Lam v The King - [2025] WASCA 9

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LAM -v- THE KING [2025] WASCA 9
CORAM:   HALL JA
VANDONGEN JA
DALTON AJA

HEARD:   17 OCTOBER 2024
DELIVERED          :   16 JANUARY 2025
FILE NO/S:   CACR 109 of 2023
BETWEEN:   DINH THAI LAM
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 1696 of 2021
IND 2042 of 2022

Catchwords:

Criminal law - Appeal against sentence - Commonwealth drug offences - Firearms offences - Where appellant committed two groups of offences - Where second group of offences committed whilst on bail for first group - Where second group of offences included trafficking in large quantities of methamphetamine and cocaine - Where the purities of the two types of drug were different - Where the maximum penalties determined by reference to pure quantities - Whether the sentencing judge erred by failing to have regard to the pure quantities of the drugs - Whether the sentencing judge failed to take into account the impact of the appellant's sentence on his daughter - Whether there was an error in the calculation of the discount for pleading guilty - Whether total effective sentence of 14 years breached totality principle

Legislation:

Crimes Act 1914 (Cth), s 3LA(2), s 3LA(6), s 16A(1), s 16A(2)(p), s 16A(2)(g), s 16BA

Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (Cth), s 302.2(1), s 302.3(1), s 302.4(1), s 312.1, s 400.4
Criminal Code Regulations 2019 (Cth), sch 1 item 67, sch 1 item 157
Firearms Act 1973 (WA), s 19(1)(c)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	D Renton SC
Respondent	:	A Willinge

Solicitors:

Appellant	:	A1 Legal
Respondent	:	Director Of Public Prosecutions (Cth)

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

De Hollander v The Queen [2012] WASCA 127
Dias v The State of Western Australia [2017] WASCA 49
Duong v DPP [2021] VSCA 136
Harvey v The Queen [2018] WASCA 188
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Kleindyk v The Queen [2016] WASCA 123
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Merai v The State of Western Australia [2018] WASCA 54
Morrison v The Queen [2020] QCA 93
R v Jacques [2021] SASCA 94
R v Nakash [2017] NSWCCA 196
R v Ruzehaji [2018] SASCFC 139; (2018) 132 SASR 302
R v The King [1979] VR 399
Totaan v The Queen [2022] NSWCCA 75; (2022) 108 NSWLR 17

JUDGMENT OF THE COURT:

The appellant was convicted on his pleas of guilty of six offences contained in two indictments. On indictment 1696 of 2021 (the 2021 indictment), the appellant pleaded guilty to the following offences:[1]
1.On 26 August 2020, at Perth in the State of Western Australia, [the appellant] was in possession of a firearm, namely a Beretta handgun, whilst not being the holder of a licence or permit under the Firearms Act 1973 (WA), entitling him to do so, contrary to s 19(1)(c) of the Firearms Act.
2.On 26 August 2020, at Perth in the State of Western Australia, [the appellant] was in possession of ammunition, namely fifteen .22 calibre bullets, whilst not being the holder of a licence or permit under the Firearms Act 1973 entitling him to do so, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).
[1] ts 84.
On indictment 2042 of 2022 (the 2022 indictment), the appellant pleaded guilty to the following offences:[2]
1.On 25 May 2022, at Perth in the State of Western Australia, [the appellant] trafficked in a substance, the substance being a controlled drug, namely methamphetamine and the quantity trafficked being a commercial quantity contrary to s 302.2(1) of the Criminal Code (Cth).
2.On 25 May 2022, at Perth in the State of Western Australia, [the appellant] trafficked in a substance, the substance being a controlled drug, namely cocaine, and the quantity trafficked being a marketable quantity, contrary to s 302.3(1) of the Criminal Code.
3.On 25 May 2022, at Perth in the State of Western Australia, [the appellant] dealt with money that was and that [the appellant] believed to be, proceeds of indictable crime, and at the time of dealing, the value of the money was $100,000 or more, contrary to section 400.4(1) of the Criminal Code.
4.On 25 May 2022, at Perth in the State of Western Australia, [the appellant] failed to comply with an order obtained under s 3LA(2) of the Crimes Act 1914 (Cth) [a data access order] contrary to s 3LA(6) of the Crimes Act.
[2] ts 86 - 88.
The appellant also consented to further offences being taken into account in the sentencing for the offences in indictment 2042 of 2022, pursuant to s 16BA of the Crimes Act. Those additional offences as listed on a schedule under s 16BA were as follows:[3]
1.On 26 August 2020, at Perth in the State of Western Australia, [the appellant] trafficked in a substance, the substance being a controlled drug, namely methamphetamine, contrary to s 302.4(1) of the Criminal Code.
2.On 26 August 2020, at Perth in the State of Western Australia, [the appellant] trafficked in a substance, the substance being a controlled drug, namely cocaine, contrary to s 302.4(1) of the Criminal Code.
3.On 26 August 2020, at Perth in the State of Western Australia, [the appellant] trafficked in a substance, the substance being a controlled drug, namely 3, 4‑Methylenedioxymethamphetamine (MDMA) contrary to s 302.4(1) of the Criminal Code.
[3] ts 91.
The appellant was sentenced on 8 September 2023. For the possession of the firearm, he was sentenced to 10 months' immediate imprisonment. For the possession of the ammunition, he was sentenced to 3 months' immediate imprisonment. For the offence of trafficking in a commercial quantity of methamphetamine, he was sentenced to 6 years' imprisonment. For the offence of trafficking in a marketable quantity of cocaine, he was sentenced to 7 years' imprisonment. For dealing in the proceeds of crime, he was sentenced to 3 years 6 months' immediate imprisonment. For the offence of failing to comply with the Data Access Order, he was sentenced to 1 year's imprisonment. The sentences for the offences of trafficking in methamphetamine and cocaine and the offence of failing to comply with the Data Access Order were ordered to be served cumulatively. All other sentences were ordered to be served concurrently. Accordingly, the total effective sentence was 14 years' imprisonment. A non‑parole period of 8 years 6 months' imprisonment was set.[4]
[4] ts 100.
The appellant seeks leave to appeal against his sentence on four grounds.[5] The first ground is that the sentencing judge erred in determining the level of the appellant's criminality on counts 1 and 2 on the 2022 indictment, in that his Honour did so on the basis of the gross quantities of the controlled drugs rather than their pure weight. The second ground alleges that the sentencing judge erred by failing to consider the probable effect that any sentence of imprisonment would have on the appellant's daughter. The third ground is that the sentencing judge erred in his approach to the determination of the discount to be allowed for the pleas of guilty. The fourth ground alleges that the total effective sentence of 14 years' imprisonment with a non‑parole period of 8 years 6 months' imprisonment infringed the first limb of the totality principle.
[5] WAB 11.
For the reasons that follow, we would grant leave to appeal in respect of ground 1 and refuse leave in respect of the other grounds. We would allow the appeal on ground 1 and resentence the appellant on counts 1 and 2 on the 2022 indictment. The total effective sentence of 14 years' imprisonment would, however, remain the same.

