Jiang v The State of Western Australia
[2020] WASCA 7
•15 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JIANG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 7
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 4 DECEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: CACR 244 of 2018
BETWEEN: XU JIANG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 2180 of 2017
Catchwords:
Criminal law - Appeal against sentence - Possession of prohibited drug with intent to sell or supply - Whether sentencing judge made express error as to offender's role in enterprise - Whether sentence of 6 years' imprisonment manifestly excessive - Whether sentencing judge erred in applying discount of 5% under s 9AA of the Sentencing Act 1995 (WA) for a very late plea of guilty in response to a strong prosecution case
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on ground 3
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Sklarz Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Harding v The State of Western Australia [2015] WASCA 27
Jackamarra v The State of Western Australia [2019] WASCA 150
Jneid v The State of Western Australia [2018] WASCA 67
Kobeissi v The State of Western Australia [2016] WASCA 188
Mussarri v The State of Western Australia [2018] WASCA 46
Ngo v The State of Western Australia [2007] WASCA 221
Pham v The State of Western Australia [2011] WASCA 244
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
RMM v The State of Western Australia [2018] WASCA 183
Stokes v The State of Western Australia [2016] WASCA 87
Taylor v The State of Western Australia [2016] WASCA 210
Tran v The State of Western Australia [2016] WASCA 37
Tricoli v The State of Western Australia [2011] WASCA 74
Wellstead v The State of Western Australia [2019] WASCA 130
Winmar v The State of Western Australia [2018] WASCA 155
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
BUSS P & MITCHELL JA:
Summary
On 31 October 2018, the appellant was convicted, on her plea of guilty, of one count of possession of a prohibited drug (namely 1.97 kg of cocaine) with intent to sell or supply it to another. That is an offence against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). She pleaded guilty to that offence on the first day listed for trial, having advised the State of her change of plea about a week earlier. On 7 December 2018, the appellant was sentenced to 6 years' imprisonment. She was made eligible for parole, and her sentence was backdated to 7 December 2016 to take account of time spent in custody on remand.
The appellant now seeks leave to appeal against her sentence on three grounds. Ground 1 contends that the sentencing judge erred in finding that the appellant's role in the enterprise included 'hiring cars' and 'driving the co-offenders around'. Ground 2 in effect contends that the sentence is manifestly excessive. Ground 3 contends that the sentencing judge erred in applying an insufficient discount of only 5% for the plea of guilty, under s 9AA of the Sentencing Act 1995 (WA).
For the following reasons leave to appeal should be granted on grounds 1 and 2, but the appeal should be dismissed.
Circumstances of offending
The sentencing judge made the following findings as to the circumstances of the appellant's offending.
The appellant's travel to Perth
The appellant arrived in New Zealand at the age of 15. At about that time, she became friends with her co-offender, Shan Shan Wang, whose family she treated as her own. Eventually, Ms Wang became estranged from her husband in New Zealand and moved to Perth.[1]
[1] Primary ts 220 - 221.
In around September 2016, Ms Wang's husband asked the appellant to contact Ms Wang as he was concerned about her welfare. The appellant contacted Ms Wang. Ms Wang, who did not speak English, regularly asked the appellant to come to Perth to visit her and help her. Ms Wang told the appellant that she had rented an apartment for the appellant in Perth. The appellant eventually travelled to Perth to visit Ms Wang, arriving on 8 November 2016.[2]
[2] Primary ts 221.
By that time, Ms Wang was a regular user of methylamphetamine.[3] Ms Wang told the appellant about a failed business venture where she had lent money. Ms Wang told the appellant that she needed the money back that she had lent, and that she had cancer.[4]
[3] Primary ts 220.
[4] Primary ts 221.
The appellant was respectful of Ms Wang as an older person and as part of her culture. It was this friendship and respect which caused the appellant to assist Ms Wang.[5]
[5] Primary ts 219, 221.
Ms Wang did not give the appellant any indication of her involvement in the drug dealing activity between her arrival in Perth on 8 November 2016 up to 7 December 2016.[6]
Police surveillance operation
[6] Primary ts 219.
From September 2016, surveillance of Ziongsheng Zheng was conducted as part of a joint investigation by State and Federal authorities. On 8 November 2016, Mr Zheng collected the appellant's co-offender Chun Man To from Perth Airport, after Mr To arrived on a flight from Hong Kong. Surveillance revealed discussions about Mr To expecting the arrival of prohibited drugs from 'the boss', which he was going to provide to Ms Wang and Chunsong Xu. Mr Xu was the appellant's other co-offender and the partner of Ms Wang. Mr Zheng and Mr To regularly visited the Bedford address of Ms Wang and Mr Xu.[7]
[7] Primary ts 215 - 216.
Surveillance of the above persons in November and early December 2016 intercepted discussions about the planned importation, distribution and manufacture of prohibited drugs.[8]
[8] Primary ts 216 - 217.
On 6 December 2016, in an intercepted telephone call, Ms Wang advised the appellant that drugs had arrived in a coded manner. However, at that stage the appellant was not aware that Ms Wang was talking about drugs or illegal activity. Ms Wang told the appellant to rent a car and to 'finish the stuff' on her side.[9]
Events of 7 December 2016
[9] Primary ts 217.
At 3.20 pm on 7 December 2016, Ms Wang advised the appellant to meet her at a unit in an apartment complex on Hay Street at 6 pm as the two of them needed to work.[10]
[10] Primary ts 217.
Ms Wang and Mr To entered the apartment complex at 5.03 pm. The appellant was observed on the street outside the complex at 6.24 pm. At 6.40 pm, Ms Wang advised the appellant to stay downstairs, and that 'it was being done upstairs'. This was a reference to Ms Wang and Mr To attempting to cut open a metal cylinder containing drugs inside the apartment.[11]
[11] Primary ts 217.
