Jre v The State of Western Australia
[2023] WASCA 100
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JRE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 100
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 3 APRIL 2023
DELIVERED : 29 JUNE 2023
FILE NO/S: CACR 66 of 2022
BETWEEN: JRE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 65 of 2022
BETWEEN: JRE
Appellant
AND
THE KING
Respondent
ON APPEAL FROM:
For File No: CACR 66 of 2022
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 2334 of 2021
For File No: CACR 65 of 2022
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 1796 of 2021
Catchwords:
Criminal law – Appeal against sentence – Drug offences – State offence of attempt to possess ketamine – Commonwealth offence of procuring another to attempt to possess cocaine – Where appellant entered early guilty pleas and cooperated with authorities - Whether individual sentences of 6 years' imprisonment for the State offence and 7 years' imprisonment for the Commonwealth offence manifestly excessive – Whether total effective sentence of 10 years imprisonment breached first limb of totality principle – Turns on own facts
Legislation:
Nil
Result:
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed
Appellant resentenced
Representation:
CACR 66 of 2022
Counsel:
| Appellant | : | Mr D Grace KC |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Tudori Hager Grubb |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 65 of 2022
Counsel:
| Appellant | : | Mr D Grace KC |
| Respondent | : | Mr D Renton SC |
Solicitors:
| Appellant | : | Tudori Hager Grubb |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Al-Rafei v The State of Western Australia [2017] WASCA 4
Awraham v The Queen [2021] NSWCCA 241
Goh v The Queen [2022] VSCA 24
Kabambi v The State of Western Australia [2019] WASCA 44
Mather v The State of Western Australia [2017] WASCA 148
Monisse v The State of Western Australia [2021] WASCA 52
MSO v The State of Western Australia [2015] WASCA 78
NG v The State of Western Australia [2017] WASCA 124
R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Stocker [2022] WASCA 178
Webber v The Queen [2014] NSWCCA 111
Zanon v The State of Western Australia [2016] WASCA 91
JUDGMENT OF THE COURT:
On 30 June 2022 the appellant pleaded guilty to two drug offences. The charges were contained on separate indictments. On indictment 2334 of 2021 the appellant was charged that on 31 May 2021 at Como he and another man attempted to possess a prohibited drug, namely ketamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the State offence). On indictment 1796 of 2021 the appellant was charged that on 21 June 2021 at Perth he procured another person to attempt to possess a commercial quantity of an unlawfully imported border control drug, namely cocaine, contrary to s 11.3 and s 307.5(1) of the Criminal Code (Cth) (the Commonwealth offence).
The appellant was sentenced to 6 years' imprisonment for the State offence and 7 years' imprisonment for the Commonwealth offence. The sentencing judge ordered that the Commonwealth sentence was to commence on 29 June 2025. The effect of that order was that the appellant would serve the first 3 years of the State sentence before commencing the Commonwealth sentence. The balance of the State sentence would then be served, in effect, concurrently with the Commonwealth sentence. The total effective sentence was 10 years' imprisonment. An order was made in respect of the Commonwealth sentence that the appellant be eligible for release on parole after serving 4 years of that sentence, that is after serving 7 years of the total combined sentence.
The appellant has sought leave to appeal against each of the individual sentences on the basis that they are manifestly excessive and against the total effective sentence on the basis that it infringes the first limb of the totality principle.
For the reasons that follow, we would dismiss the appeals in respect of the individual sentences but allow the appeal in respect of the total effective sentence. In our view the total effective sentence should be 8 years' imprisonment. In order to achieve that outcome we would resentence the appellant on the Commonwealth offence to 6 years' imprisonment (for totality reasons only) and order that that sentence commence after serving 2 years of the State sentence. The appellant should be eligible for release on parole after serving 3 years and 6 months of the Commonwealth sentence, that is after serving 5 years and 6 months of the total combined sentence.
Facts of the State Offence
On 26 May 2021 officers from the Australian Border Force operating out of the Perth Cargo Centre at the Perth Airport identified two boxes of interest during a routine x‑ray of air cargo. The two boxes had been sent from Spain and were addressed to residential premises in Como.[1]
[1] ts 119.
When the boxes were inspected they were found to contain 20 purses, each of which contained a vacuum sealed plastic package of white powder. The weight of the powder in each of the packages ranged between 230 g and 249 g. Preliminary testing of the white powder confirmed that it contained the prohibited drug ketamine. The total weight of the 20 packages was 4.877 kg.[2]
[2] ts 119.
