Lau v The State of Western Australia
[2020] WASCA 4
•15 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAU -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 4
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 4 DECEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: CACR 26 of 2019
BETWEEN: CHI YUNG LAU
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 475 of 2016
Catchwords:
Criminal law - Appeal against sentence - Possession of cocaine with intent to sell or supply - Whether sentence is manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Application for an extension of time dismissed
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chadburne v The State of Western Australia [2017] WASCA 216
Kobeissi v The State of Western Australia [2016] WASCA 188
MSO v The State of Western Australia [2015] WASCA 78
Ngo v The State of Western Australia [2007] WASCA 221
Penney v The State of Western Australia [2011] WASCA 71
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Tran v The State of Western Australia [2016] WASCA 37
Tricoli v The State of Western Australia [2011] WASCA 74
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The State of Western Australia [2019] WASCA 8
JUDGMENT OF THE COURT:
Summary
On 9 September 2016, the appellant was convicted, on his plea of guilty, of one count of possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant was sentenced to 11 years 6 months' imprisonment for that offence. He was made eligible for parole, and the sentence was backdated to 21 April 2015 to take account of time spent in custody on remand.
On 1 March 2019, the appellant instituted the current appeal, well outside the prescribed time limit. He seeks to appeal on the ground that the sentence of 11 years 6 months' imprisonment is manifestly excessive.
For the following reasons, that ground has no reasonable prospect of succeeding. There is no adequate explanation of the delay of almost 2.5 years in instituting the appeal. In the circumstances, the application for an extension of time in which to appeal should be refused, leave to appeal should be refused on the sole ground of appeal and the appeal should be dismissed.
Circumstances of offending
The appellant and his co-offender, So Sum Cheung, are Hong Kong nationals who were in Australia on working holiday visas. Between 10 and 21 April 2015, they and another co-offender, Yan Ting Chan, were part of an organised crime syndicate operating in Western Australia, supplying trafficable amounts of prohibited drugs. The structure of the syndicate involved 'controllers' who coordinated the activity of 'runners' who collected large packages of prohibited drugs that had been sent to Australia for distribution to third parties. The appellant and Ms Cheung were acting as 'controllers', while Mr Chan was a 'runner'.
In April 2015, the appellant and Ms Cheung arranged for cocaine to come into the possession of Mr Chan. They arranged for flights for Mr Chan to travel to Queensland where he collected some of the cocaine, which was subsequently brought to Western Australia for processing and distribution. The cocaine had been disguised as sports supplements by secreting the powder into capsules and storing them in red plastic containers labelled 'BSAA24OO'. The appellant and Ms Cheung instructed Mr Chan to extract the powder from capsules in which the cocaine had been packed into specific weights, and then to inform them how much cocaine had been extracted. Mr Chan followed these instructions.
At 4.20 pm on 21 April 2015, police executed a search warrant at Mr Chan's residence in Northbridge. A locked suitcase found in his bedroom contained 10 separate packages of cocaine. Each package weighed approximately 500 g. The total weight of cocaine was 4.91 kg. The purity of the cocaine ranged from about 65% to 89%.
Personal circumstances
The appellant was 26 years old at the time of sentence. He was raised in Hong Kong where he worked as a kitchen hand after leaving school at age 18 at a level equivalent to year 11 or year 12. He came to Australia on a working visa hoping to earn more money as a kitchen hand in this country.
The appellant had a very minor criminal record in Hong Kong which the sentencing judge did not regard as presently relevant. Although he had used drugs on occasion, he did not have a drug difficulty. The appellant has very limited English language skills.[1]
[1] Although the appellant represented himself in this appeal, he appeared with the assistance of an interpreter. An interpreter also assisted in the primary proceedings, where the appellant was represented.
Sentencing judge's approach
The sentencing judge recognised the appellant's plea of guilty, and applied a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).
After referring to the circumstances of the offending and the appellant's personal circumstances, his Honour recognised that being imprisoned in a foreign country away from his family would be a hardship for the appellant.
After referring to general sentencing considerations, including the significance of general deterrence in sentencing for drug trafficking offences, the sentencing judge observed:[2]
At the end of the day it was a large amount of the drug, 4.9 kilos, a high purity and each of you was involved because basically you were paid to be involved. You were involved in giving instructions to the other person and without those instructions, unpackaging the drug, collecting the drug and the like. I don't sentence you on the basis that you're the leaders of the syndicate or you're at the top of the tree, but you were willing participants and what you do makes it easier for those who really are in charge to avoid detection. And of course assist in the distribution of the drug within the community.
[2] Primary ts 38.
The sentencing judge accepted that the appellant and Ms Cheung were involved in taking on the risky but important task of supervising and assisting the runner.
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.
Disposition
The maximum penalty for the appellant's offence against s 6(1)(a) of the Misuse of Drugs Act was, at the relevant time, imprisonment for 25 years and a $100,000 fine.[3]
[3] 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:[4]
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.[5]
[4] 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].
[5] Rillotta [34], citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].
In Tricoli v The State of Western Australia,[6] 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. The amount of drugs and the offender's role in the offending was significantly less than the present case.
[6] Tricoli v The State of Western Australia [2011] WASCA 74 [5].
The appellant also refers to three cases in which lower sentences than his were imposed for individual offences of possession of cocaine with intent to sell or supply to another as components of a longer total effective sentence.[7] The potential impact of the totality principle reduces the utility of these cases. The court did not have to deal with the individual sentences for the cocaine offences in any of those cases.
[7] Penney v The State of Western Australia [2011] WASCA 71; MSO v The State of Western Australia [2015] WASCA 78 and Chadburne v The State of Western Australia [2017] WASCA 216.
The respondent also 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.[8] This court has observed that cocaine can be equated with methylamphetamine.[9] 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 methylamphetamine cases referred to were decided when the maximum penalties in respect of cocaine and methylamphetamine were the same.
[8] See Kobeissi v The State of Western Australia [2016] WASCA 188 [31].
[9] Ngo v The State of Western Australia [2007] WASCA 221 [25].
The appellant refers to the decision of this court in Wong v The State of Western Australia,[10] which related to commercial dealing in methylamphetamine. The circumstances of that case were quite different from the present, and the sentences imposed by this court in that case do not demonstrate that the sentence imposed on the appellant is manifestly excessive.
[10] Wong v The State of Western Australia [2019] WASCA 8.
The appellant was knowingly involved in a supervisory capacity in an organised crime syndicate's dealings in almost 5 kg of cocaine, much of which was of very high purity. It may be inferred that he was aware of the quantity and type of drugs involved, and that he expected to be paid for his assistance. He played an important role in coordinating the enterprise while shielding the principal organisers from exposure to prosecution. While the appellant had generally good antecedents, the weight to be accorded to those personal factors was lessened by the significance of general deterrence as a sentencing consideration.
Having regard to the appellant's role in the enterprise, the customary sentencing standards for serious drug offences and all relevant circumstances and sentencing factors, we are satisfied that the sentence imposed on the appellant is not unreasonable or plainly unjust. Inferred error has not been even arguably established.
Orders
There is no adequate explanation for the almost 2.5 year delay in instituting this appeal. In any event, the grant of an extension of time in which to appeal would have no utility given the lack of merit of the sole ground of appeal. We would make the following orders in the appeal:
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)Leave to appeal is refused on the sole ground of appeal.
(3)The appeal is dismissed.
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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