Rinaldi v The State of Western Australia - [2017] WASCA 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RINALDI -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 48

CORAM: MAZZA JA
MITCHELL JA
BEECH J

HEARD: 2 FEBRUARY 2017

DELIVERED : 17 MARCH 2017

FILE NO/S: CACR 86 of 2016

BETWEEN: JUSTIN GLEN RINALDI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1518 of 2014

Catchwords:

Criminal law - Appeal against sentence - Drug offences - Firearms offences - Appellant warehoused significant quantities of drugs, firearms, cash and ammunition - Whether first limb of totality principle infringed - Whether full discount under s 9AA Sentencing Act 1995 (WA) should apply

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Firearms Act 1973 (WA), s 19(1)(c), s 19(1ab)(b), s 19(1ac)(b), s 19(1ac)(c)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Radiocommunications Act 1992 (Cth), s 47(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Appellant's application for leave to adduce additional evidence dismissed
Leave to appeal on ground 2 granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr D J McKenzie
Respondent: Ms A L Forrester SC

Solicitors:

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

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Atholwood v The State of Western Australia [1999] WASCA 256; (1999) 109 A Crim R 465
Huynh v The State of Western Australia [2012] WASCA 8
Jordan v The State of Western Australia [2012] WASCA 163
Karakuyu v The State of Western Australia [2012] WASCA 75
Kitis v The State of Western Australia [2013] WASCA 34
LJH v The State of Western Australia [2016] WASCA 155
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Miles v The State of Western Australia [2016] WASCA 138
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Ricciardi v The State of Western Australia [2012] WASCA 106
Roffey v The State of Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
Stagno v The State of Western Australia [2013] WASCA 166
Stone v The State of Western Australia [2010] WASCA 80
The State of Western Australia v Wilson [2015] WASCA 119
Thomas v The State of Western Australia [2014] WASCA 202
Tran v The State of Western Australia [2016] WASCA 37
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilson v The State of Western Australia [2010] WASCA 82

REASONS OF THE COURT: This is an appeal against sentence.
The appellant was charged in the District Court, by an indictment dated 9 December 2015, with a total of 39 counts:
(a)three counts of possession of a prohibited drug with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (counts 1, 2 and 3);
(b)eight counts of possession of an unlicensed firearm in circumstances where the person in possession also had three or more firearms, contrary to s 19(1)(c), (1)(ab)(b) and (1)(ac)(b) of the Firearms Act 1973 (WA) (FA) (counts 4, 5, 6, 7, 8, 9, 10 and 11);
(c)three counts of possession of an unlicensed firearm in circumstances where the person in possession also had a three or more firearms and a number or identification mark on the firearm had been removed, contrary to s 19(1)(c), (1)(ab)(b), (1)(ac)(b) and (1)(ac)(c) FA (counts 12, 13 and 14);
(d)three counts of possession of an unlicensed firearm (a handgun or prescribed firearm) in circumstances where the person in possession also had three or more firearms, contrary to s 19(1)(c), (1)(ab)(b) FA (counts 15, 16 and 17);
(e)21 counts of possession of unlicensed ammunition, contrary to s 19(1)(c) FA (counts 18 to 38); and
(f)one count of possession of an unlicensed GPS jamming device, contrary to s 47(1) of the Radiocommunications Act 1992 (Cth) (RA) (count 39).[1]
[1] WAB 39 ‑ 45.
On 14 December 2015, the first scheduled day of his trial,[2] the appellant pleaded guilty to all counts. On 15 December 2015, the matter was adjourned to 18 March 2016 for sentencing.
[2] An earlier trial listed to commence on 5 May 2015 was adjourned on 30 April 2015.
The appellant and respondent filed sentencing submissions on 9 March 2016 and 14 March 2016, respectively. It was evident from those submissions that a trial of issues was required. This occurred on 10 and 11 May 2016. At the trial of issues, the prosecution brief was tendered to the sentencing judge with the consent of the parties. The only witness to give oral evidence was the appellant.
On 11 May 2016, his Honour made detailed findings of fact as to the circumstances of the offending.[3] These findings, which are not now challenged by the appellant, are set out later in these reasons.
[3] ts 314 ‑ 335.
On 13 May 2016, the learned sentencing judge imposed a total effective sentence of 14 years' imprisonment.[4] The sentence was backdated to 21 February 2014 and the appellant was made eligible for parole. In the course of the sentencing remarks, his Honour found that all of the pleas of guilty had been entered 'very late'.[5] He gave a reduction of 5% for the pleas of guilty.
[4] Sentencing remarks ts 12.
[5] ts 360.

