Grant v The State of Western Australia - [2017] WASCA 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GRANT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 162

CORAM: MAZZA JA
BEECH JA
HALL J

HEARD: 8 JUNE 2017

DELIVERED : 31 AUGUST 2017

FILE NO/S: CACR 113 of 2016
CACR 114 of 2016

BETWEEN: TYSON JOHN GRANT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 466 of 2015

Catchwords:

Criminal law - Appeal against sentence and conviction - Propensity evidence - Whether properly admitted - Whether adequate directions given to jury - Whether jury properly directed on the elements of aiding pursuant to s 7 - Whether aggregate sentence of 6 years 6 months infringed first limb of totality principle

Legislation:

Nil

Result:

CACR 113 of 2016
Leave to appeal on grounds 1, 1A and 1B refused
Appeal dismissed

CACR 114 of 2016
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC
Respondent: Mr B Murray

Solicitors:

Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
Bomford v The State of Western Australia [2013] WASCA 153
Bui v The State of Western Australia [2014] WASCA 168
Cartwright v The State of Western Australia [2010] WASCA 4
DKA v The State of Western Australia [2017] WASCA 44
Dooling v The State of Western Australia [2012] WASCA 95
Goddard v The State of Western Australia [2014] WASCA 59
JM v The State of Western Australia [2015] WASCA 40
Lovett v The State of Western Australia [2013] WASCA 78
Lowe v The State of Western Australia [2015] WASCA 83
Lynch v The State of Western Australia [2011] WASCA 243
Maric v The State of Western Australia [2015] WASCA 190
McRobb v The State of Western Australia [2015] WASCA 189
Perry v The State of Western Australia [2012] WASCA 124
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
RMD v The State of Western Australia [2017] WASCA 70
Rumenos v The State of Western Australia [2011] WASCA 59
Siskopoulus v The State of Western Australia [2006] WASCA 225
Skinner v The State of Western Australia [2012] WASCA 99
Smith v The State of Western Australia [2012] WASCA 91
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Jenkin [2011] WASCA 171
The State of Western Australia v Littlefair [2013] WASCA 177
The State of Western Australia v Reid [2012] WASCA 109
Tran v The State of Western Australia [2016] WASCA 37
White v The State of Western Australia [2007] WASCA 119

REASONS OF THE COURT: On 20 June 2016, following a six‑day trial, the appellant was convicted of one count of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (count 1), one count of possession of methylamphetamine with intent to sell or supply (count 2), one count of possession of cocaine with intent to sell or supply (count 3) and two counts of possession of dexamphetamine with intent to sell or supply (counts 4 and 5), all contrary to s 6(1)(a) of the Misuse of Drugs Act. On 7 July 2016, he was sentenced to a total effective sentence of 6 years and 6 months' imprisonment. He now appeals against both his conviction and sentence.
There were two grounds of appeal against conviction contained in the appellant's case. Mazza JA granted leave to appeal in respect of ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal. At the hearing leave was granted to add two additional grounds. The grounds relate to two issues, being the admission of propensity evidence at the trial and directions given to the jury regarding aiding in relation to count 1.
There is one ground of appeal against sentence. That ground asserts that the aggregate sentence infringed the first limb of the totality principle. The application for leave to appeal in respect of that ground was referred to the hearing of the appeal.
In our view, both appeals should be dismissed. The reasons for those conclusions are as follows.

Prosecution case

The appellant was self‑employed as a plumber and operated a business from rented premises in O'Connor. On 17 June 2014, police executed search warrants at the O'Connor premises and at the appellant's home in Como. The appellant was not present at the time of these searches as he was working in the Pilbara (ts 115).
The search of the O'Connor premises resulted in the finding of a number of items consistent with the manufacture of methylamphetamine. These included:
1.A George Foreman grill on which traces of ephedrine and methylamphetamine were detected.
2.A flask in which ephedrine was detected.
3.A Pyrex dish in which methylamphetamine was detected.
4.A second Pyrex dish in which ephedrine and methylamphetamine were detected.
5.A plastic scraper on which methylamphetamine was detected.
6.Liquids in which ephedrine and toluene were detected.
7.Respirators.
8.A pair of gloves from which DNA samples were obtained from the inside surfaces. The samples each produced a mixed profile to which the appellant was assessed as being a contributor to a high degree of probability.
9.A number of large plastic containers with between 180 and 200 litres of liquid consistent with being waste produced in manufacturing methylamphetamine (ts 214 ‑ 221).
DNA consistent with that of the appellant was also found on a number of other items recovered from the O'Connor premises, namely a cigarette butt (ts 253), a drinking straw (ts 248), a smoking implement (ts 260) and two samples of tape wrapped around an empty packet of salt (ts 260 ‑ 261).
A chemist from the ChemCentre gave evidence that the items found in the O'Connor premises were consistent with the manufacture of methylamphetamine from ephedrine and pseudoephedrine. There was insufficient material to enable the chemist to determine the exact method of manufacture that had been used. Nor was he able to determine how much methylamphetamine had been produced. He accepted that it was possible that methylamphetamine had been manufactured at another location using the items of equipment found and that those items had then been moved to the unit for storage (ts 221 ‑ 222, 231).
The police obtained CCTV footage from a Bunnings store in Armadale showing that the appellant had purchased isopropanol alcohol on 19 February 2015. Isopropanol is a solvent that can be used during the process of manufacturing methylamphetamine. It also has legitimate uses. The footage showed that the appellant was wearing gloves when he made the purchase. Some isopropanol alcohol was located during the search of the O'Connor premises (ts 217, 235).
Prior to the searches, the appellant had been under surveillance by the police. This included intercepting his telephone calls. The appellant admitted that in some of these calls he had used code words to refer to methylamphetamine and dexamphetamine, though he said this was because he was a user rather than a manufacturer of the drugs. On 24 May 2014, the appellant made two telephone calls to an associate to whom he gave instructions as to how entry could be obtained to his Como house. In the second call the associate mentioned being in the kitchen and seeing 'the recipe' and made reference to 'three stages' and 'the heat' (ts 398, 405 ‑ 410, 473 ‑ 475).
Count 1 of the indictment related to the material found at the O'Connor premises. It alleged that the appellant had manufactured methylamphetamine on an unknown date between 17 June 2013 and 17 June 2014.
Inside the Como house the police found two separate bags of cocaine in a room under the stairs on the ground floor (count 3). The total quantity of cocaine was 3.7 g (ts 289 ‑ 290). In the kitchen they found a bottle containing 94 dexamphetamine tablets weighing a total of 18.8 g (ts 290) (count 5). In a shed at the back of the property they found a package containing 33.1 g of methylamphetamine (count 2) and two further bottles of dexamphetamine containing a total of 142 tablets weighing 28.44 g (ts 290 ‑ 291) (count 4).
In addition to the drugs, police found other items at the Como house associated with dealing in prohibited drugs. These included:
1.Five sets of digital scales, on some of which traces of methylamphetamine were found (ts 291).
2.A vacuum bag sealing machine on which the appellant's fingerprint was identified. Methylamphetamine was detected on the inside surfaces of the machine (ts 291).
3.Two money counting machines.
4.$1,400 in cash (ts 349).
5.A quantity of empty clipseal bags (ts 446 ‑ 447).
6.A paper towel on which were written directions for the manufacture of methylamphetamine (ts 126 ‑ 128).
7.An envelope on which were written the words: 'distilled water, isopropanol, acetone and toluene', all substances used in the manufacture of methylamphetamine (ts 309).
8.A newspaper, part of which had been used to wrap the methylamphetamine found in the shed.
9.A computer that had been used to search the internet for information related to the manufacture of methylamphetamine. The computer also contained photographs of powder and jars (ts 126).

