Nguyen v The State of Western Australia
[2023] WASCA 151
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 151
CORAM: MAZZA JA
BEECH JA
VANDONGEN JA
HEARD: 6 SEPTEMBER 2023
DELIVERED : 20 OCTOBER 2023
FILE NO/S: CACR 20 of 2023
BETWEEN: JASON NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 835 of 2022
Catchwords:
Criminal law - Appeal against sentence - Parity principle - Double punishment
Legislation:
Criminal Code (WA), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 6
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | D W L Renton SC |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Abbas Jacobs Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Akoum v The King [2023] WASCA 102
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cotterill v The State of Western Australia [2013] WASCA 52
Creusot v The State of Western Australia [2022] WASCA 117
Garlett-Exell v The State of Western Australia [2020] WASCA 179
Gaskell v The State of Western Australia [2018] WASCA 8
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Greenland v The State of Western Australia [2017] WASCA 83
Hesketh v The Queen [2021] NSWCCA 262; (2021) 106 NSWLR 200
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Hunter‑Aragu v The State of Western Australia [2015] WASCA 80
Johnson v The Queen [2004] HCA 15; (2004) 218 CLR 451
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
McKay v The State of Western Australia [2023] WASCA 140
Mehta v The State of Western Australia [2023] WASCA 24
Papp v The State of Western Australia [2020] WASCA 125
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Peterson v The State of Western Australia [2019] WASCA 207
The State of Western Australia v ADS [2021] WASCA 99
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
JUDGMENT OF THE COURT:
On 10 January 2023 the appellant pleaded guilty in the District Court to one count of attempting to possess a trafficable quantity of methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), and two counts of dealing with or being in possession of money that is the proceeds of a crime, contrary to s 563A(1)(b) of the Criminal Code (WA). The appellant was sentenced to a total effective sentence of 12 years and 6 months' immediate imprisonment, backdated to commence on 25 February 2022.
The individual sentences imposed on the appellant were as follows:
Count
Offence
Sentence
1
Attempted possession of a trafficable quantity (7.389 kg) of methylamphetamine
11 years
2
Dealing with money ($1,713,140) the proceeds of a crime
5 years (concurrent)
3
Possession of money ($348,915) the proceeds of a crime
18 months (cumulative)
Total
12 years 6 months' imprisonment
Grounds of appeal
The appellant relies on the following three grounds of appeal:
1.The learned sentencing judge erred in fact by finding that the appellant's offending in relation to count 1 was more sophisticated than his co-offender.
2.The learned sentencing judged erred in law by treating as an aggravating circumstance for count 1, the appellant being entrusted with large quantities of cash, when his dealings with money was the subject of separate offences and sentences.
3.The learned sentencing judge erred in fact and law by imposing a sentence upon the appellant in relation to count 1 that gives rise to a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender.
Particulars
a.The appellant was found to have greater culpability than the co-offender.
b.The appellant's personal circumstances were not adequately considered, especially his deprived social and economic background and his mental health and its contribution to the offending.
The appellant filed his notice of appeal nine days out of time. However, he has been granted an extension of time within which to appeal. Further, an order has been made that the appellant's application for leave to appeal be referred to the hearing of the appeal.
For the following reasons, none of the grounds of appeal are reasonably arguable and leave to appeal should therefore be refused. It follows that the appeal is taken to be dismissed.
Factual basis for sentencing
On 22 February 2022, police executed a search warrant on a truck that had been driven by a man (X) from Victoria to Western Australia. In the truck police found 10.897 kg of methylamphetamine wrapped in 22 separate bags, each containing about 500 g. Police then executed a search warrant at X's home where a further 7.398 kg of methylamphetamine was found, wrapped in 15 packets each containing about 500 g. The purity of the drugs ranged between 60% and 80%.
In late February 2022, undercover police officers began communicating with a member of an established criminal network using an encrypted electronic device. Originally, an arrangement was made that all 15 packets of methylamphetamine found at X's home, in addition to 10 of the 22 packets of methylamphetamine from his truck, were to be delivered to a member of the criminal network in exchange for cash. After an initial attempt to deliver the drugs at a shopping centre in Noranda failed, an arrangement was later reached whereby only the 15 packets of methylamphetamine found at X's home were to be delivered.
Police replaced the 7.398 kg of methylamphetamine in the 15 packets with an inert substance and put it into a Holden Colorado, which was then parked at the shopping centre. Meanwhile, another man (B) put approximately $1.7 million in cash into the boot of his car while it was parked at his home in Koondoola. Although it is not clear from the facts read to the court, it appears as though B then went to a residential address in Noranda, leaving his car and the cash behind in Koondoola.
Later that morning, the appellant left his own home address in a car and met B at the Noranda address. He then drove from Noranda to B's home address in Koondoola and retrieved the cash from the boot of B's car, before returning to the Noranda address. When he arrived at the Noranda address, the cash was placed into a cardboard box which was then put into the back of a van. The appellant then drove the van to the shopping centre where police had parked the Holden Colorado.
When the appellant arrived at the shopping centre, he parked the van next to the Holden and swapped the money in the van for the 15 packets of methylamphetamine in the Holden. When he had finished, the appellant left the shopping centre in the van and returned to the Noranda address with what he believed was methylamphetamine. A short while later police seized the money that had been left in the Holden. Police also a executed a search warrant at the Noranda address where they arrested the appellant and B, and seized the 15 packets of inert substance. Police also found a cryovac machine, cryovac plastic, and scales containing traces of white powder at the Noranda address.
Later that day, police executed a search warrant at the appellant's home address where they found a total of $348,915 in cash. This cash was the subject of count 3 on the indictment.
