Bull v The State of Western Australia
[2019] WASCA 24
•5 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BULL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 24
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 3 AUGUST 2018
DELIVERED : 5 FEBRUARY 2019
FILE NO/S: CACR 190 of 2017
BETWEEN: LARRY WAYNE BULL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 697 OF 2016
Catchwords:
Criminal law - Appeal against sentence - Late plea of guilty - Possession of a prohibited drug with intent to sell or supply it to another - Total of 2.137 kg of methylamphetamine - Sentenced to 11 years 4 months' imprisonment - Alleged express error - Whether judge erred in finding the appellant continued to retain control over the drugs - Whether judge erred in applying a 10% discount to the sentence for the plea of guilty - Alleged breach of the parity principle - Whether sentence was insufficiently disparate to co-offender's sentence of 14 years 6 months' imprisonment - Alleged implied error - Manifest excess
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal on grounds 1, 2 and 4 refused
Leave to appeal on ground 3 granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Michael Tudori & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnden v The State of Western Australia [2014] WASCA 161
Bees v The State of Western Australia [2017] WASCA 202
Chen v The State of Western Australia [2018] WASCA 11
Gakis v The State of Western Australia [2019] WASCA 25
Galbraith v The State of Western Australia [2011] WASCA 70
Gaskell v The State of Western Australia [2018] WASCA 8
KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367
Kobeissi v The State of Western Australia [2016] WASCA 188
Le v The State of Western Australia [2015] WASCA 73
Mather v The State of Western Australia [2017] WASCA 148
Pham v The State of Western Australia [2011] WASCA 244
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant and Christopher Gakis were charged in the District Court on indictment, as follows:[1]
Count 1On a date unknown between 19 March 2015 and 28 March 2015 at Perth, [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
Count 2On 27 March 2015 at Golden Bay, Christopher Gakis had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
These offences are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and carried, at the time, a maximum penalty of 25 years' imprisonment and/or a fine of $100,000.
[1] AB 37.
The appellant and Mr Gakis initially pleaded not guilty. A trial was set down to commence on 21 February 2017.[2] However, on 13 February 2017, the appellant pleaded guilty to, and was duly convicted of, count 1.[3] Mr Gakis proceeded to trial. On 7 March 2017, Mr Gakis was found guilty by a jury and duly convicted of count 2.[4]
[2] ts 12, 18.
[3] ts 19, 637; AB 65.
[4] ts 593, 637; AB 65.
On 4 September 2017, the appellant was sentenced to 11 years 4 months' imprisonment with eligibility for parole, backdated to commence on 26 January 2017.[5] Mr Gakis was sentenced to 14 years 6 months' imprisonment with eligibility for parole, backdated to commence on 18 February 2017.[6]
[5] ts 661; AB 89.
[6] ts 660; AB 88.
The appellant and Mr Gakis appealed against their sentences. The appeals were heard separately by this court, on the same day, and before the same coram. The reasons in Mr Gakis' appeal have been delivered separately: Gakis v The State of Western Australia [2019] WASCA 25.
The appellant relies on four grounds of appeal. Grounds 1 and 2 allege express errors on the part of the sentencing judge. Ground 3 alleges an infringement of the parity principle. Ground 4 alleges that the sentence imposed was manifestly excessive.
While we would grant leave to appeal in respect of ground 3, we would not grant leave to appeal on the other grounds. None of the grounds of appeal have been made out, and the appeal must be dismissed. Our reasons for these conclusions are as follows.
The facts
There is considerable overlap between the facts of the offending engaged in by the appellant and the facts of the offending engaged in by Mr Gakis.
The appellant and Mr Gakis met at high school. They were close friends. Mr Gakis trusted the appellant.[7]
[7] ts 638; AB 66.
On 22 January 2015, Mr Gakis' partner, Ms Jaclyn Evans, with Mr Gakis' knowledge, entered into a contract to purchase a property at 2320 Mandurah Road, Golden Bay, on which was built a house with a swimming pool (the property). Settlement of the purchase of the property occurred on 27 March 2015.[8]
[8] ts 637 ‑ 638; AB 65 ‑ 66.
Prior to settlement, Mr Gakis and others attended at the property on several occasions to perform various works.[9]
[9] ts 638; AB 66.
