SYL v The State of Western Australia

[2021] WASCA 16

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SYL  -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 16

CORAM:   BUSS P

MAZZA JA

VAUGHAN JA

HEARD:   21 DECEMBER 2020

DELIVERED          :   11 FEBRUARY 2021

FILE NO/S:   CACR 177 of 2019

BETWEEN:   SYL 

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PRIOR DCJ

File Number            :   IND XXX of XXXX

Catchwords:

Criminal law - Sentence appeal - Appellant convicted on 36 counts of selling or supplying, or offering to sell or supply, a prohibited drug, namely methylamphetamine and cannabis, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) - Three counts concerning trafficable quantity of methylamphetamine attracting life imprisonment pursuant to s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) - Whether sentencing judge erred in affording a manifestly inadequate discount for appellant's past co-operation - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(a), s 34(1)(aa), s 34(2)(a)(i)
Sentencing Act 1995 (WA), s 9AA, s 8(5)
Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	F P Merenda
Respondent	:	A L Forrester SC

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285

Baker v The State of Western Australia [2020] WASCA 117

Bazzi v The State of Western Australia [2007] WASCA 195

Cochrane v The State of Western Australia [2021] WASCA 5

DGF v The Queen [2021] WASCA 4

Gaskell v The State of Western Australia [2018] WASCA 8

HSV v The State of Western Australia [2020] WASCA 5

Kyuldzhiev v The Queen [2019] WASCA 162

Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349

McConnell v The State of Western Australia [2020] WASCA 59

Moodley v The State of Western Australia [2020] WASCA 158

Moore v The State of Western Australia [2006] WASCA 121

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

Musulin v The State of Western Australia [2020] WASCA 18

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

R v Baldock [2010] WASCA 170; (2010) 243 FLR 120

R v Ng [2012] WASCA 180

R v Salameh (1991) 55 A Crim R 384

R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151

Staiger v The State of Western Australia [2020] WASCA 99

Stipkovich v The Queen [2018] WASCA 63

SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249

Tang v The Queen [2020] WASCA 194

The State of Western Australia v Delaney [2020] WASCA 93

The State of Western Australia v Tran [2008] WASCA 183

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266

XAT v The State of Western Australia [2013] WASCA 173

YLT v The State of Western Australia [2020] WASCA 217

BUSS P & MAZZA JA:

1. This is an appeal against sentence.

2. The appellant was convicted, on pleas of guilty, of 36 counts involving drug dealing.

3. Three counts (namely, counts 17, 33 and 36) involved offering to sell or supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act). The maximum penalty for each of those offences is life imprisonment. See s 34(1)(a) of the MD Act.

4. Fourteen counts (namely, counts 1, 5, 6, 8, 9, 11, 12, 13, 14, 15, 20, 23, 29 and 34) involved offering to sell or supply a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the MD Act. The maximum penalty for each of those offences is 10 years' imprisonment or a fine of $20,000 or both. See s 34(2)(a)(i) of the MD Act.

5. Nineteen counts (namely, counts 2, 3, 4, 7, 10, 16, 18, 19, 21, 22, 24, 25, 26, 27, 28, 30, 31, 32 and 35) involved selling or supplying or offering to sell or supply a prohibited drug or drugs, namely methylamphetamine or methylamphetamine and cannabis, to another, contrary to s 6(1)(c) of the MD Act. The maximum penalty for each of those offences is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MD Act.

6. Details of the 36 offences, and the individual sentence imposed for each offence, are set out in the non-confidential schedule to Vaughan JA's reasons.

7. The individual sentences included 3 years' immediate imprisonment for count 33 (selling 55.6 g of methylamphetamine for $12,000) and 1 year 8 months' immediate imprisonment for count 36 (selling 28 g of methylamphetamine for $6,000).  Those sentences were ordered to be served cumulatively.  The individual sentences for the other counts were ordered to be served concurrently with each other and concurrently with the individual sentence for count 33.  The total effective sentence was therefore 4 years 8 months' immediate imprisonment.  A parole eligibility order was made.

8. The appellant relies upon one ground of appeal which alleges, in essence, that the discount of 20% allowed by the sentencing judge (Prior DCJ) for the appellant's cooperation with and assistance to the law enforcement authorities was manifestly inadequate.

9. We would grant leave to appeal.  However, the ground of appeal has not been made out.  The appeal must be dismissed.

The facts and circumstances of the offending and the appellant's personal circumstances

1. The facts and circumstances of the offending and the appellant's personal circumstances are set out in Vaughan JA's reasons (including the confidential schedule to his Honour's reasons).

The nature and extent of the appellant's cooperation with and assistance to the law enforcement authorities

1. The nature and extent of the appellant's cooperation with and assistance to the law enforcement authorities is set out in Vaughan JA's reasons (including the confidential schedule to his Honour's reasons).

The sentencing judge's sentencing remarks

1. The sentencing judge made the following findings in relation to the appellant and the circumstances of the offending:

   (a)At the time of the offending, the appellant was a user of cannabis.  The appellant engaged in commercial drug dealing from premises at which the appellant conducted a legitimate business.  The appellant engaged in commercial drug dealing to supplement the income the appellant received from the legitimate business.  The appellant was drawing on personal savings to pay debts of the legitimate business.  The appellant made a conscious decision to sell prohibited drugs to obtain money.

   (b)As time progressed over the seven week period of the offending,  the appellant sold or offered to sell significantly larger quantities of methylamphetamine, including trafficable amounts.

   (c)The appellant began using cannabis at the age of 13.  The appellant smoked cannabis daily for 27 years until remanded in custody for the offending in question.  The appellant had never used methylamphetamine or any other prohibited drug apart from cannabis (ts 8 - 9).

   (d)The appellant was not a person of prior good character.  The appellant's limited history of traffic and drug offences relating to cannabis reflected the appellant's longstanding use of cannabis.  The offences in question were significantly more serious than the appellant's prior offences (ts 9).

   (e)The appellant's offending was aggravated by the appellant having sold two trafficable quantities of methylamphetamine and having offered to sell a further trafficable quantity of the drug.  Also, it was an aggravating factor that the offending was not isolated but continued over a seven week period during which two different prohibited drugs were sold.  Further, it was aggravating that the appellant's drug dealing business was carried out through a legitimate business that the appellant was operating (ts 9).

   (f)Telephone intercept material indicated that the appellant was dealing with 26 different customers (ts 16).

   (g)It was mitigating that the appellant had pleaded guilty and had accepted full responsibility for the offending.  It was also mitigating that the appellant had attempted rehabilitation including through counselling (ts 9 - 10).

   (h)There was a suggestion (but no formal diagnosis) that the appellant suffered from major depression as well as anxiety and post-traumatic stress disorder.  However, his Honour was not satisfied that those matters had any significant causative effect on the appellant's offending.  Nevertheless, his Honour indicated that he would give those matters 'some weight' in sentencing (ts 10).