The appellant's personal circumstances
The sentencing judge, Staude DCJ, made several findings about the appellant's personal circumstances.
The appellant was 26 years of age at the time of offending, and the sentencing judge accepted that he was 'on the cusp of youth', although he noted that any mitigation on account of that factor was modest. The appellant was born in New South Wales. The appellant's parents separated when he was very young, and he came to live in Perth with his mother and younger brothers when he was 8 years old. Shortly thereafter the appellant went to live with his father in Brisbane for about six months, then returned to live with his mother in Perth.
When he was 9 or 10 years of age, the appellant's father was killed in a traffic accident. The sentencing judge accepted that this had a profound effect on the appellant. The appellant's mother was incapable of properly looking after him and his brothers, and at the time of sentencing he had no relationship with her at all. His main supportive family relationships were with his grandmother and his aunt. The appellant had five younger brothers. He was the primary carer for one of his brothers from when his brother was 13 years of age until he turned 18. The appellant ceased caring for his brother when he was arrested.
The appellant experienced difficulties at school and he left high school in year 11. He then briefly attended a technical college, doing mechanical and bricklaying courses that he did not complete. He also worked in a variety of jobs, before working as a courier in the six months before he was arrested.
The appellant had been involved in at least two relationships, but difficulties in those relationships compounded the feelings of abandonment and rejection he had experienced as a child. The sentencing judge accepted that the appellant had resorted to drugs and alcohol to cope and found that he had used various illicit drugs from his early teenage years, but that he had been sober whilst on remand.
In terms of the appellant's mental health, Staude DCJ noted that the appellant had recounted a history of undiagnosed and untreated depression and anxiety as well as chronic feelings of abandonment and rejection. His Honour said that the appellant had told a court‑appointed psychologist that he engaged in drug trafficking because he was struggling financially and needed to support his drug addiction, and that the author of the pre‑sentence report had said that it appeared from the appellant's history that he lacked parental boundaries and nurturing, and that he also took on heavy responsibilities as the oldest sibling.
The sentencing judge accepted that the appellant was not at risk of reoffending in the future and had no significant criminal record, noting he had only been previously convicted of some road traffic offences and an offence of possession of cocaine.
The appellant provided the sentencing judge with what was described as a letter of apology. His Honour said that the letter was thoughtful and insightful. In the letter the appellant said that he had reflected on the actions and decisions that led to him being arrested and charged. He acknowledged that he only had himself to blame but said that the offences did not reflect who he was. The appellant pledged to work to make amends. The appellant also relied on several character references from members of his family and from his friends.
The sentencing judge found that the appellant's personal circumstances were favourable and said that he would take them into account, including as factors that reduced the need for personal deterrence. Otherwise, Staude DCJ concluded that the appellant was a person of good character. This finding was favourable to the appellant given the admissions made to the psychologist that he was a regular user of cocaine and that he had previously delivered other packages containing drugs and money.
The sentencing of X
Ground 1 relates to the relative seriousness of the offences committed by the appellant and by X, which involved the same quantity of methylamphetamine. Further, ground 3 asserts that the sentencing judge erred by imposing a sentence in relation to count 1 that infringed the parity principle. Accordingly, it is necessary to say something about the sentencing of X.
X was charged on indictment with two counts of possession of a trafficable quantity of methylamphetamine with intent to sell or supply, and one count of possession of money that was the proceeds of an offence, namely drug trafficking. He entered pleas of guilty to all those offences in the Magistrate's Court, and maintained those pleas when he appeared before Bowden DCJ on 16 August 2022.
According to the statement of material facts read by the State prosecutor at sentencing, X was a truck driver who entered Western Australia on 21 February 2022 in a truck that he had driven from Victoria. He was stopped by police. When the truck was searched, police found 10.897 kg of methylamphetamine concealed in the cab of the truck. The methylamphetamine was wrapped in 22 individually wrapped plastic bags, each weighing about 495 g and ranging in purity from 71% ‑ 82%. X told police that he had transported the drugs into Western Australia in exchange for money, and that he was 'just a mule'. Two encrypted communication devices were also found inside the cab of the truck.
After police had searched the truck, they took X back to his home. In his bedroom police found a further 7.398 kg of methylamphetamine, wrapped in 15 packages each containing approximately 500 g of methylamphetamine. The purity ranged between 60% and 80%. Police also found $50,000 cash in a safe. X told police that he had previously brought those drugs into Western Australia in his truck in exchange for money, and that he had received the money in the safe as payment.
Bowden DCJ found that his offending was solely for commercial purposes, and that although he was a courier or 'just a mule', he was an important link in the chain of drug distribution in circumstances in which he knew he was involved in the transportation of a significant quantity of drugs.
In relation to his personal circumstances, Bowden DCJ found that X was 54 years of age, that he had been married for 15 years, and that he had several children from a previous relationship. He had lived in Western Australia for a long time and for most of that time he had worked as an interstate truck driver. He had some previous convictions, but most were traffic related, and had been committed some time ago.
Bowden DCJ observed that it had been said on his behalf that he was motivated to become involved in the transportation of prohibited drugs after his wife fell down some stairs at work and sustained a back injury, which required surgery. She could not work, and although she received a worker's compensation payment, the money was used to buy the truck that he was driving at the time he was arrested, and more money was needed to fund her medical expenses. As his Honour put it, he succumbed to the temptation to earn money by bringing drugs back into Western Australia.
