Ng v The State of Western Australia
[2020] WASCA 70
•1 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 70
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 9 OCTOBER 2019
DELIVERED : 1 MAY 2020
FILE NO/S: CACR 224 of 2018
BETWEEN: YIK TO NG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEVY DCJ
File Number : IND 566 of 2016
Catchwords:
Criminal law - Appeal against sentence - One count of possession of 315 kg of methylamphetamine with intent to sell or supply - One count of unlawful possession of cash totalling $1,183,500 - Appellant sentenced to 20 years' imprisonment for the drug offence and 5 years' imprisonment for the unlawful possession offence to be served concurrently - Total effective sentence of 20 years' imprisonment - Whether each individual sentence was manifestly excessive - Whether sentence infringed the parity principle
Legislation:
Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 417
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 6, s 9AA
Result:
Extension of time granted
Appeal allowed
Appellant resentenced
Representation:
Counsel:
| Appellant | : | Ms K J Farley SC |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnden v The State of Western Australia [2014] WASCA 161
Gaskell v The State of Western Australia [2018] WASCA 8
Higgins v The State of Western Australia [2019] WASCA 78
Kezkiropoulos v The State of Western Australia [2018] WASCA 58
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mondo v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The State of Western Australia [2019] WASCA 8
Zanon v The State of Western Australia [2016] WASCA 91
JUDGMENT OF THE COURT:
This is an appeal against sentence. The appellant's appeal notice was filed 20 months out of time, so the appellant requires an extension of time to appeal. In support of the application for an extension of time, the appellant swore an affidavit on 27 November 2018. Whether the extension of time is granted will depend upon the merits of the appeal.
The appellant and his co-offender (B) were each charged in the District Court on the same indictment with two offences,[1] being that:
(1)On 8 September 2015 at Canning Vale, each had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (as against the appellant, count 1).
(2)On the same date and at the same place, each had in his possession a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417 of the Criminal Code (WA) (the Code) (as against the appellant, count 2).
[1] Counts 1 and 2 for the appellant and counts 3 and 4 for B.
The maximum penalty for the offence contrary to s 6(1)(a) MDA was 25 years' imprisonment and a fine of $100,000 at the time, which has since increased to life imprisonment. The maximum penalty for the offence contrary to s 417 of the Code is 7 years' imprisonment.
B pleaded guilty to the offences at an early stage in the proceedings. On 2 May 2017, he was sentenced by a different judge to 9 years 6 months' imprisonment for the drug offence and 2 years' imprisonment for the unlawful possession offence. His Honour ordered that the sentences be served concurrently. Thus, B's total effective sentence was 9 years 6 months' imprisonment.
The appellant also pleaded guilty to the charges, but not until the sixth day of a scheduled 12‑day trial. On 2 March 2017, the appellant was sentenced to 20 years' imprisonment for the drug offence and 5 years' imprisonment for the unlawful possession offence. His Honour ordered that the sentences be served concurrently. Thus, the appellant's total effective sentence was 20 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 8 September 2015.
The appellant originally advanced three grounds of appeal. Ground 1 alleged that each individual sentence was manifestly excessive. Ground 2 alleged that the total effective sentence infringed the first limb of the totality principle. Ground 3 alleged an infringement of the parity principle, having regard to the sentence imposed upon B.
The question of leave to appeal on these grounds was referred to the hearing of the appeal.[2]
[2] Order by Mazza JA, 2 April 2019.
At the hearing of the appeal, counsel for the appellant abandoned ground 2.[3]
[3] Appeal ts 3.
For the reasons that follow, ground 1 has been made out. We would grant the extension of time, allow the appeal and resentence the appellant. In these circumstances, it is unnecessary to decide ground 3. However, the issue of parity with B is relevant to resentencing the appellant.
The facts
The appellant has not challenged the learned sentencing judge's findings of fact as set out in his sentencing remarks,[4] which may be summarised as follows.
[4] Sentencing remarks, 2 March 2017, pages 4 - 7.
