BSA v The State of Western Australia
[2025] WASCA 31
•28 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BSA -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 31
CORAM: BUSS P
MAZZA JA
DAVID AJA
HEARD: 16 SEPTEMBER 2024
DELIVERED : 28 FEBRUARY 2025
FILE NO/S: CACR 140 of 2023
BETWEEN: BSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: ZEMPILAS DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of four offences involving a trafficable quantity of a prohibited drug and one offence involving possession of about $3 million cash that was the proceeds of an offence - Total effective sentence of 14 years 4 months' imprisonment - Whether the sentencing judge erred by applying the discount for the pleas of guilty and a further discount for cooperation with authorities to the total effective sentence instead of the individual sentences
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 33(1), s 34(1)(a)
Sentencing Act 1995 (WA), s 6(1), s 9AA
Result:
Leave to appeal on ground 1A granted
Leave to appeal on grounds 1 and 2 refused
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | D Grace KC |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Tudori Hager Grubb |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
A Child v The State of Western Australia [2007] WASCA 285
Bazzi v The State of Western Australia [2007] WASCA 195
Browne v The State of Western Australia [2024] WASCA 162
DGF v The Queen [2021] WASCA 4
Gaskell v The State of Western Australia [2018] WASCA 8
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
MSO v The State of Western Australia [2015] WASCA 78
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
SYL v The State of Western Australia [2021] WASCA 16
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
Ta v The State of Western Australia [2022] WASCA 49
The State of Western Australia v Tran [2008] WASCA 183
Trainor v The State of Western Australia [2021] WASCA 36
TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266
VRW v The State of Western Australia [2022] WASCA 177
Watson v The State of Western Australia [2022] WASCA 80
XAT v The State of Western Australia [2013] WASCA 173
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 14 December 2023, following pleas of guilty, the appellant was convicted of four drug offences and one money laundering offence, and was sentenced to a total effective sentence of 14 years 4 months' imprisonment with eligibility for parole. The particulars of those offences and the individual sentences imposed in respect of each offence are as follows:
Section
Offence
Details
Sentence
1.
Section 6(1)(a), s 33(1), s 34(1)(a)
Misuse of Drugs Act 1981 (WA) (MDA)
On 1 September 2021, attempted to possess a prohibited drug, namely a trafficable quantity of methylamphetamine with intent to sell or supply it to another.
Maximum penalty: life imprisonment
Agreement with undercover police operative to take possession of 5 kg of methylamphetamine in exchange for $1 million.
10 years' imprisonment cumulative
2.
Section 563A(1)(b)
Criminal Code (WA)
On 16 September 2021, possessed money that was the proceeds of an offence, namely the sale and supply of methylamphetamine.
Maximum penalty: 20 years' imprisonment
Quantity of $3,004,785 held by co-offender under appellant's direction.
7 years' imprisonment reduced to 3 years for totality, cumulative
3.
Section 6(1)(c), s 33(1), s 34(1)(a)
MDA
On 24 September 2021, attempted to supply a prohibited drug, namely a trafficable quantity of methylamphetamine, to another.
Maximum penalty: life imprisonment
Appellant coordinated attempted delivery of 498.56 g of methylamphetamine by post.
6 years' imprisonment, concurrent
4.
Section 6(1)(c), s 33(1), s 34(1)(a)
MDA
On 1 November 2021, attempted to supply a prohibited drug, namely a trafficable quantity of methylamphetamine, to another.
Maximum penalty: life imprisonment
Appellant coordinated attempted delivery of 495.8 g of methylamphetamine by post.
6 years' imprisonment, concurrent
5.
Section 6(1)(c), s 33(1), s 34(1)(a)
MDA
On 24 November 2021, attempted to supply a prohibited drug, namely a trafficable quantity of methylamphetamine, to another.
Maximum penalty: life imprisonment
Appellant coordinated attempted delivery of 493.1 g of methylamphetamine by post.
