Ramachandran v The State of Western Australia - [2021] WASCA 54

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RAMACHANDRAN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 54
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   2 MARCH 2021
DELIVERED          :   31 MARCH 2021
FILE NO/S:   CACR 40 of 2020
BETWEEN:   RAMESHAN RAMACHANDRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number            :   IND 2071 of 2019

Catchwords:

Criminal law - Drug offences - Appeal against sentence - Possession of methylamphetamine and MDMA with intent to sell or supply it to another - Whether sentencing judge made material factual errors - Whether sentence manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	S H King
Respondent	:	J A Scholz

Solicitors:

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

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Blasco v The State of Western Australia [2021] WASCA 26
Chadburne v The State of Western Australia [2017] WASCA 216
Chen v The State of Western Australia [2017] WASCA 99
Cochrane v The State of Western Australia [2021] WASCA 5
Gakis v The State of Western Australia [2019] WASCA 25
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
HSV v The State of Western Australia [2020] WASCA 5
Kabambi v The State of Western Australia [2019] WASCA 44
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Ng v The State of Western Australia [2020] WASCA 70
Santos v The State of Western Australia [2016] WASCA 107
Trainor v The State of Western Australia [2021] WASCA 36
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

JUDGMENT OF THE COURT:

Summary

The appellant was convicted, on his pleas of guilty, of two offences of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 19 years 10 months' imprisonment for count 1, which related to 32.572 kg of methylamphetamine. He was sentenced to 8 years' imprisonment for count 2, which related to 4.954 kg of MDMA. The sentences were ordered to be served concurrently, and backdated to 28 March 2019 to take account of time spent in custody on remand. The appellant was made eligible for parole.
The appellant now appeals against his sentences on four grounds. Ground 1 contends that the sentencing judge erred in the characterisation of the appellant's involvement in the offending. Ground 2 contends that the sentencing judge erred in a comparison made between the appellant's offending and the role of the offender in this court's decision in Gaskell v The State of Western Australia.[1] Ground 3 contends that the individual sentence of 19 years 10 months' imprisonment for count 1 is manifestly excessive. Ground 4 contends that the overall sentence of 19 years 10 months' imprisonment infringes the first limb of the totality principle.
[1] Gaskell v The State of Western Australia [2018] WASCA 8.
For the following reasons, in our view ground 3 is established. Grounds 1, 2 and 4 are not established. We would resentence the appellant to 16 years' imprisonment on count 1. We would not interfere with the individual sentence on count 2 or the order that the sentence on count 2 be served concurrently with the sentence on count 1. The appellant should remain eligible for parole.

