Harvey v The Queen
[2018] WASCA 188
•29 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HARVEY -v- THE QUEEN [2018] WASCA 188
CORAM: BUSS P
MAZZA JA
ALLANSON J
HEARD: 4 APRIL 2018
DELIVERED : 29 OCTOBER 2018
FILE NO/S: CACR 132 of 2017
BETWEEN: MICHAEL ROSS HARVEY
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 961 of 2016
Catchwords:
Criminal law - Appeal against sentence - Attempting to possess a marketable quantity of an unlawfully imported border controlled drug - Methamphetamine - Individual sentence of 7 years' imprisonment - Manifest excess - Whether judge erred in finding the appellant attempted to possess $80,000 worth of methamphetamine
Legislation:
Crimes Act 1914 (Cth), s 16A(1), s 16A(2)
Criminal Code (Cth), s 11.1(1), s 307.6(1)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr D W L Renton |
Solicitors:
| Appellant | : | Legal Pathways |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Adegoke v The Queen [2013] NSWCCA 193; (2013) 234 A Crim R 280
Di Tommaso v The Queen [2010] VSCA 178
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mousavi v The Queen [2014] WASCA 174
R v Chea [2008] NSWCCA 78
R v Chew [2004] NSWCCA 26
R v Dang [2004] NSWCCA 265
R v Laurentiu (1992) 63 A Crim R 402
R v Maddocks (1990) 51 A Crim R 376
R v Oancea (1990) 51 A Crim R 141
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Ugur (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Newman and Loveday JJ, 11 August 1989)
Rajabizadeh v The Queen [2017] WASCA 133
Sintat v The Queen [2018] NSWCCA 165
Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was charged on indictment in the District Court with five offences as follows:[1]
1.Between on or about 21 March 2014 and on or about 23 June 2014 at Perth in the State of Western Australia, Michael Ross Harvey trafficked in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity trafficked being a trafficable quantity, contrary to section 302.4(1) of the Criminal Code (Cth).
2.Between 11 April 2014 and 23 May 2014 at Perth in the State of Western Australia, Michael Ross Harvey dealt with money where there was a risk that the money would become an instrument of crime and Michael Ross Harvey was reckless as to the fact that there was a risk it would become an instrument of crime and at the time of the dealing the value of the money or property was $100,000 or more contrary to section 400.4(2) of the Criminal Code (Cth).
3.On 23 June 2014 at Perth in the State of Western Australia, Michael Ross Harvey attempted to commit an offence contrary to section 307.6(1) of the Criminal Code (Cth), in that he attempted to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity attempted to be possessed being a marketable quantity, contrary to section 11.1(1) of Criminal Code (Cth).
4.On 23 June 2014 at Perth in the State of Western Australia, Michael Ross Harvey dealt with money that Michael Ross Harvey intended would become an instrument of crime and at the time of the dealing the value of the money or property was $10,000 or more, contrary to section 400.6(1) of the Criminal Code (Cth).
5.On 23 June 2014 at Perth in the State of Western Australia, Michael Ross Harvey possessed a substance, the substance being a controlled drug, namely methamphetamine and MDMA, contrary to section 308.1(1) of the Criminal Code (Cth).
[1] AB 45 ‑ 46.
On 2 March 2017, the appellant pleaded guilty to, and was duly convicted of, counts 1, 2 and 5.[2]
[2] ts 41.
On 9 March 2017, he was convicted after trial by jury of counts 3 and 4.[3]
[3] ts 209 ‑ 210.
The sentencing judge expressed that the maximum penalties for the offences were as follows: on count 1, 10 years' imprisonment and/or a fine of $360,000; on counts 2 and 4, 10 years' imprisonment and/or a fine of $108,000; on count 3, 25 years' imprisonment;[4] and on count 5, 2 years' imprisonment and/or a fine of $72,000.[5]
[4] The sentencing judge did not state the maximum fine for count 3.
[5] ts 244, 246, 250, 251; the maximum penalty as to fines was misstated. However, these misstatements make no material difference to the sentence.
