Criminal law - Propensity evidence - Section 31A Evidence Act 1906 (WA) - Admissibility of evidence of appellant's conviction for possession of methylamphetamine with intent to supply - Conviction in 2005 - Charges relating to offences of possession with intent to sell or supply of various drugs in 2004 and in 2006 - Whether circumstances in which pleas made at time of conviction for 2005 offence adequately put before jury - Whether miscarriage of justice

Criminal and procedure - Severance - Offences of possession with intent to sell or supply of methylamphetamine, MDMA and cannabis - Offences in 2004 - Offences of possession with intent to sell or supply of methylamphetamine and MDMA - Offences in 2006 - Whether indictment should have been severed - Whether evidence crossadmissible - Whether prejudice could be adequately guarded against by direction - Section 133(5) Criminal Procedure Act 2004 (WA)

Criminal law - Sentence - Prosecution appeal - Proper construction and effect of s 41(4) of the Criminal Appeals Act 2004 (WA) as amended by the Criminal Law and Evidence Amendment Act 2008 (WA) - Whether common law principles applicable to State appeals against sentence have been abrogated

Criminal law - Sentence - Prosecution appeal - Conviction on nine counts of possession with intent to sell or supply of drugs including methylamphetamine, MDMA and cannabis - Substantial quantities of methylamphetamine and MDMA - Aggregate sentence of 8 years' imprisonment - Whether manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 41(4)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Procedure Act 2004 (WA), s 40, s 98, s 133, s 135(5)
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

CACR 118 of 2008

Appeal allowed
Sentences imposed by the primary judge set aside
Respondent re-sentenced

CACR 122 of 2008

Leave to appeal on proposed ground 3 refused
Appeal dismissed

Category: A

Representation:

CACR 118 of 2008

Counsel:

Appellant: Mr P D Yovich & Ms K I Goddard-Borger
Respondent: Mr A E Eyers

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: D G Price & Co

CACR 122 of 2008

Counsel:

Appellant: Mr A E Eyers
Respondent: Mr P D Yovich & Ms K I Goddard-Borger

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)

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

Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417
Bahn v The State of Western Australia [2008] WASCA 40
Barnes v The State of Western Australia [2004] WASCA 258
Bellissimo v The Queen (1996) 84 A Crim R 465
Benter v The State of Western Australia [2005] WASCA 245
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Buiks v The State of Western Australia [2008] WASCA 194
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Chan v The Queen (1989) 38 A Crim R 337
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348
Colangelo v The State of Western Australia [2004] WASCA 294
Coleski v The State of Western Australia [2008] WASCA 260
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Dao v The State of Western Australia [2007] WASCA 237
Darwell v The Queen (1997) 94 A Crim R 35
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Delovski v The Queen [2002] WASCA 88
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Griffiths v The Queen (1977) 137 CLR 293
Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Hollingsworth v The Queen [2004] WASCA 73
Horsman v The State of Western Australia [2008] WASCA 190
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460
Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mejtska v The State of Western Australia [2009] WASCA 80
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Monument v The State of Western Australia [2007] WASCA 239
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Abboud [2005] NSWCCA 251
R v Henry [1999] NSWCCA 107
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Osenkowski (1982) 30 SASR 212
Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Ruich v The State of Western Australia [2006] WASCA 241
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Sinagra‑Brisca v The Queen [2004] WASCA 68
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Atherton [2007] WADC 106
The State of Western Australia v Bennett [2009] WASCA 93
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
The State of Western Australia v Cunningham [2008] WASCA 240
The State of Western Australia v Hatch [2008] WASCA 162
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v TIK [2009] WASCA 122
The State of Western Australia v Toothill [2007] WASCA 236
The State of Western Australia v Tran [2008] WASCA 183
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
The State of Western Australia v Wynne [2008] WASCA 195
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Upton v The State of Western Australia [2008] WASCA 54
Urbano v The State of Western Australia [2006] WASCA 147
Vagh v The State of Western Australia [2007] WASCA 17
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
Whittaker v The King (1928) 41 CLR 230
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Yates v The State of Western Australia [2008] WASCA 144
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297

Table of Contents

Pullin JA's reasons

The appeal against conviction - CACR 122 of 2008...................................................................... 9

Ground 1 and proposed ground 3........................................................................................... 10
Ground 2................................................................................................................................ 11

The State's Sentence appeal - CACR 118 of 2008..................................................................... 12

Ground 1................................................................................................................................ 17
Ground 2................................................................................................................................ 20

Buss JA's reasons

The counts in the indictment........................................................................................................ 21
Mr Atherton's appeal against conviction: relevant background facts and judicial rulings................ 22
Mr Atherton's grounds of appeal against conviction..................................................................... 29
Section 31A of the Evidence Act............................................................................................... 30
Mr Atherton's appeal against conviction: ground 1 and proposed ground 3: Mr Atherton's submissions 42
Mr Atherton's appeal against conviction: ground 1 and proposed ground 3: their merits.............. 42
Mr Atherton's appeal against conviction: ground 2: Mr Atherton's submissions........................... 46
Mr Atherton's appeal against conviction: ground 2: its merits...................................................... 46
Mr Atherton's appeal against conviction: conclusion.................................................................... 47
The State's appeal against sentence............................................................................................. 47
The State's appeal against sentence: grounds of appeal............................................................... 48
The State's appeal against sentence: general principles of appellate review................................... 48
The State's appeal against sentence: the nature of manifest inadequacy........................................ 49
The State's appeal against sentence: multiple offences: the 'one transaction' rule and the totality principle 49
The State's appeal against sentence: Mr Atherton's personal antecedents and the learned trial judge's sentencing remarks.................................................................................................................................................. 51
The State's appeal against sentence: Mr Atherton's submissions.................................................. 52
The State's appeal against sentence: maximum available penalty, reasonable consistency and comparable cases 52
The State's appeal against sentence: s 41(4) of the Criminal Appeals Act 2004 (WA) as amended by the Criminal Law and Evidence Amendment Act 2008 (WA)............................................................................... 68
The State's appeal against sentence: the majority's decision in BLM............................................. 73
The State's appeal against sentence: its merits............................................................................. 73
The State's appeal against sentence: conclusion........................................................................... 78

Miller JA's reasons

CACR 122 of 2008................................................................................................................... 79
The facts.................................................................................................................................... 79
Grounds of appeal...................................................................................................................... 98
Ground 2.................................................................................................................................. 115
Appeal CACR 118 of 2008..................................................................................................... 124
Ground 1.................................................................................................................................. 128
Ground 2.................................................................................................................................. 134
Conclusion............................................................................................................................... 135

PULLIN JA: The appellant appeals against his conviction on nine counts of possession of prohibited drugs with intent to sell or supply. The indictment read:
(1)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(3)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited plant, namely cannabis, with intent to sell or supply it to another.
(4)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited plant, namely cannabis, with intent to sell or supply it to another.
(5)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited plant, namely cannabis, with intent to sell or supply it to another.
(6)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited drug, namely 3,4‑Methylenedioxy‑N,A‑Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another.
(7)On 30 November 2004 at Maddington Steven John Atherton had in his possession a prohibited drug, namely 3,4‑Methylenedioxy‑N,A‑Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another.
(8)On 17 May 2006 at Maddington Steven John Atherton had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(9)On 17 May 2006 at Maddington Steven John Atherton had in his possession a prohibited drug, namely 3,4‑Methylenedioxy‑N,A‑Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another.
The evidence was that on 30 November 2004, the appellant committed the first seven of the charged offences. The drugs were found on or near his premises. Details about the quantity and purity of the drugs are set out in Miller JA's reasons.
On 25 January 2005, the appellant was found in possession of prohibited drugs with intent to supply them to another. He was charged with this offence and on 5 April 2005, he pleaded guilty in the Magistrates Court. The circumstances of this charge were that he was driving a vehicle, the police pulled him over and he was observed throwing a cigarette packet out of the car which contained prohibited drugs. Because of the quantity involved, the presumption was that he was in possession with intent to supply. In addition, his counsel, in making a plea in mitigation, admitted that the appellant intended to supply the drugs. Counsel said that the appellant's instructions were that he thought the drugs belonged to his girlfriend and he had intended to give them back to her (ie, to supply them to her).
On 17 May 2006, he committed a further two offences being the last two of the nine charged offences. The drugs the subject of these offences were found on the appellant's premises.
As may be observed, the seven offences committed on 30 November 2004 and the two offences committed on 17 May 2006 were made the subject of a single indictment. The appellant was found guilty on all nine counts after a trial before Judge Macknay and a jury.

The appeal against conviction - CACR 122 of 2008

The issues raised before trial and on this appeal were:
(1)whether the 2005 conviction could be led as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA) to assist in proof of the nine charges in the indictment; and
(2)whether the seven charges relating to 30 November 2004 should have been severed and tried separately from the two charges relating to 17 May 2006.
Judge O'Sullivan, at a pre‑trial hearing, determined that the 2005 conviction was propensity evidence, admissible pursuant to s 31A, and it was significantly probative of all counts in the indictment. That decision is challenged in this appeal. Judge O'Sullivan also determined that there should be no severance of charges because the evidence of the seven offences, committed on 30 November 2004, amounted to propensity evidence in proof of the two offences committed on 17 May 2006 and vice versa. That decision is challenged in this appeal. The grounds of appeal are set out in Miller JA's reasons. So too are the details of the proceedings before Judge O'Sullivan and his Honour's reasons for the decisions.

Ground 1 and proposed ground 3

The crux of ground 1 is the appellant's submission that because the appellant was the 'bailee' or 'temporary bailee' of the prohibited drugs and that 'there was no commercial motive in his possession of the drugs', the fact of the 2005 conviction was of no significant probative value in relation to the nine charged offences. Proposed ground 3 asserts that the prosecution had a duty to inform the jury of the factual basis of the 2005 conviction and the basis upon which the guilty plea was entered.
In my opinion, there is no merit in the submission or the assertion in relation to ground 1. The fact that a person is the 'owner', 'bailee', or 'temporary bailee' of drugs is irrelevant to a charge of possession of a prohibited drug with intent to supply. All that is relevant is that the appellant has possession of the prohibited drug (that is, that he exercised control over the drug knowing, or suspecting, the substance he controlled was prohibited drugs: see The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483) with the specified intent. Who owns the drug is not relevant to the issue of guilt.
The case of Buiks v The State of Western Australia [2008] WASCA 194 was referred to by the appellant, but it is distinguishable on the facts. In Buiks' case the charges before the jury were cultivation of a prohibited drug with intent to sell or supply and possession of a prohibited drug with intent to sell or supply. The appellant in that case, in effect, denied any involvement in cultivating the drugs and denied that he had ever seen the prohibited drug he was accused of possessing: [20]. The prior conviction which was led as propensity evidence was an offence of cultivation with intent to sell or supply. There was no formal proof of the prior conviction or agreed statement of material facts relating to the charge. The State accepted the appellant's claim that he had not been involved in the actual cultivation. The State also accepted that he had been convicted because he agreed to act as a caretaker of the hydroponic system for those who were responsible for the cultivation and because he provided technical advice and equipment to the cultivators. Buss JA (Miller JA agreeing) concluded that the particular circumstances surrounding the prior conviction did not rationally affect the assessment of the existence or otherwise of the facts in issue in relation to the charges the judge had to consider. In addition, one of the charges alleged possession and the earlier charge was cultivation not possession. Buiks' case turns very much on its own facts.
In the case under appeal, the counts in the indictment alleged that the appellant was in possession of the prohibited drugs with intent to sell or supply. The 2005 offence was the offence of possession of drugs with intent to supply. By his plea of guilty the appellant admitted that he committed the offence.

