Hoang v The State of Western Australia
[2015] WASCA 130
•26 JUNE 2015
HOANG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 130 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:114/2014 | 20 MARCH 2015 | |
| Coram: | BUSS JA MAZZA JA CHANEY J | 26/06/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VAN UT HOANG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Whether sentencing judge acted on wrong facts Alleged error in interpretation Sentencing Whether sentence reflected overall criminality Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 9AA |
Case References: | Bahn v The State of Western Australia [2008] WASCA 40 Bond v The State of Western Australia [2011] WASCA 123 Galbraith v The State of Western Australia [2011] WASCA 70 Guler v The State of Western Australia [2014] WASCA 83 Kitis v The State of Western Australia [2013] WASCA 34 Lai v The State of Western Australia [2012] WASCA 181 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 Monument v The State of Western Australia [2007] WASCA 239 Ozan v The State of Western Australia [2013] WASCA 27 Pham v The State of Western Australia [2011] WASCA 244 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Roffey v The State of Western Australia [2007] WASCA 246 Ruvinovski v The State of Western Australia [2013] WASCA 204 Sabau v The State of Western Australia [2010] WASCA 3 Tanner v The State of Western Australia [2013] WASCA 142 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v BLM [2009] WASCA 88 The State of Western Australia v Toothill [2007] WASCA 236 Tran v The State of Western Australia [2013] WASCA 77 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOANG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 130 CORAM : BUSS JA
- MAZZA JA
CHANEY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 156 of 2014
Catchwords:
Criminal law - Appeal against sentence - Whether sentencing judge acted on wrong facts - Alleged error in interpretation
Sentencing - Whether sentence reflected overall criminality - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms B J Lonsdale
Respondent : Mr J A Scholz
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bahn v The State of Western Australia [2008] WASCA 40
Bond v The State of Western Australia [2011] WASCA 123
Galbraith v The State of Western Australia [2011] WASCA 70
Guler v The State of Western Australia [2014] WASCA 83
Kitis v The State of Western Australia [2013] WASCA 34
Lai v The State of Western Australia [2012] WASCA 181
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Monument v The State of Western Australia [2007] WASCA 239
Ozan v The State of Western Australia [2013] WASCA 27
Pham v The State of Western Australia [2011] WASCA 244
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Roffey v The State of Western Australia [2007] WASCA 246
Ruvinovski v The State of Western Australia [2013] WASCA 204
Sabau v The State of Western Australia [2010] WASCA 3
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Toothill [2007] WASCA 236
Tran v The State of Western Australia [2013] WASCA 77
Woods v The Queen (1994) 14 WAR 341
1 BUSS JA: I agree with Chaney J.
2 MAZZA JA: I agree with Chaney J.
3 CHANEY J: On 27 May 2014, the appellant was sentenced in the District Court to a total effective sentence of nine years' imprisonment with eligibility for parole on two counts of possession of methylamphetamine with intent to sell or supply. The total effective sentence was made up of a sentence of 2.5 years' imprisonment on count 1, and 6.5 years' imprisonment on count 2, the sentences to be served cumulatively. The appellant appeals against those sentences on two grounds. Those grounds are as follows:
1. The learned sentencing Judge erred in fact and in law in finding that the Appellant had been selling drugs for a number of months in Perth and was more than just a courier; further, or in the alternative, reliance on this matter for the purpose of sentencing resulted in a miscarriage of justice.
Particulars
(i) This matter was not raised by the Respondent;
(ii) A psychological report prepared for sentencing raised that the Appellant had stated he had been selling drugs for a number of months in Perth;
(iii) Defence counsel disputed this matter;
(iv) This matter was not established beyond reasonable doubt by the calling of evidence; and
(v) The Appellant was relying on the use of interpreters to communicate and was misunderstood.
2. The total sentence imposed was disproportionate to the total criminality, having regard to the circumstances of the offending, the Appellant's pleas of guilty on the fast-track system, the personal circumstances of the Appellant and sentencing standards, thereby infringing the first limb of the totality principle.
4 On 5 October 2014, Mazza JA ordered that the application for leave to appeal on each of the grounds be referred to the hearing of the appeal.
