The State of Western Australia v Edwards
[2022] WASCA 141
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2022] WASCA 141
CORAM: BUSS P
MITCHELL JA
LIVESEY AJA
HEARD: 3 OCTOBER 2022
DELIVERED : 15 NOVEMBER 2022
FILE NO/S: CACR 175 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JOSHUA KENNETH EDWARDS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 1160 of 2021
Catchwords:
Criminal law - State appeal against sentence - Two counts of selling or supplying a trafficable quantity of methylamphetamine and one count of dealing with money the proceeds of an offence - Whether individual sentences of 14 years' immediate imprisonment for drug offences are manifestly inadequate - Whether total effective sentence of 14 years' immediate imprisonment infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 563A
Misuse of Drugs Act 1981 (WA), s 6, s 34
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | R F Owen |
| Respondent | : | D Grace KC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Tudori Hager Grubb |
Case(s) referred to in decision(s):
ATH v The State of Western Australia [2021] WASCA 149
Baker v The State of Western Australia [2020] WASCA 117
Blasco v The State of Western Australia [2021] WASCA 26
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262
Curry v The State of Western Australia [2022] WASCA 36
Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188
Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311
Director of Public Prosecutions (Vic) v White [2020] VSCA 37; (2020) 60 VR 292
Gaskell v The State of Western Australia [2018] WASCA 8
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147
Kabambi v The State of Western Australia [2019] WASCA 44
KJL v The State of Western Australia [2021] WASCA 65
McConnell v The State of Western Australia [2020] WASCA 59
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McGrath v The State of Western Australia [2021] WASCA 118
Moodley v The State of Western Australia [2020] WASCA 158
Musulin v The State of Western Australia [2020] WASCA 18
Ng v The State of Western Australia [2020] WASCA 70
Nickson v The State of Western Australia [2021] WASCA 40
Ramachandran v The State of Western Australia [2021] WASCA 54
Staiger v The State of Western Australia [2020] WASCA 99
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v Radford [2022] WASCA 142
Trainor v The State of Western Australia [2021] WASCA 36
Truong v The State of Western Australia [2020] WASCA 177
Ugle v The State of Western Australia [2022] WASCA 135
Walker v The State of Western Australia [2022] WASCA 100
Watson v The State of Western Australia [2022] WASCA 80
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
YLT v The State of Western Australia [2020] WASCA 217
JUDGMENT OF THE COURT:
Summary
On 17 November 2021, the respondent was convicted, on his pleas of guilty, of the following offences committed at Fairbridge on 3 February 2021:
1.two counts of selling or supplying trafficable quantities of methylamphetamine (approximately 119 kg and 43 kg respectively), contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA); and
2.one count of dealing with money ($4,503,630) that was the proceeds of an offence, contrary to s 563A(1)(b) of the Criminal Code (WA).
The respondent received individual sentences of 14 years' imprisonment for each of the drug offences and 8 years' imprisonment for the money offence. The sentences were ordered to be served concurrently, so that the total effective sentence was 14 years' imprisonment. The sentences were backdated to commence on 3 February 2021, to take account of time spent in custody on remand, and the respondent was made eligible for parole.
The State now appeals against the sentences imposed on the respondent on two grounds. Ground 1 contends that the individual sentences for the drug offences were manifestly inadequate. Ground 2 contends that the total effective sentence infringed the first limb of the totality principle. Leave to appeal on these grounds has been granted.
For the following reasons, in our view the individual sentence of 14 years' imprisonment imposed on count 1 (concerning the sale or supply of 119 kg of methylamphetamine) was manifestly inadequate. The sentences imposed on the respondent should be set aside and the respondent should be resentenced to 17 years' imprisonment on count 1 and to a new total effective sentence of 17 years' imprisonment.
Circumstances of the offending
The sentencing judge made the following findings as to the circumstances of the respondent's offending, incorporating the admitted facts which had been read by the prosecutor.[1]
[1] Sentencing ts 15 - 17, 27 - 28.
On Tuesday 2 February 2021, the respondent drove a white Volvo truck, registered in New South Wales, into Western Australia via South Australia. After passing through the Eucla checkpoint, the respondent drove to Southern Cross where he slept in his truck, which was parked in a truck bay next to a service station. At approximately 7 am on Wednesday 3 February 2021, the respondent left Southern Cross and drove in a westerly direction towards Perth. He then drove into the Perth area before continuing in a southerly direction towards Pinjarra.
