The State of Western Australia v Radford

[2022] WASCA 142

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RADFORD [2022] WASCA 142

CORAM:   BUSS P

MITCHELL JA

LIVESEY AJA

HEARD:   3 OCTOBER 2022

DELIVERED          :   15 NOVEMBER 2022

FILE NO/S:   CACR 176 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

GUY NEVILLE RADFORD

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

File Number            :   IND 1920 of 2021

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

File Number            :   IND 517 of 2021

Catchwords:

Criminal law - State appeal against sentence - Possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another, supplying a trafficable quantity of methylamphetamine, unlawful possession of money and dealing with money the proceeds of an offence - Whether individual sentences for drug offences are manifestly inadequate - Whether total effective sentence of 17 years' imprisonment infringes the first limb of the totality principle

Legislation:

Criminal Code (WA), s 417, 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):

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

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

R v E, AD [2005] SASC 332; (2005) 93 SASR 20

Roffey v The State of Western Australia [2007] WASCA 246

SMO v The State of Western Australia [2022] WASCA 70

The State of Western Australia v Edwards [2022] WASCA 141

JUDGMENT OF THE COURT:

Summary

1. On 17 November 2021, the respondent was sentenced to a total effective sentence of 17 years' imprisonment in respect of drug and money offences charged in two indictments.  The sentences imposed are indicated on the following table:

Count	Offence (Offence‑creating section)	Sentence	Accumulation
Indictment 517 of 2021
1	Possession of methylamphetamine (119 kg) with intent to sell or supply (Misuse of Drugs Act 1981 (WA) s 6(1)(a))	14 years	Head Sentence
2	Possession of money ($1,300) suspected to have been unlawfully obtained (Criminal Code (WA) s 417(1))	1 year	Concurrent
3	Possession of money ($24,750) suspected to have been unlawfully obtained (Criminal Code s 417(1))	3 years	Cumulative
4	Possession of money ($10,000) suspected to have been unlawfully obtained (Criminal Code s 417(1))	2 years 6 months	Concurrent
Indictment 1920 of 2021
1	Supplied methylamphetamine (14.6 kg) to another (Misuse of Drugs Act s 6(1)(c))	12 years	Concurrent
2	Dealt with money (approximately $3.5 million) that was the proceeds of an offence (Criminal Code s 563A(1)(b))	8 years	Concurrent
Total Effective Sentence		17 years

1. The respondent was made eligible for parole and the sentence was backdated to 3 February 2021 to take account of time spent in custody on remand.

2. The State now appeals against these sentences on two grounds.  Ground 1 contends that the individual sentences for count 1 on indictment 517 of 2021 and count 1 on indictment 1920 of 2021 are manifestly inadequate.  Ground 2 contends that the total effective sentence of 17 years' imprisonment infringes the first limb of the totality principle.  Leave to appeal has been granted on both grounds of appeal.

3. For the following reasons in our view the individual sentence of 14 years' imprisonment imposed on count 1 on indictment 517 of 2021 (concerning the possession of 119 kg of methylamphetamine with intent to sell or supply it to another) 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 18 years' imprisonment.

Circumstances of offending

1. The sentencing judge made the following findings as to the circumstances of the respondent's offending.[1]

Indictment 1920 of 2021

[1] Sentencing ts 17 - 19, 22 - 23, 27 - 29.

1. Sometime between 20 January 2021 and 7.19 am on 29 January 2021, the respondent was involved in packing approximately 14.6 kg of methylamphetamine (the subject of count 1) and approximately $3.5 million (the subject of count 2) into cardboard boxes.  The boxes were later sealed with brown tape.  The respondent arranged to have the boxes containing the drugs and cash dropped off to a co-accused, Salaheddine Kreidie.   

2. At around 7.20 am on 29 January 2021, a prime mover truck registered in New South Wales was stopped by police conducting a vehicle search operation on Great Eastern Highway in Meckering.  Mr Kreidie was the driver and sole occupant of the prime mover truck, which was towing three trailers with New South Wales registrations.

