Chen v The State of Western Australia

[2017] WASCA 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CHEN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 114

CORAM:   MAZZA JA

HALL J

HEARD:   1 JUNE 2017

DELIVERED          :   22 JUNE 2017

FILE NO/S:   CACR 210 of 2016

BETWEEN:   HONGXIANG CHEN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HERRON DCJ

File No  :IND 1203 of 2015

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Plea of guilty - Whether sentence of 11 years 10 months manifestly excessive

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms G Cleary & Mr A T Ly

Respondent:     No appearance

Solicitors:

Appellant:     Ly Lawyers

Respondent:     Director of Public Prosecutions (WA)

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

Basilio v The State of Western Australia [2010] WASCA 202

Chen v The State of Western Australia [2017] WASCA 99

Giglia v The State of Western Australia [2010] WASCA 9

Hoang v The State of Western Australia [2015] WASCA 130

Kitis v The State of Western Australia [2013] WASCA 34

Le v The State of Western Australia [2015] WASCA 73

Ly v The State of Western Australia [2015] WASCA 18

Mikulic v The State of Western Australia [2011] WASCA 127

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

Ozan v The State of Western Australia [2013] WASCA 27

Penney v The State of Western Australia [2011] WASCA 71

Phan v The State of Western Australia [2014] WASCA 144

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

Tresnjo v The State of Western Australia [2015] WASCA 193

Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

1. REASONS OF THE COURT:    This is an application for leave to appeal against sentence.

2. The appellant pleaded guilty in the District Court to one count of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and one count of being in possession of unlawfully obtained property contrary to s 417(1) of the Criminal Code.  On 16 December 2016, he was sentenced to 11 years 10 months' imprisonment on count 1 and 6 months' imprisonment on count 2.  An order was made that the sentences be served cumulatively.  Accordingly, the total effective sentence was 12 years and 4 months' imprisonment.

3. There was a delay between the appellant pleading guilty on 20 April 2016 and being sentenced on 16 December 2016.  That was because his sentencing was deferred until after the trial of two co‑offenders.  The co‑offenders were both convicted.  They were also charged with possessing the methylamphetamine that was the subject of count 1 against the appellant.  They were not charged with possession of unlawfully obtained property.  One of the co‑offenders, Jian Chen, also sought leave to appeal against his sentence:  Chen v The State of Western Australia [2017] WASCA 99.

4. There is one ground of appeal.  It asserts that the sentence of 11 years 10 months' imprisonment on count 1 was manifestly excessive.  The sentence on count 2 was not challenged, but it forms part of the context in which the sentence on count 1 was imposed.

The facts

1. On 24 September 2014, Lu Ting Yu (Ms Yu) leased a unit in Aberdeen Street, Perth (the unit), for six months commencing from 27 September 2014.  The rent was $600 per week and Ms Yu paid six weeks rent in advance, being a total of $3,600.  Arrangements were made for the keys for the unit to be collected by Jian Chen who signed a receipt for them.  A second set of keys was later collected by Ms Yu.  Ms Yu gave evidence at the trial that she entered into the lease agreement on behalf of the appellant, Jian Chen and herself (ts 2).

2. On 3 December 2014, Ms Yu travelled to Perth and stayed at the unit.  On 6 December 2014, the appellant and Jian Chen travelled together on a flight from Melbourne to Perth.  On arrival they took a taxi to the unit.  Prior to their arrival, Ms Yu attempted to telephone the appellant on seven occasions.  The last call connected and lasted about 4 1/2 minutes.  Ms Yu also tried telephoning Jian Chen six times in this same period (ts 2 ‑ 3).

3. On the same morning, a fourth person, Hang Yuan (Mr Yuan), arrived in Perth by train from Sydney.  He had a suitcase with him.  He travelled to Northbridge and there met the appellant and they walked together to the unit.  On arrival they walked through the foyer of the building and exited through a door leading to the carpark.  About 10 minutes later, the appellant emerged carrying a backpack.  That backpack was later located by police in the unit and was found to contain traces of methylamphetamine (ts 3 ‑ 4). 

4. Mr Yuan was later stopped by police in Northbridge.  He was still carrying the suitcase, but nothing was found in it other than a change of clothes.  His mobile phone had a map showing the location of the Aberdeen Street unit on it.  He was booked on a flight back to Sydney.  At that time police did not know that Mr Yuan had brought methylamphetamine to Perth and, accordingly, he was not arrested (ts 3).

