Kalbasi v The State of Western Australia - [2016] WASCA 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KALBASI -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 144

CORAM: McLURE P
MAZZA JA
MITCHELL JA

HEARD: 14 MARCH 2016

DELIVERED : 17 AUGUST 2016

FILE NO/S: CACR 178 of 2014
CACR 179 of 2014

BETWEEN: POUYAN KALBASI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1406 of 2011

Catchwords:

Criminal law - Appeal against conviction - Attempting to possess a prohibited drug with intent to sell or supply it to another - Whether the trial judge misdirected on the applicability of s 11(a) of the Misuse of Drugs Act 1981 (WA), the element of possession and consciousness of guilt - Whether the trial judge erred in disallowing cross-examination - Whether the trial judge erred in admitting evidence - Application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA)

Criminal law - Application for leave to appeal against sentence - Attempting to possess a prohibited drug with intent to sell or supply it to another - Total effective sentence 14 years 6 months' imprisonment - Whether the sentencing judge erred in his assessment of the superior role played by the appellant compared to his co-offender in the commission of the offence - Whether his Honour should have taken into account time to be served on parole

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 40(1)(e)
Criminal Code (WA), s 689(1)
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)(a), s 11(a), s 33(1), s 33(2), sch V
Prisons Act 1981 (WA), s 29
Sentencing Act 1995 (WA), s 15, s 34(2), pt 2 div 1, pt 13
Sentencing Administration Act 2003 (WA), pt 3
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

CACR 178 of 2014
Application for leave to adduce additional evidence granted
Leave to appeal on ground 1 granted
Leave to appeal on proposed grounds 3 and 6 refused
Appeal dismissed

CACR 179 of 2014
Leave to appeal refused on all grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T A Game SC & Ms L Hutchinson
Respondent: Ms A L Forrester

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Allami v The State of Western Australia [2013] WASCA 230
Archibald v The Queen (1989) 40 A Crim R 228
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Cumming v The Queen (1995) 86 A Crim R 156
Davies v The State of Western Australia [2006] WASCA 151
Davis v The Queen (1990) 5 WAR 269; (1990) 50 A Crim R 55
Do v The State of Western Australia [2014] WASCA 218
Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
Kalbasi v The State of Western Australia [2013] WASCA 241
Kirby v The Queen [2003] WASCA 164
Kirby v The Queen [2003] WASCA 239
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Lai v The Queen [1990] WAR 151; (1989) 42 A Crim R 460
Lam v The Queen [2014] WASCA 114
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595
R v Greatorex (1994) 74 A Crim R 496
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v JWRL (a child) [2010] WASCA 179
The State of Western Australia v R [2007] WASCA 72; (2007) 33 WAR 483
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wicks v The Queen (1989) 3 WAR 372
Yates v The State of Western Australia [2008] WASCA 144
Zanon v The State of Western Australia [2016] WASCA 91

TABLE OF CONTENTS

McLURE P: 7

Conviction appeal - grounds 1, 2 and the proviso
Ground 3
Ground 4
The sentence appeal

MAZZA & MITCHELL JJA: 18

Procedural history
The State's case

Facts of the offending
The listening device product recording (exhibit 31)
Police observations
Execution of the search warrant at the Falstaff Crescent premises
DNA evidence collected at Falstaff Crescent
Execution of the search warrant at the East Perth premises
Execution of the search warrant at the Kintail Road premises
Examination of mobile telephones seized by police
Evidence of Detective Senior Constable Bradley Marron
The charges against the appellant

The defence case

The issue of intention to sell or supply to another

The law - attempted possession
Appeal against conviction

Proposed ground 1 - alleged misdirection as to intention
Ground 2 - alleged misdirection as to possession

Submissions on ground 2
His Honour's directions on possession
Analysis of ground 2

Proposed ground 3 - the 731 number

Background to proposed ground 3
Submissions on proposed ground 3
Analysis of proposed ground 3

Ground 4 - Detective Shanahan's knowledge of the whereabouts of the appellant's bakery

Background to ground 4
Analysis of ground 4

Ground 5 - directions on the appellant's consciousness of guilt

His Honour's directions on flight
The law - flight as consciousness of guilt
Submissions on ground 5
Analysis of ground 5

Proposed ground 6 - evidence of appellant's presence in Sydney

Background to proposed ground 6
Analysis of proposed ground 6

The application of the proviso

The State's submissions on the application of the proviso
The appellant's application to adduce additional evidence
The appellant's submissions on the application of the proviso
Analysis - the 'outcome' aspect
Analysis - the 'process' aspect

Conclusion and orders - appeal against conviction
The appeal against sentence

Proposed ground 1

Mr Lothian's sentencing
The appellant's sentencing - 26 September 2014
The appellant's sentencing - 1 October 2014
The sentencing remarks
Submissions on proposed ground 1
Legal principles relating to proposed ground 1
Analysis of particular 1
Analysis of particular 2
Analysis of particular 3
Conclusion on proposed ground 1

Proposed ground 2 (as amended)

Submissions on proposed ground 2
The relevant statutory framework
History of parole determinations and minimum terms of imprisonment in s 93 of the Sentencing Act
History of s 93 of the Sentencing Act (court orders for parole eligibility)

Conclusion and orders - appeal against sentence

McLURE P: I agree with the orders proposed by Mazza and Mitchell JJA in the conviction and sentence appeals. I agree with their reasons on grounds 5 and 6 in the conviction appeal and ground 1 of the sentence appeal. I propose to state my own reasons on grounds 1, 2, 3, 4 and the application of the proviso in the conviction appeal. Grounds 1, 2 and the proviso are closely linked. The background is detailed in the joint judgment and not repeated here unless required for an understanding of these reasons.

