 After being arrested, the respondent, although not telling the police the whole truth, co-operated at an early stage. Importantly, he identified each of his co-offenders and was prepared to give evidence against them. One of them pleaded guilty not long after the respondent was sentenced, but it is accepted that his evidence will be helpful (although not necessarily essential) as against the other. Because of his co-operation, he is kept in protective custody in prison and, as Miller JA has said, he is required to spend most of his time in his cell with the door locked.

5 The trial judge took as her starting point a term of 10 years' imprisonment. This seemingly took account of the respondent's personal circumstances. She reduced that by 15% for the plea of guilty and by 35% for the respondent's co-operation with the police. She then reduced the resulting term by one-third pursuant to the requirements of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). She said that this gave rise to a sentence of 3 years and 3 months' imprisonment (as Miller JA points out, the mathematics should have resulted in a sentence of 3 years and 4 months' imprisonment). She ordered that the respondent be eligible for parole.

6 There are three grounds of appeal. The first contends that the sentence imposed was inadequate because an inadequate starting point was taken. The second is that the discount allowed for co-operation was excessively large. The third, which adds nothing to the first, is that the sentence was manifestly inadequate.

7 I agree with Miller JA, for the reasons that he has given, that ground 2 fails.

8 As to grounds 1 and 3, a starting point of 10 years, and (more importantly) a finishing point of 3 years and 4 months' imprisonment, was lower than would ordinarily be expected in a case involving the knowing safe-keeping of a quantity of a prohibited drug as large as this one. That is so even if account is taken of the fact that the respondent was not shown to have known what was the purity of the drug in his safe-keeping. However, this case has unusual features. It is well established that, because of the needs of deterrence, in cases such as this matters personal to an offender, such as age and good character, have less weight than they might have in other cases: Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237 [41] - [42] (Parker J, Kennedy ACJ & Wallwork J concurring); Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522 [15]; The State of Western Australia v Andela [2006] WASCA 77 [17] (McLure JA, Roberts-Smith & Buss JJA concurring). However, matters personal still have some weight, depending upon the circumstances, and, as Wheeler JA points out, the antecedents of the respondent in this case are better then the average. Notwithstanding the severe hardships that he has experienced, he has remained of unblemished character until a reasonably advanced age. His fall from grace, while a product of his preparedness to engage in serious criminal behaviour, was contributed to by the vulnerability of his position, given that he was alone, in poor health, unable to work and prone to gambling (unsuccessfully). Also, although the respondent's role was important to the criminal enterprise, he carried it out from a lower rung of the criminal hierarchy and received only a small reward in respect of it.

9 Each of Wheeler and Miller JJA has referred to cases setting out the conventional range for offences of this kind. Although helpful, ranges so established are not, of course, determinative given the significant potential for variation in the circumstances of the offending. There is, for example, obvious scope for variation, not only as regards the weight and purity of a particular drug, but also as regards knowledge of those factors. In this case, the quantity of the drug was large and the respondent must have known this. However, there is little to establish that the respondent understood that he was dealing with a drug with a very high level of purity. All that he was shown to have known is that he had been given, for safe-keeping, drugs of varying degrees of potency. The cases reveal that the degree of purity is often regarded as significant for sentencing purposes. For example, in Cameron v The Queen [2002] WASCA 81, the appellant had pleaded guilty to a charge of possession, with intent to sell or supply, of 1.1 kg of methylamphetamine with a 3% - 4% purity. He had acted as a courier and had prior convictions unrelated to drug offences. A starting point of 10 years' imprisonment was taken by the sentencing judge. This is equivalent to that adopted in this case, in which there is, as I have said, insufficient evidence to establish that the respondent knew of the degree of purity of the drugs in his possession.

10 Of course, someone who neither knows nor cares what is the level of purity of a drug in his possession cannot claim much advantage from that fact. Moreover, when a person deals in large quantities of prohibited drugs, a severe sentence is called for, regardless of the degree of purity or that person's knowledge of it. However, some significance (albeit slight) was required to be given to the fact that the respondent's role, although important, was limited, to the extent that he knew no more than that he was storing, for a relatively small fee, a large quantity of an unknown (but prohibited) drug of unknown purity for people who had befriended him and to whom he regarded himself as obligated.

11 In those circumstances, and taking into account the respondent's age, infirmity and vulnerability, the starting point and, hence (and more importantly), the finishing point, was low, but not so low as to result in the kind of error that warrants correction in a prosecutor's appeal. The principles applicable to such appeals (as to which see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329 (Gaudron & Gummow JJ), 340 - 341 (Kirby J); and The State of Western Australia v Houston [2005] WASCA 167 [52]) remain applicable to the present appeal notwithstanding recent legislative amendments: The State of Western Australia v Richards [2008] WASCA 134.

