MSO v The State of Western Australia - [2015] WASCA 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MSO -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 78

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 16 FEBRUARY 2015

DELIVERED : 14 APRIL 2015

FILE NO/S: CACR 54 of 2014

BETWEEN: MSO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
Citation  :THE STATE OF WESTERN AUSTRALIA v MSO
File No  :IND X of 2013

Catchwords:

Criminal law - Misuse of Drugs Act 1981 (WA) - Section 6(1)(a) - Possession of prohibited drug with intent to sell or supply

Criminal law - Criminal Code (WA) - Section 428(1) - Possession of stolen or unlawfully obtained property

Criminal law - Sentencing - Appeal against sentence - Whether sentencing judge erred in finding that offender was motivated in part by desire for significant financial gain - Turns on own facts

Criminal law - Sentencing - Appeal against sentence - Whether sentencing judge provided inadequate discount for offender's cooperation with law enforcement authorities - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 6(1), s 8(5), s 9AA, s 32

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M A Perrella
Respondent: Mr J McGrath SC

Solicitors:

Appellant: Perrella Legal
Respondent: Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285
House v The King [1936] HCA 40; (1936) 55 CLR 499
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Mundy (1994) 76 A Crim R 92
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
R v Gallagher (1991) 23 NSWLR 220
R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993)
R v Perrier (No 2) [1991] 1 VR 717
Schioparlan (1991) 54 A Crim R 294
MARTIN CJ:

Summary

The appellant, whose identity has been suppressed because of the assistance which he has provided to authorities in relation to the investigation and prosecution of other offenders, appeals against the total effective sentence of 8 years and 3 months imprisonment imposed following his conviction in the District Court after pleading guilty to four counts of possession of a prohibited drug with intent to sell or supply. There are two grounds of appeal.[1] One ground asserts that the sentencing judge erred by finding, as a fact, that the appellant's offences were motivated in part by a desire to make a significant financial gain. The other ground asserts, in effect, that the sentencing judge erred by not allowing a greater discount to reflect the assistance which the appellant has given, and has promised to give in the future, in relation to the investigation and prosecution of other offenders. For the reasons which follow, both grounds, and the appeal, should be dismissed.
[1] A third ground of appeal was abandoned at the commencement of the hearing.

The offences

There was no controversy with respect to the facts giving rise to the offences of which the appellant was convicted. With two minor qualifications which are not relevant to the grounds of appeal, the parties accepted that the facts presented to the District Court by the prosecutor were accurate and those facts were adopted by the sentencing judge for the purposes of sentence. The following summary is taken from the prosecutor's statement to the District Court, modified to round off the dollar amounts to which the prosecutor referred.
All offences arose from the appellant's role in providing warehousing and related services to two drug traffickers, whom I shall call A and B, over a period of about one year prior to the appellant's arrest in March 2013. The services were provided from a factory unit in a light industrial suburb, which had been leased by the appellant and used in association with legitimate retail businesses conducted by him.
The appellant collected, weighed, checked, stored, made up orders and delivered drugs on behalf of A and B as instructed by them from time to time, typically by way of coded text messages sent to him on a Blackberry mobile telephone. Text messages detected on that telephone, decoded using information provided by the appellant, revealed drug transactions or attempted drug transactions between the appellant and A, and between the appellant and B, which were not the subject of the four counts to which the appellant pleaded guilty.
The appellant was not a user of illicit drugs and did not take from the drugs provided to him by either A or B, or sell drugs in his own right. From time to time, when instructed, he would add cutting agents to the drugs supplied to him on behalf of B (but not A) in order to dilute the purity of those drugs and then repackage the resulting product. The appellant was paid in cash for his services, which he collected from a house in a residential suburb.
The four offences of which the appellant was convicted relate to four different types of illegal drugs that were found at the factory unit leased by the appellant when it was searched by police in March 2013.

