VRW v The State of Western Australia
[2022] WASCA 177
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VRW -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 177
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 JUNE 2022
DELIVERED : 23 DECEMBER 2022
PUBLISHED : 30 DECEMBER 2022
FILE NO/S: CACR 66 of 2021
BETWEEN: VRW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : IND XXX of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another - Sentence of 8 years' imprisonment - Manifest excess
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | S Packham |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Al-Rafei v The State of Western Australia [2017] WASCA 4
Bond v The State of Western Australia [2011] WASCA 123
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Guler v The State of Western Australia [2014] WASCA 83
McGrath v The State of Western Australia [2021] WASCA 118
NHI v The State of Western Australia [2021] WASCA 32
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
SYL v The State of Western Australia [2021] WASCA 16
Trainor v The State of Western Australia [2021] WASCA 36
JUDGMENT OF THE COURT:
This is an appeal against sentence. The appellant was convicted on his plea of guilty of two offences he committed in 2020, being one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another and one count of possession of a sum of money reasonably suspected to have been unlawfully obtained.
On 24 May 2021, the appellant was sentenced by Lemonis DCJ to 8 years' imprisonment on count 1 and 9 months' imprisonment on count 2. To give effect to the totality principle, his Honour ordered that the sentences be served concurrently. Accordingly, the total effective sentence imposed on the appellant was 8 years' imprisonment. The appellant was made eligible for parole. The total effective sentence was backdated to 29 April 2021.
The appellant appeals to this court on a single ground alleging that the sentence of 8 years' imprisonment on count 1 was manifestly excessive. The appellant does not challenge the sentence on count 2. The question of leave to appeal on this ground was referred to the hearing of the appeal.[1]
[1] Order Buss P, 27 September 2021.
For the following reasons, while we would grant leave to appeal, the appeal must be dismissed.
The facts
The facts of the appellant's offending were described in his Honour's sentencing remarks and are uncontroversial. They may be summarised as follows. Some of these facts relevant to [6], [8], [9] and [10] will be referred to in the confidential schedule to these reasons.
At 3.20 pm on the date of the offences, police officers conducted a traffic stop on a vehicle in which the appellant was the driver and sole occupant. A search of the vehicle revealed a shopping bag hidden in the spare tyre well of the boot which contained methylamphetamine. The total weight of the methylamphetamine was approximately 3 kg.
At a roadside record of interview, the appellant admitted that he knew the green bag contained a prohibited substance such as '… cocaine. Whatever'.[2] Later at about 5.20 pm on the date of the offences, the police executed a Misuse of Drugs Act 1981 (WA) warrant at the appellant's home. There, the police located $1,085 in cash hidden inside a perfume box. The appellant admitted that he had been paid the cash for transporting drugs to other persons. Police officers also located, in a bedroom, scales, gloves, a cryovac machine and cryovac bags. The appellant told police that these items were used to package cash.
[2] Interview ts 41.
The appellant's offending arose from a friendship the appellant had struck up. About four or five days before the offences, a CIPHR mobile telephone (which enabled encrypted communication) was placed in the appellant's vehicle. On the day of the offending, the appellant began receiving messages on this telephone from a person identified as 'X'. These messages referred to both 'product' and 'coin'. Other messages were conveyed to the appellant via his mobile telephone.
On the day before the date of the offences, the appellant was directed to pick up a hidden quantity of drugs and to deliver them, which he did.[3] He was not charged with any offence arising from this conduct.
[3] ts 12.
On the date of the offences, the appellant received messages from the person known as X. The appellant was offered the sum of $1,500 to take delivery of 'product' and take the 'product' to three locations. The messages gave detailed instructions as to how the appellant would carry out this task.
The appellant carried out the directions that he had been given until he was apprehended by police before he could effect the 'drop'.
In his sentencing remarks, his Honour said that the appellant's offending was not isolated, having regard to the appellant's admission to police that he had delivered drugs the previous day. His Honour found that the appellant's role in the offending was that of a courier. His Honour elaborated:[4]
… you [the appellant] were not required to store the drugs, although it was anticipated you would exchange the drugs for money.
The courier role enables those who coordinate these drugs operations to remain removed from the drugs and, therefore, reduces their risk of being detected. The courier role is, therefore, an important role. It is also a trusted role.
