Watson v The State of Western Australia
[2022] WASCA 80
•6 JULY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WATSON -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 80
CORAM: BUSS P
MAZZA JA
HEARD: 10 MARCH 2022
DELIVERED : 6 JULY 2022
FILE NO/S: CACR 185 of 2021
BETWEEN: KANE SEAN WATSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND 1136 of 2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of two offences - Appellant sentenced to 10 years' imprisonment for supplying a trafficable quantity of methylamphetamine - Appellant sentenced to 3 years' imprisonment (reduced from 5 years' imprisonment in the application of the totality principle) for possessing money that was the proceeds of an offence, namely the sale or supply of a prohibited drug - Total effective sentence of 13 years' imprisonment - Manifest excess - Totality
Legislation:
Criminal Code (WA), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr C M Townsend |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Blasco v The State of Western Australia [2021] WASCA 26
Cochrane v The State of Western Australia [2021] WASCA 5
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Gaskell v The State of Western Australia [2018] WASCA 8
Giangiulio v The State of Western Australia [2022] WASCA 77
Giglia v The State of Western Australia [2010] WASCA 9
H v The State of Western Australia [2020] WASCA 211
HSV v The State of Western Australia [2020] WASCA 5
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McAlpine v The State of Western Australia [2018] WASCA 195
McGrath v The State of Western Australia [2021] WASCA 118
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musulin v The State of Western Australia [2020] WASCA 18
Ng v The State of Western Australia [2020] WASCA 70
Phan v The State of Western Australia [2019] WASCA 163
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Ramachandran v The State of Western Australia [2021] WASCA 54
Roffey v The State of Western Australia [2007] WASCA 246
Tan v The State of Western Australia [2019] WASCA 112
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v MDZ [2021] WASCA 95
The State of Western Australia v Paolucci [2020] WASCA 188
The State of Western Australia v Zhuang [2021] WASCA 56
Trainor v The State of Western Australia [2021] WASCA 36
Wong v The State of Western Australia [2019] WASCA 8
JUDGMENT OF THE COURT:
The appellant has applied for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty before MacLean DCJ, of two counts in an indictment.
Count 1 alleged that on 19 August 2020, at Dianella, the appellant supplied a prohibited drug, namely methylamphetamine, to another and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA).
Count 2 alleged that on 9 October 2020, at Banksia Grove, the appellant possessed money that was the proceeds of an offence, namely the sale or supply of a prohibited drug, contrary to s 563A(1)(b) of the Criminal Code (WA) (the Code).
The maximum penalty for count 1 is life imprisonment. The maximum penalty for count 2 is 20 years' imprisonment.
The primary judge sentenced the appellant to 10 years' imprisonment for count 1 and 3 years' imprisonment (reduced from 5 years' imprisonment in the application of the totality principle) for count 2. His Honour ordered that the sentences be served cumulatively. The total effective sentence was therefore 13 years' imprisonment. The appellant was made eligible for parole.
The appellant relies upon three grounds of appeal. Ground 1 alleges that the sentence for count 1 was manifestly excessive. Ground 2 alleges that the sentence for count 2 was manifestly excessive. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.
None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.
The facts and circumstances of the offending
At about 2.05 pm on 19 August 2020, the appellant was observed driving a Mazda motor vehicle. He parked the vehicle on Cornwall Street, Dianella, near Breckler Park.
The appellant was observed entering Breckler Park bushland on foot, carrying a black backpack. A short time later the appellant was observed exiting the bushland and no longer in possession of the black backpack.
At 2.25 pm on 19 August 2020, another person, Rhys Clark, was observed entering Breckler Park bushland. A short time later, he was observed carrying the black backpack towards a Mitsubishi Pajero motor vehicle.
At about 3.45 pm on 20 August 2020, police executed a Misuse of Drugs Act search warrant in respect of the Mitsubishi Pajero vehicle. The vehicle had three rows of seating. The rear row of seats, in the boot area, was folded down and the boot had a floor compartment. The compartment door was closed upon entry. The compartment was searched and a black and brown coloured bag was located.
A search of the bag located a package containing 3.999 kg of methylamphetamine.
The methylamphetamine was in four separate quantities. One quantity of the methylamphetamine weighed 999 g of about 72% purity. A further quantity of the methylamphetamine weighed 1 kg of about 68% purity. A further quantity weighed 1 kg of about 68% purity. A further quantity weighed 1 kg of about 69% purity.
A forensic examination of the backpack was conducted. The appellant's DNA profile matched a DNA swab obtained from the backpack.
At about 10.55 pm on 3 November 2020, police attended premises occupied by the appellant and executed a Misuse of Drugs Act search warrant. The appellant was arrested on suspicion of a serious drug offence.
