Le v The State of Western Australia
[2015] WASCA 73
•9 APRIL 2015
LE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 73
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 73 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:126/2014 | 4 MARCH 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 9/04/15 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Leave to add additional grounds of appeal in CACR 131 of 2014 refused Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | VAN BA LE THE STATE OF WESTERN AUSTRALIA TRIEU THANH NGO |
Catchwords: | Criminal law Offering to supply a prohibited drug Manifest excess Alleged failure to take into account relevant considerations Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA) Sentencing Act 1995 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA) |
Case References: | Aconi v The Queen [2001] WASCA 211 Basilio v The State of Western Australia [2010] WASCA 202 Fragomeni v The State of Western Australia [2011] WASCA 67 Galbraith v The State of Western Australia [2011] WASCA 70 Giglia v The State of Western Australia [2010] WASCA 9 Guler v The State of Western Australia [2014] WASCA 83 Lai v The State of Western Australia [2012] WASCA 181 Law v The State of Western Australia [2009] WASCA 193 Ly v The State of Western Australia [2015] WASCA 18 Neumann v The State of Western Australia [2013] WASCA 70 Pham v The State of Western Australia [2011] WASCA 244 Phan v The State of Western Australia [2014] WASCA 144 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Ruvinovski v The State of Western Australia [2013] WASCA 204 Sinagra-Brisca v The Queen [2004] WASCA 68 Tulloh v The Queen [2004] WASCA 169 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 73 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : IND 900 of 2013
Catchwords:
Criminal law - Offering to supply a prohibited drug - Manifest excess - Alleged failure to take into account relevant considerations - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Leave to add additional grounds of appeal in CACR 131 of 2014 refused
Appeals dismissed
Category: B
Representation:
CACR 126 of 2014
Counsel:
Appellant : Ms M R Barone
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Barone Criminal Lawyers
Respondent : Director of Public Prosecutions (WA)
CACR 131 of 2014
Counsel:
Appellant : Mr M T Trowell QC & Mr S D Freitag
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Akn & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Aconi v The Queen [2001] WASCA 211
Basilio v The State of Western Australia [2010] WASCA 202
Fragomeni v The State of Western Australia [2011] WASCA 67
Galbraith v The State of Western Australia [2011] WASCA 70
Giglia v The State of Western Australia [2010] WASCA 9
Guler v The State of Western Australia [2014] WASCA 83
Lai v The State of Western Australia [2012] WASCA 181
Law v The State of Western Australia [2009] WASCA 193
Ly v The State of Western Australia [2015] WASCA 18
Neumann v The State of Western Australia [2013] WASCA 70
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Ruvinovski v The State of Western Australia [2013] WASCA 204
Sinagra-Brisca v The Queen [2004] WASCA 68
Tulloh v The Queen [2004] WASCA 169
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 McLURE P: These are appeals against sentence. On 11 June 2014 Van Ba Le and Trieu Thanh Ngo were each convicted on their fast-track pleas of guilty of one count of offering to supply a prohibited drug, methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MDA).
2 Mr Le, Mr Ngo and a third person, Thi Hong Hue Pham were co-offenders. Ms Pham was convicted on her fast-track plea of guilty of possession of the methylamphetamine with intent to sell or supply. The co-offenders were each sentenced by Stavrianou DCJ on 12 June 2014. Mr Le and Mr Ngo were sentenced to 11 years imprisonment. Ms Pham was sentenced to 7 years 6 months imprisonment.
3 The sole ground in Mr Ngo's appeal, for which leave has been granted, is that the sentence of 11 years imprisonment is manifestly excessive. At the hearing of the appeal senior counsel for Mr Ngo, who was his counsel in the sentencing proceedings, sought leave to admit further evidence in the appeal and to add two additional grounds. In particular, leave was sought to amend the grounds of appeal to claim that:
2. the sentencing judge erred in fact in finding that [Mr Ngo's] offending was 'motivated purely by the desire for financial benefit';
3. the finding in ground 2 was made without reference to [Mr Ngo's] counsel and it denied [Mr Ngo] the opportunity to call evidence in rebuttal.
4 Mr Le's grounds of appeal are that:
(1) the sentencing judge erred by failing to give any weight to Mr Le's lack of criminal record and his good prospects of rehabilitation;
(2) the sentence is manifestly excessive.
