Tanner v The State of Western Australia - [2013] WASCA 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TANNER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 142

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 21 MARCH 2013

DELIVERED : 7 JUNE 2013

FILE NO/S: CACR 179 of 2012
CACR 181 of 2012

BETWEEN: MICHAEL BRIAN TANNER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :McCANN DCJ
File No  :IND 1657 of 2011

Catchwords:

Criminal law - Appeal against conviction - Supplying a prohibited drug to another - Whether the trial judge failed fairly or adequately to address the defence case in his summing up - Whether the trial judge made statements in his summing up that were unsupported by the evidence - Whether the trial judge was bound to direct the jury about evidence that was allegedly more prejudicial than probative - Whether comments by the trial judge in the presence of the jury panel created a reasonable apprehension of bias by the judge towards the accused

Criminal law - Appeal against sentence - Sentence of 9 years' imprisonment - Whether the sentencing process was unfair - Whether the trial judge imposed a sentence based wholly or partly on material not disclosed in open court - Parity principle - Whether it was open to the trial judge to be satisfied beyond reasonable doubt as to various aggravating factors - Manifest excess

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Procedure Act 2004 (WA), s 112
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 11(a), s 32A(1)(b), s 34(1)(a), sch V, sch VII
Sentencing Act 1995 (WA), s 6, s 15

Result:

CACR 179 of 2012
Extension of time to appeal granted
Leave to appeal on grounds 2, 3 and 4 refused
Appeal dismissed

CACR 181 of 2012
Extension of time to appeal granted
Leave to appeal on grounds 1 and 3 granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J McGrath SC

Solicitors:

Appellant: Marc G Saupin Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Bahn v The State of Western Australia [2008] WASCA 40
Benter v The State of Western Australia [2005] WASCA 245
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Carroll v The State of Western Australia [2004] WASCA 254
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Coombs v The Queen (1996) 88 A Crim R 273
Delovski v The Queen [2002] WASCA 88
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274
Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140
Galbraith v The State of Western Australia [2011] WASCA 70
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jardim v The State of Western Australia [2011] WASCA 83
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522
Koncurat v The State of Western Australia [2010] WASCA 184
Lai v The State of Western Australia [2012] WASCA 181
Law v The State of Western Australia [2009] WASCA 193
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Monument v The State of Western Australia [2007] WASCA 239
Neumann v The State of Western Australia [2013] WASCA 70
Pham v The State of Western Australia [2011] WASCA 244
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Chandler [2012] NSWCCA 135
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pan [2005] NSWCCA 114
R v Storey [1998] 1 VR 359
R v Taudevin [1996] 2 VR 402
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Sabau v The State of Western Australia [2010] WASCA 3
Stapleton v The Queen [2004] WASCA 130
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104
The State of Western Australia v JWRL (a child) [2010] WASCA 179
The State of Western Australia v Toothill [2007] WASCA 236
Tomov v The Queen [2011] WASCA 189
Urbano v The State of Western Australia [2006] WASCA 147
Walsh v The State of Western Australia [2011] WASCA 119

Table of Contents

Martin CJ's reasons................................................................................................................. 5
Buss JA's reasons...................................................................................................................... 6
The State's case at trial
The defence case at trial
Appeal against conviction: the grounds of appeal
Appeal against conviction: ground 1
Appeal against conviction: ground 2
Appeal against conviction: ground 3
Appeal against conviction: ground 4
Appeal against conviction: conclusion
Appeal against sentence: the grounds of appeal
Appeal against sentence: ground 1
Appeal against sentence: ground 3
Appeal against sentence: ground 4
Appeal against sentence: ground 2
Appeal against sentence: conclusion
Mazza JA's reasons................................................................................................................ 55

MARTIN CJ: Each of the appeal against conviction and sentence should be dismissed for the reasons given by Buss JA, with which I agree. I will, however, add some observations of my own in relation to the appeal against sentence.
The passing of sentence on a convicted offender is an important occasion for the offender, any victim of the crime, the community and the court. When passing sentence, the court exercises the powers conferred upon it by the legislature to punish those who have transgressed the laws which govern the behaviour of all within the community. Sentencing proceedings should always be undertaken with a degree of formality and solemnity which is appropriate to the occasion.
It is important that the process enable the offender, any victim of the offence, any interested member of the public, and any appellate court to understand the reasons why the particular sentence has been imposed, and to appreciate that all relevant aggravating and mitigating circumstances, and all material considerations have been taken into account by a fair and impartial judicial officer who has not been affected by extraneous or irrelevant considerations or by personal idiosyncrasy. Community confidence in the judicial process requires that judicial officers exercise the power to pass sentence with a dignity and decorum which appropriately reflects the solemnity and importance of the occasion. In this case, on a number of instances identified in the reasons of Buss JA, and in other instances which it is unnecessary to catalogue, the sentencing process fell short of the objectives to which I have referred.
As Buss JA points out in his reasons, assumptions made by his Honour with respect to the methods of operation of those engaged in trafficking in illegal drugs which were unsustained by the evidence before him contributed to him making an erroneous finding with respect to the place which Mr Tanner occupied in the hierarchy relating to the sale of the drugs in question.
At the time his Honour came to pass sentence, his language was more temperate and restrained than that used during the hearing. Although, as Buss JA has pointed out, his Honour made errors of fact in the course of his sentencing remarks, I agree with Buss JA that despite the shortcomings to which Buss JA has referred, a fair‑minded reasonable observer would not have concluded, after sentence had been passed, that his Honour had failed to bring an impartial mind to bear upon the question of the sentence appropriately passed, or to take account of all relevant considerations and to exclude extraneous and irrelevant considerations.

On the subject of parity, I note that the judge passing sentence on Truslove did not specify the precise amount of the discount which had been provided for his early plea of guilty (as the Sentencing Act 1995 (WA) did not then require the discount to be specified as it does now (s 9AA(5))). It is therefore possible that the discount for a fast‑track plea of guilty may have been as high as 33%, which applied to the sentence of 5 years imprisonment imposed would result in a sentence comparable to that imposed on Mr Tanner without an early plea of guilty of 7.5 years imprisonment. Having regard to the fact that Mr Tanner was undoubtedly higher that Mr Truslove in the hierarchy of this particular illegal drug network, the difference between the sentences imposed upon the two cannot be said to be such as to give rise to a marked or clearly unjustifiable difference so as to give rise to a legitimate sense of grievance on the part of Mr Tanner.
For these reasons, I concur with the view that the appeal against sentence should be dismissed. I would also observe that if I had decided that the sentence imposed by his Honour should be set aside and the sentencing discretion exercised afresh, I would not have imposed any different sentence to that imposed by his Honour.
BUSS JA: On 29 June 2012, the appellant was convicted, after a trial in the District Court before McCann DCJ and a jury, on one count in an indictment.
The count alleged that on 2 August 2011, at Leederville, the appellant supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act).
The appellant allegedly supplied the methylamphetamine to Paul Christopher Truslove. The quantity was 428 g with a purity of 42%.
On 4 July 2012, the trial judge sentenced the appellant to 9 years' imprisonment. The sentence was backdated to 29 June 2012, when the appellant was taken into custody for the offence. A parole eligibility order was made.
Mr Truslove was charged, on a separate indictment, with possession of the methylamphetamine in question, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act. He entered a fast‑track plea of guilty.

On 10 February 2012, Wisbey DCJ sentenced Mr Truslove to 5 years' immediate imprisonment with eligibility for parole.
The appellant has applied to this court for an extension of time to appeal against conviction and sentence.

