Ho v The State of Western Australia - [2023] WASCA 160

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HO -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 160
CORAM:   MAZZA JA
BEECH JA
SEAWARD J

HEARD:   6 SEPTEMBER 2023
DELIVERED          :   13 NOVEMBER 2023
FILE NO/S:   CACR 13 of 2023
BETWEEN:   HUNG D HO
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 17 of 2023
BETWEEN: THUONG MICHAEL NGO
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACR 13 of 2023
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   IND 2195 of 2018
For File No:   CACR 17 of 2023
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   IND 2195 of 2018

Catchwords:

Criminal law - Appeals against sentence - Possession of trafficable quantity of methylamphetamine - Ho sentenced to 13 years 6 months' imprisonment - Ngo sentenced to 15 years 6 months' imprisonment - Was sentence imposed on Ho manifestly excessive and did it infringe parity principle - Was sentence imposed on Ngo manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Sentencing Act 1995 (WA), s 9AA

Result:

CACR 13 of 2023
Appeal allowed
Appellant resentenced

CACR 17 of 2023
Appeal dismissed

Category: D

Representation:

CACR 13 of 2023

Counsel:

Appellant	:	S R McGrath
Respondent	:	G N Beggs

Solicitors:

Appellant	:	JSY Legal
Respondent	:	Director of Public Prosecutions (WA)

CACR 17 of 2023

Counsel:

Appellant	:	K Kumar
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Finola Barr Law Practice
Respondent	:	Director of Public Prosecutions (WA)

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

Gaskell v The State of Western Australia [2018] WASCA 8
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78
House v The King [1936] HCA 40; (1936) 55 CLR 499
Julien v The State of Western Australia [2021] WASCA 79
Kabambi v The State of Western Australia [2019] WASCA 44
Mehta v The State of Western Australia [2023] WASCA 24
Nguyen v The State of Western Australia [2023] WASCA 151
Ramachandran v The State of Western Australia [2021] WASCA 54
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Stanley v The State of Western Australia [2018] WASCA 229
Stoysich v The State of Western Australia [2014] WASCA 208
The State of Western Australia v Edwards [2022] WASCA 141
Trainor v The State of Western Australia [2021] WASCA 36
Watson v The State of Western Australia [2022] WASCA 80
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JUDGMENT OF THE COURT:

Summary

The appellants, Mr Ngo and Mr Ho, are cousins. Together, they travelled by train from Sydney to Perth. Prior to their departure, they collected two locked suitcases. They loaded the suitcases into their car and drove to the Central Station in Sydney. Each of Mr Ngo and Mr Ho checked one locked suitcase into the luggage compartment of the train and received a receipt.
At about 3.00 pm on 4 August 2018, Mr Ngo and Mr Ho disembarked from the train at East Perth. Each of them retrieved their suitcase. Together, they went to a taxi rank. As the taxi driver placed the suitcases into the boot, Mr Ngo said to the driver words to the effect of, 'Gently, man'. Mr Ho said to Mr Ngo words to the effect of, 'Are you worried - worried that the ice will break?', to which Mr Ngo laughed. Mr Ho then said, 'Worried that the ice will be smashed'. This exchange, in Vietnamese, was captured on CCTV footage and was interpreted at trial.
Mr Ngo directed the taxi driver to an address in the suburb of Wilson, where he and Mr Ho were to drop off the suitcases. However, before they could do so, police stopped the taxi. Both men were arrested. In Mr Ngo's suitcase, police found 17 individual packages of methylamphetamine, which weighed, in total, 16.405 kg with a purity of between 80% and 85%. In Mr Ho's suitcase, police found 16 individual packages of methylamphetamine, which weighed, in total, 15.897 kg with a purity of between 82% and 84%.
Mr Ngo and Mr Ho were charged on the same indictment with separate offences of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a), read with s 34(1)(a), of the Misuse of Drugs Act 1981 (WA). Count 1 referred to the methylamphetamine inside Mr Ngo's suitcase, while count 2 referred to the methylamphetamine in Mr Ho's suitcase. The maximum penalty for the offence is life imprisonment.
On 7 November 2022, after a trial before Shepherd DCJ and a jury, Mr Ngo and Mr Ho were found guilty as charged.
On 22 December 2022, Mr Ngo was sentenced to 15 years 6 months' imprisonment. Mr Ho was sentenced to 13 years 6 months' imprisonment. Each of them was made eligible for parole and the sentences were backdated to commence on 18 June 2022. The difference between the sentences was due primarily to a finding by the sentencing judge that Mr Ngo's culpability was greater than Mr Ho's. In that regard, in broad summary, Mr Ngo had already undertaken three deliveries - albeit of cash, not drugs - for the organisers, to whom he owed a debt. Mr Ho, by contrast, was recruited by Mr Ngo, had no prior involvement and obtained no financial benefit from his offending.
Each of Mr Ngo and Mr Ho appeals to this court against sentence. Mr Ngo relies on one ground, being that the sentence was manifestly excessive. Mr Ho relies on two grounds. Ground 1 alleges that the sentence imposed upon him infringed the parity principle, in that there was insufficient disparity between the sentence imposed upon him and that imposed upon Mr Ngo. Ground 2 alleges that the sentence imposed upon him was manifestly excessive. In each case, the question of leave to appeal has been referred to the hearing of the appeal.
While the sentence imposed on Mr Ngo was high, it is not manifestly excessive. We would dismiss his appeal. However, we would allow Mr Ho's appeal on the basis that ground 1 has been made out. We would resentence Mr Ho to 11 years and 6 months imprisonment. Our reasons for these conclusions are as follows.