Count 1 - methylamphetamine

Count 1 related to three distinct quantities of methylamphetamine that were found during the search. The first quantity of 3.98 kg was found on the floor of a room and was all that remained of a larger quantity of 8.75 kg that had come into the appellant's possession about two weeks earlier. The remaining 3.98 kg had been broken down into four packages, each of which was a few grams short of 1 kg. The purity of those packages ranged between 69% and 75%.
The second quantity, also 3.98 kg of methylamphetamine broken down into four packages each a little under 1 kg in weight, had been obtained by the appellant from A the day prior to the police search. The drugs were kept in the appellant's van overnight. Police observed the appellant drive the van to the factory unit on the day of the search, and observed him carry a box from the van to the unit containing this quantity of drugs which was found during the search. The purity of each of the four packages ranged between 46% and 57%.
The third quantity of methylamphetamine totalled 2.54 kg distributed across 10 packages, ranging in size between 26.6 g and 575 g with purities ranging between 46% and 72%.
During the search of the factory unit, police also found scales, clip seal bags, cutting agent, heat sealing equipment and an envelope with handwritten names and quantities written on it.
The methylamphetamine recovered by police during the search weighed, in total, 10.54 kg. If sold in lots of 1 oz (28 g), its street value was estimated at between $4.7 million and $5.2 million. If sold in units of 0.1 g, its street value was estimated at approximately $10.5 million.

Count 2 - heroin

The box of drugs which the appellant had obtained from A the previous day and which police saw him carry into the factory unit on the day of the search also contained 2.46 kg of heroin. The heroin was split into three packages, two of which were a little under 1 kg each, with a purity of 41%, and the third containing a quantity of a little less than 500 g with a purity of 59%. If sold in lots of 1 oz, the heroin had an estimated value of $1.1 million. If sold in units of 0.1 g, the value of the heroin was estimated at between $1.2 million and $2.5 million.

Count 3 - cocaine

During the search, police also found a total of 599 g of cocaine contained in three packages - namely, 109 g that was 52% pure, 190 g that was 56% pure, and 300 g that was 62% pure. If sold in units of 1 g, the cocaine was estimated to have a value of $450,000. If sold in 1 oz lots, its value was estimated at $214,000.

Count 4 - ecstasy (MDA)

During the search, police also found a total of 3,815 ecstasy tablets weighing 1.09 kg. The tablets belonged to B and had been at the factory for about a year. They ranged in purity between 5% and 10%, which was less than the average purity of 20% for ecstasy tablets analysed by the Chemistry Centre of Western Australia in the first three months of 2013. If sold individually, the tablets were worth $40 each, or a total of $152,600. If sold in lots of 1,000 or more, the tablets would have been worth between $53,000 and $57,000.

The section 32 notice

On the same day, the police conducted a search of the appellant's home, during which they found approximately $232,000 in cash. According to the appellant, $150,000 of that amount was B's money, $20,000 to $30,000 had been derived from the appellant's legitimate businesses, and the remainder derived from payments he had received relating to his work for A and B. Pursuant to s 32 of the Sentencing Act 1995 (WA) (Sentencing Act), the appellant requested that the offence of possessing stolen or unlawfully obtained property arising from the discovery of the cash at his home be dealt with at the same time as the offences of possessing prohibited drugs with intent to sell or supply.
The appellant was arrested at the factory unit and remained in custody until sentenced. He participated in video‑recorded interviews at the factory unit and at the offices of police, and cooperated fully with police. A more detailed account of that cooperation is provided below.

