The State of Western Australia v YCL - [2024] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YCL [2024] WASCA 124
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   23 MAY 2024
DELIVERED          :   7 OCTOBER 2024
FILE NO/S:   CACR 104 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

YCL
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BLACK DCJ
File Number            :   IND XXX of XXXX

Catchwords:

Criminal law - State appeal against sentence - Drug offences - Whether individual sentences manifestly inadequate - Whether total effective sentence infringed first limb of totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1), s 31(4)
Criminal Procedure Act 2004 (WA), s 129(3)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a), s 34(1)(aa)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	K C Cook
Respondent	:	K Robson

Solicitors:

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

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

ATH v The State of Western Australia [2021] WASCA 149
Carlucci v The State of Western Australia [2019] WASCA 37
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
Humes v The State of Western Australia [2023] WASCA 110
Jiang v The State of Western Australia [2020] WASCA 7
Musulin v The State of Western Australia [2020] WASCA 18
Ngo v The State of Western Australia [2007] WASCA 221
Nguyen v The State of Western Australia [2018] WASCA 162
The State of Western Australia v Pereira [2023] WASCA 162
Tran v The State of Western Australia [2015] WASCA 218
Tricoli v The State of Western Australia [2011] WASCA 74
VRW v The State of Western Australia [2022] WASCA 177

JUDGMENT OF THE COURT:

This is a State appeal against sentence under s 24(1) of the Criminal Appeals Act 2004 (WA).
The respondent was charged on indictment in the District Court with two offences contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Count 1 alleged that on 19 March 2022, at a Perth suburb, the respondent had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, and that the offence involved a trafficable quantity of methylamphetamine. Count 2 alleged 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. The maximum penalty for these offences is life imprisonment (count 1) and 25 years' imprisonment or a fine of $100,000, or both (count 2).[1]
[1] Misuse of Drugs Act, s 34(1)(a), s 34(1)(aa).
On 24 August 2023, the respondent was convicted on his pleas of guilty of both offences. On that same day, he was sentenced by Black DCJ to 18 months' immediate imprisonment on count 1, and 3 years 6 months' immediate imprisonment on count 2. The sentencing judge ordered that the sentence on count 1 be served concurrently with the sentence on count 2. Thus, the total effective sentence imposed upon the respondent was 3 years 6 months' immediate imprisonment. The respondent was made eligible for parole. The sentences were backdated to commence on 23 July 2023.
In brief terms, the respondent was found in possession of 139 g of methylamphetamine with a purity of 78%, and 558 g of cocaine with a purity of between 16% and 19%. The prohibited drugs were located at the respondent's house, in a pencil case found in a black backpack belonging to him. The prohibited drugs had been sent via post to the respondent's house. The respondent's role was to temporarily keep the drugs and then to deliver them when and as instructed. The respondent was paid a relatively small sum of cash in return for each delivery. The respondent had previously undertaken an almost identical role on three other occasions, for which he was not charged. On each such occasion, the respondent was paid between $300 and $500 in cash. The sentencing judge considered the respondent to be at the 'absolute bottom' of the drug distribution chain.
The State relies on three grounds of appeal, all of which allege implied error. Grounds 1 and 2 allege that the individual sentences for each count were manifestly inadequate. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle. Leave to appeal has been granted on grounds 1 and 3. The question of leave to appeal on ground 2 was referred to the hearing of the appeal.[2]
[2] By order of Buss P on 13 November 2023.
In our opinion, each of the grounds of appeal has been made out. There is no room for the application of the residual discretion. The appeal must be allowed, and the respondent resentenced. Our reasons for these conclusions are as follows.

