Jey v The State of Western Australia
[2024] WASCA 86
•25 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JEY -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 86
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 20 MARCH 2024
DELIVERED : 25 JULY 2024
FILE NO/S: CACR 2 of 2023
BETWEEN: JEY JEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 3 of 2023
BETWEEN: JEY JEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 2474 of 2019
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of possessing large amounts of methylamphetamine and MDMA - Whether verdicts unreasonable or unsupported by the evidence - Whether the prosecutor made submissions that invited the jury to engage in improper reasoning
Criminal law - Appeal against sentence - Whether sentencing judge erred regarding the role of the appellant - Whether the sentence imposed breached the parity principle having regard to the sentence imposed on a co‑offender - Whether the individual sentences were manifestly excessive - Whether the total effective sentence breached the totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Extension of time to appeal refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 2 of 2023
Counsel:
| Appellant | : | In person |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 3 of 2023
Counsel:
| Appellant | : | In person |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Gaskell v The State of Western Australia [2018] WASCA 8
Kabambi v The State of Western Australia [2019] WASCA 44
Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176
Mehta v The State of Western Australia [2023] WASCA 24
Ngo v The Queen [2017] WASCA 3
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Ramachandran v The State of Western Australia [2021] WASCA 54
Rodgers v The State of Western Australia [2023] WASCA 52
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
The State of Western Australia v Edwards [2022] WASCA 141
JUDGMENT OF THE COURT:
The appellant was convicted after a trial in the District Court of two counts of possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Both offences were alleged to have been committed on 26 March 2019 in Dianella. Count 1 related to 32.515 kg of methylamphetamine. Count 2 related to 4.951 kg of MDMA.
The appellant was sentenced to 19 years 10 months' imprisonment on count 1, and 10 years' imprisonment on count 2. The two terms were ordered to be served concurrently. Accordingly, the appellant's total effective sentence was 19 years 10 months' imprisonment. The sentence was backdated to 3 October 2019 to take into account time spent in custody, and the appellant was made eligible for parole.
The appellant, who is self‑represented, seeks leave to appeal against both his conviction and sentence.
The appellant was sentenced on 22 December 2021. The notices of appeal against conviction and sentence were filed on 6 January 2023. Accordingly, the notices were approximately 11 months out of time and an extension of time is required. In an affidavit in support of his application for an extension of time, the appellant states that the delay is due to difficulties in obtaining a legal opinion and a transcript of the trial. The appellant provided a letter dated 8 January 2024 from the Court Transcript Officer of the District Court advising that it was not possible to provide audio recordings of District Court hearings. The appellant also provided a letter dated 22 January 2024 from the Legal Aid Commission advising that Legal Aid had been refused on a reconsideration. Both of those letters post‑date the filing of the appeal notice. This material does not adequately explain the significant delay. However, an extension may be granted if the court is satisfied that to deny an extension would result in a miscarriage of justice. This requires consideration of the merits of the grounds of appeal.
The appellant prepared his own grounds of appeal and written submissions. Whilst not in conventional form, they are relatively brief. In essence, the grounds of appeal against conviction are that the verdicts were unreasonable or not supported by the evidence, and that there was a miscarriage of justice as a consequence of submissions made by the prosecutor to the jury.
The grounds of appeal against sentence are, in essence, that the sentencing judge erred in finding that the appellant was involved in planning, organising or funding the drug enterprise; that the sentences infringed the parity principle having regard to the sentence imposed on a co‑offender; that the individual sentences are manifestly excessive; and that the total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, none of the grounds, against either conviction or sentence, has a reasonable prospect of success. Leave to appeal in respect of each ground should be refused. In those circumstances, an extension of time should also be refused. Consequently, both appeals must be dismissed.
Prosecution case
On 27 February 2019, the appellant, who was formerly known as Jeyakumar Jeyapalasingham, and his co‑offender, Rameshan Ramachandran, inspected residential premises in Dianella that were available for lease (Dianella property). Following the inspection Mr Ramachandran signed a six‑month lease for the Dianella property. The appellant signed the lease document as a witness to Mr Ramachandran's signature.[1]
[1] ts 90 - 91.
The appellant returned to Sydney, where he had lived for many years, before returning to Perth on 11 March 2019. From that time the appellant resided at a property in Morley (Morley property) which was approximately 4 km and a 10‑minute drive from the Dianella property. He regularly attended at the Dianella property. Mr Ramachandran was also residing elsewhere (at a property in Gosnells) and did not move into the Dianella property, but regularly met the appellant there.[2]
[2] ts 94.
From 11 March 2019, police conducted covert surveillance on the appellant and Mr Ramachandran. The movements of the appellant whilst under surveillance were not consistent with him undertaking any legitimate employment. The appellant was seen visiting the Dianella property on 12, 14 and 25 March 2019. On 14 March 2019, the appellant went to the premises with Mr Ramachandran. On 25 March 2019, the appellant met with a man named Daniel Sutton‑Mattocks at the premises. Mr Sutton‑Mattocks was arrested five days later, on 30 March 2019, and found in possession of 8 kg of methylamphetamine.[3]
[3] ts 94, 99.
On 26 March 2019, police operatives covertly entered the Dianella property to install surveillance devices. They discovered what was believed to be large quantities of drugs and this resulted in the obtaining of a search warrant. A search was conducted later that day. The appellant and Mr Ramachandran were not in attendance at the time. The house contained no furniture or personal belongings. In a rear bedroom, police located 20 large open clip seal bags containing a white crystalline substance, a duffle bag, a backpack, a plastic tub, a red suitcase and a black suitcase. The clip seal bags were stacked against a wall and were in plain sight of anyone who walked into the room. A crystalline substance was also found in the black suitcase. These items were seized and removed from the house.[4]
[4] ts 95.
The red suitcase was found to contain a number of plastic containers with lids, boxes of clip seal bags, loose clip seal bags, a heat seal machine, rolls of vacuum seal bags, digital scales, masks, a sieve and a salad spinner. The appellant's DNA was found on the inside surface of a pair of pink rubber gloves located inside the red suitcase. The backpack contained cryovac bags, some of which had been torn and had white crystalline residue in them, consistent with them having been opened and drugs removed. In one of the bags containing the drugs, police located a receipt for a vacuum cleaner and a sieve which had been purchased by Mr Ramachandran from a Kmart store on 13 March 2019.[5]
[5] ts 95.
All of the items referred to were seized by the police and removed from the house. The white substance was tested and found to consist of quantities of two prohibited drugs. In total, police found 32.515 kg of methylamphetamine with a purity of between 57% and 81%, with the vast majority having a purity of about 70%, and 4.951 kg of MDMA with a purity of between 65% and 75%, with the vast majority having a purity of about 66%. A chemical comparison revealed that the drugs that were later found in Mr Sutton‑Mattocks' possession were derived from the same batch as the methylamphetamine located in the Dianella property.[6]
[6] ts 96, 99 - 100.
On 28 March 2019 at about 10.15 am, Mr Ramachandran was observed attending the Dianella property alone. He was captured on surveillance device footage going to the rear bedroom and appeared to be concerned. He searched the house and then went outside and checked in the bins. He then drove to the Morley property. Shortly afterwards the appellant and Mr Ramachandran attempted to contact the owners of the Dianella property by text messages and telephone calls.[7]
[7] ts 96.
At about 1.00 pm that day, the appellant and Mr Ramachandran attended at the Dianella property together. When they arrived, they looked into three bins, which were located along the eastern side fence in the front yard of the premises. They then went into the house and were observed looking around the bedrooms. The appellant was recorded berating Mr Ramachandran in Tamil for losing the drugs and for not hiding them. They exited the house and looked in and around the garden beds and bins before leaving the property together and returning to the Morley property.[8]
[8] ts 96 - 97.
At about 4.35 pm on the same day, Mr Ramachandran sent a text message to the owner of the Dianella property asking when they could meet. The owner sent Mr Ramachandran a text message a short time later saying that he was unable to meet him. The appellant then sent the owner a number of text messages pleading to speak with him, indicating that property had been taken from the Dianella house which caused the appellant a lot of problems and placed him in danger.[9]
[9] ts 97 - 98.
At about 8.10 pm that night the appellant and Mr Ramachandran returned to the Dianella property and removed several white buckets. At about 8.37 pm, upon their return to the Morley property, the appellant and Mr Ramachandran were arrested. A search of the Morley property resulted in the finding of five mobile telephones, including two telephones that were encrypted. A cash counting machine was found in the kitchen.[10]
[10] ts 98.