On 19 March 2015, Mr Gakis suffered an injury to his ankle, as a result of which he was hospitalised.[10]
[10] ts 638; AB 66.
From his hospital bed, Mr Gakis arranged for further work to be performed at the property. Mr Gakis also spoke to the appellant by telephone on a number of occasions from his hospital bed. These telephone conversations were lawfully intercepted and recorded by the police. The relevant recordings were played at Mr Gakis' trial.[11] On several occasions between 20 and 24 March 2015, the appellant attended at the property. He also visited Mr Gakis in hospital on 25 March 2015.[12]
[11] ts 272 - 273, 638; AB 66.
[12] ts 639, 644; AB 67, 72.
On 24 March 2015, at Mr Gakis' instruction, the appellant obtained a substantial quantity of high‑purity methylamphetamine from an unknown source. Mr Gakis instructed the appellant to take the drugs to the property and hide them there.[13] The appellant did as he was instructed. He buried two packages containing methylamphetamine near the swimming pool, and secreted a third package into a ceiling recess inside the house.[14]
[13] ts 643; AB 71.
[14] ts 642; AB 70.
On 27 March 2015, police officers executed a Misuse of Drugs Act search warrant at the property and discovered all three packages of methylamphetamine. Of the two packages buried near the swimming pool, one contained 986 g of 77% pure methylamphetamine and the other contained 988 g of 77% pure methylamphetamine. The package in the ceiling recess contained 163 g of 67% pure methylamphetamine. The total weight of methylamphetamine found on the property was 2.137 kg, the great bulk of which was 77% pure. [15] It was this quantity of methylamphetamine that was the subject of the counts on the indictment. If sold by the kilogram, the methylamphetamine was worth approximately $500,000. If distributed in smaller amounts of cut methylamphetamine, to increase the quantity, the potential value was 'significantly greater'. The sentencing judge found that, given the quantity and purity of the methylamphetamine, it would have been 'reduced' into smaller quantities and then 'cut', thereby 'significantly increasing' the profit to be made.[16]
[15] ts 637; AB 65.
[16] ts 645; AB 73.
His Honour found that at the meeting in the hospital on 25 March 2015, the appellant and Mr Gakis discussed the drugs that had been hidden on the property, and that it was likely the appellant told Mr Gakis exactly where the bulk of the drugs had been buried.[17]
[17] ts 642 - 643; AB 70 - 71.
The learned sentencing judge found that Mr Gakis and the appellant agreed that the appellant would be paid $10,000 for his role in sourcing the drugs and hiding them. His Honour found that while the appellant may not have been involved in the subsequent sale and distribution of the methylamphetamine, he knew that the drugs would be sold and distributed into the community.[18]
[18] ts 644 - 645; AB 72 - 73.
Personal circumstances
At the time he was sentenced, the appellant was 31 years of age. The appellant was in a de facto relationship, and his partner was expecting their first child.[19]
[19] ts 656; AB 84.
The appellant left school after completing year 10, at the age of 16. He then commenced, and later successfully completed, a baker's apprenticeship. He worked in that capacity for nine years, until he was imprisoned in 2011. While the appellant was working as a baker, he began using methylamphetamine in order to cope with working at night. Until his imprisonment, he was a heavy user of methylamphetamine, and had accumulated a drug debt of approximately $12,000. Upon his release from prison, he still owed that sum. Although he obtained employment, he was unable to repay the debt. In 2013, following his separation from his former partner, the appellant relapsed into methylamphetamine use and at the time of his offending, he was using about 1 g of methylamphetamine per day.[20]
[20] ts 656; AB 84, 85, 90 - 99.
The appellant had a prior criminal history. Significantly, the appellant was convicted in late 2011 of one count of possession of methylamphetamine with intent to sell or supply it to another. He was sentenced in the District Court to 2 years' imprisonment with eligibility for parole. The offence concerned the appellant's possession of 28.4 g of 23% pure methylamphetamine. In addition, the appellant had prior convictions for offences under the Road Traffic Act 1974 (WA) and in 2009, he was convicted of bribery of a police officer, for which he was placed on a 12‑month community‑based order.[21]
[21] ts 657; AB 85, 90 - 99.