6 years' imprisonment, reduced to 16 months for totality, cumulative
Total effective sentence:
14 years 4 months' imprisonment, backdated to 25 September 2023, with eligibility for parole
In fixing the total effective sentence, the sentencing judge allowed a reduction of 20% from the sentence that would otherwise have been imposed had the appellant been found guilty after trial pursuant to s 9AA of the Sentencing Act 1995 (WA). In a confidential addendum, her Honour said that she allowed a further discount of 10% for the appellant's cooperation with authorities, and that the effect of the further discount was to reduce the total effective sentence from 16 years' imprisonment to 14 years 4 months' imprisonment.
The grounds of appeal, as originally filed, complained that the total effective sentence infringed the first limb of the totality principle thereby giving rise to a miscarriage of justice (ground 1), and that the sentencing judge gave insufficient weight to the substantial assistance provided by the appellant to law enforcement agencies thereby giving rise to a miscarriage of justice (ground 2).
At the instigation of the court, the appellant sought, and was granted leave, to substitute the following grounds of appeal:
1.The total effective sentence imposed upon the appellant infringed the first limb of the totality principle in all the circumstances of the offences and the appellant, thereby giving rise to a miscarriage of justice.
1A.The learned sentencing judge erred in law by deducting the 20% discount allowed for the pleas of guilty and, further, by deducting the 10% discount allowed for the appellant's assistance to law enforcement agencies in Western Australia, from the total effective sentence her Honour would otherwise have imposed instead of from each individual sentence her Honour would otherwise have imposed.
2.The discount of 10% allowed by the learned sentencing judge for the appellant's assistance to law enforcement agencies in Western Australia was unreasonable or plainly unjust.
For the reasons which follow, we would find that appeal ground 1A has been established. The appeal should be allowed, the sentencing decision of the sentencing judge set aside and the appellant resentenced.
The factual circumstances of the offending
As to counts 1 and 2, between 31 August and 1 September 2021, the appellant entered into an agreement to take possession of 5 kg of methylamphetamine in exchange for $1 million. The drugs were supplied by an undercover operative of the Western Australia Police Force. It was arranged that the transaction would occur on 1 September 2021, and an associate and co‑offender (K) would attend a location with the money. Another associate (and co‑offender) would attend a different location to collect the drugs. The appellant directed K to package the money for collection. K then sent the appellant the details of a location in Kenwick with instructions on how to unlock the box containing the money. This information was subsequently conveyed by the appellant to the undercover police operative. When K attended at the designated location with the money, he was arrested. The money seized amounted to $1,000,800.
K's residence was searched by police on three occasions and sums of cash were seized.
A total of $3,004,785 cash was seized. That money was held by K under the direct control of the appellant.
In respect of count 3, the appellant was responsible for coordinating the sending of a parcel containing 498.56 g of methylamphetamine to Malaga on 24 September 2021, by directing associates in Victoria and Western Australia.
In respect of count 4, the appellant was responsible for coordinating the sending of a parcel containing 495.8 g of methylamphetamine to Welshpool on 1 November 2021, by directing associates in New South Wales and Western Australia.
As to count 5, the appellant was responsible for coordinating the sending of a parcel containing 493.1 g of methylamphetamine to Canning Vale on 24 November 2021, by directing associates in Victoria and Western Australia.
Over a period of about three months, the appellant attempted to possess or supply a total of about 6.5 kg of methylamphetamine. This involved four separate attempts to take possession of or supply significant quantities of methylamphetamine. The purity of the methylamphetamine the subject of the charges was between 80% and 84%. The total street value of the methylamphetamine seized was between $6.5 million and $7.5 million while the wholesale value was between $1.2 million and $1.3 million.
The appellant operated at the higher end of the drug distribution chain; that is, closer to the source of the drugs. She conscripted associates to become involved in the drug enterprise and directed co‑offenders as to the storage, delivery and distribution of methylamphetamine and the cash proceeds of crime. The appellant also instructed co‑offenders on how to avoid detection and organised the necessary equipment, including encrypted applications, for herself and her associates to do so.