The prosecution case was that the appellant and Mr Ramachandran used the Dianella property as a safe house to store prohibited drugs and that on 26 March 2019, when the drugs were first found by police, they jointly possessed those drugs with the intent to sell or supply them to others. Though the appellant did not reside at the Dianella property he exercised custody and control over the drugs, together with Mr Ramachandran.[11]
[11] ts 91, 102 - 103.
Prosecution evidence
As one of the grounds of appeal against conviction is that the verdicts were unreasonable or unsupported by the evidence it will be necessary to consider the evidence at the trial in some detail. Much of the prosecution evidence was not in dispute and there was little cross‑examination.
Michelle Mahoney and Elijah Nathan
Ms Mahoney and Dr Nathan were the owners of the Dianella property in 2019. The property comprised a front house and a back granny flat which were leased separately. The front house had three bedrooms and the granny flat had two bedrooms. Both were vacant at the beginning of 2019.[12]
[12] ts 108 - 109.
Ms Mahoney and Dr Nathan advertised the Dianella property on Gumtree and met with the appellant and Mr Ramachandran at the property on 27 February 2019. A lease agreement for the front house was signed on the same day. In the lease agreement Mr Ramachandran was listed as the tenant. The appellant told Ms Mahoney that he was helping Mr Ramachandran rent the property and she understood that was because the appellant spoke better English than Mr Ramachandran. The house was leased unfurnished.[13]
[13] ts 107 - 108, 110, 112 - 113, 186.
On 23 March 2019, Ms Mahoney and Dr Nathan visited the property and looked through the window. There appeared to be no furniture or personal belongings in the house. They spoke to the appellant and Mr Ramachandran, and Mr Ramachandran said that he was waiting for his wife to arrive from Sri Lanka as she wanted to choose the furniture.[14]
[14] ts 126 - 127, 129.
On 26 March 2019, Ms Mahoney and Dr Nathan visited the property again to show a prospective tenant the granny flat. Police officers were present and they were taken back to Morley Police Station. Ms Mahoney did not have any further contact with the appellant or Mr Ramachandran after 26 March 2019.[15]
[15] ts 126 - 128.
On 28 March 2019 at about 10.35 am, Dr Nathan received a call from Mr Ramachandran, which, on the instructions of the police, Dr Nathan did not answer. At 11.52 am, he received a text message from Mr Ramachandran, 'Hello Eli, can you call me, please?'. At 4.35 pm, he received another message from Mr Ramachandran, 'Eli, what time I can see you?'. 10 minutes later Dr Nathan replied saying that he could not meet due to a family crisis and that he would contact Mr Ramachandran as soon as possible.[16]
[16] ts 189 - 191.
At 5.42 pm the appellant sent a text message to Dr Nathan, 'Brother, can I see you today, please [sad face emoji]', to which Dr Nathan replied, 'Sorry, I sent a message to [Mr Ramachandran] explaining that I have a family crisis that I am dealing with and it is of vital importance I sort this out, my apologies'. At 6.02 pm the appellant sent another text message to Dr Nathan, 'Big bro, I'm in big problem. I need to talk to you then you decide what to do. Please'. Between 7.44 pm and 7.55 pm, the appellant sent the following further messages to Dr Nathan:[17]
Big bro, can I come see you now, please… Thanks
Bro things went missing from the house
Can you please call me thanks bro
Bro u don't understand what will happen to me please I beg u [crying face emoji] [sad face emoji]
I thought you are like brother please don't let me down, I never forget this favour… I am really sorry if I upset you in Anyway.
Senior Constable Tiffani‑Allyce Wood
[17] ts 191 - 194.
On 28 March 2019, Senior Constable Wood attended the Dianella property and commenced surveillance of the property. At 10.15 am, she observed Mr Ramachandran arrive at the Dianella property, driving a white Toyota van. Mr Ramachandran unlocked the front door and went inside the house. At about 10.16 am, he came back outside the property looking distressed and frantic. He walked across to two bins that were on the front verge, looked inside the bins and then moved one of them to the side of the driveway. Mr Ramachandran left the property at around 10.18 am.[18]
[18] ts 168 - 169.
Senior Constable Wood then observed a silver Mitsubishi Outlander arrive at the Dianella property at 1.04 pm. Mr Ramachandran was driving and the appellant was in the passenger seat. Both men got out of the vehicle and walked to the right side of the property. At 1.05 pm the appellant came out to the front of the property and looked in the bin on the right side of the driveway. Both men then approached the front of the property. Mr Ramachandran opened the flyscreen door and unlocked the door. The appellant walked inside first and Mr Ramachandran followed. Three minutes later, at 1.09 pm, the appellant came out of the property and Mr Ramachandran followed behind him and locked the door. The appellant walked down to the second bin that was on the front verge, had a look inside the bin and then moved it over beside the bin near the driveway. Mr Ramachandran again walked to the right‑hand side of the property for a short period and when he came back both men got back into the vehicle.[19]
Detective Sergeant Daniel Cochrane
[19] ts 169 - 170.
Detective Cochrane was the investigating officer.[20]
[20] ts 229.
Detective Cochrane reviewed a series of recordings captured on 28 March 2019 by the two surveillance devices installed inside the Dianella property. In the last recording the appellant can be heard speaking in Tamil. The translation of the words recorded on that audio was:[21]
Turn - turn on the lights. Everything was here. That's the problem. Why did you leave it open? You should have hid it - you should have hide it somewhere. When he entered once, he would have smelled/seen it. What else can I do with you? At least you should have put it in the cupboard. You had kept it from him to come and open it. Fuck the hell.
[21] ts 232 - 234.
In the evening of 28 March 2019, Detective Cochrane attended at the Morley property to conduct a search warrant. The appellant and Mr Ramachandran were both present at the property and were arrested. Police seized a red iPhone and a Samsung mobile telephone from Mr Ramachandran and a black Huawei mobile telephone from the appellant. A blue OPPO mobile telephone was seized from the appellant's bedroom and another Samsung mobile telephone was seized from under the refrigerator. A box containing a cash counting machine was located in the kitchen. Police examined the two Samsung mobile telephones but were not able to access the contents as they were encrypted. The type of encryption application used enabled the mobile telephones to be remotely wiped by a third party.[22]
[22] ts 237 - 238, 242 - 247.
The search was recorded, and the recording was tendered in evidence. During the search the appellant said that he was the only person residing at the Morley property and that he had been living there for three weeks. He said that Mr Ramachandran sometimes stayed overnight.[23]
[23] ts 239 - 240; exhibit 27; MFI 1.
During the search the appellant admitted that two of the mobile telephones belonged to him. When asked why he had two mobile telephones he said he had kept one because he liked the number. He denied that the mobile telephone found under the refrigerator was his but said he had seen it on the table the previous day. He said he did not know who that mobile telephone belonged to but said that it could belong to Mr Ramachandran. He admitted to touching the mobile telephone but could not explain why he had done so, other than that 'it was there'. He said he did not know how the mobile telephone had got under the refrigerator. He said that he did not know the PIN number for the mobile telephone.[24]
[24] Exhibit 27; MFI 1.
During the search, the appellant was shown the cash counting machine. He said that he had bought it a few weeks earlier on eBay for about $100. He said that he had not used the machine. When asked what use he had for the machine, he said that he did not need it and had bought it 'for fun because it was cheap'.[25]
[25] Exhibit 27; MFI 1.
During the search, the appellant was asked about his employment. He said that he had formerly worked as a courier but that he was presently working with Mr Ramachandran doing oven cleaning. He said that Mr Ramachandran paid him in cash for this work. He claimed that they earned about $800 ‑ $900 a week on average. He did not have pay slips and said that the cash was spent on living expenses. Some was put into the bank to pay rent.[26]
[26] Exhibit 27; MFI 1.
A white Toyota panel van and a grey Mitsubishi Outlander were parked outside the Morley property. The Mitsubishi Outlander was identified as a hire vehicle. Rental records showed that the appellant hired the car at Perth Airport on 18 March 2019. In the van police located packets of Ansell silver‑lined gloves. In the Mitsubishi Outlander a large number of buckets were found, which the appellant said were used for fishing. There were ten small buckets with yellow lids, five large buckets and three large buckets with white lids. He said he had picked up the buckets on the side of the road a couple of weeks earlier and they had not been taken out of the car since then. [27]
[27] ts 244 - 249; exhibit P27; MFI 1.
After the search ended, the appellant was taken to the Organised Crime Squad office where he was interviewed by police. The interview was recorded and the recording was produced in evidence.[28]
[28] ts 249 - 250.