The appellant became suspicious of what was going on at the apartment on the evening of 7 December 2016, by reason of the behaviour of the co-offenders between 5 pm and 6.30 pm.[12]
[12] Primary ts 219 - 220.
At 6.53 pm, the appellant travelled in a vehicle with a male known as Wei Sui to Bunnings in Inglewood. The appellant remained in the vehicle. Mr Sui was then observed purchasing items with the intention that they would be used to cut open the metal cylinder containing the drugs. By this time, the appellant was aware that she was assisting the other co‑offenders in a criminal activity.[13]
[13] Primary ts 217, 220.
The appellant then returned to the apartment complex, and carried inside the items which had been purchased at Bunnings. Whilst the appellant was inside the apartment, Mr To was receiving instructions on how to open the metal cylinder containing the drugs. However, he was unable to open the cylinder, and needed to change locations as a smoke alarm in the apartment kept going off.[14]
[14] Primary ts 218.
In a telephone call at 7.23 pm, Ms Wang told Mr Sui that they were unable to open the metal cylinder and arranged to take it to him at the Bedford address. The appellant then drove a vehicle in which Mr To was a passenger, and which contained the metal cylinder with the drugs inside, to the Bedford address.[15] By this time, the appellant was aware that the metal cylinder contained a considerable amount of drugs. However, she did not have direct knowledge of the exact amount of the drugs or the type of drugs contained in the cylinder.[16]
[15] Primary ts 218.
[16] Primary ts 220.
Upon arrival at the Bedford address, Mr Sui retrieved the metal cylinder containing the drugs from the vehicle and took it inside the house.[17]
[17] Primary ts 218.
After arriving at the Bedford address, the appellant travelled with Mr Xu to a Bunnings store in Morley. In a finding challenged by ground 1, the sentencing judge found that the appellant 'had driven him' there. The appellant paid for the tools selected by Mr Xu and returned to the Bedford address.[18]
[18] Primary ts 219.
The police then executed a search warrant at the Bedford address. The appellant was in the living room area, sitting at a table. Police observed Mr Xu using an angle grinder to cut into the metal cylinder, while Mr To and Ms Wang were watching him. The appellant and her co‑offenders were arrested.[19]
[19] Primary ts 214, 218.
Police then arranged for the fire brigade to attend the address in order to cut open the metal cylinder. Inside the cylinder was a green package that contained 11 packets of varying size, wrapped in aluminium foil. Each package contained a quantity of cocaine. The total amount of cocaine was 1.97 kg, ranging in purity from 79 - 89%. During the search of the Bedford house, police also seized a total of 253.8 g of cutting agent and digital scales.[20]
[20] Primary ts 214 - 215.
The appellant was not going to receive any financial benefit for her role in the offence. The appellant's motive was to assist her friend, Ms Wang. The appellant believed Ms Wang's involvement was to recover a $500,000 debt relating to a failed business venture involving Mr Xu, with whom she was in a relationship. Ms Wang was the person giving the appellant directions. The sentencing judge accepted that, to some extent, Ms Wang manipulated the appellant.[21]
[21] Primary ts 219.
The appellant had no involvement in the planning or organisation to get the drug package to the apartment in Hay Street or into Australia. The cylinder containing the drugs was sent in the post from Hong Kong. There was no suggestion that the appellant would be involved in the distribution of the drugs or had any direct knowledge of how the drugs would be distributed. Her role was confined to her aiding activities carried out on the night of 7 December 2016, involving two trips to Bunnings where tools were purchased to open the metal cylinder containing the drugs, and driving the vehicle with Mr To and the cylinder of drugs from the Hay Street apartment to the Bedford address.[22]
[22] Primary ts 219.
Personal circumstances
The appellant was 33 years old at the time of sentence. She was single with no children. The appellant was born in China, where her family still lives. At the age of 15, she went to New Zealand, where she finished high school and later studied a Bachelor of Applied Science. She was a dedicated student and received financial support from her parents.[23]
[23] Primary ts 220.
The appellant had met Ms Wang in the small Chinese community that the appellant was involved with in New Zealand. The appellant treated Ms Wang's family as her own.[24]
[24] Primary ts 221.
The appellant had never consumed drugs. She had no criminal record and was a person of previous good character. The appellant was likely to be deported from Australia upon completion of her prison sentence.[25]
[25] Primary ts 221.
In 2014 and 2015, the appellant's parents invested in a bar in New Zealand. The appellant was the owner of the bar, and employed seven persons. The business was successful, but went into liquidation in 2017 while the appellant was in custody. The appellant's parents lost their investment in the business.[26]
[26] Primary ts 220.
The appellant's family and friends live outside Australia.[27]
[27] Primary ts 225.
The appellant wanted to resume her life living in New Zealand, where she had spent all her adult life until travelling to Perth to visit Ms Wang in November 2016.[28]
[28] Primary ts 221.
Sentencing judge's approach
The sentencing judge identified the following aggravating factors of the appellant's offending:[29]
(1)Although the appellant did not know exactly what type of drugs were contained in the metal cylinder, she knew that it was a substantial amount of prohibited drugs.
(2)The offence generally involved a commercial enterprise to obtain and sell a substantial amount of cocaine - 1.97 kg at a high purity of 79 - 89% - within Australia.
[29] Primary ts 221.
The sentencing judge identified the following mitigating factors:[30]
(1)The appellant's plea of guilty, which was entered at a very late stage (on the day that her trial was to commence), for which the sentencing judge allowed a reduction of 5% under s 9AA of the Sentencing Act.
(2)The appellant was genuinely remorseful for her behaviour, which was evident from her plea of guilty and her significant efforts to rehabilitate herself while in prison.
(3)The appellant was at low risk of re-offending.
(4)The appellant was a person of previous good character, having been gainfully employed all her adult life.
(5)The appellant would be separated from her family and friends and would be deprived of their support whilst she serves a term of imprisonment.
(6)The appellant had made some admissions when questioned by investigating police officers on the night of her arrest.