The charged offences were not isolated. Accordingly, the appellant did not fall to be sentenced on the basis that her offending was an aberration or spontaneous.
The appellant's personal circumstances
At the time of the offending, the appellant was aged 33 years. She was 35 years old at the time of sentence. She was brought up in a close family and her parents remain supportive of her. She is single with no children. She has had two significant relationships. During the second relationship, she was the victim of considerable domestic violence.
The appellant completed year 10 at school before gaining a certificate in advanced makeup artistry, aromatherapy, beauty and body therapy. She worked in the beauty industry for about five years before commencing as a fly‑in fly‑out worker on mine sites as a truck driver. She continued that work until about 2013. After leaving employment, she became dependent on her then partner, and started using methylamphetamine more frequently whereupon she acquired an addiction to the substance. Her relationship subsequently ended.
The appellant commenced dealing in drugs to finance her drug habit and repay her drug debts.
On 24 January 2017, the appellant's house was searched under warrant, and she was found in possession of 7.15 g of MDMA, 11.99 g of methylamphetamine, and 14.4 g of MDA, as well as $395 cash, empty clipseal bags, a set of electronic scales, 'tick lists', smoking implements, and a glass bong. On 5 December 2017, the appellant pleaded guilty to possession of a prohibited drug with intent to sell or supply and was sentenced to a total effective sentence of 15 months' immediate imprisonment with eligibility for parole.
After the appellant's release from prison, and while on parole, she abstained from using drugs and complied with her parole conditions. However, after completing her period on parole, she became involved in escort work to repay her drug debts, whereupon she was exposed to illicit drug use, and she recommenced using methylamphetamine.
The appellant moved to Melbourne to distance herself from the drug scene in which she was involved. While in Melbourne, she became involved in a relationship where she was the victim of domestic violence. As a result, she returned to Perth in early 2020. The appellant was motivated to commit the offending to repay her drug debts and to support her methylamphetamine addiction.
In a report dated 17 November 2023, Dr Keith Mowat diagnosed the appellant as suffering from post‑traumatic stress disorder (PTSD), which he considered was likely a result of her exposure to domestic violence. Dr Mowat also diagnosed the appellant as suffering from depression and anxiety for which she was prescribed medication. He also considered that the appellant suffered from a major neurocognitive disorder (due to her ongoing drug use and poor nutrition) which impaired her cognitive functioning, including decision‑making.
After her arrest, the appellant was on home detention for a period of around 12 months. She complied with the home detention conditions except for a drug relapse in September 2023.
Assistance to law enforcement agencies
Prior to sentence, the appellant cooperated with, and provided assistance to, law enforcement agencies in Western Australia, as outlined in a confidential letter of recognition. Her assistance was graded at level 2. Some of the information she provided to police resulted in an arrest and the seizure of a firearm. The appellant also provided other information which it was submitted may be used by authorities in the future. The appellant submitted before the sentencing judge, and on appeal, that her assistance was genuine and demonstrated her remorse and contrition. The State acknowledged before the sentencing judge, and on appeal, that the appellant's assistance was significant, genuine and indicative of her remorse.
The sentencing remarks
In her remarks, the sentencing judge outlined the factual circumstances of the offending and the personal circumstances of the offender, in similar terms as above. Her Honour referred to the psychological report of Dr Mowat and his opinion that the appellant suffered from PTSD, depression, anxiety and a neurocognitive disorder.
In relation to aggravating factors, the sentencing judge considered that the following features of the offending increased the appellant's culpability: the substantial amount of methylamphetamine, namely 6.5 kg; the high purity and value of the methylamphetamine; the large sum of cash, namely about $3 million which was the proceeds of crime; the persistent nature of the offending which spanned three months and involved four separate attempts to possess or supply methylamphetamine; the appellant's role at the higher end of the drug distribution chain, closer to the supply or source of the drugs and money than her co‑offenders; and the appellant's actions in conscripting and directing her co‑offenders.