12 It is important to bear in mind, when considering the sentence imposed, that, as Wheeler and Miller JJA have said, the discount allowed

for the respondent's co-operation with the authorities was not excessive. Indeed, I agree with Miller JA, for the reasons that he has given, that, if all relevant information had been before the sentencing judge, a greater discount for co-operation may have been allowed than was in fact allowed by her. As Miller JA has pointed out, a substantial discount is ordinarily given (for sound reasons in the public interest) to an offender who gives useful information or assistance to police, even if it does not demonstrate remorse or contrition: A Child v The State of Western Australia [2007] WASCA 285 [11] (Wheeler & McLure JJA). Also, when making provision for co-operation in the course of sentencing an offender, danger or hardship which that person may be placed in or undergo as a result of co-operation with the authorities should be taken into account: Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 [118] (Roberts-Smith J); Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 [31] - [36] (McKechnie J, Malcolm CJ & Anderson J concurring); A Child v The State of Western Australia [11]. The evidence reveals that both are present in this case.

13 I would consequently give leave to appeal, but dismiss the appeal.

14 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller JA. I am in entire agreement with his Honour's reasons in relation to ground 2, and there is nothing I would add to those reasons.

15 So far as grounds 1 and 3 are concerned, it is my view that the learned sentencing judge selected a starting point which was low, but was not manifestly inadequate. Since I agree with Miller JA that the discounts which she awarded the respondent for his plea of guilty and cooperation were not excessive, it follows that the resulting sentence was not manifestly inadequate. My reasons for that view are as follows.

16 Although the respondent's personal circumstances are not to be given much weight, it seems to me that they were better than one generally finds in such cases. Generally, of course, couriers, or those who are used as safe houses, have unremarkable antecedents; the purpose of choosing those who do not have prior convictions, or significant prior convictions, is that they are less likely to attract attention. In that sense, the respondent's antecedents are not remarkable. However, he, unlike many couriers or "safe house" keepers, who are often relatively young, has had a very significant period of living in this country as a person of unblemished character. His life has plainly been marked by a degree of hardship, most obviously in a prison camp, but also as an inhabitant of a refugee camp for six months, and then as a refugee in this country who

has, in recent years, not been able to work for health reasons. He has also apparently lost contact with his family.

17 Further, his role as the keeper of a safe house was plainly limited to that conduct alone. He seems to have neither demonstrated, nor been asked to demonstrate, any initiative whatever in planning how the various drugs would be held or conveyed, although, as Miller JA has rightly pointed out, he was, nevertheless, a vital cog in the machinery of dealing.

18 There are two cases in which appropriate sentencing ranges have been discussed, and which are of considerable assistance in evaluating this case. In Quach v The Queen [1999] WASCA 210, Ipp J, after a detailed review of a series of cases, said:

I shall therefore proceed to express my view as to what would be an appropriate range for cases involving possession of heroin with intent to sell or supply, involving quantities of between about 600 to 700 grams, having a purity of between about 55% to 65%, where the offender is a courier who is well aware of the quantity and quality of the heroin in his possession, who actively participates in attempting to conceal the heroin from detection, who commits the offence for commercial gain (and not solely to finance an addiction), and who is close to the source of importation. In my opinion, the appropriate range of sentences for cases of this kind is between 11 to 15 years' imprisonment. I have come to this conclusion after taking into account the various sentences to which I have referred above, the maximum term of imprisonment laid down by Parliament, the importance in the drug chain of a courier of the kind described, and considerations of the kind mentioned by Owen J in La Rosa, namely that there is 'considerable justification for "firming up" sentences generally for offences involving drug trafficking'. [26]

19 Applying those observations to the present case, and accepting that authority suggests that similar sentences are required for heroin and methylamphetamine, it can be seen that the respondent in this case had a more substantial quantity of drug in his possession than that referred to by Ipp J, that he must have been aware of its quantity, that he was indifferent to its quality, and that, as I have noted, his role could not be described as an "active" one. Further, while in one sense he committed the offences for commercial gain, it is plain that this was not a case of an offender seeking out an opportunity to deal in drugs for commercial gain; rather, he became involved out of a sense of obligation to those who preyed on his vulnerability, and for minimal gain. In those circumstances, an appropriate starting point would be at the bottom of the range to which Ipp J referred. The starting point selected by her Honour was outside that range, but only marginally.

