Tran v The State of Western Australia [No 2] - [2025] WASCA 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TRAN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 102
CORAM:   MAZZA JA
HALL JA
VANDONGEN JA

HEARD:   11 JUNE 2024
DELIVERED          :   2 JULY 2025
FILE NO/S:   CACR 7 of 2021
BETWEEN:   VAN HOANG TRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 50 of 2023
BETWEEN: VAN HOANG TRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE AUDCJ
File Number            :   IND 1841 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of one count of possession of a prohibited drug with intent to sell or supply - Where drug was hidden in the centre console of a hire vehicle - Where appellant was driver of the hire vehicle - Where appellant claimed he had no knowledge of drug's existence - Whether appellant had requisite degree of knowledge for the purpose of establishing 'possession' over drug - Whether appellant suffered miscarriage of justice as a result of various alleged failures on the part of trial counsel

Criminal law - Appeal against sentence - Where appellant sentenced to 11 years' imprisonment for one count of offending - Where appellant's co‑offenders committed more counts of offending than appellant - Where appellant's co‑offender successfully appealed against sentence and was resentenced by Court of Appeal - Whether parity principle infringed

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Result:

CACR 7 of 2021
Leave to appeal refused
Appeal dismissed

CACR 50 of 2023
Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

CACR 7 of 2021

Counsel:

Appellant	:	In person
Respondent	:	J Whalley SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

CACR 50 of 2023

Counsel:

Appellant	:	S A Auburn
Respondent	:	J Whalley SC

Solicitors:

Appellant	:	Sharon Auburn Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

CGF v The State of Western Australia [2023] WASCA 187
Diamantopoulos v The State of Western Australia [2024] WASCA 82
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
House v The King [1936] HCA 40; (1936) 55 CLR 499
Le v The State of Western Australia [2023] WASCA 8
Luo v The King [2025] WASCA 36
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Ngo v The Queen [2017] WASCA 3
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Sturniolo v The State of Western Australia [2023] WASCA 147
Ta v The State of Western Australia [2022] WASCA 49
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
The State of Western Australia v Wilson [2015] WASCA 119
Tran v The State of Western Australia [2023] WASCA 125

JUDGMENT OF THE COURT:

This is an appeal against conviction (CACR 7 of 2021) and sentence (CACR 50 of 2023).
On 9 December 2020, the appellant was convicted, following a joint trial with Mr Phuoc Van Le in the District Court, before Goetze AUDCJ and a jury, of one count of possession of a trafficable quantity of methylamphetamine (being 2.875 kg with varying purities of between 78% ‑ 81%) with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (the offence). On 18 December 2020, the appellant was sentenced to 11 years' imprisonment.
The appellant appealed against his conviction by an appeal notice dated 28 January 2021. On 21 April 2021, a discontinuance notice was filed on the appellant's behalf, and, on 23 April 2021, this court issued a certificate of conclusion of criminal appeal signed by the Acting Court of Appeal Registrar. On 9 August 2023, this court set aside the discontinuance notice and the certificate of conclusion on the basis that the discontinuance notice was a nullity, thus enabling the appellant to pursue his appeal against conviction.[1]
[1] Tran v The State of Western Australia [2023] WASCA 125.
In the appeal against conviction, the appellant represented himself with the aid of an interpreter. He relies upon two grounds of appeal. Ground 1 alleges that the verdict of guilty was unreasonable or could not be supported by the evidence led at his trial. Ground 2 alleges, in essence, that the appellant suffered a miscarriage of justice by reason of the conduct of his trial counsel. The question of leave to appeal on each ground was referred to the hearing of the appeal.
In the appeal against sentence, the appellant was represented by counsel. The sole ground of appeal alleges, in essence, that the sentence imposed upon the appellant infringed the parity principle, having regard to the sentences that were imposed upon his two co‑offenders, Mr Le and Ms Dep Mong Ta. The appellant requires an extension of time in respect of his appeal against sentence, which was filed approximately two years and five months out of time. The question of leave to appeal on the sole ground of appeal was referred to the hearing of the appeal.

The charges against the appellant and his two co‑accused

The appellant, Mr Le and Ms Ta were charged on one indictment, which contained four charges; each of which was alleged to have occurred on 15 November 2018, at East Perth. The appellant, Mr Le and Ms Ta were jointly charged with count 1, which alleged that they each possessed a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act. Mr Le and Ms Ta (but not the appellant) were also jointly charged with counts 2, 3 and 4. Count 2 alleged that Mr Le and Ms Ta possessed a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Count 3 alleged that they both possessed a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another. Count 4 alleged that they both possessed a sum of cash that was the proceeds of an offence, namely the sale or supply of a prohibited drug to another person. Ms Ta pleaded guilty to counts 1, 2 and 4. Count 3 was discontinued as against her. Ms Ta was sentenced to a total effective sentence of 13 years 6 months' imprisonment. This was later reduced, on appeal, to a total effective sentence of 12 years' imprisonment: see Ta v The State of Western Australia.[2]
[2] Ta v The State of Western Australia [2022] WASCA 49 [77] ‑ [79].
On 9 December 2020, the appellant was found guilty of count 1. Mr Le was found guilty of counts 1, 2, 3 and 4. He was sentenced to a total effective sentence of 16 years 6 months' imprisonment. Mr Le appealed against his convictions, but not his sentence. He alleged that each of the four verdicts of guilty were unreasonable or unsupported by the evidence. On 13 January 2023, Mr Le's appeal was dismissed: see Le v The State of Western Australia.[3]
[3] Le v The State of Western Australia [2023] WASCA 8.
We will deal first with the appellant's appeal against conviction, and then his appeal against sentence.

