Smith v The State of Western Australia
[2025] WASCA 22
•31 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 22
CORAM: BUSS P
VAUGHAN JA
SMITH AUJ
HEARD: 15 JANUARY 2025
DELIVERED : 31 JANUARY 2025
FILE NO/S: CACR 43 of 2024
BETWEEN: REECE MICHAEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: CLEARY DCJ
File Number : IND 2169 of 2023
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of 21 counts in an indictment - Pleas of guilty - Total effective sentence of 9 years 8 months' imprisonment - Primary judge made express errors in relation to discounting the individual sentences to reflect mitigating factors - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 132, s 552, s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | C C Porter |
| Respondent | : | N R Sinton |
Solicitors:
| Appellant | : | Tudori Hager Grubb Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Greenland v The State of Western Australia [2017] WASCA 83
The State of Western Australia v Zhuang [2021] WASCA 56
JUDGMENT OF THE COURT:
The appellant appeals against sentence.
The appellant was convicted, on his pleas of guilty, of 21 counts in an indictment. Originally, the indictment contained 24 counts. The State discontinued three of them.
Seventeen of the counts alleged that the appellant had offered to supply a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act). Six of those counts (namely, counts 3, 6, 7, 12, 13 and 14) involved offers to supply trafficable quantities of methylamphetamine. The total quantity the subject of the offers was 322 g.
One of the counts (namely, count 21) alleged that the appellant had possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. This count involved a trafficable quantity of methylamphetamine. The quantity was about 238.49 g.
Two of the counts (namely, counts 23 and 24) alleged that the appellant had possession of money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Criminal Code (WA) (the Code). The amount the subject of count 23 was $222,425 cash and the amount the subject of count 24 was $471,690 cash.
One of the counts (namely, count 22) alleged that the appellant, knowing that a quantity of methylamphetamine may be required in evidence in a judicial proceeding, attempted to wilfully destroy it with intent thereby to prevent it from being used in evidence, contrary to s 132 read with s 552 of the Code. Count 22 related to the 238.49 g of methylamphetamine the subject of count 21.
On 16 April 2024, Cleary DCJ imposed a total effective sentence of 9 years 8 months' imprisonment. Her Honour backdated the sentence to 4 July 2023 to take account of time the appellant had spent in custody in respect of the offences. A parole eligibility order was made.
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the total effective sentence of 9 years 8 months' imprisonment infringed the totality principle.
Ground 2 alleges, in essence, that the primary judge made express errors in relation to the manner in which her Honour discounted the individual sentences to reflect mitigating factors.
The State does not accept that ground 1 has been established.
However, the State concedes that ground 2 has been made out, at least in relation to counts 14 and 21, and that the appeal should be allowed on that basis.
In our opinion, leave to appeal should be granted on ground 2 and the appeal must be allowed. This court has the material necessary to resentence the appellant. It is unnecessary, in the circumstances, to decide ground 1. Leave to appeal on that ground should be refused.
Overview of the facts and circumstances of the offending
Between 8 June 2023 and 4 July 2023 police lawfully intercepted the appellant's mobile telecommunication service.
During this period the appellant utilised his mobile telephone and communicated with various associates (via SMS, text and audio) to arrange the sale of prohibited drugs (counts 1 to 20).
On 4 July 2023, police executed search warrants at the appellant's hotel room in Perth and at the appellant's mother's home. Police searched the hotel room and seized a trafficable quantity of methylamphetamine and a large amount of cash. When police entered the hotel room, the appellant attempted to destroy the methylamphetamine. Police also located a large amount of cash, which belonged to the appellant, at the appellant's mother's home (counts 21 to 24).
At about 1.00 am on 10 June 2023, the appellant utilised his mobile telephone and communicated with a female associate. The appellant offered to supply 7 g of methylamphetamine and specified the terms of the exchange (count 1).
Later that day, at about 1.50 pm, the appellant communicated with a male associate. The appellant offered to supply 7 g of methylamphetamine and agreed upon the terms of the transaction (count 2).
At about 5.48 pm on 11 June 2023, the appellant communicated with a male associate. The appellant offered to supply 28 g of methylamphetamine and referred to the terms of the exchange to settle a debt (count 3).
At about 8.57 pm on 12 June 2023, the appellant communicated with a female associate. The appellant offered to supply 14 g of methylamphetamine and arranged to meet to complete the exchange (count 4).
Later that night, at about 11.49 pm, the appellant communicated again with the same female associate. The appellant offered to supply another 14 g of methylamphetamine and arranged to meet to complete the exchange (count 5).