On 30 May 2017, the appellant was sentenced as follows:[6]
•Count 1: 18 months' imprisonment
•Count 2: 3 years' imprisonment
•Count 3: 7 years' imprisonment
•Count 4: 18 months' imprisonment
•Count 5: A fine of $1,000
[6] ts 246, 250 ‑ 253.
His Honour ordered that the sentences on counts 1, 2 and 4 commence on 9 March 2017 and that the sentence on count 3 commence 18 months after 9 March 2017. Thus, the total effective sentence imposed was 8 years 6 months' imprisonment. His Honour ordered that the appellant be eligible for parole after serving 6 years' imprisonment from 9 March 2017.[7]
[7] ts 253 ‑ 254.
The appellant does not challenge the individual sentences on counts 1, 2, 4 and 5. The two grounds of appeal concern the sentence of 7 years' imprisonment imposed on count 3. Ground 1 alleges that the sentence is manifestly excessive, having regard to the appellant's antecedents, his criminality and the sentences imposed in comparable cases. Ground 2 alleges that the sentencing judge erred 'when making findings of fact about the quantity of drugs allegedly involved in relation to count 3'.[8]
[8] AB 6.
The question of leave to appeal on these grounds was referred to the hearing of the appeal.[9]
[9] Order 22 August 2017, AB 4.
For the reasons that follow, we would give leave to appeal on ground 2 and uphold the appeal on that ground. It is unnecessary to deal with ground 1. We would resentence the appellant to 4 years' imprisonment on count 3 and to a total effective sentence of 5 years 6 months' imprisonment.
Appellant's antecedents
The appellant was 39 years of age when he was sentenced. His early family background was unremarkable for sentencing purposes. He has two children aged 10 and 5.[10]
[10] ts 241.
The appellant completed year 11 at high school and has consistently been employed since that time. He has no physical or mental health issues, but he has used methamphetamine for approximately 10 years, mostly on a daily basis.[11] As to the appellant's methamphetamine use, the author of the pre‑sentence report noted that the appellant claimed he had ceased using methamphetamine and that he intended to be drug‑free in the future.[12]
[11] ts 241.
[12] ts 242.
The appellant has what the sentencing judge described as 'a modest criminal record' which comprised traffic offences.[13]
[13] ts 243.
References which were tendered on the appellant's behalf in the sentencing proceedings spoke positively of him.[14]
[14] ts 241 ‑ 242.
His Honour said that he would sentence the appellant on the basis that he had 'generally been a law abiding citizen of good character'.[15]
[15] ts 243.
The facts
The facts with respect to counts 1, 2, 4 and 5 are not in dispute.
As to count 1, between 21 March 2014 and 23 June 2014, the appellant trafficked a total of 7.71 g of methamphetamine on nine separate occasions, being:[16]
[16] ts 243
•23 March 2014 - 0.5 g
•1 April 2014 - 1.75 g
•3 April 2014 - 1.36 g
•10 April 2014 - 0.5 g
•10 April 2014 - 0.25 g
•19 April 2014 - 0.6 g
•1 May 2014 - 1.75 g
•30 May 2014 - 0.5 g
•20 June 2014 - 0.5 g
On 23 June 2014, officers from the Australian Federal Police (AFP) executed a search warrant of the appellant's house and seized about 50 small clipseal bags and one large clipseal bag, a small electronic scale, which on later analysis revealed traces of methamphetamine, and a small notebook containing notes consistent with drug sales.[17]
[17] Statement of agreed facts, count 1, dated 2 March 2017; ts 240, 244.
Count 2 concerned the appellant's role in what was, in substance, the money laundering of a total of $110,000 in cash to various 'money collectors' in the Perth metropolitan area. On 11 April 2014, the appellant delivered $45,000 to a money collector named Brar. On 22 May 2014, the appellant delivered $25,000 to a money collector named Ram. On 23 May 2014, the appellant delivered $40,000 to a money collector named Arora.[18]
[18] Statement of material facts dated 18 August 2016, page 3; ts 240, 245 ‑ 246.