The factual finding
5 A statement of agreed facts filed on 7 May 2014, which was read into the record, is in the following terms:
1. About 2.00 pm on Thursday 4 July 2013 the offender Mr Ngo in company with Mr Le met with an undercover operative (UCO) at the Empire Bar, Great Eastern Highway, Rivervale. This meeting was pre-arranged by others.
2. During the meeting Mr Ngo discussed with the UCO the sale and supply of 1 kg of methylamphetamine. Mr Ngo agreed to facilitate the supply of the methylamphetamine for the negotiated price of $370,000.00. Mr Ngo agreed with the UCO for the exchange of the methylamphetamine for the $370,000.00 to occur on Tuesday 9 July 2013. Mr Ngo provided the UCO with his mobile [telephone number]. The UCO dialled the number there and noticed that Mr Ngo's phone rang. Mr Le was present for this meeting.
3. On the morning of 9 July 2013 Mr Le and Ms Pham departed Sydney, New South Wales on a flight arriving in Perth at approximately 11.55 am the same day.
4. Mr Ngo remained in Sydney on 9 July 2013.
5. During this flight Ms Pham had secreted in her underpants and bra 953.8 g of methylamphetamine.
6. The methylamphetamine was contained in four bags as follows:
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7. After arriving in Perth Mr Le and Ms Pham caught a taxi to the Great Eastern Motor Lodge on the Great Eastern Highway, Rivervale, where Mr Le booked and paid for a room. Mr Le later hired a car.
8. On this same day at about 12.40 pm Mr Ngo texted the UCO and said 'Hi Uncle how is going' and the UCO replied 'good thanks see you at 2.30'. Mr Ngo then sent a text saying 'thanks' and they arranged to meet at the Empire Bar (in Rivervale).
9. At about 2.27 pm the UCO arrived at the Empire Bar. Mr Ngo sent a text message to the UCO stating 'how long a u be there' and the UCO said 'Here now' and also sent another text to Mr Ngo saying 'how long u going to be' and then Mr Ngo sent a text saying 'Now'. A couple of minutes later Mr Ngo said 'same car'. The UCO then walked into the beer garden and sat down. The UCO saw Mr Le carry a bag and then they had a brief conversation and then they walked to the UCO car. Mr Le asked if he could see the money from the UCO. The UCO said that he had the money in his hotel room. The UCO then said can he see the drugs and Mr Le unzipped his bag and said 'inside there'.
10. Mr Le and the UCO confirmed the agreement of the sale of approximately 1 kg of methylamphetamine for $370,000.00.
11. Mr Le and the UCO then departed the Empire Bar and went to the [UCO's] hotel. They then left the UCO's hotel. Mr Le and the UCO then met with Ms Pham who was collected at the front of Red Rooster on Great Eastern Highway, Rivervale. Mr Le introduced the UCO to Ms Pham.
12. They all went back to the Empire Bar and Ms Pham showed the UCO approximately 1 kg of methylamphetamine. Mr Le then drove back to the Crown Promenade Hotel in Burswood [the UCO's hotel], with Ms Pham and the UCO. They went separately.
13. Mr Le attended room 334 where he was arrested by detectives a short time later in the room.
14. Detectives simultaneously arrested Ms Pham at the Crown Casino who was at the front of the Grand Promenade Hotel. Police located in her possession the 953.8 g of methylamphetamine which was seized.
15. Mr Le was offered a video record of interview (VROI) and participated in that VROI and denied the offences and claimed to be in Perth seeking to further his coffee shop business.
16. Ms Pham was offered a VROI and also provided a statement on 9 July 2013. Ms Pham admitted that she had been offered $10,000 to $15,000 to bring the drugs (she did not know what particular kind of drugs) from Sydney to Perth as a courier.
17. Mr Ngo was apprehended on 10 July 2013 in Sydney attempting to board a one way flight to Vietnam. Mr Ngo declined to participate in a VROI.
18. Mr Ngo facilitated the drug transaction: he agreed with the UCO for the amount of the drugs, the price and location for the transaction to take place.
19. Mr Le escorted Ms Pham across from Sydney to Perth and was involved in ensuring that the deal went through by arranging for the drugs to be shown to the UCO and also to check that the money was there. He then co-ordinated with Ms Pham to show the UCO the drugs.
20. In summary, Mr Ngo was the facilitator of the deal. Mr Le assisted in the deal on 4 July 2013 and escorted Ms Pham across to Perth on 9 July 2013 with the drugs for the drug transaction with the UCO. Ms Pham was the courier.
