Trainor v The State of Western Australia
[2021] WASCA 36
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAINOR -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 36
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 19 FEBRUARY 2021
DELIVERED : 26 FEBRUARY 2021
FILE NO/S: CACR 42 of 2020
BETWEEN: LEIGH GEORGE TRAINOR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 1344 of 2019
Catchwords:
Criminal law and sentencing - Offender pleaded guilty to one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply - Where offender had approximately 4 kg of methylamphetamine in his possession - Where the maximum penalty for the offence was life imprisonment - Where offender was sentenced to 14 years' imprisonment - Whether the sentence was manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 34(1)(a)
Result:
Leave to appeal on the sole ground of appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S B Watters & C S Woodhouse |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Blasco v The State of Western Australia [2021] WASCA 26
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Cochrane v The State of Western Australia [2021] WASCA 5
Gakis v The State of Western Australia [2019] WASCA 25
Gaskell v The State of Western Australia [2018] WASCA 8
HSV v The State of Western Australia [2020] WASCA 5
Morcom v The State of Western Australia [2013] WASCA 31
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musulin v The State of Western Australia [2020] WASCA 18
Rowson v The State of Western Australia [2018] WASCA 82
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Krakouer [2020] WASCA 133
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against the sentence of 14 years' imprisonment imposed upon him on 28 February 2020 following his conviction, on his plea of guilty, of possession of approximately 4 kg of methylamphetamine with intent to sell or supply (count 1).
On the same day, the appellant was also sentenced to 16 months' imprisonment, to be served concurrently with the sentence on count 1, for an offence of possession of money reasonably suspected to have been unlawfully obtained (count 2). There is no challenge to this sentence.
By his sole ground of appeal, the appellant contends that the sentence of 14 years' imprisonment on count 1 is manifestly excessive.
For the reasons that follow, the ground of appeal is not made out. The appeal must be dismissed.
The facts
The facts of the offending were not, and are not, in dispute.[1]
[1] ts 38.
On 12 April 2020, police observed the appellant enter a house in Madora Bay carrying nothing in his hands.[2] Shortly afterwards, he was seen leaving the premises carrying a small bag.
[2] ts 12.
Later that afternoon, police executed a search warrant under the Misuse of Drugs Act 1981 (WA) at the appellant's residence in Greenfields.[3] The appellant was the only person home at the time.
[3] ts 12.
During the search, the appellant directed police to his bedroom where they located a blue esky.[4] Inside the esky was a bag that matched the description of the bag that the appellant was seen carrying when he left the house in Madora Bay earlier that afternoon.
[4] ts 12.
The bag contained three separate packages of methylamphetamine.[5] The packages weighed 999 g, 998 g and 1 kg. The purity of the methylamphetamine was between 80% and 81%.
[5] ts 12.
The appellant also directed police to a shopping bag in the wardrobe of his bedroom.[6] The shopping bag contained a further package of methylamphetamine weighing 836 g of 81% purity. The bag also contained two clipseal bags. One clipseal bag was marked 825 g and contained 58.4 g of methylamphetamine of 74% purity. Inside that was a second clipseal bag marked 375 g which contained 0.48 g of methylamphetamine.
[6] ts 12.
Police also located 0.22 g of methylamphetamine crystal residue and 0.23 g of methylamphetamine shards in a portable speaker box which was inside the bag, as well as 0.3 g of methylamphetamine traces.[7] There was also 0.3 g of methylamphetamine and 2.09 g of dimethyl sulfone, which is also known as MSM, in a cryovac bag in the appellant's wardrobe.
[7] ts 12.
The total amount of methylamphetamine found in the appellant's possession was 3892.96 g.[8]
[8] ts 12.
The appellant told police that the drugs belonged to him and that he was going to pass them on to another person.[9]
[9] ts 12.
As to count 2, the appellant directed police to a small safe located inside a hallway cupboard.[10] The safe contained $15,000 in cash. The appellant was also found to have $1,655 in his wallet. The appellant explained that the cash was his and that he had been saving it over a period of time.
[10] ts 13.
Personal circumstances
The appellant was 53 years old when he was sentenced. The appellant came to Australia when he was 7 years old, after his family emigrated from the United Kingdom.
The appellant is married. His wife has significant health problems.
The appellant contended before the sentencing judge that financial pressures arising from the combination of (i) his expenditure on his wife's medication and medical procedures; and (ii) the loss of his well‑paid employment, replaced by a job which had significantly lower remuneration, motivated him to engage in the offending behaviour.[11]
[11] ts 16 - 18.
The judge found that, up to the time of the offending conduct, the appellant had made a positive contribution to the community, having done voluntary work in a variety of roles.[12] The judge also accepted that the appellant had a good work ethos and understood the importance of work.[13]
[12] ts 40.
[13] ts 40.