We will deal with the facts of counts 3 and 4 separately. These offences concern events which occurred on or around 23 June 2014.
As to count 5, in the course of the search of the appellant's house on 23 June 2014, police found four MDMA tablets (weighing 0.2 g) and 0.3 g of methamphetamine.[19]
Facts - counts 3 and 4
[19] Statement of material facts dated 18 August 2016, page 5; ts 251.
The following facts with respect to counts 3 and 4 are uncontentious. Between 20 and 22 June 2014, the appellant communicated with an unknown male located overseas. These communications were lawfully intercepted by the AFP. The unknown male arranged for a man named Andrew Laird to bring a quantity of methamphetamine into Australia. When Mr Laird arrived in Perth, he texted his mobile telephone number to a phone number with the international dialling code for Thailand. The unknown male texted the same number to the appellant. In intercepted telephone conversations, to which we will later refer, the unknown male instructed the appellant to take possession of a package that would be given to him by Mr Laird and to pay Mr Laird $10,000. The unknown male told the appellant that Mr Laird may be dressed as a female.[20]
[20] ts 247.
Following a number of telephone conversations between the appellant and Mr Laird, they agreed to meet at 9.30 am on 23 June 2013 at the Edgewater train station. Mr Laird agreed to go to the train station by taxi, where he would hand over the drugs, which were to be concealed in an Australia Post box, to the appellant who was to pay him $10,000 and an additional $100 for the taxi fare to and from the Edgewater train station.[21]
[21] ts 247.
Shortly before 9.30 am on 23 June 2014, Mr Laird arrived by taxi at the Edgewater train station, dressed as a female. He was carrying a sealed Australia Post box. Soon after, he was arrested by AFP officers who, upon opening the box, found that it contained a package of rice weighing 500 g.[22]
[22] ts 247.
Shortly after Mr Laird was apprehended, the appellant was arrested. The black bag he was carrying was searched. In it, AFP officers found $10,000 in a white envelope, as well as a loose $100 bill. The appellant told police that the $10,000 belonged to him and that he intended to use it to buy camping gear.[23]
[23] ts 247.
Although the box carried by Mr Laird contained rice, the appellant believed it contained, and he intended to possess, more than a marketable quantity (that is, more than 2 g) of methamphetamine.[24]
[24] ts 247 ‑ 248.
The factual issue - count 3
At the sentencing hearing, an issue arose as to the quantity of methamphetamine the appellant intended to possess. This was a matter for the sentencing judge to decide, as the jury was only required to find that the appellant attempted to possess a marketable quantity (that is, 2 g or more) of methamphetamine.[25]
[25] ts 248.
The Crown submitted that the sentencing judge should find that the appellant believed he would be taking possession of between 160 and 363 g of methamphetamine. In support of this submission, the Crown relied upon three factors, being:[26]
(a)The weight of the rice (500 g) contained in the box found in Mr Laird's possession which he was going to pass off to the appellant as methamphetamine. This, the Crown said, suggested that the appellant was expecting to receive about this weight in methamphetamine.
(b)The content of statements made in the course of the intercepted telephone conversations between the unknown male and the appellant which the Crown said was a reference to the methamphetamine possessed by Mr Laird being worth $80,000.
(c)Expert evidence which was adduced at trial was to the effect that, in June 2014, $80,000 would buy between 160 and 363 g of methamphetamine.
[26] ts 248 ‑ 249.
The Crown submitted that the $10,000 which was to be paid to Mr Laird was his courier fee.[27]
[27] Crown's sentencing submissions [33]; AB 99.
The appellant contended that he should be sentenced on the basis that he intended to purchase $10,000 worth of methamphetamine, being the money he had with him when he was arrested, which, based on the expert evidence adduced at trial, would have weighed about 1 oz (that is, 28 g).[28]
[28] ts 229, 249.
