Wood v The State of Western Australia - [2024] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WOOD -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 143
CORAM:   BUSS P
HALL JA
DALTON AJA

HEARD:   17 OCTOBER 2024
DELIVERED          :   14 NOVEMBER 2024
FILE NO/S:   CACR 19 of 2024
BETWEEN:   SAMUEL WOOD
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARONE DCJ
File Number            :   IND 1949 of 2021

Catchwords:

Criminal law - Appeal against sentence - Sale or supply of trafficable quantity of methylamphetamine - Whether sentence of 11 years 8 months' imprisonment manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	C Wareham
Respondent	:	K C Cook

Solicitors:

Appellant	:	Sarah Tricarico Lawyers Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Ho v The State of Western Australia [2023] WASCA 160
Kabambi v The State of Western Australia [2019] WASCA 44
Kezkiropolous v The State of Western Australia [2018] WASCA 58
Kitis v The State of Western Australia [2013] WASCA 34
Milenkovski v The State of Western Australia [2014] WASCA 48
Ng v The State of Western Australia [2017] WASCA 124
Penney v The State of Western Australia [2011] WASCA 71
Tago v The State of Western Australia [2018] WASCA 59
The State of Western Australia v PJW [2015] WASCA 113
Trainor v The State of Western Australia [2021] WASCA 36
Watson v The State of Western Australia [2022] WASCA 80
Wong v The State of Western Australia [2019] WASCA 8
Zanon v The State of Western Australia [2016] WASCA 91

JUDGMENT OF THE COURT:

The appellant was convicted on his plea of guilty of one count of selling or supplying a prohibited drug, namely a trafficable quantity of methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for that offence is life imprisonment.[1]
[1] Misuse of Drugs Act, s 34(1)(a).
The offence related to approximately 10 kg of methylamphetamine that the appellant transported from Sydney to Perth by car. The appellant was involved in the exchange of the drugs in Perth for $888,650 in cash.
The appellant was sentenced to 11 years 6 months' imprisonment. He seeks leave to appeal his sentence on the sole ground that it is manifestly excessive. He places particular emphasis on what he claims is his limited role in the criminal enterprise.
A co‑accused, Mathew Peagram, was jointly charged with the appellant and also convicted on his plea of guilty. Peagram received the same sentence and has separately appealed on a different ground.
For the reasons that follow, the ground of appeal has no reasonable prospect of success. The sentence imposed on the appellant was not unreasonable or plainly unjust. Leave to appeal should be refused and the appeal dismissed.

Circumstances of the offending

On 6 April 2021, the appellant and Peagram drove a car from Victoria to Sydney. They were unknown to each other prior to this journey.
On arrival in Sydney, a bag containing 9.974 kg of methylamphetamine was placed into the car. They were each provided with a cipher (encrypted) mobile telephone. The appellant and Peagram then drove together to Wagga Wagga, where Peagram was dropped off. Wood continued the journey by car to Perth, arriving on 9 April 2021. Meanwhile, Peagram travelled independently by plane, arriving in Perth on 8 April 2021.[2]
[2] ts 939 - 940.
The police became aware of the appellant's presence in Western Australia and began observing his movements. On the morning of 10 April 2021, the appellant and Peagram met at a carpark at the Stratton Shopping Centre and spent approximately half an hour together. They then drove together to the Blackadder Nature Reserve. They both walked through the reserve and Peagram took some photographs. They then returned to the shopping centre.[3]
[3] ts 940.
At about 11.50 am, the appellant and Peagram drove back to the reserve and, whilst the appellant remained in the car, Peagram took a bag containing the drugs into the reserve, where he left it. He then returned to the car and he and the appellant drove off.[4]
[4] ts 940.
The drugs were collected by a third man, who left a quantity of cash in a box. About 30 minutes later, the appellant and Peagram returned to the reserve. Peagram walked into the reserve and collected the box containing the cash. He then returned to the car.[5]
[5] ts 940.
A short time later police stopped the car and arrested the appellant and Peagram. The box of money was still in the car and was seized by the police. The man who had collected the drugs was also intercepted by police and the drugs were seized.[6]
[6] ts 940 - 941.
The box in the car contained a total of $888,650 Australian dollars. The drugs in the bag consisted of 9.974 kg of methylamphetamine with a purity of between 78% and 80%. The drugs were packaged into 10 smaller bags, each of which contained approximately 1 kg.[7]
[7] ts 857, 941.
The appellant knew from the outset of his involvement that drugs were involved and he agreed to participate on that understanding. However, he maintained that he was not aware of the weight, purity or type of drug, and that was not disputed by the State. He did know that a substantial quantity of drugs was involved. It was accepted on his behalf that he knew that it was in the order of kilograms, rather than grams. He maintained that he did not know that after delivering the drugs in Perth there would be money to collect.[8]
[8] ts 945 - 946.
The appellant's motivation was financial gain. He was offered between $10,000 and $15,000 for his part in the enterprise. He had not received any of the promised payment as at the time of his arrest.[9]
[9] ts 947.