Observations at the time of sentence

The observations made by the judge at the time of passing sentence were obviously prepared with great care, consideration and attention to detail. It is difficult to adequately convey their breadth and depth in the summary which follows.
After adopting the facts presented to the court by the prosecutor, subject to the two minor qualifications to which I have referred, the judge referred to the seriousness of the drug offences committed by the appellant, particularly by reference to the quantity and purity of the drugs involved. He noted that the purity of the methylamphetamine and heroin found in the appellant's possession suggested that there was ample opportunity to further dilute those drugs prior to sale.
The judge then referred to the substance of three written statements which had been provided to police by the appellant. Those statements related the appellant's prior association with B over a number of years, after which B requested the appellant to deliver envelopes for him, over a period of about six months. Some time after the appellant ceased doing work of that kind for B, B approached him to pick up and deliver a box on B's behalf, for which he would be paid $5,000. The appellant believed that the box would contain drugs, but he agreed to B's request because of the money on offer and because he was a little intimidated by, and in awe of, B.
After receiving the box, the appellant checked its contents and confirmed that it contained a quantity of prohibited drugs. He then delivered the box containing the drugs to another in accordance with what he believed were his instructions. However, the following day, B advised him that he had given the box to the wrong person and the appellant was not paid for his services.
About a month later, somebody delivered a Blackberry mobile telephone to the appellant, which he used to contact B by text message. During the course of their exchange of messages, B advised him that something had gone wrong with the transaction in which the appellant had previously participated, and the people above B in the drug distribution chain were blaming the appellant, and they considered that he had to assist in B's future activities to atone for his past mistake.
B told the appellant that he knew where the appellant's girlfriend, parents and family lived. The appellant took those statements to be an implied threat. He was concerned for the welfare of his girlfriend and family, and it was in this context that he became further involved in B's drug dealing activities.
From about early 2012, the appellant undertook a significant number of drug collections and deliveries for B. His role was to collect large quantities of drugs for B from B's suppliers, and store the drugs in his factory unit until they were either collected or, on instructions from B, delivered by the appellant to a third party.
As part of the appellant's role, from time to time he would check the drugs that he collected on behalf of B, add a cutting agent to the methylamphetamine or cocaine that he was holding on B's behalf, repackage the resultant product and make up orders from the drugs that he was storing. In order to perform these tasks, the appellant had procured the clip seal bags, cutting agents, scales and heat sealer which were found in the factory unit by police.
Generally speaking, the appellant did not collect drugs directly from B's suppliers, but from drivers employed by those suppliers. Similarly, drugs were rarely delivered to B in person, but the appellant dealt instead with others employed by him.
During the six months or so prior to the appellant's arrest, B's main supplier was A, who also operated a wholesale drug distribution business. A and B were associates, although they operated separate drug distribution enterprises. The appellant first met A about six months prior to his arrest, when B instructed him to begin storing drugs for A. The appellant did not know A by name. After their initial contact, the appellant started providing similar services to A as he had been providing for B. Sometimes those services related to a supply of drugs from A to B, and on other occasions involved services supplied in connection with the separate businesses of A and B.
The appellant estimated that since commencing providing services to B, until the day of his arrest, B had paid him about $200,000, and at the time of his arrest B still owed him about $80,000 for services previously provided. The money was collected by the appellant from a residential house, which is also the place from which he would collect new Blackberry mobile telephones which were to be used to communicate with A, B, and B's other suppliers.
The judge expressed the view that the appellant's conduct was slightly less serious than that in which A and B were engaged, because the appellant's conduct was not in the same category as that of a person who obtains and sells, on a wholesale commercial basis as part of their own business, large quantities of drugs for very significant profit. However, the judge viewed the appellant's conduct as extremely serious, because the appellant played an integral role in the success of what was obviously a sophisticated large‑scale drug distribution network. The appellant was an indispensable link in the chain of drugs supplied in this State.