[4] ts 14.
His Honour found that the appellant's offending involved a degree of sophistication, having regard to the use of a CIPHR phone and code names. His Honour observed that the offending was planned in such a way as to reduce the risk of detection.[5]
[5] ts 14.
The appellant's personal circumstances
The appellant was aged 33 years at the time he committed the offences and was aged 34 when sentenced. He was born outside Australia and moved to Perth as an adult. He had what his Honour described as 'a positive childhood'.[6] The appellant's mother has been a constant source of support for him. The appellant's education and work history is set out in the confidential schedule, although it may be noted the appellant had a consistent employment history.
[6] ts 12.
The appellant has no prior criminal history. He was sentenced on the basis that he was a person of prior good character.
A psychological report which was provided to the sentencing judge noted the appellant's low confidence. He was described as a subdued individual who was socially reserved and who attempts to avoid attention. The appellant has a tendency to adopt an inferior position with others, often relying on the directions and advice of people, which places him at a risk of being manipulated by others. In the opinion of a psychologist retained by the appellant, Dr James McCue, the appellant's offending suggests that the appellant has a tendency to place his acceptance by others ahead of his better judgment.[7]
[7] Report of Dr James McCue dated 29 April 2021, page 10.
The sentencing remarks
The sentencing judge described the offending the subject of count 1 as 'serious'.[8]
[8] ts 14.
His Honour expressly referred to the sentencing principles that apply to offences involving dangerous drugs, being that the major sentencing considerations for such offences are general and personal deterrence. Matters personal to an offender are secondary considerations, but they are not irrelevant.
His Honour took into account the following mitigating factors:
(1)The appellant entered his pleas of guilty at the first reasonable opportunity. His Honour allowed a discount of 25% for each of the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The appellant had no prior criminal record and was a person of prior good character.
(3)The appellant was genuinely remorseful. His Honour made specific mention of comments to this effect made to the psychologist and in a letter the appellant had sent to the sentencing judge.
(4)The appellant made admissions to police of his wrongdoing. The appellant's risk of reoffending was 'low'.[9]
[9] ts 15.
Although not referred to in the sentencing remarks, other than in an oblique reference by his Honour to having 'also made reductions for all relevant mitigating factors in your case' (emphasis added), his Honour had regard to the cooperation the appellant gave to the police.[10]
[10] ts 14 ‑ 15.
His Honour identified, as aggravating factors, that the quantity and purity of the drugs the subject of count 1 was 'high'.[11] His Honour also noted that the appellant engaged in the offending for personal gain, albeit for a modest sum.[12] His Honour said that he did not consider personal deterrence to be an important sentencing consideration.[13]
[11] ts 13 ‑ 14.
[12] ts 14.
[13] ts 15.
The appellant's cooperation - confidential material
The sentencing judge was provided with confidential material setting out the appellant's cooperation with law enforcement authorities. This material, and his Honour's assessment of the appellant's past cooperation, will be referred to in the confidential annexure to these reasons. His Honour gave a discount for cooperation on count 1 of 1 year 5 months or approximately 15%.
Ground 1 - appellant's submissions
The appellant does not challenge the amount of the discount his Honour gave for the appellant's cooperation.
The appellant referred to the discussion by this court in the recent decision of McGrath v The State of Western Australia[14] as to the standards of sentences imposed in other cases involving couriers of substantial quantities of prohibited drugs. The appellant acknowledged that the sentence imposed on him for count 1 appears to fall within the range of sentences analysed in McGrath. However, the appellant submitted that, having regard to the confidential material and the significant mitigation it affords, the sentence of 8 years' imprisonment was manifestly excessive.
[14] McGrath v The State of Western Australia [2021] WASCA 118 [59] - [61].
Ground 1 - respondent's submissions
The respondent submitted that the sentence imposed on count 1 was well within a proper exercise of his Honour's sentencing discretion having regard to all relevant circumstances, including the appellant's cooperation. The respondent submitted that any further reduction for cooperation beyond that which the sentencing judge allowed would have resulted in a sentence that would have been inadequate or an affront to community standards.