Personal factors

The appellant was 26 years old at the time of the offending. He was 29 years old at the time of sentencing.[10]
[10] ts 951.
The appellant was born and raised by his biological parents in a regional area of Victoria. He has three siblings, an older brother, a younger brother and a younger sister. When he was around 6 years old, his parents separated, and he remained in his mother's care with ongoing contact with his father. His mother re‑partnered and had another daughter. His father also had another daughter to one of his subsequent partners.
The appellant reported that one of his stepfathers was violent towards him, his sister, his younger brother and his mother. He described another stepfather in positive terms, but that man's relationship with his mother did not last. The appellant said that his father's partner was emotionally abusive and would hit him if his father was not around. The appellant reported good current relationships with his mother and father.[11]
[11] ts 951 - 952.
The appellant attended regional Victorian primary schools and then high school to the start of year 11. He then moved to Townsville with his father, where he completed year 11. He remained in Townsville for nearly three years, until 2013. He reported difficulties in concentrating at school and described himself as hyperactive and compulsive. He said there was some bullying and fighting at school. He had difficulty with reading.[12]
[12] ts 952; psychological report, dated 4 February 2024, 4.
After leaving school, the appellant worked at a cheese factory for two years and then at a fitness centre as he attempted to complete a qualification in personal training. He found the theoretical modules of his studies too difficult to complete and fell further and further behind, until he eventually dropped out. He then returned to working at the cheese factory. He remained in that job for about 18 months, until he was arrested and remanded in custody.[13]
[13] ts 952; psychological report, dated 4 February 2024, 4 - 5.
The appellant has no dependants but has had a number of relationships. He described one of these relationships as being abusive on the part of his former partner. He said that in 2020, his then partner was unfaithful, transferred their home into her name and ran up large debts. He was working in the cheese factory at the time. When they split up, he walked away with only $5,000 and a car. He said that he was depressed and did not want to face the legal processes required to recover his house, so he let it go. It was six months after that breakup that the offence occurred.[14]
[14] ts, 947; psychological report, dated 4 February 2024, 3 - 4.
Whilst the appellant was on bail, he met his current partner and had been with her for eight months at the time he was sentenced. His current partner is a manager for a real estate company, resides in Perth, does not have any children and is a positive influence. She does not use drugs and the appellant had not relapsed into drug use whilst he was on bail.[15]
[15] ts 873, 952; psychological report, dated 4 February 2024, 4.
When the appellant was released on bail, his father moved to Western Australia and rented a home in this State. The appellant lived with his father and worked at a job in construction for three months and then in another job forklift driving.[16]
[16] ts 872 - 873, 952; psychological report, dated 4 February 2024, 3.
As to the appellant's health, he reported having suffered eight or nine concussions between the ages of 2 and 22. There was no medical report as to any ongoing repercussions of these injuries. As to his mental health, the appellant reported that he had been diagnosed with attention deficit hyperactivity disorder (ADHD) during his childhood and was prescribed dexamphetamine. His only experience with mental health professionals as an adult occurred when he was about 25 years old, when he was assessed by a psychologist and a psychiatrist and diagnosed with ADHD and was again prescribed dexamphetamine. At the time of sentencing, he was not taking any prescribed medication nor was he receiving any other treatment.[17]
[17] Psychological report, dated 4 February 2024, 5 - 6.
The appellant has a long history of substance use. He reported that when he was 12 years old, he started drinking alcohol in the company of a stepbrother. By the time he was 13 years old, he was drinking alcohol every weekend. At 16 years old, he started smoking cannabis and subsequently smoked it nearly every day until the age of 21 years. He first tried methylamphetamine when he was 17 years old. He denied ever engaging in injecting drug use. From the age of 22 years until late 2020, the appellant was an occasional user of methylamphetamine, ketamine, amphetamine, MDMA, 'magic mushrooms' and LSD. After he and his partner separated in late 2020, he became chronically distressed and starting using illicit drugs on a habitual basis and also drinking alcohol to excess.[18]
[18] Psychological report, dated 4 February 2024, 7.
A psychologist reported that the appellant's functional intelligence and general cognitive function fell well within the normal range. The psychologist assessed the appellant as suffering from a mixed depressive and anxiety disorder at a mid‑level of intensity with anxiety as the dominant symptom. The appellant appeared to have overcome a pre‑existing substance abuse disorder, one that it was suggested he was struggling with at the time of the offence.
The psychologist stated that the appellant suffers from several symptoms associated with complex post‑traumatic stress disorder (CPTSD), including flashbacks and ruminations but does not appear to suffer from 'full blown' CPTSD. Rather, anxiety and depression appear to be his primary mental health difficulties. The psychologist noted that the appellant does not have any prior criminal history and expressed the view that he is at a low risk of recidivism.[19]
[19] Psychological report, dated 4 February 2024, 10 - 12.

