Wijnen v The State of Western Australia - [2024] WASCA 1

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WIJNEN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 1
CORAM:   BUSS P
HALL JA

HEARD:   11 AUGUST 2023
DELIVERED          :   4 JANUARY 2024
FILE NO/S:   CACR 35 of 2023
BETWEEN:   ASHLEY MATHEW WIJNEN
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 1536 of 2021

Catchwords:

Criminal law - Sentence appeal - Possession of methylamphetamine with intent to sell or supply - Where no finding made that appellant's role was commercial - Whether sentence manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	No appearance

Solicitors:

Appellant	:	Shadgett Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Bonham-Smith v The State of Western Australia [2023] WASCA 146
Curry v The State of Western Australia [2022] WASCA 36
Dillon v The State of Western Australia [2020] WASCA 24
Gaskill v The State of Western Australia [2018] WASCA 8
HSH v The State of Western Australia [2023] WASCA 113
Humes v The State of Western Australia [2023] WASCA 110
Kabambi v The State of Western Australia [2019] WASCA 44
Le v The State of Western Australia [2022] WASCA 163
Stipanich v The State of Western Australia [2023] WASCA 118
The State of Western Australia v Stocker [2022] WASCA 178

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted after trial of one count of attempting to possess a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA). A female co‑accused charged with the same offence was acquitted at the trial, though she pleaded guilty to a second count relating to possession of another smaller quantity of methylamphetamine (in respect of which the appellant was not charged).
The appellant was sentenced to 6 years 6 months' imprisonment backdated to commence on 22 December 2022 to take into account time spent in custody prior to sentencing. An order was made that he be eligible for parole.
There is one ground of appeal. The ground alleges that the sentencing judge erred by imposing a sentence that was manifestly excessive. In essence, the appellant submits that the sentence was excessive having regard to the fact that no finding was made that his role was at a high level or driven by commercial considerations and that he had a number of positive personal circumstances.
For the reasons that follow, we are not satisfied that the ground of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

Circumstances of the offence

On 24 September 2020, Australian Border Force intercepted a package sent from Malaysia addressed to residential premises in Western Australia. The package was examined and found to contain three gift‑wrapped boxes, each of which contained baby clothing. Two of the boxes had false layers, beneath which were vacuum‑sealed bags containing methylamphetamine. The total weight of the methylamphetamine was 291 g with a purity of between 81% and 82%.[1]
[1] ts 56.
The package was reconstructed and the methylamphetamine was substituted by an inert substance. A listening device and a tracking device were installed in the package. The package was then delivered to the residential premises to which it was addressed.[2]
[2] ts 56.
At the residence the female co-accused answered the door and received the package, though the name on the package was not hers. She then attempted to make a telephone call to the appellant. When the call was not answered, the female co-accused sent a text message to the appellant asking whether he was expecting a package. The appellant responded by text to the effect that he would come to the house in about an hour.[3]
[3] ts 56 - 57.
On arrival at the house, the appellant told the female co‑accused that he had ordered something and asked to be provided with gloves. At 1.40 pm, police executed a search warrant at the house and found the appellant in close proximity to the package. He was wearing a pair of latex gloves and holding a Stanley knife. There were indications that he had attempted to open the package.[4]
[4] ts 58.
The appellant was searched and a clip‑sealed bag containing 0.24 g of methylamphetamine was found in one of his socks. In his wallet a piece of white paper was found, on which was written the same name and address details as were on the package. Other documents found at the house indicated that the name on the package was false and was associated with the female co‑accused.[5]
[5] ts 58 - 59.
The appellant was arrested by police and interviewed. In the interview, he admitted that he was a user of methylamphetamine but denied knowing anything about the package. He said that he went to the house without knowing that there was a package there until he arrived. He said his intention was to visit the son of the female co‑accused, who also lived at the house. As regards the piece of paper with the addressee details, the appellant said that a friend of his had asked him if he knew anyone who would allow his mail to be sent to their address. The appellant said that the man who made this request said that he was a coin collector, and that a package would be sent that contained coins. The appellant said that he had used gloves because he was a ‘germophobe’ and did not want to risk infecting his fragile grandparents with COVID‑19. He accepted that he had sent and received the text messages but denied any knowledge that the package contained drugs.[6]
[6] ts 427.
The sentencing judge said that he had no hesitation in rejecting most of the appellant's evidence as, plainly, the jury had also done.[7]
[7] ts 427.
The drugs originally contained in the package were analysed and it was confirmed that they were methylamphetamine with the total weight and purity referred to earlier. There was evidence at the trial that the drugs had a value, if sold in ounce lots, of approximately $180,000.[8]
[8] ts 427.

