Maggioli v The State of Western Australia
[2025] WASCA 108
•17 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAGGIOLI -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 108
CORAM: MAZZA JA
HALL JA
ARCHER JA
HEARD: 9 JUNE 2025
DELIVERED : 17 JULY 2025
FILE NO/S: CACR 99 of 2024
BETWEEN: ALESSIO MAGGIOLI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 100 of 2024
BETWEEN: ALESSIO MAGGIOLI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TOVEY DCJ
File Number : IND 2228 of 2021
Catchwords:
Criminal law - Appeal against conviction - Where appellant convicted of sale of cocaine - Whether verdict unreasonable or not supported by the evidence
Criminal law - Appeal against sentence - Where appellant sentenced to 3 years 10 months' imprisonment - Whether sentence manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
CACR 99 of 2024
Leave to appeal refused
Appeal dismissed
CACR 100 of 2024
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 99 of 2024
Counsel:
| Appellant | : | C Townsend |
| Respondent | : | A C Ebell |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 100 of 2024
Counsel:
| Appellant | : | C Townsend |
| Respondent | : | A C Ebell |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Cant v The State of Western Australia [2009] WASCA 188
Dann v The State of Western Australia [2006] WASCA 254
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Gaskell v The State of Western Australia [2018] WASCA 8
Kabambi v The State of Western Australia [2019] WASCA 44
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Rodgers v The State of Western Australia [2023] WASCA 52; (2023) 307 A Crim R 196
The State of Western Australia v Gholizadeh [2024] WASCA 45
Tran v The State of Western Australia [2016] WASCA 37
JUDGMENT OF THE COURT:
On 4 March 2020, an undercover police officer arranged to purchase 2 ounces of cocaine from a man named Wong. Wong met with the undercover police officer and received a quantity of cash in payment for the cocaine, which Wong placed in a white box. Wong then drove a short distance away, where he met with the appellant in a car park. The meeting was observed by another undercover police officer and was recorded by CCTV cameras at a nearby food outlet. Wong returned a short time later and handed over 2 ounces of cocaine to the first undercover police officer.
The appellant was convicted, after trial, of one count of selling a prohibited drug, namely cocaine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 3 years 10 months' imprisonment. He now seeks leave to appeal against his conviction and sentence.
The appellant was sentenced on 28 June 2024. His notices of appeal were filed on 20 September 2024, that is, approximately two months out of time. The delay is not adequately explained. Whether an extension should be granted depends on the merits of the appeals.
There were originally two grounds of appeal against conviction.[1] One ground was abandoned at the hearing of the appeal. The remaining ground is that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. The appellant essentially contends that it was not open to the jury to be satisfied beyond reasonable doubt that, at the meeting in the car park, the appellant received the cash in payment for the cocaine. This depends on an assessment of the CCTV footage and the evidence of the police officer who observed the meeting and took photographs. In our independent assessment of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant received the cash and was guilty of supplying the cocaine.
[1] WAB 9 - 10.
There were originally two grounds of appeal against sentence.[2] One ground was abandoned at the hearing of the appeal. The remaining ground is that the sentence was manifestly excessive. In our view, the sentence of 3 years 10 months' immediate imprisonment was not unreasonable or plainly unjust having regard to the maximum statutory penalty, the seriousness of the offence, sentences imposed in comparable cases, and the personal circumstances of the appellant.
[2] WAB 73.
In our view, leave to appeal in respect of both the appeal against conviction and the appeal against sentence should be refused, and both appeals should be dismissed. More detailed reasons for those conclusions follow.
Prosecution case
The prosecution case was that on 4 March 2020, the appellant was involved in the sale of cocaine to another person, Wei Tat Wong (Wong). At the time, Wong was the target of a police operation and was under covert surveillance.[3]
[3] ts 157 - 158.
On the morning of 4 March 2020, an undercover police operative (UCO 799) met with Wong.[4] Wong informed UCO 799 that he had an Albanian friend who could supply 2 ounces of cocaine. UCO 799 confirmed his interest in the purchase. UCO 799 obtained $17,000 in cash from police operational funds to purchase the cocaine. Later that day, he met with Wong in Northbridge.[5] Wong informed UCO 799 that the Albanian supplier would meet them in Morley.
[4] ts 158.
[5] ts 158.