The facts

As required by the Criminal Procedure Act 2004 (WA), the prosecutor read to the court a statement of material facts.[3] No issue was taken by defence counsel or the sentencing judge with the contents of the statement. Although not expressly adopted by her Honour, it is apparent from the sentencing remarks that the respondent was sentenced on the basis of the statement of facts as read by the prosecutor. The facts are briefly summarised below.[4]
[3] Criminal Procedure Act, s 129(3).
[4] See ts 10 - 14.
Western Australian Police commenced an operation to investigate a suspected established criminal network, which included the respondent and at least two others, being AA and BB.
Prior to the events on 19 March 2022, it appears that AA had requested BB to recruit others who would be willing to receive or hold onto 'deliveries' of prohibited drugs. The respondent and BB were friends, and, at BB's request, the respondent agreed to receive the packages at his house and temporarily hold onto them until directed.
Pursuant to this arrangement, the respondent took possession of three packages between January 2022 and March 2022. Each package was described as being approximately the size of a pencil case and appeared to contain wooden pencils. After the respondent took possession of each package, he and BB would meet. At each meeting, the respondent would provide the packages to BB, who then paid him a sum of cash ranging between $300 and $500. BB then distributed the prohibited drugs in accordance with instructions received from AA. The respondent was not charged with any offence in connection with these transactions.
On 4 March 2022, police officers investigating the suspected criminal network obtained telephone intercept warrants for mobile telephone services associated with AA and BB. Their mobile telephone calls and text messages were monitored and recorded between 4 March 2022 and 19 March 2022.
On or around 18 March 2022, a prepaid express Australia Post envelope was delivered to the respondent at his house. The envelope contained the prohibited drugs the subject of counts 1 and 2.
On 18 March 2022, police intercepted a telephone conversation between the respondent and BB. During that call, the respondent asked BB if he wanted to catch up for a coffee. BB suggested that the pair meet the following day, but the respondent was reluctant to delay the meeting, stating, '… I was trying not to keep it for too long'. BB responded that the delay was necessary because he had not yet received the 'paperwork' (meaning the cash to pay the respondent). It is clear that the purpose of the meeting was for the respondent to exchange the prohibited drugs in the envelope for a cash payment.
Later that day, at approximately 9.20 pm, police conducted a traffic stop of BB's vehicle. BB was arrested and conveyed to a police station.
On 19 March 2022, the respondent and AA exchanged text messages using the encrypted message application, Signal. AA sent a message to the respondent telling him to 'hide everhring [sic]', 'Bury it somewhere', and 'Delete everything'.
Later that day, AA sent three further messages to the respondent, the effect of which was to inform the respondent that BB had been arrested and that the respondent's house was not safe. The respondent replied, 'So I destroy it then'. AA responded, 'Nope just make sure it's buried or [sic] your property'.
On 19 March 2022, police executed a Misuse of Drugs Act search warrant at the respondent's house. Police located the black backpack behind the television in the living room, which the respondent identified as his. Inside the backpack was a pencil case which contained the prohibited drugs. Photographs included in the prosecution brief show a pencil case, inside of which was a cryovac bag of prohibited drugs packed within a bundle of coloured markers, and two other cryovac bags among loose pencils and markers.
Following his arrest, the respondent cooperated with Western Australian law enforcement authorities. The nature of his past cooperation is set out in a confidential memorandum to these reasons. Publication of this confidential memorandum will be suppressed in the interests of justice.

The respondent's personal circumstances

The sentencing judge made few express findings as to the respondent's personal circumstances in her sentencing remarks. Much of what follows is derived from the written sentencing submissions filed on behalf of the respondent.[5]
[5] Defence sentencing submissions, 21 August 2023.
At the time of offending, the respondent was 34 years of age. He was 35 years old at the date of sentencing.
The respondent is part of what was described in the sentencing proceedings as a loving and caring family.[6] It appears that he was bullied at school. After leaving school in year 11, he commenced an apprenticeship, but he did not complete it. He then worked in a number of occupations, including fruit picking and packing, and warehouse work.
[6] ts 28.
When the respondent was 26 years of age, his parents moved to Perth. They separated shortly after the move and the respondent's mother returned to her State of origin. The respondent's father remained in Perth. At the age of 27, the respondent came to Perth to be with his father. About two years later, he met his partner, with whom he now has two children.
While in Perth, the respondent started a business which was adversely affected by the COVID‑19 pandemic. It appears that the respondent became involved in the offending as a result of the financial strain on his business.
At the time of his arrest, the respondent was the primary caregiver of his elder child, who was 4 years old. This child was said to suffer from an unspecified mental impairment. The respondent's partner learned she was pregnant with their second child after the respondent's arrest. With the respondent's agreement, she and their elder child moved interstate where she has greater familial support. Prior to being sentenced, the respondent's partner gave birth to their second child. It was not disputed in the sentencing proceedings that the respondent very much missed his children, and that his older child had suffered due to the respondent's absence.
The respondent had a limited criminal history, which the sentencing judge described as 'irrelevant' in the course of defence counsel's plea in mitigation.[7]
[7] ts 29.
The sentencing judge received a number of letters from family members who spoke positively of the respondent's qualities, including as a parent. Her Honour made particular reference to a letter from the respondent's father, which she said, 'helped [her] get a really good idea of what a lovely family [the respondent] comes from'.[8]
[8] ts 21.
In defence counsel's written sentencing submissions, it was said that the respondent had been a cannabis user since the age of 19. At the age of 20, the respondent was diagnosed with Intermittent Explosive Disorder.[9] No expert report was put before the court to confirm this diagnosis, nor to explain the nature of the disorder or how it affects the respondent. It was not suggested that the disorder was causally related to the offending or provided any mitigation. The existence of the disorder was only relevant because it was said that the respondent self‑medicated using cannabis as a means of treatment. Since his arrest, the respondent has been prescribed antidepressant and anti‑anxiety medications, and has ceased using cannabis. The respondent was not a user of other illicit drugs.
[9] Defence sentencing submissions, 21 August 2023, pars 15 - 16.

