Stokes v The State of Western Australia

[2016] WASCA 87

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   STOKES -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 87

CORAM:   NEWNES JA

MAZZA JA
CORBOY J

HEARD:   8 FEBRUARY 2016

DELIVERED          :   31 MAY 2016

FILE NO/S:   CACR 41 of 2015

BETWEEN:   BRADLEY PAUL STOKES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :CACR 42 of 2015

BETWEEN              :SHANE BUSHER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :McCANN DCJ

File No  :IND 1349 of 2014

Catchwords:

CACR 41 of 2015
Criminal law - Drug offences - Total effective sentence 8 years' imprisonment - Appeal against sentence - Whether the learned sentencing judge erred by overstating the appellant's level of participation and criminality in the offending - Whether the total effective sentence breached the first limb of the totality principle

CACR 42 of 2015
Criminal law - Drug offences - Total effective sentence 5 years 2 months' imprisonment - Appeal against sentence - Whether the total effective sentence breached the first limb of the totality principle - Whether the learned sentencing judge erred in omitting to discount the sentence imposed on count 3 for totality

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeals allowed
Appellants resentenced

Category:    B

Representation:

CACR 41 of 2015

Counsel:

Appellant:     Mr A O Karstaedt

Respondent:     Ms C Barbagallo

Solicitors:

Appellant:     N R Barber Legal Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

CACR 42 of 2015

Counsel:

Appellant:     Mr M R Gunning

Respondent:     Ms C Barbagallo

Solicitors:

Appellant:     Gunning Young Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

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

Bond v The State of Western Australia [2011] WASCA 123

Guler v The State of Western Australia [2014] WASCA 83

Pham v The State of Western Australia [2011] WASCA 244

Phan v The State of Western Australia [2014] WASCA 144

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

REASONS OF THE COURT:   

1. Before the court are Mr Stokes' and Mr Busher's appeals against sentence. 

Introduction

Summary of the offending

1. On 28 February 2014, Mr Busher, in company with two other men, attended at the Cockburn PostNet. There, he picked up three packages.  One package contained a quantity of MDMA; another, a quantity of an inert substance which police officers had earlier substituted for a quantity of MDMA; and the third package contained approximately 1 kg of alpha‑PVP.  The post box to which the three packages had been posted had been leased by Mr Stokes in his name some months before; specifically, as a delivery point for illicit drugs.  Shortly after Mr Busher picked up the packages, he and those he was with were apprehended by police.  Mr Stokes, who lived in the same building as the Cockburn PostNet, was arrested soon thereafter. 

The indictment

1. In due course, Mr Stokes and Mr Busher were jointly charged on indictment in the District Court with one count of possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MDA) (count 1); one count of attempted possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 33(1) of the MDA (count 2); and one count of possession of a prohibited drug, namely alpha‑PVP, with intent to sell or supply it to another, also contrary to s 6(1)(a) of the MDA (count 3).

Sentencing in the District Court

1. On 27 February 2015, Mr Stokes and Mr Busher were convicted on their pleas of guilty of these charges.  On the same day, McCann DCJ sentenced them as follows.

Mr Stokes' sentencing   

Count 11 year 6 months' imprisonment

Count 21 year 6 months' imprisonment

Count 35 years' imprisonment

1. His Honour ordered the sentences to be served cumulatively, resulting in a total effective sentence of 8 years' imprisonment.  The sentence was backdated to commence on 1 March 2014.  Mr Stokes was made eligible for parole.

Mr Busher's sentencing

Count 11 year 6 months' imprisonment

Count 21 year 6 months' imprisonment

Count 32 years 2 months' imprisonment

1. His Honour ordered that the sentences be served cumulatively, resulting in a total effective sentence of 5 years 2 months' imprisonment.  The sentence was backdated to commence on 18 January 2015.  Mr Busher was made eligible for parole.

Appeal to this court

Mr Stokes' appeal

1. Mr Stokes appeals against his sentence on two grounds. 

2. By ground 1, Mr Stokes alleges that his Honour expressly erred by overstating the nature and level of the appellant's participation and criminality in the offences. 

3. By ground 2, he alleges that his Honour impliedly erred by imposing a total effective sentence that infringed the first limb of the totality principle. 