The January 2005 conviction was circumstantial evidence in relation to the nine charges in the indictment. It revealed the appellant's propensity to possess prohibited drugs with intent to supply. It was circumstantial evidence of a retrospectant kind in relation to the 2004 offences (counts 1 to 7) and of a prospectant kind in relation to the later charges on the indictment (counts 8 and 9). Although Brennan J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 594 stated that the characterisation of evidence as 'circumstantial' is not helpful in ascertaining the criterion of its admissibility, the fact is that such evidence is circumstantial, rather than direct evidence. The criterion of admissibility, of course, appears in s 31A. Evidence that a person is in possession of prohibited drugs, either shortly before or after the charged offences, with intent to supply, is evidence of significant probative value in proving the charged offences. A person's propensity to possess prohibited drugs with intent to supply on one occasion is evidence of significant probative value in support of a charge of possession of prohibited drugs on another occasion close in time to the former or subsequent occasion. This is so because it tends to rebut any defence that the accused was innocently found in the presence, and in apparent control, of prohibited drugs. See BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 298; Harriman at 596.
The result is that ground 1 should be dismissed and leave to add ground 3 should be refused.

Ground 2

Ground 2 alleged that the judge at the directions hearing erred in dismissing the appellant's application for charges 1 to 7 to be tried separately from charges 8 and 9, which application depended on a submission that evidence of the 2004 offences would be inadmissible in relation to the 2006 charges and vice versa. The 2006 charges provided retrospectant circumstantial evidence in support of the 2004 charges and the 2004 charges provided prospectant circumstantial evidence of the 2006 charges. It was propensity evidence as defined in s 31A. The evidence in each case had significant probative value and there was no risk of an unfair trial. I agree with Miller JA's reasons.

The State's Sentence appeal - CACR 118 of 2008

The State appeals on two grounds, namely:
(a)the sentencing judge erred in that the individual sentences imposed upon counts 1, 2, 6, 7, 8 and 9 were manifestly inadequate; and
(b)the sentencing judge erred in that the total aggregate sentence of 8 years' imprisonment failed to bear a proper relationship to the overall criminality of the respondent's conduct.
In relation to the first ground, it is necessary to examine the sentences imposed in relation to each count referred to in that ground to determine whether they were manifestly inadequate. Counts 1, 2 and 8 involved methylamphetamine and counts 6, 7 and 9 concerned MDMA. The second ground involves an examination of the aggregate sentence to determine whether it was manifestly inadequate.
An allegation that a sentence is manifestly inadequate is an allegation that there is an implicit error. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J said:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive (325).
However, this does not mean that the Court of Appeal decides what it thinks the appropriate sentence might be, compares it with the sentence imposed by the sentencing judge and then as a result of that comparison, declares whether or not the sentence under review is manifestly excessive or manifestly inadequate. To do that would be to declare that the sentencing judge erred because he or she arrived at a sentence which was different from the sentence arrived at by the Court of Appeal. That is an impermissible approach. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, the Full Bench of the High Court said at [15]:
Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.
When Gleeson CJ and Hayne J in Dinsdale said that the conclusion that a sentence is inadequate or excessive frequently does not admit of amplification, it is possible they had in mind cases where there is no range of sentences established by other cases. So, for example, in The State of Western Australia v TIK [2009] WASCA 122, there were no other cases suggesting a range of sentences for one of the offences. See [44]. It was not therefore possible to refer to the range of sentences customarily imposed. This is not such a case. Here, the District Court regularly sentences offenders for these type of offences charged and many such sentences are reviewed on appeal. In Chan (1989) 38 A Crim R 337, 342, and Vagh v The State of Western Australia [2007] WASCA 17 [47], it was said that it is necessary in determining whether a sentence is manifestly inadequate, to consider, among other factors, the standards of sentencing customarily observed with respect to that offence.
In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, which was an appeal concerning a charge of possession of methylamphetamine with intent to sell or supply, McLure J said:
In determining whether a sentence is within a sound discretionary range, it is proper to have regard to decisions in comparable cases. Indeed, part of this Court's role is to ensure an appropriate level of consistency in the sentences imposed in this State [46].
This accords with what Gleeson CJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [8].
McLure JA added in Tulloh:
[W]here as in this case, deterrence is the dominant sentencing consideration and personal circumstances and antecedents carry little weight, the range of a legitimate variation in sentences should be materially reduced and comparisons of greater assistance [46].
In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, I said:
It is unsatisfactory for any party to an appeal, contending that a sentencing judge imposed a sentence that was outside the range of sentences customarily imposed and therefore manifestly inadequate or manifestly excessive, to do so without making any effort to put before the court material showing what that range of sentences might be [36].
One final general observation which has to be made, is that while in drug cases it is wrong to focus solely on the quantity of the drug involved, it remains a very important factor which can be given significant weight, which is amply demonstrated in the cases. See Tulloh [50] and Wong [70].
In the written submissions in support of ground 1 the appellant stated:
Generally speaking, sentences of up to 10 years' imprisonment (where appropriate converted under the post‑transitional provisions) can be said to be within the customary sentencing range for larger quantities of methylamphetamine (that is quantities in excess of 65 g). In some cases, even where pleas of guilty have been entered, sentences as high as 13 years (allowing for the need to make a conversion under the post‑transitional provisions) or more have been imposed for multiple counts of possession of substantial quantities of methylamphetamine and MDMA. (Sinagra‑Brisca v The Queen [2004] WASCA 68)
It is true that for amounts of several hundred grams of prohibited drugs up to about 1 kg, there are several cases which suggest that sentences can range up to about 10 years' imprisonment in post‑transitional terms. See for example Quach v The Queen [1999] WASCA 210 where Ipp J said (Wallwork and White JJ agreeing):
I shall therefore proceed to express my view as to what would be an appropriate range for cases involving possession of heroin with intent to sell or supply, involving quantities of between about 600 to 700 grams, having a purity of between about 55% to 65%, where the offender is a courier who is well aware of the quantity and quality of the heroin in his possession, who actively participates in attempting to conceal the heroin from detection, who commits the offence for commercial gain (and not solely to finance an addiction), and who is close to the source of importation. In my opinion, the appropriate range of sentences for cases of this kind is between 11 to 15 years' imprisonment. I have come to this conclusion after taking into account the various sentences to which I have referred above, the maximum term of imprisonment laid down by Parliament, the importance in the drug chain of a courier of the kind described, and considerations of the kind mentioned by Owen J in La Rosa, namely that there is 'considerable justification for "firming up" sentences generally for offences involving drug trafficking' [26].
(The 15 years mentioned was a pre‑transitional sentence which converts to 10 years post‑transitional), Tulloh [49] (pre‑transitional converted to post‑transitional) and The State of Western Australia v Toothill [2007] WASCA 236. However, to submit as the State does, that sentences of up to 10 years can be within the customary sentencing range, says nothing at all about the bottom of an acceptable range. Sinagra‑Brisca v The Queen [2004] WASCA 68 which is cited by the State is of limited guidance in this case. In Sinagra‑Brisca, the quantities and value of drugs involved were much greater than this case. The value of drugs in count 1 in that case had an estimated street value of half a million dollars and the second count involved a quantity of 5.06 kg of methylamphetamine with a street value of $15 million to $20 million if cut to street level strength. Sinagra‑Brisca therefore shows that for offences involving possession of many kilograms of these types of drugs, then sentences in excess of 10 years may be imposed.
A sentencing judge is entitled to look to recent pronouncements of the Court of Appeal about an appropriate range of sentences for particular offences committed in particular circumstances. A recent decision of this court suggesting an appropriate range in a case involving quantities greater than those mentioned in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 is Toothill. In that case Le Miere J said (Wheeler JA agreeing):
Having regard to the quantity and purity of the drug involved and the nature and level of the respondent's participation in the distribution of the drug, the usual range of sentences for an offence such as possession of 499 g of methylamphetamine with intent to sell or supply is 6 - 10 years' imprisonment after taking into account the one third reduction required by cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) [39].
In that case, the 499 g of the drug was approximately 78% pure. The sentence under review in that case was a sentence imposed after trial. The State's appeal was allowed and a sentence of 6 years was substituted for a sentence of 4 years 8 months in relation to the offence involving the 499 g of methylamphetamine.
A party contending that a sentence is manifestly inadequate or manifestly excessive because it is outside the range of sentencing customarily imposed may have an onerous task to undertake. It is necessary to present to the court cases which show the real pattern of sentencing in relation to the offence in question. Once a list of cases showing the pattern of sentencing has been prepared, adjustments may have to be made to make the list meaningful. The task involves determining whether a case referred to involves a sentence imposed which is 'pre or post‑transitional'. In other words, whether the sentence was governed by the law as it stood before 31 August 2003 or after that date. Secondly, it is necessary to determine whether the sentence imposed was a sentence imposed after a plea of guilty, or not guilty. The quantity of drug involved and the purity has to be ascertained and considered. The status of the convicted person must then be considered: was the convicted person a mere courier deriving little or no financial benefit, a manufacturer, or a person at a high level in the distribution chain and with a substantial commercial interest. It is then necessary to consider whether the sentence was reduced because of cooperation with authorities, or parity considerations, or for totality reasons. For example, in Sinagra‑Brisca one of the sentences of imprisonment imposed was 3 years, but that sentence was imposed as a result of a reduction for totality reasons. The judge said that the appropriate starting point would have been 7 years, but that was for a plea of guilty. To compare that sentence with a case where the sentence under review was imposed after a trial, it would be necessary to gross up the sentence to remove the effect of the discount for the plea of guilty. That grossed up sentence would then have to be reduced by one‑third to compare it with the level of sentencing imposed after 31 August 2003. A further example is provided by reference to the case of Delovski v The Queen [2002] WASCA 88 which is referred to in Buss JA's reasons. The drug in that case was heroin and there was 524 g involved with a purity of 25%. The offender was sentenced to 9 years' imprisonment but that was after a plea of guilty. In this case there was no plea of guilty. Thus, the first step that has to be taken if the Delovski sentence is to be considered is to increase the 9 year sentence to the sentence which would probably have been imposed if there had been no plea of guilty. If a discount of 25% for the plea of guilty applied, then a sentence of 12 years would have been imposed if the conviction had followed a trial. Further, the sentence was imposed under the pre‑transitional provisions. It is therefore necessary for comparison purposes to reduce the 12 year sentence to 8 years because of the one‑third reduction of sentences in the post‑transitional era.
I give these examples not so as to put obstacles in the way of parties wishing to appeal on the basis that a sentence is manifestly excessive or manifestly inadequate, but to explain that a lot of work has to be carried out to support a submission that a sentence is manifestly excessive or manifestly inadequate by reference to sentences customarily imposed. It is not unreasonable to expect that when the State alleges manifest inadequacy in a sentence it will present all of the available material. After all, it is a party to every case where a relevant sentence is imposed.
If the parties do not do the work, then counsel submitting that a sentence is manifestly excessive or manifestly inadequate is implicitly suggesting that the court should, after the completion of the hearing, undertake the work in order to determine whether or not there is any merit in the mere assertion that the sentence is manifestly excessive or manifestly inadequate. It is not a professional approach for counsel to merely assert that a sentence is manifestly excessive or manifestly inadequate and then leave it to the court to carry out its own research. That carries with it the risk of procedural unfairness.
The State in this case did make a greater effort than it made in the case of Amoore to provide information to the court about the range of sentences customarily imposed, but as Justice Buss's reasons for decision reveal, there was more information available than was provided to the court.
For my part, I would prefer to rely upon cases involving sentences imposed since the 2003 legislative changes because there are now sufficient cases to enable a range of sentences to be determined for the type offences in question here.