The sentencing judge also referred to the fact the offending was not isolated but part of an ongoing drug distribution enterprise which commenced as early as 2021, noting however, that the appellant could not be sentenced for offences with which she had not been charged.
As to mitigating factors, the sentencing judge acknowledged the appellant's early guilty pleas, expressions of remorse, rehabilitative efforts including her engagement with psychological counselling, and strong support within the community. Her Honour also referred to the connection between the appellant's traumatic experiences and substance abuse which in turn led to her compromised mental health, neurocognitive disorder and poor decision‑making. Her Honour said that while this provided some context and explanation for the appellant's offending, it did not reduce her criminal responsibility.
Pursuant to s 9AA of the Sentencing Act, the sentencing judge allowed a discount of 20% for the appellant's early guilty pleas. Her Honour said:
In respect of a discount to be afforded to you through your plea of guilty in accordance with the provisions of section 9AA of the Sentencing Act taking into account the stage at which you entered your plea, I am allowing a discount of your sentence by 20 per cent and that is 20 per cent from the head sentence that I would otherwise have imposed had you been found guilty after trial and there were no other mitigating factors.
The sentencing judge, after considering the gravity of the offending, the maximum penalties, and the aggravating and mitigating factors, determined that the only appropriate sentence for the offending was an immediate term of imprisonment. Her Honour emphasised the importance of general deterrence in sentencing for serious drug trafficking cases, and that the personal circumstances of the offender, while not completely irrelevant, will be afforded less weight in sentence.
Next, the sentencing judge addressed the issue of totality, and after applying the relevant principles, imposed the individual sentences outlined earlier, and a total effective sentence of 14 years 4 months' imprisonment. The appellant was ordered eligible for parole.
In a separate confidential addendum, the sentencing judge referred to the appellant's cooperation and assistance to the law enforcement agencies. Her Honour allowed a 10% discount for the appellant's cooperation with, and assistance to, authorities and indicated that, but for such assistance, she would have imposed a total effective sentence of 16 years' imprisonment which was reduced to 14 years 4 months' imprisonment by applying the 10% discount.
Appeal grounds
It is convenient to commence by addressing appeal ground 1A, as under this ground the appellant complains that the sentencing judge adopted an erroneous approach when applying the appropriate discount for the appellant's guilty pleas and the appropriate discount for the appellant's cooperation with, and assistance to, law enforcement agencies.
Under appeal ground 1A, the appellant complains that the sentencing judge erred in law by deducting the discounts allowed for the pleas of guilty, and the appellant's assistance to law enforcement agencies in Western Australia from the total effective sentence her Honour would otherwise have imposed, instead of from each individual sentence her Honour would otherwise have imposed. In support of this contention, the appellant relies on Pearce v The Queen.[1]
[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
In response, the State contends that the relevant portion of the sentencing remarks relating to the application of the discount, set out above, need to be viewed and considered in the complete context of the whole of the remarks and should be interpreted as stating her conclusion as to the effect of the discounts before outlining the individual steps taken in respect of each individual offence in reaching that conclusion. That is, the sentencing judge has, in fact, taken into account the discount allowed for both the guilty pleas and the appellant's assistance to law enforcement agencies before imposing the individual sentence for each offence. The State submits that to the extent that the confidential addendum does not support this contention, the addendum must be read as a 'shorthand form of expressing the reductions' for assistance, and it was not intended to be a statement addressing the individual steps taken in applying the discounts and appropriate reductions to each individual sentence.
The State concedes that if the sentencing judge did, in fact, apply the discounts allowed for the appellant's guilty pleas and assistance to law enforcement agencies to the total effective sentence rather than the individual sentences, this was an erroneous approach.