The facts

The facts in relation to the offending are not in dispute. There were two groups of offences, those committed in 2020 and those committed in 2022. The 2020 offences were contained in the 2021 indictment and the s 16BA schedule. The 2022 offences were contained in the 2022 indictment. The facts can be summarised as follows.

The 2020 offences

From May 2020, the appellant and others associated with him were subject to surveillance by the police by way of lawfully intercepted telecommunications and listening devices.[6] Communications between the appellant and others that related to drugs, drug trafficking and guns were recorded.
[6] ts 89.
On 26 August 2020, Western Australia Police executed a search warrant at a house in Mirrabooka owned by the appellant's mother.[7] The appellant was not present when the warrant was executed, however he drove past while police were in attendance and parked his car in a nearby street.
[7] ts 89.
The appellant telephoned his girlfriend and told her that if anything happened, she was to 'just chuck everything. Half of it in the toilet'.[8] The appellant told his girlfriend that the police were at his mother's house and that he believed that they had seen him. Later that day, the appellant met with his girlfriend, and they discussed what had occurred. The appellant's girlfriend told him that she had wiped his account and telephone remotely, as directed, but that she had not in the end flushed anything.[9] Rather, she had hidden certain items in a safe place.
[8] ts 89.
[9] ts 89.
Later the same day, a search warrant was executed by the Australian Federal Police at the appellant's unit in Leederville.[10] The appellant was the sole resident of this address. During the search, police located a 9 mm calibre bullet, as well as various items associated with drug use, including a glass smoking implement, a set of electronic scales, small glass vials containing white powder and a Ziploc bag containing white tablets.[11] None of the present charges relate to these items. They are relevant only to provide context.
[10] ts 90.
[11] ts 90.
Shortly after, a further search warrant was executed by the Australian Federal Police at a unit in North Perth.[12] The residents of that unit were the appellant's girlfriend and another person. Inside a locked storage area, police located a semi‑automatic .22 calibre Beretta pistol and fifteen .22 calibre bullets. Also located in the locked storage area was a clipseal bag containing cocaine and various other items indicative of drug dealing including a ball of black tape, used surgical gloves and a currency cash counting machine. In a reticulation control unit police located quantities of methamphetamine, cocaine and MDMA. In a bedroom police located various items associated with drug use, including approximately 0.8 g of methamphetamine in a clear clipseal bag, a used glass smoking implement, and a plastic drink bottle converted into a smoking implement. Cash totalling $6,500 was also found in the bedroom.[13]
[12] ts 90.
[13] ts 90.
On analysis, the total amount of methamphetamine seized was determined to be 287.5 g with a purity of 71%.[14] The admitted facts were that the pure weight was 178 g (though this is not 71% of 287.5 g). The value of the methamphetamine was estimated to be between $178,570 ‑ $575,000 if sold on a gross basis and between $109,578 ‑ $356,000 if sold on a pure basis.[15] The total amount of cocaine was determined to be 19.1 g with a purity of 79.7%.[16] The admitted facts were that the pure weight was 15.1 g. The value of the cocaine was estimated to be between $7,630 ‑ $19,100 if sold on a gross basis and between $6,034 ‑ $15,100 if sold on a pure basis. The total amount of MDMA was 21.3 g with a purity of 23.8%.[17] The admitted facts were that the pure weight was 5 g. The value of the MDMA was between $1,824 ‑ $4,686 if sold on a gross basis and between $426 ‑ $1,100 if sold on a pure basis.
[14] ts 90 - 91.
[15] ts 90 - 91.
[16] ts 91.
[17] ts 91.
The appellant was arrested on 26 August 2020 and conveyed to Australian Federal Police Headquarters, where he was charged. He elected not to participate in a recorded interview. He was granted bail and spent 17 days in custody before being released. The appellant remained on this bail until May 2022, when the further offences were committed. The terms of the appellant's bail included conditions requiring him not to possess more than one mobile telephone and not to possess a mobile telephone with encryption software.[18]

The 2022 offences

[18] ts 94.

On the morning of 25 May 2022, members of the Australian Federal Police executed a search warrant at the appellant's mother's house in Mirrabooka.[19] Under the seat of a sauna in the outdoor courtyard, adjacent to the garage, police located a black motorcycle bag and a cash counting machine. Inside the motorcycle bag were a number of plastic clipseal bags. Ten of the plastic bags contained white powder with a total weight of 1,847.9 g. One plastic bag contained 1 g of white paste. Five of the plastic bags contained a crystalline substance with a total weight of 1,097.9 g.[20]
[19] ts 86.
[20] ts 88.
In a shed at the property, police located a black bum bag. Inside the bag was a plastic clipseal bag containing 92.3 g of a crystalline substance. Under a couch in the garage, police located another clipseal bag containing 1.4 g of a crystalline substance. Also in the garage, police located a black backpack containing a large bundle of $50 notes, a wallet containing the appellant's driver's licence and a number of other items, including a Samsung mobile telephone and a Vivo mobile telephone. In the outdoor courtyard, police located $600 in cash inside a toolbox.[21]
[21] ts 87.
The appellant was present at the time of the search. In a pocket of the trousers that he was wearing, police located $525 and a small clipseal bag containing 1.1 g of white powder.[22]
[22] ts 87.
In the appellant's bedroom, police located a large quantity of cash in a vacuum‑sealed bag under the bed and a further bundle of cash in a satchel. In a spare room, police located 13 bundles of cash stored inside a portable air conditioning unit. Also in that room was a vacuum sealing machine, vacuum seal bags, rubber bands and a small set of scales. In the laundry, police located drug trafficking paraphernalia, including vacuum seal bags, creatine, acetone bottles, boxes of clipseal bags and electronic scales.[23]
[23] ts 87.
The white powder and the paste located in the motorcycle bag and in the appellant's trousers were analysed and found to be cocaine. The total gross weight of cocaine was 1,849.9 g.[24] The pure amount of cocaine was 570.5 g. The estimated value of the pure quantity of cocaine was between $574,142 ‑ $1,849,000, depending on how it was sold.[25]
[24] ts 87.
[25] Crown's written sentencing submissions, dated 1 September 2023, par 40.
The white crystalline substance found in the motorcycle bag, the black bum bag and under the couch in the garage was analysed and found to be methamphetamine.[26] The total gross weight of methamphetamine was 1,191.6 g. The pure amount of methamphetamine was 945.6 g. The estimated value of the pure quantity of methamphetamine was between $743,131 ‑ $2,383,200 depending on how it was sold.[27]
[26] ts 88.
[27] Crown's written sentencing submissions, dated 1 September 2023, par 40.
The total amount of cash found was $407,780. [28]
[28] ts 45.
Both of the mobile telephones were charged and turned on when found by the police. Both telephones had encryption software loaded on to them. The appellant was provided with an opportunity to speak to his solicitor over the telephone. One of the police officers advised the appellant's solicitor that he was in possession of an order pursuant to s 3LA of the Crimes Act.[29] The order required the appellant to provide access to the mobile telephones found in the search. The appellant spoke to his solicitor and was then served with the order. He was repeatedly requested to provide access to the mobile telephones and on each occasion responded, '[n]o comment'.[30]
[29] ts 88.
[30] ts 88.