Later the same day, UCO 799 parked on Progress Street, Morley, opposite a shop called 'Utopia'.[6] Wong parked his car a few bays down the street. Wong left his vehicle, entered the vehicle of UCO 799, and asked for the money. Wong said that he had some cash of his own as he wished to purchase 1 ounce of cocaine for himself. Wong asked UCO 799 whether he had anything to put the money in. When UCO 799 said he did not, Wong went to his own vehicle, retrieved a white box from the boot, and returned to UCO 799's vehicle.[7] The box was described as white with some black lettering, rectangular in shape, and approximately 10 cm wide, 25 cm long, and 6 cm ‑ 7 cm deep. Wong placed the cash into the box, before leaving UCO 799's vehicle and returning to his own.
[6] ts 158.
[7] ts 158.
Wong was observed by another undercover operative (UCO 553) to drive to Russell Street, where he reverse parked his vehicle in a car park adjacent to a Nando's restaurant.[8] UCO 553 then observed the appellant walk across the car park to Wong's vehicle. The driver's door of Wong's vehicle was opened, and the appellant bent down. UCO 553 observed that the appellant's arms moved forward, came back, and that he then stood up and walked away.
[8] ts 159.
This interaction was captured both in photographs taken by UCO 553 and in CCTV footage. It was the prosecution case that the photographs taken by UCO 553 showed the appellant departing Wong's car with a white object in his hands.[9] It was also the prosecution case that the CCTV footage showed that the appellant had something in his left hand, or arm, at the time he approached Wong's car, which was dark in colour, and that he was carrying something when he walked away from the car.[10]
[9] ts 272.
[10] Closed court ts 6.
Immediately after this interaction, Wong drove his car out of the carpark and along a laneway. Data from a tracking device placed on Wong's car showed two tracking points very close together in the laneway, with 11 seconds between them.[11] This left open a possibility that Wong's car had been stationary in the laneway for that period of time.
[11] ts 157.
Wong drove back to Progress Street and parked his car. UCO 799 had remained at that location. UCO 799 got into Wong's car and was given a cryovac bag containing 2 ounces of cocaine.[12] The cocaine was removed from another bag. UCO 799 then left. The cocaine was subsequently tested.
[12] ts 158.
The State case was ultimately run on two alternative bases.[13] First, that the appellant had exchanged cocaine for cash when he met with Wong in the Nando's carpark. Secondly, that the appellant had received cash from Wong, and Wong then received cocaine from another person in the laneway, before meeting again with UCO 799. On the first basis, the appellant was said to be criminally liable as the supplier of the cocaine. On the second basis he was said to be liable as he had aided the supply of the cocaine by receiving the cash. On either basis, the receipt of the cash by the appellant was a critical component of the State case.[14]
[13] ts 2 - 3.
[14] ts 232 - 233.
Defence case
The defence case was that the appellant approached Wong's car seeking directions to a bar.[15] He spoke briefly to Wong, who he did not know, and when Wong could not assist, he walked away. There was no supply of drugs or receipt of cash in payment for drugs.[16]
[15] ts 162, ts 218.
[16] ts 163 - 164.
Ground of appeal
The ground of appeal is as follows:[17]
[17] WAB 9.
1.The verdict of the jury was unreasonable or could not be supported having regard to the evidence adduced at trial.
Particulars
a)The Respondent ran its case against the Appellant on two bases.
b)Firstly, the Appellant exchanged cocaine for cash with Mr Wong, in the carpark of Nando's Morley.
c)Secondly, the Appellant received cash from Mr Wong in the carpark of Nando's Morley, which was for the purchase of cocaine that Mr Wong shortly thereafter received from an unknown individual.
d)The Respondent, in accepting that Mr Wong could have received the cocaine from an unknown individual enlivened a reasonable hypothesis consistent with the innocence of the Appellant.
e)That hypothesis was that the exchange of cocaine for cash involving Mr Wong did not occur, in any part, in the carpark of Nando's Morley, but shortly thereafter with an unknown individual.
f)The Respondent failed, with the evidence led at trial, to otherwise exclude that hypothesis.
Appeal against conviction - appellant's submissions
The appellant notes that both pathways to guilt required the jury to be satisfied that he received the box containing cash from Wong.[18] The appellant submits that the evidence was incapable of sustaining that conclusion. He contends that the CCTV footage shows that the appellant was carrying a white box prior to approaching Wong's vehicle. The argument is that if the appellant was carrying a white box when he approached Wong's vehicle, it could not be inferred beyond reasonable doubt that any white item he was seen carrying away from the vehicle must be the box containing cash.[19]
[18] WAB 15.
[19] WAB 15 - 16.