Ground 1

In relation to ground 1, I first concentrate on count 2 which involved the greatest quantity of methylamphetamine (855.4 g of 8% to 13% purity). I have not set about carrying out the task which the State should have performed, but I refer to cases which have been identified by the State and Buss JA in his reasons. The cases are Barnes v The State of Western Australia [2004] WASCA 258, Benter v The State of Western Australia [2005] WASCA 245, Urbano v The State of Western Australia [2006] WASCA 147, Ruich v The State of Western Australia [2006] WASCA 241, Dao v The State of Western Australia [2007] WASCA 237, Monument v The State of Western Australia [2007] WASCA 239, Civello v The State of Western Australia [No 2] [2008] WASCA 163 and Toothill (referred to above). They are cases where the sentences were imposed under the post‑transitional provisions. They were all cases where there were counts involving a quantity of drugs exceeding the quantity involved in Bosworth (except for Ruich).
After adjusting those sentences (upward where there were pleas of guilty) the range of sentences suggested by these cases is between about 4 to 10 years for offenders sentenced after a trial. However, that would not lead me to a conclusion different from that expressed in Toothill that the range is more likely to be 6 to 10 years.
The highest sentence of 9 years 4 months for an individual charge was imposed in Benter. The charge in Benter involved possession of 222.4 g of methylamphetamine (about a quarter of the quantity involved in this case), but with a purity of between 53% and 65% (as opposed to 8% to 13% purity in this case). In Civello, a charge involved 287.807 g of methylamphetamine of a very high level of purity. The sentence after trial was 8 years. The lowest sentence imposed was in relation to another count in Civello, where the sentence was 4 years and in Dao, where two sentences of 4 years were imposed after a plea of guilty (5 years 4 months in each case if there had been no plea of guilty). In Toothill, the Court of Appeal increased a sentence on appeal to 6 years. Dao was refused leave to appeal on grounds of manifest excess by Miller JA. Dao's case involved a smaller quantity than was involved here (56.03 g and 119.2 g) but with a high purity level of 59% and 49%. The individual sentences in these cases are largely within the range referred by the Court of Appeal in Toothill.
In Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 234 (referred to with approval in Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [7]) where Deane and McHugh JJ referred to Isaac J's statement in Whittaker v The King (1928) 41 CLR 230, 248 that appeals by the Attorney General (ie the State) should be a rarity, their Honours added, in effect, that they should be reserved for cases which might produce 'manifest disparity or inconsistency in sentencing standards'. In Wong, Gleeson CJ at [8] referred to the statement of King CJ in R v Osenkowski (1982) 30 SASR 212, 213 (which has been quoted with approval many times) that:
The proper role for prosecution appeals … is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
The observations made by Isaacs J and King CJ and referred to in the previous paragraph (summarised and expanded upon in The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 [20] by Steytler P) were made before, and in circumstances where there was no equivalent of s 41(4) of the Criminal Appeals Act 2004 which was inserted by the Criminal Law and Evidence Amendment Act 2008 (WA). It had the effect of removing the double jeopardy principle. Section 41(4) is a provision which applies only if an appellable error is demonstrated and the court resentences. See The State of Western Australia v Wallam [2008] WASCA 117 [27] (McLure JA) and [54] (Miller JA). (These observations are not affected by the subsequent decision of The State of Western Australia v Richards [2008] WASCA 134). What was said by Isaacs J and King CJ and summarised by Steytler P about the frequency and proper role for prosecution appeals is not affected by s 41(4). Nothing said in The State of Western Australia v Cunningham [2008] WASCA 240 or The State of Western Australia v Bennett [2009] WASCA 93 leads me to any other conclusion. Of course, if the appeal is allowed, and it is necessary to resentence, then s 41(4) applies. However, I am at this stage, addressing the question as to whether the State is able to demonstrate whether any error has occurred.

In this case, the sentence of 6 years 8 months on count 2 fell within the range suggested by a recent decision of this court (Toothill) and thus the sentence imposed in relation to count 2 does not create disparity or inconsistency with sentencing standards in the District Court. There is nothing suggesting that the sentencing judge had any idiosyncratic view of this particular crime and, in my opinion, there was nothing so disproportionate about the sentence which would shock the public conscience.
The sentence imposed in relation to count 2 in this case (6 years 8 months) falls within the range of sentences suggested by the cases referred to above. It was a lenient sentence in the sense that it was towards the bottom of the range of sentences revealed by the cases referred to above. However, it was within the permissible range. The result is that I am not satisfied that the sentence imposed by the trial judge in relation to count 2 was manifestly inadequate.
The State also contended that the sentences imposed on counts 8 and 9 were manifestly inadequate. The State referred to Bosworth, where Miller JA, after a review of authorities, suggested that for smaller quantities of methylamphetamine (between 3 to 65 g) the range of sentences has been between 2 and 5 years. The State also referred to Vagh which involved 30.65 g of MDMA which resulted in a sentence of 2 years 1 month imprisonment. The State then argued by reference to these cases that the sentences of 16 months imposed in relation to counts 8 and 9 were manifestly inadequate. However, as Buss JA points out in his reasons, the sentences of 16 months in relation to counts 8 and 9 were sentences which had been reduced by the sentencing judge when applying totality principles. I am prepared to assume that if that adjustment had not been made, the sentences would have fallen within the range of sentences customarily imposed for smaller quantities of these drugs. In my opinion, the State has not demonstrated that the sentences on counts 8 and 9 were manifestly inadequate. There was no detailed argument directed to the other sentences under challenge. For my part, I do not see that any of them are manifestly inadequate. As a result, I would dismiss ground 1.

Ground 2

That leaves ground 2 which is a complaint about the application of the principles of totality. There is no question that his Honour had in mind totality principles. That is why he reduced the sentences in relation to counts 8 and 9 by the process of reduction of the sentences on counts 8 and 9 and why he ordered that those sentences be made concurrent with each other but served cumulatively on the total sentence passed in relation to counts 1 to 7. His Honour arrived at a total sentence of 8 years' imprisonment. Once again, the State cannot make out this ground merely by asserting manifest inadequacy. The State cannot support the ground by inviting this court to restate the facts, state what it considers to be the appropriate aggregate sentence and then to compare it with the aggregate sentence imposed by the sentencing judge. As the High Court unanimously stated in Carroll at [7], (echoing the point made in Lowndes) a case of inadequacy of sentence is not demonstrated by 'a mere disagreement by the Court of Appeal with the sentence actually imposed'. Their Honours cited the statement by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 where his Honour said:
[I]n an appropriate case, the Court of Criminal Appeal may exercise its influence towards … consistency of sentence. But that consistency is not to be sought or secured … by the Court of Criminal Appeal substituting in any case which the Attorney‑General cares to bring before it, its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge. I ought at this point to say that I agree with the reasons for judgment of Isaacs J in Whittaker v The King (1928) 41 CLR 230 at 248 ‑ 249 and accept the citations which he makes in support of his view. I would call attention to what his Honour says … and add that, in my opinion, the views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. They are in reality in a better position to assess the proper sentence than, in my opinion, is a court of appeal, error or breach of principle being absent (310).
The written submissions of the State in support of ground 2 merely restate the facts and then conclude with an assertion that the total sentence 'did not adequately reflect the respondent's proven criminality'. This is met by counsel for the respondent's counter assertion that the total sentence of 8 years was 'not manifestly inadequate'. The State did not, in its written or oral submissions concerning this ground, refer to any cases to show that the aggregate sentence of 8 years fell outside a range of

aggregate sentences revealed by other cases involving similar circumstances.

As stated above, it is not appropriate for the State, in effect, to invite this court to reserve its decision and then to decide the case by reference to its own research. The mere assertion that the aggregate sentence was manifestly inadequate, unsupported by any authorities suggesting an appropriate range of aggregate sentences for offenders who commit multiple offences (a fairly common circumstance), provides no foundation for this ground. The sentencing judge was a highly respected and experienced District Court judge. There is nothing suggesting that the judge held any idiosyncratic view about the total sentence which should be imposed for multiple offences of this kind and, in my opinion, the total sentence is not one which shocks the public conscience. The total sentence may have been lenient, but the assertion that the judge made an error has not been established. I would dismiss ground 2 and I would therefore dismiss the State's appeal in CACR 118 of 2008.
BUSS JA: The background facts relating to these appeals, one by Mr Atherton against his convictions and the other by the State against the sentences imposed on him, are set out in the reasons of Miller JA. I will not repeat them, except to the extent necessary to explain my reasons.

The counts in the indictment

Mr Atherton was convicted, after a trial in the District Court before Macknay DCJ and a jury, on nine counts in an indictment. Counts 1 to 7 were committed on 30 November 2004 and counts 8 and 9 on 17 May 2006. Counts 1, 2 and 8 alleged possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Counts 3, 4 and 5 alleged possession of a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a). Counts 6, 7 and 9 alleged possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a).
The quantity and purity of the drugs in question were as follows:

Count 1

142.2 g of methylamphetamine of 9% ‑ 10% purity

Count 2

855.4 g of methylamphetamine of 8% ‑ 13% purity

Count 3

50.4 g of cannabis

Count 4

133 g of cannabis

Count 5

353 g of cannabis

Count 6

About 3,000 ecstasy (MDMA) tablets of total weight 665 g and 28% purity

Count 7

342 g of MDMA in powder form of 9% purity

Count 8

28.7 g of methylamphetamine of 19% ‑ 33% purity

Count 9

31.77 g of MDMA of 28% ‑ 30% purity

The methylamphetamine the subject of count 1 had a wholesale value of at least $25,000, and the methylamphetamine the subject of count 2 had a wholesale value of at least $150,000. The MDMA the subject of count 6 had a wholesale value of about $84,000 to $120,000.