Appeal against conviction

The State case at trial

As presented by the State prosecutor in his opening and closing addresses to the jury, the State case against the appellant was as follows.
In October and November 2018, police officers began investigating persons believed to be involved in a syndicate that was transporting significant quantities of a prohibited drug, namely methylamphetamine, from Melbourne to Perth. Among those thought to be involved were Mr Le, Ms Ta and the appellant.
According to the State, Mr Le, Ms Ta and the appellant each played different roles in the syndicate's operation. Mr Le was alleged to be its coordinator and planner. Ms Ta was also alleged to play a coordinating role, but not to the same degree as Mr Le. The appellant was recruited by Ms Ta to act as a courier. At Ms Ta's direction, the appellant transported methylamphetamine from Melbourne to Perth, by road, using a hire vehicle. Mr Le had no direct contact with the appellant, and vice versa. The appellant communicated only with Ms Ta. It was alleged that in both September and October 2018, prior to the commission of the charged offence, the appellant drove from Melbourne to Perth, at the behest of Ms Ta, in a vehicle she had hired for the appellant. No charges were laid against the appellant (or anyone else) in respect of those prior two journeys.
Relevantly to the charged offence, on 13 November 2018, Ms Ta hired a Toyota Kluger at Tullamarine Airport in Victoria. Later, Ms Ta gave the vehicle to the appellant, with the intention that he would drive it from Melbourne to Perth. Concealed within the centre console of the Toyota Kluger, in the space underneath the transmission lever, were 12 sealed cryovac bags containing a total of 2.875 kg of methylamphetamine, of varying purities ranging from 78% ‑ 81%. It was alleged by the State that Mr Le had directed Ms Ta to transport the methylamphetamine from Melbourne to Perth. It appears Mr Le was under the impression that Ms Ta would do this herself. However, she instead arranged for the appellant to transport the drug.
Late in the evening of 13 November 2018, the appellant proceeded to drive the Toyota Kluger across Australia. His wife accompanied him on the journey. They arrived in Perth late in the afternoon on 15 November 2018. By this time, the Toyota Kluger and its two occupants were under physical surveillance by Western Australian police officers.
At 5.39 pm on 15 November 2018, police officers observed the Toyota Kluger at a service station in Wooroloo. At 6.46 pm, the Toyota Kluger arrived at a hotel located on Great Eastern Highway in Rivervale. There, police observed the appellant and his wife exit the vehicle and go into a room in the hotel. At 7.37 pm, police watched the appellant get back into the Toyota Kluger alone and drive to Mount Street in Perth, near the Rendezvous Hotel; arriving there at about 7.58 pm. The appellant parked the Toyota Kluger on a street near the Rendezvous Hotel.
Meanwhile, also on 15 November 2018, Ms Ta flew from Melbourne to Perth. At about 7.00 pm, police officers observed Ms Ta's arrival at Perth Airport. She then travelled by taxi to the Rendezvous Hotel, arriving at 7.41 pm.
Ms Ta and the appellant met in a cul‑de‑sac outside the Rendezvous Hotel, near the location of the parked Toyota Kluger. The appellant was observed handing the keys to the Toyota Kluger to Ms Ta. He then went inside the Rendezvous Hotel. Ms Ta then drove the Toyota Kluger from the Rendezvous Hotel directly to the gate of the carpark of a unit located at 60 Forrest Avenue, East Perth (the East Perth address). There, a man named ELA was waiting for Ms Ta. Police observed ELA open the electronic gate to the carpark. Ms Ta then drove the Toyota Kluger into the carpark. At that point, a number of police officers, who had been lying in wait, exited their vehicles and arrested Ms Ta and ELA. They conducted a search of the Toyota Kluger and located 12 sealed cryovac bags that had been secreted under the centre console. The 12 bags contained a total of 2.875 kg of methylamphetamine.
Police also conducted a search of the East Perth address. Inside the unit, police officers located a number of items, including another 245.68 g of methylamphetamine (the subject of count 2), 528.65 g of heroin (the subject of count 3), and $361,000 in cash (the subject of count 4). The State did not allege that the appellant had any connection with the drugs, nor the cash, found inside the East Perth address.
At about the same time that detectives were arresting Ms Ta and ELA at the East Perth address, other detectives arrested the appellant inside the Rendezvous Hotel.
Later that evening, the appellant was interviewed by police. The interview was electronically recorded. Among the things said by the appellant in the interview were that:
(a)he lived in Melbourne;
(b)he drove the Toyota Kluger from Melbourne to Perth;
(c)he did not know that there were any drugs in the vehicle;
(d)he did not know Ms Ta very well, but he thought she was a nice person;
(e)Ms Ta gave him the Toyota Kluger because he wanted to take his wife across the country, to Perth;
(f)this was the third time he had been to Perth in 2018;
(g)he did not receive any money for driving the Toyota Kluger from Melbourne to Perth for Ms Ta; and
(h)his purpose for coming to Perth was 'just travelling'.
The State case against the appellant was that, when he drove the Toyota Kluger from Melbourne to Perth between 13 - 15 November 2018, he was in possession of the methylamphetamine that was later found in the centre console. The State case was that the appellant was knowingly in possession of the prohibited drug when he drove the Toyota Kluger from Melbourne to Perth, with an intention to supply the drug to another. As to the requirement of knowledge, the State alleged:[4]
[The appellant] had an awareness or belief in the likelihood in a sense there was a significant or real chance that he was in possession of a prohibited drug.

The defence case at trial

[4] ts 56.

The appellant did not give nor adduce any evidence in his defence.
As explained by the appellant's trial counsel, Mr Trowell KC, in his opening address to the jury, the appellant admitted that he drove the Toyota Kluger from Melbourne to Perth between 13 - 15 November 2018, and that it contained the 2.875 kg of methylamphetamine the subject of count 1. The appellant also admitted that he drove the Toyota Kluger to the Rendezvous Hotel on Mount Street in Perth, and handed the keys to Ms Ta.
The defence case focused on the element of knowledge. On behalf of the appellant, it was contended that the appellant did not 'possess' the methylamphetamine because he did not know of its existence in the vehicle that he drove from Melbourne to Perth. The defence case was that there was no direct evidence of the appellant's involvement with, or knowledge of, the drug found in the Toyota Kluger. Defence counsel highlighted that:
(a)the appellant made no admissions to the effect that he knew there were drugs in the vehicle, or from which it could be inferred that he had knowledge of the existence of the methylamphetamine;
(b)insofar as there was any evidence of intercepted text messages to which the appellant was a party, nothing stated in those text messages confirmed his knowledge of the drug; and
(c)there was no forensic evidence and, in particular, no fingerprint or DNA evidence that connected the appellant to the sealed packages of methylamphetamine, including an absence of evidence to support the conclusion that he put them in the vehicle.
Towards the end of defence counsel's opening address to the jury, he made the following admissions on behalf of the appellant, pursuant to s 32 of the Evidence Act 1906 (WA):[5]
The [appellant] admits that:
1.At the request of Dep Mong TA he drove a Toyota Kluger 302 XMX from Melbourne to Perth arriving on 15 November 2018.
2.For doing so he was to receive payment of $4,000 from Dep Mong TA.
3.He was accompanied on the journey by his wife Kim NGYUEN [sic], and booked into the Flag Motor Lodge at 129 Great Eastern Highway, Rivervale.
4.On the evening of 15 November 2018 he drove the Toyota Kluger 302 XMX to the Rendezvous Hotel at Mount Street, Perth, where he met Dep Mong TA and gave her the keys to the vehicle. He remained at the hotel and was later arrested by police at around 8.33 pm[.]