Propensity evidence

During the search of the Como house police located a mobile telephone. The contents of the telephone were subsequently downloaded and found to include a large number of text messages with dates between January 2010 and June 2011. The State made an application to rely upon nine of these messages as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA). The nine messages were as follows:

Sent/ Inbox	Message Number	Date	From	Message
1	Inbox	837	2 June 2011	Froga	'$2500 for two balls. You in Mut?'
2	Inbox	1515	9 May 2011	James	'I'v hidden them (dexandfetandmeans) i mean golf improvin tablets at top left hand of your worddrob Xx lob you Xx'
3	Inbox	1961	21 April 2011	Em	'If it's hot no! Dress shirt jeans or shorts yay u got any dexi I can much on :)'
4	Sent	768	23 April 2011	Ben	'Also I want those shorts his mate is getting him from bali and remaining dexies further more I would like his snake tank but not the snake'
5	Sent	934	2 February 2010	Chidz	'Wanna just kill it tomorrow night bro. Im going to get some mdma powder. I only just got home. Try have a swing tomorrow.'
6	Sent	959	1 February 2010	Horse	'Crack bro get s me everytime. Im getting some mdma powder bro.'
7	Sent	1076	27 January 2010	'Ye going good mate had a good night last night but big one tonight getting a couple of balls. Frog s house is 500 meters from crown so good chance i will'
8	Sent	1304	20 January 2010	Horse	'Na was there last night till like twelve smoking crack ha ha. His getting me some next week x'
9	Sent	1501	14 January 2010	Ben	'Can we get coke'

The application was heard prior to the trial at a directions hearing. On the hearing of the application by the prosecution the appellant conceded that the text messages met the definition of propensity evidence in s 31A of the Evidence Act. The issue for determination was whether the messages had significant probative value.
The appellant submitted that the evidence did not have significant probative value due to the lapse of time between the text messages and the events the subject of the charges. The State submitted that the text message were evidence that the appellant had dealings in cocaine, dexamphetamine and methylamphetamine in 2010 and 2011 and that this was significantly probative in regard to the question of whether he was in possession of such drugs in 2014, notwithstanding the lapse of time (ts 26 ‑ 27).
The judge who dealt with the application clarified the basis on which the State was seeking to rely on the text messages. His Honour asked:
FENBURY DCJ: Probative - are you saying probative in the sense that that familiarity and involvement in drugs, to whatever extent it was, two to three years beforehand, makes it objectively unlikely, highly improbable, whichever phrase, that he would be oblivious to the presence of the drugs alleged in the indictment in his house?
CUSATO, MS: Yes, your Honour. That is the State's position (ts 27).
In ruling that the evidence was admissible, his Honour said that the messages could be viewed as relating to at least the use by the appellant of drugs. They were capable of being interpreted as meaning that the appellant was involved with drugs to the extent that he was using them, and perhaps seeking to acquire them, some two to three years prior to the date of the present charges. His Honour found that this evidence, if accepted, made it inherently unlikely or highly improbable that the appellant, being the sole occupant of the Como house, would be oblivious to the presence in that house of large and valuable quantities of drugs. He concluded that the text messages were significantly probative in relation to an issue in the case, namely whether the appellant had knowledge of the presence of the drugs in his house and was in possession of them (ts 31).
His Honour did not expressly make reference to the balancing exercise required by s 31A(2)(b), namely whether the probative value of the evidence when compared to the risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing the evidence must have priority over the risk of an unfair trial. However, senior counsel who represented the appellant (both at the trial and on the appeal) did not seek to revisit the ruling at the trial.