Personal circumstances

At the time of sentencing, the appellant was 34 years old. He comes from a stable and loving home. He was an average school student and left school at the age of 16 to commence a boilermaker/welder apprenticeship.[9]
[9] ts 428.
In 2009, the appellant suffered a broken wrist in a car accident. This injury required surgery and resulted in considerable time off work. During this period, the appellant could not continue to work in his chosen trade and obtained employment as a crane driver and a truck driver. He then suffered another significant health issue, namely testicular cancer, which required surgery when he was 30 years old. That cancer was successfully treated, and the appellant was in remission at the time of sentencing. The appellant had sought some psychological counselling in 2018 and was prescribed antidepressant medication for depression.[10]
[10] ts 428.
The appellant commenced using methylamphetamine in 2011 at a time when he was also using painkillers and anti‑inflammatory medications associated with his wrist injury. A friend introduced him to the drug as a means of counteracting the low mood induced by the painkillers.[11] He received substantial financial compensation for his wrist injury, which money the sentencing judge found he had essentially dissipated on drugs. During this period his methylamphetamine consumption escalated to daily use. He acknowledged to the court‑appointed psychologist that he had previously sold or supplied drugs.[12]
[11] Pre‑sentence report dated 14 March 2023, page 1.
[12] ts 428 - 429.
After being arrested and remanded in custody in respect of this matter, the appellant ceased use of methylamphetamine. He recognised that his drug use had led to contacts with antisocial peers and had increased to a stage where he would go on 'benders' that lasted days. He expressed a resolve to be drug free in the future.[13]
[13] ts 428.
A report from a private psychologist who the appellant had first consulted in 2020 confirmed that at that time the appellant had been treated for depressive symptoms. He subsequently re‑presented in April 2021 after being charged. He had five further sessions with the psychologist at that time due to an increased level of anxiety associated with the court proceedings. The psychologist stated that the appellant has some impulsivity and a lack of consequential thinking. He suggested that the appellant showed some signs of ADHD or autism spectrum disorder.[14]
[14] ts 429.
A number of character references were provided that confirmed that the appellant is well-regarded by his family and friends and that they continue to support him. He is also supported by his long-term partner, who stated that he had made significant changes to his life following his arrest. The appellant had resumed work as a boilermaker in November 2020 and, prior to his arrest and remand in custody, had proven to be a valued employee.[15]
[15] ts 429 - 431.
The appellant had no record of offending prior to the commission of this offence.[16]
[16] ts 428.

Sentencing remarks

As to the appellant's role, the sentencing judge said that he would sentence the appellant on the basis that he played:[17]
an important part in the offence, namely to arrange for the delivery of the package that you clearly knew contained prohibited drugs. Your offending, however, was not merely a fleeting involvement. You obtained the address on behalf of [the other man], or some other person, at least passed it on, and then attended at the address to take possession of the package.
His Honour noted the value of the drugs and then said:[18]
You were essentially an important cog in the offence, which would have involved the distribution ultimately of the drugs to somebody else, at the very least.
[17] ts 435.
[18] ts 435.
The sentencing judge said that the material that had been provided indicated that the appellant was, apart from his drug issues and this offending, a person who was capable of making a positive commitment to society. He also accepted that the appellant had facilitated the course of justice by narrowing the issues at trial. This included taking no issue with continuity of the drugs and consenting to the evidence of a drug expert being read in. The sentencing judge also accepted that the appellant had taken significant steps towards his rehabilitation. However, his Honour acknowledged that personal factors had less weight in respect of offending of this type.[19]
[19] ts 431 - 432.
A number of the character references stated that the appellant was remorseful. The sentencing judge was unwilling to accept those claims in circumstances where the appellant had denied his offending and gone to trial.[20]
[20] ts 430.
The sentencing judge imposed a sentence of 6 years 6 months' imprisonment. He made an order that the appellant be eligible for parole. The sentence was backdated to commence on 22 December 2022.[21]
[21] ts 435.