In the police interview, the appellant said that he had previously lived in Sydney for 20 years. He had flown from Sydney to Perth on 11 March 2019 and had since been living at the Morley property, which was leased in his name. The rent was $350 per week. He was also contributing to the rent on a property in Sydney that he shares with others. He said he was working cleaning ovens. He said that he had known Mr Ramachandran for more than 10 years and that he knew him from Sydney. He said that he knew no one else in Western Australia. He said he had made a previous trip to Perth in February 2019.[29]
[29] Exhibit P31; MFI 2.
In the police interview the appellant said that he had memory loss. He said that this was because he had lead poisoning and had been hit on the head with a hammer seven or eight years ago. He said that this made it hard for him to remember what he did after arriving from Sydney on 11 March 2019. Soon after this the appellant said that he did not want to answer further questions until he had spoken to a lawyer. The interview was then terminated.[30]
[30] Exhibit P31; MFI 2.
The appellant was formerly named Jeyakumar Jeyapalasingham. He changed his name to Jey Jey in 2007. A change of name certificate was registered in New South Wales on 14 November 2007.[31]
[31] ts 253.
Mr Sutton‑Mattocks was arrested in Coolgardie on 30 March 2019. At the time he was driving a gold Holden Captiva. A number of packages were found in the vehicle and seized. The packages contained a white crystalline substance which was analysed at the ChemCentre. The substance was found to be methylamphetamine with a total weight of just over 8 kg and a purity of between 36% and 46%.[32]
Detective Senior Constable Ben Horsnell
[32] ts 263 - 265, 267.
On 26 March 2019 at approximately 5.30 pm, Detective Horsnell attended the Dianella property to execute a covert search warrant. During the search the following items were seized: 20 large clip seal bags, some containing a white crystalline substance and others containing a brown substance, pink gloves, a black suitcase, a red suitcase, a black duffel bag, large sandwich bags, digital scales, cryovac bags, a FoodSaver bag machine, dust masks, a salad spinner, a sieve and a silicone brush. The white crystalline substance was later confirmed to be methylamphetamine and the brown substance was confirmed to be MDMA.[33]
Samuel Cornwall
[33] ts 137 - 139, 142 - 160.
Mr Cornwall is a forensic scientist at Pathwest and conducted testing on DNA samples received from WA Police.[34]
[34] ts 299 - 300.
In relation to the gloves seized at the Dianella property, a mixed DNA profile was recovered from DNA samples taken from the inside surface of the left glove. That DNA profile is consistent with coming from Mr Ramachandran and the appellant. A mixed DNA profile was also recovered from the inside surface of the right glove. It is 6.4 billion times more likely that the appellant was a contributor to that mixed profile than if it came from two unknown individuals.[35]
[35] ts 308 - 309.
Forensic testing was also conducted on the black duffle bag found in the rear bedroom at the Dianella property. A mixed DNA profile was recovered from the double handles of the bag. It is more than 100 billion times more likely that Mr Sutton‑Mattocks was a contributor to that profile than if it came from unknown individuals. A mixed profile was also recovered from the exterior zips of the bag. It is more than 100 billion times more likely that Mr Sutton‑Mattocks was a contributor to that profile and 100 times more likely that the appellant was a contributor to that profile than if it came from unknown individuals.[36] Mr Cornwall could not exclude the possibility that the appellant was not a contributor to the profile found on the exterior zips, and that there had just been an adventitious or coincidental match.[37]
Rohan Edmunds
[36] ts 309 - 311.
[37] ts 309, 311.
Mr Edmunds is a chemist from the ChemCentre who conducted testing on the methylamphetamine seized by police. He undertook a comparison of samples taken from the methylamphetamine seized by police at the Dianella property and the methylamphetamine seized from Mr Sutton‑Mattocks in Coolgardie. By comparing impurities, by‑products and purity in the two samples he concluded that they were likely to have originated from the same synthesis batch.[38]
Tanya Sutton‑Mattocks
[38] ts 286 - 288, 291 - 292.
Ms Sutton‑Mattocks is Mr Sutton‑Mattocks' aunt. She gave evidence that over the weekend of 24 and 25 March 2019 Mr Sutton‑Mattocks travelled from Adelaide to Perth. Sometime in the afternoon of 25 March, Mr Sutton‑Mattocks arrived at her house in a Holden Captiva. She said that the car had 'a lot of stuff in it' and that Mr Sutton‑Mattocks carried a black overnight bag that had a zipper down the middle and two handles on either side.[39]
[39] ts 198 - 201.
Mr Sutton‑Mattocks left the house on 26 March 2019. He said that he was attending an induction for a work site. Ms Sutton‑Mattocks did not see Mr Sutton‑Mattocks again until 29 March 2019 when he stayed the night. He left the house the following day. She could not recall whether he still had the black bag.[40]
Sergeant Karli Jager
[40] ts 201 - 202.
Sergeant Jager was on duty on 30 March 2019 patrolling the Great Eastern Highway in Kalgoorlie with another police officer. She received intelligence that a gold Holden Captiva was travelling towards Kalgoorlie and that it may contain prohibited drugs. At around 10.42 am, she saw the vehicle at the Coolgardie Caltex service station. Mr Sutton‑Mattocks was driving the vehicle. The vehicle was stopped and searched and drugs were located.[41]
Detective Senior Constable Gavin Gourgaud
[41] ts 203 - 206.
Detective Gourgaud also attended the Caltex service station in Coolgardie on 30 March 2019. He gave evidence that police conducted a search of the Holden Captiva by removing the panel behind the rear seats. He observed a compartment below the spare tyre which contained two bags of a white substance.[42] The Holden Captiva was then towed to the Kalgoorlie Police Station where a further search of the vehicle was conducted. Eight bags containing a white substance were found in a metal compartment under the spare tyre.[43]
Detective Senior Constable Stephen Ryan
[42] ts 207 - 209.
[43] ts 212 - 214.
On 12 March 2019, Detective Ryan was on surveillance duties when he received information that the appellant had been observed attending at the Dianella property and leaving a short time later. He was asked to perform a traffic stop on the Mitsubishi vehicle that the appellant was driving.[44]
[44] ts 220 - 221.
A search of the vehicle was conducted and a sealed brown cardboard box was found in the boot. When asked what was inside the box, the appellant initially said he did not know what was in it and that he would have to check his phone. The appellant consented to opening the box and opened it himself. Inside the box was a cash counting machine which the appellant said he had purchased from eBay 'for fun', or words to that effect. The machine was replaced and Detective Ryan left the scene.[45]
Liam McNally
[45] ts 219 - 224.
Mr McNally is the Director of Operations for the Australian Criminal Intelligence Commission (ACIC) in Western Australia. He gave evidence that the appellant was a person of interest to an operation probing suspected money laundering and ancillary drug trafficking activities. As part of the operation, ACIC conducted surveillance of the appellant in early March 2019. On 12 March 2019, the appellant was seen walking from the front door of the Dianella property with a large cardboard box which he put into the rear of a silver Mitsubishi vehicle before driving off.[46]
[46] ts 282 - 283.
Mr McNally agreed that he had been shown a document indicating that the appellant had completed an online order for a cash counting machine on 24 February 2019, with the delivery address being the Dianella property. He said that ACIC were not aware of this purchase prior to the traffic stop on 12 March 2019.[47]
Detective Senior Constable Jason Bonser
[47] ts 283 - 284.
Detective Bonser is attached to the National Anti‑Gang Squad. He gave expert evidence regarding the drug trade and the value of drugs. He said that in the first quarter of 2019 the average purity of methylamphetamine seized was around 71%. The indicia of drug sale and supply include heat‑sealing machines, cryovac bags, cash counting machines and encrypted communication devices. Safe houses are commonly used to store drugs and provide distance between the supplier and the wholesaler. The renter of the house is usually a person without a criminal record so as not to attract the attention of the police. Equipment for repackaging the drugs into smaller quantities is often found at safe houses.[48]
[48] ts 317 - 326.
Detective Bonser said that encrypted devices using the program Ciphr (as used here) were quite expensive and a six‑month contract could cost from $3,500 to $4,500. The use of that program normally requires the purchase of a Spanish SIM card.[49]
[49] ts 322 - 324.
In 2019, the average wholesale price for a kilogram of methylamphetamine was $90,000. The average wholesale price for a half kilogram was $69,000. Generally, the larger the quantity purchased the cheaper the drug is per gram.[50]
Surveillance evidence
[50] ts 321.
