Chadburne v The State of Western Australia - [2017] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHADBURNE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 216

CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA

HEARD: 2 NOVEMBER 2017

DELIVERED : 23 NOVEMBER 2017

FILE NO/S: CACR 32 of 2017

BETWEEN: RODNEY JOHN CHADBURNE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1721 of 2015

Catchwords:

Criminal law - Appeal against sentence - Possession of MDMA, methylamphetamine and cocaine with intent to sell or supply it to another - Failure to obey a data access order without reasonable excuse - Whether sentence imposed on individual count relating to MDMA manifestly excessive - Whether total effective sentence infringed principle of totality - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Criminal Investigation Act 2008 (WA), s 61(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S D Freitag
Respondent: Mr J Scholz

Solicitors:

Appellant: Kate King Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Al-Rafei v The State of Western Australia [2017] WASCA 4
Bees v The State of Western Australia [2017] WASCA 202
Gok v The Queen [2010] WASCA 185
HNA v The State of Western Australia [2016] WASCA 165
Kalbasi v The State of Western Australia [2016] WASCA 144
Koncurat v The State of Western Australia [2010] WASCA 184
MSO v The State of Western Australia [2015] WASCA 78
Salkilld v The State of Western Australia [2017] WASCA 168
Santos v The State of Western Australia [2016] WASCA 107
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Malone [2015] WASCA 188
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

JUDGMENT OF THE COURT:

Summary

The appellant was convicted after trial of four offences of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Those offences were all committed on 26 March 2014. He was also convicted, on his plea of guilty, of failing to obey a data access order without reasonable excuse, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). That offence was committed on 29 March 2014.
The trial judge sentenced the appellant to a total effective sentence of 16 years 6 months' imprisonment. The sentence was structured as follows:

Count	Offence	Drug quantity (purity)	Sentence of imprisonment	Cum/Conc
1	Possess a prohibited drug with intent to sell or supply to another (wiss)	MDMA approx. 8.4153 kg (30%)	14 years 6 months	Head sentence
2	Possess a prohibited drug wiss	Methylamphetamine 2.046 kg (66 ‑ 82%)	12 years	Conc
3	Possess a prohibited drug wiss	Cocaine 482.76 g (76 ‑ 77%)	5 years	Conc
4	Possess a prohibited drug wiss	Cocaine 275 g (58%)	1 year 6 months (reduced from 3 years 6 months for totality)	Cum
5	Fail to obey data access order	-	6 months (reduced from 18 months for totality)	Cum
Total effective sentence			16 years 6 months

The appellant now appeals against his sentence on 2 grounds. Ground 1 was properly abandoned at the hearing of the appeal. Ground 2 contends that the sentence of 14 years 6 months' imprisonment for count 1 was manifestly excessive. Ground 3 contends that the total effective sentence of 16 years 6 months' imprisonment infringed the totality principle, resulting in a sentence that was manifestly excessive.
For the following reasons, the appeal must be dismissed.