[30] Primary ts 222 - 225.
The sentencing judge correctly recognised that the major sentencing considerations for offences of dealing or trafficking dangerous drugs of addiction are general and personal deterrence. His Honour observed that matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[31]
[31] Primary ts 224.
The sentencing judge observed that the nature and level of the offender's participation in drug dealing or trafficking and whether the offending was committed for commercial gain were also relevant matters.[32]
[32] Primary ts 224.
The sentencing judge considered that the appellant's offending was serious due principally to the amount of drug that she jointly possessed with the co-offenders by aiding them on the evening of 7 December 2016. It was a substantial amount of cocaine at a high level of purity. It could have been cut to increase the profit on sales.[33]
[33] Primary ts 224.
However, his Honour observed that:[34]
(1)The appellant's participation in the offence and within the drug dealing organisation was much less than the co-offenders.
(2)The appellant's role was at the bottom end of the hierarchy that involved the drug dealing.
(3)The appellant did not participate for her own commercial benefit. Her participation was to assist Ms Wang, who the appellant believed was seeking to recover a substantial debt that she was owed.
(4)The appellant played a role (assisting or aiding the people higher up the hierarchy to obtain access to a substantial amount of drugs) only on 7 December 2016.
[34] Primary ts 224 - 225.
The sentencing judge dealt with the issue of parity in the following terms:[35]
Dealing with the issue of parity between you and the three co-offenders, Mr To, Mr Xu and Ms Wang, your individual role was at the bottom end of the hierarchy that involved this drug dealing. You played a role only on 7 December 2016, that was assisting or aiding the people higher up the hierarchy, obtaining access to a substantial amount of drugs contained in the metal cylinder. You were a link in the drug dealing chain which was involved in obtaining a large quantity of drugs for distribution in Australia.
In relation to your personal antecedents, I am unable to find anything that significantly distinguishes you from the other three co-offenders. You should receive a lesser sentence than your three co-offenders, reflecting your lesser and limited role in committing the offence.
[35] Primary ts 225.
The sentencing judge considered that imprisonment was the only appropriate sentence in the circumstances.[36]
[36] Primary ts 224 - 225.
The sentencing judge considered that the appellant should receive a lesser sentence than her three co-offenders, reflecting her lesser and limited role in the offence.[37]
[37] Primary ts 225.
The sentencing judge then imposed the sentence of 6 years' imprisonment, with eligibility for parole.
Ground 1: alleged factual errors
It is convenient to begin by addressing the alleged factual errors made by the sentencing judge.
The appellant's role in hiring cars
The appellant contends that the sentencing judge erred by finding that she aided the offending by 'hiring cars'. The alleged factual finding appears in the following passage of the sentencing judge's remarks:[38]
The State generally described your role and the role of your three co‑offenders as follows. Firstly, Mr To was the representative of the drug syndicate that sent drugs to Perth. Mr To's role was to facilitate the delivery of drugs to Ms Wang and to represent the syndicate's interests.
Secondly, Ms Wang purchased the drugs and had direct contact with Mr To and the drug syndicate.
Due to her role, Ms Wang had control over the involvement of Mr Xu and you. This was Ms Wang's first involvement with the drug syndicate and she became involved due to her relationship with Mr Xu.
Thirdly, Mr Xu was a drug dealer who was associated with the drug syndicate. Mr Xu was assisting Ms Wang in distributing the drugs.
Fourthly and finally, you were friends with Ms Wang. You aided in the offending by performing minor tasks at Ms Wang's direction. This included hiring cars, driving the co-offenders around, purchasing items and transporting the drugs.
The State accepts that of the four offenders, you were the least culpable of the offenders. (emphasis added)
[38] Primary ts 218 - 219.
The appellant submits that:[39]
[T]he correct fact is that the only car the Appellant had hired was one month before and used it for her own personal use. She did not hire a car for use in this offence nor did she use her hire car in this offence.
[39] Appellant's Amended Submissions, par 3.
We accept that it would not have been open to the sentencing judge to find that the appellant aided in the offending by 'hiring cars'. The judge found that Ms Wang instructed the appellant to hire a car on 6 December 2016, at a time when the appellant was unaware of drugs or illegal activity. The judge also found that the appellant's awareness of and involvement in the illegal activity did not begin until the evening of 7 December 2016. The appellant could not be said to have aided an offence which she did not know was being, or was going to be, committed.[40] A conclusion that the appellant aided the others' offending by hiring cars would have been inconsistent with the findings to which we have just referred. If the sentencing judge had found that the appellant had aided in the offending by hiring cars, that would have been a material error of fact.
[40] See Taylor v The State of Western Australia [2016] WASCA 210 [52] - [59].
However, the sentencing judge was not making findings as to the acts performed by the appellant in the passage quoted at [42] above. Rather, his Honour was summarising the position which had initially been advanced by the State as to the respective roles of the offenders. His Honour then went on to describe what the appellant did to aid her co-offenders, in terms which did not include references to hiring cars.[41] The sentencing judge did not make any finding as to the identity or provenance of the vehicles used to drive to and from the Bunnings stores, or between the Hay Street apartment and the Bedford address. We reach these conclusions for the following reasons.
[41] Primary ts 219.
The passage of the sentencing judge's remarks set out at [42] above is almost a direct quote from the following part of the prosecutor's initial statement of material facts:[42]
The role of the offenders were as follows. The offender To was the representative of a drug syndicate that sent the drugs to Perth. To's role was to facilitate the delivery of the drugs to Wang, the offender Wang, and to represent the syndicate's interests. The offender Wang, her role was that she purchased the drugs and had direct contact with the offender To and the drug syndicate. Due to her role Wang had control over the involvement of the offender Xu and the current offender.