The judge did not accept that the appellant's role could be equated to that of a trusted and competent courier. He was entrusted with large quantities of drugs and provided a hiding place for the drugs until they could be on‑sold, and provided other services in connection with checking, diluting and repackaging the drugs. By playing that role the appellant assisted A and B to remain removed from direct connection with the drugs, with the result that it was less likely that their activities would be discovered by law enforcement authorities. The judge also noted, in this context, the appellant's receipt of a very significant sum of money in return for the criminal conduct in which he had engaged.
The judge concluded that although his culpability was slightly less than that of A and B, the distinction between the appellant's culpability and that of A and B was not great.
The judge then turned to the submission which had been made on behalf of the appellant to the effect that he had not committed the drug offences for the purposes of commercial gain, but as a consequence of intimidation and threats of harm to his family and friends. The judge rejected that submission in these terms:
I accept that you did not actively seek payment from B or A or anyone else; however, in my view it is immaterial whether you actively sought payment for your criminal conduct.
I say this because I am satisfied beyond reasonable doubt that you had an expectation that you would be paid and that you accepted payment whenever it was offered to you. You might not have known precisely when you were going to be paid or precisely how much you were going to be paid on any particular occasion, however, you expected to receive payment at some point.
The fact that you expected to be paid for the services that you were providing is, in my view, apparent from the fact that you told police in paragraph 92 of the first of your statements that B still owed you about $80,000 for the work that you had done. As to the motivation for your conduct, I simply do not accept that monetary gain played no part in your decision to continue to work for B and later, A.
Accepting that you did feel threatened by B, I simply do not believe that you would have continued to engage in what you knew was very serious criminal conduct for no reward whatsoever. I am satisfied beyond reasonable doubt that at least part of your motivation for engaging in your criminal conduct was to obtain payments of significant sums of money. The fact that you were through your legitimate businesses earning a good income, does not alter my view in this regard particularly when one bears in mind the amount of the financial reward that you no doubt envisaged receiving in return for providing assistance to B.
As I pointed out, it was against the background of the implied threat made by B towards your partner and family that you started to work for him on a regular basis …
The State for its part accepts that the implied threat of harm to your partner and family was an element in your offending - that is, did play a role in you agreeing to perform the work that you did for B.
…
I am satisfied that as a result of the implied threat made by B you did believe that it was at least a possibility that if you did not agree to work for him your partner and family would be subjected to intimidation and/or harm and that this belief played a role in you deciding to comply with B's requests that you continue to help him in his drug dealing activities.
Having said this, I do not see the fact that the implied threat played a role in your decision to comply with B's requests of you to carry with it … any significant mitigatory value.
The fact is you found yourself in the position that you were in by agreeing to become involved in B's drug dealing activities in the first place. While I do not doubt that B was an intimidating character, you were under no real obligation to accede to his initial requests for you to pick up the box of drugs. You could have refused his requests for assistance just like you had in the past. You could have distanced yourself from him.
However, you chose not to do so. Rather you agreed to his request, no doubt partly due to the fact that you wanted the large financial reward that was on offer. Your subsequent difficulties were therefore of your own making. If you had not agreed to become involved in the very first transaction, B would not have had the leverage over you which he subsequently did.
…
Finally, I note in this context that despite having some fears for the safety of your partner and parents you continued to accept significant sums of money from B in return for your role in his enterprise. In other words, whatever the circumstances which led to you becoming heavily involved with B in the first place, you did little to make it more difficult for B to continue to use your services.
To the contrary, by taking large amounts of money from him, you embroiled yourself more deeply in his activities and made yourself more beholden to him. In summary, I accept that after you participated in the initial drug transaction you were threatened in a way which made you believe that there was a possibility that your partner and family would be intimidated and/or harmed if you did not agree to provide the assistance which B was seeking.
I accept this belief and the fact that you felt intimidated by B played a role, even a quite significant role, in you becoming further involved over a lengthy period in B's and later A's drug dealing activities. However, for the reasons that I've stated, I do not accept that the fact that you engaged in your conduct in these circumstances mitigates to anything other than a limited extent the seriousness of your conduct.
It is a mitigatory factor but not one which carries with it any significant benefit to you. In short, I find that the motivation for you engaging in your criminal conduct was a combination of your beliefs arising from B's implied threat and your desire to make a significant financial gain.