Defence case

Senior counsel for the appellant in opening at the trial said that it was not in dispute that drugs had been found at the appellant's home and that items consistent with the manufacture of methylamphetamine had been found at the O'Connor premises. The appellant did not deny that he was a long‑term user of drugs. However, he denied knowing anything about the manufacture of methylamphetamine at O'Connor and suggested that there were a number of other people who had access to the property who could be responsible (ts 115 ‑ 117).
In regard to the drugs found at the appellant's Como home, senior counsel said that other people had access to the house and that the appellant was unaware of the methylamphetamine and the cocaine. In regard to the dexamphetamine, the appellant's case was that he knew about the dexamphetamine that was in the shed (the subject of count 4) because that smaller quantity was for his own use. He denied any intention to sell or supply this drug to anyone but accepted that he was guilty of simple possession. The appellant denied any knowledge of the dexamphetamine found in the house (ts 118).
In regard to the text messages, it was accepted that the appellant had made or received these messages, but it was said that they could be explained as being communications relating only to the personal use of drugs. That is, the appellant said that these messages only served to confirm his personal use of drugs, which had continued to 2014 and which he did not deny (ts 119).
The appellant gave evidence in substantially the same terms as the opening given by his counsel. He said that he had used illegal drugs since the age of 19. This included ecstasy, methylamphetamine, dexamphetamine and, on the 'odd occasion' cocaine (ts 370). In more recent times he had used methylamphetamine almost daily and dexamphetamine daily. He would smoke methylamphetamine and, at the time of his arrest, this was costing between $1,000 and $1,500 per week. He said he was able to support this habit because his plumbing business was successful (ts 371).
The appellant said that prior to his arrest he was sharing the Como house with one of his employees, Tom Daly. He said that he would also obtain methylamphetamine from Daly as well as from another man, Todd Marshall. Marshall was the partner of a woman who worked in the appellant's business as his bookkeeper and receptionist. That woman had access to the appellant's Como house because he maintained a home office there (ts 371 ‑ 373).
The appellant said that both the bookkeeper and Daly had access to the computer in his home. The appellant denied undertaking the internet searches for information regarding methylamphetamine and said that he did not know who had done those searches. However, he said that he had found evidence that his computer had been used by Daly on or about 18 April 2014 to book an airline ticket. Daly moved out in March or April 2014, however he still had a key to the Como house (ts 373 ‑ 378).
There was an intercepted telephone call that referred to the appellant meeting a man nicknamed 'Pistol' at the Como Hotel. The appellant admitted that he had met this man and given him $250 at the request of Todd Marshall. He denied meeting Pistol on any other occasion and denied ever buying drugs from him (ts 381).
The appellant denied manufacturing amphetamine in the O'Connor premises or assisting anyone else to do so. He said that he did not know how to manufacture the drug and knew nothing about the handwritten notes found at his house that appeared to be a recipe and a list of ingredients (ts 383).
The appellant had moved his business to the O'Connor premises on 29 May 2014, shortly before travelling to attend a wedding in Broome. He said he was provided with two keys by the real estate agent, one of which he left on a lintel near the front door of the unit. The second set was left with his father. He said that Daly rang him and asked if he (Daly) could service a boat at the premises whilst the appellant was away. A boat was found at the premises when searched by the police, but the appellant said he did not know it had been moved there. He returned to Perth after two or three days but did not go to the O'Connor premises. He then went to Lancelin to go motorbike riding. After returning from Lancelin, he flew to the Pilbara for work. He was still there when police executed the warrant on 17 June 2014 (ts 384 ‑ 387).
The appellant said that between the time that he moved his business to the O'Connor premises and the time of the search he had only been there on one occasion, at the time he moved in on 29 May 2014. He said that his DNA could have been on items found at the premises either because they were moved from his previous premises or because he had used them on the day of the move. He said that he had used a George Foreman grill and a Pyrex container to clean methylamphetamine for his personal use. He said that he did this by adding acetone and then heating up the mixture in order to remove impurities. However, he said that the grill that was found at O'Connor was not his. He said that the gloves in which his DNA was found were gloves that he had used in his plumbing work. He also said that the Pyrex dishes found at O'Connor were not his, although he did have similar dishes at home (ts 388 ‑ 393).
In regard to the purchase of the isopropanol, the appellant said that it was used in plumbing when gluing fittings together. He said he had also used it for cleaning off dried glue when pulling up linoleum. He said that he had done this at Todd Marshall's house. He said that he would use isopropanol during the course of his trade as a plumber two to three times a week. He could use as much as five or six 125 to 150 ml bottles on a single job. He denied that his purchase of isopropanol from Bunnings was related to an attempt or an intention to manufacture methylamphetamine (ts 394).

In regard to the text messages, the appellant accepted that he had sent or received the messages. He gave the following evidence:
Now, I think the jury saw some text messages of yours back in 2011, 2010 which came from an old phone?‑‑‑Yep.
Would you accept that they were your text messages?‑‑‑Yep.
And I think it's suggested that some of them appear to be attempts to obtain dexamphetamine?‑‑‑Yep.
What do you say about that?‑‑‑I used to take dexamphetamine, yeah, every day so ‑ ‑ ‑
But were you ever a dealer in dexamphetamine?‑‑‑No, I just took them.
Were you ever a dealer in any drugs?‑‑‑No, never, I've never - never been involved in that.
Ever sold any drugs?‑‑‑No.
Have you ever manufactured or attempted to manufacture any drugs?‑‑‑No, never (ts 395).
In regard to an intercepted telephone conversation in which the appellant referred to 'three stages', he said that he believed that the other person was referring to a steroid and denied that he was speaking about manufacturing methylamphetamine. He provided similar explanations for other telephone calls. He did accept that in another telephone call with Marshall on 15 February 2014, references to cooking on the George Foreman grill was a reference to cleaning drugs using acetone and heat. Another telephone call with Marshall in which isopropanol was referred to was said by the appellant to relate to the cleaning of fittings and did not relate to the manufacture of methylamphetamine (ts 395 ‑ 404).
The appellant admitted that dexamphetamine tablets found in the shed at Como were his. He said that he used dexamphetamine and on occasion would swap it for other drugs or give them to other people. He denied selling dexamphetamine. He was asked whether he was dealing in such tablets as far back as 2010 and 2011 and he responded by saying, 'No, I was taking dexamphetamines' (ts 491). The appellant admitted that the text messages from 2010 and 2011 related to him obtaining drugs, including cocaine and dexamphetamine, but maintained that the drugs he obtained at that time were for his personal use and that he was not engaged in dealing in them.

Closing addresses

The prosecutor did not refer to the 2010 and 2011 text messages in her closing address. By that stage of the trial the significance of those messages had been overtaken by the nature of the defence case. The fact that, in 2010 and 2011, the appellant had possessed drugs, including cocaine and dexamphetamine was not in dispute. The appellant had admitted that he was a long‑term user of drugs and sought to incorporate the text messages into his defence by suggesting that they were consistent with such personal use.
Senior counsel for the appellant in his closing address at the trial said:
Indeed, right back to those text messages off the old phones from 2011, go and have a look at those. They're basically him trying to source some dexies, get hold of some drugs himself.
Some dealer. He's a consumer. That's what he was, he was a consumer. He wasn't a provider other than perhaps swapping and paying back some of the girls from Brakovic as to what he might have owed. And of course, that's a criminal offence. He shouldn't have done that. And he dealt with that [sic] somewhere else but it's not a consideration for you (ts 541).