6 The sentencing judge made findings of fact substantially in terms of paragraphs 1 to 20 of the statement of agreed facts. He gave each co-offender a discount of 25% for their plea of guilty under s 9AA of the Sentencing Act 1995 (WA).
7 The sentencing judge accepted that Mr Le, who was aged 34 at the time of the offence, had 'real and positive' prospects of rehabilitation and that his (extensive) history of offending was entirely traffic related.
8 The sentencing judge made no finding concerning Mr Ngo's prospects of rehabilitation. He was aged 35 at the time of the offence and had prior convictions, including two drug convictions, one for cultivating cannabis and the other for supplying a commercial quantity of cannabis for which offences he received a total sentence of 2 years imprisonment.
9 The sentencing judge also found that, having regard to the quantity and purity of the drugs, both appellants were close to the source thereof and were motivated purely by the desire for financial gain (ts 154).
Legal principles
10 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. The claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
11 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
12 The standards of sentencing customarily imposed do not establish the range of a sound sentencing discretion. Rather, they provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and the fact that there is no single correct sentence.
Mr Ngo's amendment application
13 At the commencement of the hearing on 4 March 2015, senior counsel for Mr Ngo made an informal application for leave to add ground 2. There were no written submissions in support of the proposed ground, of which the respondent had only been informed on the morning of the hearing. Accordingly, this court was without written submissions from any party in relation to the proposed ground.
14 In the course of senior counsel's oral submissions in support of proposed ground 2, it became clear that he needed to formulate a further ground to capture all matters on which he wished to rely. He was given time to consider and formulate the ground, which became proposed ground 3 set out above.
15 The conduct of Mr Ngo's appeal is an unwelcome reminder of how appeals were frequently conducted prior to the introduction of the Supreme Court (Court of Appeal) Rules 2005 (WA). The consequence of seeking to add grounds of appeal on the run is that the court is largely left with the task of identifying the relevant factual background and merits. That has to be done even if the proposed grounds have all the hallmarks of a thought bubble.
16 The legal principles relating to fact-finding in sentencing are well-known, deriving in large measure from R v Olbrich (1999) 199 CLR 270. Relevantly for present purposes, they are as follows.
17 If the prosecution seeks to have the sentencing judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it. If the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary call evidence about it. It will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstances, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party. See Olbrich [25].
18 The sentencing judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution or otherwise. See Law v The State of Western Australia [2009] WASCA 193 [25] - [34].
19 The prosecution must establish an aggravating circumstance beyond reasonable doubt but the offender is only required to prove a mitigating circumstance on the balance of probabilities: Olbrich [27].
20 I would refuse leave to add grounds 2 and 3 because they do not have a reasonable prospect of succeeding. I have had regard to the additional evidence in considering the amendment application.
21 It is necessary to refer to the conduct of the sentencing proceedings. All parties were legally represented. Mr S Corish appeared for Mr Le, Mr M Trowell QC for Mr Ngo and Mr N Cogan represented the State.
22 Mr Cogan read the statement of agreed facts in its entirety. As is the practice in this State, Mr Cogan also tendered the papers comprising the State brief.
23 Counsel for Mr Le followed Mr Cogan, and confirmed Mr Le's acceptance of the agreed facts (ts 61). Mr Le also accepted that he supplied the drugs to Ms Pham (ts127).
24 The sentencing judge made it clear that he would be relying on the statement of agreed facts unless there was something that needed to be fleshed out (ts 62). He also made it clear that if there was anything in the documents outside the statement of agreed facts, counsel would have to identify with particularity what was in issue and the relevant documentary evidence relating to the issue (ts 63 - 64).
25 The submissions put on behalf of Mr Le were to the effect that he should be sentenced for what he had done rather than attempt to label the role he played in the offence and that a careful consideration of the statement of agreed facts demonstrated that Mr Le was below Mr Ngo in the hierarchy of culpability. The submissions as to relative culpability were also supported by reference to specific paragraphs in the deposition of the UCO. However, there was no inconsistency between the statement of agreed facts and the specified paragraphs in the deposition, just greater detail.