Bowden DCJ took into account the fact that X had pleaded guilty at an early stage and that he was remorseful, that he had no prior convictions for drug offences, that he had strong support in the community and had good prospects of rehabilitation, and that he had some health issues associated with his occupations and his age. Importantly, his Honour also took into account what he described were 'additional materials' that were 'clearly mitigating', which he accepted were evidence of his genuine remorse. It is plain that X had provided assistance to the authorities which Bowden DCJ found was 'useful' and as a result of which X had suffered some 'hardship'. It was concluded that X's assistance to authorities should be reflected in a significant reduction in the sentences that would otherwise have been imposed.
In relation to the offence of possession of 10.897 kg of methylamphetamine with intent to sell or supply, X was sentenced to 9 years' imprisonment. Bowden DCJ made it clear that had it not been for the cooperation, he would have imposed a sentence of 13 years' imprisonment. In respect of the offence of possession of 7.398 kg of methylamphetamine, X was sentenced to 7 years' imprisonment. That sentence was arrived at after his Honour reduced it from 11 years' imprisonment, on account of his cooperation. For the offence involving the possession of $50,000 cash, his Honour reduced a sentence of 2 years and 6 months, to one of 6 months' imprisonment.
The sentences of 9 years' imprisonment and 6 months' imprisonment were ordered to be served cumulatively, with the result that X was sentenced to serve a total of 9 years and 6 months' imprisonment. An order was made that X be eligible for release on parole.
The sentencing remarks in this case
After setting out the facts of the appellant's offending that we have outlined earlier in these reasons, Staude DCJ referred to the sentences that had previously been imposed on X, before making findings about the appellant's role in the offending. His Honour had been provided with the transcript of X's sentencing proceedings and was aware that X had been sentenced to a total effective sentence of 9 years and 6 months' imprisonment. His Honour was also aware that X had been sentenced to a term of 7 years' imprisonment in relation to his possession of the same quantity of methylamphetamine that the appellant attempted to possess, and that had it not been for X's cooperation Bowden DCJ would have sentenced him to 11 years' imprisonment.
Based on these facts, none of which were in dispute, his Honour found that the appellant was involved in a high-level, sophisticated methylamphetamine transaction. He found that the appellant had been entrusted to deal with over $1.7 million in cash and a very large amount of drugs, and that he had in his possession almost $350,000 in cash at his home, which coloured his involvement in that drug transaction. He also found that the appellant was engaged in the transaction for commercial gain, but did not find that he was an organiser or principal beneficiary of that transaction.
The sentencing judge took into account, as a mitigating factor, the fact that the appellant had provided some assistance to police by providing them with the passcode to his telephone. His Honour also concluded that the appellant had entered pleas of guilty at the earliest reasonable opportunity. Accordingly, he afforded him a discount of 25% on the head sentences that would otherwise have been imposed, in accordance with s 9AA of the Sentencing Act 1995 (WA). The sentencing judge accepted that the pleas of guilty also demonstrated that the appellant had accepted responsibility and was contrite.
In relation to the issue of parity, his Honour made the following remarks:
In terms of parity I consider that your offending is no less serious than that of [X] who was sentenced on the basis that he was a courier of the drugs for reward. He was found to have been an indispensable link in the chain of distribution of the drugs which he was found to be in possession of.
He was found to have known that he was involved in the transportation of a significant quantity of drugs and to have done so for reward. His offending, in my view, did not possess the same degree of sophistication as yours. He was not entrusted with the large quantities of cash that you have admitted dealing with.
Having said that, I am bound to find in the absence of evidence that would satisfy me beyond reasonable doubt, that you played a greater part, that you were engaged as an agent or intermediary to carry out a large drug transaction by others who were able to distance themselves from it for their own protection.
That role must be seen against the background of your associated offending. I'm referring there to count 3 and it is also to be seen in the context of a transaction which involved a very large amount of drugs and a very large amount of cash.[1]
[1] Sentencing ts 29 - 30.
His Honour then proceeded to impose the sentences to which we have already referred. He said that those sentences took into account the appellant's pleas of guilty, and the mitigation afforded for his cooperation with police. He also confirmed that the sentences had regard to the appellant's age and his other personal circumstances.
An order was made that the appellant be eligible for parole. The sentence was ordered to commence on 25 February 2022, to take into account the time that the appellant had been in custody awaiting sentencing.
Grounds 1 and 2
It is convenient to deal with these two grounds of appeal together.
By ground 1 the appellant contends that the sentencing judge erred in finding that the appellant's offending in relation to count 1 was more 'sophisticated' than the related offending of X. For several reasons the appellant submits that his offending was less sophisticated than the relevant offending of X. The appellant's complaint in the context of ground 2 is that the sentencing judge erred in law by treating the fact that the appellant was entrusted with large quantities of cash as an aggravating circumstance for count 1, when his possession of and dealing with money were the subject of separate offences and sentences.
In our view, when the relevant portions taken from the sentencing judge's sentencing remarks that are the subject of these grounds of appeal are considered in their proper context, there is no substance to either of the appellant's contentions.
It was common ground that insofar as parity applied in sentencing the appellant, the relevant comparators for the purposes of the application of the parity principle were the sentences imposed for the offences committed by each of the appellant and X, respectively, which involved the same quantity of methylamphetamine.
In his written sentencing submissions, the appellant's counsel made the following submission in relation to the issue of parity:
Whilst there are differences in the specific conduct of [X] and Mr Nguyen, their essential role as couriers is broadly comparable. The sentence imposed on [X] (prior to mitigation) for the quantity of drugs the subject of Mr Nguyen's charge provides a suitable sentence for Mr Nguyen's conduct and avoids giving rise to a justifiable sense of grievance.[2] (footnotes omitted)
[2] Offender's Outline of Sentencing Submissions [25].