Mr Atherton's appeal against conviction: relevant background facts and judicial rulings

At a directions hearing on 21 June 2007, O'Sullivan DCJ heard an application by the State for leave to adduce, at Mr Atherton's trial on counts 1 to 9, evidence of his conviction on 5 April 2005 (the 2005 conviction) of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. Mr Atherton opposed the application. He had pleaded guilty to the offence in the Magistrates Court at Armadale. Magistrate S Malley recorded the conviction and sentenced him.
The statement of material facts annexed to the complaint read:
At about 5.45 pm on Tuesday the 25th of January 2005 the accused drove a White Holden Ute in a southern direction along Myola South Place, Maddington.
Officers from the South East Metropolitan Tactical Investigation Group drove past the accused. Upon identifying the accused the officers executed a 'U' turn. The accused proceeded to drive the vehicle into a driveway off Myola South Place and stop.
The accused threw a cigarette packet out of the passenger side of the vehicle. The cigarette packet landed on the driveway of the property.
A closer inspection of the cigarette packet revealed four small clip seal bags containing a total of approximately 3.9 grams of methylamphetamine.
When questioned regarding the drugs the accused denied ownership. At the time of the incident the accused had $956.50 in his possession.
The accused was subsequently arrested and the present charge preferred.
Also annexed to the complaint was the prosecution's assertion that when Mr Atherton was apprehended he said he was going to see a girlfriend and the cigarette packet did not belong to him.
Mr Atherton was represented in the Magistrates Court by a solicitor, Trevor Mark Andrews. An affidavit of Mr Andrews sworn 20 June 2007 was relied on by Mr Atherton at the directions hearing before O'Sullivan DCJ. In the affidavit, Mr Andrews deposed, relevantly:
6.The [appellant] instructed me that at the time of the offence he had borrowed his then girlfriend's motor vehicle to undertake a short errand. Whilst driving the vehicle he became aware that he was being followed by the police. As he was aware that the girlfriend was an occasional, recreational used [sic] of drugs, he quickly checked the console area of the vehicle and located what he believed to be a small amount of amphetamine in a cigarette packet.
7.In a panic he decided to try to get rid of the substance he believed was a drug, and he threw the substance out of the driver's window. I am unable to recall whether he threw only the drug or the entire packet of cigarettes.
8.He was subsequently stopped by the police and arrested. The police retrieved the drug that had been thrown out of the window.
9.The [appellant] instructed me that had the police not apprehended him he would have supplied the drug back to his then girlfriend, who he believed to be the owner of it.
10.On this basis the [appellant] admitted he was in possession of the drug, albeit only momentarily, and that his intention would have been to 'supply' the drug back to its rightful owner. On the bassi [sic] of his instructions I advised him that he should enter a plea of guilty. The [appellant] accepted this advice.
11.I subsequently appeared before Mr Malley SM and the charge was read to the [appellant], who pleaded guilty to it. I subsequently delivered a plea in mitigation to the court, during which I outlined the basis of the [appellant's] plea. This was in accordance with the instructions outlined above.
12.The prosecution which was represented by the police did not take issue with the explanation provided by the [appellant], nor did it seek that there be a trial of any issue raised.
13.In his reasons Mr Malley SM stated that in view of the fact that the [appellant] had already spent a number of months in custody since his arrest, he would sentence the [appellant] to a suspended term of imprisonment. He imposed a sentence of 7 months' imprisonment, to be suspended for a period I believe of 12 months.
14.The [appellant's] instructions to me, consistent with the plea of mitigation and the sentence imposed, were on the basis that the [appellant] was effectively a bailee of the drug, and that there was no commercial motive in his possession of it.
Mr Andrews was not required for cross‑examination.
O'Sullivan DCJ granted the State leave to adduce evidence of the 2005 conviction. See The State of Western Australia v Atherton [2007] WADC 106. His Honour held that the evidence of the conviction and of the appellant's offending conduct in relation to it was 'propensity evidence', as defined in s 31A(1) of the Evidence Act1906 (WA), and was 'significantly probative' of the counts in the indictment. The offending was consistent with the State's case that Mr Atherton was a dealer in prohibited drugs and was actively engaged in selling or supplying them both before and after January 2005 [28]. Also, his Honour considered that s 31A(2) was satisfied because the probative value of the evidence in question, when compared to the degree of risk of an unfair trial, was such that fair‑minded people would think the public interest in adducing it should prevail [29].
At the trial of counts 1 to 9, the prosecutor referred, in his opening, to Mr Atherton's plea of guilty in the Magistrates Court on 5 April 2005 (ts 20). He then said:
That offence was committed on 25 January 2005, some two months after the November 2004 search and about 17 months before the second search on 17 May 2006. On that date; that is, 25 January 2005, police found a scrap packet on the driveway just outside the passenger side door of Mr Atherton's car which Mr Atherton had just been driving.
In the scrap packet was four clipseal bags containing 3.9 grams of methylamphetamine in four separate clipseal bags. They constituted, the State say, four individual deals of methylamphetamine, commonly known as speed. The focus of this trial, of course, will be on what happened on 30 November 2004 and 17 May 2006.
Ordinarily you would not hear about the offence committed in January 2005, because it's not charged on this indictment. It is relevant, however, to an extent to consider the events of January 2005 in evaluating what happened in November 2004 and in May 2006. That will become plain during the trial, and you will be given detailed directions by his Honour about that, but it's important, I think, to acknowledge from the outset that you must not reason that just because Mr Atherton by his conviction engaged in dealing of a relatively small amount of methylamphetamine in January 2005, it follows that he was drug dealer in November 2004 and May 2006. That's described by the law as impermissible propensity reason[ing] and it's not permitted, and his Honour will talk in much more detail about that in due course (ts 21).
The prosecutor led this evidence from Detective Senior Constable Rohan Ingles in relation to the 2005 conviction:
The final topic, detective, is this: we have been dealing with the events of 30 November 2004 when you were present in operational command of a very lengthy search that was executed at Mr Atherton's premises on that date?---That's correct.
About seven weeks later or thereabouts, were you also on duty, on 25 January 2005?---Yes, I was.
You were still attached, I think, to the South East Metropolitan Tactical Investigation Group on that date?---That's correct.
Were you on duty in company with Detective Sergeant Standish who, I think, we saw at various stages during that search warrant?---Yes.
At about 5.45 pm, did you together with Detective Sergeant Standish drive onto Myola South Road in [Maddington]?---Yes.
Is that the road where Mr Atherton's premises are situated?---Yes, it is.
Did you, as you drove along, see a vehicle driving towards you?---Yes.
As the vehicle got closer were you able to identify the driver as the accused Steven Atherton?---Yes.
I think Detective Sergeant Standish was driving your vehicle. Is that correct?---That's correct.
Did he execute a U-turn and pursue Mr Atherton?---Yes.
Did Mr Atherton pull into a driveway?---Yes, he did.
Did you pull in behind his vehicle?---Yes, we did.
Were you present when Detective Sergeant Standish commenced to search the vehicle in which Mr Atherton had been driving?---Yes.
He had, I think, exited the vehicle at that stage, had he?---I believe so.
Did you observe a cigarette packet on the driveway just outside the passenger door of the vehicle?---Yes, I did.
At any time when you observed the vehicle, was there anyone else in the car other than Mr Atherton?---No, he was the sole occupant.
Was the cigarette packet opened in your presence by Detective Sergeant Standish?---Yes, it was.
Did you note the presence of a white crystal substance located in a clipseal bag?---Yes, I did.
As a result of that, was Mr Atherton arrested and conveyed to Cannington Police Station?---Yes, he was.
I'll ask you to look at a bundle of five photographs. Perhaps they can just be put up on the screen. The first photograph is a cigarette packet. Is that the cigarette packet that you've just talked about in your evidence?---Yes, it is.
Thank you. Those are the cigarettes that were within the packet?---Yes.
Thank you. That is a clipseal bag or bags which were also in the packet?‑‑‑Yes.
Thank you. Four clipseal bags appearing to contain a white powder that was within the cigarette packet. Is that correct?---That's correct.
Thank you. A further photograph of those four packets that contain the white powder. Is that so?---Yes.
The white powder was sent off for analysis. Is that so?---Yes, it was.
Was it determined that it contained approximately 3.9 grams of methylamphetamine?---That's correct.
To your knowledge, did Mr Atherton plead guilty to an offence of possessing that quantity of methylamphetamine with intent to sell or supply?---Yes, he did.
Was he dealt with by the Magistrates Court on 5 April 2005?---I believe so (ts 84 ‑ 86).
Mr Atherton's trial counsel cross‑examined Detective Ingles very briefly:
You've just been giving evidence about Mr Atherton pleading guilty to possession of a small amount of methylamphetamine?---Yes.
Has somebody else claimed responsibility for that since?---Sorry, has someone?
Yes?---I recall there was a statement or an affidavit received in relation to that. I can't recall by whom (ts 86).
Mr Atherton gave sworn evidence at the trial in his own defence. Neither counsel questioned him about the 2005 conviction.
In his closing address, the prosecutor made these submissions, relevantly:
If Mr Atherton, ladies and gentlemen, was not dealing in methylamphetamine in November 2004, it must have been a tremendous surprise to him to discover that a kilogram of methylamphetamine was buried so close to his property and that people were using scales in his property to weigh methylamphetamine. If he wasn't dealing methylamphetamine in November 2004, you might want to ask yourself why it was that he was dealing in methylamphetamine eight weeks later, on 25 January 2005.
You heard evidence from Detective Senior Sergeant Ingles that on that date, Mr Atherton was driving, his car was followed, it stopped, he was the only occupant of the car and near to the car was found a cigarette package or cigarette packet and when that cigarette packet was opened, found within it were found [sic] individual wraps of methylamphetamine which contained approximately 3.9 grams of methylamphetamine so four individual deals of methylamphetamine found next to Mr Atherton's car eight weeks after the search of 30 November 2004.
Moreover, ladies and gentlemen, Mr Atherton, you heard from the detective senior constable, pleaded guilty to that offence. So he pleaded guilty to the fact that on 25 January 2005 he was in possession of methylamphetamine with intent to sell or supply. We say he was, therefore, dealing in methylamphetamine on 25 January 2005. Now, you heard a question at page 86 of the transcript about another person who may have provided a statement or an affidavit claiming responsibility for that.
I would ask you to disregard that. We've never heard from that person. It's hearsay. The evidence that you do have that is not challenged is that the only person in the car was Mr Atherton. The packet was found next to Mr Atherton's car and Mr Atherton pleaded guilty and was convicted of possession of that methylamphetamine with intent to sell or supply it. That's the only admissible material before you in respect of this item, we submit.
We put it before you, as we indicated in opening the case to you, not because you must reason from that that it must be the case that Mr Atherton, because he was dealing in methylamphetamine on 25 January 2005, must have been so doing eight weeks earlier and must have been so doing in May 2006. That's not the correct approach but you are entitled to consider what we would describe as the objective improbability of a man who's not dealing in methylamphetamine on 30 November 2004 but is dealing on 25 January 2005 and then, again, is not dealing on 17 May 2006.
Were his activities on 25 January 2005 a one-off aberration or was it an example of conduct that started at the very latest on 17 August 2004 when these intercepted calls started, [and] continued through that period? Was something that was happening on 30 November 2004 when the police raided was [sic] again happening on 25 January 2005 and remained happening on 17 May 2006? (closing addresses ts 20 ‑ 21).