Circumstances of offending

The sentencing judge made the following findings as to the circumstances of the offending.[2]
[2] Sentencing ts 39 - 42. Her Honour's findings also adopted the facts stated by the prosecutor at sentencing ts 6 - 11. The appellant admitted the facts, as read by the prosecution, at sentencing ts 14.
On 26 March 2019, police executed a search warrant on a house in Dianella (Dianella property) which they had been keeping under surveillance. In a rear bedroom, police located approximately 20 large clipseal bags containing a white crystalline substance, a duffle bag, a backpack, a plastic tub, a red suitcase and a large black suitcase. The 20 large clipseal bags were stacked against a wall and were obvious to anyone walking into the room. Further white crystalline substance was found in clipseal bags in the large black suitcase.
The red suitcase was found to contain a number of plastic containers with lids, boxes of clipseal bags, loose clipseal bags, a food‑saver machine, rolls of vacuum-seal bags, digital scales, masks, a sieve and a salad spinner. The backpack contained cryovac bags, some of which had been torn and had white crystalline residue consistent with them having been opened and drugs repackaged. In one of the bags containing the drugs, police located a receipt for a vacuum cleaner and a sieve which the appellant had purchased from a Kmart store on 13 March 2019. The appellant's DNA was located inside gloves located in the red suitcase and the kitchen of the house.
In total, police found 32.572 kg of methylamphetamine with a purity of between 57% and 81%, with the vast majority having a purity of about 70%. In addition, police located 4.954 kg of MDMA with a purity of between 65% and 75%, with the vast majority having a purity of about 66%.
Aside from the items found in the rear bedroom, the only items in the Dianella property were some buckets under the laundry sink and some gloves in a kitchen drawer.
The appellant rented the Dianella property in February 2019, having inspected the property with his co-accused (who is still awaiting trial and so will not be named in these reasons). At that time, the appellant falsely told the owner of the property that he was waiting for his wife to join him from Sri Lanka to share the home with him. The co-accused told the property owner that he intended to live at the property with the appellant until the appellant's wife arrived. In fact, the appellant and his co‑accused resided in a property in Morley (Morley property).
On 6 March 2019, the owner of the Dianella property attended the property to put the bins out. He noticed a parcel awaiting collection and that there was no furniture in the house. On 9 March 2019, the owner spoke to the appellant, who said he had received the parcel, that he had not yet moved into the house and he was waiting for his wife to arrive before buying furniture.
Police made the following observations while the Dianella property was under surveillance prior to the execution of the search warrant:
(1)On 12 March 2019, the co-accused was seen to take a box and black bag inside the house, and to leave without those items.
(2)On 14 March 2019, the appellant and his co-accused met at the house together, having arrived in separate vehicles.
(3)On 21 March 2019, the co-accused attended the property by himself and was there for about 10 minutes.
(4)On 25 March 2019, the co-accused went to the property with another person. This other person was later arrested in Kalgoorlie, on 30 March 2019, in possession of 8 kg of methylamphetamine.
After the execution of the search warrant and seizure of the methylamphetamine and MDMA on 26 March 2019, the police installed surveillance devices inside the Dianella property.
At about 10.15 am on 28 March 2019, the appellant was observed attending the Dianella property alone. The appellant went to the rear bedroom and appeared concerned. He searched the house and was then observed outside the house checking the bins in an agitated state.
The appellant then returned to the Morley property. Shortly afterwards, the appellant and his co-offender attempted to contact the owner of the Dianella property by text message and by telephone calls. The owner, who at first did not answer, subsequently accepted a call from the appellant at about midday. In that call, the appellant said he needed to see the owner in person. The owner, who had been in contact with police, said that he was unable to meet until between 4.00 pm and 5.00 pm that day. The appellant agreed to speak with the owner then.
At about 1.00 pm that day, the appellant and his co-accused returned to the Dianella property. The appellant and his co-accused were observed discussing the missing drugs at the doorway of the rear bedroom. The co-accused berated the appellant for losing the drugs, and for not hiding them. The two men searched the house and then left.
At about 4.35 pm on 28 March 2019, the appellant sent a text message to the owner of the Dianella property, asking when they could meet. When he did not receive a reply to his text message, the appellant made an unanswered telephone call to the owner. The owner sent the appellant a text message a short time later, saying that he was unable to meet the appellant. The co-accused then sent the owner a number of text messages, indicating that property had been taken from the house, which caused him a lot of problems and placed him in danger.
At about 8.10 pm that night, the appellant and his co-accused returned to the Dianella property, removing several white buckets. They were arrested on their return to the Morley property.
The appellant was interviewed by police and made admissions as to having rented the Dianella property, staying at the Morley property on weeknights and purchasing the vacuum cleaner and sieve. He said that he rented the Dianella property at the request of the co-accused, who he had known since 2008. The appellant said that he understood the lease was to be in his name because the co-accused did not have a job in Western Australia. The appellant admitted attending the Dianella property, cleaning it and taking and removing bags at the co-accused's request. He denied knowing that there were drugs inside the bags.

Personal circumstances

The sentencing judge made the following findings as to the appellant's personal circumstances.[3]
[3] Sentencing ts 43 - 45.
The appellant was 30 years old at the date of offending, and 31 at the date of sentence. He was born and raised in a 'stronghold' area of the Tamil Tiger movement in Sri Lanka, and his upbringing was marred by armed conflict.
The appellant came to Australia to make a better life for himself and to financially assist his family. At first the appellant lived with an uncle in Sydney, who treated the appellant poorly and made financial demands of him. The appellant left school and, after starting but not completing a TAFE course, began work in a meat factory. The appellant ran away from his uncle when he was 18 years old. The uncle had the co-accused track the appellant down, and that was how the appellant came to know his co-accused. The co-accused 'took [the appellant] in',[4] and the appellant felt a sense of obligation and friendship towards him.
[4] Sentencing ts 44.
The appellant visited his family in Sri Lanka in 2015, leaving his employment in Sydney to do so. On his return to Australia, the appellant came to live in Perth and worked in a meat processing factory. After the death of his father, the appellant's financial responsibilities increased. The appellant returned to Sri Lanka in 2018 and a marriage was arranged. He married in early 2019, and wished to bring his wife to Australia, which was an expensive process. He was motivated to offend by the financial pressures he faced, and his sense of obligation to the co‑accused.
The appellant had no prior criminal record, and was not a user of illicit drugs.
The appellant had no friends or family in Western Australia, and received no visits in prison.