Sentencing remarks

The sentencing judge said that she would sentence the appellant on the basis that his role was that of a courier. Her Honour said that the appellant knew that drugs were involved 'from the moment that [he] agreed to become involved'. She accepted that he was not aware that there was going to be money to take back. She said that the appellant intended to deliver the drugs on 10 April 2021.[20]
[20] ts 945.
The sentencing judge said that she would sentence the appellant on the basis that he was not aware of the weight, purity or type of drug but that he did know it was a substantial quantity. Her Honour said that by 10 April 2021, the appellant and Peagram both knew they were involved in a transaction involving a substantial quantity of drugs.[21]
[21] ts 946.
Her Honour accepted that at the time of the offence the appellant was struggling financially and that he was motivated to participate by the promise of financial gain.[22]
[22] ts 947.
As regards the role of the appellant as a courier, the sentencing judge said:[23]
I accept that the courier doesn't have the beneficial ownership of the drugs and [is], in effect, being used by those who have the beneficial ownership to wear the risk of being physically the person caught with the drugs involved in the transaction, and you're being used by those people to their benefit.
But nonetheless, the courier does play an integral role because without the courier the drugs are not going to be transported on this occasion. And clearly each of you were trusted by whoever the beneficial owner of the drugs was, because this did involve a significant amount of drugs, the 9.974 kilograms.
If the amount of money that was located is any indication as to its potential value, then the value at that time was somewhere in the order of $888,650. And of course as a matter of common sense and logic, that must be a bulk price, and its true value in the community would be far greater.
I have not been given any evidence as to what its value would be. Directly in that regard, I'm not going to attempt the mathematics and the like. But it's a real common‑sense thing for me to know what of course if 9.974 is being transacted for $888,650 in bulk, then its value in the community is higher than [the $888,650]. So clearly you are trusted couriers.
[23] ts 948.
The sentencing judge said that each of the appellant and Peagram would be sentenced on the basis that this was a one‑off transaction and not part of an ongoing course of conduct on their part. However, her Honour said that this did not diminish the seriousness of the drug transaction on 10 April 2021.[24]
[24] ts 948 - 949.
The sentencing judge said the seriousness of the offending was also reflected by the maximum penalty of life imprisonment. Her Honour said that whilst the offence of supplying the drug occurred on 10 April 2021, it was not a fleeting offence and the appellant's involvement in it was not short. She said that the appellant and Peagram each had the opportunity to reflect on their conduct and change their mind about being involved.[25]
[25] ts 949.
The sentencing judge said that the appellant's plea of guilty was a significant factor, however it was a late plea. The trial was listed to commence on 7 or 8 November 2023 with the evidence to commence on 13 November 2023. The appellant indicated a plea of guilty on 7 November 2023, which was entered when he was arraigned on 8 November 2023. That plea was entered on the understanding that the State would discontinue another charge. Her Honour recognised that the plea meant that witnesses did not need to come to court and a trial was avoided. She also took into account the strength of the case against the appellant. She concluded that a discount of 10% from the head sentence was appropriate.[26]
[26] ts 960 - 961.