The appellant had, relevantly, no prior criminal history.[14]
[14] ts 40.
Sentencing remarks
The sentencing judge characterised the appellant's offending as 'very serious', drawing attention to the increase of the maximum penalty to life imprisonment.[15]
[15] ts 38.
His Honour observed that the quantity and purity of the drugs involved were indicative of the seriousness of the appellant's offence. Those matters, as well as the large sum of money in his possession, also indicated that those with whom he was working in relation to the drugs placed a high level of trust in him.[16]
[16] ts 39.
In that regard, the judge rejected the appellant's contention that he had simply been in possession of the drugs for the first time and was otherwise uninvolved in the illicit drug trade.[17] Further, the judge did not accept the appellant's characterisation of his role as that of 'part courier and part storage person'.[18] The judge said that he was not prepared to speculate about the appellant's role.[19] The judge did, however, draw the inference that the appellant was higher up the scale of the criminal enterprise than he contended.[20] The judge found that the appellant was in possession of the drugs for the purpose of passing them on further down the chain of distribution, but that this was the extent of any finding of fact that he could make in relation to the appellant's involvement in this drug enterprise.[21]
[17] ts 39.
[18] ts 25 - 26.
[19] ts 34 - 36, 39.
[20] ts 39.
[21] ts 40.
The seriousness of the appellant's offending was also, the judge found, significantly aggravated by the fact that the appellant was involved in the offending for commercial gain.[22]
[22] ts 39.
The judge identified a number of mitigating factors:
(1)the appellant pleaded guilty at the first reasonable opportunity, for which the judge allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA);[23]
(2)the appellant had made a positive contribution to the community, including by his voluntary work;[24]
(3)the appellant had a good work ethos and understood the importance of work;[25] and
(4)the appellant had no relevant previous criminal record.[26]
[23] ts 39.
[24] ts 40.
[25] ts 40.
[26] ts 40.
The judge did not accept, on the balance of probabilities, the appellant's submission that his wife's medical condition was the motivation and explanation for his offending behaviour. The judge stated that even if he had made such a finding, it would not have been a mitigating factor.[27] The appellant does not contest this conclusion.[28]
[27] ts 40.
[28] Appellant's submissions [19].
The judge concluded that, having regard to all relevant sentencing considerations, the appropriate sentence in relation to count 1 was a term of imprisonment of 14 years. His Honour found that the appropriate sentence on count 2 was a term of 16 months. The judge ordered that the term of imprisonment on count 2 be served concurrently.
The judge ordered that the appellant be eligible for parole.
Subsequently, by way of a correction of sentence pursuant to s 37 of the Sentencing Act, the judge ordered that the sentence be backdated to commence on 1 February 2020.[29]
[29] AB 83.
Ground of appeal
The appellant's sole ground of appeal contends that the sentence on count 1 of 14 years' imprisonment was manifestly excessive.
The application for leave to appeal was referred to the hearing of the appeal.[30]
[30] Order of Buss P, 2 July 2020.
The appellant's submissions
The appellant accepts that a significant term of immediate imprisonment was the only appropriate sentence, taking into account the significant quantity and high purity of methylamphetamine, the level of trust placed in the appellant by others and the commercial nature of the appellant's offending.[31]
[31] Appellant's submissions [11].
The appellant identifies the mitigating factors in his favour, including:[32]
(1)his plea of guilty, for which he was given a 25% discount under s 9AA of the Sentencing Act;
(2)the appellant's cooperation with the investigating police during the search of his premises, including by showing them the location of the drugs and making admissions about his possession of the drugs; and
(3)the appellant's good antecedents, including the lack of a relevant criminal record, consistent work history and history of volunteer work.
[32] Appellant's submissions [13], [14], [18].
The appellant also points to his role in the offending. He submits that the judge accepted that his role involved collecting the drugs, storing them and then releasing them to others, and that there is nothing to suggest that he had any ownership or financial stake in the drugs, beyond being paid for the services that he provided.[33]
[33] Appellant's submissions [15] - [16].
The appellant submits that the significant mitigating factors in his favour should, notwithstanding the aggravating factors in his case, have resulted in a materially lower sentence than was imposed on him.[34]
[34] Appellant's submissions [20].
The appellant accepts that, in light of the amendment to the maximum penalty, there is limited assistance to be found in comparable cases.[35]
[35] Appellant's submissions [23] - [27].
Disposition
General principles
The relevant principles concerning an appeal against sentence asserting that a sentence is manifestly excessive are well‑established:
(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 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.
(4)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.
Sentencing principles concerning cases of serious drug trafficking were summarised by this court in Carlucci v The State of Western Australia:[36]
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.
[36] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37].