Sentencing judge's approach

After referring to the circumstances of the offending described above, the sentencing judge said that, by his plea of guilty, the appellant accepted that he not only knew about the contents of the suitcases but was 'involved in this enterprise'.[5] The sentencing judge said:[6]
It's clear that you and [the co-accused] were running a safe house for the drugs and given what was found, it is clear that you, together with him, were warehousemen whose responsibilities included not just storing the drugs but repackaging them for further distribution as required and then passing them on to others.
The findings in this passage are the subject of the complaint in ground 1 of the appeal.
[5] Sentencing ts 42.
[6] Sentencing ts 42.
The sentencing judge said that the appellant could have been in no doubt as to the scale of the operation in which he was involved, given the way the drugs were displayed when police found them. The fact that the appellant was given access to the Dianella property, and went to the house by himself, showed that he was in a position of trust. Although the amount of money the appellant was going to make from his involvement was unknown, the judge was satisfied that he acted for a commercial purpose. The sentencing judge observed:[7]
Whilst I accept that you were not going to make the most money and that there were people above you who were going to make more money, you were still a vital part of this operation by providing the services that you did, by doing the things that you did and you helped distribute and protect - protect them and distribute those drugs and you also helped protect those holding other positions in the network, both higher up than you and perhaps even on the same level.
The enormous quantity of drugs, more than 37 kilograms in total, tells me that this was an enterprise of the highest order. The impact on the community, the harm that these drugs would have caused to our community would have been immense.
Given all of these factors the authorities make it clear that your criminal culpability is very high regardless of the position that you held within the network, because of the effect of the distribution and your integral role in that.
[7] Sentencing ts 43.
The sentencing judge noted that it was accepted that only a term of immediate imprisonment was appropriate in the circumstances. Her Honour referred to the maximum penalties for the two counts (life imprisonment for count 1 involving the methylamphetamine and 25 years' imprisonment and a $100,000 fine for count 2 involving the MDMA).[8]
[8] Sentencing ts 43.
After referring to the mitigation to be found in the appellant's personal circumstances, the sentencing judge observed:[9]
Unfortunately, personal circumstances have less weight in a matter of this kind and you are exactly the sort of person that these criminal organisations target. And because you're prepared to do that sort of work, you protect them and you allow the drugs to get in to our community. And therefore, general deterrence is a really strong factor to be taken into account.
[9] Sentencing ts 45.
The sentencing judge accepted that isolation would make the appellant's time in custody more difficult. Her Honour allowed a discount of 22% under s 9AA of the Sentencing Act 1995 (WA) for the appellant's early plea of guilty (although her Honour noted it was not at the earliest opportunity in the context of a strong prosecution case).[10]
[10] Sentencing ts 45 - 46.
The sentencing judge indicated that the issue in this case was the appropriate length of the term of immediate imprisonment. Her Honour made reference to a number of decisions of this court.[11] The judge's discussion of these authorities is the subject of ground 2, and will be considered in greater detail in dealing with that ground.
[11] Sentencing ts 46 - 47.
Before imposing the sentences noted above, the sentencing judge observed:[12]
I recognise that the weight of the drugs, I've said a number of times, isn’t determinative, but your role in this, whilst your role was one of warehouse men, if I can put in those terms, was so integral to the capacity for this enterprise to work and function, that your participation in this does need to be marked with a very significant term.
[12] Sentencing ts 47.