The sentencing proceedings

The sentencing judge sentenced the respondent immediately following the oral sentencing submissions of the parties. Her Honour prefaced her sentencing remarks by stating that they would be 'very brief … because a lot of this has already been canvassed on the record'.[10]
[10] ts 35.
In order to put the sentencing remarks in context, it is necessary to refer to some aspects of the sentencing proceedings. Her Honour appeared favourably disposed to the respondent's case. This is clear from some of the observations made by the sentencing judge during oral sentencing submissions that:
(a)the respondent's role in the offending was predominantly as a courier, although her Honour also acknowledged that he was 'the package holder and a passer‑on‑er';[11]
[11] ts 27.
(b)the respondent's involvement in the offences involved 'a very low level of culpability in the scheme of the people involved in this';[12]
(c)the respondent was 'dragged' into the offending by BB;[13]
(d)the respondent was 'genuinely naïve', and that her Honour had never seen a courier so badly paid;[14]
(e)the respondent was a 'patsy being used by more powerful players';[15]
(f)personal deterrence was not a matter of great significance and that the respondent had 'learn[ed] his lesson', and would not engage in this kind of offending behaviour again;[16]
(g)the only reason a term of immediate imprisonment needed to be imposed on the respondent was because of general deterrence;[17]
(h)with respect to the respondent's past cooperation, her Honour indicated that she would be giving a 'separate discount';[18]
(i)the respondent was to be sentenced 'on the basis of prior good character';[19]
(j)the purity of the cocaine was 'the lowest purity' her Honour had encountered in her time on the bench;[20] and
(k)based on a letter her Honour received from the respondent's father, the respondent came from 'a lovely family'.
[12] ts 20.
[13] ts 20.
[14] ts 20.
[15] ts 24.
[16] ts 29.
[17] ts 29.
[18] ts 30.
[19] ts 30.
[20] ts 32.
At one point in defence counsel's plea in mitigation, counsel accepted that the respondent was an important cog in the drug operation. Her Honour, having just commented that the respondent was a lowly paid, low‑level courier, interjected 'here I am trying to make a plea [in] mitigation to you'.[21]
[21] ts 27.
Defence counsel referred to two recent cases decided in this court, being VRW v The State of Western Australia[22] and Humes v The State of Western Australia.[23] Her Honour considered that the respondent's criminality was less than that of the offenders in those cases.[24]
[22] VRW v The State of Western Australia [2022] WASCA 177.
[23] Humes v The State of Western Australia [2023] WASCA 110.
[24] ts 26.
The prosecutor accepted that the respondent was on the 'bottom rung' of the hierarchy involved in the offending but, nevertheless, a degree of trust had been reposed in him and he had received some remuneration, albeit 'very low remuneration' for his role.[25] The prosecutor accepted that it was open to her Honour to order that the sentences of immediate imprisonment should be served concurrently.[26] It was also accepted by the prosecutor that the respondent should receive a discount under s 9AA of the Sentencing Act 1995 (WA) commensurate with the pleas of guilty being entered at the first reasonable opportunity, as well as an additional reduction for his past cooperation with law enforcement.[27]
[25] ts 33 - 34.
[26] ts 17.
[27] ts 35.