5 At the hearing of the appeal, the appellant sought leave to adduce additional evidence directed to the alleged finding, referred to in ground 1, that the appellant had been selling drugs for a number of months in Perth and was more than just a courier.
The sentencing hearing
6 The sentencing hearing took place before Sweeney DCJ on 27 May 2014. The appellant was represented by counsel. An interpreter in Vietnamese was present at the hearing. Counsel for the appellant advised the Court that the appellant's level of English 'is reasonably good', but 'we've used interpreters basically to ensure that certain concepts were always explained in detail'. Counsel confirmed that he had had the opportunity to go through with the appellant, with the aid of an interpreter, the statement of material facts to be read by the prosecutor.
7 The facts read by the prosecutor, which were accepted by the sentencing judge, are not now challenged.
8 The facts of count 1 were that at about 4.35 pm on Friday, 4 October 2013, police stopped a vehicle being driven by the appellant. There were no other occupants of the vehicle. A search of the vehicle located a plastic bag which, in turn, contained a smaller paper bag which encased a package wrapped in tissue paper. That package was found to contain five separate clipseal bags, each of which contained approximately 26 g of methylamphetamine. The total weight of methylamphetamine was 130.5 g, and was found to have a purity of 73 - 75%. Police also located $6,200 in the offender's wallet.
9 The facts of count 2 were that at 6.50 pm on the same day, police conducted a search of a house in Maylands where the appellant was staying. There they located a plastic bag under a stairwell. The plastic bag contained more plastic bags which contained a package wrapped in tissue paper similar to the one located in the motor vehicle earlier that afternoon. That package was later separated and found to contain three separate clipseal bags containing a total weight of 349.4 g of methylamphetamine at purities ranging between 69% and 81%. Police also located $34,000 concealed in a sofa.
10 The appellant's counsel advised the sentencing judge that there was 'no difficulty with those facts'.
11 The learned sentencing judge had before her a psychological report prepared by Ms Tanina Oliveri and a pre-sentence report. The authors of those reports recited the circumstances of the offences as explained by the appellant. In some respects, those accounts as reported were broadly consistent. Essentially, those accounts were that the appellant explained that he had been gambling at a particular club in Sydney and had accumulated a large debt. He was approached by an individual who offered a loan to him to repay his debt. He accepted the loan, which he was subsequently able to repay. He continued to gamble and accumulated a greater debt and again borrowed money from the same person. Eventually, interest accumulated to the point where the appellant had no prospect of repaying the loan. The lender then threatened violence to the appellant if the loan was not repaid, but offered an opportunity to repay the debt by what the pre-sentence report described as 'transporting drugs in Perth'. The explanation recorded in the psychological report was that the appellant was 'told to repay the debt by coming to Perth to sell methylamphetamine'. The pre-sentence report recorded that associates of the lender funded the appellant's flight to Perth.
12 The psychological report recorded that the appellant 'claimed to have been selling this substance for a number of months in Perth prior to being apprehended but to have sold very little of what was given to him'.
13 A different account was recorded as having been given to the author of the pre-sentence report. That was that the appellant had received the drugs found in his possession on the day he was apprehended. The pre-sentence report recorded that the appellant said that, on the day of the offences, he received a phone call at about 4.00 pm giving him instructions to collect the package containing the drugs, and that he was then to drive to a cafe in Northbridge awaiting further instructions. He was stopped by police on the way. On that version of events, the appellant received the drugs only 35 minutes before he was apprehended.
14 During the course of submissions, the learned judge raised with the appellant's counsel the inconsistent accounts of the circumstances of the offending given to the authors of the pre-sentence report and psychological report, respectively. In response, counsel said:
I asked him a bout [sic] that last week because that concerned me. And he said to me he's - that's in the psychologist's report, I believe. I asked him about that, quizzed him about it last week, and he said he disagreed with that. He said it only happened once or twice and it was not directly sold by him, but he tells me he introduced buyers to the person above. But he tells me that he did not personally sell, but he made that connection so to speak ... (ts 16, 27/05/14).
15 In her sentencing remarks, the sentencing judge referred to the appellant's gambling debt and the circumstances that led him to Perth. She continued:
To the psychologist you said you'd been selling the drugs for a number of months in Perth prior to getting caught but you'd sold very little of what had been given to you. That's logically consistent with what you'd said about being paid money to transport drugs to Perth.
