Tran v The State of Western Australia
[2019] WASCA 50
•22 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 50
CORAM: BUSS P
MAZZA JA
HEARD: 10 SEPTEMBER 2018
DELIVERED : 22 MARCH 2019
FILE NO/S: CACR 231 of 2017
BETWEEN: BENTA TRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 55 OF 2017
Catchwords:
Criminal law - Application for leave to appeal against sentence - Conviction after trial - Attempted possession of a prohibited drug with intent to sell or supply it to another - MDMA - Possession of a thing capable of being stolen that was reasonably suspected to be unlawfully obtained - $2,280 in Australian currency - Offences committed while serving suspended term of imprisonment - Alleged express errors - Whether judge erred in findings of fact - Alleged implied error - Manifest excess
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1), s 33(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr A G Elliott |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | Ramdhas Poli Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Al‑Rafei v The State of Western Australia [2017] WASCA 4
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Filipou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Franklin v The State of Western Australia [2017] WASCA 102
Hughes v The State of Western Australia [2015] WASCA 164
Leckie v The State of Western Australia [2018] WASCA 91
PES v The State of Western Australia [2014] WASCA 96
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Rinaldi v The State of Western Australia [2017] WASCA 48
Santos v The State of Western Australia [2016] WASCA 107
Stokes v The State of Western Australia [2016] WASCA 87
Tasovac v The State of Western Australia [2015] WASCA 24
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant stood trial in the District Court, before Petrusa DCJ and a jury, on two counts. Count 1 alleged that on a date unknown in November 2015, the appellant attempted to possess a prohibited drug, namely MDMA, with intent to sell or supply it to another. Count 2 alleged that on 4 December 2015, the appellant was in possession of a thing capable of being stolen, namely $2,280 in Australian currency that was reasonably suspected to be unlawfully obtained.
Count 1 is contrary to s 6(1)(a) read with s 33(1) of the Misuse of Drugs Act 1981 (WA) and carries a maximum penalty of 25 years' imprisonment and/or a fine of $100,000. Count 2 is contrary to s 417(1) of the Criminal Code (WA) and carries a maximum penalty of 7 years' imprisonment.
On 4 September 2017, the appellant was found guilty of counts 1 and 2, and was duly convicted of the offences.[1]
[1] ts 602 - 603.
At the time of the commission of the offences, the appellant was subject to a suspended imprisonment order. On 13 November 2015, Stone DCJ sentenced the appellant on a count of extortion to 12 months' imprisonment suspended for 2 years (the SIO).[2]
[2] ts 658.
On 20 October 2017, the learned sentencing judge sentenced the appellant for the two counts on the indictment and for the breach of the SIO.[3]
[3] ts 658, 662.
On count 1, the appellant was sentenced to 4 years' immediate imprisonment. On count 2, he was sentenced to 3 months' immediate imprisonment. In relation to the breach of the SIO, the appellant was ordered to serve the whole of the 12 month term that had previously been suspended.[4]
[4] ts 662.
Her Honour ordered that the sentences on counts 1 and 2 be served concurrently and that the 12 month term which had previously been suspended be served cumulatively on count 1.[5]
[5] ts 662.
Thus, the total effective sentence imposed upon the appellant was 5 years' immediate imprisonment. The appellant was made eligible for parole. The sentence was backdated to 17 October 2017.[6]
[6] ts 662 - 663.
Originally, the appellant relied upon three grounds of appeal. At the hearing, counsel for the appellant sought and was given leave to amend the grounds of appeal.[7]
[7] Appeal ts 23, 29.
As amended, ground 1 alleges that her Honour made a number of material errors of fact. As amended, ground 2 alleges that the sentence imposed on count 1 was manifestly excessive.[8] Ground 3 was abandoned.
[8] See minute of amended grounds of appeal filed 18 September 2018.
For the reasons which follow, neither ground as amended has a reasonable prospect of succeeding. Accordingly, the appeal must be dismissed.
The unchallenged facts
The following findings of fact made by her Honour in the sentencing remarks were not challenged in this court. We will deal first with the counts on the indictment, and then with the offence which was the subject of the SIO.
On 19 November 2015, police officers intercepted an Express Post parcel at the Australia Post branch at Perth Airport. The parcel was addressed to 'Ben Ta 25 Guildford Road Ashfield'. The appellant and other members of his family, including his partner, lived at this address.[9]
[9] ts 655.
The parcel was examined and found to contain 100 yellow banana‑shaped pills which, upon analysis, were found to weigh in total 33.1 g and contained MDMA with a purity of approximately 27%.[10]
[10] ts 655.
At 6.30 am on 4 December 2015, police executed a search warrant at 25 Guildford Road, Ashfield. In the appellant's bedroom, police located three small clipseal bags in a black pouch, each of which contained a prohibited drug, being one pill of 0.23 g of a drug that was described by her Honour as 251 N‑bomb;[11] 0.49 g of a beige crystalline powder, being a mixture of MDMA and cocaine; and 0.19 g of MDMA in a clear capsule.[12]
[11] Otherwise known as 25‑1‑NBOMe.