26 Mr Le's counsel also relied on his client's pre-sentence report. The substance of Mr Le's claims recorded in the pre-sentence report are that Mr Ngo requested Mr Le's assistance with the offence and that Mr Le's role was to act as a lookout for which he (Mr Le) was promised a payment of $10,000. Mr Le's counsel submitted:
One should be sentenced based on what one has done so I rely on the reference in the PSR to motivation, the reward aspect of it and it being, as it were, a flat fee but I'm not seeking to, as it were, use a label or role to somehow mitigate what he did or didn't do and your Honour can see what he has admitted to doing in the statement of agreed facts (ts 85).
27 The submission was that Mr Le's criminality was somewhere between that of Mr Ngo and that of Ms Pham (ts 86).
28 Written sentencing submissions had been filed on behalf of Mr Ngo (but not served on the co-offenders), pars 9 and 10 of which state relevantly:
The offender says he did not have the contacts to acquire the drug and was not involved in the sourcing it.
The offender was not tasked with collecting payment for the drug and did not expect to receive any payment for his role in facilitating the transaction. He says that he was involved because of a misguided sense of loyalty to the co-offender Le who he felt he 'owed' some obligation due to their business relationship through the Sydney coffee shop.
29 Mr Ngo claims in his pre-sentence report that: Mr Ngo's family managed the coffee shop that Mr Le's family owned in Sydney; when Mr Ngo arrived in Perth he called Mr Le to advise of a food order for the coffee shop; Mr Le advised him that he too was in Perth and they agreed to and did meet up; Mr Le offered Mr Ngo some methylamphetamine; Mr Le had been supplying methylamphetamine free of charge to Mr Ngo since 2011; Mr Le sold methylamphetamine regularly for a 'dealer'; when out together in Perth, Mr Ngo and Mr Le were approached by two people, who Mr Ngo had never met concerning the supply of 1 kg of methylamphetamine; Mr Ngo agreed to facilitate the supply of the methylamphetamine for the agreed price of $370,000 as a favour to Mr Le for helping Mr Ngo and his family with their business in Sydney and for supplying him with methylamphetamine on previous occasions free of charge.
30 Mr Ngo's counsel did not accept that Mr Ngo's role was more significant, than that of Mr Le (ts 92). When questioned by the sentencing judge as to why, counsel said:
[W]hile there is limited utility in having this type of discussion, it was really prompted by [Mr Corish's] comments as he sought to discount his own client's role in the enterprise, but I am not suggesting that one is necessarily higher than the other. I am just pointing out there are aspects to the evidence from the UCO that might suggest that they were of equal status one might well have been higher than the other but … I am not asking you to make that finding (ts 94).
31 Mr Ngo's pre-sentence report was relied on in general terms. In his plea in mitigation, Mr Ngo's counsel did not bring the assertions in pars 9 and 10 of the written sentencing submissions to the attention of the sentencing judge or identify with particularity the findings he should make concerning Mr Ngo's motivation or reward for the offending.
32 The State's position was that the circumstantial evidence supported the submission that Mr Ngo and Mr Le were on an equal footing in a joint criminal enterprise (ts 105). Mr Cogan continued:
[I]t is important to note who was operating under the control of whom when considering the sentence.
Now, the State just doesn't know because if the court considers the pre-sentence … reports of Mr Le and Mr Ngo, they give a different version of how this occurred and in a nutshell, they seem to blame each other (ts 107).
33 Mr Cogan described the offence as a 'commercial drug operation to make money and a significant amount of it' (ts 111). He suggested that even if Mr Le and Mr Ngo were servants of another, the expectation would be that they will be paid at least what Ms Pham was paid per day (ts 111).
34 After hearing from counsel for all parties, the sentencing judge foreshadowed his intention to adjourn the sentencing hearing in order to review the transcript to determine whether a trial of issues was required relating to the respective culpability of Mr Ngo and Mr Le. Mr Trowell expressly disavowed the need for a trial of issues (ts 114, 119). His submission was that both Mr Ngo and Mr Le 'were high up on the rungs of the ladder' (ts 115).
35 The sentencing judge adjourned to review the transcript (ts 123). On recommencement, he identified one factual issue that was outside the statement of agreed facts (being who supplied the drugs to Ms Pham). When counsel for each of Mr Le and Mr Ngo maintained their positions as to the relative criminality or culpability of their clients, the sentencing judge directed them to identify the facts they relied on for their positions.
36 The following exchange then occurred:
TROWELL, MR: In my written submissions I have set out the basis of facts upon which the - - -
STAVRIANOU DCJ: No, you haven't, Mr Trowell.