Personal circumstances

The appellant was born on 21 April 1986. He was 34 years old at the time of the 2020 offences, 36 years old at the time of the 2022 offences and 37 years old when he came to be sentenced.[31]
[31] ts 91.
The appellant is the youngest of three brothers. His mother and father were refugees from Vietnam who arrived in Perth in 1993, when the appellant was 7 years old. There is a significant age gap between the appellant and his brothers and he reported feeling like an outcast in his family.[32] The appellant's parents owned a business after settling in Australia and he was often left at home alone.[33]
[32] ts 91.
[33] ts 91 - 92.
The appellant attended Yokine Primary School from year 2 to year 7. He was not able to speak English when he started school and this made it difficult to communicate and fit in with the other children. He reported struggling with racism and bullying. He then attended Mirrabooka High School and had the intention of progressing to university. However, he began to truant on a regular basis.
In year 9, the appellant commenced a relationship with a girl who was in the year above him. She would abscond from school with him and was later expelled as a result. The appellant also left school in year 9.[34] He continued his relationship with the girl for five years. The relationship broke down due to the appellant's drug use and his unwillingness to settle down.
[34] ts 92.
After leaving school, the appellant worked for his parents in their grocery store until the age of 18. When the store was sold, the appellant tried working at a farm but found the work too hard.[35] He reported not working after that and that he 'just started running a muck [sic]'.[36]
[35] ts 92.
[36] Pre-sentence report, dated 8 August 2023, 4.
After the appellant's first relationship ended, he met another girl with whom he was in a relationship for two years. That relationship ended in 2009, just prior to the appellant commencing a prison sentence. After the appellant had separated from his partner, he became aware that she was pregnant. Whilst serving the prison sentence, his partner gave birth to their daughter, who she left with the appellant's parents when she moved to the Eastern States. The appellant has not heard from his partner since that time.
The appellant had a further relationship of three years' duration after his first prison sentence in 2009. He described this relationship as toxic and involving mutual drug use. That relationship ended when the appellant was again imprisoned.[37]
[37] Pre-sentence report, dated 8 August 2023, 5.
The appellant's parents continued to care for his daughter after the appellant was first released from prison. After the appellant's parents separated in 2015, the appellant's father became the sole carer for the child. The appellant's father moved to Tasmania with the child and the appellant had limited contact with her for several years. The appellant's daughter was aged 14 at the time of sentencing.[38]
[38] ts 92.
The appellant's daughter was raised believing that the appellant was her brother. The appellant's parents believed that that was the best thing for the child. At the time of sentencing, the appellant had recently advised his daughter that he was her biological father. He had made some efforts towards establishing a father/daughter relationship with her, though this was limited by his imprisonment on remand and her residence in Tasmania.[39] The appellant had plans to reside with his daughter on his release from prison.[40]
[39] ts 57.
[40] Pre-sentence report, dated 8 August 2023, 5.
The appellant's daughter wrote a letter to the sentencing judge in which she said that she was close to the appellant and was aware of the charges. She said that hearing of the appellant's arrest was upsetting, and she was disappointed that he had been arrested again. She said that she had not been a part of the appellant's life whilst growing up, but over the past few years she had reconnected with him and they had been speaking nearly every day. She said that the appellant had promised her that when he is released they could reunite and connect properly. She stated that she was currently in year 9 at school and that her studies were going well. She expressed a wish that the appellant could see her play volleyball for her school and be there when she moves on to university.[41]
[41] ts 94. AB 148.

The appellant reported first using alcohol socially at the age of 18. He also first smoked methamphetamine when he was approximately 18 years old, after his breakup with his first partner. Initially, his use was confined to social occasions, however within a year it quickly escalated to become a daily habit. As the appellant was unemployed and needed to fund his habit, he started to sell drugs.[42]
[42] ts 92; Pre-sentence report, dated 8 August 2023, 5.
In May 2009, the appellant served a four‑year prison sentence for drug‑related offences. Upon release in September 2012, he abstained from methamphetamine use for two months, however he then relapsed very quickly into daily use.[43] He once again began selling drugs to support his habit. In October 2013, the appellant was sentenced again for drug‑related offences and returned to prison.[44]
[43] Pre-sentence report, dated 8 August 2023, 5.
[44] ts 93.
In the sentencing proceedings, counsel for the appellant submitted that as a result of the drug seizure by the police in 2020 the appellant had to recoup what had been lost.[45] He also needed, and wanted, to have access to methamphetamine for his own consumption. For these reasons, he agreed to store and sell the drugs that were the subject of the 2022 charges. It was accepted that given the amount of drugs involved, there was a profit motive and that the appellant was in a high position of trust.[46]
[45] ts 55 - 56.
[46] ts 98.
Counsel at the sentencing submitted that the appellant's relationship with his daughter had provided a significant motivation for rehabilitation. In that regard, the appellant had undertaken an addiction recovery program with The Whitehaven Clinic. This had commenced on 20 April 2023 and continued whilst the appellant was on remand awaiting sentence. The program was privately funded and involved weekly individual counselling.[47]
[47] ts 93.
A report from The Whitehaven Clinic stated that the appellant had completed 11 counselling sessions, each of 120 minutes duration, which represented a total of 16.5 hours of counselling.[48] The program focused on addressing the underlying root causes of the appellant's drug addiction. It was also designed to focus on rebuilding a life without drugs by incorporating a holistic approach to recovery and developing a treatment plan. The report stated that the appellant had expressed great remorse for his past offending behaviours, commenting that his drug use was 'selfish, I never once thought of my daughter or what I was doing to others'.[49]
[48] Pre-sentence report, dated 8 August 2023, 1.
[49] Pre-sentence report, dated 8 August 2023, 5.
The Whitehaven report stated that the appellant had engaged well with counselling and had made excellent progress in gaining and providing insight into his behaviour and patterns of conduct. He had shown insight into his past behaviours and linking them with his offending behaviours. The report writer noted that the appellant is capable of changing his future direction should he choose.[50] The appellant is now aware of his fears and triggers and understands the benefits of staying emotionally and mentally healthy.
[50] Pre-sentence report, dated 8 August 2023, 10.
The appellant has a significant prior criminal record. As already noted, it includes previous drug‑related offending, for which he has been imprisoned. On 15 May 2009, the appellant was sentenced to 5 years 4 months' imprisonment for possession of MDMA with intent to sell or supply. On 18 October 2013, the appellant was sentenced to 4 years 3 months' immediate imprisonment for possession of methylamphetamine[51] with intent to sell or supply.[52] On 21 September 2017, he was sentenced to 2 years' immediate imprisonment for possession of methylamphetamine with intent to sell or supply.[53] Between 2013 ‑ 2017, the appellant was also convicted of a number of minor drug‑related offences, for which he was fined.[54]
[51] The drug is referred to as 'methylamphetamine' in State legislation and 'methamphetamine' in Commonwealth legislation. This and the following conviction were for State offences.
[52] ts 93.
[53] ts 93.
[54] WAB 120 - 121.

