Cochrane v The State of Western Australia - [2021] WASCA 5

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   COCHRANE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 5
CORAM:   QUINLAN CJ
MAZZA JA
BEECH JA

HEARD:   13 MAY 2020
DELIVERED          :   8 JANUARY 2021
FILE NO/S:   CACR 81 of 2019
BETWEEN:   RUSSELL JAMES COCHRANE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   GER IND 11 of 2019

Catchwords:

Criminal law – Appeal against sentence – Whether accused was 'charged and convicted' of committing an offence in circumstance of aggravation – Proper construction of charge on indictment

Criminal law – Appeal against sentence – Whether sentence manifestly excessive – Increase in statutory maximum penalty – Appeal dismissed

Legislation:

Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Misuse of Drugs Act 1981 (WA)
Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	K P Bates
Respondent	:	A L Forrester SC & T B L Scutt

Solicitors:

Appellant	:	Ken Bates Barrister and Solicitor
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Baker v The State of Western Australia [2020] WASCA 117
Caporn v The State of Western Australia [No 2] [2008] WASCA 26; (2008) 36 WAR 294
Carlucci v The State of Western Australia [2019] WASCA 37; 276 A Crim R 472
Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
HSV v The State of Western Australia [2020] WASCA 5
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368
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
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1
Skelly v The State of Western Australia [2020] WASCA 3
Staiger v The State of Western Australia [2020] WASCA 99
Tan v The State of Western Australia [2019] WASCA 112
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Vella v The State of Western Australia [2006] WASCA 129
Zimmerman v The State of Western Australia [2009] WASCA 211

Contents

Introduction and summary

The facts

Ground 1

The offence pursuant to s 6(1) of the Misuse of Drugs Act

The charge in the present case

Section 7(3) of the of the Sentencing Act: 'charge and convicted'

What is the 'charge'?

The proper construction of the indictment in the present case

Ground 2

The sentencing remarks

Relevant sentencing principles

Sentencing decisions following the 2017 Amendment Act

Conclusions as to manifest excess

Conclusion

JUDGMENT OF THE COURT:

Introduction and summary

On 13 May 2019, the appellant was convicted, upon his plea of guilty, of a charge that on 24 December 2018 at Moonyoonooka he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act).
The facts in relation to the conviction, which were not in dispute, included that the quantity of methylamphetamine in the appellant's possession was 47.13 g. That quantity constituted a trafficable quantity of methylamphetamine within the meaning of s 34(1A) of the Misuse of Drugs Act.
Pursuant to s 34(1)(a) of the Misuse of Drugs Act, a person who is convicted of a crime under s 6(1) that involves a trafficable quantity of methylamphetamine is liable to imprisonment for life. In all other circumstances, the maximum penalty for the offence is a fine of $100,000 or 25 years imprisonment or both.[1]
[1] Misuse of Drugs Act, s 34(1)(aa).
The learned sentencing judge (Lonsdale DCJ) sentenced the appellant on the basis that the maximum penalty was life imprisonment.[2] Her Honour sentenced the appellant to 5 years 6 months imprisonment with eligibility for parole, backdated to commence on 24 December 2018. The appellant was also declared to be a drug trafficker.
[2] ts 7.
The appellant appeals his sentence on two grounds:[3]
(a)that the learned sentencing judge erred in law by incorrectly sentencing the appellant on the basis that the maximum penalty for the offence was life imprisonment. The appellant contends that the maximum penalty for the offence was a fine of $100,000 or 25 years imprisonment (ground 1); and
(b)that the sentence imposed by the learned sentencing judge was manifestly excessive (ground 2).
[3] Leave to appeal on each ground was granted by order of Buss P dated 11 November 2019, AB 4.
As will become apparent, ground 1 turns upon whether the appellant was 'charged and convicted' of committing the offence contrary to s 6 of the Misuse of Drugs Act in circumstances in which the crime '[involved] a trafficable quantity of methylamphetamine', within the meaning of s 7(3) of the Sentencing Act 1995 (WA) (Sentencing Act). That question, in turn, depends upon the effect of the indictment charging the appellant with the offence, and to which the appellant pleaded guilty.
For the reasons that follow, in our view, the appellant was charged and convicted of committing the crime in those circumstances, and so was liable to a maximum penalty of life imprisonment. The learned sentencing judge did not make an error of law in that regard. Ground 1 has not been made out.
We would also reject ground 2. In our view, while the sentence of 5 years 6 months imprisonment in the present case was at the top of the range of appropriate sentences, we are not satisfied that the sentence was unreasonable or plainly unjust.
The increase in the maximum penalty for possession of trafficable quantities of methylamphetamine to life imprisonment has, as Parliament intended, given rise to an increase in the sentences customarily imposed for that offence. The sentence in the present case, while undoubtedly at the high end of the appropriate range, reflects that emerging trend.
We would therefore dismiss the appeal.
Before turning to the grounds of appeal, the facts relevant to sentence may be briefly summarised.

The facts

The facts, as read by the prosecutor and accepted by the learned sentencing judge were as follows.[4]
[4] ts 2 ‑ 3, 7.
At about 1.30 pm on 24 December 2018, the appellant disembarked at Geraldton airport from a flight which had departed from Perth. When the appellant entered the terminal, he saw police officers approaching him. He started to walk towards the toilets. He was arrested and escorted to a secure room in the airport terminal, where he and his luggage were searched. As the officers started the search, the appellant reached down the front of his jeans and produced a bag, which he attempted to put into his mouth. The police officers forcibly removed the bag from the appellant. A later examination revealed that the bag contained methylamphetamine, cannabis and dexamphetamine.
The methylamphetamine was separated into four clip seal bags, which contained, in total, 47.13 g of the drug. The purity of the drugs ranged between 71% purity and 79% purity.

Ground 1

Ground 1 contends as follows:
The learned sentencing judge made an express error of law in applying the incorrect maximum penalty for the offence of possession of prohibited drug namely methylamphetamine with intent to sell or supply it to another.
Particulars
(a)The offence which was charged on the indictment and the offence to which the appellant pleaded guilty to and in respect of which a judgment of conviction was entered was the offence of possession of prohibited drug with intent to sell or supply it to another;
(b)this had the effect that the appellant was liable upon conviction on his own plea of guilty to the offence of possession of a prohibited drug with intent to sell or supply it to another to a fine of $100,000 or 25 years' imprisonment or both pursuant to s 34(1)(a) of the Misuse of Drugs Act 1981;
(c)the appellant was not liable to a maximum penalty of life imprisonment as the circumstance of aggravation in s 34(1(a) of the Misuse of Drugs Act 1981 had not been pleaded in the indictment and as a result, had not been proved by the plea of guilty.
The 'circumstance of aggravation' referred to in ground 1, is that the offence 'involve[d] a trafficable quantity of methylamphetamine', within the meaning of s 34(1)(a) of the Misuse of Drugs Act. It will be apparent that, as a matter of fact, the offence for which the appellant was convicted did involve a trafficable quantity of methylamphetamine, and the appellant was to be sentenced on the basis of those facts.
Nevertheless, as a matter of law, in order for the appellant to be liable to the greater statutory penalty it was necessary that the appellant be formally charged and convicted of the offence in those circumstances. That is because of s 7(3) of the Sentencing Act, which provides:
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then –
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Ground 1 is therefore concerned with the composite phrase 'charged and convicted of committing the offence in those circumstances'. Unless it can be said that the appellant was, indeed, charged and convicted of committing the offence against s 6(1) in the circumstance that the offence involved a trafficable quantity of methylamphetamine, the greater statutory maximum penalty could not apply. While we accept there can be a danger in the use of shorthand, we will adopt the appellant's terminology and refer to the circumstance that the offence involved a trafficable quantity of methylamphetamine as the 'circumstance of aggravation'.
In determining the critical question in this appeal, it is necessary to give attention to the nature of the charge and the conviction in the present case. It is first necessary to identify the relevant offence and how the circumstance of aggravation arises under the Misuse of Drugs Act.