The sentences

The details of the individual sentences that were imposed, including the maximum penalty and his Honour's orders with respect to cumulacy and concurrency, are as follows:

Count	Description	Section	Maximum penalty	Sentence imposed	Concurrency
1	Possession of MDMA with intent to sell or supply to another.	s 6(1)(a) MDA	25 years' imprisonment or a fine not exceeding $100,000 or both	18 months'[6] imprisonment	Cumulative
2	Possession of methamphetamine with intent to sell or supply to another.	s 6(1)(a) MDA	25 years' imprisonment or a fine not exceeding $100,000 or both	8 years' imprisonment	Cumulative
3	Possession of cocaine with intent to sell or supply to another.	s 6(1)(a) MDA	25 years' imprisonment or a fine not exceeding $100,000 or both	2 years' imprisonment	Concurrent
4	Possession of a (prescribed) firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA reg 26(1) Firearms Regulations 1974 (WA)	10 years' imprisonment	18 months' imprisonment	Cumulative
5	Possession of a (prescribed) firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA reg 26(1) Firearms Regulations 1974 (WA)	10 years' imprisonment	18 months' imprisonment	Concurrent
6	Possession of a firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
7	Possession of a firearm (handgun) while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA	10 years' imprisonment	12 months' imprisonment	Cumulative
8	Possession of a firearm (handgun) while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
9	Possession of a firearm (handgun) while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
10	Possession of a firearm (handgun) while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
11	Possession of a firearm (handgun) while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) & (1ac)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
12	Possession of a firearm (handgun), with an identifying number or mark removed, while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b), (1ac)(b), (1ac)(c) FA	10 years' imprisonment	14 months' imprisonment	Cumulative
13	Possession of a firearm (handgun), with an identifying number or mark removed, while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b), (1ac)(b), (1ac)(c) FA	10 years' imprisonment	14 months' imprisonment	Concurrent
14	Possession of a firearm (handgun), with an identifying number or mark removed, while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b), (1ac)(b), (1ac)(c) FA	10 years' imprisonment	14 months' imprisonment	Concurrent
15	Possession of a firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
16	Possession of a firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
17	Possession of a firearm while not being the holder of a licence or permit, while in possession of three or more firearms without a licence or permit.	s 19(1)(c), (1ab)(b) FA	10 years' imprisonment	12 months' imprisonment	Concurrent
18	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	6 months' imprisonment	Concurrent
19	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	8 months' imprisonment	Cumulative
20	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
21	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	6 months' imprisonment	Concurrent
22	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	2 months' imprisonment	Concurrent
23	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	2 months' imprisonment	Concurrent
24	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	8 months' imprisonment	Concurrent
25	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	8 months' imprisonment	Concurrent
26	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
27	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
28	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	1 month's imprisonment	Concurrent
29	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	1 month's imprisonment	Concurrent
30	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
31	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	6 months' imprisonment	Concurrent
32	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	1 month's imprisonment	Concurrent
33	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	1 month's imprisonment	Concurrent
34	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
35	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
36	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	3 months' imprisonment	Concurrent
37	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	4 months' imprisonment	Concurrent
38	Possession of ammunition while not being the holder of a licence or permit.	s 19(1)(c) FA	5 years' imprisonment	2 months' imprisonment	Cumulative
39	Possession of a GPS jamming device, for the purpose of operating the device other than as authorised by a licence.	s 47(1) RA	2 years' imprisonment	$1000 fine
TOTAL	14 years' imprisonment $1000 fine

[6] Reduced from 5 years for reasons of totality: sentencing remarks ts 10.

The grounds of appeal

The appellant relies on two grounds of appeal. The first ground, for which leave to appeal has been granted, alleges that the total effective sentence breached the first limb of the totality principle. The second ground alleges that the learned sentencing judge
erred in failing to identify the offender's timing of the guilty plea was at the earliest reasonable opportunity and was entitled to the usual full discount, pursuant to s 9AA of the Sentencing Act1995 (WA).
The question of leave to appeal in respect of this ground was referred to the hearing of the appeal.
For the reasons that follow, we have not been persuaded that the grounds of appeal have been made out. We would dismiss the appeal.