The State's case at trial

The State's case at trial was circumstantial in nature. It was, relevantly, as follows.
The prosecutor called Detective Sergeant Richard Green as a witness. Detective Green gave evidence that on 21 June 2011 he had commenced an investigation of Mr Truslove, who was a suspected drug dealer. As part of the investigation, between 7 July 2011 and 2 August 2011 the police lawfully intercepted Mr Truslove's telephone calls and viewed text messages he sent and received.
On 18 July 2011, Mr Truslove received a text message from a mobile telephone which belonged to the appellant, but was registered in a false name. The message referred to 'routers'. A computer 'router' is a computer networking device.
On 1 August 2011, Detective Green saw a person, later identified as the appellant, attend Mr Truslove's home. The appellant entered the premises through the garage. He departed about three minutes later and drove away in the motor vehicle in which he had arrived.
On 2 August 2011, the vehicle in which the appellant had travelled to and from Mr Truslove's home on 1 August 2011 was seen again at Mr Truslove's home. The prosecutor tendered photographs of the vehicle and the male driver. This person was observed carrying an item into Mr Truslove's home and leaving about 18 minutes later without the item. The State alleged that this person was the appellant and that he had delivered a large quantity of methylamphetamine. On the previous day, 1 August 2011, he had allegedly delivered a sample of the drugs to Mr Truslove.
About 30 minutes after the appellant's visit to Mr Truslove's home on 2 August 2011, a text message was sent from Mr Truslove's mobile telephone to the appellant's mobile telephone at about 12.59 pm. The message read, 'Hey mate, is that the right router? It's dropping out and shit. Not real flash' (ts 64).
Text messages in response were sent from the appellant's mobile telephone to Mr Truslove's mobile telephone on 2 August 2011 at between 3.09pm and 5.33 pm, including:
(a)On four occasions, 'Exact copy. No change in config'.
(b)'Can discount by 500 for each unit or will return to shop no problem. They have clients waiting to purchase'.
(c)'Hi mate, what do you want me to do?' (ts 65 ‑ 67).
Numerous text messages passing between Mr Truslove and the appellant referred to 'routers'. The State alleged that 'routers' was a code word for the drugs which the appellant was selling or supplying.
Defence counsel put to Detective Green in cross‑examination that any one of several drug dealers with whom Mr Truslove had been in contact could have put the methylamphetamine in question in Mr Truslove's home. Detective Green accepted that proposition.
Defence counsel also put to Detective Green that methylamphetamine having a purity of 44% [sic] was not, by ordinary drug user standards, 'shit' (ts 120 ‑ 121). Detective Green agreed. The point of this cross‑examination was that the references in the text message about a 'router' being 'not real flash', and otherwise unsatisfactory, would not apply to the drugs in question.
Later on 2 August 2011, the police executed a search warrant at Mr Truslove's home. Detective Green entered the premises and saw Mr Truslove throw the crystal‑like contents of a bowl he was holding across the room. The substance was recovered by the police and sent for chemical analysis. It comprised 428 g of methylamphetamine with a purity of 42%. Other items seized by the police from Mr Truslove's home included other (smaller) quantities of methylamphetamine, MSM powder, electronic scales, an implement for smoking methylamphetamine and three computer routers (ts 79 ‑ 84, 94 ‑ 95). The other (smaller) quantities of methylamphetamine included 4.1 g with a purity of 73% found in a clipseal bag on a desk in Mr Truslove's study (ts 80).
On 2 and 3 August 2011, the police executed a search warrant at the appellant's home. A diary was seized. This contained a list of numbers followed by the letters 'oz' (an abbreviation for ounce). What appeared to be monetary amounts were written underneath, and the amounts were totalled. Detective Green gave evidence that the diary contained a 'tick list'; that is, details of people who had bought drugs on credit from the appellant and the amounts they owed him for the drugs (ts 91 ‑ 93).
The police located on the appellant's person the mobile telephone which had sent and received the text messages to and from Mr Truslove (ts 97‑ 99).
The police found drugs at the appellant's home. He had on his person 0.7 g of methylamphetamine with a purity of 7% and 2.78 g of methylamphetamine with a purity of 37%. In a shed at the appellant's home were 0.47 g of methylamphetamine with a purity of 55% and 0.4 g of methylamphetamine with a purity of 8%.
The police located smoking implements in the shed at the appellant's home. Detective Senior Constable Bradley Marron gave evidence that there were about seven implements (ts 259). He also said that there was a CCTV camera monitoring the shed (ts 226 ‑ 227).
Senior Constable Melissa Ellery of the Dog Squad gave evidence. She is a drug dog handler. On 2 August 2011, she participated in the search of the appellant's home with a police dog called Bella. The dog was trained to locate the odour of illicit drugs. Constable Ellery gave evidence that Bella had shown interest in a computer bag and a desk (both of which were in the appellant's study) and in one of the cupboards in the main bedroom (ts 290). Bella did not, however, show interest in the shed (ts 291).
A large amount of cash (about $27,000 in total) was found by the police at the appellant's home.
Mr Oliver Locos, a chemist employed in the forensic science laboratory at the Chemistry Centre, gave evidence that he had examined four samples of methylamphetamine found at the appellant's home and two samples of methylamphetamine seized from Mr Truslove's home. He said all of the samples, excluding the sample found on the desk in Mr Truslove's study, were similar in appearance. Five of the samples contained some procaine and cocaine, together with other dilutants. He had seen this feature in illicit drugs on less than 20 occasions in the course of analysing thousands of illicit drug samples. This common feature in five of the samples indicated that they had been diluted in a similar manner. The significantly different purity levels in some samples indicated that, although they may have been handled in the same manner, they were produced from two different synthetic reactions or batches. The minor differences in purity between the 2.78 g sample found on the appellant's person (37%) and the 428 g sample retrieved from Mr Truslove's floor (42%) could be explained by the margin for error in the drug analysis process. Mr Locos concluded that the 2.78 g sample found on the appellant's person and the 428 g sample retrieved from Mr Truslove's floor were likely to have come from the same synthetic batch (ts 188 ‑ 189). The other samples had been handled in a very similar fashion, but may have come from different batches.
Detective Marron conceded, in cross‑examination, that the police did not find any procaine, cocaine, cutting agents or clipseal bags at the appellant's premises. Digital scales were found, but not seized. Detective Marron acknowledged that a box of invoices was located, but the invoices were not examined. Defence counsel suggested that the invoices provided an innocent explanation for the large amount of cash found at the house. Detective Marron said it was less likely that the police would find clipseal bags with people who were higher in the drug dealing hierarchy because these people dealt in large amounts of drugs which did not need to be rebagged or repackaged. He said that the cutting or dilution of drugs was usually carried out by lower level drug dealers (ts 281).
First Class Constable Peter Yorke, of the Computer Crime Squad, gave evidence about the use to which computer routers are put. He said that a reliable router will normally cost between $100 and $150. In cross‑examination, he gave evidence that the statement, 'Hey mate, port 8 failed on me router', in a text message sent by Mr Truslove to the appellant, appeared to refer to a router that had at least eight ports, one of which was not working (ts 309). Constable Yorke said that an expensive router for a home computer would cost about $150. As to the text message from the appellant to Mr Truslove which stated, 'Can discount by 500 for each unit or will return to shop no problem. They have clients waiting to purchase', Constable Yorke said the router would have to be quite expensive in the first place and that computer shops generally would not stock expensive routers (ts 312). Also, Constable Yorke said that, in his experience, a computer retailer would not normally think about reselling a faulty router.
Gary Bloom, a computer expert, gave evidence about the price and availability of computer routers. He said, in a statement read to the court, that a 'top‑shelf router [with] eight ports would be worth around $300' (ts 212) and that the 'potential price range for a top‑of‑the‑range 4‑port router would be $400' (ts 213). Mr Bloom said that routers are not highly sophisticated and that if a port on a router failed, '99% of the market would just replace the router' (ts 213). As I have mentioned, a text message sent by the appellant to Mr Truslove said that he would discount 'by 500 for each unit'. Mr Bloom gave evidence that he could not think of 'any reason [why he] would discount a router by $500 … as [he] would be giving the customer a router and money, which would not make sense' (ts 213).

On 2 August 2011, while the police were searching his home, the appellant participated in video‑recorded interviews with the police. The appellant said, relevantly:
(a)He did not have 'any large amounts of money' at his home (blue and green AB 68).
(b)He usually smoked the methylamphetamine he used (blue and green AB 74).
(c)He had about three or four pipes for smoking methylamphetamine in the shed at his home (but a couple of those were broken) (blue and green AB 74).
(d)Although he had two mobile telephones, one of them (being the mobile telephone which had sent and received the text messages to and from Mr Truslove) had been found by his daughter at the front of his home that morning. His daughter had given it to him and he had put it in his pocket. He was intending to try and locate the owner of the telephone. He had not sent any text messages on the telephone and he had not looked at any text messages received on it. He had not made or received any telephone calls on it (blue and green AB 78 ‑ 79, 100 ‑ 101).
(e)He did not know a man by the name of Paul Truslove. He did know a man called Paul, with curly hair and a beard, but he did not know his surname. He had done some information technology work for Paul (blue and green AB 91).

The defence case at trial

The appellant gave sworn evidence in his defence at trial.
The defence case was that the appellant's contact with Mr Truslove was neither sinister nor related to drugs. They had a business relationship which concerned computers. The communications between them were not in code, but related genuinely to computing.
The appellant gave evidence that he was an information technology specialist and operated two businesses, Flex IT Consultants and Enigma Automated Trading Systems, from his home. These businesses were profitable and he had anticipated making a profit of about $80,000 in the financial year ending 30 June 2012. He visited clients at their homes and usually requested them to have a cheque or cash available for payment.
The appellant said he knew Mr Truslove through his work with information technology. According to the appellant, Mr Truslove was a 'high‑end gamer' who had good equipment that required a quality connection and configuration (ts 332). The appellant had been providing Mr Truslove with information technology services since April 2011. Mr Truslove required routers for his gaming hobby and he was having difficulties with them (ts 333 ‑ 335). The appellant said he did not know that Mr Truslove used methylamphetamine (ts 361).
On 1 August 2011, when he visited Mr Truslove's home, the appellant gave Mr Truslove instructions on a piece of paper about setting up a drop‑box account. The appellant had to leave after a few minutes to assist his partner with their children, but he planned to return the next day to resolve Mr Truslove's computer network problem (ts 338 ‑ 339).
On 2 August 2011, the appellant returned to Mr Truslove's home. He 'ran a couple of tests on an MTU problem that … [he] thought was causing his issues' (ts 339). The appellant added that he 'managed to quickly fix that', but Mr Truslove continued to complain (ts 339). The appellant said Mr Truslove 'was always complaining to [him] about [wanting his computer connection speed] faster, faster, faster' (ts 339).
As to Mr Truslove's text message sent on 2 August 2011 at about 12.59 pm, which read, 'Hey mate, is that the right router? It's dropping out and shit. Not real flash', according to the appellant Mr Truslove was complaining to him about 'these latency, lag issues' with his computer (ts 351).
As to the appellant's text message sent on 2 August 2011 at about 3.13 pm, which read, 'Can discount by 500 for each unit or will return to shop. No problem. They have clients waiting to purchase', according to the appellant he was offering Mr Truslove a $500 discount on an amount of $2,400 owing by Mr Truslove to him in relation to a number of other matters (ts 351 ‑ 352).
When he was arrested on 2 August 2011, the appellant admitted having a small quantity of methylamphetamine on his person. He said in evidence that the other methylamphetamine found in his shed must have been small amounts that he had misplaced or forgotten (ts 347).
The appellant admitted in evidence that he had lied to the police about his daughter having found the mobile telephone that he had been using to communicate with Mr Truslove. He told the lie because he was petrified that his partner would find out that he was using drugs again (ts 345 ‑ 346, 393).
The appellant asserted that he had initially told the police that there were not any large amounts of money at his home because he was confused and panicking. He said that in this state he forgot about the $27,000 cash (ts 371 ‑ 372).
The appellant admitted having told the police that he did not know Mr Truslove's surname. He insisted that this was not a lie because at the time he could not recall Mr Truslove's surname. He usually referred to him as 'Paulie' (ts 400).
The appellant gave evidence that he had cash in a safe at his home. He had taken some cash from the safe on 1 August 2011 to pay his mortgage and some other accounts. He became distracted, however, and as a result he had put this cash on a shelf above the safe. He intended to retrieve the cash and give it to his partner to enable her to pay the accounts (ts 348).
The appellant offered an explanation for the large amount of cash in his possession. He said it represented a redundancy payment he received upon leaving his last corporate IT position and the sale proceeds of his partner's motor vehicle (ts 348). According to the appellant, he and his partner decided to keep some of the money at home because of the 'financial upheavals' in the world (ts 348).
The appellant said in evidence that there were smoking implements in the shed at his home because building contractors had come to his house earlier that year and several of them smoked methylamphetamine (ts 354 ‑ 355). However, in cross‑examination he admitted that he smoked methylamphetamine with a pipe and that he smoked the drug in his shed 'all the time' (ts 361 ‑ 362, 373).
As at August 2011, the appellant was the sole breadwinner for his family (ts 356). His relationship with his partner had broken down previously because of his drug use, but they had reconciled and were together in August 2011. He used methylamphetamine to remain awake when he was working extremely long hours. As at August 2011, he was using about 3 g of methylamphetamine a week (occasionally more) (ts 363).
The appellant said that his drug suppliers were Sean Walsh, who was arrested by the police during the week before 2 August 2011, and a person identified only as AM (ts 363 ‑ 367).
According to the appellant, he had never sold drugs (ts 386).
Defence counsel cross‑examined Detective Green about other text messages intercepted by the police which had been sent to Mr Truslove's mobile telephone.
There were pleasant text messages sent by the appellant, for example 'Fancy a beer, mate?' and 'Mate, you still want me to pop over for a drink? Remember I'm away for two days from tomorrow' (ts 118).
By contrast, Mr Truslove had received threatening and abusive text messages from a mobile telephone which had a number ending with 833 (telephone 833). For example, the following messages were sent from telephone 833 to Mr Truslove's telephone on or about 6 August 2011:
(a)'So you cunts spent the night gossiping about me, did you. I'm going to make the lot of you fucking piss, you pack of dead cunts. You should have been better people.'
(b)'I'm going to make sure that fat cunt hurts big time. Not sure what I'll do about you yet but don't think the cops will be your biggest worry. Tell your fat fuckhead mate I want my dogs back and I will get them, whatever it takes. Hell hath no fury, fuckers.'
(c)'Thought you didn't hang out with that fat cunt anymore. You fucking lied to me again. I got hauled into [the] fucking cop shop this week because of you. You are both worthless pieces of shit and I hope you fucking fry. Don't contact me again.'
(d)'Call me ASAP. Cops pulled me in this morn. All about Second Av. Have been there all day.' (ts 130 ‑ 134, 146 ‑ 147)
Detective Green said he understood telephone 833 belonged to, and the text messages had been sent by, a woman (ts 144). He also said he understood there had been a dispute between Mr Truslove and the woman about a house in Mount Lawley (ts 145). The police believed that the house had been acquired by Mr Truslove with the proceeds of crime and that the woman was his associate and a 'front' for him (ts 148). Defence counsel put to Detective Green that 'what's gone wrong for this woman is a drug deal involving a lot of drugs' and that 'explains the language' (ts 150). Detective Green responded, 'Well, it could be, that's correct' (ts 150).
Defence counsel relied on the content of the text messages sent from telephone 833 to Mr Truslove, and his cross‑examination of Detective Green in relation to those messages, to suggest that the person who sent the text messages may have been the owner of the methylamphetamine in question and may have delivered it to Mr Truslove's home.