You told the author of the pre-sentence report you received these drugs on the day that you were caught. You said you received a phone call about 4 pm giving you instructions to collect a package containing the drugs. And you were then to drive to a café in Northbridge awaiting further instructions but got stopped by police on the way. So on that version of events you got the drugs only 35 minutes before you were caught.
You've said that the debt is still outstanding and that you've been threatened with violence since your arrest should you disclose any details about the organisers. In both interviews you were speaking through an interpreter, so I don't know what the explanation could be for the difference. Your counsel told me this morning that you claimed to be a courier and that you would get instructions to pick up the drugs but you would also introduce people to a person above you. If you're introducing people, whoever those people are given that you're from Sydney, you are not a courier.
16 The reference to transporting drugs to Perth is not an accurate recital of the pre-sentence report, which refers to transporting drugs in Perth, although nothing turns on that inaccuracy.
17 Because questions of possession of the money found by police were the subject of unresolved proceedings in the Magistrates Court, the sentencing judge made it clear that she was not taking account of the cash found in the appellant's possession for the purpose of sentencing. Her Honour then outlined the appellant's background and circumstances with particular reference to his gambling problems.
18 The sentencing judge noted that the quality of the drugs which were found in the appellant's possession was very high and '[i]t is clear that you were close to the source of the drug to be given access to those quantities and that quality of drug'. She identified personal and general deterrence as the dominant sentencing considerations. In that context, she examined the motivation for the appellant's offending concluding that the circumstances did not make the case exceptional.
19 Her Honour concluded that a lengthy sentence of immediate imprisonment was required. She took into account matters of mitigation including an early plea of guilty for which she allowed a maximum discount of 25%, the appellant's deprived background, his gambling addiction which increased his vulnerability and the fact that he came to Court as a first offender.
20 In concluding that an immediate term of imprisonment was called for, the sentencing judge said:
I say that because of the quantity of drugs, their high quality, your role, whether you were going to personally benefit or whether that money was to be filtered back to pay a debt.
21 The reference to 'your role' was, in my view, a reference to the role explained by the appellant's counsel. That is, the sentencing judge concluded that the appellant's role was that he was not a courier but was, in effect, facilitating sales by someone above him in the hierarchy and that he was close to the source of the drugs.
Further evidence
22 The appellant sought leave to adduce further evidence by way of an affidavit by him made in Vietnamese and an affidavit of a translator attaching a translation of the appellant's affidavit. He also gave oral evidence at the hearing of the appeal on the basis that it was received provisionally and subject to the Court's consideration of the application for leave to adduce further evidence.
23 The appellant's affidavit asserts that two factual errors were made in the course of sentencing. The first factual error is said to be the psychologist's assertion that he told her that he had been 'selling drugs for a number of months but had sold very little of what [he] had been given'.
24 The second factual error is said to be his counsel's assertion, apparently accepted by the learned sentencing judge, that the appellant had introduced drug buyers to the person who supplied him with the methylamphetamine in question. The appellant attributes those errors to either the interpreter or the psychologist misconstruing what he had been saying and, in relation to the second error, to the interpreter or his counsel misconstruing what he was saying when he explained to his counsel what he had told the psychologist.
25 In his affidavit, the appellant said that the true facts were essentially consistent with those which he had explained to the author of the pre-sentence report, namely that his instructions were to deliver drugs to someone in Perth once the person who had supplied the drugs to the appellant had found a buyer. He said that on the day in question, he received a telephone call instructing him to collect methylamphetamine from a person at a Perth hotel, he drove to the hotel and collected the drugs. He was told to take a larger bag of drugs to the house he had been staying in and to take the smaller bag to Northbridge and wait for further instructions. He followed those instructions, but he was stopped by police in Northbridge. The appellant said that he did not sell any drugs at all, and that he did not introduce any drug buyers to anyone.
26 The appellant said that he had told the psychologist about a friend who was a drug user and who he had driven to an address on two or three occasions so that the friend could obtain drugs for his own use from his supplier. He said that he did not know the drug supplier or have any involvement apart from giving a friend a lift to the address his friend had given him. The appellant said that he tried to explain that to his lawyer when asked about what the psychologist had said, but 'it appears either the interpreter or my lawyer misunderstood what I was saying'.