At about 6.05 pm on 13 June 2023, the appellant communicated with a female associate. The appellant offered to supply 28 g of methylamphetamine and organised a location for the exchange (count 6).
Later that evening at about 8.52 pm, the appellant communicated with a male associate. The appellant offered to supply 56 g of methylamphetamine and organised a meeting place for the exchange (count 7).
At about 12.50 pm on 14 June 2023, the appellant communicated with a female associate. The appellant offered to supply 7 g of methylamphetamine and agreed to meet with her at a designated location for the exchange (count 9).
Later that evening at about 8.58 pm, the appellant communicated with a male associate. The appellant offered to supply 14 g of methylamphetamine and listed the price for the exchange (count 10).
At about 6.18 pm on 16 June 2023, the appellant communicated with a female associate. The appellant offered to supply 7 g of methylamphetamine and settled upon the price for the exchange (count 11).
At about 11.35 pm on 17 June 2023, the appellant communicated with a male associate. The appellant offered to supply 28 g of methylamphetamine and outlined the terms of the exchange (count 12).
At about 11.14 am on 19 June 2023, the appellant communicated with a male associate. The appellant offered to supply 56 g of methylamphetamine and settled upon the price for the exchange (count 13).
At about 9.38 pm on 22 June 2023, the appellant communicated with a male associate. The appellant offered to supply 28 g of methylamphetamine and conveyed the terms of the exchange (count 14).
At about 4.59 pm on 23 June 2023, the appellant communicated with a female associate. The appellant offered to supply 7 g of methylamphetamine and agreed upon the terms for the exchange (count 15).
Later that evening, at about 7.11 pm, the appellant communicated again with the female associate. The appellant offered to supply another 7 g of methylamphetamine and arranged a meeting for the exchange (count 16).
At about 3.02 am on 26 June 2023, the appellant communicated with the same female associate. The appellant offered to supply 7 g of methylamphetamine and negotiated terms (part payment, remainder on credit) for the exchange (count 17).
At about 9.55 am on 27 June 2023, the appellant communicated with a male associate. The appellant offered to supply 7 g of methylamphetamine and listed the price for the exchange (count 18).
The total quantity of methylamphetamine the appellant offered to supply was 322 g.
At about 8.00 am on 4 July 2023, police commenced a search at the appellant's hotel room in Perth.
Upon entry, police saw the appellant running towards the bathroom.
The appellant picked up a clipseal bag containing a large trafficable quantity of methylamphetamine (about 238.49 g) from the walk‑in robe.
The appellant ran into the bathroom and ripped the bag open. The methylamphetamine fell onto the floor.
The appellant was apprehended and arrested at the scene.
Police used a vacuum cleaner in an effort to retrieve the methylamphetamine. However, they were unable to recover the entire amount.
The total weight of the methylamphetamine recovered was 238.49 g with a purity of 80%.
Police also located digital scales and other drug‑dealing indicia in the hotel room. The appellant's mobile telephone was seized. He refused to provide police with the security access code.
During the search of the hotel room, police also located $222,425 cash on a shelf above a safe (count 23). Numerous bundles of bank notes were secured by rubber bands.
Police also located a notebook with handwritten names and numbers that formed a 'tick list'.
Later that day, at 12.30 pm, police searched the appellant's mother's home. His mother was present.
Police located $471,690 cash in the walk‑in robe of the mother's room (count 24).
After making inquiries, police ascertained that the cash in the walk‑in robe belonged to the appellant.
The total amount of money seized was $694,115. The appellant possessed all of the money. It was the proceeds of an offence or offences.
The appellant's intention was to sell the drugs that were in his possession for commercial gain.
The appellant was arrested and taken to Rockingham Police Station where he participated in an electronically recorded interview.
Police questioned the appellant in relation to the methylamphetamine and the money. He declined to comment and was remanded in custody.
The maximum penalties, the individual sentences and the discounts for mitigating factors
The primary judge specified in her sentencing remarks the sentences she would have imposed on the appellant had there been no mitigating factors. Her Honour then said that she would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for the plea of guilty on each of the counts. Her Honour also said that she would allow a small additional discount to reflect mitigation in respect of the appellant's personal circumstances, including his efforts at rehabilitation.