Conviction appeal - grounds 1, 2 and the proviso

The appellant was convicted after a retrial of one count of attempting to possess a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA) (MDA). The appellant did not give or adduce evidence at his retrial.
The charge related to 4.891 kg of 84% pure methylamphetamine in two padlocked tool cases inside a cardboard box which, on 12 November 2010, was in the possession of a freight company in Sydney for consignment to Perth. The consignment note for the cardboard box containing the drugs had instructions to ring James Walker on 0413 717 731 (the 731 number) for collection in Perth.
On 12 November 2010 New South Wales Police searched the cardboard box at the Sydney premises of the freight company. The methylamphetamine, in 10 heat‑sealed bags, was located in the tool cases. Police brought the cardboard box to Perth and on 15 November 2010 rock salt was substituted for the methylamphetamine. The drug substitute was packaged and stored in the same way as the drugs found by police on 12 November 2010. A listening device was also placed in the cardboard box.
After an unsuccessful attempt on 15 November 2010, Matthew Lothian collected the cardboard box from the Kewdale premises of the freight company on 16 November 2010 and carried it into his house in Falstaff Crescent, Spearwood (Lothian's house) at about 3.16 pm on that day.
At about 3.20 pm on 16 November 2010, the appellant arrived by bicycle at Lothian's house. The appellant left Lothian's house at around 3.57 pm, 37 minutes later. The State case was that during that 37 minute period the appellant was in possession of the whole of the drug substitute (the intended drugs), believing it to be the methylamphetamine removed by police. It relied on, inter alia, the comings and goings of the appellant and Mr Lothian to and from Lothian's house on 16 November 2010, the listening device product of events in Lothian's house during the 37 minutes and a police video of a search of Lothian's house at 3.58 pm on 16 November 2010.
The evidence established the following. Mr Lothian's girlfriend, Venetia Tilbrook, was in Lothian's house from the time Mr Lothian arrived with the cardboard box at 3.09 pm on 16 November 2010 until she left at 3.38 pm. The only others in Lothian's house during the 37 minutes were the appellant and Mr Lothian. After the appellant entered Lothian's house at around 3.20 pm, the cardboard box was opened; the padlocks were cut from the tool cases; the 10 packages of intended drugs were removed from the tool cases; conversations took place between two males, much but not all of which was indistinct; the plastic vacuum sealed outer wrapping of the 10 packages containing the intended drugs was removed and placed in the kitchen sink; nine packages of intended drugs were placed on the bottom shelf of the kitchen cupboard; a plastic bag containing one package of intended drugs was placed in a beer carton used as a makeshift bin; a baking dish containing MSM (a cutting agent commonly added to methylamphetamine to increase the quantity of drug available for distribution) was on the stove in the kitchen; on the kitchen bench were three bowls, two pairs of disposable gloves, three digital scales, a lighter, and a box of disposable gloves; bolt cutters were found in the kitchen; at around 3.40 pm the appellant asked Mr Lothian for a pipe; about four minutes after the appellant asked for the pipe, the appellant said to Mr Lothian 'Don't move' and 'I'll come back'; around 3.57 pm the appellant left Lothian's house on his bicycle.
The appellant's DNA was on one of the two pairs of disposable gloves found on the kitchen bench. The State case was that the appellant and Mr Lothian were in the process of adding MSM to some of what they thought was methylamphetamine when the appellant sampled the substance and discovered it was not what he was expecting.
The respondent conceded ground of appeal 1 and relies on the proviso. The appellant claims in ground 1 that the trial judge erred in directing the jury that s 11 of the MDA applied to the offence with which the appellant was charged. Section 11 relevantly provides:
For the purposes of ‑
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.
The amount of methylamphetamine giving rise to a presumption of intention to sell or supply is 2 gm. However, s 11 does not apply to an attempted breach of s 6(1)(a) of the MDA: Krakouer v The Queen (1998) 194 CLR 202.
After the parties closed their cases the trial judge raised with counsel, in the absence of the jury, his intended directions. The following exchange occurred on the issue of intention to sell or supply to another, referred to as 'the fourth element' and 'element 4':
STEVENSON DCJ: So what do we say about the fourth element?
MORRISSEY, MR: Well, if my client is found to be in possession, as I've put - if he's in possession of it … the inference would be that he's in possession of it, intending to sell or supply the prohibited drug, given the volume. If he's found to be in possession, there's no - - -
STEVENSON DCJ: Can I tell the jury, Mr Morrissey, that I can go to presumptions, if you wish, but that there is no contest, there is no issue in this trial. If they are satisfied beyond reasonable doubt that your client was in possession in the legal sense of the drugs at the relevant time in the relevant place, then they need not concern themselves with element 4.
There's no contest about that because your client doesn't seek to prove otherwise, given the deeming provision. The issue for the jury is to be found in relation to the third element.
MORRISSEY, MR: Yes, that's correct, your Honour.
STEVENSON DCJ: Yes. All right. Well, I just wanted to make sure I could - - -
…
MORRISSEY, MR: We went round and round and round but your Honour is correct, that the battlefield here is on element 3 (ts 1026).
This exchange is equivocal on the question whether the concession relating to intention was based on the fact of the very large quantity of high purity drugs in issue or on the application of the presumption in s 11 of the MDA.
On the subject of intention to sell or supply, the trial judge's direction to the jury was in the following terms:
I'm now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.
Very briefly, the law is that if you are found in possession of more than two grams of methylamphetamine then you are presumed to be in possession with intent to sell or supply it to another and the onus is on you to remove that presumption.
There is no issue in this trial about the fourth element and as I've said it will not delay your deliberations (ts 1057).
It is clear from the prosecution opening and closing that its case was that the appellant was in control (and thus in possession) of what he believed to be nearly 5 kg of methylamphetamine during the time he was in Lothian's house, at least until he became aware that the substance was not methylamphetamine. It was no part of the State case that the appellant was in physical custody of part of the intended drugs.
It is also clear from the defence opening by Mr Morrissey QC that he well understood the scope of the prosecution case and that the sole live issue between the parties was whether the appellant was in control of the intended drugs (jointly with Mr Lothian) when in Lothian's house. The appellant's defence was that he was not in possession of the intended drugs and that Mr Lothian was the owner and in sole possession thereof.
Mr Morrissey swore an affidavit filed in the appeal stating that had he recognised that s 11 of the MDA did not apply, he believed he would not have acceded to the direction to the jury that intention was not in issue. That evidence is not challenged. Notwithstanding the formulation of ground 1, the gravamen of the complaint concerning the direction is not the reference to the deeming effect of s 11 but the consequence of the appellant's concession that if the appellant was found to be in possession of the intended drugs the element of intention to sell or supply was satisfied.
However, on the State case at trial, a finding of intention to sell or supply to another was inevitable having regard to the very large quantity of high purity drugs involved. It is for this reason that ground 2 assumes particular significance for the purpose of the proviso.
In ground 2, the appellant claims the trial judge erred in his directions regarding possession as a result of the use of expressions 'involved with' (ts 1061), 'having done something' (ts 1055), 'dealt with' (ts 1052, 1053) and 'dealing with the intended drugs in [Lothian's house] in some way' (ts 1057). The appellant contends the trial judge used these expressions as equal to and synonymous with possession or control and that was an error because there are various ways in which a person can deal with a drug without being in possession of it. In particular, senior counsel for the appellant submitted that a person who samples a drug in order to decide whether to buy some for personal use, is not in possession of the amount sampled, or if he is, it is not with an intention to sell or supply to another.
There are two other, related aspects to ground 2. First, the appellant contends that the mischief in the directions on possession must be viewed in the context of the appellant's reliance on Mr Lothian's dealings with the drugs to establish that he owned the drugs to the exclusion of the appellant. It is said the trial judge diluted this defence by directing the jury that the State did not need to, and could not possibly, prove who was the owner of the drugs and the jury should have been directed that an inference of ownership by Mr Lothian might be incompatible with the State's case of joint possession with the appellant.
Second, the appellant contends that the effect of the misdirection on possession is compounded by the trial judge's direction that the State did not have to prove what the appellant had in his mind before he got to Lothian's house and that the State did not have to prove that the appellant put the nine unopened bags of intended drug substitute in the kitchen cupboard in order for him to be in possession but that if Mr Lothian had done so, nothing would turn on that. The appellant claims his intention prior to and upon his arrival at Lothian's house was relevant to whether he possessed the intended drugs with the requisite intention (to sell or supply to another) or an intention to test or purchase drugs for his own use. Evidence that Mr Lothian had moved the intended drugs was said to be relevant to his ownership or control thereof to the exclusion of the appellant.
I start with the ground as formulated. The expression 'dealt with' at ts 1052 and 1053 is a reference to the steps taken in relation to the intended drugs whilst the appellant was in Lothian's house for the purpose of proving that the appellant believed that he and Mr Lothian had a prohibited drug in their possession.
On the possession element, particular reliance is placed upon the following direction:
The issue is whether or not the accused was in possession of the intended drugs by reason of his control or having done something to them while they were in [Mr Lothian's house] (ts 1055).
When considered in its broader context, the expression complained of in that extract (and other similar expressions) would be understood as directing the jury's attention to whether, having regard to what had occurred in Lothian's house, the appellant was in control of the intended drugs, and thus in possession of it. That is clear from the directions as a whole. The trial judge identified the question to be whether the jury was satisfied beyond reasonable doubt that while the accused was in Lothian's house he exercised control and dominion over the intended drugs even though it appeared Mr Lothian was also in possession (ts 1057). The trial judge continued:
So you will appreciate from my direction, awareness on its own of the existence of the intended drugs in [Lothian's house] is not sufficient. If you are satisfied that the State has as a fact proved beyond reasonable doubt that the accused was involved in dealing with the intended drugs in [Mr Lothian's house] in some way, that will assist you to be satisfied beyond reasonable doubt that he was in possession of the drugs at the relevant time (ts 1057).

That is, the appellant's presence and participation in the activities relating to the intended drugs during the period he was in Lothian's house was part of the evidentiary foundation relied on to support an inference of control. That is also manifest in the following direction:
The State relies on a number of facts which it says the evidence has proved. They include the arrival of the accused at [Lothian's house] at 3.20 pm and the fact that he was inside those premises for about 37 minutes, during which time, the State says, you can infer from the evidence that he was involved in dealing with the intended drugs.
The State relies upon the surveillance operative's observations as to who came and went when. The State relies upon the listening device product, the audio and the content of the conversations between the two males on that evidence.
The State relies upon the position of the various items inside [Lothian's house] a minute or so after the accused had left the premises when the police arrived, and the State says to you that you can infer from all of the evidence what in fact was happening inside [Lothian's house] during the relevant time.
The State also relies upon the fact that two pairs of pink gloves were located by the police on entry on the kitchen bench, and one of those contained DNA from the accused. The State also relies upon the mobile phone evidence and the evidence of surveillance operative 329, who gave evidence that based on his observation at the time he thought that the accused appeared to make a telephone call in the park shortly after he left [Lothian's house] at 3.47 pm.
The State relies upon the fact that BlackBerry charger was located on the kitchen bench in the home of the accused at 71 Kintail Road, Applecross but that no phone was recovered in the investigations in the various places, and that charger did not fit other phones at 71 Kintail Road.
The State also relies upon the evidence that a white BlackBerry phone was located in the tool room at [Lothian's house], and you heard the evidence … that it has a code lock on it and could not be downloaded (ts 1058 ‑ 1059).
The trial judge then directed the jury on the various communications from the 731 number to the telephones of Ms Tilbrook and Mr Tassone (ts 1060) and identified the intermediate inferences in the State case, being that Mr Lothian waited until the appellant was inside the house before the cardboard box was opened, that the appellant had tested the intended drugs by using the pipe and that the appellant was involved in cutting the intended drugs (ts 1061). Thus, the trial judge directed the jury's attention to all the relevant facts and circumstances falling within what are, in effect, umbrella expressions for the purpose of determining whether the appellant was in possession of the intended drugs in Lothian's house.
The State case was confined to proving that the appellant was in control of all the intended drugs. It was no part of its case that the appellant was in physical custody of that part of the intended drugs he sampled or tested.
Moreover, it was no part of the defence case in opening (or thereafter) that the appellant's conduct in going to Lothian's house and his activities therein were consistent with an intention to purchase a small quantity of methylamphetamine for his own use, subject to satisfying himself (by testing or sampling) as to its quality. The background compels the conclusion that this was a considered and justifiable forensic decision. In his first trial, the appellant gave evidence that he went to Lothian's house for the purpose of purchasing drugs for his personal use and gave an innocent explanation for requesting a pipe. The evidence adduced by the State against the appellant at his first trial went beyond the evidence adduced at his retrial. A claim that the guilty verdict in the first trial was unsafe and unsatisfactory was dismissed: Kalbasi v The State of Western Australia [2013] WASCA 241.
The only hook relied on by the appellant on which to hang his claim in the appeal that an intention to purchase drugs for personal use, subject to a quality check by smoking a small amount, was a live issue at the retrial is a reference in defence counsel's closing address to the purchase of a Nissan car (ts 25). However, the purpose and effect of the analogy was directed to the point that a person does not 'control' a thing just by being present and looking at it. The only live issue between the parties at the retrial was whether the appellant was in control of the whole of the intended drugs.
Ground 2 as formulated is without merit. Moreover, the use of the umbrella expressions occasioned no relevant prejudice to the defence case that Mr Lothian was the owner and in sole possession of the intended drugs. Insofar as the alleged flow‑on effects are in reality stand‑alone complaints, they do not give rise to an error of law or miscarriage of justice.
As noted earlier, once the jury found that the appellant was in possession of the intended drugs, a finding that he was in possession with an intention to sell or supply to another was, having regard to the very large quantity of high purity drugs, inevitable. I am satisfied that the jury verdict of guilty is correct, that the s 11 error and the appellant's concession could and should have no effect on the verdict and that the retrial was fair in all respects. Accordingly, there has been no substantial miscarriage of justice.