The appellant was 19 years old at the time of the offending. He was born in Hong Kong and had lived there for all his life with his parents and sister. In 2015, he was approached by a friend in a snooker bar in Kowloon, who asked if he wanted to work in Australia. The appellant was not told precisely what work he would be doing, but he appreciated that he would be travelling to Australia unlawfully and would be involved in some form of illegality whilst in Australia.
The appellant was then put in touch with other people to whom he confirmed his agreement to be involved in the illegal enterprise. The appellant remained unaware of precisely what his role entailed.
The appellant's motive for becoming involved in the illegal enterprise was money. The sentencing judge was unable to make a finding as to the exact amount that the appellant was to be paid. However, his Honour noted that B, whose role in the offending was not materially different to the appellant's, had indicated that he was to receive approximately $HK1 million (equivalent to around $AUD160,000 ‑ 170,000). His Honour said that it was fair to assume that the appellant would have received 'a not insignificant amount of money as a reward'.[5]
[5] Sentencing remarks, 2 March 2017, page 4.
The appellant's journey to Australia was in a small fishing vessel. Initially, he travelled from Hong Kong to Shenzhen in mainland China. The next day he was blindfolded and taken to a harbour. From there he was transported by dinghy to the small fishing vessel. The journey to Australia took about 10 days. On or about 25 August 2015, the appellant landed on a beach near South Hedland. Once there, he was taken to Perth in a van driven by Kam Ting Hiroki Wong, who was referred to in the sentencing proceedings as Mr Kam. The rear of the van was full of canvas bags. The appellant did not know what was in the bags.
His Honour observed that there was no evidence that the bags were transported in the same small fishing vessel in which the appellant travelled. However, he inferred from the surrounding evidence that the bags must have arrived 'more or less contemporaneously' with the appellant.[6] His Honour accepted that it was possible that the bags were transported on a separate fishing vessel or by some other means.
[6] Sentencing remarks, 2 March 2017, page 4.
On the afternoon of 26 August 2015, the van driven by Mr Kam arrived at a house in Canning Vale. There, the appellant was introduced to B. Together they unloaded the canvas bags from the vehicle. In all, 360 bags were unloaded. Unknown to the appellant, Mr Kam took 30 bags. Each bag weighed about 1 kg and contained what appeared to be a packet of tea. In fact, the packet contained methylamphetamine. Once the bags were inside the house, the packets of tea were removed, counted and weighed, and placed in a number of suitcases which were kept in a specially designed 'drug room'.
His Honour found that, on 26 August 2015, the appellant had an awareness or belief that there was a significant and real chance that the tea packets contained prohibited drugs. His Honour also found that, within days, that awareness or belief became actual knowledge, and from that time on the appellant was:[7]
… a willing participant for reward in a drug distribution syndicate that, had it not been for the diligent and effective intervention of law enforcement … may well have seen an enormous amount of high purity methylamphetamine distributed in Australia.
[7] Sentencing remarks, 2 March 2017, page 5.
In the period between 26 August 2015 and his arrest on 8 September 2015, the appellant received instructions from his boss via telephone. The learned sentencing judge noted that the way the illegal enterprise operated ensured that those higher up in the organisation were insulated from detection by not meeting directly with those in a position such as the appellant. On instructions from their boss, the appellant and B began transferring the contents of the tea packets into clipseal bags. This task had not been completed by the time of the appellant's arrest. His Honour found that the process of unpacking the tea packets and repacking their contents into clipseal bags provided the appellant with precise knowledge that the enterprise he was involved in concerned a prohibited drug.
B legally entered Australia with a visa. Part of his role in the enterprise was to collect money on instructions, which he brought back to the house. Because the appellant did not have a visa, he was mostly required to stay at the Canning Vale house to watch over the drugs and the cash collected by B. The drugs and cash were stored in the drug room which was kept locked. Both the appellant and B had a key to the room. With respect to the money, the appellant and B were responsible for counting it and ensuring the accuracy of the sums collected.
On 8 September 2015, the appellant carried out instructions to go to an apartment in East Perth. He travelled there by taxi and collected from Cheng Phat Chow a Blackberry mobile telephone and a bag containing $178,500 in cash.
