Ng v The State of Western Australia
[2017] WASCA 124
•4 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NG -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 124
CORAM: MAZZA JA
MITCHELL JA
HALL J
HEARD: 23 JUNE 2017
DELIVERED : 4 JULY 2017
FILE NO/S: CACR 138 of 2016
BETWEEN: CHIN YEUNG NG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 1954 of 2015
Catchwords:
Criminal law - Sentencing - Whether manifestly excessive - Possession of methamphetamine with intent to sell or supply
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M R Gunning
Respondent: Mr J A Scholz
Solicitors:
Appellant: Gunning Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
Hoang v The State of Western Australia [2015] WASCA 130
Kitis v The State of Western Australia [2013] WASCA 34
Le v The State of Western Australia [2015] WASCA 73
Ly v The State of Western Australia [2015] WASCA 18
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Nguyen v The State of Western Australia [2017] WASCA 35
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
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
Tresnjo v The State of Western Australia [2015] WASCA 193
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
REASONS OF THE COURT:
Summary
On 22 August 2016, the appellant was sentenced to a total effective term of 12 years' immediate imprisonment for the following offences:
1.Possessing a prohibited drug, namely methamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA); and
2.Possessing a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained; contrary to s 417(1) of the Criminal Code.
The appellant appeals against his sentence on the ground that the individual sentence of 12 years' imprisonment imposed for possessing methamphetamine with intent to sell or supply it to another is manifestly excessive.
For the following reasons, that ground has not been established and the appeal must be dismissed.
Circumstances of offending
The appellant is a Chinese national who arrived in Australia from Hong Kong on a 3‑month tourist visa, which he overstayed. Despite arriving on a tourist visa, the appellant intended working in Australia but found work hard to come by. He became friends with his co-offender and they travelled to Perth, where they initially stayed in a backpacker's hostel. He obtained some work handing out pamphlets for a brothel.
While engaged in this work, the appellant was approached and asked to store drugs. The proposal was that the appellant would be paid his daily living expenses, enough money to pay his share of renting an apartment with the co‑offender and HK$10,000 for storing the drugs. Given his difficulty in finding work, he thought the offer too good to refuse.
At the time that he agreed to become involved, the person or persons with whom the appellant was dealing took his details, his passport and his family details and advised the appellant to find an apartment in Perth. The apartment was to be used for storing drugs. The drugs would be dropped off at, and collected from the appellant, at the apartment. At the time of agreeing to take on the role of storing drugs, the appellant did not appreciate the level of drug dealing in which he would be involving himself. He had only minimal knowledge of illegal drugs.
On 11 August 2015 the appellant and his co-offender, Jian Ng, moved into an apartment on Adelaide Terrace in East Perth. The 6‑month lease for the apartment was in the co-offender's name, but was signed by the appellant and his co-offender. Methamphetamine was delivered to the apartment in two deliveries. The appellant was required to weigh the methamphetamine as it arrived, and he purchased scales for this purpose. He did not place the methamphetamine which was delivered into smaller bags or repackage any of the drugs other than those contained in one broken bag. At some point prior to 9 September 2015, the appellant exchanged some of the methamphetamine for $385,000 in cash.
On 8 September 2015, the appellant told his co-offender that his boss wanted the appellant to move out of the Adelaide Terrace unit because there was trouble expected. A room was booked at the Kings Hotel in Hay Street, Perth at 7.00 pm on 8 September 2015. In the evening of 8 September 2015 or early morning of 9 September 2015, the appellant moved to that room, taking most of the methamphetamine and the money with him. However, the appellant left 42.2 g of methamphetamine with his co-offender in two clipseal bags weighing 19.7 g (79% purity) and 22.5 g (75 % purity). The appellant intended to recover those drugs at a later time and sell them himself. Most of the appellant's other belongings remained at the Adelaide Terrace unit.
At about 12.20 am on 9 September 2015, police searched the Adelaide Terrace unit, at which the co-offender was present. In the co‑offender's bedroom wardrobe, police located the two clipseal bags of methamphetamine which the appellant had left with the co-offender.
During the search of the Adelaide Terrace unit, police also found three sets of scales, an ice-cream scoop with traces of methamphetamine, a large empty clipseal bag with traces of white crystalline powder on the inside surface, a note of numbers and unused clipseal bags.
At about 2.20 am on 9 September 2015, police searched the appellant's room at the Kings Hotel, while he was present. They found $385,000 in cash and 4.941 kg of methamphetamine in five clipseal bags weighing 987 g (78% purity), 988 g (78% purity), 988 g (77% purity), 988 g (78% purity), and 990 g (78% purity). The appellant was arrested.
Personal circumstances
The appellant was born in a village in the Canton province of China in 1989. He was 26 years old at the time of offending and 27 years old at the time of sentence. The appellant's family moved to Hong Kong when he was about 5 years old, and his father passed away when he was 12 years old. He has one sibling, a sister.
The appellant attended school until the equivalent of year 11, but struggled at school academically. He did a cooking course and worked for an Asian food franchise chain for about 5 years. His job was to cook in the kitchen. The appellant's wage was used to pay for rental accommodation and food for the appellant and his mother. He saved only a small amount of money, which he used to pay one month's rent for his mother and to come to Australia in the hope of earning more money for himself and to help support his mother.
