Humes v The State of Western Australia
[2023] WASCA 110
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUMES -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 110
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 14 APRIL 2023
DELIVERED : 17 JULY 2023
FILE NO/S: CACR 51 of 2022
BETWEEN: JON PETER HUMES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHARP DCJ
File Number : BUN 114 of 2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on guilty pleas of one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another and one count of possession of cash reasonably suspected to have been stolen or unlawfully obtained - Whether sentence of 6 years 2 months' imprisonment for possession of a trafficable quantity of methylamphetamine was manifestly excessive - Whether sentencing judge erred in finding that cash for which appellant was not charged was an aggravating feature of offending - Whether sentencing judge erred in finding appellant not genuinely remorseful
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Z Gilders |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | ZG Criminal Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Al‑Rafei v The State of Western Australia [2017] WASCA 4
ATH v The State of Western Australia [2021] WASCA 149
Bond v The State of Western Australia [2011] WASCA 123
Bradbury v The State of Western Australia [2020] WASCA 214
Carlucci v The State of Western Australia [2019] WASCA 37
Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262
Giglia v The State of Western Australia [2010] WASCA 9
House v The King [1936] HCA 40; (1936) 55 CLR 499
HSV v The State of Western Australia [2020] WASCA 5
Kabambi v The State of Western Australia [2019] WASCA 44
McGrath v The State of Western Australia [2021] WASCA 118
MHE v The State of Western Australia [2019] WASCA 133
Mrsa v The State of Western Australia [2018] WASCA 217
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Musulin v The State of Western Australia [2020] WASCA 18
Nguyen v The State of Western Australia [2018] WASCA 162
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Rowsell v The State of Western Australia [2015] WASCA 2
Salkilld v The State of Western Australia [2017] WASCA 168
Tan v The State of Western Australia [2019] WASCA 112
The State of Western Australia v Billett [2022] WASCA 158
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Rayapen [2023] WASCA 55
Wilson v The State of Western Australia [2010] WASCA 82
QUINLAN CJ:
On 23 June 2022, the appellant was convicted, on his pleas of guilty, of one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1); and one count of possession of a thing reasonably suspected to have been stolen or unlawfully obtained, being $1,666 in cash, contrary to s 417(1) of the Criminal Code (WA) (count 2).
In relation to count 1, the appellant was a courier of the methylamphetamine as part of a commercial drug dealing operation. The quantity of methylamphetamine in the appellant's possession was 166.3 g, with a purity of between 80% and 81%. A trafficable quantity of methylamphetamine is 28 g. The cash, the subject of count 2, was the reward paid to the appellant for his role in transporting the drugs.
The appellant was sentenced in the District Court by Sharp DCJ to 6 years 2 months imprisonment on count 1, and 6 months imprisonment on count 2. The sentences were ordered to be served concurrently with each other. The total effective sentence was, therefore, 6 years 2 months imprisonment.
The appellant now appeals his sentence. While the grounds of appeal did not distinguish between the individual sentences and the total effective sentence, it is clear that the focus of the grounds of appeal was on the sentence for count 1. Ground 1 alleges that the sentence was manifestly excessive. Grounds 2 and 3 allege express errors on the part of the learned sentencing judge.
I have had the significant advantage of reading, in draft, the reasons of Mazza and Hall JJA. I agree with their Honours' reasons for concluding that grounds 2 and 3 have not been made out.
With some considerable hesitation, I have, however, reached a different conclusion to their Honours in relation to ground 1. While I agree that the sentence of 6 years 2 months imprisonment imposed by the learned sentencing judge was severe, I am not satisfied that, in all of the circumstances, the sentence was so high as to manifest error. For completeness, I also observe that, to the extent that the individual sentence for count 1 was heavy (albeit not manifestly excessive), it was in any event softened by the order that it be served wholly concurrently with the sentence for count 2.
For these reasons, while I would grant leave to appeal on ground 1, I would have dismissed the appeal.
As mine is a minority view, I can state my reasons relatively briefly.
The facts
The primary facts, as read aloud by the prosecutor at the sentencing hearing,[1] and augmented by defence counsel in her plea in mitigation, are summarised by Mazza and Hall JJA at [37] to [44]. I need not repeat those primary facts.
[1] ts 18 ‑ 19.
The sentencing exercise in the present case was complicated by the somewhat fragmented way in which the facts of the appellant's offending were adduced before the sentencing judge. While the facts were read by the prosecutor and accepted by defence counsel, there were a number of matters in respect of which the facts of the offending were unclear and obscure. Defence counsel, quite properly, augmented the facts in the course of her plea in mitigation, including in a way that provided a better understanding of the circumstances of the offending. For example, it was defence counsel who confirmed that the money, the subject of count 2, was the payment for the appellant's involvement in the trafficking of the drugs.[2] Similarly, it was defence counsel who explained that the appellant had travelled from Perth to Bunbury for the purposes of 'a job'.[3]
[2] WAB 74.
[3] WAB 47.
Despite these additional facts, however, the appellant's role in the drug dealing operation proved somewhat elusive. While the facts established that the appellant and Mr Lorraway were transporting the drugs in the vehicle in which they were intercepted for approximately 45 minutes, the ultimate destination of the drugs was unknown, as was the intended duration of 'the job'.
Identification of the facts in the present case was not assisted by the fact that the learned sentencing judge did not set out findings of fact but 'incorporated the facts' into his sentencing remarks by reference to the facts read by the prosecutor.[4] While this might be an acceptable course in a simple case in which the statement of material facts is very straightforward, in cases of serious offending a sentencing judge should state at least the salient features of the offending that provide the factual basis for the penalty.[5] The present case, in particular, required more in terms of fact finding for the purposes of sentence. At the very least, in my view, it was necessary to address the circumstances identified by defence counsel and how they contributed to the facts as a whole for the purposes of sentencing.
[4] WAB 58.