Ground 1: Characterisation of the appellant's offending

Ground 1 seeks to impugn the passage of the sentencing judge's remarks quoted at [25] above. The appellant contends that there was no foundation for the findings that:
(1)the appellant was responsible for repackaging the drugs for further distribution as required; and
(2)the appellant then passed the drugs on to others.
The appellant also says that he was not given an opportunity to address those findings of fact.
The respondent takes issue with the appellant's construction of this passage of the sentencing judge's remarks. The respondent says that this is not a finding that the appellant himself physically repackaged the drugs or passed them on to others. Rather, on the respondent's submission, the judge was describing the sum of the tasks performed by the appellant and his co-accused. We accept that this is the manner in which the judge's remarks should be understood.
Counsel for the appellant in effect submits that there was a need for the sentencing judge to focus on acts in which the appellant was engaged. Therefore, her Honour should be understood to be making findings as to the particular acts in which the appellant had engaged.[13] We do not accept that submission. In considering the criminal responsibility of an offender such as the appellant, a sentencing court may properly identify the aspects of the enterprise in which the offender knowingly and jointly engaged with a co-offender. In the present case, the appellant had a significant role in the enterprise as a whole, which involved storing and repackaging a large quantity of drugs which were to be passed on to others. The judge's findings are properly understood as being directed to the aspects of the enterprise in which the appellant was knowingly involved, rather than attributing particular acts in that enterprise to the appellant.
[13] Appeal ts 5.
The admitted facts and the video of the police search of the Dianella property gave rise to a compelling inference that the drugs had been or were to be repackaged in the house. The equipment to do so was present, there were containers with traces of methylamphetamine indicating past storage and the clipseal bags on the floor of the rear bedroom were open. The quantity of the drugs indicated that they must be going to be passed on to others, in the absence of any evidence that the appellant and his co‑offender were themselves going to sell the drugs (which would have been an aggravating feature). The only people with access to the house were the appellant and his co-offender, and both repeatedly visited the house. The only reasonable inference from the above facts was that the appellant and his co-offender were jointly responsible for the storage and repackaging of the drugs which they were to pass on to others.
The sentencing judge gave the appellant's counsel the opportunity to address the above factual matters. After the prosecutor's statement of the relevant facts, the sentencing judge indicated that she had viewed the search video and drew the inference that there had been repackaging of drugs at the house.[14] The appellant's sentencing counsel indicated that she agreed with that description, and admitted the facts stated by the State.[15] The judge indicated her provisional view, during the course of the plea in mitigation, that the appellant knew everything that was going on in the house and that he had not played a subservient role to his co‑offender.[16]
[14] Sentencing ts 12.
[15] Sentencing ts 14.
[16] Sentencing ts 17 - 21.
In our view, ground 1 is not established.

Ground 2: Reference to Gaskell.

Ground 2 relates to references made by the sentencing judge to this court's decision in Gaskell. In that case the offender was convicted on his plea of guilty to seven offences, one of which was the possession of about 21 kg of methylamphetamine with intent to sell or supply, for which he received an individual sentence of 18 years 6 months' imprisonment. The total effective sentence was 20 years' imprisonment. On appeal, the individual sentence for the methylamphetamine offence was reduced to 16 years' imprisonment, as part of a new total effective sentence of 18 years' imprisonment. The offending occurred prior to the increase in the maximum penalty for possessing trafficable quantities of methylamphetamine to life imprisonment.