4. Leave to appeal has been granted in respect of these grounds. 

Mr Busher's appeal

1. Mr Busher appeals against his sentence on four grounds. 

2. His counsel in the appeal hearing accepted that grounds 1, 2 and 3, in substance, alleged the same thing; namely, that the total effective sentence infringed the first limb of the totality principle.  This allegation is perhaps best captured in ground 3, for which leave to appeal has been granted.[1] 

   [1] The application for leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.

3. During the hearing of the appeal, Mr Busher was given leave, without opposition from the respondent, to add a further ground of appeal to allege that his Honour erred by failing to take into account the totality principle in the sentence he imposed on count 3 (ground 4) (appeal ts 14).  The respondent conceded that his Honour erred in this way (appeal ts 47).

4. For the reasons that follow, each appeal should be allowed and the appellants should be resentenced.

Summary of the facts

1. Before describing the facts, it must be said that, in some respects, the circumstances of the offending were unclear.  This became evident during the hearing of this appeal.  However, what follows is common ground between the parties.

Facts of the offending

1. On 20 November 2013, Mr Stokes leased, in his name, private post box number 174 (the post box) at Cockburn PostNet.  Cockburn PostNet, a retail business, is located in a building situated at 23 Junction Boulevard, Cockburn Central (ts 11).  Mr Stokes lived in an apartment above the Cockburn PostNet at the same address.

2. The post box was leased by Mr Stokes at the request of another and with Mr Stokes' knowledge that its sole purpose was a delivery point for illicit drugs contained in parcels (ts 11). 

3. On a number of occasions prior to 28 February 2014, parcels containing illicit drugs were delivered to the post box.  The precise number of these occasions is unknown, but Mr Stokes, in his record of interview with police, said it was 'less than five occasions' (Stokes AB 138).  On each occasion, someone employed at the Cockburn PostNet notified Mr Stokes of the delivery.  Mr Stokes would then attend at the PostNet and pick up the parcel and then hand it on to someone else.  Mr Stokes was paid for opening the post box, although he refused to tell police in his record of interview precisely how much he was paid (Stokes AB 131).  He was also paid for each occasion on which he picked up a parcel and handed it over to someone else (Stokes AB 139).  Mr Stokes refused to reveal exactly how much he was paid on these occasions.  Mr Stokes told police that it was not a lot of money (Stokes AB 139, 152).

4. On 21 February 2014, a package was delivered to the post box.  The package was intercepted by police prior to being picked up.  It was ascertained that the package contained 468 'blue ghost' pills which, on later analysis, were found to be MDMA weighing 115.8 g in total with a purity of between 44% to 47% (ts 11, 16, 76).  Police seized the MDMA and replaced it with an inert substance.  The package was then returned to the post box.  This is the prohibited drug the subject of count 2. 

5. On 28 February 2014, another two packages were delivered to the post box.  One of them contained 329 'blue ghost' tablets which, on analysis, were MDMA weighing 80.9 g in total with a purity of 44% to 45% (ts 75).  This is the prohibited drug the subject of count 1.  The other package contained 993 g of alpha‑PVP of which 497 g was 5% pure.  The balance (496 g) was 6% pure (ts 76).  At the time, alpha‑PVP was not itself a designated prohibited drug; however, it was a prohibited drug by virtue of it being a derivative of a prohibited drug, namely MDVP (ts 12, 75).  Alpha‑PVP is a synthetic drug which has psychoactive and stimulant properties akin to both methylamphetamine and MDMA (ts 19).  This is the prohibited drug the subject of count 3.

6. At about 2 pm on 28 February 2014, Mr Busher, along with Daragh Mooney and Shane Hegarty, drove to the Cockburn PostNet.  Mr Busher and Mr Mooney went inside while Mr Hegarty remained in the car.  Mr Busher attempted to collect the parcels from the post box, but was unable to do so because he had no photographic identification.  Mr Mooney then attempted to collect the parcels, but he, too, was unable to do so.  Mr Busher, Mr Mooney and Mr Hegarty then drove back to their residence in Scarborough (ts 12). 

7. At about 3 pm on the same day, they returned to the Cockburn PostNet, again by car.  Mr Busher entered the PostNet and produced false identification; specifically, a driver's licence issued in the Republic of Ireland in the name of Sean Ward.  Mr Busher also had the key to the post box, which he also produced (ts 12).  It is not known from whom Mr Busher had obtained the key.  In his record of interview, Mr Stokes said that he was given a key when he opened the post box, but he handed it to someone else (Stokes AB 133).  Mr Stokes denied supplying the key to Mr Busher (ts 59).  He was not sentenced on the basis that he had done so. 