27 In his oral evidence at the hearing of the appeal, the appellant said that because he owed money from gambling, 'they asked me to come to Perth to do some work for them so they can reduce my debt'. He said that he had been in Perth for nearly two months prior to 4 October 2013, the date on which he was arrested.
28 When asked what he was doing during the two months prior to his arrest, the appellant said:
I didn't have any money and during that time I met one friend in Northbridge. He used the drugs. About two or three times he did ask me to drive him to Girrawheen for him to buy some drugs for himself because he didn't have a licence and has no car, and he gave me about 400 or 500 dollars every time because I don't have any money at that time (Appeal ts 17, 20/03/15).
29 The appellant said that he briefly told the psychologist that 'I did involve two or three times to the drug dealers' but said that he did not tell her why he drove the man to the drug dealers. He denied that he told the psychologist that he had sold drugs in the two months prior to his arrest. He thought that there was a mistake or misunderstanding because 'I did tell her that I did involve in one or twice drug dealing, but I did not sell drugs, and I did say that my friend did give me a few hundred dollars'. The appellant confirmed that there was an interpreter present when he spoke to Ms Oliveri.
30 The appellant described events on the day of his arrest, consistent with the account given to the author of the pre-sentence report, save that in his oral evidence he said that he received a package from the man in the hotel comprising two plastic bags, one small one and one big one. He said that, after he left the hotel, 'I put the big one at home and the small one in my car'. He repeated the reference to taking the larger package 'home' in the following exchange with his counsel.
LONSDALE, MS: Okay. I just need to make sure that I understand the sequence of events. The first thing was that you went· to the hotel, and what happened after that?
INTERPRETER: I met one Sydney man there with the big plastic bag including one small and one large plastic bag in there. He told me to bring this home - one big home - leave at home and one big - one small one leave in the car.
LONSDALE, MS: Okay. Did you go home or not on that day or another day?
INTERPRETER: Yes. I did.
LONSDALE, MS: Okay.
INTERPRETER: The same day.
LONSDALE, MS: And what happened after you went home?
INTERPRETER: I put the - I mean the big bag inside my house, and with the small bag in my car I drove along the Beaufort Street and get arrested (ts 20, 20/03/15).
31 The appellant was asked about the exchange between the sentencing judge and counsel set out above at [14]. The appellant responded that he was very afraid at the time of the sentencing hearing, and that he was confused and did not understand what really happened. He said that he remembered the judge saying that he was the one selling drugs on two or three occasions, and his lawyer disagreeing with that statement.
32 In cross-examination at the appeal, the appellant confirmed that he had come to Perth some two months before 4 October 2013, and that the work which he had been asked to do by the people in Sydney was to handle some illegal drugs. He said that those people paid for his airfare to come to Perth, and he resigned from his job in a restaurant in Sydney in order to come to Perth. He said he was given a key to an address in Perth a day or two after arriving. He said, however, that the house to which he had the key, which was the house in which the larger parcel of drugs was located, was not where he lived, but rather he lived with his girlfriend in the two months before his arrest.
33 When asked whether he was the only person who stayed in that house, he said, 'I've seen one or two people come and go there, but I don't know who they are'. He said he did not inquire who they were because he did not live there, but rather he went there occasionally to do whatever the Sydney man asked him to do. He said that he could not remember how many times he went to that house 'but many times because I go there quite often to look after the house, to see who's in, out'.
34 The appellant confirmed that, when the police searched the house, they found his suitcase in the master bedroom with his clothes in it as well as his passport and an airline boarding pass which belonged to him. When asked why he left his suitcase and his passport in the house in Maylands, if he was living with his girlfriend, he responded, 'I didn't think it's important to keep the passport with me so I leave it in the suitcase and the suitcase in the house and I leave it with my girlfriend so I don't know why I had to keep it'. He said he was not concerned about the security of his passport notwithstanding that there were people whom he did not know coming and going from the house.
35 Notwithstanding his earlier evidence that he went to the Maylands house occasionally 'to do whatever the Sydney man asked' him to do, the appellant subsequently said that he did not have any contact with the people from Sydney between his arrival in Perth and the phone call which he received on 4 October 2013 telling him to collect the drugs. He said that the requests from the Sydney man to do things at the house were made prior to his departure from Sydney.