The facts

The following summary of the facts of the offending comes from Shepherd DCJ's sentencing remarks, which are unchallenged in this appeal.
Prior to the commission of count 1, Mr Ngo had accumulated debts totalling approximately $15,000 arising from his drug use, gambling and money advanced to him by loan sharks. He had been subjected to physical and verbal threats by those to whom he owed the debts. Eventually, the appellant agreed that in exchange for delivering quantities of cash interstate, he would work off his debts by $2,500 per trip.
Prior to the making of his first trip, Mr Ngo provided the organisers with his passport photograph, following which he was provided with three complete and different sets of identification in false names, comprising a driver's licence, a Medicare card, and a bankcard. Mr Ngo was also provided with an encrypted mobile telephone that was used to receive messages from those who were providing him with instructions in connection with his trips. At some later stage, he was also provided with a 'burner' mobile telephone.
On three occasions, in March, May and June 2018, Mr Ngo travelled from Sydney to Perth with suitcases that contained cash. The first two trips were by air, and the third was by train. On each occasion, Mr Ngo collected the suitcase, took it to the airport or train station, and purchased a ticket to Perth using one of the false names for which he had been provided identification documents. Upon arrival in Perth, Mr Ngo took the suitcase to an address he had been given. Mr Ngo knew that what he was doing was illegal, and he saw, on at least two occasions, that the suitcases were full of cash.
It was against this background that Mr Ngo came to commit count 1 on the indictment. Mr Ngo was tasked with transporting two suitcases on the Indian Pacific train from Sydney to Perth.
Mr Ho's involvement in count 2 stemmed from his relationship with Mr Ngo.
Mr Ngo and Mr Ho had grown up together in Sydney. Eventually, Mr Ho moved to Melbourne. Sometime prior to 1 August 2018, Mr Ngo contacted Mr Ho to enlist his assistance to transport the two suitcases. Mr Ngo asked Mr Ho to provide a passport photograph for the purpose of having the organisers arrange for false identification documents to be made for Mr Ho. Mr Ngo chose Mr Ho to assist him because Mr Ho was someone he could trust implicitly.
On 1 August 2018, Mr Ho flew from Melbourne to Sydney. Mr Ngo collected Mr Ho from the airport. Later, after Mr Ngo received an encrypted mobile telephone message, he and Mr Ho, together, went to collect the suitcases. The suitcases were collected from the back of a utility. Once the suitcases were loaded into Mr Ngo's car, the two men were driven straight to the Central Station.
CCTV footage taken at the station showed each of Mr Ngo and Mr Ho wheeling one suitcase onto the platform to board the train. As already mentioned, the suitcases were taken onboard and stored in the luggage compartment of the train. Each suitcase was locked. There was no evidence that either Mr Ngo or Mr Ho removed the locks or that they viewed the interior of the suitcases during their journey. While Mr Ngo and Mr Ho did not know the precise quantity of what was packed in each suitcase, because they lifted and carried the suitcases, they knew from the weight alone that there was a substantial risk there was a 'significant amount' of methylamphetamine inside each suitcase.
The trip to Perth took about three days. During the trip, Mr Ho expressed to Mr Ngo, on a number of occasions, worry and concern about what they were both doing. While the sentencing judge found that Mr Ho knew that he was engaging in illegal activity, her Honour was unable to make a finding that, at the time he was contacted by Mr Ngo, Mr Ho knew he would be transporting a prohibited drug into Western Australia. Her Honour also made no finding that Mr Ho positively knew he was transporting methylamphetamine before he boarded the train. Plainly, and consistently with the jury's verdict, Mr Ho became aware that the suitcases contained methylamphetamine before his arrest. As to when he gained that knowledge, her Honour said that she was satisfied beyond reasonable doubt that 'at least and at the latest during that train journey to Perth', Mr Ngo told Mr Ho that he was carrying methylamphetamine. In that regard, her Honour pointed to the conversation outlined in [2] above, as revealing Mr Ho's knowledge that he was carrying methylamphetamine. As for Mr Ngo, her Honour said:[1]
In respect of you, Mr Ngo, I am satisfied that you knew that you were taking a prohibited drug from Sydney to Perth. And that is the very reason why you then recruited Mr Ho, as your trusted cousin, to come with you.
[1] ts 1175.

