French v The State of Western Australia
[2025] WASCA 126
•26 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FRENCH -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 126
CORAM: MAZZA JA
HALL JA
FORRESTER J
HEARD: 14 AUGUST 2025
DELIVERED : 26 AUGUST 2025
FILE NO/S: CACR 112 of 2024
BETWEEN: JAKE JOHN FRENCH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BLACK DCJ
File Number : IND 1802 of 2022
Catchwords:
Criminal law - Appeal against sentence - Sale of approximately 4.5 kg of cannabis - Sentence of 2 years' imprisonment cumulative on existing sentence - Where sentencing judge misstated the minimum period that the appellant would serve before becoming eligible for parole - Whether the sentencing judge's error resulted in a total effective sentence that breached the totality principle - Whether the sentence of 2 years' imprisonment was manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(2)
Sentencing Act 1995 (WA), s 34, s 93, s 94
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Z A Gilders |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | ZG Criminal Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Brown v The State of Western Australia [2008] WASCA 48
Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51
Duff v The State of Western Australia [2008] WASCA 91
Griffin v The State of Western Australia [2020] WASCA 17
GUE v The State of Western Australia [2022] WASCA 121
Ha v The State of Western Australia [2019] WASCA 69
Harvey v The State of Western Australia [2017] WASCA 149
Jarvis v The Queen (1993) 20 WAR 201
Kabambi v The State of Western Australia [2019] WASCA 44
Kirby v The Queen [2003] WASCA 239
Lester v The State of Western Australia [2011] WASCA 128
Mackey v The State of Western Australia [2025] WASCA 120
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Sandwell v The State of Western Australia [2012] WASCA 15
Savory v The State of Western Australia [2018] WASCA 165
JUDGMENT OF THE COURT:
The appellant was convicted on his plea of guilty of one count of selling a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The offence related to 10 lb (4.497 kg) of cannabis. The appellant was one of a number of people who facilitated the sale of that cannabis to an undercover police operative (UCO) for $37,000.
The appellant was sentenced to 2 years' immediate imprisonment. That sentence was ordered to be served cumulatively on a total effective sentence of 7 years 2 months' imprisonment that the appellant was serving for unrelated offences. An order was made that the appellant be eligible for parole.
The appellant seeks leave to appeal against the sentence of 2 years' immediate imprisonment. There are two grounds of appeal. The first ground alleges, in effect, that the cumulative sentence of 2 years' imprisonment breached the totality principle because the sentencing judge mistakenly thought that the effect of the sentence was to add only 1 year to the period that the appellant would have to serve before becoming eligible for release on parole. The second ground is that the sentence of 2 years' immediate imprisonment was manifestly excessive.
The sentencing judge determined that a sentence of 2 years' immediate imprisonment was appropriate having regard to all the circumstances of the offending and the personal circumstances of the appellant. The sentencing judge expressly took into account totality and stated that she had reduced the sentence for that reason. That determination did not require, nor involve, any assessment of the effect the sentence would have on the time that the appellant would spend in custody.
After imposing the sentence and ordering that the appellant be eligible for parole, the sentencing judge told the appellant that the effect of the sentence was that he would have to serve an additional year in prison before being eligible for parole. The sentencing judge was mistaken in that regard. Because the sentence was cumulative on the sentence of 7 years 2 months' imprisonment, and the total aggregate sentence was over 4 years, the effect of the sentence was to add 2 years, to both the head sentence and the date at which the appellant would become eligible for parole. This mistake, though regrettable, did not form part of the sentence. Furthermore, the sentence of 2 years' immediate imprisonment was plainly an appropriate sentence in the circumstances of this case. It was not manifestly excessive.
For the reasons that follow, we would refuse leave to appeal on each of the grounds and dismiss the appeal.
The facts
On 10 December 2021, a co‑offender, Nabil Ali Hannouf, met with a UCO at a café in Kings Park. The UCO asked Mr Hannouf if he could arrange the supply of 10 lb of cannabis. Mr Hannouf agreed to attempt to source the cannabis.[1]
[1] ts 576.