The State's concession in this regard is an appropriate one. When sentencing an offender for more than one offence, a sentencing judge is required to determine an appropriate sentence for each offence (including any discounts for an offender's guilty pleas and cooperation with authorities) before proceeding to consider questions of cumulation, concurrency and totality. The total effective sentence must be commensurate with the circumstances of the offending as a whole, the offender's personal circumstances and all relevant sentencing factors.
In Pearce, the High Court explained:[2]
To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (citations omitted)
[2] Pearce [45] ‑ [48] (McHugh, Hayne & Callinan JJ; Gummow J agreeing; Kirby J in dissent).
In the present case, the sentencing judge referred to 'allowing a discount [on the appellant's] sentence' of 20% for the guilty pleas. Her Honour elaborated that she was allowing a discount of 20% 'from the head sentence that I would otherwise have imposed had [the appellant] been found guilty after trial and there were no other mitigating factors'. Those statements suggest that her Honour in fact deducted the discount allowed for the guilty pleas from the total effective sentence rather than the individual sentences imposed for each offence. This conclusion is reinforced by two further matters. First, the sentencing judge did not explicitly refer to the discount for the guilty pleas when imposing any of the individual sentences. Secondly, in the confidential addendum (which forms part of the disposition of the sentencing of the appellant) her Honour refers to having already reduced the '[h]ead sentence of 16 years' on account of the discount for the guilty pleas. Her Honour then deducted from the '[h]ead sentence of 16 years' the discount allowed for the appellant's assistance to authorities.
Having regard to those matters, we are satisfied that the sentencing judge erroneously applied the discounts allowed for the early guilty pleas, and the appellant's cooperation with, and assistance to, law enforcement agencies, to the total effective sentence rather than the individual sentences. Accordingly, this ground of appeal is established, the sentencing process has miscarried, and the sentencing discretion must be exercised afresh. Consequently, it is not necessary to consider and determine the other grounds of appeal.
The question remains whether on resentence, a different or lesser sentence should be imposed. If this court, in the exercise of its sentencing discretion, considers that no different or lesser sentence should be imposed, the appeal will be dismissed.[3]
[3] Criminal Appeals Act 2004 (WA), s 31(4)(a); Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.
Resentencing
This court has all the necessary materials to enable it to resentence the appellant and must do so on the material presently before the court. After the appeal hearing, the court received further material and written submissions as to matters, personal to the appellant, which have taken place since she was sentenced.[4]
[4] Certificate of completion for orientation of a therapeutic program dated 14 March 2024; certificate of completion for the first stage of a therapeutic program dated 30 May 2024; statement of attainment for course: Use Hygienic Practices for Food Safety which forms part of a Certificate One in Hospitality dated 5 July 2024; certificate of completion for the second stage of a therapeutic program dated 8 August 2024; Cyrenian House report prepared by the Clinical Coordinator dated 18 September 2014; a therapeutic program completion report dated 25 November 2024; certificate for being accepted for the recovery mentor stage of a therapeutic program dated 28 November 2024; and letter from the appellant to the court dated 8 December 2024.
In resentencing the appellant, it is necessary to consider all relevant matters in the exercise of the sentencing discretion, including:
(a)the maximum penalty for each offence;
(b)the facts and circumstances of the offending, as outlined earlier, including the purity, quantity and value of the methylamphetamine the subject of counts 1, 3, 4 and 5, and the sum of cash, the subject of count 2;
(c)the appellant's persistent and significant involvement in a sophisticated and lucrative drug trafficking enterprise;
(d)that the charged offences were not isolated;
(e)that the appellant committed the offences for commercial gain, albeit in the context of the appellant's entrenched drug addiction and to pay significant drug debts;
(f)the importance of general and personal deterrence as sentencing considerations for offences of this kind;
(g)the appellant's personal circumstances and antecedents;
(h)mitigating factors including the appellant's early guilty pleas and the discount to be afforded pursuant to s 9AA of the Sentencing Act;
(i)the appellant's past cooperation with, and assistance to, law enforcement agencies and the discount to be afforded;
(j)the time the appellant had spent on home detention;
(k)other factors including the appellant's remorse, rehabilitative efforts and progress, mental health, and support from her family and within the community; and
(l)all relevant sentencing principles.