3. The truck and trailers were conveyed to the Australian Border Force facility in Fremantle, where they were subjected to x-ray examination. The examination revealed a number of suspicious anomalies in the trailers, and a further examination was subsequently conducted.   Five cardboard boxes were located among other cargo in one of the trailers. The first box contained a black sports bag containing several blocks of Australian cash, packaged in a cryovac bag.  The second box contained 14.6 kgs of methylamphetamine, which had been placed in a red bag and then in a black zip-up bag.  The third box contained a tool bag and a backpack in which further large amounts of Australian cash had been placed in cryovac bags. The fourth box contained a black zip-up bag in which several large blocks of Australian cash had been packaged in cryovac bags.  The fifth box contained a blue bag with brown handles, in which a large block of Australian cash had been packaged in cryovac bags.

4. The respondent's DNA profile was identified on one of the cardboard boxes and a bag located inside the box.  The respondent did not participate in an electronically recorded interview.

Indictment 517 of 2021

1. On 3 February 2021, the respondent met Joshua Kenneth Edwards in a truck bay in Fairbridge.  Mr Edwards had arrived at that location in a white Volvo truck which he had driven into the State from South Australia.  The respondent arrived in a white 'Zippy' rental van.  Mr Edwards unloaded boxes from the Volvo and passed them to the respondent who then loaded them into the Zippy van.

2. At 2.51 pm, on 3 February 2021, police attended the respondent's South Yunderup residence and conducted a search of the white Zippy rental van which was parked in the driveway.  Police located 11 cardboard boxes containing quantities of methylamphetamine ranging from 9 ‑ 13 kg with an overall average purity of 81%.  The total weight of methylamphetamine seized was 119.05 kg.  This methylamphetamine was the subject of count 1 on indictment 517 of 2021.

3. The respondent admitted hiring the white Zippy van and putting the boxes in the van.  He declined to make any comment as to any knowledge of the contents of the boxes and how he came to be in possession of them.

4. Police then conducted a search of the respondent's residence.  They located $1,300 in a kitchen drawer (count 2), $24,750 in a walk-in robe (count 3) and $10,000 in a gun safe in the garage (count 4). 

Respondent's role

1. The respondent was approached and offered $40,000 to commit the offences the subject of count 1 on indictment 517 of 2021 and the offences the subject of counts 1 and 2 on indictment 1920 of 2021.

2. In relation to the offences charged in indictment 1920 of 2021, the respondent was instructed to collect the drugs and cash from a location and drive to a second location.  At the second location the respondent and another person took the 14.6 kg of methylamphetamine out of a bag and boxed it.  The respondent was told to take the cash and the methylamphetamine and drop it off on the side of the road at a pre‑determined location.  He never met the person who picked up the drugs and money from that location.

3. In relation to the offence charged in count 1 of indictment 517 of 2021, the respondent agreed to collect the drugs from Mr Edwards and drive them to his home, where they would be collected by a third person. 

4. The money the subject of counts 2 - 4 on indictment 517 of 2021 represented the remaining balance of the $40,000 the respondent was paid to commit the offences the subject of indictment 1920 of 2021 and indictment 517 of 2021.

Personal circumstances

1. The sentencing judge made the following findings as to the respondent's personal circumstances at the time of sentencing.[2]

   [2] Sentencing ts 28 - 29, 31.

2. The respondent was 52 years old.  He is one of three sons to his parents' union.  The respondent's siblings and parents remain supportive of him.  The respondent is single and does not have any children.

3. The respondent left school at year 11.  He had a solid work history in various fields, including in the maritime industry and doing work on a vineyard.  The respondent became involved in a printing business with a friend.  The friend died and the business failed, leaving the respondent with significant debts.  The respondent had drawn out as much as he could on his superannuation and was repaying $1,500 per week to the bank.  He felt he was 'suffocating' under financial debt at the time he was approached to commit the current offences.

4. The respondent has some issues with methylamphetamine use.

5. The sentencing judge made the following findings based on references provided for the respondent by his parents, brother and a long-term friend:

   1.The respondent is described using words like 'generous' and 'wonderful' and as someone 'without a bad bone in his body'.

   2.The respondent contributes to the communities in which he lives.  Prior to his incarceration, the respondent was a volunteer fire fighter and in the past had been a member of community football clubs.

   3.Those close to the respondent see his deep and genuine remorse for his offending.

   4.Those close to the respondent affirm their support for him whilst in custody and on his release.