The issue to be determined at trial

[5] Exhibit 1.

The State case at trial was not that the appellant was involved in the packaging or concealment of the drugs in the vehicle driven by him. It was apparent that the appellant was deliberately kept at arm's length by Ms Ta, and that he had no direct contact with Mr Le. Indeed, it appears that the State did not allege that the appellant was even aware of Mr Le's involvement in the offence.
The decisive issue to be determined in the appellant's trial was whether the State had proved the element of possession; in particular, whether the appellant knew that he was transporting a drug from Melbourne to Perth in the Toyota Kluger. The State case against the appellant on the question of knowledge was circumstantial. It was made clear to the jury that they could only be satisfied of the guilt of the appellant if an inference, that the appellant knew of the presence of the drug in the Toyota Kluger, was the only rational inference available to be drawn from the proven circumstances.

The evidence adduced at trial

It is only necessary to summarise the evidence adduced at trial that related to the State case against the appellant. This evidence may be set out relatively briefly because, as we have already mentioned, there was very little dispute about the factual circumstances of the alleged offence.
Covert Operative 333 testified that, on 27 September 2018, at about 8.00 am, the appellant was covertly observed in the vicinity of the Rendezvous Hotel beside a white Toyota Kluger hire car, 1GKC 230. Video footage recorded the appellant meeting Ms Ta on the street in front of the hotel. After engaging in conversation, the video footage showed Ms Ta drive off alone in the white Toyota Kluger, while the appellant entered the hotel.[6]
[6] Exhibits 38.1, 38.2.
On 6 October 2018, at about 6.04 pm, Covert Operative 810 observed the appellant driving a blue Toyota Kluger, 1LE 6YA, along Great Eastern Highway. At 7.32 pm, Covert Operative 810 observed the appellant walking around the front of the Rendezvous Hotel, smoking a cigarette. At 8.30 pm, the appellant was observed sitting alone at a table in the lobby bar of the hotel. Between 9.17 pm and 9.25 pm, the appellant was observed walking to, and then around, the blue Toyota Kluger. Ms Ta and another man were observed to arrive at the hotel around 9.45 pm. The appellant, Ms Ta and the other man engaged in conversation, after which the appellant returned to the reception area of the hotel and Ms Ta drove off alone in the blue Toyota Kluger. The other man followed the appellant into the reception area of the hotel.
On 30 October 2018, at about 11.02 am, police intercepted a telephone conversation between the appellant and Ms Ta. A translation of the conversation revealed that the appellant and Ms Ta discussed the availability of potential hire cars. The appellant also asked Ms Ta whether money would be available for 'people' this month. Ms Ta indicated that she was unhappy and that she would tell the appellant when they met up.[7]
[7] Exhibit 34, voice call no 2.
On 13 November 2018, Ms Ta hired a grey Toyota Kluger, with licence plates 302 XMX, from Thrifty Car Rentals at Tullamarine Airport.[8]
[8] Exhibit 41, the hire car agreement.
The observations summarised at [13] ‑ [16] above were the subject of uncontroversial evidence from a number of covert operatives and need not to be repeated here.
The testimony of several covert operatives[9] was to the effect that Ms Ta was under continuous surveillance from the time that she picked up the Toyota Kluger near the Rendezvous Hotel until it was parked at the East Perth address.
[9] Covert Operative 333, Covert Operative 526 and Covert Operative 604.
Once Ms Ta and ELA were arrested, the grey Toyota Kluger was searched. The search was video recorded.[10] The recording showed the retrieval by police officers of the 12 sealed cryovac bags of methylamphetamine that had been secreted in a cavity under the centre console. The methylamphetamine can be seen in the footage only after the cover to the centre console is removed by the officers.
[10] Exhibit 7.

We have already referred to the appellant's electronically recorded interview with police on 15 November 2018. The significant aspects of this interview are summarised at [19] above.
It is convenient to deal with the appellant's grounds of appeal in reverse order.

Ground 2 - has the appellant suffered a miscarriage of justice as a result of a number of alleged 'failures' made by defence counsel?