[5] The State of Western Australia v Billett [2022] WASCA 158 [48] (Buss P, Mazza & Hall JJA).
Nevertheless, on the basis of the material presented to the sentencing judge and accepted by the parties on appeal, the following facts relevant to the seriousness of the offending were established:
(a)the appellant was engaged by a commercial drug dealing operation to travel from Perth to Bunbury for the purposes of 'a job';
(b)while the appellant was not told the nature of the job prior to arriving in Bunbury, it is to be inferred that the appellant was aware that the job entailed some kind of illegal conduct;[6]
(c)upon arriving in Bunbury, it became apparent that the 'job' involved the transportation of drugs for the purposes of the drugs later being distributed into the community;
(d)the appellant and Mr Lorraway collected, or otherwise became in possession of the methylamphetamine the subject of count 1, while Mr Lorraway was driving and the appellant was in the passenger seat;
(e)the three packages containing the drugs were initially in the front passenger seat footwell of the vehicle and when the vehicle was stopped by police, the appellant put the packages in his underwear; and
(f)the appellant had an intention to supply the drugs to Mr Lorraway, for their ultimate distribution.
[6] See Mazza & Hall JJA [90].
As I have said, it is unclear for how long it was intended that the appellant would be in possession of the drugs as part of the 'job' or precisely what the appellant's role in their transportation was. Nevertheless, the learned sentencing judge described the appellant as 'an essential part of a commercial drug dealing operation'.[7] Despite the ambiguity in the facts, that characterisation was, in my view, amply justified.
[7] WAB 61.
In that regard, in my view, it could not be concluded, on the basis of the facts that I have outlined, that the appellant's possession of the methylamphetamine was fleeting, opportunistic or transitory. In particular, the appellant's possession of the methylamphetamine (for the purposes of selling or supplying it) was not confined to his physical act of placing the drugs in his underwear when stopped by the police. It was not a case, for example, in which a person impulsively took possession of drugs that were in another person's possession and which were otherwise not their concern, in order to temporarily hide them from detection.
On the contrary, the appellant in this case was employed, in some unspecified way, to have possession of the drugs as part of an organised operation (or 'job'). Whatever his precise role in the trafficking of the drugs, it was significant enough that he was paid approximately $1,600 (seemingly in advance) and that he was required to travel from Perth to Bunbury for the purposes of carrying out his role. Counsel for the appellant accepted that it was open to conclude that the appellant was, either jointly or on his own, in possession of the drugs during the period in which he and Mr Lorraway were in the vehicle.
True it is, that the period of time during which the appellant was in actual possession of the drugs was brief. That may, of course, be explained by the fact that he was intercepted. As I have said, the ultimate destination of the drugs was unknown, as was the intended duration of 'the job'.
My conclusion
Ground 1 of the appeal asserts implied error. The principles in relation to such a ground are well known, and I need not repeat them.[8]
[8] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
It is important that I recognise that the question in relation to ground 1 is not whether I would have exercised the sentencing discretion differently. In all of the circumstances I may well have. The sentence of 6 years 2 months imprisonment on count 1 was certainly severe. Nevertheless, the question raised by the appeal is whether the result produced in this case was plainly unjust or unreasonable, such that I should imply error.
Ultimately, I am not satisfied that I can, or should, imply error on the part of the sentencing judge. The sentence imposed for count 1 was not, in my respectful view, unreasonable or plainly unjust.
I have reached that conclusion for the following reasons.
The appellant was an essential part of a commercial drug dealing operation. His participation was planned, and required him to travel from Perth to Bunbury, albeit that the appellant did not learn the precise nature of the illegal conduct until he arrived in Bunbury. The quantity of drugs was significant, inasmuch as it was almost six times the trafficable quantity. Against the objective seriousness of the offending, the appellant did not have the benefit of prior good character and he was not genuinely remorseful. The principle mitigating consideration was the appellant's plea of guilty.
Having regard to the seriousness with which Parliament views the offence of trafficking in methylamphetamine (as reflected in the maximum penalty of life imprisonment), the objective seriousness of the appellant's role and his personal circumstances, a substantial term of imprisonment was required.
Having regard to those matters, the standards of sentencing customarily imposed for this offence do not lead me to conclude that the term of imprisonment imposed by the learned sentencing judge was unreasonable or plainly unjust.
Given the varying roles performed by the offenders in each case, there is, as would be expected, significant variability reflected in previous decisions of this Court as to the sentences imposed for the possession of broadly similar trafficable quantities of methylamphetamine as in the present case (e.g. between 100 g and 400 g). Since the increase in the maximum penalty to life imprisonment, those sentences have ranged from 4 years 9 months imprisonment[9] to 7 years imprisonment.[10]
[9] The State of Western Australia v Delaney [2020] WASCA 93.
[10] Musulin v The State of Western Australia [2020] WASCA 18.
The range of sentences customarily imposed for trafficable quantities of methylamphetamine generally is broader still. In that context, it is notable that there have been sentences broadly comparable with that in the present case for offences involving a role similar to that of the appellant in the present case but which involved smaller quantities.
In Cochrane v The State of Western Australia,[11] for example, the appellant was convicted, on his plea of guilty, of one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply. The quantity of methylamphetamine was 47.13 g. The appellant in Cochrane was a courier, and beyond the receipt of a small portion of the drugs for his own use, he did not have a commercial purpose for the offence. He was afforded the maximum discount (25%) for his plea of guilty. The appellant in Cochrane was 40 years of age and had similar antecedents to the appellant in the present case. This Court dismissed an appeal on the grounds of manifest excess from the sentence imposed by the sentencing judge of 5 years 6 months imprisonment.
[11] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262 (Cochrane).
In the present case, by contrast, the appellant was paid for his involvement in transporting the drugs and was in possession more than three times the quantity of drugs than the offender in Cochrane. Having regard to these differences, the result in that case does not suggest error in the present case.
