Al-Rafei v The State of Western Australia
[2017] WASCA 4
•12 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AL-RAFEI -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 4
CORAM: NEWNES JA
MAZZA JA
BEECH J
HEARD: 15 DECEMBER 2016
DELIVERED : 12 JANUARY 2017
FILE NO/S: CACR 66 of 2016
BETWEEN: FAROUK AL-RAFEI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 175 of 2016
Catchwords:
Criminal law - Appeal against sentence - One count of possession of MDMA with intent to sell or supply - Courier of 2.24 kg of MDMA with purity of 23% - Discount of 15% for plea of guilty - Sentence of 8 years and 6 months' imprisonment - Whether manifestly excessive
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr L M Fox
Solicitors:
Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Birch v The State of Western Australia [2011] WASCA 101
Bond v The State of Western Australia [2011] WASCA 123
Chan v The Queen (1989) 38 A Crim R 337
Galbraith v The State of Western Australia [2011] WASCA 70
Giglia v The State of Western Australia [2010] WASCA 9
Guler v The State of Western Australia [2014] WASCA 83
Kezkiropoulos v The Queen [2002] WASCA 352
Koncurat v The State of Western Australia [2010] WASCA 184
MSO v The State of Western Australia [2015] WASCA 78
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Neumann v The State of Western Australia [2013] WASCA 70
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
The Queen v Kilic [2016] HCA 48
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
JUDGMENT OF THE COURT: This is an appeal against sentence. On 26 April 2016, in the District Court, the appellant was convicted on his plea of guilty to possession of a prohibited drug, namely MDMA, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced by O'Neal DCJ to 8 years and 6 months' imprisonment. The sole ground of appeal is that the sentence was manifestly excessive.
On 10 June 2016, the appellant was granted leave to appeal on that ground.
Background
On 4 March 2015, the appellant and a female acquaintance drove to a house in Gosnells. The appellant went to the front entrance of the house, where a male co‑accused handed him a small blue chiller bag.
The appellant then left the house and drove towards Albany Highway in Gosnells. While driving along Albany Highway, he was stopped and questioned by police. The appellant admitted there were illegal steroids inside his vehicle. Police then undertook a search of the vehicle and located two large clipseal bags inside the blue chiller bag, which was secreted inside a large black gym bag. The clipseal bags contained 10,281 tablets which, upon subsequent analysis, were found to contain MDMA with a purity of 23%. The total weight of the tablets was 2.24 kg.
The appellant subsequently pleaded guilty to one count of possession of MDMA with intent to sell or supply.
The sentencing remarks
The primary judge noted that the appellant was 24 years old at the time of sentencing, and had been 23 years old at the time of the offending. He was one of four sons. His parents had separated when he was seven years old, leaving his mother to raise the children. The appellant had described his upbringing as difficult because of his mother's financial struggles, and said that part of his reason for being a drug courier was to provide financial help to his mother.
The appellant completed year 12 at school and later obtained a certificate in residential drafting. At the time of the offence, the appellant had been employed full time as an internal estimator, as well as working as a casual employee at a supermarket. The appellant had previously used steroids for muscle development, but, other than that, did not drink or use drugs. The appellant had no relevant prior convictions.
The sentencing judge found that the appellant's role in the distribution of the drugs was as a paid courier, observing that the volume of the drugs involved made it very serious offending and it was an aggravating factor that the offending had occurred purely for financial gain.
The sentencing judge noted that the mitigating factors were the appellant's plea of guilty, his good antecedents and his relative youth. He found that the appellant was remorseful and had good prospects of rehabilitation. His Honour reduced the sentence that would otherwise have been imposed by 15% under s 9AA of the Sentencing Act 1995 (WA), notwithstanding that the appellant's conviction was 'essentially a foregone conclusion', noting that the plea had not occurred at the first reasonable opportunity.
The appellant was sentenced to 8 years and 6 months' imprisonment, with eligibility for parole.
Ground of appeal
The appellant's sole ground of appeal is that the sentence was manifestly excessive.