20 In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, McLure and Miller JJ each considered an appropriate range of sentencing for cases involving a significant quantity of methylamphetamine, of a purity roughly approximating the purity in the present case. Their Honours were more directly concerned with sentences at the upper rather than the lower range of an appropriate range of sentences, since in that case the appellant had been found in circumstances which clearly indicated that he had an active role as a dealer and organiser, and was more than a mere courier.

21 In that case, after considering Quach and a number of later cases, Miller J expressed the view that for an appellant who he described as a large-scale dealer in methylamphetamine, a sentence of 15 years' imprisonment was at the "higher end of the range", but should not be disturbed [44]. I should add that in that case the starting point was effectively the sentence imposed, since there were almost no mitigating factors and there had been no plea of guilty. McLure J also referred to Quach with approval. Her Honour, in addition, considered a number of other cases which in her view demonstrated a "relatively consistent sentencing range" [49]. They included Cameron v The Queen [2000] WASCA 286 where in relation to possession of 1.1 kg of methylamphetamine of low purity, an appropriate "starting point" for the courier was said to be 10 years (the same as the term in this case) and Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522, where possession by a courier of 422 g of methylamphetamine of nearly 60% purity attracted a 10-year sentence, reduced from a "starting point" of 12 years.

22 In my view, a starting point any lower than that selected by her Honour would have revealed error. However, although lenient, it is my view that the starting point selected by her Honour and, more importantly, the sentence ultimately imposed after making allowance for all relevant factors, is not demonstrably inconsistent with the pattern of sentences appropriate for offences of this kind.

24 MILLER JA: The respondent pleaded guilty to an indictment which alleged that on or about 28 November 2006 at Girrawheen he had in his possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another. On 25 January 2008, he was sentenced by Sweeney DCJ to imprisonment for 3 years 3 months, with eligibility for parole. The sentence was backdated to 19 October 2007.

25 On 17 April 2008, the appellant was given leave to appeal against the adequacy of the respondent's sentence on three grounds. Those grounds are:

The learned sentencing Judge erred by adopting an inadequate starting point for the offence, with the result that the effective term imposed after allowances for mitigating factors and the operation of the Sentencing Legislation Amendment and Repeal Act 2003 was inadequate.

(i) Despite the different role played by the Respondent in the commission of the offence, the offence committed by the Respondent was still very serious given the quantity (1.213 kilograms) and purity (between 50-56%) of the methylamphetamine involved in this case.

(ii) Having made findings about the level [sic of] involvement of the Respondent and his culpability in the commission of the offence, the learned sentencing Judge gave no reason, nor was there justification, for taking a starting point of 10 years.

(iii) The learned sentencing Judge erred in giving too much weight to matters personal to the Respondent.

(iv) The learned sentencing Judge failed to adequately reflect the need for general deterrence and the need for punishment to protect the community from the harm caused by the dissemination of large amounts of methylamphetamine into the community.

The learned sentencing Judge erred in giving an excessively large discount for the Respondent's co-operation with Police generally and specifically for his undertaking to give evidence for the State in any trials against the co-accused, with the result that the effective sentence was inadequate.

(i) The Respondent's co-operation did not stand beyond admitting to Police the full details of his role in the offence, and to the extent that he was aware of it, that of his co-accused in the offence.

(ii) The learned sentencing Judge had no evidence or information regarding the strength of the State case against the co-accused.

The learned sentencing Judge erred in imposing an overall sentence that in all the circumstances was manifestly inadequate.

(i) The appellant repeats the particulars to ground 1.

Principles relevant to State appeals against sentence

26 I recently stated the relevant principles applicable to prosecution appeals in The State of Western Australia v Porter [2008] WASCA 154 as follows:

The principles applicable to prosecution appeals have been stated many times. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 340 - 341, Kirby J expressed those principles in the following terms:

For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' ... of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' ... such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences ... This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.

27 Those principles are applicable to the present case, in which the appeal was instituted on 15 February 2008. The recent amendments to the Criminal Appeals Act 2004, s 41(4)(b) therefore do not apply: see The State of Western Australia v Richards [2008] WASCA 134.

28 The facts put before the sentencing judge by the prosecutor revealed that, on 28 November 2006, detectives executed a search warrant at the respondent's home in Girrawheen and located two vacuum heat-sealed plastic bags in a freezer, each of which contained large quantities of methylamphetamine. A further plastic bag containing a large quantity of methylamphetamine was found in the refrigerator. The total weight of methylamphetamine found in the various packages was 1.213 kg. It had a purity between 50% and 56%.