In Gaskell, the majority described the offender's role in the following terms:[17]
There is no doubt that the appellant's offending was very serious. He had possession of an extremely large quantity of drugs of high purity valued in the region of $4 million to $6 million. As the packaging of the drug indicated, he was commercially selling large quantities of drugs. His motivation was financial gain. These features and the other circumstances of the case demonstrated that the appellant was near the top of the drug dealing hierarchy.
Nevertheless, the appellant was not at the top of the drug dealing hierarchy. He was not the beneficial owner of the drugs which he was engaged in selling. It was the person or persons above him who were in ultimate control and who derived the ultimate profits of the enterprise, notwithstanding that the appellant was, it may be inferred, richly rewarded for his criminal conduct.
[17] Gaskell [147] - [148].
The appellant's complaint in this case arises from the following exchange between the sentencing judge and the prosecutor in the course of the prosecutor's sentencing submissions:[18]
[18] Sentencing ts 35 - 36.
As your Honour has observed, I could not find any larger quantities of methylamphetamine that have been sentenced under the sentencing regime in this State, that have been dealt with by the Court of Appeal of this State.
Gaskell is the next closest that I could find which was 21 kilograms. That was in 2018 and he was sentenced in relation to obviously some other very serious offences, drugs - sorry, guns and firearms. Guns and cash is what I meant to say, and ammunition and he - - -
PETRUSA DCJ: But Gaskell, I mean the reality is Gaskell was sentenced in relation to the 21 kilograms. He was sentenced on a plea of guilty - - -
[PROSECUTOR]: Yes.
PETRUSA DCJ: - - - with a 12 per cent discount - - -
[PROSECUTOR]: Yes.
PETRUSA DCJ: - - - in circumstances where he was seen to be a very low-level operator in terms of the scheme. He got 16-and-a-half years for that offence alone, under a sentencing regime where the maximum penalty was 25 years' imprisonment.
So even if one were to accept for the purposes of this sentencing exercise that Mr Ramachandran was involved at the same level, you’ve got much more drugs and you’ve got a sentencing regime that is - has a maximum of life imprisonment.
[PROSECUTOR]: Those are the two distinguishing factors that I intended to point out to your Honour.
PETRUSA DCJ: That's if you accept his role is the same.
[PROSECUTOR]: Indeed. In effect, the State's submission is that this is a more serious example of offending, under a more serious sentencing regime, than the Court of Appeal considered in Gaskell.
(emphasis added)
The appellant submits, and the respondent accepts, that the judge's observation in the above passage - that Gaskell was seen to be 'a very low level operator in terms of the scheme' - was incorrect.
The sentencing judge dealt with previous decisions of this court in the following passages of her sentencing remarks:[19]
[19] Sentencing ts 46 - 47.
Now, I have reviewed a number of authorities to try and help with this. Those authorities include Santos v the State of Western Australia [2016] WASCA 107, Wong v the State of Western Australia [2019] WASCA 8, Kezkiropoulos v the State of Western Australia [2018] WASCA 58, and Gaskell v the State of Western Australia [2018] WASCA 8.
Now, each of those authorities themselves makes reference to other authorities. I am mindful though that none of these cases involve the quantity of drugs involved in this case, carrying with it as it does, the consequential harm.
Wong is the closest with there being 21 - is it Wong or Gaskell?
[PROSECUTOR]: Twenty one was Gaskell, your Honour.
PETRUSA DCJ: Gaskell, sorry. It's Gaskell that has the 21 kilos.
However, none of the cases or any that they discuss deal with sentencing in the context of a maximum penalty increase that we have in count 1 of life imprisonment.
Now, that increase in the maximum penalty occurred in September of 2017 and whilst that’s some time ago now, there's really been insufficient time for establishing of a new range, particularly a new range for a quantity of this amount.
I think in Gaskell the court recognised that there hadn't been an established range for such large amounts as were dealt with in that case, and we have the compounding factor here where we have an even larger amount under the new maximum penalty.
So the assistance from other cases has been extremely limited, and in any event, sentences imposed in other cases do not limit the range of a proper exercise of the sentencing discretion. (emphasis added)
The appellant contends that the sentencing judge fell into error when imposing a sentence on the appellant when making an erroneous characterisation of the criminality of the offending in Gaskell.
In our view, this ground of appeal must be rejected for two independent reasons.
First, the comments on which the appellant relies to demonstrate error in the judge's understanding of the level of criminality involved in Gaskell were not made in the course of the judge's sentencing remarks. Rather, the error is contained in a comment made by the sentencing judge in the course of discussion with counsel. The observations are not adopted by reference in the judge's sentencing remarks. The reasons for her Honour's sentencing decision are to be discerned from the sentencing remarks rather than exchanges with counsel in the course of submissions.[20]
[20] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438[16]; Manojlovic v R [2020] NSWCCA 315 [214] - [216].
Secondly, any error by the sentencing judge as to the circumstances of the offending in Gaskell was not a material error. In the passage quoted from the judge's sentencing remarks at [42] above, Gaskell is referred to as being the closest among the cited cases to the present case in terms of the weight of drugs involved. The sentencing judge then distinguished the cases cited by reference to the different maximum penalties involved. She noted the absence of any established range of sentencing for large quantities of drugs, and the fact that the quantity of drugs involved in Gaskell was less than the present case. Her Honour stated that the assistance from other cases was extremely limited and correctly noted that, in any event, sentences imposed in other cases do not limit the range of a proper exercise of the sentencing discretion. It is clear that, while the sentencing judge referred to Gaskell, she did not sentence the appellant by reference to the decision in that case.
Leaving aside parity issues, it is, generally speaking, unnecessary for sentencing judges to cite the sentencing outcomes in cases decided by this court in the course of sentencing remarks. The important role of sentencing remarks is to set out the factual findings which the judge makes as to the circumstances of the offending and the offender's personal circumstances, the principles which the judge has applied and the matters to which the judge has had regard (including the aggravating and mitigating factors). If the sentence imposed is challenged in this court on manifest excess or totality grounds, this court will refer to other appellate decisions in identifying the customary sentencing standards for the relevant offence. While sentencing judges will doubtlessly make themselves familiar with those standards, there is no need for a sentencing judge to undertake this court's task of discussing appellate decisions of this court in sentencing remarks. The potential for such references in sentencing remarks to be misunderstood, as in the present case, illustrates why it is not generally desirable for sentencing remarks to contain such references.
In our view, ground 2 is not established.

Grounds 3 and 4: Implied error

Grounds 3 and 4 both assert implied error, inferred from a sentencing outcome which is unreasonable or plainly unjust. Ground 4 alleges that the total effective sentence infringes the first limb of the totality principle. Such a ground is directed to an inappropriate accumulation of individual sentences in a manner which does not reflect the overall criminality involved in all of the offending. An offender cannot complain of breach of the totality principle in a case where there is no accumulation of the sentences. As such, there is no merit to ground 4. The question of implied error turns on whether the individual sentence of 19 years 10 months' imprisonment on count 1 is manifestly excessive, as asserted in ground 3.

Manifest excess: general principles

The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[21] It is unnecessary to repeat those principles here. The issue is ultimately whether error is to be inferred from a sentence which is unreasonable or plainly unjust.