The sentencing judge accepted that, since the appellant's arrest for the present matter, he has ceased using methylamphetamine.[22]
[22] ts 657; AB 85.
The sentencing remarks
In addition to the findings of fact we have summarised and the description of the appellant's personal circumstances, his Honour said:
1.The criminal activities of Mr Gakis involved extensive planning, organisation and coordination over a period of time.[23]
[23] ts 647; AB 75.
2.The potential degree of harm that could have been caused in the community had the drugs not been seized was significant.[24]
[24] ts 647; AB 75.
3.While the appellant's role was less significant than that of Mr Gakis, it was nevertheless important. The appellant was trusted by Mr Gakis to source, transport and hide the methylamphetamine while Mr Gakis was in hospital.[25]
[25] ts 647; AB 75.
4.The appellant committed the offence with the expectation that he would be paid $10,000.[26]
5.The appellant's role 'was greater than that of a courier'.[27]
6.There was no evidence that the appellant was likely to have been involved in the ongoing sale, supply or distribution of the methylamphetamine in the community. However, when the appellant hid the drugs, he knew that the drugs would ultimately be sold, supplied or distributed into the community.[28]
7.Each of the appellant and Mr Gakis was involved 'towards the upper end of the distribution chain close to … the original supply or source of the methylamphetamine'.[29]
8.The appellant had ready access to large quantities of methylamphetamine.[30]
9.The appellant's moral culpability was less than that of Mr Gakis. Nevertheless, the appellant's role was significant and without his involvement and assistance, the drug would not have been able to be buried or secreted on the property.[31] His Honour accepted that by the appellant's late plea of guilty, he had shown some remorse and acceptance of responsibility for his offending.[32]
10.Based on a letter the appellant had sent to the sentencing judge, his Honour was satisfied that the appellant had insight into the harmful impact that drugs have on the community.[33]
11.The appellant had taken some steps towards his rehabilitation.[34]
12.Having regard to the appellant's criminal history and, in particular, his prior drug offending, there was a need to emphasise personal deterrence.[35]
13.For the plea of guilty, his Honour gave a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) of 10%.[36]
[26] ts 647; AB 75.
[27] ts 647; AB 75.
[28] ts 645, 647; AB 73, 75.
[29] ts 646; AB 74.
[30] ts 646; AB 74.
[31] ts 658; AB 86.
[32] ts 656; AB 84.
[33] ts 657; AB 85.
[34] ts 657; AB 85.
[35] ts 657; AB 85.
[36] ts 661; AB 89.
The grounds of appeal
The four grounds of appeal, as particularised, are as follows:
Ground 1
1.The learned sentencing judge erred when he sentenced the appellant on the basis that 'he continued to retain control over the drugs';
Particulars:
1.1There was no evidence to suggest the appellant was otherwise likely to have been involved in the ongoing sale, supply or distribution of the drugs after he delivered them to the relevant property;
1.2Once the appellant's role in delivery and concealing the drugs was complete the drugs were in the exclusive possession of the co‑offender and there was no factual basis to support the finding he otherwise continued to retain control over the drugs.
Ground 2
2.The learned sentencing judge erred in his application of section 9AA of the Sentencing Act 1995 ('the Act') because Herron DCJ failed to adequately demonstrate he had reduced the sentence pursuant to section 9AA of the Act before then considering other relevant mitigating factors.
Ground 3
3.The sentence imposed by the learned sentencing judge infringed the principle of parity;
Particulars:
3.1The sentence imposed was insufficiently disparate to that imposed on the co‑offender so as to properly reflect their respective roles and criminality and the appellant's plea of guilty.
Ground 4
4.The sentence imposed of 11 years 4 months imprisonment was, in all of the circumstances, manifestly excessive.
Particulars:
4.1The overall criminality of the offending;
4.2The appellant's antecedents;
4.3Steps the appellant had taken toward his rehabilitation;
44.Sentences imposed in, broadly, comparable cases.