As it turned out, Mr Chow was the main target of an operation being undertaken by the Australian Crime Commission and the Western Australian police. After the appellant left Mr Chow's apartment, his taxi was followed by law enforcement officers to the Canning Vale house. Later that day, police officers executed a search warrant at the house and arrested the appellant.[8]
[8] B was arrested some minutes earlier while travelling in a taxi. He was brought back to the house where entry was gained using B's key: ts 17 February 2017, page 307.
In the house, police located a total of $1,183,500 in cash and 315 kg of methylamphetamine with what his Honour described '[as] an average purity of at least 80%'.[9] Depending upon how the methylamphetamine was ultimately distributed, its value was somewhere between $31.5 million and $315 million.
[9] Sentencing remarks, 2 March 2017, page 7. In the statement of material facts read to his Honour by the prosecutor, the purity of the methylamphetamine was described as being on average 80 ‑ 82% with the highest purity for any 1 kg bag being 93%: ts 17 February 2017, page 307.
The appellant was interviewed at the scene by law enforcement officers. He candidly told them that he had come to Australia 'to make money'.[10]
[10] Sentencing remarks, 2 March 2017, page 7.
The appellant's personal circumstances
The appellant was 21 years of age at the time of sentencing. He grew up in a stable family unit. His mother was a public servant in Hong Kong and his father was a service manager for Porsche. His sister works as an accountant.
Three of the appellant's grandparents are still alive and live in Hong Kong. They are in their 80's. There is a real possibility that the appellant will not see them again in person.
As a child, the appellant suffered from ill-health which meant that he missed a good deal of his schooling. He drifted into smoking and drinking, and frequented snooker halls and karaoke clubs in Hong Kong. His Honour remarked that the appellant was 'the perfect target' for the people who ultimately employed him to commit the offences. There was no mention before the sentencing judge of the appellant having any prior criminal history.[11]
[11] No pre‑sentence report was prepared in relation to the appellant. Defence counsel specifically told the sentencing judge that none was required.
The sentencing judge found that one of the catalysts for the appellant's offending was a desire to secure permanent private accommodation for his parents.[12]
[12] Sentencing remarks, 2 March 2017, page 7.
The sentencing remarks
Having set out the facts of the offending and the appellant's personal circumstances his Honour turned to the question of the discount, if any, that should be given to the appellant for his guilty pleas, pursuant to s 9AA of the Sentencing Act 1995 (WA). The sentencing judge noted that the guilty pleas were entered before B, who had been called to give evidence for the State at the appellant's trial, was cross‑examined.[13] His Honour concluded that a discount of 5% was appropriate. In this appeal, the appellant does not challenge this assessment. His Honour said that a further factor in mitigation was that the appellant co‑operated with police during the search of the house and made certain admissions of fact which were maintained and confirmed at the start of the trial.[14]
[13] Sentencing remarks, 2 March 2017, page 8.
[14] Sentencing remarks, 2 March 2017, page 8.
As to the appellant's youth, the sentencing judge acknowledged that this was a justification for extending leniency to the appellant. His Honour said that he had not lost sight of the fact that the appellant was only 19 years old when he committed the offences. His Honour counterbalanced this factor by observing that, while in prison, the appellant had participated in telephone conversations which made clear that his motivation for the offending was a desire to make money. His Honour said that the appellant willingly agreed to become involved in the criminal activity and that he must have known that he would be engaging in serious illegality in Australia.[15]
[15] Sentencing remarks, 2 March 2017, page 9.
His Honour acknowledged that the fact the appellant would be imprisoned away from his family and friends was a matter of some relevance, but that it did not carry great weight, as the appellant had come to Australia for the sole purpose of committing 'a very serious crime'.[16]
[16] Sentencing remarks, 2 March 2017, page 9.