This was Wang's first involvement with the drug syndicate and she became involved due to her relationship with Mr Xu. Mr Xu's role - he was a drug dealer who was associated with the drug syndicate. Xu was assisting Wang in distributing the drugs. The current offender's role was that she was friends with Ms Wang and she aided in the offending by performing minor tasks at Wang's direction. This included hiring cars, driving the co-offenders around, purchasing items and transporting the drugs. (emphasis added)
[42] Primary ts 166.
After the prosecutor's initial statement of material facts, the sentencing judge asked the prosecutor to clarify a number of aspects of the State's contentions as to what the appellant had done. In response to the judge's questions, the prosecutor indicated that the State could not say that the appellant knew that Ms Wang was talking about drugs in the intercepted telephone conversation on 6 December 2016.[43] The State eventually conceded the appellant's involvement really started on 7 December 2016.[44]
[43] Primary ts 172.
[44] Primary ts 173 - 174.
The sentencing judge then put to the prosecutor his Honour's understanding as to the manner in which the appellant was involved in the offending. Reference was made to the trips to the Bunnings stores, taking equipment inside the Hay Street apartment and the transportation of the drugs from the Hay Street apartment to the Bedford address.[45]
[45] Primary ts 174 - 176.
The sentencing judge asked the prosecutor the following questions about the car used by the appellant to transport the drugs from the Hay Street apartment to the Bedford address:[46]
PRIOR DCJ: Okay. And that's her car or a hire car?
ROSENTHAL, MR: Hire car.
PRIOR DCJ: Which she hired, what, the day before?
ROSENTHAL, MR: Yes. There's - there's quite a few hire cars going around. I'm not sure if it was her or Ms Wang.
PRIOR DCJ: Okay. So the State's saying - - -
ROSENTHAL, MR: But they were hiring cars, in any event, even over - the entire period that she had been here there'd been hire cars. There were also hire cars for innocent purposes.
PRIOR DCJ: Yes. But her knowledge about the drug-dealing activity doesn't start, from the State's perspective, [until] 7 December.
ROSENTHAL, MR: Correct.
[46] Primary ts 176 - 177.
The appellant's sentencing counsel advanced the position that the appellant was not aware that she was involved with the drug offence, and did not have any suspicions, on 6 December 2016. Counsel said that the appellant's instructions were that she first became suspicious of illegal activity occurring when she attended the Hay Street apartment on 7 December 2016.[47]
[47] Primary ts 190.
In his sentencing remarks, the trial judge began by setting out the events in the period from 8 November 2016 to 7 December 2016. His Honour then made the impugned remarks quoted at [42] above. Immediately after making those remarks, the sentencing judge said:[48]
Your involvement in the offence did not start until the evening of 7 December 2016, some hours before the police executed the search warrant at [the Bedford address].
[48] Primary ts 219.
The sentencing judge referred to the two trips to Bunnings, the appellant carrying tools purchased on the first trip to Bunnings up to the Hay Street apartment and the transportation of the drugs from the apartment to the Bedford address. After referring to other matters, the judge observed:[49]
Your role was confined to your aiding activities which you carried out on the night of 7 December 2016.
[49] Primary ts 219.
The sentencing judge then went on to make findings as to the appellant's state of knowledge. His Honour found that the appellant became suspicious of what was going on at the Hay Street apartment on the evening of 7 December 2016. She was aware she was assisting her co-offenders in a criminal activity by the time of the first trip to Bunnings. By the time Mr To put the metal cylinder into the car she was driving, the appellant was aware that it contained a considerable amount of drugs.[50] The sentencing judge concluded his findings about the appellant's offending conduct by observing:[51]
Ultimately, you played a role on the night of 7 December 2016, in aiding the co-offenders to obtain nearly 2 kilograms of high purity cocaine. (emphasis added)
[50] Primary ts 220.
[51] Primary ts 220.
In our view, it is clear that the sentencing judge was not making findings as to the appellant's involvement in the offending in the passage set out at [42] above. At that point, the sentencing judge was merely setting out the State's initial position as to what that involvement was, without adopting what the State had said. His Honour then proceeded to make his own findings as to the appellant's involvement. In doing so, the judge made no reference to the hiring of cars. His Honour found that the appellant's knowledge and involvement began on the evening of 7 December 2016, in a context where there was no suggestion that the appellant had hired a car at that time.
In these circumstances, there is no proper basis for concluding that the sentencing judge erred in the manner alleged by this aspect of ground 1, by finding that the appellant aided the offending by 'hiring cars'.
Whether the appellant drove the vehicle in the second trip to Bunnings
The appellant also contends that the sentencing judge erred in finding that the appellant drove Mr Xu to the Bunnings store on the second occasion and was 'driving the co-offenders around'.
The finding that the appellant drove Mr Xu to the Bunnings store appears in the following passage of the judge's sentencing remarks:[52]
On the second trip to the Bunnings store in Morley, after you'd driven to [the Bedford address] you paid for the tools selected by Mr Xu with a credit card. Mr Xu did not speak English. You had driven him to the Bunnings store. (emphasis added)
[52] Primary ts 219.
The prosecutor's statement of facts had not made it clear who drove to the Bunnings store on the second occasion.
The sentencing judge asked the prosecutor whether the appellant was the driver on the second trip to Bunnings. The prosecutor responded that he 'believe[d] so'.[53] However, after indicating that she had concluded her submissions, the following exchange occurred between the sentencing judge and the appellant's sentencing counsel:[54]
[53] Primary ts 177 - 178.
[54] Primary ts 207.
McGREGOR, MS: Thank you. Can I just take some - - -
PRIOR DCJ: Yes, sure.
McGREGOR, MS: - - - instructions? Thank you. Ms Jiang just wished to confirm the second Bunnings trip - - -
PRIOR DCJ: Yes.
McGREGOR, MS: - - - she instructs she was the passenger, not the driver of the vehicle.
PRIOR DCJ: Is that right, Mr Rosenthal?
ROSENTHAL, MR: Can I just have a moment.