Disposition of the appeal
The relevant principles are well established. In determining whether a sentence is manifestly excessive, the sentence must be viewed in light of the maximum sentence prescribed for the offence (in this case, 25 years' imprisonment, a fine of $100,000 or both); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
While it is necessary to have regard to sentences in other cases involving similar offending in order to achieve broad consistency in sentencing, the range of sentences imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence in the future: see Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39]; The Queen v Kilic [2016] HCA 48 [24].
In support of his contention that the sentence was manifestly excessive, the appellant referred to Pham v The State of Western Australia [2011] WASCA 244; Phan v The State of Western Australia [2014] WASCA 144; Kezkiropoulos v The Queen [2002] WASCA 352; MSO v The State of Western Australia [2015] WASCA 78; Koncurat v The State of Western Australia [2010] WASCA 184; Giglia v The State of Western Australia [2010] WASCA 9; Birch v The State of Western Australia [2011] WASCA 101; and Guler v The State of Western Australia [2014] WASCA 83. The respondent referred to Bond v The State of Western Australia [2011] WASCA 123 and Galbraith v The State of Western Australia [2011] WASCA 70.
We have considered those cases, among others. None of them assist the appellant. It is unnecessary to canvass all of the cases referred to, a number of which are not appropriate comparators. It is sufficient for present purposes to mention the following cases.
In Pham, the appellant pleaded guilty to possession of 498.7 g of methylamphetamine at 47% ‑ 52% purity (count 1) and 167 g of heroin of between 64% ‑ 66% purity, with intent to sell or supply, and possession of $3,230 that was reasonably suspected of being unlawfully obtained. The appellant was found to be in possession of the drugs and money on his arrival in Perth on a flight from Sydney. The appellant was sentenced to a term of 7 years' on count 1 and a total effective sentence of 9 years' imprisonment. An appeal against the sentence for count 1 was dismissed.
In Phan, the 19‑year‑old offender pleaded guilty to one charge of possession of methylamphetamine with intent to sell or supply. He was stopped by police at Perth Airport on his arrival from Sydney and found to be carrying 1.0507 kg of methylamphetamine with an average purity of 73.9%. The offender admitted that he had been a courier of drugs into Western Australia on two prior occasions. He was sentenced on the basis that he was a courier. The offender was sentenced to 7 years and 4 months' imprisonment. He received a discount of 25% for his plea of guilty. An appeal against sentence was dismissed.
In Bond, the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply. The offence involved 3.061 kg of methylamphetamine with a purity of between 3% and 7%. The appellant was apprehended with the drugs while travelling by car from New South Wales to Western Australia. A sentence of 9 years' imprisonment was reduced to 7 years on appeal.
In Galbraith, the offender pleaded guilty on the fast‑track system to one count of possession of methylamphetamine with intent to sell or supply. The count related to two quantities of methylamphetamine, 486 g with 74% purity and 485.6 g with 78% purity. The sentencing judge found that the offender was couriering the drugs to pay a debt to his drug dealer. The offender had a criminal record for drug, weapon and traffic offences. An appeal against a sentence of 9 years' imprisonment was dismissed.
We note in passing that, whilst those cases did not involve MDMA, for sentencing purposes there is no basis for making any significant distinction between MDMA, heroin and methylamphetamine: The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [121].
Taking into account the varying circumstances of the cases, the sentence imposed on the appellant in this case is broadly consistent with the sentences in those cases.
In this case, the appellant's offending was appropriately described by the sentencing judge as 'very serious'. While the appellant may not have been aware of the precise amount of the drugs involved, he accepted that he was aware a substantial quantity was involved. That would have been apparent from the weight of the bag he was given and the amount he was to be paid for his role. He must therefore have been aware that he was facilitating a scheme to distribute a large quantity of illicit drugs into the community. That role of a courier is an important element in the dissemination of drugs into the community: Phan [25]. The appellant's participation in that scheme as a courier was simply for his own commercial gain.
The mitigating factors of the appellant's age and good antecedents are of limited weight in offending of this nature, the major considerations being general and personal deterrence: Neumann v The State of Western Australia [2013] WASCA 70 [26]. The sentencing judge allowed the appellant a discount of 15% for his plea of guilty.
Having regard to maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the seriousness of the offending, and the personal circumstances of the offender, the sentence imposed did not exceed a sound exercise of the sentencing discretion.
Conclusion
The appeal is dismissed.
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