2. As to the appellant's cooperation with and assistance to the law enforcement authorities, his Honour made these findings:

   (a)The appellant's assistance was substantial.  The cooperation and assistance were provided after the appellant was arrested for the offending in question.  The cooperation and assistance resulted in at least 11 people being charged with offences including the sale or supply of prohibited drugs and the possession of illegal weapons.

   (b)The cooperation and assistance was 'proactive', 'self-motivated' and provided in 'good faith'.  It was demonstrative of the appellant's remorse and efforts towards rehabilitation.

   (c)However, the cooperation and assistance was not comparable to participation in a police covert operation.

   (d)The appellant had offered to assist the law enforcement authorities in the future. However, the appellant had not made any written statements to the police, nor had the appellant given an undertaking to provide evidence against anyone. His Honour's reference to 'future' cooperation and assistance arose out of debate with defence counsel at a sentencing hearing on 8 October 2019. Defence counsel accepted his Honour's characterisation of the 'future' cooperation and assistance as constituting no more than a willingness to continue to assist the law enforcement authorities in the future should the appellant be released pending sentencing for the offending in question. Accordingly, this was not a case where his Honour was required to specify the amount of any discount for future cooperation and assistance, as distinct from past cooperation and assistance, in accordance with s 8(5) of the Sentencing Act 1995 (WA).

   (e)His Honour gave the appellant's general offer of future cooperation and assistance some weight in determining the discount he would allow for the appellant's cooperation and assistance.

   (f)By the cooperation and assistance, and the general offer of future cooperation and assistance, the appellant had placed the appellant and the appellant's welfare at risk.

3. The sentencing judge allowed a 20% discount for the appellant's pleas of guilty, pursuant to s 9AA of the Sentencing Act, and allowed a further 20% discount for the appellant's cooperation and assistance.

The appellant's submissions and the State's submissions on appeal

1. The submissions made by counsel for the appellant and counsel for the State on appeal are summarised in Vaughan JA's reasons.

The merits of the ground of appeal

1. The rationale for allowing a sentencing discount for cooperation with and assistance to the law enforcement authorities is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime.  See TXT v The State of Western Australia.[1]

   [1] TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266 [28].

2. The principles to be applied in determining the nature, extent and value of an offender's cooperation with and assistance to the law enforcement authorities, and the appropriate level of any discount on his or her sentence, have been examined by this court on numerous occasions.  See, for example, Ma v The Queen;[2] Bazzi v The State of Western Australia;[3] A Child v The State of Western Australia;[4] MXP v The State of Western Australia;[5] XAT v The State of Western Australia.[6]  It is unnecessary to repeat the relevant principles.

   [2] Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349.

   [3] Bazzi v The State of Western Australia [2007] WASCA 195.

   [4] A Child v The State of Western Australia [2007] WASCA 285.

   [5] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.

   [6] XAT v The State of Western Australia [2013] WASCA 173.

3. Relevant factors to be taken into account in determining the appropriate level of any discount include:

   (a)the nature and extent of the cooperation and assistance;

   (b)whether the cooperation and assistance is genuine;

   (c)whether the offender has disclosed all of his or her relevant knowledge;

   (d)the public benefit that has resulted or is expected to result from the cooperation and assistance;

   (e)the risk or danger to the offender or his or her family and associates as a result of the cooperation and assistance; and

   (f)any hardship (including hardship in custody) which the offender may experience or is likely to experience as a result of the cooperation and assistance.

4. In the present case, the cooperation and assistance provided by the appellant to the law enforcement authorities was significant.  The appellant was a mid-level drug dealer.  The cooperation and assistance identified other people who were at a similar level in the drug dealing hierarchy.  Numerous other people were charged with various offences.  The cooperation and assistance placed the appellant and the appellant's

welfare at risk.  The appellant's cooperation and assistance could not be characterised as exceptional.  Nevertheless, the cooperation and assistance warranted a substantial sentencing discount.  There is, of course, no tariff for cooperation and assistance.  The size of any sentencing discount depends on the facts and circumstances of the particular case.

1. We are satisfied, having regard to all relevant facts and circumstances and all relevant principles, that the 20% discount allowed by the sentencing judge was within the range of a sound exercise of the sentencing discretion.  The amount of the discount was not unreasonable or plainly unjust.

2. The ground of appeal fails.

3. In any event, even if the ground of appeal had been established, we would not, upon re-exercising the sentencing discretion afresh, have imposed a different sentence. See s 31(3) read with s 31(4)(a) of the Criminal Appeals Act 2004 (WA). In our opinion, having regard to all of the relevant facts and circumstances and all of the relevant sentencing factors, the individual sentences and the total effective sentence imposed by his Honour were appropriate.

Conclusion

1. We would grant leave to appeal.  However, the ground of appeal has not been made out.  The appeal must be dismissed.

VAUGHAN JA:

Overview

1. This is an appeal against sentence.

2. In 2019 the appellant was convicted, on pleas of guilty, of 36 offences contrary to the Misuse of Drugs Act 1981 (WA). Those offences may be summarised as:

   1.Three counts of selling or supplying or offering to sell or supply a trafficable quantity of methylamphetamine[7] - the maximum penalty for these offences is life imprisonment

2.14 counts of offering to sell or supply a prohibited drug, namely cannabis[8] - the maximum penalty for these offences is one or both of a fine of $20,000 or 10 years' imprisonment.

3.19 counts of selling or supplying or offering to sell or supply a prohibited drug, namely methylamphetamine or cannabis and methylamphetamine[9] - the maximum penalty for these offences is one or both of a fine of $100,000 or 25 years' imprisonment.

[7] Counts 17, 33 and 36.

[8] Counts 1, 5, 6, 8, 9, 11, 12, 13, 14, 15, 20, 23, 29 and 34.

[9] Counts 2, 3, 4, 7, 10, 16, 18, 19, 21, 22, 24, 25, 26, 27, 28, 30, 31, 32 and 35.

1. The details of the 36 offences, and the individual sentences imposed in respect of each offence, are set out in the non-confidential schedule to these reasons.

2. The appellant was sentenced to a total effective sentence of 4 years and 8 months' immediate imprisonment.  This was made up of a head sentence of 3 years' imprisonment on count 33 (an offence of selling 56 grams of methylamphetamine) together with a cumulative sentence of 1 year and 8 months' imprisonment on count 36 (an offence of selling 28 grams of methylamphetamine).  The sentences on the 34 other counts were to be served concurrently.  The sentence was backdated to take account of time already spent in custody.  The sentencing judge ordered that the appellant be eligible for parole.

3. The appellant seeks leave to appeal against the sentence on a single ground.  In effect the appellant alleges that the sentencing judge erred in the exercise of his discretion by allowing a manifestly inadequate discount for the appellant's past co-operation and assistance.

4. For the reasons that follow there should be leave to appeal.  However, the appeal should be dismissed.  The sentencing judge's discount for the appellant's co-operation was not manifestly inadequate.  In any case, no different sentence should have been imposed.

The circumstances of the offending

1. In recounting the circumstances of the offending and the appellant's personal circumstances some circumspection is required.  More details are contained in a confidential schedule which will be provided to the parties but otherwise not be published.  In the interests of the due administration of justice it is appropriate to outline sufficient background to allow a proper understanding of the basis for the determination of the appeal while ensuring that the identity of the appellant is not readily ascertainable.