The sentencing judge's findings on quantity
The sentencing judge found that the appellant believed the contents of the package he was to obtain at the Edgewater train station were methamphetamine. His Honour said that he needed to make more detailed findings of fact as to the quantity of the border controlled drug that the appellant was intending to import.[29]
[29] ts 248. Nothing turns on the misstatement of the offence in the appellant being charged with attempting to possess a substance that had been unlawfully imported.
His Honour found, beyond reasonable doubt, based on all of the evidence, including in respect of counts 1 and 2, that the appellant attempted to possess $80,000 worth of methamphetamine. The sentencing judge said that it was sufficient for sentencing purposes to find that the appellant intended to take possession of at least 100 g of pure methamphetamine. His Honour concluded as follows:[30]
On all the evidence, I am satisfied beyond a reasonable doubt that you were attempting - that the border controlled drug you were attempting to import was methylamphetamine [sic] and that you intended to import $80,000 worth of that drug and that inference is the only rational and reasonable inference that the facts would enable me to draw.
In terms of how much that would give you, it's sufficient for sentencing purposes for me to find that you intended to get at least 100 grams of pure methylamphetamine [sic]. There is evidence from which it would be open for me to accept the Commonwealth's submission that it was much more, but it seems to me for sentencing purposes it's sufficient if I sentence you on the basis that it was a hundred grams - at least a hundred grams - of pure methylamphetamine [sic], the key finding being you were going to purchase $80,000 worth of methylamphetamine [sic], so the reference to a hundred grams is in a sense a question of scale.
In the present case you were the ultimate intended [purchaser]. I also find you were the ultimately intended purchaser of what you believed to be the methylamphetamine [sic]. I further find that you intended to sell most of the methylamphetamine [sic] to at least pay for it and to fund your own habit and to make at least some profit.
[30] ts 249.
We note that, in its submissions on sentence, the Crown accepted that the evidence did not permit a finding, in relation to ground 2, that all of the money was the proceeds of prohibited drugs. The Crown submission was that 'some reflected the proceeds of drug sales, but we couldn't quantify a proportion or a quantum'.[31]
[31] ts 228.
It is convenient to deal with ground 2 first.
Ground 2
The appellant's submissions
The appellant submitted that his Honour erred in finding that the appellant intended to possess $80,000 worth of methamphetamine. It was submitted that this finding was not the only reasonable inference available on the evidence. While it was acknowledged that in the intercepted telephone conversations there was a reference to '80', it was submitted that this amount may well have been connected to money‑laundering, not drug dealing. Moreover, as the appellant attended at the Edgewater train station with only $10,100 in his possession, it was reasonable to assume that he intended to purchase methamphetamine to that value (namely 28 g) and not a larger quantity.[32]
Legal principles relevant to ground 2
[32] Appellant's case, pars 100, 103; AB 18 ‑ 19.
It is well established that where a fact is disputed in sentencing proceedings and that fact, if proved, would be adverse to the offender, the prosecution bears the burden of proving the disputed fact beyond reasonable doubt.[33]
[33] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] ‑ [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ). See also Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64] (French CJ, Bell, Keane & Nettle JJ).
We accept that, in the present case, the fact contended for by the Crown, if proved, made the offence in count 3 more serious. As the Crown's contention was disputed by the appellant, the Crown was obliged to prove it beyond reasonable doubt.
The evidence relevant to the disputed facts
We have described the facts with respect to counts 1, 2, 4 and 5 at [17] ‑ [19] and [21] ‑ [25] of these reasons.
We will turn to the intercepted telephone conversations. On 17 June 2014, the appellant spoke about the transaction the subject of count 3 in the following terms:[34]
[34] AB 125.
UNKNOWN MALE
Have you got any more paperwork? How much money have you got?
THE APPELLANT
Um, I most probably got fifteen now.
UNKNOWN MALE
Right. Give him ten when he comes, yeah?
THE APPELLANT
Yeah, yep. Sorry, what was that?
UNKNOWN MALE
When he comes just give him ten, yeah?
THE APPELLANT
Ten?
UNKNOWN MALE
Yeah.
THE APPELLANT
Yeah, yeah, cool.
…
UNKNOWN MALE
Right, yeah, give him ten and make sure you check it, yeah?