Later, during the sentencing hearing, the appellant's counsel submitted that the appellant was 'slightly below [X]. [X] seemed to have a different role, a more significant role, moving drugs from A to B'.[3] In response, the sentencing judge put to the appellant's counsel the following proposition:
It might be said that [the appellant] had a more significant role than [X] because of his agency in the transaction he was handing … a very high - a very large amount of money - that was paid in consideration of a very large amount of methylamphetamine.[4]
[3] Sentencing ts 16.
[4] Sentencing ts 16 - 17.
When the sentencing judge asked the prosecutor whether it was accepted that the appellant's role was less significant than the role X played, the prosecutor submitted, in effect, that this was disputed. In that regard the prosecutor referred to the fact that the appellant had transferred $1.7 million in cash for what he believed was methylamphetamine, and in that way had a greater role than a mere courier.[5] The prosecutor had also previously submitted that the appellant's possession of approximately $350,000 the subject of count 3 indicated that the appellant had played a greater role in the drug trafficking enterprise, albeit that his precise role was unclear. He agreed with the sentencing judge that the appellant's possession of that sum of money constituted relevant 'background' to the appellant's possession of the methylamphetamine, the subject of count 1.[6]
[5] Sentencing ts 22.
[6] Sentencing ts 22.
It is on that basis that the sentencing judge came to make the following uncontested findings about the appellant's role:
The offence of which you've been convicted corresponds with the second possession offence of which [X] was convicted. On the facts the court is able to find that you were involved in a high level sophisticated methylamphetamine transaction. Your role was such that you were entrusted to deal with over $1.7 million in cash for the purposes of the transaction at the Noranda Palms Shopping Centre.
That you had also in your possession at your home almost $350,000 in cash colours your involvement in the transaction to which counts 1 and 2 relate. Both amounts of cash are admitted to be the proceeds of an offence or offences.
It is clear that you were entrusted to handle not only the cash but also the drugs for which it was exchanged.[7]
[7] Sentencing ts 26.
Accordingly, his Honour found that the circumstances of the appellant's attempted possession of the methylamphetamine the subject of count 1 included the fact that he was entrusted to deal with over $1.7 million in cash in the transaction that took place at the shopping centre in Noranda. Further, his Honour concluded that the true nature of his role in relation to that transaction was informed, or 'coloured', by the fact that he had also been entrusted with the possession of almost $350,000 cash, being the proceeds of crime found at his home. By proceeding in this manner, the sentencing judge did no more than determine the seriousness of the appellant's commission of the offence in count 1, in accordance with s 6(2)(b) of the Sentencing Act, by taking into account the circumstances of the commission of that offence.[8]
[8] Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2)(b) provides that the seriousness of an offence must be determined by taking into account (amongst other matters) the circumstances of the commission of the offence.
In our view, considered in that light, it was open to the sentencing judge to reach a conclusion that the appellant's offending was more sophisticated than X's offending in relation to the same quantity of methylamphetamine.
When considered in its proper context, the sentencing judge's conclusion that X's offending 'did not possess the same degree of sophistication' as the appellant's offending was arrived at after he carried out a comparison between the basis on which X had already been sentenced for his possession of the common amount of methylamphetamine, namely as a courier of drugs for reward, as against the sentencing judge's own conclusions about the circumstances of the appellant's commission of the offence in count 1. In that regard, unlike X, the appellant was no mere courier for reward. Instead, the unchallenged facts demonstrated that the circumstances of the appellant's commission of the offence the subject of count 1 included that he was an agent or intermediary who was engaged to carry out both sides of a large drug transaction for others who were able to distance themselves from the transaction for their own protection. Further, as he was a person who had been entrusted with the large quantity of cash that was the subject of count 3, which was accepted by the appellant to have been the proceeds of an offence or offences, this 'colours [his] involvement in the transaction to which counts 1 and 2 relate'.[9] In other words, the appellant's commission of the offence in count 3 demonstrated that he played some greater role in that transaction than as a mere courier or other similar functionary, although the precise nature of his role was unclear.
[9] Sentencing ts 26.
That the sentencing judge took the offending the subject of count 3 into account as part of the circumstances of the commission of the offence the subject of count 1 is further confirmed by the fact that when dealing with the issue of parity his Honour said that the role the appellant played in the offence the subject of count 1 must be 'seen against the background of [the offence in count 3]'.[10]
[10] Sentencing ts 30.
It follows that ground 1 is without merit and leave to appeal must be refused.
The essence of ground 2, understood in light of its supporting submissions, is that:[11]
(1)the judge erred in taking into account - as a matter increasing the seriousness of count 1 - that the appellant was entrusted with the large quantities of cash the subject of counts 2 and 3, because the appellant's dealings with those quantities of cash were the subject of the separate charges in counts 2 and 3; and
(2)consequently, to so take into account the appellant having been entrusted with those quantities of cash resulted in the appellant being doubly punished for the same conduct.
[11] Appellant's submissions [14] - [17].
In our view, the judge did not err in the manner alleged in (1) of [50] above. As explained in [45] and [47] above, the judge properly determined the seriousness of count 1 by taking into account the circumstances of the commission of the offence. The seriousness of count 1 was to be evaluated having regard to the nature and level of the appellant's participation in drug trafficking.[12] Thus, the fact that the appellant was entrusted with the cash the subject of counts 2 and 3 was relevant in the way the judge explained.
[12] See, for example, Gaskell v The State of Western Australia [2018] WASCA 8 [128].
