Blasco v The State of Western Australia
[2021] WASCA 26
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLASCO -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 26
CORAM: QUINLAN CJ
BUSS P
MITCHELL JA
HEARD: 13 NOVEMBER 2020
DELIVERED : 12 FEBRUARY 2021
FILE NO/S: CACR 26 of 2020
BETWEEN: ANTHONY BLASCO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 1969 of 2019
Catchwords:
Criminal law – Appeal against sentence – Drug offences – Offering to sell or supply methoxphenidine – Offering to sell or supply methylamphetamine – Offering to sell or supply cannabis – Possession of a trafficable quantity of methylamphetamine with intent to sell or supply – Possession of methoxphenidine with intent to sell or supply – Total effective sentence of 8 years imprisonment – Whether sentence infringed the totality principle
Legislation:
Misuse of Drugs Act 1981 (WA)
Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | E R Zillessen |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Baker v The State of Western Australia [2020] WASCA 117
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Cochrane v The State of Western Australia [2021] WASCA 5
HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147
Kabambi v The State of Western Australia [2019] WASCA 44
Le v The State of Western Australia [2014] WASCA 120
McConnell v The State of Western Australia [2020] WASCA 59
Moodley v The State of Western Australia [2020] WASCA 158
Musulin v The State of Western Australia [2020] WASCA 18
Nguyen v The State of Western Australia [2018] WASCA 162
Ramsden v The State of Western Australia [2019] WASCA 179
Staiger v The State of Western Australia [2020] WASCA 99
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Wilson [2015] WASCA 119
JUDGMENT OF THE COURT:
Introduction and overview
This is an appeal against sentence.
The appellant was convicted, on his pleas of guilty, of eight counts in an indictment. Six of the convictions were for offering to sell or supply a prohibited drug, contrary to s 6(1)(c) of the Misuse of Drugs Act 1985 (WA) (Misuse of Drugs Act). Two of the convictions were for possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act.
Count 1 involved an offer made on 21 August 2018 to sell or supply methoxphenidine. Count 2 involved an offer made on 12 October 2018 to sell or supply 1 g of methylamphetamine. Count 3 involved an offer made on 2 November 2018 to sell or supply 14 g of methylamphetamine. Count 4 involved an offer made on 15 November 2018 to sell or supply 14 g of methylamphetamine. Count 5 involved an offer made on 16 November 2018 to sell or supply one 'cone' (approximately 0.1 ‑ 0.4 g) of cannabis. Count 6 involved an offer made on 24 November 2018 to sell or supply 28 g of methylamphetamine.
Counts 7 and 8 were committed on 14 December 2018. Count 7 involved the possession, with intent to sell or supply, of 45.18 g of methylamphetamine. Count 8 involved the possession, with intent to sell or supply, of 72.9 g of methoxphenidine.
The maximum penalty for each of counts 1, 2, 3, 4 and 8 was 25 years imprisonment or a fine of $100,000 or both. The maximum penalty for count 5 was 10 years imprisonment or a fine of $20,000 or both. The maximum penalty for each of counts 6 and 7 was life imprisonment. That is because each of counts 6 and 7 involved a trafficable quantity of methylamphetamine.
On 30 January 2020, Stevenson DCJ imposed a total effective sentence for the eight counts in the indictment of 8 years imprisonment. The individual sentences imposed were as follows:
Count Sentence Concurrent/Cumulative 1 12 months imprisonment Concurrent 2 12 months imprisonment Concurrent 3 3 years imprisonment Cumulative 4 3 years imprisonment Concurrent 5 2 months imprisonment Concurrent 6 4 years imprisonment Concurrent 7 5 years imprisonment Cumulative 8 3 years imprisonment Concurrent
The learned sentencing judge ordered that the appellant's sentence be backdated to 14 December 2018 and that he be eligible for parole. His Honour also made a drug trafficker declaration.
The appellant appeals on the sole ground that, having regard to the overall criminality involved and in all of the circumstances of the case, the total effective sentence of 8 years imprisonment imposed by the learned sentencing judge infringed the first limb of the totality principle.[1]
[1] Leave to appeal on the sole ground was granted by order of Buss P dated 22 May 2020, AB 4.
For the reasons that follow, the appeal should be dismissed.
Circumstances of the offending
At all material times relevant to the offences, the appellant was the sole user of a mobile telephone that was being lawfully monitored by police.