By contrast, I should refer to McGrath v The State of Western Australia.[12] As Mazza and Hall JJA have observed, in McGrath this Court imposed a sentence of 5 years 9 months imprisonment for possession of a significantly greater quantity of methylamphetamine (i.e. 985 g), albeit that the offender in that case did not know the quantity of the drugs. In that case, the Court characterised the offending as 'fleeting and opportunistic'. The appellant in McGrath had, on the morning of the offence (which occurred at 7.30 am), agreed to accompany a friend in transporting the drugs, in exchange for an unidentified amount of methylamphetamine.
[12] McGrath v The State of Western Australia [2021] WASCA 118 (McGrath).
The offending of the appellant in the present case cannot be described as 'fleeting and opportunistic' in the same way as in McGrath. In McGrath for example, the Court said of the appellant in that case:[13]
He had no contact with those who were instructing his friend to transport the drugs. There is nothing to suggest that they knew of the appellant's involvement or even that those instructing his friend had any contemplation that the friend would engage another person to assist in the transportation of the drugs. In return for an unspecified quantity of drugs, the appellant agreed to be a passenger in a car travelling between two locations in the metropolitan area, in which the driver placed drugs in the footwell near his feet. There was nothing to suggest that he had any other role in the drug dealing or had met or communicated with anyone involved in the enterprise other than the driver.
[13] McGrath [58] (Mazza, Mitchell & Beech JJA).
The appellant's role in the present case was, in my view, quite different. He did have contact with those higher in the organisation, having been engaged to travel from Perth to Bunbury for the 'job'. Those persons would therefore have known of, and trusted in, the appellant's involvement. And, unlike the offender in McGrath, the appellant was not simply engaged by the driver shortly prior to the journey in which they were intercepted. For these reasons, in my view, the appellant's role in the present case, while still ambiguous, was more significant than that of the offender in McGrath.
I accept that, having regard to sentences customarily imposed, the sentence imposed for count 1 in the present case was high. Nevertheless, in my view, it was not such that I can infer that there must have been some misapplication of principle.[14]
[14] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (7) (French CJ, Bell, Gageler, Keane and Nettle JJ); Tan v The State of Western Australia [2019] WASCA 112 [73] (Buss P, Mazza & Beech JJA).
I would also observe that, to the extent that the individual sentence for count 1 was heavy (albeit not manifestly excessive), it was, to an extent, softened by the order that it be served concurrently with the sentence for count 2. The appellant did not otherwise contend that the total effective sentence imposed on him offended the totality principle.[15]
[15] See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA); MHE v The State of Western Australia [2019] WASCA 133 [59] (Mitchell & Beech JJA; Quinlan CJ agreeing).
For these reasons, while I would grant leave to appeal on ground 1, I would have dismissed the appeal.
MAZZA & HALL JJA:
On 23 June 2022, the appellant was convicted on his pleas of guilty of one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another, being 166.3 g of the drug with a purity of between 80% and 81%, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (count 1), and one count of possession of a thing reasonably suspected to have been stolen or unlawfully obtained, being $1,066 in cash, contrary to s 417(1) of the Criminal Code (WA) (the Code) (count 2). He was sentenced by Sharp DCJ on count 1 to 6 years 2 months' imprisonment, and on count 2 to 6 months' imprisonment. The sentences were ordered to be served concurrently with each other. Thus, the total effective sentence was 6 years 2 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 7 August 2021.
The appellant appeals to this court on three grounds. Ground 1 alleges that the sentence on count 1 was manifestly excessive. Grounds 2 and 3 allege express errors on the part of the sentencing judge, the details of which will be set out later in these reasons.
The facts
The facts, as read aloud by the prosecutor at the sentencing hearing,[16] were accepted by the appellant[17] and incorporated by reference into his Honour's sentencing remarks.[18] What follows is a summary of what the prosecutor read, along with some matters of background, which were explained by defence counsel in her plea in mitigation, and which were not disputed either in the sentencing proceedings or in this appeal.
[16] ts 18 - 19.
[17] ts 19.
[18] ts 30.
On Thursday, 8 July 2021, the appellant, who was residing at an address in the Perth metropolitan area, was contacted by a person requesting that he drive to Bunbury 'to assist with a job'.[19] The appellant agreed to do 'the job', but he remained unaware of precisely what the job entailed until his arrival in Bunbury that afternoon. At the time, the appellant was a patched member of the Coffin Cheaters outlaw motorcycle club.
[19] Appeal ts 3.
The appellant departed Perth driving a black Holden Colorado utility. He arrived at an address in Mulga Road, Glen Iris, which is a suburb of Bunbury. There, he met with another patched member of the Coffin Cheaters, Mr Travis George Lorraway. At about 2.35 pm, the police observed the two men get into a silver Mitsubishi ASX (the vehicle) and drive away.
At about 3.20 pm, police officers stopped the vehicle at Erica Entrance, Glen Iris. Mr Lorraway was driving and the appellant was in the front passenger seat. Police searched the vehicle and found $15,030 in cash in the centre console. Police then searched the appellant and found three clipseal bags concealed in the front of his underwear, each wrapped in tissue paper. Together, the three packages held a total of 166.3 g of methylamphetamine, each with a purity of between 80% and 81% (count 1).
After locating the cash and the methylamphetamine, the police attended at the Mulga Road address. There, police searched the appellant's utility, seizing a further $1,066 in cash (count 2).
It is accepted by both parties in this appeal that the appellant was sentenced on the basis that the methylamphetamine had been in the front passenger seat footwell of the vehicle. When the vehicle was stopped by police, the appellant put the methylamphetamine in his underwear with the intention of returning the drug to Mr Lorraway.