On 15 December 2021, Mr Hannouf met the UCO again, this time at a café on Hay Street, Perth.[2] On this occasion, Mr Hannouf was in company with the appellant. Mr Hannouf informed the UCO that the price of the cannabis would be $37,000. The UCO agreed to the price. Mr Hannouf informed the UCO that the appellant would make the arrangements for the supply of the cannabis. The appellant directed the UCO to attend at an address in Landsdale later that day.
[2] ts 576.
The UCO attended at the Landsdale address in the afternoon of the same day.[3] He met the appellant's girlfriend, who directed the UCO to follow her. They then travelled by car to an address in Kingsley. There, the appellant's girlfriend introduced the UCO to another co‑offender, Joshua Gordon Endersby. Mr Endersby, in turn, introduced the UCO to another co‑offender, Joel Oliver Tolhopf.[4] Mr Endersby informed the UCO that the cannabis was to be collected from Mr Tolhopf's residence. The UCO gave Mr Tolhopf $37,000 in cash. Mr Tolhopf counted the money. A short time later, Mr Tolhopf gave the money back to the UCO after Mr Tolhopf had made an unsuccessful attempt to contact his supplier.[5]
[3] ts 576.
[4] ts 576.
[5] ts 576.
A few days later, on the morning of 19 December 2021, the UCO attended a petrol station in Rivervale in company with Mr Tolhopf and Mr Endersby.[6] The UCO gave the $37,000 in cash to Mr Tolhopf. Mr Tolhopf departed and returned a short time later. Mr Endersby remained with the UCO. When Mr Tolhopf returned, he placed two boxes containing 10 lb of cannabis into the UCO's vehicle. The total metric weight of the cannabis was 4.497 kg.[7]
[6] ts 576.
[7] ts 576.
On 21 December 2021, the UCO met Mr Hannouf at a café on Hay Street, Perth and paid him $1,500 in cash as a commission for organising the sale of the cannabis.[8]
[8] ts 576.
On 4 March 2022, the appellant was arrested by police at his home in Clarkson. He declined to participate in an interview.[9] He was charged and conveyed to the Perth Watch House.[10]
[9] ts 576.
[10] ts 582.
At the time the appellant committed the offence, he was on bail for other serious offending.
Appellant's personal circumstances
The appellant was 28 years of age at the time of the offence and 31 years old at the time of sentencing.[11] His parents divorced when he was 2 years old. That was said to be an event which had a significant effect on him. His father passed away when the appellant was very young.[12]
[11] ts 593.
[12] ts 593.
The appellant experienced some difficulties in his schooling. He reported being diagnosed with ADHD as a child.[13] There was no independent medical evidence of this.
[13] ts 593.
In his teenage years, the appellant was in a stable relationship and worked in mining.[14] He and his partner purchased a property together. There was a deterioration in the relationship and the appellant gravitated towards negative peers. Some of those people included members of outlaw motorcycle gangs.[15] Whilst not a member of any gangs, he associated with members and had friends in those circles. It was suggested that these associations caused the appellant to escalate from relatively petty offending to more serious offences.[16]
[14] ts 593.
[15] ts 593.
[16] ts 593.
The appellant began working in the tow truck industry.[17] It was at that time that he met Mr Hannouf, who was a fellow subcontractor in that industry. The appellant also met his current partner, who was working in the office of a towing company. The appellant's partner has two children from an earlier relationship, whom the appellant has taken on as his own.[18] They also have a son together, who was born in early 2020.[19]
[17] ts 594.
[18] ts 594.
[19] ts 594.
The appellant's current partner provided a letter in which she referred to the challenges that the appellant had experienced in overcoming homelessness and addiction.[20] She referred to the appellant's awareness of the effect that his actions have had on his family. She also referred to difficulties that she has faced with the children and her need for the appellant's support.[21]
[20] WAB 121.
[21] WAB 121 - 122.
The appellant has a criminal record.[22] His adult record includes offences of possessing a controlled weapon, assault occasioning bodily harm, stealing a motor vehicle, criminal damage, armed assault with intent to rob, and aggravated home burglary. The latter four offences were committed on 5 April 2020.[23] The appellant was on bail for those offences when he committed the present offence.[24] He was sentenced to a total effective sentence of 7 years 2 months' imprisonment for those offences on 12 December 2022.[25]
[22] WAB 116 - 120.