Appeal against conviction: the grounds of appeal

The appellant relies on four grounds in his appeal against conviction.
Ground 1 alleges that the trial judge failed fairly, further or alternatively adequately, to address the defence case in his summing up, and as a result a miscarriage of justice occurred.
Ground 2 alleges that his Honour referred in his summing up to the quantity of the drug in question as 'an amount being trafficked by high level dealers' (ts 538), when the expert evidence did not, and could not, support that statement, and as a result there was a miscarriage of justice.
Ground 3 alleges that his Honour failed specifically to direct the jury about evidence 'that was far more prejudicial than it was probative', and as a result a miscarriage of justice occurred.
Ground 4 alleges that his Honour made a comment, in the presence of the jury panel, which revealed 'possible bias' by his Honour towards the appellant.
Initially, the appellant relied on a fifth ground of appeal but this ground was abandoned in a letter dated 11 March 2013 sent by a legal representative of the appellant to the Court of Appeal Registrar.
On 10 November 2012, Mazza JA granted leave to appeal on ground 1 and referred the application for an extension of time and for leave to appeal on the other grounds to the hearing of the appeal.

Appeal against conviction: ground 1

The appellant asserts in ground 1 that the trial judge failed fairly, further or alternatively adequately, to address the defence case in his summing up.
Counsel for the appellant submitted that explanations, consistent with innocence, relating to:
(a)the methylamphetamine found in the appellant's shed;
(b)the amount of cash found at the appellant's home; and
(c)the relationship between the appellant and Mr Truslove,
were not adequately addressed by his Honour.
During his summing up, the trial judge summarised the defence case, as follows:
[The appellant] tells you that he had a bad methylamphetamine habit at the relevant time, but was not a supplier or a dealer. And he says this is evidenced by the drugs found [by] the WA Police at his place. He says he's never hidden that, never hidden the fact from the police that he was a drug user. He says he's not a drug dealer.
He says he used Sean Walsh and this other person AM as his suppliers. He says the 2.8 grams came from Walsh. He says that the dealings by text or in person with Truslove all had to do with [his] IT consultancy and Truslove's high-level computer gaming needs and occasionally purely social purposes.
He says the unusual hours of these communications and visits are explicable by their mutually unusual working habits. He says that all texts and phone calls relate to these legitimate matters and there's nothing sinister about them. He says he did not supply Truslove with the drugs on 2 August or at any other time. He says he called in on 2 August to sort out an issue of latency or lag and he might have dropped off a card with some instructions on it, although he also thinks that might have been the day before.
He says that the texts after he left relate to Truslove's ongoing complaints about his router connection speeds. He says he was fed up and he offered Truslove a discount of $500 a unit just to break the Gordian knot, as it were, just to shut the bloke up and get rid of him.
He says the lies to the police were told because he was panicking, that they'd threatened him and he was obsessing about keeping his wife out of the loop and her not knowing that he was still doing drugs. He says he just wasn't thinking clearly enough and the main thing he wanted to do was just make sure his wife didn't find out. He says he used the Nokia phone for his legitimate business dealings with Truslove, even though the Nokia was part of his secret life, because Truslove was on his wife's list of people who were persona non grata.
It is submitted by [defence counsel] on his behalf that anyone could have supplied Truslove with the drugs that the police found. He was a dealer and in contact with numerous people in addition to [the appellant]. He says there's no forensic evidence, such as fingerprints or DNA, linking … [the appellant] to any of the evidence at Truslove's place.
He points to the fact that the drug dog Bella didn't … sniff out any place … around the house where methylamphetamine had been found. That might be wrong about the shed. I'll be corrected on that. Bella might have found the drugs in the shed, but there's no evidence that Bella reacted to the smell of methylamphetamine inside the house. And it's said, well, that means that this package of Truslove's couldn't have been in that house because Bella would have smelt it.
And it's suggested that people like the owner of phone 833 could have been involved, that the language of 833 after the police raid on the 1st [of August] was the sort of language of a very angry drug dealer ‑ I called him a pissed-off drug dealer because I like people to use ordinary language in courtrooms ‑ and this is to be compared with Truslove and [the appellant's] text messages about beers and routers and things like that. And also the fact that as far as the police were concerned [the appellant] was not known to them as a possible drug dealer.
So 833, furious; 441, talking about routers and beers and things like that. And, perhaps, it is suggested 833 might reasonably be the person who supplied the drugs to ‑ in other words, delivered the drugs, because this case is all about who delivered them, it's not who owns them, who delivered them. But it's suggested that it looks like 833 might be the owner and 833 might have delivered them as well. If 833 owns them, why wouldn't 833 deliver them as well? And she was on the police watch list as well. The police knew a bit about her and well, why not her? It's suggested that is a reasonable inference that you can consider (ts 546 ‑ 548).
After his Honour completed his summing up, the prosecutor corrected, in the presence of the jury, his Honour's misstatement of the evidence concerning the drug dog, Bella (ts 549 ‑ 550). The prosecutor did not seek any additional direction or redirection on the law (ts 551). Defence counsel did not request his Honour to give any additional direction or redirection on any evidentiary or legal issues (ts 550 ‑ 551).
Section 112 of the Criminal Procedure Act 2004 (WA) provides, relevantly, that in a criminal trial before a judge and jury, 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.
In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held that, in a criminal trial before a judge and jury, the judge is not bound, in his or her summing up, to discuss all of the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to undertake that task does not mean that a miscarriage of justice will have occurred (560). Nevertheless, their Honours emphasised that fairness means that ordinarily the respective cases advanced by the State and the defence must be accurately and fairly put to the jury (561). Their Honours then said:
But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery (No 3) [1972] VR 939, at p 948) … Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews and Ford (1972) VR 3, at pp 15 ‑ 16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies and Cody [No 2) [1937] VLR 226, at pp 236 ‑ 237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (561).
In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ noted that the fundamental task of a judge in a criminal trial is to ensure a fair trial of the accused [41]. Their Honours then elaborated:
That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case (Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues (Alford v Magee (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes [41]. (emphasis added)
The adequacy of a trial judge's summing up to the jury will depend on all the circumstances of the case. Those circumstances include the manner in which the State and the defence have conducted the trial and the content and length of the addresses by the prosecutor and defence counsel. A summing up will not be inadequate unless there is a real risk that the trial judge's omission or approach has resulted in a miscarriage of justice. See Carroll v The State of Western Australia [2004] WASCA 254 [192] ‑ [194] (Roberts-Smith J, Malcolm CJ & Murray J agreeing); Walsh v The State of Western Australia [2011] WASCA 119 [57] (McLure P, Buss JA & Hall J agreeing).
As to the appellant's complaint about the trial judge's summing up in relation to the methylamphetamine found in the appellant's shed, his Honour did not address, in his summary of the defence case, the appellant's explanation for the presence of numerous smoking implements in his shed or his explanation that he had misplaced or forgotten he had the methylamphetamine in question.
However, the methylamphetamine, and at least some of the smoking implements, located by the police in the appellant's shed belonged to the appellant. He was a heavy user of the drug.
On 2 August 2011, the appellant admitted in the video‑recorded interviews with the police that he usually smoked the methylamphetamine he used and that he had three or four pipes for smoking methylamphetamine in his shed (although a couple of those were broken) (blue and green AB 68, 74). The appellant said in evidence at trial that the methylamphetamine found in his shed must have been small amounts that he had misplaced or forgotten (ts 347). He also gave evidence that he smoked methylamphetamine with a pipe and that he smoked the drug in his shed 'all the time' (ts 361 ‑ 362, 373). Further, the appellant said in evidence that as at August 2011 he was using about 3 g of methylamphetamine a week (occasionally more) (ts 364).

Accordingly, the appellant did not have 'explanations, consistent with innocence' relating to the methylamphetamine found in his shed. His assertion, at one point in his evidence, that there were smoking implements in the shed because building contractors had come to his house earlier that year and several of them smoked methylamphetamine (ts 354 ‑ 355), did not in substance constitute a retraction of the admissions he had made in relation to the methylamphetamine and at least some of the smoking implements found in the shed.
As to the appellant's complaint about the trial judge's summing up in relation to the amount of cash found at the appellant's home, his Honour did not address, in his summary of the defence case, the appellant's explanation for the cash. However, his Honour did refer to the cash, and the appellant's explanation for it, earlier in his summing up:
[The appellant] denied drug dealing with Truslove. He denied having anything to do with the drugs found at Truslove's place and he said that the cash, which a detective told us can be an indication of drug related activities, has an innocent provenance; namely, it was savings.
And he told the police that he didn't trust banks and that's what I think he told you as well, and so they wanted to have some of their cash available to them and the rest in the bank.
So there's some evidence that supports the State case. There's evidence against the State case. It's for you to use it as you see fit (ts 533).
As to the appellant's complaint about the trial judge's summing up on the relationship between the appellant and Mr Truslove, his Honour mentioned, in his summary of the defence case, the appellant's evidence that his 'dealings by text or in person with Truslove all had to do with [the appellant's] IT consultancy and Truslove's high‑level computer gaming needs and occasionally purely social purposes' (ts 547). His Honour then noted the appellant's evidence that:
(a)the unusual hours of the communications between the appellant and Mr Truslove, and the visits by the appellant to Mr Truslove's home, were explicable by their mutually unusual working habits;
(b)on 2 August 2011, the appellant went to Mr Truslove's home to 'sort out an issue of [connection] latency or lag and he might have dropped off a card with some instructions on it, although he also thinks that might have been the day before';
(c)the text messages the appellant sent to Mr Truslove, after leaving Mr Truslove's home on 2 August 2011, concerned ongoing complaints by Mr Truslove about his router connection speeds; and
(d)the appellant used his mobile telephone for legitimate business dealings with Mr Truslove (ts 547).
His Honour also made some reference to the alleged business relationship between the appellant and Mr Truslove when he dealt with the State's case on credibility lies (ts 543).
Counsel for the appellant argued that the greater time allocated by the trial judge to his summary of the State's case compared with the defence case supported the appellant's submissions on ground 1. This argument is without merit. The State's case relied on the evidence of numerous witnesses, including evidence of an expert nature, and involved the presentation of mobile telephone intercept material. It is therefore to be expected that a proper summary of the State's case would occupy more time.
The appellant's trial commenced on Monday, 25 June 2012, and ended on Friday, 29 June 2012. The appellant was the last witness. His evidence commenced on Thursday, 28 June 2012 at 10.05 am and ended at 4.23 pm on that day. The prosecutor made his closing address on Friday, 29 June 2012 between 11.42 am and 12.32 pm. Defence counsel then made his closing address between 12.38 pm and 1.07 pm. The trial judge's summing up commenced at 1.41pm and ended at 2.34 pm.
The appellant gave extensive evidence on 28 June 2012 about his use of methylamphetamine, the drugs found by the police at his home, the cash located by the police at his home, and the nature of his relationship with Mr Truslove.
The trial was relatively short. The critical issue was whether the appellant had supplied Mr Truslove with the 428 g of methylamphetamine, with a purity of 42%, which the police had found at Mr Truslove's home. The trial did not involve any complex issues of fact or law. The defence case was readily apparent from the appellant's evidence. He gave a lengthy account of his version of events. The defence case was stated succinctly by defence counsel in his closing address. The trial judge put the defence case fairly before the jury in his summing up. His Honour's reference to any explanations, consistent with innocence, was not perfunctory or cursory. Defence counsel did not seek any additional direction or redirection. There is no prospect that his Honour's approach to the defence case or his summary of it occasioned a miscarriage of justice.
Ground 1 fails.