Summing up

The learned trial judge told the jury that the real issue in respect of count 1 was whether the State had proved beyond reasonable doubt that the appellant was a party to the manufacture of methylamphetamine that resulted in the things found at the O'Connor premises. His Honour then said the following in respect of the parties to an offence:
It's important that you understand who the law provides is a party to an offence; that is, who is regarded as having committed it. The law provides that the following persons are deemed to have taken part in the commission of an offence and to be guilty of the offence; every person who actually does the act which constitutes the offence, hardly a surprise. Second, every person who does any act for the purpose of enabling or aiding another person to commit the offence and every person who aids another person in committing the offence.
To be guilty of an offence as a person who aids another person to commit and offence the law is that there must be actual knowledge of the facts amounting to the offence for which aid is to be lent. It is not enough, for example, that there is a mere suspicion that those facts existed. …
Anyone that you conclude was actually hands on in manufacturing the drug would obviously have committed the offence. And anyone who actually shared in the work that was part of the manufacturing, who did something even if it was measuring or stirring, or filtering whilst this process was going on would be aiding the manufacturer if they knew that the idea was to try to manufacture methylamphetamine and in doing that they aided the person or persons doing the cooking or manufacturing.
Even someone who wasn't actually present at the time of cooking or manufacture could be party to the offence by aiding if, for example, they played an organisational or supporting role by providing the materials, equipment or chemicals for manufacture or the facilities for manufacture knowing that what they were doing was enable another or others to carry out the manufacture of methylamphetamine. Conversely, merely being present at the scene of a crime, or even owning or occupying a place where a crime has taken place doesn't on its own constitute aiding in the commission of the offence.
Further matters must be proved by the State and that is that there must either be an act done for the purpose of enabling or aiding the offence, or aiding in the commission of the offence with knowledge of what was to occur, knowledge of the facts amounting to the offence alleged, in this case the manufacture of methylamphetamine (ts 572 ‑ 573).
His Honour then turned to counts 2 to 5. He told the jury that the question in respect of counts 2, 3 and 5 was whether the State had proved beyond reasonable doubt that the appellant possessed the drugs the subject of those charges. In respect of count 4, he told the jury that the appellant had admitted possessing the dexamphetamine in the shed and the issue was whether the appellant intended to sell or supply those drugs. His Honour gave detailed directions regarding the element of possession (ts 575 ‑ 576). He referred to the appellant's evidence and his admissions that he had possessed drugs for personal use. His Honour then noted that the prosecution case relied upon the drawing of inferences from the whole of the evidence (ts 593).
No specific directions were given in relation to the text messages. However, his Honour did give the following direction:
You don't decide the case based on prejudice or sympathy. It is entirely possible that you may have a negative view of people who use methylamphetamine or use drugs on a regular basis.
But of course you could never, and I'm confident you would not, convict someone of an offence charged on this indictment here simply because they were a drug user (ts 597).
After retiring to consider their verdict the jury asked the following question:
Can we have clarification of charge 1 in relation to the judge's summary regarding the elements of manufacturing? What constitutes enabling, supplying facilities and actual knowledge and knowingly aiding (ts 600)?
In regard to the question of knowledge, his Honour told the jury:
Now you've asked about this matter of knowledge. One of the examples that I gave you is that it's not just enough to be present at the scene of the crime. That doesn't make you responsible as a party to an offence. It's got to be more than that.
To be guilty of an offence as a person who aids another person to commit an offence, the law is that there must be an actual knowledge of the facts amounting to the offence for which aid is being led, not just a mere suspicion (ts 601).
His Honour then gave an example of a person who obtained precursors for another, knowing that they were to be used in order to manufacture methylamphetamine. He gave another example of a person who provides premises to others for the purpose of manufacturing methylamphetamine. In each case he stressed that the person would not be guilty as an aider unless the act was done for the purpose of enabling or aiding another person to commit the offence and with knowledge of what the other person was planning to do (ts 602). As his Honour put it, a person who knows that 'the whole point' of what that person is doing is the manufacture of a prohibited drug such as methylamphetamine and who does an act to assist in that is guilty as aiding in the commission of the offence (ts 602).
Senior counsel for the appellant at the trial did not raise any issue with the summing up or with the answer given by the trial judge to the jury's question. There was no request for any redirection.

Appeal against conviction - grounds of appeal

The grounds of appeal, as amended at the hearing, are as follows:
1.A miscarriage of justice was occasioned by the admission of nine text messages relied upon by the prosecutor as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA) (Evidence Act).
1A.The learned trial judge erred by failing to direct the jury as to the use that they could make of the propensity evidence the subject of exhibit 30.
1B.The learned trial judge erred by failing to give the jury a direction to the effect that the propensity evidence could not be used in support of the prosecution case on count 1.
2.A miscarriage of justice was occasioned by the failure of the learned trial judge to direct the jury as to the need for the State to provide 'intention to aid' with respect to count 1.

Propensity evidence - relevant principles

Propensity evidence includes evidence of the character or reputation of an accused person or the tendency that the accused person has or had. In order to be admissible the court must consider that it meets two criteria. Firstly, that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value (s 31A(2)(a)) Evidence Act. Secondly, that the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)(b)).
The principles relevant to s 31A were recently summarised in RMD v The State of Western Australia [2017] WASCA 70 by reference to the consideration of the authorities in DKA v The State of Western Australia [2017] WASCA 44 as follows:
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value [185].

Grounds 1, 1A and 1B - the appellant's contentions

The appellant contends that the text messages were admitted for the purpose of establishing that in the two or three years prior to the offending the appellant was a drug user who was familiar with 'that world'. The appellant submits that the text messages could not have rationally affected an assessment of the likelihood that the appellant did not know of the presence of the prohibited drugs found at his residence because those messages came from a period that was two to three years prior to the events the subject of the charges.
The appellant also refers to the fact that he gave direct evidence to the effect that at the time of the offending he had been using a variety of prohibited drugs and had been involved in the drug scene as a user for around seven or eight years. The implication was that the text messages were rendered largely irrelevant by the appellant's direct evidence of his prior drug use. Accordingly, the appellant submits that the text messages did not have significant probative value. The appellant refers to the fact that the judge who made the ruling did not refer to the balancing exercise regarding the risk of an unfair trial.
The principal complaint, however, is that the trial judge did not give a direction to the jury as to what use could be made of the text messages. The appellant also submits that the prosecutor went beyond the bounds of the basis on which the text messages were admitted by relying on them 'indirectly' with respect to the manufacturing charge.

