Jneid v The State of Western Australia

[2018] WASCA 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JNEID -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 67

CORAM:   BUSS P

MAZZA JA

CHANEY J

HEARD:   19 DECEMBER 2017

DELIVERED          :   11 MAY 2018

FILE NO/S:   CACR 149 of 2016

BETWEEN:   RABIH JNEID

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 150 of 2016

BETWEEN:   ZIAD JNEID

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 185 of 2016

BETWEEN:   NIKOLA OBRADOVIC

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number             :   IND 118 of 2015

Catchwords:

Criminal law - Appeals against sentence - Appellants convicted of supplying a prohibited drug or possessing a prohibited drug with intent to sell or supply - Whether the sentencing judge made any material errors of fact - Additional evidence sought to be adduced as to the impact of imprisonment on two of the appellants and their families - Manifest excess - Parity principle

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a), s 39, s 40(1)(e)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA

Result:

CACR 149 of 2016
Application in the appeal for leave to adduce additional evidence dismissed
Leave to appeal on grounds 1, 2, 3 and proposed ground 5 refused
Appeal dismissed

CACR 150 of 2016
Application in the appeal for leave to adduce additional evidence dismissed
Leave to appeal on grounds 1, 2, 3 and proposed ground 4 refused
Appeal dismissed

CACR 185 of 2016
Appeal dismissed

Category:    B

Representation:

CACR 149 of 2016

Counsel:

Appellant	:	Mr I Hill QC & Ms M S Perling
Respondent	:	Mr J C Whalley

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

CACR 150 of 2016

Counsel:

Appellant	:	Mr D Grace QC & Mr S Nigam
Respondent	:	Mr J C Whalley

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	Director of Public Prosecutions for Western Australia

CACR 185 of 2016

Counsel:

Appellant	:	Mr M R Gunning
Respondent	:	Mr J C Whalley

Solicitors:

Appellant	:	Gunning Young
Respondent	:	Director of Public Prosecutions for Western Australia

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

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Bees v The State of Western Australia [2017] WASCA 202

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Chen v The State of Western Australia [2017] WASCA 114

Chen v The State of Western Australia [2017] WASCA 99

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Galbraith v The State of Western Australia [2011] WASCA 70

Gaskell v The State of Western Australia [2018] WASCA 8

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

I (a child) v The State of Western Australia [2006] WASCA 9

Jardim v The State of Western Australia [2011] WASCA 83

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Kezkiropoulos v The State of Western Australia [2018] WASCA 58

Kitis v The State of Western Australia [2013] WASCA 34

Kobeissi v The State of Western Australia [2016] WASCA 188

Le v The State of Western Australia [2015] WASCA 73

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Mather v The State of Western Australia [2017] WASCA 148

Mikulic v The State of Western Australia [2011] WASCA 127

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

Mountain v The State of Western Australia [2009] WASCA 161

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Nembousse v The State of Western Australia [2015] WASCA 68

Neumann v The State of Western Australia [2013] WASCA 70

Ng v The State of Western Australia [2017] WASCA 124

Ozan v The State of Western Australia [2013] WASCA 27

Pedersen v The State of Western Australia [2010] WASCA 175

Penney v The State of Western Australia [2011] WASCA 71

Pham v The State of Western Australia [2011] WASCA 244

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Taudevin [1996] 2 VR 402

Ruvinovski v The State of Western Australia [2013] WASCA 204

Separovic v The State of Western Australia [2018] WASCA 36

Sherrif v The State of Western Australia [2017] WASCA 185

Speering v The State of Western Australia [2008] WASCA 266

Stokes v The State of Western Australia [2016] WASCA 87

Tago v The State of Western Australia [2018] WASCA 59

The State of Western Australia v Chapman [2012] WASCA 203

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Hyder [2011] WASCA 256

Tomov v The Queen [2011] WASCA 189

Vagh v The State of Western Australia [2007] WASCA 17

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Wheeler v The Queen [No 2] [2010] WASCA 105

Ye v The State of Western Australia [2016] WASCA 103

Yiu v The State of Western Australia [2016] WASCA 172

Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

Table of Contents

Mr Ziad Jneid:  the facts and circumstances of his offending

Mr Rabih Jneid, Mr Obradovic and Mr Russell:  the facts and circumstances of their offending

Mr Ziad Jneid and Mr Rabih Jneid abscond while on bail

Mr Ziad Jneid and Mr Rabih Jneid:  their personal circumstances and antecedents and the sentencing judge's sentencing remarks

Mr Obradovic and Mr Russell:  their personal circumstances and antecedents and the sentencing judge's sentencing remarks

Mr Ziad Jneid's appeal:  grounds of appeal

Mr Ziad Jneid's appeal:  application in the appeal to adduce additional evidence and add an additional ground of appeal

Mr Ziad Jneid's appeal:  the organisation of the balance of these reasons

Mr Ziad Jneid's appeal:  ground 1:  his submissions

Mr Ziad Jneid's appeal:  ground 1:  its merits

Mr Ziad Jneid's appeal:  ground 3:  his submissions

Mr Ziad Jneid's appeal:  ground 3:  its merits

Mr Ziad Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 4:  his submissions

Mr Ziad Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 4:  their merits

Mr Ziad Jneid's appeal:  ground 2:  his submissions

Mr Ziad Jneid's appeal:  ground 2:  its merits

Mr Ziad Jneid's appeal:  conclusion

Mr Rabih Jneid's appeal:  grounds of appeal

Mr Rabih Jneid's appeal:  application in the appeal to adduce additional evidence and add an additional ground of appeal

Mr Rabih Jneid's appeal:  the organisation of the balance of these reasons

Mr Rabih Jneid's appeal:  ground 1:  his submissions

Mr Rabih Jneid:  ground 1:  its merits

Mr Rabih Jneid's appeal:  ground 2:  his submissions

Mr Rabih Jneid's appeal:  ground 2:  its merits

Mr Rabih Jneid's appeal:  ground 4:  his submissions

Mr Rabih Jneid's appeal:  ground 4:  its merits

Mr Rabih Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 5:  his submissions

Mr Rabih Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 5:  their merits

Mr Rabih Jneid's appeal:  ground 3:  his submissions

Mr Rabih Jneid's appeal:  ground 3:  its merits

Mr Rabih Jneid's appeal:  conclusion

Mr Obradovic's appeal:  ground of appeal

Mr Obradovic's appeal:  the ground of appeal:  his submissions

Mr Obradovic's appeal:  the ground:  its merits

Mr Obradovic's appeal:  conclusion

JUDGMENT OF THE COURT:

1. Each of the appellants appeals against sentence.

2. The appellant in CACR 150 of 2016 (Ziad Jneid) was convicted, on his plea of guilty, that on or about 28 January 2014, at Kewdale, he supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act). On 31 August 2016, Stevenson DCJ sentenced Mr Ziad Jneid to 14 years 6 months' imprisonment. The sentence was backdated to 5 September 2015 and a parole eligibility order was made.

3. The appellant in CACR 149 of 2016 (Rabih Jneid) was convicted, on his plea of guilty, that on 28 March 2014, at Manning, he supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act. On 31 August 2016, Stevenson DCJ sentenced Mr Rabih Jneid to 15 years' imprisonment. The sentence was backdated to 5 September 2015 and a parole eligibility order was made.

4. Mr Ziad Jneid and Mr Rabih Jneid are brothers.

5. The appellant in CACR 185 of 2016 (Nikola Obradovic) was convicted, on his plea of guilty, that on 28 March 2014, at Perth, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. On 8 November 2016, Stevenson DCJ sentenced Mr Obradovic to 7 years' imprisonment. The sentence began on 8 November 2016 and a parole eligibility order was made.

6. Justin Scott Russell (Justin Russell) was convicted, on his plea of guilty, that on 28 March 2014, at Manning, he supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act. On 8 November 2016, Stevenson DCJ sentenced Mr Russell to 8 years' imprisonment. The sentence was backdated to 10 September 2015 and a parole eligibility order was made.

7. The drugs the subject of the charge against Mr Obradovic were also the subject of the charge against Mr Russell. 

8. A man, AS, was convicted, on his plea of guilty, that on 28 January 2014, at Kewdale, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. On 11 November 2015, Sleight CJDC sentenced AS for the offending. The facts and circumstances of AS's offending, the sentence imposed on him, his personal circumstances and antecedents and his Honour's sentencing remarks are summarised in the confidential schedule to these reasons. The confidential schedule will not be published to any person, except the legal representatives of Mr Ziad Jneid, Mr Rabih Jneid, Mr Obradovic and the State (including the Director of Public Prosecutions (WA)), without the prior leave of this court.

9. The drugs the subject of the charge against Mr Ziad Jneid were also the subject of the charge against AS. 

Mr Ziad Jneid:  the facts and circumstances of his offending

1. On 28 January 2014, at about 8.40 pm, AS drove a motor vehicle to a prearranged location near Mr Ziad Jneid's residence to take delivery from Mr Ziad Jneid of 2 kg of methylamphetamine.

2. When AS arrived at the prearranged location, Mr Ziad Jneid got into AS's vehicle.  On instructions from Mr Ziad Jneid, AS drove his vehicle a short distance and stopped.  Mr Ziad Jneid got out of the vehicle and went into nearby parkland.  He returned with a package of methylamphetamine.  Mr Ziad Jneid passed the package to AS through a window of the vehicle.

3. Immediately after Mr Ziad Jneid delivered the methylamphetamine to AS, a police car arrived at the scene.  AS fled in his vehicle.  Police pursued AS's vehicle and apprehended him.  Shortly before he was arrested, AS threw the package of methylamphetamine into a nearby garden.

4. Police recovered the methylamphetamine.  Subsequently, the drugs were analysed.  They comprised in total 1.988 kg of methylamphetamine with a purity between 74% and 76%.

5. Forensic testing of a pillowcase in which the methylamphetamine was wrapped revealed DNA that was consistent with the DNA profile of Mr Ziad Jneid's wife.

6. After he was arrested, AS agreed to cooperate with the police.  He was released on bail.

7. Mr Ziad Jneid recruited Justin Russell (a mutual acquaintance of AS and Mr Ziad Jneid) to act as his intermediary and 'middle man'.

8. Under the direction of the police, AS sought to acquire more methylamphetamine by text messages sent to Mr Russell.  Also, AS met with Mr Russell on multiple occasions.  The police provided AS with cash to give to Mr Russell to facilitate the acquisition of more methylamphetamine.

Mr Rabih Jneid, Mr Obradovic and Mr Russell:  the facts and circumstances of their offending

1. On 14 March 2014, Mr Ziad Jneid went overseas for three weeks.  Mr Rabih Jneid remained in Perth and assumed control of the drug supply operation. 

2. On 28 March 2014, AS went to a park in Manning by prior arrangement with Mr Russell.  When AS arrived at the prearranged location, Mr Russell and Mr Obradovic were waiting.  Mr Obradovic's role was to carry the methylamphetamine that was to be supplied to AS. 