5. After leaving the carpark with the backpack, the appellant entered the lifts at the block of units.  About 30 minutes later, at 12.15 pm, the appellant and Ms Yu left the block of units and got into a taxi.  The taxi drove them to an address in Kenwick.  Ms Yu remained in the taxi while the appellant entered a house.  Ms Yu was seen to open the door of the taxi and indicate to the appellant the house to which he was to go.  The appellant went inside a house and remained there for approximately 20 minutes.  When he returned, he was carrying a bag which he placed at the feet of Ms Yu in the foot well of the taxi.  At 1.30 pm, the taxi was stopped by police in Moore Street, Perth.  The bag was found to contain $92,850 in cash in bundles of $10,000.  A further $10,000 in cash was found in the wallet of the appellant (ts 4). 

6. The appellant and Ms Yu were then taken by police to the Aberdeen Street unit where a search warrant was executed.  Jian Chen was found sleeping in a bedroom of the unit.  During the search a total of 3.426 kg of methylamphetamine was found.  Of this, 16 g was located in a clipseal bag inside a jewellery box on the kitchen bench.  The balance of the drugs were found in a number of clipseal bags inside a shoebox in the cupboard of the laundry/bathroom.  On analysis, the methylamphetamine was found to be of a purity of between 80 and 81%.  The value of the drug was estimated to be between $1.22 million and $3.4 million.  The value depended on whether it was sold in large quantities or single doses and whether it was sold in the existing form or was further cut using a dilution agent (ts 4).

7. A number of items were located in the search that were consistent with the handling and repackaging of the drugs.  Two disposable gloves and a number of clipseal bags were found in a bin in the kitchen.  Digital scales which had traces of methylamphetamine on them were found on a box next to the bin.  A pair of scissors and a spoon were also found, both of which had traces of methylamphetamine on them.  DNA consistent with that of Ms Yu was found on the inside surface of the shoebox and on one of the gloves.  DNA consistent with that of the appellant was found on both gloves (ts 5).

Personal circumstances

1. The appellant was born in China and was 25 years old at the time of the offence and 27 at the time of sentencing.  He and his younger brother were raised by their grandparents in a small farming village whilst their parents went to another province to work.  Their parents returned to the village when the appellant was aged 4.  His father was physically abusive towards him and his mother.  His father was imprisoned and the appellant has not had contact with him for many years.

2. The appellant obtained a qualification in welding in China.  He then came to Australia as a student in 2006.  He studied English in Melbourne, but after a year his mother stopped sending him money.  He then moved to Sydney to seek employment.  His student visa eventually expired.  He obtained work as a baker and subsequently as a gyprock worker.  The hours were long and the pay rates low.  He then moved to Canberra, where he again worked long hours and lived with other Chinese men in a shared accommodation arrangement.

3. In 2014, the appellant met and married an Australian‑born Chinese woman.  He met his wife when he was looking for a place to stay and his wife's parents had a room to rent in their home.  He borrowed a total of approximately $10,000 from friends to pay for wedding expenses.  It was out of a desire to repay this debt that he became involved in the offending. 

4. The appellant and his wife have a son who was born two months before he was arrested.  His wife and son continue to reside in Sydney, though she has visited him on a number of occasions.  Letters from the appellant's mother‑in‑law and wife attest to his good qualities as a husband and father.  His younger brother also provided a letter setting out the appellant's personal history.  The appellant wrote a letter apologising for his conduct and expressing regret for the impact that it has had on his family.

5. A psychological report tendered on behalf of the appellant states that he escaped an emotionally harsh life in China to create a new life in Australia with little knowledge or planning as to how he would support himself.  It was said that this appears to demonstrate poor problem‑solving and consequential thinking skills.  This was said to be consistent with his decision to borrow money that he could not repay to fund his wedding and to stay in Australia without a valid visa.  The report states that whilst on remand he had reflected on his actions and their consequences and was able to express an understanding of the impact that drug offending has on the community and how it would have long‑term consequences for his wife and child.

6. The level of the appellant's naivety is questioned in the pre‑sentence report.  He told the pre‑sentence report author that he agreed to come to Perth to assist in transferring money and did not know that drugs were involved until he arrived here.  He accepted that he had previously assisted one of his co‑offenders in transferring money, but did not think that he was breaking the law.  The report writer stated that whilst the appellant did appear to have accepted some responsibility for his offending, there was concern that he was externalising blame and seeking to minimise his involvement.

7. The appellant denied being a user of drugs or having any gambling problems.  He has no prior criminal record.

Sentencing remarks

1. The sentencing judge made a number of findings based upon the facts.  Those findings were as follows:

   1.That Mr Yuan brought the drugs found in the unit from Sydney to Perth on the train and that those drugs had been contained in his suitcase.

   2.That when the appellant left the carpark where he met Mr Yuan, he was carrying a backpack which contained a quantity of methylamphetamine.

   3.That when the appellant returned to the unit, both Jian Chen and Ms Yu were present.

   4.That the appellant, Ms Yu and Jian Chen were all present and involved in the unpacking of the methylamphetamine from the backpack and the repacking of it into the shoebox and the jewellery box where it was found by the police.