2. No issue was taken with the sentencing judge's findings as to the circumstances of the offending and the appellant's personal circumstances.  Accordingly, what follows in those two respects, both here and in the confidential schedule, is drawn substantially from the sentencing judge's remarks.

3. The sentencing judge characterised the appellant as engaging in a commercial drug dealing business.  The appellant did so as an adjunct to a legitimate retail business.  The offending was said to be not isolated.  It extended for over seven weeks.  There was a level of organisation in the appellant's offending.  The appellant engaged others to assist in the offending.

4. Police investigators intercepted communications on the appellant's mobile telephone.  The investigators identified that the appellant was selling and supplying methylamphetamine and cannabis to a number of persons.  Undercover operatives conducted a number of controlled purchases from the appellant.

5. The sentencing judge identified that:

   1.The appellant sold or supplied or offered to sell or supply a total of 174 grams of cannabis in amounts ranging from 1 gram to 28 grams.

   2.The appellant sold or supplied or offered to sell or supply a total of 160.4 grams of methylamphetamine in amounts ranging from 0.1 grams to approximately 56 grams.

6. The sentencing judge found that as time went on over the seven week period the appellant became involved in selling or offering to sell significantly larger amounts of methylamphetamine including trafficable quantities of methylamphetamine.

7. The three most serious offences were counts 17, 33 and 36.  The appellant offered to supply a person with an ounce (28 grams) of methylamphetamine for $6,000 (count 17).  The appellant sold approximately 2 ounces (56 grams) of methylamphetamine to an undercover operative for $12,000 (count 33).  The appellant sold 1 ounce (28 grams) of methylamphetamine to an undercover operative for $6,000 (count 36).  A 'trafficable quantity of methylamphetamine' is a quantity of methylamphetamine not less than 28 grams.[10]  Accordingly, these three offences concerned a trafficable quantity of methylamphetamine.

   [10] Misuse of Drugs Act s 34(1A) sch VII item 8.

1. When initially interviewed by officers of the Western Australian Police Force the appellant denied the offending.  Subsequently the appellant made full admissions.

The appellant's personal circumstances

1. The appellant is middle aged.  The appellant had a limited history of road traffic and cannabis related drug offences in the Magistrates Court.  The appellant had commenced using cannabis at 13, smoking it daily for many years until remanded in custody, but rarely drank alcohol and had never used any other prohibited drug.  Other matters relevant to the appellant's personal circumstances are addressed in the confidential schedule.

The sentencing disposition

1. The sentencing judge described the applicable sentencing principles for offences of this type in orthodox terms.  No complaint is made in that respect.  Accordingly, it is not necessary to repeat those matters.  Nor, other than to record the fact that counsel for the appellant sought that the sentencing judge either make a pre-sentence order or suspend any term of imprisonment, is it necessary to detail the sentencing judge's reasons for rejecting those sentencing options.

2. Similarly, it is not necessary to repeat the sentencing judge's reasons for deciding not to adjourn the sentencing determination.  Counsel for the appellant had suggested that adjournment for up to six months may allow the appellant to provide further assistance to the authorities.  The sentencing judge considered that the position was unlikely to alter in that time and it was not in the interests of justice to adjourn the sentencing.[11]

   [11] ts 14 - 15 WAB 102 - 103.

3. After setting out the circumstances of the offending, the sentencing judge identified some aggravating factors.  His Honour referred to the offences concerning the trafficable quantities of methylamphetamine and the quantity and purity of the methylamphetamine.  The sentencing judge also mentioned that: the offending was not isolated but rather continued over seven weeks; the offending involved two types of prohibited drugs; and the offending occurred in the context of the appellant conducting a legitimate business.[12]  His Honour also referred to the circumstance that the appellant was engaged in commercial drug dealing to obtain money[13] and there being a level of organisation in the offending behaviour.[14]

   [12] ts 9 WAB 97.  See also ts 16 - 17 WAB 104 - 105.

   [13] ts 7, 16 WAB 95, 104.

   [14] ts 16 WAB 104.

4. The sentencing judge characterised the offending as 'objectively very serious offending behaviour' with the appellant engaging in 'moderate-level drug dealing'.[15]

   [15] ts 17 WAB 105.

5. In terms of mitigating factors:

   1.The sentencing judge considered that the appellant was not a person of prior good character due to the appellant's longstanding use of a prohibited substance.[16]

   2.Insofar as the appellant had pleaded guilty, doing so at 'a reasonably early stage', the sentencing judge allowed a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA).[17]

   3.The appellant was found to have accepted full responsibility for the offending and to be genuinely remorseful.[18]

   4.The sentencing judge was satisfied that the appellant had made attempts to rehabilitate.  These included attending 18 drug and alcohol counselling sessions.  The appellant had also ceased to use drugs while on bail for the offences.[19]

   [16] ts 9 WAB 97.

   [17] ts 9, 13 WAB 97, 101.

   [18] ts 9 WAB 97.

   [19] ts 9 WAB 97.

6. The sentencing judge referred to another matter addressed in the confidential schedule.

7. The sentencing judge identified that the appellant's risk of re-offending was related to the appellant's chronic history of cannabis use and the potential to relapse into the use of cannabis.[20]  His Honour made no finding to the effect that the potential for re-offending was low.  Accordingly, personal deterrence remained a relevant sentencing consideration.  The sentencing judge referred to personal deterrence as being one of the primary considerations of the sentencing disposition together with general deterrence, punishment and rehabilitation.[21]

   [20] ts 10 WAB 98.

   [21] ts 12 WAB 100.

8. Much of the sentencing hearing was concerned with the co-operation that the appellant had provided to the law enforcement authorities after being released on bail.

9. The sentencing judge stated that the appellant's co-operation with the police was a significant or substantial mitigating factor.[22]  His Honour referred to a letter of recognition that set out what was characterised by the sentencing judge to be 'significant co-operation'.[23]  Details of the assistance, as set out in the letter of recognition, are referred to in the confidential schedule.

   [22] ts 10, 12 WAB 98, 100.

   [23] ts 10 WAB 98.

10. The letter of recognition stated that the appellant was exposed to 'low risk'.  The assistance was evaluated and determined to equate to 'Grade 2' assistance in accordance with the Joint Protocol between the Director of Public Prosecutions and the Western Australian Police Force regarding issuing and handling of Letters of Recognition.

11. Grade 2 support is described as:

    10.2.1Provided significant information on a serious criminal offence (mid to high level); and/or

    10.2.2Performed tasks to assist authorities; and/or

    10.2.3Provided a witness statement or has given/will give evidence.

12. The categorisation of the appellant's assistance as 'Grade 2' is explained by the nature of the criminal offences the subject of the appellant's information.  Those offences were at a 'mid level' rather than a 'high level'.  They represented offending that was less serious than the offending committed by the appellant and for which the appellant was to be sentenced.