The general sentencing considerations for serious drug offences are well established. In Gaskell v The State of Western Australia,[5] Mazza and Beech JJA said:
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. 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. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.
[5] Gaskell v The State of Western Australia [2018] WASCA 8 [128] ‑ [129].
Before the sentencing judge, the State relied on four cases which it was submitted involved broadly comparable factual circumstances.[6] On appeal, the State again relies on those cases, albeit originally in response to the ground of appeal alleging that the first limb of the totality principle was infringed.
[6] VRW v The State of Western Australia [2022] WASCA 177; Watson v The State of Western Australia [2022] WASCA 80; Ta v The State of Western Australia [2022] WASCA 49; Trainor v The State of Western Australia [2021] WASCA 36.
In particular, the authorities of Watson v The State of Western Australia and Trainor v The State of Western Australia involved significant amounts of methylamphetamine and factual circumstances which the State submits are broadly comparable with this matter. However, the State submits the appellant's role and involvement in this drug trafficking enterprise was more serious than in the cases of Watson and Trainor. The appellant also has a prior conviction for a drug trafficking offence such that personal deterrence remains of some significance in sentencing.
In Watson, the offender pleaded guilty to two offences, one count of supplying a prohibited drug to another, involving a trafficable quantity of methylamphetamine,[7] and one count of money laundering.[8] The first offence related to the supply of 3.999 kg of methylamphetamine to another. The second offence related to the offender's possession of $5,987,220 cash that was the proceeds of crime. The offender was sentenced on the basis that he and a co‑accused arranged the sale, supply and distribution of the prohibited drugs. He was also sentenced on the basis that he was involved in the counting, packaging and delivery of cash from the proceeds of crime.
[7] MDA, s 6(1)(c) read with s 34(1)(a).
[8] Criminal Code, s 563A(1)(b).
The offender was 27 years old, had criminal antecedents but no prior drug offending, and was afforded a discount of 20% for his guilty pleas.
A sentence of 10 years' imprisonment was imposed for count 1, and a sentence of 3 years' imprisonment (reduced from 5 years' imprisonment for totality) was imposed for count 2. The sentences were ordered to be served cumulatively. The total effective sentence was 13 years' imprisonment.
On appeal, the individual sentences on both counts were challenged as manifestly excessive and the total effective sentence was challenged as infringing the first limb of the totality principle. The court refused leave and dismissed the appeal.
In Trainor, the offender pleaded guilty to a charge of possession of a prohibited substance with intent to sell or supply it to another. The charge related to approximately 4 kg of methylamphetamine. The offender was sentenced on the basis that he was in possession of the drugs to supply them to others for further distribution for commercial gain. The offender was 53 years old, and of previous good character. A discount of 25% was allowed for his guilty plea. The offender was sentenced to 14 years' imprisonment.
On appeal, the offender complained the sentence was manifestly excessive. The appeal was dismissed.
These cases are not directly comparable with the facts or circumstances of the offending in this case. We agree with the State's submission that the appellant's role in the present offending was more significant than in Watson or Trainor. There does not appear to be a sentencing range for offences directly comparable to those committed by the appellant. For those reasons, the authorities relied on by the State before the sentencing judge (including Watson and Trainor) are of limited utility, as was properly acknowledged by both parties on appeal.
We turn more directly to resentencing the appellant. Bearing in mind the appellant entered guilty pleas to all offences at the committal mention stage in the Magistrates Court, like the sentencing judge, we would apply a discount of 20% for the guilty plea to each individual offence pursuant to s 9AA of the Sentencing Act, noting there was no challenge on appeal to this level of discount.