29 The respondent was interviewed and he admitted that the drugs found were in his possession. He identified people who had supplied him with those drugs. Those two persons were Tien Chung Nguyen (Nguyen) and Thi Nga Bui (Bui) When their premises were searched, they were found to be in possession of 388 g of methylamphetamine with a purity of 52% to 55% and also heroin, ecstasy and cash.

30 The sentencing judge found that Nguyen was bringing large quantities of drugs to Perth from Sydney and giving them to the respondent to hold in safekeeping until he or his accomplice asked for them back. The respondent had been groomed by his co-offenders at the casino, where the respondent had gambled money and lost. He was paid by his accomplices on a number of occasions for holding drugs.

31 In a statement made by the respondent on 16 January 2007, he detailed the occasions upon which Nguyen delivered drugs to him for safekeeping. Nguyen used a code to describe the type of drugs that were being delivered. The word 'chau' was used to mean 'kids or children' and this, in turn, meant that it was an illicit drug of a weak quality. The word 'girls' was used to describe different drugs. There were occasions upon which Nguyen requested that the respondent hold packages of 'girls' and then bring them across to an address in Girrawheen nominated by Nguyen. The term 'the boy' was also used for a drug which the respondent understood to be a stronger drug than a 'girl'. The respondent said that Nguyen told him that 'the boys' were a stronger drug.

32 On 28 November 2006, in response to a telephone call from Nguyen requesting that the respondent bring over '10 girls and the boy', the respondent did as instructed and drove to Clover Square, Girrawheen, where he stopped his car and threw to Nguyen the '10 girls and one boy'. He returned to his home, and at about 8 pm on the same night, police arrived at his house where they found three bags which the respondent described as containing 'all the girls and boys in the fridge'.

33 The sentencing judge concluded that the respondent knew exactly what was happening in relation to the drugs. He knew that they were drugs and he knew that they had been brought into Western Australia by Nguyen and by other people for Nguyen. He knew that money was involved because he was paid small amounts of cash on occasions for holding the drugs. The sentencing judge found that the cash he was given 'small compared to the huge risk [he] took'. The sentencing judge concluded that the respondent had been used by his accomplices. She said:

'You took risks which meant that they took less risk. You took less risk than a courier who boards on a plane with drugs on his person ... but ... Chung wasn't holding them and [he] wouldn't be caught with them on him.

34 The sentencing judge concluded that the respondent had assisted his accomplices on more than one occasion, but made it clear that she was sentencing him only for the drugs with which he was found in possession on 28 November 2006. She concluded that the respondent must have known that his friends were drug dealers, and substantial ones at that, and he helped them in their enterprise.

35 The sentencing judge concluded that the drugs were of good quality. She observed that 50% to 56% was a high purity drug and Nguyen and his accomplice must have been high in the distribution chain. The sentencing judge concluded that, cut to street level and sold in individual use quantities, the drugs were worth as much as $3.2 million. She concluded, however, that Nguyen was likely to have sold the drugs in large quantities for which he would have received less money, but in relation to which he would 'not have to do much work for his money'.

36 The sentencing judge accepted that the respondent did not use drugs. She refused to accept the respondent's contention in a pre-sentence report that he did not realise that what he was doing was serious, and found that he knew what the was doing and he accepted money to do it. She said:

Turning a blind eye and deliberately not asking is not the same thing as not knowing. The fact that you were paid little compared to the risk you took means that you weren't very good at this and you undervalued the service you performed. It doesn't mean you were an innocent victim. I accept of course that you have pleaded guilty and so you understand that but the author of the pre-sentence report says you minimise your role and I also accept that.

37 The sentencing judge noted the respondent's plea of guilty and said that it was an acceptance of the inevitable, because the State's case was overwhelming. Nevertheless, it was worthy of a meaningful discount.

38 The sentencing judge also found that the respondent did not tell the whole truth to police immediately after he had been apprehended, but he did co-operate at an early stage, and he indicated a willingness to give evidence if required to do so. Her Honour found this to be 'particularly important, given that these people are higher up the chain than you'.

39 After observing that one accomplice (Nguyen) had pleaded guilty, and the other (Bui) was pleading not guilty (the information then before the court), her Honour concluded that co-operation with authorities could attract a discount of as much as 50% on a sentence. Her Honour observed, in relation to the respondent:

I see your cooperation as stemming from the fact that you were caught red-handed with an enormous quantity of drugs and that, although you had the right to remain silent, unless you explained your lesser role to the police they would conclude on the evidence, and I would conclude, that you were high up the chain of drug dealing. Just telling them a story without names and details was not likely to be given much credibility by them and I consider that you knew well and truly enough about this to know that you were in very big trouble and cooperated in order to improve your situation.