The judge then observed that he could not sentence the appellant for offences with which the appellant had not been charged, with the result that the appellant's admission of prior offences in the course of his dealings with A and B did not aggravate the offences of which he had been convicted. However, the judge noted that his engagement in those activities prevented the appellant from claiming that the offences which he had committed were isolated incidents of criminal behaviour which were out of character.
The judge then turned to the appellant's personal circumstances. In order to preserve the appellant's anonymity, it is undesirable to refer to this aspect of the judge's observations in any detail. It is sufficient to note that, generally speaking, the appellant's antecedents were favourable although, as this court has said on many occasions, such antecedents are of little weight when sentences are to be imposed for possession of substantial quantities of prohibited drugs with intent to sell or supply.
The judge accepted that the appellant was genuinely remorseful and that he had fully accepted responsibility for his conduct, and that both matters mitigated the penalties to be imposed. The judge also expressed the tentative view that the appellant was at low risk of reoffending, although he acknowledged that such considerations were of limited weight, given that the dominant sentencing considerations related to the seriousness of the criminal conduct in which the appellant had engaged, and the need for general deterrence.
The judge then noted that the State accepted that the appellant had pleaded guilty to all charges at the first reasonable opportunity.
The judge then turned to the information contained in a letter of recognition which had been provided to the court from an Assistant Commissioner of the WA Police. In that letter, police acknowledged that the assistance which the appellant had provided to date was 'very substantial'. The appellant provided police with a full and detailed account of his own role in the drug syndicate and information with respect to the methods of operation of that syndicate. The appellant also assisted the police to identify the syndicate members, namely A, B and a driver employed by A, whom I shall call C. Information provided by the appellant was instrumental in the investigation and arrest of A and C, who were both charged with serious drug offences, and also in the issue of a warrant for the arrest of B for similar offences. However, B had absconded and was, at the time of sentence (and remains) at large.
The judge noted that the appellant had agreed to give evidence at the trial of A and C which had been listed to commence later that year, and had also agreed to give evidence in any prosecution of B.
The judge noted that in the grading system used by police to evaluate levels of assistance provided by offenders, the appellant's level of assistance had been graded at the highest level.
The judge also noted that the appellant had provided police with the code which enabled them to access the text messages on the Blackberry mobile telephone to which I have referred, without which police would have been unable to access those communications. The judge noted that those communications were likely to form an important part of the prosecution case in the forthcoming trial of A and C. The judge noted that the State acknowledged that the assistance which the appellant had already provided, and had undertaken to provide in the future, was significant and should lead to a reduction in the sentence that would otherwise have been imposed.
After referring to two decisions of this court in relation to the discount of an offender's sentence in recognition of past and future cooperation with law enforcement agencies, the judge extracted a number of propositions from those cases, in these terms:
First, substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies.
Second, it is for me as the sentencing judge to determine for sentencing purposes the nature, extent and value of your cooperation with law enforcement agencies and the appropriate level of discount on your sentence. I am not bound by any grading by the police of your assistance. However, the grading by the police of your assistance is obviously important information which I can and should take into account in making my determination.
Third, when deciding upon the appropriate level of discount in a particular case the court must consider the value of the offender's cooperation and the risk to his or her personal safety while ensuring that the discount does not result in a sentence which is, in all of the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.
Fourth, there is no tariff for a discount for cooperation. The discount may in particular circumstances be very small, in other circumstances it may be as much as 50% or even more.
Bearing those propositions in mind, the judge made the following findings of fact. First, the value of the appellant's cooperation both already provided and which he had agreed to provide in the future was very high. If that assistance had not been provided, the prosecution that had been instituted against A and C would not have got off the ground.
Second, by providing assistance in the past and promising to provide assistance in the future, the appellant had put his own safety and the safety of his family at serious risk of harm both in the short and long term. For those reasons the judge was satisfied that the appellant's assistance should attract a very substantial discount from the total sentence that would otherwise have been imposed upon him.
The judge then went on to make observations with respect to events which had occurred while the appellant was in custody, and the future arrangements which would prevail during the entirety of any custodial term imposed upon him. Again for reasons of anonymity, it is undesirable to refer to those observations in any detail. It is sufficient for present purposes to observe that the judge accepted that the arrangements that would have to be made to maximise the appellant's safety during any term of imprisonment imposed upon him would render the appellant's time in prison more onerous than the time served by mainstream prisoners. After referring to this court's decision in Milenkovski,[2] the judge was satisfied that the conditions in which the appellant would be incarcerated operated as a mitigatory factor.
[2] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.
After referring to the importance of general deterrence in relation to sentences for offences of the kind of which the appellant had been convicted, the judge observed that notwithstanding the various mitigatory factors to which he had referred, and which he repeated, in his view the seriousness of the offences committed by the appellant compelled the conclusion that a term of imprisonment was the only appropriate disposition, and that it was quite obviously inappropriate to suspend any such terms of imprisonment.
The judge then expressed the view that, after allowing a reduction of 25% in the sentences that would have been imposed if the appellant had not pleaded guilty and there were no other mitigatory factors,[3] and after taking into account all other matters of mitigation other than the appellant's cooperation with police, the sentences that he would have imposed were: in respect of count 1, 11 years and 6 months imprisonment; in respect of count 2, 7 years and 6 months imprisonment; in respect of count 3, 5 years imprisonment; in respect of count 4, 6 years imprisonment; and in respect of the offence the subject of the s 32 notice, 12 months imprisonment.
[3] Pursuant to s 9AA of the Sentencing Act.
The judge then accurately summarised both limbs of the totality principle and expressed the conclusion that in accordance with those principles and putting to one side the assistance which the appellant had provided to authorities, a total sentence of 16 years and 6 months imprisonment appropriately reflected the appellant's overall criminality. The judge expressed the view that such sentence should be discounted by 50% to take account of the appellant's cooperation with authorities, with the result that a total sentence of imprisonment of 8 years and 3 months was appropriate. The sentencing judge apportioned the 50% discount in the ratio of 20% for the appellant's undertaking to provide future cooperation, and the balance in respect of his past cooperation. As the judge noted, this course was required by s 8(5) of the Sentencing Act.
In order to achieve the total effective sentence which the judge considered appropriate, he reduced the sentence that would otherwise have been imposed in respect of count 1 to 8 years and 3 months imprisonment, and directed that the sentences imposed for all offences were to be served concurrently, with the result that the sentence imposed in respect of count 1 became the total effective sentence. The judge ordered that the appellant be eligible for parole.