Sentencing remarks

It is not necessary to summarise the whole of the sentencing remarks. We will focus on those parts of the remarks that relate to the grounds of appeal.
In commencing his remarks, the sentencing judge noted that the appellant had been convicted on his pleas of guilty.[55] In referring to counts 1 and 2 on the 2022 indictment, he referred to the pure weight in each case. As regards count 1, his Honour said 'the pure weight was 945.6 grams, a commercial quantity is 750 grams'.[56] As regards count 2, his Honour said 'the pure weight was 570.5 grams, a marketable quantity is 250 grams'.[57] He then noted, correctly, the maximum penalties for each offence.
[55] WAB 84.
[56] WAB 84.
[57] WAB 84.
The sentencing judge summarised the facts. In doing so he referred to the total weight of each drug seized, that is the gross weights. When noting that analysis of the drugs had been undertaken his Honour referred both to the gross and the pure amounts of each drug.
The sentencing judge noted the appellant's personal circumstances. His Honour referred to the appellant's daughter in the following terms:[58]
Your former partner, the mother of your daughter, left your daughter with your parents and she moved to Sydney. Your parents then have cared for your daughter ever since. For a considerable time in your life, your daughter has thought that your father, her grandfather, was her father. Your daughter is now 14 years of age. She was born when you were in prison.
For part of her childhood, she was not aware that you were in prison. Some of your previous relationships have involved mutual drug abuse. Your parents separated in 2015, and your father relocated to Hobart with your daughter. At the time that occurred you were in prison.
[58] ts 92.
The sentencing judge said that he accepted that the appellant was 'generally remorseful' for his offending and acknowledged that the appellant had written a letter to the court in that regard. His Honour said:[59]
You've described your relationship with your daughter as a significant factor for you in the future for your rehabilitation. You describe that you want to be a positive role model for your daughter. That is difficult to accept, considering your past history, but given you have not really had a proper relationship with your daughter until the last few years, I accept that that is a prime motive for your rehabilitation.
…
As I've stated already, your fundamental motive now to rehabilitate yourself, is to establish a healthy relationship with your daughter and be a positive role model to her.
When I consider your prospects of rehabilitation, I can't consider that in isolation. I need to also consider your record of offending, in particular drug dealing offending over the last 20 years. But I do accept that your relationship with your daughter is significantly different to what it was over the last 15 years or so.
You are in my view, a considerable risk of reoffending, unless you continue to address your drug abuse issues. And as I've said, you've made distinct attempts to address that issue in particular, this year.
[59] ts 95 - 96.
The sentencing judge then referred to the appellant's criminal record and noted that the appellant had previously served a total of over 7 years' imprisonment, which represented a substantial portion of his adult life.[60] His Honour said that this, together with the current offending, indicated that the appellant had made a career out of drug‑dealing when he was not in prison. His Honour accepted that the appellant had been addicted to methamphetamine throughout his adult life and that on a number of occasions, he had outstanding drug debts when he was released from prison. However, his Honour noted that the present offending was far from being 'street dealing by an addict'. His Honour said that the appellant's previous record required that more weight be given to personal deterrence in sentencing.[61]
[60] ts 93.
[61] ts 93.
The sentencing judge referred to The Whitehaven Clinic report and noted that the report suggested that the appellant had made excellent progress in gaining insight into his behaviour patterns.[62] His Honour then returned to the question of the appellant's daughter and said:[63]
As I've stated, you now have a 14‑year‑old daughter. She's written a letter to the court. She describes the last few years she's reconnected with you. She has had regular contact with you by telephone and she is presently in year 9 at a private school in Hobart.
[62] ts 93.
[63] ts 94.
The sentencing judge then set out the factors which he considered to be aggravating. These were:[64]
1.that the offending was commercially motivated. His Honour said that the appellant was integrally involved in a commercial drug‑dealing enterprise, selling a variety of prohibited drugs. He accepted that it was not purely profit motivated because the appellant was also addicted to methamphetamine; and
2.the appellant committed the 2022 offences whilst on bail for the 2020 offences. He also breached some of the conditions of bail relating to what number and type of mobile telephone he could possess.
[64] ts 94.
As to mitigating factors, his Honour referred to the appellant's 'limited cooperation' during the execution of the 2022 search warrant and his consent to a forfeiture order in respect of the cash.[65]
[65] ts 94.
As to the appellant's pleas of guilty, his Honour said:[66]
Now, you pleaded guilty to the four offences on indictment 2042 of 2022 on 9 December 2022. You were charged in May 2022. These were pleas of guilty at an early opportunity, but the prosecution case, it should be said, against you was strong given what the investigating police officers, Federal Police officers, found when they searched the various premises.
You pleaded guilty to the two firearms offences on 27 February 2023. They were late pleas of guilty, leading up to your trial but after there had been negotiations concerning other charges.
[66] ts 95.
The sentencing judge later returned to the pleas of guilty and said:[67]
Those pleas of guilty have resulted in trials being avoided, which is to the benefit of the Crown. They probably would have been lengthy trials, in addition to which, witnesses were not required to attend trials.
I've allowed a discount of your sentence by 20 per cent from the head sentence of the offences on indictment 2042 of 2022, and 10 per cent for the two firearms offences on indictment 1696 of 2021, which I otherwise would have imposed, had you been found guilty of the offences after trial and there were no mitigating factors.
[67] ts 96.
The sentencing judge acknowledged that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.[68] His Honour said that the weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence but it is a matter of importance. He said that other matters to be taken into account included the nature and level of the offender's participation in drug‑dealing or trafficking within a particular organisation or generally and whether the offending was committed for commercial gain.[69] He said that the degree of purity of drugs is often regarded as significant. He said that matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. His Honour then said:[70]
In my view, you played an integral role in this offending. You possessed a significant amount of [methamphetamine], approximately 1.2 kilograms, and cocaine, approximately 1.8 kilograms, well above the commercial and marketable quantities of these drugs.
[68] ts 96 - 97.
[69] ts 97.
[70] ts 97.
A little later, the sentencing judge referred to the values of the cocaine and the methamphetamine as set out in [19] and [20]. His Honour then said:[71]
In my view, you were in the mid to upper level of this enterprise. I do accept your addiction to drugs, in particular, [methamphetamine], motivated your offending. But you did play an essential role, warehousing significant amounts of prohibited drugs, namely cocaine and [methamphetamine], and selling them.
The sales you were making were in substantial amounts and intended to (indistinct). Amounts such as ounces, where it was obviously likely to be further on sold by the people you sold [to]. You were, therefore, entrusted by people higher up in this drug dealing enterprise to be in possession of large amounts of drugs - kilograms - and large amounts of cash.
[71] ts 98.
In imposing sentences, the sentencing judge said:[72]
[72] ts 99 - 100.
For indictment 2042 of 2022, for count 1, that's the count relating to the [methamphetamine], 1.191 kilograms, six years' imprisonment.
For count 2, the cocaine, 1.849 kilograms, seven years and six months' imprisonment.
For count 3, relating to the cash, the $400,000‑odd, three years and six months' imprisonment.
For count 4, the failure to comply with the order, one year imprisonment.
For indictment 1696 of 2021, the Beretta handgun, 10 months' imprisonment.
And for count 2, the 15 rounds of ammunition, three months' imprisonment.
Now, due to the number of sentences of imprisonment I've imposed I must consider the totality principle in deciding the total effective sentence, and probably both limbs of the totality principle.
In my view there should be some accumulation of the sentences of imprisonment I've imposed for the 2022 offences. They were separate types of criminal offences and involved two different types of serious prohibited drugs, methamphetamine and cocaine.
The Crown, as I've said, accepts the two sentences of imprisonment for the firearm offences should be served concurrently.
I order the sentences of imprisonment for counts 1, 2 and 4 on indictment 2042 of [2022] be served cumulatively.
The count 3 sentence of imprisonment relating to the money be served concurrently.
The two firearm offences sentences of imprisonment are also to be served concurrently.
This results in a total effective sentence of 14 years' imprisonment.
Now, you've been in custody for 471 days [as] of today and your sentence can be backdated to 25 May 2022.
As the sentence imposed exceeds three years I need to fix a non‑parole period and in doing that I take into account once again the circumstances of your offending, the aggravating and mitigating factors. The non‑parole period I set is eight years and six months' imprisonment.