Maximum penalty

[21] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

As the sentencing judge recognised, the maximum penalty for count 1, involving the methylamphetamine, is life imprisonment.
On 18 September 2017, the maximum penalty for possession of 28 g or more of methylamphetamine was increased from 25 years to life imprisonment. Such a quantity is defined as a 'trafficable quantity of methylamphetamine'. The amount of methylamphetamine involved in the present case - over 32.5 kg - is well in excess of a trafficable quantity. As has been noted by this court, the increase in the maximum penalty is an indication that the sentences for the offence of possession of a trafficable quantity of methylamphetamine should be increased.[22] It is therefore necessary to distinguish between decisions of this court dealing with sentences for trafficable quantities of methylamphetamine in relation to offending before and after the maximum penalty increased.

Customary sentencing standards

[22] See HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 [41] - [45].

The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell in the following terms:[23]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did. (citations omitted)
[23] Gaskell [128] - [129].
Sentences relating to offences involving trafficable quantities of methylamphetamine since the increase in the maximum penalty were recently reviewed in Cochrane v The State of Western Australia.[24] This review was referred to by the court in Blasco v The State of Western Australia,[25] where the court noted that a range of sentences customarily imposed for offences of possessing trafficable quantities of methylamphetamine, since the maximum penalty was increased to life imprisonment, is beginning to emerge.
[24] Cochrane v The State of Western Australia [2021] WASCA 5 [119] - [148].
[25] Blasco v The State of Western Australia [2021] WASCA 26 [43] - [44].
However, the sentencing patterns revealed by Cochrane, Blasco and the cases there cited are of little assistance in the present appeal, by reason of the much smaller quantities of methylamphetamine involved in those cases. In very general terms those cases involved sentences imposed on pleas of guilty for dealings in ounces (a common commercial quantity of methylamphetamine being 28 g or an ounce) rather than kilograms. The highest sentence imposed or upheld was HSV, where an individual sentence of 9 years 6 months' imprisonment for possession of about 978 g of methylamphetamine was upheld, as was the total effective sentence of 13 years' imprisonment for that and other drug offences.
In Trainor v The State of Western Australia,[26] this court upheld a sentence of 14 years' imprisonment for an offence to which the new maximum penalty applied. The sentence was imposed in respect of the possession of about 4 kg of methylamphetamine with intent to sell or supply. The sentencing judge in that case found that the offender had possession of the drugs for the purpose of passing them further down the chain of distribution, and that he was involved in the offending for commercial gain. The offender was a 53-year-old man of prior good character who received a 25% discount under s 9AA of the Sentencing Act for a plea of guilty at the first reasonable opportunity. This court observed that, under the previous maximum penalty, 'the sentence of 14 years would undoubtedly have been at least high and may well have justified a conclusion that it was manifestly excessive'.[27] However, in light of the increase in the maximum penalty, the court concluded that the sentence was not manifestly excessive.
[26] Trainor v The State of Western Australia [2021] WASCA 36.
[27] Trainor [42].
A number of cases decided under the former maximum term of 25 years' imprisonment have considered dealings in kilograms of methylamphetamine. However, few of the individual sentences imposed in those cases approached the sentence imposed for count 1 in the present case.
Cases involving dealing in kilograms of methylamphetamine or MDMA were summarised in Gaskell and Gakis v The State of Western Australia.[28] Apart from Zanon v The State of Western Australia,[29] discussed below, the highest individual sentences were between 14 and 16 years' imprisonment. Apart from Gaskell (in which the offender pleaded guilty), all of those sentences of between 14 and 16 years were imposed after trial:
(1)In Milenkovski v The State of Western Australia,[30] an individual sentence of 14 years 6 months' imprisonment was imposed in respect of 5 kg of methylamphetamine (as part of a total effective sentence of 17 years' imprisonment) on a high level commercial dealer.
(2)In Santos v The State of Western Australia,[31] an individual sentence of 15 years' imprisonment was imposed in respect of 22 kg of methylamphetamine (as part of a total effective sentence of 15 years' imprisonment) on a pilot who brought the methylamphetamine and 9 kg of MDMA into the State.
(3)In Chen v The State of Western Australia,[32] an individual sentence of 14 years' imprisonment was imposed in respect of 3.6 kg of methylamphetamine on a person who had a significant role in unpacking, weighing and guarding the drugs.
(4)In Chadburne v The State of Western Australia,[33] an individual sentence of 14 years 6 months' imprisonment was imposed in respect of approximately 8 kg of MDMA and an individual sentence of 12 years' imprisonment was imposed in respect of approximately 2 kg of methylamphetamine (as part of a total effective sentence of 16 years 6 months' imprisonment) on a member of a syndicate involved in the transportation and sale of prohibited drugs.
(5)In Gakis, this court upheld a sentence of 14 years 6 months' imprisonment, imposed on a 31-year-old offender with a poor criminal record that included prior drug offences. The sentence related to about 2 kg of methylamphetamine which the offender had acquired and directed to be hidden at a property he owned.
(6)In Gaskell, as noted above, after applying a 12% discount for the plea of guilty, the offender was sentenced by this court to 16 years' imprisonment for one count involving about 21 kg of methylamphetamine, as part of a total effective sentence of 18 years' imprisonment imposed on a high level dealer.
[28] Gaskell [133] - [141]; Gakis v The State of Western Australia [2019] WASCA 25 [34] ‑ [44].
[29] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.
[30] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.
[31] Santos v The State of Western Australia [2016] WASCA 107.
[32] Chen v The State of Western Australia [2017] WASCA 99.
[33] Chadburne v The State of Western Australia [2017] WASCA 216.
More recently, and after the sentencing of the appellant, this court decided Ng v The State of Western Australia.[34] In that case, the 19‑year‑old offender entered Australia illegally by vessel from Hong Kong and was found in possession of 315 kg of methylamphetamine and cash totalling $1,183,500. The offender received a 5% discount under s 9AA of the Sentencing Act for a plea of guilty on the sixth day of his trial. The offender was found to have involved himself in a major international drug smuggling enterprise, but to be at the lowest end of the hierarchy. He had no role in the funding or organisation of the enterprise. He exercised no authority with respect to it. Principally, his job was to obey instructions and to guard the drugs and money. He carried out other duties, including repackaging some of the drugs and, on one occasion, taking delivery of a quantity of cash. He was to be well-rewarded for his participation, although the amount of the reward was not known. This court resentenced the offender to 16 years' imprisonment for the drug offence, as part of a total effective sentence of 17 years' imprisonment for the drug offence and unlawful possession of the cash.
[34] Ng v The State of Western Australia [2020] WASCA 70.
Zanon concerned an appeal against sentence by two offenders, Zanon and Quaid, who were convicted after trial. Quaid operated a drug dealing business on a very significant scale, reaping a significant financial reward. He was at the top or near the top of the drug industry, sourced large quantities of drugs and provided instructions and directions to those in his distribution network. Quaid's drug dealing business was conducted in a sophisticated manner, so as to avoid detection. Zanon was one of a number of couriers used by Quaid. Quaid was convicted of two counts of selling or supplying a prohibited drug, being 8.75 kg and 4 kg of methylamphetamine. Quaid was sentenced to 20 years' imprisonment for the count relating to the 8.75 kg of methylamphetamine, and a total effective sentence of 23 years' imprisonment. Zanon was sentenced to 14 years' imprisonment in respect to the 8.75 kg of methylamphetamine. This court dismissed both offenders' appeals against sentence.