3. When Mr Russell and Mr Obradovic arrived at the park, Mr Obradovic placed a package of methylamphetamine in some bushes.  A short time later, Mr Russell retrieved the package from the bushes and walked to AS's vehicle.  Mr Russell got into the vehicle.  He put the methylamphetamine in the front passenger's foot well and took $5,000 cash in part payment of the drugs.

4. Subsequently, AS gave the package to the police.  It contained 990 g of methylamphetamine with a purity of 78%. 

5. The methylamphetamine was supplied by Mr Rabih Jneid to AS through Mr Russell.  Mr Rabih Jneid and AS had agreed on a price of $280,000 cash for the drugs.

6. On 25 April 2014, AS gave Mr Russell the balance of the $280,000 cash (which had been provided to AS by the police) in payment for the methylamphetamine.  Mr Russell met with Mr Rabih Jneid in Victoria Park and gave him the balance of the $280,000 cash.

Mr Ziad Jneid and Mr Rabih Jneid abscond while on bail

1. On 25 April 2014, after Mr Russell gave Mr Rabih Jneid the balance of the $280,000 cash, Mr Ziad Jneid and Mr Rabih Jneid were arrested and charged.  They were released on bail but absconded to Queensland.  In September 2015, they were located in Maryborough in Queensland and extradited to Western Australia.

Mr Ziad Jneid and Mr Rabih Jneid:  their personal circumstances and antecedents and the sentencing judge's sentencing remarks

1. On 25 August 2016, judgments of conviction were entered against Mr Ziad Jneid and Mr Rabih Jneid on their pleas of guilty. 

2. On 31 August 2016, the sentencing judge sentenced Mr Ziad Jneid and Mr Rabih Jneid.

3. Mr Ziad Jneid was born on 1 January 1976.  Mr Rabih Jneid was born on 20 October 1973.  They were born in Lebanon during the war between Lebanon and Syria.  Their life in Lebanon was traumatic.  In 1989, after their parents had divorced and their mother had remarried, they migrated to Australia. 

4. The information before his Honour in relation to Mr Ziad Jneid included:

   (a)a report dated 30 August 2016 from Dr Leonie Coxon, a clinical and forensic psychologist;

   (b)reports dated 1 April 2015 and 5 February 2016 from Professor Matthew Kiernan and Dr William Huynh, neurologists;

   (c)a report dated 18 February 2015 from Dr Vara Mukundala, an orthopaedic surgeon;

   (d)reports dated 6 January 2015 and 2 June 2015 from Ms Monica La Ferrara, a registered psychologist; and

   (e)a report dated 29 August 2016 from Dr Suseela Gopal, a general medical practitioner.   

5. In those reports:

   (a)Dr Coxon said that on 29 August 2016 she had interviewed and assessed Mr Ziad Jneid at Hakea prison.  Mr Ziad Jneid told Dr Coxon that his offending behaviour was 'a huge mistake'.  At the time of the offending he was 'stressed out' about chronic illnesses suffered by his wife and his elderly mother.  He was 'not himself' and was 'targeted' while he was vulnerable.  Dr Coxon's testing indicated that Mr Ziad Jneid was suffering from 'moderately high stress and depression symptoms', but he did not have any psychiatric disorders.  Mr Ziad Jneid informed Dr Coxon that his wife has a serious and chronic autoimmune system disease which is unlikely to improve.  She has always been dependent on him for assistance in the household and with the care of their five children.  Mr Ziad Jneid informed Dr Coxon that it would 'destroy him' to remain in prison for a lengthy period as he would be unable to take care of his wife and his mother.  He was fearful that they may die without his assistance and that his children would grow up without a mother or a grandmother.

   (b)Professor Kiernan and Dr Huynh expressed the opinion that Mr Ziad Jneid's wife suffers from an asymmetrical inflammatory neuropathy. 

   (c)Dr Mukundala said that Mr Ziad Jneid's wife suffers from left knee pain.  She has a small chondral fissure which is affecting the lateral aspect of the medial femoral condyle.  Dr Mukundala recommended that the chondral lesion be treated conservatively.

   (d)Ms La Ferrara said that Mr Ziad Jneid's wife was suffering from symptoms of post‑traumatic stress disorder.  She was experiencing uncertainty and frustration as a result of her husband having been arrested and charged for the offences in question.  She was also experiencing difficulty in caring for her five children.  She lacked the time required to focus on her health.

   (e)Dr Gopal said that she had seen Mr Ziad Jneid's wife in connection with her 'severe stress, depression and anxiety related to her husband's arrest'.  She was taking prescribed medication for her anxiety and depression.  Mrs Jneid was finding it difficult to cope with their children who were aged between 8 years and 16 years.  Her main health concerns were asymmetrical inflammatory sensory motor neuropathy (with accompanying ongoing pain, numbness, pins and needles and spasms in her hands) and chronic left knee joint pain.  Dr Gopal noted that Mr Ziad Jneid had provided substantial support for his wife and their children.  According to Dr Gopal, if Mr Ziad Jneid were to be imprisoned for more than 10 years, his imprisonment would have 'a very serious effect on the children and Mrs Jneid's mental status'.  Mrs Jneid's neurological condition does not have a 'definite cure' and 'her physical condition will deteriorate along with her emotional problems'.

6. The sentencing judge made the following findings and observations concerning Mr Ziad Jneid in his sentencing remarks:

   (a)It was appropriate to afford Mr Ziad Jneid a discount of 10%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his plea of guilty (ts 428 ‑ 429).

   (b)The plea of guilty was not, however, accompanied by any remorse, insight or contrition in relation to the offending (ts 429, 435).

   (c)His Honour was 'sympathetic' in relation to Mr Ziad Jneid's wife's medical condition.  His Honour appreciated that Mr Ziad Jneid's imprisonment and Mrs Jneid's medical condition would 'create additional hardship for her going forward, both personally and in the care of [their] children'.  However, his Honour was of the view that the medical reports were insufficient to indicate any certainty with respect to prognosis.  In particular, his Honour did not accept a submission that, within the next few years, Mrs Jneid would be confined to a wheelchair.  His Honour noted that it was 'not clear' to him 'how [Mrs Jneid's] position was taken into account by [Mr Ziad Jneid] in [his] attempt to flee the jurisdiction'.  It could not properly be said that Mr Ziad Jneid's children would be deprived of parental care as a result of his imprisonment.  There was extensive material that indicated that the children have the support of an extended family which cares for them and is concerned about their welfare.  His Honour also referred to the medical condition of Mr Ziad Jneid's elderly mother (ts 429 ‑ 432).  His Honour concluded:

   In my view, the material before the court does not allow this court to treat as a mitigating factor the degree of hardship which your wife, your mother and your family will, no doubt, suffer as a result of your incarceration.

   Having said that, it's also submitted on your behalf that the strong family bond that the court is informed that exists between you and your wife and family means that it will be very difficult for you to serve the term of imprisonment and that is a mitigating feature.  In my view I do take that into account in imposing sentence, that is, that you have a wife who does have a medical condition, that it will be more difficult for her to manage the family during your absence, and also, the hardship that this will cause you personally as a result while you are serving your term of imprisonment.

   The same can be said with respect to the children, and the views that have been expressed in the material by you about your feelings towards your mother.  So I do take that into account in imposing sentence, but not in the way that it is a mitigating factor of exceptional circumstance (ts 432).

   (d)Later, his Honour reiterated his acceptance 'to the extent that the law permits the court to take it into account, that [Mr Ziad Jneid's wife and family] will suffer hardship'.  His Honour also reiterated his acceptance 'to the extent that the court can take it into account that, by reason of the closeness of [Mr Ziad Jneid] to [his] wife and [family] … there will be a degree of hardship for [him] whilst serving the sentence' (ts 440).

   (e)His Honour did not accept Mr Ziad Jneid's explanation for his offending as set out in Dr Coxon's report.  In particular, his Honour did not accept Mr Ziad Jneid's assertion as to his psychological condition when he committed the offence or his explanation that he committed the offence because he was very concerned and worried about his chronically ill wife and mother.  Mrs Jneid had been chronically ill for seven to 10 years before the offending and there was nothing in the circumstances before the court to explain the reason for his offending (ts 432‑ 433).

   (f)His Honour took into account Mr Ziad Jneid's personal circumstances including his 'disadvantaged background' as a child (ts 433).

   (g)His Honour also took into account Mr Ziad Jneid's previous good character to the extent that it was disclosed in the information before the court (ts 433).

1. Mr Ziad Jneid had a prior criminal record.  He had previous convictions for possessing a prohibited drug (two offences), common assault (two offences), escaping legal custody and resisting arrest.  The drug possession offences were committed in 2006 and the other offences between about 1995 and about 1997.

2. The information before his Honour in relation to Mr Rabih Jneid included a report dated 30 August 2016 from Dr Coxon.  In the report:

   (a)Dr Coxon said that on 29 August 2016 she had interviewed and assessed Mr Rabih Jneid at Hakea prison.

   (b)Dr Coxon said Mr Rabih Jneid told her that at the time of the offending he was 'very anxious and stressed financially as he could not pay off his mortgage and was worried about how his wife and children would survive with little money coming in'.

   (c)Dr Coxon said Mr Rabih Jneid had told her that he was remorseful that he became involved with illicit drugs.

   (d)Dr Coxon said her testing indicated that Mr Rabih Jneid was suffering from 'high state anxiety, severe stress symptoms (including panic attacks), and a moderately high depression level'.  However, there was no indication that he had any 'psychotic features, disinhibition or antagonism or psychiatric diagnosis'.

   (e)Dr Coxon expressed the view that if Mr Rabih Jneid were to receive 'a lengthy custodial sentence it would have a huge effect on him mentally, his wife would be without a husband and his three children without a father'.

   (f)Dr Coxon expressed the view that if Mr Rabih Jneid were to receive a lengthy custodial sentence his wife and children would be adversely affected 'as they have depended on him emotionally and financially' and his wife is 'constantly stressed and frightened while living alone with the children without his support'.

   (g)Mr Rabih Jneid's mother is frail and sick with epilepsy and diabetes.  She would be 'distressed and depressed if he were to be absent from the family for an extended period'.

3. The sentencing judge made the following findings and observations concerning Mr Rabih Jneid in his sentencing remarks:

   (a)It was appropriate to afford Mr Rabih Jneid a discount of 10%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty (ts 428 ‑ 429).

   (b)The plea of guilty was not, however, accompanied by any remorse, insight or contrition in relation to the offending (ts 429, 435).

   (c)His Honour noted Mr Rabih Jneid's assertion, as recorded by Dr Coxon in her report, that when he committed the offence he was very anxious and stressed financially as he could not pay his mortgage.  His Honour did not accept that assertion as an explanation for the cause of the offending (ts 434 ‑ 435).

   (d)His Honour took into account Mr Rabih Jneid's personal circumstances including his 'disadvantaged childhood' (ts 433).

   (e)His Honour also took into account that Mr Rabih Jneid had a wife and a young family who would suffer a great deal of hardship as a result of his incarceration.  His Honour accepted that Mr Rabih Jneid would suffer hardship by reason of his separation from his wife and his family while he was in custody.  His Honour took that factor into account 'as a mitigating feature, but subject to the sentencing principle that in relation to matters of this nature the personal circumstances of the offender play a lesser role' (ts 433).