6. The respondent had only a very minor criminal record and came before the court as someone of good character.

Sentencing judge's approach

1. The sentencing judge identified the following aggravating features of the offending:[3]

   1.The weight and purity of the methylamphetamine, the weight being just over 133 kg in total and the purity being 56 - 80% for indictment 1920 of 2021 and 81% for indictment 517 of 2021.

   2.The large scale of the sophisticated, well-planned and well‑resourced operation as illustrated by the quantities of drugs and cash (about $3.5 million).

   3.The nature and level of the respondent's participation in the enterprise, which was an essential role in the continued operation of the criminal enterprise.  His role as an expendable worker enabled those higher up in the drug distribution chain to make profits in a way that escapes detection.

   [3] Sentencing ts 29 - 30.

2. 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 that was reserved for people much higher up in the drug distribution trade.[4]

   [4] Sentencing ts 30.

3. The sentencing judge identified the following mitigating factors:[5]

   1.The respondent's plea of guilty at the first reasonable opportunity, for which he received a 25% reduction 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 the community.

   [5] Sentencing ts 30 - 32.

4. The sentencing judge noted the significance of general deterrence as a sentencing consideration for serious drug offending and the consequence that mitigatory circumstances personal to offenders, including good character and prospects of rehabilitation, are ordinarily afforded less weight.[6]

   [6] Sentencing ts 32 - 33.

5. The sentencing judge had regard to the sentence of 14 years' imprisonment which he had just imposed on Mr Edwards for the sale or supply of the 119 kg of methylamphetamine to the respondent.  The sentencing judge found that Mr Edwards' involvement was more or less the same as that of the respondent.  Each of them was paid more or less the same amount of money to perform an essential task in the drug distribution process.  Both had the benefit of the maximum reduction for a plea of guilty and their personal circumstances were not materially different.  The sentencing judge regarded the two men as equally culpable in relation to the offending the subject of count 1 on indictment 517 of 2021.[7]

   [7] Sentencing ts 33 - 34.

6. The sentencing judge then imposed the individual sentences referred to in the table at [1] above.

7. The sentencing judge considered that the fact that the respondent committed two separate series of offences justified some measure of accumulation.  His Honour considered a total effective sentence of 17 years' imprisonment to be a just and appropriate measure for the total criminality involved in the respondent's offending.  He gave effect to that conclusion by ordering the sentence for count 3 on indictment 517 of 2021 to be served cumulatively upon the sentence for count 1 on that indictment.  The other sentences were ordered to be served concurrently.[8]

   [8] Sentencing ts 34.

Disposition of grounds of appeal

1. In The State of Western Australia v Edwards,[9] we have concluded that the individual sentence of 14 years' imprisonment imposed on Mr Edwards for selling or supplying 119 kg of methylamphetamine to the respondent was manifestly inadequate.  The same reasoning leads us to the conclusion that the sentence imposed on the respondent in this matter for count 1 on indictment 517 of 2021 was also manifestly inadequate.  The criminality of both offenders was substantially the same, having regard to the nature of the offending and the similar personal circumstances of the two men.  Counsel for both parties in effect accepted the criminality involved in the respondent's and Mr Edwards' commission of the common offence to be broadly equivalent.[10]

   [9] The State of Western Australia v Edwards [2022] WASCA 141.

   [10] See appeal ts 13, 16, 17, 21 - 22, 25.

2. Error having been established in respect of count 1 on indictment 517 of 2021, it is therefore necessary to resentence the respondent in respect of all offences.  It is therefore unnecessary to determine whether the individual sentence for count 1 on indictment 1920 of 2021 is manifestly inadequate or whether the total effective sentence of 17 years' imprisonment infringes the first limb of the totality principle.

Residual discretion

1. 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. The relevant principles are referred to in Edwards.[11]  The observations in Edwards about the application of those principles to that matter apply equally to the respondent in this matter. 

   [11] Edwards [51] - [52].