The uncontentious facts

These facts were uncontentious, both at first instance and in this court.
On 21 February 2014, police officers executed a search warrant at the appellant's house in Belmont. The premises were undergoing a bathroom renovation at the time. The police discovered a room under the lounge room that was accessible via a retractable trapdoor in a passageway. This room was referred to in the sentencing proceedings as a wine cellar. The premises were protected by a security system which comprised a steel reinforced front door, outside sensor lights and CCTV cameras over the front verandah. The video feed from the CCTV cameras was shown on monitors inside the house.
In summary, the police located a large quantity of drugs, including quantities of MDMA, methylamphetamine and cocaine, 14 unlicensed firearms and large quantities of ammunition and cash.
With respect to the drug offences, police located a total of 888.01 g of MDMA in powder or tablet forms with purities which varied between 25% and 73%. All but a small quantity of MDMA was found in various parts of the wine cellar (count 1). There, the police also located a total of 1,650.67 g of methylamphetamine with purities varying between 45% and 77% (count 2) and 7.29 g of cocaine in powder and tablet forms with a purity of about 68% (count 3).
Of the 14 unlicensed firearms located at the premises, all but two were found inside the wine cellar.
The unlicensed firearms comprised five rifles (counts 4, 5, 6, 15 and 16), one shotgun (count 17) and eight handguns (counts 7, 8, 9, 10, 11, 12, 13 and 14). Three of the weapons had their serial number or identification mark removed (counts 12, 13 and 14) and two of the rifles were assault rifles incapable of being lawfully owned in Western Australia (counts 4 and 5). The two firearms not located in the wine cellar were a handgun, which was discovered in the appellant's car (count 14), and a rifle, deposited in an unsecured gun safe within the house (count 16). Some of the firearms were packaged in cryovac bags, some of which contained compatible magazines loaded with ammunition.
The police located, in total, 2,386 rounds of ammunition of various types and calibres in the wine cellar, a spare room, the kitchen and the appellant's motor vehicle.[7]
[7] ts 316.
In all, the police found $337,220 in cash, of which $9,250 was in a plastic bag in an inoperable washing machine, $35,000 was in two further bundles behind the washing machine and $288,200 was located in five bundles inside a box in the roof cavity of the house. The remaining $4,770 was located across three bedrooms.[8] It was not disputed that this cash came from drug trafficking and dealing in unlicensed firearms.[9]
[8] ts 316.
[9] ts 321.
The GPS jamming device, the subject of count 39, was found in the appellant's bedroom.
In addition, the police found compatible magazines, silencers and shoulder holsters near the firearms in the wine cellar. A cryovac machine was also found in the house.

Findings made after trial of issues

The learned sentencing judge made these findings after a trial of issues in which the appellant testified. At the hearing of the appeal they were unchallenged. In about June 2010, Dennis Patrick Cronin moved into the appellant's home in Belmont and occupied the spare bedroom. Both men were very close friends and shared common interests including firearms. Both were methylamphetamine users. Mr Cronin was involved in illegal activities with respect to drugs and unlicensed firearms. The appellant 'had full knowledge' of Mr Cronin's activities - in particular, that he was storing drugs, cash and firearms in a manhole situated in the room occupied by Mr Cronin.[10]
[10] ts 331.
In January or February 2011, Mr Cronin left the appellant's house and 'disappeared'. He left behind a quantity of illicit drugs, firearms and cash. On 21 March 2012, Mr Cronin's remains were found near Ceduna in South Australia.[11]
[11] ts 325.
After Mr Cronin's departure, the appellant maintained the security measures which had been put in place (by Mr Cronin) and he continued to store illicit drugs, firearms and cash. The appellant moved the drugs, firearms and cash from the manhole in Mr Cronin's bedroom to the wine cellar.[12]
[12] ts 323.
His Honour rejected the appellant's contention that he only became aware of 'everything' about two weeks before Christmas 2013.[13] He also rejected the notion that the appellant was a 'mule' (in the sense that he had no knowledge or appreciation of Mr Cronin's activities) or a 'tool' used by Mr Cronin.[14]
[13] ts 332.
[14] ts 328, 331.
His Honour did not accept the State's contention that the appellant was 'no. 1' in the organisation.[15] His Honour did not find that the appellant himself acquired the drugs, firearms and cash, nor did he find that the appellant personally sold the drugs and firearms. However, his Honour did not accept the appellant's submission that the drugs, firearms and cash discovered on 21 February 2014 had been acquired by Mr Cronin.[16]
[15] ts 333.
[16] ts 334.
His Honour described the premises as a 'fortified drug house' which was used for the purpose of storing and warehousing illicit drugs, firearms and cash.[17]
[17] ts 330.