[23] WAB 116.
[24] ts 592.
[25] WAB 116.
Sentencing remarks
The sentencing judge said that the appellant arranged, from the buyer's end, for the sale of a very large quantity of cannabis.[26] Given the quantity involved, the appellant must have known that the buyer was going to on‑sell those drugs. Her Honour said that the appellant was one of those responsible for a transaction which resulted in the transportation and sale of an 'enormous amount' of cannabis for ultimate distribution into the community.[27]
[26] ts 631.
[27] ts 631.
The sentencing judge noted that cannabis is an illegal and potentially very harmful drug when misused or abused. She described this as 'clearly a commercial operation'.[28] She said that, based on telephone intercept material contained in the prosecution brief, this was a matter that involved people who were heavily involved in organised criminal activity.
[28] ts 631.
The sentencing judge said that the appellant had 'played a pretty prominent role in terms of this transaction and taken up a fair degree of authority'.[29] She described the appellant as an intimidating figure within the operation and that he 'clearly maintained a fair degree of control, but from a distance'.[30]
[29] ts 632.
[30] ts 632.
The sentencing judge said that it was not possible to determine what specific financial return the appellant would get from his involvement, but he must have expected a gain of some sort.[31] She said that given that the total cost of the cannabis was $37,000, whatever benefit the appellant was going to get would likely have been a relatively small amount of money.[32]
[31] ts 634.
[32] ts 634.
The sentencing judge noted that the appellant had had, by the time he came to be sentenced for this offence, time to reflect whilst in prison. Her Honour also noted the letter from the appellant's partner and said that it seemed that the appellant was becoming more mature and had realised that the most important thing he could do was to be a good father and partner.[33]
[33] ts 633.
The sentencing judge said that she would impose a sentence on the appellant that was higher than the other co‑offenders had received. That was not because his role was worse but because there were additional aggravating features that related to the appellant and he had fewer mitigating factors.[34] In particular, her Honour noted that the appellant was on bail at the time of the commission of the offence.[35] The offences for which he was on bail were very serious. The appellant must have known he was likely to receive a sentence of imprisonment for that prior offending. One of the conditions of that bail was that he was not to associate with members of outlaw motorcycle gangs. Her Honour noted that this condition was breached in the commission of the present offence. Her Honour also considered that the fact that the appellant had put his partner in harm's way by involving her in the transaction was an aggravating factor.
[34] ts 633.
[35] ts 633.
In conclusion, the sentencing judge said:[36]
[I]t's fair to say you're a very difficult person to sentence, because on the one hand you do seem to be very connected in terms of your involvement in this offence. You played quite an aggressive role and there are a lot of matters that count against you and very little to go in your favour.
However, in all of the circumstances, I am very mindful of the fact that this sentence is going to be cumulative upon an already long sentence that you are serving. So the sentence that I was going to impose upon you has been reduced considerably to have regard to those factors. You were of course always going to look at a much longer sentence than anyone else by reason of the absence of mitigation, the presence of aggravating features and the particular role you played.
[36] ts 637.
The sentencing judge noted that the appellant was no longer young and was not of prior good character. She said that she had reduced the sentence 'because I'm making it on top of your sentence'.[37] Earlier in the proceedings, her Honour had said that she would allow a 10% discount for pleading guilty, that discount reflecting that the plea was late and the prosecution case was strong.[38] Her Honour then said:[39]
So your life is now in your hands and I don't want to give you a sentence that's going to substantially change the hope that you have for when you get out. So for those reasons, I sentence you to a term of imprisonment of 24 months. In other words, two years. That, I can tell you, is a lot lower than you could have expected for your involvement and the absence of mitigation.
It is, you will see, only six months more than the person who pleaded guilty on the fast track system who had no expectation of reward, and so your sentence is, in my view, lower than it should have been, but that is to have regard to the totality principle. I make that cumulative on the sentence that you're currently serving, but I do order that you be eligible for parole.
The consequence of it is you have one extra year to serve on top of whatever you would have otherwise. That, I hope, will give your partner hope that she'll get you out not too far away after when she could have expected you anyway. I know it's a year. It's a long time but there's a price you must pay for that. Is that all clear? (emphasis added)
[37] ts 637.