The weight and purity of the drugs involved is, ordinarily at least, a matter of importance because it can be presumed that the greater the weight and purity, the greater the harm that may be done to the community.[37]
Comparable cases involving a 25 year maximum
[37] Rowson v The State of Western Australia [2018] WASCA 82 [36].
There are a number of decisions of this court reviewing the patterns of sentencing for offences involving quantities of methylamphetamine of 1 kg or more in cases involving the previous maximum penalty of 25 years' imprisonment.
For example, in Zanon v The State of Western Australia, McLure P said as follows:[38]
The court's attention was drawn to a number of sentence appeals in broadly comparable cases including Kitis v The State of Western Australia [2013] WASCA 34 (total quantity of 5 kg of methylamphetamine; 22% ‑ 69% purity; late plea of guilty; 12 years imprisonment); Ozan v The State of Western Australia [2013] WASCA 27 (total quantity of 7.6 kg; late plea of guilty; 17% ‑ 69% purity; total sentence of 14 years); Neumann v The State of Western Australia [2013] WASCA 70 (total of 1.27 kg of methylamphetamine; late guilty plea; 15 years); Penney v The State of Western Australia [2011] WASCA 71 (total of 9 kg of which 5.76 kg was methylamphetamine at 10% ‑ 12% purity; early guilty plea; 13 years, not the principal); Mikulic v The State of Western Australia [2011] WASCA 127 (total of around 15 kg of primarily ecstasy; purity between 23% ‑ 80%; late guilty plea; cooperation; 12 years imprisonment; Milenkovski v The State of Western Australia [2014] WASCA 48 (a total of 7.68 kg of methylamphetamine; 2.7 kg at 17% ‑ 19% purity, 5 kg at 53% ‑ 69% purity; 17 years imprisonment).
There is also a cluster of cases in which the total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 years and 12 years imprisonment (including Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Halmi v The State of Western Australia [2013] WASCA 229; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Seeto v The State of Western Australia [2014] WASCA 221).
[38] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [173] ‑ [174].
We also adopt the reviews of cases in Gaskell v The State of Western Australia[39] and in Gakis v The State of Western Australia[40] without repeating them.
[39] Gaskell v The State of Western Australia [2018] WASCA 8 [133] ‑ [141].
[40] Gakis v The State of Western Australia [2019] WASCA 25 [34] ‑ [44].
Had the appellant in this case been sentenced under the previous regime in which the maximum penalty was 25 years, the sentence of 14 years would undoubtedly have been at least high and may well have justified a conclusion that it was manifestly excessive. However, whether such a conclusion can be draw in the present case must take account of the increase in the maximum penalty.
The increase in maximum penalty and its significance
The maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g[41]) of methylamphetamine with intent to sell or supply[42] is life imprisonment.[43] That maximum penalty increased from the previous maximum penalty of 25 years' imprisonment as a result of amendments made by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (Amendment Act).
[41] Misuse of Drugs Act 1981 (WA) s 34(1A), sch 7 item 8.
[42] Misuse of Drugs Act 1981 (WA) s 6(1)(a).
[43] Misuse of Drugs Act 1981 (WA) s 34(1)(a).
In the second reading speech for the Amendment Act, the Minister for Police, Mrs M H Roberts MLA, explained the rationale for the amendments made by the Bill as follows:[44]
The effects of methamphetamine on our community are just devastating. It has to stop. The community quite rightly expects tough action against methamphetamine dealers and traffickers. Our government will give police and the judiciary the tools they need to prevent and deter this trade.
This legislation implements our commitment to reduce the supply of methamphetamine by increasing penalties for drug traffickers. The penalties will be some of the toughest in the country. The bill targets methamphetamine dealers, manufacturers and suppliers further up the drug supply chain who feed lower-end street dealers and addicts. Specifically, the Misuse of Drugs Act 1981 is being amended to increase the maximum sentence of imprisonment to a life penalty. The amendments provide that a drug dealer who is caught with 28 or more grams of methamphetamine will now be subject to a maximum penalty of life imprisonment. This is an increase on the current maximum penalty of 25 years' imprisonment.
…
The devastating impact of methamphetamine must end. Our families and our communities cannot bear it any longer. This bill sends a strong message to drug dealers and traffickers - that they will feel the full force of the law. If they traffic methamphetamine in Western Australia, they will now face the prospect of a life sentence.
[44] Western Australia, Parliamentary Debates, Legislative Assembly, 16 May 2017, 95f - 96a (M H Roberts, Minister for Police).
The maximum penalty for an offence demonstrates Parliament's view of the gravity of the offence. An increase in the maximum penalty for an offence is an indication that the Parliament regards the offence as being of a more serious kind than was previously the case. The maximum penalty of life imprisonment demonstrates that Parliament now regards offending of the kind the subject of ground 1 as being of the most serious kind.[45]
[45] Musulin v The State of Western Australia [2020] WASCA 18 [37].