13. One unusual feature of the appellant's co-operation with the authorities was that, while in the nature of intelligence, it was not simply what was already known to the appellant.  The appellant, through connections and movements throughout Perth, had identified further information and opportunities for investigation and provided that information to the police.  The sentencing judge referred to this as taking a 'proactive and self-motivated approach' when co-operating and assisting the police, but did not accept that the appellant could be equated to a police covert operative.  The appellant was not authorised by the police to carry out those additional activities.[24]

    [24] ts 11 WAB 99.

14. The appellant had agreed to assist the police in the future by continuing to provide the police with information regarding criminal activities as identified by associating with persons who had an interest in the illicit drug trade.[25]

    [25] ts 11 WAB 99.

15. The sentencing judge referred to the principles applying to an offender receiving a discount on his or her sentence by reason of co-operation.  There is no complaint of express error in his Honour's statement of the relevant principles.  Among other things, the sentencing judge said that there was no tariff for co-operation and stated that while in particular circumstances the discount may be small, in other circumstances it can be as much as 50% or even more.[26]

    [26] ts 11 WAB 99.

16. The sentencing judge concluded that:[27]

    1.The appellant had provided 'substantial' and 'valuable' assistance to the authorities.

    2.The assistance was provided voluntarily and in good faith.

    3.The assistance evidenced the appellant's remorse and positive steps towards rehabilitation.

    4.The appellant had offered to assist the police in the future.

    5.By the appellant's past assistance and agreement to assist the police in the future, the appellant's welfare and the welfare of the appellant's family had been put 'at risk' - there was a 'very real risk of retribution' with consequences for the appellant's personal safety.

    [27] ts 11 - 12 WAB 99 - 100.

17. The sentencing judge determined that he would reduce the sentence that would otherwise have been imposed by 20% on account of the appellant's past and promised future assistance.[28]

    [28] ts 12, 15 WAB 100, 103.

18. It is necessary to clarify what the sentencing judge meant by 'future assistance'. This was not a situation in which the appellant had undertaken to assist law enforcement authorities in some specific way in the future, eg by the provision of a witness statement or by giving evidence in court. Rather, the sentencing judge was referring to the appellant's more general offer to provide future assistance should further information about criminal activity become available to the appellant. Accordingly, the 'future assistance' did not engage s 8(5) of the Sentencing Act.  As the sentencing judge put it, he gave 'some weight' to the general offer of future assistance in coming to the discount figure of 20%.[29]

    [29] ts 15 WAB 103.

19. The reference to such 'future assistance' arose out of interchanges between the trial judge and counsel for the appellant at the sentencing hearing - counsel referred to the appellant being willing to continue to assist police in the future, in the same way as the appellant had in the past, should the appellant be released pending sentencing.[30]  Counsel for the appellant suggested that this could be encouraged by a pre‑sentence order[31] or a suspended sentence.[32]

    [30] ts 8 - 11, 13 WAB 49 - 52, 54.

    [31] ts 14 WAB 55.

    [32] ts 34 - 35 WAB 75 - 76.

20. The sentencing judge was satisfied that the only appropriate sentence in respect of each of the offences was a term of imprisonment.[33]  Moreover, his Honour considered it inappropriate to suspend any of the sentences: the objective seriousness of the offending called for immediate terms of imprisonment.[34]  His Honour fixed the length for the individual sentences taking into account what had been said as to the offending and the mitigating circumstances including the discount for co-operation.[35]  The sentencing judge then addressed totality and decided that the sentences for counts 33 and 36 should be served cumulatively and all other sentences served concurrently.  This resulted in a total effective sentence of 4 years and 8 months' immediate imprisonment.[36]

    [33] ts 16 WAB 104.

    [34] ts 17 - 18 WAB 105 - 106.

    [35] ts 18 - 21 WAB 106 - 109.

    [36] ts 21 WAB 109.

Ground of appeal and the parties' contentions

1. The single ground of appeal reads as follows:

   The sentencing Judge erred by allowing a manifestly inadequate discount for the appellant's past cooperation and assistance.

2. Extensive particulars were provided.  It is not necessary to reproduce the particulars as they are reflected in the appellant's submissions in support of the ground.

3. The appellant complained that the discount afforded for the assistance to the authorities was manifestly inadequate because it failed to properly reflect both the value of the assistance and the effort involved in providing it.[37]  The appellant contended that the findings made by the sentencing judge compelled a 'very substantial discount' because the co-operation was extensive, ongoing, of significant value and 'exceptional' because of the effort involved in obtaining the information.[38]  It was submitted that the appellant's actions in seeking out information as to the criminal activity of those involved in illicit drug dealing constituted a rare kind of assistance that demonstrated that the appellant's welfare had been placed at risk in co-operating.[39]

   [37] Appeal ts 2 - 3, 9 - 10; Appellant's submissions par 20 WAB 11.

   [38] Appellant's submissions par 22 WAB 12.

   [39] Appeal ts 2 - 3, 9 - 11; Appellant's submissions par 23 WAB 12.

4. It was said that, as the 20% discount included an allowance for the promised future assistance, the amount allowed for past assistance must be less than 20%.  The appellant contended that this was wholly insufficient and revealed the inadequacy of the discount.[40]  At the appeal hearing, however, counsel for the appellant accepted that there was no material future co-operation.[41]  The reference to future co‑operation was no more than the appellant's offer to provide further assistance if able to do so.[42]  As there was in fact no scope to do so, counsel for the appellant accepted that, although an allowance for future co-operation was included within the 20% discount, it must have been worth no more than a featherweight.[43]

   [40] Appellant's submissions par 25 WAB 12 - 13.

   [41] Appeal ts 3.

   [42] Appeal ts 4.

   [43] Appeal ts 4 - 6.

5. The material complaint, on appeal, was that having regard to what the appellant had done by way of past co-operation, and taking into account the promise of future co-operation, the discount of 20% was insufficient.[44]

   [44] Appeal ts 6.

6. The State submitted that the assistance provided by the appellant, although significant and worthy of a substantial discount, was not exceptional.[45]  The State referred to the nature of the assistance as information - being information that did not expose any person higher up in the drug dealing hierarchy than the appellant.[46]  The State contended that the 20% discount was a substantial discount that adequately reflected the level of assistance that had been provided by the appellant.  Moreover, once the discount was taken into account, the total effective sentence of 4 years and 8 months' imprisonment for the offending could not be said to be unreasonable or plainly unjust - meaning that in the circumstances of the present case the discount of 20% was not unreasonable or plainly unjust.[47]

   [45] Respondent's submissions par 19 WAB 27.

   [46] Respondent's submissions par 19 WAB 27.

   [47] Respondent's submissions par 20 WAB 27 - 28.

Applicable legal principles

Appellate intervention in respect of sentence

1. On countless recent occasions, without seeing the need to recite authority given that the propositions are so well established, this court has stated to the effect that:

   1.Sentencing is a discretionary exercise.  That discretion is of fundamental importance.  An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.

   2.Express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.  A ground of appeal which alleges that a sentence is manifestly excessive or manifestly inadequate asserts an implied error.