Ground 1
Ground 1 is focused on that part of the sentencing remarks which concerned the appellant's culpability. His Honour said:[37]
Mr Bull, I accept your moral culpability in committing this offence is less than that of Mr Gakis. While, as I've earlier found, your role was significant and an important role, it was less than that of Mr Gakis. Without your involvement and assistance the drugs would not have been able to be buried on the property. Mr Gakis trusted you and you were prepared to do what he asked in exchange for payment of $10,000.
While your culpability in sourcing the drugs and burying them on the property and you continued to retain some control over the drugs, your culpability lies in supplying the drugs to Mr Gakis and burying them and hiding them on the property. I accept there is no evidence that you would have been involved on [sic] the on‑selling or further distribution of the drugs within the community, unlike Mr Gakis, although you knew that that was the intention. (emphasis added)
[37] ts 658; AB 86.
The appellant alleges that the italicised words were a material error of fact. The appellant contends that the impugned passage was, in effect, a finding of an aggravating factor, being that the appellant continued to retain some control over the drugs after he had secreted them at Mr Gakis' property, up to the point when Mr Gakis was discharged from hospital.[38] The appellant submits that such a finding was not supported by the evidence.
[38] Appeal ts 8; appellant's submissions pars 38 - 39; AB 11.
There is no merit in ground 1 for two reasons.
First, the only reasonable way to understand the impugned words in their context is that they refer to the time frame from when the drugs came into the appellant's possession to the time the drugs were secreted on Mr Gakis' property, while Mr Gakis was in hospital. His Honour should not be understood as making a finding that the appellant continued to control the drugs after they were secreted at the property.
Second, and in the alternative, if the impugned words are to be understood as the appellant contends, his Honour did not regard the appellant's continued retention of some degree of control over the drugs after he had buried them as an aggravating factor. As the words immediately before and after the impugned passage make clear, his Honour considered that the appellant's culpability lay in him sourcing the drugs and secreting them at Mr Gakis' property.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.
Ground 2
Ground 2 concerns the portion of the sentencing remarks concerning the 10% reduction in sentence that his Honour gave for the appellant's plea of guilty, pursuant to s 9AA of the Sentencing Act, in which his Honour said:[39]
In my view, the appropriate sentence of imprisonment for the offence of which you have been convicted, taking into account all of the factors that I've mentioned and pursuant to section 9AA of the Sentencing Act allowing a reduction of the sentence by 10 percent on the sentence, taking into account it was a very late plea of guilty, is 11 years, four months' immediate imprisonment. (emphasis added)
[39] ts 661; AB 89.
Section 9AA of the Sentencing Act reads:
9AA.Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
By ground 2, the appellant contends that while his Honour referred to s 9AA of the Sentencing Act, he did not expressly say or indicate that the 10% reduction was from the head sentence as defined in s 9AA(1) of the Sentencing Act. Counsel for the appellant contended that his Honour's statement that he had allowed a reduction 'by 10 percent on the sentence' was insufficient. Had his Honour said, however, that he had allowed a reduction 'by 10 percent on the head sentence', that would have been sufficient.[40]
[40] Appeal ts 10.
There is no merit whatever in this contention. His Honour referred to s 9AA of the Sentencing Act expressly. It may be taken that his Honour was, by that reference, incorporating the provisions of that section into his sentencing remarks. When his Honour stated that he was reducing the sentence 'by 10 percent on the sentence', he should be taken to be referring to the head sentence as defined in s 9AA(1) of the Sentencing Act.
In the appellant's written and oral submissions, it was submitted that in KAT v The State of Western Australia,[41] Buss P stated that there was a need for a sentencing judge to say that any reduction given pursuant to s 9AA of the Sentencing Act was made from the 'head' sentence as defined in s 9AA(1). No such statement was made by Buss P, and nothing his Honour wrote could reasonably be understood as requiring a sentencing judge to expressly state that a reduction made pursuant to s 9AA of the Sentencing Act has been made from the 'head' sentence.
[41] KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367 [32] - [35].
Ground 2 has no reasonable prospect of succeeding and leave to appeal should be refused in respect of it.
Ground 3
The legal principles applicable to a claim that a sentence infringes the parity principle are well established and uncontroversial. They were accurately stated by Buss JA (as his Honour then was) in Barnden v The State of Western Australia,[42] as follows:
[42] Barnden v The State of Western Australia [2014] WASCA 161 [55] ‑ [59].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
More recently, in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
'(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].'