Personal circumstances - Mr Ngo

Mr Ngo was aged 25 at the time of the offending and 29 at sentencing. His parents immigrated to Australia in the 1980s. Mr Ngo was born in Sydney, is an Australian citizen, and has three sisters and a brother. Although his childhood was strict, it was positive, with no major incidents or trauma. He has strong family ties and has the support of his long‑term partner.
After completing year 12, Mr Ngo has worked as an apprentice electrician, a truck off‑sider, and he has done some concreting work. Her Honour described Mr Ngo as having a 'really good work ethic'. Many character references were provided to her Honour, which described Mr Ngo's good qualities. Her Honour found that Mr Ngo has support in the community, which spoke to his good prospects of rehabilitation and a reduced risk of reoffending.
According to the written sentencing submissions filed on Mr Ngo's behalf, Mr Ngo was using cocaine four to five days per week between 2016 and 2018 and had developed 'negative peer associations'. His gambling debts stemmed from his use of poker machines. Mr Ngo has no prior convictions and was sentenced on the basis that he was of prior good character.

Personal circumstances - Mr Ho

Mr Ho was aged 27 at the time of the offending and 31 at sentencing. Like Mr Ngo, Mr Ho had a strict, but fair, upbringing. He is the youngest of four siblings, and had a happy childhood. He has strong family ties that remain despite his conviction.
The sentencing judge received many references attesting to Mr Ho's prior good character and, in particular, his involvement in the Buddhist community. Her Honour acknowledged that Mr Ho had a 'good work history'. He has dyslexia, as a consequence of which his ability to read and write is limited. According to the written sentencing submissions filed on his behalf he has had no issues with drugs or alcohol.
Mr Ho is married and has two young children. Mr Ho's wife is supportive of him.
Mr Ho has no prior convictions, and her Honour found that he was of prior good character as at 4 August 2018.