The grounds of appeal

It is convenient to deal first with the ground of appeal relating to the finding of fact made by the judge with respect to the appellant's motivation, and then with the ground of appeal relating to the discount for the assistance which the appellant had provided and had promised to provide in the future to law enforcement agencies.

The appellant's motivation

The ground of appeal relating to the findings made by the judge with respect to the appellant's motivation asserts that the judge:
[E]rred in fact by finding that the offender's offending was motivated by a desire to make a significant financial gain.
It should first be noted that the ground of appeal misstates the relevant finding of fact made by the judge at the time of sentence. As is apparent from the portion of those observations which I have set out above relating to this issue, in effect the judge found that the appellant had mixed motives at the time he committed the offences of which he was convicted. As the trial judge noted, the appellant's initial involvement in these drug dealing enterprises was motivated by a desire for financial reward, and it was the appellant's participation in the first transaction involving B, which was said by B to have gone wrong due to the appellant's error, that exposed the appellant to the implicit threat made by B towards the appellant and his family. The trial judge accepted that the appellant's subsequent conduct was motivated in part by the risk which the appellant apprehended to flow from those threats, although the judge considered that the appellant's subsequent conduct was also motivated by the prospect of substantial financial gain, which the appellant took, knowing that the receipt of such gains further enmeshed him in the drug dealing enterprises of both B and A.
This observation with respect to the inaccuracy of the ground of appeal is not merely pedantic. The argument advanced in support of the ground asserts that the evidence with respect to the appellant's motivations revealed two incompatible alternatives, and further asserts that the judge was required to accept one or the other. Those assertions are, with respect, misconceived. There is no reason in fact or logic why the appellant's engagement in the drug dealing enterprises of each of A and B could not have been motivated in part by the desire for significant financial gain, which he received, and in part by the threat implicit in B's remarks to him after the first transaction in which he had engaged with B allegedly went wrong.
I have set out the reasons enunciated by the sentencing judge for his conclusions with respect to the appellant's motivation at some length. In my respectful view, that process of reasoning cannot be faulted. It was plainly appropriate for the trial judge to take into account:
(a)the fact that the appellant agreed to participate in B's drug dealing enterprise for financial gain before any implicit threat was made;
(b)the fact that the appellant had received a very substantial sum for the services he had provided;
(c)the fact that the appellant considered that B 'still owed' him a substantial sum for services previously provided;
(d)that it was unlikely the appellant would have engaged in serious criminal conduct for no reward; and
(e)that by taking large amounts of money from B, the appellant embroiled himself more deeply in B's activities and made himself more beholden to B.
These considerations were quite sufficient to sustain the judge's conclusion that the appellant's offending conduct was motivated in part by a desire for substantial financial gain. Indeed, on the evidence, any other finding would, with respect, have been perverse. Leave to appeal on this ground should be refused, and the ground dismissed.