[12] ts 655.
In addition, the police found $2,280 in bank notes in two locations. $1,660 was located in a tin under a desk, and $620 was in the appellant's wallet. Scales with a residue of MDMA and a number of empty clipseal bags were also discovered.[13]
[13] ts 656.
The investigating officers examined the web history on a computer in the appellant's bedroom, which indicated that he had accessed the Australia Post tracking website and had made enquiries in relation to the status of an Express Post parcel with the same tracking number as that seized by the police on 19 November 2015.[14]
[14] ts 656.
The computer hard drive and the appellant's personal mobile telephone were seized and later examined.[15]
[15] ts 656.
The examinations revealed the following:[16]
[16] ts 656 - 657.
1.Prior to the offences, an internet browser had been downloaded which enabled access to what is known as the darknet. Illicit drugs can be purchased via the darknet.
2.The appellant had accessed software and websites which provided information or facilitated the encryption of online activities and communications with the effect that they are anonymised.
3.Web searches had been made relating to 'Oz King', the creator and seller of banana‑shaped MDMA pills.
4.Images of other Express Post envelopes addressed to 'Ben Ta 25 Guildford Road Ashfield' which were received both before and after 19 November 2015.
5.The appellant had received an encrypted message relating to the purchase of 100 banana‑shaped MDMA pills and giving details of the purchase, including the Australia Post tracking number. This message indicated that the drugs were purchased on 17 November 2015 and that the delivery date was expected to be 19 November 2015.
6.WhatsApp messages on the appellant's mobile telephone after 19 November 2015 showing that he was concerned about a parcel going astray or being opened by others.[17]
7.Other WhatsApp messages, with persons who appeared to know the appellant, referring to drugs and, specifically, to banana‑shaped drugs.[18]
8.A number of messages confirming purchases by the appellant of Bitcoin. Bitcoin is a means by which items can be purchased on the internet and, in particular, the darknet.
9.In a one month period, about the time of the alleged commission of count 1, the appellant made Bitcoin transactions worth $7,000. This was at a time when, although the appellant was working and earning approximately $65,000 per annum, he had a debt of $150,000.
10.The appellant was, at the time of the offence, on his own evidence, an occasional user of ecstasy in the context of music festivals.
[17] Exhibit 12.
[18] Exhibit 12.
In relation to the offence for which the appellant was placed on the SIO, her Honour noted that the appellant was one of 10 men who participated in the extortion of a business known as the Galaxy Lounge. That business was targeted by an outlaw motorcycle gang, assisted by an Asian gang, with a view to extracting money. The Galaxy Lounge was targeted over a long period of time with extensive demands for substantial amounts of money being made, and numerous threats occurring over that period. Her Honour noted that the judge who sentenced the appellant for this offence described the appellant 'as a follower', and found that he played 'only a peripheral role'.[19] The appellant was part of the Asian gang, and he had attended the Galaxy Lounge on three separate occasions. On the first he went with one of the principal offenders and others, and stood guard at a door while demands were made by another offender. The appellant subsequently returned to the premises on two further occasions 'to check up on the place', and he ensured that when doing so, the victims were aware of what he was doing.[20]
[19] ts 658.
[20] ts 658.
The offences in the indictment were committed between four and 21 days, respectively, after the appellant had been placed on the SIO.[21]
[21] ts 659.
The appellant's personal circumstances
The appellant was 25 years old when he committed the offences, and 27 when he was sentenced. He is one of three children of his parents' relationship, and appears, from the materials that were before the sentencing judge, to be part of a close and supportive family.[22]
[22] ts 659 - 660.
The appellant did well at school, and completed a university degree. He has a constant work history, and is well‑regarded by his current and previous employers. The appellant has plans to marry the woman with whom he has been in a long‑term relationship. He has been a senior instructor at the Yaolin Kung Fu Association for about 13 years, and he is a participant at national level in lion dancing.[23]
[23] ts 660.
Of course, the appellant was not a first offender, having been convicted of the offence for which he received the SIO.[24]
[24] ts 658 - 659.
The appellant was a 'recreational user' of MDMA prior to his arrest.[25]
[25] ts 660.
The sentencing remarks
After noting the matters set out in [20] of these reasons and having regard to their combined effect, her Honour said that she was satisfied beyond reasonable doubt that the appellant was a dealer in MDMA, and that the drugs the subject of count 1 on the indictment were intended for sale to the appellant's 'circle of friends and acquaintances'.[26] Her Honour made no finding as to how much money the appellant stood to gain, other than to observe that the appellant 'may well have defrayed the costs associated with those drugs you used for yourself'.[27]
[26] ts 657 - 658.
[27] ts 658.
