Rajabizadeh v The Queen - [2017] WASCA 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RAJABIZADEH -v- THE QUEEN [2017] WASCA 133

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 19 APRIL 2017

DELIVERED : 17 JULY 2017

FILE NO/S: CACR 116 of 2016

BETWEEN: MAHMOOD RAJABIZADEH
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1492 of 2014

Catchwords:

Criminal law - Appeal against sentence - Attempting to possess a traffickable quantity of a border controlled drug - Whether aggregate sentence infringed first limb of the totality principle - National consistency in Federal sentences - Whether sentence for further count of possession of a controlled drug was manifestly excessive

Legislation:

Criminal Code (Cth) s 308.1(1), s 308.1(3)

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Ms P A Aloi

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Adenopo v The Queen [2011] VSCA 269
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chan v The Queen [2014] VSCA 301
Cherdchoochatri v The Queen [2013] NSWCCA 118; (2013) 277 FLR 126
Climo v The Queen [No 2] [2016] WASCA 233
Dang v The Queen [2015] NSWCA 163
Director of Public Prosecutions (Cth) v AB (No 1) [2006] SASC 112; (2006) 198 FLR 449
Dong v DPP (Cth) [2016] VSCA 51
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
DPP (Cth) v Edge [2012] VSCA 289
Eriyo v The Queen [2015] NSWCCA 16
Harper v The Queen [2011] VSCA 314
Hibgame v The Queen [2014] VSCA 26
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lam v The Queen [2014] WASCA 114 (2014) 241 A Crim R 562
Lau v The Queen [2011] VSCA 324
Ludwig v The Queen [2015] VSCA 35
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mousavi v The Queen [2014] WASCA 174
Nell v The Queen [2014] WASCA 193
Okeke v The Queen [2010] NSWCCA 266
R v Davis [2015] QCA 139
R v Harris [2009] QCA 370
R v Lee [2013] WASCA 216
R v Neto [2016] QCA 217
R v Ng [2012] WASCA 180
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
R v UE [2016] QCA 58
Ramezanian v The Queen [2013] VSCA 71 (2013) 37 VR 92
Samuels-Orumnwense v The Queen [2015] VSCA 152
So v The Queen [2014] WASCA 169
Yousef v The Queen [2011] NSWCCA 104

BUSS P: I agree with Hall J.
BEECH JA: I agree with Hall J.
HALL J: This is an appeal against sentence.
The appellant was convicted after trial of two offences of attempting to possess a marketable quantity of a border controlled drug and one offence of possessing a controlled drug contrary to the Criminal Code1995 (Cth). He was sentenced to a total effective sentence of 9 years and 6 months' imprisonment with a non‑parole period of 7 years. He now seeks to appeal against the sentence imposed on one of the counts and against the total effective sentence.
On 13 September 2016, Mazza JA granted an extension of time within which to appeal and granted leave to appeal on the two grounds contained in the appellant's case.

The facts

The findings of fact made by the trial judge in his sentencing remarks are not disputed. The facts can be summarised as follows.
The appellant arrived in Australia by sea in 2010 and was initially detained on Christmas Island. For some period he was released into the community. However, on 28 June 2013, he was placed in the Yongah Hill immigration detention centre in Northam.
On 28 August 2013, the appellant received a parcel from his brother in Iraq. The parcel was opened and the contents examined by detention centre staff. It included four packets of cigarettes, three bars of soap, two packets of fruit and nut bars, one packet of candy, five packets of fruit bars, some edible seeds and two items of clothing. No drugs were found in this parcel. While there may have been room for suspicion that it may have been a 'dry run', the sentencing judge observed that it was not known or alleged that it was a dry run (ts 529).
On 27 March 2014, another parcel arrived for the appellant. Detention centre staff opened the parcel and found it to contain two containers of lighter fluid and a quantity of aluminium foil. These items were confiscated. At trial, the appellant claimed that these items were intended to be used by him in performing a religious ceremony. However, the trial judge noted that similar items were later found in the

appellant's locker and it was plain that those items had been used in illicit drug consumption.