The appellant further submits that the State's alternative pathway to guilt allowed for the possibility that the appellant had received cash, but that the cocaine had been handed over to Wong by another person when he paused his car in the laneway.[20] On this pathway, the appellant would be guilty if the jury were satisfied that, by receiving the cash, the appellant aided in the supply of the drugs to Wong. However, the appellant contends that the State could not exclude the possibility that the entirety of the transaction occurred in the laneway. The appellant submits that the evidence of being seen with a white item in his hand when he walked away from Wong's car, was not sufficient to exclude, as a reasonable possibility, that the whole of the transaction occurred in the laneway.[21]
[20] WAB 16.
[21] WAB 16.
Appeal against conviction - respondent's submissions
The respondent submits that the evidence adduced by the prosecution to support the appellant's guilt, on either scenario, was sufficient to exclude any hypothesis consistent with innocence.[22] In particular, there was ample evidence supporting the proposition that, at the very least, the appellant received the cash from Wong in the car park. The jury plainly rejected the appellant's evidence to the effect that his interaction with Wong was merely coincidental.[23] The respondent submits that the only rational hypothesis available on the evidence was that the appellant received the purchase price for the drugs during that meeting.[24]
[22] WAB 54.
[23] WAB 54.
[24] WAB 54.
Appeal against conviction - relevant legal principles
The relevant legal principles applicable to a ground of appeal that asserts, having regard to the evidence, that a verdict is unreasonable or cannot be supported, are well established and uncontroversial. The relevant principles were outlined by this court in Rodgers v The State of Western Australia.[25]
[25] Rodgers v The State of Western Australia [2023] WASCA 52; (2023) 307 A Crim R 196 [35] ‑ [48] (Buss P & Livesey AJA).
As was noted in Rodgers, consistently with the statements of the High Court in Pell v The Queen,[26] the assessment of the weight to be accorded to a witness's evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury and not of the appellate court.
[26] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] ‑ [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The question for the appellate court is whether, upon its examination of the record, by reasons of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the proof of guilt.[27] Framed differently, the central question is whether the assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which cannot be assuaged by reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial.[28]
[27] Pell [39].
[28] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [16] (Gageler, Keane, Gordon, Steward & Gleeson JJ); cited in Rodgers [44] (Buss P & Livesey AJA).
In criminal cases that turn upon circumstantial evidence, the following principles apply:[29]
1.The jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
2.The jury can only be satisfied of the guilt of the accused if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
3.For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty, if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts.
4.In considering a circumstantial case, all of the circumstances are to be considered and weighed, in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[29] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
Appeal against conviction - the evidence
The ground of appeal requires that this court make its own independent assessment of the evidence. The prosecution evidence can be summarised as follows.
UCO 799
During February ‑ May 2020, UCO 799 was an undercover police operative who assumed the name of 'Matthew'.[30] During this operation, he was in contact with Wei Tat Wong, also known as Victor Wong. UCO 799 would contact Wong by text message, sometimes using an encrypted telephone application.[31]
[30] Closed court ts 2.
[31] Closed court ts 3.
On 4 March 2020 at about 11.42 am, UCO 799 attended in the vicinity of a café in Scarborough to meet with Wong.[32] The purpose of this meeting was to arrange the purchase of 2 ounces of cocaine. Wong said that he had an Albanian friend who could supply the cocaine.[33]
[32] Closed court ts 3.
[33] Closed court ts 3.
Later in the afternoon, at around 3.10 pm, UCO 799 received messages from Wong stating that his associate could facilitate the purchase of the cocaine that day.[34] Wong requested that UCO 799 meet him in Northbridge, at 4.00 pm.
[34] Closed court ts 4.
Prior to the meeting in Northbridge, UCO 799 met with his covert police controller, who issued $17,000 in operational funds to purchase the cocaine.[35] At the meeting in Northbridge, Wong advised that his associate, who he referred to as an Albanian or European man, would meet them in Morley between 4.00 pm ‑ 5.00 pm.[36] They agreed to travel in separate cars.
[35] Closed court ts 4.
[36] Closed court ts 4.
UCO 799 drove to Morley and parked on Progress Street, opposite a bubble tea shop called 'Utopia'.[37] He arrived at about 4.30 pm. Wong was parked a few car bays down from UCO 799's vehicle. Wong came over and sat in the passenger seat of UCO 799's vehicle, and they discussed the purchase of the cocaine.[38] Wong said that he needed the funds to go and get the cocaine, and that he would meet the Albanian man nearby. Wong said that he also intended purchasing 1 ounce of cocaine for himself, and so he had money of his own for that purpose.[39]
[37] Closed court ts 4.
[38] Closed court ts 5.
[39] Closed court ts 5.