Ground 3

The appellant claims the trial judge erred in permitting evidence of telephone contact between the 731 number and Mr Tassone whilst not permitting cross‑examination on matters which flowed from it. In particular, it is contended the trial judge erred in not permitting defence counsel to question Detective Shanahan on the following: (1) why Mr Tassone had not been charged with an offence; (2) why no effort was made by police to interview him about his receipt of a call from the 731 number; and (3) the nature of his relationship with the appellant. At the hearing of the appeal, senior counsel for the appellant did not press claims (1) and (3). They are without merit.
The factual background is that Mr Tassone (and a number of others) collected the appellant from Hakea Prison on 18 November 2014. Mr Tassone also went with the appellant to his Applecross home and was present when it was searched by police on that day. Mr Tassone's phone was seized and was returned to him the next day (ts 933).
On 9 November 2010 Mr Tassone's telephone received an incoming call from the 731 number that went for 50 seconds (ts 937). Further, the telephone of the appellant's wife showed an SMS message from Mr Tassone on 17 November 2010.
The timing and frequency of telephone communications between the 731 number and Ms Tilbrook's mobile telephone, which was used by Mr Lothian, together with the nomination of the 731 number on the consignment note implicates the person using the 731 number in the consignment of the prohibited drugs from Sydney to Perth.
The evidence of the contact between the 731 number and Mr Tassone was relied on to connect the appellant to the prohibited drugs in the cardboard box. The defence position at trial was that to the extent the evidence had any probative value, the failure of the police to investigate Mr Tassone or take a statement from him would have put paid to any reliance on the evidence, which would become a neutral fact (ts 925). It was no part of the appellant's case that the police investigation was deficient in any respect. Evidence that there was no investigation or statement could not establish an innocent connection between the 731 number, Mr Tassone and the appellant (ts 922, 924). Further, it would not neutralise the evidence relating to the call from the 731 number to Mr Tassone. The probative value of that evidence derives from the broader context. There was evidence that the appellant was seen using a mobile telephone very shortly after leaving Lothian's house, although none was found. A missing BlackBerry from the appellant's home was not accounted for. There was a delay in searching the appellant's home because he had informed police that he lived at an address in East Perth. Mr Lothian's white mobile telephone, which he was seen using at the freight company's Kewdale premises, had a PIN lock and could not be downloaded. There was evidence in the listening device product that Mr Lothian had sent a text message to the appellant from the freight company premises on 16 November 2010. The extent to which the appellant and Mr Lothian protected their communications is consistent with the appellant receiving communications through an intermediary. The intermediary could be an innocent agent.
The fact that the 731 number had contacted Mr Tassone is relevant and admissible contextual evidence in the circumstantial case against the appellant. On the other hand, whether or not police had investigated Mr Tassone or taken a statement from him is not relevant. Even if police had decided not to do so, the jury would be left to speculate about what informed that (inadmissible) evaluative assessment.

Ground 4

The appellant claims the trial judge erred in disallowing cross‑examination of Detective Shanahan as to his knowledge of the appellant's bakery in Fremantle.
Defence counsel explained to the trial judge that he wanted to ask Detective Shanahan whether the appellant was heading generally in the direction of Fremantle when he left Lothian's house. The purpose of that evidence was not to contradict the State's contention relating to the 'flight evidence' based on the appellant's conduct in the park. Rather, it was directed to the State's contention that the appellant left Lothian's house because he had ascertained that the substance he smoked was not methylamphetamine.
Senior counsel for the appellant accepted, as is the case, that any error by the trial judge in disallowing cross‑examination on this issue was of a trivial kind. It is incapable of giving rise to a substantial miscarriage of justice. Ground 4 should be dismissed.

The sentence appeal

Proposed ground 2 has no reasonable prospect of succeeding. It is in the following terms:
The court erred in failing to address itself, in sentencing, to the factors relevant to the fixing of the parole eligibility order (and non‑parole period) it imposed under s 89 of the Sentencing Act; accordingly, the sentencing discretion miscarried in relation to the fixing of the overall sentence and the parole term imposed.
The issue is one of statutory construction. The appellant's submissions focus on s 89 and s 93, both of which are in pt 13 of the Sentencing Act 1995 (WA) (the Sentencing Act). The appellant asserts, without any supporting analysis, that the introduction of those sections by the Sentencing Legislative Amendment and Repeal Act 2003 (WA) (the Amendment Act) altered the law in this State. I do not accept the assertion.
Central to the appellant's construction submission are the following steps. First, before fixing the term of imprisonment under s 89(1), the court must determine whether to make a parole eligibility order. Second, a court acting under s 89(1) is determining and fixing the appropriate length of the non‑parole period. Third, the factors relevant to fixing the length of the non‑parole period are the same factors applicable to the setting of a minimum term in the statutory framework considered in Power v The Queen (1974) 131 CLR 623, 627 and Bugmy v The Queen (1990) 169 CLR 525. Those principles are currently only applied in the determination of the non‑parole period when an offender is sentenced to life imprisonment, which is not a 'fixed term' to which s 89 applies: Lam v The Queen [2014] WASCA 114 [42] ‑ [48].
The appellant's construction argument fails at each step. The statutory penalties in, or relating to, the relevant offence creating provision, s 148 of the Criminal Procedure Act 2004 (WA) and s 39(2)(h) of the Sentencing Act are the source of the court's power to impose a term of immediate imprisonment, which power is regulated by pt 13. The term 'head sentence' is to be avoided in this context because it has a particular meaning under s 9AA of the Sentencing Act.
Section 89 is the source of the power to make a parole eligibility order, not the source of the power to sentence an offender to immediate imprisonment. That was also the case under the version of s 89 of the Sentencing Act as it was prior to the Amendment Act.
The existence of a parole eligibility order made under s 89(1) is the factum that enlivens the application of s 93 of the Sentencing Act which governs the release from imprisonment of a person on parole. Section 93 only applies to a prisoner serving a 'parole term', which is defined in s 85 as a term to which a parole eligibility order applies. Section 93(1) relevantly provides that a person serving a parole term is eligible to be released on parole ‑
(a)if the term served is 4 years or less - when he or she has served one half of the term; or
(b)if the term served is more than 4 years - when he or she has served 2 years less than the term.
Section 93(1) makes it unequivocally clear that the court has no role in determining the period that a prisoner has to serve before he or she is eligible to be released on parole. That period is the 'non‑parole period', as that term is defined in the Sentence Administration Act 2003 (WA) (the

Administration Act). The history and purpose of this legislative framework is discussed in Lam [36] ‑ [39]. The court has had no role in determining the non‑parole period (minimum term) before and after the commencement of the Sentencing Act and the Amendment Act. Moreover, whether or not an offender will be released on parole is a matter solely within the power of the Prisoners Review Board under the Administration Act, s 19. It is always an unknown at the time of sentencing.

To suggest, as the appellant does, that a sentencing judge is required or permitted to ameliorate the effect of s 93(1)(b) by reducing the otherwise appropriate sentence is fanciful. It is inconsistent with the scheme in s 6 ‑ s 8, s 39, s 89 and s 93 of the Sentencing Act and would subvert the obvious legislative intention and purpose.
In summary, each step in the appellant's construction argument is inconsistent with the text, context and purpose of the sentencing and parole provisions of the Sentencing Act and the wider statutory context. Steps 2 and 3 of the appellant's construction submission are also inconsistent with authority: Lam; Kirby v The Queen [2003] WASCA 239 [26]; The State of Western Australia v BLM [2009] WASCA 88 [22]. The appellant's construction must also fail even if s 89(1) is the source of the power to impose a term of imprisonment. The rejection of the appellant's construction does not depend upon, or require, a conclusion that a sentencing judge must first determine the length of the fixed term before determining whether to order eligibility for parole. Such a prescription introduces inappropriate formalism and rigidity that is not sourced in the Sentencing Act.
MAZZA & MITCHELL JJA: The appellant stood trial in the District Court before Stevenson DCJ and a jury on one count of attempting to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA) (MDA). On 26 September 2014, the jury returned a verdict of guilty (ts 1085). On 1 October 2014, the appellant was sentenced to 14 years 6 months' imprisonment with eligibility for parole, backdated to commence on 17 March 2013 (ts 1159).
The appellant now appeals to this court against his conviction and sentence. In his appeal against conviction, he has applied to adduce additional evidence with respect to ground 1. The proposed additional evidence comes from senior and junior counsel who appeared for the appellant at trial. The State did not object to the admission of this

evidence (appeal ts 3). The application to adduce additional evidence should be granted.

Procedural history

The trial before Stevenson DCJ and a jury was a retrial. The appellant had been convicted at an earlier trial, but that conviction was quashed by this court in Kalbasi v The State of Western Australia [2013] WASCA 241. At the earlier trial, the appellant gave evidence. At the retrial, he did not give or adduce any evidence.