On 1 April 2014, a further parcel arrived at the detention centre for the appellant. He received a mail slip advising him that the parcel had arrived and attended the property area to collect it. The parcel was opened by detention centre staff and found to contain a number of packets of cigarettes, along with other items. The cigarette packets were wrapped in cellophane, giving them the appearance of authentic commercially‑packaged cigarettes. An unusual odour aroused the concerns of staff.
On the appellant's attendance at the property area, the contents of the package were placed on a table. When shown the items, the appellant confirmed that they were from his brother. A staff member opened one of the packets of cigarettes and removed the foil. The cigarette filters had been placed on the packet above a quantity of brown powder substance. When asked about this, the appellant said that it was Iranian coffee.
Other packets of cigarettes were opened and three plastic bags containing a white crystalline substance were found. When asked about this substance the appellant said that it was Iranian sugar. He picked up one of the bags, put his finger into the substance and pretended to sample it. He suggested to the officers present that they should also try it. The trial judge found that this was a last‑ditch effort by the appellant to dispel concerns regarding the contents of the packets.
The appellant was advised that it would be necessary to have the substances examined and was told that if there was no difficulty he would receive them back in due course. He signed a property receipt for the contents of the package, which also included two books, a packet of toothpaste, a bag of dried chickpeas, a box of sweets, six pieces of soap and two pairs of tracksuit pants.
On analysis, the brown powder was found to be heroin with a gross weight of 52.3 g at a purity of 53.4%. This is the equivalent of 27.9 g of pure heroin. The white crystalline substance was analysed and found to be methamphetamine with a gross weight of 193.8 g at a purity of 78.3%. This is the equivalent of 151.7 g of pure methamphetamine. These two quantities of drugs related to the first two counts on the indictment, being counts of attempting to possess a border controlled drug, contrary to s 11.1 and s 307.9(1) of the Criminal Code (Cth).
On 14 April 2014, Australian Federal Police executed a search warrant at the appellant's room at the detention centre. A secret cavity was found under the floor of the appellant's locker. It contained a white crystalline substance in a tissue, which on analysis was found to be methamphetamine. The gross weight of this drug was 2.2 g at a purity of 76.6%. This is the equivalent of 1.68 g of pure methamphetamine. This drug was the subject of count 3 on the indictment, being a count of possession of a controlled drug contrary to s 308.1(1) of the Criminal Code (Cth).
A number of used foils containing black lines, a syringe, an oxycodone tablet and a cigarette lighter were also found in the cavity. Also found was a pipe and some lighter fluid. The appellant maintained that he was not aware of any of these items. However, on subsequent examination, his fingerprints were found on the underside of the top of the cavity. In addition, a similar smoking pipe and some strips of aluminium foil were later found in the appellant's secure deposit box at the detention centre.
On 24 April 2014, the appellant participated in a video‑recorded interview. He denied knowledge of the drugs in the parcel. He also denied knowledge of the drugs and other items found in the cavity in his room. He denied saying that the substances in the parcel were Iranian coffee and Iranian sugar. He could provide no explanation for the presence of his fingerprints in the cavity. In evidence at trial he said that his fingerprint had been placed there when he was assisting another detainee to repair a shelf and that he knew nothing of the drugs in the cavity. The trial judge described this as impossible to accept, particularly because the appellant had occupied the room on his own for about five months.

Personal circumstances

The appellant was aged 38 at the time of sentence. He was born in Tehran, Iran, and came to Australia in 2010. His stated reason for leaving Iran was concern for his personal safety due to political unrest and because he was of a different religion. He has a wife and daughter who remain in Iran. He has a sister who is married and lives in Perth with her husband and two children.
The appellant attended school in Iran until he was 12 years old. His first language is Persian, but he has learnt English whilst in detention. Between the ages of 18 and 20 he completed national service as a soldier with the Iranian army. He has worked as a mechanic in Iran and, whilst living in the community in Western Australia, was employed by his brother‑in‑law in a bakery.
The appellant has no significant physical or mental health problems. He does suffer from a skin condition which is treated by a topical ointment. Although the appellant maintained a stance of denial, the trial judge found that it was plain that the appellant was using methamphetamine whilst in detention, though the extent of that use was difficult to determine. He has no criminal record in this country.