Before Wong could leave to meet the supplier, he needed to find something to put the cash in. UCO 799 did not have anything suitable, so Wong returned to his own vehicle and came back with a white box which he had retrieved from the boot of his car.[40]
[40] Closed court ts 6.
UCO 799 described the box as being predominantly white with some lettering on it. He estimated that the box was approximately 10 cm wide, less than 30 cm long, 6 cm ‑ 7 cm deep, and rectangular in shape.[41] Wong put all of the money into the box, before exiting and returning to his own car and driving away.[42]
[41] Closed court ts 6.
[42] Closed court ts 6.
Wong returned in his vehicle at about 4.45 pm and parked near to UCO 799's car.[43] UCO 799 then got out of his vehicle and sat in the front seat of Wong's vehicle. Wong advised UCO 799 that it had all gone well.[44] Wong unzipped a small Fendi case, and took out 1 ounce of cocaine, before passing the case to UCO 799. There was a cryovac bag in the case containing another 2 ounces, which UCO 799 removed. He then returned to his vehicle and departed.[45]
[43] Closed court ts 6.
[44] Closed court ts 7.
[45] Closed court ts 7.
At about 5.00 pm, UCO 799 met with his covert police controller. He placed the drugs into a security movement envelope, which was then handed to the controller.[46]
[46] Closed court ts 7 - 8.
In cross‑examination, UCO 799 said that he had the opportunity to see the box in which the cash was placed. He agreed that it was not a mobile telephone box.[47]
UCO 553
[47] Closed court ts 12.
UCO 553 was another covert police officer involved in the operation targeting Wong.
At around 4.10 pm, UCO 553, and other officers, followed Wong's car.[48] He observed Wong's car arrive at Progress Street, Morley, at about 4.31 pm.[49] He took some photographs of the meeting between Wong and UCO 799. He then observed Wong return to his own vehicle and drive to Russell Street, where he reverse parked his car in the Nando's car park.[50] UCO 553 was positioned across the road in another car park, from where he could see Wong's vehicle. He saw a man (who was later identified as the appellant) walk across the car park towards Wong's vehicle. The man was of medium build and was wearing a white singlet and black shorts.[51]
[48] Closed court ts 22.
[49] Closed court ts 23 - 24.
[50] Closed court ts 25.
[51] Closed court ts 25.
UCO 553 observed Wong open the door of his car and the appellant lean down. He saw the appellant's arms go forward and then come back, before standing up straight and walking away.[52] Whilst this was occurring, UCO 553 took several photographs of the appellant.
[52] Closed court ts 26.
The photographs taken by UCO 553 were tendered. Two of those photographs show the appellant in an upright position, walking away from Wong's car. A white object can be seen in his hands.[53]
[53] BGAB 31 - 32.
UCO 553 saw the appellant walk across the car park to a white Hyundai, which he got into and drove away. The appellant was not followed. Wong also departed in his car.[54]
[54] Closed court ts 31.
UCO 553 agreed, in cross‑examination, that he was positioned approximately 40 m ‑ 50 m away from Wong's vehicle.[55] When Wong left, he travelled through the car park and then turned right, heading down Bishop Street (the laneway).[56] UCO 553 was not directly behind Wong's vehicle, but did resume observations when Wong drove onto Progress Street.
UCO 419
[55] Closed court ts 34.
[56] Closed court ts 35.
UCO 419 is another covert police officer who was on duty on 4 March 2020. He observed Wong's vehicle park in Progress Street, Morley, at 4.31 pm.[57] He saw Wong leave his vehicle and enter the front passenger door of the vehicle in which UCO 799 was seated. At 4.32 pm, he saw Wong leave the covert vehicle, walk to his own vehicle and open the boot.[58] He could not see Wong's movements in the boot, but said he was there for a very short time. He then saw Wong walk back to the covert officer's vehicle and enter the front passenger seat.
[57] Closed court ts 39.
[58] Closed court ts 39.
UCO 419 could not see what Wong was doing inside the vehicle.[59] However, he observed him exit a short time later, return to his own vehicle and then depart at 4.34 pm. Wong drove off Progress Street onto Walter Road West, and then on to Russell Street.[60]
UCO 950
[59] Closed court ts 39 - 40.
[60] Closed court ts 40.
UCO 950 is a senior technical adviser at the police technical unit.[61] He confirmed that he had been working with surveillance devices for approximately 14 years.[62] He gave evidence about the kind of information that can be stored on a tracking device, how that information is stored, and how the device calculates its location.[63]
[61] Closed court ts 42.
[62] Closed court ts 42.
[63] Closed court ts 42 - 44.