During that period, on 21 August 2018, the appellant called a woman and offered to supply her with 'green ones'. This was a reference to the drug methoxphenidine, in the form of tablets also known as green dragons. The appellant offered the woman an unknown quantity of the drug. The appellant and the woman agreed to meet at an address in Leschenault to complete the transaction. This conduct constituted count 1.
On 12 October 2018, the appellant received a call from a man. The appellant asked the man if he had the encrypted messaging application Signal, to which he replied that he did not. During a further text message conversation the appellant offered the unknown male 1 g of methylamphetamine. The sale price was $400. They arranged to meet to complete the transaction. This conduct constituted count 2.
On 2 November 2018, the appellant received a text message from a woman, and through a text message conversation offered to sell her 14 g of methylamphetamine. They arranged to meet at a shopping centre, where they completed the transaction. This conduct constituted count 3.
On 15 November 2018, the appellant received a text message from a man and, through a text message conversation, offered to supply him a 'family pack'. This was a reference to four balls of methylamphetamine, each being 3.5 g. The overall quantity of the drug offered was therefore 14 g. The appellant arranged for the man to collect the drugs from his home address in Bunbury. This conduct constituted count 4.
On 16 November 2018, the appellant received a text message from a woman and, on her request, the appellant offered to supply the woman with a cone. A cone refers to cannabis of weight approximately between 0.1 and 0.4 g. The woman made arrangements to collect the cone on 17 November 2018 while the appellant was out of town. This conduct constituted count 5.
On 24 November 2018, the appellant received a call from the same man the subject of count 4. The man stated that he was hoping to get 'eight', which the appellant offered to supply. This was a reference to an ounce (or 28 g) of methylamphetamine. The total cost of the drugs was $5,600, which the man said he could pay in instalments of $4,800, $500 and $300.
On 14 December 2018, investigators became aware that the appellant and an associate were travelling to Perth in a car to collect drugs. Police surveillance captured the appellant meeting a male in Perth, after which the appellant's car was stopped by police as the vehicle was travelling south near Baldivis.
The vehicle was searched by police who found a total of 45.18 g of methylamphetamine, with purities varying between 72% and 81%. The methylamphetamine was divided into clip seal bags containing the following quantities: 7.35 g (81% purity), 20.5 g (79% purity), 3.40 g (72% purity), 9.96 g (78% purity), 3.48 g (75% purity) and 0.46 g (unknown purity). Possession of these drugs constituted count 7.
The vehicle was seized and a further search revealed 258 pale blue tablets with a snake dragon design. Analysis revealed that the 258 tablets, weighing 72.9 g, contained methoxphenidine (with components of 2-fluorodeschloroketamine also tentatively identified). Possession of these drugs constituted count 8.
Appellant's personal circumstances
The appellant was 39 years of age at the time of sentencing.
The appellant had a chaotic and dysfunctional upbringing, which resulted in him being expelled from school in year 9 and not returning. He worked for a short period with his uncle at that time, but otherwise did not have a substantial employment history.
The appellant commenced drug use at the age of 15 years. He first used methylamphetamine at the age of 17 years. As a consequence, the appellant has an extensive prior criminal history. That history includes convictions for armed robbery, burglary, serious traffic offences and numerous drug offences. In relation to the latter, the appellant had previous convictions for possession of methylamphetamine with intent to sell or supply (in 2014), possession of cannabis with intent to sell or supply (in 2014), simple possession of methylamphetamine (in 2007 and 2014) and simple possession of cannabis (in 2000 and 2007).
Prior to the offending in the present case, the appellant had been released from his most recent term of imprisonment on 17 March 2018.
At the time of sentencing, the appellant had three adult children and had recently fathered a fourth child, who was born while the appellant was in custody. The appellant maintained a supportive relationship with his current partner, the mother of his fourth child. The appellant had sought and participated in counselling while in custody.
Learned sentencing judge's reasons
In his plea in mitigation before the learned sentencing judge, counsel for the appellant submitted that, following the appellant's release from prison on 17 March 2018, he tried to gain employment and was able to support himself for a time from a compensation payment he had received in relation to an accident he had suffered while in prison.
Counsel submitted, however, that the appellant recommenced using methylamphetamine and quickly accumulated a drug debt to an outlaw motorcycle gang. The appellant started selling drugs for the outlaw motorcycle gang in order to repay his drug debt. Counsel submitted that, while the appellant was receiving a direct financial benefit, he should be sentenced on the basis that he was not a 'high level dealer that sells strictly for commercial purposes' and that he was a 'drug user first'.[2]
[2] ts 11 (AB 46).