8. Upon production by Mr Busher of identification and the key, the packages were handed to him by an employee of the Cockburn PostNet.  Mr Busher was arrested by police a short distance outside the PostNet.  Mr Mooney and Mr Hegarty fled the scene, but were apprehended a short distance away (ts 12). 

9. Mr Stokes was telephoned by police and requested to attend at his apartment, which he did.  There, he was arrested (Stokes AB 124; ts 71). 

Police investigation

1. Mr Stokes' and Mr Busher's residences were searched.  Mobile telephones were seized.  Items were found to have been deleted from Mr Stokes' mobile telephone, although Mr Mooney's name appeared on his contact list.  Incriminating material was found on a mobile telephone which possibly belonged to Mr Busher (ts 65 - 66).  At the sentencing hearing, Mr Busher's counsel denied that the mobile telephone said to belong to Mr Busher was, in fact, his (ts 69 - 70).  The matter was not pressed by the State and the material stored on that mobile telephone was not taken into account by the learned sentencing judge. 

2. Mr Busher was interviewed by police.  He, in effect, invoked his right to silence. 

3. We have already referred to Mr Stokes' record of interview.  He was somewhat more forthcoming than Mr Busher.  He said that:

   (a)He had lived at his apartment at 23 Junction Boulevard, Cockburn Central, for two years (Stokes AB 121 - 122).

   (b)He leased the post box at the request of 'somebody' from whom he received money, but he was not prepared to say for how much (Stokes AB 130).

   (c)He was not prepared to name the person who paid him to lease the post box, saying, 'I'm not a rat' (Stokes AB 132).

   (d)There was one key to the post box which he handed over to an unnamed person when it was leased (Stokes AB 133).

   (e)Whenever a package arrived, he received a notification text message from the post office.  He would then attend at the post office, be handed the package and then give it on to someone else (Stokes AB 133 ‑ 134). 

   (f)Prior to each delivery, he was advised by telephone to expect a package. 

   (g)He did not 'distribute drugs' (Stokes AB 143).

   (h)He neither opened the packages, nor did he know what was in them - he said 'I don't want to know and I don't care' what was inside them (Stokes AB 134 - 137, 144).

   (i)He picked up packages prior to 28 February 2014 on 'less than five, well less than five' occasions (Stokes AB 138).

   (j)He was paid money for each delivery, but denied being paid a lot of money.  He was not prepared to be any more precise than this about how much he was paid (Stokes AB 139, 152). 

   (k)In the week preceding his arrest, he was made aware that there were packages in the post box (Stokes AB 137).

   (l)By this stage, he had had enough and he wanted 'nothing to do with it' (Stokes AB 137).

   (m)He did not know Mr Busher, Mr Mooney or Mr Hegarty (Stokes AB 145 ‑ 146).

4. In addition, during the interview, he:

   (a)admitted that he allowed drug dealing to occur through the post box (Stokes AB 147);

   (b)expressed surprise at the quantities of drugs received by police (Stokes AB 149 ‑ 150); and

   (c)other than admitting that he opened up the post box, denied being 'a drug dealer' (Stokes AB 138).

The appellants' antecedents

Mr Stokes' antecedents

1. Mr Stokes is an Irish national who arrived in Australia in 2010.  He was 23 years old at the time of the offences and 24 years old when he was sentenced.  He has strong parental and family support.  Mr Stokes was diagnosed with attention deficit hyperactivity disorder while in primary school for which he was medicated; however, towards the end of his secondary schooling, he stopped taking that medication.  He completed school at the end of Year 11.  Mr Stokes has difficulties managing his emotions and in his late teens managed them primarily through illicit substance use.

2. In 2013, while Mr Stokes was living and working in Port Hedland, a friend of his was murdered.  As a consequence, he began to drink heavily.  In due course, he lost his job and the relationship he was in at the time broke down.  He then moved to Perth. 

3. Mr Stokes has a short criminal history in Ireland and Western Australia which, his Honour said, reflected 'long exhibited antisocial traits and poor emotional and behavioural regulation, and poor planning, coping and problem solving' (ts 77).  The present offences were his first serious offences.  Since being remanded in custody, Mr Stokes has completed a number of courses aimed at his rehabilitation.