In further support of these findings, her Honour noted the effort and length to which the appellant was prepared to go to disguise his online activities and drug dealing.[28]
[28] ts 657.
The sentencing judge said it was difficult to gauge the extent of the appellant's participation in the distribution of illicit drugs. Her Honour was satisfied that count 1 was not an isolated incident:[29]
[G]iven the matters I have already referred to, and that the other parcels were delivered both before and after this event, the Bitcoin transactions associated with them and in light of the messages on [his] phone.
[29] ts 657 - 658.
Her Honour said that 'the degree of [the appellant's] participation in the distribution of drugs in our community … was at the very least not insignificant'.[30]
[30] ts 658.
Her Honour described the appellant's drug offending, which involved the use of the darknet and the anonymity it provided which increased the difficulty in detecting the offending, as demonstrating that the appellant's criminal conduct was both 'calculated and well organised'.[31]
[31] ts 661.
With respect to the money the subject of count 2 on the indictment, her Honour found that it was 'the product of [the appellant's] drug dealing activities'.[32]
[32] ts 658.
It is clear that her Honour regarded the fact that the appellant committed the offences on the indictment while subject to the SIO as an aggravating factor.[33]
[33] ts 661.
As for mitigating factors, her Honour took into account the appellant's age at the time he committed the offences on the indictment, the ongoing support he has from his partner and family, his work history, favourable prospects of employment in the future, and his community work.[34]
[34] ts 659 - 660.
Her Honour observed that the appellant could not receive any mitigation for his pleas to the offences on the indictment. She found that the appellant was not remorseful and did not take responsibility for his wrongdoing.[35] By reason of his prior convictions, her Honour found that the appellant could not be said to be a person of prior good character.[36]
[35] ts 660.
[36] ts 659.
Her Honour observed that the major sentencing considerations for offences of the kind committed by the appellant were personal and general deterrence. In her Honour's view, personal deterrence was, having regard to the appellant's prior convictions, a relevant sentencing consideration.[37]
[37] ts 659 - 660.
In ordering that the appellant serve the term of imprisonment that had been suspended by Stone DCJ, her Honour noted that the appellant was involved in 'two very distinct and separate courses of conduct, both of which were serious'. Accordingly, her Honour said cumulation of the concurrent sentences on the indictment and the previously suspended term of imprisonment was required.[38] Her Honour was not satisfied that it would be unfair or unjust to order that the appellant serve the entire term of suspended imprisonment, having regard to the fact that the appellant committed the offences on the indictment 'only days after [the appellant was] placed on the suspended term'.[39]
[38] ts 662.
[39] ts 661.
The amended grounds of appeal
The grounds of appeal as amended at the hearing are as follows:
1.The learned sentencing judge made errors in respect of certain of [sic] her factual findings which resulted in the sentencing judge finding that the facts were objectively more serious than all of the evidence justified, resulting in the imposition of an overall sentence which was higher than the objective facts warranted.
Particulars
(a)The learned sentencing judge made assumptions about the applicant's use of bitcoins, resulting in factual conclusions as to the connection between the use of bitcoin and other uncharged acts;
(b)The learned sentencing judge erred in concluding that the offending was not an isolated transaction on the basis that '[t]here were also two other Express Post envelopes depicted on [the appellant's] phone which were capable of holding the quantity of drugs that you have been convicted of in this case'.
(c)The learned sentencing judge erred in concluding that the offending constituted a sophisticated enterprise;
(d)The learned sentencing judge erred in wrongly [characterising] the offending as brazen, and the applicant as having confidence that he would not get caught, when there was no evidence to support those characterisations.
2.Regardless of whether the express errors in ground 1 are found to be made out, the sentence imposed on count 1 was manifestly excessive.
Both grounds are focused on count 1 on the indictment.
Ground 1 - the appellant's submissions
As explained in the appellant's written and oral submissions, ground 1, in effect, alleges that the learned sentencing judge erroneously found, as aggravating sentencing factors, that:
1.The appellant possessed all the MDMA pills with the intention of selling them to others for profit. The appellant argues that her Honour should have found that the appellant possessed the MDMA pills with the intention of supplying them for free to his friends and associates at the Stereosonic Festival scheduled to take place on 29 November 2015.[40]
2.The commission of count 1 was not an isolated transaction, and that the appellant had sold or supplied MDMA pills on other occasions. It was submitted by the appellant that there was insufficient evidence to support this finding.[41]
3.The offending was sophisticated, concealed and therefore 'more sinister'.[42] It was again submitted that there was insufficient evidence to support this finding.[43]
[40] ts 24 - 25; appellant's written submissions, pars 26(b), 37, 40(a) and (b); appeal ts 429. Note at trial the appellant denied wanting to 'give pills to [his] friends for Stereosonic': ts 479.
[41] Appellant's written submissions, pars 30(a), 32.
[42] Appeal ts 28.
[43] Appeal ts 28.