The sentencing remarks

The sentencing judge began her sentencing remarks with a brief summary of the respondent's offending. After noting the weights and purities of the prohibited drugs, her Honour remarked:[28]
It's fair to say there could have been 100 grams in there or a kilogram in there and you really didn't know one way or the other, all you knew was whatever it was could fit inside a pencil box and it sounded like it might have pencils in it.
[28] ts 35.
Her Honour acknowledged that the respondent was to be sentenced on the basis that the offending was not isolated and that he had been involved in the venture, along with others, 'for a period of time'.[29]
[29] ts 35.
Her Honour found that the respondent was at 'the absolute bottom of the chain for this transaction', and that the role the respondent played in the offences, 'was simply to receive a package, to hold onto it and to pass it on when requested'.[30] The sentencing judge acknowledged that the respondent would receive 'a few hundred dollars as [his] reward',[31] which, while it 'technically' meant that the respondent engaged in the offending 'for commercial reasons', was 'an extremely low amount of money'.[32]
[30] ts 36.
[31] ts 36.
[32] ts 36.
Her Honour found that the respondent was 'clearly naïve' and was taken advantage of by those higher up in the chain.[33] Her Honour said that the respondent 'must have been in need of the additional money to have engaged in such risky behaviour for such little reward'.[34] Her Honour's remarks about the respondent's culpability included that his 'culpability in this offence is really as low as it could possibly be for a person who performs the role of courier in this particular case',[35] and that he was 'recruited by [BB] and [was] sucked into a chance to make some quick money'.[36]
[33] ts 37.
[34] ts 37.
[35] ts 37.
[36] ts 37.
As to the respondent's personal circumstances, her Honour said that she had regard 'to the very significant personal consequences to [him] as a result of [his] offending'.[37] Her Honour noted that she appreciated the 'distress' the respondent had experienced as a result of not being able to see his son, whom her Honour accepted had been traumatised as a consequence of the police coming to the house because of the respondent's conduct. Her Honour recognised that the respondent had been incarcerated for the duration of his partner's second pregnancy, and, although he was granted bail at the time of his second child's birth, he would miss his children growing up during the period of his imprisonment.[38]
[37] ts 37.
[38] ts 37.
The sentencing judge described the respondent as being a person of good character, and considered that there was little need for personal deterrence because her Honour had 'every confidence' that the respondent would 'never find [himself] back here again'.[39]
[39] ts 38.
The sentencing judge acknowledged that the respondent entered his pleas of guilty at a very early stage in the proceedings, and gave a 22% discount pursuant to s 9AA of the Sentencing Act. Her Honour gave an additional 10% discount for the respondent's past cooperation. She found the respondent was remorseful.
Her Honour acknowledged that because of the importance of general deterrence and the large quantities of drugs involved in the offences, she had no option but to impose a sentence of immediate imprisonment. However, her Honour stated that she would be imposing a sentence that was substantially lower than was ordinarily imposed for offences of this type. Her Honour observed that offending of the type engaged in by the respondent, on a commercial scale, would 'often see sentences around seven, eight, nine [years]'.[40]
[40] ts 38.
After imposing the individual sentences on counts 1 and 2 set out at [3] above, her Honour ordered that the sentences be served concurrently. Her Honour considered that concurrency was appropriate as the prohibited drugs were contained in the one package, which the respondent had not opened. After announcing that the total effective sentence imposed was 3 years 6 months' immediate imprisonment, her Honour concluded her sentencing remarks by addressing the respondent, and stating:[41]
While that may seem like a long time, I can tell you this much. That is well lower than any of the cases [defence counsel] referred me to and you're certainly at the lowest end of the scale for these kind of quantities of drugs.
You have cooperated. You've done everything in your power to make good your wrongs and it seems to me that you can receive the benefit of that by what is, for these sort of offences, a very low sentence. So three and a half years.
[41] ts 38.

The appellant's submissions

At the hearing of the appeal, counsel for the appellant submitted that the sentences imposed on counts 1 and 2, and the total effective sentence, failed to adequately reflect the respondent's criminality. Counsel submitted that the individual sentences, in particular the sentence imposed on count 1, failed to give due regard to the maximum penalties for each offence and failed to conform with the standards of sentencing customarily imposed.[42]
[42] Appeal ts 2 - 3, 6, 10.
Counsel for the appellant submitted that the respondent undertook a significant, ongoing and essential role in the commercial distribution of drugs into the community for financial reward. She contended that while the respondent's reward was small, this factor was not of great significance when weighed against the respondent's objective criminality. The respondent's appearance as a person of good character had allowed others in the distribution chain, particularly AA and BB, to take 'a hands off approach' and not be seen to be handling the drugs themselves.[43]
[43] Appeal ts 3 - 4.
Counsel for the appellant characterised the sentencing judge's finding that the respondent was 'naïve' as 'generous', but acknowledged that it was not challenged by the appellant as an alleged error.[44] Indeed, counsel accepted that it was open to the sentencing judge to find that the respondent's conduct exhibited a degree of naïvety.[45]
[44] Appeal ts 5.
[45] Appeal ts 5.
Counsel for the appellant accepted that the individual sentence on count 2 was closer to an appropriate range than the sentence imposed on count 1, but submitted that the sentence nevertheless fell below a proper standard of sentencing.[46]
[46] Appeal ts 7.
Counsel acknowledged that, at the sentencing proceedings, the prosecutor had accepted that it was open to the sentencing judge to impose concurrent sentences on counts 1 and 2. However, counsel submitted that the prosecutor's acceptance must be understood in the context that he assumed that appropriate sentences would be imposed for the individual offences.[47]
[47] Appeal ts 8.

The respondent's submissions

Counsel for the respondent submitted that, contrary to the appellant's submissions, the respondent's role in the offending was neither significant nor ongoing.[48] Counsel for the respondent went further and submitted that the respondent 'had no real role of any consequence', or even no role at all, in AA and BB's operation.[49] Counsel for the respondent submitted that the respondent was 'just the person on the side of it'.[50]
[48] Appeal ts 11.
[49] Appeal ts 12, 14.
[50] Appeal ts 14.
Counsel for the respondent emphasised the mitigating factors, including the respondent's pleas of guilty, his cooperation after his arrest, his remorse, and her Honour's finding that there was no need for personal deterrence. Counsel also emphasised that the respondent had no financial interest in the prohibited drugs themselves, that he was said by the sentencing judge to be a 'patsy', and that although he was paid for his role, the small amount he was paid indicated that the offending could not have been for meaningful commercial gain.[51]
[51] Appeal ts 16 - 20.
Counsel accepted that the sentence on count 1 was 'startlingly low' but, having regard to all of the circumstances, was nevertheless justified.[52] Counsel for the respondent accepted that the sentence on count 2 was low, but not so low as to demonstrate manifest inadequacy.[53]
[52] Appeal ts 22.
[53] Appeal ts 22.
Counsel for the respondent accepted that if one or more of the grounds of appeal were made out, there was no basis for this court to apply the residual discretion to nevertheless dismiss the State's appeal.[54] Counsel accepted that in the event that this court decided to resentence the respondent, there were no new facts that had occurred since the respondent's sentencing that the court should take into account.[55]
[54] Appeal ts 24 - 25.
[55] Appeal ts 25.

