Chen v The State of Western Australia

[2017] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CHEN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 99

CORAM:   MAZZA JA

HALL J

HEARD:   5 MAY 2017

DELIVERED          :   30 MAY 2017

FILE NO/S:   CACR 4 of 2017

BETWEEN:   JIAN LING 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 - Whether it was open to trial judge to make findings as to the role played by the appellant - Whether sentence of 14 years' imprisonment manifestly excessive

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M A Tedeschi

Respondent:     No appearance

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

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

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

Ngo v The Queen [2017] WASCA 3

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 JWRL (a child) [2010] WASCA 179

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

Wilson v The State of Western Australia [2015] WASCA 119

1. REASONS OF THE COURT: The appellant was convicted after a trial in the District Court of 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). On 16 December 2016, he was sentenced to 14 years' imprisonment with an order that he be eligible for parole. He now seeks leave to appeal against that sentence.

2. There are two grounds of appeal.  The second ground was added, with leave, at the hearing.  Those grounds assert, in effect, that the sentence was manifestly excessive and that the sentencing judge erred in his characterisation of the role of the appellant in the offending.  For the reasons that follow, leave should not be granted on either of the grounds. 

The facts

1. The unchallenged facts on this appeal can be summarised as follows.

2. 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 the appellant 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, Hong Chen and herself (ts 2).

3. On 3 December 2014, Ms Yu travelled to Perth and stayed at the unit.  On 6 December 2014, the appellant and Hong 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 Hong Chen on seven occasions.  The last call connected and lasted about 4 1/2 minutes.  Ms Yu also tried telephoning the appellant six times in this same period (ts 2 ‑ 3).

4. 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 Hong Chen 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, Hong Chen 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). 

5. 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).

6. After leaving the carpark with the backpack, Hong Chen entered the lifts at the block of units.  About 30 minutes later, at 12.15 pm, Hong Chen 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 Hong Chen entered a house.  Ms Yu was seen to open the door of the taxi and indicate to Hong Chen the house to which he was to go.  Hong Chen 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 Hong Chen(ts 4). 

7. Hong Chen and Ms Yu were then taken by police to the Aberdeen Street unit where a search warrant was executed.  The appellant 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).

8. 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 found 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 Hong Chen was found on both gloves (ts 5).

Personal circumstances

1. The appellant was born in China and was 27 years old at the time of the offence and 29 at the time of sentencing.  He arrived in Australia in 2006 as a student, but by the time of his arrest his visa had expired.  He is unmarried and has no dependants.  He has done some work as a plasterer.  He does not have any record of past offending, either in Australia or China (ts 15). 

2. The appellant's parents continue to reside in China and remain supportive of him.  He is the youngest of three children.  His parents both have health issues, and this was confirmed by medical reports.  They wrote a letter referring to his good performance in school and helpfulness at home.  They expressed their surprise and concern for their son (ts 14 ‑ 20).

3. In a letter to the sentencing judge, the appellant said that his parents were poor and stopped sending him money after his first year in Australia.  He said that he worked part‑time to support himself.  He admitted that his study visa had been cancelled and that he had then remained in Australia unlawfully.  He said that he had never used drugs of any type (ts 15).

4. There was also a number of character references from family and friends that referred to the appellant's positive personal qualities.

Sentencing remarks

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

   1.That when Hong Chen left the carpark where he had met Mr Yuan, he was carrying a backpack which contained a quantity of methylamphetamine (ts 4).

   2.That when Hong Chen returned to the unit, both the appellant and Ms Yu were present (ts 4).

   3.That Hong Chen, Ms Yu and the appellant 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 (ts 5).

   4.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 (ts 5 ‑ 6).

   5.That the $103,000 in cash in the possession of Hong Chen when he was apprehended by the police was proceeds derived from the sale of methylamphetamine either supplied or yet to be supplied (ts 6). 

   6.That the visit of Hong Chen and Ms Yu to the Kenwick house was related to drug dealing activities and the methylamphetamine found in the unit (ts 6).

   7.That Mr Yuan brought the drugs found at the unit from Sydney to Perth on the train and that those drugs had been contained in his suitcase (ts 3).