THE APPELLANT
Yeah, yep, yep.
It may be concluded from this conversation that the unknown male is giving instructions to the appellant to provide the courier with 'ten' ($10,000) and to make sure that the appellant checks the goods (the methamphetamine).
The most important of the telephone conversations between the appellant and the unknown male occurred on 20 June 2014. Relevantly, the conversation was as follows:[35]
[35] AB 127 ‑ 128.
UNKNOWN MALE
Yeah? Now - right now give him ten thousand, yeah?
THE APPELLANT
Yep.
UNKNOWN MALE
You just give him ten thousand. Now remember you owe me eighty‑nine.
THE APPELLANT
Yeah.
UNKNOWN MALE
You sent me a Western Union. So listen, I'm just goin' to round it off to eighty, yeah, so forget the nine because of the Western Union, so say your balance is eighty. Give him ten and then it's seventy, yeah ‑ ‑ ‑
THE APPELLANT
Yep.
UNKNOWN MALE
- - - for the old one - - -
THE APPELLANT
Yep.
UNKNOWN MALE
- - - and then the - then the new one you're getting' it up to eighty, yeah?
THE APPELLANT
Yep, yep, Cool.
UNKNOWN MALE
This next one to eighty so the three, just to try and get you back up there, you know what I mean?
THE APPELLANT
Yep, yep, yep.
…
UNKNOWN MALE
Right, the balance in [sic] seventy for the old one.
THE APPELLANT
Yep.
UNKNOWN MALE
And then we'll sort the new one and then I'll ring you after the weekend and then we'll sort somethin' out for the next week if you can give him a big chunk.
…
UNKNOWN MALE
Now also, also, soon as you can get it - soon as you get it. You need to test it, tell me, yeah?
THE APPELLANT
Yeah, yep.
UNKNOWN MALE
I need to know. If there's any problem I need to know straight away while he's still there.
On 21 June 2014, the appellant and Mr Laird spoke by mobile telephone. The appellant proposed to Mr Laird that they meet at the Edgewater train station. Mr Laird asked the appellant what he wanted to put 'this stuff' in. Mr Laird proposed to 'wrap it up' and put it into 'a Post Office box'. Mr Laird told the appellant that he would call the following day to let him know 'if we're ready for Monday [23 June 2014]'.[36]
[36] AB 130 ‑ 131.
On 22 June 2014, the appellant and the unknown male spoke by mobile telephone. The appellant told the unknown male that he had spoken to Mr Laird the previous day and that 'Monday should be all good'.[37]
[37] AB 132.
On 22 June 2014, the appellant and Mr Laird spoke by mobile telephone and made arrangements to meet the following morning at the Edgewater train station.[38]
[38] AB 134 ‑ 136.
On the morning of 23 June 2014, the appellant and Mr Laird spoke by mobile telephone for the final time. Initially, Mr Laird expressed reluctance to go to the Edgewater train station. Instead, he wished to stay in Perth.[39] Eventually, the appellant persuaded Mr Laird to meet him at the Edgewater train station. Mr Laird agreed to 'give you your stuff and go'.[40]
[39] AB 137.
[40] AB 138 ‑ 139.
Detective Sergeant Fogell of the Western Australia Police Service gave expert evidence as to the value of methamphetamine. His evidence was, effectively, unchallenged. Detective Sergeant Fogell testified that, in June 2014, 0.1 of a gram of methamphetamine would have sold for about $100 and that an ounce (28 g) would have been worth 'around 12 to 14 thousand dollars'.[41] In cross‑examination, Detective Sergeant Fogell conceded that there were 'huge variations' in the price of methamphetamine and that it was 'quite likely' that an ounce of methamphetamine could be purchased for $10,000. Detective Sergeant Fogell also said in cross‑examination that a kilogram of methamphetamine was worth, at about that time, $220,000 and that half a kilo was worth in excess of $100,000.[42] Detective Sergeant Fogell gave no evidence as to the effect, if any, purity had on the price of methamphetamine. The proper inference, having regard to the focus on pure weight in the Criminal Code (Cth), is that Detective Sergeant Fogell's valuation evidence related to pure methamphetamine.