Relevant legal principles

The legal principles relevant to State appeals against sentence where, as in this case, the grounds allege implied error, were recently restated in The State of Western Australia v Pereira:[56]
The principles to be applied in the context of grounds of appeal in which the State asserts that error should be inferred from a resulting sentence are well established. Those principles, which need not be repeated, were comprehensively summarised in The State of Western Australia v Hussian [[2020] WASCA 186] and, more recently in the context of sexual offences, in The State of Western Australia v HNU [[2023] WASCA 6]. It is sufficient to once again observe that in determining whether an individual sentence is manifestly inadequate, the court is required to examine it in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness for offences of the type in question, and the offenders' personal circumstances. Those considerations are not dissimilar to the factors that must be taken into account in determining whether a total effective sentence imposed on an offender who has committed multiple offences infringes the first limb of the totality principle. In that context the question is whether a total effective sentence bears a proper relationship to the overall criminality involved in all the offences and after having regard to all relevant circumstances, including those referable to the offender personally, as well as the total effective sentences imposed in comparable cases.
It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently. The critical question is whether a sentence, or a total effective sentence, is unreasonable or plainly unjust. Further, in the context of a State appeal against sentence, as a majority in the High Court in Green v The Queen [[2011] HCA 49; (2011) 244 CLR 462] explained, the main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons.
[56] The State of Western Australia v Pereira [2023] WASCA 162 [42] - [43].
The general sentencing principles for offences of the type committed by the respondent are well established and have been stated by this court on many occasions. They were summarised in Carlucci v The State of Western Australia, as follows:[57]
The general principles of sentencing offenders for serious drug offences are well established. 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 invariably be subsidiary considerations, but they are not irrelevant. (footnote omitted)
[57] Carlucci v The State of Western Australia [2019] WASCA 37 [37].

Disposition

We will deal with all three grounds of appeal together.
As previously stated, the maximum penalty for count 1 is life imprisonment, and the maximum penalty for count 2 is 25 years' imprisonment or a fine of $100,000, or both. The maximum penalty for count 1, being an offence involving a trafficable quantity of methylamphetamine,[58] was increased in 2017 from 25 years' imprisonment to life imprisonment. The increase serves as an indication of the relative seriousness of the offence and demonstrates Parliament's view of its gravity, which must be taken into account in deciding sentencing outcomes at first instance. An increase in the maximum penalty is an indication that sentencing standards for that offence should increase. However, the increase in the maximum penalty does not necessarily mean that in every case there will be a discernible increase in the penalty imposed.[59]

Comparable cases

[58] A trafficable quantity of methylamphetamine being 28 g or more: Misuse of Drugs Act, s 34(1A), read with sch VII item 8.

[59] Humes [89] (Mazza & Hall JJA).