As to the seriousness of the appellant's offending, the sentencing judge said that the appellant played a 'significant role' in 'a sophisticated drug enterprise'.[17] His Honour continued:
It is clear that those at the top of the hierarchy of this particular criminal syndicate adopted sophisticated methods to import and distribute methylamphetamine in enormous quantities, and, until recently, previously unseen levels of purity.
[17] Sentencing remarks, 2 March 2017, page 3.
His Honour said that the overall level of the operation was 'at the very highest end of the scale for this type offence'.[18] However, the appellant's role in the enterprise was 'towards the lower end of the hierarchy'.[19]
[18] Sentencing remarks, 2 March 2017, page 3.
[19] Sentencing remarks, 2 March 2017, page 3.
Immediately after these statements, his Honour said:
When all of the circumstances of your offending are considered in terms of drug dealing in this state generally, your offending falls towards the highest end of the scale of seriousness when what you actually did is viewed objectively.[20]
[20] Sentencing remarks, 2 March 2017, page 3.
His Honour then proceeded to describe the facts of the appellant's offending and the appellant's personal circumstances.
His Honour expressly considered the question of parity but by reference to the sentence imposed upon another offender, Chin Yung Ng, and not B. At the time of the appellant's sentence, B was still waiting to be sentenced. Mr Chin Yung Ng had been involved in the same enterprise as the appellant (and B), however, the sentencing judge found that his position was different to that of the appellant.[21] It is unnecessary to say anything more about Mr Chin Yung Ng and the sentence imposed upon him because, in this appeal, the appellant's claim that the parity principle was infringed arises from the sentence imposed upon B, not Mr Chin Yung Ng.
[21] Sentencing remarks, 2 March 2017, page 12.
His Honour said little about count 2. Towards the end of the sentencing remarks he said:[22]
In relation to count 2, having taken into account all relevant factors, including of course all the mitigating factors, the appropriate sentence is five years' imprisonment.
[22] Sentencing remarks, 2 March 2017, page 14.
His Honour expressly had regard to the totality principle. He ordered that the sentence of 5 years' imprisonment for the offence of unlawful possession of the money be served concurrently with the sentence of 20 years' imprisonment that he imposed for the drug offence. In doing so, his Honour said that the appellant's overall criminality was properly reflected in a total effective sentence of 20 years' imprisonment.[23]
[23] Sentencing remarks, 2 March 2017, page 14.
Ground 1 - general principles
The general principles governing a contention that a sentence is manifestly excessive are well-established and do not require repetition.[24] It is enough to say the following.
[24] See, eg, Jiang v The State of Western Australia[2020] WASCA 7 [75].
The allegation that each of the sentences was manifestly excessive is one of implied error by the sentencing judge. Implied error is established where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, it is not to the point that an appellate court, if it had been sentencing an offender at first instance, would have exercised the discretion differently.
The orthodox approach to manifest excess is to examine the sentence having regard to:
(a)the maximum sentence prescribed by law for the relevant offence;
(b)the standards of sentencing customarily observed with respect to that offence;
(c)the place which the criminal conduct occupies on the scale of seriousness of the kind in question; and
(d)the personal circumstances of the offender.
Ground 1 - sentencing for drug offences
The general principles applicable to sentencing offenders for serious drug offences are also well-established and were stated in Gaskell v The State of Western Australia by Mazza and Beech JJA in these terms:[25]
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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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.
[25] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
Ground 1 - the appellant's submissions
The focus of the appellant's submissions was on the sentence imposed on count 1. Counsel for the appellant asserted that the sentence for the drug offence was the highest individual sentence ever imposed for such an offence. It was contended that such a sentence was not justified, having regard to the role undertaken by the appellant in the commission of the offences. Counsel described the appellant as 'cannon fodder' for the drug owners who organised the enterprise. By 'cannon fodder', counsel explained that if the enterprise went 'pear-shaped', it would be the appellant who would be caught by law enforcement authorities and not those who organised the venture and stood to profit most from it.
Counsel emphasised the appellant's subservient role in the offending. It was asserted that once he became aware of the enormous scale of the enterprise, having arrived in Western Australia, he could not, practically speaking, withdraw from it.