Police officers substituted the ketamine for flour, resealed the purses and organised for the packages to be delivered to the Como address. At about 1.30 pm a co‑offender, who will be referred to as D, arrived at the Como residence. The two boxes had been left outside the residence as per the delivery instructions. D placed the boxes into his car and drove away. He was followed by police to an address in Murdoch.[3]
[3] ts 119.
That evening police attended at the Murdoch address and arrested D. During a search of his vehicle police located the two boxes. D initially told police that he did not know what was in the boxes and could not tell police anything about them. He said that he had been told to collect the boxes from the Como address but was reluctant to identify the person who had given him those instructions. He said that the person was someone he had communicated with through Snapchat but had never met. D later admitted that he was suspicious that the boxes contained illicit drugs because of his previous interactions with the person who had asked him to collect them.[4]
[4] ts 119 - 120.
At that stage the involvement of the appellant was not known. That involvement only became apparent a month later when the appellant was arrested in respect of the Commonwealth charge and his mobile telephone was examined. D was then re-interviewed and admitted that it was the appellant who had asked him to collect the packages.[5]
[5] ts 119 - 120.
D told police that he informed the appellant when he had collected the packages. D said that the appellant told him to deliver the packages to another address, at which time an unknown person was to pay him $10,000. The appellant later told D that he was to hold onto the boxes overnight as the drop‑off had been delayed. The appellant then informed him that of the $10,000 he would receive on delivery he was to take out $4,000 and drop the remaining $6,000 to the appellant's girlfriend. The appellant told D that the people that the drug was being supplied to were not friends but 'customers of a guy I am working for'. D and the appellant communicated using the Wickr application.[6]
[6] ts 120.
In other messages between the appellant and D the appellant made references to other packages. In particular, on 26 May 2021, he told D that there should not be any issues with the packages because 'we got someone in Customs now'. In another message the appellant said that he had 'about five packs coming round next week' and that 'once they land we will be selling two'. The messages showed that the appellant was engaged in a continuing commercial venture and had recruited D to assist him in that venture.[7]
[7] ts 121.
The ketamine was valued at $1,560,000 if sold in 1 g quantities, $1,393,000 if sold in 3.5 g quantities and $1,254,000 if sold in 7 g quantities.[8]
[8] ts 122.
Facts of the Commonwealth Offence
On 6 June 2021, officers from the Australian Border Force intercepted a consignment sent from Leeds in the United Kingdom and addressed to a residential premises in Willagee. The consignment consisted of a large cardboard box containing 16 smaller cardboard boxes each containing a purse. Located within each purse was a clear vacuum sealed bag containing white powder. Presumptive tests on the white powder returned a positive result for cocaine.[9]
[9] ts 113.
On 11 June 2021, Australian Federal Police (AFP) officers took possession of the consignment. The AFP officers deconstructed the package and established that the white powder was cocaine and weighed a total of 3.99 kg with 72% purity (that is, 2.87 kg pure). The AFP officers substituted the packages of cocaine for an inert substance and reconstructed the package.[10]
[10] ts 113.
On the morning of 14 June 2021, an IP address registered to the appellant was recorded by a courier company to be tracking the location of the consignment. The following morning the appellant telephoned the courier company. He advised that he was the person named as the addressee (which was a false name) and confirmed the airway bill number for the consignment. The courier company operator advised that the consignment was under the control of the Australian Border Force.[11]
[11] ts 113.
On the afternoon of 21 June 2021, the AFP conducted a controlled delivery of the parcel to the Willagee address. A male occupant of the address, who will be referred to as A, signed for and took possession of the package.[12]
[12] ts 113.
The appellant used the Wickr application to communicate with A and a number of other people, who appear to be associated with the senders. The appellant asked for confirmation that the package was the correct one and raised concerns because he had been told that it had been handed to the police. The appellant showed awareness of the possibility that the package could have been opened by police, the drugs replaced, and a tracker inserted. When asked by one of the other participants in the communications why police would do such a thing, the appellant said, 'To do a controlled delivery. They don't need to catch you with it, they just need you to have the package cause they have already caught the drugs'. After some further exchanges the appellant asked A to open the package, offering to give him extra money for doing so. A then opened the package and sent images of the contents to the appellant.[13]
[13] ts 114 - 117.
Later that day the AFP executed a search warrant at the Willagee residence. While executing the warrant police located a mobile telephone belonging to A. A provided access to his mobile telephone after being presented with an order requiring him to do so. The phone immediately displayed the encrypted messages between A and the appellant.[14]
[14] ts 117.