[38] ts 635.
[39] ts 637 - 638.
Grounds of appeal
There are two grounds of appeal:[40]
[40] WAB 6.
1.The sentencing judge erred in law, or alternatively in the exercise of her discretion by failing to properly apply the 'principle of totality', in imposing a term of 2 years['] imprisonment, and ordering that sentence to be served cumulatively upon the term of imprisonment the Appellant was already serving, having regard to the fact that:
a.Her Honour expressed an intended result, being that the Appellant serve one additional year in prison than he would have otherwise; and
b.the structure of the sentence imposed by the learned sentencing judge had the effect of the Appellant being required to serve an additional two years in prison; and
c.the total effective sentence therefore does not bear a proper relationship to the overall criminality of the offending, and is plainly unjust.
2.The sentencing judge erred in law by imposing a sentence that was manifestly excessive having regard to:
a.The Appellant's role in the offending;
b.The nature and circumstances of the offence.
Facts of the prior offending
As ground 1 seeks to challenge the aggregate total effective sentence (9 years 2 months' imprisonment) on the basis that there has been a breach of the totality principle, it is necessary to refer to the facts of the prior offending. Those facts can be summarised as follows.[41]
[41] The facts of the appellant's prior offending are drawn from a case involving a co‑offender, see Mackey v The State of Western Australia [2025] WASCA 120. At the hearing of the appeal, counsel for the appellant accepted the accuracy of those facts.
On 5 April 2020, the appellant and four co‑offenders decided to attend a property in Upper Swan connected with a woman with whom one of the co‑offenders had previously been in a relationship. The purpose of going to the property was to forcibly recover personal property of some kind.[42]
[42] Mackey [15].
The group travelled to the Upper Swan property together, arriving prior to 11.00 pm.[43] The appellant and another of the co‑offenders drove motorcycles. The other men travelled in a car. A baseball bat and a homemade wooden baton were transported in the car. Two of the co‑offenders retrieved the baseball bat and baton. Windows to the house were broken and damage was caused to the rear window of a Suzuki vehicle.[44]
[43] Mackey [17] - [18].
[44] Mackey [18].
The complainant was the 28‑year‑old brother of the co‑offender's former partner. After going to bed at around 9.00 pm, the complainant was woken by the sound of approaching motorcycles.[45] He saw two motorcycles parked near the front gate of the property. He then saw one of the co‑offenders walking towards him carrying a baseball bat. The co‑offender shouted 'Where the fuck's your sister? I want my shit back'.[46] The co‑offender then forced his way into the house. The appellant and the other co‑offenders also entered the house. One of the other co‑offenders was holding the wooden baton.
[45] Mackey [19].
[46] Mackey [20].
The complainant was struck on the head with the wooden baton.[47] This caused an injury that immediately began to bleed profusely. The co‑offender with the baseball bat then began to strike the complainant in the head, body and back. The man with the baton also continued his assault. The complainant tried to get away and/or to protect himself. The man with the baseball bat demanded that the complainant give up his car keys.[48] He continued to hit the complainant as he repeated this demand. The complainant eventually told the man where the keys were. The five men, including the appellant, then left, taking the keys with them.
[47] Mackey [22].
[48] Mackey [23].
Shortly after this, the complainant heard his Commodore utility start and he went outside.[49] He saw someone getting into the passenger seat of the utility and the man with the bat talking to someone in the driver's seat. The complainant asked for his wallet, which was in the Commodore utility. His request was ignored. The utility drove off.
[49] Mackey [24].
The complainant suffered multiple injuries, including a 9 cm by 2 cm laceration to the right posterior parietal surface of his scalp (the top back of the head), which required stitches.[50] He sustained fractures to three different parts of the area around and beneath his left eye, swelling and bruising to his right ear and bruising to his left ear. There were also linear marks and bruising to the complainant's back. In addition, the complainant had bruising and red marks to his legs. The complainant also sustained swelling and tenderness to the right palmar surface of the wrist and left palmar surface of the forearm. As a result of his injuries, the complainant was taken to hospital, where he remained until morning, when he was released. It was the opinion of the treating medical practitioners that the injuries interfered with the complainant's health and comfort.[51]
[50] Mackey [27].