The sentencing judge accepted that the appellant was remorseful. Her Honour said that that was indicated by his plea of guilty and by the psychological report. In that report, the appellant was said to have expressed a deep sense of remorse and regret about his offending. He had stated a determination to avoid getting into trouble again and to better himself and use his time in custody wisely.[27]
[27] ts 961.
The sentencing judge referred to character references that spoke favourably of the appellant. These were provided by the appellant's father, a prison chaplain and employers who had employed the appellant whilst he was on bail. Her Honour accepted that the appellant had been a responsible employee and had displayed a good work ethic and an ability to be focused and disciplined. A letter from the appellant's current partner said that the appellant had expressed a desire to put the matter behind him and move on with his life.[28]
[28] ts 961 - 962.
The sentencing judge described the appellant's age at the time of the offending as being on the outer cusp of youth as a mitigating factor. This entitled the appellant to only 'a small amount of mitigation'.[29]
[29] ts 963.
The sentencing judge noted that the appellant had also made efforts to address the causes of his offending. This included participating in an addiction recovery program with the Whitehaven Clinic whilst in custody. A letter from Whitehaven stated that the appellant had undertaken 12, 90‑minute counselling sessions and had completed the program in December 2021. He was said to have engaged extremely well and made excellent progress on developing insight into his behaviour. There was evidence that the appellant had also undertaken some education whilst in custody, with a view to acquiring life skills. Her Honour accepted that the appellant had shown a commitment to rehabilitation and that he was at a moderate or low risk of reoffending. She noted that the appellant has no relevant prior offending history.[30]
[30] ts 964.
The sentencing judge concluded that the appellant and Peagram had similar roles and levels of culpability. She concluded that the appropriate sentence for the appellant was a term of imprisonment of 11 years 6 months. She ordered that the appellant be eligible for parole and backdated the sentence to 8 May 2022 to take into account time spent in custody.[31]
[31] ts 965 - 966.

Ground of appeal

There is one ground of appeal. It is that the sentence imposed on the appellant was manifestly excessive in all the circumstances of this case.

Appellant's submissions

The appellant accepted that the weight of the drugs involved in a case is not the only indicator of seriousness, but it remains an important consideration. Where a similar sentence has been imposed in another case which involved a greater volume of drugs than the appellant, some analysis of the broader circumstances applicable to each is required. Such a comparison may suggest a discrepancy indicative of error, specifically that the sentence imposed in the case involving a lesser volume was too severe.[32]
[32] WAB 9 - 10.
To illustrate this argument, the appellant relied on Ho v The State of Western Australia.[33]The appellant submitted that the same outcome in Ho, that is a sentence of 11 years 6 months, where the offending concerned approximately 16 kg of methylamphetamine, as opposed to the almost 10 kg in the present case, is indicative of error. The similarity in the sentences is said to be incongruent given the otherwise similar circumstances of the cases. The appellant and the offender in Ho were of a similar age and of previous good character. However, the significant difference in the quantity of drugs involved would be expected to be reflected in a lower sentence for the appellant.[34]
[33] Ho v The State of Western Australia [2023] WASCA 160.
[34] WAB 10 - 11.