The State did not allege that the appellant would himself be involved in the distribution of the methylamphetamine into the community, but it was accepted on the appellant's behalf that he was aware that, ultimately, it would be sold.[20] It was also accepted that the $1,066 found in the appellant's utility was payment for his services in connection with the transportation of the methylamphetamine.
[20] Appeal ts 8.
The appellant was initially charged with a further offence in connection with the $15,030 found in the centre console of the vehicle. However, that charge was withdrawn by the police in the Magistrates Court. In the sentencing proceedings, it was accepted on behalf of the appellant that the presence of the $15,030 was relevant to show the commercial nature of the drug dealing organisation behind the offence.[21]
[21] ts 26.
The appellant's personal circumstances
In addition to the oral and written submissions made by defence counsel, the sentencing judge was provided with the following materials: a report dated 16 June 2022 by Dr Jack White, a registered psychologist; a report dated 18 May 2022 by Ms Sarah Ferguson, a program facilitator at the Whitehaven Clinic; and a number of character references, including a letter from the appellant's wife.
The appellant was 34 years of age when he was sentenced.
The appellant's mother died when he was about 8 years of age. The appellant described his general childhood memories to Dr White as being 'sometimes good' but generally 'very unstable'. He said that his family moved around constantly.
The appellant left school at the age of 17. After leaving school, he worked in the mining industry and became a qualified driller. Between 2016 and 2017, he worked as a labourer and concreter in Perth. As a result of an injury he sustained playing football, he has not worked as a labourer since that time although, prior to his incarceration, he had started a stone masonry business.
The appellant and his wife married in 2019. They have one child together. Their family also includes his wife's child from a previous relationship.
The appellant began his association with the Coffin Cheaters in 2012, becoming a full member in 2018. The appellant told Dr White that he no longer wanted to be part of that organisation.
The appellant enjoys good physical health. According to Dr White, the appellant has a mixed antisocial-borderline personality disorder, post-traumatic stress disorder and disorders relating to alcohol and stimulant use. He also has an adjustment disorder characterised by mixed anxiety and depressed mood.
The appellant has a prior criminal history as an adult, spanning from 2006 to 2018. His criminal history includes convictions for unlawful wounding (2006), traffic offences (2007, 2008, 2013 and 2018), common assault (2008), wilful and unlawful destruction or damage of property (2012), being armed in a way that may cause fear (2017) and possession of cocaine (2018). The appellant has not previously been sentenced to a term of immediate imprisonment, although, in 2017, he was sentenced to a term of suspended imprisonment.
After his arrest, the appellant voluntarily engaged in one‑on‑one drug counselling at the Whitehaven Clinic. Ms Ferguson's report noted that the appellant had engaged extremely well and had made excellent progress on gaining, and providing, insight into his behaviour. Ms Ferguson expressed the opinion that the appellant is 'extremely capable of changing his future direction should he choose'. She said the appellant had 'gained understanding about how he represses anger and the link to his drug and alcohol use'. She further said that the appellant was aware of his 'red flags', that he wished to stay healthy and drug free, and that he will have a relapse management plan in place by the time he is released from prison.
The sentencing remarks
His Honour gave a reduction of 25% for the appellant's pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA). He acknowledged the appellant's participation and engagement with the Whitehaven Clinic and the resultant gains he had made. His Honour said that if the appellant continued on the path to rehabilitation and stayed away from illicit substance use, his risk of reoffending in a similar manner in the future would be reduced.[22]
[22] ts 32.
His Honour considered, but rejected, a submission that the appellant was remorseful. His Honour said:[23]
Remorse is a mitigating factor that can be considered. I have very carefully considered this, and I have been through the materials before me. I'm not satisfied that you're remorseful for your actions. I do accept that you're sorry about the consequences of what's happened, but I can't take it any further than that.
This finding is challenged by ground 3 of this appeal.
[23] ts 31.
In his assessment of the seriousness of the offending, his Honour identified a number of relevant features. His Honour noted that the appellant possessed six times the minimum trafficable quantity of methylamphetamine (28 g) and characterised the quantity of the drug as 'significant'.[24] His Honour said that, by reason of the quantity of the methylamphetamine and the amount of cash in the appellant's possession (being the $1,066 found in the appellant's utility), the appellant would be sentenced on the basis that he was:[25]
an essential part of a commercial drug dealing organisation, and that isn't at the lower levels in terms of the commerciality.
[24] ts 32 ‑ 33.
[25] ts 33.
His Honour then said:
Also in the car was some $15,000. So, as I say, that simply confirms my view that there was an element of commerciality, and that is an aggravating factor.
Ground 2 of the appeal alleges that this statement is erroneous.
The grounds of appeal
The grounds of appeal, as expressed in the appellant's case, are as follows:
1.The learned sentencing judge erred by imposing a sentence that was manifestly excessive, particularly having regard to:
a.the appellant's role in the offending; and
b.the nature and circumstances of the offence.
2.The learned sentencing judge erred in finding the $15,030 cash was an 'aggravating feature' of the offending; and
3.The learned sentencing judge erred in law and in fact in finding that the appellant did not demonstrate remorse.
The general principles
The relevant principles applicable to this appeal against sentence are well established and include the following.[26]
[26] Wilson v The State of Western Australia [2010] WASCA 82 [2].
The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter, or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[27]
[27] See House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
It follows that this court will not intervene simply because the members of the court, had they been sentencing the offender with the original hearing, might have imposed a different sentence. Even if error is demonstrated, the appellate court can only intervene if it is satisfied that a different sentence should have been imposed at the original hearing.
In the present appeal, ground 1 alleges an implied error, while grounds 2 and 3 allege express errors.
Relevantly to ground 1, in determining whether a sentence is manifestly excessive, the sentence must be viewed in light of the maximum sentence prescribed for the offence (in this case, life imprisonment), the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness for crimes of that type and the personal circumstances of the offender.