   (f)Later, his Honour reiterated his acceptance 'to the extent that the law permits the court to take it into account, that [Mr Rabih Jneid's wife and family] will suffer hardship'.  His Honour also reiterated his acceptance 'to the extent that the court can take it into account that by reason of the closeness of [Mr Rabih Jneid] to [his] wife and [family] … there will be a degree of hardship for [him] whilst serving the sentence' (ts 440).

   (g)His Honour observed that Mr Rabih Jneid had a prior criminal record.  Between 1997 and 2000 he was convicted of hindering police and possessing a prohibited drug (two offences).  In 2005 he was convicted of a minor traffic offence.  All of those offences were punished by fines.  More significantly, in 2002 Mr Rabih Jneid was convicted of possessing a prohibited drug with intent to sell or supply.  He was sentenced to 5 years 6 months' imprisonment and was declared to be a drug trafficker. That offence concerned 409.9 g of methylamphetamine.  The sentence of 5 years 6 months' imprisonment was lenient.  The sentencing court explained the leniency on the basis that the court was satisfied Mr Rabih Jneid had severed his relationships with drug users and was involved with his family and respectable friends in the Lebanese/Australian community.

4. His Honour made the following remarks about the criminal culpability of Mr Ziad Jneid and Mr Rabih Jneid:

   (a)Mr Ziad Jneid and Mr Rabih Jneid operated, in association, a drug‑dealing business on a very significant scale (ts 437).

   (b)Mr Ziad Jneid and Mr Rabih Jneid reaped significant financial rewards from the business (ts 437).

   (c)There was an element of concert by Mr Ziad Jneid and Mr Rabih Jneid in the commission of each of their offences.  His Honour referred to the fact that when Mr Ziad Jneid went overseas for three weeks Mr Rabih Jneid remained in Perth and took over the drug supply operation (ts 437).

   (d)However, each of Mr Ziad Jneid and Mr Rabih Jneid was to be sentenced only for the offence he had committed and not for the offence committed by the other.  Also, the sentences must reflect their different antecedents (ts 437).

   (e)Although it had not been proved that Mr Ziad Jneid or Mr Rabih Jneid had owned the illicit drugs which they distributed into the community, both of them were 'at the top of or very close to the top of the chain of distribution' (ts 437, 439).

   (f)Each of Mr Ziad Jneid and Mr Rabih Jneid had demonstrated his 'high position in the hierarchy by being able to source large quantities of methylamphetamine of the highest purity with apparent ease and immediate availability' (ts 438).

   (g)The vested interest of each of Mr Ziad Jneid and Mr Rabih Jneid in the criminal enterprise was underscored by the manner in which he sought actively to dispose of the illicit drugs into the community.  Also, that vested interest was underscored by the use made by each of Mr Ziad Jneid and Mr Rabih Jneid of 'middle men' to distance himself from those lower in the supply chain for the purpose of minimising the risk of his apprehension by the law enforcement authorities (ts 438).

   (h)Each of Mr Ziad Jneid and Mr Rabih Jneid gave instructions to others lower in the supply chain, including AS and Mr Russell, as to what they were to do and how they were to communicate with him.  This was facilitated by giving the others BlackBerry mobile telephones which were encrypted with a view to making the communications secure.  The criminal enterprise was, to that extent, sophisticated and well managed (ts 438).

   (i)The involvement of each of Mr Ziad Jneid and Mr Rabih Jneid in illicit drug dealing was not confined to the offence he had committed.  Although each of them was to be sentenced only for the actual offence in question, the offending was not mitigated by having been an isolated, one‑off supply or a momentary aberration (ts 439).

   (j)Neither Mr Ziad Jneid nor Mr Rabih Jneid had informed the court of the reason for his offending.  His Honour found that the only inference open was that each of them had committed the offence and engaged in the distribution of methylamphetamine into the community for 'pure commercial gain'.  That is, each of Mr Ziad Jneid and Mr Rabih Jneid was motivated by 'pure and simple greed'.  They preyed on the weaknesses of others and acted in complete disregard of the innocent victims of crimes committed by users of the drug to obtain property and funds to finance their addiction (ts 439).

   (k)The culpability of each of Mr Ziad Jneid and Mr Rabih Jneid for his offending was at 'the very high end of the scale having regard to the role [he] played and the seriousness of the offending' (ts 439).

   (l)At all material times, each of Mr Ziad Jneid and Mr Rabih Jneid 'fully appreciated the risk [he was] taking and that when caught and held to account [he] would be required to serve a lengthy term of imprisonment away from [his] own family'.  Accordingly, his Honour found that each of them made an 'informed and conscious choice', over a period of time, to be involved in illicit drug dealing and to take the risk of being apprehended and held to account (ts 439 ‑ 440).

Mr Obradovic and Mr Russell:  their personal circumstances and antecedents and the sentencing judge's sentencing remarks

1. On 29 January 2016, a judgment of conviction was entered against Mr Obradovic on his plea of guilty. 

2. On 21 July 2016, a judgment of conviction was entered against Mr Russell on his plea of guilty.

3. On 8 November 2016, the sentencing judge sentenced Mr Obradovic and Mr Russell. 

4. Mr Obradovic was born on 18 December 1980.

5. The information before his Honour in relation to Mr Obradovic included a report dated 25 September 2016 from Dr Sanjay Khanna, a consultant psychiatrist, and a report dated 21 October 2016 from Ms Cinzia Zuin, a psychologist.

6. In those reports:

   (a)Dr Khanna said that in February 2015 and again in May 2015 he assessed Mr Obradovic.  Mr Obradovic had used methylamphetamine and cannabis since the age of 20.  Mr Obradovic was prescribed antidepressant medication to assist with his mood and withdrawal symptoms consequent upon his endeavours to cease using illicit drugs.  Mr Obradovic attended group therapy sessions.  Unfortunately, Mr Obradovic relapsed into illicit drug use.  Dr Khanna's impression was that Mr Obradovic suffered from polysubstance use disorder with antisocial personality traits.

   (b)Ms Zuin said that on 17 October 2016 she interviewed Mr Obradovic at the South West Coastal Adult Community Corrections Centre.  She expressed the view that relevant factors in Mr Obradovic's offending included poor coping skills; longstanding use of illicit drugs; impaired thinking through daily drug use; a lack of consequential thinking; negative peer associations; and a lack of effective decision‑making skills.

7. A pre‑sentence report indicated that Mr Obradovic appeared to be maintaining a relatively stable and prosocial lifestyle in the community.  He was gainfully employed and appeared to have benefitted from a stable relationship with a partner and from close family support.

8. The sentencing judge made the following findings and observations concerning Mr Obradovic in his sentencing remarks:

   (a)It was appropriate to afford Mr Obradovic a discount of 15%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty (ts 520).

   (b)Mr Obradovic would have appreciated that he was involved in the dissemination and supply of a large quantity of methylamphetamine.  Although Mr Obradovic may not have known the precise weight of the methylamphetamine or its purity, he would have appreciated that it was a substantial amount of the prohibited drug (ts 518).

   (c)Mr Obradovic willingly agreed to participate in the drug exchange, the subject of his offending, 'knowing full well the risk and at the time knowing full well what was happening' (ts 519).

   (d)Mr Obradovic's willingness to participate in the offence indicated a degree of recidivism, given his background and his prior criminal record in relation to the use of illicit drugs (ts 519).

   (e)Mr Obradovic was associated with the co‑offenders.  There was no evidence as to what his reward would have been for participating in the offending, but his Honour was satisfied that 'it was in the context of underworld drug dealing and therefore it must be assumed that [Mr Obradovic], even if it was just friendship, was engaged with the expectation of receiving some credit in some way at some future point in time' (ts 519).

   (f)Mr Obradovic was, at the time of the offending and afterwards, a user of methylamphetamine and cannabis (ts 522).

   (g)His Honour did not accept that Mr Obradovic's plea of guilty represented genuine remorse or insight in relation to the seriousness of his offending (ts 520, 522).

   (h)However, there was a degree of honesty in Mr Obradovic's admissions about his continuing use of illicit drugs, and it was to his credit that he had attempted, on two separate occasions, to deal with his addiction in residential rehabilitation programmes (ts 522).

   (i)His Honour took into account the written references and other material which had been provided to the court in relation to Mr Obradovic.  His Honour accepted that Mr Obradovic had been gainfully employed in his father's business and that he proposed, on release from custody, to take over the business and operate it.  His Honour also took into account Mr Obradovic's personal circumstances including his ongoing relationship with his partner.  His Honour also took into account a letter of apology which Mr Obradovic had sent to the court.  Mr Obradovic had the support of his partner and his family (ts 522 ‑ 523).

   (j)His Honour accepted the State's concession that Mr Obradovic's involvement in the drug supply operation carried on by Mr Ziad Jneid and Mr Rabih Jneid was 'a single, one‑off transaction' (ts 525).

9. Mr Obradovic had a reasonably extensive prior criminal record.  His previous convictions included numerous traffic offences; possessing a prohibited drug; possessing an unlicensed firearm; possessing unlicensed ammunition; criminal damage; stealing; possessing a prohibited weapon; numerous offences of importing prohibited imports; and disorderly conduct.  However, he had not previously been sentenced to a term of imprisonment.

10. Mr Russell was born on 12 January 1974.

11. The sentencing judge made the following findings and observations concerning Mr Russell in his sentencing remarks:

    (a)It was appropriate to afford Mr Russell a discount of 10%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty (ts 520).

    (b)Mr Russell would have appreciated that he was involved in the dissemination and supply of a large quantity of methylamphetamine.  Although Mr Russell may not have known the precise weight of the methylamphetamine or its purity, he would have appreciated that it was a substantial amount of the prohibited drug (ts 518).

    (c)Mr Russell was higher in the chain of distribution than Mr Obradovic.  Mr Russell was closely aligned with the Jneid brothers; in particular, with Mr Rabih Jneid (ts 518).

    (d)There was a level of friendship between Mr Russell and Mr Rabih Jneid which accompanied their drug dealing arrangements and culminated in the particular drug dealing transaction for which Mr Russell was to be sentenced (ts 518 ‑ 519).

    (e)There was also an extensive history and relationship between Mr Russell and AS (ts 519).

    (f)Mr Russell's willingness to participate in the offence indicated a degree of recidivism, given his background and his prior criminal record in relation to the use of illicit drugs (ts 519).

    (g)It may be that the benefit derived by Mr Russell from the offending was simply to facilitate his friendship with the Jneid brothers; in particular, with Mr Rabih Jneid (ts 519).

    (h)Mr Russell was not a user of methylamphetamine or any other illicit drug.  He was motivated by other reasons to engage in the criminal conduct (ts 519).

    (i)His Honour did not accept that Mr Russell's plea of guilty represented genuine remorse or insight in relation to the seriousness of his offending (ts 520 ‑ 521).