Evidence was given by surveillance officers that the appellant was under observation from 11 March 2019. At 10.12 pm that evening, the appellant was observed at Perth Airport. He collected a bag from baggage claim and then hired a Mitsubishi vehicle from a car hire company. He drove to the Morley property.[51]
[51] Closed court ts 5.
On 12 March 2019, the appellant was observed driving to a shopping centre. Later that day he drove to the Dianella property. He reversed the vehicle into the driveway and loaded a large cardboard box from the house into the vehicle. He also put a fishing rod and a large duffel bag into the vehicle. After leaving the property the appellant drove to Manning, where he was pulled over by an unmarked police car. He then drove to Bentley before returning to the Morley property.[52]
[52] Closed court ts 6, 8 - 10.
On 13 March 2019, the appellant drove to Bentley, where he collected an item in a white plastic bag. He then returned to the Morley property.[53]
[53] Closed court ts 11.
On 14 March 2019, a man driving another vehicle arrived at the Morley property and he and the appellant then drove in convoy to the Dianella property. At the property both men entered the house. After staying at the house for a short time, the appellant drove to a shop and then returned to the Morley property. That evening he was observed driving to shops in Morley and Beechboro.[54]
[54] Closed court ts 11 - 15, 22 - 26.
On 15 March 2019, Mr Ramachandran arrived at the Morley property driving a white van. He left soon after. Later that day the appellant drove to a house in Ballajura. The appellant was observed leaving the house with several white envelopes. He then drove to a house in Kewdale. The appellant was observed leaving that house carrying a white satchel and a white plastic bag. He then drove back to the Morley property.[55]
[55] Closed court ts 29 - 33.
On 18 March 2019, the appellant drove to a bank in Morley. He then drove to a shopping centre before returning to the bank. He then drove to liquor store in East Perth, where he met an unknown person. He then drove back to a shopping centre in Morley, before returning to the Morley property.[56]
[56] Closed court ts 35 - 42.
On 25 March 2019, the appellant was seen at the Dianella property. He left that property driving a different Mitsubishi vehicle. He drove to a house in Craigie. He then drove to a shopping centre in Morley before returning to the Morley property. Later that day the appellant drove back to the Dianella property. On arrival there, he opened the garage door and reverse parked the Mitsubishi vehicle he was driving. Sometime later a gold Holden Captiva arrived at the property.[57]
[57] Closed court ts 43 - 46.
On 26 March 2019, Mr Ramachandran was seen at the Dianella property. He drove from there in a Mitsubishi vehicle to the Morley property. Later that day, operatives entered the Dianella property to install surveillance devices and found the drugs and other items. As a result a search warrant was executed and the drugs and other items were seized.[58]
[58] Closed court ts 53 - 54, 57 - 60,
On 27 March 2019, the appellant attended a gym and an ATM machine at a shopping centre. That evening he drove from the Morley property to the Dianella property, where he stopped for one minute. Later he drove to a reserve where he met Mr Ramachandran.[59]
[59] Closed court ts 64 - 72.
On 28 March 2019, in the early hours of the morning, both the appellant and Mr Ramachandran drove their separate vehicles to the Morley property. Later that morning, Mr Ramachandran drove his white van to the Dianella property. He stayed there for three minutes before returning to the Morley property. That afternoon at 12.55 pm, the appellant and Mr Ramachandran drove together from the Morley property to the Dianella property in the same vehicle. They were observed looking into bins, into the letterbox and in and around garden beds. They then departed from the Dianella property and drove back to the Morley property. Later that afternoon at 5.02 pm the appellant and Mr Ramachandran drove together in the Mitsubishi vehicle to Morley, Bassendean and Beechboro before returning to the Morley property. That evening, they again drove together to the Dianella property in the same vehicle. They were seen walking to and from the residence and placing items into the boot of the vehicle.[60]
[60] Closed court ts 64 - 75, 77 - 78, 81 - 83.
Defence evidence ‑ the appellant
The appellant elected to give evidence at the trial. He was the only defence witness.
The appellant said that he was born in Sri Lanka in 1977 and moved to Australia in 1997. Since coming to Australia, he has lived in Sydney and Melbourne. In December 2004, he worked at a service station and was a victim of armed robbery from which he sustained various injuries and was off work for nearly a year. He changed his name in 2007 because his new name was easier to pronounce.[61]
[61] ts 334 - 337.
Between 2016 and 2017, the appellant worked as a courier delivering car parts. At a friend's suggestion he borrowed $10,000 from a friend and purchased a van and worked as a courier driver. In early February 2019, he sustained a back injury and stopped working as a courier. He made some inquiries about getting other work and met a man who introduced himself as Victor. Victor said that he might have a vacancy in a couple of months. He offered the appellant another job in Perth on the basis that the appellant would travel to Perth for three weeks and return to Sydney for a week. The job involved picking up cash and dropping it off to Victor's friend in Perth, for which the appellant would be paid $3,000 a week plus expenses. The appellant accepted the offer.[62]
[62] ts 338 - 343.
Sometime later the appellant and Victor met again. At the second meeting Victor gave the appellant an encrypted mobile telephone and showed him how to use it. The appellant accepted that this was the mobile telephone seized by police on 28 March 2019 from under the refrigerator at the Morley property. Victor told the appellant that he would arrange a ticket for the appellant to fly to Perth and would call the appellant a day before to let the appellant know when he was going. The appellant exchanged text messages with Victor using the mobile telephone and noticed that the messages disappeared after a period of time.[63]
[63] ts 343 - 346.
Sometime after the second meeting, Victor sent a text message to the appellant saying that he had purchased tickets and asked the appellant to pack some clothes and meet him the next day. The appellant met with Victor the next day. A person named Rup was also present. Victor said that Rup would be going with the appellant to Perth and that after picking up the money in Perth the appellant must give it to Rup. Victor transferred some money to the appellant's bank account and told him to rent a car and book a hotel for himself and Rup.[64]
[64] ts 346 - 348.
The appellant and Rup travelled to Perth, rented a car and checked into a hotel in Como. Sometime later they moved to an Airbnb, as instructed by Victor. At some point, the appellant messaged Victor saying that he could not stay with Rup because Rup was 'dirty'. With Victor's permission, the appellant then moved to another Airbnb by himself.[65]
[65] ts 348 - 350.
Sometime later the appellant received further instructions from Victor asking him to take everything from the Airbnb where Rup was staying. The appellant entered the Airbnb and noticed a suitcase that contained a crystal substance which looked like rock salt. The appellant believed the substance to be drugs and messaged Victor asking if it was, to which Victor answered 'yes'. The appellant then said that he would not touch the drugs, to which Victor replied 'Okay, just leave it and go. I'll come and see you in a couple of days'. The appellant took some pictures of the house and sent them to Victor.[66]
[66] ts 350 - 352.
A few days later the appellant received a message from Victor asking the appellant to come in a taxi to see him for drinks. The appellant caught a taxi and met with Victor at a restaurant in the city. When asked, the appellant again refused to move the suitcase to his place. He said that if he did so it would harm his family. He told Victor that he could not do the work and that he wanted to go back to Sydney, to which Victor replied '[until] I find someone, you had to be there'.[67]
[67] ts 350 - 354.
The appellant and Mr Ramachandran had shared accommodation in Sydney. At this time Mr Ramachandran was living in Perth. Before going to see Victor, the appellant had arranged for Mr Ramachandran to pick him up from the restaurant. Victor asked if Mr Ramachandran could rent a house for him and offered to furnish the house for Mr Ramachandran and his wife to live in. Victor also offered to pay visa fees for Mr Ramachandran's wife. After leaving the restaurant the appellant told Mr Ramachandran that 'they're drug dealers and they're asking you to get a place so they put drugs in'.[68]
[68] ts 354 - 356.
Sometime later Victor instructed the appellant to rent a place using Mr Ramachandran's name and another place using the appellant's name. Mr Ramachandran leased the Dianella property and the appellant leased the Morley property. The appellant again told Victor that he wanted to return to Sydney and Victor said that he had to wait until he found someone to replace him. He said that Victor started to become bullying and rude in their dealings.[69]
[69] ts 356 - 359.
The appellant said he ordered the cash counting machine to be sent to the Dianella property in order to alert the police as he believed the police would trace it and discover the drugs at the house.[70]
[70] ts 359 - 362.