The State's case

Facts of the offending

The primary facts established by the evidence were largely uncontested.
On 12 November 2010, New South Wales police, at the request of their Western Australian counterparts, obtained and then executed a search warrant at the premises of General Carrying Pty Ltd (General Carrying) in Sydney. New South Wales police were shown a cardboard box for consignment to Western Australia. According to the consignment note, dated 12 November 2010, the sender was 'Brendan Victor'. Written on the note was an instruction on receipt to call 'James Walker' on a specified mobile telephone number which ended with 731 (the 731 number) for pickup (exhibit 2). Detective Max Kral, of the New South Wales police, opened the cardboard box. Inside were two padlocked solid plastic toolboxes, each of which contained five heat‑sealed plastic bags of what turned out to be methylamphetamine. Each of the 10 bags weighed approximately 500 g. Later analysis revealed that the total amount of methylamphetamine in the bags was 4.981 kg with a purity of 84% (exhibit 6).
On 14 November 2010, Detective Kral brought the cardboard box, without the methylamphetamine, to Perth. On 15 November 2010, its contents were replaced with rock salt, and the packages and cardboard box were 'reconstructed' (exhibit 7). Police placed a listening device inside the cardboard box. At this time, police did not know the identity of the person(s) due to receive the cardboard box and its contents.
Later on 15 November 2010, Detective Michael Hill went to the Kewdale premises of General Carrying. There, he observed a man named Matthew David Lothian attempt to pick up the cardboard box. Mr Lothian was sent away empty‑handed and told to return the following day (ts 710). Mr Lothian was then kept under surveillance by undercover police officers until 9.45 pm that day (ts 763, 773). He was seen attending an address in Falstaff Crescent, Spearwood (Falstaff Crescent). Mr Lothian was observed making two calls from a public telephone box.
On 16 November 2010, Detective Hill brought the reconstructed cardboard box to General Carrying and gave it to the manager, Mr Robert Downing (ts 710). By this time, Mr Lothian was subject to constant undercover police surveillance. Mr Lothian was observed by undercover officers driving by car (a Toyota Prius) towards Kewdale. On the way, the vehicle ran out of fuel. Mr Lothian took a taxi to General Carrying, arriving at 2.15 pm. At about 2.18 pm, he was seen using a mobile telephone. Mr Lothian was seen collecting the cardboard box and placing it in the rear of the taxi. At 2.20 pm, the taxi drove off with Mr Lothian in the front passenger seat (ts 727). The taxi then drove to a petrol station where Mr Lothian purchased a jerry can of fuel. The taxi dropped Mr Lothian off at his car at about 2.38 pm (ts 729 ‑ 730).
After Mr Lothian refuelled his car, he took the cardboard box from the taxi, put it in the boot of his car and drove to Falstaff Crescent, arriving there at about 3.09 pm. He was seen by undercover police officers carrying the cardboard box inside the house at about 3.16 pm (ts 738).
Less than 5 minutes later, at about 3.20 pm, the appellant arrived by bicycle at Falstaff Crescent (ts 738).
At 3.36 pm, Mr Lothian was seen leaving the house and going to his car for a short time and then returning (ts 744 ‑ 745). At 3.38 pm, Mr Lothian's girlfriend, Ms Venetia Tilbrook, was seen leaving the house (ts 744). Mr Lothian was also seen temporarily leaving the house at about this time.

At about 3.57 pm, the appellant was observed leaving Falstaff Crescent, getting onto his bicycle and riding away into a large park opposite the house (ts 744). A surveillance operative observed him to appear to make a mobile telephone call (ts 764).

The listening device product recording (exhibit 31)

The recording of the sounds picked up by the listening device secreted inside the cardboard box is of poor quality. There is a difference between the time shown on the recording and the actual time of approximately four minutes. What we have distinctly heard is the following:
(a)Sounds consistent with the cardboard box being opened and the locks on the toolbox being cut.
(b)The sounds of three voices - two males (the appellant and Mr Lothian) and one female (Ms Tilbrook).
(c)The female voice (Ms Tilbrook) saying 'I'll be back', to which a male voice (Mr Lothian) replies 'See you later'.
(d)One of the males (the appellant) refers to the other as 'Matty'.
(e)At one point, the following conversation took place between the two males:
MR LOTHIAN: [indistinct] when I first text ya, yeah, from there, mate, anyway, everything went to shit (laugh).
THE APPELLANT: What?
MR LOTHIAN: [indistinct] my [indistinct] fucking [indistinct] let me down. Lucky mate, on the way back coz I knew I was getting low on fuel, I fucking pulled into a servo. I stopped like about 50 metres before the servo, I ran out of fuel. I was like 'fuck me'. No warning light, nothing.
(f)At about 3.40 pm, the following conversation between the two males is heard:
THE APPELLANT: Matty.
MR LOTHIAN: Yo.
THE APPELLANT: You got a pipe?
MR LOTHIAN: A what?
THE APPELLANT: A pipe.
MR LOTHIAN: Yeah.
(g)Approximately 10 minutes later, the appellant says 'Don't move. I'll come back', and shortly after, a door is heard to close.

Police observations

On 16 November 2010, Detectives Peter Shanahan and James Ferrie were sitting in an unmarked police vehicle near Falstaff Crescent. Upon being advised that the appellant had left Falstaff Crescent and was riding across the park, they pursued him in their vehicle. Detective Shanahan testified that the appellant looked in his direction and stopped pedalling for a second, but continued to ride away (ts 908). Detective Ferrie shouted out of the vehicle window 'Police, stop', but the appellant did not do so. As police got closer to the appellant, Detective Ferrie again yelled 'Police, stop'. At this point, the appellant fell off his bicycle (ts 783 ‑ 784, 909). The police vehicle then collided with the bicycle. Detective Ferrie said that he got out of the vehicle and yelled at the appellant for the third time 'Police, stop'. The appellant ran off, but he was pursued on foot by both officers. Eventually, the appellant stopped running and he was apprehended (ts 784, 909). The State relied upon the appellant's flight as evidence of consciousness of guilt.

Execution of the search warrant at the Falstaff Crescent premises

Meanwhile, at 4 pm, other police officers entered the Falstaff Crescent premises. Mr Lothian was the only person inside. Police video recorded their search (exhibit 15). The video shows that the living room and kitchen were small in area and in very close proximity. It was possible to see from the living room into the kitchen and vice versa (see floor plan, exhibit 20). The opened cardboard box that had been collected from General Carrying was found in the lounge area, and the open tool cases were in the adjacent kitchen area. One of the bags of rock salt, plastic clipseal bags and two broken padlocks were found in a beer carton that was being used as a makeshift bin (exhibit 26). The other nine bags of rock salt were found on the bottom shelf of a kitchen cupboard. The plastic outer wrapping of the 10 bags of rock salt was found in the kitchen sink. On the kitchen sink were four clean bowls, at least three of which may fairly be described as mixing bowls, three sets of digital scales, a box of disposable gloves and two pairs of what appear to have been used disposable gloves (exhibit 23). Bolt cutters were also found in the kitchen.
The two pairs of disposable gloves were close to each other and, in the case of one pair, one glove was inside the other. A third pair of disposable gloves was found on a table in the hallway. A substance commonly used to cut methylamphetamine, MSM, was found in a baking dish on the stove. A white BlackBerry mobile telephone was found in a room used to store tools. This mobile telephone had a PIN lock on it and the information in it could not be downloaded (ts 890). Mr Lothian had been seen using what appeared to be a white mobile telephone at the premises of General Carrying. Quantities of methylamphetamine said only to belong to Mr Lothian were found in the kitchen and in the bedroom drawer (exhibit 47; ts 919).
Documents found at Falstaff Crescent revealed that Mr Lothian had flown from Perth to Sydney on 11 November 2010 (ts 812). The relevant boarding pass was in the name of 'Lathian'. It is not known when Mr Lothian returned to Perth, but, plainly, he did so no later than 15 November 2010.

DNA evidence collected at Falstaff Crescent

Dr Annette Broome, a forensic scientist employed by PathWest and a DNA expert, testified for the State. Her evidence was directed to the three pairs of disposable gloves found at Falstaff Crescent.
With respect to the single pair found on a table in the passage (GFE 17; exhibit 27.1 ‑ 27.3; ts 830 ‑ 831), a mixed DNA profile matching Mr Lothian and Ms Tilbrook was detected on both gloves. The appellant was excluded as a contributor to those mixed profiles (ts 991 ‑ 994).
The two pairs found in the kitchen were marked GFE 16 and GFE 18 (exhibits 28.1 ‑ 28.7, 29.1 ‑ 29.4, and 30.1 ‑ 30.2; ts 839 ‑ 841). In relation to GFE 16, on the inside of glove A, a mixed DNA profile was detected. Mr Lothian and Ms Tilbrook were excluded as contributors. A DNA profile consistent with the appellant was detected. Statistical analysis revealed that it was 'approximately greater than 100 billion times more likely' that the appellant was the contributor to that profile than not (ts 997). On the inside of glove B, a mixed DNA profile was detected. Ms Tilbrook could not be excluded as a contributor to that profile. The analysis was inconclusive with respect to Mr Lothian. The appellant was not excluded as a contributor, with the same statistical outcome as the profile to which we have just referred with respect to glove A (ts 998). With respect to the outside of glove B, a mixed DNA profile was found, but the number of contributors could not be determined (ts 998).
In relation to GFE 18, it is sufficient to note that DNA profiles which matched Mr Lothian and Ms Tilbrook were detected. The appellant was excluded as a contributor (ts 995 ‑ 996).
In examination‑in‑chief, Dr Broome was asked about secondary transfer of DNA. She explained that secondary transfer involves the transfer of DNA via an intermediary (ts 998). She went on to say:
So secondary transfer as in via an intermediate [sic]. It's a very complex subject, secondary transfer. There is a lot of information, often conflicting, in the literature about the possibility of occurrence and the amount of DNA that could be transferred. There are also a lot of - what's the word - a lot of conditions that could affect the amount of DNA that was transferred from primary substrate to secondary substrate. So I suppose what I'm trying to say is it's a very complex subject, and I can say that secondary transfer is possible under certain conditions, but I can't say if it occurred in a particular case and I can't say how likely it would be to occur under a particular scenario (ts 999).
In cross‑examination, Dr Broome agreed that DNA may be transferred onto disposable gloves other than through wear. She accepted that secondary transfer could occur via shaking hands or touching a doorknob (ts 1001).

Execution of the search warrant at the East Perth premises

When the appellant was questioned in the park on 16 November 2010, he indicated that he lived at an address in East Perth. Police executed a search warrant at those premises. Despite the appellant insisting that this was where he lived, when police took him to the address, the appellant had to call somebody to let him in and identification belonging to other men was found in each bedroom.

Execution of the search warrant at the Kintail Road premises

On 18 November 2010, Mr Peter Tassone picked the appellant up from Hakea Prison when the appellant was released from custody on bail and took him to Kintail Road. Late in the afternoon on that day, police executed a search warrant at the appellant's usual place of residence in Kintail Road, Applecross (Kintail Road). This search was video recorded (exhibit 48). Present at the house were the appellant, a woman believed to be his wife and Mr Tassone.
A number of items were seized by police, including various mobile telephones, a BlackBerry telephone charger and some travel documents. Although the BlackBerry telephone charger was found on a kitchen bench next to a power point, no BlackBerry telephone was found in the house. The travel documents and other evidence adduced at trial revealed that the appellant flew from Perth to Sydney on 3 November 2010 and returned to Perth on 13 November 2010 (exhibit 58; ts 938 - 939).