A tracking device was placed on Wong's car. As at the relevant date, such a device had an accuracy of plus or minus 5 m. However, environmental factors may impact on how precise that location is. UCO 950 explained that 'drift' can occur when a tracking device identifies different locations within a small vicinity due to different observations of satellite data.[64] He gave an example of drift appearing on a map where there are multiple points, the majority of which are in a centralised location, but the tracking device has not actually moved.
[64] Closed court ts 44.
UCO 950 confirmed that, having reviewed the data from the tracking device placed on Wong's vehicle on 4 March 2020, it appeared the device was operating correctly.[65] It recorded its location at approximately 30‑second intervals. Often, it is motion that will trigger the location point being recorded.[66] UCO 950 noted that there were features in the area that could affect the accuracy of the device, including metal awnings over a parking structure.
[65] Closed court ts 46.
[66] Closed court ts 47.
A map showing the tracking points was produced.[67] UCO 950 said that some of those tracking points were likely to have occurred when the device was stationary. He said that the device had moved from the laneway and approached a roundabout at a slow enough motion that drift occurred.[68] It was more than likely that the device was stationary at that location. He then clarified that the device appeared to be moving in a slow movement.[69] In relation to two data points, labelled '4:41:33' and '4:41:44', he stated that it appeared the device had moved in a north‑easterly direction, and then a south‑easterly direction towards the roundabout. The conditions, at the time, were good, and it was likely that the device received enough points to provide accurate data for the location.[70] In relation to the two data points labelled '4:41:33' and '4:41:44', UCO 950 stated that there was a high wall on either side of the laneway, which could have impacted on the reception of the device.[71]
Anthony James Coates
[67] Closed court ts 47.
[68] Closed court ts 48 - 49.
[69] Closed court ts 49.
[70] Closed court ts 50.
[71] Closed court ts 50.
Sergeant Coates confirmed that, at the relevant time, he was a detective senior constable with the Organised Crime Squad.[72] He became the investigating officer in this case. He, and another police officer, monitored Wong's movements. Once the drug transaction took place, another police officer took possession of the security movement envelope that contained the 2 ounces of cocaine.[73] The drugs were taken to the ChemCentre for analysis.[74]
[72] ts 167.
[73] ts 168.
[74] ts 170.
On 5 March 2020, Sergeant Coates attended Nando's Morley, to review the CCTV footage covering a car park at the front of the premises.[75] He recorded some of the CCTV footage with his mobile telephone because the footage could not be downloaded. The recording made by Sergeant Coates showed Wong arriving in his vehicle, and the appellant walking across the car park to meet with Wong.[76]
[75] ts 172.
[76] ts 172.
In the CCTV footage, the appellant can be seen walking purposefully from left to right of the screen, across the front of the Nando's store, directly to Wong's car.[77] The appellant has something dark coloured in his left hand and something dangling from his hands, which appears to be keys. The driver's side door of Wong's car opens, and the appellant bends down and appears to move his hands forward and then back. The appellant then resumes his standing position and walks away from Wong's vehicle. At this point, he appears to be holding a white item in his right hand. As the appellant continues walking, he transfers the item from his right to his left hand, from which there still dangles what appeared to be keys.
Nathan James Clarke
[77] ts 172.
Detective Senior Constable Clarke gave evidence that, over the course of his work with the police, he had obtained knowledge of drug terminology and drug‑dealing methods.[78] He spoke of: the common names used for cocaine; the quantities in which cocaine is generally sold; how it is typically used; and, how it is typically stored. He said that the average purity of cocaine seized at street level between January 2020 ‑ March 2020 was about 51%.[79] A purity higher than 51% would indicate that little or no cutting had occurred.
[78] ts 176 - 177.
[79] ts 183.
Detective Senior Constable Clarke said that drug deals may involve physical separation, such as the 'dead drop' method.[80] He would not expect to see the dead drop method being employed for smaller‑scale transactions.[81] This method is employed for larger‑scale transactions involving multiple ounces of cocaine.
Jacob James Henderson
[80] ts 183.
[81] ts 187.
Senior Constable Henderson was the initial investigating officer in the case. He arrested and interviewed the appellant on 13 July 2020. He identified a number of photographs that were still images from the Nando's CCTV footage.[82] He accepted that those photographs were not of particularly good quality, and that he did not show the appellant the actual CCTV footage during the course of the interview.[83] The CCTV footage was provided to the appellant after he was charged, as part of prosecution disclosure.
Police interview of the appellant
[82] ts 195 - 196.
[83] ts 198.
