The State of Western Australia v MDZ - [2021] WASCA 95

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MDZ [2021] WASCA 95
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   15 APRIL 2021
DELIVERED          :   27 MAY 2021
FILE NO/S:   CACR 86 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

MDZ
Respondent

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

Catchwords:

Criminal law - State appeal against sentence - Appellant convicted on his plea of guilty of, relevantly, possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another - Very significant mitigation - Whether sentence manifestly inadequate

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1A), s 34(1)(a)

Result:

Respondent's application in an appeal dated 12 April 2021 dismissed
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr L M Fox SC
Respondent	:	Mr S Vandongen SC

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Mark Andrews Legal

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
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
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Ng v The State of Western Australia [2020] WASCA 70
Ramachandran v The State of Western Australia [2021] WASCA 54
The State of Western Australia v Doyle [2017] WASCA 207
Trainor v The State of Western Australia [2021] WASCA 36

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was charged on indictment with three counts.
Count 1 alleged, in essence, that on 29 April 2019, in rural Western Australia, the respondent had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA), and that the offence involved a trafficable quantity of methylamphetamine.
Count 2 alleged, in essence, that on the same date and at the same place, the respondent had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA.
Count 3 alleged, in essence, that on the same date and at the same place, the respondent had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA.
The respondent pleaded guilty to all of the charged offences.
The maximum penalty for count 1 is life imprisonment. See s 34(1A) read with s 34(1)(a) of the MDA.
The maximum penalty for each of counts 2 and 3 is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MDA.
On 10 June 2020, Levy DCJ imposed individual terms of imprisonment as follows:
(a)count 1: 6 years 9 months;
(b)count 2: 3 years 2 months; and
(c)count 3: 4 years 6 months.
The sentencing judge ordered that all of the individual sentences be served concurrently. The total effective sentence was therefore 6 years 9 months' imprisonment. A parole eligibility order was made. The start date for the sentences was 10 June 2020.
The State relies upon one ground of appeal. The ground alleges, in essence, that the individual sentence for count 1 was manifestly inadequate. On 31 August 2020, Buss P referred the State's application for leave to appeal on that ground to the hearing of the appeal.
We would grant the State leave to appeal. However, the ground of appeal has not been made out. The appeal must be dismissed.

Overview of the facts and circumstances of the offending

On 29 April 2019, the respondent was driving his motor vehicle. Police stopped the respondent's vehicle on a highway in rural Western Australia. Police seized and examined the vehicle. The vehicle had been modified to include a hidden compartment. Police found the drugs the subject of counts 1, 2 and 3 in the hidden compartment. The respondent was transporting the drugs.

The confidential schedule to these reasons

The confidential schedule to these reasons contains a detailed account of:
(a)the facts and circumstances of the offending;
(b)the respondent's personal circumstances;
(c)various matters of mitigation which occurred before the sentencing judge imposed sentence; and
(d)various matters of mitigation that will occur after his Honour sentenced the respondent (and after this court determines the State appeal) on the basis of promises made by him.

Counsel for the State's submissions

Counsel for the State noted that the most significant mitigating factors were:
(a)the various matters of mitigation, set out in the confidential schedule to these reasons, which occurred before the sentencing judge imposed sentence; and
(b)the various matters of mitigation, set out in the confidential schedule, that will occur after his Honour sentenced the respondent (and after this court determines the State appeal) on the basis of promises made by him.
Counsel indicated that the State did not take issue on the appeal with the value of the various matters of mitigation set out in the confidential schedule to these reasons or with the discount afforded by the sentencing judge to the respondent on account of those matters. The discount was considerable.
Counsel for the State also noted other relevant mitigating factors, as follows:
(a)his Honour recognised the respondent's pleas of guilty at the first reasonable opportunity by affording the respondent a discount of 25% on the head sentence he would otherwise have imposed for each offence, pursuant to s 9AA of the Sentencing Act 1995 (WA);
(b)his Honour found that the respondent was genuinely remorseful for the offending; and
(c)the respondent suffers from a number of significant health issues.
Counsel also noted that the respondent was not of prior good character. He had prior convictions. Also, the respondent admitted having been involved in transporting prohibited drugs on previous occasions.
Counsel submitted that having regard to:
(a)the maximum penalty for count 1;
(b)the serious nature of the offence and the circumstances in which the offence was committed;
(c)the primacy of the sentencing considerations of punishment and personal and general deterrence;
(d)the respondent's personal circumstances; and
(e)the requirement that the sentence for count 1 be consistent with standards customarily observed for offending of this kind,
the sentence of 6 years 9 months' imprisonment for count 1 was so inadequate as to manifest error.
According to counsel, no circumstances exist which would warrant the court exercising its residual discretion to dismiss the appeal. It was submitted that appellate intervention is required to ensure that proper standards of sentencing are maintained, having regard to the increase in the maximum penalty for offences concerning trafficable quantities of methylamphetamine. It was also submitted that appellate intervention is necessary to ensure that any sentence imposed on the respondent's co-accused, if he is convicted, is not artificially reduced because of the application of the parity principle in circumstances where the respondent's sentence is manifestly inadequate.