As to the factual circumstances of the offending, each offence was objectively grave. As outlined earlier, the appellant was responsible for directing and coordinating the attempted acquisition and distribution of a significant amount of methylamphetamine and she did so for commercial gain. The methylamphetamine, the subject of the charges, was of a high purity and had a total street value of $6.5 million to $7.5 million. The appellant's role in the drug enterprise was integral to its success and was significant; she conscripted other persons to become involved in the operation.
Count 1 in particular involved 5 kg of methylamphetamine of a high level of purity. Count 2 involved the appellant's possession of about $3 million which was the proceeds of crime, some of which was to be spent on obtaining more methylamphetamine.
When standing back and considering the charged offences in their entirety, the appellant's offending was very serious. In essence, her role was at the higher end, when compared to her co‑offenders, of a sophisticated and lucrative drug trafficking operation involving the distribution of large amounts of methylamphetamine within the community for commercial gain. The offending was also not isolated. Although this was not an aggravating factor, it did mean there was no scope for leniency on the basis that the offending was spontaneous or an aberration.
As to the appellant's personal circumstances, for the purposes of resentencing, the appellant again relies on the submissions made by her counsel to the sentencing judge, as well as further material and written submissions provided after the appeal hearing which pertain to matters which have taken place since she was sentenced. There was no challenge to the receipt of that material.
Since being sentenced, the appellant voluntarily entered a therapeutic program on 12 February 2024. This is an intensive voluntary treatment program of 28 weeks duration designed to address an offender's behaviour and beliefs relating to substance abuse and criminal offending. The appellant engaged in fortnightly one‑on‑one counselling sessions as to her past behaviours and offending in respect of implementing changes. She completed the program in late October 2024. In a final report, the authors concluded that the appellant had made considerable gains with her emotional regulation, interpersonal skills and ability to implement and maintain boundaries with others. In late November 2024, she was accepted for the recovery mentor stage of the program. The appellant's progress in addressing her drug addiction and other challenges is to her credit and, of course, a relevant factor to take into account on resentencing the appellant. However, matters personal to an offender ordinarily carry less weight in cases involving the distribution of drugs in the community. See Browne v The State of Western Australia.[9] Moreover, given the appellant's prior conviction for drug trafficking, and notwithstanding her rehabilitative efforts and progress, personal deterrence remains a relevant sentencing consideration, although slightly less so because she has undertaken a therapeutic program.
[9] Browne v The State of Western Australia [2024] WASCA 162 [52] ‑ [53].
The appellant's two main mitigating factors are her early guilty pleas and her past assistance to law enforcement agencies. The level of discount afforded by the sentencing judge for the latter was the subject of an appeal ground alleging that it was unreasonable or plainly unjust. The question for this court, however, is not whether the discount afforded by the sentencing judge for the appellant's assistance with law enforcement agencies is unreasonable or plainly unjust, but, rather, when exercising the sentencing discretion afresh, the appropriate discount for her cooperation with, and past assistance to, law enforcement agencies.
The appellant's past assistance was graded at level 2. After the appeal hearing, the court was advised that no further arrests, seizures or results were achieved through the information provided by the appellant. There was no suggestion of any 'future' cooperation with the authorities. Accordingly, this was not a case where this court is required to specify the amount of any discount for future cooperation and assistance in accordance with s 8(5) of the Sentencing Act.
The relevant principles to be applied by sentencing judges when determining the value of an offender's cooperation with, and assistance to law enforcement agencies, and the level of discount to be afforded on account of that cooperation and assistance are well established.