Sentencing remarks

The trial judge noted that whilst the appellant's maintenance of pleas of not guilty was not an aggravating feature, he did not have the mitigation of one who pleads guilty, cooperates with the authorities and shows remorse for the offending. His Honour found that the appellant had shown no remorse and no insight in relation to the seriousness of the offending. It was also impossible to make any assessment of the appellant's prospects of rehabilitation, at least partly because of the stance of denial that he had adopted (ts 535).
His Honour noted the importance of general and specific deterrence and the need to ensure that the appellant was adequately punished for the offences. He referred to the appellant's personal circumstances and the probable effect that a sentence of imprisonment would have on the appellant's family and dependents, bearing in mind that he had been separated from his wife and child for several years already. However, his Honour recognised that personal circumstances play a lesser role in the sentencing process by reason of the seriousness of offences of this type.
His Honour described the offending as 'objectively very serious' and referred to the harm which the dissemination and use of drugs in the community causes. He said that the offending was aggravated by the fact that the appellant was in a custodial setting. He said that had the appellant obtained possession of the drugs it would have placed him in a very powerful position in respect of other inmates in the detention centre. He also referred to the sophistication involved in disguising the cigarette packets to look as if they had been unopened and to replace the filters back in the packets to disguise the presence of the drugs. He also referred to the attempts by the appellant to mislead the authorities by telling them that the drugs were coffee and sugar.
His Honour concluded that the only appropriate sentences were terms of immediate imprisonment. He said that but for totality considerations he would have imposed terms of 4 years on count 1, 6 years 9 months on count 2 and 9 months' imprisonment on count 3. Taking into account the first limb of the totality principle, his Honour reduced those terms to 3 years, 6 years, and 6 months, respectively. He made orders that had the effect that the total effective sentence was one of 9 years and 6 months. His Honour expressed this in terms appropriate to sentencing under State law, rather than under the Crimes Act 1914 (Cth), saying that the terms were to be served cumulatively: ts 538. By s 19(2) of the Crimes Act, when imposing more than one sentence of imprisonment for federal offences the court must, by order, direct when each sentence commences. While an express direction in accordance with s 19(2) is preferable, the statement that the sentences were to be served cumulatively is, in substance or by implication, a direction that the sentence on the second count commences on the expiry of the sentence on the first, and so on: Director of Public Prosecutions (Cth) v AB (No1) [2006] SASC 112; (2006) 198 FLR 449 [26].
His Honour imposed a single non‑parole period of 7 years.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned sentencing judge erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.
2.The learned sentencing judge erred in imposed a sentence for the offence of possession of a border controlled drug that was manifestly excessive when regard is had to the standards of sentence customarily observed with respect to similar offending and the appellant's personal circumstances.
It was conceded at the hearing of the appeal that the reference in ground 2 to a 'border controlled drug' was an error and that the reference should have been to a 'controlled drug'. That concession reflects the indictment, on which count 3 is an offence of possessing a controlled drug contrary to s 308.1(1) of the Criminal Code (Cth), rather than possessing a border controlled drug contrary to s 307.10(1).

Ground 1 - totality - relevant principles

This court can only intervene if a sentencing judge makes an express or implied material error of fact or law. There is no challenge to the individual sentences on counts 1 and 2 and it was accepted that the sentences imposed for those counts were within the sound discretionary range.
A breach of the totality principle depends upon establishing an implied error from the total sentence. The first limb of the totality principle is that the total sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. In considering this limb of the totality principle, regard is had to the standards of sentencing customarily imposed for the types of offences the offender has committed. This exercise is undertaken to ensure broad consistency in the sentencing of offenders.
The issue of totality will often arise, as here, where a number of technically distinct offences arise from a single course of criminal conduct. In such a case, complete accumulation of the individual sentences may result in a total effective sentence which is unjust. It is open to a sentencing judge to achieve an appropriate result either by making sentences wholly or partly concurrent or by lowering the individual sentences below what would otherwise be appropriate: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63. The former approach has been described as 'orthodox' and 'preferable'. However, the latter approach does not, of itself, reveal error. Sentencing judges 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
The fact that a sentencing judge has expressly considered the question of totality and utilised one of the two possible methods for taking that consideration into account does not necessarily mean that the end result is just. An appellate court is concerned not merely with whether the process of application of the totality principle has been undertaken, but whether the aggregate sentence is one that is a just reflection of the totality of the criminal conduct in all the circumstances of the case.
As noted, one reason why the totality principle may call for a reduction in the total sentence is because several offences have arisen from the same course of conduct. This is sometimes referred to as 'the one transaction rule', though in truth it is not a rule at all, but simply a convenient way of referring to the fact that it may be necessary to take into account that offences were committed at the same time in order to ensure that the aggregate sentence is appropriate.
Where, as in the present case, the offender received a single parcel that contained two different types of drugs, the commonality between the two offences required that careful regard be had to the totality principle. See Johnson [3] ‑ [5], [33].
The relevant considerations in sentencing for offences of this sort are well known: see R v Ng [2012] WASCA 180 [34] (Buss JA; Newnes & Mazza JJA agreeing). Deterrence, both general and specific, is of paramount importance. Generally, personal factors, whilst not irrelevant, will carry less weight. The weight of the drugs involved is a relevant consideration but will not generally be the most important factor. The purity of the drugs is often regarded as significant. The sophistication of the illegal enterprise and the role that the offender played in it are relevant considerations, though it may often be difficult to determine an offender's place in the drug hierarchy.
The matters to which a court must have regard when sentencing a federal offender are listed in pt 1B of the Crimes Act 1914 (Cth). Section 16A(2) lists matters that the court must take into account in sentencing. It is well accepted that s 16A accommodates the application of common law principles of sentencing, including deterrence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [25] and R v Lee [2013] WASCA 216 [23] ‑ [25]. The weight to be given to the relevant factors is a matter for the sentencing judge's discretion.