Appellant's submissions

The appellant notes that his offending did not involve a finding that his role was characterised by commerciality. Rather, the sentencing judge found that the offending involved arranging for the delivery of the package which the appellant knew to contain prohibited drugs, going to collect the package and being ready to further distribute the drugs to at least one other person. The appellant submits that the absence of commerciality places the appellant’s offending at a lower level than other cases.[22]
[22] Appeal ts 6 - 7.
The appellant accepts that the weight and purity of the drug were matters that were appropriately taken into account as part of the sentencing process but says that there were no other aggravating factors, such as possession of large amounts of cash or weapons, which are sometimes associated with drug offending.[23]
[23] Appellant’s case [13] - [14].
The appellant points to a number of mitigating factors, including his prior good character, his good work history, that he made concessions which narrowed the issues at trial and that he had made progress towards rehabilitation. In regard to rehabilitation, the appellant submits that he has been drug‑free since his arrest (a period of approximately 18 months) and that his prospects of remaining drug‑free are enhanced by his supportive partner, to whom he is engaged, and other supportive friends and family. It is accepted that it was not open to the sentencing judge to make a finding of genuine remorse, as opposed to remorse expressed to friends and family.[24]
[24] Appellant’s case [15] - [27].
The appellant submits that the sentence of 6 years 6 months’ imprisonment imposed on him was disproportionate, having regard to his personal circumstances, notwithstanding the weight and purity of the drugs involved. In support of his submission, the appellant refers to Dillon v The State of Western Australia;[25] Le v The State of Western Australia;[26] and Curry v The State of Western Australia.[27] The appellant does not suggest that any of these authorities is a perfect comparison for his situation, as there are mitigating and aggravating factors that are different in each case.[28]
[25] Dillon v The State of Western Australia [2020] WASCA 24.
[26] Le v The State of Western Australia [2022] WASCA 163.
[27] Curry v The State of Western Australia [2022] WASCA 36.
[28] Appellant’s case [30] - [32].

Merits of the appeal

The relevant principles relating to appeals against sentence where there is a claim that the sentence is manifestly excessive are well established. Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[29] It is unnecessary to repeat them.
[29] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The major sentencing considerations for offences of dealing in or trafficking 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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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. Matters personal to an offender will almost always be a subsidiary consideration, but they are not completely irrelevant.[30]
[30] Gaskill v The State of Western Australia [2018] WASCA 8 [128].
The maximum penalty for the offence committed by the appellant is life imprisonment.[31]
[31] Misuse of Drugs Act 1981 (WA) s 34(1)(a).
As to the seriousness of the offence, the appellant attempted to possess a significant quantity of methylamphetamine of high purity. That quantity was more than ten times the trafficable quantity prescribed for methylamphetamine. The value of that drug if sold in ounce quantities was approximately $180,000.
Although no finding of commerciality was made (in the sense that the appellant had a proven financial interest in the drugs), the appellant’s role was nonetheless significant. The sentencing judge did not accept that that role was fleeting. Rather, the appellant had been involved in the making of arrangements for the package to be delivered, the collection of that package and had a willingness to be involved in delivering it on to at least one other person. As the sentencing judge found, the appellant was 'an important cog' in the criminal enterprise. His role was a trusted one that would plainly have facilitated the further distribution of the drugs into the community.
The personal circumstances of the appellant were favourable. He had no previous relevant convictions and good prospects for rehabilitation. Those factors, however, have less weight in respect of an offence of this type. As has been said many times, deterrence, both general and personal, are the most important factors in sentencing for drug offences.
We have had regard to the cases referred to by the appellant. When the circumstances of those cases are considered, it is apparent that the sentences imposed in them do not support the claim that the appellant's sentence was disproportionate. In any event, where this court dismisses an appeal against sentence, that does not carry any implication that the sentence imposed was the only correct one or that that sentence is a limit on the exercise of discretion.
In Dillon, the offender was convicted after trial of three offences: one of possession of 112 g of methylamphetamine with intent to sell or supply, one of attempting to possess methylamphetamine with intent to sell or supply and one of possession of unlawfully obtained property ($11,560 in cash). He pleaded guilty to the second offence of attempting to possess prohibited drugs on the first day of his trial. He was also dealt with for breaching a suspended sentence. The sentence imposed for the possession offence was 5 years’ immediate imprisonment and the total effective sentence was 8 years 2 months’ imprisonment. The possession offence in that case was committed before the increase in the maximum penalty to life imprisonment for offences involving a trafficable quantity of methylamphetamine. The offender in that case was described as a mid‑level user‑dealer for commercial gain. His offending was persistent and deliberate. He had participated in interviews with the police and made limited admissions. The offender sought to appeal against the activation of the suspended sentence and against the total effective sentence. Leave to appeal was refused.
Although the offending in Dillon involved a smaller quantity of methylamphetamine actually possessed, there were more offences, and the offender was found to be actively dealing in drugs. The offending in that case was arguably more serious than that of the appellant, which is reflected in the higher total effective sentence imposed. It was not suggested in Dillon that the individual sentence of 5 years’ immediate imprisonment for the possession offence was inappropriate.
In Le, the offender was convicted on his pleas of guilty to 9 offences: six of selling or offering to sell methylamphetamine, including trafficable quantities on two occasions, one of possessing a trafficable quantity of methylamphetamine, one of possessing $7,580 which was reasonably believed to have been unlawfully obtained, and one of possession of a small quantity of methylamphetamine. The total quantity of methylamphetamine was 213.31 g. The appellant received a 15% discount for his pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). The offender had a number of prior convictions for possession with intent to sell or supply. An appeal against the total effective sentence of 7 years 6 months’ imprisonment was dismissed.
As with Dillon, the offending in Le involved a smaller total quantity of methylamphetamine actually possessed, but there were more offences and the offender was actively involved in drug dealing. The offending in Le was arguably more serious than that of the appellant, which is reflected in the higher total effective sentence imposed. Le had less favourable personal circumstances than the appellant, but he pleaded guilty and received a discount for doing so. After taking into account the discount for pleading guilty, the sentence imposed in Le provides no support for the appellant's argument.