The sentencing judge did not think the respondent revealed remorse by his co-operation.

40 Reference was made to the respondent's antecedents. He was 67 years of age and had been raised in Vietnam. He joined the army in Vietnam (presumably the ARVN), but in 1975 was taken as a prisoner of war and was kept in a prison camp for five years. He and his family came to Australia as refugees in 1980, but shortly thereafter he and his wife separated. He had worked in numerous jobs, but since 1995 had been on a disability pension. He had four children in Perth, but had little contact with them.

41 The sentencing judge rightly observed that the respondent's personal history carried little weight, but concluded that the respondent was 'vulnerable to these people'.

42 After observing that commercial dealing in illicit drugs for personal gain means that personal and general deterrence overwhelms the personal circumstances of the offender, the sentencing judge made reference to the evils of trafficking in drugs, to the seriousness of trafficking in methylamphetamine, and said:

Taking into account your age, your background, your role as I have described it, your plea of guilty and your substantial cooperation with the police and your willingness to give evidence, I consider an appropriate term of imprisonment in this case to be three years three months' imprisonment to be immediately served. That was a sentence of 10 years reduced by half, 15 per cent for your plea of guilty and 35 per cent for your cooperation with the police including the giving of evidence and then reduced by one-third as required by the Sentencing Act.

43 This ground contends that a starting-point of 10 years was an inadequate starting-point, given the circumstances of the offence. It is argued that, because the respondent was found in possession of a very substantial amount of high purity methylamphetamine, the starting-point should have been much higher.

44 The question at issue was not so much the weight of the drug or its purity, but the role played by the respondent: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64] and [69] (Gaudron, Gummow & Hayne JJ). Nevertheless, possession of large quantities of methylamphetamine with intent to sell or supply in itself calls for substantial punishment. As Gaudron, Gummow and Hayne JJ said:

In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. [64]

45 The quality of the drug in possession of an offender is normally an important factor (see The State of Western Australia v Andela [2006] WASCA 77 [18] (McLure JA); Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]).

46 The respondent was aware that he was in possession of what he described as a 'stronger drug'. He may not have been aware of the specific drug which he was holding, but he was well aware that there were different drugs that he held on different occasions and some were stronger than others. At the time he was found in possession of a large quantity of methylamphetamine, he knew well that he had a stronger drug in his possession. He must also have known that he had a substantial quantity of the drug. The weight of what was given to him would have been apparent. He may not have known the precise weight (1.213 kg in total), but in handling the drugs, the respondent must be taken to have been aware of their approximate weight.

47 The respondent was not aware of the purity of the drugs, but it is clear from his statement that he knew that some drugs were stronger than others and he knew that he was dealing with drug dealers who were dealing in drugs which were being delivered from interstate. The conclusion can easily be drawn that, although unaware of the precise quality of the drugs, he knew that what he was dealing in was being utilised for commercial purposes.

48 In the present case, the respondent therefore dealt with a very substantial amount of methylamphetamine which was as a matter of fact of high quality. The reward he received was not great, and was rightly categorised by the sentencing judge as being small, compared to the risk he took, but his sole motivation for being involved in the commission of the offence was financial gain.

49 Little weight is to be afforded to the respondent's personal circumstances, as made clear by McLure JA in The State of Western Australia v Andela [2006] WASCA 77:

[A]s a consequence of the significant weight given to deterrence, mitigating circumstances that are personal to the offender, such as age and good character, have correspondingly less weight than they might have in other cases: R v Marchesano [2000] WASCA 225; (2000) 116 A Crim R 237 at 243; R v Kezkiropoulos [2002] WASCA 352; (2002) 136 A Crim R 522 at [15] per Steytler J. [17]

50 The respondent's personal circumstances were as follows. He was born in Vietnam and was at the time of sentencing 67 years of age. He was the eldest of four children and he was educated to year 12 level in Vietnam before joining the army. He completed one year of basic training with the army and then entered the Marine Corps Division where he remained for a year before travelling to the United States for further training. He returned to Vietnam where he was promoted to a captain in the Marine Corps. He spent two years in that corps until wounded in duty, after which he was made Chief of Social Welfare. There, he worked for a period of five years, following which he was in the supply and salary section of the army for a further two years. In 1975, he was captured on active service and made a prisoner of war. In remained in a prisoner of war camp for five years before release. He, his wife and four children were able to escape from Vietnam and travel to Australia as refugees. En route to Australia, they spent six months in a refugee camp in Indonesia. They were transferred to Singapore and then arrived in Perth in 1981.