Circumstances of offending

The trial judge made the following findings as to the circumstances of the offending,[1] based on facts set out in the State's submissions which the appellant accepted were consistent with the jury's verdict and which the appellant did not contest.[2]
[1] ts 603 ‑ 607.
[2] See ts 583 and par 1 of the Prosecution Sentencing Submissions (White AB 90 ‑ 93).
Some time prior to 21 March 2014, the appellant travelled from his home town of Nyngan in western New South Wales to Sydney. He did so for the purpose of meeting up with other members of a syndicate which was involved in the transportation and supply of large quantities of prohibited drugs from New South Wales into Western Australia.
The syndicate included the proprietor of a motor works business in Sydney and an unknown Middle Eastern man who was referred to as 'the Iranian', 'the Arab' or 'the Rug'. It is convenient to refer to that person as 'the Iranian' in these reasons.
The appellant remained in the Sydney metropolitan area until 23 March 2014, because of issues involved in preparation for his journey to Perth. From 21 March 2014 until 23 March 2014 the appellant attended the motor works business on several occasions. He did so to facilitate the concealment of drugs in gear transmissions. Ageing vehicle transmissions were disassembled, internal parts removed and the transmissions reassembled after they had been filled with 15 Cryovac‑sealed packages which contained the drugs the subject of counts 1 ‑ 3 on the indictment.
Unknown to the appellant, those gear transmissions could not accommodate a 16^th Cryovac-sealed package, which contained 275 g of cocaine. Other members of the syndicate left the 16^th package on the rear seat of the Toyota Hilux which the appellant intended to drive to Western Australia. That cocaine is the subject of count 4 on the indictment.
While in Sydney, the appellant met face to face with the Iranian and discussed transportation of the large quantity of prohibited drugs from Sydney to Western Australia. The appellant and the Iranian only communicated in face to face meetings or by way of encrypted emails using BlackBerry devices, in order to minimise the risk of detection. The appellant was fully aware that the cargo that he was transporting to Western Australia, initially in the rear tray of the Toyota Hilux, contained large quantities of prohibited drugs.
The appellant commenced his journey to Western Australia, departing Sydney at about 6.30 am on 23 March 2014. He drove through central western New South Wales, stopping briefly at Nyngan where he supplied a quantity of prohibited drugs to a friend. The appellant also retained some methylamphetamine for his own personal consumption during the journey. This was to assist him to stay awake and alert while driving the long distances involved, avoiding the need for the usual rest periods required.
On the way to Broken Hill, the appellant's Toyota Hilux collided with a large kangaroo at about 8.00 pm on 23 March 2014. This caused substantial damage to the Toyota Hilux, which could not be driven any further.
The appellant took steps to have the Toyota Hilux towed into Broken Hill. He unsuccessfully attempted to obtain a replacement vehicle in Broken Hill. The appellant made arrangements for a young man to bring a replacement vehicle, a Toyota LandCruiser, to Broken Hill from Nyngan.
Whilst in Broken Hill the appellant arranged to hire a trailer in order to transport the gear transmissions to Western Australia and to accommodate the pallet on which the five vehicle transmissions were subsequently loaded.
When the appellant was unloading his personal possessions from the Toyota Hilux, he discovered the Cryovac-sealed package containing 275 g of cocaine on the rear seat of the vehicle. The appellant was alarmed by the discovery of the package. He was concerned about the risk that it posed for him. The appellant telephoned a number of people, including a fellow syndicate member. They spoke in coded language, calling the package an 'Easter egg' or 'Easter presents'. The appellant expressed his concern to the other syndicate member about the difficulty that would have arisen if the tow-truck operator had discovered the package. The appellant also expressed concern that others in the syndicate may well have planted the package as an integrity test. The other member of the syndicate told the appellant that he could 'go as hard' as he wanted on the contents of that package. The inference was that the appellant was given permission to keep the package for himself and to deal with it as he saw fit. The appellant hid this package inside the wheel arch panelling of the Toyota LandCruiser.
The appellant then continued to drive to Western Australia. He told members of the syndicate by telephone that he had at times been unable to send or receive encrypted emails to and from the Iranian. This appeared to have been a difficulty particularly in the section of road crossing the Nullarbor Plain.
The appellant drove through to Western Australia. He was stopped and spoken to briefly at the border by police. The appellant continued his journey until he was stopped again by police at The Lakes on Great Eastern Highway outside Perth. At this time, he was apprehended on suspicion of commission of the offences. (Police had been monitoring his phone communications after obtaining an interception warrant on 21 March 2014). Police seized the vehicle transmissions that were subsequently cut open and uncovered the Cryovac-sealed packages which were hidden within the transmissions.
Police also retrieved an encrypted Blackberry device from the appellant's Toyota LandCruiser. They sought and obtained a data access order. The appellant failed to obey that order and, at the date of sentence, the appellant had not revealed the pass code to that device. As a result, the evidence contained on the Blackberry device remains encrypted and inaccessible to the investigating authorities.
On 2 May 2014, the appellant was released on bail and returned to New South Wales. The appellant was aware that the police had not uncovered the cocaine secreted in the wheel arch of the Toyota LandCruiser.
The Toyota LandCruiser was retained by Western Australian Police. Because it was subject to finance, and the appellant's repayments fell into arrears, the finance company repossessed the vehicle to sell it at auction. Knowing that the cocaine in the vehicle had not been located, the appellant then made a number of telephone calls to the auction company. This resulted in suspicions being raised. On 25 July 2014, police arranged for a drug detection dog to inspect the vehicle. The package in the wheel arch at the rear of the vehicle was discovered.
This was not the first occasion the appellant had participated in the distribution of illicit drugs. He had previously travelled to Western Australia on behalf of the syndicate. The appellant had complained to others that he felt he had not been properly rewarded for his previous efforts.
In addition, during the time his phone was being intercepted, the appellant was in contact with someone called B-Rad who lived in Pilbara and who apparently owed the appellant money related to previous dealings.
The appellant expected to be well remunerated for his involvement in the transportation and distribution of the drugs. It was not known what the appellant's final remuneration would have been. However, it is known from the intercepted telecommunications that the appellant indicated to others involved in the crime syndicate that he was expecting to earn somewhere between $40,000 and $50,000 from the venture.
The expert evidence at the trial was that the package containing 275 g of cocaine had a value of something in the order of $98,000 ‑ $206,000, depending on how it was sold and disseminated into the community.
The trial judge rejected evidence which the appellant gave at trial to the effect that he thought he was smuggling reptiles. The trial judge found that the appellant knew that he was transporting a large quantity of prohibited drugs into the State.[3] The trial judge also found that the appellant appreciated at all relevant times that, if apprehended, he would be required to serve a lengthy and immediate term of imprisonment.[4]
[3] ts 601 ‑ 602.
[4] ts 608.