PRIOR DCJ: So that's with Mr Xu to Bunnings in Morley? The Nissan Micra, it would seem.
ROSENTHAL, MR: Your Honour, I don't seek to push it one way or the other.
PRIOR DCJ: But she goes in there - - -
ROSENTHAL, MR: She's in - - -
PRIOR DCJ: - - - because Xu can't speak English.
ROSENTHAL, MR: They go in together, she purchases - I don't really think it matters - - -
PRIOR DCJ: And she's - - -
ROSENTHAL, MR: - - - who drove.
PRIOR DCJ: - - - now aware that there's drugs involved.
ROSENTHAL, MR: I just don't think it's - in that sense if the offender is saying that she is the passenger I don't seek to - - -
PRIOR DCJ: Yes.
ROSENTHAL, MR: - - - urge your Honour otherwise.
PRIOR DCJ: But she uses Mr [sic] Wang's card to pay for what Mr Xu picks out, the equipment.
It appears from the above passage that the appellant disputed, and the prosecutor did not press, the contention that the appellant drove the car to the Bunnings store on the second occasion. In these circumstances, it was not open to the sentencing judge to make this finding without evidence and notice to the appellant.[55] The factual error is established.
[55] See RMM v The State of Western Australia [2018] WASCA 183 [199] - [201].
The question then arises as to whether this express error is material. As Mazza JA (Hall J agreeing) observed in Harding v The State of Western Australia:[56]
It is important to appreciate that not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene. The nature of the error which enlivens this court's jurisdiction to intervene was described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504 ‑ 505. The error must be in the exercise of the sentencing discretion at first instance. An express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King and does not enliven this court's jurisdiction. Whether a particular express error is material will depend upon a consideration of the circumstances of the particular case, but it is as well to appreciate that combing through sentencing remarks on the hunt for some minor express error will be unproductive unless it can be shown to be material to the exercise of the sentencing discretion.
Once an express error of the type described in House v The King has been demonstrated, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing discretion has miscarried and it is the duty of the appellate court to exercise the discretion for itself afresh. (some citations omitted)
[56] Harding v The State of Western Australia [2015] WASCA 27 [73] - [74], adopted in Jackamarra v The State of Western Australia [2019] WASCA 150 [52].
The statement that the appellant drove Mr Xu to the Bunnings store on the second occasion was an error that did not affect, and was incapable of affecting, the sentence that the sentencing judge imposed on the appellant. The aspect which aggravated the appellant's criminality was her participating in and assisting Mr Xu (who did not speak English) with the purchase of tools to be used to gain access to the drugs in the metal cylinder. As the prosecutor noted in the submissions quoted above, once that is established it does not matter who was the driver and who was the passenger of the vehicle. The error was not material, and does not enliven the jurisdiction of this court to resentence the appellant.[57] The appellant's appeal counsel ultimately conceded that the error as to who drove the vehicle to the second Bunnings store was not material.[58]
[57] As to which, see Wellstead v The State of Western Australia [2019] WASCA 130 [87] - [90].
[58] Appeal ts 28.
The appellant's second contention, namely that the sentencing judge erred in finding that the appellant was 'driving the co-offenders around', is based on the passage quoted at [42] above. As already noted, in this passage the sentencing judge was not making factual findings. Rather, his Honour was summarising submissions which had been advanced by the State, without adopting them. This complaint is without merit.
Disposition of ground 1
The appellant has not established that the sentencing judge erred by finding that the appellant had hired cars. While the sentencing judge did find that the appellant drove Mr Xu to the Bunnings store when that finding was not open on the material before the sentencing judge, that error was not material. At the hearing of the appeal, the appellant's counsel accepted that the rejection of these contentions means that ground 1 fails.[59] While leave to appeal should be granted on ground 1, the ground is not established.
[59] Appeal ts 32.
Ground 3: s 9AA of the Sentencing Act
It is then convenient to turn to ground 3, which contends that the 'sentencing Judge erred in fact and law by applying an insufficient discount of only 5% for the plea of guilty pursuant to' s 9AA of the Sentencing Act.
The sentencing judge addressed the appellant's plea of guilty in the following passage of his Honour's sentencing remarks:[60]
You pleaded guilty in this court on 31 October 2018. Your trial was due to commence on that day. It was listed for eight days. You advised the State of your change of plea to a guilty plea a week before the trial was due to commence.
The plea of guilty was therefore at a very late stage. The prosecution case against you was strong. Some negotiations did occur in relation to the prosecution case against you. You will receive some reduction in your sentence for your plea of guilty.
I accept that you are genuinely remorseful for your behaviour. You have lost the respect of your parents and are estranged from them in China. Your plea of guilty and your efforts to rehabilitate yourself while in prison are examples of your remorse.
[60] Primary ts 222.
Later, the sentencing judge said:[61]
Your guilty plea has resulted in a trial being avoided which is of benefit to the State. Your three co-offenders pleaded guilty to the offence at a much earlier stage. The charge against them had not been listed for trial.
The prosecution case against you was strong given you were found by the police in joint possession of the drug on 7 December 2016 when the police entered [the Bedford address], the various telephone call intercept products, the observations of the surveillance operatives and [another matter].
In accordance with the provisions of section 9AA of the Sentencing Act I will allow a discount of your head sentence from the sentence I would otherwise have imposed had you been found guilty of the offence after trial and there were no mitigating factors. I will reduce your head sentence by 5 per cent.
[61] Primary ts 223.
The general principles governing the application of s 9AA of the Sentencing Act are well established. They were summarised by Buss P in Mussarri v The State of Western Australia,[62] and need not be repeated here.
[62] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52].
While a judge may choose to say something to explain the discount that is applied, generally at least there is no obligation to do so, and the failure to do so would not be an error of law or occasion a miscarriage of justice.[63] However, in the present case, the sentencing judge did give reasons for the discount which his Honour applied under s 9AA of the Sentencing Act. Those reasons cogently explain why a discount of only 5% was allowed.