Nor, in our view, did the judge err in the manner alleged in (2) of [50] above.
We accept that proceeding in this manner engaged the principle against double punishment, namely that when an offender is to be sentenced for multiple offences containing one or more common legal or factual elements, or which involve a significant commonality of relevant facts and circumstances, care must be taken by the sentencing court to avoid punishing the offender twice (or more) for the common elements.[13]
[13] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40]; Johnson v The Queen [2004] HCA 15; (2004) 218 CLR 451 [27], [33] ‑ [34], [38]; Hunter‑Aragu v The State of Western Australia [2015] WASCA 80 [33]; Creusot v The State of Western Australia [2022] WASCA 117 [184].
As this court has observed in a number of cases, there is no single correct mechanism for avoiding double punishment. That outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more offences.[14]
[14] Cotterill v The State of Western Australia [2013] WASCA 52 [27]; The State of Western Australia v ADS [2021] WASCA 99 [72].
A sentencing judge is not obliged to make express reference to the double punishment principle. The absence of express reference to the principle in a case in which multiple offences have some degree of overlap does not of itself constitute or reveal an error.[15]
[15] Creusot v The State of Western Australia [186].
We are not persuaded that the sentences imposed by the sentencing judge resulted in the appellant being doubly punished in respect of the conduct the subject of counts 2 and 3. The judge ordered that the sentence on count 2 be served concurrently with count 1, explaining that this was because it was a necessary feature of the transaction in which the appellant was involved in count 1 that he dealt with the proceeds of the transaction.[16]
[16] Sentencing ts 30.
As to count 3, the need to avoid double punishment in relation to matters that are common to multiple offences may be given effect through the application of the totality principle.[17] The judge reduced for totality reasons what would otherwise have been the appropriate sentence for count 3, namely a sentence of 3 years' imprisonment, to 18 months, to be served cumulatively upon count 1.[18] In the circumstances, the appellant has not shown that he was doubly punished in respect of his conduct the subject of count 3.
[17] See, for example, Johnson v The Queen [33]; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [6] ‑ [7], [49], [55] ‑ [56], [94]; Hesketh v The Queen [2021] NSWCCA 262; (2021) 106 NSWLR 200 [37], [51].
[18] Sentencing ts 30 - 31.
Accordingly, ground 2 is also without merit and leave to appeal must be refused.
Ground 3
The appellant contends that the sentencing judge 'erred in fact and law' by imposing a sentence of 11 years' imprisonment in relation to his attempted possession of methylamphetamine the subject of count 1, that gives rise to a justifiable sense of grievance arising from an alleged disparity between that sentence and the sentence of 7 years' imprisonment imposed on X for his possession of the same quantity of methylamphetamine. In essence, the appellant alleges that the sentencing judge erred in his application of the parity principle in relation to the sentence imposed for count 1.
The appellant's submissions relating to ground 3
In his submissions in support of this ground, counsel for the appellant focused on asserted differences between the appellant's personal circumstances and the personal circumstances considered by Bowden DCJ when imposing sentence on X. In that regard, counsel drew attention to the following:
a)The appellant was aged 26, while X was 54 years of age.
b)The appellant had a less serious criminal record than X.
c)The appellant was a drug user but X was not.
d)Both the appellant and X were commercially motivated.
e)Both the appellant and X were in possession on behalf of another, intending to supply to another. While it is unknown how long X possessed the drugs located at his residence, the appellant was only in 'fleeting' possession.
f)While X was of ill health, unlike the mental health of the appellant it was not a contributing factor in the commission of the offence.
g)Unlike X, the appellant had a background of profound social and economic deprivation which warranted mitigation.
At the hearing of the appeal, counsel focused his attention on the last of those factors. He submitted that the evidence that was before the sentencing judge demonstrated that the appellant had experienced a significantly dysfunctional background that had profound consequences on his life, and which ultimately led to his offending. He explained that the appellant did not have any father figure, his mother was not an appropriate caregiver, he was subjected to parental neglect and abuse, and he had to spend time with his grandmother who was incarcerated at one point. The appellant also had to take responsibility for the wellbeing of his siblings. Counsel said that these factors fed into issues surrounding attachment, abandonment and rejection, which then led to the appellant turning to drugs at a very young age as a coping mechanism. It was submitted that this led to the appellant becoming associated with groups within the drug world, whose attention and approval he then craved. In short, counsel submitted that the appellant experienced childhood trauma, which then led to drug use, which introduced him to what he described as 'negative peer associations'. Ultimately, this all led to the appellant committing the offences for which he came to be sentenced.
The respondent's submissions relating to ground 3
The respondent submitted that there could be no justifiable sense of grievance arising from the different sentences that were imposed, having regard to the differences in the seriousness of the relevant offences, and to the differences between the personal circumstances relating to the appellant as opposed to the personal circumstances of X. The respondent relied, in particular, on the mitigating effect of X's cooperation with the authorities.
Counsel for the respondent submitted that the appellant's contention that he had more favourable personal circumstances when compared to the personal circumstances that were relevant in X's case should be rejected. It was submitted that, in any event, given that the personal circumstances of a person convicted of drug trafficking offences are afforded less weight, any differences in the respective personal circumstances are of less significance in determining whether it should be concluded that the sentencing judge erred in the application of the parity principle.
In relation to the appellant's submission that, unlike X, the appellant had a background of profound social and economic deprivation, the respondent submitted that this was not the subject of submissions before the sentencing judge. The respondent submitted that, in any event, the appellant's upbringing was not such as to attract substantial mitigation.