The sentencing remarks

Her Honour found that Mr Ngo's criminality was higher than that of Mr Ho. Her Honour noted that Mr Ngo was 'clearly closer' to the organisers of the enterprise, having regard to the three earlier trips he had made and that he had been provided with an encrypted mobile telephone and a burner mobile telephone. Her Honour considered that Mr Ngo had 'earned the trust of those sitting above [him] in this drug enterprise when [he] had successfully followed instructions and delivered the suitcases of cash'.
Her Honour characterised Mr Ngo's role in the enterprise as that of a courier. She observed that this role was not fleeting, nor was it unimportant. He was the 'essential cog' by which significant amounts of methylamphetamine were transported into Western Australia.
Her Honour accepted that Mr Ngo played no role beyond delivering the drugs to the nominated address in Perth, and that he played no role in packaging the drugs into the suitcase. There was no evidence that he had ever touched the drugs.
Her Honour found that there was an element of commerciality in Mr Ngo's offending because his participation in the enterprise was to pay down the debts that he owed. While her Honour accepted that Mr Ngo had been subject to physical assaults and threats from those to whom he owed money, this was not a matter of significant mitigation.
Her Honour characterised Mr Ho's role as being 'a courier at the very bottom of the chain'. However, his role was not fleeting, as he was on the train for three days. Her Honour accepted that Mr Ho had no involvement with any of the organisers of the enterprise and had not instigated the offending. She said that his role was 'to really lend support' to Mr Ngo 'in ensuring the safe delivery of the drugs'. She also accepted that Mr Ho's decision to be involved in the offence was because of the strong family ties and the close relationship he had with Mr Ngo, and that Mr Ho did not benefit financially from his role.
Her Honour referred to the personal circumstances of Mr Ngo and Mr Ho. She considered Mr Ngo and Mr Ho to have similar, positive antecedents. She found that each posed a low risk of reoffending. Her Honour accepted that both appellants would suffer additional hardship as a result of being in prison in Western Australia away from their families on the east coast. She said that she moderated their sentences 'slightly' to take into account this factor.

The seriousness of the offending

In describing the offending as 'extremely serious', her Honour expressly referred to the principal sentencing considerations relating to drug offending of the kind engaged in by Mr Ngo and Mr Ho, namely general and personal deterrence. Her Honour noted that matters personal to an offender are almost always subsidiary considerations in such cases, although they are not completely irrelevant. While her Honour accepted that Mr Ngo was physically assaulted and threatened and thus under 'pressure' from the organisers of the enterprise to participate in it, this was not a matter of 'significant mitigation'.
Her Honour noted that the quantity of the drugs carried by each of Mr Ngo and Mr Ho was 'enormous'. In August 2018, 16 kg of methylamphetamine was valued between $8 million and $32 million, depending upon the quantities in which it was sold.

Her Honour's remarks on the issue of parity

Her Honour addressed the issue of parity. She considered that the parity principle applied to the case and, in particular, to Mr Ho's sentencing. Her Honour said, in effect, that she would not differentiate the sentences to be imposed upon Mr Ngo and Mr Ho on the basis of their antecedents, which she considered were 'similar'. However, in the application of the parity principle, her Honour differentiated the sentences to be imposed in favour of Mr Ho on the basis of her finding that Mr Ngo's criminality was greater than Mr Ho's.

Some general principles

In each appeal, it is alleged that the individual sentence imposed was manifestly excessive. The relevant legal principles applicable to an allegation of manifest excess are well known. We adopt without repetition the statement of those principles in Kabambi v The State of Western Australia.[2]
[2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
For present purposes, it is enough to say that an appellant who alleges that a sentence is manifestly excessive faces a considerable challenge. It is not enough to merely persuade an appellate court that, had it sentenced the offender at first instance, it would have imposed a different sentence. What is required is to demonstrate that the sentence in question was so unreasonable or unjust that the appellate court concludes that a substantial wrong has occurred.
The orthodox approach to an allegation of manifest excess is to analyse the sentence having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
Turning to the parity principle, we repeat the statement recently made in Nguyen v The State of Western Australia:[3]
The principles relating to the parity principle are well established and have been referred to by this court on many occasions. Convenient summaries of those principles can be found in Higgins v The State of Western Australia [[2019] WASCA 78; (2019) 54 WAR 342] and Garlett‑Exell v The State of Western Australia [[2020] WASCA 179].
Recently, in McKay v The State of Western Australia [[2023] WASCA 140], Mitchell JA summarised the operation of the parity principle as follows:
'The operation of the parity principle has been summarised in a number of recent decisions of this court, including Siskopoulos v The State of Western Australia [[2022] WASCA 138 [39] ‑ [45]], and Gianguilio v The State of Western Australia [[2022] WASCA 77 [60] - [71]]. In essence, the principle is concerned to ensure appropriate consistency in the sentencing of co-offenders. It applies where disparity or lack of disparity in the sentencing outcome can give rise to objectively justifiable sense of grievance on the part of one of the offenders. The parity principle is concerned with substance rather than form, and the application of the principle will vary according to the facts and circumstances of the case. The application of the parity principle may require a reduction in a sentence that is not otherwise manifestly excessive. However, the principle does not require the imposition of a sentence that is wholly inadequate or so lenient as to be an affront to the proper administration of justice.'
[3] Nguyen v The State of Western Australia [2023] WASCA 151 [65] - [66].