The respondent stopped his truck on the side of the road on South Western Highway, Byford. He entered the rear of the truck and exited again several minutes later. The respondent left shortly afterwards, continuing southbound on the South Western Highway. At approximately 2.40 pm, the respondent parked in a truck bay abutting the southbound lanes on South Western Highway, Fairbridge.
A white 'Zippy' rental van, driven by Guy Neville Radford, arrived and parked next to the respondent's truck. The respondent got out of the cab of his truck and entered the rear of the truck, from which he handed Mr Radford multiple boxes. Mr Radford loaded the boxes into the Zippy van and left the area.
A white 'Thrifty' rental van then arrived and parked next to the respondent's truck. The van was driven by Nicholas Constantine Diamantopoulos. The respondent again entered the rear of his truck, from which he handed Mr Diamantopoulos multiple boxes. Mr Diamantopoulos loaded the boxes into the Thrifty van and left the area.
At 2.50 pm, police attended the truck bay where the truck was parked and arrested the respondent. He was holding a Samsung mobile 'Ciphr' phone, which is a dedicated encryption communication device. Such a device costs approximately $2,500 - $3,000 for six months' use and requires an ongoing payment of approximately $1,500 for continued six‑monthly use.
During the search of the respondent's truck, police located five individually padlocked suitcases stacked in the rear of the truck. The suitcases were found to contain a total of $4,503,630 in Australian cash. The respondent's possession of that cash is the subject of count 3 on the indictment.
Following the respondent's arrest, police conducted a search of the Zippy van parked at Mr Radford's address in South Yunderup. They located 11 boxes inside the van. Those boxes contained approximately 119 kg of methylamphetamine. The respondent's sale or supply of that methylamphetamine to Mr Radford is the subject of count 1 on the indictment.
Police then conducted a search of the Thrifty van and located four boxes inside. Those boxes contained approximately 43 kg of methylamphetamine. The respondent's sale or supply of that methylamphetamine to Mr Diamantopoulos is the subject of count 2 on the indictment.
A total of 162.74 kg of methylamphetamine was contained in the boxes found in the two vans. The purity of the drug was between 77% and 84%.
The respondent participated in an audio-visual record of interview. He said that he was in Western Australia to do sightseeing and had no particular plans for his visit to the State. He made no admissions in response to questions about the items in his truck or the vans driven by the two co-offenders.
The sentencing judge found that the true explanation for the respondent's offending was as follows. In about mid-2018, the respondent commenced work as a truck driver. In 2019, he started his own truck business and leased a truck. The COVID-19 pandemic hit and business was very tight. The respondent was desperate for money, given the limitations on his business because of COVID-19 and the need to keep making the payments on the truck. In that context, the respondent was approached and agreed to be paid $30,000 for taking the drugs into Western Australia and taking the cash back to New South Wales. The respondent did not know the true weight of the drugs.[2]
[2] Sentencing ts 28.
The respondent was not the beneficial owner of the drugs in the sense of a person entitled to the proceeds of the drugs. Rather, he was tasked with bringing the drugs into Western Australia and providing them to the people who would ultimately distribute them into the community. He was also tasked with taking the cash, which was the proceeds of drug distribution, back to New South Wales. On one level, the respondent was a courier who was very well trusted. However, on another level, those who instructed the respondent knew where he was and where to find him should anything go wrong.[3]
[3] Sentencing ts 29.
We note that the sentencing judge's finding that the respondent was tasked with taking the cash back to New South Wales was not based on any fact asserted by the prosecution or admitted by the respondent. The basis for that finding is not apparent from the material before this court. In this appeal, both parties accepted that no conclusion could be reached as to the provenance or destination of the cash found in the back of the respondent's truck.[4] While the State does not assert this finding to be a material error by the sentencing judge, we will adopt the parties' submissions in this appeal on this topic when coming to resentence the respondent.
[4] See appeal ts 14 - 15, 33.
Personal circumstances
The sentencing judge made the following findings as to the respondent's personal circumstances.[5]
[5] Sentencing ts 30 - 31.
The respondent was 41 years old at the date of sentencing. He was born in New South Wales and was one of five children to his parents' union. His parents separated when the respondent was young, and his mother remarried shortly afterwards. The respondent was raised by his mother and stepfather. The respondent described himself as having a good childhood with good, hardworking parents.