His Honour's findings as to the appellant's role were encapsulated in this way:[18]
In my view for those reasons Mr Rinaldi knew that Mr Cronin was involved in drug dealing and possession of unlicensed firearms by at least 2010, and certainly before he allowed him to move into the spare room of his home. Mr Rinaldi allowed Mr Cronin to continue drug dealing and to possess the weapons in his house for the purpose of a commercial enterprise involving the storage and warehousing of the drugs and the guns and the cash to the extent necessary for the business.
I am satisfied beyond reasonable doubt that Mr Rinaldi knew, after Mr Cronin disappeared in January 2011 or shortly thereafter, about the items being located in his place.
I am satisfied beyond reasonable doubt that Mr Rinaldi continued to be involved in the same manner, that is he allowed the place to be used as in effect a fortified drug house. The security was maintained, the drugs were stored, the firearms were stored and the cash was also stored.
In my view Mr Rinaldi was involved in a large scale distribution network for drugs and guns as part of an illegal, commercial enterprise. He was fully complicit in warehousing the drugs and the firearms. Given the extent and nature of the enterprise and the trust that was reposed in him by those higher up the chain, I find that he was somewhere between the middle and the top of the chain, but certainly not number one in the business.
[18] ts 332 ‑ 333.
His Honour found that the appellant would have derived 'some commercial gain or benefit', but he was unable to quantify its extent.[19]
[19] ts 334.

The appellant's personal circumstances

The appellant was 37 years of age on 21 February 2014, and 39 when he was sentenced. The appellant was brought up in a rural setting and, in the course of his upbringing, he developed some familiarity with, and interest in, firearms. Material referred to by his Honour in his sentencing remarks reveals that the appellant had a traumatic childhood. He left school midway through year 11 to pursue a trade and he has been employed for much of his adult life, having been imbued with a strong work ethic. As we have mentioned, the appellant was an illicit drug user. His illicit drug use increased after 2010 when his marriage broke down. The appellant has a minor criminal history.
The appellant was regarded as a model prisoner while remanded in custody. The learned sentencing judge was provided with a letter of support from the appellant's family and others. The appellant wrote to the court, expressing his remorse and his abhorrence for illicit drugs. His Honour accepted that the appellant was genuinely remorseful, had insight into his offending and intended to change his life.[20] Nevertheless, he found there was a need for personal deterrence.[21]
[20] sentencing remarks ts 6 ‑ 7.
[21] sentencing remarks ts 9.

General principles

The general principles which govern appeals against sentence are well known. We adopt without repetition the statement of these principles made by McLure P and Owen JA in Wilson v The State of Western Australia.[22]
[22] Wilson v The State of Western Australia [2010] WASCA 82 [2].