Examination of mobile telephones seized by police

Police examined mobile telephones seized from Ms Tilbrook and from the appellant's premises in Kintail Road.
Three calls from the 731 number (said to belong to 'James Walker' on the consignment note) were found on Ms Tilbrook's telephone; two on 10 November 2010 and one on 17 November 2010. There was evidence that Mr Lothian used Ms Tilbrook's telephone.
There was a record on Mr Tassone's mobile telephone of an incoming call on 9 November 2010 from the 731 number. There was communication by text on 17 November 2010 between Mr Tassone's mobile telephone and the appellant's wife's telephone (ts 936). The contact details of the appellant and his wife's mobile telephone were stored on Mr Tassone's telephone (ts 935).

Evidence of Detective Senior Constable Bradley Marron

Detective Senior Constable Marron gave expert evidence as to the nature of methylamphetamine, its purity and how that purity is diluted by the use of such cutting agents as MSM, the manner it is used and sold and its value in November 2010. He testified that methylamphetamine with a purity of approximately 75% to 80% 'would indicate that that's from the point of manufacture' (ts 1007). He said the average purity of methylamphetamine seized between October and December 2010 was 40%. A table of methylamphetamine prices was tendered in evidence (exhibit 60; ts 1011). This shows that 4.981 kg of methylamphetamine was a highly valuable commodity. For example, if sold by the kilogram, it was valued at between $597,720 and $1,743,350; by the ounce (28 g), at between $1,867,875 and $2,668,392; and by the gram, at between $2,490,500 and $4,981,000.

The charges against the appellant

The State charged the appellant with an attempt because the methylamphetamine which had originally been in the cardboard box was substituted with an inert substance.
The prosecutor said that the real issue for the jury to decide was whether the appellant knowingly attempted to possess what he thought was the methylamphetamine in the cardboard box (ts 684). The State's case was that the methylamphetamine sent from New South Wales was destined for an individual or a group of individuals. In other words, the State's case was that the appellant was either the sole possessor of the substance thought to be methylamphetamine or was in joint possession of it with, at least, Mr Lothian.

The defence case

The appellant was represented at trial by competent and very experienced senior and junior counsel. Essentially, the appellant, as is his right, put the State to its proof. In his opening address to the jury, Mr Morrissey QC told the jury that the appellant's defence was that 'he wasn't in control' of the contents of the cardboard box; that is, he did not possess it either himself or jointly with others (ts 685).

The issue of intention to sell or supply to another

Neither the prosecutor nor defence counsel made any reference to the element of intention in their opening addresses. Later in the trial, after the parties had closed their cases and when the learned trial judge raised, in the absence of the jury, his intended directions, defence counsel conceded that if the appellant was found to be in possession '… the inference would be that he's in possession of it, intending to sell or supply the prohibited drug, given the volume' (ts 1026). This concession was entirely understandable on the facts of the case and is consistent with an understanding that the case against the appellant concerned his alleged possession of the nearly 5 kg of the 'drug' in the cardboard box. His Honour inquired of defence counsel as to whether he was 'comfortable' with a direction to the effect that 'there's no contest about [intention] because [the appellant] doesn't seek to prove otherwise, given the deeming provision [an obvious reference to s 11 of the MDA]'. Defence counsel answered 'Yes, that's correct, your Honour' (ts 1026). The prosecutor took no exception to this.
A reading of the transcript of the closing addresses bears out that the real issue in the case was whether the appellant was in possession of the 'drug' in the cardboard box, namely, 4.981 kg of what was thought to be methylamphetamine. Defence counsel did not seriously contend that the appellant had no knowledge of the drug. The real issue was whether he exercised control of it jointly with Mr Lothian.

The law - attempted possession

Before turning to the grounds of appeal against conviction, it is convenient to describe the relevant law in respect of the offence of attempted possession of a prohibited drug with intent to sell or supply it to another.
Section 33(1) of the MDA states:
33.Attempts, conspiracies, incitements and accessories after the fact
(1)A person who attempts to commit an offence (the principal offence) commits -
(a)if the principal offence is a crime, the crime; or
(b)if the principal offence is a simple offence, the simple offence,
and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.
The 'principal offence' in this case is an offence contrary to s 6(1) of the MDA, which reads:
6.Offences concerned with prohibited drugs generally
(1)Subject to subsection (3), a person who -
(a)with intent to sell or supply it to another, has in his possession …
(b)…
(c)…
a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
Methylamphetamine is 'a prohibited drug' as defined in the MDA.
Section 3(1) of the MDA defines the term 'to possess' in these terms:
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings;
Section 11(a) of the MDA reads:
11.Presumption of intent to sell or supply
For the purposes of -
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; or
(b)…
Schedule V to the MDA, read with s 11(a), specifies that 2 g of methylamphetamine gives rise to the presumption of intention to sell or supply.
A person may possess a prohibited drug by having actual physical custody of it or by having control or dominion over it.
In order to possess a prohibited drug it is necessary that the accused has knowledge of that drug, being 'knowledge … that he or she had possession of a prohibited drug of some kind, even though that person did not know what prohibited drug he or she possessed'. Knowledge is established 'if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion': The State of Western Australia v R [2007] WASCA 72; (2007) 33 WAR 483 [50], [67]. The State does not have to prove that the accused has knowledge that the prohibited drug in his or her physical custody or control or dominion is, as a matter of law, a prohibited drug: Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176. The State must prove that the accused had an intention to possess the prohibited drug: Davis v The Queen (1990) 5 WAR 269; (1990) 50 A Crim R 55, but cf Davies v The State of Western Australia [2006] WASCA 151. The elements of knowledge and control must coincide: Lai v The Queen [1990] WAR 151; (1989) 42 A Crim R 460 and Cumming v The Queen (1995) 86 A Crim R 156, 162 ‑ 163.

Appeal against conviction

We will deal with the grounds in numerical order.
Leave to appeal has been granted on grounds 2, 4 and 5. The question of leave to appeal on proposed grounds 1, 3 and 6 was referred to the hearing of the appeal (white AB 4).

Proposed ground 1 - alleged misdirection as to intention

Proposed ground 1 reads as follows:
The learned trial judge erred in his directions regarding intention.
Particulars
I.His Honour directed the jury that section 11 of the Misuse of Drugs Act1981 (WA) applied to the offence.
II.Section 11 of the Misuse of Drugs Act1981 does not apply to cases of attempted possession: Krakouer v R [(1998)] 194 CLR 202 at 211, 221; Do v Western Australia [2014] WASCA 218; Reid v DPP (WA) [2012] WASCA 190.
The ground is conceded by the State which, in turn, seeks to rely on the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). Although this court is not bound by the State's concession, it should be accepted.
The prosecutor, defence counsel and the trial judge all shared the misapprehension that the deeming provision in s 11(a) of the MDA applied to an offence of attempted possession of a prohibited drug with intent to sell or supply it to another. This is borne out by the exchange between his Honour and defence counsel to which we earlier referred at [82] and by the directions given in the summing up. Those directions were as follows:
I'm now going to deal with the fourth element upon the jury aid, that the [appellant] intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.
Very briefly, the law is that if you are found in possession of more than 2 g of methylamphetamine then you are presumed to be in possession with intent to sell or supply it to another and the onus is on you to remove that presumption.
There is no issue in this trial about the fourth element and as I've said it will not delay your deliberations. You must be satisfied beyond reasonable doubt about the fourth element. You do not need to concern yourself with where the drugs might have gone, how they might have got there, when they might have been moved or whatever. It's simply not relevant to your deliberations for the purpose of this trial. The fourth element is proof beyond reasonable doubt and you should give it a tick (ts 1057 ‑ 1058).
These directions were erroneous as to the applicability of the presumption in s 11(a) of the MDA. The presumption in s 11(a) does not apply to an alleged attempt to possess a prohibited drug with intent to sell or supply it to another: see Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 and Do v The State of Western Australia [2014] WASCA 218 [28].

We would grant leave to appeal on proposed ground 1 and uphold the ground. We will consider the question of the proviso later in these reasons.

Ground 2 - alleged misdirection as to possession

Ground 2 reads as follows:
The learned trial judge erred in his directions regarding possession.
Particulars
1.His Honour improperly conflated the expressions 'dealing with', 'involved with' and 'doing [something] with' the drugs as being equal and synonymous with possession or control.

Submissions on ground 2

The appellant submitted that the oral directions given to the jury in relation to the element of possession were, at times, correct. However, he contended that error arose in his Honour's 'repeated use' of expressions such as being 'involved with', 'having done something', 'doing something with' or 'dealing with the intended drugs in some way' as synonyms for possession or control (white AB 10, par 20). The appellant submitted that the use of such expressions interchangeably was apt to mislead because there are various ways in which a person can deal with a drug which are, themselves, insufficient to establish possession or control. As to the effect of this alleged misdirection, the appellant submitted that:
(a)The 'mischief' in the learned trial judge's directions must be viewed in the context that his Honour 'diluted' the submission made on the appellant's behalf to the jury that Mr Lothian was the owner of the drug to the exclusion of the appellant when his Honour directed the jury that the State did not need to prove who owned the drug.
(b)The effect of the alleged misdirection was 'compounded' by his Honour's further directions that the State did not have to prove what the appellant had in his mind before he got to Falstaff Crescent, or that the appellant put the nine unopened bags of 'methylamphetamine' in the kitchen cupboard at Falstaff Crescent.
As we understand the appellant's submissions, it is alleged that the overall effect of his Honour's directions on possession, in context, pitched the State case on possession too low, with the consequence that the jury may have found that the element of possession had been established on an insufficient legal basis.
The State submitted that the effect of his Honour's directions on possession, when viewed as a whole, is that the jury was correctly instructed on the meaning of the term 'to possess' in the MDA.