Grounds 1, 1A and 1B - the merits

Lapse of time may be a factor relevant in assessing the probative value of propensity evidence. However, it is not the only factor and there is no rule that events occurring two or three years prior to the charges cannot be admissible as propensity evidence. In this case it was relevant to take into account that the text messages were capable of being interpreted as evidence not only that the appellant was a user of drugs, but that he had been in possession of the same types of drugs that were later found in his house, namely dexamphetamine, methylamphetamine and cocaine. Other cases demonstrate that previous drug convictions can have significant probative value, even after the lapse of many years: Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 and Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419.
In Preston, the offender had a drug conviction from 10 years earlier. There was no evidence of ongoing drug use. The evidence was held to have significant probative value in regard to the issue of the offender's knowledge as an element of possession. The offender in that case had denied knowledge of the drugs and relied on evidence that other occupants of the house had some involvement with methylamphetamine. The court held that the fact that the offender had possessed methylamphetamine with intent to sell or supply 10 years earlier was relevant to the jury's assessment of the defence case. To deprive the jury of the information regarding the prior conviction could leave the jury with the misapprehension that whilst the other occupants of the house had a connection with methylamphetamine, the offender did not.
In the present case, the appellant's defence was that other people had access both to his Como house and the O'Connor premises and that those people had criminal records and involvement in drug use or dealing. This evidence was relied upon to support an assertion that one or other of those associates was likely to be responsible for manufacturing methylamphetamine and for the drugs found at the appellant's home. Any assessment of the likelihood that someone other than the appellant was responsible for the drugs found in his home would be influenced by knowledge that he also had been involved in drug use (and possibly dealing) in respect of the same types of drugs some two to three years earlier.
The ruling in regard to the admissibility of the propensity evidence was made prior to the trial. There were no admissions at that stage regarding the appellant's past drug use. The admissions made by the appellant in his evidence at the trial may well have reduced the significance of the text messages by the end of the trial. That accounts for why so little attention was paid to them in the closing addresses of counsel and in the trial judge's summing up. However, admissibility is not retrospectively affected by admissions subsequently made by an accused person. At the commencement of the trial no admissions had been made and the evidence of past possession of drugs of the same types as those referred to in the charges was capable of affecting an assessment of the likelihood that the appellant was in possession of those drugs found at the Como house. Moreover, the appellant could have, but did not, make admissions and then renew the objection on the ground that, in light of the admissions, the text messages did not have significant probative value.
The judge who ruled that the propensity evidence was admissible did not expressly refer to the second question, that is, the question relating to the risk of an unfair trial. However, no issue was taken with this at the time. In fact, the appellant's defence case as presented to the jury sought to rely on the propensity evidence as being evidence of past drug use. The evidence was said to positively support the defence both because, on one interpretation, it indicated only relatively low‑level drug use and because it supported the appellant's contention that he knew people who could have been responsible for the manufacture and possession of the drugs with which he was charged. Furthermore, by the end of the trial the text messages no longer formed a significant part of the prosecution case in light of the appellant's admissions in his evidence. The prosecution case focused on the inferences that could be drawn from the evidence of what was found during the searches, what the appellant had said in the intercepted telephone calls and what he had done in purchasing isopropanol alcohol. There was no risk of an unfair trial and no unfairness resulted. In these circumstances no miscarriage of justice could possibly have been occasioned by the admission of the nine text messages. There is no merit in ground 1.
The alleged failure of the trial judge to direct the jury as to the use they could make of the propensity evidence needs to be viewed in the context of the trial and what were the real issues for determination by the jury. The effect of any direction would have been to tell the jury that the evidence was relevant only to the issue of whether the appellant as a past user of drugs was likely to be the person in possession of the drugs found at the Como house. No such direction was sought by the appellant's counsel, no doubt because the defence sought to rely on the evidence for other purposes. As we have earlier noted, by the end of the trial the significance of the propensity evidence had been largely overtaken by the appellant's own evidence. A direction regarding the use that could be made of the propensity evidence would have been confusing and distracting. Since the appellant relied upon the propensity evidence as supporting his defence case, a direction may not have been in his interests. The only real risk was that the jury might infer that the appellant was guilty of the offences simply because he was an admitted drug user, but this was a course of reasoning that the trial judge specifically warned the jury not to follow (ts 597). There is no merit in ground 1A.

In regard to ground 1B, the appellant submits that the propensity evidence was only admitted as being relevant to counts 2 to 5, that is the charges relating to the possession of drugs found at the Como house. It is submitted that the text messages could not be relevant to the question whether the appellant was involved in the manufacture of methylamphetamine as alleged in count 1. In these circumstances the appellant says that the trial judge should have given the jury a direction that the propensity evidence could not be used in respect of count 1. No such direction was sought at the trial and thus this ground, though it asserts an error of law, must establish a miscarriage of justice.
Contrary to the appellant's submissions, there was no suggestion by the prosecutor at the trial that the propensity evidence was relevant to count 1. The opening address by the prosecutor and the closing address by defence counsel referred to the propensity evidence as being relevant to the possession of drugs at the Como house. As noted earlier, the closing address of the prosecutor made no reference to the propensity evidence. The trial judge did not suggest that the propensity evidence was relevant to count 1. The suggestion appears to be that the jury would have followed a line of reasoning that no‑one suggested and was not obviously open, namely that simply because the appellant had sent text messages regarding drugs in 2010 and 2011 he was more likely to be a manufacturer in 2014. That risk is unrealistic in a context where the past drug use was admitted and a warning about merely assuming guilt on any of the charges because of past use was given. In light of all of the evidence as to the activities of the appellant in 2014 there is no realistic possibility that the propensity evidence would have been used to reason that the appellant was more likely to have been involved with the manufacture of methylamphetamine simply because there was propensity evidence of past use of a variety of drugs which was, in any event, a fact that he admitted. There is no merit in ground 1B.
For the above reasons, ground 1 cannot succeed. Grounds 1A and 1B have no reasonable prospect of succeeding and leave in respect of them should be refused.

