SO v The Queen

[2014] WASCA 169

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SO -v- THE QUEEN [2014] WASCA 169

CORAM:   MAZZA JA

HALL J

HEARD:   4 AUGUST 2014

DELIVERED          :   5 SEPTEMBER 2014

FILE NO/S:   CACR 106 of 2014

BETWEEN:   WAI YIN SO

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :McCANN DCJ

File No  :IND 885 of 2013

Catchwords:

Criminal law - Appeal against sentence - Attempt to possess unlawfully imported drugs - Marketable quantity of methylamphetamine imported by post - Whether sentence manifestly excessive

Legislation:

Criminal Code (Cth), s 11.1, s 307.2(1), s 307.6(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A C Mcintosh

Respondent:     No appearance

Solicitors:

Appellant:     Patti Chong Lawyer

Respondent:     Director of Public Prosecutions (Cth)

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

Ferrer‑Esis (1991) 55 A Crim R 231

Iyoha v The Queen [2011] WASCA 46

Lau v The Queen [2011] VSCA 324

OPQ v The Queen [2012] VSCA 115

R v Calis [2013] QCA 165

R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106

R v Harris [2009] QCA 370

R v Ng [2012] WASCA 180

R v Oprea [2009] QCA 184

R v Thathiah [2012] QCA 195

R v Todoroski [2010] NSWCCA 75

1. MAZZA JA:  I agree with Hall J.

2. HALL J:  This is an application for leave to appeal against sentence. 

3. On 9 May 2014 the appellant was sentenced to 7 years and 6 months' imprisonment following his plea of guilty to one charge of attempting to possess a marketable quantity of methylamphetamine that had been unlawfully imported contrary to s 307.6(1) and s 11.1 of the Criminal Code (Cth) (Code). A non‑parole period of 4 years and 8 months was set. The sentence was backdated to commence on 22 March 2013.

4. There is a single ground of appeal.  It is that the sentence imposed was in all the circumstances manifestly excessive.  The particulars of that ground refer to the appellant's plea of guilty, the criminality involved in the offence, the appellant's antecedents and sentences imposed in broadly comparable cases.

The facts

1. The appellant is a resident of Hong Kong.  On 28 February 2013 he booked a tour of Australia.  The tour was to travel to Sydney and then on to Brisbane and Cairns.  The same tour was also booked for another person and it was intended that they would travel together.  However, the appellant eventually travelled alone and arrived in Sydney on 10 March 2013. 

2. Instead of departing for Queensland as planned, the appellant booked a flight to Perth and arrived on 12 March 2013.  He paid cash for the Perth flight.  On arrival he stayed for a few days with a close family friend, who he describes as his god‑sister.  On 15 March 2013 he inspected a room that had been advertised for rent in Balga.  He leased the room for one week at $120 and moved in the following day.

3. On 19, 20 and 21 March 2013 three parcels arrived in Australia from Hong Kong.  Whilst they each had an error with the street number in the address it was clear that they were all intended to be delivered to the house in Balga where the appellant was staying.  Because of the problems with the address details only the second parcel was delivered.  That was because the shipper in Hong Kong contacted FedEx to advise of the correct delivery address.

4. The first parcel had a statement declaring the contents to be a 'flower vase glass'.  An attempt was made by FedEx to deliver the parcel, but due to it being to the wrong street address the parcel was not accepted.  It was

later opened by police officers and found it contained a Buchner funnel.  A Buchner funnel is a piece of laboratory equipment which, together with a Buchner flask, is used in organic chemistry to filter and separate liquid and solid components of a mixture.

1. The second parcel had a declaration that it contained 'candle set, glass'.  This parcel was opened by custom officers and found to contain three large glass candle holders containing wax candles.  The candles tested positive to a presumptive test for methylamphetamine.  The total weight of the impregnated wax was 2,435.2 grams with approximately 16% methylamphetamine.  This was equivalent to 383.5 grams of pure methylamphetamine.  A controlled delivery of this parcel occurred on 22 March 2013.  The appellant took delivery of the parcel.  He signed as 'Gordon' and then took the parcel to his room.  Notwithstanding that this parcel, like the other parcels, was addressed to a 'Mr Cheung' there was no dispute that the appellant was the intended recipient.

2. The third parcel had a declaration that it contained a 'glass flower pot'.  When opened by police this parcel was found to contain a 15 litre Buchner filtering flask.  The flask and funnel were capable of being used to separate the methylamphetamine from the wax.

3. When federal police executed a search warrant they found the unopened second parcel in the appellant's room.  Also found were two mobile telephones, two SIM cards and several pieces of paper with handwriting on them.  One of these had telephone numbers and FedEx details.  The other was in Chinese and included what was alleged to be a formula to extract the methylamphetamine from the wax candles.  The appellant's fingerprints were found on this piece of paper.

4. The police obtained records for the mobile telephones found with the appellant.  These records revealed that he had accessed the FedEx website on a number of occasions and that he had made regular calls to several Hong Kong telephone numbers whilst in Australia.