The offence pursuant to s 6(1) of the Misuse of Drugs Act

The charge in the present case was a charge pursuant to s 6(1)(a) of the Misuse of Drugs Act.
Section 6(1) provides:
6. Offences concerned with prohibited drugs generally
(1)A person commits a crime if the person –
(a)with intent to sell or supply it to another, has in his or her possession a prohibited drug; or
(b)manufactures or prepares a prohibited drug; or
(c)sells or supplies, or offers to sell or supply, a prohibited drug to another person.
Section 6(1)(a) creates only one offence. Nevertheless, the penalty for the offence varies according to the nature and quantity of the drug. In that regard s 34 of the Misuse of Drugs Act relevantly provides:
34. Penalties
(1A)In this section –
trafficable quantity of methylamphetamine means a quantity of methylamphetamine not less than that specified in Schedule VII item 8.
(1)Subject to subsections (2) and (3), a person who is convicted of –
(a)a crime under section 6(1) that involves a trafficable quantity of methylamphetamine is liable to imprisonment for life; or
(aa)any other crime under section 6(1) is liable to a fine not exceeding $100 000 or to imprisonment for a term not exceeding 25 years or both; or

The charge in the present case

The appellant was charged by indictment. The indictment, relevantly, included the following:
Two matters may be immediately observed about the form of the indictment.
First, the indictment did not include the words 'and the offence involved a trafficable quantity of methylamphetamine'. That is, the indictment did not plead, in the words of the allegation, the relevant circumstance of aggravation. It is that omission that the appellant submits is determinative of the appeal. As the indictment did not include those words, the appellant contends, he was not 'charged' with committing the offence in the circumstances of aggravation. Not having been so charged, he could not be said to have been so 'charged and convicted'.
Secondly, the column of the indictment headed 'Details of Charge' refers to two provisions of the Misuse of Drugs Act, s 6(1)(a) and s 34(1)(a). Section 34(1)(a) is the provision of the Misuse of Drugs Act providing for the maximum penalty of life in the circumstance of aggravation. The reference to s 34(1)(a) on the indictment, the respondent contends, is such that the charge under s 6(1) was alleged by the indictment to have been committed in those circumstances. The appellant was, accordingly, so charged, and, having pleaded guilty to the charge having been committed in those circumstances, was so convicted.
Much will therefore turn, in the present case, on the proper construction of the indictment, and whether it 'charged' the appellant with the offence in the circumstances of aggravation.
Before turning to that issue we make the following general observations in relation to the operation of s 7(3) of the Sentencing Act.

Section 7(3) of the of the Sentencing Act: 'charge and convicted'

Section 7(3) of the Sentencing Act is engaged '[i]f the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances'. There is no doubt that that condition was satisfied in the present case. By s 34(1)(a) and (aa) of the Misuse of Drugs Act, the statutory penalty for an offence under s 6(1) is greater if it involves a trafficable quantity of methylamphetamine.
Section 7(3) does not apply if the 'certain circumstances' are an element of the offence.[5] In this case, the fact that the offence involved a trafficable quantity of methylamphetamine was not an element of the offence. The elements of the offence are those arising under s 6 of the Misuse of Drugs Act. That a case falls within s 34(1)(a) does not alter the elements of the offence, it merely alters the maximum penalty.
[5] Zimmerman v The State of Western Australia [2009] WASCA 211 [12], [29] ‑ [30] (McLure P); Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368 (Langdon) [25], [27] (Buss JA).
In applying s 7(3) to the sentencing of the appellant it is necessary to direct attention to whether s 7(3)(a) applied, and in particular to the phrase 'charged and convicted of committing the offence in those circumstances'.
It is clear that, while it is a composite phrase, the reference in s 7(3)(a) to the person having been 'charged and convicted' requires both that the person be 'charged' with committing the offence in the particular circumstances and that the person be 'convicted' of committing the offence in those circumstances.
It may readily be seen that circumstances might arise in which a person is 'charged' with an offence in such circumstances but not so 'convicted'. Indeed, it is the reference to the offender having been 'convicted' in those circumstances that has been the focus of previous decisions of this Court in relation to s 7(3)(a); that is, whether the offenders in those cases could be said to have been 'convicted' of the relevant offence in particular circumstances giving rise to a greater statutory penalty.
In Caporn v The State of Western Australia [No 2],[6] for example, the appellant had been charged with robbery, in various circumstances of aggravation (including being armed with an offensive weapon, being in company with another and doing bodily harm to the victim) and with stealing a motor vehicle in circumstances of aggravation (namely reckless driving).
[6] Caporn v The State of Western Australia [No 2] [2008] WASCA 26; (2008) 36 WAR 294 (Caporn).
There was no issue in Caporn that the appellant had been charged with the offences in the circumstances of aggravation, which were pleaded in the words of the indictment.[7] The issue in Caporn concerned whether the appellant had been 'convicted' of the offence in those circumstances of aggravation.
[7] See Caporn [134], [135] (Beech AJA), [1] (Pullin JA agreeing).
In that context, referring to s 7(3) of the Sentencing Act, Beech AJA stated:[8]
In my opinion an offender is only 'convicted' of committing the offence in the circumstances of aggravation, within the meaning of s 7(3)(a), if (in a jury trial), the jury convicts the offender of committing the offence in the circumstances of aggravation.
…
In my opinion, when a circumstance of aggravation is pleaded in the indictment the trial judge must obtain the verdict of the jury in relation to that circumstance of aggravation, otherwise, the offender would not, by force of s 7(3)(a) of the Sentencing Act 1995, be liable to the greater statutory penalty.
[8] See Caporn [2], [8] (Pullin JA) [110] (Beech AJA).
The particular issue in Caporn arose because of the manner in which the trial judge had directed the jury as to the taking of the verdicts and the manner in which the clerk of arraigns took those verdicts. The verdicts were taken in a form whereby the clerk of arraigns asked the foreperson of the jury for its verdict in respect of each charge in all of the circumstances of aggravation. As Beech AJA explained the process:[9]
On both counts, the jury was asked for its verdict in respect of the charge with all circumstances of aggravation. On the first count the jury was asked for its verdict on the charge of robbery while being armed with an offensive weapon, being in company with another and doing bodily harm to the victim. … On the second count the jury was asked for its verdict on the charge of stealing a motor vehicle aggravated by reckless driving.
[9] See Caporn [111] (Beech AJA).
It was accepted in Caporn that the manner of taking the verdicts in this way was unconventional. Nevertheless, the course adopted by the trial judge in that case did not involve an error of law. Again, as Beech AJA explained, both as to the conventional approach and the result in Caporn itself:[10]
It was common ground that the practice adopted in this State generally, if not almost invariably, is to ask the jury for its verdict on the substantive offence and, in the event of a verdict of guilty, then to ask the jury for its verdict on, or whether it is satisfied beyond reasonable doubt in respect of, each circumstance of aggravation.
However, notwithstanding that it involved a departure from the normal practice, I am not satisfied that the course adopted by the trial judge involved any error of law. There does not seem to me to be any rule of criminal law or procedure which requires the adoption of the conventional manner of taking the verdict of a jury in respect of an offence with one (or more) circumstances of aggravation charged in the indictment.
[10] Caporn [115] ‑ [116] (Beech AJA), [1], [13] (Pullin JA agreeing).
His Honour went on to explain why, notwithstanding that there was no error of law in that case, the conventional approach for taking verdicts was distinctly preferable.[11]
[11] Caporn [140] ‑ [144] (Beech AJA), [1] (Pullin JA agreeing).