Although it is necessary to have regard to sentences imposed in other cases involving similar offending in order to achieve broad consistency in sentencing, the range of sentences imposed in the past does not fix the boundaries within which judges must, or even ought to, sentence in the future. Ultimately, each case must be decided on its own particular facts and circumstances.
It is well recognised, and has been said on many occasions, that 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 generally not the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking, either within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is also often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, although they are not completely irrelevant.
It is convenient to first deal with grounds 2 and 3, which each allege express error.
Ground 2 - alleged error in finding the $15,030 cash was an aggravating feature of the offending
The submissions
The appellant submits that, in his sentencing remarks, his Honour made a finding that the presence of the $15,030 cash in the vehicle was a factor that aggravated the appellant's offending.
The appellant points to the statement made by his Honour, set out at [57] above, where the alleged error was made.
The appellant submits that the presence of the $15,030 cash in the vehicle was not an aggravating factor in respect of the appellant's offending, given that the prosecution withdrew the charge against the appellant in respect of the money, and there was no finding that the appellant knew of its presence in the vehicle.
The respondent submits that his Honour did not make any finding that the $15,030 in cash was an aggravating factor in the appellant's offending. Rather, when the impugned portion of the sentencing remarks is read in its context, his Honour stated no more than what had already been accepted by the appellant in the course of the sentencing proceedings;[28] namely, that the appellant was part of a drug dealing organisation and that the presence of the $15,030 confirmed the commercial nature of that organisation, and that it was the commercial element involved in the offending that was an aggravating feature.
Ground 2 - disposition
[28] ts 26.
There is no merit in ground 2, essentially for the reasons submitted by the respondent.
His Honour did not state, nor did he imply, that the presence of the $15,030 cash in the vehicle aggravated the appellant's offending. When the impugned passage at [57] above is read with the passage that immediately precedes it in the sentencing remarks, which is reproduced at [56] above, it is clear that his Honour made no such finding. Rather, as his Honour, himself, stated in the impugned passage, the presence of the $15,030 simply confirmed that the appellant was a part of a commercial drug dealing organisation. This was not disputed by the appellant at first instance.
Ground 2 has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused.
Ground 3 - alleged error in finding that the appellant was not remorseful
The submissions
The appellant submits that his Honour erred in not finding that the appellant was remorseful for his offending. In support of this ground, the appellant submits that material had been provided to the sentencing judge which proved, on the balance of probabilities, that the appellant was remorseful. The submissions in support of the ground also point to the fact that the appellant had instructed his counsel that he was remorseful, that he had pleaded guilty to the offences and that he had undertaken counselling at the Whitehaven Clinic. It was also said that expressions of remorse had been made to his wife, as evidenced by her character reference.
The respondent submits that the material before the sentencing judge, particularly the reports of Dr White and Ms Ferguson, do not specifically address the appellant's insight, if any, into the harm caused by his offending behaviour. Essentially, the respondent submits that the appellant's plea of guilty did not itself establish remorse, and that the written materials before the court, taken at their highest, show that the appellant regrets the consequences of his conduct for himself and his family, but offer no indication that the appellant realises what he did was morally wrong.
Ground 3 - disposition
The legal principles concerning remorse as a mitigating factor have been discussed by this court in a number of recent cases.[29] These principles were encapsulated by the court in Bradbury v The State of Western Australia,[30] as follows:
[29] See Rowsell v The State of Western Australia [2015] WASCA 2 [16] ‑ [17], [51] ‑ [52]; Salkilld v The State of Western Australia [2017] WASCA 168 [58]; Mrsa v The State of Western Australia [2018] WASCA 217 [40]; The State of Western Australia v Egeland [2018] WASCA 228 [39].
[30] Bradbury v The State of Western Australia [2020] WASCA 214 [52] ‑ [55]. See also The State of Western Australia v Rayapen [2023] WASCA 55 [139] ‑ [147].
[52]In The State of Western Australia v Egeland, Buss P made the following observations concerning remorse as a mitigating factor:
'Numerous propositions in relation to remorse as a mitigating factor are well established, namely that:
(a)the offender bears the onus of establishing remorse on the balance of probabilities;
(b)remorse is not to be equated with sorrow for being caught or regret by the offender that he or she will be imprisoned or subject to some other punishment;
(c)an assertion of remorse by or on behalf of the offender need not be accepted by the sentencing judge if the existence of remorse is put in issue by the prosecutor or if the sentencing judge indicates that he or she may not be prepared to accept that the offender is remorseful;
(d)if remorse is to be mitigating, it requires a realisation by the offender that what he or she did was morally wrong and a sign of some sorrow for the impact or consequences or the potential impact or consequences of the offence;
(e)in determining whether the offender is remorseful, the sentencing judge is entitled to have regard to the offender's conduct as a whole;
(f)a plea of guilty will not, of itself, establish remorse although, together with other relevant evidence, the plea may be a relevant factor in enabling an inference of remorse to be drawn; and
(g)if the offender is genuinely remorseful, the remorse will usually be an important consideration in sentencing.
…
[53]Remorse is a strong emotion experienced by a person:
(a)who is sorry for their previous actions and the adverse impact those actions have had upon others; and
(b)who has resolved to reform and rehabilitate themselves.
[54]A person will not be remorseful for their actions if the person merely regrets the consequences for themselves and their non‑victim family members (including any consequences for themselves under the criminal law) of those actions.
[55]It is sometimes difficult to decide whether an offender is sincerely remorseful or not. Remorse resides in the offender's head. A decision as to whether the offender is sincerely remorseful or not involves an ultimate finding by inference from other facts. Ordinarily, the post‑offence conduct of the offender (that is, their actions as distinct from their words) will be a more reliable guide than the offender's words in evaluating whether the offender actually feels remorseful or not. (citations omitted)
It is clear from the materials that were before the sentencing judge that the appellant regrets his offending. As the reference from the appellant's wife makes clear, his imprisonment has had an adverse effect upon her and their family. To his credit, the appellant voluntarily engaged in counselling with the Whitehaven Clinic, and there are reasons to think that his prospects of rehabilitation are promising. The appellant also pleaded guilty, but, it must be said, the prosecution case against him was overwhelming. Nevertheless, the plea of guilty can be a sign of remorse.