The appellant returned to Sydney and met with Victor in a car park on 2 March 2019. At this stage he believed that there were drugs in the Dianella property and did not plan to return to Perth. He said that he could not go directly to the police as he feared that Victor would hurt him or his daughter. The appellant told Victor he did not want to return to Perth and asked Victor to transfer the lease for the Dianella property and the Morley property into someone else's name. He included the Dianella property in this request as he understood that Mr Ramachandran also did not want to continue with the work.[71]
[71] ts 366.
Sometime later the appellant and Victor met again in the same car park. Victor told the appellant that Mr Ramachandran had agreed to stay in Perth and that the appellant must return to Perth. The appellant refused and was punched in the jaw by another man who was also present. Victor then said to the appellant 'you better go [on the 11 March 2019], I know where you live', and 'You don't want to make us angry'.[72] The appellant said that he felt threatened and scared.[73]
[72] ts 367 - 368.
[73] ts 369.
On 11 March 2019 the appellant returned to Perth, hired a car at Perth Airport and drove to the Morley property. He said he did not want to return to Perth but did so because he had been threatened, because they were forcing him to go, and because he felt that he did not have a choice. The appellant said that he thought that if he didn't go back to Perth '[t]hey'd probably hurt me. And they know where my kid lives.'[74]
[74] ts 369.
The appellant relied on what he said occurred at the meeting with Victor, and on the effect it had on him, in support of a defence of duress for the purposes of s 32 of the Code. At the end of the trial the trial judge gave the jury directions which required them to consider whether the State had proved, beyond reasonable doubt, that the appellant's alleged acts of possession on 26 March 2019 were not done under duress.[75]
[75] ts 747 - 753.
He had access to the Dianella property as a spare key was left on an air conditioner near the carport. On 12 March 2019, he went to the Dianella property and left with a box containing the cash counting machine and a black bag containing clothes. The appellant said that when stopped by police on 12 March 2019 he did not tell them that the Dianella property was going to be used to store drugs because he feared he would 'get into trouble with these people' and that they would come after him.[76]
[76] ts 370 - 373.
On 25 March 2019, on Victor's instructions, the appellant went to the Dianella property to open the door for a man driving a Holden Captiva. The appellant was given a black duffle bag by the man and left it in the bedroom adjacent to the laundry where the two suitcases were. He also gave a white bucket to the man. The white bucket had a lid on it. The white bucket and the black bag were both heavy. He suspected that the white bucket contained drugs and that the black bag contained 'something to do with drugs'.[77]
[77] ts 383 - 386.
The appellant said before going back to Sydney in early March 2019 he had not seen any suitcases or duffle bags or any bags containing a white crystal substance at the Dianella property. He said that between when he came back from Sydney on 11 March 2019 and 26 March 2019, he saw the two suitcases in the Dianella house. He said he did not see the contents of the red suitcase (clip seal bags, digital scale, vacuum sealer and dust masks). The appellant said that he had worn the pink rubber gloves that were found in the red suitcase for oven cleaning work with Mr Ramachandran. He said he did not put the gloves in the red suitcase.[78]
[78] ts 386 - 390.
The appellant said that on 28 March 2019, at around 10.20 am, Mr Ramachandran came to the Morley property and told him that 'everything went missing'. The appellant then received instructions from Victor to 'go and check for it', which the appellant refused to do. He said he then received threatening messages from Victor saying 'if you don't find it you both are dead'. The appellant said he also received threatening messages from a person named 'Cash Man' and another person named 'Black Label'. The appellant said he scolded Mr Ramachandran for things having gone missing because he was threatened by Victor. He said he was instructed by Victor to send messages to Dr Nathan and offer Dr Nathan $100,000 if he '[gave] the things back'.[79]
[79] ts 391 - 392, 394 - 395, 397 - 399.
The appellant said that the Ansell gloves found in the van were gloves used for oven cleaning and the buckets in the rear of the van were for fishing.[80]
[80] ts 402.
Cross‑examination
In cross‑examination, the appellant accepted that he did not mention Victor or that he was in fear of his life during the execution of the search warrant or the interview with police. He also accepted that on the day of his arrest he lied to police about the Samsung mobile telephone that Victor had given him. He said at the first meeting Victor begged him to take the job in Perth and offered him $3,000 a week, which was close to double what he was earning at the time. The appellant said that he was not initially aware that Victor was involved in drugs and he did not find the job offer suspicious.[81]
[81] ts 418 - 423, 428 - 433.
The appellant said at the second meeting Victor gave him an encrypted Samsung mobile telephone and asked him to remember a 10‑digit code to access the phone. He said he did not find this suspicious because he thought moving cash was lawful.[82]
[82] ts 433 - 436.
The appellant said that the first time he had seen drugs was around 23 February 2019, approximately two weeks after first arriving in Perth. He agreed that the first person he contacted when he saw drugs was Victor. He said he did not contact the police because he was worried he would get into trouble. He agreed that Victor had not made any threats to him at this point but said that he was too scared to call the police.[83]
[83] ts 458 - 461, 467.
The appellant said Victor was 'bullying and rude' so he agreed to help Mr Ramachandran lease the Dianella property. He said that on his first trip to Perth he did not do anything else for Victor apart from organising the rental property in Dianella.[84]
[84] ts 477, 481.
The appellant was then asked about various transactions in his bank account statement. He agreed that a $5,000 deposit was part of $9,000 that Victor was to pay him. He said that a $1,150 transfer to 'Kundi Sex' on 20 February 2019 was a repayment to a friend of money he had borrowed to buy a van, a $101.01 transfer to 'Sexy Vaiya' on 22 February 2019 was a payment to a friend who was a mechanic and had repaired his van, and that a $200 transfer to 'Kundi Sex' on 24 February 2019 was to a friend who had asked to borrow money. The prosecutor then put to the appellant that he had passed the time in Perth by visiting sex workers and the appellant disagreed. Other cash deposits and payments were also referred to.[85]
[85] ts 482 - 484.
The appellant accepted that the Dianella property had no purpose other than to store drugs. The appellant said that on 12 March 2019, when he went to the Dianella house to pick up his clothes and the cash counting machine, he did not see drugs in the house but accepted that by 25 March 2019, he was aware that there was a substantial quantity of drugs in the house.[86]
[86] ts 517, 529 - 530.
When shown the surveillance device footage of him berating Mr Ramachandran in the Dianella house the appellant said he was angry at Mr Ramachandran because he had been threatened by Victor. He agreed that he sent various messages to Dr Nathan on 28 March 2019 as he was instructed by Victor to do so.[87]
[87] ts 536, 538 - 539.
The appellant accepted that he lied when he told police that the white buckets in the back of his car were picked up from the side of the road. He said that after realising that the drugs had gone missing he and Mr Ramachandran drove back to the Dianella house, removed the buckets and put them in the appellant's car. It was put to the appellant that the reason for removing the buckets was a concern that they could be linked to him and the appellant disagreed.[88]
[88] ts 542.
Conviction appeal ‑ grounds of appeal
As noted earlier, the appellant is self‑represented. His grounds of appeal contain a combination of assertions and submissions. By order of the court,[89] the grounds of appeal in the conviction appeal are taken to be:
1.the convictions were unreasonable or not supported by the evidence; and
2.there was a miscarriage of justice by reason of the prosecutor's submission to the jury that the appellant lied in stating that the money sent to 'Sexy Vaiya' was for a sex worker.
[89] Order of Mazza JA dated 8 August 2023.
Conviction appeal ‑ Ground 1 ‑ relevant legal principles
The relevant legal principles applicable to a ground of appeal that asserts that, having regard to the evidence, a verdict is unreasonable or cannot be supported, are well established and uncontroversial. The relevant principles were outlined by this court in Rodgers v The State of Western Australia.[90]
[90] Rodgers v The State of Western Australia [2023] WASCA 52 [35] ‑ [48].
As was noted in Rodgers, consistently with statements of the High Court in Pell v The Queen,[91] the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury and not of the appellate court.
[91] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] ‑ [38].
The question for the appellate court is whether, upon its examination of the record, by reasons of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt.[92] Framed differently, the central question is whether the assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which cannot be assuaged by reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial.[93]
[92] Pell [39].
[93] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [16]; Rodgers [44].