The respondent remains in contact with his family in New South Wales. His family are not well‑off and would not be able to regularly visit the respondent in prison in Western Australia. The respondent was single at the date of sentencing and had no children.
The respondent completed school to year 10 and left to do an apprenticeship in carpentry. He did not complete that apprenticeship as he was offered fencing work. The respondent spent most of his working life doing work on properties in rural New South Wales and country Queensland. He started work as a truck driver in 2018 and then started his own business in 2019.
Aside from suffering some arthritis, the respondent was of sound physical health. Apart from being devastated and very depressed by his current situation, the respondent did not have any psychiatric illness. The respondent consumed alcohol socially and he admitted to using cocaine in the past. However, there was nothing to suggest that either cocaine or alcohol had been problematic for the respondent.
The sentencing judge made the following findings based on six references provided for the respondent:
1.The respondent was described using words like caring, good, loving, proud, intelligent, honest, quiet, respectful and kind. He was seen as a valued brother, uncle and friend, and a member of the various communities in which he lived. The respondent was someone who was willing to do whatever he could to help his friends.
2.The respondent had an ethic for hard work, and was respectful, reliable and honest in an employment environment. The respondent had a wide range of employable skills.
3.Those who knew the respondent well said that this offending was very much out of character for him.
4.Those close to the respondent said that he is genuine in his remorse for the offending and accepted responsibility for the consequences of his actions.
5.Those who knew the respondent well expressed confidence that in the future he will once again contribute positively to society as he has done in the past.
The respondent had a modest criminal record in New South Wales and Queensland. In Queensland, the respondent was convicted in 2016 of possession of a weapon, for which he was fined. In New South Wales, the respondent had been convicted for weapons and drugs offences in around 2007, which had been dealt with by way of fines or bonds. The respondent had also been convicted of drug possession offences in 2015.
Sentencing judge's approach
The sentencing judge identified the following aggravating features of the offending:[6]
1.The weight (162.74 kg) and purity (between 77% and 84%) of the drugs, which would have caused enormous harm if distributed in the community.
2.The large scale of the sophisticated, well-planned and well‑resourced operation, which was illustrated by the quantity of drugs and cash involved in the offending.
3.The nature and level of the respondent's participation in the enterprise, which enabled those higher up in the drug distribution chain to make profits in a way that escaped detection.
[6] Sentencing ts 28 - 29.
The sentencing judge found this to be a very serious instance of this type of offending. However, his Honour observed that the offending was not at the most serious end of the scale, which was probably reserved for people much higher up in the drug distribution trade.[7]
[7] Sentencing ts 29.
The sentencing judge identified the following mitigating factors:[8]
1.The respondent's plea of guilty at the first reasonable opportunity, for which the respondent received a 25% discount under s 9AA of the Sentencing Act 1995 (WA).
2.The judge found that, on the conclusion of the term of imprisonment, the respondent had very good prospects of rehabilitation and going back to being a law-abiding and productive member of society.
[8] Sentencing ts 29 - 31.
The sentencing judge treated the respondent's prior criminal record as essentially neutral to the sentencing process. The respondent was not before the court as a person of prior good character with no offences. However, he did not have a history of prior drug‑related offences involving sale or supply to others that elevated the significance of personal deterrence and community protection as sentencing considerations.[9]
[9] Sentencing ts 31 ‑ 32.
The sentencing judge noted the significance of general deterrence as a sentencing consideration and the consequence that circumstances personal to offenders, including good character and prospects of rehabilitation, are ordinarily afforded less weight.[10] His Honour then imposed the individual sentences referred to at [2] above.
[10] Sentencing ts 32 - 33.
The sentencing judge considered that the respondent's offending was essentially 'part and parcel' of the one criminal enterprise and was satisfied that a total effective sentence of 14 years' imprisonment was a just and appropriate measure of the total criminality involved. His Honour therefore ordered all the sentences to be served concurrently.[11]
[11] Sentencing ts 33.
General principles
The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[12]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[12] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 1: manifest inadequacy
It is convenient to begin by considering whether the individual sentences of 14 years' imprisonment for the drug offences were manifestly inadequate.
Maximum penalty
The maximum penalty for the drug offences is life imprisonment.[13]
Customary sentencing standards
[13] Misuse of Drugs Act s 34(1)(a).
The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia in the following terms:[14]
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)
[14] Gaskell v The State of Western Australia [2018] WASCA 8 [128] ‑ [129].