The appellant's mother was 55 years old at the time of sentence, was seriously ill and was unlikely to live beyond the age of 60 years. Since the appellant came to Australia, his sister has shouldered the burden of paying their mother's rent and medical expenses. The appellant's sister had not told their mother of his situation because she was concerned that it will impact on their mother's already fragile condition.
The appellant was not in a relationship, and had never used illicit drugs. He had no physical or mental health issues, and no prior convictions.
The sentencing judge's approach
Seriousness of the offending conduct
The sentencing judge observed that any offence of possessing methamphetamine with intent to sell or supply it to another is very serious. He said that methamphetamine is an awful drug, which is having a devastating effect on our community. The sentencing judge recognised that the seriousness of the appellant's offence was aggravated by the amount and the purity of the methamphetamine he possessed. The sentencing judge found that the methamphetamine was in its manufactured form and had not been diluted before coming into the appellant's possession. It was able to be significantly diluted by use of a cutting agent.
The sentencing judge recognised that the appellant would not have been aware of the precise purity of the drug and may also not even have been aware that it could be further diluted. The sentencing judge said:[1]
However, the objective reality of the situation is that by agreeing to involve yourself in what you must have appreciated was a significant drug dealing enterprise, you, whether you knew it or not were playing an important role in the dissemination into the community of what would have turned out to be a very large amount of methamphetamine, much more than you actually had in your possession.
[1] Sentencing ts 61.
The sentencing judge also recognised that the amount or purity of the methamphetamine were not determinative of the seriousness of the appellant's offence. However, they were important factors to take into account.
After referring to the circumstances in which the appellant became involved in the enterprise, the sentencing judge said:[2]
It is clear that you were to some extent in the drug dealing syndicate that you got yourself involved in. You were not part of the syndicate in the sense of having knowledge of the intricacies of the syndicate's operations.
You were not going to be sharing save to a minor extent in the huge profits that those who did comprise the syndicate were intending to generate from the distribution of the drugs that you were holding for them. Nonetheless, you still performed a very important role in the drug dealing syndicate's operations. You were a crucial conduit between the supplier, that is the people who you were working for, and the purchasers.
Further, by agreeing to act as the conduit, you enabled your masters to remain one step removed from the drugs and able to avoid detection. If people like you were not willing to perform the role that you did, high end drug dealers would find it much harder to supply their trade without exposing themselves to a much greater risk of detection.
[2] Sentencing ts 63.
The sentencing judge accepted that the appellant was a 'somewhat vulnerable and easy target for the unscrupulous people running the drug dealing syndicate'. He also accepted that the appellant may not, at least when initially approached, have fully appreciated the magnitude of the drug dealing business with which he was involving himself. However, the appellant was at all times aware that, by agreeing to receive, store and on‑sell drugs at the bidding of his masters, he was engaging in serious criminal conduct. The sentencing judge said:[3]
You at all times appreciated that what you were agreeing to do was to play an important role in the distribution of a significant amount of a very valuable prohibited drug. You were aware of the value of the drug given the money that you had received in relation to the drugs which forms the basis of your offence, the subject of count 2.
Nonetheless, you were willing to engage yourself in such conduct in return for what was, at least from your perspective, a significant financial reward. In addition, you were willing to attempt to take advantage of being entrusted with the methylamphetamine with a view to making more money for yourself as was demonstrated by your provision of a small amount of the methylamphetamine to [the co-offender] for safekeeping with the intention of recovering the methylamphetamine later and selling it yourself.
This demonstrates that you are by no means a complete innocent. Thus and for the reasons that I've stated you engaged in serious criminal conduct which demonstrated a significant degree of culpability, or in other words, moral blameworthiness on your part.
Personal circumstances
[3] Sentencing ts 64.
After referring to the serious illness of the appellant's mother, the sentencing judge observed:[4]
All that I have just said leads to the very sad conclusion given the sentence that I must inevitably impose on you, that it is unlikely that you will see your mother again before she passes away.
This is tragic. I have no hesitation in accepting that this situation will cause you a great deal of anguish. It is something that I bear in mind in determining the sentence to be imposed on you although it is not for obvious reasons a circumstance that can be given any great mitigatory significance. At the end of the day you made the decision to engage in your criminal behaviour despite the risks and knowing that your mother was very unwell.
[4] Sentencing ts 68.
The sentencing judge was satisfied that the appellant had pleaded guilty to the offences at the first reasonable opportunity, and that his guilty pleas were indicative of a genuine acceptance of responsibility and remorse. Noting that the appellant had been in custody since his arrest on 9 September 2015, the sentencing judge observed:[5]
Your time in custody has been and will continue to be more onerous for you than would normally be the case given your limited English language skills and your isolation from your home, friends and family.
I accept that your time in custody has been more onerous for you than would normally be the case given your isolation from your home, friends and family. I also accept that any further time you spend in custody will for these reasons be more onerous for you than would normally be the case.