The learned sentencing judge accepted that the appellant had relapsed into drug use, which had affected his judgement. His Honour nevertheless characterised the appellant's offending as a lifestyle choice to become involved in the dissemination of prohibited drugs and that he was involved in a very significant and substantial ongoing distribution for commercial gain, in the context of an outlaw motorcycle gang.[3] The learned sentencing judge did not make a specific finding as to whether all of the money obtained in the appellant's drug dealing was applied to the reduction of his drug debt.
[3] ts 24 (AB 59).
Ultimately, the learned sentencing judge characterised the offending as being in the low to mid‑level of criminality in its totality.[4]
[4] ts 24 (AB 59).
His Honour considered that there should be a discount of 22% for the appellant's plea of guilty, in relation to each count. Otherwise, his Honour observed that the State's case was plainly a strong one.[5]
[5] ts 24 (AB 59).
The learned sentencing judge accepted that the appellant's upbringing had impacted upon his early years, including his schooling and that his drug use had impacted upon his ability to live usefully in the community, to hold down employment and maintain relationships.[6] His Honour said that it was to the appellant's credit that he had sought out counselling while in custody and that he had an intention to maintain that assistance in the future.[7]
[6] ts 25 (AB 60).
[7] ts 26 (AB 61).
Nevertheless, the learned sentencing judge found that, given the appellant's prior record and personal circumstances, his risk of reoffending was high.[8]
[8] ts 26 (AB 61).
After referring to the relevant sentencing principles and imposing the individual sentences, the learned sentencing judge turned to the issue of totality. His Honour correctly identified both limbs of the totality principle.
The learned sentencing judge concluded that, in all of the circumstances, the appropriate total effective sentence was 8 years imprisonment, which his Honour achieved by ordering that the terms of imprisonment for counts 3 and 7 (both of which involved methylamphetamine) be served cumulatively. All other terms were ordered to be served concurrently.
General principles
As noted above, the sole ground of appeal is that having regard to the overall criminality involved and in all of the circumstances of the case, the total effective sentence of 8 years imprisonment infringed the first limb of the totality principle.
There is no challenge to any of the individual sentences imposed by the learned sentencing judge, whether on the basis that they were manifestly excessive, or otherwise.
The challenge on totality grounds is, of course, itself a species of implied rather than express error. The principles in relation to the totality principle are well known and were summarised in Kabambi v The State of Western Australia.[9] Those principles include the following.
[9] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
The application of customary sentencing principles in the context of drug trafficking generally was summarised by this Court in Carlucci v The State of Western Australia:[10]
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 invariably be subsidiary considerations, but they are not irrelevant.
[10] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 (Carlucci) [37] (Mazza, Mitchell & Beech JJA).
In the present case, of course, two of the counts, counts 6 and 7, involved trafficable quantities of methylamphetamine. As a result, those individual counts carried a maximum penalty of life imprisonment, an increase in penalty brought about by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (2017 Amendment Act). The effect of that increase in the maximum penalty for possession of a trafficable quantity of methylamphetamine was considered by this Court in HSV v The State of Western Australia.[11]
[11] HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 (HSV).
In that case, the court said, in relation to the issue of totality:[12]
[A]t the time of the appellant's offending, Parliament's view of the relative seriousness of possession of trafficable quantities of methylamphetamine was reflected in the maximum penalty of life imprisonment. That view is to be taken into account in assessing the criminality of the offending conduct … as part of the overall criminality of all the offences which is to be reflected in the total effective sentence.
[12] HSV [44] ‑ [45] (Buss P, Mazza & Mitchell JJA).
The decisions of this Court in relation to sentences imposed for offences which include possessing trafficable quantities of methylamphetamine following the 2017 Amendment Act were recently reviewed by this Court in Cochrane v The State of Western Australia.[13] Those decisions included HSV, Musulin v The State of Western Australia,[14] McConnell v The State of Western Australia,[15] The State of Western Australia v Delaney,[16] Staiger v The State of Western Australia,[17] Baker v The State of Western Australia[18] and Moodley v The State of Western Australia.[19]
[13]Cochrane v The State of Western Australia [2021] WASCA 5 (Cochrane).
[14] Musulin v The State of Western Australia [2020] WASCA 18 (Musulin).
[15] McConnell vThe State of Western Australia [2020] WASCA 59 (McConnell).
[16] TheState of Western Australia v Delaney [2020] WASCA 93 (Delaney).
[17] Staiger v The State of Western Australia [2020] WASCA 99 (Staiger).