In the interview the appellant said that he could not remember his movements on 4 March 2020.[84] When shown a photograph of the Hyundai Getz that he was driving on 4 March 2020, the appellant said that he had that car for about 20 days and was trying to sell it.[85] He could not recall whether he had driven the car but accepted that he may have done so.[86]
[84] Electronic record of police interview, dated 13 July 2020, 14.
[85] Electronic record of police interview, dated 13 July 2020, 15 - 16.
[86] Electronic record of police interview, dated 13 July 2020, 17.
When shown still photographs from the CCTV footage, the appellant accepted that they depicted him.[87] He denied that he supplied drugs to a person in another car.[88] He could not remember what he was doing in the Nando's car park. He suggested that the person he spoke to could have been a customer for his mechanic's business. He denied receiving cash as a payment for 3 ounces of cocaine from the man he spoke to.[89]
The appellant
[87] Electronic record of police interview, dated 13 July 2020, 18 - 19.
[88] Electronic record of police interview, dated 13 July 2020, 21.
[89] Electronic record of police interview, dated 13 July 2020, 24.
The appellant elected to give evidence. He said that, on 4 March 2020, he was renting a property in Embleton.[90] He was driving a white Hyundai Getz on 4 March 2020, and agreed that his car was parked in the Nando's car park in Morley on that day. He agreed that he was the man seen in the CCTV footage approaching Wong's car in the Nando's car park.[91] He said that he approached the car because he thought that the person inside was the only one around who could give him directions.[92] He was shown an image that showed another person walking along the footpath, who he stated he did not see at the time.
[90] ts 214.
[91] ts 216 - 217.
[92] ts 223.
The appellant said that, prior to going to the car park, he had visited a friend's house in Mirrabooka.[93] The purpose of the visit was mostly social, but he also collected an old mobile telephone that his friend no longer used. He needed the mobile telephone as his own had been smashed by his son.[94] His friend gave him the old mobile telephone inside a box. The appellant said that he left his friend's house at around 4.00 pm, and, on the way back home, had stopped at Morley to get some food.[95] He wanted to get food from a pizza shop in Russell Street. He said he was looking for Varsity Bar, and that he approached Wong to ask for directions.[96]
[93] ts 216.
[94] ts 215.
[95] ts 216.
[96] ts 218.
The appellant agreed that, in the CCTV footage, it appeared he was holding the car door open. However, he said that the person in the car (Wong) opened the door and that he merely held it.[97] He agreed that, when he was interviewed by police on 13 July 2020, he did not tell them that this was what he had done. He said that he was in a state of shock at the time of the interview because it was the first time in his life that something like that had happened to him.[98]
[97] ts 224.
[98] ts 227 - 228.
When shown the CCTV footage, the appellant stated that as he approached Wong's car he was holding the white box containing the mobile telephone that he had received from his friend in his left hand.[99] He said that he was also holding his house and car keys. He said the reason he brought the mobile telephone in the box with him, was because he was afraid it would be stolen if he left it in the car.[100]
[99] ts 218.
[100] ts 227.
The appellant confirmed that he lent forward towards the man in the car and asked him for directions. He said he could not hear the man's answer properly, so he lent further over.[101] The appellant claimed that the item he was seen holding as he walked away from Wong's car was the box with the mobile telephone that his friend had given him earlier that day. He said that the person in the car responded to his request for directions, but that he could not understand what the man was saying. He then walked away. He agreed that, in the CCTV footage, as he walked away, he appeared to be holding something in his left hand that was white.[102]
[101] ts 219.
[102] ts 220.
The appellant denied handing cocaine to Wong and denied receiving $24,000 in cash in a white box when he went to the car.[103] He denied that any form of drug transaction occurred. He denied knowing any Albanian people or having any access to large quantities of cocaine. He denied knowing Wong or having anything to do with a drug deal with Wong.[104]
[103] ts 221.
[104] ts 221.
The appellant said that he did not end up finding Varsity Bar, and, instead, went to McDonald's, before going home.[105]
[105] ts 221.
The appellant said that, when he was being interviewed by the police, he did not understand which date they were questioning him about and thought they were asking about 4 May 2020, rather than 4 March 2020.[106] He said that all that was shown to him during the interview were some still shots of CCTV footage and some other photographs. He was not shown the actual CCTV footage and did not see it until sometime after he had been charged. He took time watching that footage, which assisted his memory of the events.[107]
[106] ts 228.
[107] ts 230 - 231.
Appeal against conviction - disposition
The prosecution case depended upon whether it was open to the jury to conclude beyond reasonable doubt that the appellant received the white box containing the cash in payment for the cocaine when he met with Wong in the Nando's car park. That was a critical fact that had to be proved on either pathway in the prosecution case. If the appellant received the box containing the cash, then he was guilty of supplying cocaine either because he exchanged the cocaine for cash at that point, or because he aided the supply of cocaine by receiving the cash such that the cocaine could then be handed over by another person a short time later in the laneway.