Counsel for the appellant submitted that the learned sentencing judge placed too much emphasis on the amount of methylamphetamine and money that was found at the house. Counsel submitted that the appellant was young, naïve and exploited.
Counsel for the appellant contended that, having regard to the individual sentences (which were close to the maximum sentences available on each count), his Honour must have considered, before reduction for mitigating factors, that each offence was deserving of either the maximum penalty or very close to it. It was submitted that the maximum penalty, or a sentence close to that mark, should only be imposed for an offender who was at the top of the drug hierarchy and not someone in the position of the appellant.
Ground 1 - the respondent's submissions
Counsel for the respondent submitted that the circumstances of this case were unique, having regard to the quantity of drugs and cash seized by the police. Counsel for the respondent submitted that there were few mitigating factors. The appellant's plea of guilty came during the trial and attracted only a 5% discount pursuant to s 9AA of the Sentencing Act. Further, the appellant was motivated by the prospect of significant financial reward, and his willingness to engage in the tasks he was ordered to perform over the period of approximately 12 days counterbalanced the notion that he was naïve. Counsel for the respondent argued that, having regard to the enormous harm that could have been caused to the community if the 315 kg of methylamphetamine had been sold or supplied, and the very large sums of money which appeared to have been generated by drug sales, each of the offences committed by the appellant could be properly characterised as being within the worst category and thus the individual sentences that were imposed were not erroneous.
Counsel for the respondent frankly accepted that the individual sentences could only survive appellate review if this court considered that the offending was in the worst category or close to it.
Disposition
Section 6 of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. As this court observed in Kezkiropoulos v The State of Western Australia,[26] the statutory requirement that a sentence must be commensurate with the seriousness of the offence reflects the common law principle that a sentence should be proportionate to the offence.
[26] Kezkiropoulos v The State of Western Australia [2018] WASCA 58 [27].
The singular factual feature of this case is the enormous quantity of methylamphetamine and the large amount of cash that the appellant possessed. To put the quantity of methylamphetamine in some context, the offender in Gaskell possessed 21.74 kg of methylamphetamine with intent to sell or supply to another. At the time (2018), this was the largest quantity of methylamphetamine this court had seen in respect of a single offence. The quantity of methylamphetamine in the present case is about 15 times greater than that in Gaskell. Moreover, the enterprise in which the appellant was involved was sophisticated, international and well‑planned and resourced. Further, if the drugs were distributed into the community, the enterprise stood to gain an extremely large sum of money. Finally, it must not be overlooked that 315 kg of methylamphetamine had the potential to bring about enormous harm within the community.
In their written submissions, the parties referred to a number of sentencing cases decided in this court involving significant quantities of prohibited drugs, including Zanon v The State of Western Australia;[27] Gaskell; Kezkiropoulos and Wong v The State of Western Australia.[28] We have had regard to these cases and to the cases discussed or referred to in them.
[27] Zanon v The State of Western Australia [2016] WASCA 91.
[28] Wong v The State of Western Australia [2019] WASCA 8.
The quantity of methylamphetamine involved in count 1 means that the other cases provide very limited assistance in determining the issue of whether the sentence imposed on count 1 is manifestly excessive. As noted in Gaskell:[29]
A range of sentences for very serious offending involving very large quantities of one drug has not yet emerged.
[29] Gaskell [142].
The absence of reasonably comparable cases against which to compare and evaluate the sentence does not prevent this court from considering and determining whether a given sentence is manifestly excessive or inadequate.[30]
[30] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] and Gaskell [143].
The maximum penalty fixed by the legislature provides, '[t]aken and balanced with all of the other relevant factors, a yardstick'.[31] The maximum penalty may be imposed for an offence that falls within the 'worst category', as that expression was explained by the High Court in R v Kilic.[32] The assessment of whether a case falls within the 'worst category' requires a consideration of both the nature of the crime and the circumstances of the offender. Where an offence, although a grave instance of the offence in question, is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instance of the offence to the worst category, properly so called.[33]
[31] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[32] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [17] - [20].
[33] R v Kilic [19].