Mr Atherton's trial counsel did not mention the 2005 conviction in his closing address.
The learned trial judge, Macknay DCJ, directed the jury, in his summing up, to disregard Detective Ingles' evidence to the effect that a statement or affidavit had been produced in connection with someone else having sought to take responsibility for the offence the subject of the 2005 conviction (ts 391). Later, in his summing up, his Honour said:
The State, of course, also relies on the accused person's conviction, members of the jury, for being in possession of methylamphetamine with intent to sell or supply it in January 2005 ‑ or more accurately on the acknowledged conduct involved in the plea of guilty that led to that conviction - as showing that he had an involvement in dealing in drugs at that time. Again, as evidence to put in the scales, as part of the circumstances against which you judge the particular issue as to possession [in] each case, and as tending to rebut his innocent explanations.
If you consider the evidence relevant in that regard, it would be open to you to consider it in that way, again you could not, of course, reason simply by saying, 'The accused person had methylamphetamine with intent to sell or supply it then, so he must have been in possession of the other matters alleged by the State.' Again, you must be satisfied on the whole of the evidence in any particular case, to convict (ts 396 ‑ 397).
At the directions hearing on 21 June 2007, O'Sullivan DCJ also heard an application by Mr Atherton for a separate trial in respect of counts 8 and 9 in the indictment. The State opposed the application.
O'Sullivan DCJ reviewed the State's proposed evidence on counts 1 to 9. His Honour noted that counsel for Mr Atherton had not suggested the charges were not properly joined in the one indictment. After referring to s 133 of the Criminal Procedure Act 2004 (WA) and decisions of this court in relation to s 133(3) and s 133(5), his Honour said that if the State's proposed evidence in relation to counts 1 to 7 was also admissible on counts 8 and 9, and vice versa, Mr Atherton's application should be dismissed.
O'Sullivan DCJ decided that the State's proposed evidence on counts 1 to 7, and its proposed evidence on counts 8 and 9, was 'propensity evidence', as defined in s 31A(1) of the Evidence Act [18]. His Honour also decided that the evidence proposed to be adduced on each count was 'significantly probative' of the other counts [20]. Further, his Honour decided that the probative value of the evidence in question, when compared to the degree of risk of an unfair trial, was such that fair‑minded people would think the public interest in adducing it should prevail [24]. Section 31A(2) of the Evidence Act was therefore satisfied.
O'Sullivan DCJ observed:
It is clear that the issue of possession will loom large at trial. Counsel for the accused has already made mention of the possibility that others may have had access to the drugs. The State does not say that others could not have been involved with the accused, but it must of course prove possession of the drugs by him (or that he was a party to the offences). In addition, it must prove that the accused had an intention to sell or supply.
As counsel for the State put it, the nub of the State's argument is that at the relevant times the accused had a tendency to deal in drugs. It is in this context that the State wishes to present its case.
In my opinion evidence that on two separate occasions the accused had possession of significant quantities of prohibited drugs secreted on or near his property, together with other items consistent with drug dealing, is very important evidence indeed. It suggests the objective improbability of an explanation for the drugs consistent with the innocence of the accused. In my view the evidence is of significant probative value [21] ‑ [23].
His Honour concluded that the evidence in relation to counts 1 to 7 was also admissible on counts 8 and 9, and vice versa. He therefore dismissed Mr Atherton's application for a separate trial in respect of counts 8 and 9.

Mr Atherton's grounds of appeal against conviction

On 27 November 2008, Miller JA granted Mr Atherton leave to appeal on two grounds set out in the appellant's case. The grounds, without the supporting particulars, read:
Ground One
The learned Judge at the directions hearing erred in law in that he allowed the State's application to lead evidence of the Appellant's 2005 conviction of possession of a prohibited drug with intent to sell/supply.
Ground Two
The learned Judge at the directions hearing erred in law in that he dismissed the Appellant's application for charges 1 to 7 ('the 2004 charges') on the indictment to be tried separately to charges 8 and 9 ('the 2006 charges').
At the hearing of the appeal, counsel for Mr Atherton moved for leave to amend his grounds of appeal by the addition of a new ground 3. The new ground, without the supporting particulars, is as follows:
Ground Three
There was a miscarriage of justice occasioned by the absence of evidence at the Appellant's trial of the factual basis of the Appellant's April 2005 conviction in the Armadale Magistrates Court.
The court reserved its decision on whether leave to appeal on proposed ground 3 should be granted.

Section 31A of the Evidence Act

Section 31A of the Evidence Act is relevant to grounds 1 and 2 and proposed ground 3 of Mr Atherton's appeal. It is convenient to consider some aspects of s 31A before turning to the grounds.
Section 31A of the Evidence Act provides:
(1)In this section ‑
'propensity evidence' means ‑
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.
The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461:
The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (529).
See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.
Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of each of pars (a) and (b) of s 31A(2) have been satisfied.
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value' within s 31A(2)(a), at [60] ‑ [61]:
The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 ‑ 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 ‑ 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] ‑ [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194 [45] (Buss JA, Miller JA agreeing).
In Dair, Steytler P then examined the comparison which s 31A(2)(b) requires. The passage in his Honour's reasons is lengthy, but it is desirable to reproduce it. His Honour said:
Once the evidence is found to have significant probative value, either by itself or taken with other evidence, the court must engage in the process contemplated by s 31A(2)(b). Because there will already have been an assessment of the probative value of the evidence (taking into account the purpose for which it is adduced and its likely effect when considered together with the other evidence), it is necessary, next, to assess the degree of risk of unfairness in the trial that will be brought about by the admission of the evidence.
Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199, identify a threefold prejudice (only part of which is present in this case) involved in the introduction of similar fact evidence, as follows:
'1."The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts" (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: "it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing")). This comes down to the belief that the jury will over-estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:
"research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (Ibid at 322)."
2."The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences" (Wigmore … p 650). Thus, "there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged" (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: "sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest" (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
3."The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts" (Ibid; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512)'.
(See also Heydon [21135] ‑ [21150].)
When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto [27]. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, McHugh J said (235):
'If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning … And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. (original emphasis)
Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend upon the circumstances of the individual case. It is important to have regard for the purpose for which the evidence is admitted and to tailor the directions accordingly: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [77] (McHugh & Hayne JJ). It is also important to bear in mind what was said by Kirby J in BRS (330) as follows:
'It is … necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made. This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice.' (footnotes omitted)
Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J).
The comparison that these fair-minded people are to be assumed to have undertaken is problematic. As McHugh J pointed out in Pfennig (528), 'prejudicial effect [or, I would suggest, the degree of risk of an unfair trial] and probative value are incommensurables' that have 'no standard of comparison'. It is not easy to compare the probative value of the evidence with the degree of risk to the fairness of the trial that is brought about by its introduction. That risk arises because the jury might use the evidence in an impermissible way. In a case in which the evidence is led for its propensity value (for example, as identification evidence), the risk of unfairness might increase proportionately with the probative value of the propensity evidence. In effect, the test provided by subs 2(b) requires an assessment to be made whether fair-minded people would think that the interests of justice require the admission of the evidence despite the risk: cp the similar comments made by McHugh J in Pfennig (528) in respect of his statement of the position under the common law [62] ‑ [67].
These observations of the President were also approved in Horsman [23] and Buiks [46].
In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. No doubt, the other person will usually be the complainant (especially in the case of allegations of sexual assault against a child) or a class of persons of which the complainant is a member (again, especially in the case of allegations of sexual assault against a child or children). The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

The sentences

The counts in summary form and the sentences imposed in relation to each count were as follows:

Count 1

Possession of methylamphetamine with intent to sell or supply, 3 years 4 months' imprisonment.

Count 2

Possession of methylamphetamine with intent to sell or supply, 6 years 8 months' imprisonment.

Count 3

Possession of cannabis with intent to sell or supply, 8 months' imprisonment.

Count 4

Possession of cannabis with intent to sell or supply, 8 months' imprisonment.

Count 5

Possession of cannabis with intention to sell or supply, 12 months' imprisonment.

Count 6

Possession of MDMA with intent to sell or supply, 5 years 4 months' imprisonment.

Count 7

Possession of MDMA with intent to sell or supply, 3 years 4 months' imprisonment.

Count 8

Possession of methylamphetamine with intent to sell or supply, 16 months' imprisonment

Count 9

Possession of MDMA with intent to sell or supply, 16 months' imprisonment.

All sentences were ordered to be served concurrently with each other, save that the sentences on counts 8 and 9, whilst concurrent with each other, were ordered to be served cumulatively on count 2. This resulted in the aggregate sentence of 8 years' imprisonment. An order was made for eligibility for parole and other consequential orders followed.

The quantities and the purity of the drugs found

The weight of the respective drugs, in respect of which the respondent was convicted of the offences of possession with intent to sell or supply, is not a factor to be considered above all others in sentencing: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70] (a case involving importation of narcotics in respect of which it was held that not all offenders will know or even suspect how much narcotic is to be imported). However, the greater the quantity of certain drugs (for example, methylamphetamine) the more relevant it will be to the ultimate sentence to be imposed. Purity of the drug is, of course, of relevance. Commercial dealers can be taken to have some understanding of the degree of purity of drugs, and on all the evidence the appellant was a commercial dealer.
Against this background, I set out the quantity and purity of the respective drugs located as follows:

Count 1	142.2 g of methylamphetamine of 9% ‑ 10% purity
Count 2	855.4 g of methylamphetamine of 8% ‑ 13% purity
Count 3	50.4 g of cannabis
Count 4	133 g of cannabis
Count 5	353 g of cannabis
Count 6	3,000 ecstasy (MDMA) tablets of total weight 665 g and 28% purity
Count 7	342 g of MDMA in powder form of 9% purity
Count 8	28.7 g of methylamphetamine of 19% ‑ 33% purity
Count 9	31.77 g of MDMA of 28% ‑ 30% purity

An aggravating aspect of the offences committed by the respondent was the fact that after his arrest in relation to the offences the subject of counts 1 ‑ 7 on the indictment, he was released on bail. After the filing of an indictment dated 6 September 2005, which contained the offences the subject of counts 1 ‑ 7, the respondent then committed the offences giving rise to counts 8 and 9 on the indictment. His bail on the earlier charges had been renewed in the District Court only two weeks earlier, on 4 May 2006.
Commission of further offences whilst on bail for offences of a like nature is an aggravating factor which goes to the question of personal deterrence: R v Henry [1999] NSWCCA 107 [28] (Hulme J); Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 [56] (Rolfe AJ); The State of Western Australia v Hatch [2008] WASCA 162 [20] (McLure JA); Mejtska v The State of Western Australia [2009] WASCA 80 [24] (Miller JA).