[18] Baker v The State of Western Australia [2020] WASCA 117 (Baker).
[19] Moodley v The State of Western Australia [2020] WASCA 158 (Moodley).
From those decisions, a range of sentences customarily imposed for offences of possessing trafficable quantities of methylamphetamine, since the maximum penalty was increased to life imprisonment, is beginning to emerge.
Appellant's submissions
The appellant, in his submissions in support of the appeal, emphasised the learned sentencing judge's description of the appellant's offending as 'low to mid‑level in its totality' and the fact that the appellant was dealing in drugs in order to pay off a drug debt. Those circumstances, the appellant submitted, distinguished the overall criminality of his offending from other decisions in which comparable sentences of imprisonment had been imposed.
The appellant referred in particular to three previous decisions of this Court: Carlucci, Ramsden v The State of Western Australia[20] and Musulin.[21]
[20] Ramsden v The State of Western Australia [2019] WASCA 179 (Ramsden).
[21] The appellant's written submissions also referred Nguyen v The State of Western Australia [2018] WASCA 162, The State of Western Australia v Wilson [2015] WASCA 119 and Le v The State of Western Australia [2014] WASCA 120. The relevance of those decisions, which concerned the penalties applicable prior to the 2017 Amendment Act, was not developed at the hearing of the appeal. They do not provide useful comparators to the present case.
In Carlucci the offender was sentenced, on her pleas of guilty, to four offences, including two counts of possession of methylamphetamine (108.7 g and 123.9 g respectively, all between 71% and 89% purity) with intent to sell or supply (counts 1 and 4), one count of possessing $33,960 which was reasonably suspected of being unlawfully obtained (count 3), and one count of possession of MDMA with intent to sell or supply (count 2). Counts 2, 3 and 4 were all committed on the same date. Count 1 was committed approximately six months earlier. Counts 1 and 4 were committed prior to the maximum penalty for possessing trafficable quantities of methylamphetamine being increased to life imprisonment.
The offender in Carlucci was sentenced to 3 years imprisonment on count 1 and 5 years imprisonment (cumulative) on count 4. The sentences for count 2 (12 months imprisonment) and count 3 (2 years 6 months imprisonment) were ordered to be served concurrently, resulting in a total effective sentence of 8 years imprisonment. The offender was given a 15% discount for her plea of guilty, and the sentencing judge reduced the sentences he would have imposed on counts 1 and 4 having regard to totality considerations.
On appeal, this Court concluded that while the scale of the offender's drug distribution business was significant, her circumstances at the time of the offending indicated that the cash the business generated for her personal benefit was limited, her drug selling operation was less sophisticated than in a number of other cases, and she did not have a serious prior record and thus had some prospect of rehabilitation. The court concluded that the total effective sentence of 8 years imprisonment was disproportionate to the overall criminality involved. While it did not disturb the individual sentences, the court concluded that the sentence for count 4 should begin after the offender had served 18 months of the sentence for count 1, resulting in a total effective sentence of 6 years 6 months imprisonment.
In Ramsden, the offender was convicted and sentenced, after trial, of one count of possession of MDMA (309.71 g) with intent to sell or supply (count 1), one count of possessing property (cash) reasonably suspected of being unlawfully obtained (count 2) and one count of possession of methylamphetamine (49.98 g) with intent to sell or supply (count 3). The offences were all committed on the same day. The sentencing judge in that case concluded that the offender was engaged in a commercial enterprise in the distribution of drugs at least at the mid‑level.[22] Count 3 was committed prior to the increase in the maximum penalty brought about by the 2017 Amendment Act.
[22] Ramsden [32] (Buss P & Mitchell JA).
The offender in Ramsden was sentenced to 6 years 3 months imprisonment on count 1, 15 months imprisonment (reduced from 2 years 6 months imprisonment for totality) on count 2 and 4 years imprisonment on count 3. With count 3 being ordered to be served concurrently, the total effective sentence was 7 years 6 months imprisonment.
Leave to appeal to this Court on the basis of implied error was refused, on the basis that it was not reasonably arguable that either the individual sentences or the total effective sentence imposed were unreasonable or plainly unjust.[23]
[23] Ramsden [45] (Buss P & Mitchell JA).
Finally the appellant referred to Musulin, which concerned offences committed following the increase in the maximum penalty brought about by the 2017 Amendment Act.