Appeal against conviction: ground 2

The appellant asserts in ground 2 that the trial judge referred in his summing up to the quantity of the drug in question (that is, 428 g of methylamphetamine with a purity of 42%) as 'an amount which is trafficked by high level dealers' (ts 538), when the expert evidence did not, and could not, support that statement. According to the appellant, this statement resulted in a miscarriage of justice.
His Honour told the jury, in the course of his summing up, that he would briefly summarise the State's case (ts 538). He explained that he would outline the individual pieces of circumstantial evidence which the State alleged supported a finding of guilt, when the pieces were viewed in combination (ts 538). A little later, his Honour said:
So the first circumstance the State relies on is the possession by … Paul Truslove of approximately a pound, that's 428 grams of methylamphetamine at 42 per cent. This was found at 1.05 pm in his possession in a bowl. He was wearing gloves Now, the State ask you to follow this line of reasoning: Okay, it's a pound, so this is an amount which is trafficked by high‑level dealers. It's in a bowl when the police arrive. He's got gloves on, he's processing it, so ‑ and I think the expert evidence also was that the drug dealers usually don't like to have the drugs on them for very long, so there's a swift line of distribution (ts 538). (emphasis added)
Section 11(a) read with Schedule V of the Act provides in effect that, for the purposes of s 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession, relevantly, a quantity of methylamphetamine which is not less than 2 g.
Section 32A(1)(b) read with Schedule VII of the Act provides in effect that, if a person is convicted of a 'serious drug offence' (being, relevantly, a crime under s 6(1)) in respect of methylamphetamine in a quantity which is not less than 28 g, the court convicting the person of the serious drug offence shall, on the application of the Director of Public Prosecutions or a police prosecutor, declare the person to be a drug trafficker.
At the appellant's trial, Detective Green gave expert evidence, without objection, as follows:
(a)methylamphetamine is sold in a variety of quantities depending on the dealers themselves (ts 85);
(b)at street level it is generally referred to as a 'point', which is 0.1 g (ts 85 ‑ 86);
(c)a 'street gram' is generally 0.7 g, a 'weight' is 1 g, an 'eight-ball' is 3.5 g, a 'quart' is 7 g, a 'half' is 14 g, an 'ounce' is 28 g, a 'pound' or an 'elbow' is about 454 g, and then there is one kilogram (ts 86);
(d)the purity of methylamphetamine seized by Detective Green has ranged from 0.1% up to 88% (ts 86 ‑ 87);
(e)the 428 g of methylamphetamine seized from Mr Truslove was of mid‑range purity and could be diluted again to increase profit (ts 87, 123);
(f)a sale of a 'point' or 0.1 g at street level might cost between $50 and $100, whereas a sale of a 'pound' or about 454 g at the 'other end of the scale' might cost between $150,000 and $200,000 depending on the purity (ts 88);
(g)a dealer at the 'higher end' might not have multiple clipseal bags (like a dealer in smaller amounts) because the drugs may come in and go straight out again (ts 89);
(h)in the present case, the police believed that the owner of telephone 833 was 'warehousing' a house thought to belong to Mr Truslove and to have been purchased with the proceeds of crime, and that the owner of telephone 833 was a 'front' for him and therefore associated with 'a serious underworld heavy' (ts 148);
(i)Mr Truslove was not dealing at street level: he was 'a little bit further up the pecking order' (ts 150); and
(j)'400-odd grams' of methylamphetamine is 'a lot of gear' (ts 149).
I am satisfied that Detective Green's evidence, considered as a whole and in the context of s 11 and s 32A of the Act, supported the conclusion that 428 g of methylamphetamine, with a purity of 42%, was a quantity dealt in or trafficked by 'high level dealers'.
In any event, his Honour's comment merely conveyed to the jury that whoever had supplied the 428 g of methylamphetamine to Mr Truslove was a high level dealer. This comment, which was made in the context of his Honour's summary of the State's case, highlighted the contrast between the State's case, on the one hand, and the defence case, on the other. The appellant's evidence was that he was a heavy user of methylamphetamine but he was not a dealer. There was no risk that the comment could have operated to the appellant's prejudice. The question for the jury, as his Honour made plain, was whether the State had proved beyond reasonable doubt that the appellant had supplied the 428 g to Mr Truslove.
The trial judge directed the jury, at the commencement of the trial, that the jury's role was 'to decide the facts of the case' and that nothing his Honour said 'about the evidence or the facts [was] binding on [the jury] in any way' (ts 17). The jury was the 'sole [judge] of the facts' and it was 'entirely up to [the jury] what [it did] with the evidence in this case' (ts 17). His Honour repeated in substance those directions in his summing up. For example, he told the jury that it was 'the sole [judge] of the facts and anything that [he said] on the facts is comment only and not binding on [it]' (ts 529).
I am satisfied that it was open to his Honour to refer to the methylamphetamine in question as 'an amount which is trafficked by high level dealers' (ts 538) and that, in any event, the comment did not result in a miscarriage of justice.
Ground 2 is without merit.

Appeal against conviction: ground 3

The appellant asserts in ground 3 that the trial judge failed specifically to direct the jury about evidence 'that was far more prejudicial than it was probative'.
The particulars of ground 3 allege:
(a)the appellant was found in possession of a quantity of drugs and he admitted having a 'drug habit' (ts 346); and
(b)the appellant gave evidence that his drug use had been 'extremely high' and it would not have been unusual for him to have consumed 3 g to 4 g of methylamphetamine a week (ts 346).
Initially, the appellant relied on a third particular of ground 3 but this particular was abandoned by his counsel at the hearing (appeal ts 17).
Counsel for the appellant submitted that a miscarriage of justice occurred as a result of his Honour's failure specifically to instruct the jury not to use evidence of the appellant's drug use as evidence of bad character.
Detective Green gave evidence that in June 2011 he commenced a surveillance operation in relation to Mr Truslove (ts 30 ‑ 31). The appellant came to the attention of the police because of his telephone communications with Mr Truslove. The police then carried out surveillance on the appellant's visits to Mr Truslove's home. Detective Green agreed, in cross‑examination, that at that time the police had no knowledge of the appellant as a drug dealer or supplier (ts 103).
At trial, the appellant gave evidence that, at the time of his arrest and for several months before he was arrested, his personal use of methylamphetamine was 'extremely high' (ts 346). It was not unusual for him to consume 3 g to 4 g of the drug a week at a cost of $1,000 or more a week (ts 346). The appellant claimed that he kept his drug use a secret from his wife and he used the mobile telephone, about which he had lied to the police, to arrange to purchase methylamphetamine for his personal use (ts 345 ‑ 346).
The trial judge reminded the jury, in his summing up, of various aspects of the defence case, including:
[The appellant] tells you that he had a bad methylamphetamine habit at the relevant time, but was not a supplier or a dealer. And he says this is evidenced by the drugs found [by] the WA Police at his place. He says he's never hidden that, never hidden the fact from the police that he was a drug user. He says he's not a drug dealer (ts 546).
His Honour instructed the jury that it must approach the case dispassionately (ts 548). He then added:
[T]his is a drug dealing case, not a drug use case. You have to be satisfied, beyond reasonable doubt, that a package of drugs that Truslove had, came from [the appellant] and concentrate on that issue and use some intellectual discipline (ts 548). (emphasis added)
It was not disputed at the trial that the police found the appellant in possession of a quantity of drugs. The appellant's evidence to the effect that he had a 'drug habit' and that his personal drug use had been 'extremely high' was an important aspect of his defence. He was a heavy drug user but was not, under any circumstances, a dealer.
The jury would have clearly understood from his Honour's summing up that the critical issue was whether the State had proved beyond reasonable doubt that the appellant had supplied Mr Truslove with the 428 g of methylamphetamine (which was, on any view, a very substantial quantity) and, as an incident of this proof, that the appellant was not merely an 'extremely high' personal user of the drug.
There was no perceptible risk that the jury may have reasoned that there was an increased likelihood that the appellant would have supplied the 428 g to Mr Truslove or that he would have trafficked generally in illicit drugs because, on his own admission, he had a personal 'drug habit'.
It is of some significance that defence counsel did not seek an additional direction or a redirection about the matters complained of in ground 3.
Ground 3 is without merit.

Appeal against conviction: ground 4

The appellant asserts in ground 4 that the trial judge made a comment, in the presence of the jury panel, which revealed 'possible bias' by his Honour towards the appellant.
The particulars of ground 4 allege:
(a)during the jury empanelment, a potential juror expressed an opposition to drugs;
(b)while the proposed juror was ultimately challenged by defence counsel, his Honour's later comment that, 'I hope we all have a zero tolerance policy on drugs', was an error (ts 548); and
(c)the comment showed 'possible bias' towards the appellant.
At the hearing, counsel for the appellant clarified that the reference to 'possible bias' was intended to allege that there was a real risk that his Honour's comment may have influenced or prejudiced the jury's fair consideration of the issues (appeal ts 17).
It is correct that, during the empanelment of the jury, one of the proposed jurors expressed her personal view against the use of illicit drugs, she was challenged by defence counsel and, as a result, she did not serve on the jury.
Upon the completion of the empanelment, the trial judge stressed to the jury:
[T]here are some very important rules that you must follow. First of all, you must keep an open mind. Until you've heard all the evidence, counsel's addresses at the end and my summing up you will not be equipped to form any final view about this matter … So keep an open mind and do not jump to conclusions (ts 23).
During his summing up, his Honour reminded the jury of its obligation to evaluate the evidence dispassionately:
So in conclusion, can I remind you what I said on Monday? ... You must approach this case dispassionately. You may remember I was perfectly happy for one lady who has zero tolerance policy on drugs to be on the jury. I hope we all have a zero tolerance policy on drugs. That's not the issue in this case, this is a drug dealing case, not a drug use case. You have to be satisfied, beyond reasonable doubt, that a package of drugs that Truslove had, came from [the appellant] and concentrate on that issue and use some intellectual discipline (ts 548).
In my opinion, it is plain, from the text of his Honour's comment and the context in which it was made, that he was stating in substance that merely because the appellant was a drug user, and reasonable members of the community would oppose the personal use of illicit drugs, did not mean that the appellant was or was likely to be a drug dealer.
After telling the jury that he hoped 'we all have a zero tolerance policy on drugs', his Honour added in substance that whether that was so was 'not the issue in this case' (ts 548).
It is apparent that his Honour was urging the jury, towards the end of his summing up, to make sure that it dealt with the case dispassionately and that even if any members of the jury had an attitude of zero tolerance towards the use of illicit drugs, they must not take that attitude into account in deciding whether the State had proved the appellant's guilt beyond reasonable doubt.
I am satisfied that, when the impugned passage is considered in the context of the evidence and the summing up as a whole, there was no real risk that his Honour's comment may have influenced or prejudiced the jury's fair consideration of the issues.
Once again, it is of some significance that defence counsel did not seek an additional direction or a redirection about the matter complained of in ground 4.
Ground 4 is without merit.