Ground 2 - 'intention to aid'

The appellant submits that he suffered a miscarriage of justice by reason of the trial judge's failure to direct the jury that in order to convict him on count 1 on the basis that he aided another person to manufacture the methylamphetamine they must be satisfied beyond reasonable doubt that he intended to aid in the commission of the offence.
In Taylor v The State of Western Australia [2016] WASCA 210 Buss JA said at [58] ‑ [59]:
So, a person will not be criminally liable under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt that:
(a)a person or persons (the principal) has or have committed the offence;
(b)the person alleged to be the aider had actual knowledge of the facts amounting to the offence committed by the principal (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed or might be committed by the principal);
(c)the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and
(d)what the aider did or omitted to do actually aided or assisted the principal to commit or in committing the offence.
See Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure P; Buss JA & Mazza J agreeing); Bomford v The State of Western Australia [2014] WASCA 43 [63] (Mazza JA; Buss JA & Hall J relevantly agreeing); Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P; Buss JA relevantly agreeing generally & Mazza JA relevantly agreeing).
A person will do or omit to do something, with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts or omissions were willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence.
See also at [310] (Mazza JA) and [316] ‑ [317], [331] (Mitchell JA).
The appellant's short point is that the trial judge did not use the word 'intention' when referring to the possible liability of the appellant as an aider. Although his Honour did use the word 'purpose', it is submitted that this was insufficient and that the jury may have been misled. Senior counsel for the appellant was unable to explain how the jury may have been misled or what interpretation the jury could have placed upon the directions they were given that could have caused a miscarriage of justice.
The judge's direction must be considered as a whole. When that is done, there was no room for confusion or misunderstanding. His Honour's directions made it clear that the appellant's acts or omissions must be willed and that his purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence. The example given by his Honour in the course of his redirection also made that clear (ts 602). The directions plainly met the requirements for the jury to be directed in regard to the element of intention.
There is no merit in this ground of appeal.

Appeal against sentence - ground of appeal

There is one ground of appeal against sentence. It is as follows:
The total effective sentence breached the first limb of the totality principle, in that the total effective sentence is disproportionate to the overall criminality of the offending (particularly in view of the entirety of the offending and the circumstances of the case, including those referable to the appellant personally).

Findings of fact

In sentencing the appellant the trial judge made the following findings of fact. It is not contended that his Honour made any errors in his findings:
1.As early as February 2014, the appellant and Todd Marshall were engaged in the manufacture of methylamphetamine, or at least were attempting to do so.
2.When the O'Connor premises were searched, in addition to equipment necessary for the manufacture of methamphetamine, a number of large plastic containers with quantities of reaction waste were located. The amount of waste was between 180 and 200 litres. This established that methylamphetamine had been successfully manufactured. The precursor used was ephedrine and this shows that the manufacture was 'a step above the common or garden‑variety efforts that rely on cold and flu medications sourced from pharmacies and containing pseudoephedrine' (ts 632). The hot cooking method using red phosphorus and iodine was involved or attempted.
3.The appellant's DNA was found on a piece of duct tape and in gloves found at the O'Connor premises. Whether or not the appellant was the 'cook' or in overall charge of the manufacture could not be determined. However, his Honour was satisfied beyond reasonable doubt that the appellant played 'an integral role' in the manufacture by aiding in that process at his leased warehouse premises (ts 633).
4.The appellant was also involved with the refining of the finished product to ensure that it had a suitable crystalline structure and appearance in order to make it more marketable. The appellant had the knowledge to clean and to recrystallise methylamphetamine and provided assistance to his associates to engage in that process. His Honour did not accept the appellant's evidence that he only cleaned methylamphetamine for his own use.
5.The appellant operated a successful plumbing business and thus had a legitimate source of income. It was not necessary for him to engage in selling drugs to support his own use. His Honour described the appellant's involvement in the offending as 'entirely mercenary' and driven by 'a commercial motive', both with respect to the drug possession and the manufacturing (ts 636).
6.Whilst it was not possible to determine exactly what quantities of drugs were produced 'this was not what might be described as the basic cottage industry effort'. His Honour said that the appellant's conduct was not a 'highly sophisticated industrial effort' but was more sophisticated than 'the ordinary manufacturing efforts typically seen in prosecutions in this court'. He drew this conclusion from the equipment, the emphasis on crystallisation, the use of ephedrine as a precursor drug, the volume of waste material and the level of organisation. His Honour concluded that this was a commercial effort directed at production for on‑sale and not primarily, or even significantly, for the appellant's own use (ts 636).
7.The drugs and other evidence found in the appellant's Como house led his Honour to conclude that the appellant's involvement in trafficking was at least at a level about the middle of the hierarchy of the drug industry in this State.

Personal circumstances

The appellant was between the ages of 26 and 27 years old at the time of the offences and 29 years old when he came to be sentenced. He had the advantages of a secure upbringing and a good family. He completed year 12 at a private school before completing a plumbing apprenticeship. He became a licensed plumber and started his own business in 2008. The business was successful, with a turnover of approximately $500,000 annually (ts 637).
The sentencing judge accepted that the appellant was a drug user, though the extent of that use could not be determined without accepting the appellant's evidence in this regard, which his Honour was not prepared to do.
The appellant had no prior criminal convictions. Character references from friends, family and business associates spoke of his love and loyalty to his family and of his honesty and integrity. His Honour noted that the observations as to the appellant's honesty and integrity did not sit easily with the appellant's own evidence. His Honour further noted that none of the references expressed any concern about the appellant's associations or drug use.