Relevant legal principles relating to ground 3
The principles relating to the parity principle are well established and have been referred to by this court on many occasions. Convenient summaries of those principles can be found in Higgins v The State of Western Australia[19] and Garlett‑Exell v The State of Western Australia.[20]
[19] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [14] ‑ [25] (Buss P).
[20] Garlett‑Exell v The State of Western Australia [2020] WASCA 179 [48] ‑ [52].
Recently, in McKay v The State of Western Australia,[21] Mitchell JA summarised the operation of the parity principle as follows:
The operation of the parity principle has been summarised in a number of recent decisions of this court, including Siskopoulos v The State of Western Australia [[2022] WASCA 138 [39] - [45]], and Gianguilio v The State of Western Australia [[2022] WASCA 77 [60] - [71]]. In essence, the principle is concerned to ensure appropriate consistency in the sentencing of co-offenders. It applies where disparity or lack of disparity in the sentencing outcome can give rise to objectively justifiable sense of grievance on the part of one of the offenders. The parity principle is concerned with substance rather than form, and the application of the principle will vary according to the facts and circumstances of the case. The application of the parity principle may require a reduction in a sentence that is not otherwise manifestly excessive. However, the principle does not require the imposition of a sentence that is wholly inadequate or so lenient as to be an affront to the proper administration of justice.
Discussion of ground 3
[21] McKay v The State of Western Australia [2023] WASCA 140 [53].
The critical question in this case is whether the disparity between the sentence of 11 years' imprisonment imposed on the appellant and the sentence of 7 years' imprisonment imposed on X, for offences relating to the same quantity of methylamphetamine, gives rise to a legitimate or justifiable sense of grievance, or gives the appearance in the mind of an objective observer that justice has not been done. The appellant does not invite a comparison between the total effective sentence imposed on him and the total sentence imposed on X.
The appellant does not suggest that the sentencing judge failed to apply the parity principle, or that he made any express error in his application of that principle. Accordingly, the question raised by this ground of appeal is whether the disparity in the relevant sentences was open in the exercise of the sentencing discretion. As the court observed in Mehta v The State of Western Australia:[22]
The issue is not whether we would have exercised the qualitative and discretionary judgment in relation to parity differently. It is whether the result produced in this case was unreasonable or plainly unjust, such as to give 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.
[22] Mehta v The State of Western Australia [2023] WASCA 24 [208]. See also, McKay v The State of Western Australia [68] ‑ [69] (Mitchell JA).
Whether the relevant disparity in this case gives rise to a legitimate sense of grievance must be determined on the basis of the facts found by the sentencing judge, and on the basis that the errors complained of in the context of grounds 1 and 2 have not been made out.
There are two other matters that should be mentioned at this stage. Firstly, both parties approached this ground of appeal on the basis that the appellant and X had been convicted of a common offence. However, as we have already noted, the appellant was convicted of an offence of attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply. This offence concerned the appellant's physical possession of 15 packets of an inert substance, which he believed to be a prohibited drug, which he transported from the Holden Colorado to the address in Noranda, where they were later found by police. It can be inferred that the appellant at least intended to supply what he believed to be drugs to B. On the other hand, X was convicted of an offence of possessing a trafficable quantity of methylamphetamine, on the basis that he had exercised control over the 15 packets of methylamphetamine that were found by police at his home. His relevant intention for the purposes of that offence was at least to make the 15 packets of methylamphetamine available to the person or persons who had a beneficial interest in the drugs.
Although formal identity of a charge is not a necessary condition for the application of the parity principle,[23] there are limits. As Hall JA observed in Akoum v The King:[24]
It is apparent from Green and Jimmy that the parity principle is not confined to cases where co‑offenders are jointly charged or charged with the same offences. The application of the parity principle is concerned with substance, rather than form. Offenders who are part of the same criminal enterprise may rely on the parity principle because there is a meaningful connection between their offending. Participation in the same criminal enterprise creates a reasonable expectation that the sentences imposed on participants will bear some proportionality to each other. However, this should not operate to obscure the difference between the application of the parity principle and more general principle of ensuring consistency in sentencing outcomes for unrelated offenders. Whilst the parity principle is concerned with actual outcomes and the avoidance of a justifiable sense of grievance in respect of co‑offenders, the more general principle is concerned with ensuring consistency in the application of sentencing principles. (emphasis added)
[23] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [30] (French CJ, Crennan & Kiefel JJ).
[24]Akoum v The King [2023] WASCA 102 [85].
In the circumstances of this case, there may have been room for argument as to whether the appellant and X were part of the same criminal enterprise such that there might be a reasonable expectation that their sentences would bear some proportionality to each other. Nevertheless, given that the court did not receive any submissions from the parties about this issue we will proceed on an assumption, favourable to the appellant, that the parity principle applied in the circumstances of this case.
Secondly, as we have already noted, in written sentencing submissions that were before the sentencing judge the appellant argued that the sentence imposed on X, before mitigation, 'provides a suitable sentence for [the appellant's] conduct and avoids giving rise to a justifiable sense of grievance'.[25] In that regard, Bowden DCJ said that had it not been for the mitigating factor of cooperation with authorities, X would have been sentenced to a term of 11 years' imprisonment for his possession of the 15 packets of methylamphetamine. In a manner that was entirely consistent with the submission made on behalf of the appellant, Staude DCJ sentenced the appellant to a term of imprisonment that was of exactly the same length as the one that Bowden DCJ said he would otherwise have been imposed on X in the absence of mitigation for cooperation. Bearing in mind the discretionary character of the application of the parity principle, those circumstances of themselves create a substantial obstacle to ground 3.[26] In any case, as explained below, ground 3 fails on its merits.