The lengthy particulars to ground 2 allege that, in effect, defence counsel failed to:
(1)'clarify' that the appellant only transported what he believed was 'illegal cash' on two of the three occasions when he drove to Perth between September and November 2018;
(2)correct the trial judge when his Honour allegedly directed the jury that transporting cash from Melbourne to Perth proved the appellant's 'culpability' for the offence;
(3)'emphasise' that the State case was not supported by any forensic evidence, including any fingerprint or DNA evidence; that the appellant was not involved in hiding the methylamphetamine in the hire vehicle; and that the appellant believed he was transporting cash, as opposed to drugs, into Perth;
(4)point out that Ms Ta could have 'substituted' the cash with the methylamphetamine at some stage after she picked up the Toyota Kluger from the appellant in the vicinity of the Rendezvous Hotel on 15 November 2018 but before her arrival, a short time later, at the East Perth address.
The third alleged failure may immediately be dismissed. On no objective reading of defence counsel's addresses to the jury, particularly his closing address, could it be said that he failed to properly put the absence of forensic evidence as part of the defence case.
As for the fourth alleged failure, it is true that defence counsel did not suggest to the jury that Ms Ta may have, in effect, substituted the cash that the appellant claims he brought into Western Australia with the 12 sealed bags of methylamphetamine that the police discovered in the centre console of the Toyota Kluger when it was searched in the carpark of the East Perth address. However, for defence counsel to have put such an allegation would have been inconsistent with the unchallenged evidence led by the State that, from the time Ms Ta departed from the Rendezvous Hotel to the time of her arrival at the East Perth address, she was under continuous police surveillance.
For Ms Ta to have effected such a substitution, she would have had to remove the centre console cover. She could not have done this while driving the Toyota Kluger; rather, she would have had to stop the Toyota Kluger and then swap the cash for the bags of methylamphetamine. None of this would have escaped the attention of the covert surveillance operatives. It is also not apparent where the bags of methylamphetamine could have come from, nor where the cash could have gone. If it were to be suggested that Ms Ta met someone, on the relatively short drive from the Rendezvous Hotel to the East Perth address, this was not observed by any of the covert surveillance operatives.
None of the covert operatives who had Ms Ta under surveillance testified to the effect that they had observed Ms Ta 'substitute' cash for drugs. On their unchallenged testimony, Ms Ta had no opportunity to effect such a substitution.
Plainly, it was not in the appellant's interests, nor would it have been consistent with defence counsel's professional ethical obligations, to run an argument at trial alleging such a substitution without any factual basis.
This takes us to the first and second failures alleged by the appellant at [37] above. Underlying these alleged failures is an assertion that the 'true situation' was that the appellant honestly believed he was transporting 'illegal cash' from Melbourne to Perth, at the behest of Ms Ta. The fundamental difficulty with acceptance of these alleged failures on the part of defence counsel is that there was no evidence adduced at trial to this effect.
It will be recalled that the appellant did not give nor adduce any evidence at his trial. It appears that the appellant decided not to give or adduce evidence after he took the opportunity to give his lawyer instructions about his election, during a break in the trial which took place over a weekend.
Although the appellant was interviewed by police on 15 November 2018, at no point in that interview did he state that he believed he was bringing cash, and not drugs, into Western Australia. In fact, the first time that the appellant positively asserted the existence of this belief was in the proceedings before this court, concerning his application to set aside the discontinuance notice as a nullity. In support of that application, the appellant swore an affidavit on 5 July 2023.[11] In substance, he deposed that:
(a)he made three trips from Melbourne to Perth;
(b)the first trip, which occurred in September 2018, involved the appellant driving a vehicle hired by Ms Ta, which he referred to as an 'empty car' (that is, a car that was not carrying any cash), for 'orientation' purposes; and
(c)in respect of the two trips he undertook in October and November 2018, the appellant was told by Ms Ta that he was transporting 'illegal cash' from Melbourne to Perth.
[11] WAB 37 - 38.
In the draft chronology dated 30 January 2024, which he prepared for the hearing of this appeal,[12] the appellant states in considerable detail his version of events relating to his involvement in the three trips from Melbourne to Perth in September, October and November 2018. Again, he denied transporting any drugs into Western Australia in September 2018. Further, he said that he believed, based on what Ms Ta had told him, that on the October and November trips that same year he was transporting cash.
[12] WAB 39 - 44.
It is to be noted that the appellant did not seek to adduce his account of the matters referred to at [45] and [46] above as evidence in his appeal against conviction. In any event, there is no evidence that calls into question the accuracy of the appellant's trial counsel's statement that he made in the presence of the jury, namely, that the appellant 'chooses to exercise his right to remain silent and will not be testifying on his behalf or be calling witnesses in support'.[13] In those circumstances, the fact that the jury did not have any evidence of the account on which the appellant now wishes to rely presents an insurmountable obstacle to establishing that there was a miscarriage of justice.
[13] ts 487.
Having exercised his right to silence at trial, it is not open to the appellant to put before this court, on appeal, the 'true situation' in respect of the alleged offence, and to ask this court to act upon it. An accused person is, ordinarily, bound by his or her forensic choices made at trial. An appeal is not an opportunity to attempt to rerun a trial in a manner which, with the benefit of hindsight, the offender wishes he or she had run at first instance.[14]
[14] See CGF v The State of Western Australia [2023] WASCA 187 [114]. See also Luo v The King [2025] WASCA 36 [75].
As the appellant did not put before the jury any evidence as to his apparent belief, supposedly held at the time of the offending, that he was transporting 'illegal cash', defence counsel could not be said to have 'failed' to put such an argument to the jury. Nor could defence counsel have used the appellant's supposed belief as any basis for correcting the trial judge in his Honour's summing up. In any event, contrary to the assertion the subject of the second alleged failure, the trial judge did not direct the jury that transporting cash from Melbourne to Perth proved the appellant's 'culpability'. Nothing of the sort was said in the summing up.
Ground 2 is devoid of any merit. Leave to appeal must be refused.
We now turn to ground 1.

Ground 1 - was the jury's guilty verdict unreasonable or unsupported by the evidence?

The legal framework

By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), this court must allow an appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The legal principles relevant to a ground of appeal that relies upon s 30(3)(a) of the Criminal Appeals Act are well established, and are derived from a number of High Court authorities including M v The Queen,[15] and R v Baden‑Clay.[16] A convenient statement of those principles was recently made by this court in Sturniolo v The State of Western Australia.[17] We incorporate that statement of principles into these reasons without repeating it.

The appellant's submissions

[15] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495.

[16] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [65] ‑ [66].

[17] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] ‑ [72].

At the hearing of the appeal, the appellant essentially relied upon his written submissions in support of ground 1.
Generally speaking, the appellant's written submissions on ground 1 proceed on the premise that the facts, as he now asserts them to be, are true. He claims that, when he drove from Melbourne to Perth in September 2018, he did so without carrying any 'illegal cash'. Rather, he says the purpose of the trip was to enable him to familiarise himself with the route. According to the appellant, the fact that he 'only performed two trips', not three, to deliver 'illegal cash' from Melbourne to Perth was of great importance to ground 1.
The appellant's written submissions in support of ground 1 assume, as an established fact, that on the occasion he drove from Melbourne to Perth in October 2018, and in respect of the charged offence in November 2018, he had been told by Ms Ta that he was transporting 'illegal cash' from Melbourne to Perth.
Further, and in any event, the appellant asserts in his written submissions that the verdict of guilty was unreasonable or unsupported by the evidence because:
(a)There was no forensic evidence to support the allegation that the appellant knew he was involved in the transportation of methylamphetamine from Melbourne to Perth. The appellant emphasised the absence of any fingerprint or DNA evidence on the sealed cryovac bags containing the methylamphetamine located in the centre console of the Toyota Kluger.
(b)The intercepted communications between Ms Ta, Mr Le and others did not involve the appellant and were therefore incapable of supporting the State case that the appellant had knowledge of the enterprise.
(c)The amount of money that the appellant was to receive for driving the grey Toyota Kluger from Melbourne to Perth, being $4,000, was insufficient remuneration for transporting illicit drugs worth millions of dollars in street value. The suggestion being that, if he had known that he was transporting methylamphetamine worth millions of dollars, then the appellant would have asked for more money as payment for his services.
(d)The appellant invited his 'disabled wife' to accompany him from Melbourne to Perth.[18] The appellant submits that, if he had believed he was transporting illicit drugs, he would not have invited his wife along, because he would not have wanted to risk putting her in danger or landing her in prison.

The respondent's submissions

[18] WAB 8.