Ground 1 - totality - maximum penalties

The maximum penalty for an attempt to possess a marketable quantity of a border controlled drug is 25 years' imprisonment or a fine of up to $850,000 or both: s 307.9 and 11.1 of the Criminal Code (Cth). The maximum penalty for possession of a controlled drug is 2 years' imprisonment or a fine of up to $68,000 or both: s 308.1(1) Criminal Code (Cth).

Ground 1 - totality - seriousness

In the present case, as to counts 1 and 2, the appellant was the intended recipient of a parcel of drugs sent through the post. There was some sophistication in the packaging, but it was not possible to conclude that the appellant was part of a large‑scale drug importation enterprise. The quantities of drugs involved were, nonetheless, significant. There were two types of drugs, both of reasonably high purity. Whilst some of those drugs may have been intended for personal use by the appellant, the quantity was only consistent with an intention to sell or supply a substantial quantity of the drugs to others.
The fact that the appellant received the parcel whilst detained in a detention centre was an aggravating factor because illicit drugs are likely to have increased value in that setting given the difficulty of supply. Further, the appellant may have been able to use the drugs to exercise power and influence over other inmates in the detention centre. The illegal distribution and use of drugs in such a centre also creates obvious management, health and safety problems (see, by analogy, the comments in R v Davis [2015] QCA 139 [13], [21] regarding the supply of drugs in a prison). The appellant's efforts to mislead the officers about the nature of the drugs once they had been discovered were desperate and, clearly, unconvincing.

The trial judge was correct in saying that only sentences of immediate imprisonment were appropriate. However, the aggregate sentence to be imposed had to take into account that although two different types of drugs were involved in counts 1 and 2, both drugs were contained in one parcel and involved one act of receipt on a single day.