In Caporn, in the context of the need to obtain the jury's verdict in relation to a circumstance of aggravation, there was a difference of opinion between Miller JA and Beech AJA (with whom Pullin JA agreed) as to whether the mechanism for taking a verdict in relation to the circumstance of aggravation was provided by s 113(2) of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act). Section 113(2) confers a discretion on a trial judge to take 'special verdicts'. Miller AJA was of the view that s 113(2) did provide the mechanism for determining whether the circumstance of aggravation had been proven. His Honour therefore concluded that the failure to follow the requirements of s 113(2) in that case gave rise to an error of law.[12]
[12] Caporn [40] ‑ [42] (Miller JA).
By contrast Beech AJA (with whom Pullin JA agreed) concluded that s 113(2) the Criminal Procedure Act was not engaged in relation to a circumstance of aggravation. Rather, his Honour held, by reference to s 7(3) of the Sentencing Act, that 'when a circumstance of aggravation is pleaded in an indictment … the trial judge is required, not merely empowered, to obtain the verdict of the jury in relation to the pleaded circumstance of aggravation'. That was so, his Honour concluded, 'by force of the presence of the circumstance of aggravation in the indictment'.[13]
[13] Caporn [132] (Beech AJA), [1] (Pullin JA agreeing).
Nevertheless, as reflected in Beech AJA's conclusion referred to at [38] above, the Criminal Procedure Act did not prescribe any particular form, or procedure, for taking the verdict in relation to the circumstance of aggravation. Both the 'conventional' approach and that adopted by the trial judge in Caporn were lawful.
In Gillespie v The State of Western Australia,[14] the appellant had pleaded guilty to the offence of robbery but he denied the circumstance of aggravation that he was armed. An issue arose in the appeal as to whether the relevant circumstance of aggravation (in s 392(c) of the Criminal Code) was required to be determined by a verdict following trial (rather than by a trial of the issues before the sentencing judge).
[14] Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 (Gillespie).
In that context, Mazza JA (with whom Pullin JA agreed) said in relation to s 7(3) of the Sentencing Act:[15]
The meaning of this subsection is obvious. It requires that the charge written in the indictment includes not just the statement of the offence, but also the circumstance or circumstances which make the offender liable to the greater penalty. The effect of s 7(3)(a) is that unless this occurs, an offender is not liable upon conviction to the greater maximum penalty.
Therefore, before a person is liable to the statutory maximum provided for in s 392(c) or (d) of the Criminal Code, that person must be first charged with committing a robbery in the circumstances set out in those subsections, and second, the offender must be convicted of committing the robbery in those circumstances.
The requirement in s 7(3)(a) of the Sentencing Act that an offender be 'convicted' of committing the offence in the circumstances said to give rise to the greater maximum penalty is important to the present discussion. In order to be liable for the greater maximum penalty, an offender must be convicted of the offence, in the circumstance or circumstances which make the offender liable to the greater penalty.
To be convicted of something requires a finding of guilt. Where a person pleads not guilty, guilt may only be established after trial. If a person is charged with an indictable offence, s 92 of the Criminal Procedure Act applies so that the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury or, pursuant to s 118 of the Criminal Procedure Act, by judge alone.
Where an offender pleads guilty to a charge on indictment which contains a statement of the offence including the circumstances said to give rise to the greater maximum penalty and that plea is accepted by the court, the offender is convicted of the offence including the circumstances which give rise to the greater penalty.
…
In my opinion, when a circumstance of aggravation is pleaded in an indictment, superior courts at first instance should obtain the verdict of a jury or, in the case of a trial by judge alone, of that judge, in respect of that circumstance. The matter should not be resolved by a trial of issues.
[15] Gillespie [261] ‑ [265], [270].
As can be seen, the effect of both Caporn and Gillespie is that, where the accused does not admit a circumstance of aggravation, there must be a verdict of a jury (or under s 118 of the Criminal Procedure Act, a judge) before it can be said that the offender has been 'convicted' of committing the offence in the circumstances said to give rise to the higher maximum penalty, within the meaning of s 7(3) of the Sentencing Act. Caporn so held in the case of a plea of not guilty and Gillespie so held in the case of a plea of guilty to the substantive offence.
Following Gillespie the Sentencing Act was amended to provide that, where, on a plea of guilty, a superior court is required to determine whether the offence was committed in circumstances of aggravation, that determination is a determination of a question of fact for the purposes of s 146 of the Sentencing Act, and thus to be determined by the sentencing judge and not by a judge or jury following trial.[16]
[16] Sentencing Act, s 145A.
Nevertheless, subject to that exception, the general proposition established by Caporn and Gillespie still holds true in cases where there is a plea of not guilty to the substantive offence, namely that it is necessary for the accused to relevantly be 'convicted' of committing the offence in the circumstance of aggravation by the trier of fact.
In both Caporn and Gillespie, there was no question that the accused in each case had been 'charged' with committing the offence in the circumstance of aggravation. In that regard, it was a necessary part of the reasoning in both Caporn and Gillespie that, in the case of a charge on indictment, the indictment itself must so 'charge' the accused before s 7(3)(a) could apply. Put another way, those decisions are authority for the proposition that the indictment must 'plead' the circumstance of aggravation.
So much was made express in Mazza JA's reasons in Gillespie where his Honour described s 7(3) of the Sentencing Act as requiring 'that the charge written in the indictment includes not just the statement of the offence, but also the circumstance or circumstances which make the offender liable to the greater penalty'.[17] It is also implicit in Beech JA's reference in Caporn to the requirement for a verdict in relation to a circumstance of aggravation arising 'by force of the presence of the circumstance of aggravation in the indictment'.[18]
[17] Gillespie [261].
[18] Caporn [140] ‑ [144] (Beech AJA).
This is undoubtedly correct, not only as a matter of the construction of the composite phrase 'charged and convicted' but also as a matter of principle. In this regard, s 7(3) reflects the fundamental principle that 'no one should be punished for an offence of which he has not been convicted'.[19] The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.[20]
[19] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389 (Gibbs CJ); Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 5 (Deane, Dawson, Toohey, Gaudron & McHugh JJ); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26] (Steytler P); Langdon [25], [27] (Buss JA); Skelly v The State of Western Australia [2020] WASCA 3 (Skelly) [81] (Buss P, Mazza & Beech JJA).
[20] Skelly [81] (Buss P, Mazza & Beech JJA).
It follows that, while it is possible for a person to be charged but not convicted on an offence in the circumstances of aggravation within the meaning of s 7(3)(a), as a matter of logic and general principle it is not possible for a person to be convicted of the offence in those circumstances without having been so charged.
This directs attention to what is 'the charge' in that context.

What is the 'charge'?