The maximum penalties, the individual sentences her Honour actually imposed and the individual discounts she actually allowed for the offences are set out in the following table:
Charge
Description
Maximum Penalty
Sentence
Count 1
10 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Cumulative
~30% discount
Count 2
10 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 3
11 June 2023 offered to supply 28 g.
Life imprisonment
3 years 8 months' imprisonment Concurrent
~27% discount
Count 4
12 June 2023 offered to supply 14 g.
25 years' imprisonment and/or a fine not exceeding $100,000
2 years 10 months' imprisonment Concurrent
~29% discount
Count 5
12 June 2023 offered to supply 14 g.
25 years' imprisonment and/or a fine not exceeding $100,000
2 years 10 months' imprisonment Concurrent
~29% discount
Count 6
13 June 2023 offered to supply 28 g.
Life imprisonment
3 years 8 months' imprisonment Concurrent
~27% discount
Count 7
13 June 2023 offered to supply 56 g.
Life imprisonment
4 years 10 months' imprisonment Concurrent
~26% discount
Count 9
14 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 10
14 June 2023 offered to supply 14 g.
25 years' imprisonment and/or a fine not exceeding $100,000
2 years 10 months' imprisonment Concurrent
~29% discount
Count 11
16 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 12
17 June 2023 offered to supply 28 g.
Life imprisonment
3 years 8 months' imprisonment Concurrent
~27% discount
Count 13
19 June 2023 offered to supply 56 g.
Life imprisonment
4 years 10 months' imprisonment Concurrent
~26% discount
Count 14
22 June 2023 offered to supply 28 g.
Life imprisonment
4 years 4 months' imprisonment Concurrent
~13.33% discount
Count 15
23 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 16
23 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 17
26 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 18
27 June 2023 offered to supply 7 g.
25 years' imprisonment and/or a fine not exceeding $100,000
1 year 7 months' imprisonment Concurrent
~30% discount
Count 21
4 July 2023 had in his possession with intent to sell or supply about 238.49 g of methylamphetamine.
Life imprisonment
6 years' imprisonment Concurrent /Head Sentence
~25% discount
Count 22
4 July 2023 attempted to wilfully destroy evidence (238.49 g of methylamphetamine).
3 years 6 months' imprisonment
14 months' imprisonment Cumulative
~30% discount
Count 23
4 July 2023 possessed $222,425 that was the proceeds of an offence.
20 years' imprisonment
7 months' imprisonment Concurrent
~42% discount
Count 24
4 July 2023 possessed $471,690 that was the proceeds of an offence.
20 years' imprisonment
11 months' imprisonment Cumulative
~31% discount
The primary judge's sentencing remarks and the appellant's personal circumstances and antecedents
The primary judge recounted the facts and circumstances of the offending in her sentencing remarks.
Her Honour made these findings and observations:
(a)The appellant's intention was to sell the drugs. He possessed trafficable quantities of methylamphetamine for sale and commercial gain.
(b)The appellant's behaviour 'significantly contributed to the ability of whatever organisation [he] found [himself] in and that was no doubt directing [him], so that they could be secure in the knowledge that [he was] facilitating its business' (ts 24).
(c)It did not make 'any difference to sentence whether [the appellant was] holding [the methylamphetamine] for somebody else or whether [he was] going to use it [himself] to offer to others' (ts 24).
(d)As to the offers he made to supply methylamphetamine, the appellant 'did in general fulfil those orders' (ts 25).
(e)The appellant was involved in the offending predominantly for the purpose of repaying a drug debt that he owed.
(f)The appellant was 'at least a mid‑level dealer'. He was not a street dealer and he was not dealing in small quantities. However, he was not directing or close to anyone who was directing the organisation in which he was involved (ts 26).
(g)The appellant was 'clearly trusted with large amounts of [methylamphetamine] and [he] would move large amounts of [methylamphetamine] and [he] would hold cash and [he] would send cash back up the chain of command, and if it is the case that [he was] being asked to hold cash for somebody else … [he was] clearly trusted in that respect as well'. That did not 'put [the appellant] at the lowest end of the dealing chain by any means' (ts 26).
The primary judge noted aggravating factors as follows. First, the purity of the methylamphetamine found in the hotel room was 80%. The drug would have been able to be diluted with a cutting agent to increase its volume. Secondly, the appellant was able to keep large amounts of cash at his mother's house, at least before delivering the cash to others within the organisation in which he was involved. Thirdly, the appellant's offending was persistent and ongoing. It occurred over a period of about three weeks. The appellant did not merely carry out one or two transactions for the purpose of '[getting] back on track with whoever [he] owed'. He would always owe money while he continued to use methylamphetamine and consequently '[his] dealing was not going to stop' (ts 26). Fourthly, the appellant was dealing with methylamphetamine for commercial gain. Dealers who are also addicts are not treated more leniently merely because they deal to finance their drug habit. The appellant was running 'a commercial enterprise, whether for [himself] or someone else' (ts 27).