    (j)Mr Russell has a physical disability.  His Honour accepted that this disability must have had an impact upon his psychological development as a child.  It may, in part, explain his motivation for the offending.  His Honour took those matters into account in imposing sentence (ts 521).

    (k)Mr Russell has a substantial prior criminal record.  The offending in question was aggravated because Mr Russell committed the offence while he was on parole in relation to a term of imprisonment that had been imposed for other drug‑related offending (ts 521).

    (l)Mr Russell had, shortly before the commission of the offence in question, served a lengthy term of imprisonment for the other drug‑related offending (ts 526).

    (m)His Honour accepted and took into account that Mr Russell's relationship with AS and Mr Ziad Jneid resulted in him being easily recruited to participate in the drug underworld (ts 521).

    (n)It was to Mr Russell's credit, however, that after being returned to custody he had been a model prisoner (ts 521).

    (o)By reason of his constitutional and psychological makeup, Mr Russell is a person who places value on friendships.  He is prepared, in order to maintain and enhance those friendships, to take risks, including engaging in illegal conduct (ts 521 ‑ 522).

Mr Ziad Jneid's appeal:  grounds of appeal

1. Mr Ziad Jneid relies on three grounds of appeal.

2. Ground 1 alleges, in essence, that the sentencing judge erred in concluding, in the absence of evidence, that '[i]n association, you operated a drug‑dealing business on a very significant scale.  In view of the quantity and purity of methylamphetamine involved, you reaped significant financial rewards' (ts 437).  The ground asserts that the error gave rise to a substantial miscarriage of justice.

3. Ground 2 alleges, in essence, that his Honour erred in the application of the parity principle 'by imposing a manifestly disparate sentence to the sentences imposed on [Mr Russell] and AS', thereby giving rise to a justifiable sense of grievance on Mr Ziad Jneid's part and a substantial miscarriage of justice.

4. Ground 3 alleges, in essence, that the sentence imposed on Mr Ziad Jneid was manifestly excessive.

5. On 7 March 2017, Mazza JA referred Mr Ziad Jneid's application for leave to appeal on those grounds to the hearing of the appeal.

Mr Ziad Jneid's appeal:  application in the appeal to adduce additional evidence and add an additional ground of appeal

1. By an application in the appeal dated 12 December 2017, Mr Ziad Jneid applied for leave to adduce additional evidence in the appeal and leave to add an additional ground of appeal.

2. The proposed additional evidence comprises:

   (a)a report dated 9 December 2017 from Professor William Carroll, a neurologist; and

   (b)a report dated 4 December 2017, with attachments, from Dr Gopal.

3. In those reports:

   (a)Professor Carroll said that he first saw Mr Ziad Jneid's wife on 15 November 2016.  He saw her again on 1 December 2016, 16 August 2017 and 12 October 2017.  Professor Carroll concluded, on the basis of 'the symptoms, physical and electrophysiological findings', that there had been 'likely worsening of [Mrs Jneid's] condition'.  As to her prognosis, Professor Carroll said that, '[g]iven the very slow progression that appears to have occurred over time, it would be reasonable to assume that this will be the same for the future and perhaps lessened by … IVIG treatment'.

   (b)Dr Gopal said that since 31 August 2016 she had seen Mr Ziad Jneid's wife on six occasions in relation to her 'ongoing deteriorating … physical and psychological problems'.  Dr Gopal was of the view that Mrs Jneid's health had deteriorated during the previous 12 months.  She had developed weakness in her right arm and weakness in both lower limbs.  She was physically weaker and emotionally very depressed about her health and her future.  Dr Gopal was unsure about Mrs Jneid's prognosis.

4. Mr Ziad Jneid's proposed additional ground 4 of his appeal reads:

   By reason of the deteriorating medical condition of [the appellant's] wife … a lesser sentence should be passed, due to the extra burden on [the appellant's] service of his term of imprisonment by reason of his knowledge of the said condition.

1. Plainly, the proposed additional evidence and the proposed additional ground 4 are interrelated.

Mr Ziad Jneid's appeal:  the organisation of the balance of these reasons

1. It is convenient, first, to consider ground 1, then ground 3, next proposed ground 4 and, finally, ground 2.

Mr Ziad Jneid's appeal:  ground 1:  his submissions

1. Counsel for Mr Ziad Jneid contended that the sentencing judge made an error of fact in finding that Mr Ziad Jneid, in association with Mr Rabih Jneid, operated a drug dealing business on a very significant scale and reaped significant financial rewards.

2. Counsel submitted that there was no evidence adduced by the State which suggested that Mr Ziad Jneid had 'reaped significant financial rewards'.

3. Counsel also submitted that there was no evidence in the State brief which demonstrated that Mr Ziad Jneid had accumulated wealth from his drug dealing.

4. It was argued that his Honour's error of fact resulted in his Honour elevating the level of Mr Ziad Jneid's criminal culpability and that elevation, in turn, directly affected the length of the sentence and occasioned a substantial miscarriage of justice.

Mr Ziad Jneid's appeal:  ground 1:  its merits

1. The sentencing hearing before the sentencing judge occurred on 31 August 2016.  After hearing submissions from the prosecutor and defence counsel, his Honour sentenced Mr Ziad Jneid (and, also, Mr Rabih Jneid) on that date.

2. Prior to the sentencing hearing before his Honour, the State filed and served written submissions on sentence dated 26 August 2016.  In those submissions it was contended that:

   (a)Both Mr Ziad Jneid and Mr Rabih Jneid were 'properly characterised as high level drug dealers who were willing and able to supply large quantities of high purity methylamphetamine which they knew was for further distribution in the community' [18].

   (b)Each of Mr Ziad Jneid and Mr Rabih Jneid was more than a mere courier or passive conduit for the drugs the subject of the charge against him [23].

3. Prior to the sentencing hearing before his Honour, Mr Ziad Jneid's lawyers filed and served written submissions on sentence dated 30 August 2016.  In those submissions it was accepted or asserted that:

   (a)Mr Ziad Jneid was not a mere courier or passive conduit, and was 'acting on his own account' [3.3].

   (b)The reality was that Mr Ziad Jneid was 'a further link in the supply chain between AS and the source; that he was close to the source; but was not the initial source … and that this was not an isolated incident' [3.9].

   (c)Mr Ziad Jneid 'ought to be sentenced on the basis that he was not at the top of the drug hierarchy' [6.2].

4. At the sentencing hearing before his Honour on 31 August 2016, the prosecutor tendered (without objection) the papers comprising the State brief (including a copy of all recordings and other exhibits), and incorporated the contents of those papers, recordings and exhibits into the State's statement of material facts (ts 348).

5. At the sentencing hearing, the prosecutor and Mr Ziad Jneid's defence counsel repeated, relevantly and in substance, the arguments made in their written submissions on sentence.

6. The sentencing judge's finding that Mr Ziad Jneid, in association with Mr Rabih Jneid, operated a drug dealing business on a very significant scale and reaped significant financial rewards must be examined in the context of his Honour's sentencing remarks as a whole.

7. During their investigation, police photographed or video recorded messages sent from an encrypted BlackBerry mobile telephone in AS's possession.  At a meeting Mr Ziad Jneid and Mr Rabih Jneid had given the encrypted BlackBerry to AS to facilitate the arrangement of drug sales.  The encrypted BlackBerry was intended to provide a secure means of communication in relation to the drug sales.  See AS's witness statement [33] ‑ [52]; State brief pages 42 ‑ 44.

8. The messages were compiled into a schedule called 'BlackBerry messages schedule'.  The Schedule formed part of the State brief.  See State brief pages 1770 ‑ 1849.

9. Mr Ziad Jneid's position in the chain of distribution and his financial position are illustrated by a number of text messages.  In the State's sentencing submissions before his Honour the prosecutor made specific reference to the following (except (b)):

   (a)Message #107 from Mr Ziad Jneid to AS on 15 February 2014 after the loss of the 1.988 kg of methylamphetamine the subject of offence alleged against Mr Ziad Jneid:  'Bro as I said to our mate u got nothing to worry about its under control my contact helped me with 1 and I take care of the other 1 … '[1]

   (b)Message #112 from Mr Ziad Jneid to AS on 15 February 2014:  ' ... if it was a set up we would of all being fucked and they want me more than any 1 [bro and] u know it ... Remember i passed it to in the blanket not in plastic bag, I always think ahead bro.  We lost and we wear it so nothing to worry about and we both know there is no DNA and no finger prints'.[2]

   (c)Message #130 from Mr Ziad Jneid to AS on 18 February 2014 after the loss of the 1.988 kg of methylamphetamine:  ' … Bro as u [know] me and my contact lost around half a mil of what happened with u no 1 dose and other people would have at least make u pay half but I did it so u don't stress and we all work together as a team and we shouldn't take advantage of others... '[3]

   (d)Message #130 from Mr Ziad Jneid to AS on 18 February 2014:  'I'll work it out with our mate where to put it and how he gona pass it on'.[4]

   (e)Message #130 from Mr Ziad Jneid to AS on 18 February 2014:  'bro I want u to know gears not an issues we can get as much as u want … '[5]

   (f)Message #278 from Mr Ziad Jneid to AS on 10 March 2014:  'Bro we can discuss thing on bb for now and get our mate to be the middle man'.[6]

   (g)Message #316 from Mr Ziad Jneid to AS on 12 March 2014:  'I was gona get drop to our mate in ur area than u guys can work it out from there'.[7]

   [1] State brief, pp 1777 ‑ 1778.

   [2] State brief, p 1778.

   [3] State brief, p 1780.

   [4] State brief, p 1780.

   [5] State brief, p 1780.

   [6] State brief, p 1792.

   [7] State brief, p 1795.

10. We are satisfied that:

    (a)the quantity (1.988 kg) and purity (between 74% and 76%) of the methylamphetamine the subject of the offence of which Mr Ziad Jneid was convicted;

    (b)the content of the text messages we have reproduced at [69] above (in particular, the references to Mr Ziad Jneid having access to as much methylamphetamine as AS wanted; Mr Ziad Jneid having recruited a middle man; Mr Ziad Jneid having created and executed a drug dealing strategy; Mr Ziad Jneid having made an executive decision about who would bear the financial cost of the loss of the 1.988 kg of methylamphetamine; and Mr Ziad Jneid having the ability to absorb a loss of about $250,000, being one half of the approximate value of the 1.988 kg of methylamphetamine);

    (c)Mr Rabih Jneid having assumed control of the drug supply operation when Mr Ziad Jneid went overseas for three weeks;

    (d)Mr Ziad Jneid's acceptance in his written submissions on sentence dated 30 August 2016 that he was 'acting on his own account' [3.3] and that he was 'a further link in the supply chain between AS and the source; that he was close to the source; but was not the initial source … and that this was not an isolated incident' [3.9]; and

    (e)the overall context of the intercepted communications between Mr Ziad Jneid, Mr Rabih Jneid, Mr Russell and AS,

    formed, in combination, a proper basis for the sentencing judge's findings that Mr Ziad Jneid, in association with Mr Rabih Jneid, operated a drug dealing business on a very significant scale and reaped significant financial rewards.  His Honour was entitled, on the information before him, to make those findings.  No error is apparent.

