Lam v The State of Western Australia

[2010] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAM -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 61

CORAM:   McLURE P

OWEN JA
JENKINS J

HEARD:   24 MARCH 2010

DELIVERED          :   7 APRIL 2010

FILE NO/S:   CACR 78 of 2009

BETWEEN:   DINH LAM

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SLEIGHT DCJ

File No  :IND 170 of 2009

Catchwords:

Criminal law - Sentence - Possession of a prohibited drug with intent to sell or supply - Manifest excess - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr D Grace QC & Mr S Nigam

Respondent:     Mr G Huggins

Solicitors:

Appellant:     S C Nigam & Co

Respondent:     Director of Public Prosecutions (WA)

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

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Burke v The State of Western Australia [2007] WASCA 210

Cant v The State of Western Australia [2009] WASCA 188

Colangelo v The State of Western Australia [2004] WASCA 294

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dixon v The State of Western Australia [2006] WASCA 255

Mada v The Queen [2003] WASCA 1

Vagh v The State of Western Australia [2007] WASCA 17

1. McLURE P: The appellant seeks leave to appeal and, if leave is granted, to appeal against his sentence of 5 years and 4 months' imprisonment on one count of possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant claims the sentence is manifestly excessive. He challenges the length, not the type, of sentence imposed.

2. The methylamphetamine the subject of the offence was located in the appellant's bedroom in the course of the execution of a search warrant at his parents' house.  The appellant had in his possession 172.36 g of methylamphetamine with a purity ranging between 5% to 37%.  The unchallenged finding of the sentencing judge is that of that quantity, 31.73 g had a purity of 37% and 102.73 g had a purity above 20%. 

3. The police also located in the appellant's bedroom a sum of $2,410 which the appellant acknowledged was derived from selling drugs and a further sum of $12,600 which the appellant claimed was not derived from selling drugs.  The trial judge did not find it necessary to determine that issue.  Other indicia of drug trafficking located in the appellant's bedroom included clipseal bags, MSN (a cutting agent) and electronic scales.

4. The trial judge found that the appellant was engaged in a commercial activity of selling drugs (ts 21).  He continued:

   In this case there is a large quantity of methylamphetamine.  A substantial portion of it is of a very high purity.  It is clear that you were involved in buying this drug at a high purity and cutting it down and selling it.  The potential for earning a very large profit was clearly there by virtue of the quantity and the purity of drug in your possession (ts 24).

5. The appellant cooperated with police, made a fast‑track plea of guilty and expressed remorse for his conduct.  He had a prior record of offending but not of such a nature as to attract a sentence of imprisonment.

6. The appellant was aged 22 at the time of the offence.  He was born in Vietnam and he and his family migrated to Australia in 1993.  The appellant left school during year 9, has poor English skills and worked in his parents' grocery and video store businesses.

7. The appellant commenced using methylamphetamine when his first partner of four years left him when he was aged 20.  He has a child who was around eight months old at the time of sentencing.  The appellant said he ceased using drugs after the birth of his child.

1. The legal principles governing the disposition of this appeal are well‑known.  This court cannot interfere merely because it would have imposed a sentence different to that of the sentencing judge.  It may only interfere where it is shown that the sentencing judge has made an express or implied material error of fact or law.  If a sentence is manifestly excessive, it is unreasonable or unjust and error will be inferred:  Dinsdale v The Queen (2000) 202 CLR 321.

2. In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence (25 years' imprisonment), the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.

3. However, for offences such as drug trafficking where the dominant sentencing considerations include general deterrence and the protection of the community, mitigatory factors personal to the offender have diminished weight.  The commercial aspect of the appellant's activity reflected in the significant quantity and purity of the drug places the appellant's conduct in the very serious category of offences of this type.  Further, the minimum custodial period is within the range customarily imposed in broadly comparable cases:  see Bosworth v The State of Western Australia [2007] WASCA 144; Burke v The State of Western Australia [2007] WASCA 210; Mada v The Queen [2003] WASCA 1; Vagh v The State of Western Australia [2007] WASCA 17; Dixon v The State of Western Australia [2006] WASCA 255; Cant v The State of Western Australia [2009] WASCA 188; Colangelo v The State of Western Australia [2004] WASCA 294.

4. The claim that the sentence is manifestly excessive has no reasonable prospect of succeeding.  I would refuse leave to appeal.

5. OWEN JA:  I agree with McLure P.

6. JENKINS J:  I agree with McLure P.