[41] ts 159.
[42] ts 159.
The appellant elected not to testify at trial, but adduced evidence from his father, Mr Gary Harvey.[43]
[43] ts 162.
The appellant's father testified that on 19 June 2014 he withdrew $10,000 from his Westpac passbook and loaned this sum to the appellant, ostensibly to help the appellant in his limestone business.[44]
[44] ts 165 ‑ 166.
Ground 2 - disposition
In our opinion, it was not open to his Honour to find beyond reasonable doubt that, when the appellant went to the Edgewater train station to meet with Mr Laird, the appellant intended to take possession of $80,000 worth of pure methamphetamine. We have arrived at this conclusion having regard to the combination of the following factors.
The three facts on which the Crown relied to draw the inference as to quantity were, when analysed, of insufficient weight in combination to support his Honour's finding beyond reasonable doubt.
The first fact was that Mr Laird was found in possession of a concealed package (rice) that weighed 500 g. The Crown asserted that this fact suggested that the appellant was expecting a quantity of drugs 'at least somewhat consistent' with the weight of the contents of the package.[45] However, this submission impermissibly assumes that the appellant was expecting a package that contained pure drugs and pure drugs only, not drugs diluted by or concealed within something else.
[45] WAB 98; respondent's submissions before the sentencing judge, [31](a).
The second fact relied upon by the Crown was that the relevant intercepted telephone conversations indicated the appellant intended to purchase $80,000 worth of methamphetamine. However, the relevant telephone intercept material was ambiguous. The only conversation capable of supporting the Crown's case on quantity was the intercepted conversation on 20 June 2014, the salient portion of which was:
UNKNOWN MALE
Now remember you owe me eighty‑nine.
THE APPELLANT
Yeah.
UNKNOWN MALE
You sent me a Western Union. So listen, I'm just goin' to round it off to eighty, yeah, so forget the nine because of the Western Union, so say your balance is eighty. Give him ten and then it's seventy, yeah ‑ ‑ ‑
THE APPELLANT
Yep.
UNKNOWN MALE
- - - for the old one - - -
THE APPELLANT
Yep.
UNKNOWN MALE
- - - and then the - then the new one you're getting' it up to eighty, yeah?
THE APPELLANT
Yep, yep, Cool.
UNKNOWN MALE
This next one to eighty so the three, just to try and get you back up there, you know what I mean?
THE APPELLANT
Yep, yep, yep.
…
UNKNOWN MALE
Right, the balance in [sic] seventy for the old one.
THE APPELLANT
Yep.
UNKNOWN MALE
And then we'll sort the new one and then I'll ring you after the weekend and then we'll sort somethin' out for the next week if you can give him a big chunk.
There are two inferences which can reasonably be drawn from this conversation. The first inference is that the appellant admitted that he owed the unknown male $80,000 for an old debt (the old debt) and that, as a consequence of the delivery being made by Mr Laird, the appellant incurred a new and additional debt to the unknown male in the sum of $80,000 (the new debt), being the value of the drugs in the package. The payment of $10,000 that the appellant agreed to make to the courier was in reduction of the old debt. Thus, after the payment was made, the appellant still owed the unknown male $70,000 in respect of the old debt, and also incurred the new debt of $80,000.
The second inference is that the conversation is not about two separate and distinct debts, but, rather, about one debit balance. It might be inferred that the unknown male is speaking of one debt, which is being reduced to $70,000 by the payment of $10,000 to the courier and then 'it' goes back up to $80,000, implying the appellant is only purchasing $10,000 worth of methamphetamine. The conversation in the telephone intercept material does not expressly refer to an overall balance owed by the appellant, of $150,000 made up of the old debt and the new debt, which is the result of the first inference above and which is in effect the Crown's case. This may be considered a surprising omission, given that the conversation is, in part, about the amount which the appellant owes the unknown male.