11. In any event, even if (contrary to our opinion) his Honour made the error alleged in ground 1, a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA). We are of that view generally for the reasons we give in dealing with the complaint of manifest excess in ground 3, but disregarding any impugned error of fact alleged in ground 1.

12. Ground 1 fails.

Mr Ziad Jneid's appeal:  ground 3:  his submissions

1. Counsel for Mr Ziad Jneid submitted that the sentence of 14 years 6 months' imprisonment was manifestly excessive in all the circumstances including Mr Ziad Jneid's personal circumstances and antecedents.

2. Counsel complained that 'adequate mitigation [on] account of [Mr Ziad Jneid's] prior good character [was] not reflected in the sentence'.  After referring to a number of previous cases, counsel submitted that it was evident, having regard to the previous cases, that the sentence imposed on Mr Ziad Jneid was manifestly excessive and did not properly reflect 'the criminality of the offending or [his] circumstances'.

Mr Ziad Jneid's appeal:  ground 3:  its merits

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

2. If, in a particular case, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive.  It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance.  See Munda v The State of Western Australia;[8] The State of Western Australia v Doyle.[9]

   [8] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

   [9] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

3. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law.  See Barbaro v The Queen.[10]

   [10] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

4. In the present case, the sentencing judge was obliged to sentence Mr Ziad Jneid in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.

5. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.

6. The statutory principle that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportionate to the offence.  See Veen v The Queen [No 2].[11]

   [11] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 484 ‑ 486 (Wilson J), 490 ‑ 491 (Deane J).

7. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.  The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance.  Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain.  The degree of purity is often regarded as significant.  Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.  All of these propositions are well-established by the case law.

8. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by Mr Ziad Jneid, it is necessary to have regard to a range of comparable cases.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Nevertheless, each case turns on its own particular facts and circumstances.  Sentencing ranges can provide only general guidance.  The limits of the guidance afforded by comparable cases are flexible rather than rigid.  A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.  The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.  These propositions are also well-established by the case law.

9. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. 

10. The discretion conferred on sentencing judges is, of course, of fundamental importance.  This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.  See Lowndes v The Queen.[12]

    [12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

11. We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to Mr Ziad Jneid's offending, including Galbraith v The State of Western Australia;[13] Penney v The State of Western Australia;[14] Mikulic v The State of Western Australia;[15] Kitis v The State of Western Australia;[16] Ozan v The State of Western Australia;[17] Ruvinovski v The State of Western Australia;[18] Neumann v The State of Western Australia;[19] Milenkovski v The State of Western Australia;[20] Le v The State of Western Australia;[21] Zanon v The State of Western Australia;[22] Kobeissi v The State of Western Australia;[23] Chen v The State of Western Australia;[24] Chen v The State of Western Australia;[25] Ng v The State of Western Australia;[26] Mather v The State of Western Australia;[27] Bees v The State of Western Australia;[28] Gaskell v The State of Western Australia;[29] Separovic v The State of Western Australia;[30] and Kezkiropoulos v The State of Western Australia.[31]

    [13] Galbraith v The State of Western Australia [2011] WASCA 70.

    [14] Penney v The State of Western Australia [2011] WASCA 71.

    [15] Mikulic v The State of Western Australia [2011] WASCA 127.

    [16] Kitis v The State of Western Australia [2013] WASCA 34.

    [17] Ozan v The State of Western Australia [2013] WASCA 27.

    [18] Ruvinovski v The State of Western Australia [2013] WASCA 204.

    [19] Neumann v The State of Western Australia [2013] WASCA 70.

    [20] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.

    [21] Le v The State of Western Australia [2015] WASCA 73.

    [22] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.

    [23] Kobeissi v The State of Western Australia [2016] WASCA 188.

    [24] Chen v The State of Western Australia [2017] WASCA 99.

    [25] Chen v The State of Western Australia [2017] WASCA 114.

    [26] Ng v The State of Western Australia [2017] WASCA 124.

    [27] Mather v The State of Western Australia [2017] WASCA 148.

    [28] Bees v The State of Western Australia [2017] WASCA 202.

    [29] Gaskell v The State of Western Australia [2018] WASCA 8.

    [30] Separovic v The State of Western Australia [2018] WASCA 36.

    [31] Kezkiropoulos v The State of Western Australia [2018] WASCA 58.

12. We have also considered other cases cited by counsel for Mr Ziad Jneid.

13. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes.  There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

14. After taking into account the differences in the facts and circumstances of the prior cases and the sentencing variables in those cases and the fact that there is no single correct sentence, we are satisfied that the sentence of 14 years 6 months' imprisonment imposed on Mr Ziad Jneid is broadly consistent with the sentencing pattern revealed by the prior cases.

15. The very serious nature of Mr Ziad Jneid's offending is apparent from the following:

    (a)The substantial quantity (1.988 kg) and the high degree of purity (74% to 76%) of the methylamphetamine the subject of the offence.

    (b)The substantial value of the methylamphetamine.  It had a value of about $500,000 if the whole of the drug was sold in one lot without dilution.  If sold in smaller lots it had a value of up to $1,988,000 (and, potentially, a greater value if diluted).  See the statement of Detective Sergeant Richard Green at pages 1403 ‑ 1411 of the State brief.

    (c)Although it had not been proved that Mr Ziad Jneid owned the methylamphetamine, he was very close to the top of the hierarchy of distribution.

    (d)The offending involved planning and management by Mr Ziad Jneid in that he gave instructions to others who were lower in the hierarchy of distribution as to what they were to do and how they were to communicate with him, including through the use of encrypted BlackBerry mobile telephones that were provided with a view to making the communications secure.

    (e)The supply of the methylamphetamine was a commercial activity and Mr Ziad Jneid was motivated purely by financial gain.

16. Mr Ziad Jneid's offending was not mitigated by being isolated or an aberration.

17. He was not youthful or inexperienced for sentencing purposes.

18. Mr Ziad Jneid's plea of guilty was a mitigating factor. However, he entered the plea at a late stage and in the face of an overwhelming State case. The sentencing judge afforded him an appropriate discount of 10% pursuant to s 9AA of the Sentencing Act.

19. He was not remorseful and had not demonstrated any insight into the seriousness of his offending (ts 435, 439 ‑ 440).

20. In The State of Western Australia v Chapman,[32] Beech J (Buss & Mazza JJA relevantly agreeing) summarised the principles to be applied when it is submitted that an offender's imprisonment would result in great hardship for his or her family:

    The general principle is that, ordinarily, hardship caused to an offender's children by imprisonment of an offender will not be taken into account in the sentencing process.  However, in exceptional cases it may be taken into account.  It may be taken into account when the degree of hardship that imprisonment will involve is exceptional, or where imprisonment will result in the children being deprived of parental care.  In all cases, whether, and to what extent, it may be taken into account depends on the gravity of the offence and the circumstances of the case:  Stewart (1994) 72 A Crim R 17, 21; The State of Western Australia v Wynne [2008] WASCA 195 [80] ‑ [81].

    The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family:  Hodder v The Queen (1995) 15 WAR 264, 286; McLean v The State of Western Australia [2011] WASCA 60 [43].

    That is particularly so in a case where the predominant sentencing consideration is general deterrence:  Burns (1994) 71 A Crim R 450, 454 ‑ 455; The State of Western Australia v Hatch [2008] WASCA 162 [21].

    The period over which the offences are committed may be relevant to the weight to be given to the impact of imprisonment upon the offender's children.  In Burns the court observed that the crime had not been a 'thoughtless, impulsive spur of the moment crime in which there was no time or opportunity to consider the consequences to the children should the parents be caught' (455).  The same is true in this case.

    S v The Queen [2003] WASCA 309 is an example of a situation in which the court was prepared to 'draw back in mercy' to impose a suspended term of imprisonment, in light of the effect of imprisonment on the severely disabled child of the offender. The medical evidence in that case suggested that the absence of either one of the child's parents would likely put the disabled child back to a level from which he would probably never recover: S v The Queen [17], [30].

    By contrast, in R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286 the Court of Criminal Appeal found that the offender had been sentenced too leniently when given a suspended sentence because of her 4‑year‑old child who suffered from severe behavioural and emotional problems which were likely to escalate upon separation from his mother. The court considered that some form of actual imprisonment was required for the offender's conduct in defrauding the Commonwealth of about $78,000 over nine months in her capacity as a customer service operator in Centrelink. R v Hinton was referred to with evident approval by Miller JA in The State of Western Australia v Wynne [82].

    See also Speering v The State of Western Australia;[33] Mountain v The State of Western Australia.[34]

    [32] The State of Western Australia v Chapman [2012] WASCA 203 [119] ‑ [124].

    [33] Speering v The State of Western Australia [2008] WASCA 266 [62] ‑ [65] (Miller JA).

    [34] Mountain v The State of Western Australia [2009] WASCA 161 [54] (Miller JA; Buss JA relevantly agreeing).

1. In the present case, his Honour took into account Mr Ziad Jneid's personal circumstances and antecedents, including:

   (a)his wife's serious medical condition (ts 429 ‑ 430);

   (b)it will be more difficult for his wife to care for and manage the family (including their five young children) while he is in custody (ts 430); and

   (c)in the circumstances, Mr Ziad Jneid will suffer increased hardship while he is in prison (ts 432).

2. The sentencing judge took into account Mr Ziad Jneid's 'disadvantaged background' as a child (ts 433).  His Honour also took into account his previous good character to the extent that it was disclosed in the information before the court (ts 433).

3. Counsel for Mr Ziad Jneid's complaint that 'adequate mitigation [on] account of [Mr Ziad Jneid's] prior good character [was] not reflected in the sentence' is in substance a complaint that his Honour gave inadequate weight to that factor.

4. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge.  See Mallet v Mallet;[35] Dinsdale v The Queen;[36] Vagh v The State of Western Australia;[37] Pedersen v The State of Western Australia.[38]  A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment.  In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust.  Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.

   [35] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).

   [36] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).

   [37] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).

   [38] Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing).

5. We are satisfied, after evaluating and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors, in the context of:

   (a)the maximum penalty for the offence;

   (b)the seriousness of the offence;

   (c)the importance of personal and general deterrence as sentencing factors;

   (d)the general standards of sentencing applicable to the offence; and

   (e)the plea of guilty and the other matters of mitigation (including Mr Ziad Jneid's personal circumstances and antecedents),

   that the sentence of 14 years 6 months' imprisonment was not unreasonable or plainly unjust.

6. The existence of error in relation to the sentence is unable to be inferred from the sentencing outcome.

7. Ground 3 fails.

Mr Ziad Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 4:  his submissions

1. Counsel for Mr Ziad Jneid submitted that, by reason of the proposed additional evidence, a lesser sentence should have been imposed on Mr Ziad Jneid because knowledge of his wife's deteriorating medical condition would increase the burden of his incarceration.

Mr Ziad Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 4:  their merits

1. Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2];[39] The State of Western Australia v Hyder;[40] AH v The State of Western Australia.[41]

   [39] Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA).