   5.That all three offenders were involved, or at least present, when some of the methylamphetamine was weighed in the kitchen using the scales and that all three were aware of what was happening.

   6.That the visit of the appellant and Mr Yu to the Kenwick house was related to drug dealing activities and the methylamphetamine found in the unit.

   7.That the $103,000 in cash in the possession of the appellant when he was apprehended by the police was proceeds derived from the sale of methylamphetamine either supplied or yet to be supplied.

   8.That all three offenders were in joint possession of the drugs found in the unit because each of them knew of the drugs, each had physical custody or control over the drugs and each had the intention to sell or supply those drugs.

2. His Honour also found that the appellant, Jian Chen and Ms Yu had been in a drug dealing relationship for some months prior to 6 December 2014.  This was evidenced by the renting of the Aberdeen Street unit for the purpose of using it as a base for drug dealing activities and transfers of money through bank accounts.  Approximately $300,000 was deposited into the appellant's bank account, which he then caused to be paid on to others.  There was no obvious legitimate source for that money.

3. His Honour referred to evidence that each of the offenders had made numerous trips to Perth between July and December 2014, generally staying for only short periods of time.  He said that the offending involved a significant degree of planning, organisation and coordination.  The only reason the offenders were in Perth at the relevant time was to receive the drugs from Mr Yuan and then to distribute them for commercial purposes.

4. His Honour found that each of the offenders was close to and trusted by the principals of the drug distribution network, though he accepted that they were not the principals and that it was more likely that the proceeds of the drugs would be largely passed on to others.  Nonetheless, he formed the view that each of them had played a significant and important role in the offending and that he could not differentiate between them and that their culpability was the same.  He also said that the offending needed to be seen against the background that the offenders had been actively involved in drug dealing activities for commercial purposes over a period of some months leading up to the offending.  Whilst the offenders were only to be sentenced for the offences of which they had been convicted, the offending conduct could not be viewed as isolated or one‑off offending.  His Honour said that given the amount and purity of the methylamphetamine, the offenders had to be viewed as being towards the upper end of the distribution chain, close to the supplier or source of manufacture. 

5. His Honour referred to the appellant's personal circumstances and to the fact that the appellant had pleaded guilty to the charges. He said that the pleas were relatively late, having been entered shortly before the matter was first listed for trial. He also said that the pleas had been entered in the light of a very strong prosecution case. He concluded that the appropriate discount pursuant to s 9AA of the Sentencing Act 1995 (WA) was 15%.

6. His Honour referred to the explanation for his conduct that the appellant had given to the psychologist.  He said that whilst the appellant had shown some remorse, it was limited.  He did not accept that the appellant was naïve in becoming involved in the offending and that he did not know that drugs were involved prior to arriving in Perth. 

7. His Honour also found that the appellant was not honest with the author of the pre‑sentence report.  He was satisfied that the appellant did know that he was involved in the sale or supply of significant amounts of methylamphetamine and that he had been involved in a drug dealing relationship for some months prior to 6 December 2014.  He noted that CCTV footage of the appellant travelling in the taxi with Ms Yu did not show someone who appeared to be scared or apprehensive.  To the contrary, the appellant was relaxed and calm. 

8. His Honour also rejected the suggestion that the appellant had made an impulsive decision and that his involvement could be explained by a lack of consequential thinking.  That suggestion was inconsistent with the findings that the appellant's conduct was deliberate and involved a significant degree of planning.  He did accept that the appellant was vulnerable 'to some extent' because of his poor financial circumstances and because his visa had expired.

1. His Honour referred to the appellant's references and to his letter of apology.  He also accepted that the appellant would suffer greater hardship in prison because of the distance from his friends and family and the fact that his first language is not English. 

2. His Honour said that personal and general deterrence were important sentencing considerations in a case like this and that, accordingly, less weight should be attributed to personal factors.  He concluded that imprisonment was the only appropriate option.  He said that the appropriate sentence for count 1, after taking into account all relevant factors, including the plea of guilty, was 11 years 10 months' imprisonment.  He said that the appropriate sentence on count 2 was 2 years' imprisonment, but reduced this to take into account totality.  The other two co‑offenders, Ms Yu and Jian Chen, were each sentenced to 14 years' imprisonment.

Ground of appeal

1. The ground of appeal is as follows:

   The learned sentencing judge erred in imposing a sentence of 11 years 10 months for count 1 that was manifestly excessive. 

   Particulars

   The sentence for count 1 was manifestly excessive having regard to the maximum sentence prescribed for the offence of possession of methylamphetamine with intent to sell or supply it to another, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupied on the scale of seriousness and the personal circumstances of the appellant.