The appellant has a relevant and significant prior criminal record. In particular, on 21 January 2020 the appellant was sentenced in the District Court for possession of 25.86 g of methylamphetamine, with intent to sell or supply. The drug had a purity of 74%. On that date he was also sentenced for possession of $4,630 cash that was reasonably suspected to be stolen or otherwise unlawfully obtained. The appellant received a total effective sentence of 2 years' immediate imprisonment. After being released from prison for those offences, the appellant committed other offences. On 27 November 2023, he was fined in the Magistrates Court for possession of cannabis, possession of drug paraphernalia and possession of a category 1 or 2 item contrary to the MD Act. Her Honour said that although the appellant's prior criminal record did not aggravate the seriousness of his current offending, personal deterrence was a very significant factor in the appellant's sentencing.
The primary judge found that the appellant was at a high risk of reoffending if he relapsed into illicit drug use.
The appellant was aged 28 at the time of the offending and was 29 when sentenced.
The appellant completed year 9 at school and finished year 10 at TAFE. He was bullied at school. The appellant began an apprenticeship as a boilermaker but did not complete it. He has been employed from time to time including as a painter and a rigger. When he committed the current offences the appellant was unemployed as a result of his illicit drug use.
The appellant started using cannabis at the age of 13, MDMA when he was 15 and methylamphetamine when he was 19. Between the ages of 19 and 23 the appellant used methylamphetamine and GHB. His consumption of methylamphetamine was about 3.5 g per day.
The appellant is the father of twin girls who at the time of sentencing were aged 6. The appellant's mother has guardianship and day‑to‑day care of the girls. The girls' mother has had no role in the girls' lives since their birth.
Her Honour accepted defence counsel's submission that, while serving a custodial sentence in 2020 and 2021, the appellant completed a drug rehabilitation programme with the Whitehaven Clinic. The appellant was released on parole on 27 June 2021 and successfully completed his parole order. When he was released from prison, the appellant gained employment as a rigger. However, after about 18 months, he failed a urine analysis test and was dismissed. In August 2022, the appellant witnessed the death of his best friend in a motor vehicle accident. This incident had a great impact on the appellant and resulted in him relapsing into illicit drug use. During the next year the appellant was using methylamphetamine and GHB. His methylamphetamine consumption was in excess of 10 g a day. His drug addiction cost him $4,000 a day. Defence counsel conceded that the trauma the appellant experienced upon witnessing the death of his best friend carried less weight because the appellant was dealing in very significant amounts of methylamphetamine.
Her Honour noted mitigating factors as follows. First, there were the appellant's pleas of guilty. As we have mentioned, her Honour said that she would allow a discount of 25% for the plea on each count, pursuant to s 9AA of the Sentencing Act. Secondly, her Honour referred to a report dated 8 April 2024 from the Whitehaven Clinic. Her Honour noted that the clinic had supported the appellant in the past and that the clinic continues to do so. The report set out the appellant's background and the reasons why he resorts to illicit drugs as a coping mechanism. The report also described the trigger that resulted in the appellant relapsing into illicit drug use in about August 2022. Her Honour commented that she could 'only give [the appellant] a small amount of mitigation' in relation to the factors mentioned in the report because of his previous conviction for possession of methylamphetamine with intent to sell or supply; the quantity of methylamphetamine in his possession on this occasion; and the amount of cash in his possession on this occasion. Thirdly, the pleas of guilty indicated that the appellant 'may have some remorse' (ts 31). However, her Honour said that she could 'only give [the appellant] a small amount of credit for any remorse [he] may have' (ts 32). Fourthly, the appellant was aged 29 when sentenced. Her Honour said that 'in the scheme of life, that is still young' and she would 'take that into account when determining the term of imprisonment that [she imposed]' (ts 32). There was 'still a chance for [the appellant] to truly rehabilitate given [his] age', but that 'does not weigh significantly' (ts 32). Fifthly, the appellant has 'considerable supports in the community' and 'that is a positive step towards the prospect of rehabilitation'. The appellant has, from time to time, 'been a contributing member of the community' (ts 32). The appellant's referees spoke of him in 'a very respectful way' and it was clear that, when he was not taking methylamphetamine, he was 'a good family man; smart, sporty and a very good worker'. However, her Honour said she could not give 'any real weight' to any suggestion that the appellant has insight (ts 33). The appellant's previous relapse into illicit drug use did not give her Honour 'a great deal of confidence that [the appellant] will, when released this time, take up [his family's] loving support', but it was a factor that should weigh in his favour (ts 33 ‑ 34). Sixthly, the appellant had received threats because he had been blamed for the loss of the methylamphetamine and the cash in the hotel room and her Honour accepted that 'that may make [the appellant's] time … in prison, somewhat more difficult' (ts 34).