With regards to the sentence imposed on count 1, the appellant referred to the following cases as being comparable to the present case, Humes; Cochrane v The State of Western Australia;[60] Musulin v The State of Western Australia;[61] and Nguyen v The State of Western Australia.[62] The appellant contends that the sentence imposed on count 1 is inconsistent with the outcomes in these cases. In our opinion, there is force in this submission.
[60] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262.
[61] Musulin v The State of Western Australia [2020] WASCA 18.
[62] Nguyen v The State of Western Australia [2018] WASCA 162.
Humes, Cochrane and Musulin all involved offences which were subject to the maximum penalty of life imprisonment. Nguyen was decided before the increase in the maximum penalty. In Humes, Musulin and Nguyen the quantities of methylamphetamine were broadly similar to the present case, being 166.3 g, 178.2 g and 164 g respectively. In Cochrane the quantity of methylamphetamine was 47.13 g, considerably less than the quantity on count 1 in the present case. The offenders in Humes, Musulin and Cochrane were convicted on their pleas of guilty, and the offender in Nguyen was convicted after trial. The respondent's antecedents, as found by the sentencing judge, were more favourable than the offender in each of the cases cited by the appellant for the purposes of the sentence imposed on count 1.
In Humes, the offender had driven from Perth to Bunbury to assist in the transportation of prohibited drugs. The offender was the passenger in a vehicle which was stopped by police approximately 45 minutes into the journey. The offender had attempted to conceal a package of methylamphetamine in his underwear. It was accepted that the offender was only in possession of the drugs for a short period of time, with the intention of returning them to the driver of the vehicle, the co‑offender, following the police stop. It was also accepted that the offender was not involved in the broader distribution of methylamphetamine into the community, and was at a low level of the operation. The offender had participated in the offending for financial reward.
At first instance, the offender in Humes was sentenced to 6 years 2 months' imprisonment. On appeal to this court, by majority, the sentence was set aside on the basis that it was manifestly excessive. The majority allowed a 20% discount for the plea. The offender was resentenced to 5 years' immediate imprisonment for the offence.
The culpability of the offender in Humes was less than that of the respondent in the present case. The offender in Humes was sentenced on the basis that he had no ongoing involvement with the trafficking and distribution of prohibited drugs, and that the duration of his offending was very short.
The offender in Humes had considerably less favourable antecedents than the respondent.
In Cochrane, the offender was a courier who flew from Perth to Geraldton to deliver a quantity of methylamphetamine. He was to receive a small quantity of the drugs as a reward for the offending. The sentencing judge allowed a 25% discount for the plea. The offender was sentenced to 5 years 6 months' imprisonment. Leave to appeal was granted on the ground that the sentence was manifestly excessive, but the appeal was dismissed.
Overall, the culpability of the offender in Cochrane and the respondent in the present appeal is broadly similar. Although the offender in Cochrane had considerably less favourable antecedents than the respondent, the quantity of methylamphetamine the subject of the offending was less than a third of the quantity the subject of count 1 in the present appeal.
In Nguyen, the offender and another were stopped by police when travelling in a vehicle near Meekatharra. The offender and the co‑offender were in the process of delivering methylamphetamine for financial reward. The offender in Nguyen was sentenced to 5 years 10 months' imprisonment. Leave to appeal against that sentence on the grounds that it was manifestly excessive and breached the parity principle was refused.
The offender in Nguyen was convicted after trial. He was transporting a relatively similar quantity of drugs for significant financial gain. The offender and his co‑offender had also played some role in the repackaging of the methylamphetamine. The culpability of the offender in Nguyen is somewhat greater than that of the respondent in the present appeal.
In Musulin, the offender was sentenced on the basis that he was storing methylamphetamine and a considerable quantity of cash ($125,305) for others. The offender in Musulin appreciated that he was part of a large‑scale drug distribution network and that he was a trusted person within that network. The sentencing judge allowed a 25% discount for the plea of guilty. Relevantly to the present appeal, this court found that the sentence of 7 years' imprisonment imposed for possession of the 178.2 g of methylamphetamine with intent to sell or supply it to another was not manifestly excessive. However, it may be accepted that the culpability of the offender in Musulin was somewhat greater than the culpability of the respondent in the present case.
The cases referred to by the appellant show that, even allowing for the 22% discount for the plea of guilty, the 10% discount for past cooperation and all other mitigating circumstances, the sentence of 18 months' imprisonment imposed upon the respondent for count 1 is very much an outlier.
As for count 2, the appellant referred to Tricoli v The State of Western Australia;[63] Tran v The State of Western Australia;[64] ATH v The State of Western Australia;[65] and Jiang v The State of Western Australia.[66]