Respondent's submissions

The respondent submitted that the fact that the appellant received the same sentence as that imposed in Ho (after a successful appeal) does not demonstrate that the appellant's sentence is manifestly excessive. Whilst there was a greater quantity of drugs in Ho, the respondent said that the appellant's culpability is materially greater than that of Ho.[35]
[35] WAB 22 - 24.

In the present case, the appellant had sole responsibility for transporting the methylamphetamine across the country and voluntarily became involved in the offending for financial gain. That is to be contrasted with Ho, who was in company with his co‑offender during a train journey from eastern Australia and only became aware of the presence of drugs during that journey. Ho was not financially motivated but became involved to assist his cousin, who was his co‑offender. Ho was not involved in any sale of the drugs, whereas the appellant took part in an arrangement to exchange the drugs for money on 10 April 2021.[36]
[36] WAB 23 - 24.
The respondent also referred to Trainor v The State of Western Australia;[37] Watson v The State of Western Australia;[38] Kezkiropolous v The State of Western Australia;[39] Zanon v The State of Western Australia;[40] Kitis v The State of Western Australia;[41] and Penney v The State of Western Australia.[42] Whilst a number of those cases relate to offences that were committed before the increase of the maximum penalty to life imprisonment, the respondent submitted that they do not support a conclusion that the sentence imposed on the appellant was manifestly excessive.[43]
[37] Trainor v The State of Western Australia [2021] WASCA 36.
[38] Watson v The State of Western Australia [2022] WASCA 80.
[39] Kezkiropolous v The State of Western Australia [2018] WASCA 58.
[40] Zanon v The State of Western Australia [2016] WASCA 91.
[41] Kitis v The State of Western Australia [2013] WASCA 34.
[42] Penney v The State of Western Australia [2011] WASCA 71.
[43] WAB 29 - 30.

Relevant legal principles

An appeal on the ground of manifest excess is an allegation of implied error. The general principles governing appeals contending that error should be inferred on the basis that a sentence is manifestly excessive are well established. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. The fact that sentencing is a discretionary exercise must be respected and it is not sufficient that the appeal court may have exercised the sentencing discretion differently.
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the offender's personal circumstances.[44]
[44] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not, of itself, establish that the sentencing discretion has or has not miscarried. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellate court dismisses an appeal against sentence, or resentences an offender, the decision does not, of itself, fix the upper or lower limit of the range. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[45]
[45] The State of Western Australia v PJW [2015] WASCA 113.
The sentencing principles for serious drug dealing and trafficking offences involving large quantities of drugs are also well established. The major sentencing consideration 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 drug 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 a subsidiary consideration, but they are not completely irrelevant.[46]
[46] Milenkovski v The State of Western Australia [2014] WASCA 48.
The maximum penalty for the offence of the sale or supply of methylamphetamine where the quantity of the drug is or exceeds the prescribed trafficable quantity, namely 28g, is life imprisonment. That maximum penalty was increased from the previous maximum penalty of 25 years' imprisonment as a result of amendments made by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA).
The maximum penalty for an offence demonstrates Parliament's view of the gravity of the offence. An increase in the maximum penalty for an offence is an indication that the Parliament regards the offence as being of a more serious kind than was previously the case. The maximum penalty of life imprisonment demonstrates that Parliament now regards offending of the kind the subject of this appeal as being of the most serious kind.[47]
[47] Trainor [45].
If Parliament increases the maximum penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty is an indication that sentences for the offence in question should be increased. Accordingly, any previously established sentencing ranges for the offence in question remain relevant as a guide, but will need to be considered bearing in mind the subsequent increase in the maximum penalty.[48]
[48] Trainor [47].
There are presently insufficient cases dealing with sentences imposed since the maximum penalty increased to reach any concluded view as to the appropriate range of sentences. Reference to comparable cases from before the increase remains necessary, subject to recognition that the increase will mean that those earlier cases are likely to have resulted in sentences that are lower than would be the case under the present penalty regime.

