Zheng v The State of Western Australia
[2016] WASCA 224
•14 DECEMBER 2016
ZHENG -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 224 | |
| THE COURT OF APPEAL (WA) | 14/12/2016 | ||
| Case No: | CACR:107/2016 | 13 DECEMBER 2016 | |
| Coram: | NEWNES JA MAZZA JA | 13/12/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MINGYU ZHENG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence One count of possession of methylamphetamine with intent to sell or supply 49.85 g Purity 77% to 82% Offender 41 years old No relevant prior convictions 4 years and 3 months' imprisonment |
Legislation: | Nil |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Harvey v The State of Western Australia [2015] WASCA 146 JM v The State of Western Australia [2015] WASCA 40 Le v The State of Western Australia [2014] WASCA 120 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 The State of Western Australia v Hunter [2014] WASCA 87 The State of Western Australia v Littlefair [2013] WASCA 177 Tran v The State of Western Australia [2016] WASCA 37 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ZHENG -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 224 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 1705 of 2015
Catchwords:
Criminal law - Application for leave to appeal against sentence - One count of possession of methylamphetamine with intent to sell or supply - 49.85 g - Purity 77% to 82% - Offender 41 years old - No relevant prior convictions - 4 years and 3 months' imprisonment
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Harvey v The State of Western Australia [2015] WASCA 146
JM v The State of Western Australia [2015] WASCA 40
Le v The State of Western Australia [2014] WASCA 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
The State of Western Australia v Hunter [2014] WASCA 87
The State of Western Australia v Littlefair [2013] WASCA 177
Tran v The State of Western Australia [2016] WASCA 37
- JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
1 On 16 June 2016, after trial in the District Court, the appellant was sentenced by Stevenson DCJ to a term of 4 years and 3 months' imprisonment for possession of methylamphetamine with intent to sell or supply. The appellant has applied for leave to appeal against the sentence on the ground that it is manifestly excessive.
The background
2 The appellant operated an Asian-style supermarket from two-storey premises in William Street, Northbridge. The retail business was conducted on both levels of the building but on the upper level there was also a staff room and a toilet and shower for staff use. At least five sea containers were located outside the building. The sea containers were put to various uses, including as a storage facility for goods to be sold in the business, as an office, and to store papers associated with the business.
3 On 16 April 2014, State police officers and officers of the Australian Customs and Border Protection Service executed a search warrant at the property. During a search, a handbag containing personal possessions of the appellant and two clipseal bags were found concealed behind a mattress in the staff room. One clipseal bag contained 45.3 g of methylamphetamine with purity of about 77% and the other contained 4.55 g of methylamphetamine with a purity of about 82%. The handbag was also found to contain $10,345 in cash. A used clipseal bag which tested positive to methylamphetamine was found in one of the sea containers.
4 The appellant was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
The sentencing remarks
5 The sentencing judge noted that the appellant was 41 years of age at sentencing. She was born in China and had attended school there until 17 years of age. The appellant had come to Australia in 2001 with her first husband and had lived here for three years before returning to China. She returned to Australia in 2007 and married for a second time. At the time of the offending, the appellant was in a relationship with her current partner, with whom she apparently ran the supermarket. The appellant has a daughter who was about 20 years of age and a second daughter who was about two months old, at the time of the offending. The elder daughter has since returned to China. The appellant's aged parents and siblings live in China.
6 The sentencing judge found that the large quantity and high purity of the drugs, and the fact that the appellant was trusted with a large amount of cash, indicated that the appellant was in contact with those close to the upper levels of the chain of distribution. His Honour observed that the appellant had demonstrated no remorse or insight into the seriousness of the offending.
7 His Honour noted that the appellant had no relevant prior convictions and took into account in mitigation the effect of the appellant's imprisonment on her younger child, who at the time of sentencing was two years old.
8 The appellant was sentenced to 4 years and 3 months' immediate imprisonment, to commence from 8 June 2016, and was made eligible for parole.
The proposed ground of appeal
9 The sole ground of appeal was that the sentence of 4 years and 3 months' imprisonment was manifestly excessive.
The disposition of the appeal
10 A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error; that is, although no specific error by the sentencing judge can be discerned, error is to be inferred from the result.
11 When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this case, 25 years' imprisonment or a fine of $100,000 or both), the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
12 However, while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence in the future: see Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] - [40]. Each case must depend upon its particular facts and circumstances.
13 In support of her contention that the sentence was manifestly excessive, the appellant referred to Tran v The State of Western Australia [2016] WASCA 37; JM v The State of Western Australia [2015] WASCA 40; Harvey v The State of Western Australia [2015] WASCA 146; Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; and Le v The State of Western Australia [2014] WASCA 120. We have had regard to those cases and a number of other cases, including The State of Western Australia v Littlefair [2013] WASCA 177 and The State of Western Australia v Hunter [2014] WASCA 87 and the cases referred to in those cases. It is unnecessary to canvass the cases. Suffice it to say that they do not assist the appellant.
14 It is well-established that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. Generally the weight of the drugs in question is not the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. The degree of purity may also be significant. 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 subsidiary considerations, but they are not completely irrelevant.
15 The appellant's offending was serious. It involved 49.85 g of methylamphetamine with a high degree of purity of between 77% and 82%. The appellant was found not to be a user of methylamphetamine and it is evident that she intended to distribute it into the community for commercial gain. The quantity and high degree of purity of the drug indicated, as the sentencing judge found, that the appellant was in contact with those close to the upper levels of the chain of distribution. His Honour also found that the appellant had demonstrated no remorse or insight into the seriousness of her offending. Those findings are not challenged.
16 The appellant was 41 years old when sentenced. Her offending is not mitigated by youth. And while the appellant is not to be punished for exercising her right to go to trial, it means that she does not have the benefit of the mitigation that a plea of guilty would have afforded her. The sentencing judge made some allowance for the effect of the appellant's imprisonment on her young child but there were otherwise no mitigating factors.
17 In our opinion, the sentence of 4 years and 3 months' immediate imprisonment was open to the sentencing judge in the sound exercise of his discretion. Having regard to the maximum penalty for the offence, the facts and circumstances of the offending, the standards of sentencing customarily observed for offending of this nature, and the place which the appellant's offending occupies on the relevant scale of seriousness, it is not reasonably arguable that the sentence was manifestly excessive.
Conclusion
18 The proposed ground of appeal does not have a reasonable prospect of succeeding and leave to appeal is therefore refused. It follows that the appeal is dismissed.
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