Ground 2

It is convenient to deal with ground 2 first.
Section 9AA of the Sentencing Act is as follows:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence. The discount is in respect of the 'head sentence' as defined in s 9AA(1). Any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'. The quantum of any discount is informed by the considerations in s 9AA(2). As the nature, character and extent of 'the benefit to the State, and to any victim of or witness to the offence resulting from the plea' within s 9AA(2) may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity, a sentencing judge retains a discretion in deciding upon the discount to be given in each case. Put another way, a plea of guilty at the first reasonable opportunity enlivens the power to grant the maximum discount. Once that power is enlivened, the sentencing judge has a discretion as to the question of a discount that is informed by the considerations in s 9AA(2). It is not the case (as the appellant's written submissions suggest) that a plea of guilty entered at the first reasonable opportunity automatically attracts a 25% reduction.[23]
[23] See Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [43] ‑ [45], [62] (Buss JA) and Thomas v The State of Western Australia [2014] WASCA 202 [18] (McLure P).
In Rossi v The State of Western Australia,[24] McLure P (with whom Mazza JA and Hall J agreed) held that for an indictable offence, the first opportunity for an accused to plead guilty is once the prosecution has complied with the disclosure requirements set out in s 39(a) ‑ (c) of the Criminal Procedure Act2004 (WA). However, as her Honour observed, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment of when, having regard to all the relevant circumstances in the particular case, it would have been reasonable for the accused to have pleaded guilty.[25]
[24] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.
[25] Rossi [52], [53].
Before setting out the appellant's submissions in support of the ground, it is necessary to say something about the circumstances leading up to the entry of the guilty pleas. Much of what follows comes from information and documents provided in the State's submissions to this court on ground 2 - none of which was challenged by the appellant - and the prosecution brief tendered at the trial of issues.
The appellant was arrested on 21 February 2014. By prosecution notices dated 22 February 2014 and 11 March 2014, the appellant was charged with 38 offences which, in large part, reflect the offences with which the appellant was charged on indictment and to which he ultimately pleaded guilty. On 5 September 2014, in the Magistrates Court, the appellant entered pleas of not guilty to all of the offences and he was committed to appear in the District Court for trial on 28 November 2014. In order for the appellant to be so committed, the prosecution must have provided disclosure to the defence, pursuant to s 39(a) ‑ (c) and s 42 of the Criminal Procedure Act. In other words, the appellant would have been provided with, inter alia, a copy of the prosecution notice, a written statement of material facts of each charge and any evidentiary material that is relevant to the charge.
On 26 November 2014, the State filed an indictment (the original indictment). This indictment contained 34 counts.[26] Each firearm and type of ammunition was described in sufficient detail to enable it to be identified.[27] On 28 November 2014, at a hearing before Martino CJDC (as his Honour then was), the matter was listed for a trial in the District Court to begin on 5 May 2015. Counsel for the appellant on this occasion advised that she had only recently been retained and wished to obtain instructions from the appellant with respect to his pleas. At no time after the hearing on 28 November 2014 did the appellant indicate that he was prepared to plead guilty to any of the counts in the original indictment. The State was required to summons witnesses and prepare for trial.
[26] Four of the counts from the Magistrates Court on which the appellant was committed for trial were discontinued.
[27] Pages 11 ‑ 12, respondent's submissions on ground 2.
On 30 April 2015, the appellant applied to Sleight CJDC for an adjournment of the trial. The application was opposed by the State. Counsel who appeared for the appellant on that occasion explained that the interstate counsel who had been engaged to represent the appellant was unavailable. Further, the appellant's solicitors had not been provided with funds or a grant of legal aid to meet counsel's fees. Sleight CJDC granted the adjournment. The transcript of those proceedings does not reveal anything which suggests that the appellant was prepared to plead guilty to any of the offences in the original indictment.
The matter was subsequently listed for a seven‑day trial to begin on 14 December 2015. The prosecution brief which was subsequently tendered at the trial of issues included photographs of the firearms and ammunition allegedly found at the appellant's house, and expert reports by Senior Constable Roberts and Senior Constable Clapham of the Forensic Firearms Unit. The reports are dated 10 November 2015 and 16 November 2015 respectively. The information provided in those reports included a detailed description of each firearm, including, where possible, their serial numbers.
On 9 December 2015, trial counsel for the State wrote to the District Court, foreshadowing the filing of what was called an amended indictment dated 9 December 2015 (the amended indictment).[28] An application to amend the indictment followed. The amended indictment included five additional ex officio charges: counts 34 to 38. These were further charges of the possession of ammunition without being the holder of a licence or permit entitling him to do so. The drug charges were in identical terms to the original indictment. The firearms charges in the amended indictment were, in substance, the same firearms charges in the original indictment, the only real difference being that the description of the firearms in the amended indictment reflected the descriptions provided in the expert reports to which we have referred.
[28] WAB 39 ‑ 45.
There is no evidence that, prior to the time the appellant entered his guilty pleas on 14 December 2015, any attempt had been made on his behalf to negotiate with the State as to his pleas.
In the written sentencing submissions filed in the District Court on behalf of the appellant, it was conceded that the pleas of guilty had been entered 'very late'[29] and that only 'some discount should be given for the pleas of guilty'.[30] No submission was made asserting that the appellant should receive a 25% discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act.
[29] WAB 81.
[30] WAB 81.
In his sentencing remarks, his Honour described the pleas as having been entered 'very late on the second occasion of a proposed trial', and reduced the notional head sentence for each offence by 5%.[31]
[31] Sentencing remarks ts 5 ‑ 6.
In this court, the appellant submitted that, although the pleas of guilty were entered on the first scheduled day of his trial in circumstances where an earlier trial had been adjourned, the sentencing judge erred in failing to find that the pleas were entered at the first reasonable opportunity, as a consequence of which he was 'denied' a 25% reduction pursuant to s 9AA(4) of the Sentencing Act.
This submission relies on two propositions. First, it was not until the amended indictment had been filed that the appellant was aware of the precise nature and form of the charges which would be brought against him. Second, the pleas of guilty were made following 'negotiations' which were allegedly being conducted on his behalf with the State. Thus, the appellant submits, it was not reasonable to expect him to plead guilty before he did. The appellant also relied upon statements made by Ipp J in Atholwood v The State of Western Australia[32] in which he said, as to the question of when it was reasonably open to an offender to plead guilty:
Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts.
[32] Atholwood v The State of Western Australia [1999] WASCA 256; (1999) 109 A Crim R 465 [10].
It was submitted by the respondent that, apart from the counts which were the subject of an ex officio indictment, the offences alleged in the amended indictment were, in substance, the same offences alleged in the original indictment and that, in respect of these offences, there is no basis for the submission that the appellant's pleas of guilty in relation to them were entered at the first reasonable opportunity. Further, there were no 'negotiations' with respect to the appellant's pleas. The respondent conceded that, with respect to the ex officio charges, the pleas of guilty were entered at the first reasonable opportunity and, to this extent, his Honour erred. However, the respondent submitted that in respect of those sentences, despite the error, no different sentence should have been imposed.[33]
[33] Section 31(4)(a) Criminal Appeals Act 2004 (WA).
We do not accept the appellant's submission that his pleas of guilty to the charges, other than the ex officio charges, were entered at the first reasonable opportunity. Having regard to all of the relevant circumstances, it is impossible to describe these pleas as being entered at the first reasonable opportunity.
Chronologically, at the very latest, the first reasonable opportunity for the appellant to enter pleas of guilty was at the committal mention date in the Magistrates Court. Certainly, he could have done so at his first appearance in the District Court.
Save for the ex officio charges, a comparison between the original indictment and the amended indictment shows that the appellant was charged with substantially the same offences. The only real difference between the two indictments is that the description of the firearms in counts 4 to 17 is more detailed and accords with the descriptions in the expert reports. A similar observation may be made with respect to the ammunition the subject of each of counts 18 to 33. None of the amendments is of substance. At no time prior to the appellant entering his pleas of guilty did he or his legal advisers contend that any of the counts in the original indictment were insufficiently particularised or that the firearms and ammunition had been inadequately described. No objection to the indictment was made.
There is no evidence whatever to suggest that prior to 9 December 2015 the appellant had entered into negotiations with respect to his pleas of guilty. Assertions by the appellant that he had are without any factual foundation. There is nothing on the record of the court below and no material which has been drawn to this court's attention that shows that the appellant was prepared to enter pleas of guilty to some offences on the basis that other offences were discontinued.
The appellant's attempt to invoke the statements made by Ipp J in Atholwood is futile. As McLure P pointed out in Rossi, those statements have been narrowly applied in subsequent decisions of this court.[34] In any event, unlike in Atholwood, the State in this case did not, after the filing of the original indictment, withdraw any charges which had been previously brought against the appellant. Further, there is no evidence that the appellant delayed his pleas of guilty while negotiating to have others withdrawn.
[34] Rossi [39].
Finally, it cannot be overlooked that the appellant's counsel at the sentencing hearing, in effect, conceded that the pleas of guilty were not entered at the first reasonable opportunity. The judge did not err in acting on that concession.
Based on all the material, the sentencing judge did not err by failing to make a finding that the appellant's pleas of guilty to counts 1 ‑ 33 and count 39 were entered at the first reasonable opportunity. Very plainly, they were not made at the first reasonable opportunity. As the pleas were not entered or indicated at the first reasonable opportunity, s 9AA(4) precluded the sentencing judge from making a reduction of 25% for the pleas of guilty. The reduction of 5% was, in all of the circumstances, open to his Honour. In any event, ground 2 complains of the failure to recognise that the pleas were not entered at the earliest opportunity. There is no complaint that in circumstances where that was not so, the judge erred in the discretionary decision to fix the discount at 5%.[35]
[35] Appeal ts 21 - 22.
This leaves for consideration the pleas of guilty in respect of the five ex officio charges (counts 34 to 38). The respondent concedes that the appellant's guilty pleas in respect of these counts were made at the first reasonable opportunity. This concession was properly made and should be accepted. In our opinion, a reduction of 25% pursuant to s 9AA of the Sentencing Act should have been made for these offences. However, having regard to all relevant circumstances (including the pleas of guilty), exercising the sentencing discretion afresh,[36] we would not have imposed different sentences for counts 34 to 38.[37]
[36] LJH v The State of Western Australia [2016] WASCA 155 [106].
[37] Section 31(4)(a) Criminal Appeals Act.
By reason only of the conceded error with respect to the ex officio counts, we would grant leave to appeal on ground 2. However, the ground has not been made out.