Grounds of appeal

The grounds of appeal are as follows:[73]
1.The learned sentencing judge erred in fact and law in determining the level of the [appellant's] criminality in Counts 1 and 2 on IND 2042/22 as involving the respective gross quantities of controlled drugs rather than their pure weight.
2.The learned sentencing judged erred in law by failing to consider the probable effect that any sentence imposed on the [appellant] arising from IND 2042/22 would have on his daughter, contrary to subsection 16A(2)(p) of the Crimes Act 1914 (Cth).
3.The learned sentencing judge erred in law in his approach to the determination of the benefit to be accorded to the [appellant's] pleas of guilty pursuant to s.16A(2)(g) of the Crimes Act 1914 (Cth).
4.The total effective sentence imposed of 14 years with a non‑parole period of eight years and six months infringed the first limb of the totality principle of sentencing.
[73] WAB 11.

Ground 1 - appellant's submissions

The appellant submits that the learned sentencing judge erred by assessing the appellant's culpability in respect of counts 1 and 2 on indictment 2042 of 2022 by reference to the gross weight of the cocaine and the methamphetamine rather than the pure weight. The appellant contends that this is an error because for Commonwealth drug offences the pure weight is the critical factor in determining the seriousness of an offence. This is said to be in contrast with State offences where the gross weight is the critical factor.[74]
[74] WAB 15.
The appellant refers to the fact that for Commonwealth drug offences it is the pure quantity of the drug that determines whether a trafficable or commercial quantity is involved. This in turn affects the relevant maximum penalties. Whilst the appellant does not suggest that the gross quantity is irrelevant in terms of assessing the seriousness of the offence, he suggests that the pure quantity is the more important factor and should be reflected in the sentences imposed.[75]
[75] WAB 15.
The appellant submits that the sentencing judge, whilst referring to purities when recounting the facts, referred only to the gross quantities when imposing the sentences. Further, his Honour imposed a higher sentence for count 2 than for count 1, even though the pure quantity of methamphetamine in count 1 was greater than the pure quantity of cocaine in count 2. This suggests that his Honour determined the relative seriousness of counts 1 and 2 by reference only to the gross quantities and did not take into account the purity of the drugs and the respective maximum penalties.[76]
[76] WAB 15.
The appellant submits that by focusing on the gross weights, the learned sentencing judge inflated the appellant's criminality. Whilst acknowledging that weight is not a sole determining factor in sentencing, its significance is nonetheless important. In the context of this case, the appellant submits that the error is material and warrants re‑evaluation by this court. That is, the sentencing judge made a material error in his assessment of the seriousness of the offences by failing to have proper regard to the pure quantities of the drugs.

Ground 1 - respondent's submissions

The respondent submits that it was orthodox and unremarkable for the sentencing judge to refer to both the gross and pure weights of the drugs. The respondent submits that at various points in the sentencing remarks, the sentencing judge referred to both the gross and pure weights of the drugs. His Honour also specifically referred to the significance of the degree of purity of the drug as a sentencing factor.[77]
[77] WAB 27 - 28.
The respondent says that it is apparent from a fair reading of the judge's sentencing remarks as a whole that the level of criminality was arrived at after considering the various matters to which his Honour referred to and not merely by reference to the gross weight of the drugs.[78]
[78] WAB 28.

Ground 1 - the merits

It is not immediately apparent from ground 1 what the error of the sentencing judge is said to be. At the hearing of the appeal, counsel for the appellant was asked to identify the error by reference to the well‑known principles in House v The King.[79]Counsel said that the error in this case was the wrong application of a sentencing principle. When asked to identify that principle, counsel suggested that it was that Commonwealth drug offences focus on the pure weight of the drug in question and not the gross weight. In written submissions, the appellant sought to rely on s 312.1 of the Criminal Code and the case of R v King to support that contention.[80]
[79] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[80] R v The King [1979] VR 399.
The principle identified by the appellant does not equate with an identifiable duty on the part of a sentencing judge. To say that Commonwealth drug offences focus on the pure weight begs the question of what the word 'focus' is intended to mean. It cannot mean that the only relevant consideration is the pure weight of the drugs. The appellant accepted that the gross weight was not an irrelevant consideration.
Furthermore, neither s 312.1 of the Criminal Code nor R v King support the appellant's contention. Section 312.1 provides that where an offence involves a quantity of drugs in a mixture of substances, the prosecution may prove the quantity of the drug involved by proving that the mixture contains that quantity of the pure form of the drug. In R v King, it was decided that in determining whether a quantity of a narcotic drug was a trafficable quantity under now repealed provisions of the Customs Act 1901 (Cth), the relevant amount was the pure amount.