Personal circumstances

The trial judge made the following findings as to the appellant's personal circumstances.[5]
[5] ts 609 ‑ 610 and the contents of the psychologists report dated 5 December 2016, which the trial judge accepted.
The appellant was aged 45 years at the time of the offence and 48 years at the time of sentence. He was raised in New South Wales, and had a disadvantaged background involving physical and psychological abuse by his father. He had difficulties at school, and was expelled in year 9. He had worked as a van driver for 16 years from the age of 20, and then worked as a truck driver until his incarceration. He had a strong work ethic, but no assets after losing a lot of money which he had lent to friends. He had a relatively minor criminal record in New South Wales, with convictions as an adult for stealing (1994), assault occasioning bodily harm (1995) and driving under suspension (2014).
The appellant had one significant partner, who he was with for 9 years from age 20. They had three children together, who were aged between 19 and 24 years at the date of sentence. The appellant was the primary carer of the children after the couple separated.
The appellant was a very heavy drinker who commenced alcohol use at the age of 14 years. He admitted smoking methylamphetamine on several occasions, but denied ongoing use. The appellant said that he did not use other drugs.
For the purposes of preparing a pre-sentence report, a psychologist administered the Wechsler Abbreviated Scale of Intelligence - 2^nd Edition. That test was developed to meet the demands for a short and reliable measure of intelligence in clinical settings. That clinical test placed the appellant in the 'extremely low' range of intellectual capacity (where 99% of others at his age would be expected to perform higher). The appellant's cognitive limitations left him vulnerable to exploitation by his friends and associates. However, while there was some cognitive impairment, the appellant's awareness of the factors relevant to sentencing was apparent in his attempt to minimise his criminality during pre-sentence interviews.[6]
[6] ts 602 ‑ 603, 609 and pages 4 ‑ 5 of the psychologist's report dated 5 December 2016.
The appellant was also suffering from severe depression and stress as a result of his apprehension for these offences. There was no demonstrable evidence of remorse or insight.[7]
[7] ts 609.