Merits of the appeal

As has been noted, the maximum penalty for the offence committed by the appellant is life imprisonment. That indicates the seriousness of the offence.
The circumstances of the offence in this case were also serious. That is reflected in the following factors:
1.The appellant sold or supplied approximately 9.974 kg of methylamphetamine of between 78% and 80% purity.
2.The appellant's involvement commenced on 6 April 2021 and continued to 10 April 2021. During that period, he drove from Victoria to Sydney and then from Sydney to Perth with the drugs. In Perth, he met with Peagram and assisted with the arrangements to supply the drugs and collect cash in payment for them.
3.Whilst the appellant may not have known the precise weight, type or purity of the drug, it was evident to him that a substantial quantity was involved. So much would have been apparent from the fact that a car was needed to transport it and from the size and weight of the bag taken to the reserve on 10 April 2021.
4.The appellant was motivated by financial gain. He was promised a payment of between $10,000 and $15,000, though he had not received this payment at the time of his arrest.
Having regard to those factors, the appellant's involvement in this offence was not a fleeting or brief one. Though the offence of selling or supplying the drugs happened on 10 April 2021, this occurred in the context of the appellant's knowing involvement in the movement of the drugs, which commenced several days earlier. Whilst the appellant's role can be fairly described as that of a courier, it was clearly a critical role in the drug enterprise. Further, the appellant was trusted to transport the drugs across the country on his own. He then assisted Peagram with the delivery of the drugs and the collection of the large quantity of cash that was clearly payment for those drugs.
The appellant's personal circumstances were favourable in that he had no relevant prior criminal record and had made efforts towards rehabilitation. His risk of reoffending was said to be low to moderate, particularly if he maintained abstinence from drugs. He pleaded guilty, albeit at a late stage, and expressed remorse for his offending. These factors were relevant. However, personal factors are generally afforded less weight in respect of offending of this nature given the high importance of general deterrence.
As to comparable cases, manifest excess cannot be established by conducting a comparison with a single case. The sentence of 11 years 6 months imposed in Ho represents a single instance of the exercise of the sentencing discretion. It was the outcome of an appeal in which the issue was parity with the sentence imposed on a co‑offender. That outcome does not set a benchmark which can be used to test whether the appellant's sentence is excessive. In any event, there are a number of factors which need to be taken into account when conducting a comparison with Ho.
Ho involved two appellants, the offender and his co‑offender and cousin, Ngo. They travelled from Sydney to Perth by train with two suitcases, each containing methylamphetamine. Both suitcases contained roughly 16 kg of methylamphetamine. The pair were supposed to travel to a suburban address in Perth to drop off the drugs but were intercepted by police before they were able to do so. Each faced a single charge relating to the contents of their respective suitcases. They were found guilty following a trial.
Ngo was sentenced to a term of 15 years 6 months' imprisonment. As well as being a courier of the drugs, Ngo had made three deliveries of money to associates in connection with their drug dealing activities. He was a relatively young man at the time of the offending, being 25 years old and had support within the community as well as good prospects of rehabilitation. The court dismissed Ngo's appeal against sentence.
Ho was sentenced to 13 years 6 months' imprisonment at first instance. This court accepted that Ho was a courier 'at the very bottom of the chain'. He had agreed to the offending out of a sense of loyalty to Ngo and was to receive no financial benefit. Ho's antecedents were similar to those of Ngo, however, Ho's appeal was allowed on the basis that a disparity greater than 2 years' imprisonment was warranted to mark the difference in culpability between the two men. Ho was resentenced to a term of 11 years 6 months' imprisonment.
The sentence of 15 years 6 months' imprisonment for Ngo does not indicate that the appellant's sentence is excessive. The difference of 4 years, even after taking into account the 10% discount that the appellant received for his plea of guilty, adequately reflects the larger quantity of drugs, as well as the slightly greater role played by Ngo.