Mr Busher's antecedents

1. Mr Busher is also an Irish national.  He was 25 years old at the time of the offences and 26 years old when he was sentenced.

2. Mr Busher comes from a large, close‑knit family.  He has no prior criminal history in either Ireland or Western Australia.  He has no apparent problem with alcohol or illicit substances.  Mr Busher is a qualified tradesman with a constant work record.  He was in immigration detention prior to being sentenced for just over 10 months, and he spent an additional 40 days in custody on remand for the present offences.  Mr Busher was described by his Honour as a 'model prisoner' (ts 78).  Mr Busher expressed a willingness to cooperate with the State by testifying against Mr Mooney.  The State declined to accept this offer of cooperation (ts 52).[2]

   [2] Mr Mooney has since pleaded guilty to offences arising out of the events of 28 February 2014.  He has not yet been dealt with.

His Honour's sentencing remarks

1. His Honour found that Mr Stokes played 'a very important role' by leasing the post box (ts 76).  He described Mr Stokes' protests in his record of interview that he was not a dealer or distributor of drugs as 'naïve' (ts 76).  Rather, his Honour characterised Mr Stokes as being '… very much … a high‑level distributor of drugs' and a 'high-level operative' (ts 81), and said that his involvement was 'for reward' (ts 76).  The learned sentencing judge described the operation in which Mr Stokes was involved as 'sophisticated' and 'well organised', and said that Mr Stokes' involvement was 'not an aberration or one‑off error of judgment' (ts 76).

2. His Honour referred to some telephone intercept products and, in particular, a telephone conversation between Mr Stokes and another on 20 February 2014 (prosecution brief 113).  At one point in the conversation, Mr Stokes indicates that he is prepared 'to sell a few bags [of 'speed'] this weekend'.  His Honour found that the conversation was evidence that Mr Stokes was 'deeply involved in the illicit drug business in some way' (ts 76). 

3. His Honour noted the following mitigating factors with respect to Mr Stokes (ts 78):

   (a)The pleas of guilty for which his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act1995 (WA). His Honour said that the pleas demonstrated a 'willingness to facilitate the administration of justice, accept responsibility' and displayed 'insight and remorse'.

   (b)The offences were the appellant's first serious offences.

   (c)He was 'relatively immature at the time [of the offences]' and had problems with alcohol, illicit drugs and behaviour regulation.

   (d)He has 'strong family and parental support'.

   (e)He will have to serve the term of imprisonment 'a long way from home'.

4. With respect to Mr Busher, his Honour described his involvement as a 'one‑off out-of-character aberration, somewhat opportunistic in nature' (ts 76).  His Honour contrasted Mr Busher's position with that of Mr Stokes to the extent that Mr Busher did not have an ongoing involvement in the distribution of illicit drugs (ts 76).  Nevertheless, his Honour found that Mr Busher took part in the offences willingly and persistently.  His Honour found that Mr Busher must have appreciated, from the fact that he was offered $500 for his role, that he was being asked to pick up a valuable shipment of drugs (ts 77).

5. The learned sentencing judge noted the following mitigating factors with respect to Mr Busher (ts 78):

   (a)As with Mr Stokes, his Honour gave Mr Busher a 25% discount pursuant to s 9AA of the Sentencing Act for his pleas of guilty.  He found that the pleas of guilty not only facilitated the course of justice, but also showed remorse (ts 78). 

   (b)Mr Busher was a first‑time offender and he found that his offending was 'out of character' (ts 79). 

   (c)While he was unable to backdate the sentence to take into account the time Mr Busher had spent in immigration detention, his Honour said this was nevertheless mitigating, and that he would take it off the sentence (ts 79).   

6. His Honour was satisfied that there should be a disparity in the sentences of Mr Stokes and Mr Busher on the basis of Mr Busher's lesser culpability.  His Honour elaborated:

   In my opinion, as I've tried to make clear, Mr Stokes was a high‑level operative in the drug distribution system whereas you, Mr Busher, were a low‑level foot soldier recruited only for the day (ts 79).

7. After accurately stating the sentencing principles with respect to serious drug offending, and referring to this court's decision in Guler v The State of Western Australia [2014] WASCA 83, his Honour announced the sentences he considered appropriate.

