Tran v The State of Western Australia
[2016] WASCA 37
•29 FEBRUARY 2016
TRAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 37 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:181/2015 | 1 FEBRUARY 2016 | |
| Coram: | BUSS JA MAZZA JA | 29/02/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THI HOANG LAN TRAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted after trial of possessing methylamphetamine with intent to sell or supply it to another 13.9 g of methylamphetamine with a purity between 66% and 69% Primary judge imposed a sentence of 3 years 9 months' immediate imprisonment Whether sentence manifestly excessive Leave to appeal refused |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a) |
Case References: | Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Bui v The State of Western Australia [2014] WASCA 168 Cant v The State of Western Australia [2009] WASCA 188 Chu v The State of Western Australia [2012] WASCA 135 Dann v The State of Western Australia [2006] WASCA 254 Dao v The State of Western Australia [2007] WASCA 237 Formica v The State of Western Australia [2013] WASCA 237 Karakuyu v The State of Western Australia [2012] WASCA 75 Le v The State of Western Australia [2014] WASCA 120 Lynch v The State of Western Australia [2011] WASCA 243 Moreton v The State of Western Australia [2011] WASCA 258 The State of Western Australia v Hunter [2014] WASCA 87 The State of Western Australia v Littlefair [2013] WASCA 177 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 37 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : PETRUSA DCJ
File No : IND 1799 of 2014
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of possessing methylamphetamine with intent to sell or supply it to another - 13.9 g of methylamphetamine with a purity between 66% and 69% - Primary judge imposed a sentence of 3 years 9 months' immediate imprisonment - Whether sentence manifestly excessive - Leave to appeal refused
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Bui v The State of Western Australia [2014] WASCA 168
Cant v The State of Western Australia [2009] WASCA 188
Chu v The State of Western Australia [2012] WASCA 135
Dann v The State of Western Australia [2006] WASCA 254
Dao v The State of Western Australia [2007] WASCA 237
Formica v The State of Western Australia [2013] WASCA 237
Karakuyu v The State of Western Australia [2012] WASCA 75
Le v The State of Western Australia [2014] WASCA 120
Lynch v The State of Western Australia [2011] WASCA 243
Moreton v The State of Western Australia [2011] WASCA 258
The State of Western Australia v Hunter [2014] WASCA 87
The State of Western Australia v Littlefair [2013] WASCA 177
1 BUSS JA: This is an application for leave to appeal against sentence.
2 On 10 August 2015, the appellant was convicted, after a trial in the District Court before Petrusa DCJ and a jury, of one count in an indictment.
3 The count alleged that on 6 November 2013, at Morley, the appellant and a co-offender, Thi Bach Lan Le, had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
4 The appellant was sentenced to 3 years 9 months' immediate imprisonment. A parole eligibility order was made. The sentence was backdated to 10 August 2015, being the date on which the appellant was taken into custody for the offence.
5 I would refuse leave to appeal and dismiss the appeal. My reasons are as follows.
The proposed ground of appeal
6 The proposed ground of appeal alleges that the sentence of 3 years 9 months' immediate imprisonment was manifestly excessive.
The facts and circumstances of the offending
7 The facts and circumstances of the offending, as found by the trial judge, were as follows.
8 On 6 November 2013, police executed a search warrant at a house in Morley. The appellant was living in the house with another person. When the police entered the house, the appellant was in the lounge room with her friend, the co-offender. The co-offender had arrived shortly before the police.
9 During their search of the house, the police located two clipseal bags, wrapped in tissue paper, behind a pillow on a couch in the lounge room. The co-offender had been sitting in front of that pillow. The clipseal bags contained, in total, 13.9 g of methylamphetamine. The drug had a purity between 66% and 69%.
10 The police also located $4,900 cash behind another pillow on the couch. The appellant had been sitting on that pillow. The cash comprised $50 and $100 notes and was partially wrapped in green plastic. A mixed DNA profile was identified on the green plastic. The appellant was a contributor to the mixture.
11 The police also located, on a coffee table in front of the couch where the appellant had been sitting, a black bag which the appellant admitted belonged to her. In the bag there were electronic scales, disguised as a DVD, and a bundle of small clipseal bags.
12 Further, on the coffee table was $900 cash in $50 notes and a storage container.
13 The appellant admitted to the police that she used methylamphetamine, but denied that the 13.9 g of the drug in the two clipseal bags or the $4,900 cash belonged to her. She said that the $900 cash on the coffee table was hers and that she had saved the money from Centrelink payments.
14 The State's case at trial was that, when the police entered the house, the appellant was participating in a drug deal with the co-offender. It was alleged that the appellant was either selling the methylamphetamine or was the purchaser of the drug. It was also alleged that, in each scenario, the appellant was either in possession or had procured possession of the methylamphetamine with intent to sell or supply it to another. The jury was not required to decide as between the scenarios. However, the trial judge found it was more likely that the appellant was the purchaser of the drugs. Her Honour added that, in any event, the precise role of the appellant did not affect her criminal culpability.