However, this is not a factor that I can place great significance on. You made the decision to engage in serious criminal conduct in this country therefore you cannot now expect to advance as a significant mitigating factor the fact that you were serving your time in prison in a foreign country isolated from family and friends. Nonetheless, it is something that I take into account as part of the general mix of factors relevant to the exercise of my sentencing discretion.
Sentence imposed
[5] Sentencing ts 69.
The sentencing judge recognised the role of personal and general deterrence as major sentencing considerations for offences involving the sale or supply of prohibited drugs. His Honour said:[6]
A necessary consequence of giving effect to general deterrence and personal deterrence is that less weight must be given to mitigating circumstances that are personal to you. That is not to say that such mitigating circumstances are irrelevant. They are not irrelevant. However, they assume less weight than might otherwise be the case.
[6] Sentencing ts 73.
The sentencing judge considered that a term of immediate imprisonment was the only appropriate sentencing option, and imposed a sentence of 12 years' imprisonment on count 1 (relating to the drugs) and 18 months' imprisonment on count 2 (relating to the cash). The sentencing judge indicated that he had reduced by 25% the sentences that he would have imposed if the appellant had not pleaded guilty and there had been no other mitigatory factors, under s 9AA of the Sentencing Act 1995 (WA).
The sentencing judge then concluded that a total sentence of 12 years' imprisonment appropriately reflected the appellant's overall criminality in committing the offences, having regard to all the circumstances. His Honour achieved that outcome by ordering the sentences imposed be served concurrently.
The sentencing judge backdated the appellant's sentence to 9 September 2015 to take account of time spent in custody on remand. The appellant was made eligible for parole.
Ground of appeal
The appellant's ground of appeal, as explained at the hearing of the appeal, contends that the sentence of 12 years' imprisonment imposed for count 1 is manifestly excessive.
Manifest excess
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 of appeal
Maximum penalty
The maximum penalty for an offence against s 6(1) of the Misuse of Drugs Act is 25 years' imprisonment and a fine of $100,000.[7]
Customary sentencing standards
[7] Section 34(1)(a) of the Misuse of Drugs Act.
The customary sentencing standards for offences involving the possession of large quantities of methamphetamine with intent to sell or supply have been addressed in a number of decisions of this court, many of which are very recent.[8] Having regard to the different circumstances of the offenders and the offences, the appellant's sentence for the drug offence is broadly consistent with those imposed in these other cases.
Seriousness of offending
[8] See Chen v The State of Western Australia [2017] WASCA 114; Chen v The State of Western Australia [2017] WASCA 99; Nguyen v The State of Western Australia [2017] WASCA 35; Yiu v The State of Western Australia [2016] WASCA 172; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1; Tresnjo v The State of Western Australia [2015] WASCA 193; Hoang v The State of Western Australia [2015] WASCA 130; Le v The State of Western Australia [2015] WASCA 73; Ly v The State of Western Australia [2015] WASCA 18; Phan v The State of Western Australia [2014] WASCA 144; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Pham v The State of Western Australia [2011] WASCA 244; Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71.
The appellant's counsel initially sought to characterise the appellant's conduct as that of 'holding the drugs as Bailee', and submitted that it was not an 'ongoing enterprise'.[9] That submission as to the nature and extent of the appellant's role should not be accepted.
[9] Appellant's written submissions, par 19 ‑ 20.
The appellant was not merely the holder of the drugs. He signed the lease of the apartment where they were to be stored. As well as taking custody of the drugs, he exchanged a portion of the drugs received in two deliveries for the sum of $385,000. When a warning came that 'trouble' was expected at the Adelaide Terrace unit, the appellant hired a hotel room and moved the drugs and cash to the alternative location. The appellant's involvement had continued for almost a month after he leased the Adelaide Terrace unit. It may be inferred that it would have continued, had police not intervened.
The appellant knowingly played an important role in a significant drug dealing enterprise involving the dissemination of a large quantity of methamphetamine into the community. The appellant acted as a crucial conduit between the suppliers and wholesale purchasers of the drug, enabling the suppliers to remain one step removed from the drugs and significantly reduce their risk of apprehension. The appellant was trusted by those suppliers to hold a large and valuable quantity of high-purity methamphetamine and cash.
There is also the irresistible inference that the appellant 'skimmed' about 42 g of the methamphetamine from the larger packages, with the intention of selling that portion of the drugs for his own benefit. The appellant was acting purely for financial gain, being both the payment he would receive for dealing with the larger quantity of methamphetamine for others and the proceeds of the sale of the smaller amount which he had 'skimmed'.
As was noted in R v Olbrich,[10] whilst categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.
Appellant's personal circumstances
[10] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [14], [19].
The appellant's personal circumstances are referred to above. As has been noted on many occasions, personal circumstances are generally of lesser significance in relation to offences of this nature where personal and general deterrence are the most important sentencing factors.
Conclusion as to manifest excess
Having regard to all of the circumstances of the offence and the offender, we are not persuaded that the sentence of 12 years' immediate imprisonment for the offence of possession of methamphetamine with intent to sell or supply it to another was unreasonable or plainly unjust. The appellant has not established inferred error.
Orders
For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is dismissed.
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