While the appellant's submissions refer to certain aspects of the evidence adduced at trial, no adequate analysis of this evidence was provided. That task was largely left to the court.
Ground 1 - the legal principles
The legal principles applicable to fact‑finding for the purposes of sentencing were stated by the High Court in R v Olbrich;[44] Cheung v The Queen[45] and, recently, in Filipou v The Queen.[46] The principles were explained by McLure P in PES v The State of Western Australia[47] as follows:
Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process: Cheung v The Queen … [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] ‑ [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non‑core facts, which must be found by the sentencing judge. Where a non‑core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt: R v Olbrich.
[44] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24] - [27], [51] - [55].
[45] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5], [9] - [11], [36].
[46] Filipou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].
[47] PES v The State of Western Australia [2014] WASCA 96 [37].
This statement of the relevant law was adopted in Tasovac v The State of Western Australia,[48] and by Buss and Mazza JJA in The State of Western Australia v Smith.[49]
[48] Tasovac v The State of Western Australia [2015] WASCA 24 [129].
[49] The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468 [171].
Ground 1 - the critical issue at trial
As defence counsel made clear in his opening address, the critical factual issue with respect to count 1 was whether the State could prove beyond reasonable doubt that the appellant attempted to possess the MDMA pills intercepted by the police at Perth Airport on 19 November 2015. Defence counsel put it this way:[50]
[C]an I just make this concluding observation; what is in dispute in this case is whether it was [the appellant] who was in effect responsible for arranging to have the drugs you saw up on the screen sent to Western Australia. Whether he intended to possess them, and had knowledge of their arrival, or intended arrival.
[50] ts 35 - 36.
While the element of intention to sell or supply was not conceded, at no time did defence counsel contend that, if the appellant attempted to possess the MDMA pills, they were for his own use.
The evidence
The State's case as to the element of attempted possession in count 1 was circumstantial.[51] Very little of the evidence adduced on behalf of the State was seriously challenged. For example, there was no challenge to the content of the WhatsApp messages, or that the appellant kept track of the relevant Express Post parcel, or that he had software on his computer which enabled access to the dark web.[52] Evidence adduced by the State at trial or conceded in the sentencing proceedings bore out the factual matters set out in [14] ‑ [20] of these reasons.
[51] ts 27 - 28, 32 - 33.
[52] ts 545 - 547, 550, 553.
The material downloaded by the police from the appellant's iPhone will be referred to shortly. It is enough, for the time being, to note that it pointed to the appellant having an interest in MDMA and, in particular, banana‑shaped MDMA pills and, further, that others he was communicating with had a similar interest.[53]
[53] See, generally, ts 65 - 67, 73, 126, 128, 135 - 136.
Detective Bradley Marron gave expert testimony to the effect that, in November 2015, the average price for a single MDMA pill was approximately $35 and, if purchased in bulk, 100 pills may cost approximately $14 per pill.[54] No real challenge was made to this evidence.[55]
[54] ts 218.
[55] ts 235.
The appellant testified in his defence. Essentially, he testified that he had nothing to do with the parcel of MDMA pills seized by the police. Specifically, he did not arrange for the package containing the MDMA pills to be sent to him.[56] It was his case that someone had used a derivative of his name and his address 'as a drop‑house'. That is, as a place where the pills would be delivered and picked up by someone else without the appellant's knowledge or consent.[57] He admitted that he used a particular kind of browser and accessed the dark web to satisfy his curiosity.[58] He admitted attempting to track the package which ultimately contained the MDMA pills, but only because he became afraid that he was being, in effect, set up.[59] Under cross‑examination, he gave various explanations for some of the statements he made in the course of WhatsApp conversations he engaged in,[60] but he denied that they showed that he had engaged in or intended to engage in the sale or supply of MDMA pills to others. He admitted that he intended to attend the Stereosonic festival held on 29 November 2015.[61]
[56] ts 417, 447.
[57] See defence counsel's closing address, ts 551 - 552 and 557 - 558.
[58] ts 418 - 419.
[59] ts 419, 421, 426 - 427.
[60] ts 462 - 464, 466 - 475, 480 - 488, 492 ‑ 495.
[61] ts 449.
The appellant's iPhone
Data retrieved from the appellant's iPhone showed that he had searched a web browser on 5 November 2015 to inquire about 'OzKing Abraxas, darknet markets Oz'[62] and that he had sought the following information, 'What's OzKing 120 mg banana pills like? And has anyone bought any elbows of him or tried his weed? What's are they both like out of 10? I know everyone is different too Abraxas markets'.[63] Later on 5 November 2015, the appellant posed the online question, 'Can anyone vouch for Aussie pill vendor OzKing, AG marketplace'.[64]
[62] ts 65.
[63] ts 65.
[64] ts 66.
The web browser records also revealed searches made by the appellant between 20 November 2015 and 24 November 2015 which indicated that the appellant was concerned about the late delivery of a parcel sent by Express Post.[65]
[65] ts 66 - 68.