It was submitted by the respondent that it was well open to the jury to find that the only reasonable inference available on the evidence at trial was that the appellant had an awareness of, or a belief in, the likelihood (in the sense that there was a significant, or real chance) that he had a prohibited drug in his physical custody when he drove the grey Toyota Kluger from Melbourne to Perth and delivered it to Ms Ta at the Rendezvous Hotel.
In support of this proposition, the respondent pointed to the combination of the following circumstances:
(1)There was an ongoing association between Ms Ta and the appellant, as shown by their meetings in Perth in September and October 2018, and by the intercepted telephone conversation between them, which took place on 30 October 2018.
(2)After Ms Ta hired the grey Toyota Kluger in Melbourne on 13 November 2018, she provided it to the appellant; who then drove it to Perth, arriving on 15 November 2018.
(3)Within a short time of arriving in Perth, the appellant delivered the grey Toyota Kluger to Ms Ta; who then drove it from the Rendezvous Hotel to the East Perth address.
(4)The grey Toyota Kluger was under continuous police surveillance during Ms Ta's journey to the East Perth address.
(5)Secreted under the centre console of the grey Toyota Kluger was the methylamphetamine the subject of the charged offence.
(6)The appellant was paid, or was to be paid, a significant sum of money for his services, namely $4,000.
(7)The appellant lied in his video record of interview with police on 15 November 2018 when he stated that he did not know Ms Ta very well; and that he did not receive any payment for driving the grey Toyota Kluger from Melbourne to Perth; and that his purpose for coming to Perth was 'just travelling' with his wife.
The respondent submitted that the lies identified at par (7) above impacted upon the credibility of the appellant's denial of knowing that there was a prohibited drug hidden in the grey Toyota Kluger.

Ground 1 - disposition

For the following reasons, ground 1 has not been made out.
As already stated, the real issue for the jury to determine was whether the appellant had knowledge of the drug secreted in the centre console, by at least the time he handed the keys to the grey Toyota Kluger to Ms Ta outside the Rendezvous Hotel.
It is well established that for a person to be in possession of a prohibited drug for the purpose of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), it is necessary for the State to prove that, at the time of the alleged offending, the accused had at least an awareness of, or a belief in, the likelihood (in the sense that there was a significant or real chance) that the item in question in the accused's physical custody was 'a drug', within the ordinary and natural meaning of that term.[19] The State is not required to prove that the accused knew that the drug in question was, as a matter of law, a prohibited drug.
[19] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [191] ‑ [198] (Buss JA), [211] (Mazza JA); The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483 [200] (Pullin JA).
Accordingly, it was not necessary for the State to prove that the appellant was aware, at the time of the commission of the offence, that he was transporting methylamphetamine or some other prohibited drug. What was required was that the appellant was aware, or believed, that there was a real or substantial chance the item he was transporting was 'a drug', in the ordinary and natural meaning of that term. If the jury were not satisfied beyond reasonable doubt that the appellant had the requisite knowledge, then he would be entitled to an acquittal. In that regard, if the jury thought it might reasonably be the case that the appellant believed that he was transporting something other than 'a drug', within the ordinary and natural meaning of that term, from Melbourne to Perth, then the appellant would be entitled to an acquittal.
This is not a case where the jury's advantage in seeing and hearing the evidence is capable of resolving any doubt that this court might have as to the appellant's guilt. Very little of the evidence was in dispute, and the question of whether the appellant possessed the requisite knowledge was one of inference to be drawn from essentially undisputed evidence. It was not dependent on the evaluation of the witnesses who testified at the trial.
We will first deal with the appellant's submissions, which, in our view, have no merit.
We accept that there was no fingerprint or DNA evidence which implicated the appellant in the offence. In particular, there was no fingerprint or DNA evidence on the sealed cryovac bags containing the methylamphetamine located in the centre console of the grey Toyota Kluger.
However, the absence of forensic evidence implicating the appellant is of no real significance in this case, given that the methylamphetamine must have been loaded into the grey Toyota Kluger before the appellant began his journey to Perth from Melbourne, and there would have been no need for him to handle the bags. The State case did not involve and did not require it to prove that the appellant touched or handled the bags.
We accept that there was no evidence that the appellant was a participant in communications involving Mr Le. This is not a matter which materially detracts from the State case against the appellant.
It is to be expected that the appellant would not participate in any of the intercepted communications between Mr Le and others, given his role in the commission of the alleged offence only involved him driving the Toyota Kluger. The appellant's participation in the offence was kept from Mr Le, so it is to be expected that the appellant did not communicate with him. However, the fact remains that the appellant was in communication with Ms Ta, as the telephone conversation on 30 October 2018 revealed.
Whether $4,000 was insufficient remuneration for transporting illicit drugs, worth millions of dollars, from Melbourne to Perth is a submission based on hindsight. Four thousand dollars remains a substantial amount of money for the work of driving a vehicle across Australia. It is understandable that the appellant, given he was arrested, convicted, and sentenced to a substantial term of imprisonment, now understands that the risk was not worth the reward, but this has no bearing on the question of the appellant's guilt.
The argument that the appellant would not have invited his wife to accompany him on the trip if he had known that he was carrying an illicit drug, has no basis in the evidence adduced at trial and appears to be a post‑event justification.
The appellant's argument that he drove from Melbourne to Perth in September 2018 to familiarise himself with the route, and that he was only carrying cash when he drove from Melbourne to Perth in October and then in November 2018, is incapable of demonstrating that the verdict was unreasonable or cannot be supported. This is because no evidence to support that argument was adduced at his trial.
We are satisfied that there was no inference consistent with innocence reasonably open on the evidence. We have arrived at this conclusion having considered the combined strength of the following circumstances.
On the unchallenged evidence adduced by the State at trial, it is clear that the appellant and Ms Ta had formed, by September 2018 at the latest, an ongoing association. It is also clear that the association involved Ms Ta retaining the appellant to drive a hired Toyota Kluger from Melbourne to Perth. The Toyota Kluger is the kind of vehicle which would afford ample opportunity for concealment of the nearly 3 kg of drugs. The evidence showed that the appellant drove from Melbourne to Perth in September, October and November 2018. On each of those occasions, the appellant delivered the vehicle to Ms Ta in the vicinity of the Rendezvous Hotel, after which Ms Ta drove off without the appellant.
The appellant admitted that, on his last trip driving from Melbourne to Perth, he was to be paid a substantial sum of money for his services, being $4,000.
There is no obvious innocent explanation for why it would be necessary for the appellant to deliver a hire car to Perth, when such a car could readily be hired here.
The telephone conversation of 30 October 2018 indicates a concern with obtaining a hire car, and the availability of money for payment. The appellant's involvement in the final trip must date from at least this time, and was plainly part of an ongoing arrangement between the appellant and Ms Ta. The appellant's last trip from Melbourne to Perth was no 'one‑off' or ad hoc event.