A judge's application of the parity principle involves a discretionary judgement to which the principles in House v The King[4] apply.[5] The appellant did not suggest that the sentencing judge failed to apply the parity principle or made any express error in the application of that principle. Consequently, the question raised by the ground of appeal is whether the disparity in the relevant sentences was open in the exercise of the sentencing discretion; it is not whether this court would have exercised the discretionary judgement in relation to parity differently.[6]
[4] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.
[5] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40].
[6] Mehta v The State of Western Australia [2023] WASCA 24 [208]; Nguyen [68].
Finally, the general sentencing considerations for serious drug offences of the kind committed by each of Mr Ngo and Mr Ho are well established and were conveniently summarised in Gaskell v The State of Western Australia,[7] as follows:
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often 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. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did. (footnotes omitted)
[7] Gaskell v The State of Western Australia [2018] WASCA 8 [128] - [129].

Mr Ngo's appeal

It is convenient to first deal with Mr Ngo's appeal, which relies on the single ground that his sentence of 15 years 6 months' imprisonment is manifestly excessive.

Mr Ngo's submissions

In essence, counsel for Mr Ngo submits that he was 'the equivalent of a [drug] mule', whose only function in the enterprise was to transport the methylamphetamine from Sydney to Perth. He had no role in the acquisition or distribution of the methylamphetamine in the community. It was said that Mr Ngo assumed all of the risk and was 'entirely dispensable' to the organisers of the enterprise. Furthermore, that he stood to gain only modest financial reward. It was submitted that in these circumstances, Mr Ngo's criminality was low, and the sentence imposed upon him was manifestly excessive.