Ground 1

This ground contends that particular sentences imposed upon the respondent were manifestly inadequate. They are the offences for possession with intent to sell or supply of:

(a)

the large quantities of methylamphetamine found in the 2004 search;

(b)

the large quantities of MDMA found in the 2004 search;

(c)

the smaller quantities of methylamphetamine and MDMA respectively, found in the 2006 search.

Penalties for offences involving substantial quantities of methylamphetamine/MDMA

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 is authority for the proposition that sentences of up to 15 years' imprisonment (pre‑transitional) for possession with intent to sell or supply large quantities of methylamphetamine are within a relatively consistent sentencing range. This is made clear in the judgment of McLure JA at [49], although her Honour also made it clear at [50] that it is wrong to focus solely on the quantity of drug involved. Her Honour said:
As the High Court made clear in Wong v The Queen (2001) 207 CLR 584; 76 ALJR 79 it is wrong to focus solely on the quantity of drug involved. It is also necessary to have regard to other matters including the offender's knowledge of the type and amount of drug the subject of the offence and the nature and level of the offender's participation in the distribution of the drug. However, whilst the quantity of drug cannot be the sole criterion in determining the sentence or sentencing range, it remains an important factor which can be given significant weight. This is amply demonstrated in the cases. There is a direct, but not linear or proportional, correlation between the amount of drug in the offender's possession and the sentence imposed. That is why when this Court surveys the decisions for consistency it often expressly converts the quantity of drug to a standard measure, either the pure quantity of the drug or alternatively the potential yield at a nominated level of street purity: Kezkiropoulos at [6]; Hafner at [23]; Marker at [88].
See also Miller J at [43]:
In this case the applicant was a large scale dealer in a drug which has been equated with the most serious drugs involved in drug trafficking. A sentence of 15 years' imprisonment was, in my view, open to the learned trial Judge. As his Honour pointed out, although the applicant could not be penalised for pleading not guilty, the fact remained that there was no remorse, acceptance of responsibility or facilitation of the course of justice which would justify any discount for that reason. The cases clearly establish that personal factors are of limited importance in cases of this nature.
The quantity of methylamphetamine the subject of the conviction in Tulloh was approximately 805 g. There were two packages which made up that quantity. One was 51% pure and the other 68% pure. The purity was thus significantly above that which was present in relation to counts 1 and 2 on the present indictment. Nevertheless, as Wong makes clear, quantity and purity are not necessarily determinative of sentences in cases such as this.
Since Tulloh it has been generally accepted in Western Australia that sentences of up to 10 years' imprisonment (where appropriate converted under the post‑transitional provisions) are within the customary sentencing range for possession with intent to sell or supply large quantities of methylamphetamine. I made this clear in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 at [40]:
The first category of cases to consider are those cases which involve possession, with intent to sell or supply, of large quantities of methylamphetamine. Generally speaking, sentences of up to 10 years' imprisonment (where appropriate converted under the post-transitional provisions) can be said to be within the customary sentencing range: Tulloh (supra); Cameron v The Queen [2000] WASCA 286; Grakalic v The Queen (2002) 27 WAR 19; Kezkiropoulos v The Queen (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; and Macri v The State of Western Australia [2006] WASCA 63. In some cases, even where pleas of guilty have been entered, sentences as high as 13 years or more have been imposed for multiple counts of possession of substantial quantities of methylamphetamine and MDMA: Sinagra-Brisca v The Queen [2004] WASCA 68.
More recently, in The State of Western Australia v Toothill [2007] WASCA 236, Le Miere AJA (after reviewing what had been said in Tulloh) said at [39]:
Having regard to the quantity and purity of the drug involved and the nature and level of the respondent's participation in the distribution of the drug, the usual range of sentences for an offence such as possession of 499 g of methylamphetamine with intent to sell or supply is 6 - 10 years' imprisonment after taking into account the one third reduction required by cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (The Sentencing Amendment Act). That was accepted by senior counsel for the respondent.
In the present case, the respondent was charged on 30 November 2004 with possession with intent or supply of two substantial quantities of methylamphetamine. The first was 142.2 g and the second 855.4 g. The second was by far the greater quantity, but the first was not insignificant.
It is unnecessary to refer in micro‑detail to the various cases in which persons have been sentenced in consequence of possession with intent to sell or supply of substantial quantities of methylamphetamine. A comparison with other cases can be of limited utility (Tulloh [46] (McLure JA). It is sufficient to say that the range in post‑transitional terms for possession with intent to sell or supply substantial quantities of methylamphetamine is between 6 to 10 years. That is the range that is applicable to the present case: The State of Western Australia v BLM [2009] WASCA 88.
The general principles applicable to the sentencing of drug traffickers are clear. They were restated by McLure JA in Hatch at [19] in the following terms:
The principles that apply to the sentencing of drug traffickers are well known. They have recently been reiterated by this court in The State of Western Australia v Saxild [2008] WASCA 156 and The State of Western Australia v Andela [2006] WASCA 77. General and personal deterrence are the predominant sentencing considerations with the consequence that ordinarily a sentence of immediate imprisonment is the only appropriate sentencing option.
In my opinion, the sentences imposed on counts 1 and 2 on the indictment faced by the respondent were below the generally established range for convictions of possession with intent to sell or supply of substantial quantities of methylamphetamine. On count 1 the quantity may have been at the lower end, but on count 2 it was a very substantial quantity. The respondent pleaded not guilty and was disentitled to any discount that might have been applicable in the case of a plea of guilty.

Resentencing on counts 1, 2, 6 and 7

In my opinion, an appropriate sentence on count 1 would have been 5 years' imprisonment and on count 2, 8 years' imprisonment. Those sentences are more appropriate to the range which has been fixed for possession with intent to sell or supply of large quantities of methylamphetamine.
MDMA is in the same category as methylamphetamine: The State of Western Australia v Higgins [2008] WASCA 157 [109] ‑ [111] (Steytler P). Possession with intent to sell or supply of substantial quantities of MDMA will bring sentences within the same range as sentences for possession with intent to sell or supply of substantial quantities of methylamphetamine (see Sinagra‑Brisca v The Queen [2004] WASCA 68).
In the present case, the quantities of MDMA the subject of counts 6 and 7 on the indictment, were substantial. Count 6 involved 665 g of MDA and count 7, 342 g of MDMA. The purity in relation to count 6 was 28%, and in relation to count 7 it was 9%.
Sentences of 5 years 4 months and 3 years 4 months respectively, were below the range of what could have been expected. Consistently with the view I have taken of the sentences imposed in relation to counts 1 and 2 on the indictment, I consider that the sentences on counts 6 and 7 were manifestly inadequate. Appropriate sentences should have been 7 years' imprisonment and 5 years' imprisonment respectively.

The sentences for intent to sell or supply for lesser quantities of methylamphetamine and MDMA

The quantity of methylamphetamine the subject of count 8 on the indictment was 28.7 g in total and the quantity of MDMA which was the subject of count 9 on the indictment was 31.77 g in total.
Sentences for possession with intent to sell or supply of lesser quantities of methylamphetamine (and by analogy MDMA) fall within a clear range. In Bosworth at [41] I reviewed a number of cases and concluded that in cases involving smaller quantities of methylamphetamine (between 3 and 65 g) sentences (converted in accordance with the post‑transitional provisions) had ranged from between 2 and 5 years. At [42], I concluded that sentences under the new regime (the post‑transitional regime) were often between 2 and 4 years' imprisonment but sometimes more.
In the present case, the quantities of methylamphetamine and MDMA respectively the subject of counts 8 and 9 on the indictment, fall squarely within that range. It is the appropriate range: The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [43] (Wheeler & Pullin JJA).
In Bosworth, I said at [41] that most of the cases which were reviewed involved pleas of guilty. The respondent in the present case did not plead guilty, but pleaded not guilty to all counts on the indictment.
The quantities of methylamphetamine and MDMA the subject of counts 8 and 9 on the indictment fall more or less within the middle of the range of 3 to 65 g. The respondent is not, however, entitled to the benefit of any discount for pleading guilty.

Re‑sentencing on counts 8 and 9

The sentences imposed were only 16 months' imprisonment in each case. The sentences of 16 months' imprisonment were 'adjusted' sentences to take account of the totality principle. They were therefore less than would otherwise have been imposed for those offences. This approach accords with authority: Mill v The Queen (1988) 166 CLR 59 at 63. However, even allowing for 'adjustment' of the sentences, they were manifestly inadequate. In my opinion, they should each have been sentences of at least 3 years' imprisonment.

The 'double jeopardy' principle is inapplicable

The respondent was sentenced on 31 July 2008. This was after the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA) which has done away with the double jeopardy principle and its consequence that when resentencing an offender on a prosecution appeal a sentence will ordinarily be less than a sentence which should have been imposed at first instance. The amending section applies to cases in which the sentence appealed dates after 27 April 2008. See The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229; The State of Western Australia v Porter [2008] WASCA 154 [21] (Miller JA).
I respectfully agree with Buss JA (at [160]) that is beyond argument that s 41(4) of the Criminal Appeals Act, as amended by the Criminal Law and Evidence Amendment Act 2008 (WA) abrogated the common law principles applicable to State appeals against sentence. Those common law principles had the effect that there was an attitude of restraint in relation to Crown appeals against sentence. It was sometimes said that Crown appeals should be a comparative rarity.
The justification for this was that a Crown appeal against sentence put the prisoner in jeopardy of punishment for a second time, a feature ordinarily missing from an appeal by a sentenced prisoner: See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [62].
It was made clear in The State of Western Australia v Cunningham [2008] WASCA 240 (Miller JA at [21] ‑ [22]; Steytler P and Buss JA agreeing) and in The State of Western Australia v Bennett [2009] WASCA 93 at [67] ‑ [68] (Miller JA, Owen & Buss JJA agreeing) that the common law principles applicable to State appeals against sentence have been abrogated, and a State appeal falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence. There is no question of the provisions of s 41(4)(b) merely abrogating the common law principle of moderation only if appellable error is demonstrated and the court is called upon to re‑sentence. I respectfully disagree with Pullin JA's view (at [36]) that the common law principles relating to the frequency and proper role of prosecution appeals are not affected by s 41(4) of the Criminal Appeals Act.In my opinion, ground 1 of the ground of appeal is therefore made out. I would quash the sentences of imprisonment imposed in relation to counts 1, 2, 6, 7, 8 and 9 and substitute for them the sentences that I have mentioned, with the result that the sentences on counts 1 ‑ 9 should have been:

Count 1

5 years' imprisonment

Count 2

8 years' imprisonment

Count 3

8 months' imprisonment

Count 4

8 months' imprisonment

Count 5

12 months' imprisonment

Count 6

7 years' imprisonment

Count 7

5 years' imprisonment

Count 8

3 years' imprisonment

Count 9

3 years' imprisonment

Ground 2

Ground 2 of the grounds of appeal contends that the total sentence failed to bear a proper relationship to the overall criminality. It is a ground which raises the totality principle. The principle has been expressed many times, but was succinctly put by Ipp J in Jarvis v The Queen (1993) 20 WAR 201, at 206 ‑ 207 in the following passages:
[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v R (1989) 3 WAR 372 at 379 to 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
...
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
I have already mentioned that an aggravating aspect of the respondent's conduct was the fact that he was on bail in relation to the offences the subject of counts 1 ‑ 7 on the indictment when he committed the offences the subject of counts 8 and 9. He did not have the benefit of pleading guilty and thus there was no question of any discount for remorse. The appellant was a trafficker in dangerous drugs of addiction and I have already referred to the principles applicable to the sentencing of drug traffickers.
The sentencing judge decided to make the sentences on counts 1 ‑ 7 concurrent and those on counts 8 ‑ 9 concurrent with each other, but cumulated the sentences on counts 8 and 9 with the sentence on count 2. Adopting that course with the sentences I consider to be appropriate, the result would be an effective sentence of 11 years' imprisonment.
That sentence in my opinion, would more properly reflect the criminality of the respondent's behaviour. It could not be suggested that it is a crushing sentence, such that would destroy any future hope on the part of the respondent. He was 48 years of age, had no prior convictions prior to 2004, but otherwise had no personal circumstances which could be said to be mitigatory. In any event, less weight is given to matters personal to offenders in drug trafficking cases than might be the case in relation to other offences (Bellissimo v The Queen (1996) 84 A Crim R 465, 469; The State of Western Australia v Andela [2006] WASCA 77 [17] (McLure JA)).
Ground 2 is therefore properly made out. In my opinion, a more appropriate aggregate sentence was one of 11 years' imprisonment.

Conclusion

I would allow the appeal against sentence and resentence the respondent in the way in which I have indicated. I would therefore quash the sentences of imprisonment imposed by the sentencing judge in relation to counts 1, 2, 6, 7, 8 and 9 and substitute for those sentences those which I have previously indicated. I would accumulate the sentences in the same way in which the sentencing judge did, but the result is that the aggregate sentence is one of 11 years' imprisonment rather than one of 8 years' imprisonment. The date upon which the sentence takes effect remains the same. The respondent remains eligible for parole.

Details

AGLC: The State of Western Australia v Atherton [2009] WASCA 148
Case: [2009] WASCA 148
Decision Date: 25 AUGUST 2009

CaseChat Overview and Summary

The State of Western Australia appealed against the convictions and sentences of the appellant, Atherton, who was found guilty of nine counts of possession with intent to sell or supply of drugs, including methylamphetamine, MDMA, and cannabis. The appeal centred on the admissibility of the appellant's 2005 conviction for possession of methylamphetamine with intent to supply, the severance of the indictment, and the proportionality of the sentence. The appellant was acquitted of a charge relating to possession of cannabis with intent to sell or supply. The appeal was heard by the Supreme Court of Western Australia.

The key legal issues were whether the 2005 conviction was admissible under s 31A of the Evidence Act, whether the indictment should have been severed, whether the evidence was cross-admissible, and whether the sentence was manifestly inadequate. The court needed to determine whether the appellant's 2005 conviction was properly before the jury and if its admission led to a miscarriage of justice. Additionally, the court had to consider whether the offences were properly joined and whether the prejudice from the evidence could be guarded against by direction under s 133(5) of the Criminal Procedure Act. Lastly, the court assessed whether the sentence was manifestly inadequate under s 41(4) of the Criminal Appeals Act.

The court found that the appellant's 2005 conviction was admissible under s 31A of the Evidence Act. The court concluded that the evidence had significant probative value and that fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The court further found that the indictment should not have been severed as the offences were properly joined, and the prejudice from the evidence could be guarded against by direction. Finally, the court held that the sentence was not manifestly inadequate and dismissed the appeal.

The appeal was dismissed, and the convictions and sentences of the appellant were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 31A of the Evidence Act provides: (1)In this section ‑ 'propensity evidence' means ‑ (a)similar fact evidence or other evidence of the conduct of the accused person; or(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑ (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292. The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461:The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (529). See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself. Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of each of pars (a) and (b) of s 31A(2) have been satisfied.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

The State of Western Australia v Atherton [2009] WASCA 148

Most Recent Citation

Whitelaw v Quin [2014] WASC 19

Cases Citing This Decision

Walker v The State of Western Australia [2024] WASCA 153
Citation 1 (Para 6)

…ore [42]. His Honour observed that most of the cases he had reviewed involved pleas of guilty. See also Atherton v The State of Western Australia [2009] WASCA 148 [377].…
The State of Western Australia v Narkle [2021] WADC 95
Citation 2 (Para 2)

…ldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127] - [130]; Dair [62] - [67]; Atherton v The State of Western Australia [2009] WASCA 148; (2009) 197 A Crim R 119 [327].…
The State of Western Australia v Demetriou [2020] WADC 167
Citation 3 (Para 2)

…na [52], [59]; Donaldson v The State of Western Australia [2020] WASCA 193 [127] - [130]; Dair [62] - [67]; The State of Western Australia v Atherton [2009] WASCA 148 [327].…
R v Yavuz (No 2) [2020] ACTSC 248
Citation 4 (Para 1)

…hile on conditional liberty, or while in custody, has been described in R v Ng [2012] WASCA 180 at [42] and The State of Western Australia v Atherton [2009] WASCA 148; 197 A Crim R 119 at [105] as a “blatant disregard for the law”. The commission of an offence while in custody or on conditional liberty is in either…
The State of Western Australia v GT [2020] WADC 65
Citation 5

…ALR 359 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 RMD v The State of Western Australia [2017] WASCA 70 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v Jackson [2019] WASCA 118 The State of Western Australia v WCM [2014] WASCA 38 Tradesman Technologies Pty Ltd v Amedu…
La Bianca v The State of Western Australia [2019] WASCA 105
Citation 6

…Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A…
The State of Western Australia v Morisey [2018] WADC 163
Citation 7

…E v The State of Western Australia [2012] WASCA 185 Asplin v The State of Western Australia [2013] WASCA 72 Atherton v The State of Western Australia [2009] WASCA 148 Bennett v The State of Western Australia [2012] WASCA 70 Beverland v The State of Western Australia [2009] WASCA 2 Chen v The State of Western Austra…
Banks v The State of Western Australia [2018] WASCA 130
Citation 8 (Para 5)

…[87] Respondent's submissions [56] - [59]; appeal ts 35. [88] Respondent's submissions [45], referring to The State of Western Australia v Atherton [2009] WASCA 148 [77] ‑ [78]. [89] Respondent's submissions [63]; appeal ts 34 ‑ 35, 36. [90] Respondent's submissions [63]. [91] Respondent's submissions [63] - [64],…
Mussarri v The State of Western Australia [2018] WASCA 46
Citation 9 (Para 4)

…se decisions. [14] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302. [15] The State of Western Australia v Atherton [2009] WASCA 148. [16] Pham v The State of Western Australia [2011] WASCA 244. [17] Tanner v The State of Western Australia [2013] WASCA 142. [18] Nembousse v The Sta…
Abbott v The State of Western Australia [2018] WASCA 45
Citation 10

…n Australia [2013] WASCA 142 Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199…
Chen v The State of Western Australia [2017] WASCA 114
Citation 11 (Para 2)

…v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Kitis v The State of Western Australia [2013] WASCA 34; Ozan v The State of Western Australia [2013] WASCA 27; Milenkovski…
Franklin v The State of Western Australia [2017] WASCA 102
Citation 12 (Para 6)

…fender will almost always be of limited significance, although they are not completely irrelevant.[29] [29] The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125].…
Potaka v The State of Western Australia [2017] WASCA 98
Citation 13 (Para 3)

…offender will almost always be of limited significance, though they are not completely irrelevant.[23] [23] The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125].…
The State of Western Australia v Nillson [2017] WASCA 68
Citation 14 (Para 4)

…n offender will almost always be of very limited significance, although they are not completely irrelevant: The State of Western Australia v Atherton [2009] WASCA 148 [125].…
Dias v The State of Western Australia [2017] WASCA 49
Citation 15 (Para 6)

…n offender will almost always be of very limited significance, although they are not completely irrelevant: The State of Western Australia v Atherton [2009] WASCA 148 [125].…
Mitchell v Purvis [2016] WASC 351
Citation 16 (Para 6)

…The respondent referred to The State of Western Australia v Atherton [2009] WASCA 148 in which the offender was sentenced to terms of 8 months' imprisonment in respect of each of two offences of possession of cannabis with intent to sell or supply involving 50.4 g and 133 g of cannabis. Reference was also made to H…
Yiu v The State of Western Australia [2016] WASCA 172
Citation 17 (Para 3)

…State of Western Australia [2010] WASCA 202; Tanner v The State of Western Australia [2013] WASCA 142; and The State of Western Australia v Atherton [2009] WASCA 148.…
Lum v The State of Western Australia [2016] WASCA 145
Citation 18

…v The State of Western Australia [2004] WASCA 304 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v Bruce [2004] WASCA 226 Tran v The State of Western Australia [2016] WASCA 37 Vodanovic v The Queen (Unreported, WASC…
The State of Western Australia v Warren [No 2] [2016] WADC 91
Citation 19 (Para 7)

…e period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: The State of Western Australia v Atherton [2009] WASCA 148.…
Stebbins v Tasmania [2016] TASCCA 6
Citation 20 (Para 15)

…ss importance in cases of this nature, particularly those involving importation: Ramos (2000) 112 A Crim R 339; State of Western Australia v Atherton [2009] WASCA 148 at [125] (reported at (2009) 197 A Crim R 119 but omitting the relevant passage); Okafor v The Queen [2007] NSWCCA 147 at [47]; Onuorah v The Queen […
The State of Western Australia v Penny [2016] WADC 19
Citation 21 (Para 8)

…e period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: The State of Western Australia v Atherton [2009] WASCA 148.…
Maric v The State of Western Australia [2015] WASCA 190
Citation 22

…2014] WASCA 189 Stoysich v The State of Western Australia [2014] WASCA 208 Sumption v Gaunt [2013] WASC 258 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v Hunter [2014] WASCA 87 The State of Western Australia v Reid [2012] WASCA 109 The State of Western Australia v Thomp…
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Citation 23 (Para 4)

…erations relevant to sentencing for offences in dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125]. The major sentencing considerations in such cases are general and personal deterrence. The weight of the drugs is not…
Hoang v The State of Western Australia [2015] WASCA 130
Citation 24