   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 (ts 6).

2. The sentencing judge specifically rejected claims made by the appellant to the police in an interview.  His Honour said the following in regard to the appellant's role:

   Neither do I accept, Jian Chen, the explanation you gave to police in your video record of interview that you went to bed shortly after you arrived at the unit and you were asleep when the drugs were brought into the unit, and that you were unaware of the presence of the drugs in the unit.

   In my view, you remained at the unit after Hong Chen and Ms Yu left to go to the Kenwick house for the purpose of guarding the methylamphetamine.  You were trusted to guard a significant amount of the methylamphetamine.

   You were only intending to be in Perth for a day, having booked a return flight to Melbourne the next day.  That fact, together with you accompanying Hong Chen to Perth, your association with Hong Chen over some months, your association with the Aberdeen Street unit, and also with Ms Yu, your frequent travelling to and from Perth, staying for only short periods, and the unexplained sums of money in your bank account, lead me to the only reasonable conclusion that you were involved in drug dealing with Hong Chen and Ms Yu, and in the collection of the methylamphetamine for the purposes of sale or supply.

   I reject the submission which has been made to me today by your counsel that the two sums of money of $20,000 and $25,000 paid into your account on 23 October 2014 was paid by friends or associates to enable you to buy a car; it was money you borrowed.  In my view, those sums of money are related to your drug dealing activities.

   I reject the submission made on your behalf by your counsel that your role in the drug offending was less involved than Ms Yu and Hong Chen.

   It is submitted that your only role was as a minder of the drugs while Hong Chen and Ms Yu left the unit to go to Kenwick.  You sought to distinguish your role on the basis that it was a lesser role because you did not transport any money or drugs or meet any other contacts.  Nor did the same amount of money which flowed to the bank accounts of Ms Yu and Hong Chen go through your bank account.

   I do not accept the submission made on your behalf that your only involvement was your preparedness to travel to Perth and stay in the house while your co‑offenders were actively involving themselves with the drugs.  Your role was not, as is submitted on your behalf, merely accompanying the courier of the drugs and being a minder of the drugs at the unit.

   While I cannot make any specific finding as to exactly your role in the drug dealing, I am satisfied that you were fully aware and involved in what was happening.  It is often the case that the most culpable person in the drug dealing hierarchy may have little or no active participation in the physical movement of prohibited drugs between people and places.

   I don't accept the extent of your involvement in the offending was at the lower end of the drug distribution chain.  I am satisfied that each of you were involved together in a drug dealing relationship and had been for some time (ts 7 ‑ 8).

3. The reference to money passing through the appellant's bank account was to evidence that between May 2010 and December 2014 approximately $200,000 had been deposited into the appellant's account, including two amounts of $25,000 and $20,000 on 23 October 2014.  There was no obvious, legitimate source of this money.  The two co‑offenders had also received large sums into their accounts and similar findings were made in respect of each of them.

4. 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 was satisfied that the nature of the relationship between the three offenders, and the reason for the frequent travelling, was drug dealing activities.  He was also satisfied that the reason for renting the unit was to use it as a base for drug dealing activities.  He noted that there were few signs of the unit being used for long‑term accommodation, such as the presence of food.  He accepted that a description by the prosecutor of the unit being a safe house for the receipt and repackaging of the drugs was accurate (ts 9).

5. His Honour referred to the appellant's personal circumstances and the references tendered on his behalf.  He accepted that language difficulties and distance from family would cause greater hardship for the appellant and his co‑offenders than for others serving sentences of imprisonment.  However, he noted that the appellant had shown no remorse.  He also 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 (ts 21).

Grounds of appeal

1. The grounds are as follows:

   1.His Honour erred in sentencing the accused in the same manner and duration of imprisonment as if the accused was the principal offender together with the other co‑accused and the sentence imposed was excessive outside the range of an appropriate sentence and failed to failed to [sic] take into account his age, lack of criminal record and minimal or no role in the commission of any offence.