Appeal against conviction: conclusion

I would grant an extension of time to appeal, but refuse leave to appeal on grounds 2, 3 and 4 of the appeal against conviction. The appeal should be dismissed.

Appeal against sentence: the grounds of appeal

The appellant relies on four grounds in his appeal against sentence.
Ground 1 alleges that the sentencing process was unfair in that the trial judge imposed a sentence that was founded 'wholly or partly on material that had not come before [his Honour] in open court'.
Ground 2 alleges that the sentence imposed on the appellant infringed the parity principle when compared to the sentence received by Mr Truslove.
Ground 3 alleges that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt in relation to a number of aggravating factors.
Ground 4 alleges that the sentence imposed on the appellant was manifestly excessive.
On 10 November 2012, Mazza JA granted leave to appeal on grounds 2 and 4 and referred the application for an extension of time and for leave to appeal on the other grounds to the hearing of the appeal.
It is convenient to consider the grounds in the following order: ground 1, ground 3, ground 4 and finally ground 2.

Appeal against sentence: ground 1

The appellant asserts in ground 1 that the trial judge's reliance upon statistics and research, and anecdotal and personal views, not properly before the court, led to unfairness in the sentencing process.
Counsel for the appellant submitted in essence that his Honour breached the requirements of procedural fairness and as a result there was a miscarriage of justice.
Counsel also submitted that his Honour had embarked upon a personal crusade to highlight the evils of illicit drugs, the organised character of drug dealing and the egregious nature of the appellant's offending. Counsel referred to the observations of Perry J in Coombs v The Queen (1996) 88 A Crim R 273 that a sentencing hearing should not be regarded by a judicial officer as 'an opportunity to embark on a process of sounding off to the world at large about perceived evils in the community or other social issues' (276).

Section 15 of the Sentencing Act 1995 (WA) provides:
To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence.
However, the discretionary power under s 15 must be exercised:
(a)in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and
(b)in accordance with the rules of procedural fairness.
See Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [65] (Buss JA).
As in Teakle, it is unnecessary, in this appeal, to determine the precise ambit of s 15 or to articulate exhaustively how the power should be used. It is sufficient to state that s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, research or data he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.
In the present case, at the conclusion of the trial on 29 June 2012, the trial judge had a preliminary discussion with the prosecutor and defence counsel about sentence. His Honour mentioned statistics as to the prevalence of methylamphetamine and the size of drug seizures in Western Australia (ts 555 ‑ 558). For example, his Honour said:
Well, methylamphetamine is now being imported into this State in industrial proportions. You know that? It's been commonly reported, there are plenty of drug reports on [the] sizes of the seizures … I'll look all this up and I'll give you the figures, but there was two or three tonnes seized in the 2010, 2012 year in Australia; tonnes. You'd have to go to the local hire joint and hire a large trailer to cart all that methylamphetamine around. And that's just what's been caught.
…
So we have an industrial sized operation ‑ problem here. These drugs here ‑ what have we got? 428 grams, let's call it 1,000 grams if it's only cut once, so that's 10,000 points. If each one of those points was a legitimate drug and was sold in a blister pack of 20 you'd need 500 blister packs. Now, that tells us something about the scale of the problem, scale of the operation (ts 556 ‑ 557).
At the sentencing hearing on 4 July 2012, his Honour said, in the course of debate with the prosecutor and defence counsel and before he commenced his sentencing remarks, that he want to put 'a bit of flesh and blood on some of the bones of principle here'. He continued:
Research has shown that at least 20 per cent, and up to 30 per cent, of all detainees in the East Perth lock‑up have used methylamphetamine in the last month. WA has the highest levels of methylamphetamine use in the country. Seizures are regularly now on industrial levels. I went through my maths the other day, but this was involving 10,000 points … if we cut it once.
The number of [clandestine laboratories] is increasing. The profile of dealers and personal users is changing. We're getting more and more cashed up bogans who can buy their drugs and stay under the police radar, who are repatriating staggering sums of money every year to the criminal gangs without having to commit crimes to do it. And yet we're still seeing children using methylamphetamine (ts 570). (emphasis added)
The Macquarie Dictionary, 5th ed, defines the noun 'bogan' as 'a person, generally from an outer suburb of a city or town and from a lower socioeconomic background, viewed as uncultured' (188).
His Honour referred to and read aloud passages from an article by Gately N, Fleming J, Morris R and McGregor C, 'Amphetamine Users and Crime in Western Australia, 1999 ‑ 2009', published in Trends and Issues in Crime and Criminal Justice; Australian Institute of Criminology, No 437, June 2012 and a report by Macgregor S and Payne J, 'Increase in Use of Methamphetamine', published in Research in Practice; Australian Institute of Criminology, No 22, November 2011 (ts 571 ‑ 573).
The trial judge expressed to counsel the following opinions:
Now, what all this means is that I think there needs to be … [a] firming up of sentences for methylamphetamine dealers, not the street level junkie dealers.
… We're seeing cashed up bogans who hold down day jobs and are selling drugs at night, and large quantities of it.
So the profile of your drug dealer now is more professional… [W]hat we have now is an increasing criminal problem, criminal gangs.
… when we get the opportunity to sentence members of criminal gangs, we have to make sure we do it properly. I think these gangs are more organised, more sinister, and far more dangerous now than they were seven years ago. And we have to do something about it.
I'm sick of euphemisms, like 'facilitator, courier, mule'. We have to understand what this is all about. It is a criminal venture now being run by criminals on an industrial scale, which would be the envy of legal therapeutic drug manufacturers.
…
It's time to really face up to the problem that's occurring here. Criminals have got to be wiped out. And we've got a maximum of 25 years to do it, to use, as a blunt instrument. We've just got to make sure that people understand what's going to happen to them when they're caught (ts 573 ‑ 574). (emphasis added)
His Honour's reference to 'seven years ago' was to the year in which he was appointed a judge of the District Court (ts 573).
He told counsel that 'what [he was] talking about is [that] they are repatriating prodigious sums of money into criminal gangs' (ts 575). He added:
That is the nature of the problem. Even preppy schoolgirls who buy 10 disco bikkies on a Friday night for $400, they're drug dealers, too, because they're going to split those pills amongst their friends, and between them, they've repatriated $400 into criminal gangs. Probably a week's earning at KFC all into the pockets of criminal gangs.
It's the criminal gangs we now have to concentrate on. Drugs, guns; every second time we sentence a drug offender now, he's got an unlicensed Glock with the serial number ‑ ‑ ‑
SAUPIN, MR: Unlike in this case, of course.
McCANN DCJ: ‑ ‑ ‑ erased. Not ‑ unlike this case. But it doesn't make any difference. Mr Truslove knows what's going to happen to him when he gets out of gaol. It may not be with a Glock, or it might be on something else. You, yourself, mentioned the possible threat to your client if he gave someone's name.
This evil is ‑ goes way past broken families now. It is going into shootings and corruption and all sorts of things (ts 575 ‑ 576).
The trial judge invited submissions from defence counsel on the opinions he had expressed (ts 575).
His Honour inquired of the prosecutor as to whether the State supported his view 'that, as a matter of fact … we need to more vigorously look at the sentencing options available [for] high‑level drug dealers' or whether the State was 'happy with recent sentencing trends' (ts 577).
The prosecutor responded by submitting that this court had, on many occasions, enunciated relevant sentencing ranges and that this court had 'firmed up' sentences for dealing or trafficking in illicit drugs (ts 577).
The trial judge asserted it needed to be recognized that a 'tectonic shift' had occurred, that 'the criminals are as cunning as the proverbial outhouse rat' and that they 'use standover tactics' (ts 578).
After further exchanges with counsel about the facts and circumstances of the appellant's offending, his Honour adjourned the sentencing hearing 'for 15 minutes because [he did not] have any particular number in mind', and he wanted 'to think it through' (ts 584). The actual adjournment was about 30 minutes (ts 584).
When the hearing resumed, his Honour made his sentencing remarks and imposed a sentence of 9 years' imprisonment with eligibility for parole.
During his sentencing remarks, the trial judge purported to 'adopt' the opinions he had expressed and the comments he had made in his debate with counsel:
During submissions, I went to some lengths to put some flesh and blood on these principles and I mentioned things which I now adopt. And I was talking about matters of my own personal experience in sentencing in this court and in trials in this court. I've referred to the technical literature. So we have very high levels of methylamphetamine use in … lockup detainees. WA has the highest levels of use in the country. Seizures are occurring on industrial levels. The seizure in this particular case would have produced no less than 10,000 doses. The rise of highly organised clan labs has been noticed, and the profile of dealers and users is changing.
In recent years, it is now more evident that both users and dealers are in work, they have plenty of money and they're repatriating huge amounts of money into criminal gangs, whilst at the same time poisoning the bodies of children ‑ and I stress the word, ' children' ‑ who are regularly seen before these courts ‑ or before the courts with methylamphetamine habits (ts 590).