Ground 1 - totality - comparable cases

The purpose of considering comparable cases is to achieve broad consistency in sentencing. In respect of Federal offences, it is important that that consistency be achieved on a national basis: R v Pham [2015] HCA 39; (2015) 256 CLR 550. This is done by having regard to the decisions of intermediate Courts of Appeal in appeals against sentence for the same or similar offences. What must be achieved is not numerical consistency, but consistency in the application of principle.
Comparison between cases is complicated by the fact that no two cases are identical. Furthermore, since sentencing is a discretionary exercise, no case can be taken as indicating the only correct sentence or even the bounds of a discretionary range. Other cases are merely a yardstick which may assist in determining whether a sentence in a particular case is just: Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.
In the present case, the appellant referred to a small number of cases in written submissions. At the appeal hearing, both parties were directed to provide a list of cases which were said to be comparable. Unfortunately, both lists contained a number of cases that were not useful comparisons as they differed significantly from the present case as to the number of offences, the quantity of drugs and the role played by the offender.
Both the appellant and the respondent referred to the following cases: Chan v The Queen [2014] VSCA 301; Climo v The Queen [No 2] [2016] WASCA 233; Mousavi v The Queen [2014] WASCA 174; Nell v The Queen [2014] WASCA 193 and Okeke v The Queen [2010] NSWCCA 266. In addition the appellant referred to Samuels‑Orumnwense v The Queen [2015] VSCA 152; Ng; Lam v The Queen [2014] WASCA 114 (2014) 241 A Crim R 562; DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Eriyo v The Queen [2015] NSWCCA 16; R v Harris [2009] QCA 370; Lau v The Queen [2011] VSCA 324; Ludwig v The Queen [2015] VSCA 35; R v Neto [2016] QCA 217; R v Tran [2007] QCA 221; (2007) 172 A Crim R 436; R v UE [2016] QCA 58 and Yousef v The Queen [2011] NSWCCA 104. The respondent referred to the following additional cases: Adenopo v The Queen [2011] VSCA 269; Cherdchoochatri v The Queen [2013] NSWCCA 118; (2013) 277 FLR 126; DPP (Cth) v Edge [2012] VSCA 289; Dong v DPP(Cth) [2016] VSCA 51; Harper v The Queen [2011] VSCA 314 and Hibgame v The Queen [2014] VSCA 26. To these I would add So v The Queen [2014] WASCA 169..
Of the cases referred to, those that are most relevant are as follows.
In Harris, the offender pleaded guilty to one count of attempting to possess a marketable quantity of cocaine. The plea was entered late, after the offender had absconded and a co‑offender had gone to trial and been convicted. Her role was to receive a package which contained 1,489.7 g of cocaine at a purity of 74%. She was described as 'a cog but nevertheless an important cog in the wheel'. An appeal against the sentence of 7 years with a non‑parole period of 4 years was dismissed.
In Okeke, the offender pleaded guilty to three counts of attempting to possess marketable quantities of border controlled drugs (cocaine and heroin), one count of possessing a marketable quantity of heroin and one count of recklessly dealing with proceeds of crime. The first three counts related to the receipt of packages from overseas that the offender believed to contain drugs. The first count related to a package that contained 80.4 g of pure cocaine. The second count related to three packages, which contained 16.4 g of cocaine, 71 g of heroin and 529.5 g of cocaine respectively. The third count related to two packages which contained 68.9 g and 303 g of cocaine respectively. All of the six packages referred to arrived on separate days over a period of about five months. The fourth count related to a package containing 473 g of heroin that the offender travelled to Queensland to collect. The fifth count related to $61,150 in cash. The offender's role was to receive imported drugs and distribute them. He had received proceeds of the sale and sent some to the importers. There were errors in how the original sentences were imposed, but on appeal the same aggregate sentence was imposed, being 10 years 6 months, with a non‑parole period of 6 years 10 months.
In Ng, the offender was convicted after trial of two counts of attempting to possess marketable quantities of methamphetamine. That case also involved drugs sent in parcels from overseas. The quantities involved were 307.8 g at a purity of 73.8% and 495.9 g at a purity of 77.4%. On appeal, the sentences imposed were increased to 10 years on count 1 and 10 years 7 months and 2 weeks on count 1. The appellant had also been sentenced for a prior drug offence to 7 years and 6 months. The sentences imposed on appeal were ordered to be served wholly concurrently with each other, but partly cumulative upon the sentence for the prior drug offence, such that the total effective sentence for all three offences was 13 years 7 months and 2 weeks with a non‑parole period of 8 years and 6 months. Each of the three offences in that case occurred on separate days and the two later offences were committed while the offender was on bail.
In Chan, there were two offenders - Chan and Tan. Chan pleaded guilty to two charges of attempting to possess a marketable quantity of heroin. Tan pleaded guilty to one such offence. Tan's offence involved him travelling from Malaysia for the purpose of collecting a parcel containing 340.5 g of heroin (245.5 g pure). Chan travelled from Malaysia and arrived the day after Tan in order to collect the first parcel after Tan failed to collect it. He was arrested after he made inquiries about the parcel. Chan was also to receive a second parcel which was intercepted on arrival at Melbourne airport. The second parcel contained 351.4 g of heroin (241.4 g pure). While Tan was characterised as the courier for the drug syndicate that controlled the importation, Chan's role was more serious: he was a trusted intermediary of the syndicate [41] ‑ [42]. Chan pleaded guilty, albeit at a late stage [49]. Tan was sentenced to 6 years' imprisonment with a non‑parole period of 4 years. Chan was sentenced to 7 years' imprisonment on each charge and a total effective sentence of 8 years 6 months with a non‑parole period of 6 years 3 months. Tan's sentence was reduced on appeal to 5 years with a non‑parole period of 3 years. Chan's individual sentences were also reduced to 6 years on each count, however the court did not consider that a less severe total sentence was warranted and the aggregate sentence of 8 years 6 months remained the same. In coming to this conclusion, the court said that though the two offences were close in time and had common features, they were separate offences and reflected separate criminality [55]. However, the court reduced Chan's non‑parole period to 6 years [56].