[51] Mackey [29].
The appellant was sentenced on the basis that he had attended the complainant's premises with the common intention of assaulting and threatening someone if necessary.[52] Whilst the man with the bat was the instigator of the enterprise, the appellant and the other co‑offenders were willing participants in the enterprise. Each was knowingly and willingly present inside the complainant's residence, offering encouragement to the men who assaulted the complainant. They were in the complainant's residence from the time shortly prior to when the first blow was struck until the complainant revealed the location of the keys to his utility. The appellant was willing and able to assist in the assault on the complainant if required and/or to overcome the resistance of others or to prevent the complainant from leaving. Each of the co‑offenders in the same way aided in the assault with intent to rob and the stealing of the car. While the sentencing judge could not determine who damaged the Suzuki vehicle, that damage was a probable consequence of the unlawful common purpose for which each of the offenders was equally responsible.
[52] Mackey [30].
Ground 1 - appellant's submissions
In effect, the appellant submits that in stating that the effect of the sentence was that the appellant would serve one extra year in prison before becoming eligible for parole, her Honour was expressing her intention that the sentence that she imposed would only add 12 months to the appellant's total minimum period.[53] As the aggregate sentence was in excess of 4 years, that was not in fact the effect. By imposing a 2‑year cumulative sentence, the total effective sentence became 9 years 2 months and the appellant will become eligible for parole after serving 7 years 2 months.[54] The effect therefore was to add 2 years to both the total effective sentence and the period that the appellant must serve before becoming eligible for parole.
[53] WAB 12 - 13.
[54] WAB 15.
The appellant submits that the sentencing judge, in erroneously understanding the effect of her sentence, imposed a sentence that produced a total effective sentence that was disproportionate to the appellant's overall criminal conduct.
Ground 1 - respondent's submissions
The respondent submits that the sentence of 2 years was determined, properly, without regard to any non‑parole or minimum term. The sentencing judge's statement as to the effect of the sentence she imposed, whilst in error, did not form part of the sentence itself.[55]
[55] WAB 32.
The sentence was reduced to 2 years' imprisonment for totality reasons and was a proper reflection of the seriousness of the offence.[56] It was entirely appropriate that the appellant would receive a cumulative sentence for the cannabis offence as this was separate and distinct offending that occurred whilst the appellant was on bail. There is no basis for suggesting that the total effective sentence of 9 years 2 months was disproportionate.
[56] WAB 32.
Ground 1 - relevant law
A ground of appeal that asserts that a total effective sentence breaches the first limb of the totality principle because it is disproportionate to the overall criminality of the offending asserts the existence of an implied error. The general principles governing appeals that contend that the total effective sentence infringes the first limb of the totality principle are well established. Those principles were summarised in Kabambi v The State of Western Australia,[57] and need not be repeated.
[57] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
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 offences were committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be a subsidiary consideration, though they are not completely irrelevant.
It is not permissible for a judge to fix a term of imprisonment by taking into account an intention to make a parole eligibility order.[58] When imposing a fixed term of imprisonment, the task is to specify that term and then determine whether there should be an order for parole eligibility. A judge cannot mould sentences with an eye on parole eligibility calculations.[59]
[58] Jarvis v The Queen (1993) 20 WAR 201, 208.
[59] Duff v The State of Western Australia [2008] WASCA 91 [10]; Kirby v The Queen [2003] WASCA 239 [26].
Section 34 of the Sentencing Act 1995 (WA) requires that a judge sentencing an offender explain the effect of the sentence, including the minimum period that the offender will serve in prison. The effect of s 34 is that, where a judge imposes a fixed term, or terms, of imprisonment and makes an order that the offender is eligible for parole, the judge must state the minimum period that the offender will serve in custody in respect of the sentence or sentences imposed at that time. That minimum period may well be affected by an order that the sentence or sentences are to be served cumulatively on sentences already being served.