Ground 1

A claim that the totality principle has been breached asserts implied error on the part of the sentencer. The first limb of the totality principle, upon which the appellant relies, requires the sentencer, where an offender is being sentenced for a number of offences, to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[38]
[38] Roffey v The State of Western Australia [2007] WASCA 246 [24].
It is conceded by the appellant that his offending, in the circumstances, was 'towards the high end of the scale of seriousness'.[39] Notwithstanding this, the appellant submitted that the total effective sentence was outside the range of a sound exercise of the sentencing discretion. The appellant's submissions focus upon a comparison of eight cases with the present case. The cases relied upon by the appellant are Mikulic v The State of Western Australia;[40] Jordan v The State of Western Australia;[41] Ozan v The State of Western Australia;[42] Kitis v The State of Western Australia;[43] Neumann v The State of Western Australia;[44] Milenkovski v The State of Western Australia;[45] Seeto v The State of Western Australia[46] and The State of Western Australia vWilson.[47]
[39] WAB 16.
[40] Mikulic v The State of Western Australia [2011] WASCA 127.
[41] Jordan v The State of Western Australia [2012] WASCA 163.
[42] Ozan v The State of Western Australia [2013] WASCA 27.
[43] Kitis v The State of Western Australia [2013] WASCA 34.
[44] Neumann v The State of Western Australia [2013] WASCA 70.
[45] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.
[46] Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386.
[47] The State of Western Australia vWilson [2015] WASCA 119.