   3.In determining whether a sentence for an individual offence is manifestly excessive or manifestly inadequate, the sentence should be viewed in light of: (a) the maximum penalty for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and (d) the offender's personal circumstances.

   4.The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

   5.When an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.

2. The ground advanced by the appellant alleges implied error.  Accordingly, the appellant must demonstrate that the sentencing outcome was not open to the sentencing judge in the proper exercise of his Honour's discretion.  In alleging that the discount for co-operation was inadequate it must be shown that the exercise of the sentencing judge's discretion resulted in an outcome that was unreasonable or plainly unjust.[48]

   [48] MSO v The State of Western Australia [2015] WASCA 78 [67].

3. What might constitute an outcome that is unreasonable or plainly unjust in this context - thereby evincing some substantial wrong such that there must have been some misapplication of principle by the sentencing judge in fixing the discount - is informed by XAT v The State of Western Australia.[49]  In that case the sentencing judge allowed an offender a discount of 16.6% for his co-operation with police.  It was held that the discount was unreasonable or plainly unjust so far as, in the circumstances, a discount of not less than 30% was required in order properly to recognise the offender's assistance.[50]

   [49] XAT v The State of Western Australia [2013] WASCA 173.

   [50] XAT v The State of Western Australia [48] - [49].

4. Buss JA (Newnes & Mazza JJA agreeing) stated:

   If this court were to increase the discount from 16.6% to between 30% and 35%, this would not constitute tinkering with the primary judge's sentencing decision … a failure properly to recognise an offender's cooperation with the police reflects a failure properly to implement an important policy in the administration of criminal justice; that is, to encourage offenders to assist in the detection and successful prosecution of crime and to reward them appropriately when assistance is given.  In the circumstances, this court is entitled and bound to intervene even though there may only be a relatively small reduction in the total effective sentence.[51]

   [51] XAT v The State of Western Australia [50].

5. In XAT the successful appeal on the ground that the discount for the offender's co-operation was manifestly inadequate resulted in the total effective sentence being reduced from 5 years' immediate imprisonment to 4 years' immediate imprisonment, incorporating a reduction of 2 years for co-operation.[52]

Offence of sale or supply, or offer to sell or supply, a prohibited drug

[52] XAT v The State of Western Australia [3], [54].

1. Well‑known sentencing considerations for drug offences were outlined by Buss JA (as his Honour then was) in R v Ng:

   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 subsidiary considerations, but they are not completely irrelevant.[53]

   [53] R v Ng [2012] WASCA 180 [34]. This passage has been adopted on many times subsequently. See eg Stipkovich v The Queen [2018] WASCA 63 [28]; Kyuldzhiev v The Queen [2019] WASCA 162 [64]; Tangv The Queen [2020] WASCA 194 [116].

2. The reference to the nature and level of the offender's participation in drug dealing within a particular organisation requires additional elaboration.  The court has emphasised that it is important to recognise that the characterisation of the offender's role, where possible, must not obscure an assessment of what the offender did.[54]  An offender is sentenced not for his or her role or place in a hierarchy, but for a particular dealing with a particular drug at a particular time.[55]

Discount for co-operation

[54] Gaskell v The State of Western Australia [2018] WASCA 8 [129]; HSV v The State of Western Australia [2020] WASCA 5 [39].

[55] Moore v The State of Western Australia [2006] WASCA 121 [17].

1. The allowance of a discount in sentence as a result of an offender's  co‑operation with law enforcement agencies reflects two underlying principles:

   One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation.  The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.[56]

   [56] A Child v The State of Western Australia [2007] WASCA 285 [12] (cited with approval in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [8], [55]). See also TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266 [22], [28]; XAT v The State of Western Australia [17].

1. A substantial discount must be given and be seen to be given for significant assistance.[57]

   [57] The State of Western Australia v Tran [2008] WASCA 183 [75].

2. The public interest in encouraging offenders to co-operate with law enforcement authorities in the detection, apprehension and prosecution of crime applies with particular force in relation to offences of dealing or trafficking in prohibited drugs - drug dealing being a scourge in modern society.[58]

   [58] MXP v The State of Western Australia [64]. See also R v Salameh (1991) 55 A Crim R 384, 388.

3. It is for the sentencing judge, not the prosecutor or the law enforcement authorities, to determine the nature, extent and value of the offender's co-operation and the appropriate level of any discount on his or her sentence.[59]

   [59] MXP v The State of Western Australia [56].

4. There is no tariff for a discount for co-operation.  In some circumstances the discount may be very small.  In other circumstances it may be as much as 50% or even more.[60]

   [60] Bazzi v The State of Western Australia [2007] WASCA 195 [26]; The State of Western Australia v Tran [75] - [76]; MXP v The State of Western Australia [54]; MSO v The State of Western Australia [67].

5. The particular discount provided in any case will be determined by the sentencing judge in the exercise of the discretion conferred upon him or her having regard to all the circumstances of the case.[61]

   [61] MSO v The State of Western Australia [67].

6. In Ma v The Queen Roberts-Smith J (Steytler J agreeing) reviewed the authorities on discounts for co-operation with law enforcement agencies and summarised the principles as follows:

   1.A substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition.  That is because of the public policy consideration of encouraging criminals to do so.

   2.Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.

   3.The information or assistance does not have to have been effective in the law enforcement process,[62] although the discount will be greater where it has been.

   4.The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount.[63]

   [62] To similar effect see MXP v The State of Western Australia [9].

   [63] Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 [118] (approved in: A Child v The State of Western Australia [11]; MXP v The State of Western Australia [53]).

7. To those principles it should be added that any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should also be taken into account.[64]

   [64] A Child v The State of Western Australia [11]; The State of Western Australia v Tran [12].

8. Some of the relevant factors in evaluating the sentencing discount to be allowed for past co-operation were identified by this court in the recent decision of DGF v The Queen.[65]  DGF was a case involving a Commonwealth offence and much of the analysis was directed to s 16A(2)(h) of the Crimes Act 1914 (Cth). However, the factors identified in DGF as being relevant to past co-operation are equally relevant in the present context.  The factors to be taken into account include:

   1.The nature and extent of the co-operation - a consideration which might, in an appropriate case, encompass both quantitative and qualitative matters; for example, as to the latter, the accuracy, reliability and timeliness of any information provided by the offender.

   2.Whether the co-operation is genuine; for example, information which is knowingly false could attract no discount.

   3.Whether the offender discloses all that he or she knows - full and frank assistance will ordinarily result in a more substantial discount than partial assistance.

   4.The benefit that has resulted or is expected to result from the co-operation - ordinarily the more useful or potentially useful the information or assistance the greater the discount.

   5.The risk or danger of retributive violence to the offender or the offender's family.

   6.Hardship which the offender may be placed in or may undergo as a result of co-operation; for example, whether the offender may have to serve his or her sentence in more onerous conditions than the general prison population because he or she will be in some form of protective custody.[66]

   [65] DGF v The Queen [2021] WASCA 4.

   [66] DGF v The Queen [53].