In Curry, the offender pleaded guilty to one count of possession of 248 g of methylamphetamine with intent to sell or supply and one count of possession of $146,225 in cash reasonably suspected to have been unlawfully obtained. He received a discount of 20% for his guilty pleas. At the time of the offending, the offender was on parole for aggravated burglary. The offender in that case was found to have had an essential role in a prolonged drug dealing enterprise, which encompassed dealing with users and dealers at a number of levels. A sentence of 6 years 6 months’ imprisonment was imposed for the first offence and 8 months' immediate imprisonment for the second offence (cumulative – reduced from 1 year for totality reasons). The total sentence of 7 years 2 months' imprisonment was not disturbed on appeal.
Although the amount of methylamphetamine possessed in Curry was less than that possessed by the appellant, the total offending was more serious having regard to the role of the offender and the possession of the cash. Whilst there are a number of factors in Curry that made that offending more serious, that is reflected in the greater sentence imposed. Furthermore, unlike the appellant, the offender in Curry pleaded guilty and received a discount for doing so. When those differences are taken into account it is not apparent that the sentence imposed in Curry is inconsistent with that imposed on the appellant.
It would appear that the appellant, in referring to cases involving more serious offending than his own, is not seeking to make an argument that those cases are meaningfully comparable but that the relativity between those cases and his own does not sufficiently reflect the less serious nature of his own offending. Such an argument wrongly assumes that all cases can be precisely placed upon a continuum. In fact, each sentence is the product of the exercise of a sentencing discretion and must be viewed in the light of the fact that there is no single correct sentence in any case. The effect of that is that it is usually difficult to draw a conclusion as to the correctness of a sentence by drawing a comparison with the sentence imposed in a different and more serious case.
In addition to the cases referred to by the appellant, we have also had regard to the following cases: Bonham-Smith v The State of Western Australia;[32] Stipanich v The State of Western Australia;[33] Humes v The State of Western Australia;[34] HSH v The State of Western Australia;[35] and The State of Western Australia v Stocker.[36]
[32] Bonham-Smith v The State of Western Australia [2023] WASCA 146.
[33] Stipanich v The State of Western Australia [2023] WASCA 118.
[34] Humes v The State of Western Australia [2023] WASCA 110.
[35] HSH v The State of Western Australia [2023] WASCA 113.
[36] The State of Western Australia v Stocker [2022] WASCA 178.
A number of other cases are also referred to in Stocker. In Stocker, the offender was convicted of offences involving 54.14 g of methylamphetamine and $117,865 in cash. The offender had committed two of the four offences whilst on bail. The State appeal in that case principally concerned whether the sentencing judge had properly exercised the power to impose partially concurrent sentences. The appeal was allowed, and a total sentence of 6 years 6 months’ imprisonment was imposed. Whilst Stocker involved a large amount of cash, the drugs possessed were of a significantly smaller quantity to that possessed by the appellant.
It must be borne in mind that the offence in this case attracted a maximum penalty of life imprisonment. The increase in that penalty from 25 years' imprisonment became effective on 18 September 2017. An increase in the maximum penalty should be expected to cause an increase in sentences and that is reflected in the cases referred to.
In the present case, whilst the appellant's role was not described as being commercial, he was nonetheless an important cog in the criminal enterprise. There was no suggestion that the appellant had any continuing involvement in the drug dealing enterprise, but the amount involved was significant. Whilst the appellant had a number of favourable personal circumstances, such factors are of less weight in respect of offending of this nature and are subsumed to the importance of general and personal deterrence.

Conclusion

The ground of appeal has no reasonable prospect of succeeding. It is not reasonably arguable that the sentence of 6 years 6 months' imprisonment was plainly unreasonable or unjust. Leave should be refused, and the appeal dismissed.

Orders

1.Leave to appeal refused.
2.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
4 JANUARY 2024