I will deal first with that part of ground 1 which asserts that his Honour's extensive reference to statistics and research not properly before the court led to unfairness in the sentencing process.
In my opinion, the only reasonable inference to be drawn from:
(a)the trial judge's extensive reference to the statistics and research embodied in the article and the report to which he referred in his debate with counsel and while putting 'a bit of flesh and blood on some of the bones of principle here'; and
(b)his express 'adoption' of those matters in his sentencing remarks,
is that his Honour took the statistics and research into account in determining the sentence to be imposed on the appellant.
Counsel for the State informed this court that the only notice his Honour gave to counsel of the article and the report, and his intention to rely on them, was the general reference to 'two or three' reports during the discussion on 29 June 2012 (ts 556 ‑ 557) and the following reference to the article and the report in the debate with counsel on 4 July 2012:
(a)'But that's the research of Gately, Fleming, Morris and McGregor, published in June of this year ' (ts 571); and
(b)'here's that other study I was looking for, McGregor [sic] & Payne (?), November 2011' (ts 573).
The conclusion expressed in the article by Gately, Fleming, Morris and McGregor is as follows:
The aims of this project were to identify the typical characteristics and offence types of amphetamine user detainees in Western Australia.
Relative to detainee amphetamine non‑users, the typical profile of a detainee amphetamine user (defined as use within the past 30 days) emerged as including a higher proportion of females; non‑indigenous, 24 ‑ 28 years of age, single with no dependent children, unemployed, educated to year 10 or lower, living at the home of another person, and first arrested before the age of 18. In regard to other substance use, a typical detainee amphetamine user, when compared with detainee non‑users was more likely to have tried alcohol before the age of 18 but less likely to have drunk at risky levels in the previous 30 days; more likely to have used cannabis, heroin, illegal benzodiazepines and amphetamines before the age of 18; and more likely to have used cannabis, heroin and illegal benzodiazepines in the previous 30 days than amphetamine non‑users.
This profile suggests that failure to reduce amphetamine use in Western Australia may have financial ramifications through unemployment costs such as Centrelink payments, as well as public health costs as a result of poly‑drug use. The profile also indicates a transient lifestyle and reduced ability of users to find employment because of lower education and current substance use. There may also be an increased risk in this population for mental health complaints either as a result of substance use or the lifestyle it coincides with. Further, there is a vulnerability associated with the young age and gender of amphetamine users, and it is not unreasonable to anticipate problems for these females if they become pregnant.
In regards to offence types, the study determined that amphetamine users were more likely than amphetamine non‑users to commit property offences, robbery and related offences, illicit drug offences, fraud offences and weapons offences. These results support the findings of the Amphetamines in Queensland project by Lynch et al, (2003), although the present study did not find a high prevalence of assault charges within this population. This difference may be explained by the type of data collected. Lynch et al, (2003) used a community sample that self‑reported previous offences, whereas the current project measured offence types based on current police charges at the time of data collection. The current findings are also consistent with those of McGregor and Gately (2008), who reported that amphetamine users were more likely to be charged with theft, illicit drug and weapons offences. These findings identify common patterns in crimes committed by amphetamine users in Australia.
Of particular note, amphetamine users were no more likely to commit violent offences than amphetamine non‑users, even when considering the frequency of amphetamine use. This supports and extends the findings of Smith and Rodwell (2009), who also found no association between amphetamine use and violent crime. This provides further evidence against a relationship between amphetamine use and violence.
In summary, amphetamine users present a significantly different profile to amphetamine non‑users in Western Australia. Insufficient research is available to determine if a similar profile occurs in amphetamine users in other states. This project contributes to a growing body of knowledge on amphetamine use in Australia and presents implications to government, health and community organisations.
The key findings in the report by Macgregor and Payne are these:
•Recent data from the Australian Institute of Criminology's Drug Use Monitoring in Australia (DUMA) program shows an increase in the use of methamphetamine among police detainees.
•Voluntary urinalysis undertaken by detainees shows that in the first three‑quarters of 2011, 21 percent of police detainees tested positive to methamphetamine ‑ up from 16 percent in 2010 and 13 percent in 2009.
•Trend analysis suggests that the continuing decline in methamphetamine use since 2004 may have ended, with rates of use among police detainees increasing in both 2010 and 2011.
•Self‑report data also indicates that methamphetamine is considered by users to be higher in quality and easier to obtain in 2011 compared with earlier years. Methamphetamine users also report an increase in the number of people selling the drug.
•These data are consistent with findings recently released by the National Drug and Alcohol Research Centre (Stafford & Burns 2011) and the United National Office of Drugs and Crime (2011).
In my opinion, the trial judge should, as a matter of fairness, have given notice of the name and place of publication of the article and the report to the prosecutor and defence counsel before 4 July 2012, being the date of the sentencing hearing. However, I consider that any breach of the rules of procedural fairness was not, in the circumstances, material. I have read the article and the report. They do not, in substance, add to or detract from the relevant considerations and principles applicable in sentencing for serious drug dealing or trafficking offences, as enunciated by this court and the Court of Criminal Appeal. Also, the article and the report do not, in substance, add to or detract from the weight to be given to those considerations and principles in sentencing an offender. In any event, there was a reasonable opportunity for the prosecutor and defence counsel, at least when his Honour adjourned the sentencing hearing, to decide whether to move for a more lengthy adjournment to enable them to examine and make submissions in relation to the article and the report.
I turn now to that part of ground 1 which asserts that his Honour's reliance upon anecdotal and personal views, not properly before the court, led to unfairness in the sentencing process.
It must be acknowledged that some of the trial judge's statements in the course of the discussion and debate with the prosecutor and defence counsel were a vehement declamation. He fulminated against the evils of illicit drugs.
There is no doubt, as this court has said on countless occasions, that serious drug dealing or trafficking offences require condign punishment. These crimes are a scourge upon society. Organised crime syndicates are involved in the manufacture and supply of illicit drugs. The long term abuse of some of these drugs may cause or worsen serious physical and psychological illnesses in users (including children and young adults). Drug abuse promotes other forms of criminal conduct by people suffering from drug addiction. It is not unusual for robberies, burglaries and violent assaults to be committed by such people. They may commit these kinds of offences for the purpose of obtaining money to purchase more drugs to feed their addiction or as a result of personality or emotional outbursts attributable wholly or partly to the ingestion of drugs. All of these matters are well‑known to the courts. None of it is new.
The sentencing of an offender (including an offender who has committed a serious drug dealing or trafficking offence) must be approached with objectivity, balance and moderate language. The judge's observations should be relevant to the particular offender and his or her offending. This is necessary to ensure:
(a)a just sentencing outcome is achieved, in the particular case, by reference to the facts and circumstances of the actual offending and in accordance with the sentencing principles embodied in s 6 of the Sentencing Act; and
(b)the appearance of fairness and impartiality in the sentencing process.
It is not the role of a District Court judge to adjust sentencing ranges established by this court. That is this court's responsibility. If the Director of Public Prosecutions, as the representative of the State, perceives that, in relation to a particular kind of offending, established sentencing ranges require adjustment then the Director may raise the matter in an appeal to this court. At least in recent years, the Director has not taken this step in relation to serious drug dealing or trafficking offences. This reflects, no doubt, the reality that the sentencing ranges established by this court for such offences under the Act and the Criminal Code (Cth) are readily discernible and appropriate. The sentencing ranges in question are appropriately severe. Ample guidance for primary judges embarking on the task of sentencing a serious drug dealer or trafficker is to be found in hundreds of decisions of this court and the Court of Criminal Appeal.
In the present case, the trial judge's approach to the sentencing of the appellant (notably, the forceful tenor and florid nature of some of his comments and his reference to some matters that were irrelevant) was unfortunate. However, I am not persuaded that a fair-minded observer would have apprehended that his Honour might not bring an impartial mind to bear on the appellant's sentencing or that the sentencing process was unfair to him.
In any event, I am satisfied, on my examination of the trial record, the material before the trial judge at the sentencing hearing and the submissions made to this court, that a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA); Teakle [72] ‑ [75]. See also my observations on grounds 2, 3 and 4 of the appeal against sentence.