It will be apparent from the above, and for the reasons below, that the 'charge' in any given case is the allegation that is contained in the indictment (or in a summary court, a prosecution notice). 'Charge' is defined in the Criminal Procedure Act to mean 'an allegation in a prosecution notice or indictment that a person has committed an offence'. By s 85 and by sch 1 of the Criminal Procedure Act, charges are contained in indictments. Thus, in the framework of the Criminal Procedure Act, the word 'charged' directs attention to the contents of the indictment. There is nothing in the context of s 7(3) of the Sentencing Act to suggest any different connotation of the term 'charged'.
Thus, the requirement in s 7(3) that an accused is 'charged' with committing the offence in certain circumstances directs attention to the terms of the indictment.
It is therefore, in this case, the indictment itself, to which reference must be had in determining whether the appellant was charged with committing the offence in the circumstance of aggravation within the meaning of s 7(3)(a) of the Sentencing Act.
This has two important consequences.
First, the answer to the question whether the appellant was so charged is not to be determined by reference to the subjective beliefs and understanding of the appellant. In the present case, for example, the appellant was at the time of pleading to the charge, of the understanding that the maximum penalty was life imprisonment.[21] So too, evidently, were the prosecutor, defence counsel and the learned sentencing judge. The learned sentencing judge, before delivering her sentencing remarks, enquired with the prosecutor as to the maximum penalty. The prosecutor replied that it was life imprisonment, to which defence counsel made no objection.[22]
[21] At a directions hearing in this Court on 24 September 2019, the appellant indicated that he was aware that the maximum penalty for the offence was life imprisonment.
[22] ts 7.
The appellant's subjective view is, nevertheless, irrelevant to the answer to the question as to whether he had, in fact, been charged with committing the offence in the circumstance of aggravation. If the indictment did not relevantly contain, or 'plead', the circumstance of aggravation, s 7(3)(a) of the Sentencing Act could have no application, regardless of the appellant's subjective belief.
At the same time, and this is the second point, whether the appellant was charged with committing the offence in the circumstance of aggravation, is not to be determined by reference to the words uttered by the clerk of arraigns when the charge is put to the accused for his plea (i.e. arraigned). In the present case, for example, the clerk of arraigns did not refer to the circumstance of aggravation when the charge was put to him for his plea.[23]
[23] ts 2.
In this way, in our view, it is the 'charge', as contained in the indictment, to which the accused pleads and not the form of words uttered by the clerk of arraigns. As in the case of the taking of a verdict (discussed in Caporn), the Criminal Procedure Act prescribes no particular words or formula by which a plea is to be taken from an accused. Indeed, in the case of a plea at the start of trial, the Criminal Procedure Act provides that the accused is to be informed of the charge 'in such manner as the court decides is just'.[24]
[24] Criminal Procedure Act, s 142.
For example, particularly in circumstances where an indictment includes very many charges to which an accused proposes to plead guilty, it is open to a court to take a plea by reference to the charges set out in the indictment rather than individually reading each charge to the accused. That is certainly a practice that had been adopted from time to time in this State and is now expressly provided for in the Criminal Procedure Rules 2005 (WA).[25] There is nothing in the Criminal Procedure Act or otherwise any rule of law or practice to prevent a plea being taken in that way.
[25] Criminal Procedure Rules 2005 (WA), r 16(2) (Criminal Procedure Rules).
Of course, as in the case of the taking of verdicts discussed in Caporn, it is distinctly preferable that, in the ordinary course, each charge is put to an accused for their plea, including any circumstance of aggravation. Any departure from the ordinary course runs the risk the plea of guilty might be set aside on the grounds that the accused did not understand the nature of the charge.[26] The Criminal Procedure Act itself also provides for procedural safeguards in that regard, to which we will return shortly.
[26] As to which see Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P, Wheeler & Buss JJA agreeing); Dimer v The State of Western Australia [2020] WASCA 111 [58] ‑ [59] (Buss P, Mazza & Vaughan JJA).
Nevertheless, the fact that a plea to a charge may be taken in an alternative manner underscores the fact that it is the charge (as contained in the indictment) that is the subject of the plea. If, on its proper construction, an indictment pleads the relevant circumstance of aggravation, a plea to that charge will, in the absence of some qualifying words, be taken to be a plea to the charge as it is pleaded.
This is borne out by other provisions of the Criminal Procedure Act. In that regard, in our view, it is apparent from the Criminal Procedure Act, read as a whole, that what a person pleads to is the indictment, not the words uttered orally by the clerk of arraigns. Various provisions refer to a person pleading 'to a charge'. We refer, for example, to s 41, s 44, s 91, s 92, s 126 and s 147.
Similarly, the prosecutor is required to serve on the accused an indictment as soon as practicable after it is lodged with the court[27] and, subject to a contrary order, the accused must not be required to plead to a charge in an indictment until at least 21 days after the date on which the indictment is lodged.[28] The provisions underscore the significant importance of the charge, as it appears in the indictment.
[27] Criminal Procedure Act, s 85(3).
[28] Criminal Procedure Rules, r 16(1).
We turn now to the proper construction of the indictment in the present case.

The proper construction of the indictment in the present case

The Criminal Procedure Act contains a number of formal requirements in relation to an indictment. While those provisions do not directly answer the question in this case, they do provide useful context.
Section 85(2) of the Criminal Procedure Act provides:
(2)An indictment must –
(a)be in writing in a prescribed form; and
(b)comply with Schedule 1 Division 2; and
(c)be signed by an authorised officer; and
(d)be lodged in the prescribed manner.
It is unnecessary to set out all of sch 1 div 2 to the Criminal Procedure Act. Relevantly, cl 5 of sch 1 div 2, which is the general provision in relation to pleading a charge, states:
5. Alleged offence to be described
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must –
(a)describe the offence with reasonable clarity; and
(b)identify the written law and the provision of it that creates the offence; and
(c)identify with reasonable clarity –
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;
and
(d)if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and
(e)if the offence relates to property, comply with clause 6(4) and (5).
(2)For the purposes of subclause (1) –
(a)it is sufficient to describe an offence in the words of the written law that creates it; and
(b)if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out; and
(c)a charge is not defective only because an element of the offence is not stated; and
(d)it is not necessary to allege –
(i)any matter, or any particulars as to a person or thing, that need not be proved; or
(ii)the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
It will be apparent that cl 5 is expressly concerned with the pleadings in relation to 'the alleged offence'. It makes no reference to, and no express provision in relation to, circumstances of aggravation. And, as noted above, in the case of the offence in the present case there is, relevantly, only one offence – that created by s 6(1)(a) of the Misuse of Drugs Act. Nothing in cl 5 therefore requires the circumstances of aggravation created by s 34(1)(a) of the Misuse of Drugs Act to be described in any form of words.
It is notable, however, that cl 5(1)(b) does provide that the indictment must identify the written law and the provision that creates the offence. While it does not refer to the provision that prescribes the penalty, cl 5(1)(b) makes clear that identification of the written law in the indictment is an essential feature of what the legislature has identified are the matters that will properly inform the accused of the alleged offence.
Clause 6 of sch 1 div 2 does make reference to allegations of particular matters, including matters that are relevant to an offence's statutory penalty. Where cl 6 refers to an offence's statutory penalty, it invariably does so in a context in which the clause identifies matters that need not be alleged unless they are relevant to the statutory penalty. See, for example cl 6(5)(a)(iv), which provides:
6.Alleging particular matters and offences
…
(5)In a charge that alleges an offence relating to property –
(a)it is not necessary to allege the value of the property unless the value –
…
(iv)is relevant to the offence's statutory penalty;
Clause 6, however, makes no provision in relation to offences in relation to the misuse of drugs, or matters such as that provided for in s 34(1)(a) of the Misuse of Drugs Act.
As in any exercise of construction the meaning to be attributed to the indictment is to be determined by reading the indictment as a whole.
In determining whether the indictment in the present case 'charged' the accused with committing the offence in circumstances involving a trafficable quantity of methylamphetamine, it is therefore necessary to return to first principles and ask: did the indictment on its proper construction allege that the appellant was being charged with committing the offence in those circumstances? That will be so if, and only if, evaluated objectively the indictment contained sufficient information to enable the accused to understand that he was being so charged.
In our view it did.
That is, construing the indictment as a whole, in the context of the provisions of the Criminal Procedure Act, the indictment in the present case was sufficient to inform an accused person that the charge alleged that the appellant committed the offence in circumstances in which the offence involved a trafficable quantity of methylamphetamine.
Of course, it would have been distinctly preferable for the indictment to express that allegation in the words of the indictment.
Nevertheless, the indictment expressly refers to s 34(1)(a) of the Misuse of Drugs Act. Some meaning must be given to that reference. The reference clearly appears under the heading 'Details of Charge'. By its terms, s 34(1)(a) applies, and can only ever apply, to an offence under s 6(1) that 'involves a trafficable quantity of methylamphetamine'. Thus, the reference to s 34(1)(a) is, in terms, a reference to a crime that 'involves a trafficable quantity of methylamphetamine'. It could have no other meaning.

