Tran v The State of Western Australia
[2010] WASCA 38
•2 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 38
CORAM: OWEN JA
WHEELER JA
NEWNES JA
HEARD: 3 FEBRUARY 2010
DELIVERED : 2 MARCH 2010
FILE NO/S: CACR 45 of 2009
BETWEEN: THI LAN TRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'SULLIVAN DCJ
File No :IND 939 of 2007
Catchwords:
Criminal law - Sentence - Two counts of possession of methylamphetamine with intent to sell or supply - Whether 4 year term of imprisonment manifestly excessive - Three further counts of possession of drugs with intent to sell or supply - Whether 9 year term of imprisonment offended totality principle
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Atherton v The State of Western Australia [2009] WASCA 148
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Giglia v The State of Western Australia [2010] WASCA 9
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Chan (1989) 38 A Crim R 337
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Higgins [2008] WASCA 157
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
OWEN JA: I agree with Newnes JA.
WHEELER JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against sentence. The appellant was convicted following trial on two counts of attempting to possess methylamphetamine with intent to sell or supply. The appellant pleaded guilty to three further counts of possession with intent to sell or supply of methylamphetamine, heroin and cannabis respectively.
The appellant contends, first, that the sentence of 4 years' imprisonment on one of the counts of attempted possession was manifestly excessive and, secondly, that the total effective term of 9 years' imprisonment was disproportionate to the overall offending.
Background
In June 2006, the appellant arranged for Ms Thi Duyen Luu to travel to Sydney to collect a quantity of methylamphetamine from a third party and deliver it to the appellant in Perth. On 22 June 2006, Ms Luu was arrested at Perth airport on her return from Sydney in possession of 27.3 g of methylamphetamine with 33% purity. The appellant was charged with attempting to possess methylamphetamine with intent to sell or supply (the first count) and Ms Luu was charged with possession of methylamphetamine with intent to sell or supply. (Ms Luu was convicted after trial and sentenced to 30 months' imprisonment.)
On 15 July 2006, Ms Ngo Thi Thu Ha was arrested at Perth airport on her return from Sydney in possession of 132 g of methylamphetamine with 70% purity. The appellant had arranged for Ms Ngo to travel to Sydney to collect the methylamphetamine for the appellant. The appellant was charged with a further count of attempting to possess methylamphetamine with intent to sell or supply (the second count) and Ms Ngo was charged with possession of methylamphetamine with intent to sell or supply. (Ms Ngo pleaded guilty and was sentenced to 28 months' imprisonment.)
The appellant was convicted of both charges of attempted possession following a 10 day trial in the District Court before O'Sullivan DCJ.
The appellant pleaded guilty to three further charges. They were one count of possession of methylamphetamine with intent to sell or supply,
one count of possession of cannabis with intent to sell or supply, and one count of possession of heroin with intent to sell or supply.
Those charges followed the execution by police of a search warrant on a house in Bedford, leased by the appellant, on 3 August 2006. At the house, police found methylamphetamine in two packages and also on the appellant's person (totalling 37.013 g), cannabis being grown hydroponically (60 large and 125 small to medium plants), heroin in two packages (totalling 41.4 g), and items commonly associated with drug dealing including scales, dilutants and plastic wrap. The appellant was found to have on her the sum of $7,100.
On 8 April 2009, the appellant was sentenced by O'Sullivan DCJ in respect of all the charges.
Sentencing remarks
The sentencing judge began by noting the appellant's personal circumstances. The appellant was at the time of sentencing 45 years of age. She was born in Vietnam as one of six children. She married in a refugee camp in Hong Kong and has four children who, at the time of sentencing, were aged 19, 14, 13 and 11 years respectively. The appellant was educated to a basic level in Vietnam and has had no further education since. The appellant has not worked in the 19 or so years she has been in Australia and has had difficulty in integrating.
His Honour noted that the appellant had had difficulty bringing up her children in poor circumstances and that she had been the victim of domestic violence, for which her ex‑husband had served a term of imprisonment. There had been concerns over the children's welfare in the past which had led to the involvement of the Department of Child Protection. The younger children were now being looked after by the appellant's ex‑husband.