9. There is, however, a limit on the discount that may be provided for co-operation.  In MXP v The State of Western Australia Buss JA (as his Honour then was) explained:

   It is well-established that substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies.  When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.[67]  (emphasis added)

   [67] MXP v The State of Western Australia [52]. See also TXT v The State of Western Australia [21].

10. Thus, while it is common to speak of discounts for co-operation with law enforcement agencies in terms of percentages, the court must have regard to the total effective sentence imposed after the discount. The court must ensure that the sentence is not so far out of touch with the circumstances of the offending that it constitutes 'an affront to community standards'. In short, the sentence must still meet the standard enshrined in s 6(1) of the Sentencing Act: the sentence must be commensurate with the seriousness of the offence.[68]

    [68] MSO v The State of Western Australia [69].

11. Where a separate discount is provided for a guilty plea there is less scope to provide a large reduction for assisting authorities.  There is only 'limited room to discount a sentence without going below the bottom line'[69] - that bottom line, in the present context, being a sentence that is commensurate with the seriousness of the offence.  Thus the application of one discount for one purpose may impact on the extent to which another discount can be applied to achieve a different purpose.[70]

    [69] SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [6].

    [70] DGF v The Queen [66].

Disposition: the challenge to the discount of 20% for co-operation

1. The appellant's past co-operation with law enforcement authorities provided a good basis for the appellant to receive a substantial sentencing discount.

2. The same cannot be said of the appellant's promise of future co-operation.  The promise was nebulous and - as events were likely to transpire and in fact transpired - illusory.  The appellant would not be in a position to continue to provide the authorities with assistance as had occurred in the past while serving a sentence of immediate imprisonment.  The offer of future co-operation did little more than provide additional evidence of the appellant's remorse, willingness to accept responsibility and progress towards rehabilitation.  The sentencing judge took those mitigating circumstances into account more generally as well as giving the offer of future assistance some weight in arriving at the overall discount for co-operation of 20%.  The practical reality, given the nature and effect of the promise of future co-operation, is that viewed independently any discount for that offer could only be negligible.  Accordingly, I infer that the 20% discount was attributable to the appellant's past co-operation save in a negligible respect.

3. The past co-operation provided by the appellant was valuable and deserved a substantial discount.  Relevantly:

   1.The assistance provided valuable information to the authorities in relation to ongoing criminal activity in Perth and resulted in practical outcomes in terms of the detection of crime and the apprehension of criminals.

   2.The assistance was not a one-off.  The appellant provided detailed information which resulted in multiple intelligence reports.  Based on what is recorded in the letter of recognition, I infer that the information was as to multiple offenders in different localities throughout Perth.

   3.The assistance involved unusual effort - being not merely information already known to the appellant but information which the appellant had sought out and uncovered - and in that sense was exceptional.

   4.The assistance demonstrated genuine remorse on the part of the appellant.

   5.While, in terms of the letter of recognition, it was suggested that the appellant was only exposed to a low risk, the sentencing judge found - and I accept - that it was the case that the co-operation had placed the appellant and the appellant's family at risk of retribution.  The assistance had endangered the personal safety of the appellant and the appellant's family.

4. The relevant question, however, is not simply whether the past co-operation was valuable and deserved a substantial discount.  It is whether the discount as allowed by the sentencing judge - in substance the 20% - was so unreasonable and unjust that the court must conclude that a substantial wrong has occurred.  I am not persuaded that this is the case.  Having regard to all the relevant factors I am not satisfied that there must have been some misapplication of principle on the part of the sentencing judge.  In my view the 20% discount as allowed was open in the proper exercise of the sentencing judge's discretion.

5. In forming that view, while accepting the matters recounted at [86] above, proper regard must also be had to the following:

   1.The assistance, although valuable and prolific, concerned lower level offending than the serious offending for which the appellant was being sentenced.  It was for this reason that the assistance had been assessed as 'Grade 2' assistance.  The assistance was not directed towards persons who were above the appellant in the drug dealing hierarchy;[71] nor was it directed to co-offenders[72] or offenders occupying a similar level in the illicit drug dealing trade as was formerly occupied by the appellant.

   2.The assistance was in the nature of information rather than the provision of a witness statement or an undertaking to provide evidence - in that respect there was a lesser risk that the appellant might be identified as an informant.

   3.There was no evidence that the appellant would endure onerous conditions of imprisonment as a result of the co-operation.[73]  This is acknowledged to be of significance.[74]  The authorities suggest that:[75]

   (a)combined discounts for a plea of guilty and assistance of more than 40% should be 'very exceptionally, if at all, granted' in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population; and

   (b)it should be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system; and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.

   4.The sentencing judge had already provided a 20% discount for the plea of guilty pursuant to s 9AA of the Sentencing Act.  The sentencing judge also mentioned that he viewed matters that were interconnected with the past co-operation (ie remorse, acceptance of responsibility and rehabilitation) to be relevant mitigating factors.  There was, in these respects, less scope to provide a sentencing discount for co-operation with law enforcement authorities while still ensuring that the sentence to be imposed on the appellant was commensurate with the seriousness of the offending.

   [71] As was the case in MSO v The State of Western Australia where the offender was afforded a discount of 30% in relation to past co-operation (there also being a 20% discount for an undertaking to provide future co-operation by giving evidence at trial).

   [72] As was the case in XAT v The State of Western Australia where the offender was afforded a discount of 2 years in respect of what would otherwise have been a sentence of 6 years in relation to past co-operation.

   [73] Counsel for the appellant accepted that this was the position: Appeal ts 11.

   [74] See eg DGF v The Queen [53.6], [59].

   [75] R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [124] (referring to R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 [5]). See also DGF v The Queen [59].

6. Moreover, as Martin CJ (Buss and Mazza JJA agreeing) stated in MSO v The State of Western Australia, the court must have regard to the total effective sentence imposed after the discount so as to ensure that it is not so far out of touch with the circumstances of the offending conduct that it would contravene the requirement that the sentence imposed on an offender be commensurate with the seriousness of the offence.[76]

   [76] MSO v The State of Western Australia [69].

7. The appellant's past co-operation deserved a substantial sentencing discount.  The 20% discount on the sentences that would otherwise have been imposed on the appellant equated to a reduction of 9 months' imprisonment in relation to count 33 and 5 months' imprisonment in relation to count 36, being a total reduction of 14 months' imprisonment.  In all the circumstances a total reduction of 14 months' imprisonment was a substantial reduction and sufficient to satisfy the public interest considerations that inform the provision of a sentencing discount for co-operation such as that of the appellant.  It was open to the sentencing judge, in the proper exercise of his sentencing discretion, to view the reduction as an appropriate and proper recognition of the appellant's co-operation.

8. In all the circumstances I am satisfied that the discount of 20% for the appellant's co-operation was not manifestly inadequate.  It was within the limits of a sound exercise of the sentencing discretion.  I would not infer error in terms of ground 1.

9. Ground 1 has not been established and should be dismissed.

No different sentence should have been imposed

1. In any event, in my opinion, it is not the case that different sentences should have been imposed in respect of the appellant's offending.