The pure quantity of a drug is relevant in determining whether the quantity is trafficable or commercial for the purposes of the Criminal Code. That, in turn, will determine the relevant maximum penalty. However, that does not mean that the gross weight of the drug involved is an irrelevant consideration. The gross weight may be relevant when considering how the drug would be distributed and the possible impact on users and society generally. It may also be relevant to value (as the values for gross and pure amounts given for the 2020 offences illustrate).
In oral submissions at the hearing of the appeal, the appellant's argument was refined. The more general, and unsustainable, proposition referred to above was effectively abandoned. Instead, it was contended that the relativity between the sentences for the two offences was at odds with the pure amounts of drugs involved.[81] Counsel said that the ground should be understood as meaning that the sentence for count 2 should not have exceeded the sentence on count 1. However, there was no suggestion that either of the sentences was manifestly excessive.
[81] Appeal ts 7 - 8.
Count 1 was an offence of trafficking a commercial quantity of methamphetamine, contrary to s 302.2(1) of the Criminal Code. The amount involved was a commercial quantity because the pure quantity (945.6 g) exceeded 750 g, the pure amount prescribed for a commercial quantity.[82] The maximum penalty for that offence is life imprisonment or 7500 penalty units ($1,665,000) or both.
[82] Criminal Code Regulations 2019 (Cth), sch 1 item 157.
Count 2 was an offence of trafficking a marketable quantity of cocaine, contrary to s 302.3(1) of the Criminal Code. The amount involved was a marketable quantity because the pure quantity (570.5 g) exceeded 250 g, the pure amount prescribed for a marketable quantity.[83] The maximum penalty for that offence is 25 years' imprisonment or 5000 penalty units ($1,110,000) or both.
[83] Criminal Code Regulations, sch 1 item 67.
In any particular case there may be factors other than the weight of the drugs involved that will be relevant in determining the seriousness of the offence. In this case, however, the methamphetamine and cocaine were discovered at the same place and time and form part of the same offending conduct. In these circumstances, all other things being equal, given the pure amounts of the drugs and the respective maximum penalties, it would be expected that the sentence imposed for the methamphetamine would be greater than that imposed for the cocaine. Whilst the gross quantities of the drugs were not irrelevant, they cannot account for a greater sentence being imposed in respect of the cocaine.
Notwithstanding that the sentencing judge referred to the pure quantities in the course of the sentencing remarks, it is impossible to resist the conclusion that when it came to imposing sentences for the two relevant counts, his Honour did so on the basis of the gross quantities of those drugs and without regard for the pure amounts, and, importantly, the different maximum penalties. His Honour fell into error by failing to take into account those relevant considerations when imposing sentences on counts 1 and 2.
For these reasons, we would grant leave in respect of ground 1 and allow the appeal on that ground. We will return to the question of resentencing after dealing with the other grounds.

Ground 2 - appellant's submissions

The appellant acknowledges that the probable impact of his sentence on his daughter was not expressly raised during the sentencing proceedings. Nonetheless, the appellant submits that it was incumbent on the sentencing judge to consider this factor. The appellant submits that the Whitehaven report and the letter from the appellant's daughter provided the sentencing judge with evidence that indicated a recent and substantial shift in the relationship between the appellant and his daughter and that that relationship had profound significance for both of them.[84]
[84] WAB 15 - 16.
The appellant submits that the sentencing judge was obliged by s 16A(1) of the Crimes Act to consider the matters in s 16A(2) where they are relevant and known to the court. One of those mandatory considerations is 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependants'.[85] As the material before the sentencing judge was relevant to the likely impact of the appellant's imprisonment on his daughter, that was a matter that the sentencing judge was obliged to take into account.
[85] Crimes Act, s 16A(2)(p).
In this regard, the appellant submits that this court should revisit Kleindyk v The Queen,[86] which is authority for the principle that the impact of a sentence of imprisonment on family or dependants can only be mitigating in exceptional circumstances. The appellant refers to the decision of the New South Wales Court of Criminal Appeal in Totaan v The Queen,[87] in which that court held it was unnecessary to establish exceptional circumstances to consider the probable effect of a sentence on an offender's family. The appellant submits that the decision in Totaan is not plainly wrong and should be followed.
[86] Kleindyk v The Queen [2016] WASCA 123.
[87] Totaan v The Queen [2022] NSWCCA 75; (2022) 108 NSWLR 17.

Ground 2 - respondent's submissions

The respondent emphasises that the probable impact of any sentence on the appellant's daughter was not expressly raised at sentencing. That relationship was at the forefront of submissions made by defence counsel who appeared on the appellant's behalf, but not for the purposes of suggesting any adverse effect on the daughter. The effect of those submissions was that, despite the appellant's repeated offending, there remained good prospects for rehabilitation because he was now motivated not to reoffend by the hope of building a relationship with his daughter.[88]
[88] WAB 28 - 30.
The respondent submits that the sentencing judge correctly recognised that in relation to serious drug offences, general and specific deterrence are the major sentencing considerations and matters personal to an offender are subsidiary. In these circumstances, any adverse impact on the appellant's family members, even if established, could only have had a very minimal impact on sentence. Given the seriousness of the offences, the maximum penalties, the need for general and specific deterrence, the appellant's criminal history and the essential role he played in the offending, the sentences imposed are said to be within a sound exercise of discretion, notwithstanding any potential effect on the appellant's daughter.[89]
[89] WAB 30.

Ground 2 – the merits

There was no suggestion in the sentencing proceedings that there would be an adverse impact on the appellant's daughter as a result of a sentence of imprisonment imposed on him. This was not a case where the appellant's daughter was a dependant. Indeed, she had been brought up by the appellant's father in another state and had never resided with the appellant. There was no evidence to suggest that her material needs would be impacted by his imprisonment and there was no psychological report to suggest that she would be adversely impacted by such imprisonment.
The only materials before the sentencing judge that could possibly bear on the issue was the Whitehaven report, the appellant's letter to the sentencing judge and the appellant's daughter's letter.[90] These materials indicated that the appellant had recently revealed to his daughter that he was her father; that they had communicated by telephone; that they both had a wish to build a new relationship with a view to possibly sharing accommodation after the appellant was released; and that the appellant's daughter was, understandably, disappointed that he had been arrested and would be serving a sentence of imprisonment. None of this material suggested that the daughter would suffer any significant adverse impact from the imprisonment of the appellant. The material was not relied on for that purpose. It was only relied on to show that the appellant had a motivation to engage in rehabilitation and to remain abstinent from illicit drug use in the future. That was how the sentencing judge used the information.
[90] ts 37.
The contention that the sentencing judge failed to take into account a relevant consideration, namely the adverse impact on the appellant's daughter of his imprisonment, cannot be accepted. There was no evidence of an adverse impact. In any event, even if it is assumed that there may be some possible adverse impact on the appellant's daughter, it could not have been of such a degree as to be worthy of any significant weight in the sentencing process. Having regard to the fact that the appellant had never played the role of a father to his daughter, that she was not (and never been) in his custody or care, and that she did not rely on him for any material needs, it is hard to see how this factor could possibly have affected the sentences imposed. That is particularly so having regard to the fact that for offences of this nature, matters personal to the offender, whilst not irrelevant, have significantly less weight.
This case is not an appropriate vehicle for resolving any inconsistency between the cases of Kleindyk and Totaan. There is no evidence of adverse impact in this case. Even if the daughter's disappointment at losing the opportunity to build a relationship with the appellant was viewed as an adverse impact, it could not have had any material impact on the sentences imposed in this case. Kleindyk, as a decision of this court, remains binding authority.
There is no merit in this ground of appeal and leave in respect of it should be refused.

Ground 3 - appellant's submissions

The appellant submits that in assessing the value of the appellant's pleas of guilty to the Commonwealth charges, the sentencing judge took into account the strength of the prosecution case. This is said to be an error because s 16A(2)(g) of the Crimes Act recognises only the utilitarian value of a plea of guilty. The strength of the prosecution case is irrelevant to the utilitarian value of the plea, although it may be relevant to the extent to which the plea reflects genuine contrition and remorse.[91]
[91] WAB 17.
The appellant submits that in this case the sentencing judge specifically considered the utilitarian benefit of the appellant's pleas of guilty and allowed a discount of 20% for the Commonwealth drug offences. In determining the appropriate discount, the sentencing judge acknowledged that the appellant's pleas were entered at the earliest opportunity but referred to the strength of the prosecution case. The appellant submits that the discount granted for the utilitarian benefits of the pleas was unjustly reduced as a result of an irrelevant consideration.[92]
[92] WAB 17 - 18.