In Ramachandran v The State of Western Australia,[15] this court reviewed sentencing standards for offences involving the possession, sale or supply of multiple kilograms of methylamphetamine, both before and after the increase of the maximum penalty to life imprisonment.
[15] Ramachandran v The State of Western Australia [2021] WASCA 54 [54] - [60]. See also Watson v The State of Western Australia [2022] WASCA 80.
The State refers to a number of cases, which it classifies in the following manner:
1.Cases involving amounts of between 28 g and 500 g of methylamphetamine, in which individual sentences upheld or imposed by this court range between 2 years 8 months' imprisonment to 7 years' imprisonment.[16] We note that, since the State's written submissions were prepared, this court decided Walker v The State of Western Australia,[17] in which an individual sentence of 8 years 6 months' imprisonment in respect of possession of 373.6 g of methylamphetamine was held not to be manifestly excessive.
2.Cases involving amounts of between 500 g and 1 kg, in which individual sentences upheld or imposed by this court ranged from 5 years 9 months' imprisonment to 9 years 6 months' imprisonment.[18]
3.Three cases involving amounts of over 1 kg:
(a)Ramachandran, in which the offender was resentenced by this court to 16 years' imprisonment in respect of about 33 kg of methylamphetamine;
(b)Trainor v The State of Western Australia,[19] in which a sentence of 14 years' imprisonment was upheld by this court in respect of about 4 kg of methylamphetamine; and
(c)Watson, in which leave to appeal against an individual sentence of 10 years' imprisonment in respect of about 4 kg of methylamphetamine (as part of a total effective sentence of 13 years' imprisonment for the drug offence and possession of about $6 million of the proceeds of drug offences) was refused.
[16] Moodley v The State of Western Australia [2020] WASCA 158; Staiger v The State of Western Australia [2020] WASCA 99; Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262; Blasco v The State of Western Australia [2021] WASCA 26; McConnell v The State of Western Australia [2020] WASCA 59; YLT v The State of Western Australia [2020] WASCA 217; The State of Western Australia v Delaney [2020] WASCA 93; SYL v The State of Western Australia [2021] WASCA 16; KJL v The State of Western Australia [2021] WASCA 65; Baker v The State of Western Australia [2020] WASCA 117; Musulin v The State of Western Australia [2020] WASCA 18. See also Curry v The State of Western Australia [2022] WASCA 36.
[17] Walker v The State of Western Australia [2022] WASCA 100.
[18] Nickson v The State of Western Australia [2021] WASCA 40; McGrath v The State of Western Australia [2021] WASCA 118; ATH v The State of Western Australia [2021] WASCA 149; HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147.
[19] Trainor v The State of Western Australia [2021] WASCA 36.
However, as the respondent points out, and as the High Court emphasised in Wong v The Queen,[20] the gravity of a drug offence is not to be assessed solely or chiefly by the weight of the prohibited drug involved. Rather, the gravity of a drug offence is to be assessed by reference to all relevant circumstances. In addition to the quantity and purity of the drug involved, those circumstances include the nature of the drug enterprise in which the offender was involved, the role that the offender played in the enterprise, the offender's motive for becoming involved in the enterprise, whether the offender pleaded guilty and the offender's personal circumstances.[21] The nature and level of an offender's participation in a drug enterprise is a significant sentencing factor.[22]
[20] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73], applied in McGrath [57].
[21] Ng v The State of Western Australia [2020] WASCA 70 [55]; Truong v The State of Western Australia [2020] WASCA 177 [99].
[22] Gaskell [42]; Truong [100].
The State's submission against any 'tapering' or 'plateauing' of the relationship between the quantity of drugs involved and the length of sentences of imprisonment imposed was primarily based on considerations of general deterrence.[23] For the following reasons, we do not accept that submission.
[23] Appeal ts 8 - 9.
This court must, consistently with Wong,[24] regard general deterrence as a predominant sentencing consideration for serious drug offences. However, theories of general deterrence assume the existence of rational actors who give at least some thought to benefits and costs. Otherwise, potential offenders could not be deterred from committing offences of the relevant kind. That is, any theory of general deterrence requires at least some assessment by potential offenders of whether the potential benefits of committing offences of the relevant kind are outweighed by the risk of apprehension and conviction and/or the severity of punishment which may be expected to ensue.
[24] Wong [64].