   [40] The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P; Buss JA & Mazza J agreeing).

   [41] AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] ‑ [124] (Martin CJ, Mazza JA & Hall J).

2. We are satisfied, after examining the proposed additional evidence in the context of the material before the sentencing judge, that had the proposed additional evidence been before his Honour a different sentence should not have been imposed.  Mr Ziad Jneid's knowledge of his wife's medical condition, as revealed by the proposed additional evidence, does not, having regard to all relevant facts and circumstances and all relevant sentencing factors, require or justify the imposition of a lesser sentence than 14 years 6 months' imprisonment.

3. The application for leave to adduce the additional evidence and to add the proposed ground 4 is without merit.  The application in the appeal dated 12 December 2017 should be dismissed.

Mr Ziad Jneid's appeal:  ground 2:  his submissions

1. As to parity between Mr Ziad Jneid and Mr Russell, counsel for Mr Ziad Jneid submitted that given:

   (a)Mr Russell had committed his offence while on parole whereas Mr Ziad Jneid had 'no prior criminal convictions'; and

   (b)Mr Russell was only 'slightly lower' in the hierarchy of distribution than Mr Ziad Jneid,

   the sentence of 14 years 6 months' imprisonment imposed on Mr Ziad Jneid was 'manifestly disparate from' the sentence of 8 years' imprisonment imposed on Mr Russell and gave rise to a justifiable sense of grievance.

2. As to parity between Mr Ziad Jneid and AS, counsel for Mr Ziad Jneid submitted that the sentencing judge was in error in '[equating] a finding that [Mr Ziad Jneid] was near to the top of the chain of distribution with AS offending whilst on parole'.  It was also submitted that this error resulted in a 'manifestly disparate sentence' being imposed on Mr Ziad Jneid.  His personal antecedents and his role in the offending should have resulted in a 'lower starting point' than that apparently adopted by his Honour.

Mr Ziad Jneid's appeal:  ground 2:  its merits

1. 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;[42] Postiglione v The Queen;[43] R v Taudevin.[44]  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.[45] 

   [42] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J).

   [43] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).

   [44] R v Taudevin [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).

   [45] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).

2. An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of 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.  See Lowe (609).  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 I (a child) v The State of Western Australia;[46] Billing v The State of Western Australia [No 2].[47] 

   [46] I (a child) v The State of Western Australia [2006] WASCA 9 [66] (Steytler P; McLure JA agreeing).

   [47] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).

3. In Green v The Queen,[48] 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].

   [48] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

4. 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].

5. The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences.  See Jimmy v The Queen;[49] Tomov v The Queen.[50]

   [49] Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 [202] ‑ [203] (Campbell JA; Rothman J agreeing generally), [245] ‑ [246] (Howie J; Rothman J agreeing generally).

   [50] Tomov v The Queen [2011] WASCA 189 [100] (Buss JA; Newnes JA & Hall J agreeing).

6. In Green, French CJ, Crennan and Kiefel JJ noted:

   (a)the foundation of the parity principle in the norm of equality before the law requires that it be applied by reference to matters of substance rather than form;

   (b)formal identity of charges against the offenders whose sentences are compared is not essential;

   (c)however, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences;

   (d)the greater the difference between the offences, the greater the practical difficulties, especially where disparity allegedly arises out of a sentence imposed on a co‑offender who has been charged with a less serious offence than the appellant;

   (e)however, those practical difficulties and limitations do not exclude the operation of the parity principle; and

   (f)the effect given to the parity principle may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged [30].

7. In our opinion, the disparity between the sentence imposed on Mr Ziad Jneid (14 years 6 months' imprisonment) and the sentence imposed on Mr Russell (8 years' imprisonment) was objectively justifiable by reference to the greater seriousness of Mr Ziad Jneid's offence and his greater culpability.

8. Mr Ziad Jneid and Mr Rabih Jneid operated, in association, a drug‑dealing business on a very significant scale.  They engaged Mr Russell to act as a 'middle man' in connection with the methylamphetamine transaction on 28 March 2014.

9. The culpability of each of Mr Ziad Jneid and Mr Rabih Jneid for his offending was at 'the very high end of the scale having regard to the role [he] played and the seriousness of the offending' (ts 439).  Counsel for Mr Ziad Jneid's submission that Mr Russell was 'only slightly lower' in the hierarchy of distribution than Mr Ziad Jneid is without merit. The sentencing judge found, and was entitled to find, that Mr Russell was given instructions and directions, as a member of the distribution network, and was provided with an encrypted BlackBerry mobile telephone with a view to facilitating secure communication with Mr Ziad Jneid and Mr Rabih Jneid (ts 438).

10. Also, Mr Ziad Jneid was sentenced for his role in supplying 1.988 kg of high purity methylamphetamine whereas Mr Russell was sentenced for his role in supplying 990 g of high purity methylamphetamine.

11. It is true that Mr Russell had a substantial prior criminal record and that he committed the offence while he was on parole in relation to a term of imprisonment that had been imposed for other drug‑related offending.  However, those factors and the other facts and circumstances relating to Mr Russell and his offending were decisively outweighed by the facts and circumstances relating to Mr Ziad Jneid and his offending (in particular, the greater seriousness of Mr Ziad Jneid's offence and his greater culpability).

12. We are satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning Mr Ziad Jneid and Mr Russell, that the disparity between Mr Ziad Jneid's sentence and Mr Russell's sentence did not infringe the parity principle or the principle of equal justice.  The disparity between the sentences was not such as to give rise to a legitimate or justifiable sense of grievance on Mr Ziad Jneid's part, or to give the appearance in the mind of an objective observer that justice was not done as between Mr Ziad Jneid and Mr Russell or generally.

13. In our opinion, for the reasons set out in the confidential schedule to these reasons, Mr Ziad Jneid's complaint, based on the parity principle, as to the disparity between the sentence imposed on him and the sentence imposed on AS, is without merit.

14. Ground 2 fails.

Mr Ziad Jneid's appeal:  conclusion

1. None of Mr Ziad Jneid's grounds of appeal (including his proposed ground 4) had a reasonable prospect of success.  Leave to appeal should be refused.  The appeal must be dismissed.

Mr Rabih Jneid's appeal:  grounds of appeal

1. Mr Rabih Jneid relies on four grounds of appeal.

2. Ground 1 replicates, to a significant extent, ground 1 of Mr Ziad Jneid's ground 1.  In addition, Mr Rabih Jneid's ground 1 asserts that the sentencing judge's alleged error, in concluding that 'in association, you operated a drug dealing business on a very significant scale.  In view of the quantity and purity of methylamphetamine involved, you reaped significant financial rewards', was contrary to the agreed statement of facts.

3. Ground 2 alleges, in essence, that his Honour erred in stating that 'there was an element of concert in the commission of your separate offences for which you are to be sentenced today' (ts 437).

4. Ground 3 alleges, in essence, that his Honour erred in the application of the parity principle 'particularly by failing to or by not adequately considering or evaluating the relevant differences between each of Ziad Jneid, Rabih Jneid, [Mr Russell] and AS'.

5. Ground 4 alleges, in essence, that the sentence imposed on Mr Rabih Jneid was manifestly excessive.

6. On 7 March 2017, Mazza JA granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1, 2 and 3 to the hearing of the appeal.

Mr Rabih Jneid's appeal:  application in the appeal to adduce additional evidence and add an additional ground of appeal

1. By an application in the appeal dated 12 December 2017, Mr Rabih Jneid applied for leave to adduce additional evidence in the appeal and leave to add an additional ground of appeal.

2. The proposed additional evidence comprises a report dated 20 November 2017 from Dr Coxon.

3. In the report Dr Coxon said that on 9 November 2017 Mr Rabih Jneid's children 'were seen by Dr Sarah Barbas for forensic interview and assessment' and on 10 November 2017 Mr Rabih Jneid was interviewed at Hakea prison.  Dr Coxon expressed the following views in relation to '[t]he future prognosis of the children's psychological well‑being':

   The children appear to be safe, secure and happy with their current guardians and their proximity to their extended family and the Islamic community.  It will be important for the stability, safety and security of this environment to remain ongoing.  The children's future prognosis would also be improved following ongoing psychological intervention, increased involvement in enjoyable activities, and continued participation with the Langford Islamic College.  Finally, ongoing paternal involvement (regular visits with their father Mr Rabih Jneid) will be important for the children given their apparent strong, safe and secure relationship with him.

4. Mr Rabih Jneid's proposed additional ground 5 of his appeal reads:

   By reason of the hardship suffered by [the appellant's] three children, a lesser sentence should be passed, due to the extra burden on [the appellant's] service of his term of imprisonment by reason of his knowledge of the said hardship.

5. Plainly, the proposed additional evidence and the proposed additional ground 5 are interrelated.

Mr Rabih Jneid's appeal:  the organisation of the balance of these reasons

1. It is convenient, first, to consider ground 1, then ground 2, next ground 4, then proposed ground 5 and, finally, ground 3.

Mr Rabih Jneid's appeal:  ground 1:  his submissions

1. Counsel for Mr Rabih Jneid contended that the State did not adduce any evidence that Mr Rabih Jneid had 'reaped significant financial rewards'.

2. Counsel referred to a passage in Dr Coxon's report dated 30 August 2016.  In the passage Dr Coxon noted that Mr Rabih Jneid had 'reported [that at the time of the offence he was] very anxious and stressed financially as he could not pay off his mortgage and was worried about how his wife and children would survive with little money coming in'.

3. Counsel for Mr Rabih Jneid submitted that there was no evidence in the State brief which demonstrated that Mr Rabih Jneid had accumulated wealth from his drug dealing.  Rather, the position was as explained by defence counsel at the sentencing hearing before his Honour, namely that Mr Rabih Jneid's wife was worried about how she would support her family while her husband was in custody.  Defence counsel said that since he had been remanded in custody Mr Rabih Jneid's wife had been forced to obtain part‑time employment as a sales assistant.

4. According to counsel for Mr Rabih Jneid, there was no evidence in the State brief which supported his Honour's finding that Mr Rabih Jneid was 'at the top or near the top' of the drug supply hierarchy.

5. In summary, counsel for Mr Rabih Jneid argued that 'there was no evidence put forward that could have assisted [his Honour] in making the finding that [Mr Rabih Jneid] operated a drug‑dealing enterprise on a significant scale, was at the top or close to the top of the chain of distribution and [had] made a significant financial profit from the enterprise'.

Mr Rabih Jneid:  ground 1:  its merits

1. The sentencing hearing before the sentencing judge occurred on 31 August 2016.  After hearing submissions from the prosecutor and defence counsel, his Honour sentenced Mr Rabih Jneid (and, also, Mr Ziad Jneid) on that date.

2. Prior to the sentencing hearing before his Honour, the State filed and served written submissions on sentence dated 26 August 2016.  In those submissions it was contended that:

   (a)Both Mr Rabih Jneid and Mr Ziad Jneid were 'properly characterised as high level drug dealers who were willing and able to supply large quantities of high purity methylamphetamine which they knew was for further distribution in the community' [18].