Ground 1 has not been made out.

Appeal against sentence: ground 3

The appellant asserts in ground 3 that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt about a number of aggravating factors.
The appellant's contentions, as set out in the particulars to ground 3, are these:
(a)Particular 3.1: it was not open to his Honour to find that the appellant was second in charge of the drug distribution business.
(b)Particular 3.2: the presence of a CCTV system at the appellant's home was not evidence that he was an experienced drug dealer.
(c)Particular 3.3: it was not open to his Honour to find that the manner in which the appellant acquired a mobile telephone was inculpatory of his alleged status as a high‑level drug dealer.
(d)Particular 3.4: the deletion by the appellant of his mobile telephone records did not support a finding that he was a 'professional' drug dealer.
(e)Particular 3.5: it was not open to his Honour to find that the appellant had the authority to 'discount price'.
(f)Particular 3.6: it was not open to his Honour to find that the sum of money found at the appellant's home was the result of drug dealing.
(g)Particular 3.7: it was not open (or appropriate) for his Honour arbitrarily to form the view that the range of sentences customarily imposed for offences of the type committed by the appellant was inadequate.
The trial judge made findings of fact in his sentencing remarks, relevantly, as follows.
First, the appellant was 'drug dealing in commercial quantities of methylamphetamine for some time prior to committing this offence' (ts 584).
The evidence and reasoning relied on by his Honour for this finding were as follows:
On 18 July 2011, you changed your telephone and told Truslove to delete the previous phone number. This particular telephone was in a false name. There were also notes in the diary. I'm not satisfied that they were necessarily made in December 2009, but the notes for 10 and 11 December 2009 are on that day. They are clearly evidence of some sort of note or memorandum in relation to a large drug transaction involving ounces.
Also, there's your relationship with the owner of [telephone 833]. Her text to you, which you of course didn't receive because the police had seized the relevant phone and this, of course, is the drug phone number 441, on 2 August, proved that she was wanting to see you that day.
And texts from her to Truslove as found on his phone provide very firm evidence that she had a proprietorial interest in the drugs that were seized by the police at Truslove's place …
Next, there is the cash found by the police at your house on 2 August 2011. Leaving aside what was in your wallet, there was over $25,000 of cash in the house, and I've considered what the possible explanations for this might be.
I first of all note that there's too little there to be a sale price, or the proceeds of a pound. A pound of methylamphetamine would be worth a lot more than that … I'm satisfied that [this cash] was not legitimate. The explanations given by you to the police and to the jury were absolute hogwash.
You had significant bank savings. You had significant outgoings. You had modest earnings, only $60,000 gross in the preceding year, and you were pouring money into the stock market software business, plus you had your own drug consumption.
There was no way that you could have saved $20,000‑odd, or would have such savings sitting around if they were from a legitimate source. And as for saying that you didn't trust banks, well that, of course, is complete rubbish coming from an intelligent man.
So I'm satisfied that the money was of illegitimate origins, but it didn't relate to the Truslove transaction on 2 August.
So where did the money come from? You told us that you have drug debts. I think that's probably likely to be the truth. I don't think you would have drug debts and a significant amount of cash of your own. So if the cash was yours, then you didn't have drug debts. You did have drug debts, I find, so therefore the cash was not yours. In other words, you were warehousing it for someone else (ts 584 ‑ 586).
His Honour then reiterated his finding that the appellant had been drug dealing in commercial quantities of methylamphetamine for some time, 'probably for [the owner of telephone] 833 and persons associated with 833, and you were dealing because you'd acquired drug debts' (ts 586).
Secondly, the 'criminal underworld' would not have allowed the appellant to have his own drug dealing operation on this scale. He must therefore have been working for someone else. The 2.78 g of methylamphetamine found by the police on the appellant's person on 2 August 2011 was for his personal use, and was part of his 'wages' (ts 586).
The evidence and reasoning relied on by his Honour for this finding were as follows:
In support of this finding, I also take into account the high degree of professionalism demonstrated in your own dealings. You immediately deleted all or any suspect texts on the phone number 441, which is your drug-dealing phone, but kept others which were more easily explained, including communications of people such as 833, although you were never in a position to wipe anything that she sent you after you were arrested on 2 August.
The fact that you got yourself a new phone on 18 July and asked Truslove to delete the phone number for the old one from his contacts establishes this, and the fact that the phone was in a false name is very important.
I'm not actually satisfied beyond reasonable doubt that you, yourself, went and got that phone in a false name. That seems to me to be an unacceptable risk for a high-level drug dealer to take. In my opinion, that phone, like so many other pieces or drug-related paraphernalia such as firearms, is a drug syndicate asset. And my thinking is … that phone was provided to you and … someone else was responsible for getting it …
Lastly, there's the closed circuit television systems set up so that you can surveil the outside of your house. This is clear-cut evidence, with all the other evidence, that you're an experienced, professional and well‑organised drug dealer and had been doing so for some time. Again, the explanation given for the surveillance system in your house was absolute hogwash, namely you had a neighbour who was hassling you … (ts 586 ‑ 587).
Thirdly, the appellant was 'the right‑hand man to the syndicate network … owner or boss', who was 'very probably' the owner of telephone 833 (ts 587).
His Honour elaborated on this finding, as follows:
You were more than a courier; you were the business manager and organiser. You kept the cash, you negotiated with the customers and you transported and looked after the merchandise. And most importantly, you knew the identity of 833, or the owner. You were an indispensable and highly trusted part of the distribution system.
This is to be compared to the Paul Trusloves of this world, who can be easily bypassed. The syndicate for which you worked … or [which you] managed had other customers, who, just like Truslove, were able to buy in similar quantities. And this is evidenced by … a text message of 2 August 2011.
You could even afford to try to rip Truslove off. I find that you deliberately gave him a taster on 1 August which had a purity significantly higher than the goods actually delivered on 2 August, in the hope that Truslove wouldn't be able to tell the difference and, even if he did, that you'd be able to get away with it.
You've got to be pretty highly placed in the criminal underworld to be able to get away with that kind of rip‑off.
I find that you were the right‑hand man, the very amanuensis or surrogate of the boss or owner of the syndicate and must be sentenced accordingly (ts 587).
Later in his sentencing remarks, his Honour reiterated that the appellant was 'an indispensible right‑hand man of a high level syndicate' and he was 'a high level operative in that syndicate' (ts 592).
Fourthly, the transaction, the subject of the offence in question, was not '[the appellant's] first by a long chalk' (ts 588), although his Honour could not be satisfied that it was equal in volume to the others (ts 588). He said that he would proceed on the basis that there was no evidence that 'any other transaction was as large as this' (ts 588).
Fifthly, the appellant consciously and deliberately participated in 'the methylamphetamine trade at a very high level for monetary gain' (ts 589), the 'monetary gain being a ready supply of high‑quality drugs' (ts 588).
A trial judge must make findings of fact, for the purposes of sentencing, on the evidence adduced at trial and any additional information received during the sentencing process.
In The State of Western Australia v JWRL (a child) [2010] WASCA 179, Martin CJ (Buss JA relevantly agreeing) referred to some of the established principles of law governing the fact-finding process for the purposes of passing sentence [9]:
Where the offender to be sentenced has been found guilty following trial by jury, the judge must determine the facts relevant to the sentencing process: see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5] and [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the trial judge who must find those facts, rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] ‑ [11]. '[P]rovided the facts found by a sentencing judge are not inconsistent with the jury's verdict, a sentencing judge may well make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury': Cheung [36].
An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. It is a well-established principle of sentencing at common law that the prosecution must establish an aggravating circumstance beyond reasonable doubt, and the offender must establish a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34] (Buss JA, McLure & Pullin JJA agreeing).
As to particular 3.1, the trial judge's finding that the appellant was second in charge of the drug distribution business was an aggravating circumstance. In my opinion, it was not reasonably open to his Honour to be satisfied beyond reasonable doubt in relation to that finding. Counsel for the State properly conceded that the exact nature of the relationship between the appellant and the owner of telephone 833 was unknown (appeal ts 47). His Honour's findings that the appellant was 'second in charge' and, similarly, 'the right‑hand man to the syndicate network … owner or boss' were speculative.
The only findings reasonably open, to the requisite standard, were, relevantly, that the appellant was a methylamphetamine wholesaler and he was higher in the drug distribution hierarchy than Mr Truslove.
Particulars 3.2, 3.3 and 3.4 are concerned with similar or related findings of aggravating circumstances. It is convenient to deal with them together. In my opinion, it was not reasonably open to his Honour to be satisfied beyond reasonable doubt, solely on the basis of the existence of a CCTV system at the appellant's home, that he was 'an experienced drug dealer'. Also, it was not reasonably open to his Honour to be satisfied, to the requisite standard, that the manner in which the appellant acquired a mobile telephone was inculpatory of his alleged status as 'a high‑level drug dealer' (ts 586 ‑ 587). Further, it was not reasonably open to his Honour to be satisfied, to the requisite standard, solely on the basis of the deletion by the appellant of his mobile telephone records, that he was a 'professional' drug dealer (ts 586).
However, it was reasonably open to find, beyond reasonable doubt, that the appellant was 'an experienced drug dealer', a 'high‑level drug dealer' and a 'professional' drug dealer based on the combined force of the following evidence, viewed in the context of the jury's verdict that the appellant had supplied the 428 g of methylamphetamine (42% purity) to Mr Truslove:
(a)the purity (37%) of the 2.78 g of methylamphetamine found on the appellant's person;
(b)the likelihood that this 2.78 g of methylamphetamine came from the same synthetic batch as the 428 g of methylamphetamine retrieved from Mr Truslove's floor;
(c)the tick list in the appellant's diary;
(d)the large amount of cash found at the appellant's home;
(e)the text messages on the mobile telephone used by the appellant to communicate with Mr Truslove;
(f)the CCTV system installed in the shed at the appellant's home, as to which there was evidence from Detective Green (ts 91) and Detective Marron (ts 226 ‑ 227) that it is usual to find surveillance equipment in premises occupied by drug dealers;
(g)the manner in which the appellant acquired the mobile telephone in question; and
(h)the appellant's deletion of his mobile telephone records.
As to particular 3.5, his Honour did not make a finding in his sentencing remarks that the appellant had authority to 'discount price'.
However, he made a comment to that effect in earlier debate with defence counsel:
McCANN DCJ: But this wasn't just a lateral shift of the drugs, was it? It wasn't like Truslove and [the appellant] were kind of opposite numbers, in two different syndicates, like they were just sort of like warehouse managers who just shift the goods from one warehouse to the other. [The appellant] was dealing with price and all these sorts of things. He was the guy that came back and said, 'We'll give you a discount of $500 an ounce' on this (ts 567 ‑ 568).
His Honour's comment about 'a discount of $500 an ounce' is plainly a reference to the appellant's text message to Mr Truslove, sent on 2 August 2011 at about 3.13 pm, which read, relevantly, 'Can discount by 500 for each unit … '. The appellant sent that text message in response to Mr Truslove's complaint in a text message sent by him on 2 August 2011 at about 12.59 pm as to the quality of the 'router'. His Honour was entitled, consistently with the jury's verdict, to reject the appellant's evidence about the text message exchange and to find that the references to 'routers' were in fact a code for the methylamphetamine delivered by the appellant to Mr Truslove.
In any event, the complaint in particular 3.5 does not add anything to the complaint in particular 3.1. As I have mentioned, in the context of particular 3.1, the only findings reasonably open, to the requisite standard, were, relevantly, that the appellant was a methylamphetamine wholesaler and he was higher in the drug distribution hierarchy than Mr Truslove.
As to particular 3.6, in my opinion it was open to the trial judge to be satisfied, beyond reasonable doubt, that the cash found at the appellant's home 'was of illegitimate origins, but it didn't relate to the Truslove transaction on 2 August' and that the appellant was 'warehousing [the cash] for someone else' (ts 585 ‑ 586). The finding was supported by the evidence and findings set out at [169] and [184] above in the context of the jury's verdict. No other inference was reasonably open.
As to particular 3.7, as I have mentioned, the trial judge inquired of the prosecutor, before his Honour commenced his sentencing remarks, whether the State supported his view 'that, as a matter of fact … we need to more vigorously look at the sentencing options available [for] high‑level drug dealers' or whether the State was 'happy with recent sentencing trends' (ts 577). The prosecutor did not support his Honour's view.
It is not apparent from his Honour's remarks that he acted on the view he expressed in debate with the prosecutor.
In any event, for the reasons I give when considering ground 4, I am satisfied that the sentence imposed by the trial judge on the appellant was within the applicable sentencing range and was not manifestly excessive.
Ground 3 has been made out in part.

Appeal against sentence: ground 4

The appellant asserts in ground 4 that the sentence imposed on the appellant was manifestly excessive.
The maximum penalty for:
(a)the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act; and
(b)the offence of supplying a prohibited drug to another, contrary to s 6(1)(c) of the Act,
is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
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. All of these propositions are well-established by the case law.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.
I have considered numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See Quach v The Queen [1999] WASCA 210; Delovski v The Queen [2002] WASCA 88; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; Benter v The State of Western Australia [2005] WASCA 245; Urbano v The State of Western Australia [2006] WASCA 147; The State of Western Australia v Toothill [2007] WASCA 236; Monument v The State of Western Australia [2007] WASCA 239; Bahn v The State of Western Australia [2008] WASCA 40; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Sabau v The State of Western Australia [2010] WASCA 3; Koncurat v The State of Western Australia [2010] WASCA 184; Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104; Galbraith v The State of Western Australia [2011] WASCA 70; Pham v The State of Western Australia [2011] WASCA 244; Lai v The State of Western Australia [2012] WASCA 181; and the cases reviewed in those decisions.
It is unnecessary to reproduce the facts and circumstances of the prior cases I have considered or the sentencing outcomes.

When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing disposition does not, of itself, fix the upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).
The merits of ground 4 must, of course, be examined in the context of those findings of fact by the trial judge that were open to him or unchallenged. The findings which I have held, when considering ground 3, were not open must be disregarded.
The serious nature of the appellant's offending is apparent from the following:
(a)The appellant's criminal conduct was part of a significant drug enterprise and his role in the enterprise was important.
(b)The appellant supplied the methylamphetamine in question on a wholesale basis to Mr Truslove. The appellant was well‑organised and was not a mere courier. His supply of the drugs to Mr Truslove was not an isolated transaction or an aberration.
(c)The appellant's role in the enterprise included 'warehousing' a substantial amount of cash, being the proceeds of drug dealing, for people at a higher level in the drug distribution hierarchy.
(d)The appellant was rewarded for his role in the enterprise by the provision to him, for his own use, of high‑quality drugs.
(e)The appellant would have known or reasonably anticipated that the 428 g of methylamphetamine had a high degree of purity. The 2.78 g found by the police on his person, which was for his own use, had a similar degree of purity.
(f)The 428 g of methylamphetamine at 42% purity was a very large commercial quantity and quality of the drug.
(g)The appellant was trusted with the methylamphetamine and the cash by people at a very high level in the drug distribution network. There was no evidence that he was under any pressure to participate in criminal behaviour.
(h)The appellant pleaded not guilty and went to trial. Although this does not aggravate the seriousness of his offending, it does show an absence of remorse and an unwillingness to accept responsibility for his offending.
(i)The appellant is not youthful or inexperienced. He was born on 6 March 1961 and was aged 50 when he committed the offence and 51 at the sentencing hearing.
The appellant worked initially as a fibreglass laminator and in various other trade positions. In about 1994 he decided upon a career change. After completing a TAFE course in information technology, he worked for a number of large companies. In 2010, the appellant commenced his own business, Flex IT. In 2001, he had become involved in a business which involved writing automated software for the stock market. The appellant claimed that he became involved in illicit drug taking in an effort to cope with his long working hours. His partner, from whom he kept his drug habit hidden, left him for a short period after discovering the truth about it.
The appellant had a prior criminal record but the offences were old and relatively minor. His record was not relevant in determining the sentencing disposition for the offence in question.
In my opinion, when the sentence of 9 years' imprisonment with eligibility for parole is evaluated in the context of the maximum penalty, the objective seriousness of the appellant's offending (including his level and role in the organisational hierarchy and the weight and purity of the drugs), the sentencing dispositions in comparable cases and the appellant's personal circumstances and antecedents (including the absence of any relevant prior criminal record), the only conclusion reasonably open is that the sentence was within the range open to the trial judge on a sound exercise of the sentencing discretion. The sentence was not disproportionate to the maximum penalty or the sentencing pattern revealed by comparable cases. It was not plainly unreasonable or unjust, and there is no basis for inferring error.
Ground 4 fails.