Text messages retrieved from the appellant's iPhone showed purchases of Bitcoin between 22 October 2015 and 23 November 2015.[66]
WhatsApp chat logs
[66] ts 59 - 63; exhibit 10.
As part of its case, the State tendered at trial a schedule of selected WhatsApp chat logs from the appellant's iPhone.[67] It is to be noted that chats using WhatsApp can involve more than two participants.[68]
[67] ts 143; exhibit 12.
[68] ts 69.
On 4 June 2015, the appellant and Kimberley Lim chatted. In the course of that exchange, the appellant asked Kimberley Lim to transfer to him $15 in the context, presumably, for dinner.[69] On 20 June 2015, in an exchange with a person called Faiz Mansor, the appellant, when asked what he was 'up to this weekend', responded, 'I'm a poor c…'.[70]
[69] ts 101 - 102; exhibit 12, page 32.
[70] ts 91 - 92; exhibit 12, page 23.
On 15 July 2015, the appellant engaged in a WhatsApp chat with several others about attending the Stereosonic festival.[71]
[71] ts 74 - 76; exhibit 12, pages 6 and 7.
On 18 October 2015, the following WhatsApp chat took place between the appellant and an unknown person:[72]
[72] ts 125 - 126; exhibit 12, page 54, at the trial the appellant identified the unknown person as 'John', a friend from university: ts 469.
UNKNOWN PERSON: Btw wanted to ask about the candies
APPELLANT: Give me 2/3 weeks bro
APPELLANT: If that's all good
UNKNOWN PERSON: Ok ok [sic] no worries
APPELLANT: I'll let u [sic] know as soon as I get to it
UNKNOWN PERSON: Cool bro.. The bananas?
APPELLANT: Yeh [sic] bro
UNKNOWN PERSON: Cool
MDMA is sometimes pressed into the form of lollies.[73] 'Banana' is a reference to banana‑shaped MDMA pills.[74]
[73] ts 222.
[74] ts 471.
On 4 November 2015, the appellant and the same unknown person exchanged these messages:[75]
[75] ts 126 - 128; exhibit 12, page 54.
UNKNOWN PERSON: Im keen on getting em bananas [sic]
UNKNOWN PERSON: Seems to be a good supplement
UNKNOWN PERSON: Lol
APPELLANT: Hahahah have u tried em yet? Or heard of em? [sic]
APPELLANT: I only got m atm haha [sic]
UNKNOWN PERSON: Heard it's good
UNKNOWN PERSON: I can get some good m [sic]
UNKNOWN PERSON: If u want can let me know [sic]
APPELLANT: Hahaha I still haven't even tried em [sic]
APPELLANT: Ialrdy have quite a bit of decent m [sic]
UNKNOWN PERSON: M is too clean [sic]
APPELLANT: Ahahaha u [sic] like the dirty ones hey lol? [sic]
APPELLANT: Ones with speed n shit [sic]
UNKNOWN USER: No no not that dirty…
UNKNOWN USER: I like those like the ones in asot those kind [sic]
UNKNOWN USER: Lol
APPELLANT: Hahaha
APPELLANT: Get some from Malay bro
APPELLANT: ;)
On 16 November 2015, the unknown person sent a WhatsApp message to the appellant saying, 'Eh bro still looking for something good la' and 'Can help.. lol'. The appellant responded a short time later, 'Yeh getting bananas this week bro'.[76] The chat continued:[77]
UNKNOWN PERSON: Sweet bro let me know
APPELLANT: Will do
APPELLANT: U [sic] going stereo?
UNKNOWN PERSON: Depends
UNKNOWN PERSON: If got anything good
UNKNOWN PERSON: U [sic] confirmed?
APPELLANT: Yep confirmed
'Stereo' may be accepted as being a reference to the Stereosonic festival.[78]
[76] ts 128; exhibit 12, page 55.
[77] ts 128 - 129; exhibit 12, page 56.
[78] ts 472.
On 28 October 2015, the appellant and Ben Ngo[79] chat as follows:[80]
[79] Ben Ngo was referred to in the trial transcript as 'Ben No', in error.
[80] ts 87 - 89; exhibit 12, page 18.
APPELLANT: Still need a ticket?
BEN NGO: Yep
BEN NGO: Did you manage to find one
APPELLANT: Yeh [sic] I think so
APPELLANT: Not sure but I'll ask
BEN NGO: Ok thanks :)
APPELLANT: 150
APPELLANT: Comes in a package though o[81]
[81] This square represents a character that could not be interpreted in downloading the content on the mobile phone: ts 87.
BEN NGO: cool :)
BEN NGO: How many?
APPELLANT: 3 lollies hahah
APPELLANT: Nah we sort that out later [sic]
BEN NGO: Thanks :)
BEN NGO: So 150 for everything?