His Honour's directions on possession

His Honour gave detailed oral directions as to the element of possession (ts 1052 ‑ 1057). These directions were accompanied by a written jury aid. The appellant takes no issue with this course or with the content of the jury aid.
The learned trial judge commenced the direction by reading to the jury the statutory definition of the term 'to possess' in the MDA (ts 1052). His Honour then proceeded to instruct the jury as to the meaning of the word 'possession'. In this regard, he correctly told the jury that the State must prove beyond reasonable doubt three requirements of possession, being that the appellant had:
(a)knowledge that the thing he was in possession of was a prohibited drug of some kind (ts 1052);
(b)either actual physical custody or control of the substance (ts 1053 ‑ 1054); and
(c)an intention to exercise control or dominion over the substance (ts 1056).
As to the first requirement (knowledge), the learned trial judge directed that knowledge could only be proved by inference (ts 1052 - 1053). He told the jury that it was insufficient for the State to simply prove that the appellant suspected that the substance was a prohibited drug (ts 1053). Consistently with what was said in The State of Western Australia v R, his Honour said that the appellant:
[M]ust have knowledge that [the substance] was in fact a prohibited drug or he must have a belief in the likelihood that there was a real chance and significant chance that it was in fact a prohibited drug (ts 1053).
During the course of his direction on this requirement, the learned trial judge twice referred to the substance which was 'in' or 'taken from' 'the cardboard box' and 'dealt with' (ts 1052 ‑ 1053). His Honour directed the jury that the State did not have to prove what the appellant had in his mind before he got to Falstaff Crescent. He did so in the context of explaining to the jury that the issue was whether, when the appellant was inside the premises at Falstaff Crescent, he was in possession, with Mr Lothian, of the 'intended drugs' (ts 1053).
As to the second requirement (actual physical custody or control), his Honour gave uncontroversial directions that a person:
(a)does not need to own a prohibited drug to be in possession of it (ts 1054);
(b)may possess a prohibited drug without holding or having physical custody of it - for example, when a person has control or dominion over the object (ts 1054); and
(c)may possess something which is hidden, provided that the person knows where it is hidden and has access to that place (ts 1055).
His Honour told the jury that it was not necessary for the State to prove that the appellant put the nine unopened bags in the kitchen cupboard at Falstaff Crescent (ts 1055). He told the jury that the issue was:
[W]hether or not [the appellant] was in possession of the intended drugs by reason of his control or having done something to them while they were in [Falstaff Crescent] (ts 1055). (emphasis added)
The learned trial judge concluded his directions on actual physical custody or control by saying:
Nevertheless, the location of where the drugs are found and the circumstances as they existed at the time are all matters which may be taken into account by you in determining whether or not you can infer that the [appellant] in this case was in possession of the intended drugs … (ts 1056).
His Honour then proceeded to direct the jury on the third requirement (intention to exercise control or dominion over the substance). He said that the appellant's intention must have been 'a present intention existing at the time that he was inside [Falstaff Crescent]' (ts 1057). His Honour explained that this was because the State's case was that he possessed the drug while inside those premises. He then told the jury that awareness of the existence of the 'intended drugs' at Falstaff Crescent, on its own, was insufficient. He continued:
If you are satisfied that the State has as a fact proved beyond reasonable doubt that the [appellant] was involved in dealing with the intended drugs in [Falstaff Crescent] in some way, that will assist you to be satisfied beyond reasonable doubt that he was in possession of the drugs at the relevant time (ts 1057). (emphasis added)
His Honour concluded his directions on possession by saying:
So members of the jury, with respect to possession, you must be satisfied that in the way I have described [the appellant] had some control over the drugs in [Falstaff Crescent] at the relevant time even though Mr Lothian may also have had control or possession of the same drugs at the same time.
You must be satisfied that the [appellant] knew that the drugs were in fact prohibited drugs in the way that I have already directed you. You must be satisfied that he did something with respect to those drugs to indicate control over the drugs at the relevant point in time, and you must be satisfied that it was his intention in doing what he did to in fact have control or at least exercise control or dominion over the drugs at that point in time (ts 1057). (emphasis added)
After the learned trial judge gave the direction on the element of intention (which has been described in [97] of these reasons), his Honour proceeded to summarise the State's and defence cases (ts 1057 ‑ 1063).
During the course of summarising the State's case, his Honour repeated, in substance, the submission made by the prosecutor that it was inconceivable that Mr Lothian would open the cardboard box containing approximately 5 kg of what was thought to be methylamphetamine in the presence of someone 'who was not involved with those drugs' (ts 1061).
While summarising the defence case, his Honour said:
[The appellant] says that Mr Lothian was in control of the intended drugs on his own at all times and that even though he was inside Mr Lothian's place at [Falstaff Crescent] for about 37 minutes, he did not exercise any control over those drugs. In other words, he was not involved in doing anything with them (ts 1062). (emphasis added)
Defence counsel took no exception to his Honour's directions on possession.

Analysis of ground 2

As with any jury direction, his Honour's directions on possession in this case must be read as a whole and the expressions used must be viewed in their proper context. While it is true that his Honour used expressions such as 'dealt with' (ts 1052 ‑ 1053), 'or having done something to them' (ts 1055), 'was involved in dealing with the intended drugs' (ts 1057 ‑ 1058, 1060), '[the appellant] did something with respect to those drugs to indicate control' (ts 1057), 'was not involved with those drugs' (ts 1061) and 'was not involved in doing anything with them' (ts 1062) during his directions on possession and in his summing up of the parties' cases, none of these expressions, either individually or in combination, could have reasonably misled the jury.
A focus of the State's circumstantial case against the appellant on the element of possession was on what he did in respect of the cardboard box and its contents while he was inside the premises at Falstaff Crescent. The State alleged that he was involved in the opening and unpacking of the cardboard box and its contents. It was also alleged that he sampled the 'drug' to ascertain its quality.
It cannot reasonably be expected that these things would be spelt out in terms whenever it was necessary to refer to how it may be that the appellant possessed the 'drug'. In his instructions on possession, his Honour's use of expressions such as 'deal with', 'having done something to them', being 'involved with', etc, were no more than a convenient methods of encapsulating the State's case in a way which could be understood in the context of the manner in which the case was run, and to avoid an unduly repetitive summing up. When his Honour came to summarise the competing cases, the expressions used by him, whether 'involved with' or 'involved in' were appropriate synonyms for possession.
His Honour's direction that the State did not have to prove what the appellant had in his mind before he got to Falstaff Crescent was correct and was given in the context of focusing the jury's attention on the State's case, which was that the appellant was in possession of the 'drug' while he was inside the premises at Falstaff Crescent. His Honour did not direct the jury that what the appellant had in his mind before he got to Falstaff Crescent was irrelevant.
His Honour's direction that the State did not have to prove who owned the drug was also correct. The direction did not 'dilute' the appellant's submission concerning Mr Lothian's alleged ownership of the 'drug'. The real issue in the trial was not who owned the drug, but whether the appellant possessed it.
Although not decisive, it is telling that the appellant's experienced trial counsel - who would have been acutely aware of the importance of the accuracy of the trial judge's directions concerning possession, given that it was the real issue for decision in the case - took no exception to them.
Ground 2 fails.

Proposed ground 3 - the 731 number

Proposed ground 3 reads as follows:
The learned trial judge erred in permitting evidence of telephone contact between the 731 number, Ms Tilbrook and Mr Tassone whilst not permitting cross examination on evidence which flowed from it.
Particulars
I.His Honour erred in disallowing questioning by defence counsel as to why Mr Tassone and Ms Tilbrook had not been charged.
II.His Honour erred in disallowing questioning by defence counsel as to why no effort was made by police to interview Mr Tassone as to his receiving calls from the 731 number and as to the nature of his relationship with the appellant.
III.Having disallowed that questioning, his Honour erred [in] allowing the evidence of contact between the 731 number, Ms Tilbrook and Mr Tassone to be left to the jury.
In oral argument, the focus was on the evidence of Mr Tassone. Senior counsel for the appellant said that 'if the Tassone argument doesn't succeed, well, then, the Tilbrook one isn't going to' (appeal ts 22).

Background to proposed ground 3

It will be recalled from [53], [77] and [76] of these reasons that:
(a)the consignment note on the cardboard box containing the methylamphetamine had an instruction on receipt to telephone 'James Walker' on the 731 number;
(b)Mr Tassone's mobile telephone recorded an incoming call from the 731 number on 9 November 2010; and
(c)several calls from the 731 number were made to Ms Tilbrook's telephone.
The evidence of telephone calls from the 731 number to Mr Tassone were relevant to prove a link, albeit indirect, between the appellant and the consignment of the drug. Mr Tassone was an associate of the appellant. He was present when the appellant's house at Kintail Road was searched and he picked up the appellant when he was released from custody on bail. There was also an SMS from Mr Tassone to the appellant's wife on 17 November 2010.
It appears that neither Mr Tassone nor Ms Tilbrook were charged in connection with this matter, nor were they called to testify at the appellant's trial.
Prior to trial, the appellant objected (unsuccessfully) to evidence the State proposed to lead that he was collected from Hakea Prison after spending two nights on remand. In written submissions prepared on behalf of the appellant in support of the objection, it was expressly conceded that the State could lead evidence without challenge that the 731 number was found in Mr Tassone's telephone and that on 18 November 2010, one of the persons present at the appellant's property in Kintail Road was Mr Tassone (combined blue and green AB 174).
On the third day of the trial, the prosecutor objected to foreshadowed cross‑examination of Detective Shanahan, to the effect that neither Mr Tassone nor Ms Tilbrook had been charged with any offence arising out of this particular transaction. The learned trial judge refused to permit the cross‑examination on the basis that it was irrelevant 'to the issues in this trial' and tended to invite the jury to speculate as to why the two were not charged (ts 902 - 904).
Later that day, defence counsel sought a ruling from his Honour as to whether he would be permitted to cross‑examine Detective Shanahan regarding why he had not interviewed Mr Tassone or 'pursued his relationship with the [appellant]' (ts 922 ‑ 923). His Honour indicated that he did not regard those matters as relevant (ts 925). In response, defence counsel sought a ruling that 'the Tassone evidence ought to be excluded altogether' (ts 925). His Honour declined to do so because, he said, it was part of the State's circumstantial case (ts 925).