Disposition

As already stated, the maximum penalty for the offence committed by Mr Ngo is life imprisonment. This penalty, which applies only to offences involving a trafficable quantity of methylamphetamine (that is, more than 28 g of the drug), came into effect from 18 September 2017. Previously, the maximum penalty for the offence committed by Mr Ngo was 25 years' imprisonment and/or a fine of $100,000. Generally, it should be expected that an increase in the maximum penalty for an offence will result in increased sentences for that offence.
In Ramachandran v The State of Western Australia,[8] this court reviewed sentencing standards for offences involving the possession, sale or supply of multiple kilograms of methylamphetamine, both before and after the increase of the maximum penalty to life imprisonment. It is unnecessary to refer in detail to this analysis.
[8] Ramachandran v The State of Western Australia [2021] WASCA 54 [54] ‑ [60].
Since the increase of the maximum penalty, there have been few cases decided by this court that considered whether an individual sentence for an offence of possession of multiple kilograms of methylamphetamine with intent to sell or supply it to another was manifestly excessive or inadequate.
In Ramachandran, the offender pleaded guilty to two offences of which one (count 1) was an offence of possession of 32.572 kg of methylamphetamine with intent to sell or supply, where his involvement in the operation in question was at a relatively low level in the criminal syndicate that organised the importation of the drugs for the purpose of selling them. The offender was given a 22% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) (the SA) for his guilty pleas. This court found that the sentence of 19 years 10 months' imprisonment was manifestly excessive and resentenced the offender to 16 years' imprisonment.
In Trainor v The State of Western Australia,[9] this court upheld a sentence of 14 years' imprisonment imposed upon an offender who possessed approximately 4 kg of methylamphetamine. The offender in this case entered a plea of guilty at the first reasonable opportunity and received a 25% discount under s 9AA of the SA. His role in the offence was to securely store large quantities of drugs for others.
[9] Trainor v The State of Western Australia [2021] WASCA 36.
In Watson v The State of Western Australia,[10] leave to appeal against an individual sentence of 10 years' imprisonment in respect of supplying approximately 4 kg of methylamphetamine to another (as part of a total effective sentence of 13 years' imprisonment for the drug offence and possession of approximately $6 million, being the proceeds of drug offences) was refused. In this case, the offender was found to have been 'an ambitious and enthusiastic supporter of the enterprise', who dropped a backpack containing the methylamphetamine the subject of the charge in some bushland in a park. His offending was 'not an aberration or a one‑off', and his activities involved 'counting, packaging, and delivering or receipt of' the money, being the proceeds of the sale of drugs. The offender was given a 20% discount, pursuant to s 9AA of the SA, for his guilty plea.
[10] Watson v The State of Western Australia [2022] WASCA 80.
In The State of Western Australia v Edwards,[11] the offender was convicted on his pleas of guilty of two counts of selling or supplying trafficable quantities of methylamphetamine (approximately 119 kg and 43 kg, being counts 1 and 2, respectively) and one count of money laundering. For each of the drug offences, the offender received 14 years' imprisonment. The State contended that the individual sentences for these offences were manifestly inadequate. This court allowed the State's appeal and resentenced the offender, after maintaining the discount of 25% under s 9AA of the SA, to 17 years' imprisonment with respect to count 1 and 15 years' imprisonment with respect to count 2. The offender was apparently at a relatively low level in the criminal syndicate, who, like the appellants in the present case, transported the drugs into Western Australia from the eastern states.
[11] The State of Western Australia v Edwards [2022] WASCA 141.
The cases decided since the increase in the maximum penalty do not clearly point to the individual sentence imposed on Mr Ngo being manifestly excessive. On one view, it might be thought that the outcomes in Ramachandran or Edwards, which involved even greater quantities of methylamphetamine, indicate manifest excess in this case. However, such a view is unsound.