In criminal cases that turn upon circumstantial evidence, the following principles apply:[94]
1.The jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
2.The jury can only be satisfied of the guilt of the accused if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
3.For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
4.In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[94] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
Conviction appeal ‑ Ground 1 ‑ disposition
The appellant contends that his convictions are unreasonable because he claims that he did not know he was being conscripted into illegal activity when he was first invited to work for the drug dealing syndicate. He further submits that his actions in ordering a money counting machine to be sent to the Dianella property, using his own name, was for the purpose of alerting police that illegal activity was occurring at those premises, and was inconsistent with him being willingly involved in drug trafficking.[95] These were contentions that the appellant advanced in his evidence at the trial. Indeed, his evidence was the only evidence in this regard. The appellant's argument is, essentially, that it was not open to the jury to reject this evidence and that it should have caused them to have a reasonable doubt as to his guilt.
[95] WAB 7.
Determination of whether or not the appellant's evidence at trial was credible, reliable or might reasonably be true was a matter for which the jury enjoyed the distinct advantage of having seen the appellant give his evidence. An examination of the trial record reveals no reason to think that it was not open to the jury to reject the appellant's account.
The claim that the appellant did not believe or, at least, reasonably suspect that he was being conscripted into illegal activity when he was first invited to work for the drug dealing syndicate is inherently implausible. On the appellant's evidence, upon meeting Victor for the first time, he was offered a job for a couple of months, working in Perth on a three‑week on/one‑week off roster for $3,000 per week plus expenses. The job was purely to collect money from one person and deliver it to another, without any explanation of why that task required a person to travel from Sydney to Perth. Victor gave the appellant an encrypted mobile telephone worth thousands of dollars and communicated only in text messages that were self‑deleting. Victor provided no more than a day's notice of when the appellant would be travelling to Perth, and required him to collect the tickets in person. For the appellant to maintain, as he did, that these circumstances did not cause him to suspect that he was being recruited into illegal activity, stretches credulity to breaking point.
In any event, even if the jury accepted the appellant's account regarding his knowledge at the time he accepted the job, this does not necessarily give rise to a reasonable doubt about his guilt. Proof of the charges did not depend upon the jury positively finding that the appellant knew he was being asked to engage in illegal activity from the commencement of his involvement. On his own evidence he became aware that drugs were involved at a relatively early stage and that the Dianella property was to be used as a safe house. He said that he told Mr Ramachandran that the house was to be used as a safe house for drugs before it was leased. He continued to work for the syndicate and received payments into a bank account that he controlled. His only explanation for his continuing involvment was fear of personal repercussions, an explantion the jury plainly rejected.
The suggestion that the appellant was seeking to alert the authorities to the drug dealing activities by ordering a cash counting machine in his own name is, on its face, highly illogical. That the police would be monitoring all online purchases of cash counting machines, and would trace the delivery of such an item and discover the drugs, seems an unrealistic assumption. If the appellant was truly an unwilling participant and was seeking to draw the attention of the police, this would seem to be a most uncertain and unlikely means to achieve that objective. Furthermore, it is implausible that, if the appellant's motive in ordering the cash counting machine was to alert the police, he did not mention it on any of the occasions when the cash counting machine came up for discussion with the police. That would include the traffic stop on 12 March 2019 when the police found the cash counting machine in the appellant's vehicle.
There were also inconsistencies and contradictions in the appellant's account that were relevant to an assessment of his credibility. These included his initial denial that the encrypted mobile telephone found under the refrigerator was his and the false account of finding the white buckets by the side of the road. The appellant also initially claimed that he was working in Perth with Mr Ramachandran cleaning ovens, but in evidence at the trial he gave an entirely different account of his work in Perth. His berating of Mr Ramachandran when it was discovered that the drugs were missing was not consistent with a person who was an unwilling participant in the drug enterprise and his explanation for that conduct was implausible.
None of the matters raised by the appellant in respect of ground 1 give rise to a concern that, having regard to the evidence, the jury's verdict was unreasonable or unable to be supported by the evidence. It was plainly open to the jury to reject the appellant's evidence in its entirety.
The ground of appeal raised by the appellant requires the court to look beyond the arguments raised by the appellant and to examine the whole of the trial record in order to undertake its own assessment of the sufficiency and quality of the evidence. An examination of that kind reveals no anomaly, inconsistency, inherent implausibility, discrepancy or other inadequacy that suggests that the jury ought to have held a reasonable doubt about the appellant's guilt.
The evidence at trial was readily capable of establishing beyond reasonable doubt that the appellant was aware of the existence of the drugs (a fact that he admitted in his evidence), that he exercised control over those drugs and that in doing so he intended to possess them. In particular, the evidence was capable of establishing:
1.The appellant travelled to Perth from Sydney to engage in work that, even on his own version of events, was indicative of criminal activity;
2.The appellant had an involvement in the leasing of the Dianella property that was used as a safe house for storing drugs;
3.The appellant resided at a rental house that was a short drive from the Dianella property;
4.The appellant had the ability to access the Dianella property and attended there on multiple occasions, including on 25 March 2019 when he provided Mr Sutton‑Mattocks with a container that, it could be reasonably inferred, contained drugs;
5.The DNA of the appellant was found on items located at the Dianella property that were connected with the drugs;
6.The appellant purchased a cash counting machine that was delivered to the Dianella property and collected it from there when it arrived;
7.The appellant had multiple mobile telephones, including one that was encrypted; and
8.When the appellant discovered that the drugs were no longer at the Dianella property he berated Mr Ramachandran for having taken insufficient care and sought to meet with the owner of the property urgently in an effort to recover the drugs.
Having concluded that the appellant was in possession of the drugs on 26 March 2019, it was also open to the jury to find that the State had proved beyond reasonable doubt that the appellant was not acting under duress. The only evidence that the appellant was acting under duress came from the appellant himself. For reasons that we have already expressed, the jury was entitled to reject the appellant's evidence in its entirety.
Even if the jury concluded that it was reasonably possible that the appellant's evidence that he was assaulted and threatened when he returned to Sydney and met with Victor in a car park on 2 March 2019 was true, it was well open to the jury to find that the appellant's acts of possession that occurred later on 26 March 2019, after he had returned to Perth, were not a reasonable response to any threat in the circumstances as the appellant believed them to be.[96]
[96] Code, s 32(2)(b).
The appellant accepted in cross‑examination that he had plenty of opportunities to seek assistance from police.[97] It is well accepted that people who are under threat should take reasonable opportunities to render those threats ineffective, by reporting their circumstances to police or other appropriate authorities and seeking their protection, rather than commit serious criminal offences.[98]
[97] ts 543.
[98] Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176 [129] (Buss P), [218] (Mazza JA).
It was also very much open to the jury to find that the appellant's evidence that he was concerned that he would be hurt, that he would 'get into trouble',[99] that they would 'come after me', that they knew where he and his daughter lived, and that '[t]hey'd probably get me killed or anything would happen' if he did go to the police,[100] did not constitute reasonable grounds for a belief that there was no option other than to break the law in order to escape the execution of a threat.[101]
[99] ts 543.
[100] ts 547. Marchesano [130] (Buss P), citing Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [40] ‑ [41] (French CJ, Heydon, Crennan, Kiefel & Bell JJ).
[101] Code, s 32(2)(a)(iii) and s 32(2)(c).
It was well open to the jury to conclude, beyond reasonable doubt, that the appellant was guilty of each of the charges. Further, on our own assessment of the evidence we do not have a reasonable doubt as to the guilt of the appellant. There is no merit in ground 1, it has no reasonable prospect of success, and leave to appeal in respect of it should be refused.
Conviction appeal ‑ Ground 2 ‑ disposition
During his evidence‑in‑chief, the appellant tendered two bank statements from a Commonwealth Bank Complete Access account for the period 1 November 2018 to 30 April 2019.[102] In cross‑examination, the appellant was asked questions about various transactions and his explanations for them. The appellant was then asked about three specific transactions, namely:
20 February $1,150 Kundi Sex
22 February $101.01 Sexy Vaiya
24 February $200 Kundi Sex
The appellant said that these transactions were transfers of money to friends as payment for a loan on a van, to a mechanic, and to repay a loan of money, respectively. In cross‑examination, the appellant was asked if he visited sex workers whilst in Perth. The appellant denied that he did.[103] No further questions were asked about these transactions.
[102] ts 415; exhibit D3.
[103] ts 482 - 484.
Ground 2 asserts that the prosecutor occasioned a miscarriage of justice by submitting to the jury in his closing address that the appellant was lying about whether the transaction described as 'Sexy Vaiya' in his bank statement was a payment to a sex worker. It can be assumed that a similar complaint is made about the entries for 'Kundi Sex'. The implication is that the prosecutor unfairly accused the appellant of lying or invited the jury to take into account matters that had no relevance and that were prejudicial to the appellant.[104]
[104] WAB 7.