Ground 3 - respondent's submissions

The respondent submits that in this case, the sentencing judge specifically considered the utilitarian value of the appellant's pleas of guilty and that the 20% discount allowed was well within the sound exercise of discretion. A discount for a guilty plea may reflect contrition and remorse, whilst separately recognising a utilitarian benefit of the kind referred to in s 16A(2)(g) of the Crimes Act. The strength of the prosecution case remains relevant to the extent to which the plea reflects genuine contrition and remorse. The extent of the discount for a guilty plea is a discretionary matter for the sentencing judge.[93]
[93] WAB 30.

Ground 3 - merits

Section 16A(2)(g) provides that in sentencing the court must take into account the fact that an offender has pleaded guilty; the timing of the plea; and the degree to which that fact and its timing resulted in any benefit to the community, or to any victim of, or witness to, the offence. Section 16A(2)(f) provides that in sentencing the court must take into account the degree to which the offender has shown contrition for the offence, by making any reparation or in any other manner. There is no obligation to deal with these matters separately or to expressly ascribe individual values to them in the sentencing exercise. There was no requirement, this being a Commonwealth offence, for the sentencing judge to refer to the exact value of the discount that he determined.[94]
[94] In contrast with s 9AA of the Sentencing Act 1995 (WA).
The sentencing judge did not distinguish between utilitarian benefits and subjective factors when determining that the appropriate discount for the pleas of guilty was 20%. That discount must represent a synthesis of all aspects of the pleas. It was open to his Honour to reduce the weight to be given to remorse and contrition, having regard to the strength of the prosecution case. The prosecution case was clearly very strong and the appellant's pleas could be viewed as being an acceptance of the inevitable.
Since his Honour did not distinguish between the utilitarian and subjective components of the pleas of guilty, it cannot be assumed that the 20% discount that he articulated referred only to the utilitarian value. It must be assumed that the 20% discount reflected both the utilitarian value and the subjective factors. In these circumstances, the appellant's argument that the sentencing judge took into account an irrelevant consideration must fail.
There is no merit in this ground of appeal and leave in respect of it should be refused.

Ground 4 -_appellant's submissions

The appellant submits that before factoring in totality considerations, the sentencing judge indicated that the appropriate sentence for count 1 would be 7 years' imprisonment and the appropriate sentence for count 2 would be 8 years 6 months' imprisonment. After considering totality, the sentence on count 1 was reduced to 6 years' imprisonment and the sentence on count 2 reduced to 7 years' imprisonment. By ordering count 2 to be served entirely cumulatively on count 1, the appellant submits that the sentencing judge failed to properly reflect the common features of the offending. It is said that the overall reduction for totality reasons of 2 years and 6 months from the total proposed sentence of 15 years 6 months' imprisonment only constituted a marginal reduction of less than 16%.[95]
[95] WAB 18 - 19.
The appellant also submits that the sentence on count 2 appears to be disparate when compared to that imposed on count 1 having regard to the pure weight of the respective drugs. The appellant submits that there was no justifiable basis to treat the possession of cocaine more seriously than the possession of methamphetamine. Both were discovered in the same concealed location, the motorcycle bag under the seat of the sauna in the courtyard, with some smaller amounts being found elsewhere at the premises. The appellant submits that the sentencing judge failed to identify any factual basis for distinguishing between the circumstances of the possession of these two types of drugs.[96]
[96] WAB 19.
The appellant submits that the decision of the sentencing judge to order that count 2 be served entirely cumulatively on count 1, despite both drugs being discovered in the same location during the same incident and forming part of the same course of conduct, failed to ensure the sentence imposed bore a proper relationship to the overall criminality involved. Ordering that count 4 be served wholly cumulatively on count 2 compounded the disproportionate relationship between the total sentence and the aggregate offending. It is said that the total effective sentence of 14 years' imprisonment fails to bear a proper relationship to the overall offending.[97]
[97] WAB 19 - 20.

Ground 4: respondent's submissions

The respondent notes that there is no complaint about the individual sentences. The complaint is about the way the sentences were structured and adjusted to give effect to the totality principle. Each offence was serious, and the offences of trafficking significant quantities of methamphetamine and cocaine warranted substantial penalties. The offences were also committed whilst the appellant was on bail for previous serious drug related offences which revealed a blatant disregard for the law.[98]
[98] WAB 31.
The respondent says that, having regard to the unchallenged findings of the trial judge, the total effective sentence was appropriate. In particular:[99]
1.the appellant trafficked 945.6 g of pure methamphetamine with a value of between $700,000 ‑ $2,380,000 depending on how it was sold.
2.the appellant trafficked 570.5 g of pure cocaine with a value of somewhere between $500,000 ‑ $1,800,000 depending on how it was sold.
3.the appellant's offending was commercially motivated and he was integrally involved in a commercial drug dealing enterprise.
4.the appellant played an essential role in warehousing significant amounts of very serious prohibited drugs.
5.the appellant was entrusted by people higher up in the drug dealing enterprise to be in possession of large amounts of drugs and cash.
[99] WAB 31 - 32.
The respondent submits that the sentences imposed also had to take into account those offences which were included on the s 16BA schedule.
When viewed against the seriousness of the offences; the available maximum penalties; the appellant's role, his age and history; the importance of general and specific deterrence; the fact that the most recent serious trafficking offences were committed whilst the appellant was on bail for earlier trafficking offences; and the other offences in the s 16BA schedule, the sentences arrived at appropriately reflected the overall criminality, even given all matters in mitigation and the first limb of the totality principle.[100]
[100] WAB 34.
Whilst the appellant did not address the non‑parole period, the respondent notes that the principles applicable when determining the non‑parole period are the same as those that the court considers when fixing the head sentence. However, the weight that may be attached to them may differ.[101] The respondent submits that the non‑parole period was appropriate in the circumstances of this case.
[101] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56] ‑[57]; De Hollander v The Queen [2012] WASCA 127 [82].

Ground 4: the merits

In this appeal the sentencing judge did recognise that the totality principle applied, and did make an adjustment on account of totality when imposing cumulative sentences. The appellant asserts no error of law or fact, the appellant claims that the outcome is one that manifests error. Such a ground will only be made out if the appellant establishes that the total sentence is so unreasonable or plainly unjust that error can be inferred.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences. The offences must be viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.[102]
[102] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The appellant's argument relies in part on the asserted disparity between the sentences imposed for counts 1 and 2. However, the sentences imposed for the individual offences have not been challenged and are not the focus of a ground of appeal that relies on the first limb of the totality principle. In any event the severity of an individual sentence may be offset by the leniency of another. The only issue in respect of a ground that challenges the aggregate sentence is whether the total effective sentence is disproportionate to the overall offending. How the sentence was reached is irrelevant. It is the total effective sentence that must manifest error.