Appeal against sentence: ground 2

The appellant asserts in ground 2 that the sentence imposed by the trial judge infringed the parity principle when compared to the sentence which Wisbey DCJ imposed on Mr Truslove.
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co-offenders:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
The object of the principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe (610) (Gibbs CJ), (613) (Mason J), (623 ‑ 624) (Dawson J); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] ‑ [32] (French CJ, Crennan & Kiefel JJ). The applicable test is objective not subjective. See R v Pan [2005] NSWCCA 114 [34] (Johnson J, Giles JA & Hoeben J agreeing); Green [31]. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and clearly unjustifiable disparity or on the ground of an absence of marked and clearly justifiable disparity, with a primary judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 [202] ‑ [203] (Campbell JA, Rothman J generally agreeing), [245] ‑ [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274 [28] ‑ [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140 [11] ‑ [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] ‑ [28] (Warren CJ, Redlich JA & Ross AJA); Tomov v The Queen [2011] WASCA 189 [100] (Buss JA, Newnes JA & Hall J agreeing).
It has frequently been stated that it is highly desirable for co‑offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320). These observations apply also where offenders who have been participants in a common criminal enterprise are to be sentenced.
As I have mentioned, Mr Truslove entered a fast‑track plea of guilty and on 10 February 2012 he was sentenced by Wisbey DCJ to 5 years' imprisonment with eligibility for parole.
Mr Truslove was sentenced on the basis that:
(a)on 2 August 2011, when the police entered his home, he was standing in the doorway leading to the computer room, wearing black plastic gloves and carrying a bowl in his right hand; and
(b)he went into the computer room, followed seconds later by the police who found him holding the bowl with the 428 g of methylamphetamine spread across the floor.
The police located in Mr Truslove's computer room another 4.1 g of methylamphetamine, with a purity of 73%, on a desk and, also, a set of digital scales. On searching other parts of the premises, the police located 190 g of MSM, clipseal bags, black plastic gloves, a glass smoking implement, another set of digital scales and $2,510 cash.
The State conceded, at Mr Truslove's sentencing, that he was acting as a 'facilitator' in respect of the 428 g of methylamphetamine and that 'he had been approached by a friend who asked [him] to source a pound of methylamphetamine for him' (Truslove ts 12).
Mr Truslove was born on 20 November 1970. He was aged 40 at the time of the offending and was 41 when sentenced. He had a prior criminal record. In particular, on 19 June 2008 he was sentenced for six offences committed on 6 June 2007. The offences were possession of methylamphetamine with intent to sell or supply, possessing stolen or unlawfully obtained property, possessing a utensil in connection with the manufacture of a prohibited drug or plant, possessing a smoking utensil, simple possession of cocaine and simple possession of cannabis. He was sentenced to a total effective term of 13 months' immediate imprisonment. This was the first occasion on which he had received a custodial term. His other prior convictions were for traffic offences, simple possession of prohibited drugs and possession of smoking utensils.
Wisbey DCJ said in his sentencing remarks:
It is said on your behalf and accepted by the State, that on this occasion you were a facilitator, having been approached by a friend who asked you to source a pound of methylamphetamine for him.
It's quite obvious from the paraphernalia to which I have already identified, that you had familiarity with [methylamphetamine] and the capacity to acquire it and clearly use it yourself, and probably to provide to it [sic] others from time to time, but in this case I must sentence you on the basis that you were a facilitator in the way that I've described.
What I'm told by your counsel is that your dealer had attended at your property with the methylamphetamine, which I should note was of a significant level of purity, 42 per cent, so with the capacity to have it cut at least three times.
The dealer produced the methylamphetamine, your friend was supposed to attend and the transaction would take place. As it happened apparently, for the reasons outlined, the methylamphetamine was spilt on the floor. The dealer had departed to take steps to acquire an implement to retrieve that that had spilt on the floor and of course it was subsequent to his departure that the police made entry, and it is on those facts that you are to be sentenced.
…
You're apparently in a de facto relationship and have been in employment and have engaged over a period of time, with remissions from time to time, in substance abuse, and it appears that in recent times you have been ingesting methylamphetamine, which of course is addictive and no doubt that has played a part in your becoming involved in this offence.
Certainly it would have brought you into contact with the person who was providing the substance and of course put you in a position where you could act as facilitator in the manner described (Truslove ts 12 ‑ 13).
At the appellant's sentencing hearing, the trial judge was critical of the basis on which Mr Truslove was sentenced. His Honour said, in debate with counsel, that by pleading guilty on the fast‑track system Mr Truslove 'managed to really get under the radar and got only 5 years for his involvement' and he 'managed to persuade the sentencing judge, with the active assistance of … the State, that he was a mere go‑between' (ts 565).
The trial judge again displayed his unhappiness at the sentencing outcome in relation to Mr Truslove in the following exchange with the prosecutor:
McCANN DCJ: It just goes to show the advantages of a fast‑track plea of guilty, doesn't it?
HUGGINS, MR: Well, it does.
McCANN DCJ: He got under the radar.
HUGGINS, MR: Because he was sentenced on the basis of being ‑ whether you use the term go-between, facilitator, courier, whatever, he was sentenced on that basis.
McCANN DCJ: Well, in fact ‑ ‑ ‑
HUGGINS, MR: Had he gone to trial, I daresay the findings would have been far, far different.
McCANN DCJ: Yes, he would have been exposed for what he is ‑ ‑ ‑
HUGGINS, MR: Yes.
McCANN DCJ: ‑ ‑ ‑ a professional, just a bad one (ts 579).
His Honour dealt with the parity principle in his sentencing remarks as follows:
Moving on to parity issues. There is very little call for the exercise of the parity principle in this case. It is only prima facie enlivened because Truslove was convicted in respect of the same quantity and quality of drugs as you have been found guilty of.
Truslove managed, contrary to the evidence, to get himself sentenced on the basis that he foolishly agreed to act as a go‑between, almost as a one‑off error of judgment. The evidence suggests otherwise, but you cannot complain if he's been the beneficiary of being sentenced on that basis.
You were an indispensible right-hand man of a high level syndicate and you were a high level operative in that syndicate, both that syndicate's operations and your own well above Truslove in the scheme of things. The syndicate and yourself were more professional, more influential, more motivated and more important, and thus more dangerous.
Also Truslove had the mitigatory force of a fast-track plea of guilty, or at least a plea of guilty at the earliest reasonable opportunity. The mitigatory force of that was diluted somewhat because he was caught red-handed. But, having said that, he got himself sentenced on the facts as he wanted the court to believe them. Also Truslove had no mitigation in his antecedence, but he did display some remorse and he facilitated the administration of justice (ts 591 ‑ 592).
The trial judge's remark that there was 'very little call for the exercise of the parity principle' is obscure (ts 591). The parity principle did apply as between the appellant and Mr Truslove in that they were participants in a common criminal enterprise, even though they were not charged with or found guilty of committing precisely the same offence.
The trial judge was obliged to apply the parity principle by reference, relevantly, to the findings of fact made by Wisbey DCJ in relation to Mr Truslove and the basis on which his Honour, with the concurrence of the State, sentenced him. It was not open to the trial judge to go behind the findings made by Wisbey DCJ or the basis on which his Honour sentenced him. The sentencing hearing before the trial judge was not a de‑facto appeal against Wisbey DCJ's sentencing decision. See, generally, R v Chandler [2012] NSWCCA 135 [80] ‑ [81] (Hoeben JA, Bathurst CJ, Basten JA, McClellan CJ at CL & Johnson J agreeing).
The trial judge's expressions of incredulity about the basis on which Wisbey DCJ sentenced Mr Truslove were regrettable. They suggested, in substance, that Wisbey DCJ was misled about the true nature and extent of Mr Truslove's offending. Mr Truslove was not a witness at the appellant's trial. The State did not appeal against his sentence. He was not present or represented before the trial judge.
However, my impression from the trial judge's sentencing remarks, considered as a whole, is that his Honour ultimately accepted that he was bound to apply the parity principle by reference, relevantly, to the findings of fact made by Wisbey DCJ and the basis on which he sentenced Mr Truslove.
But the question still remains whether the trial judge misapplied the parity principle and thereby engendered a legitimate or justifiable sense of grievance on the appellant's part.
The sentence of 5 years' imprisonment imposed on Mr Truslove, following his fast‑track plea of guilty, is equivalent to a sentence of about 6 years 8 months' imprisonment after trial. In other words, Mr Truslove's fast‑track plea of guilty would have attracted a discount of about 25%.
Mr Truslove had a more serious and extensive prior criminal record than the appellant. As I have mentioned, the appellant's prior criminal record was not relevant in sentencing for the offence in question. As I have also mentioned, Mr Truslove had a number of prior drug convictions. However, he had only one prior conviction for drug dealing which attracted a sentence of 9 months' immediate imprisonment. The length of this sentence indicates that the offence was not particularly serious.
The most significant distinguishing feature between the appellant, on the one hand, and Mr Truslove, on the other, in relation to their culpability for the offences in question is their respective roles within the drug distribution hierarchy. As I have mentioned, the appellant was a methylamphetamine wholesaler and he was higher than Mr Truslove in the hierarchy. This distinguishing feature is underscored by the findings of fact made by the sentencing judges.
Wisbey DCJ found that Mr Truslove was merely a 'facilitator' in relation to the 428 g of methylamphetamine; that is, he was approached by a friend who asked him to source this quantity of the drug for him.
By contrast, the trial judge found that the appellant was part of a significant drug enterprise; his role in the enterprise was important; he was well organised; he was not a mere courier; his role in the enterprise included 'warehousing' a substantial amount of cash, being the proceeds of drug dealing, for people at a higher level in the drug distribution hierarchy; and he was trusted with the methylamphetamine and the cash by people at a very high level in the drug distribution network.
In my opinion, when all the relevant facts and circumstances of the offending by the appellant and Mr Truslove (including all aggravating and mitigating factors and their personal circumstances and antecedents) are examined and weighed, it is apparent that there were relevant differences between their offending and their personal circumstances and antecedents. After the differentiating facts and circumstances are brought to account, it is evident that Mr Truslove was treated more leniently than the appellant. However, I am not persuaded that the disparity in the sentencing outcomes, for the purposes of the parity principle, can properly be described as marked or clearly unjustifiable. There is no objective foundation for a legitimate sense of grievance on the appellant's part. It would not appear to the objective observer that justice has not been done as between the appellant and Mr Truslove or generally.
Ground 2 fails.

Appeal against sentence: conclusion

Although ground 3 has been made out in part, those errors in the trial judge's fact-finding, and any other errors made by his Honour, do not require that the appeal against sentence be allowed. I am satisfied, on the basis of my review of the trial record, the material before his Honour at the sentencing hearing and the submissions made on the appeal that a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.

I would grant an extension of time to appeal and leave to appeal on grounds 1 and 3, but the appeal should be dismissed.
MAZZA JA: I agree with Buss JA.