Despite the invitation to do so, the appellant was unable to identify any different meaning to attribute to the reference, in the indictment, to s 34(1)(a). The appellant submits, in effect, that the reference to s 34(1)(a) did not mean anything and did not have any effect.[29] In any construction exercise, preference is to be given to a construction that avoids such a result.[30]
[29] Appeal ts 33 ‑ 34.
[30] See, for example, in the context of statutory construction Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [72] and in the context of contractual construction Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [51] ‑ [58].
The reference to s 34(1)(a), in our view, directs a reasonable reader of the indictment to that provision. So directed, the reference to s 34(1)(a) could only be understood as alleging that the offence alleged against the appellant 'involve[d] a trafficable quantity of methylamphetamine'.
In this way, the indictment in our view charged the appellant with committing the offence in those circumstances and by pleading to the charge in the indictment he was so convicted. The requirements of s7(3)(a) of the Sentencing Act were met.
In so concluding we recognise that the information conveyed by the indictment, in this regard, is not confined to the 'four corners' of the document. As we have said, the reference to s 34(1)(a) directs a reasonable reader of the indictment to that provision and it is therefore necessary for the reader to be taken to know what the effect of s 34(1)(a) is in order to properly understand the reference. It is, therefore, implicit in our conclusion that a proper construction of the indictment may require an understanding of terms or expressions (including section numbers) used in an indictment that can only be gained from outside the document itself.
That is, however, in our view, not surprising. Indeed, in our view a proper understanding of a prosecution notice or indictment will commonly (if not invariably) require some knowledge that must derive from outside the document itself. Moreover, the Criminal Procedure Act as a whole contemplates that that may be the case.
As we have observed above, for example, cl 5(1)(b) of sch 1 div 2 provides that an indictment must identify the written law and the provision that creates the offence. Significantly, however, while it prescribes that as a mandatory requirement, cl 5 does not require the indictment to set out, or annex a copy of, the written law or the provision. The requirement to identify (but not reproduce) the provision can have no other purpose than to direct the accused to those legislative provisions so as to understand the charge.
Similarly, the Criminal Procedure Act contemplates that, notwithstanding that a prosecution notice or an indictment meets the requirements of the Act in informing an accused of the nature and consequences of the charge, that the accused may nevertheless require assistance in interpreting or construing the document itself.
A prosecution notice or indictment, for example, without in any way being defective or irregular, might not include each of the elements of the offence, but rather be described in the words of the written law that creates it.[31] An allegation that an accused 'murdered' another person is an obvious example. Many other examples could be given. Similarly, while the relevant offence and written law must be contained in an indictment, indictments never state the statutory penalty itself (or any other consequence of a conviction).
[31] See Criminal Procedure Act, sch 1 div 2, cl 5(2)(a).
It is for this reason, in our view, that the Criminal Procedure Act contemplates, and indeed, requires, not only that a prosecution notice which alleges an indictable offence or an indictment inform the accused of the charge but also that the accused have the opportunity to obtain advice about it.
This must occur, for example, at, or as soon as practicable after, an accused's first appearance on an indictable charge. At that time the court, before taking any plea must be satisfied that the accused has had time to consider the prosecution notice and seek legal advice about it and understands the charge.[32]
[32] Criminal Procedure Act, s 39(a).
More pertinent to the circumstances of the present case, s 129(2) of the Criminal Procedure Act provides that a court must not accept a plea of guilty unless:
(a)the accused is represented by a legal practitioner; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
The purpose of s 129(2) is clear. It is designed to ensure that the accused person understands the plea and its consequences. It proceeds on the evident assumption that a legally represented accused will, as a result of advice from their legal practitioner, understand the plea they enter and the consequences of that plea. In a case where the accused is not so represented, by contrast, the court must independently satisfy itself that that is the case.
Thus, the Criminal Procedure Act makes express provision to guard against the possibility of a miscarriage of justice in the event that an accused person, who is, objectively, charged with committing an offence in particular circumstances giving rise to a greater statutory maximum, subjectively fails to understand that that is the case. This feature of the legislative context supports the construction of the indictment which we have explained above.
In the present case the appellant was represented when he entered the plea of guilty. Section 129(2)(a) applied. Moreover, the expectation inherent in that provision was met. The appellant did understand what we have found was the effect of the indictment on its proper construction.
In the present case, as we have said, the indictment, objectively, charged the appellant with committing the offence against s 6(1) of the Misuse of Drugs Act in circumstances that involved a trafficable quantity of methylamphetamine. Having pleaded guilty to the charge, he was so convicted. Ground 1 has not been made out.
Before turning to ground 2, we would make two further comments in relation to this issue.
First, it will be apparent from what we have concluded as to the effect of the indictment in this case that, if the appellant had pleaded not guilty to the charge and proceeded to trial, issue would have been joined in relation to both the offence and the circumstance of aggravation. In those circumstances, in accordance with Caporn and Gillespie, before it could be said that the accused had been 'convicted' of committing the offence in the circumstances said to give rise to the higher maximum penalty, it would have been necessary for there to be a verdict of a jury (or under s 118 of the Criminal Procedure Act, a judge) that the circumstance of aggravation had been proven.
We recognise that such circumstances could give rise to the procedural oddity that, contrary to what is ordinarily the case, the questions put to the jury when taking the verdict would not reflect precisely the words as they appear on the indictment. As a matter of form, therefore, it may be prudent in those circumstances to amend the indictment, prior to the taking of the verdict, so that the jury's verdict more closely reflects the words of the indictment. Nevertheless (and without finally determining the issue) in light of the recognition in Caporn that the verdict of the jury may be lawfully taken in a variety of ways, in our view such an amendment would not strictly be necessary in order for the court to be empowered (and indeed required) to take a verdict from the jury in relation to the circumstance of aggravation.
This leads to the second comment we would make in relation to ground 1. As we have said above, it would have been distinctly preferable for the indictment in the present case to have included in the words of the indictment that the offence involved a trafficable quantity of methylamphetamine.
At the hearing of the appeal, the Director of Public Prosecutions informed the Court that this approach has been adopted in other cases.[33] There can be no doubt that that should continue to be the case. If this is done, the issue we have referred to in [97] above will not arise.
[33] Appeal ts 52.
Ground 1 is not made out.