While the AFP were still in attendance at the Willagee residence the appellant drove past and posted a message saying 'It was a set up. There's three unmarked cop cars at the house'. In further exchanges the appellant sought assistance from others to get a lawyer for A, who he described as his 'best mate'.[15]
[15] ts 117.
On 23 June 2021, the AFP executed a search warrant at a house in Southern River. At the time of entry, the appellant was present and in possession of a mobile telephone. On being presented with an order under s 3LA of the Crimes Act1914 (Cth) the appellant provided the code and facial recognition required to access the telephone. An examination of the telephone revealed that the Wickr application was installed, and the appellant had been in contact with A. In particular, the appellant had participated in encrypted conversations including in a group chat titled 'UK post'. In this group chat the appellant and eight other participants had discussed the importation of the cocaine. The appellant was arrested and admitted that he knew A but declined to participate in an interview.[16]
[16] ts 118.
The value of the cocaine was estimated to be between $598,500 and $877,800 if sold by the kilogram. If sold by the ounce it was estimated to be worth between $844,458 and $1,266,687.
It was accepted by both the State and the Commonwealth that the pleas of guilty had been entered at the earliest reasonable opportunity.[17]
[17] ts 149.
Personal circumstances
The appellant was born in New Zealand. He was 28 years old at the time of the offences. He is the second child of his parents' union, having an older sister.[18]
[18] ts 128.
The appellant's father was a drug user and the appellant's early years were punctuated by domestic violence and the involvement of his father in crime. His mother left the relationship when the appellant was 7 years old and took the children to live in a country town where her parents resided. His mother worked two jobs to support herself and her children. They continued to live in that town for two years until moving back to Christchurch, where the appellant's father lived.[19]
[19] ts 128 - 129.
The appellant had limited contact with his father after the family moved back to Christchurch. During fortnightly visits to his father, he was often exposed to drug use. At the age of 14 his father tried to persuade him to take drugs, but he declined. He then ceased contact with his father.[20]
[20] ts 129.
The appellant left school in the middle of year 9 at the age of 15 and began a flooring apprenticeship, which he subsequently completed. He moved out of home at the age of 16 and continued to work in the flooring industry in New Zealand until he was 21 years old. He then moved to Perth. He knew no one in Perth but believed that there were better opportunities in Australia.[21]
[21] ts 129.
The appellant secured fly‑in/fly‑out work operating mining equipment. He was made redundant when there was a downturn in the industry and was then unemployed for six months. During that period of unemployment, he heavily used alcohol and MDMA and came into contact with the criminal network that was responsible for the importation of the drugs. He then managed to secure further fly‑in/fly‑out work and became a shut‑down coordinator earning a good income. He was engaged in that employment at the time of the offending. He was regarded highly in the workplace and had skills which were valued.[22]
[22] ts 129.
The appellant has been in a stable relationship since 2018. His partner has a son by a previous relationship and the appellant has taken on the role of stepfather to the child. His partner continues to support him.[23]
[23] ts 150.
The appellant has no relevant prior criminal record.[24]
[24] ts 149.
Sentencing remarks
The learned sentencing judge summarised the facts of the offending and noted that the Wickr messages retrieved from the appellant's telephone revealed that he was involved in a significant commercial venture for the regular distribution of drugs. Her Honour noted that the offending was 'very serious indeed and although you were not the principal offender in the sense that you were not at the top of the tree, you had a significant and trusted role in a well organised drug importation syndicate'.[25]
[25] ts 147.
In describing the appellant's role, her Honour said that he had provided an address for delivery of the cocaine, was involved in coordinating the delivery of the cocaine in Perth, had recruited both D and A to receive the drugs and had offered to pay them for their work. Her Honour said that the appellant was motivated by the promise of financial reward and that he knew the value of the cocaine because text messages showed that he believed it to be valued in the order of $1.2 million.[26]
[26] ts 147.
Her Honour identified the following aggravating factors:
(1)That the appellant had recruited others, namely D and A.[27]
(2)That the offending involved the distribution of two different types of drug.[28]
(3)That the appellant was 'not merely a bit player, but intimately involved in the distribution of drugs on a significant scale'.[29]
(4)Whilst the appellant had admitted that he would receive $10,000 for each consignment, her Honour concluded that he 'stood to gain a significant financial benefit for [his] involvement'.[30]
[27] ts 147.
[28] ts 148.
[29] ts 148.
[30] ts 148.
Her Honour accepted that the appellant was extremely ashamed and remorseful. In a letter to the court he acknowledged the harm that his offending could have done to the community. However, her Honour expressed some doubt that the appellant fully understood exactly how harmful the drug trade is.[31]
[31] ts 148.