His Honour noted that the appellant had a criminal record which included offences for dishonestly and drug offences. The appellant was a drug user, but it was not claimed that the offending was engaged in for the purpose of supporting a drug habit. The appellant had also been involved in gambling and claimed to have debts of $20,000.
The sentencing judge observed that the appellant's role in the distribution hierarchy was significantly higher than that of the couriers, Ms Luu and Ms Ngo. The appellant had arranged for the drugs to be collected in Sydney and brought to Perth, and had been involved in providing money and other incentives to the couriers for that purpose.
His Honour sentenced the appellant to 4 years' imprisonment on the first count and 5 years' imprisonment on the second count.
In respect of the three offences to which the appellant had pleaded guilty, the sentencing judge noted that the appellant's co‑offender had been sentenced to 2 years' imprisonment on each charge, with a total effective sentence of 4 years' imprisonment. His Honour concluded that for considerations of parity the appellant should receive a sentence of 2 years' imprisonment on each count.
The sentencing judge then turned to the issue of totality. He found that the terms of imprisonment on the first two counts, of 4 years' and 5 years' respectively, should be served cumulatively, and the terms of imprisonment on the remaining three counts should be served concurrently with each other and with the first two counts, making a total effective sentence of 9 years' imprisonment. The appellant was made eligible for parole.
Grounds of appeal
The appellant relied on the following grounds of appeal:
(1)The sentence imposed in relation to attempting to possess 27.3 g of methylamphetamine of four years imprisonment was in the circumstances manifestly excessive given:
(a)That the appellant was sentenced to five years imprisonment for a much larger quantity of methylamphetamine at the same time.
(b)Her antecedents and the appropriate range of sentences usually imposed for offending of the kind in question.
(2)Further and in the alternative, the learned sentencing judge erred in ordering that the four year and five year terms imposed for the two offences of attempting to possess methylamphetamine with intent be served cumulatively. The resultant nine year term was, in the circumstances, manifestly excessive in its totality.
The disposition of the appeal
It is necessary to observe at the outset that the second ground of appeal was advanced upon the basis that the effect of making the sentences on the two counts cumulative was to impose an effective sentence which was disproportionate to the overall offending. It was not contended that the two offences constituted one transaction. Nor, in my view, could it have been. They were separate offences taking place on different days, involving different couriers, and both represented a 'separate occasion of potential harm to the community': Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [89].
The effect of the totality issue raised by the second ground of appeal is to subsume, for all practical purposes, the first ground of appeal. As Owen JA pointed out in Giglia v The State of Western Australia [2010] WASCA 9 [39], on an appeal of this nature the real issue is whether the total effective sentence offended the totality principle, not whether one or more individual sentences were excessive. His Honour explained:
There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive [40].
While ultimately the outcome of the appeal will therefore depend upon whether the effective term of 9 years' imprisonment offended the totality principle, as both grounds of appeal were fully argued it is appropriate to deal with each.
Ground 1
When considering whether a sentence is manifestly excessive, it is necessary to view it in light of the maximum sentence prescribed by law for the crime (in this case 25 years' imprisonment), the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337, 342.
An appellate court may not intervene simply because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325.
In Bosworth v The State of Western Australia [2007] WASCA 144 [41], Miller JA reviewed a number of cases involving sentences for possession of methylamphetamine with intent to sell or supply and concluded that in cases involving quantities of methylamphetamine of between 3 g and 65 g, sentences (converted in accordance with the post‑transitional provisions) had ranged from between 2 and 5 years. His Honour concluded that sentences under the new regime (the post‑transitional regime) were often between 2 and 4 years' imprisonment but sometimes more [42]. His Honour observed that most of the cases he had reviewed involved pleas of guilty. See also Atherton v The State of Western Australia [2009] WASCA 148 [377].
Sentencing ranges of this kind can, however, only provide general guidance. Each case turns on its own particular facts and circumstances. In The State of Western Australia v Higgins [2008] WASCA 157, Steytler P (with whom McLure and Miller JJA agreed) said [19]:
As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tullohv The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring).