Ground 2

Ground 2 contends, in the alternative, that even on the basis of the maximum penalty of life imprisonment, the sentence imposed on the appellant was unjust or unreasonable. Ground 2 provides:
The learned Sentencing Judge erred in law by imposing a sentence in relation to the offence of possession of a prohibited drug namely methylamphetamine with intent to sell or supply that was manifestly excessive in the light of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the appellant's personal circumstances.
Before turning to the relevant principles it is necessary to set out the learned sentencing judge's sentencing remarks.

The sentencing remarks

The facts in relation to the offence are set out at [13] ‑ [14] above.
After summarising the facts learned sentencing judge said:[34]
[34] ts 8 ‑ 10.
Now, you did plead guilty at the earliest opportunity, and I propose to discount your sentence by the maximum available to me under section 9AA of the Sentencing Act, namely 25 per cent. In addition to your plea of guilty, I do accept that you are remorseful and that you are doing your best to atone for your offending. You don't get any additional discount for cooperating with the authorities, and I note that you declined to participate in a record of interview.
Now, that's not an aggravating circumstance but you're not entitled to an additional discount as if you had been somebody who had cooperated with police. Now, self-evidently, Mr Cochrane, this was a very large quantity of methylamphetamine at a high degree of purity. Although I'm not to sentence you for the cannabis and the dexamphetamine, I think it is an aggravating circumstance that there were multiple types of drugs.
The State submits, and I accept, that you are properly characterised as 'a courier'. But the fact that you were a courier and that you were to receive only a relatively small portion of those drugs for your own use is limited mitigation. The fact is, as the State submits, you have sought to facilitate the distribution of drugs into a community which is already severely affected by the use of methylamphetamine.
Now, I turn, now, to your personal circumstances. You were born on 9 March 1979 in the town of Dampier and you're now 40 years of age. You did have a difficult family background. The report suggests that you did lead a somewhat transient lifestyle until the age of 11 when your parents and older brother settled in Geraldton. Your parents' relationship was characterised by entrenched alcohol and illicit substance use, as well as violence, and I accept that you were subjected to physical and emotional abuse as a child.
You have had a number of significant relationships and you have a 19‑year old daughter from your first marriage. You recently – you and your current partner enjoyed the arrival of a baby girl in March 2019. You were educated to year 11 at high school and you have a good employment history, having engaged in labouring employment in the building, mining – and mining industries and, indeed, in the fishing industry. You do not, however, come to this court as a person of good character and you have a criminal history, albeit relatively minor compared to what you are facing today, and you have a variety of offences pertaining to nuisance, property, traffic, substance abuse, weapons, assault and breach of police and court orders.
Your most serious offence involved an offence of assault occasioning bodily harm and you received a sentence of nine months imprisonment for that, and that apparently didn't deter you because you – 15 months into – well, 15 months after being released from prison, you're here committing the present offence.
I have, however, read the character references from your mother, from Darryl Johnson and Leonie Gregson, and they speak of your remorse and your willing to change, and I've also been provided, this morning, with a letter from your partner who speaks of your support to her through the difficulties that she has suffered and it speaks of your plans for the future.
So I take all that into account as well. Now, clearly, the dominant issue for you is substance abuse. The history of your substance abuse is that you tried cannabis at the age of 11, then graduated to alcohol at 13 and then, from the age of 14, you were using harder drugs such as ecstasy and LSD. You progressed to amphetamine use in your later years and, for the past 20 or so years, the report suggests, you've been using methamphetamine on a regular basis. Now, you are currently in Greenough Prison and I note that you have done a number of courses in an attempt to further your rehabilitation.
You've been reading self-help books and you have done an eight-week parenting course, and all of that is to your credit. In terms of your risk of reoffending, it is difficult to predict what your risk of reoffending is. One would have to say that because of your history of illicit substance abuse and your criminal record that there's a moderate risk of you reoffending. Perhaps now that you have a baby girl, however, your motivation to address the issue of your illicit substance abuse can be addressed.
But ultimately, as you know, Mr Cochrane, the only disposition that you are realistically facing is a term of imprisonment to be immediately served and that is because the main sentencing considerations for offences of this kind are that of general and personal deterrence.
By 'general deterrence,' I mean that I need to impose a sentence which will deter others who might be minded to commit offences such as this so that they will know that if they deal in drugs, whether as a courier or otherwise, they will be dealt with severely. In your case, I think an element of personal deterrence is also warranted because of your history of offending. Now, the State submits, obviously, that a term of imprisonment to be immediately served is the only appropriate disposition. Mr Giudice, appropriately, concedes that there really is no other option for you so it really, then, just becomes a question of the length.
In my view, having regard to the quantity of drugs, the purity of those drugs, and having applied a 25 per cent discount for your plea of guilty and a further discount for other matters in mitigation, an appropriate sentence is one of five and a half years. Now, I decline to suspend that sentence. I will make you eligible for release on parole. You will be eligible for release on parole after serving three and a half years.
As we have also noted above the sentence was backdated to commence on 24 December 2018.
As can be seen from the learned sentencing judge's remarks, the facts relevant to sentence included:
(a)the appellant was properly characterised as a courier (and was going to receive a relatively small portion of the drugs). Beyond the receipt of a small portion of the drugs, he did not have a commercial purpose for the offence;
(b)the appellant was remorseful and was doing his best to atone for his offending;
(c)the appellant was 40 years of age, he had a difficult childhood including physical and emotional abuse and had long had substance abuse problems;
(d)while the appellant has a good working history, he was not a person of prior good character in light of his criminal history. The appellant had a long criminal history, including a number of prior convictions in relation to drug offences including a prior conviction for possession of methylamphetamine with intent to sell or supply (although he had not previously been convicted of drug trafficking);
(e)in light of the appellant's criminal record and history of substance abuse he was a moderate risk of reoffending;
(f)the appellant had recently become a father again and was supported by his partner and his partner's father, Mr Daryl Johnson;[35] and
(g)the appellant had commenced efforts towards rehabilitation, including completing a number of courses while in prison.

Relevant sentencing principles

[35] See Appeal Book 88.

Ground 2 asserts implied, rather than express, error. Apart from the error alleged in ground 1, there is no suggestion that the learned sentencing judge made any error of law or fact or took into account any irrelevant matter.
The relevant principles in relation to implied error are well established. They include the following matters (which we have taken from the summary in Kabambi v The State of Western Australia).[36]
[36] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, 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 it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
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.
The application of customary sentencing principles in the context of drug trafficking were summarised in this Court in Carlucci v The State of Western Australia:[37]
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.
[37] Carlucci v The State of Western Australia [2019] WASCA 37; 276 A Crim R 472 (Carlucci) [37] (Mazza, Mitchell & Beech JJA).
Of course, as in the case of any sentencing exercise, the maximum penalty for the statutory offence will be an important consideration.[38] Thus an increase in the maximum penalty, as occurred by the amendment of s 34(1)(a) by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (2017 Amendment Act), will be significant in the evaluation of whether a sentence is manifestly excessive.
[38] Sentencing Act s 6(2)(a).
The effect of the increase in the maximum penalty for possession of a trafficable quantity of methylamphetamine to life imprisonment was considered by this Court in HSV v The State of Western Australia.[39] In that case, the Court said:[40]
It is established that the maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and demonstrates the Parliament's view of the gravity of the offence. The maximum penalty must be taken into account in determining, in each particular case, the appropriate sentence. If the Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty for the offence is an indication that sentences for that offence should be increased.
Therefore, at 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.
[39] HSV v The State of Western Australia [2020] WASCA 5 (HSV).
[40] HSV [44] ‑ [45] (Buss P, Mazza & Mitchell JJA).