…
STAVRIANOU DCJ: I want you to identify the facts - - -
TROWELL, MR: In the documents themselves, yes, okay.
37 After a short adjournment, Mr Trowell relied on par 8 in Mr Ngo's written sentencing submissions which addresses the sense in which the word 'facilitator' was used in the statement of agreed facts. Mr Trowell did not refer to the assertions in pars 9 or 10 of the written sentencing submissions.
38 After Mr Trowell submitted that the sole source of disagreement was the meaning of the word 'facilitating', the following exchange occurred:
TROWELL, MR: I think my friend says what that means is that he co-ordinated the whole thing or he's the co-ordinator and I say facilitating means what it does, it means it made it happen. That is the conduit between the UCO, the - and Le, and you have the - you have of course what each of them say in their pre-sentence reports as well.
STAVRIANOU DCJ: Well, what's in the pre-sentence report; where does that take it?---
TROWELL, MR: Well it probably doesn't take you anywhere because the fact is three accused and the State have agreed on a set … of agreed facts. (emphasis added)
39 Against that background, it is clear that Mr Ngo's assertions in the pre-sentence report (summarised above) which form the evidentiary basis of pars 9 and 10 of the written submission were effectively abandoned.
40 That was an acknowledgement of the inevitable. Mr Ngo's assertions in his pre-sentence report were positively inconsistent with, and controverted by, Mr Le's assertions in his pre-sentence report. Any finding in Mr Ngo's favour would necessarily be an adverse finding against Mr Le, and vice versa. Neither co-offender would benefit from a trial of the issues and none was sought. The large gaps in the statement of agreed facts (including the source of the drugs, who arranged the first meeting with the UCO, the roles of Mr Ngo and Mr Le) would be fertile territory for cross-examination of the co-offenders by the State. I do not accept that there was any realistic possibility of Mr Ngo adducing evidence to support his claims relating to the motivation and reward for his offending.
41 In any event, the State had expressly challenged Mr Ngo's assertions as to the motivation and reward for his offending and sought a finding of the kind made by the sentencing judge. Proposed ground 3 is without merit.
42 As to proposed ground 2, Mr Ngo's counsel submitted that there was no evidence to support the finding that Mr Ngo's offending was motivated purely by the desire for financial benefit. The objective circumstances of the offending (in particular the quantity, purity and purchase price of the drugs and the wholesale nature of the transaction) compel that finding. Proposed ground 2 is without merit.
Mr Le - ground 1
43 Appeal counsel for Mr Le expressly disavowed reliance on a claim of breach of the parity principle, acknowledging that her client could not in the circumstances have an objectively justifiable sense of grievance from the sentence imposed on Mr Ngo.
44 The substance of ground 1 is that the sentencing judge made an express error in sentencing Mr Le by failing to take into account relevant considerations, being his lack of a relevant prior criminal record and his prospects of rehabilitation. The only other mitigating factor was the plea of guilty for which both Mr Le and Mr Ngo received the maximum discount.
45 For this ground to succeed Mr Le has to establish that the trial judge found that he and Mr Ngo were equally culpable in the commission of the offence.
46 There is a well understood distinction between what the participants in a s 6(1) MDA offence did in its implementation or execution and where they sit within any relevant organisational hierarchy, whether as between co-offenders or in a wider criminal hierarchy. The most culpable person in a hierarchy may have little or no active participation in the physical movement of prohibited drugs between people and places. The least culpable in the hierarchy is often the person whose only role is to physically transport the drugs.
47 There was no information before the sentencing judge as to whether Mr Ngo and Mr Le were principals (that is, acting on their own account) or were acting at the behest of unknown third parties above them in an organisational hierarchy. However, the sentencing judge concluded that both men were close to the source of the drugs. Unsurprisingly, that finding is not challenged in the appeal.
48 Mr Le's position at sentencing was that based on the agreed facts, the only reasonable inference was that he was below Mr Ngo in the organisational hierarchy because of Mr Ngo's facilitation role. Mr Ngo's position was that based on the agreed facts, the sentencing judge had no alternative but to treat them as having equal status in a joint criminal exercise.
49 The sentencing judge dealt with the issue as follows:
I regard [Ms] Pham's culpability as less than each of Mr Le and Mr Ngo. She did transport the drugs to Perth and did have some involvement with the UCO in Western Australia. I'm unable to distinguish between the culpability of [Mr] Le and [Mr] Ngo.