Trial judge's approach

The trial judge characterised the appellant's role in the operation in the following terms:[8]
Your role was integral to the operation and the crime syndicate of which you were a part and working with. You knew this because of the comments you made about the work you were doing and the risks you were taking and exposing yourself to.
If you had not been prepared to transport the drugs to this State from Sydney then this State would not have been at risk of having the drugs disseminated into the community with the consequent untold misery and associated crime and harm that would have eventuated.
The crime was committed by you out of greed and for pure commercial gain.
[8] ts 602.
Later, the trial judge observed:[9]
The offending was plainly very serious; it involved a high level of criminality. You had knowledge by reason of your involvement with the crime syndicate and what you were doing of the extent of drugs being imported to this State by you at all times including by reason of your involvement in the preparation of the delivery in the days that you were present in Sydney waiting for them to be prepared before you could commence your journey.
You also met with the Iranian who plainly would be higher in the chain of distribution than yourself indicating the level of trust reposed in you by the crime syndicate and increasing the level of your own criminality by reason of those meetings and the communications.
[9] ts 608.
The trial judge noted the high degree of persistence which the appellant displayed, as well as an element of stupidity and greed in attempting to recover the cocaine hidden in the wheel arch of the Toyota LandCruiser. The trial judge said:[10]
Your role was, on any view, plainly more than that of a mere courier who is engaged to simply transport drugs from A to B. The reward which you stood to gain was substantial in the circumstances for the effort involved.
[10] ts 608.
The trial judge referred to the substantial quantity and purity of the drugs, and said:[11]
It was also a one stop shop attempt to sell or supply the drugs, by reason of the three different types of drugs involved in the shipment.
As mentioned, it was not a one-off opportunistic attempt by you to transport drugs. And again, I mention that you are to be sentenced only for the commission of the crimes for which you have convicted and for which you have pleaded guilty.
[11] ts 609.
After referring to the appellant's personal circumstances, the trial judge took into account that the requirement, at least initially, for the appellant to serve a term of imprisonment away from his immediate family in New South Wales would cause greater hardship to him. The trial judge also took account of the way in which the appellant facilitated and shortened the trial process. The trial judge did not regard the appellant's prior criminal history as particularly significant. His Honour noted the time spent in custody, and the appellant's return to Western Australia for trial.[12]
[12] ts 610 ‑ 611.
After noting that it was difficult to predict whether the appellant was likely to commit further offences when he was released after serving a substantial term of imprisonment, the trial judge said:[13]
You are, however, at risk of committing further offences given the treatment needs referred to in paragraph 14 of the psychological report, in particular, your social vulnerability and emotional regulation. You should, therefore, Mr Chadburne, as you have to this point in time as evidenced by the certificates provided to the court, make sure that you use your time in custody to the extent that counselling and other training and programs are made available to you. This will assist you when you are released from custody after you have served your term of imprisonment for these offences.
[13] ts 610.
The trial judge noted the general, well-recognised, principles which inform sentencing for serious drug offences. In relation to personal and general deterrence, the trial judge observed:[14]
There is a need to protect the community from the commission of further offences by you.
And plainly, in relation to offences of this nature, a need to generally deter others who might be like-minded from committing similar offences. There must be a strong denunciation of your conduct and condign punishment, given the substantial amount of harm and crime that would have occurred if the drugs had been successfully disseminated into the community in this state.
There is, of course, as in every sentencing a need where possible to aid your own rehabilitation. The major sentencing considerations in relation to offences of dealing with trafficking and dangerous drugs of addiction are general and personal deterrence.
[14] ts 611.
After indicating the sentences which his Honour considered appropriate for each offence, the trial judge referred to the totality principle. His Honour indicated his view that a total effective sentence of 16 years 6 months' imprisonment was appropriate, structured in the manner indicated at [2] above.
The trial judge reduced the notional head sentence for the data access offence by 5%, under s 9AA of the Sentencing Act 1995 (WA), in light of the appellant's plea of guilty to that offence at the commencement of the trial, but taking account of the strong State case.[15]
[15] Trial ts 607 ‑ 608.

The appellant was made eligible for parole, and his sentence backdated to 4 October 2016 to take account of time spent in custody.

Grounds of appeal

As we have noted, ground of appeal 1 was abandoned at the hearing of the appeal.
Ground 2 contends that the sentence of 14 years 6 months' immediate imprisonment imposed on count 1 was manifestly excessive, having regard to the circumstances of the offending, namely the appellant's position in the hierarchy of drug distribution, and his personal antecedents.
Ground 3 contends that the total effective sentence imposed infringed the totality principle, resulting in a sentence that was manifestly excessive.

Inferred error: general principles

Grounds 2 and 3 assert inferred error. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or a total effective sentence infringes the totality principle, are well established:[16]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)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.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
[16] The following statement of the general principles is taken from the judgment of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48].

Ground 2: manifest excess

Ground 2 contends that the sentence imposed for count 1 was manifestly excessive. The appellant was sentenced to 14 years 6 months' imprisonment for this count, which related to the possession of approximately 8.4 kg of MDMA with intent to sell or supply it to another.