5. The appellant was interviewed by federal police on 22 March 2013 with the assistance of an interpreter.  He admitted receiving the second parcel, but said he had done so on behalf of another person.  He said that person had been due to travel to Perth but had been delayed.  He said he did not know that the parcel contained drugs.  He said he had travelled to Australia for a holiday.

6. The sentencing judge found that the shipper in Hong Kong intended that the appellant would take delivery of the candles and the equipment and use them (either himself or by giving them to another person) to produce methylamphetamine which could then be cut to approximately 1 kg of street level drugs.  If the methylamphetamine was sold in ounces at 48% purity it would have been worth $239,000.  If sold in grams it would have been worth $799,000.

7. At the sentencing hearing the appellant maintained that he had genuinely come to Australia for a holiday and only been persuaded to assist in accepting the delivery of parcels after he arrived in Perth.  This was not accepted by the prosecution and it was necessary for the sentencing judge to make findings of fact.  His findings in this regard are not disputed. 

8. His Honour concluded that the appellant came to Australia for the purpose of receiving delivery of the drugs and that the offence was one that had been planned in Hong Kong.  The pre‑purchased holiday was a cover story to give an apparently innocent appearance to his travel to Australia.  The appellant came to Australia to place himself at the disposal of the organisers and this explained his abrupt move to Perth once he arrived in Sydney.  It was likely that he received his instructions in Sydney and this was confirmed by a note found in the appellant's possession that was written on a Sydney hotel note paper.  His Honour was satisfied that there was another person who was intended to travel with the appellant and assist him but that this person had abandoned the appellant.

9. His Honour found that the paper with Chinese writing (a translation of which appeared in the prosecution brief) related to the carrying out of a chemical process.  It referred to crushing a substance into a powder then adding water and baking, then straining and dividing the product.  His Honour considered that this was likely to refer to a process that had occurred in the past, rather than a process to separate the drugs from the wax.  Nonetheless, his Honour found that possession of this writing supported an inference that the appellant was an intimate friend or associate of the manufacturer of the drug.

10. His Honour found that the appellant was a low level drug user who was persuaded to participate in the scheme in return for being paid a substantial fee.  He was not an owner of the drugs and did not have a significant financial stake in the venture.  However, he was an essential part of the importation and did not participate on the spur of the moment.

Personal circumstances

1. The appellant was 29 years old at the time of sentencing.  He was raised in Hong Kong as the younger of two children.  His parents separated when he was eight years of age and he had a difficult relationship with his father. 

2. The appellant had limited education but had qualified as a chef.  From 1997, when he was 13 years of age, he began to use drugs and engage in anti‑social behaviour.  His most recent convictions in Hong Kong were in 2011 and 2012 for possession of drugs and obstruction of a police officer.

3. The appellant had been in a relationship with a woman for five years.  He and his partner had been engaged to marry prior to him coming to Australia.  He has no children.  He had been working in the hospitality industry in Macau prior to travelling to Australia.

4. A pre‑sentence report stated that the appellant appeared to accept responsibility and did not minimise his offending behaviour.  He expressed disappointment in himself for the shame he had brought on his family and himself.  He attributed his offending to being easily influenced.  However, the mitigatory value of these statements is reduced by the fact that they were made in the context of claims by the appellant that he had only agreed to receive the parcels once in Australia as a favour to a friend and without knowing that they contained illicit substances.  This is not consistent with the findings of fact made by the sentencing judge.

Sentencing remarks

1. The sentencing judge noted that whilst the appellant had entered a plea of guilty, it was at a very late stage.  The appellant had been charged on 22 March 2013 and had maintained a plea of not guilty until 19 December 2013.  The matter had been listed for an eight day trial that was due to commence on 14 January 2014.  His Honour said that whilst the appellant was entitled to mitigation for facilitating the administration of justice, he was not satisfied that the appellant was sorry for his offending other than because he got caught.

2. His Honour did take into account in the appellant's favour that he would be required to serve his sentence in Australia in circumstances where he has little support and has language difficulties.  However, he noted that the risk of imprisonment in Australia was one that the appellant willingly took when he travelled here to take part in the criminal enterprise.  In any event, his Honour noted that matters personal to the offender had less weight given the serious nature of this offending.

3. His Honour noted the importance of general deterrence.  He also said that as a general principle those who are closer to the source of drugs are to be regarded as more serious offenders than those who are further along the supply chain.  He considered that the appellant was a trusted confidant of the organisers and close to the source of the drugs.  He rejected the characterisation of the appellant as a 'mule'. 

4. After referring to some other cases involving importation of methylamphetamines, his Honour concluded that the appropriate sentence was one of 7 years and 6 months' imprisonment with a non‑parole period of 4 years and 8 months.

Merits of the appeal

1. A ground of appeal that the 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.

2. The maximum penalty for the offence of attempting to possess a trafficable quantity of an unlawfully imported border controlled drug is 25 years' imprisonment and a fine of $850,000 or both: s 307.6(1) and s 11.1 of the Code.