Her Honour accepted that the appellant had pleaded guilty to both charges at the earliest opportunity. In respect of the State offence, pursuant to s 9AA of the Sentencing Act, her Honour allowed a discount of 25%. In respect of the Commonwealth offence, her Honour acknowledged that it was possible to allow a discount of greater than 25% and that it was not necessary to specifically quantify the discount, however, in the circumstances of the case, she considered that a 25% discount was the appropriate discount for that offence as well.[32]
[32] ts 149.
Her Honour noted that the case against the appellant was strong, but to a large extent that was due to the appellant's cooperation. Whilst he did not participate in an interview, he did make admissions during the execution of a search warrant and also provided police with access to his telephone, which enabled the police to view the incriminating messages sent and received.[33]
[33] ts 149.
Her Honour acknowledged that the appellant has no prior convictions, although this is a factor to be given less weight for offences of this kind because of the need for general deterrence. Her Honour did not consider that personal deterrence was a factor in this case. She was confident that the appellant was at low risk of reoffending.[34]
[34] ts 150.
Cooperation with the police was another significant mitigating factor relevant to the appellant's conduct. That was dealt with in a confidential addendum to the sentencing judge's remarks and is also dealt with in a confidential addendum to these reasons.
Her Honour imposed a sentence of 6 years' imprisonment for the State offence and 7 years' imprisonment for the Commonwealth office. She ordered that the appellant be eligible for parole in relation to the State offence. She then said:[35]
In my view, having regard to the need to consider totality, I should order that the sentence on the importation offence should commence just before the expiration of 3 years of the non‑parole period of the State offence, less 1 day to take into account the time that you spent in custody. So the Commonwealth offence will commence on 29 June 2025.
So the net effect of all of that [JRE] is that the total sentence is one of 10 years less 1 day. In relation to the importation offence, I would make you eligible for release on parole after serving 4 years. And so the effect of that is that you would serve 7 years less 1 day before being eligible for parole.
Having had a last look at the sentence, I consider that the sentence of 10 years with a 7 year non‑parole period does adequately reflect the criminality of your offending and is appropriate in all of the circumstances.
[35] ts 151 - 152.
Grounds of appeal
The grounds of appeal in respect of the State sentence (CACR 66 of 2022) are:[36]
[36] WAB (CACR 66 of 2022) 6.
1.The sentence imposed for the State offence is manifestly excessive in all of the circumstances of the offence and the [appellant].
Particulars
(a)The sentence is outside the range of sentences properly open to be imposed in the exercise of the sentencing discretion.
(b)The sentence implicitly failed to take into account adequately all mitigatory factors attaching to the [appellant's] circumstances.
2.The total effective sentence imposed of 10 years with a non-parole period of 7 years infringed the first limb of the totality principle.
The grounds of appeal in respect of the Commonwealth sentence (CACR 65 of 2022) are:[37]
[37] WAB (CACR 65 of 2022) 6.
1.The sentence and the non-parole period imposed for the Commonwealth offence are manifestly excessive in all of the circumstances of the offence and the [appellant].
Particulars
(a)The sentence is outside the range of sentences properly open to be imposed in the exercise of the sentencing discretion.
(b)The sentence implicitly failed to take into account adequately all mitigatory factors attaching to the [appellant's] circumstances.
2.The total effective sentence imposed of 10 years with a non-parole period of 7 years infringed the first limb of the totality principle.
Appellant's submissions
The appellant submits that the sentences of 6 years and 7 years imprisonment imposed, respectively, for the State and Commonwealth offences, were outside the range of sentences properly open to be imposed by the sentencing judge. Cases relied on by the respondent as being comparable do not have the same combination of significant mitigating factors. When regard is had to those factors, in particular the pleas of guilty and the cooperation, the starting point for the sentences must have been at a level that did not properly reflect the culpability of the appellant.[38]
[38] WAB (CACR 66 of 2022) 11 - 13; WAB (CACR 65 of 2022) 11 - 15.
As regards the total effective sentence, the appellant submits that this reveals a starting point of at least 20 years' imprisonment. The resulting 10 year total sentence infringes the first limb of the totality principle because a total effective sentence of this magnitude does not properly reflect the overall level of criminality and moral culpability revealed by the circumstances of the offending behaviour.[39]
[39] WAB (CACR 66 of 2022) 14; WAB (CACR 65 of 2022) 16.