Maximum penalty

The maximum penalty for an offence against s 6(1)(a) of the Misuse of Drugs Act is a sentence of 25 years' imprisonment.

Customary sentencing standards

There are relatively few cases decided by this court dealing with possession of very large quantities of MDMA. We were referred to Koncurat v The State of Western Australia;[17] Santos v The State of Western Australia[18] and Al-Rafei v The State of Western Australia.[19]
[17] Koncurat v The State of Western Australia [2010] WASCA 184.
[18] Santos v The State of Western Australia [2016] WASCA 107.
[19] Al-Rafei v The State of Western Australia [2017] WASCA 4.
In Koncurat, the 39‑year‑old offender, with otherwise good antecedents, was engaged in the business of producing and selling MDMA to fund his methylamphetamine habit. He was found in possession of just over a kilogram of MDMA, comprising:
(1)15 tablets (weighing 4.09 g with a purity of 18%) found in his car; and
(2)1023.89 g of MDMA found in his house (comprising 200 tablets weighing 583.45 g generally with a purity of 17% and 440.44 g of powder with a purity generally ranging from 17% to 46%).
He received a total effective sentence of 8 years 6 months' imprisonment, which included a term of 7 years' imprisonment for possessing the MDMA found at his house, on a fast-track plea of guilty. There was no challenge to the individual sentence of 7 years' imprisonment.[20] The appeal against the total effective sentence on totality grounds was dismissed.
[20] There was a challenge to an 18‑month sentence for possession of a pill press, which was dismissed.
In Santos, the offender used a light aircraft to transport approximately 9 kg of MDMA and 22 kg of methylamphetamine from New South Wales to Western Australia. He was convicted after trial and sentenced to 13 years' imprisonment for the offence involving the MDMA and 15 years' imprisonment for the offence involving the methylamphetamine. The total effective sentence was 15 years' imprisonment. An appeal on various grounds, including totality, was dismissed.
In Al-Rafei, the 23‑year‑old offender with good antecedents acted as a paid courier to transport 2.24 kg (10,281 tablets) of MDMA with a purity of 23% from a house in Gosnells. The offender pleaded guilty and received a 15% reduction under s 9AA of the Sentencing Act. The court dismissed his appeal against a sentence of 8 years 6 months' imprisonment on the ground that it was manifestly excessive.
In Al-Rafei, the court referred to a number of cases involving sentences for offences against s 6(1)(a) of the Misuse of Drugs Act involving methylamphetamine. The court noted that, for sentencing purposes there is no basis for making any significant distinction between MDMA, heroin and methylamphetamine.[21]
[21] Al-Rafei [16] ‑ [20], citing The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [121].
In Zanon v The State of Western Australia,[22] McLure P, with whom other members of the court agreed, noted the following decisions involving large quantities of prohibited drugs:
The court's attention was drawn to a number of sentence appeals in broadly comparable cases including Kitis v The State of Western Australia [2013] WASCA 34 (total quantity of 5 kg of methylamphetamine; 22% - 69% purity; late plea of guilty; 12 years imprisonment); Ozan v The State of Western Australia [2013] WASCA 27 (total quantity of 7.6 kg; late plea of guilty; 17% - 69% purity; total sentence of 14 years); Neumann v The State of Western Australia [2013] WASCA 70 (total of 1.27 kg of methylamphetamine; late guilty plea; 15 years); Penney v The State of Western Australia [2011] WASCA 71 (total of 9 kg of which 5.76 kg was methylamphetamine at 10% - 12% purity; early guilty plea; 13 years, not the principal); Mikulic v The State of Western Australia [ 2011] WASCA 127 (total of around 15 kg of primarily ecstasy; purity between 23% - 80%; late guilty plea; cooperation; 12 years imprisonment; Milenkovski v The State of Western Australia [2014] WASCA 48 (a total of 7.68 kg of methylamphetamine; 2.7 kg at 17% - 19% purity, 5 kg at 53% - 69% purity; 17 years imprisonment).