This is because, as the High Court pointed out in Wong v The Queen,[12] the gravity of a drug offence is not to be assessed solely or chiefly by the weight of the relevant prohibited drug. What is important is the assessment of all of the relevant circumstances of the offending, which include not only the quantity (and purity) of the drug but also, as stated in Edwards at [38], the nature of the drug enterprise in which the offender was involved, the role played by the offender in that enterprise, the offender's motive for becoming involved in the enterprise, whether the offender pleaded guilty, and the offender's personal circumstances, as well as the level of an offender's participation in the drug enterprise.
[12] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73].
Mr Ngo's offending was, on any view, very serious. Notwithstanding that he was not involved in the planning and organisation of the enterprise and that his role was solely to transport the methylamphetamine from Sydney to Perth, his involvement in the enterprise was not fleeting or decided on the spur of the moment or a one‑off.
Mr Ngo is not to be punished for the three trips he took in which he transported quantities of cash from Sydney to Perth. However, these trips provide context to the commission of the offence before the court. It may be inferred that he appreciated the serious criminal nature of the enterprise and, at least to some extent, its scale. He must have known that it was a significant interstate criminal organisation, whose activities were capable of generating large quantities of cash and which was able to create false identity documents.
In respect of the commission of count 1, Mr Ngo agreed to transport methylamphetamine across the country to Perth. With this knowledge and, evidently, with the intention of reducing the risk of detection, Mr Ngo recruited his cousin, Mr Ho, to assist him. This was a seriously aggravating factor and goes beyond the notion that he was a 'mere courier'. Although he was aware that he was engaging in illegal activity, there is no evidence and no finding by the sentencing judge that Mr Ho was informed before he boarded the Indian Pacific that he and Mr Ngo were transporting methylamphetamine to Western Australia. Mr Ngo's recruitment of Mr Ho, which took advantage of Mr Ho's family loyalty, needlessly exposed the latter to the risk, which eventuated, of detection, prosecution, and the imposition of a long term of imprisonment.
Another aggravating factor is the quantity of methylamphetamine that Mr Ngo transported. While we accept that he was not aware of the precise weight of the drug, having handled the suitcase he must have been aware that he was transporting a very significant quantity of methylamphetamine.
There were few mitigating factors and none of them was of great weight. Unlike, for example, the cases referred to in [46] ‑ [49] above, Mr Ngo did not have the advantage of a substantial discount for pleading guilty. Nor was he a youthful offender. We do not ignore that he was found to be of prior good character, that he had a very supportive family, and that he was unlikely to reoffend. These factors do not carry as much weight because of the need for general deterrence. The fact that Mr Ngo will suffer hardship because he will be required to serve his sentence away from his family does not carry much weight when the prospect of imprisonment in Western Australia was an obvious risk of bringing the methylamphetamine into this State.
There was a commercial dimension to Mr Ngo's offending. The financial reward he was to receive was, however, modest. It is, nevertheless, a relevant sentencing factor.
Plainly, Mr Ngo's criminality is significantly less than those who organised the criminal enterprise that resulted in the offence. Nevertheless, Mr Ngo's criminality is significant. Persons who transport large quantities of prohibited drugs play a vital role in the distribution of those drugs into the community. It is not a role that should be dismissed as minor or unimportant. Even accepting that Mr Ngo was exploited by those above him in the criminal enterprise, and he was not as culpable as them, he consciously chose to commit the offence. As her Honour stated in her sentencing remarks, the fact that Mr Ngo was subject to threats and the like could not, in the circumstances of the case, afford significant mitigation.
Having evaluated all of the relevant facts and circumstances and bearing in mind the sentencing principles applicable to offences of the kind committed by Mr Ngo, we regard the sentence that was imposed on Mr Ngo for count 1 as being high, but not beyond an appropriate exercise of her Honour's sentencing discretion. In our opinion, in the end, the sentence does not reach, although it approaches, a length which could properly be characterised as unreasonable or plainly unjust. Had the sentence been any longer, the position may very well have been different. Implied error has thus not been established. While we would grant leave to appeal, the ground of appeal has not been made out. Accordingly, Mr Ngo's appeal must be dismissed.