During the search, police located a blue Samsung mobile telephone in a garden ornament. This telephone was a CIPHR encrypted mobile device.
The appellant participated in an electronically recorded interview. During the interview, the appellant admitted that the CIPHR mobile telephone was his and admitted that he had attended at Breckler Park and dropped the backpack containing the methylamphetamine. The appellant stated that he was following directions provided to him via the CIPHR mobile telephone and admitted that he was paid $1,000 for supplying the 3.999 kg of methylamphetamine.
Between 9 October 2020 and 4 November 2020, the appellant and others were part of a significant drug and money laundering enterprise operating in Western Australia.
On 9 October 2020, the appellant and two co-accused, Beau White and Sean O'Callaghan, were involved in packaging cash at the appellant's home in Banksia Grove.
The cash was packed into six boxes. Inside each box was about $1,000,000 cash. The cash was vacuum sealed in plastic bags.
On 9 October 2020, police executed a Misuse of Drugs Act search warrant at premises in Stirling occupied by the co‑accused, Mr O'Callaghan. Police located the six boxes that had been packed with cash at the appellant's home. The cash was seized and substituted with paper. The boxes were resealed and left in place.
On 11 October 2020, Mr O'Callaghan transported the six boxes to the address of the co-accused, Mr White, in Butler.
On 31 October 2020, Mr O'Callaghan collected the six boxes from Mr White's address and drove with the boxes to a Bunnings carpark in Bayswater. Another co-accused, Steven Cotic, met Mr O'Callaghan. They parked their vehicles alongside each other, unloaded the boxes from Mr O'Callaghan's vehicle and loaded the boxes into Mr Cotic's vehicle. Mr Cotic conveyed the six boxes to his home address in Caversham.
On 3 November 2020, Mr Cotic drove with the six boxes to a place where he met the occupants of an orange truck. Mr Cotic handed the boxes to the occupants of the truck and departed.
As we have mentioned, at 10.55 pm on 3 November 2020, police executed a Misuse of Drugs Act search warrant at the appellant's home.
During the search, police located boxes, strapping and clips identical to the boxes which had contained the cash. Further evidence of cash counting was also located.
The total amount of cash seized was $5,987,220.
CIPHR messages downloaded from the appellant's and each co‑accused's mobile telephones revealed that the appellant had been involved with the co‑accused in arranging the distribution, sale and supply of prohibited drugs.
The $5,987,220 was the proceeds of the sale and distribution of prohibited drugs.
The primary's judge's sentencing remarks and the appellant's personal circumstances
The primary judge recounted in his sentencing remarks the facts and circumstances of the offending.
His Honour made the following findings:
(a)The methylamphetamine was packaged for on-sale and supply into the community for profit (ts 3).
(b)The appellant willingly participated in the commission of count 1 for commercial reward (ts 4). Although the amount of the appellant's reward (namely $1,000) was 'paltry', that did not excuse or reduce the seriousness of his offending (ts 4).
(c)The appellant's offending in relation to count 1 was 'not an aberration or a one‑off' (ts 4).
(d)The appellant knew that the cash the subject of count 2 was the proceeds of the sale of prohibited drugs (ts 4). His activities in relation to the cash involved 'counting, packaging, and delivering or receipt of' the money (ts 6).
(e)The appellant expected to receive some kind of commercial benefit for his participation in the commission of count 2 (ts 4 ‑ 5).
(f)The appellant's criminal conduct in relation to count 1 provided protection to the principals of the drug dealing enterprise (ts 6).
(g)The amount of cash the subject of count 2 demonstrated 'the vast reach and magnitude of [the criminal] enterprise' (ts 6).
(h)The appellant was a person in whom people who were higher in the chain of hierarchy reposed a large degree of trust, having regard to the quantity of the methylamphetamine and the amount of the cash (ts 6). The trust was limited or managed by 'the very strict instructions' that the appellant had received in relation to the delivery of the methylamphetamine and by the presence of his co‑offenders, Mr White and Mr O'Callaghan, when the appellant was engaged in the money laundering activities (ts 6 ‑ 7). Nevertheless, there remained 'a significant amount of trust' that was reposed in the appellant (ts 7).
(i)The appellant was not a user of methylamphetamine and engaged in the criminal conduct for profit (ts 7).
(j)Characterising the appellant's role in the chain of hierarchy was difficult because of the limited information available (ts 5). However, the appellant was 'more than a warehouseman' and 'more than a courier'. He was not 'a decision maker', but he was 'an ambitious and enthusiastic supporter of the enterprise' (ts 10, 13).