8. With respect to Mr Stokes on counts 1 and 2, his Honour expressed the 'starting point' to be 3 years 6 months' imprisonment (ts 80).  He reduced each of the sentences for mitigating factors by one year, and then for totality by a further year.  On count 3, his Honour said that the starting point was 7 years 6 months' imprisonment, which he reduced for mitigating factors to 5 years.  After announcing that he intended to order that all of the sentences be served cumulatively, his Honour said that he had taken a last look at the sentence.  After noting that it was the same total effective sentence as that imposed in Guler, he confirmed that the total effective sentence would be 8 years' imprisonment (ts 81).

1. With respect to Mr Busher, his Honour imposed sentences of 1 year 6 months' imprisonment on each of counts 1 and 2, which, he said, had been reduced from 2 years 6 months' imprisonment for mitigating factors (ts 81 - 82).  The learned sentencing judge expressly stated that there would be 'no reduction for totality' in respect of these sentences (ts 82).  With respect to the sentence to be imposed on count 3, his Honour said that he proposed 'to allow some significant reductions for totality purposes, and for the time spent in immigration detention'; said that Mr Busher might be aptly characterised as a 'pawn' and that he had 'bitten off more than he could chew'; and concluded that Mr Busher had been 'most grievously used' by others and made to take all the risk 'for a mere $500' (ts 82). 

2. His Honour explained how he arrived at a sentence of 2 years 2 months' imprisonment for count 3 in this way:

   So the sentence there is going to be two years and two months' imprisonment.  Now, it would have been three [years] but I've taken off 10 months for the immigration detention.  So I've reduced a sentence of four and a half [years] down to three [years] and then reduced that by 10 months to two years and 10 months - sorry; it's been a long day.  Started with four and a half [years], down to three [years] for mitigatory purposes and then 10 months off for the immigration detention makes two years and two months cumulative.  Again that's required for the same reason as occurred in the Guler case.  When one looks at the overall criminality here, one has to accumulate the amount involved with each drug - or shipment (ts 82).

The submissions to this court

Mr Stokes' submissions

Ground 1 - express error

1. Mr Stokes' counsel submitted that his participation in the offences did not justify his Honour's finding that he was a 'high-level operative' and a 'high-level distributor' of illicit drugs (referred to at [34] of these reasons).  Specifically, it was submitted that, by his Honour overstating Mr Stokes' criminality, he made an express error which led to the appellant being sentenced on a more serious basis than was warranted. 

2. In reply, the State submitted that Mr Stokes' actions were important in enabling the offences in the indictment to be committed, and that the offences were committed in the context of an ongoing involvement in drug dealing.  It was submitted that it was open to his Honour to make the findings that he did, although, in oral argument, counsel for the State accepted that the usual features indicative of a high-level distributor of illicit drugs were not present in Mr Stokes' case (appeal ts 43).

Ground 2 - implied error

1. Counsel for Mr Stokes submitted that the total effective sentence imposed was, in all of the circumstances, too long, and that the totality principle required the individual sentences to have been 'at least partly concurrent' (Stokes AB 17 [42]).

2. The State submitted that, assuming ground 1 is not made out, the total effective sentence imposed on Mr Stokes was a proper reflection of his overall criminality, having regard to the nature and quantity of the drugs.  The State submitted that Mr Stokes' actions were not isolated or a one‑off, and there was a need in this case to provide a proper level of general deterrence.

Mr Busher's submissions

Grounds 1, 2 and 3 - implied error

1. Mr Busher's counsel submitted that the total effective sentence of 5 years 2 months' imprisonment infringed the totality principle because it was not a proper reflection of his low criminality and the mitigating factors applicable to him. 

Ground 4 - express error

1. Counsel for Mr Busher pointed to the sentencing remarks and submitted that, although his Honour had said that he would apply a discount for totality when sentencing him on count 3, his Honour overlooked doing so.

2. The State submitted that, absent any express error by his Honour, the total effective sentence of 5 years 2 months' imprisonment was an appropriate reflection of Mr Busher's overall criminality.  The State emphasised that, while Mr Busher had only involved himself in the offences on the day in question, he nevertheless played an important role, and that he did so persistently.

3. As we mentioned earlier, the State conceded that his Honour had made the express error now alleged on Mr Busher's behalf. 