Respondent's submissions
The State submits that it is misconceived to 'reverse engineer' to a supposed starting point in order to establish manifest excess or a breach of the totality principle. What must be shown to be unreasonable or plainly unjust are the ultimate sentences imposed. In any event, the State says that any attempt to calculate a starting point is impossible because the sentencing judge did not quantify the discount applied for all mitigating factors. In particular, any reductions given for remorse, prior good character and favourable prospects of rehabilitation, were not quantified.[40]
[40] WAB (CACR 66 of 2022) 21 - 22.
The State also submits that the sentence imposed on the State offence has to be viewed in the context of the sentence imposed for the Commonwealth offence and the contribution it made to the total effective sentence. It is suggested that the orders regarding partial concurrency significantly moderated the severity of the individual sentence of 6 years' imprisonment.[41]
[41] WAB (CACR 66 of 2022) 35 - 36.
The State submits that ketamine is, as the sentencing judge said, at the same level of seriousness as other drugs of addiction such as methylamphetamine and MDMA. The quantity of ketamine here is the largest in any case considered by this court. The maximum penalty for the offence, the role of the appellant and the amount of ketamine, justify a conclusion that this was a very serious example of offending of its type.[42]
[42] WAB (CACR 66 of 2022) 23.
Even after taking into account mitigating factors, the State submits that the sentence of 6 years' imprisonment is within the range of sentences imposed in comparable cases. In this regard the State refers to MSO v The State of Western Australia,[43] Zanon v The State of Western Australia,[44] NG v The State of Western Australia,[45] Mather v The State of Western Australia[46] and Al-Rafei v The State of Western Australia.[47]
[43] MSO v The State of Western Australia [2015] WASCA 78.
[44] Zanon v The State of Western Australia [2016] WASCA 91.
[45] NG v The State of Western Australia [2017] WASCA 124.
[46] Mather v The State of Western Australia [2017] WASCA 148.
[47] Al-Rafei v The State of Western Australia [2017] WASCA 4.
The Crown in right of the Commonwealth submits that when regard is had to the seriousness of the Commonwealth offence, the personal circumstances of the appellant and comparable cases, it cannot be concluded that the sentence of 7 years imprisonment was manifestly excessive.[48] The cases that the Crown relies on in this regard are Awraham v The Queen,[49] Webber v The Queen,[50] R v Tran, Tran and Nguyen[51] and Goh v The Queen.[52]
[48] WAB (CACR 65 of 2022) 30.
[49] Awraham v The Queen [2021] NSWCCA 241.
[50] Webber v The Queen [2014] NSWCCA 111.
[51] R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167.
[52] Goh v The Queen [2022] VSCA 24.
The Crown further submits that the degree of accumulation between the State and Commonwealth sentences was necessary and appropriate to reflect the aggregate criminality. Each offence was a discrete act of criminality, and they cannot reasonably be treated as a single course of conduct.
Legal Principles
The following general principles concerning appeals against sentence are well established:[53]
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(4)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.
(5)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[53] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general principles applicable to the sentencing of offenders for serious drug offences are also well established. 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 invariably be subsidiary considerations, but they are not irrelevant.[54]
[54] See e.g. The State of Western Australia v Stocker [2022] WASCA 178 [180] (Mazza JA, Buss P & Vaughan JA agreeing).
Offenders who provide valuable information to the authorities should be rewarded by receiving a discount on their sentence. This is because the assistance is a demonstration of remorse and rehabilitation and because there is a public interest in the detection and successful prosecution of crime. Discounts for cooperation may also serve to encourage others to assist in a similar way. Furthermore, the fact that an offender has cooperated may mean that there is an associated risk to their personal safety. That risk may be a strong disincentive to cooperate. That disincentive will only be overcome if the discount for cooperating is real. The amount of the discount should reflect the value of the cooperation to law-enforcement bodies.
The relevant factors to be taken into account in determining the appropriate level of any discount for cooperation have been recently referred to by Buss P and Mazza JA in SYL v The State of Western Australia.[55] They include:[56]
(a)the nature and extent of the cooperation and assistance;
(b)whether the cooperation and assistance is genuine;
(c)whether the offender has disclosed all of his or her relevant knowledge;
(d)the public benefit that has resulted or is expected to result from the cooperation and assistance;
(e)the risk or danger to the offender or his or her family and associates as a result of the cooperation and assistance; and
(f)any hardship (including hardship in custody) which the offender may experience or is likely to experience as a result of the cooperation and assistance.
[55] SYL v The State of Western Australia [2021] WASCA 16.
[56] SYL v The State of Western Australia [18] (Buss P & Mazza JA).
Was the State sentence manifestly excessive (ground 1 CACR 66 of 2022)?