The primary judge discounted by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), the head sentence he would otherwise have imposed for each offence in recognition of the appellant's pleas of guilty (ts 14).
His Honour noted that the appellant had a number of prior convictions for traffic offences. His Honour said that consequently the appellant could not be described as of prior good character (ts 14).
However, the primary judge had regard to various written references from people who spoke well of the appellant and asserted that the offending was 'out of character' for him (ts 14).
The appellant was aged 27 at the time of the offending and was 28 when sentenced. His Honour took into account that the appellant's family resides in New Zealand and that imprisonment will be more difficult for him because of the absence of his family (ts 14).
As we have mentioned, the primary judge said that appropriate individual sentences were 10 years' imprisonment for count 1 and 5 years' imprisonment for count 2. However, for the purposes of totality, his Honour reduced the sentence for count 2 to 3 years' imprisonment. His Honour ordered that the individual sentences of imprisonment be served cumulatively. The total effective sentence was 13 years' imprisonment with eligibility for parole.
Counsel for the appellant's submissions
Counsel for the appellant submitted that the sentence of 10 years' imprisonment for count 1 was manifestly excessive having regard to all relevant sentencing factors including, especially, the nature and extent of the appellant's role within the criminal enterprise, the size of his reward and the degree of trust reposed in him.
It was submitted that the appellant's criminal conduct in relation to count 1 involved delivering a large quantity of methylamphetamine as a 'dead drop'. His involvement was not sophisticated.
Counsel submitted that the sentence of 3 years' imprisonment for count 2 was manifestly excessive having regard to all relevant sentencing factors including, especially, the nature and extent of the appellant's role in the money laundering and the degree of trust reposed in him.
Counsel referred to a number of previous decisions of this court which he asserted supported his submissions in relation to grounds 1 and 2.
Counsel submitted that the total effective sentence of 13 years' imprisonment infringed the first limb of the totality principle having regard to the following:
(a)although the offending involved a large quantity of methylamphetamine and a large amount of cash, the appellant's role was not significant;
(b)although the primary judge found that the appellant's role in relation to count 1 was not 'an aberration or a one‑off', that finding did not detract from the nature and extent of the appellant's role within the chain of hierarchy and during the offending;
(c)the appellant had limited authority within the criminal enterprise and acted in accordance with strict instructions;
(d)the appellant received a limited reward for his involvement in the offending; and
(e)the appellant was otherwise of good character.
The merits of the grounds of appeal
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia[2] and Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[4] the maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[5] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen[6] and R v Kilic.[7]
[4] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[5] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10] (Kiefel CJ, Bell & Keane JJ).
[6] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[7] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[8] The State of Western Australia v Doyle;[9] McAlpine v The State of Western Australia[10] and The State of Western Australia v Paolucci.[11]
[8] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[9] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[10] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
[11] The State of Western Australia v Paolucci [2020] WASCA 188 [53] (Buss P, Mazza & Beech JJA).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia[12] and Paolucci [54].
[12] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[13]
[13] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
In the present case, as to count 1, the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
We have had regard to the sentencing dispositions in a range of drug cases, including the cases cited by counsel for the appellant. The cases to which we have had regard are HSV v The State of Western Australia;[14] Musulin v The State of Western Australia;[15] Ng v The State of Western Australia;[16] Cochrane v The State of Western Australia;[17] Blasco v The State of Western Australia;[18] Trainor v The State of Western Australia;[19] Ramachandran v The State of Western Australia;[20] The State of Western Australia v MDZ;[21] McGrath v The State of Western Australia;[22] Giangiulio v The State of Western Australia.[23] It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also significant distinguishing features.
[14] HSV v The State of Western Australia [2020] WASCA 5.
[15] Musulin v The State of Western Australia [2020] WASCA 18.
[16] Ng v The State of Western Australia [2020] WASCA 70.
[17] Cochrane v The State of Western Australia [2021] WASCA 5.
[18] Blasco v The State of Western Australia [2021] WASCA 26.
[19] Trainor v The State of Western Australia [2021] WASCA 36.
[20] Ramachandran v The State of Western Australia [2021] WASCA 54.
[21] The State of Western Australia v MDZ [2021] WASCA 95.
[22] McGrath v The State of Western Australia [2021] WASCA 118.
[23] Giangiulio v The State of Western Australia [2022] WASCA 77.