The primary judge proceeded to impose sentences on each of the 21 counts. Her Honour specified in relation to each count the sentence she would have imposed had there been no mitigating factors. Her Honour then specified the sentence that she did impose after taking into account the plea of guilty and the other mitigating factors. Consequently, the extent of the reduction in each sentence, on account of the plea of guilty and the other mitigating factors, is readily discernible.
After imposing the individual sentences, her Honour referred to the totality principle and decided that the total effective sentence should be 9 years 8 months' imprisonment.
Ground 2 of the appeal
Ground 2 alleges, in essence, that the primary judge made express errors in relation to the manner in which her Honour discounted the individual sentences to reflect mitigating factors.
Section 9AA of the Sentencing Act does not require that a sentencing judge expressly state or identify in their sentencing remarks the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) or starting point to which the discount under s 9AA is applied. See Greenland v The State of Western Australia.[1]
[1] Greenland v The State of Western Australia [2017] WASCA 83 [173] ‑ [174] (Newnes & Mazza JJA & Beech J).
However, in the present case, her Honour did specify in her sentencing remarks the sentences she would have imposed on the appellant had there been no mitigating factors. Her Honour then said that she would allow a discount of 25%, pursuant to s 9AA, for the plea of guilty on each of the counts.
It is apparent, on a fair reading of the primary judge's sentencing remarks as a whole, that her Honour also decided that:
(a)there were some other mitigating factors (apart from the pleas of guilty);
(b)the other mitigating factors applied to all of the offences;
(c)the weight to be given to the other mitigating factors was modest; and
(d)there should be a small reduction in the appellant's sentence for each offence, in recognition of the other mitigating factors, after the sentence for each offence had been reduced on account of the plea of guilty.
Her Honour's sentencing remarks and the individual sentences her Honour imposed reveal that, despite the matters which we have mentioned at [69] ‑ [70] above, the total discount for all mitigating factors allowed by her Honour in respect of the individual sentences ranged between about 13.33% and about 42%. See the table at [53] above.
For example:
(a)the sentence for count 21 was reduced by a total of 25% for all mitigating factors (from 8 years' imprisonment to 6 years' imprisonment), which indicates that no reduction was made to reflect mitigating factors other than the plea of guilty; and
(b)the sentence for count 14 was reduced by a total of 13.33% for all mitigating factors (from 5 years' imprisonment to 4 years 4 months' imprisonment), which indicates that the appellant did not receive the full benefit of the 25% reduction for the plea of guilty.
We are satisfied that the examples we have given in relation to the sentencing for count 21 and count 14, in the context of the discounting ranges depicted in the table at [53] above, indicate that there is an unacceptable risk that her Honour's exercise of the sentencing discretion also miscarried in relation to at least some of the other individual sentences.
In the circumstances, all of the individual sentences imposed by the primary judge should be set aside.
Ground 2 has been made out.
Ground 1 of the appeal
The appeal must be allowed in view of ground 2 having been made out. It is unnecessary, in the circumstances, to decide ground 1. Leave to appeal on that ground should be refused.
The outcome of the appeal and the resentencing of the appellant
We would allow the appeal.
The primary judge's individual sentence for count 21 was the head sentence. Her Honour ordered that the individual sentences for counts 1, 22 and 24 be served cumulatively upon each other and cumulatively upon the individual sentence for count 21. All of the other individual sentences were ordered to be served concurrently with each other and concurrently with the individual sentence for count 21. Hence, the total effective sentence was 9 years 8 months' imprisonment. Each of the individual sentences took into account the other individual sentences in that her Honour made orders for cumulacy or concurrency in relation to all of the individual sentences. The total effective sentence also took into account all of the individual sentences in that the total effective sentence was arrived at by making some of the individual sentences cumulative and the other individual sentences concurrent. See s 41(2) of the Criminal Appeals Act 2004 (WA).
Her Honour's sentencing decision, including all of the sentences imposed and the orders for cumulacy and concurrency, should be set aside. The drug trafficker declaration and the order for the destruction of the prohibited drugs made by her Honour should not be disturbed.