[63] Mussarri [104].
The benefits to the State resulting from the appellant's plea of guilty were limited by a number of factors. The plea was indicated and entered very late. The planned 8 day trial was not unusually long. There were no victims who would find giving evidence to be a traumatic experience. Much of the evidence would have come from police officers and other public officers who routinely give evidence as part of their official duties. There is no challenge to the sentencing judge's assessment that the case against the appellant was strong.
Further, it is important, in evaluating the appropriate discount to be given under s 9AA, to bear in mind the underlying purpose or object of the provision.[64] That purpose may be seen to be defeated if offenders who plead guilty on the day of or shortly before trial are accorded a discount comparable with offenders who plead guilty at an earlier stage. Section 9AA(3) reflects that policy, expressly providing that the earlier in the proceedings the plea is made, the greater the reduction in sentence may be.
[64] See Winmar v The State of Western Australia [2018] WASCA 155 [31].
In these circumstances, it was well open to the sentencing judge to consider that a discount of only 5% was appropriate for the very late plea of guilty. No express or implied error has been established in the exercise of his Honour's discretion under s 9AA of the Sentencing Act. Further, his Honour appropriately treated the appellant's remorse and acceptance of responsibility, in part reflected in the plea, as additional mitigating factors.
Ground 3 is not reasonably arguable. Leave to appeal should be refused on that ground.
Ground 2: manifest excess
The substance of ground 2 is that the sentence of 6 years' imprisonment is manifestly excessive.
General principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Appellant's submissions
The appellant submits that the sentence of 6 years' imprisonment is manifestly excessive taking into consideration the exceptional circumstances of the appellant's very low level of involvement over a very short period and given her personal antecedents.
The appellant points out that she had minimal involvement of only a few hours (between 6 pm and 9 pm) before police attendance on 7 December 2016. She had limited knowledge of the enterprise, obtained no financial benefit, had no prior involvement in planning or organisation and had no involvement in, or knowledge of, any plan to distribute the drugs. She was motivated to assist Ms Wang, a friend of 15 years' standing, out of respect and friendship, believing Ms Wang was subject to an onerous debt recovery. She acted on the direction of Ms Wang who instructed the appellant to do specific acts.
The appellant submits that her involvement was so late and incidental to the co-offenders' criminal purpose that the sentence was manifestly excessive. It was a one-off offence committed without premeditation and over a very short period of time. The offending was out of character for a person with otherwise excellent personal antecedents who demonstrated genuine remorse and was at low risk of reoffending.
Maximum penalty
The maximum penalty for the appellant's offence against s 6(1)(a) of the Misuse of Drugs Act involving cocaine is imprisonment for 25 years and a $100,000 fine.[65]
Customary sentencing standards
[65] Section 34(1) of the Misuse of Drugs Act.
In Rillotta v The State of Western Australia, this court endorsed the following observations made in Tran v The State of Western Australia:[66]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
This court then identified the factors which inform an assessment of the overall criminality involved in a series of commercially driven drug offences as including the quantity of drugs involved, the offender's knowledge about the drugs involved, the offender's role in the operation and the reward which the offender anticipated receiving.[67]
[66] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32[33], quoting Tran v The State of Western Australia [2016] WASCA 37 [29].
[67] Rillotta [34], citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].
In Tricoli v The State of Western Australia,[68] this court referred to a number of cases and observed that possession of a large quantity of cocaine often attracts sentences of up to 10 years' imprisonment. That case involved possession of 436.59 g of cocaine, with a purity of about 68%, with intent to sell or supply, which the court described as a large quantity. The court upheld a sentence of 6 years' imprisonment imposed on the 32 year old offender, who had a history of drug use but otherwise had good antecedents. The offender had been holding and selling the cocaine. The offender pleaded guilty at the first reasonable opportunity.
[68] Tricoli v The State of Western Australia [2011] WASCA 74 [5].
The respondent refers to the approach taken by this court in relation to sentences for methylamphetamine, where there are a number of cases in which a total quantity of around 1 kg of methylamphetamine attracted sentences of between 9 years' and 12 years' imprisonment.[69] This court has observed that cocaine can be equated with methylamphetamine.[70] This observation must now be qualified by the increase in the maximum penalty for possession of methylamphetamine with intent to sell or supply to life imprisonment. However, the cases to which the respondent refers were decided when the maximum penalties in respect of cocaine and methylamphetamine were the same.
[69] See Kobeissi v The State of Western Australia [2016] WASCA 188 [31].
[70] Ngo v The State of Western Australia [2007] WASCA 221 [25].
The respondent also refers to a number of cases in which offenders have been convicted of short term involvement in the possession of significant quantities of methylamphetamine as couriers or bailees in which sentences broadly similar to the 6 year sentence in this case were upheld.[71]
Seriousness of offending
[71] Pham v The State of Western Australia [2011] WASCA 244; Stokes v The State of Western Australia [2016] WASCA 87 and the offender Obradovic in Jneid v The State of Western Australia [2018] WASCA 67.
The quantity and purity of the cocaine involved are significant aggravating factors of the appellant's offending. The appellant participated in an enterprise involving the importation and planned distribution of a significant amount of prohibited drugs into Australia.
At the hearing of the appeal, counsel for both the appellant and the respondent accepted that the correct facts and circumstances of the appellant's offending were as follows:[72]
(1)The appellant's involvement in the offending began on 7 December 2016.
(2)The appellant hired a car, but the hiring occurred on the day before her involvement in the offending began.
(3)On 7 December 2016, the appellant knowingly aided the offending as follows:
(a)The appellant travelled as a passenger in a car driven by a co-offender to a Bunnings store. She remained in the car outside the front of Bunnings while the co-offender went inside and purchased some tools. The purpose of travelling to Bunnings to purchase the tools was to obtain equipment to open the cylinder containing the drugs.