The difficulty for the appellant in discharging the onus of establishing remorse on the balance of probabilities is that nowhere in the materials does he articulate a realisation that what he did was morally wrong. Nor does the appellant articulate that he had insight into, and was sorry for, the impact or consequences his offending would have had on the community had the drugs been sold or supplied into the community. Rather, the appellant's focus is on the consequences of his incarceration to himself and his family. The closest the material comes to evincing a realisation that the offending would have had an adverse consequence to the community may be found in the appellant's wife's letter to the sentencing judge. However, the comments made by the appellant's wife show her appreciation of these consequences, rather than the appellant's.
The appellant has a reasonably lengthy and consistent criminal history. He also has a history of substance abuse, and had a connection, including a period of membership, with an outlaw motorcycle gang.
While there was some material that points towards remorse, there were other facts and circumstances that weighed against a conclusion that the appellant was genuinely remorseful for his offending. In our opinion, the sentencing judge did not fall into error by finding that the appellant was not genuinely remorseful. On our analysis of the facts and circumstances, his Honour was justified in arriving at that conclusion. While we would grant leave to appeal on ground 3, the ground has not been made out.
Ground 1 - the sentence on count 1 was manifestly excessive
The submissions
Although the appellant accepts that he participated in a commercial drug dealing operation, it is submitted that his participation was at the 'low end' of the operation[31]. It is submitted that what he actually did was act as 'a courier with temporary possession of the methylamphetamine,'[32] with the intention to secrete the drugs and later supply them back to the driver of the vehicle. Counsel for the appellant emphasised at the appeal hearing that the appellant's participation in the operation lasted, at the most, from the time he left the Mulga Road address in Glen Iris to the time the vehicle was intercepted by police, a period, she said, of no more than 55 minutes.
[31] Appeal ts 10
[32] Appeal ts 11.
The appellant refers to ATH v The State of Western Australia;[33] McGrath v The State of Western Australia;[34] Nguyen v The State of Western Australia;[35] Al‑Rafei v The State of Western Australia;[36] and Bond v The State of Western Australia.[37] It is submitted that the sentence imposed in the present case was inconsistent with the outcomes in these cases.
[33] ATH v The State of Western Australia [2021] WASCA 149.
[34] McGrath v The State of Western Australia [2021] WASCA 118.
[35] Nguyen v The State of Western Australia [2018] WASCA 162.
[36] Al‑Rafei v The State of Western Australia [2017] WASCA 4.
[37] Bond v The State of Western Australia [2011] WASCA 123.
The appellant also makes reference to the mitigating factors, including the plea of guilty, the appellant's counselling at the Whitehaven Clinic and the support he has from family members and others in the community.
The respondent submits that the appellant has not demonstrated that the individual sentence of 6 years 2 months' imprisonment for count 1 was manifestly excessive.
The respondent submits that the sentence was appropriate, having regard to the sentencing judge's finding that the appellant was 'an essential part of a commercial drug‑dealing organisation, and that isn't at the lower levels in terms of commerciality'.[38] The respondent notes the quantity and purity of the methylamphetamine, and that the appellant was subject to the maximum penalty of life imprisonment.
[38] ts 33.
The respondent also observes that while the appellant pleaded guilty and has taken positive steps towards his rehabilitation, he did not have the mitigation of youth or of prior good character.
The respondent submits that the cases relied upon by the appellant do not, on proper analysis, show that the sentence imposed on the appellant was inconsistent with the standards of sentences customarily imposed. The respondent refers to the outcomes in Musulin v The State of Western Australia[39] and Carlucci v The State of Western Australia[40] as supporting its submission that the sentence imposed upon the appellant was not manifestly excessive.
Ground 1 - disposition
[39] Musulin v The State of Western Australia [2020] WASCA 18.
[40] Carlucci v The State of Western Australia [2019] WASCA 37.
The maximum penalty for possession of a trafficable quantity of methylamphetamine is life imprisonment. The maximum penalty was increased as a result of amendments made to the MDA in 2017 from 25 years' imprisonment. Where Parliament increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding sentencing outcomes.[41] An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.[42] However, the increase in the maximum penalty does not necessarily mean that in every case there will be a discernible increase in the penalty imposed. This is because the penalty imposed in an individual case will depend not only on the maximum penalty, but on all of the relevant facts, matters personal to the individual offender, and all other relevant sentencing considerations.[43]
[41] See HSV v The State of Western Australia [2020] WASCA 5 [44] ‑ [45].
[42] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].
[43] Musulin [40].
An important aspect of the present case is to understand, as much as the facts allow, exactly what the appellant did. The evidence in this regard was not detailed and it was not known precisely what happened in the period between the vehicle's departure from Mulga Road, Glen Iris, to it being stopped by police. Based on the materials before the sentencing judge and the position of the parties in this court, it appears that the appellant travelled from Perth to Bunbury to do 'a job' without knowing precisely what the job entailed. Given that he was paid $1,066 for the job, it may be inferred that the appellant was aware that the job entailed some kind of illegal conduct.
The appellant and his co‑offender were together in the vehicle for less than an hour. Upon the vehicle being intercepted by police, the appellant was searched and found to be in physical possession of 166.3 g of methylamphetamine with a purity of between 80% and 81%. Exactly how long the appellant was in possession of the drug is not known. It is agreed that the appellant, in effect, hid the drug in his underwear, with the intention of giving it back to the driver of the vehicle, Mr Lorraway. The appellant was aware that the drug would be distributed into the community, although he was not to be a part of that process.