In the present case, at first instance, the State did not submit that the offence was in the worst category and his Honour made no finding to this effect. Nevertheless, it is clear from the sentence that was imposed on count 1 that his Honour regarded the offending as falling close to the worst category. That is apparent from the ultimate sentence of 20 years' imprisonment, after a 5% discount for the plea of guilty and after giving credit for other mitigating factors, including the appellant's youth and good character.
Without question, count 1 is a very serious offence, particularly having regard to the enormous quantity of methylamphetamine it involved. But it must be borne in mind, as the High Court emphasised in Wong v The Queen,[34] the gravity of a drug offence is not to be assessed solely or chiefly by the weight of the prohibited drug involved. This is not to deny the importance of the quantity (and purity) of a prohibited drug. The quantity and purity is a significant factor because, the greater the quantity and purity, the greater the potential harm to the community if the drug is distributed. In addition, the gravity of a drug offence must be assessed by reference to all relevant circumstances, including, but not limited to:
•the nature of the drug enterprise in which the offender was involved;
•the role that the offender played in the enterprise;
•the offender's motive for becoming involved in the enterprise;
•whether the offender pleaded guilty;
•whether the offender provided all its promised cooperation with law enforcement authorities; and
•the offender's personal circumstances.
[34] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73].
As this court observed in Kezkiropoulos, in offences of this kind, the worst category of offending will generally involve those who are at the top of the hierarchy of a significant drug dealing operation.[35]
[35] Kezkiropoulos [38]; see also, by way of illustration, Gaskell [147] - [149].
In the present case it must be accepted that the appellant involved himself in a major international drug enterprise. While he may not have initially been aware of its precise nature and scale, he was aware of these things by, or not long after, his arrival at the house in Canning Vale. The harm that the methylamphetamine could have caused the community is incalculable. Although the precise financial reward to be paid to the appellant is unknown, it must have been substantial if he hoped to buy his parent's private accommodation in Hong Kong from the proceeds. However, the appellant was, as the sentencing judge acknowledged, at the lowest end of the hierarchy. He had no role in the funding or organisation of the enterprise. He exercised no authority with respect to it. Principally, his job was to obey instructions and to guard the drugs and money. He carried out other duties, including repackaging some of the drugs and, on 8 September 2016, taking delivery of a quantity of cash.
Although the need to provide general deterrence requires that an offender's favourable personal circumstances are of subsidiary importance, it cannot be overlooked that the appellant was just 19 years of age when he committed the offences. There is no evidence of any past offending by the appellant and none was suggested at his sentencing.
The appellant was in effect a paid (albeit a well-paid) labourer at the lowest end of the hierarchy in a sophisticated drug importation organisation. Yet the sentencing judge's approach must have involved a starting point, prior to the discount for the plea of guilty under s 9AA of the Sentencing Act, close to the maximum penalty. In our view, the nature of the appellant's role in the operation and his position in the organisation could not justify a sentence close to the maximum. That is so notwithstanding the enormous quantity of methylamphetamine, which (as yet) has no precedent in the decisions of this court.
Having regard to all of the above circumstances, in particular those referred to in the previous paragraph, we are persuaded that the imposition of a sentence of 20 years' imprisonment for count 1 was unreasonable and plainly unjust. Implied error has been established. The sentence is manifestly excessive. Ground 1 has been made out. It is now for this court to resentence the appellant on this count.
We have also concluded that the sentence of 5 years' imprisonment which was imposed on count 2 is manifestly excessive. Our reasons for arriving at this conclusion may be briefly stated. We will not repeat the facts and circumstances surrounding count 2. The offence was committed in the context of the appellant's willing involvement in the major criminal enterprise that we have already described. The appellant was found in possession of a very large sum of illegally derived cash. However, the money did not belong to him and his dealings with it reflected his low level of involvement in the criminal enterprise.