Ground 1 - general principles
The relevant principles governing an appeal against sentence where it is asserted that a sentence is manifestly excessive are well established and were set out in Trainor v The State of Western Australia.[15] We adopt, without repeating, that statement of principles.
[15] Trainor v The State of Western Australia [2021] WASCA 36 [36].
The sentencing principles concerning cases of serious drug trafficking are also well established and have been stated on many occasions by this court. In Carlucci v The State of Western Australia[16] those principles were summarised as follows:
The general principles of sentencing offenders for serious drug offences are well established. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant. (footnote omitted)
[16] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37].
Finally, before embarking upon an analysis of the ground of appeal, it is necessary to set out the principles in respect of the allowance of a sentencing discount as a result of an offender's cooperation with law enforcement authorities. These principles have been stated by this court many times. A recent case in which the principles were discussed and applied is SYL v The State of Western Australia.[17]
[17] SYL v The State of Western Australia [2021] WASCA 16 [16] ‑ [18] (Buss P & Mazza JA), [72] ‑ [83] Vaughan JA.
It is convenient to repeat the statement of principles made by Buss P and Mazza JA in SYL [16] ‑ [18]:
The rationale for allowing a sentencing discount for cooperation with and assistance to the law enforcement authorities is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. See TXT v The State of Western Australia [[2012] WASCA 28; (2012) 220 A Crim R 266 [28]].
The principles to be applied in determining the nature, extent and value of an offender's cooperation with and assistance to the law enforcement authorities, and the appropriate level of any discount on his or her sentence, have been examined by this court on numerous occasions. See, for example, Ma v The Queen [[2001] WASCA 325; (2001) 125 A Crim R 349]; Bazzi v The State of Western Australia [[2007] WASCA 195]; A Child v The State of Western Australia [[2007] WASCA 285]; MXP v The State of Western Australia [[2010] WASCA 215; (2010) 41 WAR 149]; XAT v The State of Western Australia [[2013] WASCA 173]. It is unnecessary to repeat the relevant principles.
Relevant factors to be taken into account in determining the appropriate level of any discount include:
(a)the nature and extent of the cooperation and assistance;
(b)whether the cooperation and assistance is genuine;
(c)whether the offender has disclosed all of his or her relevant knowledge;
(d)the public benefit that has resulted or is expected to result from the cooperation and assistance;
(e)the risk or danger to the offender or his or her family and associates as a result of the cooperation and assistance; and
(f)any hardship (including hardship in custody) which the offender may experience or is likely to experience as a result of the cooperation and assistance.
We also refer to NHI v The State of Western Australia.[18]
[18] NHI v The State of Western Australia [2021] WASCA 32 [46] ‑ [50].
In NHI, this court stated that there is no standard percentage discount for an offender who cooperates. Rather, the discount depends upon all the circumstances of the individual case, including the nature and extent of the cooperation, as well as the nature and extent of the offending behaviour. Moreover, there are limits on the available discount for cooperation which arise from the need to impose a sentence commensurate with the seriousness of the offence in accordance with s 6(1) of the Sentencing Act. The court in NHI referred with approval to this statement made by Vaughan JA in SYL:[19]
Where a separate discount is provided for a guilty plea there is less scope to provide a large reduction for assisting authorities. There is only 'limited room to discount a sentence without going below the bottom line' - that bottom line, in the present context, being a sentence that is commensurate with the seriousness of the offence. Thus the application of one discount for one purpose may impact on the extent to which another discount can be applied to achieve a different purpose. (footnotes omitted)
[19] SYL [83].
Disposition
The appellant's offending was, as his Honour found, serious. The appellant, having already been involved in the transportation of a significant quantity of a prohibited drug, voluntarily participated in the offending the subject of count 1 purely for financial gain, albeit a modest one. The sentencing judge found, generously to the appellant, that he did not know that he was picking up drugs until he saw and handled them, but after acquiring this knowledge he nevertheless embarked upon the plan to deliver the bags to various locations in the metropolitan area. Once he saw and handled the bags, he must have appreciated that he was in possession of a very large quantity of prohibited drugs. There is no reason to think that, had he not been apprehended by the police, he would not have completed the task he agreed to perform.