The objective facts and circumstances of the appellant's offending on count 1 were very serious. That is apparent from the following:
(a)the quantity and purity of the methylamphetamine;
(b)the primary judge's unchallenged finding that the appellant was 'more than a warehouseman' and 'more than a courier' (ts 10, 13);
(c)his Honour's unchallenged finding that although the appellant was not 'a decision maker', he was 'an ambitious and enthusiastic supporter of the enterprise' (ts 13);
(d)the significance of what the appellant agreed to do and actually did as necessary and integral aspects of the continuing operation of the criminal enterprise; and
(e)although the appellant was paid only $1,000, his motivation for the offending was, on his Honour's unchallenged finding, financial reward.
His Honour's finding that the appellant's offending in relation to count 1 was 'not an aberration or a one‑off' (ts 4) did not aggravate the seriousness of the offending on count 1, but it demonstrated that the appellant was not otherwise of good character and was not entitled to any mitigation on the basis that the offending on count 1 was spontaneous or isolated.
However, we accept that the very serious character of the appellant's offending on count 1 was mitigated, for sentencing purposes, by his early plea of guilty and, to a significantly lesser extent, by the other matters of mitigation referred to by the primary judge.
In our opinion, the sentence of 10 years' imprisonment for count 1 was commensurate with the seriousness of the appellant's offending. We consider, after taking into account all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was not unreasonable or plainly unjust. Our conclusion to that effect is based upon an evaluation of the sentence from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offence; the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence as sentencing factors; and all mitigating factors. It is not reasonably arguable that the offence is manifestly excessive.
Ground 1 does not have a reasonable prospect of success.
In the present case, as to count 2, this court emphasised in Tan v The State of Western Australia[24] that general deterrence is an important sentencing factor for offences against s 563A(1)(b) of the Code:
Money laundering is 'vital to the functioning of organised criminal syndicates' and the money launderer is an 'important cog in the wheel of organised crime'. Thus, money laundering is an offence in respect of which general deterrence is given significant weight. (footnotes omitted)
[24] Tan v The State of Western Australia [2019] WASCA 112 [49].
In Tan [50], this court went on to observe:
The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious, the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities. The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. This underscores the importance of general deterrence in sentencing for offences of this kind.
We have had regard to the sentencing dispositions in a range of money laundering cases, namely Wong v The State of Western Australia;[25] Tan; Phan v The State of Western Australia;[26] H v The State of Western Australia;[27] The State of Western Australia v Zhuang.[28] It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also significant distinguishing features.
[25] Wong v The State of Western Australia [2019] WASCA 8.
[26] Phan v The State of Western Australia [2019] WASCA 163.
[27] H v The State of Western Australia [2020] WASCA 211.
[28] The State of Western Australia v Zhuang [2021] WASCA 56.
The objective facts and circumstances of the appellant's offending on count 2 were very serious. That is apparent from the following:
(a)the amount of the cash;
(b)his Honour's unchallenged findings as to the nature and extent of the appellant's role in the commission of count 2, including the finding that the appellant's activities in relation to the cash involved 'counting, packaging, and delivering or receipt of' the money (ts 6);
(c)his Honour's unchallenged finding that although the appellant was not 'a decision maker', he was 'an ambitious and enthusiastic supporter of the enterprise' (ts 13);
(d)the significance of what the appellant agreed to do and actually did as necessary and integral aspects of the continuing operation of the criminal enterprise; and
(e)his Honour's unchallenged finding that the appellant expected to receive some kind of commercial benefit for his participation in the commission of count 2 (ts 4 ‑ 5).
We accept that the very serious character of the appellant's offending on count 2 was mitigated, for sentencing purposes, by his early plea of guilty and, to a significantly lesser extent, by the other matters of mitigation referred to by the sentencing judge. We also note the reduction in the sentence for count 2 in the application of the totality principle.
In our opinion, the sentence of 3 years' imprisonment for count 2 was commensurate with the seriousness of the appellant's offending. We consider, after taking into account all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was not unreasonable or plainly unjust. Our conclusion to that effect is based upon an evaluation of the sentence from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offence; the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence as sentencing factors; and all mitigating factors. It is not reasonably arguable that the offence is manifestly excessive.
Ground 2 does not have a reasonable prospect of success.
In the present case, as to counts 1 and 2, we are of the opinion, after taking into account:
(a)the maximum penalty for each count;
(b)the very serious nature of the offending, viewed as a whole;
(c)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(d)the appellant's personal circumstances and antecedents;
(e)the mitigating factors referred to by his Honour; and
(f)all other relevant sentencing considerations,
that it is not reasonably arguable that the total effective sentence of 13 years' imprisonment is unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, and having regard to all relevant facts and circumstances, including those referable to the appellant personally, and all relevant sentencing factors.
It is not reasonably arguable that error by the primary judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.
Ground 3 does not have a reasonable prospect of success.
Conclusion
Leave to appeal should be refused. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
6 JULY 2022
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