51 After arrival in Australia, the respondent separated from his wife. He thereafter had limited contact with his four children. He worked as a farmhand in a market garden, was self-employed as a market gardener, and then acquired a delicatessen. He was forced to sell that business and return to work as a market gardener, but, by 1995, his health problems were such that he was no longer able to work. He was thereafter in receipt of a disability pension from the Department of Veterans' Affairs. He has a number of chronic illnesses, including heart disease, gout, high blood pressure and asthma.

52 I mention these matters, not because they are of significant weight in a case such as the present, but because they must have weighed in the sentencing judge's decision to arrive at a commencement point of 10 years' imprisonment. I say that, because when the sentencing judge pronounced sentence, she allowed 15% for the plea of guilty and 35% for the co-operation of the respondent. Any allowance that was made for personal circumstances (and it should not have been much) must therefore have been made in relation to the start-point of the sentence.

53 I have already quoted the passage from the sentencing judge's sentencing observations where she stated that she took into account the respondent's age, background, role, plea of guilty and substantial co-operation before fixing upon a sentence of 3 years 3 months' imprisonment. In fact, the sentence should have been 3 years 4 months. There was a miscalculation of one month made by the sentencing judge.

54 A consideration of cases involving possession with intent to sell or supply of very large amounts of methylamphetamine does suggest that a 'start point' of only 10 years in this case was very low.

55 The relevant cases were reviewed by McLure JA in Tulloh at [47] et seq and they reveal, in general terms, that cases involving possession with intent to sell or supply large quantities of methylamphetamine will bring sentences of up to 10 years' imprisonment, after application of the transitional provisions. I endeavoured to summarise the position in Bosworth v The State of Western Australia [2007] WASCA 144:

The first category of cases to consider are those cases which involve possession, with intent to sell or supply, of large quantities of methylamphetamine. Generally speaking, sentences of up to 10 years' imprisonment (where appropriate converted under the post-transitional provisions) can be said to be within the customary sentencing range: Tulloh (supra); Cameron v The Queen [2000] WASCA 286; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; and Macri v The State of Western Australia [2006] WASCA 63. In some cases, even where pleas of guilty have been entered, sentences as high as 13 years or more have been imposed for multiple counts of possession of substantial quantities of methylamphetamine and MDMA: Sinagra-Brisca v The Queen [2004] WASCA 68. [40]

56 In Tulloh, the appellant had possession with intent to sell or supply a quantity of methylamphetamine which was in two packages which contained 423.8 g and 381.7 g respectively. The purity was 51% and 68% respectively. If cut to a street level of 3% purity, the drug was worth $4 million. The sentence imposed upon the appellant was 15 years' imprisonment. It was a case prior to application of the transitional provisions. The Court of Criminal Appeal considered that, in the circumstances, the sentence imposed was within range, although at the higher end of the range ([44] Miller JA, [52] McLure JA).

57 In the earlier case of Quach v The Queen [1999] WASCA 210, Ipp, Wallwork and White JJ concluded (at [26]) that the appropriate range of sentences for cases involving possession of heroin with intent to sell or supply involving quantities of between 600g and 700 g and purity of 55% to 65% where the offender was a courier and where the offence was committed for commercial gain would be between 11 and 15 years. This was a 'pre-transitional' range. This case was concerned with heroin, but methylamphetamine is to be considered in the same category as heroin in terms of its seriousness: Darwell (1997) 94 A Crim R 35.

58 All of this leads me to conclude that a 'pre-transitional starting-point' of only 10 years in the present case was manifestly inadequate. The amount of methylamphetamine was very substantial and the purity of it was very high. The respondent did not play a major role in relation to dealing in the drug, but he was a vital cog in the machinery of dealing. He held it for others and made it available when it was wanted. He also assisted his co-offenders in moving the drugs between locations. He knew what it was that he was holding and he was rewarded for what he did. It therefore seems to me that ground 1 has substance.

59 This ground contends that the sentencing judge gave an excessively large discount for the respondent's co-operation with police. That discount was 35%. Combined with the plea of guilty, it meant a total discount of 50%.

60 The information given to the sentencing judge at the time of sentencing submissions was inaccurate. Additional material before this court (admitted by leave) reveals that the information put before the sentencing judge in relation to Bui was correct, but that put before the sentencing judge in relation to Nguyen was not.

61 It appears that on 13 September 2007, Nguyen pleaded guilty to two counts of possession of a prohibited drug (methylamphetamine and heroin respectively) with intent to sell or supply. These pleas were entered in relation to indictment number 710 of 2007.