In Musulin, the appellant (36 years old at the time of sentencing) was sentenced, on his guilty plea, in relation to two offences: one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply (count 1); and one count of possessing a sum of money totalling $125,305 in cash, which was reasonably suspected to have been unlawfully obtained (count 2). The total amount of methylamphetamine seized was 178.2 g (68% ‑ 82% purity).
The appellant in Musulin received a 25% discount for his guilty plea. He was sentenced to 7 years imprisonment for count 1 and 12 months imprisonment for count 2, to be served cumulatively, leading to a total effective sentence of 8 years imprisonment. The offences were committed while the offender was on parole for other serious drug offences and so was already serving a term of imprisonment. The sentencing judge ordered that the 8 years imprisonment be served concurrently with the previously imposed term.
The offender's criminality in Musulin was found to be high on the basis that he was a trusted person within a large‑scale drug distribution network. The offending was also for commercial purposes (extinguishing a pre-existing drug debt). In dismissing the appeal, the court held that the offending constituted a very serious example of an offence of the kind in count 1 for three reasons: the amount and purity of the drugs; the fact that the offending was for commercial purposes; and the fact that offending occurred shortly after the offender was released on parole which demonstrated a blatant disregard for the law.
Disposition
Having regard to all of the circumstances of the case (including those personal to the appellant) and all relevant sentencing principles, it cannot be concluded that the total effective sentence imposed on the appellant in the present case was unreasonable or plainly unjust. In our view it cannot be inferred that the learned sentencing judge was in error in the present case.
The appellant committed a series of serious drug offences over the course of a number of months. The offences were not isolated events but reflected the reality that the appellant was a participant in a substantial business of distributing prohibited drugs. While he dealt in those drugs for the purpose of paying his own drug debts, that purpose was nevertheless a commercial one.
Apart from the appellant's pleas of guilty, there was limited mitigation. The appellant was not youthful or inexperienced for sentencing purposes. The appellant was not otherwise of good character. His previous convictions for serious drug dealing offences underscored the importance of personal deterrence as a sentencing factor. His Honour found that the appellant's risk of reoffending was high. There was some mitigation in the appellant's dysfunctional upbringing and its consequences. There was also some mitigation in the appellant having sought counselling while in custody and having formed an intention to maintain that assistance in future.
It was not suggested by the appellant that any of the individual sentences imposed were excessive and, indeed, in our view the individual sentences were within the appropriate range of sentences. The real issue, for the purposes of totality, was the extent to which the sentences were ordered to be served cumulatively or concurrently. Given the ongoing nature of the appellant's conduct, some accumulation was necessary in order to properly reflect the overall seriousness of the offending and the totality of the criminality involved. A total effective sentence of 8 years imprisonment properly reflected that total criminality.
The decisions referred to by the appellant do not suggest otherwise. Both Carlucci and Ramsden concerned sentences imposed prior to the increase in the maximum penalty for possessing trafficable quantities of methylamphetamine to life imprisonment. That increase has, as Parliament intended, given rise to an increase in the sentences customarily imposed for that offence[24] and is properly reflected in the totality of the sentence in the present case.
[24] Cochrane[9] (Quinlan CJ, Mazza & Beech JJA).
In addition, as leave was refused on the basis that it was not reasonably arguable that the individual sentences or the total effective sentence were manifestly excessive, the decision in Ramsden is of little utility in revealing the range of sentences customarily imposed.
Finally, rather than supporting the appellant's case, the decision in Musulin tends to support the conclusion that the total effective sentence in the present case was not unjust or unreasonable. The personal circumstances of the appellant and the offender in Musulin were similar (although the offender in Musulin, unlike the appellant, was on parole when he committed his offences), their commercial purpose was the same (extinguishing a pre‑existing drug debt) and they received a comparable discount for their pleas of guilty (although the discount that the appellant received was slightly less, as his plea was not at the first reasonable opportunity).
While the quantity of methylamphetamine in the offender's possession in Musulin was greater than in the present case, the weight of the drugs involved, while of importance, is not the chief factor.[25] Unlike in Musulin, the appellant's overall offending occurred over an extended period of time, and involved a variety of prohibited drugs. The appellant also fell to be sentenced for offences that included two offences carrying a maximum of life imprisonment.
[25] Carlucci [37] (Mazza, Mitchell & Beech JJA).
In all of the circumstances, the total effective sentence imposed on the appellant fell within the emerging range of sentences customarily imposed for this type of offending, since the passing of the 2017 Amendment Act. It was not unreasonable or plainly unjust.
Conclusion
The appeal must be dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
12 FEBRUARY 2021
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