It is the case that [Mr] Ngo did conduct the negotiations with the UCO. He also communicated with the UCO after the initial meeting and also communicated with him on 9 July 2013. [Mr] Le's conduct involved travelling to Perth with the drugs and with Ms Pham. [Mr] Le was involved with the UCO on 9 July when the exchange of money for the drugs was to occur (ts 150 - 151).
50 I infer Ms Pham's culpability was less because she was the courier who received a flat fee for her participation, which in any view was extensive and crucial.
51 When the sentencing judge says he is 'unable to distinguish between the culpability of Mr Le and Mr Ngo' I infer he is referring to their relative position or roles in the hierarchy of responsibility for the offence. That was the substance of the matter in dispute between Mr Ngo and Mr Le.
52 The sentencing judge declined to find that 'facilitator' meant that Mr Ngo had organisational seniority or authority over Mr Le and Ms Pham. When the focus shifts from their respective positions in the hierarchy to the actual conduct of each, Mr Le's involvement in the offence is greater. That is recognised by the sentencing judge in his description of their respective involvement. Of Mr Le, he said:
He did attend the meeting on 4 July 2013 with the [UCO]…. That meeting was arranged by others. He accompanied Ms Pham on the flight when the methylamphetamine was brought into the State from New South Wales. He dealt with the [UCO] and, as I have said, accompanied Ms Pham to this State. He handed the drugs to Pham prior to departure from New South Wales (ts 152).
53 The findings relating to Mr Ngo were as follows:
You played the role of facilitator of the deal, which meant in this case that you, together with Le … met the UCO and you negotiated the sale of the drug and the purchase price.
You coordinated the delivery, and I accept you didn't manufacture the drug. There was no evidence that you … were involved - or indeed, transported it from Sydney to Western Australia.
But your role was significant, and in my view, taking account all of the factors involved and allowing for the discount [for the plea of guilty], you should also receive a term of imprisonment of 11 years (ts 156). (emphasis added)
54 The sentencing judge interprets 'facilitator' in the agreed facts as being something Mr Ngo and Mr Le did together. Against that background, I am not satisfied that the imposition of the same sentence for both Mr Le and Mr Ngo reflects a failure by the sentencing judge to take into account the mitigating factors that distinguished Mr Le's position from that of Mr Ngo. I would dismiss ground 1.
Both appeals - manifest excess
55 The primary sentencing principle for an offence against s 6(1) of the MDA is that significant weight must be given to general deterrence with reduced weight given to matters personal to the offender.
56 The weight and purity of the prohibited drug the subject of the offence is not the sole or primary sentencing factor. See Wong v The Queen (2001) 207 CLR 584. Other relevant (if known) factors include the offender's knowledge of the weight and purity of the drugs in question, the offender's role in the offence and the nature and extent of the reward from the commission of the offence.
57 However, it remains the case that the quantity and purity of the prohibited drug is an important sentencing factor which can be given significant weight. That is because one of the most important features bearing upon the formulation of the applicable sentencing principles for offences against s 6(1) of the MDA is the significant adverse social consequences that flow from its commission: Wong [64]. The higher the quantity and purity of drug the greater the scope and extent of the actual and potential harm to the community. The victims of a single offence can potentially (as in this case) be multitudinous and be both direct (the consumers of the prohibited drug) and indirect (the victims of criminal conduct by consumers of prohibited drugs). Moreover, the weight and purity of the drugs can also provide the factual foundation for the drawing of inferences about other sentencing factors (such as the offender's role or place in the hierarchy and the nature of the reward). The gross weight of the drugs in this case is 953.8 g and the net weight is 652.7 g.
58 The maximum sentence for the offence committed by the appellants is 25 years imprisonment. Their criminal conduct is at the high end of the scale of seriousness of offences of this type. They offered to supply a large quantity of high purity methylamphetamine for a wholesale price of $370,000. Both men were close to the source of the prohibited drug. As is apparent from the agreed facts, they both knew all of the salient features of the transaction. It was a commercial transaction motivated by financial gain. A very lengthy sentence was inevitable and it had to be significantly higher than that imposed on the courier, Ms Pham.
59 The gravamen of the appellants' case is that the sentence of 11 years is so far outside the sentences customarily imposed in comparable cases as to be unreasonable or plainly unjust.