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is highly desirable for co‑offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
The appellant submits that the sentence imposed upon him was insufficiently disparate to that imposed upon Mr Gakis, having regard to Mr Gakis' greater criminality and the fact that the appellant, unlike Mr Gakis, had pleaded guilty.[43]
[43] Appellant's submissions, par 56; AB 14.
The respondent submitted that the disparity of 3 years and 2 months in the respective sentences adequately reflected the differences between the appellant on the one hand, and Mr Gakis on the other.[44]
[44] Respondent's submissions, par 21; AB 29 - 30.
There were three areas of difference between the appellant and Mr Gakis. First, Mr Gakis' culpability was greater than the appellant's. Secondly, the appellant pleaded guilty, while Mr Gakis was convicted after trial. As a result of his plea of guilty, the appellant received a reduction of his sentence, pursuant to s 9AA of the Sentencing Act, of 10%. Of course, Mr Gakis was not entitled to any discount pursuant to s 9AA. Thirdly, the appellant, unlike Mr Gakis, displayed some remorse for his offending, and had developed insight into the harm such offending causes to the community.
The question is whether the disparity in the respective sentences was insufficient. That is, whether the difference in the sentencing outcomes between Mr Gakis on the one hand, and the appellant on the other, gives rise to a legitimate or justifiable sense of grievance, or gives the appearance in the mind of an objective observer that justice has not been done in the circumstances. In our opinion, the disparity of 3 years and 2 months' imprisonment was sufficient to reflect the different circumstances of the appellant on the one hand, and Mr Gakis on the other, and does not infringe the parity principle.
Plainly, Mr Gakis' culpability was greater than the appellant's. Mr Gakis orchestrated the offence, and the appellant acted on Mr Gakis' instructions. Further, while Mr Gakis was to be involved in the sale or supply of the methylamphetamine into the community, the appellant had no such role. However, the appellant's role in the commission of the offence was, as his Honour found, significant and important. After all, it was the appellant who sourced the large quantity of methylamphetamine, which was more than 2 kg and was of high purity. Without the appellant's assistance, the drugs would not have been buried or secreted on the property.[45] The appellant and Mr Gakis were in close contact while Mr Gakis was in hospital. The appellant stood to gain $10,000 for his efforts. Each of Mr Gakis and the appellant were involved towards the upper end of the drug distribution chain, close to the original supply or source of the methylamphetamine.[46] When all of these matters are considered, while the appellant is less culpable than Mr Gakis, his culpability nevertheless stands at a high level.
[45] ts 658; AB 86.
[46] ts 646; AB 74.
The appellant's late plea of guilty is an important point of difference which is favourable to the appellant. Acknowledging that the 10% reduction pursuant to s 9AA of the Sentencing Act cannot, in this case, be precisely quantified in terms of years or months, it may be accepted that it was significant.
While the sentencing judge accepted that the appellant, unlike Mr Gakis, was remorseful and had some insight into the effect of his offending, these matters do not give rise to significant mitigation, having regard to the need for a sentence imposed upon the appellant to provide general and personal deterrence.
There was no material difference in the personal circumstances of the offenders. The antecedents of both the appellant and Mr Gakis were unfavourable, each having been convicted and imprisoned for similar offending previously.
In our opinion, a disparity of 3 years and 2 months' imprisonment in the sentences imposed upon Mr Gakis on the one hand, and the appellant on the other, sufficiently reflected the differences between the two offenders. In our view, it has not been demonstrated that the appellant has, on an objective analysis, a legitimate or justifiable sense of grievance, nor does the difference give rise to the appearance in the mind of an objective observer that justice has not been done.
While we would grant leave to appeal on ground 3, the ground has not been made out.
Ground 4
At the hearing of the appeal, counsel for the appellant said that he did not wish to add to the written submissions in support of this ground.[47] In large measure, those submissions relied upon the appellant's subjective circumstances, the appellant's criminality in the offending, and the outcomes in a number of cases said to be comparable, including Chen v The State of Western Australia;[48] Mather v The State of Western Australia;[49] Yiu v The State of Western Australia;[50] Le v The State of Western Australia[51] and Galbraith v The State of Western Australia.[52]
[47] Appeal ts 14.