   2.The sentencing judge made express errors in the sentencing by:

   (a)failing to sentence the appellant on the basis he had a lesser role in the offence than co‑offenders Hong Xiang Chen and Lu Ting Yu;

   (b)finding that the appellant and the co‑offenders had been involved in a drug dealing relationship for some time and that prior illicit transactions were drug dealing when there was no evidence to make the findings;

   (c)finding that the appellant was close to and trusted by the source of the drugs or principals or heads of the drug distribution network when there was no evidence to support those findings; and

   (d)finding the appellant was involved in joint criminal activity with the co‑offenders with elaborate planning, organisation and coordination over a number of months when there was no evidence to support those findings.

Ground 2 - factual findings

1. It is convenient to deal with ground 2 first as any assessment of the sentence imposed significantly depends upon the factual findings.

2. Where an offender has been found guilty following a jury trial, the judge must determine the facts relevant to the sentencing process:  Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5], [36]. The facts found by the judge must be consistent with the verdict of the jury. However, it is the judge who must find the facts and it is not appropriate to speculate about the facts that may or may not have been found by the jury: Cheung [9] ‑ [11].

3. It is only the facts necessarily implicit in the verdict that cannot be contraverted in the sentencing process.  As to other facts, those that are aggravating must be established beyond reasonable doubt before they can be taken into account.  Facts that are mitigating can be taken into account if established on the balance of probabilities:  R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27]. See also The State of Western Australia v JWRL (a child) [2010] WASCA 179.

4. In Olbrich, the majority in the High Court pointed out that, whilst the role played by an offender in a drug dealing enterprise is a relevant consideration in sentencing, there will often be limited or imperfect information in this regard. That does not mean that the judge is obliged to accept the characterisation of his role that is advanced by the offender: [24]. But rejection of the defence contention does not mean that the prosecution contention as to the role of the offender must necessarily be accepted. Ultimately, it is a matter for the trial judge as to what findings can be made in this regard. Any findings must have an evidential basis, but it is open to not only take into account the direct evidence but also draw inferences from that evidence.

5. As to particular (a), the trial judge concluded that the culpability of each of the three offenders was the same.  He also concluded that each of them played a significant and important role.  He described the role of Ms Yu as a 'co‑ordinator' in that she was more involved in arranging to rent the unit, booking airfares and accommodation and transferring money in and out of bank accounts.  These activities reflected Ms Yu's better command of English.  He said that each of the appellant and Hong Chen had a 'central role' in the drug dealing activities and the offending on 6 December 2014.  He said that each of the offenders was close to, and trusted by, the heads of the drug distribution network but were not themselves the principals and that the proceeds were likely to have been passed to others (ts 10 ‑ 11). 

6. The trial judge was obliged to make findings of fact based on the available evidence.  Such findings could be based on direct evidence or on inferences drawn from that evidence.  The judge concluded that the appellant's role was more than that of a guard; rather, he had been involved in the arrangements to set up the safe house, had assisted with the unpacking and repacking of the drugs and had been trusted to stay with the very large quantity of drugs that remained in the unit.  It was plainly open to conclude from this that the appellant played an important role and that he was of the same level of culpability as his co‑offenders (ts 7).

7. As to particular (b), the appellant asserts that there was no evidence to support the finding that the appellant and his co‑offenders had been involved in a drug dealing relationship for some time.  Counsel for the appellant said that while the prosecution had relied upon evidence of large amounts of money flowing through the accounts of the offenders, the circumstances surrounding the lease of the unit and its use and the frequent travel to and from Perth, it was not asserted by the State that this evidence established the existence of a long‑term drug dealing relationship.  It was submitted that the prosecution case was left to the jury on the basis that there may have been an illicit relationship between the three co‑accused, but not that it necessarily involved drug dealing.  Counsel provided references to the transcript of the prosecution closing address and the trial judge's summing up in support of these submissions (the relevant transcript pages were 1252, 1272, 1277, 1287 ‑ 1289, 1428, 1436, 1443, 1463 ‑ 1464, 1470 ‑ 1473 and 1408 ‑ 1412). 