Ms Ta delivered the car to the appellant in Melbourne, and received it from the appellant upon her arrival in Perth on 15 November 2018.
The appellant arrived in Perth on the afternoon of 15 November 2018, and delivered the Toyota Kluger to the vicinity of the Rendezvous Hotel only a few hours later - arriving there at 7.58 pm.
Ms Ta arrived at the Rendezvous Hotel 17 minutes later, met with the appellant, and took possession of the car. Clearly, this handover was closely coordinated and was consistent with the delivery of something far more valuable than just a hire car.
A substantial quantity of methylamphetamine was, in fact, concealed underneath the gear lever of the grey Toyota Kluger. According to expert evidence that was adduced at the appellant's trial, that methylamphetamine was valued between $370,000 and $540,000, if sold in kilogram lots.[20]
[20] ts 357.
The irresistible inference to be drawn from all of the abovementioned circumstances is that the appellant was aware that he was transporting something that was valuable and illegal. After all, why would the appellant be paid a substantial sum of money to transport something, which was hidden in the vehicle, unless it was both valuable and illegal to possess?
It is inconceivable, in all of the circumstances, that the appellant would not have had at least an awareness of, or a belief in, the likelihood that the substance, or thing, that was hidden in the vehicle was a drug, if not a prohibited drug.
Of course, when he was interviewed by police on 15 November 2018 after his arrest, the appellant denied that he had any knowledge of the fact that there were drugs in the Toyota Kluger. The veracity of this denial was, to our minds, completely undermined by other statements made to the police which were untrue. It is clear that the appellant did not come to Perth because he was 'just travelling'. His sole reason for coming to Perth was to deliver the Toyota Kluger (and what was concealed in it) to Ms Ta. Further, his statement to police that he did not receive any payment for driving the Toyota Kluger from Melbourne to Perth for Ms Ta, was undermined by his subsequent admission, made pursuant to s 32 of the Evidence Act, to the effect that he was to receive a payment of $4,000 from her. Moreover, the appellant's statement to police to the effect that he did not know Ms Ta 'very well' was untruthful, given their association.
We also note that, although the interviewing police officers told the appellant that they had found 'a lot of drugs inside' the grey Toyota Kluger, which they believed to be methylamphetamine, at no stage did the appellant ever say that he had only been transporting money.
When all of the circumstances are considered and weighed, on our own independent assessment of the whole of the evidence, we are satisfied that the only rational inference available on the evidence was that the appellant had at least an awareness of, or a belief in, the likelihood (in the sense that there was a significant or real chance) that the thing he was transporting was a drug, within the ordinary and natural meaning of that term. Based on the evidence adduced at trial, bearing in mind that no evidence was adduced to the effect that Ms Ta had told the appellant that he would be transporting 'illegal cash', or that he believed this to be the case, in our opinion, there was no rational inference available to the jury that the appellant knew that he was transporting something, whether that be cash or something else, that was not a drug. The circumstances must have caused the appellant to be aware that he was transporting something that was both illegal and highly valuable. The obvious likelihood was that it was drugs. There was, in fact, no evidence to suggest any other possiblity. It was plainly open to the jury to infer that the appellant was aware, or believed, that there was a real or significant chance that the car contained drugs.
We do not have a doubt as to the appellant's guilt. It would not be dangerous to permit the verdict of guilty to stand in this case.
Ground 1 has not been made out. We would refuse leave to appeal in relation to it.

Outcome of the appeal against conviction

We would not grant leave to appeal in respect of either of the two grounds relied upon by the appellant. Accordingly, the appeal against conviction is taken to be dismissed.[21]
[21] Criminal Appeals Act, s 27(3).
The orders that we would make in the conviction appeal are as follows:
1.Leave to appeal is refused on grounds 1 and 2.
2.The appeal is dismissed.

Appeal against sentence

As mentioned, the appellant's sole ground of appeal against sentence alleges an infringement of the parity principle. As the ground was developed by counsel in oral argument, the appellant's complaint is that the sentence he received on count 1 of 11 years' imprisonment was insufficiently disparate to the total effective sentence subsequently imposed by this court on Ms Ta.[22] Although the ground of appeal also alleges an infringement of the parity principle having regard to the total effective sentence imposed by the sentencing judge on Mr Le, the real issue relates to the comparison of the sentence imposed upon the appellant with the total effective sentence imposed upon Ms Ta.
[22] Appeal ts 71 - 72.
The table below sets out the sentences that were imposed upon the appellant, Ms Ta, and Mr Le. In respect of Ms Ta, the sentences relevant to the appellant's argument are those imposed by this court. The sentences are otherwise those imposed by the sentencing judge at first instance.

Sentence imposed	Phuoc Van Le	Dep Mong Ta	Van Hoang Tran
At first instance	Count 1: 14 years	Count 1: 11 years	Count 1: 11 years
Count 2: 7 years	Count 2: 6 years (Reduced to 2 years 6 months for totality)	N/A
Count 3: 9 years (Reduced to 2 years 6 months for totality)	N/A	N/A
Count 4: 4 years 6 months	Count 4: 3 years 6 months	N/A
Total effective sentence: 16 years 6 months (sentencing ts 664)	Total effective sentence: 13 years 6 months (sentencing ts 664 ‑ 665)	Total effective sentence: 11 years (sentencing ts 667 - 668)
On appeal	N/A Mr Le only appealed against conviction (CACR 2 of 2021). The appeal was dismissed.	Count 1: 11 years Count 2: 5 years 6 months N/A Count 4: 3 years 6 months (Reduced to 12 months for totality)	TBD
Total effective sentence: 12 years