The maximum penalty for the State offence is 25 years' imprisonment and/or a fine of $100,000.[57]
[57] Misuse of Drugs Act s 34(1)(aa).
The offence was a serious example of offending of its type having regard to the large quantity of ketamine (4.877 kg), the estimated value of the drug (between $1.2 million and $1.5 million), the appellant's financial motivation and his significant role in a criminal enterprise responsible for importing drugs from overseas. That role was that of the Australian agent of the enterprise, responsible for arranging the receipt of imported drugs. Whilst his role was an important one, he was not a principal in the business.
The fact that the drug involved was ketamine does not diminish the seriousness of the offence. As this court observed in Monisse v The State of Western Australia,[58] Parliament has not distinguished between ketamine and other prohibited drugs in respect of the applicable maximum penalty (with the exception of cannabis and trafficable quantities of methylamphetamine). Furthermore, the quantities determining the court of trial, whether there is a presumption of an intent to sell or supply and whether a drug trafficker declaration is made are the same for ketamine as for cocaine and methylamphetamine (and some other drugs - 4 g, 2 g and 28 g respectively).[59] This is an indication that, gram for gram, ketamine is comparable to those drugs.
[58] Monisse v The State of Western Australia [2021] WASCA 52 [73] (Buss P & Mazza JA).
[59] As to cocaine, see Misuse of Drugs Act 1981 (WA) sch III s 29, sch V s 29 and sch VII s 4; as to ketamine, see sch III s 59F, sch V s 60F and sch VII s 6BAC; as to methylamphetamine see sch III s 80, s V s 82 and sch vII s 5AA.
The personal circumstances of the appellant were favourable in that he was a first offender with good antecedents and good prospects of rehabilitation. He had cooperated with the police at the time of his arrest and demonstrated remorse. However, those personal factors had less weight given the nature of the offence. What did not have less weight was the appellant's plea of guilty and the cooperation. Those were very significant factors that justified a sentence that was substantially less than that which would otherwise have been imposed.
As regards comparable cases, there are few, if any, that have the same combination of factual and personal circumstances. In MSO the offender provided warehousing and related services to two drug traffickers over about one year. He pleaded guilty to 4 counts of possession of a prohibited drug with intent to sell or supply. Count 1 related to 10.54 kg of methylamphetamine. Count 2 related to 2.46 kg of heroin. Count 3 related to 599 g of cocaine. Count 4 related to 1.09 kg of ecstasy. The offender received a 25% discount for pleading guilty, a 30% discount for past cooperation and a 20% discount for future cooperation. This resulted in a total effective sentence of 8 years and 3months' imprisonment. The mitigating factors in MSO are comparable, but the offending was more serious.
In Zanon the offenders were convicted after trial of having sold or supplied a prohibited drug to another. The offending related to 8.75 kg of methylamphetamine. The co-offender, Quaid, was the principal in a large-scale drug dealing business. Zanon was a courier for that business. Quaid was sentenced to a total effective sentence of 23 years' imprisonment and Zanon was sentenced to 14 years' imprisonment. The offending in that case was very much more serious and the offenders did not have any of the appellant's significant mitigating factors. In Zanon McLure P referred to a cluster of cases in which the total quantity of methylamphetamine was around 1 kg and which had attracted sentences of between 9 and 12 years' imprisonment.[60]
[60] MSO v The State of Western Australia [174] (McLure P, Buss JA & Mitchell J relevantly agreeing).
In NG the offender pleaded guilty to possessing nearly 5 kg of methylamphetamine and to possessing $385,000 in cash reasonably suspected of having been unlawfully obtained. He was a crucial conduit between the supplier and wholesale purchasers of the drug. He was a first offender with good antecedents. A total effective sentence of 12 years' imprisonment was imposed.
In Mather the offender pleaded guilty to possessing 2.131 kg of methylamphetamine. He had taken delivery of the drugs and taken them to a suburban house where he processed them with two other men. He was sentenced to 12 years 6 months' imprisonment for the drug offence (and a further 6 months' imprisonment for breach of a suspended sentence).
In Al-Rafei the offender pleaded guilty to possession of 2.24 kg of MDMA with a purity of 24%. He went to a house in Gosnells where he collected the drugs. A short time later his car was intercepted by police and the MDMA tablets were found hidden in a blue chiller bag. The sentencing judge found that the offender was a paid courier who was working for financial reward. He was sentenced to 8 years and 6 months' imprisonment. Other cases referred to in that case related to quantities of methylamphetamine of between 498.7 g and 3.061 kg and sentences of between 7 years and 9 years' imprisonment.