2. An additional matter raised in relation to the respondent concerned his age.  Senior counsel for the respondent also contended that the respondent would be nearly 70 years old by the time of his release under his current sentence.  It was submitted that to further increase the total effective sentence would be to impose a crushing sentence on the respondent.  However, we are not satisfied that an increased sentence would be crushing, in the sense that it would destroy any reasonable expectation of a useful life after release, so as to engage the second limb of the totality principle.[12]  Further, as Doyle CJ observed in R v E, AD:[13]

   Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed.  The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing.  At the end of the day if that is what is called for, that is the sentence that must be imposed.

   [12] See Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [49]; Roffey v The State of Western Australia [2007] WASCA 246 [25].

   [13] R v E, AD [2005] SASC 332; (2005) 93 SASR 20 [38] adopted in SMO v The State of Western Australia [2022] WASCA 70 [54].

3. In our view, the respondent's age at the time of release does not preclude this court from exercising its residual discretion to allow the appeal or, in all the circumstances, provide a basis for the court to decline to do so.

4. In our view, intervention in the present case, as in Edwards, 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.

5. 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 on indictment 517 of 2021 to be inadequate, but without altering it. [14]

   [14] 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

1. This court, which has the necessary materials, is in a position to resentence the respondent.

2. The State does not challenge the reduction of 25% under s 9AA of the Sentencing Act.  Nor is there any challenge to the sentences imposed for the money counts.  We would apply the same reduction and impose the same sentences in respect of the counts involving the quantities of cash.

3. We note that, 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 have taken that matter into account as a mitigating factor.

4. 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 of indictment 517 of 2021. A sentence of 14 years' imprisonment is commensurate with the seriousness of the offence charged in count 1 of indictment 1920 of 2021.

5. In our view, a total effective sentence of 18 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. 

6. There was a relationship between the offending charged in the two indictments, in that they were conducted for the same criminal syndicate, the period separating the offending was short and the respondent received a single payment of $40,000 for agreeing to commit the offences.  However, the respondent did engage in dealings involving very substantial quantities of prohibited drugs (totalling 133.6 kg) on two separate occasions.  He also agreed to deal with about $3.5 million representing the proceeds of drug dealing.  In our view, some degree of accumulation of the sentences is required to reflect the overall criminality involved in all of the offending.  However, the need for accumulation is reduced somewhat by the long sentence to be imposed for count 1 on indictment 517 of 2021, which largely achieves sentencing aims of retribution, punishment, community protection, deterrence and rehabilitation.[15]  The age of the respondent on release is also a factor tending to reduce the need for accumulation of the sentences.

   [15] See Ugle v The State of Western Australia [2022] WASCA 135 [93] and Edwards [62].

1. Counsel for the State was critical of the sentencing judge's decision to accumulate the sentence imposed on count 3 of indictment 517 of 2021 upon the sentence imposed on count 1 of the same indictment.[16]  In our view, there is no merit in that criticism.  As was noted in Roffey,[17] where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.  In our view, it is convenient in the present case to set the total effective sentence which we consider to be appropriate by ordering the sentence for count 2 on indictment 517 of 2021 to be served cumulatively on the sentence imposed for count 1 on that indictment (rather than reducing one of the sentences on indictment 1920 of 2021 for totality and ordering the accumulation of that sentence).  The other sentences should be served concurrently with the sentence on count 1 of indictment 517 of 2021.

   [16] See appeal ts 17.

   [17] Roffey [26].

Orders

1. 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 517 of 2021 are set aside and the following sentences are substituted:

   Count 117 years' imprisonment.

   Count 21 year's immediate imprisonment.

   Count 33 years' immediate imprisonment.

   Count 42 years 6 months' immediate imprisonment.

   3.The sentences imposed by the District Court of Western Australia on indictment 1920 of 2021 are set aside and the following sentences are substituted:

   Count 114 years' imprisonment.

   Count 28 years' imprisonment.

   4.The sentence imposed on count 2 of indictment 517 of 2021 is to be served cumulatively upon the sentence imposed on count 1 of indictment 517 of 2021.

   5.The sentences imposed on counts 3 - 4 of indictment 517 of 2021 and counts 1 - 2 of indictment 1920 of 2021 are to be served concurrently with the sentence imposed on count 1 of indictment 517 of 2021 and with each other.

   6.The sentence imposed on count 1 of indictment 517 of 2021, and the total effective sentence of 18 years' imprisonment, are taken to have commenced on 3 February 2021.

   7.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