36 The appellant confirmed that, when interviewed by Ms Oliveri, she repeated his answers back to him. He agreed that, in that way, he was able to be sure that the answer he had been given to a question had been related to her by the interpreter. He confirmed that part of the interview was conducted without the interpreter because the interpreter took a phone call, and said that, during that time, he did not fully understand the questions which were put to him by the psychologist in English. He said, however, that he nodded his head to questions just to show 'that I agree with her questions, but I really don't understand what she said'. As to his comprehension of English, the appellant said that he can understand one in 10 sentences.
The respondent's further evidence
37 The evidence sought to be adduced by the respondent comprised four affidavits. The first was an affidavit of Ms Oliveri, the clinical and forensic psychologist who had prepared the psychologist report for the purpose of sentencing. Ms Oliveri has extensive experience in the preparation of reports for pre-sentencing purposes.
38 Ms Oliveri said that, having received the referral from the Department of Corrective Services, she contacted the appellant on 14 February 2014 by mobile phone. She said that the appellant displayed a good standard of English in the sense that he responded to her questions in English and gave no indication that he did not understand what she was saying. They arranged an interview on 24 February 2014. An interpreter, Mr Anh Dung Phaam, attended that interview. It lasted approximately 1 hour and 40 minutes.
39 Ms Oliveri said that when she asked questions, the appellant looked directly at her rather than the interpreter for interpretation. She said that she repeated each time what the interpreter had said to ensure that she had understood what he had said. She said that when she repeated the interpretation, the appellant looked directly at her and nodded in a positive manner. At one stage, Mr Phaam received an answer to a personal telephone call on his mobile phone, and with the appellant's consent, the interview proceeded without the interpreter. Ms Oliveri formed the view that the appellant displayed no difficulty with understanding or responding to her questions.
40 Ms Oliveri said that on repeated and separate occasions throughout the interview, the appellant referred to selling methylamphetamine. She took notes of the interview. Her notes included a notation 'They asked me to come here to get drugs to sell drugs here that why came here', and 'Selling them for few months', and later, 'Sell to get money - Give them all the money - only 2 times not much money made - I got commission $400 or $500 each time sell 2 or 3 times in few months'.
41 Ms Oliveri said that the appellant denied any other involvement in drugs, or any use of drugs, and only knew one person who used drugs who was 'like a friend'. She said that she vaguely recalls the appellant talking about providing a lift to this friend to buy drugs. She made no note of that aspect of the conversation. In cross-examination, Ms Oliveri said that the reference to a friend who used drugs came up in the context of Ms Oliveri questioning the appellant about how many associates he had in the drug industry.
42 The respondent also relied on an affidavit of Mr Phaam, the Vietnamese interpreter. Mr Phaam confirmed that he provided interpreting services for the appellant and Ms Oliveri on 24 February 2014, but said that he had no independent memory of the contents of that interview. Mr Phaam said that he interprets conversations accurately to the best of his ability.
43 The respondent also sought to rely on an affidavit of Mr Christou, who was counsel for the appellant at the sentencing hearing. Mr Christou said that remarks made by him as recorded in the transcript of the sentencing hearing 'were a faithful and accurate account of the instructions given to me by' the appellant with the assistance of the interpreter.
44 The fourth affidavit relied upon is that of Thu Ha Nguyen, the interpreter who attended counsel's conference with the appellant on 20 May 2014 prior to the sentencing hearing. Mr Nguyen said that he interprets conversations exactly, allowing for natural differences in language and complies with ethical responsibilities requiring accuracy in translation. Although he was able to confirm that he attended an appointment on 20 May 2014, he had no independent recollection of the interview nor any notes from it.
45 The further evidence which each party seeks leave to adduce goes to clarification of what is said to be a factual error upon which the sentence was based. The error is said to arise by reason of mistakes or misunderstandings in the context of interpretation from Vietnamese to English. In those circumstances, it is appropriate that leave be granted to each party to adduce the further evidence referred to above.
Findings
46 The issue to which the evidence was directed was the appellant's contention that he should have been sentenced on the basis that he was a mere courier, and thus held a position low in the drug distribution chain, so that the factual basis upon which the sentencing judge proceeded was wrong.