General appellate principles

1. This court cannot intervene unless it is demonstrated that the learned sentencing judge made a material express or implied error. 

2. Ground 1 in Mr Stokes' appeal, and the newly-added ground 4 in Mr Busher's appeal, are allegations of express error. 

3. The allegations made by Mr Stokes (by his ground 2) and Mr Busher (by his grounds 1, 2 and 3) that the total effective sentences imposed on each of them infringed the first limb of the totality principle are allegations of implied error.  The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all of the circumstances of the case, including matters personal to Mr Stokes and Mr Busher.

4. In the disposition of each appeal, we will deal first with the allegations of express error.

Disposition of Mr Stokes' appeal

Ground 1 - express error

1. There is no doubt that the level of an offender's participation in a drug offence is a relevant sentencing factor.  Ordinarily, the higher the level of an offender's participation, the heavier the punishment that would ordinarily be exacted:  Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64] (Gaudron, Gummow & Hayne JJ). His Honour's findings that Mr Stokes' role in the offences was as a 'high-level operative' and a 'high-level distributor' of illicit drugs was plainly an aggravating factor. It was a matter that Mr Stokes challenged in the sentencing proceedings. Thus, before his Honour could act upon it, he needed to be satisfied that it had been proved by the State beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

2. Speaking generally, it is the experience of this court that drug dealing is a hierarchical business.  Ordinarily, a person at (or towards) the top of the hierarchy is engaged in the planning, organisation or orchestration of the offence, or the system by which the offence was committed.  It is this person who stands to gain the most from its commission.  Often, such a person takes steps to minimise their contact, and to shield their identity from those lower in the hierarchy, with a view to reducing their chances of detection by law enforcement authorities.  Those lower in the hierarchy are frequently recruited to take on riskier, but important, tasks - for example, being a courier.  While attributing a label to an offender's level in the drug hierarchy is frequently useful, it must be a label which reflects, and not deflects attention from, the offender's actual role in the commission of the offence.

3. The evidence was that Mr Stokes was asked by another to open the post box for the purpose of it being the place where illicit drugs would be sent.  The appellant opened the post box in his name and he was paid an unknown amount of money to do so.  To his knowledge, illicit drugs were delivered to the post box on a number of occasions between the time it was opened on 20 November 2013 and prior to 28 February 2014.  On these occasions, Mr Stokes attended at the Cockburn PostNet, took possession of the packages and handed them to another in return for an unknown sum of money.  The only evidence as to the number of times this happened prior to 28 February 2014 came from Mr Stokes' police interview, where he mentioned 'less than five occasions'. 

4. There is no evidence that Mr Stokes played any role in planning, organising, or orchestrating the offences the subject of this appeal.  Mr Stokes was made aware of an impending delivery to the post box.  He did not close the post box to thwart the delivery.  However, on 28 February 2014, he did not attend at the Cockburn PostNet to take delivery of the packages that had been sent.  There is no evidence that he:

   (a)organised for Mr Busher, Mr Mooney or Mr Hegarty to pick up the packages;

   (b)was not present when Mr Busher and the others attended at or near the vicinity of the Cockburn PostNet;

   (c)was neither waiting for them, nor keeping a lookout on their behalf; or

   (d)was to receive any remuneration as a result of the packages being delivered, although it may be reasonable to assume that he would have been rewarded for the use of the post box. 

5. Further, there was neither evidence that Mr Stokes had anything to do with the acquisition or sourcing of the drugs despatched to the post box, nor that he was to be involved in their ultimate sale or supply into the community.  It was not alleged that Mr Stokes stood to benefit from any such sale or supply into the community. 

6. In essence, Mr Stokes' role in the commission of the offences was to allow the post box, that he opened, to be kept open and used as the delivery point for the drugs the subject of the counts in the indictment.  He was aware of an impending delivery of illicit drugs to the post box.  Based on his record of interview, he was wilfully blind as to the nature and quantity of the drugs that were being sent to it. 