In oral submissions on the appeal, the appellant conceded that there were no references to these entries in the transcript of the prosecutor's closing address but submitted that the transcript was inaccurate. He conceded that his basis for this claim was solely his own recollection.[105]
[105] Appeal ts 27.
This ground of appeal is misconceived because there is no evidence that a submission of the type claimed by the appellant was made by the prosecutor to the jury. The transcript of the prosecutor's closing address reveals no reference to this evidence. That is unsurprising, given that it was a comparatively insignificant matter in the context of the trial as a whole.
The suggestion by the appellant that the transcript is inaccurate or incomplete is a mere assertion unsupported by any evidence. The transcript of the closing address does not appear to have any omissions or obvious inaccuracies. There is no reason to believe that it is an inaccurate record of the proceedings.
The appellant's recollection that submissions were made by the prosecutor in this regard may derive from comments made during legal discussion as to the proper finding of facts that should be made on sentencing. In this context, the prosecutor mentioned the relevant evidence in support of a submission that the learned trial judge ought to reject the appellant's account.[106] This, of course, was not a submission made to the jury and it occurred after the verdicts when the jury had been discharged.
[106] ts 811.
The appellant's claim that the prosecutor submitted to the jury that the appellant was lying in regard to his use of sex workers is without merit. This ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.
Sentence appeal ‑ grounds of appeal
The grounds of appeal against sentence, in essence, are as follows:[107]
1.The sentencing judge erred in finding that the appellant was involved in the planning, organising or funding of the offending.
2.The sentences infringed the parity principle.
3.The individual sentences were manifestly excessive.
4.The total effective sentence infringed the first limb of the totality principle.
[107] WAB 113.
Personal circumstances
The appellant was born on 15 May 1977 in Sri Lanka. He was aged 41 at the time of the offences.[108]
[108] BGAB 390.
Due to the civil war in Sri Lanka the appellant fled to India with his family in 1983. He completed his schooling in India to the equivalent of year 12. He then commenced a Bachelor of English Literature degree and was in the first year of that degree when he came to Australia.[109]
[109] BGAB 390.
The appellant arrived in Australia in about October 1997, when he was 20 years of age. He claimed refugee status. He was detained in an Immigration Detention Centre for approximately six months before being released into the community. After his release he worked in service stations as a console operator.[110]
[110] BGAB 390.
The appellant commenced a relationship with a woman in 2000. He and his partner had a daughter in 2002. At the time of sentencing his daughter was aged 19. The relationship ended but the appellant and his partner continued to reside together until 2010.[111]
[111] BGAB 390 - 391.
In 2004, the appellant was shot during a robbery at the service station where he was working. He spent about two weeks in hospital. He had a number of serious injuries, including collapsed lungs. His spleen was removed. He continues to suffer severe back pain and other effects. He was unable to work for a period whilst he recovered from his injuries. He later received a compensation payout.[112]
[112] BGAB 391.
The appellant then undertook some work for a friend's real estate business. He also obtained qualifications in mortgage broking and started to work in that field. He continued to do that work until 2010 when interest rates went up and he was not making much money. He then opened a pizza shop, but the business failed, and he was left owing money to friends and family from whom he had borrowed.[113]
[113] BGAB 392.
In 2011, the appellant was charged with dishonesty offences in New South Wales, for which he was ultimately convicted. In 2014, he was sentenced to 6 years' imprisonment. He was released in August 2015.[114]
[114] BGAB 392.
The appellant did various jobs between 2015 and 2017, including working as a courier. He borrowed money and bought a van for this purpose. In early 2019, he injured his back whilst working. It was in that context that he accepted the work in Perth.[115]
[115] BGAB 392.
Sentencing remarks
The learned sentencing judge commenced by making findings in respect of two discrete issues raised in the course of sentencing submissions: the extent to which the appellant's evidence to the effect that he was acting under duress could be accepted; and the appellant's position in the hierarchy of this particular drug dealing syndicate as compared with that of the co‑offender, Mr Ramachandran. Her Honour found as follows:[116]
[116] ts 831 - 832.
At trial, you defended these offences on two bases.
Firstly that you knew that there were drugs in the house but did not have possession of them. That is, you didn't have control over the drugs and nor did you have any intention to exercise control over the drugs and secondly, that if the jury was satisfied that you were in possession of the drugs, then you were in possession of them because you were acting under duress.
By the jury's verdicts, they have rejected your evidence and have accepted that you were in possession of the drugs either: (1) As a voluntary participant in this drug dealing enterprise without acting under any duress whatsoever. Or (2) as a participant in this drug dealing enterprise acting under non‑exculpatory duress.
I have been asked to make a determination on this issue. After having listened to your evidence and to the submissions made by your counsel and counsel for the prosecution, I have determined that you were a voluntary participant in this drug dealing enterprise and that you were not acting under duress whatsoever.
You travelled to Perth and returned to Sydney on the occasions that you did because that was your role in the syndicate and you did so without any duress whatsoever. That is what you signed up to do.
I have come to that determination on the whole of the evidence, including a consideration of your evidence. In relation to your evidence, I've determined that you were not a witness of the truth on the significant issues in this trial.
In fact, your evidence on some matters significant or less significant in this trial were so incredible or implausible as to be unbelievable. In my view, your evidence on the whole was so unreliable that it should not be accepted on any significant issue without some independent supporting evidence.
In addition, I have been asked to make a finding regarding your role and the position in which you sat in the hierarchy of the drug syndicate as compared to Mr Ramachandran. In my view, you and Mr Ramachandran undertook very similar roles; so similar that they're not worth splitting. Your roles were to run a safe house for a large quantity of drugs, and given the large quantity of drugs found in the house and the very open way in which they were stored in the rear bedroom, you could be left in no doubt about the size of the drug syndicate operation.
Your responsibilities included but [were] not limited to maintaining [the Dianella property] as the lessee of the property, even though it was not leased in your name, storing the drugs, repackaging the drugs for further distribution as required, acting as a conduit to pass the drugs on to others and moving cash as required.
I'm also of the view that the [Dianella property] was selected as the property to warehouse drugs in because of its proximity and convenience to where you were living at the time, which was [the Morley property].
In terms of where you sat in the hierarchy in relation to Mr Ramachandran, I'm of the view that you are Mr Ramachandran's superior. I make this determination based on the whole of the evidence, which included the following.
On your evidence, Mr Ramachandran came into the syndicate after you did and after you introduced him to Victor, the person you say you were working for in this drug syndicate and you must have vouched for him to Victor in order to give Victor the confidence to trust Mr Ramachandran.
I also rely on the evidence that you had the Ciphr phone and were in direct contact with Victor. I also rely on the recorded interactions between you and Mr Ramachandran when you both realised that the drugs were not in the rear bedroom of [the Dianella property] on 28 March, particularly when you chastised Mr Ramachandran for the drugs going missing.
The sentencing judge was satisfied that the appellant knowingly and intentionally provided 8 kg of methylamphetamine to Mr Sutton‑Mattocks and that doing so was part of his role in the drug syndicate.[117]
[117] ts 836.
The sentencing judge found that she was unable to determine how or why the appellant became involved in this drug syndicate but accepted that the appellant was being paid $3,000 cash each week, plus expenses such as airfares, accommodation and a hire car, for his role in the enterprise. Her Honour found that the appellant voluntarily participated in this role because he was paid well to do so.[118]
[118] ts 839.
In terms of the appellant's personal circumstances, the sentencing judge noted that the appellant was not of prior good character, having served a term of 6 years' imprisonment in New South Wales for offences related to credit card fraud in 2011. Her Honour found that the appellant derived no credit for remorse and (unlike the co‑offender, Mr Ramachandran) derived no benefit from an early plea of guilty. Her Honour was prepared to give the appellant some credit for the expeditious manner in which the appellant conducted the trial. Her Honour found that she was unable to make any findings concerning the appellant's prospects of rehabilitation.[119]
[119] ts 841 - 842.
The sentencing judge found that the appellant would be required to serve his term of imprisonment in Western Australia isolated from family and friends, and that this would make imprisonment more onerous for him.[120]
[120] ts 842.
As to the seriousness of the offending, her Honour noted the significant quantity of drugs involved and the potential value of the methylamphetamine of nearly $3 million, if sold in 1 kg lots. Her Honour then stated:[121]
When looked at in its entirety, you have played a critical role in the distribution of drugs of addiction into our community on a large scale for your own personal financial gain. The damage you have ravaged upon our community or the potential damage by doing so would have been incalculable.
[121] ts 843.