Submissions on proposed ground 3

The principal submission put on behalf of the appellant was that counsel should have been permitted to cross‑examine Detective Shanahan about his failure to investigate Mr Tassone as a means of neutralising one of the strands of evidence which connected the appellant to the consignment. The appellant placed some reliance on R v Greatorex (1994) 74 A Crim R 496 to support this submission. Alternatively, his Honour should not have permitted the evidence with respect to Mr Tassone to be adduced (appeal ts 23 ‑ 25).

Analysis of proposed ground 3

As we have said, the evidence of telephone contact between the 731 number and the mobile telephones of Mr Tassone and Ms Tilbrook was admissible because it was relevant to show an indirect connection between the consignment and the appellant. In our view, whether Detective Shanahan sought to interview Mr Tassone was of no relevance. It says nothing about the nature or the extent of the connection between Mr Tassone and the appellant; neither does any apparent failure to charge Mr Tassone (or for that matter, Ms Tilbrook). It would not have had the neutralising effect now alleged on behalf of the appellant. Of course, such a line of cross‑examination, if pursued, poses obvious risks to the accused, although we note that in the present case, the appellant was apparently prepared to take the risks.
In the circumstances of the present case, the proposed cross‑examination of Detective Shanahan sought to raise irrelevant matters. The learned trial judge was correct to rule as he did. It follows that there was no proper basis upon which to exclude the evidence.
Greatorex does not assist the appellant. In that case, Ms Greatorex was charged with drug offences arising out of the discovery in her garden of a jar which contained heroin, cocaine and cannabis resin. It was alleged that when she was asked by a detective about the jar she said 'It's mine, how did you know it was there?' Later, she denied saying 'It's mine' and denied any knowledge of the jar or its contents. She identified by name another person, apart from herself and her children, who lived in the house. It was also said that another person, DA, had confessed to his wife, JA, that the drug was his (the third party confession). It was said that JA sought to provide police with this information, however by that time, DA had died.
At Ms Greatorex's trial, the judge refused to allow defence counsel to cross‑examine police about the course of the police investigation and the third party confession. Defence counsel sought to justify the proposed cross‑examination on the basis that it impugned the credit of police. The police's credit was particularly important by reason of Ms Greatorex's alleged admission and her subsequent denial of that admission.
Simpson J (with whom Abadee J agreed generally on this point (499)) held that the trial judge erred in not permitting the proposed cross‑examination because it was relevant to the credit of police, which was a live issue in the case (507).
The difference between Greatorex and the present case is that there was no issue in this case as to Detective Shanahan's credit and the proposed cross-examination was not directed to this or any other relevant subject.
Leave to appeal on proposed ground 3 should be refused.

Ground 4 - Detective Shanahan's knowledge of the whereabouts of the appellant's bakery

Ground 4 reads:
The learned trial judge erred in disallowing cross examination by defence counsel of Detective Shanahan as to his knowledge of the appellant's bakery in Freemantle [sic].

Background to ground 4

A number of witnesses for the State testified as to the appellant's movements after he left Falstaff Crescent. The principal witnesses on this point were Detectives Shanahan and Ferrie.
During the course of Detective Shanahan's cross‑examination, he was asked whether he was aware that the appellant operated a bakery in Fremantle. Detective Shanahan answered 'Yes' (ts 967). The prosecutor objected to the answer, asserting that it was hearsay and that she was 'not sure of [its] relevance' (ts 967). In the absence of the jury, defence counsel explained that he wished to ask a further question of Detective Shanahan, namely, whether the appellant was 'heading generally in the direction of Fremantle' in order to support the inference that when the appellant left Falstaff Crescent, he was heading in the direction of his business in Fremantle (ts 969).
His Honour upheld the prosecutor's objection, commenting that the witness 'can't say that [the appellant] has a business in Fremantle' (ts 970) and, in substance, it was not within Detective Shanahan's knowledge whether the appellant was 'headed towards his workplace or his business' (ts 971).

Analysis of particular 1

It is not disputed that, in sentencing the appellant, his Honour was obliged to consider the question of parity with Mr Lothian. That, in turn, required his Honour to consider what was said and decided in the proceedings before Curthoys DCJ. The material before Curthoys DCJ indicated that Mr Lothian did not have the advantages in life that had been given to the appellant. The only asset of substance he owned were the premises at Falstaff Crescent, which were mortgaged. No issue was taken with that consideration in the proceedings before his Honour.
In any event, the disparity in the financial positions of the appellant and Mr Lothian was there to be seen in the video recordings of the execution of the search warrants at Falstaff Crescent and Kintail Road. The difference in the living conditions in those premises is, as the State put it, 'striking' (white AB 104). The accommodation at Kintail Road spoke of prosperity, even luxury. The accommodation at Falstaff Crescent conveyed the opposite. We do not consider that his Honour sought to use the juror's reaction as evidence that Mr Lothian was in a lesser financial position than the appellant. Rather, his Honour's reference to the juror's reaction was to illustrate just how stark the difference was between the living conditions of the appellant at Kintail Road and Mr Lothian at Falstaff Crescent.
The evidence before Curthoys DCJ clearly showed that Mr Lothian came from much less fortunate circumstances than the appellant. Mr Lothian, unlike the appellant, was an entrenched drug addict who had a difficult childhood and no apparent family support.
There is no merit in particular 1.

Analysis of particular 2

In our opinion, Stevenson DCJ did not err by finding that Mr Lothian was acting under instruction by the appellant. That conclusion, reached by his Honour, was one that was open on the submissions and the evidence adduced at trial.
The combined weight of the factors identified by the State in its submissions amply justifies this conclusion.

Analysis of particular 3

In our opinion, the finding the subject of particular 3 was not, in fact, key (white AB 88) to his Honour's finding as to the relative roles of the appellant and Mr Lothian. It was not a necessary finding with respect to the ultimate conclusion that the appellant played a superior role in the offences.
However, we do not think that his Honour fell into the error alleged by the appellant. His Honour's finding about the relationship between the 731 number and mobile telephones in the possession of Mr Tassone and the appellant's wife must be read, as his Honour stated, having regard to the way he summarised the relevant evidence to the jury in his summing up. In the summing up, his Honour told the jury:
The contact on Mr Tassone's telephone occurred as an incoming call from a [sic] the 731 number on 9 November 2010, a 50‑second telephone discussion, it would appear, and there is a text message between Mr Tassone and the wife of the accused on 17 November 2010. So the State relies upon that part of the mobile evidence to invite you to draw the inferences of guilt of the [appellant] (ts 1060).
The statement made by his Honour in the sentencing remarks, when read in this context, is not erroneous. The evidence adduced at trial was that there was a text message between Mr Tassone and the appellant's wife on 17 November 2010.
Particular 3 has not been made out.

Conclusion on proposed ground 1

None of the particulars upon which proposed ground 1 relies have been made out. It was open to his Honour to be satisfied beyond reasonable doubt that the appellant's role in the commission of the offence was 'higher' than that of Mr Lothian. We would not grant leave to appeal on proposed ground 1.

Proposed ground 2 (as amended)

His Honour approached the sentencing of the appellant in this way. First, having regard to the maximum penalty for the offence, the aggravating and mitigating circumstances and the relevant sentencing principles for offending of this kind, he imposed what was, in his judgment, the appropriate penalty for the offence, namely a term of 14 years 6 months' imprisonment. Having determined the appropriate sentence, he then considered whether to make an order that the appellant be eligible for parole. There was no dispute that the making of such an order was appropriate in the circumstances of the case. Accordingly, the appellant was made eligible for parole. His Honour informed the appellant, following the requirements of s 34(2) of the Sentencing Act, that he would be eligible for parole after he had 'served all but 2 years of that sentence' (ts 1159).
His Honour proceeded on the basis that his task was first to determine the length of the term of imprisonment and then to consider the question of parole eligibility. It is apparent that the length of time the appellant was liable to serve in custody as a result of the making of a parole eligibility order was not regarded as relevant to the determination of the length of the term of imprisonment.
The manner in which the appellant was sentenced reflects the orthodox approach adopted by all sentencers in Western Australia and is in accordance with the approach taken in this State over many years: see, for example, Archibald v The Queen (1989) 40 A Crim R 228; Wicks v The Queen (1989) 3 WAR 372; Kirby v The Queen [2003] WASCA 164 and The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [22]. In Kirby, Roberts‑Smith J (with whom Murray & Wheeler JJ agreed) held:
In imposing a sentence appropriate to a particular offence, a sentencing court is concerned only to set the fixed term. It is not appropriate to set that having regard to how long the offender will actually serve before becoming eligible for parole [118]. (original emphasis)

Submissions on proposed ground 2

The appellant contends that the orthodox approach taken by his Honour is erroneous.
The appellant notes that, pursuant to s 93 of the Sentencing Act, an offender who is serving a parole term is only eligible to be released on parole - where the term imposed is more than 4 years - when he or she has served 2 years less than the term. The appellant submits that a sentencer must be 'mindful' of this and, in particular, must be mindful of the fact that the longer the term of imprisonment the more punitive it becomes, in that the offender will have to serve a greater proportion of his or her sentence in custody. It is submitted that to ignore such realities would be inconsistent with the decision of the High Court in Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348.
It is further submitted that a fair reading of the relevant statutory provisions in the Sentencing Act accords with the approach urged upon this court by the appellant.
The State submitted that the appellant's approach is erroneous, principally because it is contrary to the relevant statutory provisions.