The discount for assistance and cooperation

The ground of appeal relating to the discount given for the appellant's assistance and cooperation with law enforcement authorities asserts that the judge:
[E]rred by allowing a manifestly inadequate discount for the appellant's promise of future cooperation as a prosecution witness.
As expressed, the ground relates only to the portion of the discount given which relates to future cooperation, being the amount of 20% which the trial judge specified as the portion applicable to the appellant's undertaking to assist the authorities in the future by giving evidence at the trial of A and C, and at the trial of B if and when B is apprehended. However, it was apparent from the written submissions filed in support of the ground that in substance the appellant asserts that the total discount of 50% given by the trial judge was inadequate, and that some greater discount should have been given having regard to the significance of the appellant's undertaking to testify against A, B and C. At the hearing of the appeal, counsel for the appellant confirmed that the ground should be understood in this way.
There are a number of observations appropriately made in relation to the ambit of the ground thus construed. First, although significance is attached to the appellant's undertaking to testify at future trials, in order to succeed on the ground properly construed, the appellant must establish that the discount of 50% allowed by the sentencing judge was inadequate. Put another way, construed in the manner confirmed by counsel for the appellant, this ground cannot succeed if, for example, it was concluded that having regard to the benefit to the authorities, and the burden to the appellant of his undertaking to testify at future trials against others, it would have been more appropriate for the judge to have apportioned a greater proportion of the discount to the undertaking of future cooperation, and a lesser portion to the appellant's past cooperation.
Second, it follows from this first observation that hypothetical considerations of the kind which were advanced during oral argument with respect to the course properly followed if, for example, the appellant testified at the trials of A and C in accordance with his undertaking (as in fact occurred), but then refused to fulfil his undertaking with respect to some future trial of B, are irrelevant. Hypothetical issues of that kind are simply not to the point. The point of the ground, as counsel for the appellant accepted it should be construed, is whether the discount of 50% was, in all the circumstances of the case, inadequate.
Third, the ground does not challenge either expressly or implicitly the conclusion of the trial judge that a total effective term of 16 years and 6 months imprisonment would have been the term appropriately imposed in the absence of any discount for cooperation. In particular, in this case there has been no challenge to any aspect of the process by which the sentencing judge derived a starting point for the total effective sentence from which he deducted 25% pursuant to s 9AA of the Sentencing Act before taking other mitigatory factors into account in order to arrive at the term of 16 years and 6 months imprisonment prior to any discount for cooperation. Accordingly, it has been unnecessary to give any detailed consideration to that process.
Turning then to the critical issue posed by this ground of appeal, which is whether the discount of 50% given by the sentencing judge was inadequate. I have set out above the factors which the sentencing judge considered to be relevant to this aspect of the exercise of his discretion drawn from his review of the authorities. As there is no challenge to the principles enunciated by the sentencing judge, no point would be served by a general review of the authorities in this area.
However, the appellant asserts that as the judge acknowledged that a discount of 'even more' than 50% could be justified in some circumstances, in the circumstances of this case he should have allowed a discount of two‑thirds, largely in reliance upon the reference to a discount of that magnitude by McGarvie J in R v Perrier (No 2).[4]
[4] R v Perrier (No 2) [1991] 1 VR 717.
In Perrier, the relevant observation of McGarvie J was that:
[I]f there is cooperation which results in the conviction of a principal trafficker, a courier who admits the offence and pleads guilty might well have the period of sentence reduced by about two-thirds.[5]
[5] Perrier, 726.
The appellant's reliance upon that decision is misplaced, for a number of reasons. First, it should be noted that the discount to which McGarvie J referred is a combined discount for cooperation and a plea of guilty. In this case, the appellant received a discount of 25% for his plea of guilty before any other mitigatory factors were taken into account[6] and, after that discount and some unspecified discount for other mitigatory factors, a further discount of 50% for cooperation. In those circumstances it is not possible to compute the combined discounts for cooperation and pleas of guilty with mathematical precision, but it is very likely in the vicinity of the figure to which McGarvie J referred.
[6] As required by s 9AA of the Sentencing Act.
Second, the scenario postulated by McGarvie J concerned the cooperation provided by a courier which resulted in the conviction of a principal trafficker. As I have noted, in this case the judge rejected the proposition that the appellant should be regarded as no more than a courier and considered his involvement and level of culpability to be much closer to that of the principal traffickers A and B.
Third, neither of the other two judges who comprised the court in Perrier expressly agreed with the observations of McGarvie J, although Murphy J agreed with the sentence proposed by McGarvie J. On the other hand, Brooking J expressly disagreed with the views expressed by McGarvie J.
Further, in Schioparlan, Young CJ questioned the observations made by McGarvie J in Perrier.[7] Subsequently, in Mundy, the Victorian Court of Criminal Appeal expressly disapproved of the observations made by McGarvie J and concluded that the approach taken by Brooking J in Perrier was correct.[8]
[7] Schioparlan (1991) 54 A Crim R 294, 305 (Brooking & Marks JJ agreeing).
[8] Mundy (1994) 76 A Crim R 92, 96 ‑ 97 (Nathan J, Crockett & Southwell JJ agreeing).
So, the observations made by McGarvie J cannot be considered to represent good authority in Victoria. In this State, although there has been reference to those observations from time to time,[9] in no case have those observations been expressly endorsed nor, so far as research can establish, is there any case in this State in which a discount of two‑thirds has been provided in recognition of an offender's cooperation with authorities.
[9] See, eg, A Child v The State of Western Australia [2007] WASCA 285 [13] (Wheeler & McLure JJA); R v Lopez (Unreported, WASCA, Library No 930431, 13 August 1993) 12 (Rowland J).