62 Nguyen was indicted in the District Court on indictment number 1757 of 2007 in respect of further drug offences. This indictment contained one count of possession of a prohibited drug (MDMA) with intent to sell or supply and one count of supplying a prohibited drug (methylamphetamine). Indictment number 1757 of 2007 first came before the District Court on 13 November 2007, when it was adjourned to the following day in order that it and indictment number 710 of 2007 could be dealt with together. The charges in the two indictments arose out of the same set of facts.

63 On 14 November 2007, no plea was entered by Nguyen in relation to indictment number 1757 of 2007 and both indictments were adjourned to 5 March 2004.

64 On 5 March 2008, there was still no plea entered in relation to indictment number 1757 of 2007. Defence counsel was unable to indicate what the plea would be, and was unable to say whether a trial of issues would be required in relation to indictment number 710 of 2007. There was a further adjournment to 27 March 2008.

65 On 27 March 2008, both Nguyen and Bui came before the District Court. Nguyen pleaded not guilty to both counts on indictment number 1757 of 2007 and the matter was listed for trial for five days, commencing 18 August 2008. Indictment number 710 of 2007 was adjourned to 18 August 2008 for mention.

66 At Nguyen's trial on 18 August 2008, the prosecutor intends to call the respondent to give evidence. Prosecuting counsel considers that such evidence will be important to help explain the telephone intercept material and the role played by Nguyen in the supply of methylamphetamine to the respondent. The respondent has apparently indicated to the investigating detective that he is still willing to give evidence at the trial of Nguyen, notwithstanding the fact that the appellant has appealed against the respondent's sentence.

67 After the sentencing judge had sentenced the respondent in this case, Bui pleaded guilty to all three counts on the indictment faced by her. She was sentenced on 9 April 2008 to 5 years 4 months' imprisonment with eligibility for parole.

68 The appellant argues that, although the respondent gave assistance which was prompt and honest and implicated his co-offenders to the extent that he knew of their involvement, his assistance did not extend beyond this particular offence. It did not add to the intelligence base of the authorities. Further, it is argued that the prosecution case against the co-offenders did not rely solely upon the evidence of the respondent. There was a large number of intercepted telephone calls which implicated all offenders. The respondent's evidence would have assisted to identify each of the offenders on the telephone intercept material, and confirm codes used by the offenders, but not a great deal more.

69 The appellant also contends that the sentencing judge concluded that the respondent's co-operation with the police occurred in the context of having been caught red-handed and it was therefore necessary for him to explain his role, failing which it would have been open to have inferred that he was more involved than he actually was. In these circumstances, it is argued that there was no justification for a discount as great as that which was given.

70 In supplementary submissions before the court, the appellant argues that, even if the sentencing judge had been fully informed in relation to the charges against Nguyen to which no pleas had been entered, and had been told that there was a potential for the respondent to have to give evidence against Nguyen in a trial concerning those charges, this information would not have placed the respondent in any significantly better position for the purposes of sentencing. The reasons advanced are as follows:

(a) it was for the sentencing judge to take into account the respondent's co-operation in providing a statement and his preparedness to give evidence, together with the possibility that he would be required to give evidence;

(b) the possibility that he would be required to give evidence already existed in relation to the proposed trial of issues concerning Nguyen and the potential trial concerning Bui;

(d) the evidence to be given by the respondent was not the only evidence upon which the prosecution would be placing reliance to prove its case against the respondent's co-accused.

71 Nevertheless, the appellant concedes that the respondent's evidence will be helpful to its case against Nguyen.

72 It seems to me that the concession by prosecuting counsel that the respondent's evidence will be important to assist in the prosecution of Nguyen places his co-operation at a significantly high level.

73 The respondent will no longer be required to give evidence against Bui, but it is perhaps significant that Bui pleaded guilty after the respondent was sentenced, and at a time when it must have been known to her and to her advisers that the respondent was prepared to give evidence against her.

74 Given the circumstances as they are now known, the respondent's prospective co-operation by testifying against Nguyen at his trial due to commence on 18 August is a matter of considerable significance.