In So, the offender pleaded guilty to attempting to possess 2,435 g of methamphetamine at a purity of approximately 16%, equivalent to 383.5 g of pure methamphetamine. The offender had travelled from Hong Kong in order to receive a parcel that was sent by international courier from overseas. Other parcels contained equipment for separating the drug from the wax in which it was concealed. He was not an owner of the drugs but was an 'essential' and 'pivotal' part of the importation. He entered a late plea of guilty and was sentenced to 7 years and 6 months' imprisonment with a minimum of 4 years and 8 months. An application for leave to appeal against that sentence was refused.
In Mousavi, the offender was convicted after trial of importing 126 g of methamphetamine at a purity of 73.8%. The importation was effected by the offender concealing 51 packets of drugs internally. His role in the importation was described as substantial and central. He was sentenced to 6 years and 8 months' imprisonment with a minimum of 4 years. An application for leave to appeal was refused.
In Nell, the offender pleaded guilty after empanelment of the jury to three offences, one a State offence of possessing methamphetamine with intent to sell or supply, one of importing methamphetamine and one of trafficking in methamphetamine. The first offence involved 242 g of methamphetamine at a purity of between 5% and 56%. The second offence involved 795 g of methamphetamine, the bulk of which was at a purity of between 26.3% and 26.6% and the third count involved 307.8 g of methamphetamine at a purity of between 7.8% and 19.6%. The three offences occurred on separate days over a period of 2 1/2 weeks. The offender was found to be in the business of importing, extracting and selling the drugs. The total effective sentence was 12 years' imprisonment. An appeal against the sentence was dismissed.
In Lam, the two offenders were convicted after trial of importing 479.4 g of heroin at a purity of between 46% and 50%. The offenders were not youthful and had no prior convictions. They were found to be the main instigators in a scheme to import the drug using an international courier service. Lam was sentenced to 7 years with a 6‑year non‑parole period and Le was sentenced to 6 years and 6 months with a 5‑year non‑parole period. Their appeals against sentence which, in substance, complained of the length of the non‑parole period, not the terms imposed, were dismissed.
In Samuels‑Orumnwense, the two offenders were convicted after trial of attempting to possess a marketable quantity of heroin. One offender collected a parcel containing 398.1 g of heroin (221.9 g pure). He was 'actively involved in the planning regarding obtaining possession of the parcel containing the drugs' [81]. The other offender was nearby, communicating by telephone with the first offender. Both offenders were sentenced to 5 years and 9 months' imprisonment. The non‑parole period in respect of the first offender was 3 years. The non‑parole period for the second offender was complicated by the fact that he was serving a sentence for another offence. Appeals against those sentences were dismissed (though the second offender's non‑parole period was corrected).
In Dong, the offender was convicted after trial of one count of importing a marketable quantity of methamphetamine, one count of dealing in property reasonably suspected of being the proceeds of crime and one count of trafficking a controlled drug. The offender had received at her home a package containing 360.8 g of methamphetamine (263.5 g pure) that had been posted from China. When police executed a search warrant at the offender's premises, drugs, scales, clipseal bags and other paraphernalia were found. Police also located $25,000 in cash in the offender's handbag. Investigations disclosed that the offender had transferred $54,000 to China at the time the parcel was posted. She also had over $160,000 in unexplained income. The sentencing judge found that she and her boyfriend conducted a drug trafficking business. The total effective sentence of 5 years 9 months' imprisonment was reduced on appeal to 5 years' imprisonment with a non‑parole period of 3 years. This occurred because new evidence was provided of hardship in prison arising from the offender bearing a child and caring for it in prison.
In Eriyo, the offender pleaded guilty to one count of attempting to possess a marketable quantity of heroin and one count of possession of a marketable quantity of heroin. A parcel containing 130.1 g of pure heroin was intercepted by the customs authorities. The drug was substituted by police and delivered in accordance with instructions received. The offender received the parcel and then attempted to flee from police. A search of the premises resulted in the discovery of another quantity of heroin (118.7 g pure). The sentencing judge said that the two offences were separate and discrete and a degree of accumulation was appropriate. The offender was sentenced to 6 years' imprisonment on each count with a total effective sentence of 6 years 10 months. The sole issue on appeal was the length of the non‑parole period. There had been an error in how the non‑parole period had been framed, but the same period was imposed on appeal, being 4 years and 10 months.
In Climo, the offender was convicted after trial of importing methamphetamine. The drug was imported inside a welding unit inside the offender's luggage and weighed 192.8 g at a purity of 74%. A sentence of 7 years' imprisonment with a non‑parole period of 4 years 7 months was not disturbed on appeal.
In UE, the offender pleaded guilty to one count of importing a marketable quantity of methamphetamine. The offender travelled to Malaysia where he helped to deliver a package containing the drugs to be sent to Australia. The package was intercepted and the drugs replaced. The quantity of methamphetamine was 629.7 g at a purity of 63.1%. The offender then returned to Australia where he helped another person to collect the package. The sentencing judge found that the offender's role was more than that of a courier or passive recipient. He had played an important role in the actual importation. A sentence of 6 years' imprisonment with a non‑parole period of 3 years 4 months was held not to be outside the sound exercise of sentencing discretion.
In Dang v The Queen,[1] the two appellants were convicted after trial of attempted possession of a quantity of an unlawfully imported border controlled drug namely heroin. The quantity involved was 1,395 g of powder containing 822.3 g of pure heroin. Dang was sentenced to a term of 7 years 10 months with a non‑parole period of 5 years 2 months. Tran was sentenced to a term of 10 years with a non‑parole period of 6 years 6 months. The sentencing judge found that Dang was subordinate to Tran in the enterprise. Dang had good antecedents, whereas Tran had a previous drug conviction [179], [180], [197]. Both offenders' appeals against sentence were dismissed.
[1] Dang v The Queen [2015] NSWCA 163.
In Lau v The Queen,[2] on his plea of guilty, the offender was sentenced to 9 years, with a non‑parole period of 6 years, for importing about 700 g of methamphetamine. The offender's role was characterised as that of a courier, with no evidence as to the existence of any hierarchy or his precise role in it [41]. An appeal against sentence was dismissed.
[2] Lau v The Queen [2011] VSCA 324.