The sentence of 6 years' imprisonment for the State offence is consistent with sentences imposed in other cases for comparable quantities of drugs where the role of the offender is similar, and after taking into account the mitigating factors, in particular the plea of guilty and the cooperation.
Having regard to the maximum penalty, the seriousness of the offence, the sentences imposed in comparable cases and the personal circumstances of the appellant it has not been established that the sentence of 6 years' imprisonment for the State offence is unreasonable or plainly unjust. Leave to appeal on ground 1 of CACR 66 of 2022 should be refused.
Was the Commonwealth sentence manifestly excessive (ground 1 CACR 65 of 2002)?
The maximum penalty for the Commonwealth offence is life imprisonment and/or 7,500 penalty units.
This offence was also a serious example of offending of its type having regard to the large quantity of cocaine (3.99 kg at 72% purity), the estimated value of the drug (between $598,000 and $1.2 million), the appellant's financial motivation and his significant role in a criminal enterprise responsible for importing drugs from overseas. That role, as with the State offence, was that of the Australian agent of the enterprise, responsible for arranging the receipt of imported drugs.
The appellant's personal circumstances and the significance of them to the State offence were referred to at [53]. Those comments apply equally to the Commonwealth offence. In particular the appellant's early plea of guilty and his cooperation with the authorities justified a sentence that was substantially less than that which would otherwise have been imposed.
As to comparable cases, in Awraham the offender pleaded guilty to one count of attempting to possess a commercial quantity of cocaine. The quantity involved was 2.94 kg of cocaine (2.15 kg pure). His role was described as being 'at least that of a courier' and above that of a 'mere recruit'.[61] He was sentenced 7 years 6 months' imprisonment with a non‑parole period of 5 years and 15 days.
[61] Awraham [102].
In Webber the offender pleaded guilty to attempting to possess 2.2 kg of pure cocaine. His role was to allow his name and contact details to be used for accepting delivery of a consignment containing the drugs. He requested Australia Post to keep the consignment in long-term storage. He later discussed arrangements to have another person collect the consignment. He was found to have had a significant and essential role in the enterprise. He provided some assistance to the police, but the value of it was assessed as being low due to contradictions that were viewed as an attempt to minimise his involvement. The sentencing judge accorded no weight to the assistance. The offender was sentenced to 11 years' imprisonment with a 7 year non-parole period.
In Tran three offenders were sentenced for attempting to possess 6.25 kg of heroin. One of the offenders, Nguyen, played a role similar to that of the appellant, in that he recruited another man to receive a consignment containing the drugs. Nguyen pleaded guilty at an early stage, was young, had no prior record and had good prospects of rehabilitation. He was sentenced to 9 years' imprisonment with a 5 years 6 months non‑parole period. On appeal that sentence was described as lenient but within the range of appropriate sentences.
In Goh the offender pleaded guilty to attempting to possess 8.31 kg of heroin. The offender recruited three others to attend a courier company to collect consignments containing the drugs. He provided the recruits with mobile telephones and documents. His role was described as being more than that of a courier and as 'necessary but expendable'.[62] He was sentenced to 11 years' imprisonment with a 6 years 9 months non-parole period.
[62] Goh v The Queen [19].
In Thomas two offenders pleaded guilty to offences involving the receipt of methylamphetamine. Thomas collected 3.6 kg of methylamphetamine and regularly reported back to his contacts in Malaysia. He was described as being at the lower end of the distribution chain. He pleaded guilty nine days before his trial. On appeal he was re-sentenced to 9 years' imprisonment with a 6 years 3 month non-parole period. Wu received the methylamphetamine. He was described as being more than a mere courier and having a role of considerable value to the overall operation.[63] On appeal he was resentenced to 10 years 6 months' imprisonment with a 7 years 6 month non-parole period.
[63] DPP (Cth) v Thomas [2016] VSCA 237.
The appellant's role was broadly similar to that of the relevant offenders in Awraham, Webber, Tran, Goh and Thomas. However, Tran and Goh involved significantly larger quantities of drugs. Most importantly, in none of those cases was cooperation with the authorities a significant mitigating factor. In any comparison exercise allowance must be made for that difference. The real question is, once that allowance is made, is the sentence of 7 years' imprisonment imposed on the appellant one that is clearly inconsistent with the sentences imposed in other cases.