7. No doubt the enterprise in which Mr Stokes played a role involved large quantities of dangerous drugs being distributed into the community.  Mr Stokes' willing provision of a post box to which packages containing illicit drugs were sent was an important, if not crucial, link in the distribution chain.  The offending was not a 'one‑off' event or a momentary aberration.  The telephone conversation referred to by his Honour (set out in [35] of these reasons) shows that Mr Stokes was willing to sell 'speed' (although the State did not allege that the 'speed' referred to was an illicit drug the subject of the present charges).  However, as counsel for the State accepted, his conduct does not have the features consistent with him being a high‑level distributor of illicit drugs.  With great respect to his Honour, it was not open to him on the evidence to conclude that Mr Stokes was a 'high-level operative' and a 'high‑level distributor' in connection with the offences committed on 28 February 2014.  We have been persuaded that ground 1 has been made out.

8. We now turn to ground 2 of Mr Stokes' appeal. 

Ground 2 - implied error

1. This ground falls to be considered on the basis that his Honour's findings that Mr Stokes was a 'high-level operative' and a 'high‑level distributor' were correct.

2. The case law establishes that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.  The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance.  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 degree of purity is often regarded as significant.  Matters personal to an offender will almost always be of subsidiary consideration, although such matters are not completely irrelevant.

3. It is unnecessary to repeat what we have said about Mr Stokes' role in the commission of the offences.  If that offence was committed in the context of being a 'high-level operative' and a 'high‑level distributor', that heightens his criminality.

4. We have had regard to the cases on which Mr Stokes focused, namely:  Bond v The State of Western Australia [2011] WASCA 123; Pham v The State of Western Australia [2011] WASCA 244; Guler and Phan v The State of Western Australia [2014] WASCA 144. Mr Stokes' total effective sentence is broadly consistent with those authorities.

5. The most relevant mitigating factor was Mr Stokes' pleas of guilty.  The other mitigating factors identified by his Honour, including his age, do not accord much weight.

6. We have not been persuaded that, upon the premise that Mr Stokes was a high‑level drug distributor, the total effective sentence of 8 years' imprisonment infringed the first limb of the totality principle.  To the contrary, we are satisfied that it was a proper reflection of the overall criminality involved in the offences committed by Mr Stokes, viewed in their entirety and having regard to all of the circumstances, including those referable to him personally.

7. Ground 2 has not been made out.

Disposition of Mr Busher's appeal

Ground 4 - express error

1. In the sentencing of both Mr Stokes and Mr Busher, his Honour expressly distinguished between 'mitigating factors' and totality.  It appears that, by 'mitigating factors', his Honour included all matters of mitigation, including their pleas of guilty. 

2. His Honour's approach to each offence was to announce a 'starting point' and then accord specific discounts for mitigating factors, as follows. 

3. In the case of Mr Stokes, his Honour gave a further discount on each of counts 1 and 2 for totality.  No such specific discount was given for count 3.  It may be inferred that his Honour considered the discount for totality on counts 1 and 2 (which amounted to 2 years) was sufficient. 

4. In the case of Mr Busher, his Honour reduced the sentences imposed on each of counts 1 and 2 by one year to reflect 'mitigating factors', but expressly stated that there would be no discount for totality.  In respect of count 3, his Honour said that he proposed to give significant reductions (in addition to the discount given for mitigating factors) for totality and the time Mr Busher had spent in immigration detention.  However, while his Honour gave a discount for 'mitigatory purposes' and the time Mr Busher had spent in immigration detention, he said nothing about a discount for totality. 

5. A possible explanation for his Honour's omission might be that the discount of 1 year 6 months for 'mitigatory purposes' included a discount for totality. However, given the 25% discount under s 9AA of the Sentencing Act and the other mitigating factors (apart from totality) identified by his Honour, this explanation appears unlikely, particularly as his Honour had foreshadowed a significant reduction for totality.  Further, for his Honour to have included the discount for totality within the discount for 'mitigatory purposes' would be inconsistent with his approach to Mr Stokes' sentencing and his stated approach to Mr Busher's sentencing. 

6. In the circumstances, we infer that his Honour overlooked giving Mr Busher a discount for totality on count 3.  The State's concession in respect of this ground should be accepted.  The ground of appeal has been made out.

7. We now turn to the allegation that the total effective sentence imposed on Mr Busher infringed the first limb of the totality principle. 

Grounds 1, 2 and 3 - implied error

1. The question of whether the total effective sentence infringed the first limb of the totality principle should be approached from the perspective that, were it not for the time that Mr Busher had spent in immigration detention, the total effective sentence that would have been imposed was 6 years' imprisonment. 