Conclusion in relation to ground 3
[25] Offender's Outline of Sentencing Submissions [25].
[26] See, by analogy, Greenland v The State of Western Australia [2017] WASCA 83 [179].
As we have already observed, the appellant and X were not charged with the same offence. Although the methylamphetamine the subject of the two relevant convictions was the same, the offences were based on two very different and distinct acts of possession and attempted possession. Further, they were committed in circumstances in which the relevant intention to sell or supply were dissimilar. As was said in Green v The Queen,[27] in a context in which the offenders in that case were part of the same criminal enterprise, the greater the difference between the offences, the greater the practical difficulties in comparing sentences for the purpose of the parity principle. Such difficulties, when they arise, present challenges for a party who asserts a breach of the parity principle.
[27] Green [30] (French CJ, Crennan & Kiefel JJ).
In our view, the significant differences in the relevant offending conduct makes it very difficult to compare the relative seriousness of that conduct. The relevant offence with which X was charged was possession of the methylamphetamine on the basis that it was being held by him at his house. On the other hand, the appellant was charged with attempting to possess the methylamphetamine after it had left X's possession, and in the context of the very different part he played in a transaction that also involved the physical transfer of a very large amount of cash. However, having undertaken the comparison involved in an evaluation of whether the parity principle was infringed, we are of the view that the objective seriousness of the appellant's offending conduct was greater, although not substantially greater, than that of X's offending conduct.
We proceed, as we must, based on the findings made by Staude DCJ concerning the appellant's conduct the subject of count 2, and on the basis of the findings that were made by Bowden DCJ when he sentenced X.[28] In that regard, Staude DCJ found that the appellant had been engaged as an agent by both sides of a major drug transaction, and that he was sufficiently high up in a drug trafficking syndicate as to be trusted with a very large amount of drugs and a significant amount of cash. That he occupied a relatively high-level position in that particular transaction is supported by the fact that he was also in possession of another large amount of cash that he admitted were the proceeds of crime. The fact that the appellant may have been in physical possession of what he thought was methylamphetamine for only a relatively short period of time while committing the offence does not detract from that conclusion.
[28] McKay [6] (Buss P & Mazza JA), [55] - [56] (Mitchell JA).
On the other hand, while Bowden DCJ found that X played a significant and important role in transporting the drugs from the eastern states in his truck, he was a person who had the means to communicate with others in an organised drug dealing syndicate using encrypted mobile devices, and he held the drugs at his home for an unknown period of time awaiting instructions from others, his Honour accepted that X was essentially a courier. Both the appellant and X were motivated by a desire to obtain a commercial benefit. The appellant told a psychologist who was the author of a pre‑sentence report that he engaged in drug dealing because he was struggling financially, and he needed to support his drug addiction. X offended because he wanted to raise money as his wife was unable to work, and she had considerable medical expenses after she had sustained a back injury at work.
In our view, when all of these factors are taken into account, and bearing in mind the significant differences in the respective offending, the appellant's conduct demonstrated that he had more involvement in the drug trafficking organisation and the offending displayed a greater degree of sophistication, when compared to the offending conduct of X.
In relation to mitigating factors, we note that the appellant and X both pleaded guilty, and that they were both afforded a 25% discount on their various head sentences, in accordance with s 9AA of the Sentencing Act. Both sentencing judges also found that they were remorseful and that they accepted responsibility for their conduct.
The appellant points to several matters in his antecedents and personal circumstances which, it is submitted, were generally more favourable than those available to be taken into account in relation to X. However, it is well established that in sentencing offenders for serious drug trafficking offences committed for the purposes of securing a financial reward, the personal circumstances of an offender, while not completely irrelevant, will almost always be subsidiary considerations.[29] This means that any differences in the appellant's personal circumstances when compared to those of X will be of less significance in determining whether the appellant has a justifiable sense of grievance about the disparity between the relevant sentences imposed.[30]
[29] Gaskell v The State of Western Australia [2018] WASCA 8 [128] (Mazza & Beech JJA).
[30] Papp v The State of Western Australia [2020] WASCA 125 [69].
It is true that the appellant was 26 years of age at the time he committed the relevant offence, while X was 54 years old. Further, Staude DCJ accepted that the appellant was 'on the cusp of youth'. However, his Honour also concluded that any mitigation on account of the appellant's age was 'modest' and the appellant does not challenge that conclusion.
The appellant submits that he has a less serious criminal record than X. In that regard, the appellant had prior convictions for some traffic‑related offences and one offence of possession of cocaine, for which he was fined. On the other hand, in addition to several traffic‑related offences, X had convictions for breaking and entering, and assault, as well as some other relatively minor offences. However, any difference in the respective criminal histories must be viewed in light of the fact that they had both been involved in drug‑related criminal activity for some time before they were arrested. On that basis it is difficult to accept that the appellant should be afforded any greater mitigation on account of a difference in recorded convictions. Further, the fact that the appellant was a drug user is not mitigating and is not a point of distinction that carries much weight in the application of the parity principle in the circumstances of this case.
The appellant submits that a relevant distinction should be drawn for the purposes of the parity principle because, unlike X, the appellant was suffering from mental health issues at the time of the offence that contributed to the commission of the offence. In that regard, at sentencing the appellant's counsel submitted that the psychological conditions identified in a psychological report[31] that was before the sentencing judge, together with evidence of the appellant's attempts to self‑medicate which led to his association with criminal elements, were contributing factors in the commission of the offences. It was submitted that it was therefore open to take account of those conditions in mitigation.[32]
[31] Report of Naomi Oliver, Clinical and Forensic Psychologist, 12 July 2022.