Over time, of course, an increase in the maximum penalty for an offence such as that brought about by the 2017 Amendment Act will inevitably bring about a change in the sentences customarily imposed for the offence in question.
At the time that the appellant was sentenced by the learned sentencing judge, there were no decisions of this Court in relation to sentences for possession of a trafficable quantity of methylamphetamine in which the Court had considered the effect of the increase in the maximum penalty to life imprisonment.
There was, however, a significant body of decisions in relation to sentences imposed prior to the increase in the maximum. In Carlucci, for example, the Court referred to a number of cases in which sentences of 5 ‑ 7 years imprisonment were imposed on persons engaged in a commercial drug business which involved dealing in ounces rather than kilograms.[41] Those cases, however, generally involved greater quantities of the drug than in the present case and substantially greater involvement in drug‑dealing businesses, and some of them involved more than one offence.[42]
[41] Carlucci [39] (Mazza, Mitchell & Beech JJA).
[42] See for example the discussion in Carlucci at [40] and [41], of the decision in The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110 (377.65g of methylamphetamine; sole proprietor of drug‑dealing business) and Le v The State of Western Australia [2014] WASCA 120 (two separate occasions: 84.23 g of methylamphetamine; commercial dealer).
It has only been following the sentence imposed by the learned sentencing judge in the present case that a body of cases concerning sentences imposed in light of the increase in the maximum penalty has begun to emerge. It is to those decisions that we now turn.

Sentencing decisions following the 2017 Amendment Act

The first decision of this Court following the increase in the maximum penalty was HSV.
In HSV, the offender (31 years old at the time of sentencing) was sentenced, on his guilty plea, in relation to five offences: one count of sale or supply of methylamphetamine (count 1), two counts of possession of a prohibited drug (cocaine and MDA) with intent to sell or supply (counts 2 and 3), one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply (count 4) and one count of possession of stolen or unlawfully obtained property ($33,075). The total amounts of methylamphetamine seized were 27.8 g (72% purity), in relation to count 1, and 977.82 g (69% ‑ 80% purity) in relation to count 4. Count 2 involved 630.07 g of cocaine (of varying purities) and count 3 involved 138.3 g of MDA (of varying purities).
Count 4 was committed after the increase in the maximum penalty to life imprisonment. The appellant received a 20% discount for his guilty plea.
The appellant in HSV was sentenced to a total effective sentence of 13 years imprisonment, which included sentences of 3 years 6 months in relation to count 1 and 9 years 6 months in relation to count 4.
The appellant in HSV was found to have been selling the drugs for profit as part of a large scale commercial drug dealing operation. On appeal, the Court agreed that the overall criminality of the offending was high due to the operation of a commercial drug dealing business involving significant quantities of drugs. It also noted that although the offender was acting as an agent for another person higher up in the chain, he was profiting significantly (around $5,000 per week). Accordingly, the appeal against sentence was dismissed.
The criminality of the offending in HSV was clearly significantly higher than in the present case: there were multiple charges, the offender obtained a significant ongoing commercial benefit from his involvement in the commercial operation and the quantity of methylamphetamine was over 20 times the quantity in the present case. Given the substantially different circumstances, HSV provides little assistance by way of comparison to the present case.
In Musulin v The State of Western Australia,[43] 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% ‑ 80% purity).
[43] Musulin v The State of Western Australia [2020] WASCA 18 (Musulin).
The appellant in Musulin received a 25% discount for his guilty plea. He was sentenced to 7 years imprisonment for count 1 and 1 year 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 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.
The criminality of the offending in Musulin was significantly higher than in the present case: the offending was for commercial purposes and the quantity and purity of the drugs was higher (almost four times higher).
In McConnell vThe State of Western Australia,[44] the appellant successfully appealed a sentence total effective sentence of 5 years 9 months imposed on the same day as the sentence imposed on the appellant in the present case.[45] The appeal was upheld on parity grounds. It was therefore not necessary for the Court to consider an additional ground of manifest excess.[46]
[44] McConnell vThe State of Western Australia [2020] WASCA 59 (McConnell).
[45] McConnell [4] (Mazza, Mitchell & Vaughan JJA).
[46] McConnell [78] (Mazza, Mitchell & Vaughan JJA).
In McConnell the appellant (29 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 MDMA with intent to sell or supply (count 2). The total quantity of the methylamphetamine was 60.94 g (between 77% and 81% purity). There were nine tablets of MDMA.
The appellant in McConnell when apprehended had in his possession a 'tick list' of sales. He was characterised as a 'user‑dealer' and there was an element of commercial gain in his offending. The sentence in relation to count 1 was 5 years 9 months imprisonment, which was reduced by 15% for the appellant's plea of guilty. The sentence of 2 years imprisonment on count 2 was ordered to be served concurrently.
On resentencing, the Court sentenced the appellant in McConnell to 4 years 8 months imprisonment. While the substituted sentence was, the Court considered, commensurate with the seriousness of the offence, the Court recognized that it was at the lower end of the range of appropriate sentences.[47]
[47] McConnell [80], [84] (Mazza, Mitchell & Vaughan JJA).
McConnell has a number of similarities with the present case. The appellant in the present case and the offender in McConnellhad similar antecedents and the quantity of drugs was comparable (albeit that the amount in McConnell was greater). There were also noteworthy differences between the two cases. The element of commercial gain in McConnell was greater than in the present case (the offender in that case proposed to sell a portion of the drugs to a small group of friends) and the appropriate discount for the appellant's plea of guilty was smaller in McConnell. On the other hand, the appellant in the present case was substantially older than the offender in McConnell. In any event, the influence of parity reduces the utility of McConnell as a comparator.
TheState of Western Australia v Delaney[48] was a State appeal against sentence. The offender (34 years old at the time of sentencing) was sentenced, on his guilty plea, in relation to two offences: one count of possession of a trafficable quantity of methylamphetamine, with intent to sell or supply (count 1), and one count of possessing $1,750 in cash which was reasonably suspected to have been unlawfully obtained (count 2). The total amount of methylamphetamine was 111.51 g (between 70% and 78% purity). Following a discount of 25% for the plea of guilty, the sentencing judge sentenced the offender in Delaney to 3 years 2 months imprisonment on count 1 and 10 months imprisonment on count 2, to be served concurrently. The sentencing judge emphasised that the offender, who had struggled with drug addiction from the age of 20, had expressed a commitment to rehabilitation and was remorseful for his offending.
[48] TheState of Western Australia v Delaney [2020] WASCA 93 (Delaney).
On appeal, this Court observed that the offending in Delaney was a 'relatively serious example of its type', in which the offender was conducting a drug dealing business for profit. The Court also observed that while the offender had expressed a desire to take concrete steps towards rehabilitation, no demonstrated steps had yet been shown.[49]
[49] Delaney [35] ‑ [36] (Buss P, Mazza & Mitchell JJA).
The Court in Delaney concluded that the sentence on count 1 was manifestly inadequate and the offender was resentenced to 4 years 9 months imprisonment. The sentence for count 2 was left undisturbed, leaving the total effective sentence 4 years 9 months imprisonment.
Having regard to the greater quantity of drugs and the offender's personal conduct of a drug dealing business for profit, the criminality of the offending in Delaney was somewhat higher than in the present case. At the same time, the offender in Delaney, who was a little younger than the appellant in the present case, had features of his personal background that had an additional mitigating effect.[50]
[50] Delaney [43] (Buss P, Mazza & Mitchell JJA).
In Staiger v The State of Western Australia,[51] leave to appeal was refused in an appeal against a total effective sentence of 3 years 8 months imprisonment for two counts of possession of methylamphetamine with intent to sell or supply committed on separate days. The appellant in Staiger was a user-dealer who would sell drugs to recoup the costs of his own habit. The first count involved 6.83 g and the second count a trafficable quantity, 29.51 g (in three locations). The individual sentence on count 2 was 3 years imprisonment, reduced from 3 years 6 months for totality.
[51] Staiger v The State of Western Australia [2020] WASCA 99 (Staiger).
The criminality in Staiger was somewhat comparable to the present case: both offenders committed the offences to facilitate their own use of the drug. The quantity of the drugs in Staiger was less than in the present case and the sentence in that case was obviously a good deal lower than here. Nevertheless, 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 Staiger is of little utility in revealing sentences customarily imposed. All it establishes is that a sentence of 3 years 6 months was not manifestly excessive. Further, in the circumstances of that case, the sentence could in our view properly be described as low.
In Baker v The State of Western Australia,[52] the offender (34 years old at the time of sentencing) was sentenced, on his guilty plea, to eight counts of offering to sell or supply methylamphetamine. The eight counts, respectively, involved the following quantities of methylamphetamine: 10.5 g, 28 g, 112 g, 28 g, 56 g, 84 g, 23 g and 448 g (purity unknown). The offers were revealed by messages discovered on a mobile telephone and covered a period from 2 February 2017 to 20 October 2017. While they were completed offences, the offences in Baker were of having offered to sell or supply methylamphetamine, rather than actual possession for those purposes.
[52] Baker v The State of Western Australia [2020] WASCA 117 (Baker).
Counts 5, 6 and 8 carried the maximum penalty of life imprisonment. The offender was sentenced by the sentencing judge to a total term of 8 years 8 months imprisonment, plus an additional 12 months by reason of the fact that he had breached a suspended term of imprisonment when he committed counts 4, 5, 6, 7 and 8. The total effective sentence was therefore 9 years 8 months imprisonment.
An appeal against sentence was allowed on the basis that the State had failed to prove, beyond reasonable doubt, that the offender had the capacity to fulfil his offer to supply 448 g of methylamphetamine as alleged in count 8. The Court resentenced the offender to a total term for the eight offences of 8 years, and ordered that the suspended 12‑month imprisonment term be served cumulatively, bringing the total effective sentence to 9 years.
The breakdown for each count is as follows: 6 years for count 8 (head sentence), 1 year 3 months for count 1 (concurrent), 3 years for count 2 (concurrent), 2 years for count 3 (cumulative), 3 years for count 4 (concurrent), 4 years for count 5 (concurrent), 4 years 6 months for count 6 (concurrent) and 2 years 9 months for count 7 (concurrent). The sentence in relation to count 3 (involving 112 g) was reduced from 5 years on totality grounds).
In reaching this sentence, this Court took into consideration the fact that the offender was carrying on a business of dealing significant quantities of drugs for profit, making his offending very serious. This Court also had regard to the fact that counts 1, 2, and 3 were committed whilst the offender was on bail for another offence, which the sentencing judge had regarded as a demonstration of 'breathtaking audacity and disregard for the law'. There were, however, a number of mitigatory factors that allowed for a reduction in the sentence imposed, and the Court allowed a 10% discount for the offender's guilty plea.
The criminality in Baker was more serious than in the present case. There were multiple offences over a lengthy period of commercial drug dealing. The individual sentence for the count bearing the closest similarity to the amount of drugs as in the present case was count 5, for which the appellant in Baker was sentenced to 4 years 6 months imprisonment. That sentence was not reduced for totality, but ordered to be served concurrently.
Finally, Moodley v The State of Western Australia[53] was another appeal allowed on parity grounds.
[53] Moodley v The State of Western Australia [2020] WASCA 158 (Moodley).
In Moodley the offender (22 years old at the time of sentencing) was sentenced, on his guilty plea, to one count of offering to sell or supply a trafficable quantity (28 g) of methylamphetamine. The offer had been made to an undercover police officer. The sentencing judge gave the offender a 5% discount for his guilty plea (which was entered on the second day of trial). The offender was sentenced by the sentencing judge to 4 years 3 months imprisonment. This was reduced to 2 years 8 months on appeal.
The offence in Moodley was committed for commercial gain and on the basis that, at the time of the offence, the offender had connections in the community who may have had the capacity to supply the methylamphetamine. The appellant's co-offender, who was a user‑dealer and was less culpable, had received a sentence of 2 years imprisonment. The appeal was allowed on the basis that the sentencing judge, having regard to the sentence imposed on the co‑offender, mistakenly believed that the co-offender's sentence had been reduced for totality reasons when it, in fact, had not. The Court, in resentencing the appellant in Moodley, noted that the application of the parity principle had had a moderating effect on the sentence, which would otherwise have been higher.[54]