Counsel for the respondent's submissions

Counsel for the respondent submitted that it cannot be inferred that the sentencing judge's discretion miscarried to such an extent that it justifies appellate intervention in the context of a State appeal. The sentence imposed on the respondent for count 1 is not, in all the circumstances, unreasonable or plainly unjust.
Counsel argued that, even if this court concludes that the State has established that error can be inferred from the sentencing outcome in relation to count 1, the residual discretion to dismiss the appeal should be exercised.

The merits of the appeal

In the present case, the State does not assert that the sentencing judge made any express error. Also, the State does not challenge the individual sentences imposed for counts 2 and 3. As we have mentioned, the ground of appeal alleges that the individual sentence for count 1 was manifestly inadequate.
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of the kind in question, and the offender's personal circumstances.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[1] The State of Western Australia v Doyle;[2] McAlpine v The State of Western Australia.[3]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[3] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[4]
[4] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
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. 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.
We have had regard to the sentencing dispositions in a range of cases, including the cases cited by counsel for the State and counsel for the respondent. The cases to which we have had regard include Ng v The State of Western Australia;[5] Cochrane v The State of Western Australia;[6] Blasco v The State of Western Australia;[7] Trainor v The State of Western Australia;[8] Ramachandran v The State of Western Australia;[9] and the decisions referred to in those cases. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also significant distinguishing features.
[5] Ng v The State of Western Australia [2020] WASCA 70.
[6] Cochrane v The State of Western Australia [2021] WASCA 5.
[7] Blasco v The State of Western Australia [2021] WASCA 26.
[8] Trainor v The State of Western Australia [2021] WASCA 36.
[9] Ramachandran v The State of Western Australia [2021] WASCA 54.
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. See Green v The Queen;[10] and CMB v Attorney‑General (NSW).[11]
[10] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
[11] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55].
If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the sentencing judge's exercise of discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
We are satisfied that the objective facts and circumstances of the respondent's offending on count 1 were extremely serious. The extremely serious nature of that offending is apparent from the facts and circumstances of the offence, as set out in the confidential schedule to these reasons, including:
(a)the quantity of methylamphetamine;
(b)the respondent's role in transporting the drugs;
(c)the significance of what the respondent did and agreed to do as integral aspects of the continuing operation of a drug distribution syndicate; and
(d)the financial reward which the respondent had been promised for his role in the offending.
However, the extremely serious character of the respondent's offending on count 1 was ameliorated, for sentencing purposes, by the very substantial mitigation referred to at [15] ‑ [16] above, and explained in detail in the confidential schedule to these reasons, and by the other mitigating factors referred to at [17] above.
In our opinion, the sentence of 6 years 9 months' imprisonment imposed by the sentencing judge for count 1 was at or very close to the lower end of the sentencing outcomes open to his Honour on a proper exercise of his discretion.
However, we are not persuaded, having regard to all of the relevant facts and circumstances and all of the relevant sentencing factors (including the sentencing dispositions in previous cases with at least some features comparable to the present case and the very substantial mitigating factors in the present case) that:
(a)this court's intervention is necessary to confirm the sentencing principles applicable to offending of this kind or to maintain proper sentencing standards with respect to such offending; or
(b)the sentence of 6 years 9 months' imprisonment is unreasonable or plainly unjust.
We would not imply or infer error in the exercise of his Honour's discretion from the sentencing outcome.
The ground of appeal fails.
It is unnecessary, in the circumstances, to consider the residual discretion.

The respondent's application in an appeal dated 12 April 2021

The respondent filed an application in an appeal dated 12 April 2021. The application sought leave to rely upon an affidavit of the respondent's lawyer, Trevor Mark Andrews, sworn 12 April 2021, at the hearing of the State's appeal.
In particular, the respondent sought to rely upon the contents of a statement annexed to Mr Andrews' affidavit in support of the proposition that the State's ground of appeal should be dismissed or, alternatively, that the court should exercise its residual discretion to dismiss the appeal.
It is unnecessary, in the circumstances, to consider whether the application should be granted. The appropriate order is that the application be dismissed.

The outcome of the appeal

We would grant the State leave to appeal on the sole ground of appeal. However, the ground of appeal has not been made out. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
27 MAY 2021