15 Her Honour found that the appellant dealt in illicit drugs in the 'upper mid-level' range (ts 469). Her Honour based that finding on the quantity, quality and value of the drug involved in the offending.
The appellant's personal circumstances
16 The appellant was aged 36 at the time of the offending and was 38 when sentenced. She was single, but had four children from two previous relationships. The children, who were aged 9, 11, 15 and 20 when the appellant was sentenced, resided with her mother.
17 The appellant was born in Vietnam. She lived in a refugee camp in Cambodia for five years from the age of 13. When she was 18 she came to Australia.
18 The appellant had a limited employment history. She had worked on a seasonal basis in market gardens. When she committed the offence the appellant was receiving Centrelink payments. She had little money and was in financial difficulties.
19 The appellant has a prior criminal record. On 11 December 2009, she was convicted in the District Court of possession of a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act. She was sentenced to 2 years' immediate imprisonment with parole eligibility.
20 On 10 December 2010, the appellant was released on parole. On 23 November 2011, she returned a positive urinalysis test to amphetamine and methylamphetamine. As a result, her parole was suspended on 29 November 2011 and cancelled on 8 December 2011. When questioned about the positive urinalysis, the appellant said 'someone must have put something in my drink'.
21 The information before the trial judge included a pre-sentence report dated 7 September 2015. The report reveals that the appellant continued to deny having committed the offence. She minimised her actions and blamed others (notably, the co-offender). The appellant told the author of the pre-sentence report that she was in good physical health. She admitted having used methylamphetamine 'occasionally'. However, despite her previous conviction, she denied ever having used heroin. By contrast, in a psychological report prepared in connection with the heroin offence, the appellant admitted using heroin on a regular basis for about three months in 2008. The author of the pre-sentence report said the appellant's offending appeared to be related to 'substance misuse, poor decision making, negative peer associations, poor consequential thinking and potentially financial issues' (4).
22 The trial judge found that there were no matters of mitigation in the appellant's personal circumstances.
The merits of the proposed ground of appeal
23 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
24 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
25 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
26 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
27 All of the propositions I have stated are well-established by the case law.
28 The maximum penalty for the offence of possessing methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
29 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
30 I have had regard to the sentencing dispositions in a range of cases including Dann v The State of Western Australia [2006] WASCA 254; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Dao v The State of Western Australia [2007] WASCA 237; Cant v The State of Western Australia [2009] WASCA 188; Lynch v The State of Western Australia [2011] WASCA 243; Moreton v The State of Western Australia [2011] WASCA 258; Karakuyu v The State of Western Australia [2012] WASCA 75; Chu v The State of Western Australia [2012] WASCA 135; The State of Western Australia v Littlefair [2013] WASCA 177; Formica v The State of Western Australia [2013] WASCA 237; The State of Western Australia v Hunter [2014] WASCA 87; Le v The State of Western Australia [2014] WASCA 120; Bui v The State of Western Australia [2014] WASCA 168; and the cases cited in those decisions.
31 The appellant's offence was serious. It involved 13.9 g of methylamphetamine with a high degree of purity between 66% and 69%. The appellant intended to distribute the drug into the community. The trial judge's unchallenged finding was that the appellant dealt in illicit drugs in the 'upper mid-level' range (ts 469). Her prime motivation appears to have been to fund her own drug use and to alleviate her financial difficulties.
32 The appellant was aged 36 when she committed the offence and 38 when sentenced. She was not youthful or inexperienced for sentencing purposes.
33 The appellant was not of good character. She had a prior criminal conviction for possession of heroin, with intent to sell or supply it to another, for which she was sentenced to 2 years' immediate imprisonment. The fact that the previous sentence did not achieve the purpose for which it was imposed did not aggravate the seriousness of her current offending, but it demonstrated that the current offence was not an aberration by a person who was otherwise of good character. Also, the previous offence underscored the importance of personal deterrence as a sentencing factor.
34 Although the appellant was, of course, entitled to proceed to trial, she could not claim the mitigation that a plea of guilty would have brought.
35 Her Honour found that there were no matters of mitigation in the appellant's personal circumstances. There is no challenge to that finding of fact. There was no evidence that the appellant had taken any steps with a view to her rehabilitation. She maintained her denial of the offending and was not remorseful.
36 The principal sentencing factors were appropriate punishment and personal and general deterrence.
37 In my opinion, the sentence of 3 years 9 months' immediate imprisonment was within the range open to the trial judge on a sound exercise of her discretion. The sentence is broadly consistent with the sentencing range that is discernible from generally comparable cases. After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness and all aggravating and mitigating factors, I am satisfied it is not reasonably arguable that the sentence was unreasonable or plainly unjust. In other words, it is not reasonably arguable that the sentence was manifestly excessive. The ground of appeal is without merit.
Conclusion
38 Leave to appeal should be refused because the proposed ground of appeal does not have a reasonable prospect of success. The appeal must therefore be dismissed.
39 MAZZA JA: I agree with Buss JA.
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