Section 34 does not confer any power to alter the statutory consequences that flow from the making of a parole eligibility order. The obligation to state the minimum period is in the nature of a non‑binding advisory opinion. The statement of the minimum period does not form part of the sentence imposed by the sentencing judge. Accordingly, any error in the statement of the minimum period does not affect the sentence imposed or the actual minimum period that, by operation of the Sentencing Act, must be served before the offender is eligible for release on parole.[60]
[60] Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51 [12].
The method by which a minimum period is calculated is provided for by s 93 and s 94 of the Sentencing Act. Section 93 provides that a prisoner serving a parole term of 4 years or less is eligible to be released on parole when he or she has served half of that term. Section 93 further provides that a prisoner serving a parole term of more than 4 years is eligible to be released on parole when he or she has served two years less than that term. Section 94 provides that where an offender is sentenced to a parole term that is to be served wholly cumulatively on another parole term, the minimum period of time in custody is calculated on the aggregate of those terms (with an exception that is not presently relevant).
Ground 1 - disposition
The sentencing judge was mistaken as to the effect of the sentence. Her Honour mistakenly thought that by making an order for eligibility for parole, the appellant would only serve half the sentence of 2 years' imprisonment because that sentence was under 4 years. However, that calculation failed to take into account that the sentence was to be served cumulatively on the existing sentence of 7 years 2 months. The minimum period was determined on the total aggregate sentence and not on each individual component of it. The total aggregate sentence was 9 years 2 months and the appellant will become eligible for parole after serving 7 years 2 months (and not 6 years 2 months, as her Honour implied).
This error did not, however, affect the sentence. Questions of eligibility for parole are not relevant when determining the appropriate head sentence. The sentence of 2 years was determined independently of any consideration as to the time that the appellant must serve before becoming eligible for parole. That is apparent from the passage reproduced at [27]. There is nothing in the sentencing judge's remarks to suggest that she intended to impose anything other than the 2‑year sentence of imprisonment that was imposed. Her Honour did not make the error of calculating the sentence by reference to the likely effect of any order for eligibility for parole. The only error was in explaining the effect of the sentence.
In any event, the real question raised by this ground is whether the total effective sentence of 9 years 2 months was disproportionate to the overall criminality of the appellant's conduct. There is no suggestion that the sentence for the prior offending of 7 years 2 months was inappropriate. No challenge to that sentence has been brought. The cannabis offence was entirely independent of that earlier offending. It was committed at a later time, is of a different nature and was committed whilst the appellant was on bail for the earlier offending. In these circumstances, it would be expected that the appellant would serve an additional period of imprisonment for this offending.
No comparable cases on totality were referred to by either party. The appellant's argument on this ground rested almost entirely on the contention that it was her Honour's intention to add only 12 months to the time that the appellant would serve before becoming eligible for parole. That argument has been shown to be misconceived. Having regard to the circumstances of all of the offending and the appellant's personal circumstances, it is not reasonably arguable that the aggregate sentence of 9 years 2 months' imprisonment is disproportionate to the appellant's overall criminal conduct.
There is no merit in this ground of appeal and leave in respect of it should be refused.
Ground 2 - appellant's submissions
The appellant submits that the quantity of drug involved, whilst not insignificant, places the offending towards the lower end of the scale of seriousness.[61] Offences involving quantities in the range of 2 ‑ 8 kg are said to attract terms of between 1 year 4 months' and 2 years 8 months' imprisonment.
[61] WAB 21.
The appellant submits that the nature of the appellant's participation was in providing an introduction and making follow‑up inquiries after the initial sale fell through.[62] Any financial gain for the appellant could only have been relatively small given that the sale price of the cannabis was $37,000. The appellant's involvement was properly characterised as 'fairly low‑level commercial'. The appellant submits that his role was not dissimilar to that of a crop‑sitter or courier.[63]
[62] WAB 21.
[63] WAB 22.
The appellant accepts that his role in introducing the UCO to another was crucial to the transaction but describes that role as 'distanced'.[64] There was no contention that the appellant was involved in an ongoing pattern of drug dealing.
[64] WAB 22.
The appellant is unable to identify any broadly comparable cases but suggests that the following cases provide some assistance as to the range of appropriate sentences for offences of this type: Ha v The State of Western Australia;[65] Sandwell v The State of Western Australia;[66] and Lester v The State of Western Australia.[67]
[65] Ha v The State of Western Australia [2019] WASCA 69.