The trial judge directed the jury that on the first pathway, the State was required to prove beyond reasonable doubt that the appellant gave Wong the drugs and received money in exchange.[108] Her Honour directed the jury that on the second pathway the State was required to prove beyond reasonable doubt that the appellant collected cash from Wong with the intention of aiding some unknown person to sell prohibited drugs to Wong.[109]
[108] ts 270.
[109] ts 271.
It is relevant to note that the time between Wong departing from Progress Street with the cash and returning with the drugs, is approximately 11 minutes. He was followed to the Nando's car park, where he was observed to meet the appellant. The observations of UCO 553, the photographs taken by UCO 553, and the CCTV footage are of central importance to determining what occurred at this meeting.
The jury must be taken to have rejected the evidence of the appellant that nothing untoward occurred when he met Wong in the car park. The extremely unlikely coincidence that the appellant happened to have approached the car of a man, in the 11‑minute period that the man was engaged in a drug transaction, and whilst holding a white box similar in appearance and dimensions to that in which Wong had placed cash for the drug transaction, is readily apparent. It was plainly open to the jury to reject the appellant's evidence as lacking any credibility.
On the prosecution evidence it was open to the jury to conclude, beyond reasonable doubt, that the appellant received the white box containing the cash. That conclusion was open having regard to the following evidence:
1.The fact that Wong departed with the cash at 4.34 pm and returned with the drugs at 4.45 pm.
2.When Wong left, he had the cash to pay for the drugs in a white box.
3.In the 11‑minute period that Wong was absent, he met with the appellant in the Nando's carpark.
4.The CCTV footage shows that the appellant had a dark‑coloured item in his hands as he walked towards Wong's car, and a different item as he walked away from the car. That item appears to be white in colour and consistent with the description of the box described by UCO 799.
5.UCO 553 saw the appellant bend down, his arms move forward and then back, and that, as he walked away from the car, he had something in his hands.
6.Two of the photographs taken by UCO 553 clearly show an object in the appellant's hands immediately after he commenced walking away from Wong's car. That item appears to be white in colour and consistent with the description of the box described by UCO 799.
The appellant's contention, that the whole of the transaction could have occurred in the laneway, is largely speculative. The tracking points are consistent with the possibility that there was an 11‑second stop in the laneway, but that evidence does not detract from the evidence of the meeting in the Nando's car park. In order to convict the appellant, the jury had to be satisfied, on either pathway, that the appellant, at the least, received the white box containing the cash payment for the cocaine. If they were satisfied that the evidence established that that occurred, the fact that Wong may have received the cocaine from another person a short distance away did not detract from the conclusion that the appellant had aided in the supply of the cocaine.
It was open to the jury to find beyond reasonable doubt that the appellant had received the cash payment for the cocaine, and had, at least, aided in the supply of those drugs. Guilt was not simply a rational inference, it was the only rational inference open to reasonable people on a consideration of all the facts. The verdict was not unreasonable and was supported by the evidence at the trial.
This ground fails.
Appeal against sentence - ground of appeal
There is one ground of appeal against sentence:
1.The Learned Sentencing Judge imposed a sentence that, in all the circumstances, was manifestly excessive.
Sentencing remarks
As the ground of appeal alleges an implied error it is unnecessary to refer to the sentencing remarks in great detail. It is sufficient to note that the sentencing judge made a finding of fact that the appellant handed the cocaine to Wong and had received cash in return as payment.[110] That is, her Honour was satisfied beyond reasonable doubt that it was the appellant who had supplied the cocaine to Wong.[111] The appellant's trial counsel accepted that this was an appropriate factual basis for sentencing the appellant.
[110] ts 311 - 312.
[111] ts 312.
The sentencing judge said that the role of the appellant was to provide the drugs and receive money in exchange, and that this showed that he was in trusted position in the criminal organisation in which he was involved.[112] His role was important in the dissemination of drugs into the community. Her Honour inferred that the appellant was to receive some benefit, but it could not be quantified. She accepted that there was no evidence that the appellant had any ongoing role in a drug dealing enterprise. She accepted that the appellant was of previous good character and that his prospects of rehabilitation were good.[113]
[112] ts 312.
[113] ts 314.
Personal circumstances
The appellant was 43 years old at the time of the offending and 47 years old when he came to be sentenced.[114] He was born and educated in Italy. He came to Australia with his wife in 2015. He has a son, who was 6 years old at the time of sentencing.[115]
[114] ts 312.