2. Mr Busher's criminality was less than that of Mr Stokes.  Nevertheless, he willingly played an important role in the offences with a considerable degree of persistence, and was motivated by financial gain.  Without his involvement, the packages containing the illicit drugs could not have reached those who intended to distribute them into the community.  His personal circumstances were favourable.  He pleaded guilty at the first reasonable opportunity and was remorseful.  We do not overlook his offer to cooperate with law enforcement authorities in the prosecution of Mr Mooney.  We have also had regard to the comparable cases to which we referred when dealing with ground 2 of Mr Stokes' appeal.  We regard the total effective sentence imposed on Mr Busher as high, but not erroneously so.  In our opinion, Mr Busher's total effective sentence did not infringe the first limb of the totality principle. 

3. Grounds 1, 2 and 3 of Mr Busher's appeal have not been made out.

Resentencing

1. This court has all the materials necessary to resentence Mr Stokes and Mr Busher.  The offences they committed carry a maximum penalty of 25 years' imprisonment or a fine of $100,000 or both. 

2. We will deal with Mr Stokes' resentencing first. 

Mr Stokes' resentencing

1. Mr Stokes willingly opened the post box, knowing that it would be the delivery point for illicit drugs destined to be sold or supplied into the community.  He did so to make money for himself.  It is not possible to say exactly for how much money.

2. Although he cannot be punished for offences with which he was not charged, the present offences were not isolated.  Rather, they were committed in the context that the post box had been used for some months, and that he had, himself, picked up packages containing illicit drugs and handed them on.  The intercepted telephone material indicated, at least, an enthusiasm for selling drugs.

3. Despite Mr Stokes not being involved in the actual pick‑up of the packages on 28 February 2014, he was aware that the packages had been, or were to be, delivered to the post box.  The absence of precise knowledge as to the nature (or quantity or purity) of the drugs was due to wilful blindness on his part and does not afford any real mitigation.  The amount of MDMA and alpha‑PVP, particularly the latter, was substantial, recognising that the purity of the alpha‑PVP appears low.  The fact that count 2 is an attempt by reason only of the fact that the MDMA originally in the package was substituted by law enforcement authorities does not justify a lower penalty.

4. The principal mitigating factor in Mr Stokes' favour was his early pleas of guilty. Like McCann DCJ, a discount of 25% pursuant to s 9AA of the Sentencing Act should be given with respect to each offence.  We also have regard to the other mitigating factors identified by his Honour.  We specifically note Mr Stokes' age.

5. Taking into account all relevant sentencing considerations, we would, as his Honour did, resentence Mr Stokes on counts 1 and 2 to 1 year 6 months' imprisonment.  On count 3, we would sentence Mr Stokes to 3 years' imprisonment. 

6. In order to properly reflect the serious nature of Mr Stokes' overall offending, we would order that the sentences be served cumulatively upon each other.  Thus, the total effective sentence we would impose is 6 years' imprisonment.  We would make the same orders for parole eligibility and backdating as his Honour did.  We regard a total effective sentence of 6 years' imprisonment as being a proper reflection of Mr Stokes' overall criminality, taking into account all of the circumstances of the case, including those referable to him personally.

7. We now turn to Mr Busher's resentencing.

Mr Busher's resentencing

1. Mr Busher's criminality is less than that of Mr Stokes. Nevertheless, as we have already explained, the role he played in the commission of the offences was important. The most significant mitigating factor in Mr Busher's favour was his pleas of guilty. A discount of 25% pursuant to s 9AA of the Sentencing Act should be given with respect to each offence.  We also have regard to the mitigating factors identified by his Honour, including his offer to assist in the prosecution of Mr Mooney and the fact that Mr Busher had spent 10 months in immigration detention.

2. We would impose a sentence of 12 months' imprisonment on each of counts 1 and 2.  On count 3, we would substitute a sentence of 2 years' imprisonment.  In order to properly reflect the serious nature of the overall offending, we would order that the sentences be served cumulatively upon each other.  Thus, the total effective sentence we would impose on Mr Busher is 4 years' imprisonment.  We would make the same orders for parole eligibility and backdating as his Honour.

1. We have also considered issues of parity.  As Mr Busher's criminality was less than Mr Stokes', the total effective sentence he receives should be less.  In our opinion, a disparity of 2 years is a proper reflection of the differences between the cases.