[66] Sandwell v The State of Western Australia [2012] WASCA 15.
[67] Lester v The State of Western Australia [2011] WASCA 128.
Ground 2 - respondent's submissions
The respondent submits that the quantity involved was approximately 45 times the amount giving rise to a presumption of intention to sell or supply, and nine times the amount that must proceed on indictment.[68] The suggestion that 4.497 kg is towards the lower end of offending of this type must be rejected.
[68] WAB 32.
The respondent notes that the 'distance' of the appellant from the sale was to some extent achieved by placing his partner in the line of fire to protect himself, in circumstances where he was on bail at the time.[69] This is said to do nothing to reduce his level of criminality.
[69] WAB 32.
The respondent submits that the cases referred to by the appellant are either not truly comparable or do not support the appellant's contention that his sentence was manifestly excessive. In addition to the cases referred to by the appellant, the respondent refers to Griffin v The State of Western Australia;[70] Savory v The State of Western Australia;[71] Harvey v The State of Western Australia;[72] Rodi v The State of Western Australia [No 2];[73] Brown v The State of Western Australia;[74] Abbott v The State of Western Australia;[75] and GUE v The State of Western Australia.[76]
[70] Griffin v The State of Western Australia [2020] WASCA 17.
[71] Savory v The State of Western Australia [2018] WASCA 165.
[72] Harvey v The State of Western Australia [2017] WASCA 149.
[73] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
[74] Brown v The State of Western Australia [2008] WASCA 48.
[75] Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186.
[76] GUE v The State of Western Australia [2022] WASCA 121.
Ground 2 - disposition
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. That is, although no error can be identified in the sentencing judge's reasons, the outcome is said to be so unreasonable, or plainly unjust, as to support a conclusion that an error must have occurred in the exercise of the sentencing discretion. In determining whether a sentence is manifestly excessive, it is necessary to examine the sentence from the perspective of the maximum sentence prescribed by law for the relevant offence; the standards of sentencing customarily observed with respect to that offence; the place which the criminal conduct occupies on the scale of seriousness for offences of the kind in question; and the offender's personal circumstances.
The maximum penalty for the offence of selling a prohibited drug, where that drug is cannabis, is imprisonment for 10 years or a fine of $20,000 or both.[77]
[77] Misuse of Drugs Act, s 6(1)(c), s 34(2).
As to the seriousness of the appellant's conduct, he played a crucial role in introducing the buyer to a person who could source the cannabis. The transaction was clearly a commercial one and involved a quantity that could only have been intended for further on‑sale to potential users. Whilst the appellant's reward is unknown, it is accepted that he would have received something for his work, albeit it may not have been a large amount. The appellant's offending was aggravated by the fact that he involved his partner in the arrangements and committed the offence whilst he was on bail for other serious offending.
The appellant's personal circumstances were a very minor consideration. He did not have the benefit of youth or previous good character. The only real mitigating factor was his plea of guilty, which was late and deserving of only a 10% discount.
As to comparable cases, it is unnecessary to refer to the facts of the cases that have been cited. They do not support the appellant's contention that the sentence of 2 years' imprisonment imposed on him was manifestly excessive. Perhaps the most closely comparable case is Lester, in which the offender was convicted of one count of cultivating cannabis and one count of possessing 3.68 kg of cannabis. He was sentenced to 18 months' immediate imprisonment on each count, to be served concurrently. An appeal against that sentence was dismissed. Unlike the appellant, the offender in that case entered fast track pleas of guilty and was remorseful. Unlike the appellant, the offender in that case did not offend whilst on bail. Lester does not support the appellant's contention that the sentence was unreasonable or plainly unjust.
Having regard to the maximum penalty, the circumstances of this offence (involving, as it did, 4.497 kg of cannabis in what was plainly a commercial transaction), the personal circumstances of the appellant and the limited assistance afforded by comparable cases, it is not reasonably arguable that the sentence of 2 years' imprisonment was manifestly excessive.
Leave in respect of this ground must be refused.
Conclusion and orders
We would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
25 AUGUST 2025
0
16
2