Sentencing remarks

The judge gave the appellant credit for a history of work and educational accomplishments (ts 638).
Having referred to the matters noted above, his Honour said that the absence of earlier convictions was perhaps a matter of good luck because the evidence revealed an involvement in drugs that preceded the offending. On the appellant's own evidence he had been a consumer of significant amounts of methylamphetamine and dexamphetamine for some time prior to his arrest (ts 638).
His Honour referred to the appellant's age, but said that its mitigating effects were limited. He said that a substantial custodial sentence may be required in an appropriate case despite an offender's youth in order to properly reflect the needs for protection of the public and for personal and general deterrence (ts 639).
His Honour referred to the fact that the appellant had been found guilty following a trial and that there was no evidence of remorse or contrition. The appellant continued to maintain a story which his Honour described as being 'more than faintly ridiculous'. This was a reference to the appellant's claim that he had no involvement in the drugs or manufacturing and that associates had engaged in these activities at his home and business premises without his knowledge.
His Honour referred to the effect that drugs have on the lives of users and their families. He said that this type of offending was such that lack of a prior record and other matters personal to the appellant were of less significance and that general and personal deterrence were of greater importance in sentencing.
His Honour said that the weight and purity of the drugs found was a relevant factor in sentencing and that dealing for commercial gain is an aggravating factor when proved, as it was here (ts 640).
His Honour then said:
Looked at overall, it's apparent that you were deeply enmeshed in the drug trade up to and including manufacture. The manufacturing effort was a reasonably substantial one, not a cottage industry effort directed at own drug use. I'm satisfied beyond reasonable doubt that the purpose was manufacture for sale.
The amount of cocaine found, while not large, was nonetheless significant and the weight of methylamphetamine, while again not as large as we've seen in some cases in this court, was still substantial. The various quantities of dexamphetamine found, while nowhere as radical as the cocaine and methylamphetamine, were found in substantial quantities (ts 640).
His Honour then imposed the following sentences:

Count

Offence

Sentence

Count 1

Manufacturing methylamphetamine

3 years and 6 months' imprisonment

Count 2

Possession of methylamphetamine

3 years' imprisonment

Count 3

Possession of cocaine

12 months' imprisonment

Count 4

Possession of dexamphetamine

6 months' imprisonment

Count 5

Possession of dexamphetamine

6 months' imprisonment

In order to ensure that the total effective sentence bore a proper relationship to the overall criminality, his Honour directed that the sentences imposed on counts 1 and 2 be cumulative and that the other sentences be served concurrently. The total effective sentence was therefore 6 years and 6 months' imprisonment. The sentence was backdated to commence on 30 June 2016 and an order was made that the appellant be eligible for parole.

Merits of the appeal

The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed the appellant must establish that the aggregate sentence was plainly unreasonable or unjust.
The maximum penalty for each of the offences was a fine of $100,000 or imprisonment for 25 years or both: s 6(1)(a), s 6(1)(b) and s 34(1)(a) Misuse of Drugs Act 1981 (WA). That reflects the seriousness of offences of these types. Manufacturing prohibited drugs is a serious offence for the reasons stated by Mazza J in Rumenos v The State of Western Australia [2011] WASCA 59 [35] ‑ [36]:
The process of manufacturing methylamphetamine involves a conscious decision to bring into existence an illegal and dangerous substance. The process involves the acquisition of a 'recipe' (often easily obtained from the internet) and then the various chemicals and equipment necessary to produce the drug. The process itself carries with it significant danger. Noxious chemicals are used in the process of manufacturing methylamphetamine and that process can be, quite literally, explosive. Not only is the offender at risk of personal injury, but so are persons who are nearby, not to mention law enforcement officers and any fire and emergency personnel who may be called to the scene. Where, as occasionally happens, the process occurs in bush areas, there is a risk of bushfire.
It cannot be overlooked that what is being manufactured is a highly addictive drug which brings great misery. That misery includes the effect of the drug on the user and the consequential effect upon the user's family, friends and associates. Much crime is committed under the influence, and in further pursuit, of the drug.
The appellant did not seek to dispute the seriousness of the offences or the characterisation of them by the sentencing judge. It was accepted that the objective seriousness of the offending was towards the upper end of the middle of the scale of seriousness.
On the basis of the undisputed factual findings made by the trial judge, the appellant was engaged in a serious course of criminal conduct. He played a significant part in manufacturing an unknown quantity of methylamphetamine by providing the premises at which the manufacture occurred, by organising others, by obtaining and providing the necessary ingredients and by some involvement in the actual manufacturing process.
As his Honour found, this was a reasonably sophisticated manufacturing enterprise that was pursued for commercial profit. The quantities of drugs found at the appellant's home showed that he was in the business of selling or supplying a range of drugs. Though the quantities were not particularly high, all the evidence suggested that these were simply the drugs that the appellant had on hand at the time. The possession offences needed to be seen in the context of a continuing involvement in the manufacture, sale and supply of drugs.
As to the appellant's personal circumstances, the sentencing judge was correct in saying that personal circumstances, whilst not irrelevant, could only be accorded small weight when sentencing for offences of this nature. Specific and general deterrence had greater weight. To the extent that personal factors were relevant, the lack of a prior record and the favourable character references had to be offset against the evidence that the appellant was an admitted long‑term user of drugs and that the manufacturing offence had occurred over an unknown period of time.
Reference was made on the appeal to a small number of comparable cases. Those cases did not support the appellant's submission that the total effective sentence here was unreasonable. The cases relied upon were Skinner v The State of Western Australia [2012] WASCA 99; Smith v The State of Western Australia [2012] WASCA 91; Goddard v The State of Western Australia [2014] WASCA 59 and McRobb v The State of Western Australia [2015] WASCA 189. Four cases is a small sample from which to discern patterns of sentences customarily imposed. A conclusion that a sentence is high when compared with another case does not establish error. In any event, as explained below, none of the cases relied on by the appellant is a useful comparator to the present case.
In Skinner, the offender pleaded guilty to 35 counts of offering to sell or supply a prohibited drug, nine counts of supplying the prohibited drug, two counts of manufacturing methylamphetamine, one count of attempting to manufacture methylamphetamine, one count of receiving stolen property, two counts of aggravated burglary and numerous other offences dealt with by way of a notice under s 32 of the Sentencing Act 1995 (WA). The two offences of manufacturing methylamphetamine were committed while the offender was on bail for other similar charges. The burglary offences were committed against chemists for the purpose of obtaining drugs in order to manufacture prohibited drugs. A trial of issues was held to determine whether the offender was the principal offender. An appeal against a total effective sentence of 8 years' imprisonment was dismissed.
It is submitted by the appellant that the objective seriousness of the offending in Skinner was far greater than in his case. It is suggested that the sentence imposed on the appellant does not reflect the degree to which his offending was less serious than that of Skinner. However, those submissions fail to take into account that the offender in that case entered fast‑track pleas of guilty and that it was conceded by the prosecution that he was manufacturing drugs for his own personal use. The State did not ask the sentencing judge in Skinner to find as an aggravating feature that there was any commercial aspect to the manufacturing efforts and no such finding was made. That is in contrast to the appellant.
In Smith, the offender pleaded guilty to 130 offences, one of which related to the manufacture of home‑bake heroin. The other charges were 118 counts of offering to sell small quantities of heroin, one count of conspiracy to obtain heroin, six counts of selling heroin, one count of attempting to possess heroin, one count of possessing heroin, one count of possessing an unlicensed firearm and one count of possessing ammunition. The total weight of prohibited drug was approximately 40 g. A loaded handgun was found when the offender's home was searched by police. The offender had an entrenched heroin addiction and a long history of prior offending. A total effective sentence of 4 years' imprisonment was upheld on appeal. Although the offending in Smith was described as being of a methodical and concerted nature, it involved procuring small quantities of heroin from others and the manufacture of home‑bake heroin for sale or supply. The individual amounts sold and supplied were small and the explanation offered by the offender was that his dealing was to fund his own heroin addiction and that of his partner. A psychiatric report indicated that the offender's heroin dependency dominated his existence.