   (b)Each of Mr Rabih Jneid and Mr Ziad Jneid was more than a mere courier or passive conduit for the drugs the subject of the charge against him [23].

3. Prior to the sentencing hearing before his Honour, Mr Rabih Jneid's lawyers filed and served written submissions on sentence dated 30 August 2016.  In those submissions it was asserted that Mr Rabih Jneid 'ought to be sentenced on the basis that he was not at the top of the drug hierarchy' [7.3].

1. At the sentencing hearing before his Honour on 31 August 2016, the prosecutor tendered (without objection) the papers comprising the State brief (including a copy of all recordings and other exhibits), and incorporated the contents of those papers, recordings and exhibits into the State's statement of material facts (ts 348).

2. At the sentencing hearing, the prosecutor and Mr Rabih Jneid's defence counsel repeated, relevantly and in substance, the arguments made in their written submissions on sentence.

3. The sentencing judge's finding that Mr Rabih Jneid, in association with Mr Ziad Jneid, operated a drug dealing business on a very significant scale and reaped significant financial rewards must be examined in the context of his Honour's sentencing remarks as a whole.

4. At the sentencing hearing, defence counsel for Mr Rabih Jneid expressly adopted the State's characterisation of Mr Rabih Jneid's role in the offending (ts 406), namely that Mr Rabih Jneid was to be sentenced on the basis that he had taken over Mr Ziad Jneid's extensive drug dealing business while Mr Ziad Jneid was overseas (ts 397).

5. The only information before his Honour as to Mr Rabih Jneid's alleged financial stress at the time of the offending was his self‑serving statements to Dr Coxon, as recorded in her report, namely that at the time of the offending he was 'very anxious and stressed financially as he could not pay off his mortgage'.

6. The sentencing judge was entitled to evaluate those self‑serving statements in the context of all of the material before him and to reject the comments as unsubstantiated.  As his Honour noted, not only was there no evidence before the court that Mr Rabih Jneid had a mortgage or as to his financial position at the time of the offending (ts 434 ‑ 435), there was positive evidence in the form of written character references which referred to Mr Rabih Jneid's financial generosity and significant ongoing charitable gifts (ts 405).

7. Mr Rabih Jneid's explanation for his offending, as recorded by Dr Coxon in her report, namely that he was under financial strain and was struggling to meet his mortgage payments, was therefore implausible.

8. In our opinion, his Honour's conclusion that '[i]n association, you operated a drug dealing business on a very significant scale.  In view of the quantity and purity of methylamphetamine involved, you reaped significant financial rewards' (ts 437), was not relevantly inconsistent with the statement of material facts agreed between the State and the legal representatives of Mr Ziad Jneid and Mr Rabih Jneid.  The statement did not deal with all matters of context relevant to the sentencing process.  There was no relevant inconsistency between the agreed facts, on the one hand, and his Honour's conclusion, on the other.

9. We are satisfied that:

   (a)the quantity (990 g) and purity (78%) of the methylamphetamine the subject of the offence of which Mr Rabih Jneid was convicted;

   (b)the price of $280,000 agreed upon by Mr Rabih Jneid and AS for the supply of those drugs;

   (c)Mr Rabih Jneid having assumed control of the drug supply operation when Mr Ziad Jneid went overseas for three weeks;

   (d)the content of the text messages we have reproduced at [69] above; and

   (e)the overall context of the intercepted communications between Mr Ziad Jneid, Mr Rabih Jneid, Mr Russell and AS,

   formed, in combination, a proper basis for the sentencing judge's findings that Mr Rabih Jneid, in association with Mr Ziad Jneid, operated a drug dealing business on a very significant scale and reaped significant financial rewards.  His Honour was entitled, on the information before him, to make those findings.  No error is apparent.

10. In any event, even if (contrary to our opinion) his Honour made the error alleged in ground 1, a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.  We are of that view generally for the reasons we give in dealing with the complaint of manifest excess in ground 4, but disregarding any impugned error of fact alleged in ground 1.

11. Ground 1 fails.

Mr Rabih Jneid's appeal:  ground 2:  his submissions

1. Counsel for Mr Rabih Jneid contended that the sentencing judge's statement in his sentencing remarks:

   I understand it is accepted by you that there was an element of concert in the commission of your separate offences for which you are to be sentenced today (ts 437),

   was erroneous.  

2. According to counsel, his Honour misdirected himself in making that statement because '[t]he legal principle of concert was simply irrelevant for sentencing purposes'.

3. Counsel for Mr Rabih Jneid argued that the sentencing judge had erroneously used this 'element of concert' as a basis for concluding that 'you were both at the top or very close to the top of the chain of distribution' (ts 437).

Mr Rabih Jneid's appeal:  ground 2:  its merits

1. The complaint in ground 2 about the sentencing judge's statement that 'there was an element of concert in the commission of your separate offences for which you are to be sentenced today' (ts 437) must be examined having regard to the context in which the statement was made.

2. The statement appears at the beginning of the following passage:

   I understand it is accepted by you that there was an element of concert in the commission of your separate offences for which you are to be sentenced today.  This is evidenced, for example, by paragraph 12 of the statement of material facts to the effect that on 14 March 2014, which was after the commission of the offence on 28 January 2014 by Mr Ziad Jneid, he went overseas for three weeks.  And it is accepted for the purpose of sentencing that Mr Rabih Jneid remained in Perth and took over the drug supply operation.

   You are, of course, brothers and you must be sentenced for the offence you committed and not at the same time for the offence committed by the other.  The sentences must also reflect that you have different antecedents (ts 437).

3. It is plain from that passage that his Honour made the impugned statement in the course of making a finding as to the factual context in which Mr Rabih Jneid committed his offence.  His Honour did not invoke the legal principle of 'acting in concert' in the sense of taking into account Mr Ziad Jneid's offending for the purpose of sentencing Mr Rabih Jneid for his offence (or in the sense of taking into account Mr Rabih Jneid's offending for the purpose of sentencing Mr Ziad Jneid for his offence).

4. In our opinion, the sentencing judge was entitled to make the general finding that there was 'an element of concert in the commission of your separate offences' in the sense that Mr Rabih Jneid and Mr Ziad Jneid were engaged in a drug dealing business.  His Honour was also entitled to make the specific finding that Mr Rabih Jneid assumed control of the drug supply operation when Mr Ziad Jneid went overseas for three weeks.

5. Ground 2 fails.

Mr Rabih Jneid's appeal:  ground 4:  his submissions

1. Counsel for Mr Rabih Jneid submitted that the sentence of 15 years' imprisonment was manifestly excessive in all the circumstances including Mr Rabih Jneid's personal circumstances and antecedents.

2. Counsel complained that, having regard to other cases of serious illicit drug offending, it was apparent that the sentence imposed on Mr Rabih Jneid did not properly reflect the criminality of his offending.

Mr Rabih Jneid's appeal:  ground 4:  its merits

1. The principles relating to a complaint of manifest excess, the relevant general sentencing principles and the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are set out at [75] ‑ [84] above.

2. We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to Mr Rabih Jneid's offending, including the cases listed at [85] above.

3. We have also considered other cases cited by counsel for Mr Rabih Jneid.

4. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes.  There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

5. After taking into account the differences in the facts and circumstances of the prior cases and the sentencing variables in those cases and the fact that there is no single correct sentence, we are satisfied that the sentence of 15 years' imprisonment imposed on Mr Rabih Jneid is broadly consistent with the sentencing pattern revealed by the prior cases.

6. The very serious nature of Mr Rabih Jneid's offending is apparent from the following:

   (a)The substantial quantity (990 g) and the high degree of purity (78%) of the methylamphetamine the subject of the offence.

   (b)The substantial value of the methylamphetamine.  The price agreed upon by Mr Rabih Jneid and AS for the supply of the drugs was $280,000.  If sold in smaller lots it had a value of up to $990,000 (and, potentially, a greater value if diluted).  See the statement of Detective Sergeant Richard Green at pages 1403 ‑ 1411 of the State brief.

   (c)Although it had not been proved that Mr Rabih Jneid owned the methylamphetamine, he was very close to the top of the hierarchy of distribution.

   (d)The offending involved planning and management by Mr Rabih Jneid in that he gave instructions to others who were lower in the hierarchy of distribution as to what they were to do and how they were to communicate with him, including through the use of encrypted BlackBerry mobile telephones that were provided with a view to making the communications secure.

   (e)The supply of the methylamphetamine was a commercial activity and Mr Rabih Jneid was motivated purely by financial gain.

7. Mr Rabih Jneid's offending was not mitigated by being isolated or an aberration.

8. He was not youthful or inexperienced for sentencing purposes.

9. Mr Ziad Jneid's plea of guilty was a mitigating factor. However, he entered the plea at a late stage and in the face of an overwhelming State case. The sentencing judge afforded him an appropriate discount of 10% pursuant to s 9AA of the Sentencing Act.

10. He was not remorseful and had not demonstrated any insight into the seriousness of his offending (ts 435, 439 ‑ 440).

11. As we have mentioned, Mr Rabih Jneid's prior criminal record included a previous conviction in 2002 for possessing 409.9 g of methylamphetamine with intent to sell or supply.  The current offence was not aggravated by the fact that Mr Rabih Jneid had a prior criminal record or by the fact that the previous sentences had not achieved the purpose for which they were imposed.  However, his previous conviction for drug dealing underscored the importance of personal deterrence as a sentencing factor in relation to the current offence.

12. We are satisfied, after evaluating and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors, in the context of:

    (a)the maximum penalty for the offence;

    (b)the seriousness of the offence;

    (c)the importance of personal and general deterrence as sentencing factors;

    (d)the general standards of sentencing applicable to the offence; and

    (e)the plea of guilty and the other matters of mitigation (including Mr Rabih Jneid's personal circumstances and antecedents),

    that the sentence of 15 years' imprisonment was not unreasonable or plainly unjust.

13. The existence of error in relation to the sentence is unable to be inferred from the sentencing outcome.

14. Ground 4 fails.

Mr Rabih Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 5:  his submissions

1. Counsel for Mr Rabih Jneid submitted that, by reason of the proposed additional evidence, a lesser sentence should have been imposed on Mr Rabih Jneid because knowledge of his children's hardship would increase the burden of his incarceration.

Mr Rabih Jneid's appeal:  application for leave to adduce additional evidence:  proposed ground 5:  their merits

1. The relevant statutory provisions and legal principles are referred to at [103] above.

2. We are satisfied, after examining the proposed additional evidence in the context of the material before the sentencing judge, that had the proposed additional evidence been before his Honour, a different sentence should not have been imposed.  Mr Rabih Jneid's knowledge of his children's hardship, as revealed by the proposed additional evidence, does not, having regard to all relevant facts and circumstances and all relevant sentencing factors, require or justify the imposition of a lesser sentence than 15 years' imprisonment.

3. The application for leave to adduce the additional evidence and to add the proposed ground 5 is without merit.  The application in the appeal dated 12 December 2017 should be dismissed.