The maximum penalties for the offences committed by the appellant are set out in the table at [7] of these reasons.
The major sentencing considerations for drug offences of the kind committed by the appellant are general and personal deterrence. Although the weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The purity of the drug concerned is often regarded as a significant factor. Matters personal to an offender will almost always be given reduced weight. These principles are well accepted and have been stated many times by this court.[48]
[48] See, for example, Tran v The State of Western Australia [2016] WASCA 37 [29].
The FA was extensively overhauled in 2004. Relevantly, new offences with very significant maximum penalties were created and the penalties for established offences were increased. In the second reading speech in relation to the Firearms Amendment Bill 2003, the Minister for Police and Emergency Services, Ms M Roberts, spoke about the need 'to send a strong message of deterrence by introducing tough penalties for offenders who carry unlicensed firearms and drugs or money'.[49]
[49] Western Australia, Parliamentary Debates, Legislative Assembly, 19 November 2003, 13385.
There is no established range of sentences for offences of unlicensed possession of firearms.[50] In Stone v The State of Western Australia,[51] McLure P and Owen JA[52] said that, in respect of the offence of possessing an unlicensed firearm in circumstances of aggravation contrary to s 19(1) and s 19(1ac) FA, general deterrence was a major sentencing consideration and that personal circumstances play a lesser role.
[50] Huynh v The State of Western Australia [2012] WASCA 8 [17].
[51] Stone v The State of Western Australia [2010] WASCA 80.
[52] Stone [19].
The importance of deterrence was made clear in Karakuyu v The State of Western Australia[53] and Ricciardi v The State of Western Australia.[54] Karakuyu concerned an offender who pleaded guilty to a number of drug offences and a single charge of unlicensed possession of a handgun. At [41] Mazza JA observed:
The firearms offence was serious. The weapon was capable of use and the appellant was not licensed to possess it. The serial number on it had been defaced so its provenance could not be easily traced. Its possession was plainly intended for self-protection or as a threat to others. It is the experience of the courts that firearms are a common tool of the trade for drug dealers. It is not unknown for such weapons to be used when disputes with respect to drugs arise. There is a clear need to deter those involved in the drug trade from obtaining and possessing firearms.
[53] Karakuyu v The State of Western Australia [2012] WASCA 75.
[54] Ricciardi v The State of Western Australia [2012] WASCA 106.
Statements to the same effect were made in Stagno v The State of Western Australia.[55] In that case, Mazza JA said that where a firearms charge is alleged in addition to a drug offence, it will often attract its own cumulative penalty.[56] He noted that the use of firearms by drug dealers introduces a potential for violence and requires particular deterrence. These statements were approved in Miles v The State of Western Australia.[57]
[55] Stagno v The State of Western Australia [2013] WASCA 166.
[56] Stagno [45].
[57] Miles v The State of Western Australia [2016] WASCA 138 [20].
The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in a particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in a particular case miscarried.
In our opinion, the appellant's overall criminality was extremely serious. While the appellant was not directly involved in the sale of the drugs, firearms and ammunition, he voluntarily participated in what was clearly a large‑scale commercial enterprise aimed at distributing into the community a large quantity of dangerous illicit drugs and firearms. The appellant's willing complicity in these offences is well illustrated by the modifications to his residence, most notably the wine cellar in which the drugs and most of the firearms and ammunition were stored. The large quantities of drugs, firearms, ammunition and cash show the scale of the operation. It is true that the appellant was not in command, but it is also true that a high degree of trust had been reposed in him. His Honour's characterisation of the appellant as being 'somewhere between the middle and the top of the chain' is unchallenged and well justified.[58]
[58] ts 333.
A significant aggravating feature of the appellant's overall criminality are the firearms offences, which involve a quantity and variety of weapons not previously seen by this court. Their number and type are very sinister. The amount of ammunition, including ammunition suitable for use in the firearms present at the house, is concerning. The observations made in Karakuyu are especially apt to this case. Furthermore, the drugs, firearms and ammunition that would have been disseminated into the community pose a significant threat to the health and safety of others.
The appellant is only to be punished for the offences committed on 21 February 2014. However, it cannot be said that the offending was isolated or a sudden aberration. Consistently with his Honour's findings of fact, the appellant had been warehousing illicit drugs, guns and money for a long period of time and this continued after Mr Cronin's disappearance. There is nothing to indicate that the appellant had any intention of ceasing his involvement in the enterprise prior to his arrest. The appellant would have derived some commercial benefit from his activities, although the exact benefit cannot be quantified.
We have considered the cases cited on behalf of the appellant. Nearly all of them (and others not cited by the parties) were summarised by Hall J in Seeto.[59] We adopt, without repeating, that summary.
[59] Seeto [44] ‑ [56].
In our opinion, the cases cited by the appellant do not provide much assistance. While each of them involves substantial and serious drug offending, and some involve the unlawful possession of a firearm or firearms, none feature firearms offences anything like as serious as those in the present case. Further, the present case combines the serious firearms offences with large‑scale commercial drug offences and the possession of large quantities of cash.
The appellant's personal circumstances are favourable, but, when weighed against the overall seriousness of the offences, they cannot be accorded much weight. In truth, there was not a great deal of mitigation. The pleas of guilty in respect of the great majority of charges were very late, and the remorse which the appellant has expressed was belated.
The total effective sentence that was imposed upon the appellant is severe. However, bearing in mind the need for general deterrence and having regard to all relevant sentencing considerations, we have not been persuaded that the total effective sentence was outside the range of a sound exercise of the sentencing discretion. It has not been demonstrated that the total effective sentence infringed the first limb of the totality principle. Ground 1 has not been made out.