[32] There was also evidence in a report authored by Chafic Awit, Registered Psychologist, 9 January 2023, that the appellant was suffering from depression and anxiety in the lead-up to the offences, which 'somewhat impacted' his decision-making ability.
The prosecutor submitted at sentencing that the appellant's mental issues 'might result in a slight reduction to the need for general deterrence but, clearly, we would submit that it's still very much present as indeed is the need for specific deterrence'.[33] In written submissions on the appeal the respondent accepted that the appellant's mental health contributed to his involvement in his offending but submitted that it was not such as to significantly reduce his moral culpability.
[33] Sentencing ts 23.
However, Staude DCJ did not make any specific findings about the impact that the appellant's mental issues may have had on the offending behaviour the subject of count 1. As we have already observed, this ground of appeal falls to be determined on the basis of the findings that were made by the sentencing judge. To do otherwise runs the risk that this court might, in effect, re‑exercise the sentencing discretion in the absence of reaching a conclusion about error. What the sentencing judge concluded about the appellant's mental health issues was as follows:[34]
In terms of your mental health, you have recounted a history of undiagnosed and untreated depression and anxiety as well as chronic feelings of abandonment and rejection. You told the court-appointed psychologist, Ms Oliver, that you engaged in drug trafficking because you were struggling financially and needed to support your drug addiction. She observed as follows.
'Mr Nguyen also stated that he grew up poor. So he had gone from living a poor life to living a good life where he also felt a sense of belonging and being wanted. Furthermore, he stated that he socialised in drug-related circles which reinforced his drug habit in addition to having problems with assertiveness and having constant pressure to continue his offending behaviour by those peers in those circles.'
[34] Sentencing ts 28 - 29.
In our view there is nothing in those findings that supports a conclusion that there was a material distinction to be drawn between the appellant's personal circumstances and the personal circumstances relating to X, on account of the appellant's mental health at the time he committed count 1.
The appellant places significant reliance on what is submitted on his behalf to have been the mitigating effect of his background of profound social and economic deprivation, which he contends was an important difference when compared to X's personal circumstances. In that regard, the appellant's counsel referred to the decision of Bugmy v The Queen.[35]
[35] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [37] - [44].
As we understand it, the appellant does not submit that his Honour failed to take into account the appellant's background, including any relevant childhood deprivation. Further, the appellant does not suggest that the sentencing judge in some way acted contrary to the principles that were enunciated by the High Court in Bugmy, which are that the effects of profound deprivation do not diminish over time, and they are to be given full weight in the determination of the appropriate sentence in every case. Accordingly, ground 3 proceeds based on the sentencing judge's findings about the appellant's childhood.
We have already summarised the sentencing judge's findings about the appellant's personal circumstances. The sentencing judge did find that the appellant had experienced several difficulties in his childhood. Importantly, however, the sentencing judge did not characterise the appellant's childhood background as one that involved very significant childhood deprivation of a kind and to a degree which left its mark on the appellant throughout his life, such as to impair his capacity to mature and to learn from experience, and to reform.[36] This is not surprising as it was not suggested in the written sentencing submissions that were filed in advance of the sentencing hearing, or at the sentencing hearing itself.
[36] Peterson v The State of Western Australia [2019] WASCA 207 [55].
Although the appellant's childhood background was clearly unfortunate, the sentencing judge's findings do not support a conclusion that the appellant suffered from the sort of extreme childhood deprivation that would attract any significant mitigation. In any event, the offence committed by the appellant in count 1 was extremely serious. Quite apart from the fact that the personal circumstances of offenders who commit drug trafficking offences for commercial gain are given less weight, the serious nature of the offence committed by the appellant means that little weight could be attached to his unfortunate upbringing as a mitigating factor.[37]
[37] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [129].
The most significant difference between the appellant's personal circumstances and those referrable to X was, of course, the degree of cooperation that X had provided to the authorities. The appellant provided some cooperation, by giving the police the codes to enable access to his mobile telephone. However, given what was said by Bowden DCJ when sentencing X, the cooperation provided by X must have been substantial. In particular, his Honour said that the evidence about X's cooperation established that it was 'clearly mitigating', that it demonstrated genuine remorse, that the assistance had been 'useful', and that X had suffered hardship because he had provided assistance.[38] On that basis, Bowden DCJ reduced what would otherwise have been a sentence of 11 years' imprisonment to a sentence of 7 years' imprisonment, representing a reduction of about 36%.
[38] Sentencing of X, ts 24.
In our view, having regard to the relative criminality involved in their possession (and attempted possession) of the same quantity of methylamphetamine, and their personal circumstances, the disparity between the sentence of 11 years that was imposed on the appellant in respect of count 1 and the sentence of 7 years that was imposed on X is justified on the basis that X provided valuable assistance to the authorities.
There is no single correct difference between the appellant's sentence and X's sentence, given the discretionary character of the application of the parity principle.[39] For the reasons that we have expressed the appellant has not demonstrated that the disparity between the relevant sentences exceeded the bounds of the proper exercise of the sentencing discretion. We are far from persuaded that there is a marked and unjustifiable disparity between the sentence imposed on the appellant for count 1 and the sentence imposed on X for the same quantity of methylamphetamine.
[39] Papp [70].
The appellant's submission that the sentencing judge erred in the application of the parity principles is without merit. It follows that leave to appeal on ground 3 is refused.
Conclusion
As leave to appeal has been refused in relation to all of the grounds of appeal, the appeal is taken to have been dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
19 OCTOBER 2023
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