Nor is a comparison with the sentence imposed on Ho of assistance to the appellant. The appellant's culpability was materially greater than that of Ho. The appellant had sole responsibility for transport of the methylamphetamine across the country and voluntarily became involved in the offending for financial gain. He was also involved in the arrangement for the exchange of drugs for money. The greater culpability of the appellant offsets the difference in quantity. Ho's sentence does not support a conclusion that the appellant's sentence was manifestly excessive. In any event, as noted earlier, that appeal turned on the question of parity.
In Trainor, the offender pleaded guilty to possession of approximately 3.9 kg of methylamphetamine with intent to sell or supply. The purity ranged from 74% ‑ 81%. His role was to store large quantities of the drugs for others. He received a 25% discount for his plea of guilty and was sentenced to 14 years' imprisonment. An appeal against that sentence was dismissed. This court noted that had the offender been sentenced under the previous regime with the lower maximum penalty, the sentence of 14 years' imprisonment would have been 'at least high' and may have been manifestly excessive, but this was not the case when the court took into account the increased maximum penalty of life imprisonment.
A considerably larger quantity of methylamphetamine was involved in the appellant's case and he received a much smaller discount for his guilty plea than the offender in Trainor. Those factors can be balanced against mitigating factors in the appellant's case that were not available in Trainor. The sentence imposed on the appellant was in fact significantly lower than that in Trainor and that case supports a conclusion that the sentence imposed on the appellant was within the available range.
In Watson, the offender was sentenced to 10 years' imprisonment for the supply of 4 kg of methylamphetamine. The offender dropped a backpack containing drugs in some bushland in a park. The offender's role was difficult to characterise but he was not a decision‑maker and acted at the direction of others. However, he had been involved in counting cash that he knew was the proceeds of supplying drugs and was sentenced on the basis that his offending was not an aberration and that he was more than a courier. Watson was allowed a 20% discount for his guilty plea. Leave to appeal against the sentence was refused.
The refusal of leave establishes only that the sentence imposed in that case was not arguably wrong. It does not set any standard. In any event, whilst Watson's role might arguably be characterised as more serious than that of the appellant and he did not have the same personal mitigating circumstances, the quantity of drugs at issue in the present case is much higher. Furthermore, Watson received a significantly higher discount for his guilty pleas. Those factors entirely explain the lesser sentence that Watson received. That case does not support a conclusion that the sentence in the present case was manifestly excessive.
In Kezkiropolous, the offender pleaded guilty to possession of a prohibited drug with intent to sell or supply. The appellant had delivered a black bag containing almost $90,000 in cash and collected another bag containing 11 kg of methylamphetamine with a purity of between 75% and 79%. The offence was committed before the increase in the maximum penalty. The offender received a 20% discount for his plea of guilty. He had previously been sentenced to imprisonment for drug offences. He was sentenced to 17 years 6 months' imprisonment. An appeal on the basis that this sentence was manifestly excessive was allowed, the discount for his plea of guilty was reduced to 10%, and the offender was resentenced to 13 years' imprisonment.
The appellant had a more extensive role than the offender in Kezkiropolous. He transported the drugs across State borders and was involved in the exchange of the drugs for money. Both offenders received the same discount for their guilty pleas but Kezkiropolous did not have the benefit of some of the appellant's mitigating factors. Balancing these considerations, a sentence of 11 years 6 months' imprisonment is consistent with the 13-year sentence imposed on appeal in Kezkiropolous. That is particularly so bearing in mind that that case was decided before the increase in the maximum penalty.