There is also a cluster of cases in which the total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 years and 12 years imprisonment (including Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Halmi v The State of Western Australia [2013] WASCA 229; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Seeto v The State of Western Australia [2014] WASCA 221).
[22] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [173] ‑ [174].
Zanon involved two offenders, Zanon and Quaid. Zanon acted as one of a number of couriers for Quaid's sophisticated drug dealing enterprise. They were convicted of the supply of 8.75 kg of methylamphetamine with a purity range of 69 ‑ 75%. They were convicted after trial. Quaid received a sentence of 20 years' imprisonment for that offence. He received a total effective sentence of 23 years' imprisonment for that offence and the offence of supplying an additional 4 kg of methylamphetamine. Zanon was sentenced to 14 years' imprisonment for the offence involving 8.75 kg of methylamphetamine. Their appeals against sentence were dismissed.
The appellant also refers to two additional cases, Kalbasi v The State of Western Australia[23] and MSO v The State of Western Australia.[24]
[23] Kalbasi v The State of Western Australia [2016] WASCA 144.
[24] MSO v The State of Western Australia [2015] WASCA 78.
In Kalbasi, the mature offender, with otherwise good antecedents, was convicted after trial of attempting to possess 4.891 kg of 84% pure methylamphetamine. The methylamphetamine had been delivered to Perth from New South Wales, and brought to the house of a subordinate co-offender. Police intercepted the package in transit and replaced the methylamphetamine with an inert substance. He was sentenced to 14 years 6 months' imprisonment. His appeal against sentence, on grounds which did not include manifest excess or totality, was dismissed.
In MSO the offender was charged with four counts of possessing a total of 10.54 kg of methylamphetamine (of purity ranging between 46% and 75%) with intent to sell or supply it to another. He was also charged with possession of 2.46 kg of heroin (with a purity of 41% - 59%), 599 g of cocaine (with a purity of 52% - 62%) and 3,815 MDMA tablets (weighing 1.09 kg with a purity of 5% ‑ 10%). The offender pleaded guilty and received a 25% discount under s 9AA of the Sentencing Act. The sentencing judge in that case indicated that he would have imposed a sentence of 6 years' imprisonment for the MDMA offence as part of a total effective sentence of 16 years 6 months' imprisonment. The sentences were then halved as a result of the offender's cooperation with police. An appeal challenging a finding that the offender acted for financial gain and the extent of the discount for cooperation with police was dismissed. In oral submissions, counsel for the appellant accepted that the offender's cooperation with police meant that MSO is not a useful comparator in this appeal.
The State also refers to the decision in Bees v The State of Western Australia.[25] In Bees, police found 1.48 kg of methylamphetamine, with an average purity of 80.7%, in the offender's vehicle and a further 147.87 g of methylamphetamine, with an average purity of 73.1%, in his house. 8.53 g of cocaine, with a purity of 79%, was also located in the offender's house. The offender was a 62‑year‑old with a history of illicit substance abuse. He pleaded guilty and received a 20% discount under s 9AA of the Sentencing Act. On appeal his sentence was assessed on the basis that a significant quantity of the 1.48 kg of methylamphetamine was to be delivered to another person who would in turn sell and supply the drug into the community, a lesser quantity was to be retained and sold by the offender and a modest quantity was to be retained by the offender for his personal use. Having identified an express error, this court considered a sentence of 10 years' imprisonment in relation to the 1.48 kg of methylamphetamine, and a total effective sentence of 12 years' imprisonment, to be appropriate.