The sentencing judge's findings

The factual findings made by the sentencing judge, in substance, accord with the manner in which the State ran its case at trial, as summarised between [9] and [20] above.[23]
[23] See ts 649 - 653.
His Honour found that Mr Le was more culpable than both Ms Ta and the appellant.[24] The sentencing judge found that while it was not possible to describe the entire operation, Mr Le played an organisational role that was central to the operation. That role included the recruitment of ELA, and coordinating the activities of Ms Ta.[25] Mr Le had no direct contact with the appellant. It was Ms Ta who, as his Honour put it, 'employed' the appellant to do the courier work.[26] Accordingly, his Honour found that Mr Le was more culpable than Ms Ta, but also that Ms Ta was more culpable than the appellant.
[24] ts 655.
[25] ts 654 - 655.
[26] ts 655.
The sentencing judge characterised the appellant as a 'courier' but added that the commission of the offence was not 'just a mere down‑the‑street or intercity act of couriering'.[27] His Honour said that, although there was no evidence that the appellant had direct knowledge of what it was that he was couriering, the appellant was
at least wilfully blind to what it was that [he was] bringing over.[28]
[27] ts 653.
[28] ts 653.
His Honour then elaborated:[29]
And the fact that you were bringing it from Victoria to WA in these circumstances would indicate that you knew that you were carrying illicit drugs but it seems to me to not matter much whether you knew precisely or whether you were simply wilfully blind and didn't bother to find out. In addition to this, you were paid on this trip, by the facts admitting matters, $4,000. The police officer said he was told it was three and a half thousand dollars for you to do this work from which you had to meet your expenses of getting back to Melbourne.
Now, we know you paid $200 for the hotel that night. It was only booked for one night so the inference is open that you were going back the next day or at least soon thereafter and how you got back, you and your wife, was taken out of that three and a half to four thousand dollars so you were making good money for fairly quick turnaround.
[29] ts 654.
His Honour's reference to the appellant being 'wilfully blind' appears to have been based on a submission that was made by the appellant's counsel at sentencing, in which he used that phrase as shorthand for an awareness of, or a belief in, the likelihood (in the sense that there was a significant or real chance) that the substance or item in question was a drug.[30] In her oral submissions before this court, counsel for the appellant accepted that, when the sentencing judge used the expression 'wilfully blind' in respect of the appellant, his Honour also used it in that sense.[31] It appears from the extract of the sentencing remarks set out at [96] above that whether the appellant knew that he was carrying drugs or whether he was, as his Honour put it, 'wilfully blind', was not a matter that his Honour needed to resolve; presumably because a precise finding would have made no material difference to the sentencing outcome.
[30] ts 627 - 628.
[31] Appeal ts 70.
There was little difference in the personal circumstances of Mr Le, Ms Ta, and the appellant. Mr Le was 58 years of age when he was sentenced. He had a minor criminal history in Victoria, which his Honour considered to be irrelevant for sentencing purposes.[32]
[32] ts 656 - 657.
Ms Ta was 38 years of age when she was sentenced. She had no prior convictions.
The appellant was 64 years of age at the time he was sentenced. He, too, had no prior convictions.
Apart from the differences in culpability between Mr Le, Ms Ta, and the appellant, the only other factor of material significance that differed between them was that Ms Ta pleaded guilty to the offences of which she was charged, and therefore received a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA). In addition, the sentencing judge found that Ms Ta was remorseful. His Honour made no such finding in respect of Mr Le nor the appellant.
In respect of all three offenders, his Honour acknowledged that, as a consequence of being imprisoned in Western Australia, each of them would be away from their families. His Honour noted that Mr Le had had a 'rather tragic and certainly dysfunctional childhood',[33] and he had been forced to serve in the North Vietnamese Army. His Honour acknowledged that, while the appellant had been held in custody on remand, he had been 'a model prisoner'.[34]
[33] ts 659.
[34] ts 659.
His Honour acknowledged that Mr Le and the appellant each cooperated with the State in the conduct of their trial by making admissions in respect of the undisputed facts, thereby reducing its duration.[35]
[35] ts 660.

Ms Ta's resentencing by this court

As we have already mentioned, Ms Ta's appeal against sentence was allowed. This court held that the total effective sentence of 13 years 6 months' imprisonment imposed upon Ms Ta infringed the parity principle, having regard to the total effective sentence of 16 years 6 months' imprisonment imposed upon Mr Le.[36] In doing so, this court found that Mr Le had a materially higher level of culpability than Ms Ta having regard to Mr Le's greater role in the offending (Mr Le committed four counts, whereas Ms Ta committed only three counts); and to the fact that Ms Ta's offending was mitigated by her pleas of guilty.[37] By contrast, Mr Le did not have the mitigation that pleas of guilty would have brought. This court was satisfied that the differences which favoured Ms Ta over Mr Le were not properly reflected in the disparity between the total effective sentences imposed on them by the sentencing judge, and that this insufficient disparity gave rise to a legitimate or justifiable sense of grievance on Ms Ta's part, and would give the appearance in the mind of an objective observer that justice had not been done as between Ms Ta and Mr Le, or generally.[38]
[36] Ta [69] ‑ [70].
[37] Ta [65] ‑ [66].
[38] Ta [71] ‑ [72].

The appellant's submissions

It was submitted on behalf of the appellant that there was insufficient disparity between the sentence imposed upon him on count 1 of 11 years' imprisonment and the total effective sentence of 12 years' imprisonment imposed on Ms Ta by this court.
Counsel for the appellant emphasised that Ms Ta's culpability was greater than the appellant's. In this regard, counsel emphasised that, in respect of count 1 (the common offence), the appellant played a lesser role than Ms Ta. It was submitted that the appellant was, in effect, a mere courier who was to receive modest remuneration for transporting the methylamphetamine from Melbourne to Perth. Counsel for the appellant emphasised that the appellant committed only one offence associated with the events on 15 November 2018, while Ms Ta also committed counts 2 and 4.
It was submitted on behalf of the appellant that notwithstanding the mitigating factors that favoured Ms Ta, her materially higher level of culpability as reflected in her greater role in the commission of the common offence, and in her commission of the other two offences, was not properly reflected in the disparity of only one year between the sentence the appellant received and the total effective sentence Ms Ta received.

The respondent's submissions

Senior counsel for the respondent accepted that the one‑year disparity was 'probably at the outer limits of what is acceptable, in the sense that the disparity could not properly have been less than a year that it was'.[39]
[39] Appeal ts 75.
Nonetheless, it was submitted by the respondent that the total effective sentence of 12 years' imprisonment imposed upon Ms Ta, viewed in the context that she had pleaded guilty and was remorseful, meant that the one‑year disparity between Ms Ta and the appellant was not outside the proper discretionary range.

Legal principles applicable to the parity principle

The legal principles applicable to the parity principle are uncontroversial as they relate to the present case. They were conveniently described by this court in Ngo v The Queen,[40] and in other cases such as Higgins v The State of Western Australia.[41] It is sufficient, for the purposes of this appeal, to state the following.
[40] Ngo v The Queen [2017] WASCA 3 [36] ‑ [40].
[41] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether the disparity, or lack of disparity, in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance on the part of one co‑offender, or of giving the appearance in the mind of an objective observer that justice has not been done as between co‑offenders. The applicable test is objective, not subjective.
The parity principle is based upon the norm of equality before the law. Although this principle requires that like cases be treated alike, it also requires differential treatment of co‑offenders according to the differences between them.
A sentencing judge's application of the parity principle involves the exercise of a discretionary judgment to which the well‑known principles in House v The King[42] apply.
[42] House v The King [1936] HCA 40; (1936) 55 CLR 499.
A sentence may infringe the parity principle even though, when viewed in isolation, that sentence would not be considered manifestly excessive.

Was there an infringement of the parity principle in this case?