47 Where an offender seeks to have a sentencing judge take a matter into account in passing sentence, it is for the offender to bring the matter to the attention of the judge and, if necessary, to prove that matter on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [25], [27].
48 I am not satisfied that the appellant has established that his role was no more than a mere courier. I do not consider that the appellant's evidence was, generally, reliable. There are several reasons for that conclusion.
49 First, the appellant provides no explanation as to why those who funded his trip to Perth would do so two months before he was required to 'work' for them, nor any explanation as to what he was doing in that time, other than checking on the house to which he had been given a key and observing people coming and going from that house. No explanation as to the purpose of his observations is given.
50 Secondly, the appellant's denial that he had any contact with anyone from Sydney during that two month-period is inherently unlikely, given the role which he said he was fulfilling in relation to the house.
51 Thirdly, his evidence in cross-examination that he was not living in the Maylands house, notwithstanding that he had his clothes and passport in the main bedroom, is simply implausible and should be rejected. It is also inconsistent with paragraph 14 of his affidavit in the appeal in which he says 'I was told to take the larger bag ... to a house I had been staying in'. It is also inconsistent with his earlier evidence-in-chief in which he repeatedly referred to the Maylands house as 'home'. I note that Ms Oliveri's notes concerning the money found in the appellant's possession record an explanation that the funds belonged to his girlfriend. The notes read, 'my girlfriend wanted to buy an apartment[,] this was her deposit she asked me to keep for her. She has 2 small kids[,] scared to keep the cash at home'. That explanation makes no sense if the appellant was himself living at her home.
52 Fourthly, his evidence that his friend, whom he drove to the friend's drug dealer in Girrawheen on two or three occasions, gave him $400 or $500 each time simply for providing transport is inherently unlikely.
53 Fifthly, I accept the evidence of Ms Oliveri as to what was said by her and to her during her interview with the appellant. Her evidence that she repeated the interpreter's response to each question, which was then, in turn, interpreted back to the appellant, was confirmed by the appellant himself in cross-examination. Ms Oliveri produced contemporaneous notes as to what was said, and those notes make several references to selling drugs. It is unlikely that the misunderstanding concerning selling drugs would have repeated itself several times during the same interview.
54 Sixthly, on the admitted facts, the appellant was doing more than simply transporting drugs from one place to another. On his own evidence, the package of drugs was provided to him at the hotel in two packages, and he stored the larger package at the house at which, I am satisfied, he was living. At the least, he was performing a warehousing function in relation to a significant quantity of drugs.
55 Having regard to the materials before the learned sentencing judge and the evidence adduced by both parties at the appeal, I find that the role played by the appellant in relation to these offences is not that of a mere courier transporting drugs from one place to another. Rather, based on his admissions to Ms Oliveri and by his counsel at the sentencing hearing and the objective facts, the appellant played a role, beyond a mere courier, in relation to the sale of drugs in Perth prior to his arrest. It is not possible to determine beyond reasonable doubt the precise role which he played. That is, it is not clear, to the criminal standard of proof, whether he actually effected sales himself, or facilitated sales by someone else. However, I am satisfied beyond reasonable doubt that the appellant's role was more significant than he claims and that he warehoused the drugs found at the Maylands house and, also, he either effected sales himself or facilitated sales by another.
56 I agree with the learned sentencing judge that the quantity and quality of drugs found in the appellant's possession support the conclusion that he was close to the source of the drugs.
57 It is against that factual basis that the appellant's sentence should be reviewed.
Ground 1
58 The premise upon which ground 1 is framed is that the sentencing judge found that the appellant 'had been selling drugs for a number of months in Perth and was more than just a courier'. I do not agree that her Honour made that finding that he had been selling drugs for a number of months or that she sentenced on that basis.
59 As I have already concluded, the evidence upon which the appellant seeks to rely as to his role falls short of establishing, on the balance of probabilities, that he was a 'mere courier'.
60 The learned sentencing judge did proceed on the basis that the appellant's role was more than that of a mere courier. The first particular of ground 1 is that that the appellant's role was not raised by the prosecution. In Olbrich at [25], Gleeson CJ, Gaudron, Hayne and Callinan JJ accepted that, if the prosecution seeks to have the sentencing judge take a matter into consideration, it is for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it.