In SYL v The State of Western Australia,[10] Buss P and Mazza JA referred to the rationale for allowing a sentencing discount for cooperation with and assistance to the law enforcement agencies as the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime.[11] The court also outlined the relevant factors to be taken into account in determining the level of discount to include:[12]
(a)the nature and extent of the cooperation and assistance;
(b)whether the cooperation and assistance is genuine;
(c)whether the offender has disclosed all of his or her relevant knowledge;
(d)the public benefit that has resulted or is expected to result from the cooperation and assistance;
(e)the risk or danger to the offender or his or her family and associates as a result of the cooperation and assistance; and
(f)any hardship (including hardship in custody) which the offender may experience or is likely to experience as a result of the cooperation and assistance.
There is no tariff for cooperation and assistance, and the amount of any sentencing discount depends on the facts and circumstances of each matter.
[10] SYL v The State of Western Australia [2021] WASCA 16.
[11] SYL [16], citing TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266 [28].
[12] SYL [17] ‑ [18] (Buss P & Mazza JA, referring to Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349; Bazzi v The State of Western Australia [2007] WASCA 195; A Child v The State of Western Australia [2007] WASCA 285; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149; XAT v The State of Western Australia [2013] WASCA 173), [78] ‑ [83] (Vaughan JA, referring to Ma [118]; A Child [11]; The State of Western Australia v Tran [2008] WASCA 183 [12]; DGF v The Queen [2021] WASCA 4 [53], [66]; MXP [52]; TXT [21]; MSO v The State of Western Australia [2015] WASCA 78 [69]; SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [6]).
In the present case, the appellant's cooperation and assistance to law enforcement agencies led to an arrest, and the seizure of a firearm. However, to our mind it could not be characterised as exceptional. On appeal, the State accepts that the appellant's assistance and cooperation was genuine and demonstrated her remorse for her offending. Bearing in mind those considerations, but also the need to impose a sentence commensurate with the seriousness of the offending pursuant to s 6(1) of the Sentencing Act, and the fact that a discount of 20% has been afforded for the guilty pleas, we consider that a further discount of 15% is appropriate, that being slightly more than afforded by the sentencing judge.
Having regard to all relevant facts and circumstances, and all relevant sentencing factors as outlined above, and after allowing a reduction of 20% for the guilty pleas and 15% for the appellant's assistance to the law enforcement agencies, we would resentence the appellant as follows:
Count 1:8 years 6 months' imprisonment.
Count 2:6 years' imprisonment and in the application of the totality principle reduced to 5 years 6 months' imprisonment to be served cumulatively on the new sentence for count 1.
Count 3:5 years' imprisonment to be served concurrently with the new sentence for count 1.
Count 4:5 years' imprisonment to be served concurrently with the new sentence for count 1.
Count 5:5 years' imprisonment to be served concurrently with the new sentence for count 1.
The result is a total effective sentence of 14 years' imprisonment.
Orders
The orders that we would make in accordance with these reasons are as follows:
(1)Leave to appeal on ground 1A granted.
(2)Leave to appeal on grounds 1 and 2 refused.
(3)Appeal allowed.
(4)The sentencing judge's sentencing decision, including the sentences imposed by her Honour and the orders for cumulacy and concurrency, are set aside.
(5)The appellant is resentenced to individual sentences of imprisonment on the counts in the District Court indictment as follows:
(a)count 1: 8 years 6 months' imprisonment;
(b)count 2: 5 years 6 months' imprisonment;
(c)count 3: 5 years' imprisonment;
(d)count 4: 5 years' imprisonment; and
(e)count 5: 5 years' imprisonment.
(6)The new sentences for counts 1 and 2 are to be served cumulatively upon each other. The other new sentences are to be served concurrently with each other and concurrently with the new sentence for count 1.
(7)The new total effective sentence is therefore 14 years' imprisonment.
(8)The new total effective sentence is backdated to 25 September 2023.
(9)The appellant is eligible for parole.
(10)The drug trafficker declaration and the order for destruction of the prohibited drugs made by the sentencing judge are not disturbed.
The appellant will be eligible to be considered for release on parole when she has served 12 years in custody, calculated from 25 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TCG
Associate to the Honourable President Buss
28 FEBRUARY 2025
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