APPELLANT: Nah just for the ticket haha
BEN NGO: Ohh ok
BEN NGO: Give money to u [sic]?
APPELLANT: Yeh [sic]
BEN NGO: Thanks o o
On 31 October 2015, the appellant and Duy Trinh chat in these terms:[82]
[82] ts 123 - 125; exhibit 12, page 52.
APPELLANT: R u [sic] home today?
APPELLANT: Forgot to give u [sic] the happys and pick up potato salad
DUY TRINH: Haha oh yeah
DUY TRINH: What time it hinkibg [sic] of dropping by?
DUY TRINH: I will drop by urs [sic]
DUY TRINH: And drop it off instead
DUY TRINH: Be easier?
APPELLANT: Wenever [sic] is fine
APPELLANT: I'll be home all night
DUY TRINH: Yeah I do that
APPELLANT: Okie
DUY TRINH: Ok I let u know when I swing by [sic]
APPELLANT: No worries. Yeh [sic] just come by wenever u [sic] want
DUY TRINH: be there in 30
It may be inferred, based on the euphoric effect of MDMA,[83] that 'happys' is a code word for MDMA.[84] In context, the meaning of 'potato salad' cannot be literal and it can be inferred that it is a code word for cash.
[83] ts 212.
[84] The appellant expressly denied that 'happy' was a code word for MDMA: ts 485.
On 13 November 2015, Duy Trinh sent a WhatsApp message to the appellant, telling him, 'The Happys were good worked!'.[85]
[85] ts 124; exhibit 12, page 52.
On 19 October 2015, the appellant and Ben Ngo exchanged these messages about the upcoming Stereosonic festival:[86]
[86] ts 85 - 86; exhibit 12, page 16.
BEN NGO: Hey Benta
BEN NGO: Are you going to stereo
BEN NGO: Does anyone have tickets
APPELLANT: Yep I am.
APPELLANT: And yeh [sic] I do have ticks
BEN NGO: Cool! Can you save you save one for me [sic]
APPELLANT: Nah I got my own lol
APPELLANT: Don't have money to get for everyone this year
The word 'ticks' may be taken to be a reference to tickets for the Stereosonic festival.
After the appellant is told by Ben Ngo that he (Ngo) requires only one ticket for the Stereosonic festival, the chat continued:[87]
[87] ts 86 - 87; exhibit 12, page 17.
APPELLANT: And other stuff too?
BEN NGO: Yep
BEN NGO: o o o o
APPELLANT: 2? 3?
BEN NGO: 2
APPELLANT: No worries
BEN NGO: Should be enough
APPELLANT: Haha yeh shud [sic] be
APPELLANT: I'll save 3 anyway
BEN NGO: Awesome o o
The reference to 'other stuff', when read in context, may be taken as a reference to MDMA.
On 25 November 2015, the appellant and Daniel Franklin chatted as follows:[88]
[88] ts 90 - 91; exhibit 12, page 21.
DANIEL FRANKLIN: Uo y [sic]
DANIEL FRANKLIN: Need more than 5 buzz
DANIEL FRANKLIN: Plz
APPELLANT: Maybe. Lemme sort this first one out first.
APPELLANT: First lot not confirmed yet
DANIEL FRANKLIN: K
DANIEL FRANKLIN: Alive?
APPELLANT: Haven't 100% confirmed anything yet. But trying my best to soon
DANIEL FRANKLIN: Well
DANIEL FRANKLIN: Try
DANIEL FRANKLIN: Harder
DANIEL FRANKLIN: Bahahah
The word 'buzz' may be taken to be a reference to MDMA.[89]
[89] The appellant denied 'buzz' was another word for MDMA: ts 449 - 450.
There are a number of references in the WhatsApp chat log to money being paid to the appellant. Not all of these appear to be drug related. However, on 25 November 2015, the appellant and others engaged in a group chat concerning the payment of money to the appellant. Ultimately, the appellant wrote, 'Hahaha all good for cash on the day' and 'Too many ppl send me money they might think I'm Pablo Escobar soon hahaha'.[90] Of course, Pablo Escobar is the name of a notorious international drug dealer.
[90] ts 132 - 133; exhibit 12, page 60.
Also on 25 November 2015, the appellant chatted with Leanne Nguyen. In the course of the chat, the following exchange took place:[91]
[91] ts 135 - 136; exhibit 12, page 63.
APPELLANT: What u [sic] got for stereo
LEANNE NGUYEN: Bananas
LEANNE NGUYEN: U [sic]
APPELLANT: The ones that look like bananas?
LEANNE NGUYEN: Yeah haha
LEANNE NGUYEN: Looks like a little bag of sillies
LEANNE NGUYEN: Willies
APPELLANT: Hahaha we have them too
The word 'willies' is a reference to MDMA.[92]
[92] See defence counsel's closing address, ts 554.
On 30 November 2015 (the day after the Stereosonic festival), a person named Kim Nguyen and the appellant chatted in these terms:[93]
KIM NGUYEN: Hullo o how much do I owe u [sic]?