61 In this case, the prosecution did not seek to highlight the appellant's role as a sentencing consideration. Rather, it simply related the undisputed facts. The learned trial judge had before her the pre-sentence and psychological reports. It was necessary for her to make an assessment of the level of culpability of the appellant on the materials before her. She made clear that she did not accept the submission that the appellant was a mere courier. Her Honour sentenced on the basis that the appellant's role was as described by his counsel, having regard to the materials which she had. Her Honour was properly entitled, if not obliged, to do so.
62 Having regard to the findings which I have made in relation to the appellant's evidence, which are consistent with the basis upon which the learned sentencing judge proceeded, there is no basis under ground 1 to interfere with the sentence.
63 As I have already concluded, the learned sentencing judge proceeded on a basis which was open to her on the materials before her, and no error in her doing so is demonstrated. I would give leave to appeal in relation to ground 1, but I would dismiss the ground.
Ground 2
64 Ground 2 asserts that the total sentence imposed was disproportionate to the total criminality having regard to the circumstances of the offending, the appellant's pleas of guilty on the fast track system, the personal circumstances of the appellant and sentencing standards, and thereby infringed the first limb of the totality principle.
65 At the time of sentencing the appellant was 48 years old. He had no record of prior offending. He came from a poor background in Vietnam and had little education. He spent five years in a refugee camp in Thailand and eventually arrived in Sydney at the age of about 27. He has a reasonable but inconsistent employment history. The psychologist's report identified that he suffers from anxiety and depression and that he has a gambling addiction.
66 As already noted, the appellant was convicted on two separate counts. The first involved the possession of 130.5 g with the purity of 73% to 75%. The second count involved possession of 349.4 g of methylamphetamine at purities ranging between 69% and 81%. It is apparent that, in sentencing the appellant, Sweeney DCJ assessed the total effective term of imprisonment by reference to the overall criminality of the possession of the two packages, and then allocated a period of imprisonment to each offence so as to produce that total term. Her Honour said that '[a]fter allowing the discount of 25 per cent, the total term will be nine years' imprisonment'. In relation to count 1, she then imposed a term of 2.5 years' imprisonment, and in relation to count 2, a term of 6.5 years. That approach reflects that her Honour was conscious of what is referred to as the first limb of the totality principle, namely that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341; Roffey v The State of Western Australia [2007] WASCA 246 [24].
67 It is important to bear in mind that, in considering a discretionary judgment by a sentencing judge, an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672 [15].
68 The appellant relies upon what are said to be comparable cases in order to support his contention that the sentence imposed upon him offends the first limb of the totality principle.
69 A sentencing judge is required to have regard to the range of sentences customarily imposed in respect of the type of offence with which the sentencing judge is dealing. That is because it is a matter of sentencing principle that there should not be any unjustifiable disparity in sentence between offences of comparable seriousness committed in comparable circumstances: The State of Western Australia v BLM [2009] WASCA 88 [24] (Wheeler and Pullin JJA, Owen JA agreeing), [242] (Buss JA). Whilst it is necessary to have regard to historical sentencing outcomes as a yardstick against which to ensure broad consistency of sentencing, previous cases do not fix a range of sound sentencing discretion and, in that sense, are of limited assistance. Ultimately, each case must be decided upon a consideration of its own facts and circumstances: Guler v The State of Western Australia [2014] WASCA 83 [29].
70 The appellant relied upon a number of cases for comparison purposes. They were Tanner v The State of Western Australia [2013] WASCA 142; Ruvinovski v The State of Western Australia [2013] WASCA 204; Lai v The State of Western Australia [2012] WASCA 181; Pham v The State of Western Australia [2011] WASCA 244; Galbraith v The State of Western Australia [2011] WASCA 70; Monument v The State of Western Australia [2007] WASCA 239; The State of Western Australia v Toothill [2007] WASCA 236; Kitis v The State of Western Australia [2013] WASCA 34; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324, Ozan v The State of Western Australia [2013] WASCA 27; Bond v The State of Western Australia [2011] WASCA 123; and The State of Western Australia v Atherton [2009] WASCA 148.