Mr Rabih Jneid's appeal:  ground 3:  his submissions

1. As to parity between Mr Rabih Jneid and Mr Ziad Jneid, counsel for Mr Rabih Jneid submitted that:

   The only different sentencing considerations between [Mr Rabih Jneid] and [Mr Ziad Jneid] were as follows:

   a.[Mr Ziad Jneid] was sentenced for supplying 2 kg of methylamphetamine while [Mr Rabih Jneid] was sentenced for supplying 990 g of methylamphetamine; and

   b.[Mr Rabih Jneid] had a prior conviction for a drug offence in 2002, while [Mr Ziad Jneid] had no relevant prior criminal convictions.

2. It was submitted that, in those circumstances, the sentencing judge breached the parity principle by sentencing Mr Ziad Jneid to 14 years 6 months' imprisonment and Mr Rabih Jneid to 15 years' imprisonment.

3. As to parity between Mr Rabih Jneid and Mr Russell, counsel for Mr Rabih Jneid submitted that given:

   (a)Mr Russell had committed his offence while on parole; and

   (b)Mr Russell was only 'slightly lower' in the hierarchy of distribution than Mr Rabih Jneid,

   the sentence of 15 years' imprisonment imposed on Mr Rabih Jneid, compared to the sentence of 8 years' imprisonment imposed on Mr Russell, infringed the parity principle.

4. As to parity between Mr Rabih Jneid and AS, counsel for Mr Rabih Jneid submitted that:

   (a)the sentencing judge 'equated [Mr Rabih Jneid] being near to the top of the chain of distribution and being in possession of 1 kg of methylamphetamine with AS offending whilst on parole and having 2 kg of methylamphetamine';

   (b)his Honour was in error in sentencing Mr Rabih Jneid on that basis; and

   (c)in the circumstances, the sentence of 15 years' imprisonment imposed on Mr Rabih Jneid, compared to the sentence imposed on AS, infringed the parity principle.

Mr Rabih Jneid's appeal:  ground 3:  its merits

1. The applicable legal principles are set out at [108] ‑ [113] above.

2. In our opinion, the disparity between the sentence imposed on Mr Rabih Jneid (15 years' imprisonment) and the sentence imposed on Mr Ziad Jneid (14 years 6 months' imprisonment) was objectively justifiable.

3. It is true that Mr Ziad Jneid supplied 1.998 kg of methylamphetamine and Mr Rabih Jneid supplied about half of that quantity (990 g).

4. However, the greater criminality of Mr Ziad Jneid compared to the criminality of Mr Rabih Jneid in that respect had to be evaluated in the context of Mr Ziad Jneid's significantly different personal circumstances and mitigating factors compared to Mr Rabih Jneid's.

5. First, Mr Ziad Jneid, unlike Mr Rabih Jneid, had not previously been sentenced to a term of imprisonment.

6. Secondly, personal deterrence was a sentencing factor of materially greater importance in the case of Mr Rabih Jneid than it was in the case of Mr Ziad Jneid.

7. Thirdly, the sentencing judge took into account, and was entitled to take into account, the fact that Mr Ziad Jneid's wife has a serious neuropathological condition; it will be more difficult for her to manage the family (including their five young children) during his absence; and, in those circumstances, Mr Ziad Jneid will endure increased hardship while in custody.

8. We are satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning Mr Rabih Jneid and Mr Ziad Jneid, that the disparity between Mr Rabih Jneid's sentence and Mr Ziad Jneid's sentence did not infringe the parity principle or the principle of equal justice.  The disparity between the sentences was not such as to give rise to a legitimate or justifiable sense of grievance on Mr Rabih Jneid's part, or to give the appearance in the mind of an objective observer that justice was not done as between Mr Rabih Jneid and Mr Ziad Jneid or generally.

9. In our opinion, the disparity between the sentence imposed on Mr Rabih Jneid (15 years' imprisonment) and the sentence imposed on Mr Russell (8 years' imprisonment) was objectively justifiable by reference to the greater seriousness of Mr Rabih Jneid's offence and his greater culpability.

10. Mr Rabih Jneid and Mr Ziad Jneid operated, in association, a drug dealing business on a very significant scale.  They engaged Mr Russell to act as a 'middle man' in connection with the methylamphetamine transaction on 28 March 2014.

11. The culpability of each of Mr Rabih Jneid and Mr Ziad Jneid for his offending was at 'the very high end of the scale having regard to the role [he] played and the seriousness of the offending' (ts 439).  Counsel for Mr Rabih Jneid's submission that Mr Rabih Jneid was 'only slightly higher' in the hierarchy of distribution than Mr Russell is without merit.  The sentencing judge found, and was entitled to find, that Mr Russell was given instructions and directions, as a member of the distribution network, and was provided with an encrypted BlackBerry mobile telephone with a view to facilitating secure communication with Mr Rabih Jneid and Mr Ziad Jneid (ts 438).

12. It is true that Mr Russell had a substantial prior criminal record and that he committed the offence while he was on parole in relation to a term of imprisonment that had been imposed for other drug‑related offending.  However, those factors and other facts and circumstances relating to Mr Russell and his offending were decisively outweighed by the facts and circumstances relating to Mr Rabih Jneid and his offending (in particular, Mr Rabih Jneid's greater culpability) and the enhanced significance of personal deterrence arising from Mr Rabih Jneid's previous conviction for drug dealing.

13. We are satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning Mr Rabih Jneid and Mr Russell, that the disparity between Mr Rabih Jneid's sentence and Mr Russell's sentence did not infringe the parity principle or the principle of equal justice.  The disparity between the sentences was not such as to give rise to a legitimate or justifiable sense of grievance on Mr Rabih Jneid's part, or to give the appearance in the mind of an objective observer that justice was not done as between Mr Rabih Jneid and Mr Russell or generally.

14. In our opinion, for the reasons set out in the confidential schedule to these reasons, Mr Rabih Jneid's complaint, based on the parity principle, as to the disparity between the sentence imposed on him and the sentence imposed on AS, is without merit.

15. Ground 3 fails.

Mr Rabih Jneid's appeal:  conclusion

1. None of grounds 1, 2, 3 and proposed ground 5 of Mr Rabih Jneid's appeal had a reasonable prospect of success.  Leave to appeal on those grounds should be refused.  Ground 4 of his appeal has not been made out.  The appeal must be dismissed.

Mr Obradovic's appeal:  ground of appeal

1. Mr Obradovic relies on one ground of appeal.

2. The ground alleges, in essence, that the sentence imposed on Mr Obradovic was manifestly excessive.

3. On 19 May 2017, Mazza JA granted leave to appeal on the ground of appeal.

Mr Obradovic's appeal:  the ground of appeal:  his submissions

1. Counsel for Mr Obradovic submitted that the criminality involved in Mr Obradovic's role in the drug transaction did not justify the sentence imposed.  Mr Obradovic's role was not a vital and integral part of the transaction or the process of selling and supplying drugs generally.  His participation was not crucial in determining whether the transaction proceeded.  In all the circumstances, including Mr Obradovic's personal circumstances and antecedents, the sentence of 7 years' imprisonment was manifestly excessive.

Mr Obradovic's appeal:  the ground:  its merits

1. The principles relating to a complaint of manifest excess, the relevant general sentencing principles and the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are set at [75] ‑ [84] above.

2. We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to Mr Obradovic's offending, including Pham v The State of Western Australia;[51] Neumann; Nembousse v The State of Western Australia;[52] Le; Stokes v The State of Western Australia;[53] Ye v The State of Western Australia;[54] Yiu v The State of Western Australia;[55] Sherrif v The State of Western Australia;[56] and Tago v The State of Western Australia.[57]

   [51] Pham v The State of Western Australia [2011] WASCA 244.

   [52] Nembousse v The State of Western Australia [2015] WASCA 68.

   [53] Stokes v The State of Western Australia [2016] WASCA 87.

   [54] Ye v The State of Western Australia [2016] WASCA 103.

   [55] Yiu v The State of Western Australia [2016] WASCA 172.

   [56] Sherrif v The State of Western Australia [2017] WASCA 185.

   [57] Tago v The State of Western Australia [2018] WASCA 59.

3. We have also considered other cases cited by counsel for Mr Obradovic.

4. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes.  There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

5. After taking into account the differences in the facts and circumstances of the prior cases and the sentencing variables in those cases and the fact that there is no single correct sentence, we are satisfied that the sentence of 7 years' imprisonment imposed on Mr Obradovic is broadly consistent with the sentencing pattern revealed by the prior cases.

6. The serious nature of Mr Obradovic's offending is apparent from the following:

   (a)The substantial quantity (990 g) and the high degree of purity (78%) of the methylamphetamine the subject of the offence.

   (b)The substantial value of the methylamphetamine.  The price agreed upon by Mr Rabih Jneid and AS for the supply of the drugs was $280,000.  If sold in smaller lots it had a value of up to $990,000 (and, potentially, a greater value if diluted).  See the statement of Detective Sergeant Richard Green at pages 1403 ‑ 1411 of the State brief.

   (c)Mr Obradovic deliberately involved himself in the drug transaction with Mr Russell.  Although he may not have known the precise weight of the methylamphetamine or its purity, Mr Obradovic appreciated that it was a substantial amount of a prohibited drug (ts 519).

   (d)Although Mr Obradovic may not have received an immediate financial benefit for his role in the offending, his Honour found that he had engaged in the transaction with the expectation of receiving some credit in some way at some future time (ts 519).

7. Mr Obradovic was not youthful or inexperienced for sentencing purposes.

8. His plea of guilty was a mitigating factor. However, he entered the plea in the face of an overwhelming State case. The sentencing judge afforded him an appropriate discount of 15% pursuant to s 9AA of the Sentencing Act.

9. Mr Obradovic was not remorseful and had not demonstrated any insight into the seriousness of his offending (ts 522).

10. Mr Obradovic had a reasonably extensive prior criminal record.  The current offence was not aggravated by the fact that Mr Obradovic had a prior criminal record or by the fact that the previous sentences had not achieved the purpose for which they were imposed.  However, his previous convictions demonstrated that he was not of prior good character for sentencing purposes.

11. His Honour took into account the fact that Mr Obradovic had twice attended residential rehabilitation, was gainfully employed in his family's business, had the support of his family and partner, and had written a letter of apology to the court (ts 522 ‑ 523).

12. We are satisfied, after evaluating and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors, in the context of:

    (a)the maximum penalty for the offence;

    (b)the seriousness of the offence;

    (c)the importance of personal and general deterrence as sentencing factors;

    (d)the general standards of sentencing applicable to the offence; and

    (e)the plea of guilty and the other matters of mitigation (including Mr Obradovic's personal circumstances and antecedents),

    that the sentence of 7 years' imprisonment was not unreasonable or plainly unjust.

13. The existence of error in relation to the sentence is unable to be inferred from the sentencing outcome.

14. The ground of appeal fails.

Mr Obradovic's appeal:  conclusion

1. Mr Obradovic's ground of appeal has not been made out.  The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DR

RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS

9 MAY 2018