3. As to the seriousness of this offending, the appellant played a pivotal role in an attempt to import a substantial quantity of methylamphetamine into Australia.  He travelled to this country for the purpose of receiving parcels sent by post.  His involvement in the criminal enterprise was planned and continued over several weeks.  In pursuit of the plan he travelled first to Sydney, then to Perth and arranged accommodation to which the parcels could be sent.  Whilst he was not the owner of the drugs, he did engage in this conduct on the basis that he would be paid a fee.  It was clearly intended that these drugs would be sold and distributed in Australia.  The amount of the drugs involved, the equivalent of 383.5 grams of pure methylamphetamine, and the sale value of those drugs, between $239,000 and $799,000, is indicative of the seriousness of the offence.

4. As regards the appellant's personal circumstances, the appellant could not claim youth or lack of a prior criminal record.  The appellant was interviewed by police following his arrest but he minimised his conduct by claiming that he had legitimately come to Australia for a holiday and only been asked to receive the parcels after he arrived.  He maintained that position both when interviewed for a pre‑sentence report and at the sentencing hearing.  Whilst there were some indications that the appellant was a user of drugs, it was not suggested that that was a major factor in his decision to participate in this enterprise.  It is true that the appellant had limited English speaking ability and that any sentence served in Australia would be far from his friends and relatives in Hong Kong.  However, these were factors that were a necessary consequence of the commission of an offence of this nature. 

5. As regards comparable sentences, the most relevant of the cases referred to by the appellant is R v Ng [2012] WASCA 180. That was a case that also involved attempted possession of marketable quantities of methylamphetamine which had been unlawfully imported by way of parcels sent from Hong Kong. There were two parcels in that case, one containing 307.8 grams at 73.8% purity and the second containing 495.9 grams at 77.4% purity. The offender was sentenced to 3 years on the first count and 3 years 1 month and 2 weeks on the second count (after taking into account time spent in custody). Each of those sentences was to be served concurrently with each other but cumulatively upon an existing total effective sentence of 7 years and 6 months imposed for other Federal offences. The overall total effective sentence was therefore 10 years 7 months and 2 weeks. The offender had committed the offences in question whilst on bail for other attempted possession offences. He was convicted after a trial. A Crown appeal against the sentences was allowed and sentences of 10 years' imprisonment on count 1 and 10 years 7 months and 2 weeks' imprisonment on count 2 were substituted. Those sentences were ordered to be served wholly concurrently with each other but partly cumulative on the previous sentence to produce an overall total effective sentence of 13 years 7 months and 2 weeks. It is clear that orders which achieved concurrency or partial cumulacy were influenced by the need to ensure that the total effective sentence in that case did not become disproportionate to the total criminal conduct.

6. In Ng Buss JA examined numerous prior cases of offending against s 11.1 and s 307.6(1) of the Code which had features comparable to that case. He also examined numerous prior cases involving the importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Code or the importation of a trafficable quantity of prohibited drug contrary to s 233B(1)(a)(3) (repealed) or s 233B(1)(b) (repealed) of the Customs Act 1901 (Cth). The maximum penalty for those offences is, or was, 25 years' imprisonment or 5,000 penalty units or both. See [36] to [38]. His Honour noted that offences of attempting to possess unlawfully imported border controlled drugs are not, of their nature, in a less serious category than offences of importing such drugs: See Ferrer‑Esis (1991) 55 A Crim R 231, 239 and R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106. An offence against s 11.1(1) read with s 307.6(1) of the Code carries the same maximum penalty as an offence against s 307.2(1) of the Code.

7. The sentences imposed in Ng do not support a conclusion that the appellant's sentence is manifestly excessive.  Ng was sentenced to terms of 10 years and the equivalent of 11 years' imprisonment for offences that were similar to those of the appellant.  Whilst it is true that Ng was only convicted following a trial, the appellant's plea of guilty was very late.  Ng also reoffended whilst on bail which was an aggravating factor.  However, even making allowances for those differences it could not be said that the sentence of 7 years and 6 months imposed on the appellant is inconsistent with the sentences imposed in Ng.

8. The appellant also referred to R v Schmid [2014] WASCSR 23, R v Harris [2009] QCA 370, R v Todoroski [2010] NSWCCA 75, R v Calis [2013] QCA 165, OPQ v The Queen [2012] VSCA 115, Iyoha v The Queen [2011] WASCA 46, Lau v The Queen [2011] VSCA 324, R v Oprea [2009] QCA 184, R v Thathiah [2012] QCA 195. It is unnecessary to refer to the facts or outcomes in those cases. Some of them involved different types of drugs and significantly different quantities than in the appellant's case. It is sufficient to note that to the extent that they are comparable they do not support a conclusion that the sentence in this case was manifestly excessive.

9. The seriousness of the offence committed by the appellant entirely justified the sentence that was imposed.  The sentence was well within the range of sentences that have been customarily imposed for offences of this type.  There was nothing in the appellant's personal circumstances that could have justified a lower sentence.  The sentence appropriately met the need for general deterrence.  It was not manifestly excessive.

Conclusion

1. In my view the ground of appeal has no reasonable prospects of succeeding.  Leave to appeal should be refused.  I would make the following orders:

   1.Leave to appeal refused.

   2.The appeal is dismissed.