It was accepted by counsel for the appellant that the customary range for offences involving an amount of methylamphetamine of between 3 and 65 grams was between 2 and 4 years' imprisonment. Counsel argued that in this case the amount of 27.3 g was at the lower end of that range. While the appellant was higher in the chain than a courier, it was obvious that she was not at the top of the chain but was taking directions from others above her. It was further submitted that it was a relevant consideration that this case involved not actual possession but only attempted possession of methylamphetamine, albeit the maximum penalty is the same. Counsel argued that the sentence of 4 years' imprisonment for the offence was disproportionate to the sentence of 5 years on the other count, which involved 132 g of greater purity, and that it was manifestly excessive.
The major consideration in the sentencing process in the case of an offence of this nature is personal and general deterrence: Borbil v The State of Western Australia [52]. While the amount of methylamphetamine involved is an important factor in determining an appropriate sentence, it is not the only factor. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]. Whether a sentence is manifestly excessive cannot therefore be determined simply by reference to the quantity of drugs involved.
In the present case, the offence was very serious. The fact that it involved an attempted possession, rather than actual possession, of methylamphetamine does not seem to me to be significant. The appellant did not come into possession of the methylamphetamine only because Ms Luu was intercepted by police at Perth Airport. But it was the appellant who arranged for Ms Luu to act as a courier to bring the methylamphetamine from Sydney and who was involved in paying Ms Luu for doing so. As the sentencing judge noted, the appellant's role in the distribution hierarchy was considerably greater than that of the couriers she engaged to bring the drugs into the State. It is also of significance that the methylamphetamine was not to support a drug habit of her own, but was intended to be used by the appellant in drug‑dealing for commercial gain. The drug dealing paraphernalia found at the Bedford house demonstrated that the appellant was operating as a commercial drug dealer.
There was little by way of mitigation. The appellant did not plead guilty but was convicted at trial. Her age was not a mitigating factor; the appellant was 45 years of age at the time of the offending. Nor was her record unblemished; the appellant has two previous convictions for summary offences involving the possession of drugs and a number of convictions for dishonesty. While the appellant had undergone substantial personal difficulties over a number of years, personal matters are of very limited weight in offences of this nature: see Tulloh [12], [43], [46].
The sentence of 4 years' imprisonment is at the upper end of the range. It is a severe sentence but I do not consider that it was manifestly excessive. The appellant was engaged in drug dealing for commercial gain, in which she had procured another person to act as a courier, and where there was nothing of significance by way of mitigation.
I am not persuaded that the sentencing judge erred in imposing a term of 4 years' imprisonment. I would dismiss the first ground of appeal.
Ground 2
As I have mentioned, the second ground of appeal turns on the question of totality. The totality principle was described by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 as comprising two limbs:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) [sic 1993] 20 WAR 201, 216 (Anderson J). [24] - [25]
In this case, no reliance was placed on the second limb. It was the appellant's case that the total sentence of 9 years' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct.
In order to determine this ground of appeal it is therefore necessary to consider the appellant's offending conduct overall. That conduct involved five serious offences. In addition to the two counts of attempted possession of methylamphetamine with the intent to sell or supply, the appellant was convicted on her own plea of possession of methylamphetamine (in an amount of 37.013 g) with intent to sell or supply, possession of heroin (in an amount of 41.4 g) with intent to sell or supply, and possession of cannabis (in an amount of 60 large and 125 small to medium plants) with intent to sell or supply. The appellant was also found to be in possession of items commonly associated with drug dealing and a large amount of cash.
The sentences of 2 years' imprisonment imposed in respect of each of the three offences to which the appellant pleaded guilty was in each case at the lower end of the range for such an offence. In the circumstances, they were relatively light sentences, even making due allowance for the fact that the appellant pleaded guilty. Those sentences were then made concurrent with each other and with the sentences on the first two counts.
While the appellant's drug dealing activities were not of a very large scale, they were not insubstantial and involved three drugs, methylamphetamine, heroin and cannabis. The fact that on two occasions the appellant arranged for others to act as couriers to collect a quantity of methylamphetamine in Sydney and bring it back to Western Australia indicates that this was not simply dealing of an opportunistic or impulsive kind. A degree of organisation lay behind it and it was, as I have said, carried on for commercial gain.
While the total effective sentence of 9 years' imprisonment is a heavy penalty, when considered in the context of the appellant's overall offending it cannot, in my view, be said that the sentence does not bear a proper relationship to the overall criminality.
In my view, ground 2 must fail.
Conclusion
I would dismiss the appeal.
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