Circumstances of the offence

[25] Bees v The State of Western Australia [2017] WASCA 202.

The appellant's offence involved the possession of 8.4153 kg of MDMA, comprising 34,475 tablets, at 30% purity. There was evidence at trial that an individual MDMA pill sold for $15 ‑ $35, depending on the quantity (so that the potential value of the MDMA possessed by the appellant was $517,125 ‑ $1,206,625).[26]
[26] ts 219.
The appellant was more than a mere courier of the drugs. He was a member of the syndicate which arranged for the transportation of drugs into Western Australia. The appellant participated in packing the drugs into the engine transmissions. He held face to face discussions with the apparent head of the syndicate. He organised the vehicles used to transport the drugs. This was done as part of an ongoing operation, and could not be regarded as behaviour which was aberrant or out of character for the appellant. The appellant expected to make a substantial profit from the operation.

Personal circumstances

The appellant's personal circumstances are noted above.
The appellant did not have the benefit of the mitigating effect of a plea of guilty for the offence involving the MDMA.
The appellant's submissions refer to his cognitive impairment as a mitigating factor which was not present in other cases where similar sentences were imposed. We do not consider this to be a significant distinguishing feature, given the trial judge's findings that the appellant knew what he was doing and understood the risks involved.
Further, the appellant's actions after the collision with the kangaroo showed that he was able to respond to an unexpected setback with adaptability and initiative. He demonstrated a relatively sophisticated understanding of the implications of finding the package of cocaine on the rear seat of the Toyota Hilux. The appellant's evidence at trial revealed that he had a good grasp of the matters in issue at the trial. He was able to give a detailed (and on the trial judge's findings fabricated) account of events which sought to provide innocent explanations of the evidence presented against him. While the results of the Wechsler Abbreviated Scale of Intelligence test suggested significant cognitive impairment, the reporting psychologist noted that the appellant's daily living skills were 'somewhat adequate'. The trial judge found that the appellant's attempts to minimise his criminality after conviction indicated an awareness of factors relevant to sentencing which was inconsistent with the cognitive limitations referred to in the psychological report.
The evidence and the trial judge's unchallenged factual findings indicated that the appellant's intellectual impairment was not so severe as to make him an inappropriate medium for making an example to others, so as to reduce the weight to be given to general deterrence.[27] The appellant's counsel accepted this in oral submissions. Nor did the appellant demonstrate that his cognitive difficulties impaired his functioning to such an extent as to reduce the moral blameworthiness or culpability of his offending behaviour.[28] While the appellant may have been vulnerable to exploitation by others due to his social vulnerability and difficulties with emotional regulation, he knew what he was doing was illegal and appreciated the risks involved.

Conclusion as to manifest excess

[27] Gok v The Queen [2010] WASCA 185 [59] - [61].

[28] The State of Western Australia v Malone [2015] WASCA 188 [74], cited in HNA v The State of Western Australia [2016] WASCA 165 [47].

The sentence imposed for count 1 is broadly consistent with the sentences imposed in the cases referred to above. The amount and quality of MDMA in the appellant's possession was greater than in many of those cases. He was an active member of the syndicate which brought the drugs into Western Australia, whose involvement extended beyond the mere provision of transport. The appellant expected to obtain a significant financial reward from the activity. He did not have the benefit of the mitigating effect of a plea of guilty. It was open to the trial judge to conclude that a sentence of 14 years 6 months' imprisonment was commensurate with the seriousness of the offence charged in count 1, having regard to all the circumstances of the offence and the appellant and all relevant sentencing principles. The sentence for count 1 has not been shown to be unreasonable or plainly unjust. Ground 2 has not been made out.

Ground 3: Totality

There is no merit in the appellant's totality ground, once ground 2 is dismissed. The circumstances of the other offending, particularly that which was the subject of counts 4 and 5, increased the overall criminality of the appellant's conduct in a manner that warranted some accumulation of the sentences.
Count 4 related to the 275 g of cocaine hidden under the wheel arch of the LandCruiser. The seriousness of this offence was aggravated by the fact that these drugs were to be sold wholly for the appellant's personal benefit, and by the attempts after his arrest to regain possession of the drugs.
Count 5 related to the failure to obey the data access order. The maximum penalty for that offence is 5 years' imprisonment. Cumulacy of this sentence was called for in order to avoid the result that a person apprehended in the course of committing serious offences might refuse to comply with an order that will produce evidence of the offending without any practical adverse consequence if the offences can be proven by other means. The experience of this court is that encrypted BlackBerry devices are commonly used by those in the illicit drug trade. There is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity. Considerations of general and personal deterrence justified the imposition of a cumulative sentence in this case. [29]
[29] See also The State of Western Australia v Doyle [2017] WASCA 207 [42].
The appellant's overall criminality is also aggravated by the substantial quantities of methylamphetamine and cocaine which were the subject of counts 2 and 3.
Having regard to all relevant sentencing principles, and in particular to the seriousness of the appellant's conduct, a total effective sentence of 16 years 6 months' imprisonment does bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the appellant personally. Ground 3 is not made out.

Orders

Leave to appeal has already been granted on grounds 2 and 3. The appropriate order is that the appeal is dismissed.