[115] ts 312.
At the time of the offending, the appellant was working as a mechanic. He also worked as a cleaner. At the time of the trial, he was working as a labourer in the construction industry.
The appellant has good physical and mental health. He does not use illicit substances.[116]
[116] ts 312 - 313.
Character references attested to the appellant's good qualities, including a dedication to helping others and a strong work ethic.[117] The appellant's wife wrote of the appellant's dedication to her and his son, and of how they had suffered due to the loss of his support.
[117] ts 313.
The appellant has no criminal history, either in this State or elsewhere.
Appeal against sentence - appellant's submissions
The appellant submits that there was nothing to suggest that there was any degree of commerciality in the offence.[118] There was no evidence of a financial benefit and the appellant's lifestyle did not indicate receipt of any significant benefit. The appellant also emphasises that he had no criminal history and that the offending was inconsistent with his otherwise law‑abiding life.[119]
[118] WAB 80.
[119] WAB 80.
The appellant submits that the sentence of 3 years 10 months' imprisonment was manifestly excessive having regard to: his prior good character; the likelihood of deportation on completion of his sentence; the impact on his family; the offending being a 'one off'; the lack of any significant benefit; the relatively unsophisticated nature of the offending; and, the limited role played by him.[120]
[120] WAB 81.
Appeal against sentence - respondent's submissions
The respondent submits that the appellant played a critical role in the supply of the drugs.[121] Though he may not have been directing the transaction and may not have had ongoing involvement in the dissemination of drugs, he was entrusted to facilitate the sale of a significant quantity of cocaine. This involved him having possession of the drugs and receiving the cash in payment for those drugs.[122]
[121] WAB 92.
[122] WAB 92.
Any personal factors were taken into account by the sentencing judge. Such factors carry less weight in sentencing for drug related offending due to the overriding importance of general and personal deterrence.[123] It is well‑established that the prospect of deportation is not a mitigating factor for the purposes of sentencing.
[123] WAB 93.
The respondent submits that the following decisions illustrate that the sentence imposed on the appellant was not manifestly excessive: Dann v The State of Western Australia;[124] Cant v The State of Western Australia;[125] Tran v The State of Western Australia;[126] Bosworth v The State of Western Australia;[127] and The State of Western Australia v Gholizadeh.[128]
[124] Dann v The State of Western Australia [2006] WASCA 254.
[125] Cant v The State of Western Australia [2009] WASCA 188.
[126] Tran v The State of Western Australia [2016] WASCA 37.
[127] Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49.
[128] The State of Western Australia v Gholizadeh [2024] WASCA 45.
Appeal against sentence - disposition
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive are well established. Those principles were summarised in Kabambi v The State of Western Australia and need not be repeated.[129]
[129] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The major sentencing considerations for offences of dealing in or trafficking dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be a subsidiary consideration, but they are not completely irrelevant.[130]
[130] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
The maximum penalty for the offence of selling cocaine is 25 years' imprisonment.
The seriousness of the offence is reflected in the fact that the appellant supplied 55 g of cocaine which was of approximately 60% purity. This is almost twice the trafficable quantity prescribed for cocaine. The appellant was entrusted to deliver the drugs and receive the cash payment. Whilst the extent of any benefit to him was unknown, the trial judge was satisfied that he would have received some benefit.[131] The appellant's role was critical in the distribution of the drugs.
[131] ts 312.
The personal circumstances of the appellant were favourable. He had no previous convictions and good prospects for rehabilitation.[132] Imprisonment was likely to have an adverse impact on his family. Those factors, however, have less weight in respect of an offence of this type. As has been said many times, deterrence, both general and personal, are the most important factors in sentencing for drug offences.
[132] ts 314.
It is unnecessary to refer to the facts of the cases referred to by the respondent. It is sufficient to say that those cases do not support the contention that the sentence in this case was manifestly excessive. To the contrary, they indicate that the sentence was plainly open in the proper exercise of sentencing discretion for an offence of this type.
The ground has no reasonable prospect of succeeding. It is not reasonably arguable that the sentence of 3 years 10 months' imprisonment was unreasonable or plainly unjust.
Conclusion
The appeals against both conviction and sentence must be dismissed. We would make the following orders:
Appeal against conviction - CACR 99 of 2024
1.Extension of time refused.
2.Leave to appeal refused.
3.Appeal dismissed.
Appeal against sentence - CACR 100 of 2024
1.Extension of time refused.
2.Leave to appeal refused.
3.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
15 JULY 2025
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