The third fact was that there was expert evidence that $80,000 would buy between 160 g and 363 g of pure methamphetamine, depending on whether the calculation was based on a 28 g parcel or a 1 kg parcel. The Crown relied on this evidence to support an inference that the appellant intended to possess between 160 g and 363 g of pure methamphetamine. The importance of this evidence depends on first being satisfied that the appellant intended to possess $80,000 of pure methamphetamine. The existence of this 'fact' involves bootstraps reasoning.
Further, the facts of the other offences committed by the appellant do not assist the Crown to establish beyond reasonable doubt the inference that the appellant intended to purchase $80,000 worth of methamphetamine. As to the money laundering offence, not all of the money was alleged to have come from the sale of illicit drugs and the Crown was not in a position to quantify the amount of that money which was derived from the sale of illicit drugs. Additionally, the quantities of drugs involved in counts 1 and 5 do not relate to quantities approaching 100 g. Count 1 related to nine separate dealings over the period 21 March 2014 to 23 June 2014 which involved a total of 7.71 g of methamphetamine. Count 5 was for possession of 0.3 g of methamphetamine, and 4 MDMA tablets with an MDMA content of 0.2 g. This all suggests that the appellant had been dealing in quantities of illicit drugs far less than 100 g.
In our opinion, having regard to the combination of all of the relevant evidence, it is at least a reasonable inference that the appellant intended to purchase only $10,000 worth of pure methamphetamine which, based on the expert evidence adduced at trial, would have weighed about 28 g. In these circumstances, the learned sentencing judge could not have been satisfied beyond reasonable doubt that the appellant intended to purchase at least 100 g of pure methamphetamine and his Honour erred in so doing. Instead, the appellant should have been sentenced on the basis that he attempted to purchase approximately 28 g of pure methamphetamine for $10,000.
Ground 2 has been made out. The sentence on count 3 should be set aside and this court should resentence the appellant.
Ground 1 - unnecessary to decide
As ground 2 has been made out, it is unnecessary to decide ground 1.
Resentencing
In addition to the material before the sentencing judge, the appellant put before this court material which he asked this court to take into account in the event that he came to be resentenced. The appellant is to be resentenced upon this material and the material before the sentencing judge.
The appellant is a Federal offender who must be sentenced in accordance with the provisions in pt 1B of the Crimes Act 1914 (Cth) (Crimes Act).
When sentencing a Federal offender, a court must impose a sentence that is of a severity appropriate to all of the circumstances of the offence: s 16A(1) of the Crimes Act. The court must consider the factors set out in s 16A(2) of the Crimes Act, if those matters are relevant and known to the court, although the list of factors is not exhaustive. Other common law principles of sentencing, including totality, apply in order to determine a sentence of a severity appropriate in all of the circumstances of the offence.[46]
[46] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 528 [23] ‑ [25].
Division 4 of pt 1B of the Crimes Act governs the fixing of non‑parole periods and the making of recognisance release orders.
The appellant will be resentenced in accordance with the principles referred to above.
The maximum penalty for count 3 at the time of offending was 25 years' imprisonment and/or a fine of $850,000.
The relevant considerations in sentencing for offences of the type committed by the appellant are well known and established. Deterrence, both general and specific, is of paramount importance. Generally, personal factors, while not irrelevant, will carry less weight. The weight of the drugs involved is a relevant consideration, but will not generally be the most important factor. The purity of the drugs, where it is known, is often regarded as significant. The sophistication of the illegal enterprise and the role that the offender played in it are relevant considerations, though it may often be difficult to determine an offender's place in the drug hierarchy.[47]
[47] Rajabizadeh v The Queen [2017] WASCA 133 [34].
The appellant committed the offence for commercial gain. It is plain that, had he obtained the quantity of methamphetamine that he attempted to possess, being approximately 28 g, he would have sold it for profit. The appellant liaised with both the unknown male and Mr Laird to obtain what he expected to be a reasonably substantial quantity of methamphetamine. He pursued the possession of the drug with persistence. He undertook to pay Mr Laird and arrived at the Edgewater train station with sufficient funds to do so. The offence was committed in the context that the appellant had been engaged, for some months, in the sale of small quantities of methamphetamine.