60 The cases relied on by the appellants and the State include Phan v The State of Western Australia [2014] WASCA 144; Guler v The State of Western Australia [2014] WASCA 83; Neumann v The State of Western Australia [2013] WASCA 70; Lai v The State of Western Australia [2012] WASCA 181; Pham v The State of Western Australia [2011] WASCA 244; Galbraith v The State of Western Australia [2011] WASCA 70; Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Ruvinovski v The State of Western Australia [2013] WASCA 204 (the maximum penalty for the conspiracy offence in question was 20 years); Sinagra-Brisca v The Queen [2004] WASCA 68; Tulloh v The Queen [2004] WASCA 169. See also Aconi v The Queen [2001] WASCA 211 and Ly v The State of Western Australia [2015] WASCA 18. For broad details of the relevant facts, see Annexure A.
61 Of those cases, Fragomeni, Basilio, Ruvinovski, Tulloh, Ly and Lai involved pleas of not guilty. The other cases involved pleas of guilty. However, the reduced maximum discount of 25% for sentences imposed after the commencement of s 9AA of the Sentencing Act on 20 December 2012 did not apply to many of the cases. Care must also be taken when comparing an individual sentence that is one of a number of sentences imposed for offences against s 6(1) of the MDA. There is often a relationship between the length of an individual sentence and an order for total or partial cumulation, as described in Giglia v The State of Western Australia [2010] WASCA 9. Further, there has been a gradual firming up of sentences since 2004.
62 Allowing for differences in sentencing variables and the fact that there is no single correct sentence, the sentences imposed on the appellants are broadly consistent with the sentencing outcomes in the specified cases. Thus, comparison with sentences imposed in comparable cases does not establish that the appellants' sentences are either unreasonable or plainly unjust.
Conclusion
63 Leave to add proposed grounds 2 and 3 in the Ngo appeal should be refused. Ground 1 in the Ngo appeal and grounds 1 and 2 in the Le appeal should be dismissed. Accordingly, both appeals must be dismissed.
64 BUSS JA: I agree with McLure P.
65 MAZZA JA: I agree with McLure P.
Annexure A
| Ly v The State of Western Australia [2015] WASCA 18 | ||
| Offence and sentence |
• 1 x Possession of heroin with intent to sell or supply: 4 years imprisonment • Total: 13 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 251g; 224 g Purity: 71%; 67% Net: 341.69 g Possession of methylamphetamine Gross: 509 g, 29.8 g; 40 g; 68.1 g; 31.1 g; 0.77 g Purity: 5%; 0.2%; 0.2%; 11%; 63%; 0.77g not tested Net: 52.67 g Possession of heroin Gross: 112 g; 59.6 g; 114 g; 198 g Purity: 53%; 47%; 49%; 48% Net: 238.27 g |
Gross weight = 1.66 kg Net weight = 632.84 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Phan v The State of Western Australia [2014] WASCA 144 | ||
| Offence and sentence |
| |
| Plea |
| |
| Quantity and purity of drug |
Purity: 73.9% Net: 775.95 g |
Gross weight = 1.05 kg Net weight = 775.95 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Guler v The State of Western Australia[2014] WASCA 83 | ||
| Offence and sentence |
• Possession of methylamphetamine with intent to sell or supply: 6 years imprisonment • Total: 8 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 509 g Purity: 18% Net: 91.62 g Methylamphetamine Gross: 403 ml Purity: 80% Net: 322.4 ml |
Gross weight = 509 g + 403 ml Net weight = 91.62 g + 322.4 ml |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Ruvinovski v The State of Western Australia [2013] WASCA 204 | ||
| Offence and sentence |
1 x Conspiracy to sell or supply methylamphetamine: 10 years imprisonment Ivan Ruvinovski 1 x Conspiracy to sell or supply methylamphetamine: 8 years imprisonment | |
| Plea |
Ivan: not guilty | |
| Quantity and purity of drug |
Purity: 68-70% Net: 862.5 g |
Gross weight = 1.25 kg Net weight = 862.5 g |
| Role |
| |
| Relevant prior record |
Ivan: Minor possession of drugs | |
| Other mitigation |
Ivan: no | |
| Neumann v The State of Western Australia[2013] WASCA 70 | ||
| Offence and sentence |
• 3 x Possession of methylamphetamine with intent to sell or supply: 2 years imprisonment; 10 years imprisonment; 3 years imprisonment • Total: 15 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Methylamphetamine count 2 Gross: 394.6g Purity: 22-24% Net: 90.76 g (average) Methylamphetamine count 3 Gross: 452.8g; 400 g Purity: 59.4%; 70.75% Net: 551.97 g Methylamphetamine count 4 Gross: 18.2 g Purity: 22% Net: 4 g |