2. The maximum penalty for the three most serious offences - selling or supplying or offering to sell or supply a trafficable quantity of methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act when read with s 34(1)(a) of that Act - is life imprisonment. While the sentencing judge ordered that the sentences on the other offences be served concurrently, they too have substantial maximum penalties. In particular, the maximum penalty for the 19 counts of selling or supplying or offering to sell or supply a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act when read with s 34(1)(aa) of that Act is one or both of a fine of $100,000 or imprisonment for 25 years.

3. There are now a number of decisions of this court that have considered sentences imposed for drug offences involving a trafficable quantity of methylamphetamine since the maximum penalty for such offences was increased to life imprisonment.  See, for example: HSV v The State of Western Australia;[77] Musulin v The State of Western Australia;[78] McConnell v The State of Western Australia;[79] The State of Western Australia v Delaney;[80] Staiger v The State of Western Australia;[81] Baker v The State of Western Australia;[82] Moodley v The State of Western Australia;[83] YLT v The State of Western Australia;[84] and Cochrane v The State of Western Australia.[85]

   [77] HSV v The State of Western Australia [2020] WASCA 5. The relevant offending involved 977.8 grams of methylamphetamine. The offender received a 20% discount for a guilty plea. An appeal against a term of 9 years and 6 months' imprisonment was dismissed. The significantly greater quantity of methylamphetamine involved in that case means that it is not an apt comparator for the purposes of the present case.

   [78] Musulin v The State of Western Australia [2020] WASCA 18. A sentence of 7 years' imprisonment was not manifestly excessive. The offender was in possession of 178.2 grams of methylamphetamine with intent to sell or supply. He received a 25% discount in respect of a guilty plea.

   [79] McConnell v The State of Western Australia [2020] WASCA 59. The offender was in possession of 60.9 grams of methylamphetamine with intent to sell or supply. An appeal was allowed based on infringement of the parity principle. The offender was re-sentenced to 4 years and 8 months' imprisonment receiving a 15% discount for a plea of guilty. The sentence was said to be towards the 'lower end' of the range of appropriate sentences and was influenced by parity considerations: [80], [84].

   [80] The State of Western Australia v Delaney [2020] WASCA 93. The offender was in possession of 111.5 grams of methylamphetamine with intent to sell or supply. After a successful State appeal this court re-sentenced the offender to 4 years and 9 months' immediate imprisonment. There was a 25% discount for an early plea of guilty.

   [81] Staiger v The State of Western Australia [2020] WASCA 99. Ignoring, for present purposes, pre-amendment offending, the offender was in possession of 29.5 grams of methylamphetamine with intent to sell or supply. He received a 20% discount for a plea of guilty. However, the offending was aggravated by reason of the offender being on bail. An individual sentence of 3 years' immediate imprisonment, reduced from 3 years and six months for totality, was upheld as not manifestly excessive. In a subsequent decision of this court it was observed that 'the sentence could … properly be described as low': Cochrane v The State of Western Australia [2021] WASCA 5 [139].

   [82] Baker v The State of Western Australia [2020] WASCA 117. This offending involved eight offences. An appeal against sentence was allowed and the offender was re-sentenced. The offender received a 10% discount for his guilty pleas. Three offences involved a post-amendment trafficable quantity: count 5 (offer to sell 56 grams - 4 years' imprisonment to be served concurrently); count 6 (offer to sell 84 grams - 4 years and 6 months' imprisonment to be served concurrently); and count 8, the head sentence (offer to sell 448 grams - 6 years imprisonment). The offender was carrying on a commercial drug dealing business for profit.

   [83] Moodley v The State of Western Australia [2020] WASCA 158. A 22 year old offender pleaded guilty on the second day of trial to one count of offering to sell or supply 28 grams of methylamphetamine. On appeal the offender was re-sentenced to 2 years and 8 months' imprisonment. The discount afforded for the guilty plea was 5%. The application of the parity principle had a moderating effect on the sentence, which would otherwise have been higher: [29].

   [84] YLT v The State of Western Australia [2020] WASCA 217. A sentence of 4 years and 8 months' imprisonment was upheld as not manifestly excessive. The offender was in possession of 82.2 grams of methylamphetamine with intent to sell or supply. He had the benefit of youth and received a 25% discount in respect of a guilty plea. Another comparable feature with the present case was addressed in a confidential schedule.

   [85] In Cochrane v The State of Western Australia the offender was convicted, on his plea of guilty, of being in possession of 47.1 grams of methylamphetamine with intent to sell or supply. The sentencing judge allowed a discount of 25% for the plea. On appeal a sentence of 5 years and 6 months' imprisonment was upheld as not manifestly excessive. The court observed that the sentence was 'at the top' of the range of appropriate sentences: [8].

1. The primary sentencing considerations in relation to serious drug offences are general and personal deterrence.  Ordinarily, as is revealed by the authorities referred to in the preceding paragraph, following the amendments effected by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) a substantial penalty will be imposed for drug offences involving a trafficable quantity of methylamphetamine. In the present case the appellant's offending was relatively protracted, persistent and amounted to commercial drug dealing conducted as an adjunct to a legitimate business. The appellant dealt in trafficable quantities of methylamphetamine on multiple occasions for the purpose of commercial gain. In addition there were numerous instances of lesser offending.

2. In my opinion, the individual sentences of 3 years' immediate imprisonment on count 33 (involving 56 grams of methylamphetamine) and 1 year and 8 months' immediate imprisonment on count 36 (involving 28 grams of methylamphetamine) were appropriate.  No different lesser sentence should have been imposed on the appellant having regard to all relevant sentencing considerations including:

   1.The maximum penalty for the offences - life imprisonment.

   2.The facts and circumstances of the offending as previously recounted including the aggravating factors as identified by the sentencing judge.  In all the circumstances the sentencing judge was correct to characterise the offending as objectively serious offending.  The offending the subject of count 33 was broadly comparable with that in McConnell and YLT and involved a higher quantity of methylamphetamine than the offending in Cochrane.  The offending the subject of count 36 was broadly comparable with that in Staiger.  Viewed in aggregate the appellant's methylamphetamine dealings approached that in Musulin and were higher than the quantity involved in Delaney.

   3.The customary sentencing standards for this kind of offending as revealed by the authorities referred to at [95] above.

   4.The accepted importance of general and personal deterrence as sentencing considerations for offences of this kind.

   5.The appellant's personal circumstances and antecedents.

   6.The appellant's plea of guilty and the discount of 20% afforded to the appellant pursuant to s 9AA of the Sentencing Act (in respect of which there is no complaint).

   7.The appellant's past co-operation with law enforcement authorities and offer to provide future assistance to law enforcement authorities.

   8.The other mitigating factors as referred to by the sentencing judge including the appellant's remorse, acceptance of responsibility and steps towards rehabilitation.