Orders

For the reasons we have given, the orders that we would make are as follows:
In respect of CACR 17 of 2023:
1.Leave to appeal is granted.
2.The appeal is dismissed.
We now turn to Mr Ho's appeal.

Mr Ho's appeal

As we have stated, we would uphold ground 1.

Mr Ho's submissions

It was submitted on behalf of Mr Ho that, having regard to his lesser criminality compared to that of Mr Ngo, there was insufficient disparity between the sentence that was imposed on him, on the one hand, and the sentence that was imposed on Mr Ngo, on the other. In effect, it was submitted on behalf of Mr Ngo that the two‑year disparity between the sentence that was imposed upon Mr Ngo and the sentence that was imposed upon him gave rise to an objectively justifiable sense of grievance on his part because it did not adequately reflect his substantially lower criminality in the commission of the offence.
It was submitted on behalf of the respondent that while Mr Ho's criminality was lower than Mr Ngo's, the disparity of two years between the sentences imposed upon them was adequate having regard to all of the relevant facts and circumstances. The respondent submitted, in effect, that Mr Ho has not demonstrated his contention that the lack of disparity in the sentencing outcome gave rise to an objectively justifiable sense of grievance on his part.

Disposition

The legal principles applicable to ground 1 are set out at [38] and [39] above.
The parties argued ground 1 of Mr Ho's appeal on the basis that they had, in effect, been convicted of a common offence. While this is not strictly speaking true, the application of the parity principle does not require that the charges be identical. Because the parity principle is concerned with substance rather than form, it may operate in a number of situations, including, as in the present case, where the relevant offenders are engaged in the same criminal enterprise and where the circumstances of the offences are very closely aligned.[13]
[13] Higgins v The State of Western Australia [2019] WASCA 78 [23]; Stoysich v The State of Western Australia [2014] WASCA 208 [43].
Whether the relevant disparity in this case gives rise to a legitimate sense of grievance must be determined on the basis of the facts found by the sentencing judge.[14]
[14] Nguyen [69].
There was no material difference in the antecedents of Mr Ngo and Mr Ho. However, there can be no doubt, and it is common ground, that Mr Ngo's criminality was greater than that of Mr Ho. Relevantly:
(1)Mr Ngo, unlike Mr Ho, had a prior and active involvement with the criminal enterprise behind the offences with which this appeal is concerned, including in undertaking three deliveries of cash. Mr Ho had no prior involvement of any kind.
(2)Mr Ngo knew, prior to the departure from Sydney on 1 August 2018, that the suitcases he and Mr Ho were carrying contained methylamphetamine. On the judge's findings, it could not be found that Mr Ho knew of the contents of the suitcases until he was on the train to Perth.
(3)Mr Ngo, in effect, took advantage of Mr Ho's family loyalty to him and enlisted Mr Ho's assistance in the venture.
(4)Mr Ngo's motive for committing the offence was largely commercial, albeit he stood to gain little for the risk involved in committing the offence. Mr Ho had no commercial motive and obtained no financial benefit. He agreed to participate out of misguided loyalty to Mr Ngo.
(5)Unlike Mr Ngo, Mr Ho had no contact with the organisers of the enterprise.
In our opinion, Her Honour's characterisation of Mr Ho's role as being 'a courier at the very bottom of the chain' properly reflects the nature and extent of what Mr Ho did and his role in the overall drug enterprise. Mr Ngo's role, while not involving the criminality of the organisers of the enterprise, was much greater than that of Mr Ho.
In our opinion, the differences in their respective criminality required a substantial disparity, in favour of Mr Ho, in the sentences that were imposed. Because Mr Ngo's criminality was so much greater than Mr Ho's, as outlined in [68] above, a disparity of two years is so low as to reveal error and gives rise to an objectively justifiable sense of grievance on Mr Ho's part. With great respect to the sentencing judge, the disparity between the sentences imposed upon Mr Ngo, on the one hand, and Mr Ho, on the other, should have been markedly greater, resulting in a lesser sentence for Mr Ho.
Accordingly, leave to appeal should be granted on Mr Ho's appeal. Ground 1 has been made out. The sentence imposed by her Honour on Mr Ho should be set aside. It is for this court to now resentence him. As ground 1 has been made out and this court's discretion to resentence Mr Ho has been enlivened, it is unnecessary to deal with ground 2 of Mr Ho's appeal. However, given our conclusions that (i) the sentence imposed on Mr Ngo was high, approaching although not reaching a sentence that was manifestly excessive, and (ii) the two‑year disparity between Mr Ho's sentence and Mr Ngo's sentence, there may well have been merit in ground 2.

Resentencing

This court has all of the materials to enable it to properly resentence Mr Ho. It is unnecessary to repeat what has already been said about the facts and circumstances of the offending, including Mr Ho's role. His personal circumstances are favourable. The sentencing judge identified a number of mitigating factors which we would apply in the resentencing, although they are not of great weight.
Accepting that Mr Ho's role in the commission of the offence was low does not mean that what he did was undeserving of significant punishment.
Mr Ho was aware that he was being recruited to undertake an illegal enterprise that involved him carrying, from Sydney to Perth, a large quantity of what could only be, on the evidence, described as illegally obtained cash or prohibited drugs. He cooperated in the creation of false identity for him. When Mr Ho wheeled the suitcase along the platform at the Sydney train station, in order to check it in, he knew that there was a substantial risk that there was a significant quantity of methylamphetamine in it. That was sufficient knowledge for the purpose of possession.[15] On the judge's findings, Mr Ho became positively aware at some point on the journey that the suitcases contained methylamphetamine. When he arrived, he collected the suitcase containing what he knew to be methylamphetamine and took it to the taxi with the intention of taking it to others involved in the enterprise, from where it would ultimately be distributed into the community.
[15] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [28], [46], [180] ‑ [192]; Julien v The State of Western Australia [2021] WASCA 79 [53].
Mr Ho must have been aware that the suitcase contained a considerable quantity of the methylamphetamine. The quantity is significant. Its potential harm to the community was great. There remains, in Mr Ho's case, the need to generally deter others who might involve themselves in such an enterprise, even where the motive is not commercial. This is because persons such as Mr Ho still play a vital role in the distribution of illicit substances into the community.

Having regard to all of the relevant facts and circumstances, including the maximum penalty for the offence, Mr Ho's role in the enterprise, his personal circumstances, and the mitigating factors, we would impose a sentence of 11 years 6 months' imprisonment. Mr Ho is eligible for parole and his sentence is backdated to commence on 18 June 2022.

Orders

For the reasons we have given, the orders that we would make are as follows:
In respect of CACR 13 of 2023:
1.Leave to appeal on ground 1 is granted.
2.Leave to appeal on ground 2 is refused.
3.The appeal is allowed.
4.The sentence imposed upon Mr Ho on 22 December 2022 is set aside.
5.Mr Ho is resentenced to 11 years 6 months' imprisonment, with eligibility for parole. The sentence is backdated to commence on 18 June 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Mazza
13 NOVEMBER 2023