As counsel for the appellant submitted in this court, it therefore appears that the appellant was in temporary possession of the drug for a short period of time. Nevertheless, as the appellant acknowledges, he involved himself in a commercial drug trafficking operation of some scale, and did so for personal reward. Having regard to what is known about the circumstances, we accept the appellant's submission that he was at the low end of the commercial drug trafficking operation.
We now turn to the comparable cases cited by the parties. We will first deal with those cases where the offender was subject to the increased maximum penalty of life imprisonment, being ATH, McGrath and Musulin.
In ATH, the offender was convicted after trial of possession of 977 g of methylamphetamine with a purity of 75 ‑ 77%. The offender drove his co‑offender (M) from a rural location to a Perth suburb for the purposes of M taking delivery of a package of methylamphetamine. M hid the package in the roof cavity of the appellant's vehicle. During the return journey, police stopped the offender's vehicle and found the drugs in the roof cavity. The offender in ATH did not allege that the sentence of 7 years' imprisonment that was imposed upon him was manifestly excessive. Rather, the sole ground of appeal alleged that the sentence imposed upon him infringed the parity principle. Leave to appeal on this ground was refused and the appeal was dismissed.
In McGrath, the offender was convicted on his plea of guilty of one count of possessing 985 g of methylamphetamine with a purity of 78%. He was sentenced to 8 years' imprisonment. The offender was a passenger in a vehicle being driven by a friend which was stopped and searched by police. The offender was found to be in possession of a shopping bag that contained the methylamphetamine. The offender's role in the offending was to assist in the transportation of the methylamphetamine. A short time after the offender got out of the vehicle, as directed by police, he picked up the shopping bag and attempted to run. He then threw the bag over the car, where it landed on a footpath. At the time of the offence, the offender was 27 years old. His record comprised two prior convictions for possession of methylamphetamine, for which he received fines. The aggravating factors identified by the sentencing judge in this case were the quantity of methylamphetamine and that the offender was to receive a commercial benefit for his role in the offending. The offender's sole ground of appeal was that the sentence of 8 years' imprisonment was manifestly excessive. This court upheld the appeal, describing the offender's conduct as 'both fleeting and opportunistic',[44] and considered that his criminality was appreciably lower than the criminality of the offending in other cases, including Al‑Rafei and Bond. The offender was resentenced to 5 years 9 months' imprisonment.
[44] McGrath [58].
In Musulin, the offender was convicted on his plea of guilty of two offences. Count 1 was an offence that he possessed 178.2 g of methylamphetamine with a purity that varied between 68% and 82%. Count 2 was an offence of possession of $125,305 in cash, which was reasonably suspected to have been unlawfully obtained. The offender in Musulin was sentenced on the basis that he was storing a considerable quantity of drugs and cash for others, that he appreciated he was part of a large‑scale drug distribution network and that he was a trusted person within that network. The offender was 36 years old both at time of offending and sentencing. He had a long history of illicit drug use and a lengthy criminal record, including a prior conviction for possession of methylamphetamine with intent to sell or supply. At first instance, the offender was sentenced to 7 years' imprisonment on count 1 and 1 year imprisonment on count 2, to be served cumulatively, which resulted in a total effective sentence of 8 years' imprisonment. The offender appealed to this court on two grounds. First, that the sentence on count 1 was manifestly excessive, and second, that the total effective sentence infringed the first limb of the totality principle. This court dismissed the offender's appeal. Relevantly to the present case, this court found that the sentence of 7 years' imprisonment on count 1 was not manifestly excessive.
We now turn to the cases where the relevant maximum penalty was 25 years' imprisonment and/or a fine of $100,000.
In Carlucci, the offender was convicted on her pleas of guilty of three counts of possession of a prohibited drug with intent to sell or supply it to another, and one count of possession of $33,690 in cash reasonably suspected of being unlawfully obtained. Relevantly, two of the three counts of possession of a prohibited drug with intent to sell or supply involved methylamphetamine. Count 1 concerned 108.7 g of methylamphetamine found by police on 14 November 2015 and count 4 involved 123.9 g of methylamphetamine which the appellant possessed on 19 June 2016. At the time of the offending, the offender was 38 years old and had a limited record of convictions. The offender was engaged in the business of drug dealing and was motivated by financial gain. At the time the offender committed the offence on 19 June 2016, she was on bail in respect of the earlier offending. The offender was sentenced to a total effective sentence of 8 years' imprisonment, which relevantly included 3 years' imprisonment on count 1 and 5 years' imprisonment on count 2, ordered to be served cumulatively. The offender's sole ground of appeal was that the total effective sentence infringed the first limb of the totality principle. This court upheld the ground of appeal and resentenced the offender to a total effective sentence of 6 years 6 months' imprisonment.
In Nguyen, the offender was convicted after trial with one count of possession of 164 g of methylamphetamine with a purity of 82% with intent to sell or supply to another. The offender and another were stopped by police on the Great Northern Highway near Meekatharra. A search of the vehicle revealed the presence of the methylamphetamine. The offender and his co‑accused were in the process of delivering the methylamphetamine to an unknown person or persons for financial reward. At the time he was sentenced, the offender was 48 years old. He had a relatively lengthy criminal record, including prior convictions for possession of prohibited drugs and possession of prohibited drugs with intent to sell or supply. He was found by the sentencing judge to be at risk of committing further drug‑related and other offences. The offender relied on two grounds of appeal. Relevantly to the present case, he alleged that the term of imprisonment imposed upon him at first instance of 5 years 10 months' imprisonment was manifestly excessive. Leave to appeal was refused on all grounds, and the appeal was dismissed.