75 There is, of course, no tariff for discounts which result from co-operation with authorities. Substantial discounts can be given: see Foster and D'Anna (1992) 59 A Crim R 14; Duffy (1996) 85 A Crim R 456. The principle upon which such discounts are given was expressed by Seaman J in Foster and D'Anna as follows:

High public policy dictates that offenders who give police assistance of a high order are to be rewarded by a very substantial discount from their sentence: McGookin and Robinson (1986) 20 A Crim R 438. A significant discount must be given and be seen to be given for significant assistance: Cartwright (1989) 17 NSWLR 243 at 250. (21 - 22)

76 In Bazzi v The State of Western Australia [2007] WASCA 195, Wheeler JA (Owen and Miller JJA concurring) said:

The correct approach to a discount for co-operation with the authorities has often been canvassed. There is no 'tariff' for such a discount, and the discount may, in appropriate circumstances, be very small, or may be as much as 50%, or even more (Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, [52] (Templeman J), [111] - [112] (Roberts-Smith J, with whom Steytler J agreed). [26]

77 In A Child v The State of Western Australia [2007] WASCA 285, Wheeler and McLure JJA restated the principles relevant to a discount for co-operation with authorities. Their Honours said:

The principles governing the discount for co-operation with authorities have been often stated. A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition (as, in our view, it does here), the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should be taken into account: Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, [118] (Roberts-Smith J); Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, [34] (McKechnie J).

The considerations mentioned above reflect two underlying principles. One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.

The discount given to offenders should not be laid down as a standard percentage, but depends upon the circumstances of the individual case: R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993). In that case, it should be noted that Rowland J cited Perrier & Richardson [1991] VicRp 38; [1991] 1 VR 717; (1990) 59 A Crim R 164 as authority for the proposition that, in some circumstances, the discount may be as high as two-thirds deducted from the head sentence. [11] - [13]

78 At the hearing of the appeal, counsel for the appellant referred to a table of cases in which the discounts for co-operation with authorities ranged between 10% and 20%. Those cases can be summarised in the following way: Mada v The Queen [2003] WASCA 1, (10%); Bazzi v The State of Western Australia [2007] WASCA 195, (20%); Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, (15.4%); S v The Queen [2000] WASCA 34 (20%); Barany v The Queen [2000] WASCA 240, (20%). These cases all concerned drug related offences. The percentages are often combined with other discounts.

79 There are other cases: Parry v The Queen (Unreported, WASCA, Library No 8895, 30 May 1991), (33%); X v The Queen [2000] WASCA 355, (40%); Radalj v The Queen (Unreported, WASCA, Library No 970059, 20 February 1997), (~40%); Pinkstone v The Queen (Unreported, WASCA, Library No 950088, 3 March 1995), (~50%). In these cases, the percentages are combined with discounts for pleas of guilty.

80 These cases do not affect the general statement of principle in A Child that discounts for co-operation (whether past, future, or both) can be as high as two-thirds.

81 It is also relevant that the respondent has paid a price for his co-operation. He was at the time of sentencing in protective custody at Hakea Prison and, according to his counsel, spent most of his time in his cell with the door locked. It must, of course, be recognised that, by undertaking to give evidence against his co-offenders, the respondent places himself in jeopardy. He is presently a 67-year-old man, and is undoubtedly at risk of violence from other prisoners in consequence of his undertaking to give evidence at the trial of his co-offenders.

82 In my opinion, the discount of 35% for co-operation in this case was within the range that could have been expected. It may have been more if the sentencing judge had all relevant information before her. There is therefore no substance in ground 2.

83 This ground contends that the overall sentence was manifestly inadequate. Reliance is placed upon the submissions made under the first ground.

84 In the circumstances, and despite his co-operation, it does seem to me that the respondent was treated extremely leniently. A sentence of only 3 years 3 months seems to me to be manifestly inadequate.

85 Despite the co-operation and the respondent's plea of guilty, the circumstances of the offence were such that, in my opinion, a greater sentence was called for. Having regard to the authorities to which I have referred, I consider that an appropriate pre-transitional starting-point would have been 13 years' imprisonment. This starting-point takes account of the respondent's personal circumstances, of limited import though they are. Allowing 15% for the plea of guilty and 35% for co-operation means a discount of 50%, which would lead to a sentence of 6 years 6 months. After application of the transitional provisions, the appropriate sentence would be 4 years 4 months.

86 Because this is a State appeal against sentence, and the respondent faces double jeopardy, I consider a sentence of 4 years' imprisonment would be appropriate in all the circumstances. I would therefore allow the appeal on grounds 1 and 3, set aside the sentence imposed by the sentencing judge and substitute in lieu thereof a sentence of 4 years' imprisonment.

Legislation Amendment and Repeal Act 2003

THE STATE OF WESTERN AUSTRALIA -v- TRAN [2008] WASCA 183 (2 September 2008)

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THE STATE OF WESTERN AUSTRALIA -v- TRAN [2008] WASCA 183 (2 September 2008)

Principles relevant to State appeals against sentence

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