[63] Tricoli v The State of Western Australia [2011] WASCA 74.
[64] Tran v The State of Western Australia [2015] WASCA 218.
[65] ATH v The State of Western Australia [2021] WASCA 149.
[66] Jiang v The State of Western Australia [2020] WASCA 7.
Not all of those cases involved cocaine. However, this court has generally treated cocaine and other prohibited drugs such as methylamphetamine and heroin as being of similar seriousness.[67] Therefore, subject to the increase in the maximum penalty for an offence involving a trafficable quantity of methylamphetamine, these cases are not irrelevant comparators merely because the prohibited drugs the subject of the offending were different.
[67] See Ngo v The State of Western Australia [2007] WASCA 221 [25], [31] (Miller JA, Owen & Wheeler JJA agreeing).
In Tricoli, the offender pleaded guilty at the earliest opportunity (for which the sentencing judge allowed a substantial discount) to two offences, one of which was a charge of possession of 436.59 g of cocaine, with a purity in the main of 68%, with intent to sell or supply. He was, at the time of offending, addicted to the drug. The offender had agreed to keep the drug at premises he occupied, supply it to others and then pay the funds to the owner. The offender did not profit from the transactions but, instead, received cocaine for his personal use. The offender had reasonably good antecedents, had been taken advantage of by a person higher up in the drug distribution chain, and was vulnerable by reason of his drug dependency.
The offender was sentenced to 6 years' immediate imprisonment. This court refused leave to appeal on a ground which alleged that the sentence was manifestly excessive. The offender in Tricoli was found to be more than just a bailee. His culpability was greater than that of the respondent in the present case.
In Tran, the offender and a co‑offender were convicted on their pleas of guilty of one count of possession of heroin with intent to sell or supply it to another. The offender and co‑offender had travelled from Sydney to Perth with the intention of possessing and distributing the prohibited drug. The offender was in possession of a total of 689 g of heroin, with purities between 77% and 79%, and 78% and 80%. The sentencing judge allowed a 25% discount for the offender's plea. Both the offender and co‑offender were sentenced to 8 years' imprisonment. Each offender was found by the sentencing judge to have come to Perth with the specific purpose of distributing heroin for financial gain. The circumstances of the offence indicated that they were near the top of the distribution chain, and each offender had had a role in repackaging the drugs. Leave to appeal on parity grounds was refused by this court. The culpability of the offender in Tran was greater than the culpability of the respondent in the present case.
In ATH, the offender was convicted after trial by judge alone of possession of 977 g of methylamphetamine with a purity of between 75% and 77%, with intent to sell or supply it to another. The applicable maximum penalty was life imprisonment. The offender had driven a co‑offender from a rural location to a Perth suburb to take possession of a package of methylamphetamine. The co‑offender hid the package in the roof cavity of the vehicle. During the return journey, police stopped the vehicle and discovered the package. The trial judge found that the offender would have benefitted either financially or in the form of methylamphetamine. The offender's role was to provide essential assistance to others involved in the prohibited drug trade. To this extent, it might be said that the offender's culpability was broadly similar to the respondent's. The offender in ATH had a relatively minor criminal record and was a person of generally good character. At first instance, she was sentenced to 7 years' imprisonment. This court refused leave to appeal on a ground of appeal which alleged an infringement of the parity principle.
In Jiang, the offender was convicted on her very late plea of guilty of one count of possession of 1.97 kg of cocaine, with intent to sell or supply. The sentencing judge allowed a 5% discount for the plea. The circumstances of the offending were unusual, and the offender was not involved in the ongoing planning, organisation or distribution of drugs into the community. The offender was not going to receive any financial benefit for her role, and her motivation was to assist a friend, whom she believed was in substantial debt. The offending conduct occurred over a few hours only, and included driving co‑offenders to and from a hardware store and the purchase of tools and equipment on the co‑offenders' behalf. The offender was sentenced to 6 years' imprisonment for her involvement in the offending.
A majority of this court dismissed the offender's appeal against sentence, including on a ground that the sentence was manifestly excessive. In doing so, it was noted that the 6‑year sentence imposed on the offender was much lower than the range found in many cases concerning possession, with intent to sell or supply, of large quantities of prohibited drugs such as methylamphetamine, heroin and cocaine.[68]
[68] Jiang [90] (Buss P & Mitchell JA).
An analysis of the cases cited by the appellant in respect of count 2 reveals that the individual sentence imposed on the respondent was very lenient, even when the respondent's plea of guilty, cooperation and other mitigating factors are taken into account. However, an important difference is that the cocaine the subject of count 2 was of a significantly lower purity than the prohibited drugs the subject of the offences in the appellant's comparable cases.