In Al‑Rafei, the offender pleaded guilty to one count of possession of 2.24 kg of MDMA with a purity of 23% with intent to sell or supply to another. The offender and another drove to a house in Gosnells, where he was handed a bag that contained the drugs. The appellant then left the house. Shortly afterwards, the vehicle in which he was driving was stopped by police and the MDMA was seized. The offender was 23 years of age at the time of offending and 24 years old at the time of sentencing. The sentencing judge described the offender as a 'paid courier'. It was an aggravating factor that the offending had occurred purely for financial gain. The offender was sentenced to 8 years 6 months' imprisonment. His appeal against sentence on the sole ground that the sentence was manifestly excessive was dismissed.
In Bond, the offender, who was 23 years old when the offence occurred, was convicted on his plea of guilty to one count of possession of 3.061 kg of low‑grade methylamphetamine with intent to sell or supply to another. After a trial of the issues, the sentencing judge found that the offender was a 'higher end' courier who had acted for financial gain. The offender had no relevant prior convictions. At first instance, the offender was sentenced to 9 years' imprisonment. This court upheld his appeal against sentence on the ground that the sentence was manifestly excessive. This court substituted a sentence of 7 years' imprisonment.
In respect of the cases decided since the increase in the maximum penalty to life imprisonment, ATH is not a helpful comparator given that the sole ground of appeal in that case was an infringement of the parity principle. The sentence of 7 years' imprisonment that was imposed upon the offender in that case was not examined by this court on the basis that it was manifestly excessive. McGrath is somewhat comparable because the offender in that case, like the appellant, was a passenger in a vehicle being driven by another, who, for a brief period of time, assisted in the transportation of methylamphetamine for reward. Of course, the quantity of methylamphetamine involved in McGrath was much greater than the quantity of methylamphetamine in the present case. The personal circumstances of the offender in McGrath were more favourable than the appellant's. The ultimate outcome in McGrath tends to point towards a finding of manifest excess in the present case. However, the outcome in a single (or even a small number of) comparable case is not decisive.
The quantity of methylamphetamine involved in Musulin is comparable to the quantity involved in the present case. The antecedents of the offender in Musulin were broadly comparable to the antecedents of the appellant. The sentence of 7 years' imprisonment that was imposed upon the offender in Musulin, which was upheld on appeal, was somewhat greater than the sentence imposed upon the appellant, in circumstances where the offending in that case was, in our view, more serious than the offending committed by the appellant.
With respect to the cases decided before the increase in the maximum penalty, all of them, save for Nguyen, involve offending more serious, sometimes considerably more serious, than the offending in the present case. The outcomes in these cases were broadly comparable with the sentence imposed upon the appellant. However, the assistance that these cases provide the appellant is limited, given the subsequent increase in the maximum penalty.
Overall, and giving particular emphasis to the comparable cases that have been decided since the increase in the maximum penalty, and accepting that the facts and circumstances of the cases are not on all fours with the present case, the sentence that was imposed upon the appellant would appear to be, at least, high.
The most significant mitigating factor in this case was the appellant's plea of guilty, for which he was given the maximum reduction available to him under s 9AA of the Sentencing Act. As to the appellant's personal circumstances, the only matters of any significance were the efforts that he had made towards his rehabilitation and the support that he has of his wife and other persons who are close to him. As found by the sentencing judge, the appellant was not entitled to any reduction for remorse, nor could it be said that he was a youthful offender or a person of prior good character.
In cases of the kind committed by the appellant, the sentencing considerations of personal and general deterrence are most important, having regard to the harm caused to the community by drugs such as methylamphetamine. It is also important to bear in mind the increase in the maximum penalty.
It is insufficient for the appellant to show the sentence that was imposed on him was high. The question is not whether the sentence imposed was high, but whether it was so high as to fall outside the range of a sound exercise of the sentencing discretion and thus meet the requirement that it was unreasonable or plainly unjust. In the end, after considering the facts and circumstances of the case, we have concluded that the sentence falls outside the range of a proper exercise of the sentencing discretion and is manifestly excessive. We have come to this conclusion primarily because, on the facts as known, the appellant's possession of the methylamphetamine was brief, if not fleeting, and involved an intention to, in effect, return the methylamphetamine to the driver of the vehicle. Although it is true that the quantity of methylamphetamine involved was significant and the appellant was paid for his actions, he was, at the end of the day, at a low level in the commercial drug trafficking enterprise. There is nothing to indicate that he was the owner of the methylamphetamine or that he was to be involved or have some continuing role in the actual sale of the drugs. While the appellant's antecedents were mixed, he pleaded guilty, had voluntarily undertaken counselling at the Whitehaven Clinic at his own expense and had the support of his family. He appears to have severed his connections with the Coffin Cheaters. These circumstances point favourably towards his rehabilitation.
For these reasons, we would grant leave to appeal on ground 1, uphold the ground and set aside the sentence imposed at first instance. It is now for this court to resentence the appellant.
Resentencing
This court has all the information it requires to resentence the appellant. It is unnecessary to repeat what we have already said concerning the facts of the offending and the appellant's antecedents. Given the strength of the case against the appellant, we would give a discount of 20% pursuant to s 9AA of the Sentencing Act for the appellant's plea of guilty. We would resentence the appellant to 5 years' imprisonment. In our opinion, this reflects the criminality of what the appellant did and satisfies the need for general deterrence. We would order that the appellant be eligible for parole and the sentence be backdated to commence on 7 August 2021.
Conclusion and orders
We would allow this appeal against sentence. The orders that we would make are as follows:
1.Leave to appeal on grounds 1 and 3 is granted.
2.Leave to appeal on ground 2 is refused.
3.The appeal is allowed.
4.The sentence imposed by Sharp DCJ on 23 June 2022 in respect of count 1 is set aside and substituted with a sentence of 5 years' immediate imprisonment. All of the other orders made by Sharp DCJ stand.
5.For the avoidance of doubt, the appellant is now subject to a total effective sentence of 5 years' immediate imprisonment with eligibility for parole to commence on 7 August 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
17 JULY 2023
6
23
0