Conclusions as to manifest excess

[54] Moodley [29] (Buss P, Mazza & Beech JJA).

As we noted above, a range of sentences customarily imposed for offences of possessing trafficable quantities of methylamphetamine since the maximum penalty was increased to life imprisonment is only beginning to emerge. There were no such sentences at the time of sentencing by the learned sentencing judge in the present case.
For the reasons already given, HSV, Staiger and Baker are of little assistance in determining whether the appellant's sentence is manifestly excessive. The same is true, in our view, of McConnell and Moodley because of the moderating impact of parity on the sentences imposed in each of those cases. That leaves Musulin and Delaney. Individual comparison between the sentence in each of those cases and the sentence in the present case tends to suggest that the sentence imposed on the appellant in this case was, at least, high. However, comparison with the sentences imposed in two or three other cases will rarely, if ever, be a sufficient indication of error in the exercise of the sentencing discretion.
In the circumstances, in our view, consideration of sentences imposed in comparable cases provides an insecure foundation to infer that 'there must have been some misapplication of principle'.[55]
[55] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (7); Tan v The State of Western Australia [2019] WASCA 112 [73].
As the grant of leave to appeal in the present case demonstrates, it was reasonably arguable that the appellant's sentence was excessive. Certainly, had the former maximum penalty applied, we would have reached that conclusion. Nevertheless, particularly having regard to the increase in the penalty and the limited assistance from comparable cases, in our view it cannot be inferred that the learned sentencing judge was in error in the present case.
The appellant committed a serious drug offence. As the authorities reveal, the major sentencing considerations for offences of this type are general and personal deterrence. Any involvement in the illegal trade in methylamphetamine, whether as a courier, dealer or profiteer, is offending which calls for terms of imprisonment that will achieve that necessary deterrence.
While the appellant had demonstrated active steps towards a change in his lifestyle at the time of sentencing, the learned sentencing judge concluded, without challenge on appeal, that the appellant was nevertheless a moderate risk of reoffending. He did not have the benefit of youth and there was nothing exceptional about his personal circumstances. Indeed, the most significant mitigating factor in the appellant's case was his plea of guilty, for which he received the highest possible discount. When the appellant was given the opportunity of a suspended sentence in 2016, he committed a further offence (whereupon he was sentenced to a term of immediate imprisonment).
In the end, taking into account the maximum penalty, the circumstances of the offending, the appellant's plea of guilty, his personal circumstances and all relevant sentencing principles, the sentence does not reach, although it approaches, a length which can properly be characterised as unreasonable or plainly unjust. If the sentence had been any longer, the position may well have been different. Thus, we are not persuaded that the sentence is so high as to compel the inference that there has been some misapplication of principle in the exercise of the sentencing judge's discretion.

We would therefore not uphold ground 2.

Conclusion

The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan
8 JANUARY 2021