Ground 1 - totality - conclusion

The appellant's offending conduct was less serious than that of Chan and Eriyo, both of whom were convicted in respect of multiple distinct quantities of drugs received at different times and in greater total amounts, but the offenders in Chan and Eriyo pleaded guilty and the appellant was convicted after trial. While his role was greater than that of Harris, the quantity of drugs in that case was significantly higher, the offender in Harris pleaded guilty and the sentence was significantly less. The offender in Okeke committed markedly more serious offences, with offending extending over 6 months, involving about 5 kg of illicit drugs but he pleaded guilty. The offending in UE was comparable to that of the appellant, but the offender in UE pleaded guilty.
Comparable cases are only one relevant consideration, but they indicate that the total sentence imposed here was very high. It is not consistent with sentences imposed for comparable conduct, both in this and other jurisdictions. The total sentence in this case did not properly reflect the fact that the heroin and methamphetamine in counts 1 and 2 formed part of the same parcel and that the appellant had engaged in a single act of attempting to possess that parcel.
Before adjusting on account of totality, the trial judge stated that he would have imposed 4 years on count 1 and 6 years 9 months on count 2. Thus, those two sentences were reduced by a total of 1 year 9 months on account of totality. That is a little less than one sixth of the total of the proposed sentences for counts 1 and 2. In my respectful view, that relatively limited reduction is some indication that the total sentence did not reflect the substantial common elements of counts 1 and 2: that the appellant had engaged in a single act of attempting to possess the single parcel containing both the heroin the subject of count 1 and the methamphetamine the subject of count 2.
In my respectful opinion, the process engaged in by the trial judge to reflect totality by reducing the individual sentences did not achieve the desired objective. It is inappropriate to make any determination as to the correctness of the starting points referred to by the sentencing judge. The only appropriate question is whether the aggregate sentence is a just reflection of the appellant's total criminal conduct in all the circumstances of the case. In my view, it is not and the total effective sentence manifests error. This ground should succeed and the appeal be allowed.
I will deal with ground 2 before turning to the question of the appropriate disposition on resentencing.