The relevant statutory framework

The general principles underpinning the Sentencing Act are set out in pt 2 div 1 of that Act. In broad terms, a sentence must be commensurate with the seriousness of the offence: s 6(1). The seriousness of an offence must be determined by taking into account:
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors: s 6(2).
A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4). Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender: s 7(1). Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished: s 8(1).
Part 13 of the Sentencing Act is entitled 'Imprisonment'. Section 85 defines certain terms. Relevantly, 'fixed term' means a term that is not life imprisonment. A 'parole eligibility order' means an order under s 89. A 'parole order' means an order made under pt 3 of the Sentence Administration Act 2003 (WA), that a prisoner be released on parole. A 'parole term' means a term to which a parole eligibility order applies.
Part 13 div 2 of the Sentencing Act is headed 'Imposing imprisonment'. Section 86 provides that a court must not sentence an offender to a term of 6 months or less except in the circumstances described in s 86(a), s 86(b) and s 86(c). Section 87 allows that time on remand may be taken into account. Section 88 deals with concurrent, cumulative or partly cumulative terms of imprisonment.
Section 89 is as follows:
89. Parole eligibility order, court may make
(1)A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.
(2)A parole eligibility order must not be made if the fixed term, or the aggregate of the fixed terms, imposed by the court is less than 12 months, except where the offender, at the date of the sentence, is serving or has yet to serve -
(a)a parole term imposed previously; or
(b)a fixed term or fixed terms imposed previously -
(i)which, or the aggregate of which, is less than 12 months; and
(ii)which, with the term or terms imposed by the court, would result in an aggregate of 12 months or more.
…
(4)A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d)any other reason the court considers relevant.
Part 13 div 3 is entitled, 'Release from imprisonment'. Section 93 reads:
93. Release from parole term
(1)Subject to sections 94A, 94 and 95A, a prisoner serving a parole term is eligible to be released on parole -
(a)if the term served is 4 years or less - when he or she has served one‑half of the term; or
(b)if the term served is more than 4 years - when he or she has served 2 years less than the term.
(2)Any order for the release on parole of a prisoner to whom subsection (1) applies must be made in accordance with Part 3 of the Sentence Administration Act 2003.
Part 3 of the Sentence Administration Act is headed 'Parole'. In broad terms, it empowers the Prisoners Review Board to consider and decide whether to release on parole a prisoner subject to a parole eligibility order. See, in particular, s 20.

History of parole determinations and minimum terms of imprisonment in s 93 of the Sentencing Act

Prior to 1988, when a term of imprisonment was imposed in Western Australia, sentencers set the maximum term, as well as the minimum term before which the offender was eligible for parole. Alongside parole considerations, there also existed a system of earned remissions. The length of a maximum term was determined according to the principles laid down by the High Court in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623.
However, since 1988, sentencers in Western Australia no longer have the power to determine the minimum term. Instead, sentencers determine the fixed term and then decide whether a parole eligibility order should be made. If such an order is made, the length of time an offender actually spends on parole is determined by a statutory formula. In due course, remissions were abolished.
The statutory formula determining the length of time an offender remains on parole has changed over the years. It is unnecessary to go through the various iterations since 1988.
The law in this State since sentencers lost the power to set the length of the minimum term has been that, save for exceptional circumstances, a sentencer must not have regard to the minimum term likely to be served by an offender in imposing a fixed sentence for the offence or, when it was applicable, the possibility of remissions.

History of s 93 of the Sentencing Act (court orders for parole eligibility)

Section 93 of the Sentencing Act in its present form was enacted in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the Amendment Act) which commenced on 31 August 2003.
Immediately before the Amendment Act, where an offender was subject to a parole eligibility order, if that prisoner was not released on parole, he or she was required (by the then s 29 of the Prisons Act 1981 (WA)) to be discharged from that sentence after serving 2/3 of the term. (The history of this requirement is discussed at some length by Martin CJ in Yates v The State of Western Australia [2008] WASCA 144 [3] ‑ [10]; see also The State of Western Australia v BLM [9] ‑ [22]). If the offender was made eligible for release on parole, they could be released into the community earlier.
These provisions were somewhat controversial and attracted further attention from Parliament. The passage of the Sentencing Legislation Amendment and Repeal Bill 2002 (WA) (later enacted as the Amendment Act) and the Sentence Administration Bill 2002 (WA) reveal that the alterations to the parole regime made in the Amendment Act were the result of detailed and lengthy consideration by Parliament.
The Bill was significantly amended by the Legislative Council and returned to the Legislative Assembly. One of the clauses that was amended ultimately became s 93 of the Sentencing Act in its current form. Prior to the amendment by the Legislative Council, it was proposed that an eligible prisoner would be subject to release on parole after serving 50% of their sentence regardless of the length of the sentence imposed. An amendment made by the Legislative Council reflected what is now s 93(1)(a) and s 93(1)(b) of the Sentencing Act so that no offender spends more than 2 years on parole. The Hon Mr McGinty, the Attorney General, said this about the proposed amendment:
The most significant amendment moved in the Legislative Council was to maintain two bases of parole being granted. In the legislation introduced and debated in this House, the Government sought to provide one simply understood system of eligibility for parole; that with the abolition of remission, every prisoner would spend a minimum of half his time in gaol and the balance on parole. The Legislative Council did not agree with that approach. There were strong arguments. That is why the Government is happy to support the Council's amendment that provides that no prisoner should spend more than 2 years on parole. A person who gets a head sentence of more than 4 years will spend 2 years in prison and 2 years on parole. Someone who gets a 20 year sentence will spend 18 years in prison and 2 years on parole. Every minute of every sentence that is imposed will be spent on either parole or in prison, with a maximum of 2 years on parole. (emphasis added)
(See Council's Amendments - Consideration in Detail, Sentence Legislation Amendment Act Repeal Bill 2002 (returned from the Council with amendments) Western Australian Parliamentary Debates, Legislative Assembly, 26 June 2003, 9458b ‑ 9460a.)
This Parliamentary material confirms the objective intention manifested by the statutory text to require eligible prisoners who are sentenced to longer terms of imprisonment to serve a greater proportion of their sentence before becoming eligible for parole.
We now return to the relevant statutory provisions. The scheme is clear: a sentencer must fix a sentence commensurate with the seriousness of the offence, taking into account the matters in pt 2 div 1 of the Sentencing Act. Where the court imposes a fixed term of imprisonment, the court has the discretion to order that the offender be eligible for parole. The length of that parole term is dictated by the operation of s 93 and not by any decision of the court. Whether or not an offender is released on parole is to be determined by the Prisoners Review Board.
In our opinion, s 89(1) of the Sentencing Act requires a court sentencing an offender to first fix the term of imprisonment and then decide whether to make a parole eligibility order 'in respect of that term'. The phrase 'that term' points to the construction that the question of whether a parole eligibility order is made is addressed only after the length of the fixed term has been determined. That construction is also supported by the text of s 89(4): the decision not to make a parole eligibility order is made once the fixed term is determined. Thus, whether or not the offender is made eligible for parole does not affect the length of the fixed term. In our opinion, that construction is evident from the clear language of s 89, in particular, s 89(1) and s 89(4). It is a construction supported by the history of the provision.
The cases cited by the appellant, including Hoare, deal with different statutory provisions and different issues of construction and principle. They are distinguishable from the present case and have no application.
The appellant's arguments focus on the proportion of a sentence for which a sentenced prisoner may be eligible for parole. The appellant says that a prisoner sentenced to 4 years' imprisonment with eligibility for parole will spend at least 50% of his or her sentence in custody before being eligible for parole. The appellant says that a prisoner subject to a 10‑year sentence of imprisonment will spend 80% of his or her sentence in custody before being eligible for parole (appellant's supplementary written submissions, par 8).
A difficulty with this submission is that it equates the legislatively prescribed non-parole period with the time actually served in custody, and ignores the difference between eligibility for parole and the grant of parole. The question of whether parole is granted to an eligible prisoner is a matter for the exercise of the executive discretion of the parole authorities. The experience of this court under the current regime is that some eligible prisoners are not granted parole and serve the whole of their sentence. Other prisoners may be released after their earliest eligibility date, while others may have their parole suspended or cancelled after release. The courts do not attempt to predict how executive discretionary powers concerning parole will be exercised at some future point in time, when the legislation governing the grant of parole and the policies applied to its administration may be different.
The only appropriate course for the court is to determine the sentence which is commensurate with the seriousness of the offence on the basis that the prisoner may be required to serve the whole of his or sentence, even when eligible for parole. To adopt any other approach would risk requiring a prisoner to serve a sentence greater than that which is commensurate with the seriousness of their offence if the court incorrectly predicted the prisoner's release before the completion of his or her sentence. The fixed term which a court imposes can only be properly determined on the basis that in every case the prisoner may serve 100% of their sentence in custody.
The appellant also submits that a sentencing judge should determine the appropriate parole term and adjust the head sentence which would otherwise be imposed downward to achieve, or partially achieve, that result (appellant's supplementary written submissions, pars 8 ‑ 14). That submission is inconsistent with the scheme of the legislation. The Sentencing Act and Sentence Administration Act provide for the court to determine the fixed term commensurate with the seriousness of the offence and whether a prisoner is to be eligible for parole. It is the legislation, rather than the court, which then fixes the point at which the prisoner becomes eligible for parole, and thereby determines the maximum parole term.

His Honour did not take into account the non‑parole period to be served by the appellant when imposing a fixed term of imprisonment upon him. However, he was not required to do so and, accordingly, his Honour did not make an error of law.
We would not grant leave to appeal with respect to proposed ground 2.

Conclusion and orders - appeal against sentence

As leave to appeal has been refused on both proposed grounds, the appeal must be taken to be dismissed.
The orders that we would make are as follows:
1.Leave to appeal is refused on all proposed grounds.
2.The appeal is dismissed.