The sentencing principles which apply when the maximum penalty for an offence is increased have been discussed in a number of cases, and were recently summarised by this court in HSV v The State of Western Australia.[46]
[46] HSV v The State of Western Australia [2020] WASCA 5 [44] - [45].
If Parliament increases the maximum penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes.[47] An increase in the maximum penalty is an indication that sentences for the offence in question should be increased.[48] Accordingly, any previously established sentencing ranges for the offence in question remain relevant as a guide, but will need to be considered bearing in mind the subsequent increase in the maximum penalty.[49]
[47] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [122] and the cases there cited.
[48] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; Musulin [39].
[49] Morcom v The State of Western Australia [2013] WASCA 31 [47] - [49]; Musulin [39].
In Musulin, the court concluded that, putting the increase in the maximum penalty to one side, the comparable cases suggested that the sentence imposed on the offender was, at least, high. However, the court then expressed the following conclusions:[50]
However, in our view, when the increase in the maximum penalty for the offence in count 1 is factored into the analysis, the sentence imposed on the appellant cannot be regarded as inconsistent with the sentences imposed in those earlier cases. In other words, any disparity between the sentence imposed in the present case, and the sentences imposed in comparable cases, is explicable by the increased seriousness with which offending of this kind is regarded since the enactment of the Amendment Act.
As already noted, the guidance provided by comparable cases is flexible rather than rigid. In the present case, the amendment to the maximum penalty diminishes the assistance that the comparable cases can provide in discerning implied error in the outcome. In our view, bearing in mind the significance of the increase in the maximum penalty, the comparable cases provide an insecure foundation to infer that 'there must have been some misapplication of principle'.
[50] Musulin [66] - [67].
In our view, like conclusions can be drawn in the present case. Any disparity between the sentence imposed on the appellant and sentences imposed in the comparable cases under the previous regime is explicable by the increased seriousness with which offending of this kind is regarded since the enactment of the Amendment Act and does not indicate there has been some misapplication of principle in the sentencing process.
Cases involving the maximum penalty of life imprisonment
In Cochrane v The State of Western Australia,[51] this court reviewed a number of decisions of this court in appeals against sentence under s 6 of the Misuse of Drugs Act since the increase in the maximum penalty.[52] All but one of those cases involved quantities very considerably smaller than the quantity in this case. Most involved quantities of the order of 100 g of methylamphetamine, although HSV included a count involving almost 1 kg, for which the offender was sentenced to 9 years and 6 months, after a 20% discount for his plea of guilty.
[51] Cochrane v The State of Western Australia [2021] WASCA 5.
[52] Cochrane [119] - [148]; see also Blasco v The State of Western Australia [2021] WASCA 26 [43] ‑ [44].
Standards of sentencing for offences involving multiple kilograms of methylamphetamine with the new maximum penalty of life imprisonment have not yet emerged. That does not, of course, prevent the court from evaluating whether the appellant's sentence is manifestly excessive. Rather, it means that the court must do so by reference to the maximum penalty, the place that the offence occupies on the scale of seriousness of offences of possession of a trafficable quantity of a prohibited drug with intent to sell or supply, and the appellant's personal circumstances.[53]
Conclusion
[53] See, for example, Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33], [38] - [39]; Gaskell [23], [143]; The State of Western Australia v Krakouer [2020] WASCA 133 [48].
While the appellant's offending is by no means in the most serious category of offences of this kind, his offence was undoubtedly very serious. The appellant's offence involved a very substantial quantity of methylamphetamine of a very high level of purity. Those with whom he was working placed a high level of trust in him. He played an important role in the drug operation of which his offence was a part. As this court observed in Musulin,[54] those who securely store large quantities of drugs for others play a role in the distribution networks not substantially less important than those who actually distribute the drugs to dealers or those who sell them to the ultimate users.
[54] Musulin [55].
Having regard to:
(1)the maximum penalty of life imprisonment;
(2)the seriousness of the offending the subject of count 1, and the place occupied by the appellant's offending in the scale of seriousness of offences of that kind;
(3)the general guidance provided by sentences imposed for broadly similar offending prior to, and since, the increase in the maximum penalty effected by the Amendment Act;
(4)the need for general deterrence;
(5)the appellant's plea of guilty for which he was afforded a 25% discount under s 9AA of the Sentencing Act;
(6)the appellant's personal circumstances; and
(7)all relevant sentencing factors and principles,
We are not persuaded that the sentence of 14 years' imprisonment imposed by the sentencing judge in respect of count 1 was unreasonable or plainly unjust. Implied error has not been established.
While we would grant leave to appeal on the sole ground of appeal, the ground is not made out.
Orders
For the above reasons, we would make the following orders:
1.Leave to appeal on the sole ground of appeal is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
26 FEBRUARY 2021
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