Gross weight = 1.27 kg Net weight = 646.73 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Lai v The State of Western Australia[2012] WASCA 181 | ||
| Offence and sentence |
• Possession of heroin with intent to sell or supply:4 years imprisonment • Conspiring with another to possess methylamphetamine or heroin with intent to sell or supplyr: 4 years imprisonment • 4 x Offering to sell or supply a prohibited drug (methylamphetamine or heroin) to another: 3 years imprisonment; 4 years imprisonment; 4 years and 6 months imprisonment; 4 years imprisonment • Total: 13 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 498.7 g Purity: 47 - 52% Net: 246.86 g (average) Possession of heroin Gross: 167 g Purity: 64 - 66% Net: 108.55g (average) Conspiring to possess: unknown Offering to sell or supply Gross: 43.35 g, additional unknown quantity Purity: not tested |
Gross weight = 665.7 g Net weight = 355.41 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Pham v The State of Western Australia[2011] WASCA 244 | ||
| Offence and sentence |
• Possession of heroin with intent to sell or supply: 2 years imprisonment • Total: 9 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 498.7 g Purity: 47-52% Net: 246.9 g (average) Possession of heroin Gross weight: 167 g Purity: 64 - 66% Net: 108.55 g (average) |
Gross weight = 665.7 g Net weight = 355.45 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Galbraith v The State of Western Australia [2011] WASCA 70 | ||
| Offence and sentence |
| |
| Plea |
| |
| Quantity and purity of drug |
Purity: 74%; 78% Net: 738.41 g |
Gross weight = 971.6 g Net weight = 738.41 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Fragomeni v The State of Western Australia [2011] WASCA 67 | ||
| Offence and sentence |
• Possession of methylamphetamine with intent to sell or supply: 10 years imprisonment • Total: 10 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 2.53 g; 7.62 g; 4.25 g Purity: 17%; 14%; 18% Net: 2.27 g Possession of methylamphetamine Gross weight: 400.5 g; 445.9 g Purity: 17%; 18% Net: 148.35 g |
Gross weight = 860.8 g Net weight = 150.62 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Basilio v The State of Western Australia [2010] WASCA 202 | ||
| Offence and sentence |
• Possession of methylamphetamine with intent to sell or supply: 3 years imprisonment • Possession of MDMA with intent to sell or supply: 2 years imprisonment • Total: 10 years imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 869 g Purity: 55-59% Net: 495.33 g (average) Attempting to possess methylamphetamine Gross: 139 g Purity: 34-37% Net: 49.35 (average) Possession of methylamphetamine Gross: 17.7 g Purity: 39-58% Net: 8.59 g (average) Possession of MDMA Gross: 6.86 g Purity: not stated |
Gross weight = 1.03 kg Net weight = 553.27 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Tulloh v The Queen [2004] WASCA 169 | ||
| Offence and sentence (post-transitional) |
| |
| Plea |
| |
| Quantity and purity of drug |
Purity: 51%; 68% Net: 475.7 g |
Gross weight= 805.5 g Net weight = 475.7 g |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Sinagra- Brisca v The Queen [2004] WASCA 68 | ||
| Offence and sentence (post-transitional) |
• 2 x Possession of methylamphetamine with intent to sell or supply: 11 years 8 months • Total: 13 years 8 months imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Gross: 2.4 kg Purity: 27% Net: 648 g Possession of MDMA Gross weight: 14 g Purity: 18% Net: 2.52 g Possession of methylamphetamine Gross: 4.62kg; 435 g Purity: 46-50%; 21-46% Net: 2.37 kg (average) Possession of methylamphetamine Gross: 800 g Purity: 28-70% Net: 392 g (rough average) |
Gross weight = 8.27 kg Net weight = 3.41 kg |
| Role |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
| Aconi v The State of Western Australia [2001] WASCA 211 | ||
| Offence and sentence (post-transitional) |
• Total: 8years 8 months imprisonment | |
| Plea |
| |
| Quantity and purity of drug |
Purity: 57%, 43% Net: 322.09 g |
Gross weight = 592.7 g Net weight = 322.09 g |
| Role in offence |
| |
| Relevant prior record |
| |
| Other mitigation |
| |
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