(b)Upon returning from Bunnings to the Hay Street apartment, the appellant carried some of the purchased tools from the car to the apartment.
(c)The appellant drove a car with a co-offender as a passenger and with the cylinder containing the drugs in the boot of the car from the Hay Street apartment to the Bedford address.
(d)The appellant travelled as a passenger in a car driven by a co-offender to a Bunnings store on a second occasion to purchase some additional tools to open the cylinder containing the drugs. Both the appellant and the co-offender went inside the Bunnings store. The appellant paid for the tools that were selected by the co-offender. The appellant then travelled as a passenger in the car with the tools to the Bedford address.
[72] Appeal ts 13 - 14.
Significantly, the appellant herself transported the container which she then knew contained a substantial quantity of prohibited drugs from the Hay Street apartment to the Bedford address. On the second trip to Bunnings, she also paid for and assisted in the purchase of tools which she knew would be used to open the cylinder of drugs that the offenders were having difficulty accessing. She played a significant and useful role in the offending, albeit that her assistance was not essential to the operation.
It is true that the appellant was only knowingly involved in the enterprise for a few hours before police intervened. She did not expect or receive a financial reward for her assistance, and was acting out of a misguided sense of loyalty to a friend. The appellant had no knowledge of, or involvement in, planning for the importation and subsequent distribution of the drugs. However, she was generally aware of the scale of the offending in which she was knowingly participating. Although she did not expect any personal financial reward, she was seeking to obtain a very significant financial benefit for Ms Wang, which could be used to satisfy what the appellant understood to be a $500,000 debt.
Appellant's personal circumstances
The appellant had very good antecedents. While they are not irrelevant, the significance of general deterrence as a sentencing consideration means that these mitigating factors are to be given less weight. The appellant is remorseful and was found to be at low risk of reoffending. However, the appellant did not have the mitigating effect of youth.
Most significantly, the appellant entered a very late plea of guilty to the offence, in circumstances where the benefits resulting from her plea were limited in the manner discussed above. She properly received only a 5% discount under s 9AA of the Sentencing Act.
Conclusion as to manifest excess
Given the nature and short period of the appellant's involvement, the absence of any expectation of financial reward and her very good antecedents, the sentence of 6 years' imprisonment may be regarded as high. However, that sentence was very much lower than the range found in many cases concerning possession, with intent to sell or supply, of large quantities of prohibited drugs such as methylamphetamine, heroin and cocaine. The lateness of the appellant's plea of guilty significantly reduced its mitigating effect. Having regard to all of the circumstances, and all relevant sentencing factors and principles, we are not persuaded that the sentence imposed was unreasonable or plainly unjust. While we would grant leave to appeal on ground 2, the ground is not established.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)Leave to appeal is granted on grounds 1 and 2.
(2)Leave to appeal is refused on ground 3.
(3)The appeal is dismissed.
MAZZA JA:
I have had the advantage of reading the draft reasons of Buss P and Mitchell JA (joint reasons) in this appeal against sentence. They have comprehensively set out all of the necessary background and the applicable legal principles, which I will not repeat unless it is necessary do so.
For the reasons given by Buss P and Mitchell JA, ground 1 has not been made out. Again for the reasons given by their Honours, leave to appeal on ground 3 should be refused. However, I have come to a different view to Buss P and Mitchell JA in respect of ground 2. In my view, the sentence of 6 years' imprisonment imposed upon the appellant by the learned sentencing judge was manifestly excessive. I would uphold ground 2, set aside the sentence imposed by the learned sentencing judge, and resentence the appellant to 4 years 6 months' immediate imprisonment, with eligibility for parole, backdated to
commence on 7 December 2016. My reasons for doing so are set out below.
Up until approximately 6.30 pm on 7 December 2016, the appellant did not know about the enterprise in which her friend, Ms Wang, (and others) were involved, although between 5.00 pm and 6.30 pm she was suspicious of what was occurring in Ms Wang's apartment.
The appellant became aware that Ms Wang and the other co‑offenders were involved in criminal activity of some kind by the time she travelled to Bunnings in Inglewood, arriving there at 6.53 pm. The appellant became aware that the metal cylinder Ms Wang and Mr To were attempting to open contained a considerable amount of drugs by the time that Mr To put the metal cylinder in the vehicle she was driving. She was unaware of the exact amount of the drugs, their purity, or the type of drugs contained in the cylinder.[73]
[73] ts 220.
The gravamen of the appellant's offending is her driving the vehicle that carried the unopened metal cylinder, along with Mr To as a passenger, to the Bedford address, and then travelling to the Bunnings store in Morley with Mr Xu, where she paid for the tools which, it was hoped, would open the metal cylinder. She then returned with the tools to the Bedford address.[74] She did all of this to assist Mr Wang and her co‑offenders in their ultimately unsuccessful quest to open the metal cylinder. This was the relevant extent of the appellant's involvement in the offence.
[74] ts 219.
The appellant's physical possession of the cocaine was limited to its transport from Ms Wang's apartment in the Hay Street complex to the Bedford address. The appellant was to have no other ongoing involvement in, nor did the appellant stand to financially benefit from, the drug dealing enterprise of Ms Wang and her co‑offenders. As Buss P and Mitchell JA point out, the appellant acted out of a misguided sense of loyalty to Ms Wang. Moreover, as the sentencing judge accepted, Ms Wang, to some extent, manipulated the appellant.
The sentencing judge identified the mitigating factors set out in the joint reasons at [32]. The appellant was a person of previous good character, and was genuinely remorseful for her behaviour. The appellant has no substance abuse issues, has been gainfully employed all of her adult life, and poses a low risk of reoffending. While matters personal to the appellant cannot be ignored (and were not ignored by the learned sentencing judge), they cannot attract much mitigation having regard to the need for general and personal deterrence in cases of serious drug offending. Of course, the appellant's plea of guilty was a mitigating factor. However, as it was entered at a very late stage in the proceedings, it rightly attracted only a small, 5%, reduction pursuant to s 9AA of the Sentencing Act 1995 (WA).