Ground 2

As regards the question of whether a sentence of 6 months' imprisonment on count 3 was manifestly excessive, the principles applicable to grounds of this nature are well known. A claim that a sentence is manifestly excessive asserts the existence of an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum penalty for the offence, the standard of sentencing customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that kind and the personal circumstances of the offender.
The appellant stated in written submissions that there was only one decision relating to an appeal against sentence for an offence of this type. The decision referred to was Ramezanian v The Queen [2013] VSCA 71 (2013) 37 VR 92. In fact, the relevant offence in that case was not an offence against s 308.1, but rather, an offence of possessing a border controlled drug reasonably suspected of having been unlawfully imported contrary to s 307.10(1). In any event, that case is of limited assistance as that appeal was allowed largely because exceptional circumstances had arisen, namely that the offender's 11‑year‑old son had been diagnosed with leukaemia. For this reason, the original sentence of 12 months' imprisonment, to be released after serving 3 months on giving a recognisance to be of good behaviour for a period of 2 years, was set aside and the date for release on the recognisance was varied to equate with time already served.
Because of the lack of appellate decisions regarding sentencing for the offence in s 308.1, the appellant submits that this court should have regard to sentences imposed for offences of simple possession contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA), which also carries a maximum sentence of 2 years' imprisonment, though the maximum fine available, $2,000, is significantly less.
The idea that sentences for Commonwealth offences should be equated with similar State offences for the purposes of achieving consistency is wrong as a matter of principle. An approach that seeks consistency with similar State offences would create inevitable problems. The equivalent State offences in each jurisdiction may have differing maximum penalties and may attract differing ranges of sentences. Thus, any attempt to achieve consistency with the State offences in each jurisdiction could result in inconsistency between States in sentences for the same Federal offence.

The appellant drew attention to the fact that s 308.1(3) provides that where a person is convicted of an offence against s 308.1(1), the person 'may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described)'. This may suggest, contrary to the principles referred to above, that offenders who commit s 308(1) offences should be sentenced consistently with those who commit comparable State offences.
However, the note printed below this subsection reads:
Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and Territory laws.
This supports an alternative interpretation, namely that those offenders who commit s 308.1(1) offences are to be treated as if they were State offenders for the purpose of considering what options are available. That interpretation does not mandate or permit an approach to sentencing which seeks to achieve consistency in sentencing with any comparable State offences.
It is also notable that s 308.1(5) provides that pt 1B of the Crimes Act 1914 (Cth), which deals with the sentencing of Federal offenders, is not limited by subsection (3). In these circumstances, it is clear that the purpose of subsection (3) is to ensure that those who are convicted of offences of this type have access to drug diversion procedures, such as the Drug Court in this State, and to appropriate programs. The express application of pt 1B to this offence confirms that the separate sentencing framework for federal offenders continues to apply. Thus, in the absence of comparable cases, an assessment of the sentence imposed on this count must be approached on the basis of first principles, that is, having regard to the maximum penalty, the seriousness of the offence, the relevant mandatory factors set out in s 16A(2) of the Crimes Act which are known to the court and any other relevant aggravating or mitigating factors.
As to the seriousness of this offending, whilst the amount involved was not great, it is important to take into account the context. The appellant possessed the methamphetamine in a detention centre and went to some effort to conceal it inside his locker. When it was discovered, he denied knowledge of the drug and sought to provide a spurious explanation as to why his fingerprint had been found in the cavity. He continued to deny possession of the drug and was convicted following a trial. All the evidence tended to indicate that the appellant was a drug user and that the amount found represented his current store of the drug for this purpose.
The sentence of 6 months' imprisonment was 25% of the maximum penalty. That does not suggest the sentence was excessive, particularly given that a discount for pleading guilty was not relevant. Though the pure amount of methamphetamine may seem relatively small (1.68 g), it is important to bear in mind that if the quantity had been 2 g (the traffickable quantity for methamphetamine) the appellant would have been liable to be charged with the more serious offence of trafficking a controlled drug contrary to s 302.4 (read with s 302.1 and s 302.5) which carries a maximum penalty of 10 years' imprisonment or 2,000 penalty units or both.
The sentence of 6 months' imprisonment imposed for this offence was open to the sentencing judge in the exercise of sound sentencing discretion. This ground of appeal should be dismissed.

Conclusion

As has been earlier noted, the individual sentences imposed on counts 1 and 2 are not challenged. Those sentences were appropriate. However, the total aggregate sentence did not properly reflect the appellant's overall criminality in all the circumstances of the case. The totality principle can be properly taken into account by making orders which have the effect of making the sentences on counts 1 and 2 partially concurrent. I would achieve that objective by ordering that the sentence on count 2 commence after serving 1 year of the sentence on count 1 and the sentence on count 3 commence at the end of the sentence on count 2. The orders of the sentencing judge (including the order backdating the commencement of the sentence on count 1 to 14 April 2014) would otherwise be unaffected. The effect would be to reduce the total effective sentence to one of 7 years 6 months' imprisonment. I would make a single non‑parole period of 5 years.