It is not possible to say exactly where the appellant was placed in the drug hierarchy. All that can be said is that he was subservient to the unknown male, but higher than Mr Laird.
The appellant does not have youth on his side. He has a modest criminal record. He has two young children. Those children live with the appellant's partner from whom he lived separately. There was no evidence of the probable effect that his incarceration would have on his family or dependents.
His Honour considered that the appellant had generally been a law‑abiding citizen of good character, but given the need to impose a deterrent sentence, that was not a matter of great mitigating weight.
The appellant was convicted after trial. The fact that he went to trial is not aggravating, but he cannot avail himself of the mitigation that would have been available had he pleaded guilty. Nor can it be said that he was genuinely remorseful for what he had done.
As to the appellant's prospects of rehabilitation, it was noted in the pre‑sentence report that the appellant had not accepted responsibility for his offending and, despite intending to remain drug free in the future, it was suggested that the appellant held some antisocial attitudes around drug misuse. The additional material available to this court indicates that the appellant's attitudes may be changing for the better. Nevertheless, on all of the material before the court, we are unable to come to any firm conclusion one way or the other as to his prospects of rehabilitation.
We have had regard to the outcomes in: R v Ugur,[48] R v Oancea,[49] R v Maddocks,[50] R v Laurentiu,[51] R v Chew,[52] R v Dang,[53] Springer v The Queen,[54] R v Chea,[55] Di Tommaso v The Queen,[56] Adegoke v The Queen,[57] Mousavi v The Queen,[58] Sintat v The Queen.[59] It is unnecessary to set out the facts and circumstances of each case. In all save two the offender pleaded guilty. All offenders were couriers or involved in reasonably low level offending. None of them involved a quantity of drugs greater than 100 g.
[48] R v Ugur (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Newman and Loveday JJ, 11 August 1989).
[49] R v Oancea (1990) 51 A Crim R 141.
[50] R v Maddocks (1990) 51 A Crim R 376.
[51] R v Laurentiu (1992) 63 A Crim R 402.
[52] R v Chew [2004] NSWCCA 26.
[53] R v Dang [2004] NSWCCA 265.
[54] Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13.
[55] R v Chea [2008] NSWCCA 78.
[56] Di Tommaso v The Queen [2010] VSCA 178.
[57] Adegoke v The Queen [2013] NSWCCA 193; (2013) 234 A Crim R 280.
[58] Mousavi v The Queen [2014] WASCA 174.
[59] Sintat v The Queen [2018] NSWCCA 165.
It is also necessary to bear in mind the principle of totality, given that the appellant received sentences of imprisonment in respect of counts 1, 2 and 4, and a fine in respect of count 5. Those sentences should stand.
In our opinion, having considered and weighed all of the relevant sentencing considerations, the appropriate sentence to be imposed upon the appellant for count 3 is a sentence of 4 years' imprisonment. In our opinion, that sentence should commence 18 months after the sentences imposed on counts 1, 2 and 4, which each commenced concurrently on 9 March 2017. Thus, the total effective sentence that the appellant must serve is 5 years 6 months' imprisonment. The appellant should be eligible for parole after serving 3 years 8 months' imprisonment from 9 March 2017.
Orders
The orders that we would make are as follows:
1.Leave to appeal is refused on ground 1.
2.Leave to appeal is granted on ground 2.
3.The sentence imposed by Gething DCJ on 30 May 2017 in respect of count 3 is set aside and, in lieu thereof, the appellant is sentenced to 4 years' imprisonment.
4.The sentence on count 3 shall commence 18 months after 9 March 2017.
5.For the avoidance of doubt, the total effective sentence the appellant must serve with respect to counts 1, 2, 3 and 4 is 5 years 6 months' imprisonment.
6 The appellant shall be eligible for parole after serving 3 years and 8 months' imprisonment from 9 March 2017.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA29 OCTOBER 2018
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