It is difficult to see how, on any rational assessment, a reward of a few thousand or tens of thousands of dollars (which is commonly paid to functionaries such as couriers) could justify the risk of the very lengthy prison sentences which inevitably follow from serious drug trafficking convictions. If sentences of around 15 years' imprisonment are insufficient to deter a person from acting in a role such as a drug courier for such a comparatively modest reward, then it is difficult to imagine there will be many cases where sentences of around 20 years' imprisonment would do so. That is, once very lengthy sentences are reached, the marginal general deterrent effect[25] of further increases in sentence severity must at least diminish.
[25] That is, the extent to which increases in the severity of sentences for a kind of offence, without any change in the perceived risk of apprehension and conviction, increases the general deterrent effect of those sentences.
Therefore, in our view, the length of a sentence that is justified by considerations of general deterrence in cases concerning very large quantities of drugs will not have the linear relationship with the weight of the drugs involved in the offending that is suggested by the State's submission. While considerations of general deterrence ordinarily require very long sentences for very serious drug offences, those considerations do not necessarily demand increases in the severity of sentences that are proportional to the quantity of drugs involved, particularly where the benefit obtained by the individual offender for his or her role in the criminal enterprise remains relatively modest.
Of course, the quantity of drugs involved will ordinarily be a matter of importance in determining the sentence which is commensurate with the seriousness of a very serious drug offence for reasons other than general deterrence. The quantity of drugs, and the potential harm which would result from their distribution in the community, may inform sentencing considerations such as denunciation, community protection and appropriate punishment. Marginal general deterrence, particularly in cases where enormous profits are expected from a criminal enterprise, will still be a relevant sentencing consideration. But we do not accept the State's argument that considerations of general deterrence necessarily preclude any 'tapering' or 'plateauing' of the relationship between the quantity of drugs involved and the length of sentences of imprisonment imposed for very serious drug offences involving very large quantities of drugs.
Seriousness of the respondent's offending
While accepting the respondent's submission noted at [38] above, the very large quantity of the drugs involved in this case is a significant aggravating feature of the offence. The quantity of drugs involved increases the potential harm which would have resulted from their distribution into the community. Those running the operation demonstrated a high degree of trust placed in the respondent. He knowingly involved himself in a large scale and well-organised drug distribution operation. The respondent participated in the operation for significant commercial gain. His involvement in the offending was not fleeting, and he performed the important task in the criminal enterprise of transporting the drugs into Western Australia and shielding the organisers of the drug operation from apprehension and punishment.
It must also be recognised that the respondent's involvement in the operation was apparently at a relatively low level in the criminal syndicate. 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 respondent 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.
Matters personal to the respondent
The principal mitigating factor was the respondent's early plea of guilty.
There was also some mitigation in the findings referred to at [24] above. Further, his isolation from friends and family would make imprisonment more onerous for him. While neither of these factors are weighty given the nature of the offending, they are not irrelevant.
Conclusion as to manifest inadequacy
In our view, having regard to the above matters, the individual sentence for count 1 on the indictment (concerning the sale or supply of 119 kg of methylamphetamine to Mr Radford) was manifestly inadequate. Having regard to:
1.the quantity of drugs involved;
2.the respondent's role and position in the drug operation;
3.the respondent's commercial motive for involvement in the operation;
4.the mitigating factors; and
5.all relevant sentencing principles,
in our view it was not open to the sentencing judge to regard a sentence of 14 years' imprisonment as commensurate with the seriousness of the offence charged in count 1. The individual sentence imposed for count 1 on the indictment was, in all the circumstances, unreasonable or plainly unjust.
It is well established that where a sentencing judge's discretion has miscarried in respect of an individual sentence, the whole of the sentencing decision (including all of the other sentences) must be set aside and the offender resentenced.[26] It is therefore unnecessary to determine whether the sentence imposed for count 2 (concerning the sale or supply of 43 kg of methylamphetamine to Mr Diamantopoulos) was manifestly inadequate.
[26] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9]; The State of Western Australia v Quartermaine [2021] WASCA 145 [85] and cases there cited.
Ground 2: totality
Given that we have found the sentence for count 1 to be manifestly inadequate, it is also unnecessary to consider whether the total effective sentence infringes the first limb of the totality principle. However, it follows, from our conclusion that the sentence of 14 years' imprisonment fails to reflect the criminality involved in count 1, that a total effective sentence of the same length fails to reflect the criminality involved in all of the offending.