Merits of the appeal

1. A ground of appeal which alleges that a sentence is manifestly excessive is an assertion of an implied error.  A sentence will be manifestly excessive if it is clearly unjust.  In order to determine whether the sentence is manifestly excessive it is relevant to consider the maximum penalty for the offence, the range of sentences customarily imposed for offences of that nature, the seriousness of the offence and the personal circumstances of the offender.  Comparable cases only provide a yardstick against which the sentence can be measured.  They do not set the limits of sentencing discretion.

1. No challenge is made to the facts or the sentencing judge's characterisation of the appellant as having played a part in the offending that was equivalent to that played by his co‑offenders.  However, it was submitted that the appellant and his co‑offenders had received sentences that were appropriate for principals, though the sentencing judge had accepted that they were not at that level of seniority.

2. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [14], the majority in the High Court said that, whilst categorisation of the role of an offender may promote consistency, the utility of such an exercise is limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. Often a sentencing judge will have limited and imperfect information about the offender. Sometimes characterisation of an offender as a 'principal' or 'courier' can be a useful shorthand way to describe his or her involvement. But such a characterisation is not always possible and must not obscure an assessment of what the offender did [19].

3. The maximum penalty for the offence of being in possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act is 25 years' imprisonment or a fine of $100,000 or both.

4. As to the seriousness of this offence, it involved a large quantity of methylamphetamine that was clearly intended for commercial sale.  This was a reasonably sophisticated drug dealing operation that involved using a courier to bring drugs from interstate and the repackaging of those drugs at a safe house leased for that purpose, with the intention of on‑selling them in Perth.  The high purity of the drugs indicated that the appellant and his co‑offenders were close to the source of manufacture.  The appellant played a significant role in receiving, repackaging and weighing the drugs.  Whilst not a principal in the sense of being at the head of this criminal arrangement, the appellant was no mere functionary.  He was trusted to receive a very large quantity of drugs, to unpackage and weigh it and to receive a large amount of cash.  His role could not readily fall into any distinct category, but what he did was significant and he was a party to a criminal relationship involving drugs that extended beyond the day of the offence.

1. As to the appellant's personal circumstances, there was nothing in them that mitigated the offending.  The appellant was not himself a drug user and the only motivation for his involvement was personal gain.  His claims regarding naivety and lack of foreknowledge of what was intended were specifically rejected by the sentencing judge.  In any event, personal circumstances are generally of lesser significance in relation to offences of this nature where personal and general deterrence are the most important sentencing factors.

2. As regards comparable sentences, the appellant's submissions referred to Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Kitis v The State of Western Australia [2013] WASCA 34; Ozan v The State of Western Australia [2013] WASCA 27; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Basilio v The State of Western Australia [2010] WASCA 202 and Ly v The State of Western Australia [2015] WASCA 18. In addition to those cases, we have also had regard to Hoang v The State of Western Australia [2015] WASCA 130; Tresnjo v The State of Western Australia [2015] WASCA 193; Le v The State of Western Australia [2015] WASCA 73; Phan v The State of Western Australia [2014] WASCA 144 and Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1. It is unnecessary to set out the fact of all of those cases. It is sufficient to say that when properly understood they do not support the contention that the sentence imposed here was manifestly excessive.

3. It is also important to note that the co‑offender Jian Chen has had an appeal in respect of his sentence dismissed:  Chen v The State of Western Australia [2017] WASCA 99. The appellant and Jian Chen were found to have the same level of culpability and their factual circumstances were comparable, but for the fact that the appellant had pleaded guilty. Jian Chen was sentenced to 14 years' imprisonment. The sentence of 11 years and 10 months received by the appellant on count 1 is consistent with a 15% discount for pleading guilty from the same starting point. Accordingly, the disposition of the appeal in respect of Jian Chen strongly supports the conclusion that the sentence imposed upon the appellant was within the range of sound sentencing discretion.

4. It should also be noted that the sentence imposed on count 2 of 6 months' imprisonment cumulative was reduced from 2 years for totality reasons.  The sentence imposed for count 1 needs to be understood in that context.  The severity of a sentence on an individual count should be assessed not in isolation, but in light of the sentences imposed on other counts:  Giglia v The State of Western Australia [2010] WASCA 9 [40].

5. In oral submissions, counsel for the appellant suggested that the appellant was disadvantaged because he was sentenced after the trial of his co‑offenders.  The implication was that the trial had resulted in high sentences for the co‑offenders and that this had resulted in a high starting point for the appellant.  It was submitted that a lower sentence would likely have been imposed on the appellant if he had been dealt with in isolation.  No more needs to be said about this other than it is speculative and that the course taken of deferring the appellant's sentencing until after the trial of the co‑offenders was sensible and not objected to.

6. Having regard to all of these factors, the sentence that was imposed on count 1 was within the range of a sound sentencing discretion.  It was not manifestly excessive.  This ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.

Conclusion

1. We would make the following orders:

   1.Leave to appeal refused.

   2.Appeal dismissed.