Had the appellant's claim of an infringement of the parity principle been made directly after being sentenced by Goetze AUDCJ, when Ms Ta received a total effective sentence of 13 years 6 months' imprisonment (as against the sentence imposed upon the appellant for count 1 of 11 years' imprisonment), we very much doubt that the claim would have been upheld. However, as a result of this court's decision in Ta, the disparity between the total effective sentence imposed upon Ms Ta by this court and the sentence imposed upon the appellant by Goetze AUDCJ is now only one year's imprisonment. In our opinion, this lack of disparity gives rise to a legitimate or justifiable sense of grievance on the part of the appellant, or an appearance in the mind of an objective observer that justice has not been done as between the appellant and Ms Ta.
The facts and circumstances of Ms Ta's offending revealed a materially higher level of culpability than the appellant. This is because:
(a)Ms Ta played a significant organisational role in the operation. She liaised closely with Mr Le. Ms Ta was given the role of organising the transportation of the methylamphetamine from Melbourne to Perth. She hired the grey Toyota Kluger and organised for the appellant to drive it across the country with the methylamphetamine secreted beneath the centre console. Ms Ta was responsible for paying the appellant for his services and, of course, flew to Perth herself; where she met the appellant outside the Rendezvous Hotel and then drove the Toyota Kluger to the address in East Perth. It is apparent from intercepted electronic communications that Mr Le and Ms Ta were in regular communication concerning the organisation of the operation. There is no evidence to suggest that the appellant played any organisational role at all.
(b)Ms Ta's higher level of culpability is also revealed by her involvement in counts 2 and 4. Those offences concerned the possession of a significant quantity (245.68 g) of methylamphetamine found in a wardrobe at the East Perth address (count 2), and the laundering of $361,000 in cash derived from the sale of prohibited drugs (count 4), being cash also found at the East Perth address. Both of those offences were serious. The appellant played no part in either of them.
Although Ms Ta's offending involved a substantially higher level of culpability than the appellant, there were also some mitigating factors in her favour that were absent in the appellant's case. Most significantly were the discounts that Ms Ta received for her pleas of guilty and for her remorse. As the appellant proceeded to trial, he did not have the advantage of these mitigating factors. Otherwise, there was no material difference between the personal circumstances of Ms Ta and those of the appellant that was sufficient to justify a marked difference in the sentences they received.
We are satisfied, having regard to the matters referred to in [116] and [117] above, and, in particular, Ms Ta's substantially higher level of culpability, that a disparity of one year between the sentence imposed upon the appellant for count 1 and the total effective sentence imposed by this court on Ms Ta on appeal does not properly reflect all of the relevant and differing sentencing factors between them. In our opinion, the lack of disparity gives rise to a legitimate or justifiable sense of grievance on the appellant's part, and gives rise to the appearance in the mind of an objective observer that justice has not been done between the appellant and Ms Ta, or generally.
In arriving at this conclusion, no criticism of the court in Ta is intended. In that case, the court was called on to adjudicate an alleged lack of disparity between the sentences of Ms Ta and Mr Le. It was required to do so without any consideration of the sentence imposed upon the appellant. Whether, as a result of doing justice in Ms Ta's case, a justifiable sense of grievance would arise in the appellant's case, was not a matter of concern to the court in deciding Ms Ta's appeal.

For the reasons we have given, we would uphold the ground of appeal. Having regard to this conclusion, an extension of time should be granted. This court must now resentence the appellant.

Resentencing

It is unnecessary to repeat the facts and circumstances of the appellant's offending.
The appellant drove the grey Toyota Kluger hired by Ms Ta from Melbourne to Perth. He did so whilst in possession of a very substantial quantity of high purity methylamphetamine. Although it is clear from the jury's verdict that the appellant must have known he was in possession of a drug, apart from saying that the quantity was substantial, it cannot be said that he knew the precise quantity or purity, or, indeed, the precise nature, of the drug. He did so substantially for profit.
The evidence adduced at trial showed that there was an ongoing association between Ms Ta and the appellant that went as far back as, at least, September 2018. Prior to the offence, the appellant had driven hired vehicles, at the behest of Ms Ta, from Melbourne to Perth. While no finding was made, or could be made, to the effect that the appellant knew on these occasions that he was transporting drugs from Melbourne to Perth, he must have appreciated that his actions involved some criminality. The commission of the offence was not spontaneous, particularly given that he took the opportunity to have his wife accompany him. Given the distance that was travelled over just two days, it is reasonable to assume that the appellant's wife did some of the driving. Although the appellant's only role in the operation was to transport the drug from Melbourne to Perth, it cannot be said that this was an insignificant role. In fact, the transportation of the drug into Western Australia was vital to the success of the operation. The appellant played an important role in bringing into this State a very considerable quantity of a very harmful drug. It is well accepted that for drug offences such as this, the primary sentencing consideration is deterrence; in particular, general deterrence. Matters personal to an offender, although not irrelevant, are generally of less weight in sentencing for offences such as this.[43]
[43] See Diamantopoulos v The State of Western Australia [2024] WASCA 82 [89]; The State of Western Australia v Wilson [2015] WASCA 119 [25] ‑ [26] and the cases cited therein.
It cannot be overlooked that the maximum penalty for the offence committed by the appellant is life imprisonment.[44]
[44] Misuse of Drugs Act, s 34(1)(a).
We accept that the appellant has no prior relevant convictions and should be considered a person of prior good character. He will have to serve a lengthy term of imprisonment away from his family and, although that is a risk that he took by offending in Western Australia, it must be recognised that service of a term of imprisonment in this State will, at least to some extent, be harder for him than for other offenders whose families reside in Western Australia. There is little more that can be said in mitigation. While the appellant cannot be punished for pleading not guilty, the mitigation that would be available to him under s 9AA of the Sentencing Act, had he pleaded guilty, is not available. Some credit can be given to the appellant for the fact that he has, apparently, been a model prisoner while serving his sentence in custody.
We are cognisant of the sentences that were imposed on Mr Le and Ms Ta. We are also aware of the sentence that was imposed on ELA. For reasons that are unnecessary to explain, the sentence imposed on ELA has no bearing upon the present case.
When all of the relevant facts and circumstances are evaluated, we would resentence the appellant to 9 years 6 months' imprisonment. To take into account time served in custody, this sentence should be backdated so as to have commenced on 15 November 2018. The appellant should be made eligible for parole.

Appeal against sentence - conclusion and orders

The appellant's appeal against sentence should be allowed. We would resentence the appellant to 9 years 6 months' imprisonment, backdated to have commenced on 15 November 2018, with eligibility for parole.
The orders that we would make are as follows:
1.An extension of time within which to appeal is granted.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The sentence imposed by Goetze AUDCJ on 18 December 2020 is set aside.
5.The appellant is resentenced to 9 years 6 months' imprisonment, which is backdated so as to have commenced on 15 November 2018. The appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
2 JULY 2025