The parties did not cite to this court any relevantly comparable case.[36] While acknowledging that the offence committed by the appellant was serious, particularly having regard to the quantity of cash he possessed, when measured against the yardstick of the maximum penalty of 7 years' imprisonment, a sentence of 5 years, having regard to the appellant's low level in the hierarchy of the criminal enterprise and the mitigating factors, is in our opinion unreasonable and plainly unjust. Implied error has been established. The sentence on count 2 is manifestly excessive.
[36] A number of cases involving sentences under s 417 of the Code, albeit in circumstances materially different from the present case, were referred to by the court in Law v The Queen [2019] WASCA 81 [157]; see also Musulin v The State of Western Australia [2020] WASCA 18.
Ground 3
As ground 1 has been made out, it is unnecessary to decide ground 3, although the question of parity with B is a relevant factor to the appellant's resentencing and will be discussed below. Ground 3 should be dismissed.
Resentencing
In resentencing the appellant, it is unnecessary to repeat the facts of the appellant's offending, his personal circumstances, the factual findings of the primary judge and the general principles applicable to offences of the type committed by the appellant. We also bear in mind that the maximum penalty applicable to the offences for which the appellant is to be resentenced is 25 years' imprisonment and/or a fine of $100,000 for the offence contrary to s 6(1)(a) of the MDA, and 7 years' imprisonment for the unlawful possession offence.
At this point, it is convenient to turn to the question of parity with B.
The appellant and B were convicted of the same offences. It was accepted by the parties in this appeal that their personal circumstances and respective roles in the offending were indistinguishable. B received a total effective sentence of 9 years 6 months' imprisonment. The parity principle has been explained in many cases decided by this court. The relevant principles are well‑established and were explained by Buss JA in Barnden v The State of Western Australia:[37]
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
[37] Barnden v The State of Western Australia [2014] WASCA 161 [55] ‑ [56]. See also Higgins v The State of Western Australia [2019] WASCA 78.
There are mitigating factors applicable to B which are not applicable to the appellant, such that markedly differential treatment of B is justified. First, B pleaded guilty at a much earlier stage in the proceedings and received a discount of 20% from the judge who sentenced him, pursuant to s 9AA of the Sentencing Act. This stands in contrast to the appellant's late plea of guilty for which he received only a 5% reduction. Second, B agreed to give, and gave, evidence against the appellant. Finally, there are other matters not requiring description, of which this court and counsel are aware, that justified further reduction to the sentences imposed on B. Such matters do not apply to the appellant.
The sentences to be imposed upon the appellant must reflect the fact that he involved himself in a very substantial international drug syndicate. Although the appellant's role was towards the bottom of the hierarchy of this enterprise, while he was not aware of its precise scale until he was in Western Australia, he came to know the massive scale of the enterprise and continued to carry out the instructions that were given to him for a substantial financial reward.
Therefore, notwithstanding that his role was towards the bottom of the hierarchy, the appellant must receive substantial sentences of imprisonment for each offence.
In our opinion, the appropriate sentence for the offence contrary to s 6(1)(a) of the MDA is 16 years' imprisonment, and for the unlawful possession offence it is 3 years 9 months' imprisonment. In our opinion, in order to capture the total criminality of the appellant's offending, there should be partial concurrency of the unlawful possession offence so as to produce a total effective sentence of 17 years' imprisonment.
Extension of time
As we would allow the appeal against sentence, the appellant's application for an extension of time to appeal should be allowed.
Orders
We would make the following orders:
(1)An extension of time is granted.
(2)Leave to appeal is granted on ground 1.
(3)Leave to appeal is refused on ground 3.
(4)The appeal is allowed.
(5)The sentences imposed upon the appellant by Levy DCJ are set aside.
(6)The appellant is resentenced to 16 years' imprisonment on count 1 and to 3 years 9 months' imprisonment on count 2.
(7)The sentence on count 2 is to be served partially concurrently with the sentence on count 1. This is to be achieved by the sentence on count 2 being taken to commence on 8 September 2015 and the sentence on count 1 being taken to commence on 8 September 2016. Thus, the total effective sentence is 17 years' imprisonment which is taken to commence on 8 September 2015. The appellant is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza6 MAY 2020
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