Sentence appeal ‑ Ground 1 ‑ disposition
By this ground, the appellant contends that the sentencing judge erred in finding that he was involved in the planning, organising or funding of the offending. In his written submissions, the appellant states:[122]
There was no evidence to suggest that the appellant was involved in the planning, organising or funding of the operation of drug trafficking. There was no evidence that the appellant exercised any authority over other people involved in the syndicate.
This paragraph echoes a passage in the decision regarding the co‑offender: Ramachandran v The State of Western Australia.[123] Viewed in that light, it would appear that this ground is directed towards an assessment of the seriousness of the appellant's offending, rather than an allegation of specific error.
[122] WAB 114.
[123] Ramachandran v The State of Western Australia [2021] WASCA 54 [62].
However, to the extent that the ground of appeal asserts a specific error, it is without merit. The sentencing judge, at no stage, made a finding to the effect that the appellant was involved in the planning, organising or funding of the offending. Insofar as her Honour made findings regarding the appellant's role in the syndicate, those findings were plainly open on the evidence.
Ground 1 has no reasonable prospect of success and leave in respect of it should be refused.
Sentence appeal ‑ Ground 2 ‑ sentencing of the co‑offender
The appellant's co‑offender, Mr Ramachandran, was charged with the same offences as the appellant. On 14 February 2020, he pleaded guilty to both charges and received a discount on his sentences of 22% pursuant to s 9AA of the Sentencing Act 1995 (WA). Mr Ramachandran was initially sentenced to a term of 19 years 10 months' imprisonment for count 1, and 8 years' imprisonment for count 2. The sentences were ordered to be served concurrently, and Mr Ramachandran was made eligible for parole.[124]
[124] Ramachandran [1] - [2].
Mr Ramachandran appealed his sentences alleging, inter alia, that the term of 19 years 10 months' imprisonment imposed for count 1 was manifestly excessive. The appeal was successful in respect of that ground. He was resentenced to a term of 16 years' imprisonment on count 1. The original sentence of 8 years' imprisonment on count 2 was not disturbed. In resentencing Mr Ramachandran, this court allowed the same 22% discount for his pleas of guilty as had been allowed at first instance.[125] The decision of Ramachandran had been published well before the appellant was sentenced, and it was the new sentence of 16 years' imprisonment that her Honour took into account when sentencing the appellant and is the relevant comparator for present purposes.[126]
[125] Ramachandran [3].
[126] ts 843 - 844.
Sentence appeal ‑ Ground 2 ‑ relevant legal principles
The legal principles applicable to the parity principle were summarised by Buss P in Ngo v The Queen:[127]
[127] Ngo v The Queen [2017] WASCA 3 [36] ‑ [39].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co‑offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].
As was noted by this court in Mehta v The State of Western Australia,[128] absent any express error in the application of the parity principle, the degree of disparity to be imposed in the sentences of two co‑offenders is, within the limits of a reasonable exercise of discretion, a matter for the discretionary judgment of the sentencing judge. The issue is not whether an appellate court would have exercised the qualitative and discretionary judgment in relation to parity differently, but whether the result is unreasonable or plainly unjust such as to give rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.
[128] Mehta v The State of Western Australia [2023] WASCA 24 [204], [208].
Sentence appeal ‑ Ground 2 ‑ disposition
In this case, the sentencing judge expressly considered the operation of the parity principle in the course of her sentencing remarks as follows:[129]
A matter that looms large in this sentencing consideration is the issue of parity. Your co‑offender, Mr Ramachandran, was charged with the same two offences. He was convicted of his own admissions and was sentenced to 16 years' imprisonment in count 1 and eight years' imprisonment in count 2. These sentences were ordered to be served concurrently.
Some of the - Mr Ramachandran was 30 years of age so he was younger than you and like you, he was born and raised in Sri Lanka. He of course, pleaded guilty and he got a 22 per cent discount for that plea. You don't get that discount. I find that in these circumstances that the issue of parity as between you and Mr Ramachandran does rise.
[129] ts 843 - 844.
Ground 2 can only be made out if this court is satisfied that the disparity in the sentence imposed on the appellant as compared to that imposed on Mr Ramachandran is such as to raise a justifiable sense of grievance. In considering that question, the appropriate comparator is the term of 19 years and 10 months' imprisonment imposed on the appellant after trial for his total offending and the term of 16 years' imprisonment imposed on Mr Ramachandran following a 22% discount for his pleas of guilty.
The difference in the two aggregate sentences is explicable by the mitigatory effect of Mr Ramachandran's pleas of guilty and the sentencing judge's finding that the appellant was superior to Mr Ramachandran in the hierarchy of this particular drug syndicate.[130] In addition, Mr Ramachandran's antecedents were more favourable than the appellant's antecedents.
[130] ts 832.
The appellant's submissions to the effect that he ought to have received a sentence closer to (or the same as) that imposed on Mr Ramachandran depend upon assertions as to his culpability that were expressly rejected by the verdicts of the jury and by the findings of the sentencing judge. It has not been demonstrated that the difference in the aggregate sentences imposed upon the appellant and Mr Ramachandran is such as to engender a legitimate or justifiable sense of grievance. Ground 2 has no reasonable prospect of success and leave in respect of it should be refused.
Sentence appeal ‑ Grounds 3 and 4 ‑ manifest excess and totality
Grounds 3 and 4 allege the existence of implied error in the length of the individual sentences imposed for counts 1 and 2 and in the length of the total effective sentence.[131] The two individual sentences were ordered to be served concurrently, such that the total effective sentence is the same as the individual sentence imposed for count 1.
[131] WAB 114.
Sentence appeal ‑ Grounds 3 and 4 ‑ relevant legal principles
The legal principles that apply in respect of an allegation that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well known. They were discussed by this court in Kabambi v The State of Western Australia.[132] Those principles have been restated on many occasions and, for ease of reference, they are as follows:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[132] 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 when fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm that may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or drug trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[133]
[133] Ramachandran [53], citing Gaskell v The State of Western Australia [2018] WASCA 8 [128].
Sentence appeal ‑ Grounds 3 and 4 ‑ disposition
The maximum penalty for possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) is life imprisonment where the drug possessed is a trafficable quantity of methylamphetamine (count 1) and otherwise a fine not exceeding $100,000 or imprisonment for a term of 25 years or both (count 2).
In the present case, considerable assistance is derived from this court's decision in Ramachandran, particularly the discussion of sentences imposed in comparable cases that appears at [54] ‑ [60]. The sentencing standards relevant to drug offending involving large quantities of drugs were also recently discussed in The State of Western Australia v Edwards.[134] Significantly, in that case, the court emphasised that there is no direct linear relationship between the quantity of drugs involved in a given offence and the length of sentence that might properly be imposed for that offence.
[134] The State of Western Australia v Edwards [2022] WASCA 141 [35] ‑ [43].
Whilst it may be accepted that the appellant was not involved in the planning, organising or funding of the drug trafficking operation and was not the ultimate beneficial owner of the drugs in question, he was nonetheless an important player and was found to be Mr Ramachandran's superior. The syndicate that the appellant worked for reposed a high degree of trust in him. His offending involved more than one interstate trip to Western Australia and participation in the leasing of residential premises, one of which he knew was to be used as a safe house to store drugs. The use of a safe house and encrypted devices allowed those higher up the chain of command to escape detection. The appellant engaged in this offending for purely commercial gain and, in doing so, introduced the co‑offender, Mr Ramachandran, into criminal activity. The appellant derived no mitigation on account of early pleas of guilty, youth or prior good character.
Having regard to the maximum penalties for the offences, the standard of sentences customarily imposed, the place that the criminal conduct occupies on the scale of seriousness of crimes of this type, and the offender's personal circumstances, the individual sentences imposed for counts 1 and 2 cannot be said to be unreasonable or plainly unjust. Nor can it be reasonably argued that the total effective sentence was disproportionate to the total criminality. Grounds 3 and 4 have no reasonable prospect of success and leave in respect of them should be refused.
Conclusion
None of the grounds of appeal against either conviction or sentence has a reasonable prospect of succeeding. Leave in respect of each of them should be refused. In those circumstances, an extension of time should be refused and the appeal should be dismissed.
Orders
Conviction appeal - CACR 2 of 2023
1.Extension of time refused.
2.Leave to appeal refused.
3.Appeal dismissed.
Sentence appeal - CACR 3 of 2023
1.Extension of time refused.
2.Leave to appeal refused.
3.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Research Associate to the Honourable Justice Hall
25 JULY 2024
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