Smith is not a case that is truly comparable with that of the appellant. The nature and scale of the manufacturing operation in the appellant's case was of a different order. His motivation was clearly found to be commercial. Smith, unlike the appellant, pleaded guilty to his offences.
In Goddard, the offender was convicted after trial of one count of conspiracy to sell or supply a prohibited drug. The amount involved was 435 g of methylamphetamine. The offender was involved in an interstate drug importation ring and had a prior history of drug offences. A sentence of 6 years and 6 months' imprisonment was reduced on appeal to 5 years and 6 months' imprisonment.
Goddard is also not a useful comparator. Goddard was not convicted of manufacturing the drugs involved. The criminality in that case is not meaningfully comparable to that of the appellant. The appellant's criminality was characterised as being a principal in a reasonably substantial commercial enterprise in which he played a prominent role.
In McRobb the offender was convicted after trial of two counts of possessing cannabis with intent to sell or supply and one count of conspiracy to sell cannabis. The amounts involved in the first two counts were 10 kg and 20 kg, respectively. The offender held a substantial position not far removed from the source of the drugs in an interstate drug importation ring. He was involved for the sole purpose of commercial gain. A total effective sentence of 6 years' imprisonment was upheld on appeal.
McRobb is not a useful comparator. It does not involve an offence of manufacturing drugs and the possession offences related to a drug of a different type to those possessed by the appellant. Offences relating to cannabis attract a significantly lower maximum penalty. The nature and circumstances of McRobb's offences cannot usefully be compared to that of the appellant.
The respondent submitted that the severity or leniency of the individual sentences was relevant in evaluating whether the total effective sentence infringed the first limb of the totality principle. The sentences imposed in respect of each of the offences relating to methylamphetamine fall within a range consistent with the sound exercise of sentencing discretion. The sentences imposed on counts 1 and 2 were ameliorated by the order that the sentences of the other counts were to be served concurrently.
The State referred to the following cases in regards to sentencing for offences of manufacture of methylamphetamine: Rumenos; Lowe v The State of Western Australia [2015] WASCA 83; The State of Western Australia v Jenkin [2011] WASCA 171; Perry v The State of Western Australia [2012] WASCA 124; Bomford v The State of Western Australia [2013] WASCA 153; Dooling v The State of Western Australia [2012] WASCA 95; Lovett v The State of Western Australia [2013] WASCA 78; The State of Western Australia v Hyder [2011] WASCA 256 and White v The State of Western Australia [2007] WASCA 119. It is unnecessary to set out the facts of those cases. It is sufficient to note that the sentence imposed on count 1 for manufacturing methylamphetamine was not inconsistent with the sentences imposed in those cases.
In regard to offences of possessing methylamphetamine with intent to sell or supply the respondent referred to Tran v The State of Western Australia [2016] WASCA 37; Lynch v The State of Western Australia [2011] WASCA 243; Bui v The State of Western Australia [2014] WASCA 168; The State of Western Australia v Littlefair [2013] WASCA 177; Maric v The State of Western Australia [2015] WASCA 190; Cartwright v The State of Western Australia [2010] WASCA 4; The State of Western Australia v Reid [2012] WASCA 109; JM v The State of Western Australia [2015] WASCA 40 and Siskopoulos v The State of Western Australia [2006] WASCA 225. Again, it is unnecessary to set out the facts of those cases. It is sufficient to note that the sentence on count 2 was not inconsistent with the sentences imposed in those cases.
Though the sentences on counts 3 to 5 were ordered to be served concurrently and did not increase the total effective sentence, there is no basis for suggesting that those sentences were inappropriate given the amounts of drugs involved, the circumstances of the offending, the maximum penalties and the personal circumstances of the appellant.
Having regard to all the relevant circumstances there is no reasonable basis for the claim that the total sentence was disproportionate to the total criminality of the offending having regard to all relevant circumstances including those personal circumstances of the appellant. Leave to appeal in respect of the ground of appeal against sentence must be refused.

Conclusion and orders

Leave to appeal on grounds 1, 1A and 1B on the conviction appeal should be refused. Leave was granted on ground 2, but that ground cannot succeed for the reasons given. Leave to appeal in respect of the ground of appeal against sentence should also be refused. The orders we would make are as follows:

CACR 113 of 2016

1.Leave to appeal on grounds 1, 1A and 1B is refused.
2.The appeal is dismissed.

CACR 114 of 2016

1.Leave to appeal is refused.
2.The appeal is dismissed.

Count	Offence	Sentence
Count 1	Manufacturing methylamphetamine	3 years and 6 months' imprisonment
Count 2	Possession of methylamphetamine	3 years' imprisonment
Count 3	Possession of cocaine	12 months' imprisonment
Count 4	Possession of dexamphetamine	6 months' imprisonment
Count 5	Possession of dexamphetamine	6 months' imprisonment