Material sought to be adduced after the hearing of the appeal

After the hearing of this appeal, the appellant terminated the services of his counsel and filed a notice of self‑representation. He then sought leave to adduce further evidence in the appeal, being his affidavit sworn 16 February 2017.
The court also received a statutory declaration sworn by Jennifer Scott on 15 February 2017. Ms Scott states, in substance, that she lives next door to the appellant's house and that the house is not fortified. A number of photographs are annexed to the statutory declaration. This document appears to have been sent directly to the court, apparently by Ms Scott. No application for leave to adduce this statutory declaration as evidence in the appeal has been made by the appellant.
The appellant's affidavit is largely argumentative. He is critical of his lawyers, particularly those who represented him at first instance. He alleges they 'pressured' him into pleading guilty. He disputes a number of findings of fact made by the sentencing judge, including as to the appellant's role in the offending and the modifications made to his house. With respect to ground 2, the appellant, in substance, repeats some of the arguments put to this court by his counsel at the hearing. The affidavit also annexes a number of attachments in support of the appellant's arguments.
In Wheeler v The Queen [No 2],[60] Owen JA, with whom other members of the court agreed on this point, observed:
Generally an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) Criminal Appeals Act 2004 (WA). However, an appellate court has a broad power to 'admit any other evidence' under s 40(1)(e) of the Act.
The well-known distinction between 'fresh' and 'new' evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it.
[60] Wheeler v The Queen [No 2] [2010] WASCA 105 [52]-[53].
As we have said, much of what the appellant states in his affidavit is additional argument, not additional evidence. Much of the argument is, in any event, completely irrelevant to the appeal. For example, if the appellant wishes to allege that his pleas of guilty should be set aside by reason of being 'pressured', the appropriate course for him to take is to appeal against conviction. As for any challenge to the facts found by the sentencing judge, there is no ground alleging that his Honour made any error in his findings of fact. Indeed, as we have pointed out, the appeal was heard on the basis that there was no challenge to the factual findings made at first instance. There is nothing in the affidavit capable of persuading us that a different sentence should have been imposed. In these circumstances, the application to adduce additional evidence in this appeal, in the form of the appellant's affidavit sworn 16 February 2017, must be dismissed.
As for Ms Scott's statutory declaration, it cannot be taken into account because no application has been made to adduce it as additional evidence in the appeal. Even if such an application had been made, it would have been refused. This is because the finding by the sentencing judge concerning the fortification of the appellant's house is not the subject of a ground of appeal. Were there such a ground, the statutory declaration is incapable of demonstrating that the sentencing judge's finding on this point was erroneous.

Conclusion

Neither ground of appeal has been established. The appeal must be dismissed. The orders we would make are:
1.The appellant’s application for leave to adduce additional evidence in the appeal is dismissed.
2.Leave to appeal on ground 2 is granted.
3.The appeal is dismissed.