3. Similarly, in my opinion, it was appropriate that the sentence on count 36 be served cumulatively on the sentence for count 33.  The offending on count 33 was separate and distinct from the offending on count 36.  Accumulation was warranted having regard to the extent and frequency of the appellant's offending as a whole.  It might, indeed, be thought that the sentencing judge extended some leniency in providing for the sentences on all the other counts to be served concurrently, particularly the sentence in relation to count 17 which also involved a dealing in a trafficable quantity of methylamphetamine.  The total effective sentence was 4 years and 8 months' immediate imprisonment.  No different lesser sentence should have been imposed on the appellant having regard to all relevant sentencing considerations and the matters referred to in [97] above.

4. Accordingly, even if, contrary to my opinion, the ground of appeal should be upheld, I am satisfied that the sentences imposed in relation to counts 33 and 36 and the total effective sentence are appropriate.  No different lesser sentence should have been imposed on the appellant in respect of count 33 (the sentence of 3 years' immediate imprisonment for the sale of 56 grams of methylamphetamine) or count 36 (the sentence of 1 year and 8 months' immediate imprisonment for the sale of 28 grams of methylamphetamine).  Nor should a different lesser total effective sentence have been imposed on the appellant in respect of the offending as a whole.

5. The individual sentences on counts 33 and 36, and the total effective sentence of 4 years and 8 months' immediate imprisonment, were reasonably lenient sentences and within the range open to the sentencing judge on a sound exercise of his discretion.

6. This court may, relevantly, allow an appeal if, in its opinion, a different sentence should have been imposed.[86]  However, unless a relevant condition for allowing an appeal is satisfied, the court must dismiss the appeal.[87]  As, in my opinion, it is not the case that different sentences should have been imposed, I would dismiss the appeal even if, contrary to my view, ground 1 had been established.

   [86] Criminal Appeals Act 2004 (WA) s 31(4)(a).

   [87] Criminal Appeals Act s 31(3).

Conclusion and orders

1. The ground of appeal had a reasonable prospect of succeeding.  The appellant should have leave to appeal on ground 1.  However, for the reasons given, the ground should be dismissed.  It follows that the appeal must be dismissed.

2. I would make orders that:

   1.The appellant is granted leave to appeal on ground 1.

   2.The appeal is dismissed.
   

Schedule of Offences and Sentences

A.Sale or supply, or offer to sell or supply, a trafficable quantity of methylamphetamine (being a prohibited drug) contrary to s 6(1)(c) of the Misuse of Drugs Act as read with s 34(1)(a) of that Act (maximum penalty of life imprisonment):

Count	Summary	Sentence	(Concurrent/Cumulative)
17.	Offer to supply 28 grams of methylamphetamine for $6,000	2 years' imprisonment	Concurrent
33.	Sold 56 grams of 71% pure methylamphetamine for $12,000	3 years' imprisonment	Head sentence
36.	Sold 28 grams of methylamphetamine for $6,000	1 year 8 months' imprisonment	Cumulative

B.Offer to sell or supply a prohibited drug, namely cannabis, contrary to s 6(1)(c) of the Misuse of Drugs Act as read with s 34(2)(a)(i) of that Act (maximum penalty of one or both of a fine of $20,000 or imprisonment for 10 years):

Count	Summary	Sentence	(Concurrent/Cumulative)
1.	Offer to sell or supply 3 grams of cannabis	1 month imprisonment	Concurrent
5.	Offer to sell or supply 3 grams of cannabis	1 month imprisonment	Concurrent
6.	Offer to sell or supply 14 grams of cannabis	3 months' imprisonment	Concurrent
8.	Offer to sell or supply 7 grams of cannabis	2 months' imprisonment	Concurrent
9.	Offer to sell or supply 28 grams of cannabis	4 months' imprisonment	Concurrent
11.	Offer to sell or supply 7 grams of cannabis	2 months' imprisonment	Concurrent
12.	Offer to sell or supply 28 grams of cannabis	4 months' imprisonment	Concurrent
13.	Offer to sell or supply 3 grams of cannabis	1 month imprisonment	Concurrent
14.	Offer to sell or supply 1 gram of cannabis	1 month imprisonment	Concurrent
15.	Offer to sell or supply 28 grams of cannabis	3 months' imprisonment	Concurrent
20.	Offer to sell or supply 3 grams of cannabis	1 month imprisonment	Concurrent
23.	Offer to sell or supply 7 grams of cannabis	1 month imprisonment	Concurrent
29.	Offer to sell or supply 14 grams of cannabis	3 months' imprisonment	Concurrent
34.	Offer to sell or supply 7 grams of cannabis	2 months' imprisonment	Concurrent

C.Sale or supply, or offer to sell or supply, a prohibited drug, namely methylamphetamine or cannabis and methlyamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act as read with s 34(1)(aa) of that Act (maximum penalty of one or both of a fine of $100,000 or imprisonment for 25 years):

Count	Summary	Sentence	(Concurrent/Cumulative)
2.	Offer to supply 0.5 grams of methylamphetamine	3 months' imprisonment	Concurrent
3.	Offer to supply 0.2 grams of methylamphetamine for $100	1 month imprisonment	Concurrent
4.	Offer to supply 0.1 grams of methylamphetamine	1 month imprisonment	Concurrent
7.	Offer to supply 0.1 grams of methylamphetamine and approximately 3 grams of cannabis	1 month imprisonment	Concurrent
10.	Offer to supply 0.1 grams of methylamphetamine	1 month imprisonment	Concurrent
16.	Offer to supply 14 grams of methylamphetamine for $3,000	18 months' imprisonment	Concurrent
18.	Offer to supply 7 grams of methylamphetamine for $1,400	10 months' imprisonment	Concurrent
19.	Offer to supply 1.75 grams of methylamphetamine for $600	4 months' imprisonment	Concurrent
21.	Sale of 0.5 grams of methylamphetamine and 2 grams of cannabis for $350	3 months' imprisonment	Concurrent
22.	Offer to supply 1.75 grams of methylamphetamine for $800 and 3.5 grams of methylamphetamine for $1,000	8 months' imprisonment	Concurrent
24.	Offer to supply 0.1 grams of methylamphetamine and 1 gram of cannabis	1 month imprisonment	Concurrent
25.	Sale of 3.5 grams of methylamphetamine at 75% purity for $1,000	8 months' imprisonment	Concurrent
26.	Offer to supply 3.5 grams of methylamphetamine for $900	8 months' imprisonment	Concurrent
27.	Sale of 3.5 grams of methylamphetamine for $1,000	8 months' imprisonment	Concurrent
28.	Supply of 0.12 grams of methylamphetamine at 80% purity as a sample	1 month imprisonment	Concurrent
30.	Offer to supply 0.2 grams of methylamphetamine and 1 gram of cannabis	2 months' imprisonment	Concurrent
31.	Offer to supply 7 grams of methylamphetamine for $1,600	10 months' imprisonment	Concurrent
32.	Offer to supply 1 gram of methylamphetamine for $500	4 months' imprisonment	Concurrent
35.	Offer to supply 14 grams of cannabis and 0.1 grams of methylamphetamine for $250	5 months' imprisonment	Concurrent

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OE

Associate to the Honourable Justice Vaughan

11 FEBRUARY 2021