The respondent's culpability

We now turn to the question of the respondent's culpability.
The sentencing judge plainly regarded the respondent's criminal culpability as being at a very low level, and made a series of very generous findings to that effect. For example, her Honour found that the respondent was 'naïve', a person of good character, and did not require personal deterrence.
However, the appellant did not expressly challenge any of the factual findings made by the sentencing judge. Therefore, these findings must be accepted for the purpose of analysing the grounds of appeal. A reading of the sentencing remarks as a whole reveals that the sentencing judge regarded the culpability of the respondent as being 'as low as it could possibly be for a person who performs the role of a courier in this particular case', and regarded his personal circumstances as very favourable.[69]
[69] ts 37.
In addressing culpability, what matters is not the label that is placed on the offender (for example, courier, warehouseman, 'passer‑on‑er'), as labels are apt to mislead. For example, in this case, describing the respondent as a 'passer‑on‑er' underplays the seriousness of the respondent's offending. Instead, what matters is what the respondent actually did.
In the present case, the respondent:
(a)allowed his house to be used as a delivery address for quantities of prohibited drugs;
(b)physically possessed a substantial quantity of prohibited drugs (697 g in total) while awaiting instructions from AA or BB;
(c)once given instructions, he intended to deliver the prohibited drugs to someone else;
(d)agreed to carry out the tasks referred to in (a), (b) and (c) for financial reward, albeit for a modest payment of cash;
(e)knew that AA and BB, who were communicating with him via an encrypted application, were involved in an ongoing drug trafficking enterprise; and
(f)had previously assisted AA and BB by performing the same kind of duties referred to in (a), (b) and (c) above for reward.
The respondent was lower in the drug distribution enterprise than AA and BB. However, this does not mean that the respondent's role was unimportant or insignificant. There is nothing to suggest that the respondent was subjected to any level of threat, force or coercion to act as he did. His motive was commercial. Doubtless, the respondent saw what he was doing as providing easy money, but it could not have been lost on him that his conduct involved serious criminality and that he was assisting persons who were involved in the business of distributing substantial quantities of prohibited drugs into the community.
There were substantial mitigating factors, the most significant of which were the respondent's early pleas of guilty and his cooperation. Her Honour found that the need for personal deterrence was reduced. It also appears from the sentencing remarks that her Honour reduced the sentences having regard to the fact that the respondent would serve the term of imprisonment away from his children.
It is clear that the sentencing judge appreciated that the sentences that she imposed were very lenient, and that comparable cases pointed to the imposition of individual sentences and a total effective sentence which were much greater than those actually imposed.
In our opinion, having regard to the maximum penalty of life imprisonment, the standards of sentencing customarily imposed, the circumstances of the offending, and the mitigating factors, bearing in mind the limited weight that can be given to personal factors, the individual sentence imposed by her Honour on count 1 was erroneously low. Importantly, it did not properly reflect the respondent's criminality and provided insufficient general deterrence. Indeed, it is a sentence that has a tendency to undermine the objective of general deterrence. In our opinion, it was unreasonable or plainly unjust. Implied error has been clearly demonstrated. Ground 1 must be upheld and the respondent resentenced on count 1.
With respect to ground 2, the maximum sentence was 25 years' imprisonment. We have already described the role the respondent played in the offending. The quantity of cocaine was substantial, but the purity was low. We have had regard to all of the mitigating factors, bearing in mind the limited weight that can be given to personal factors in the case of significant drug dealing offences. The sentence imposed was inconsistent with the standards of sentencing customarily imposed. As with the sentence imposed by her Honour on count 1, the individual sentence on count 2 did not properly reflect the respondent's criminality and provided insufficient general deterrence. The sentence on count 2 was unreasonable or plainly unjust. Implied error has been clearly demonstrated. Ground 2 must be upheld and the respondent resentenced on count 2.
Having upheld grounds 1 and 2, it follows that ground 3 has been made out. In our opinion, the total effective sentence imposed of 3 years 6 months' imprisonment infringed the first limb of the totality principle. The respondent knew that he had taken delivery of a package which contained prohibited drugs. It was not a one‑off event. Other similar packages had previously been delivered to his house on his own admission. Although the respondent was not to be punished for his involvement in the previous drug dealing transactions for which he was not charged, that involvement demonstrated that the offending in question was not isolated or an abberation. While the respondent did not know the precise weight of the prohibited drugs and, to some extent, their weight was disguised by the presence of the pencils and markers in the package (as had occurred in previous deliveries), the package was substantial in size and the respondent must have realised that it contained a significant quantity of prohibited drugs.

The residual discretion

As stated at [50] above, counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. The respondent bears no onus to establish that the residual discretion should be exercised in his favour. Rather, it is for the appellant to negate any reason why the residual discretion of this court not to interfere should be exercised.[70] In our opinion, there is no basis for invoking the residual discretion. The sentences imposed by her Honour on counts 1 and 2 were significantly less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established and this court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences. The same considerations apply to the total effective sentence imposed by the sentencing judge.
[70] See CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
The appellant's appeal must be allowed and the respondent resentenced.

Resentencing

This court has the materials necessary to resentence the respondent.
Like the sentencing judge, we would allow a reduction of 22% pursuant to s 9AA of the Sentencing Act for the respondent's pleas of guilty. We would also allow a 10% discount to take into account the respondent's past cooperation. There are other mitigating factors which we take into account, including the prospect that the respondent will serve his sentences away from his children, that he is remorseful for his offending and that he is very unlikely to reoffend.
On count 1, we would resentence the respondent to 4 years 3 months' imprisonment. On count 2, we would resentence the respondent to 5 years 3 months' imprisonment.
We now turn to concurrency and cumulacy. Ordinarily, some accumulation would be appropriate in respect of counts 1 and 2. However, given the concession by the prosecutor at the sentencing hearing that it was open to her Honour to order that the individual sentences be served wholly concurrently, we would adopt that course. Accordingly, we order that the sentences on counts 1 and 2 be served concurrently. The new total effective sentence to be served by the respondent is 5 years 3 months' imprisonment. The respondent remains eligible for parole. The sentences are backdated to commence on 23 July 2023. The respondent will be eligible for release on parole 3 years and 3 months after that date.

Orders

We would make the following orders:
1.Leave to appeal on ground 2 is granted.
2.The appeal is allowed.
3.The sentences imposed by Black DCJ on 24 August 2023 are set aside.
4.The respondent is resentenced on count 1 to 4 years 3 months' immediate imprisonment.
5.The respondent is resentenced on count 2 to 5 years 3 months' immediate imprisonment.
6.The new sentence on count 1 is to be served concurrently with the new sentence on count 2. Thus, the new total effective sentence is 5 years 3 months' immediate imprisonment.
7.The respondent is eligible for parole.
8.The sentences are backdated to commence on 23 July 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
7 OCTOBER 2024