When considering the total effective sentence in this case, it is necessary to take into account not only the three offences which contributed to the total effective sentence but all of the offending that is represented by that sentence. That includes the firearms offences and the earlier drug offences listed on the s 16BA schedule. Having regard to that total offending, the appellant's criminal conduct was plainly very serious. He had committed drug offences in 2020 that involved significant quantities of methamphetamine, cocaine and MDMA. He was dealing in drugs at that time and also illegally possessed a firearm and ammunition. He committed the 2022 offences whilst on bail for the 2020 offences. The 2022 offences involved very large quantities of methamphetamine and cocaine, a large amount of unlawfully obtained cash and the refusal to comply with a data access order. The unchallenged finding of the sentencing judge was that the appellant had played an integral and trusted role in a commercial drug dealing business.[103]
[103] ts 94.
There was very little by way of mitigation, other than the appellant's pleas of guilty. His expressions of remorse and efforts towards rehabilitation had to be seen in the light of his long involvement in drug use and dealing. He did not have the benefit of youth or prior good character. Personal deterrence, as well as general deterrence, was a factor that assumed importance in this case.
The appellant's argument that the reduction for totality was 16% is misconceived. First, it fails to take into account that a number of the other sentences were ordered to be served concurrently. Secondly, in this case a ground alleging a breach of the totality principle does not depend on any error in the process by which the total sentence is determined. Thirdly, it does not engage with the question of whether the aggregate sentence was proportionate to the whole of the appellant's criminal conduct.
As to the appellant's argument that the total effective sentence did not take into account that the two different types of drugs involved in the 2022 offending formed part of the same course of conduct, the implication appears to be that some degree of concurrency was required to avoid an element of double punishment. However, the sentencing judge was entitled to treat the appellant as having engaged in a substantial drug trafficking business involving both methamphetamine and cocaine. The appellant was thus able to service a range of demands within the overall business.[104] In any event, the issue on this ground is not whether the individual sentences were correct, but whether the total effective sentence was disproportionate to the overall offending.
[104] Duong v DPP [2021] VSCA 136 [21] ‑ [23] (Niall JA).
The appellant does not refer to any comparable cases to support the argument that the total effective sentence of 14 years' imprisonment was disproportionate to the overall offending. In the sentencing proceedings the prosecution provided a schedule of comparable cases for the individual offence types. For offences against s 302.2(1) and s 302.3(1) of the Criminal Code, the schedule referred to[105] Duong v DPP;[106] R v Ruzehaji;[107] R v Nakash;[108] and Kleindyk v The Queen.[109] For offences against s 400.4(1) of the Criminal Code the schedule referred to R v Jacques[110] and Harvey v The Queen.[111] For offences against s 3LA of the Crimes Act, the schedule referred to Morrison v The Queen.[112] For offences against s 19(1)(c) of the Firearms Act, the schedule referred to Dias v The State of Western Australia[113] and Merai v The State of Western Australia.[114] Whilst none of those cases are truly comparable to that of the appellant, as none include the same total number and diversity of offences, we have had regard to them for the limited assistance they can afford.
[105] Prosecution sentencing submissions, dated 1 September 2023, Annexure A.
[106] Duong.
[107] R v Ruzehaji [2018] SASCFC 139; (2018) 132 SASR 302.
[108] R v Nakash [2017] NSWCCA 196.
[109] Kleindyk.
[110] R v Jacques [2021] SASCA 94.
[111] Harvey v The Queen [2018] WASCA 188.
[112] Morrison v The Queen [2020] QCA 93.
[113] Dias v The State of Western Australia [2017] WASCA 49.
[114] Merai v The State of Western Australia [2018] WASCA 54.
Having regard to the serious aggravating circumstances of the offences committed by the appellant, including those listed on the s 16BA schedule, it is not reasonably arguable that the sentence of 14 years' imprisonment (or the non‑parole period of 8 years 6 months' imprisonment) was unreasonable or plainly unjust. Indeed, that sentence appears to be a plainly appropriate reflection of the overall offending.
Ground 4 is without merit. Leave in respect of it should be refused.

Resentencing

As ground 1 succeeds, it is necessary for this court to exercise the sentencing discretion afresh. Ground 1 relates only to counts 1 and 2 on the 2022 indictment, but s 41(2) of the Criminal Appeals Act 2004 (WA) permits this court to vary any other sentence that took into account those sentences. However, in the circumstances of this case, it is unnecessary to resentence other than in respect of counts 1 and 2. There is no suggestion that the sentences for any of the other offences are inappropriate.
Having regard to the serious circumstances of the offending, in particular the quantities of drugs involved, both gross and pure; the values of the drugs; the fact that the 2022 offending occurred whilst the appellant was on bail for earlier similar offending; and the need for personal and general deterrence, the only appropriate sentences are sentences of immediate imprisonment. There is little by way of mitigation other than the appellant's pleas of guilty. We would allow the same discounts for the pleas of guilty as the sentencing judge. As to the appellant's attempts towards rehabilitation, they are deserving of some credit but matters personal to an offender are of less weight in respect of offending of this nature.
The appellant applied to adduce additional evidence in the event that he was resentenced on appeal. That additional evidence consisted of further information regarding the appellant's relationship with his daughter. In a subsequent letter, the daughter has said the appellant was never really a part of her life in the past, but that she was now talking to him every day and that she would 'really love to see him in person'. She states that hearing of her father's sentence was devasting and felt like 'the end of the world'. She describes the situation as emotionally challenging and overwhelming. She says the sentence has impacted on her chance of being reunited with the appellant and finally bonding with him as her father.
Whilst the appellant's daughter's response to the appellant's sentence is understandable, this is not a case where she is a dependent who will suffer adverse consequences in material terms. The additional evidence does not add significantly to the information that was before the sentencing judge. To the extent that it is necessary to take into account the impact of the appellant's sentence on family members, we do so.
In our view the appropriate sentence on count 1, the offence of trafficking a commercial quantity of methamphetamine, is 7 years' imprisonment and the appropriate sentence on count 2, the offence of trafficking a marketable quantity of cocaine, is 6 years' imprisonment. Count 1 could well have attracted a sentence higher than 7 years' imprisonment but in all the circumstances, we are satisfied that those are the appropriate sentences, after taking into account totality considerations. We would make the same orders for accumulation and concurrency as were made by the sentencing judge. Accordingly, the total effective sentence remains 14 years' imprisonment. The non‑parole period should be set at 8 years 6 months' imprisonment.

Orders

1.Leave to appeal on ground 1 is granted.
2.Leave to appeal on grounds 2, 3 and 4 is refused.
3.The appeal is allowed.
4.The sentences on counts 1 and 2 on indictment 2042 of 2022 are set aside and in lieu thereof the appellant is sentenced to 7 years' imprisonment on count 1 and 6 years' imprisonment on count 2.
5.Those sentences are to be served cumulatively on each other and on the sentence imposed on count 4 on indictment 2042 of 2022.
6.The total effective sentence is 14 years' imprisonment.
7.The non‑parole period is 8 years 6 months' imprisonment.
8.The sentence is deemed to have commenced on 25 May 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
16 JANUARY 2025