71 In addition, the respondent referred the Court to Bahn v The State of Western Australia [2008] WASCA 40; Sabau v The State of Western Australia [2010] WASCA 3; and Tran v The State of Western Australia [2013] WASCA 77.
72 The learned sentencing judge arrived at the total effective sentence of 9 years after taking into account the appellant's early plea of guilty. The learned sentencing judge expressly took into account mitigating factors over and above the plea of guilty. Those factors were the appellant's deprived background, which made him more vulnerable to being attracted to gambling, his gambling addiction which made him more vulnerable to the person who lent him money and caused him to become involved with the drugs, and the fact that he came to court as a first offender. Her Honour said, however, that the 'mitigatory value of those things is not very high'.
73 I have given careful consideration to the particular facts arising, and the penalties upheld by the Court of Appeal in each of the cases referred to by the parties. That analysis leads me to the conclusion that, while the penalty imposed upon the appellant lies near the top of the range of a sound sentencing discretion, it does not fall outside that range.
74 In my view, a number of the cases cited are broadly consistent with the penalty imposed upon the appellant.
75 In Lai, a total effective sentence of 13 years was imposed in relation to seven offences. Count 1 in Lai was possession of 498.7 g of methylamphetamine at a purity of 47% to 52%. The individual sentence on that count was 9 years' imprisonment. Ms Lai had pleaded not guilty. The sentence of 9 years on count 1 in Lai after a plea of not guilty is broadly consistent with the 6.5 years imposed for count 1 in the appellant's case, having regard to the discount for his plea of guilty, and the total effective sentence of 13 years for Ms Lai is broadly consistent with the total effective sentence of 9 years for Mr Hoang following his plea of guilty. Although it might be said that Ms Lai occupied a position higher up the chain of distribution than did Mr Hoang, Sweeney DCJ concluded on the materials before her that Mr Hoang was close to the source of the drugs.
76 In Pham, Mr Pham was sentenced on the basis that he was a courier acting under Ms Lai's instructions. He was sentenced to a total effective sentence of 9 years following a fast track plea of guilty. He was said to be under extreme financial duress at the time of offending, and was driven to his offending by very considerable gambling debts incurred by his wife which they were unable to repay. The penalty imposed in Pham is broadly consistent with that imposed on Mr Hoang.
77 Galbraith involved possession of similar quantities of methylamphetamine as in this case, and attracted a sentence of 9 years following a fast track plea of guilty. Although Mr Galbraith had a record of offending in relation to illicit drugs and other offences, he was sentenced on the basis that he was a mere courier.
78 Ozan, Kitis and Milenkovski were all the subject of one indictment asserting various offences by each. They were all part of a serious drug enterprise and their respective charges involved significant quantities of methylamphetamine. Kitis received a total effective sentence of 12 years following a late plea of guilty. Ozan received a total effective sentence of 14 years, also following a late plea of guilty. Milenkovski pleaded not guilty, but upon conviction was sentenced to 12 years. Ozan and Milenkovski had no relevant criminal record, and Kitis had a minor prior record. While the circumstances in each of Kitis, Milenkovski and Ozan make comparison with the circumstances of this case unreliable, nothing in the outcome of those cases demonstrates that the sentence imposed on the appellant falls outside of a proper range.
79 Ruvinovski involved a different charge involving a later maximum penalty and is of little assistance for comparison purposes.
80 Tanner, Monument, Sabau, Bond and Bahn were all unsuccessful prisoner appeals against sentence. The rejection of those appeals leads only to the conclusion that the sentence in each case fell within the range of sound sentencing discretion. Without traversing the relevant circumstance of each of those cases in detail, it can reasonably be said that the sentence imposed on the appellant appears more severe than in those cases. In my view, however, having regard to the broadly consistent sentences identified in cases like Lai, Pham and Galbraith, that apparently greater severity does not take the sentence imposed on the appellant outside a sound sentencing range in the circumstances of this case.
81 Atherton and Tran involve multiple offences and individual sentences imposed in relation to particular counts, and are affected by considerations of totality. They are of little assistance for comparison purposes.
82 The sentence imposed did not offend the first limb of the totality principle. There should be leave to appeal on ground 2, but that ground should be dismissed.
83 I would therefore dismiss the appeal.
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