1. We have considered the pages of transcript referred to by the appellant's counsel and they do not support the submissions made.  The prosecution relied upon the evidence of a relationship between the appellant and the co‑offenders prior to 6 December 2014 as relevant to the participation of each of the accused on that day.  Whilst the prosecution did not set out to prove any past 'particular drug deals', the relevance of the evidence regarding the past relationship was not merely that the relationship had some suspicious or illicit quality in a general sense (which would be doubtfully admissible), but that it was a relationship founded on drug dealing.  It was certainly part of the State's case that the Aberdeen Street unit was a safe house that had been leased for the purpose for which it was later used.

2. There was evidence from which the trial judge could infer to the requisite standard that the appellant had engaged in a drug dealing relationship with his co‑offenders for some time.  It was also open to infer from the fact of that relationship, the amount of money that flowed through the appellant's account and his presence at the unit at the relevant time that his role in the offending extended beyond being a mere guard for the drugs that were kept in the unit.  As the trial judge correctly noted, the fact that the appellant did not collect the drugs and bring them to the unit and did not travel with the others to Kenwick did not necessarily indicate that he was lower in the hierarchy or had a less important role to play (ts 7 ‑ 8).  In this case, the significance of what the appellant did needed to be seen in the context of the evidence as a whole, including evidence of the past relationship between the offenders, and the findings of fact made by the trial judge. 

3. As to particular (c), the finding that the appellant was close to and trusted by the heads of the drug distribution network was an inference drawn from the judge's findings as to what the appellant had done and his role.  Added to this was the fact that the purity of the drugs indicated that the offenders were close to the source of manufacture.  This was, as the judge found, a reasonably sophisticated enterprise in which the appellant clearly played an important role  The fact that he was left alone in charge of some 3.6 kg of methylamphetamine with a very high value in itself shows the level of trust invested in the appellant (ts 10 ‑ 11). 

4. As to particular (d), this has been canvassed in dealing with particular (b).  The level of planning, co‑ordination and organisation over several months was self‑evident in the facts found proven (ts 13).

5. Each of the impugned findings was well open on the evidence.  There is no reason to think that the trial judge failed to apply the appropriate standard in making the findings that he did.  This ground has no reasonable prospect of success and leave in respect of it should be refused.

Ground 1

1. This ground essentially asserts that the sentence imposed upon the appellant was manifestly excessive.  However, in referring to the other co‑offenders, there is also a suggestion that the sentence infringed the parity principle.

2. Insofar as parity is concerned, the sentences imposed on the two co‑offenders were as follows.  Hong Chen was charged with two offences -   possession with intent to sell or supply and possession of money unlawfully obtained - and was sentenced to a total effective sentence of 12 years and 4 months' imprisonment.  However, Hong Chen pleaded guilty and received a discount of 15% on the sentence that would otherwise have been imposed.  Ms Yu was charged with the same offence as the appellant - possession with intent to sell or supply - and was sentenced to 14 years' imprisonment.  Bearing in mind the trial judge's conclusion that the co‑offenders were equally culpable, that Hong Chen had entered a plea of guilty at a reasonably early stage and there was no other material difference between the offenders, there is no disparity in the sentences.

3. 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.

4. 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. 

5. 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.  As the trial judge found, the appellant played a significant role in the unpacking and weighing of the drugs and in the guarding of them.

6. 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 obvious motivation for his involvement was personal gain.  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.

7. As to comparable sentences, the appellant referred to Kitis v The State of Western Australia [2013] WASCA 34; Wilson v The State of Western Australia [2015] WASCA 119; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 and Ngo v The Queen [2017] WASCA 3. The last case is not helpful as it related to an offence of conspiracy to import a border controlled drug. The other cases do not establish that the sentence imposed in this case was inconsistent with the sentences imposed in those cases. Indeed, those cases tend to establish that the sentence imposed here was within the range of sentences customarily imposed for an offence of this nature.

8. We have also had regard to a number of other cases involving sentencing for similar offences.  Those cases are 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 Ly v The State of Western Australia [2015] WASCA 18. Those cases also do not support the contention that the sentence here was manifestly excessive.

9. Having regard to all of these factors, the sentence that was imposed 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.