KIM NGUYEN: I'm not too sure lol
APPELLANT: Hello
APPELLANT: Umm, jst [sic] the house and 1 x stuff right?
APPELLANT: Think 50 is enuf [sic]
KIM NGUYEN: Yah [sic] okay I shall transfer now o thanks :)
APPELLANT: Cool cheers
[93] ts 139 - 140; exhibit 12, page 65.
In context, '1 x stuff' is, in context, a reference to one MDMA pill.[94]
[94] The appellant denied that 'stuff' was a reference to MDMA: ts 463.
A short time later, Kim Nguyen sent a photograph showing that she had transferred to the appellant the sum of $50.[95]
[95] ts 141; exhibit 12, page 66.
Ground 1 - disposition
The core facts, that is, the facts necessarily implicit from the verdict of guilty on count 1, are that the appellant attempted to possess the 100 MDMA pills intercepted by police officers on 19 November 2015 with the intention of selling or supplying at least some of them to another. In the context of the State's case against the appellant, the jury must have been satisfied beyond reasonable doubt that the appellant ordered the 100 MDMA pills over the darknet and paid for them by Bitcoin with the intention of obtaining them and selling or supplying at least some of them to others.[96]
[96] ts 502, 542.
However, it is not possible, from the jury's verdict alone, to determine whether the appellant attempted to possess the MDMA with the intention to sell it, as opposed to supply it, to others. It is also not possible to determine how much of the MDMA would have been sold or supplied. These were non‑core facts to be decided by the learned sentencing judge. On the assumption that they were aggravating facts, it was necessary for them to be established by the State beyond reasonable doubt.
The proper approach to her Honour's task required her to assess the relevant evidence as a whole and not in a piecemeal fashion. It is evident from the sentencing remarks that her Honour assessed the evidence as a whole.
It is also important to have regard to the findings of fact actually made by her Honour. Her Honour did not make an express finding that the appellant possessed the MDMA pills with an intention of selling or supplying all of them to others. In the plea in mitigation, defence counsel did not ask her Honour to make a finding that a proportion of the MDMA pills he attempted to possess were for his own use. Instead, the focus of the plea in mitigation was the general assertion that the appellant attempted to possess the MDMA pills with the intention of supplying them free to his friends and associates.[97]
[97] ts 614, 616, 618 - 619, 631.
Her Honour clearly rejected this submission. Her Honour's finding as to 'profit' was limited to a finding that the appellant attempted to possess the drugs with a view to selling with the intention of defraying the costs associated with his own drug use.[98] In our opinion, it was well open to her Honour to come to this conclusion beyond reasonable doubt, having regard to a combination of the following factors:
(1)The appellant was a user of MDMA. So were his friends and associates.[99]
(2)The appellant was in debt in the sum of $150,000.[100] In June of 2015, he was complaining that he was poor.[101] On 19 October 2015, in a WhatsApp chat with Ben Ngo, he said that he did not have the money to get tickets for everyone for the upcoming Stereosonic festival.[102] While it may be accepted that the appellant was employed in November 2015 and earning $65,000 per annum, he remained in substantial debt.[103]
(3)The appellant attempted to possess a substantial number of MDMA pills, many more than he could be expected to use. If sold singly, the pills were worth, in total, $3,500.[104] Given the appellant's financial circumstances, it beggars belief he would have given them away to his friends.
(4)The cash found in his bedroom was reasonably suspected of being unlawfully obtained.
(5)The WhatsApp chat records indicate that the appellant was intending to distribute MDMA pills at the Stereosonic festival and be paid money for them. See, for example, the group chat on 25 November 2015 referred to in [65] of these reasons.
(6)As we will explain below, other WhatsApp chats reveal that the appellant had dealt in MDMA in the past.[105]
[98] ts 658.
[99] ts 412, 448.
[100] ts 614, 617.
[101] See [54] above.
[102] See [62] above.
[103] ts 461, 617.
[104] ts 222.
[105] See [75] below.
In our opinion, the WhatsApp chat records reveal that the commission of count 1 was not an isolated transaction and that he had dealt in MDMA in the past. This conclusion was compelling having regard to the WhatsApp chats noted at [56], [59], [60] and [63] above. The WhatsApp conversation recorded at [60] of these reasons, which refers to the appellant 'pick[ing] up potato salad' is particularly telling against the appellant and indicates that he had provided MDMA pills for cash.
There is no merit in the submission that the learned sentencing judge erred in finding that the appellant's offending was sophisticated and brazen. The appellant attempted to conceal his activities by using the darknet and by making payments via Bitcoin, plainly with the intention of making his wrongdoing more difficult to detect. These measures may be properly characterised as sophisticated. The fact that the appellant arranged for the MDMA pills to be sent to him, using a variation of his first given name and to his home address, shows that he was confident that the anti‑detection measures he had taken were effective. In this way, it may fairly be said that the offending was brazen.
