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JRE v The State of Western Australia [2023] WASCA 100

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border control drug contrary to s 11.3 and s 307.5(1) of the Commonwealth Criminal Code. Offending related to 2.87 kilograms of pure cocaine. Offender also sentenced for state drug offence. Original sentence imposed 10 years of imprisonment with a non-parole period of 7 years. Offender appealed on the grounds that the sentence was manifestly excessive and that it infringed upon the totality principle.

Manifest Excess: The maximum penalty for the Commonwealth offence is life imprisonment and/or 7,500 penalty units.This offence was a serious example of offending of its type having regard to the large quantity of cocaine, the estimated value of the drug (between $598,000 and $1.2 million), offender’s financial motivation and their significant role in a criminal enterprise responsible for importing drugs from overseas. That role was that of the Australian agent of the enterprise, responsible for arranging the receipt of imported drugs. Offender’s early plea of guilty and their cooperation with the authorities justified a sentence that was substantially less than that which would otherwise have been imposed. Having regard to the maximum penalty, the seriousness of the offence, the sentences imposed in comparable cases and the personal circumstances of offender it has not been established that the sentence of 7 years’ imprisonment for the Commonwealth offence is unreasonable or plainly unjust. 

Totality: A degree of accumulation between the state and federal offences was appropriate to reflect the aggregate criminality. The two offences represented discrete acts of criminal conduct, albeit that they were both part of a continuing criminal enterprise. In this case the discounts for pleading guilty and other mitigating factors (including cooperation) were applied, appropriately, in calculating the individual sentences. That does not mean that those factors were no longer relevant when it came to determining the total effective sentence. The total sentence should have reflected not only the overall criminal conduct but also the personal circumstances of offender, including their guilty pleas and cooperation. The total sentence imposed on offender is not a proper reflection of all of the relevant factors. In particular, it does not reflect the fact that offender entered early pleas of guilty and cooperated with the authorities. The total sentence was unreasonable or plainly unjust.

Leave to appeal granted. Appeal allowed. Offender resentenced to 6 years of imprisonment with a non-parole period of 3 years and 6 months.

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