As the sentencing judge noted, in this State it is well established that there is no tariff for a discount for cooperation, and the particular discount provided in any case will be determined by the sentencing judge in the exercise of the discretion conferred upon him or her, having regard to all the circumstances of that case.[10] The appellant does not assert that the exercise of the discretion conferred upon the sentencing judge with respect to the extent of the discount to be provided for his cooperation with authorities was vitiated by express error. Rather, the appellant asserts that error is to be implied from the inadequacy of the discount allowed. It follows that the principles enunciated in House v The King[11] govern this aspect of the appeal, with the result that this ground of appeal can only succeed if the discount of 50% was plainly unreasonable or unjust.
[10] See, eg, MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [8] (McLure P), [54] ‑ [56] (Buss JA), [83] (Mazza JA).
[11] House v King [1936] HCA 40; (1936) 55 CLR 499, 505.
There is no doubt that the appellant had a very strong case for a substantial discount by reason of his cooperation with authorities, as the sentencing judge acknowledged. The appellant cooperated fully with the authorities from the moment of his apprehension and his assistance identified three other significant offenders, two of whom were arrested and, after the appellant was sentenced, brought to trial and convicted. It can be safely inferred that those offenders would have escaped detection and punishment but for the appellant's cooperation. The appellant has given an undertaking to provide similar cooperation in the event that B is apprehended and brought to trial. Although there was little direct evidence on point, it may also be inferred, and was inferred by the sentencing judge, that the appellant's cooperation had placed him and his family at risk of harm in both the short and long term. Because of that risk, the conditions in which the appellant serves his term of imprisonment will be more arduous than those generally experienced by prisoners.
However, the appellant received a very substantial discount by reason of his cooperation. Although it is common to speak of discounts for cooperation with authorities in terms of percentages, as Gleeson CJ observed in R v Gallagher,[12] the court must have regard to the total effective sentence imposed after the discount so as to ensure that the sentence is not so far out of touch with the circumstances of the offending conduct that it constitutes 'an affront to community standards', or as might be observed in this State, such that it would contravene the requirement of s 6(1) of the Sentencing Act which requires the sentence imposed on an offender to be commensurate with the seriousness of the offence. The sentencing judge expressly took these considerations into account at the time of assessing the discount appropriately provided for the appellant's cooperation with authorities.
[12] R v Gallagher (1991) 23 NSWLR 220, 232 (Meagher JA agreeing).
In this case the appellant received a reduction in the sentence that would otherwise have been imposed upon him of 8 years and 3 months in recognition of the assistance which he provided to law enforcement agencies. On any view, that is a very substantial discount. I am unable to see any basis upon which it could be credibly asserted that a discount of that magnitude was unreasonable or unjust. It follows that I reject the appellant's assertion that the exercise of the sentencing judge's discretion with respect to the extent of the discount to be provided for his cooperation with authorities miscarried. This ground of appeal should be dismissed.

Disposition

Leave to appeal should be refused in respect of the ground of appeal relating to the appellant's motivation and both grounds of appeal, and the appeal itself, dismissed.
BUSS JA: I agree with Martin CJ.
MAZZA JA: I agree with Martin CJ.