Residual discretion
This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised.[27]
[27] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[28]
[28] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1]; CMB [55].
In the present case, the respondent contended that this court should exercise its residual discretion to dismiss the appeal if the grounds of appeal were established.[29] In large part, this was so that the parity between the sentences imposed on the respondent and the sentence imposed on Mr Radford was maintained. However, the State has also appealed against the sentences imposed on Mr Radford, and this court has dealt with the State's appeal against Mr Radford's sentences at the same time as the present appeal.[30]
[29] Respondent's submissions, par 16; appeal ts 22, 36.
[30] The State of Western Australia v Radford [2022] WASCA 142.
In addition to issues of parity with Mr Radford, counsel for the respondent refers to the impact of the COVID-19 pandemic in making service of the respondent's sentence more onerous. He also refers to the dearth of cases dealing with crimes of this nature where the maximum penalty is life imprisonment.[31] We are not satisfied that either matter provides a basis for declining to exercise the residual discretion in the respondent's favour. COVID-19 restrictions have impacted the entire prison population, but hopefully will only do so for a further short period. Irrespective of whether or not the respondent's sentence is increased, the respondent will be impacted by those restrictions for what is likely to be a relatively small proportion of his sentence. The fact that there are only a few cases dealing with sentences of very large quantities of methylamphetamine under the current maximum penalty does not, in our view, justify refusal to exercise the residual discretion.
[31] See appeal ts 36 - 37.
In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour.
In the present case, the sentencing outcome for very serious offending of the kind in question requires correction in order to maintain public confidence in the proper administration of criminal justice. The purpose of the State appeal could not properly be achieved merely by declaring the sentence for count 1 and the total effective sentence to be inadequate, but without altering them.[32]
[32] See Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188 [24]; Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311 [79] - [80]; Director of Public Prosecutions (Vic) v White [2020] VSCA 37; (2020) 60 VR 292 [82].
Resentencing
This court, which has the necessary materials, is in a position to resentence the respondent.
The State does not challenge the discount of 25% under s 9AA of the Sentencing Act. Nor is there any challenge to the sentence imposed on count 3 (the money count). We would apply the same discount and impose the same sentence in respect of the money count.
We note that, as indicated at [54] above, since sentencing the respondent has experienced significant restrictions as a result of the prison authorities' response to the COVID‑19 pandemic. This has, among other things, limited the respondent's opportunity to participate in rehabilitation programs. We take that matter into account as a mitigating factor.
In our view, having regard to all relevant circumstances and sentencing principles, a sentence of 17 years' imprisonment is commensurate with the seriousness of the offence charged in count 1. A sentence of 15 years' imprisonment is commensurate with the seriousness of the offence charged in count 2.
In our view, a total sentence of 17 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally, and all relevant sentencing factors. The offending conduct was closely connected and essentially involved the respondent carrying a load of drugs and cash hidden in the back of his truck and supplying the drugs to Mr Diamantopoulos and Mr Radford. The respondent was to receive a single cash payment for his part in the criminal operation. There was nothing to say that he was aware of the contents of the load, other than he must have been aware that it included a large quantity of drugs and cash.
As this court recently noted in Ugle v The State of Western Australia,[33] the imposition of a very long individual sentence can reduce the imperative to impose additional cumulative sentences in order to arrive at a total effective sentence which bears a proper relationship to the overall criminality involved in multiple offences considered as a whole. In our view, in the present case the sentencing aims of general and personal deterrence, rehabilitation, community protection, retribution and appropriate punishment can be accommodated by a 17‑year sentence. In the circumstances of this case, we would order the sentences to be served concurrently to achieve a total effective sentence of 17 years' imprisonment.
[33] Ugle v The State of Western Australia [2022] WASCA 135 [93].
Orders
For the above reasons, we would make the following orders in this appeal:
1.The appeal is allowed.
2.The sentences imposed by the District Court of Western Australia on indictment 1160 of 2021 are set aside and the following sentences are substituted:
Count 117 years' imprisonment.
Count 215 years' imprisonment.
Count 38 years' imprisonment.
3.The sentences imposed on counts 2 and 3 are to be served concurrently with the sentence imposed on count 1 and with each other.
4.The sentences imposed on counts 1 - 3, and the total effective sentence of 17 years' imprisonment, are taken to have commenced on 3 February 2021.
5.The respondent remains eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
15 NOVEMBER 2022
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