In our opinion, the learned sentencing judge did not err in finding the aggravating factors set out in [40] of these reasons. As argued, this is sufficient to deal with ground 1. Ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.
Ground 2 - manifest excess
The appellant submitted, in argument, that the sentence on count 1 was manifestly excessive. Some emphasis was given to the appellant's personal circumstances and the quantity of MDMA pills he attempted to possess with intent to sell or supply.
The general principles governing this ground are well established. Sentencing is a discretionary exercise. An appellate court may intervene only if the appellant demonstrates either an express or implied material error. An allegation of manifest excess is an allegation of implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. It flows from this that 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.
To determine whether an individual sentence is manifestly excessive, the sentence needs to be viewed in the 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.
With respect to the range of sentences customarily imposed, it must be borne in mind that such a range 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 variation in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
The comparable cases reveal that the major sentencing considerations for offences of dealing or attempting to deal or traffic 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.
An attempt to possess prohibited drugs with intent to sell or supply to another carries the same maximum penalty as the completed offence. An offence of attempt is not generally to be treated as less serious than a completed offence where the only reason that the offence was not completed, as in this case, was the interception of the drugs by authorities.
MDMA has been categorised as being in the high end of the scale of seriousness in the hierarchy of prohibited drugs and in the same category as heroin and cocaine.[106]
[106] Leckie v The State of Western Australia [2018] WASCA 91 [29] - [31].
As we have already stated, the learned sentencing judge did not err in concluding that the offending constituted a sophisticated enterprise. The appellant sourced the MDMA via the darknet and paid for it by Bitcoin. The darknet and Bitcoin were use to anonymise, and thus to conceal, the appellant's actions. It is evident from the web searches undertaken by the appellant and the WhatsApp chats that the appellant deliberately sought out the banana‑shaped MDMA pills and that he did so with the intention of selling them for use at the Stereosonic festival on 29 November 2015.
The appellant attempted to obtain the MDMA pills to sell them. The evidence was to the effect that when purchased in lots of 100 pills the cost per pill was $14, but if the pills were sold individually they would fetch approximately $35 each.[107] Thus, the appellant stood to gain commercially from the sale of the pills, at least to the extent that he was able to fund his own consumption of the drug. The fact that the appellant had such an intention does not detract from the commercial nature of the offence and is not mitigating.
[107] ts 222.
The offending took place against the background that the appellant had, in the past, sold or supplied prohibited drugs to others. While the appellant cannot be sentenced for offences for which he was not charged, the fact that count 1 was committed against the background of previous drug dealing underscores the need for personal deterrence. Of course, general deterrence remains an important sentencing consideration.
There were favourable aspects to the appellant's personal circumstances, but, when weighed against the fact that count 1 was committed while the appellant was subject to the SIO and the need for personal and general deterrence, their weight is limited. Acknowledging that the appellant's plea of not guilty is not to be, in any way, held against him, he did not have, as a mitigating factor, a plea of guilty. At 25 years of age when count 1 was committed, youth could only be accorded little weight.
As to the comparable cases, the appellant referred in his written submissions to Stokes v The State of Western Australia;[108] Rinaldi v The State of Western Australia;[109] Franklin v The State of Western Australia;[110] The State of Western Australia v Doyle.[111]
[108] Stokes v The State of Western Australia [2016] WASCA 87.
[109] Rinaldi v The State of Western Australia [2017] WASCA 48.
[110] Franklin v The State of Western Australia [2017] WASCA 102.
[111] The State of Western Australia v Doyle [2017] WASCA 207.
The appellant also referred to Hughes v The State of Western Australia;[112] Santos v The State of Western Australia[113] and Al‑Rafei v The State of Western Australia.[114] The facts and circumstances of these cases are so far removed from the present case as to make them inappropriate comparators.
[112] Hughes v The State of Western Australia [2015] WASCA 164.
[113] Santos v The State of Western Australia [2016] WASCA 107.
[114] Al‑Rafei v The State of Western Australia [2017] WASCA 4.
In oral argument, the appellant's counsel principally referred to Franklin v The State of Western Australia, but frankly and correctly conceded that the outcome in that case was unhelpful to the appellant.[115] The other cases do not need to be discussed in detail because they are clearly distinguishable from the present case.
[115] Appeal ts 20 - 21.
In our opinion, there is nothing in the cases referred to by the appellant which points to the sentence imposed in this case being manifestly excessive.
Having regard to all relevant sentencing considerations, we have not been persuaded that the sentence of 4 years' immediate imprisonment imposed on count 1 was unreasonable or plainly unjust. The sentence reflected a proper exercise of the sentencing discretion. Ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.
Conclusion and orders
Neither ground of appeal has any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
The orders we would make are:
1.Leave to appeal is refused on grounds 1 and 2.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza22 MARCH 2019
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