[48] Chen v The State of Western Australia [2018] WASCA 11.
[49] Mather v The State of Western Australia [2017] WASCA 148.
[50] Yiu v The State of Western Australia [2016] WASCA 172.
[51] Le v The State of Western Australia [2015] WASCA 73.
[52] Galbraith v The State of Western Australia [2011] WASCA 70.
The respondent submitted that the sentence imposed upon the appellant was not manifestly excessive. In respect of the comparable cases relied upon by the appellant, the respondent submitted that the sentence imposed upon the appellant was broadly consistent with those cases and with other cases, including Bees v The State of Western Australia;[53] Zanon v The State of Western Australia;[54] Kobeissi v The State of Western Australia[55] and Pham v The State of Western Australia.[56]
[53] Bees v The State of Western Australia [2017] WASCA 202.
[54] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.
[55] Kobeissi v The State of Western Australia [2016] WASCA 188.
[56] Pham v The State of Western Australia [2011] WASCA 244.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. 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 a sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
In determining whether a sentence is manifestly excessive, it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
With respect to comparable cases, the range of sentences customarily imposed 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 are the unifying principles which sentences imposed in comparable cases reveal and reflect. 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.[57]
[57] Gaskell v The State of Western Australia [2018] WASCA 8 [127].
We have already referred to the maximum penalty as it was at the time of the offences.[58]
[58] The maximum sentence has since been increased to life imprisonment.
It is well established that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction, such as methylamphetamine, 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. The degree of purity is often regarded as significant. Both are regarded as important because it can be presumed that the greater the quantity and the higher the purity of the drugs, the greater the harm that 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. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
We will not repeat what has already been said about the appellant's offending. The appellant willingly sourced the methylamphetamine and hid it at the property. He did so purely for commercial gain. It is not mitigating that at the time of the commission of the offence he had a drug debt, or that he was a user of methylamphetamine. His culpability, while less than Mr Gakis', was significant and important. The fact that he was able to source such a large quantity of high‑purity methylamphetamine shows that he was, as his Honour found, towards the upper end of the drug distribution chain and close to the source of the drug. The appellant's participation in the offence was not fleeting, but was persistent and multifaceted. Although the appellant was not to be involved in the sale or supply of the drug into the community, he knew, ultimately, that is where it would end up. As his Honour found, the drug was likely to be cut, so the potential for harm to the community, as great as it was when the appellant obtained it, would have been more widespread once it had been diluted.
We have considered all of the cases cited by the appellant and the respondent. It is unnecessary to analyse each of them. Each, in its own way, is different from the present case. It is enough to say that we have not been persuaded that the individual sentence imposed upon the appellant in this case is inconsistent with the range of sentences customarily imposed. It is also pertinent to note McLure P's observation in Zanon that there is a cluster of cases in which the total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 and 12 years' imprisonment.[59] The sentence imposed upon the appellant fits within this cluster, recognising its seriousness and recognising that although quantity is not the chief factor, the quantity of methylamphetamine here was much more than 1 kg.
[59] Zanon [173] - [174].
The appellant's personal circumstances were largely unfavourable, although to his credit, he has shown some remorse for what he did and some insight into the damage such offending does to the community. However, little weight can be given to these matters, having regard to the need for general and personal deterrence. Personal deterrence was a matter of some importance in the present case, given the appellant's prior conviction for an offence contrary to s 6(1)(a) of the Misuse of Drugs Act.
In our opinion, the sentence of 11 years 4 months' imprisonment imposed upon the appellant reflected an appropriate exercise of the sentencing discretion, having regard to all relevant sentencing factors. The sentence was not unreasonable or plainly unjust. Implied error has not been demonstrated.
The ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused.
Conclusion and orders
Leave to appeal should be refused on grounds 1, 2 and 4 because they have no reasonable prospect of succeeding. Leave to appeal on ground 3 should be granted, but the ground has not been made out. The appellant's appeal against sentence must be dismissed.
The orders we would make are as follows:
1.Leave to appeal on grounds 1, 2 and 4 is refused.
2.Leave to appeal on ground 3 is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable President Buss5 FEBRUARY 2019
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