The answer to that question is that the sentence imposed on the appellant is not inconsistent with the sentences imposed in Webber and Thomas. Once an allowance is made for the appellant’s cooperation the sentence imposed on him is comparable to the sentences imposed in Webber and Thomas. Furthermore, whilst the sentence imposed on the appellant might appear to sit uncomfortably with that imposed in Awraham, a single case cannot be useful as a yardstick (particularly where in comparative terms it appears to have been a lenient sentence). In any event, it would be difficult to draw a conclusion regarding general sentencing standards from such a small sample.
Having regard to the maximum penalty, the seriousness of the offence, the sentences imposed in comparable cases and the personal circumstances of the appellant it has not been established that the sentence of 7 years' imprisonment for the Commonwealth offence is unreasonable or plainly unjust. Leave to appeal on ground 1 of CACR 65 of 2022 should be refused.
Did the total effective sentence breach the totality principle (ground 2 CACR 65 and CACR 66 of 2022)?
A degree of accumulation between the state and federal offences was appropriate to reflect the aggregate criminality. The two offences represented discrete acts of criminal conduct, albeit that they were both part of a continuing criminal enterprise. The overall criminal conduct was more serious than either of the offences viewed separately. The total sentence would almost certainly have failed to adequately reflect the overall criminality if some degree of accumulation had not been ordered.
It does not follow that the total sentence in fact imposed was proportionate. The first limb of the totality principle requires that the total sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. In the synthesis required by this exercise the value of mitigating factors should not be lost.
In this case the discounts for pleading guilty and other mitigating factors (including cooperation) were applied, appropriately, in calculating the individual sentences. That does not, of course, mean that those factors were no longer relevant when it came to determining the total effective sentence. The total sentence should have reflected not only the overall criminal conduct but also the personal circumstances of the appellant, including his guilty pleas and his cooperation.
Whilst there are obvious problems in trying to determine what the notional starting point of any sentence must have been, it is possible to calculate what an equivalent total sentence would be if the pleas of guilty and cooperation discounts were removed. Together those factors were accorded a 50% discount. That must mean that, absent those factors, the criminal conduct would have attracted a total sentence of 20 years' imprisonment. That figure would also have to account for the appellant's other personal mitigating factors, such as his prior good character and good prospects of rehabilitation.
Seen in that light, the total sentence imposed on the appellant is not a proper reflection of all of the relevant factors. In particular, it does not reflect the fact that the appellant entered early pleas of guilty and cooperated with the authorities. The importance of such factors lies not only in producing a just result in the individual case, but in furthering the public policy of encouraging other offenders to plead guilty at an early stage and to cooperate with the police. If those discounts are not real, and seen to be real, the policy objective will be defeated.
Because the critical factor in assessing the total effective sentence is the unique mitigating circumstances of the appellant, no assistance can be derived by considering the total sentences imposed in other cases. It may be accepted that but for those circumstances the total sentence may well have been appropriate.
The total effective sentence imposed on the appellant did not bear a proper relationship to the overall criminality, including the appellant's personal circumstances. The total sentence was unreasonable or plainly unjust. Leave to appeal on ground 2 of both appeals should be granted, the appeals allowed on that ground and the appellant resentenced.
Resentencing
The facts of the offending and the personal circumstances of the appellant have been set out in detail earlier. There was no suggestion that the discounts allowed by the sentencing judge for pleading guilty and cooperation were incorrect. In re-exercising the sentencing discretion we would make the same allowances.
Having regard to all relevant sentencing factors, in our view the appropriate total effective sentence is 8 years' imprisonment. In order to achieve that outcome we would reduce the sentence for the Commonwealth offence to 6 years' imprisonment and order that the Commonwealth sentence commence after serving 2 years of the State sentence. The reduction in the Commonwealth sentence is made for totality reasons only (as we have explained, the original sentence of 7 years was not manifestly excessive).
We would also order that the appellant be eligible for release on parole after serving 3 years 6 months of the Commonwealth sentence, that is, after serving 5 years 6 months of the total combined sentence.
Orders
CACR 66 of 2022
1.Leave to appeal on ground 1 refused.
2.Leave to appeal on ground 2 granted.
3.Appeal allowed.
4.The appellant be resentenced in accordance with order 4 in CACR 65 of 2022.
CACR 65 of 2022
1.Leave to appeal on ground 1 refused.
2.Leave to appeal on ground 2 granted.
3.Appeal allowed.
4.The sentence be set aside and in lieu thereof impose a sentence of 6 years' imprisonment to commence after serving 2 years of the sentence on IND 2334 of 2021, that is to commence on 29 June 2024. The appellant to be eligible for parole after serving 3 years and 6 months of the sentence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
30 JUNE 2023
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