This court has the material necessary to resentence the appellant.
At the hearing of the appeal, counsel for the appellant informed the court that, since he was sentenced by the primary judge, the appellant has participated in the Mallee programme in prison with the object of rehabilitating himself by breaking the cycles of addiction that are associated with illicit drug use.
In our opinion, the individual sentences imposed by her Honour for the money laundering offences (counts 23 and 24) were manifestly inadequate. The maximum penalty for each of those offences is 20 years' imprisonment. The sentence for count 23 (which involved $222,425 cash) was 7 months' imprisonment. The sentence for count 24 (which involved $471,690 cash) was 11 months' imprisonment. In TheState of Western Australia v Zhuang,[2] this court emphasised the seriousness of money laundering offences and reviewed previous sentencing decisions of this court for offending of that kind.
[2] The State of Western Australia v Zhuang [2021] WASCA 56 [120] ‑ [174] (Buss P, Mazza & Vaughan JJA).
In our opinion, the 25% discount allowed by the primary judge, pursuant to s 9AA of the Sentencing Act, was generous.
Further, in our opinion, some of the individual sentences imposed by her Honour for the drug offences were lenient.
Similarly, in our opinion, the total effective sentence imposed by the primary judge was towards the lower end of the range open on a proper exercise of the sentencing discretion.
At the hearing of the appeal, this court informed counsel for the appellant and counsel for the State, in effect, that:
(a)there was a significant prospect that this court, in re‑exercising the sentencing discretion, may impose higher individual sentences for each of counts 23 and 24;
(b)having regard to the absence of any challenge by the State to the level of the s 9AA discount allowed by her Honour, this court, in re‑exercising the sentencing discretion, would allow the same discount; and
(c)having regard to the absence of any challenge by the State to the individual sentences for the drug offences and to the total effective sentence, this court, in re‑exercising the sentencing discretion, would not impose higher sentences for any of the drug offences or a higher total effective sentence.
We have taken into account, in exercising the sentencing discretion afresh, all of the information that was before the primary judge; the findings of fact made by her Honour which have not been challenged in the appeal; the appellant's participation in the Mallee programme since he was sentenced by her Honour; and the submissions made by counsel for the appellant and counsel for the State in the appeal.
Like her Honour, we would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty. We would also reduce the sentence we would otherwise have imposed for each offence to reflect the other mitigating factors mentioned by her Honour. We would further reduce the sentence we would otherwise have imposed for each offence to recognise the appellant's participation in the Mallee programme.
We would resentence the appellant to individual sentences of immediate imprisonment on each of the counts as follows:
(a)Count 1: 1 year 7 months' imprisonment.
(b)Count 2: 1 year 7 months' imprisonment.
(c)Count 3: 3 years 8 months' imprisonment.
(d)Count 4: 2 years 10 months' imprisonment.
(e)Count 5: 2 years 10 months' imprisonment.
(f)Count 6: 3 years 8 months' imprisonment.
(g)Count 7: 4 years 10 months' imprisonment.
(h)Count 9: 1 year 7 months' imprisonment.
(i)Count 10: 2 years 10 months' imprisonment.
(j)Count 11: 1 year 7 months' imprisonment.
(k)Count 12: 3 years 8 months' imprisonment.
(l)Count 13: 4 years 10 months' imprisonment.
(m)Count 14: 3 years 8 months' imprisonment.
(n)Count 15: 1 year 7 months' imprisonment.
(o)Count 16: 1 year 7 months' imprisonment.
(p)Count 17: 1 year 7 months' imprisonment.
(q)Count 18: 1 year 7 months' imprisonment.
(r)Count 21: 5 years 8 months' imprisonment.
(s)Count 22: 1 year 2 months' imprisonment.
(t)Count 23: 2 years 8 months' imprisonment.
(u)Count 24: 3 years 6 months' imprisonment.
The new sentences for counts 4 and 22 should be served cumulatively upon each other and cumulatively upon the new sentence for count 21. The other new sentences should be served concurrently with each other and concurrently with the new sentence for count 21. The new total effective sentence is therefore 9 years 8 months' imprisonment. The new total effective sentence should be backdated to 4 July 2023 to take account of time the appellant has spent in custody in respect of the offences. A parole eligibility order should be made.
The appellant will be eligible to be considered for release on parole when he has served 7 years 8 months in custody calculated from 4 July 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TCG
Associate to the Honourable President Buss
31 JANUARY 2025
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