In Zanon, the offender was convicted after trial of one count relating to the delivery of 8.75 kg of methylamphetamine. He was one of a number of drivers used by the head of a sophisticated operation to courier drugs to a dealer. There were no mitigating features. An appeal against a sentence of 14 years' imprisonment was dismissed.
The appellant's role was greater than Zanon's because Zanon did not transport drugs across State borders. However, the appellant had a number of mitigating factors that were not available to Zanon, including a 10% reduction for his guilty plea.
After allowing for those differences, the 11 years 6 months sentence imposed on the appellant is consistent with the 14 years imposed in Zanon. Furthermore, the sentence in Zanon was decided before the increase in the maximum penalty.
In Kitis, the offender entered a late guilty plea for transporting almost 5 kg of methylamphetamine. He couriered the drugs for a short distance from a car park to a house in Perth. He arranged for the drugs to be stored at his brother's house. He was sentenced to 9 years' imprisonment and received a further cumulative sentence of 3 years' imprisonment in relation to another smaller quantity of methylamphetamine. The issue on appeal was totality. The appeal was dismissed.
The appellant's role is comparable to that of the offender in Kitis. Bearing in mind that the sentence of 9 years' imprisonment was imposed for a lesser quantity than what was sold or supplied by the appellant and that the maximum sentence at that time was lower, Kitis affords no assistance to the appellant. That is particularly so bearing in mind that it is a case from 2013.
In Penney, the offender and a co‑offender drove from Sydney to Western Australia in a hire car containing 3 kg of cocaine and 5.7 kg of methylamphetamine. The offender was asleep in the car when it was stopped by police and his co‑offender was driving. He pleaded guilty at an early stage and was sentenced to a total effective term of 13 years' imprisonment. He was sentenced on the basis that he was more than a mere courier but was not a principal in the overall operation. The basis for that finding appears to have been the discovery in the appellant's possession of keys to a unit in which various indicia of drug dealing were located. The offender in Penney had an excellent work record but had become addicted to drugs. He had no relevant criminal record and was considered to pose a low risk of reoffending. He had completed a number of courses whilst in prison and it was accepted that he was remorseful and that he would be imprisoned far from his family, who resided in eastern Australia. The appeal turned on the issue of totality. The appeal was dismissed.
Both the circumstances of the offending and of the offender in Penney are comparable to those of the appellant. However, Penney pleaded guilty at an early stage, whereas the appellant did not and Penney's sentence must be evaluated in the context of the lesser maximum penalty that applied at that time. In light of those considerations, the sentence upheld in Penney supports a conclusion that the appellant's sentence of 11 years 6 months was not manifestly excessive. However, the utility of this case is limited given that it was decided in 2011.
We have also had regard to some other cases that are broadly similar, though prior to the increase in the maximum penalty. They are Milenkovski v The State of Western Australia;[49] Ng vThe State of Western Australia;[50] Tago vThe State of Western Australia;[51] and Wong vThe State of Western Australia.[52] It is unnecessary to set out the facts of those cases as the sentences imposed do not support the appellant's contention that his sentence was manifestly excessive.
[49] Milenkovski.
[50] Ng vThe State of Western Australia [2017] WASCA 124.
[51] Tago vThe State of Western Australia [2018] WASCA 59.
[52] Wong v The State of Western Australia [2019] WASCA 8.
Having regard to the maximum penalty, the circumstances of the offence, the personal circumstances of the appellant, the mitigating factors, and the comparable cases, the sentence of 11 years 6 months was not unreasonable or plainly unjust. That sentence was a proper reflection of the seriousness of the offending and is not inconsistent with sentences imposed in comparable cases. It has not been established that the sentence is manifestly excessive.

In our view, the ground of appeal has no reasonable prospect of success. We would refuse leave and dismiss the appeal.

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.
ID
Associate to the Honourable Justice Hall
14 NOVEMBER 2024