The appellant not only picked up the large quantity of methylamphetamine with the intention of delivering it to three different customers, but he was also prepared to accept payment for the sale of the prohibited drug and store the money temporarily on behalf of those higher in the drug hierarchy than him. The amount and the purity of the drug was high. Accordingly, the potential for harm to others in the community, once distributed, was great.
Of course, it must be acknowledged that the appellant was not part of the actual sale of the drug to the ultimate consumer and was not in the upper echelon of the hierarchy. Nor did the appellant stand to gain a share of the profit when the drug was ultimately sold. Nevertheless, his role was important and it is clear that those who instructed the appellant trusted him with a large and valuable quantity of methylamphetamine and the proceeds of its sale. The transaction was, as his Honour found, carried out with a degree of sophistication. The appellant was provided with and used a CIPHR phone which was intended to allow the appellant's superiors in this transaction to communicate with him in a secure and encrypted environment.
The appellant's personal circumstances were favourable to him but, as we have mentioned, they carry less weight in cases involving the distribution of dangerous drugs into the community. The appellant poses a low risk of reoffending. Personal deterrence is not as great a consideration as in other cases. However, general deterrence remains an important sentencing consideration.
The appellant accepted that, leaving to one side the question of his cooperation, the sentence imposed on him for count 1 was consistent with the range of sentences customarily imposed for comparable offending. This concession, made in the light of the analysis undertaken by this court in McGrath, was properly made having regard to the comparable cases analysed in McGrath, namely Al-Rafei v The State of Western Australia,[20] Bond v The State of Western Australia,[21] Guler v The State of Western Australia,[22] Pham v The State of Western Australia[23] and Phan v The State of Western Australia.[24] This is especially so bearing in mind that the maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g) of methylamphetamine with intent to sell or supply is life imprisonment while the maximum penalty applicable in the cases referred to in McGrath was 25 years' imprisonment.
[20] Al-Rafei v The State of Western Australia [2017] WASCA 4.
[21] Bond v The State of Western Australia [2011] WASCA 123.
[22] Guler v The State of Western Australia [2014] WASCA 83.
[23] Pham v The State of Western Australia [2011] WASCA 244.
[24] Phan v The State of Western Australia [2014] WASCA 144.
Since the increase in the maximum penalty to life imprisonment, standards of sentencing for offences involving multiple kilograms of methylamphetamine have not yet emerged.[25] However, one would expect that sentences for such cases will increase. In Trainor, the offender was found in possession of 3892.96 g of methylamphetamine and a quantity of cash. He pleaded guilty to one count of possession of the methylamphetamine with intent to sell or supply and one count of possession of money reasonably suspected to having been unlawfully obtained. He received a s 9AA discount of 25%. The offender was, at the time he was sentenced, 53 years of age and had, relevantly, no prior criminal history. The sentencing judge did not accept the offender's characterisation of his role as 'part courier and part storage person'. The offender was higher in the scale of the criminal enterprise than he contended. The offender was sentenced to 14 years' imprisonment with respect to the drug offence. His appeal to this court against this sentence on the basis that it was manifestly excessive was dismissed. We accept that the offending in Trainor was more serious than the offending in the present case. However, the outcome of one case is of limited assistance. The result in Trainor does not advance the appellant's case.
[25] Trainor [51].
We turn now to the appellant's past cooperation. The cooperation was a substantial mitigating factor and merited the discount of 15% which his Honour gave, and which the appellant does not challenge.
Having regard to:
(a)the maximum penalty for count 1, namely life imprisonment;
(b)the appellant's criminal behaviour, as described at [10] above and in the confidential schedule;
(c)the appellant's offending not being isolated; the offence being motivated by financial gain; the substantial quantity of the prohibited drug and its purity; the appellant's willing involvement in a well‑planned and reasonably sophisticated venture; and the need for general deterrence;
(d)the mitigating factors, including, most significantly, the plea of guilty and the cooperation;
(e)the comparable cases; and
(f)all relevant sentencing factors and principles,
we are not persuaded that the sentence of 8 years' imprisonment on count 1 was manifestly excessive. It was not unreasonable or plainly unjust. We are unable to infer error on the part of the sentencing judge. While we would grant leave to appeal, the appeal must be dismissed.
The orders we would make are as follows:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
30 DECEMBER 2022
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