Appellant's role in the offending

The appellant in this case participated in a commercial operation involving a very large quantity of methylamphetamine, which represents the largest quantity of methylamphetamine in a State sentence considered by this court other than the 315 kg involved in Ng. The quantity of drugs involved increases the potential harm which would have resulted from their distribution into the community, and so is a very significant aggravating factor. The appellant's involvement in the offending was not fleeting, and he performed the important task of leasing the property used to warehouse the drugs. He was given access to the property in a manner which demonstrated the high degree of trust placed in him by the organisers of the operation. He participated in the operation for commercial gain, although the amount of that gain is unknown.

However, the appellant's involvement in the operation was apparently at a relatively low level in the criminal syndicate which imported the drugs for the purpose of selling them. There is no evidence to suggest that he was involved in the planning, organisation or funding of the operation. Nor was there any evidence that the appellant exercised any authority over others involved in the syndicate, was conducting his own business or was to share in the profits to be generated from the sale of the drugs.

Personal circumstances

The principal mitigating factor was the appellant's early plea of guilty.
The appellant also had the mitigating effect of prior good character. Further, his isolation from friends and family would make imprisonment more onerous for him. While neither of these factors is weighty given the nature of the offending, they are not irrelevant.

Disposition

In our view, having regard to all of the above factors, the sentence of 19 years 10 months' imprisonment imposed on count 1 was manifestly excessive. While the quantity of methylamphetamine involved was very large, there was no evidence that the appellant's involvement in the operation was other than as a paid worker. In evaluating the appellant's sentence against sentencing standards it is significant that the appellant's sentence was discounted by 22% for his plea of guilty. Without that discount the sentence would have exceeded 25 years' imprisonment. The individual sentence stands well above the sentence imposed or upheld in any previous decision of this court, other than the 20 year individual sentence imposed after trial on Quaid in Zanon. The higher sentences in the range of 14 - 16 years' imprisonment were generally imposed after trial or, in the case Ng, a very late plea of guilty for which only a 5% discount was allowed under s 9AA of the Sentencing Act. Even allowing for the increase in the maximum penalty to life imprisonment, there is a significant disconformity between the sentence imposed in the present case and the sentencing standards which existed prior to the increase in the maximum penalty. In our view, bearing in mind the plea of guilty, that disconformity is too large to be explained by the increased seriousness with which the offence is regarded in light of the increased maximum. The sentence in Trainor, where the maximum penalty was life imprisonment, was 14 years' imprisonment following a plea of guilty. While the quantity of drugs possessed by the appellant was much larger than the offender in Trainor, Mr Trainor had a poor prior record and was involved in the planning and coordinating of the offence.
In so concluding, we recognise that, while the range of sentences customarily imposed is a yardstick by which the sentence in this case may be evaluated, the range of sentences previously imposed is not controlling. Having regard to:
(1) the maximum penalty of life imprisonment for the offence in count 1;
(2) the seriousness of the appellant's offending the subject of count 1, and the place occupied by that offending in the scale of seriousness of offences of the kind committed by the appellant;
(3) the general guidance provided by sentences imposed for broadly similar offending prior to, and since, the increase in the maximum penalty effected by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017;
(4) the need for general deterrence in respect of the possession of trafficable quantities of methylamphetamine with intent to sell or supply;
(5) the appellant's plea of guilty, for which there was a 22% discount;
(6) the appellant's personal circumstances; and
(7) all relevant sentencing factors and principles,
the sentence of 19 years and 10 months' imprisonment was unreasonable or plainly unjust.
In reaching this conclusion, we have taken account of the fact that the severity of the individual sentences imposed for counts 1 and 2 were reduced because the two sentences were to be served wholly concurrently.[35] However, even when that factor is taken into account the sentence for count 1 remains unreasonable or plainly unjust, having regard to the circumstances of the offending, the appellant's personal circumstances and all relevant sentencing principles and standards.
[35] Giglia v The State of Western Australia [2010] WASCA 9 [40].

Resentencing

This court has the necessary material to resentence the appellant. We agree with the sentencing judge that a discount of 22% is appropriate under s 9AA of the Sentencing Act.
Having regard to the above matters, in our view a sentence of 16 years' imprisonment is commensurate with the seriousness of count 1, relating to the 32.572 kg of methylamphetamine. This is a higher sentence than that which would have been appropriate prior to the increase in the maximum penalty, and so gives effect to Parliament's policy in making that legislative change, while being commensurate with the seriousness of the appellant's offending.
The individual sentence of 8 years' imprisonment imposed by the sentencing judge for count 2, relating to almost 5 kg of MDMA, might well be seen as lenient considered in isolation. However, neither party made any complaint about the length of that individual sentence. In all the circumstances, we would not interfere with the individual sentence for count 2.
As noted above, the sentencing judge ordered that the sentence for count 2 be served concurrently with the sentence for count 1. The State submitted that, if this court allowed the appeal, the totality principle would require a degree of accumulation between the sentences on count 1 and count 2.
We recognise that the MDMA offence is a very serious offence in its own right. Generally speaking, the additional criminality involved in offending of that nature would ordinarily require at least some degree of accumulation with other sentences. However, taking account of all of the circumstances of this particular case - including the very long sentence which the appellant will still receive for count 1, his role in the enterprise, his pleas of guilty and the fact that the offending occurred at the same time - we are satisfied that a total effective sentence of 16 years' imprisonment bears a proper relationship to the overall criminality involved in all of the appellant's offending. In our view, it remains appropriate to order that the sentence on count 2 be served concurrently with the sentence on count 1.
The appellant should remain eligible for parole.

Orders

For the above reasons, we would make the following orders:
(1)Leave to appeal is granted on ground 3.
(2)Leave to appeal is refused on grounds 1, 2 and 4.
(3)The appeal is allowed.
(4)The sentences imposed on District Court indictment 2071 of 2019 are set aside and the following sentences are substituted:
(a)Count 1: 16 years' imprisonment.
(b)Count 2: 8 years' imprisonment.
(5)The sentence for count 2 is to be served concurrently with the sentence for count 1.
(6)The appellant is eligible for parole.
(7)The sentences for counts 1 and 2 are taken to have commenced on 28 March 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
31 MARCH 2021