I have had regard to the comparable cases cited by the respondent in its written submissions and in the schedule attached to those submissions. For convenience, a list of those cases is attached to these reasons. It is unnecessary to examine all of the cases referred to by the respondent. As the respondent points out in its written submissions,[75] none of the cases are exactly comparable to the present case. The State refers to the cases in the table to support a submission that having regard to 'counterbalancing relevant factors' in those cases, including that some of the offenders entered earlier pleas of guilty, the sentence imposed upon the appellant sat 'comfortably' with the outcomes in these cases.[76]
[75] Respondent's written submissions, par 50; supplementary AB 26.
[76] Respondent's submissions, par 50; supplementary AB 26.
In its written submissions,[77] the respondent also refers to three cases, namely Pham v The State of Western Australia;[78] the offending of Mr Obradovic in Jneid v The State of Western Australia[79] and the offending of Mr Busher in Stokes v The State of Western Australia.[80]
[77] Respondent's written submissions, par 48; supplementary AB 25.
[78] Pham v The State of Western Australia [2011] WASCA 244.
[79] Jneid v The State of Western Australia [2018] WASCA 67.
[80] Stokes v The State of Western Australia [2016] WASCA 87.
I make three observations with respect to the three cases mentioned by the respondent. First, unlike the present case, all three cases (indeed each of the cases included in the respondent's schedule) involved appellants who stood to commercially gain from, or obtain drugs in return for, their criminal activities. Secondly, the offender in Pham brought into Western Australia from New South Wales significant quantities of methylamphetamine and heroin for a fee of $10,000, and was found by the sentencing judge to be involved near the top level of the distribution of the drugs in question. Such a finding was not made in the present case. To the contrary, the appellant was found to be at the bottom end of the hierarchy. Thirdly, while Mr Obradovic's involvement in the offence for which he was convicted was brief, his antecedents were unfavourable, such that, unlike the present case, personal deterrence was a relevant sentencing consideration.
As Buss P and Mitchell JA point out at [90] of the joint reasons, the sentence that was imposed upon the appellant was much lower than the range found in many cases dealing with possession of such large quantities of prohibited drugs such as methylamphetamine, heroin and cocaine. However, as this court has said many times, while comparable cases are important to ensure broad consistency, they are but one sentencing factor and each case must be decided on its own facts and circumstances.
I regard the present case as exceptional, having regard to the combined effect of the following factors:
(1)The appellant was not involved, in any way, with the organisation of the enterprise. In particular, she played no role whatsoever in the importation of the metal cylinder containing the cocaine into Western Australia.
(2)The appellant's involvement lasted only a brief period of time on the evening of 7 December 2016.
(3)The essence of her role was to assist Ms Wang and her co‑offenders to open the metal cylinder containing the cocaine; efforts which ultimately proved futile.
(4)The appellant acted out of misguided loyalty to Ms Wang, to some extent was manipulated by her, and was not motivated by any consideration of commercial gain for herself.
(5)The appellant has good antecedents, she is genuinely remorseful and poses a low risk of reoffending.
In my opinion, the present case is not comparable to any of the cases cited to the court.
Having regard to all relevant facts and circumstances, including the well‑known general sentencing principles applicable to cases of serious drug offending, I have been persuaded that the sentence imposed upon the appellant was not merely high, but was, with great respect to the sentencing judge, outside the range of a proper exercise of the sentencing discretion. In my opinion, the sentence was manifestly excessive. Ground 2 should be upheld, the sentence imposed by his Honour set aside, and the appellant should be resentenced.
Resentence
This court has all of the materials necessary to resentence the appellant.
I will not repeat the facts and circumstances of the offending, nor the appellant's antecedents. With respect to the appellant's plea of guilty, like the learned sentencing judge, having regard to the fact that it was entered on the morning of the first scheduled day of the appellant's trial, the appropriate reduction pursuant to s 9AA of the Sentencing Act is 5%. In my opinion, the appropriate sentence to be imposed upon the appellant is 4 years 6 months' imprisonment. Having regard to the seriousness of the offence and the need for general deterrence, no penalty short of immediate imprisonment is appropriate. The appellant should be made eligible for parole and the new sentence should be backdated to 7 December 2016, being the day upon which the appellant was taken into custody.
The orders that I would make are as follows:
1.Leave to appeal is granted on grounds 1 and 2.
2.Leave to appeal on ground 3 is refused.
3.The appeal is allowed.
4.The sentence imposed by Prior DCJ is set aside.
5.The appellant is resentenced to 4 years 6 months' imprisonment, with eligibility for parole, to commence on 7 December 2016.
Schedule
List of comparable cases
The comparable cases which the State cites in its written submissions are as follows:
Nguyen v The State of Western Australia [2018] WASCA 162.
Jneid v The State of Western Australia [2018] WASCA 67.
Tago v The State of Western Australia [2018] WASCA 59.
The State of Western Australia v Doyle [2017] WASCA 207.
Sheriff v The State of Western Australia [2017] WASCA 185.
Stokes v The State of Western Australia [2016] WASCA 87.
Yiu v The State of Western Australia [2016] WASCA 172.
Ye v The State of Western Australia [2016] WASCA 103.
Hoang v The State of Western Australia [2015] WASCA 130.
Phan v The State of Western Australia [2014] WASCA 144.
Pham v The State of Western Australia [2011] WASCA 244.
Bond v The State of Western Australia [2011] WASCA 123.
Tricoli v The State of Western Australia [2011] WASCA 74.
The State of Western Australia v Johnson [2010] WASCA 187.
McDougall v The State of Western Australia [2009] WASCA 232.
Ngo v The State of Western Australia [2007] WASCA 221.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell15 JANUARY 2020
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