…au v The State of Western Australia [2010] WASCA 3 Tanner v The State of Western Australia [2013] WASCA 142 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v BLM [2009] WASCA 88 The State of Western Australia v Toothill [2007] WASCA 236 Tran v The State of Western Australia…
The State of Western Australia v Wilson [2015] WASCA 119
Citation 25

…010] WASCA 3 Stapleton v The Queen [2004] WASCA 130 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Hunter [2014] WASCA 87 The State of Western Australia v Littlefair [2013] WASCA 177 The Sta…
The State of Western Australia v Langdon [2015] WASC 26
Citation 26 (Para 27)

…though it is not necessarily determinative: see T (a child) v The Queen (1998) 20 WAR 130, 134 (Pidgeon J); The State of Western Australia v Atherton [2009] WASCA 148 [12] (Pullen JA) on s 131A of the Evidence Act (but of application in this area too, in my view); and Criminal Law In Western Australia s 30,167.40.…
QJS v The State of Western Australia [2015] WASCA 9
Citation 27

…Queen [2000] WASCA 283; (2000) 116 A Crim R 398 Than-Htay v The State of Western Australia [2011] WASCA 68 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Drew [2012] WASCA 86 The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A…
Seeto v The State of Western Australia [2014] WASCA 221
Citation 28 (Para 3)

…erations relevant to sentencing for offences of dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125]. The major sentencing considerations in such cases are general and personal deterrence. The weight of the drugs is not…
Stewart v The State of Western Australia [2014] WASCA 195
Citation 29

…n v The State of Western Australia [2013] WASCA 70 Samuel v The State of Western Australia [2004] WASCA 154 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 The State of Western Australia v Reid [2…
The State of Western Australia v Baker [2014] WADC 140
Citation 30 (Para 8)

…ralia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.…
Bui v The State of Western Australia [2014] WASCA 168
Citation 31 (Para 2)

…The sentencing considerations for offences of dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148: The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Be…
Doherty v The State of Western Australia [2014] WASCA 142
Citation 32 (Para 6)

…The sentencing considerations for offences of dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148 [125]: The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.…
The State of Western Australia v Hunter [2014] WASCA 87
Citation 33

…n v The State of Western Australia [2011] WASCA 258 Nelis v The State of Western Australia [2000] WASCA 194 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v Fleming [2010] WASCA 162 The State of Western Australia v Littlefair [2013] WASCA 177 TLM v The State of Western Aus…
Guler v The State of Western Australia [2014] WASCA 83
Citation 34 (Para 21)

…The Queen [2006] WASCA 248; (2006) 205 FLR 414; Monument v The State of Western Australia [2007] WASCA 239; The State of Western Australia v Atherton [2009] WASCA 148; Koncurat v The State of Western Australia [2010] WASCA 184; Galbraith v The State of Western Australia [2011] WASCA 70 and Pham .…
The State of Western Australia v Dos Santos [2014] WADC 21
Citation 35 (Para 20)

…ralia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.…
Whitelaw v Quin [2014] WASC 19
Citation 36 (Para 9)

…e involves a complex and multi-faceted comparative exercise: see, for example, the comments of Pullin JA in The State of Western Australia v Atherton [2009] WASCA 148 [27]. Further, as Wheeler JA observed in Hume : …it is very difficult to compare offences of reckless driving. In particular, however bad the driving…
The State of Western Australia v Krishna [2014] WADC 2
Citation 37 (Para 10)

…ralia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.…
The State of Western Australia v Littlefair [2013] WASCA 177
Citation 38 (Para 5)

…[2007] WASCA 237; Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199; Lam v The State of Western Australia [2010] WASCA 61; Haasy v The State of Western Australia [2010] WASCA 207; Lynch v The…
RIF v The State of Western Australia [2013] WASCA 88
Citation 39

…WASCA 215; (2010) 41 WAR 149 Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119…
Kitis v The State of Western Australia [2013] WASCA 34
Citation 40 (Para 8)

…ng in count 6. See Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Lam v The State of Western Australia [2010] WASCA 61; and the cases reviewed in those decisions.…
Lai v The State of Western Australia [2012] WASCA 181
Citation 41 (Para 3)

…ritten submissions in respect of this ground referred to and summarised at some length the following cases: The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Galbraith v The State of Western Australia [2011] WASCA 70; Pham v The State of Western Australia ; Basilio v The State of…
R v Ng [2012] WASCA 180
Citation 42 (Para 6)

…convicted after the trial before Wager DCJ and a jury. This reveals a blatant disregard for the law. See The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] and Moreton v The State of Western Australia [2011] WASCA 258 [47(d)], and the cases there cited. It underscores the nee…
The State of Western Australia v Munda [2012] WASCA 164
Citation 43 (Para 2)

…ustralia v Cunningham [2008] WASCA 240 [21]; The State of Western Australia v Bennett [2009] WASCA 93 [67]; The State of Western Australia v Atherton [2009] WASCA 148; The State of Western Australia v SJH [2010] WASCA 40 [92]; The State of Western Australia v JWRL (a child) [2010] WASCA 179 [4]; and The State of We…
Ugle v The State of Western Australia [2012] WASCA 104
Citation 44

…(2009) 197 A Crim R 319 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 Thorn v The State of Western Australia [200…
Skinner v The State of Western Australia [2012] WASCA 99
Citation 45 (Para 7)

…ffences. This reveals a blatant disregard for the law. It underscores the need for personal deterrence. See The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] (Buss JA) and the cases there cited.…
Preston v The State of Western Australia [2012] WASCA 64
Citation 46

…[2000] HCA 48; (2000) 201 CLR 488 PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Osborne [2007] WASCA 183 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 W…
MGM v The State of Western Australia [2012] WASCA 24
Citation 47 (Para 12)

…s such as methylamphetamine, heroin and ecstasy, the sentence imposed upon E was unjustifiably lenient: see The State of Western Australia v Atherton [2009] WASCA 148; Galbraith v The State of Western Australia [2011] WASCA 70; Monument v The State of Western Australia [2007] WASCA 239; Stapleton v The Queen [2004]…
Reid v The State of Western Australia [2012] WASCA 23
Citation 48 (Para 11)

…possession of methylamphetamine or MDMA, with intent to sell or supply, were reviewed in Tulloh ; Higgins; The State of Western Australia v Atherton [2009] WASCA 148; Koncurat v The State of Western Australia [2010] WASCA 184; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. It is unnecess…
Moreton v The State of Western Australia [2011] WASCA 258
Citation 49

…v The State of Western Australia [2010] WASCA 150 Swains v The State of Western Australia [2007] WASCA 251 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 The State of Western Australia v Johnson…
Director of Public Prosecutions v Chatters [2011] TASCCA 8
Citation 50 (Para 1)

…190 A Crim R 430 and Western Australia v Bennett (2009) 194 A Crim R 137, the consideration of the issue culminating in Western Australia v Atherton [2009] WASCA 148.…

Cases Cited

Statutory Material Cited

McMillan and McMillan [2019] FamCA 928
Citation 1 (Para 7)

…ed in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations rel…
Johnson v The Queen [2018] HCA 48
Citation 2

…n [2004] WASCA 73 Horsman v The State of Western Australia [2008] WASCA 190 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mada v The Queen [2003] WASCA 1; (2003) 137 A C…
Reid and Secco [2018] FamCA 95
Citation 3

…estern Australia [2007] WASCA 239 Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 Pop v The Queen [2000] WASCA 283; (2000) 116 A…
Donaldson v Western Australia [2010] WASC 264
Citation 4 (Para 5)

…sidered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia…
The State of Western Australia v TIK [2009] WASCA 122
Citation 5 (Para 5)

…ible they had in mind cases where there is no range of sentences established by other cases. So, for example, in The State of Western Australia v TIK [2009] WASCA 122, there were no other cases suggesting a range of sentences for one of the offences. See [44]. It was not therefore possible to refer to the range of…
The State of Western Australia v BLM [2009] WASCA 88
Citation 6 (Para 3)

…counts 8 and 9 on the indictment, fall squarely within that range. It is the appropriate range: The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [43] (Wheeler & Pullin JJA).…
Mejtska v The State of Western Australia [2009] WASCA 80
Citation 7 (Para 2)

…137 A Crim R 460 [56] (Rolfe AJ); The State of Western Australia v Hatch [2008] WASCA 162 [20] (McLure JA); Mejtska v The State of Western Australia [2009] WASCA 80 [24] (Miller JA).…
Carroll v The Queen [2009] HCA 13
Citation 8 (Para 4)

…In Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 234 (referred to with approval in Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [7]) where Deane and McHugh JJ referred to Isaac J's statement in Whittaker v The King (1928) 41 CLR 230, 248 that appeals by the Attorney General (ie the State) sh…
The State of Western Australia v Bennett [2009] WASCA 93
Citation 9 (Para 5)

…is not affected by s 41(4). Nothing said in The State of Western Australia v Cunningham [2008] WASCA 240 or The State of Western Australia v Bennett [2009] WASCA 93 leads me to any other conclusion. Of course, if the appeal is allowed, and it is necessary to resentence, then s 41(4) applies. However, I am at this…
The State of Western Australia v Cunningham [2008] WASCA 240
Citation 10 (Para 5)

…P about the frequency and proper role for prosecution appeals is not affected by s 41(4). Nothing said in The State of Western Australia v Cunningham [2008] WASCA 240 or The State of Western Australia v Bennett [2009] WASCA 93 leads me to any other conclusion. Of course, if the appeal is allowed, and it is necessar…
Wallace and Stelzer [2008] FamCA 935
Citation 11 (Para 7)

…Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed…
The State of Western Australia v Wynne [2008] WASCA 195
Citation 12

…v Tran [2008] WASCA 183 The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 The State of Western Australia v Wynne [2008] WASCA 195 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Upton v The State of Western Australia [2008] WASCA 54 Urbano v The State of Western Austral…
Buiks v The State of Western Australia [2008] WASCA 194
Citation 13 (Para 3)

…The case of Buiks v The State of Western Australia [2008] WASCA 194 was referred to by the appellant, but it is distinguishable on the facts. In Buiks' case the charges before the jury were cultivation of a prohibited drug with intent to sell or supply and possession of a prohibited drug with intent to sell or supp…
Horsman v The State of Western Australia [2008] WASCA 190
Citation 14 (Para 6)

…ate of Western Australia v Osborne [2007] WASCA 183 [13]. The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194 [45] (Buss JA, Miller JA agreeing).…
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Citation 15

…stralia [2006] WASCA 162; (2006) 165 A Crim R 482 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Griffiths v The Queen (1977) 137 CLR 293 Guy v The Queen [2004] WASCA 9;…
The State of Western Australia v Tran [2008] WASCA 183
Citation 16

…tate of Western Australia v TIK [2009] WASCA 122 The State of Western Australia v Toothill [2007] WASCA 236 The State of Western Australia v Tran [2008] WASCA 183 The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 The State of Western Australia v Wynne [2008] WASCA 195 Tulloh v The Qu…
The State of Western Australia v Hatch [2008] WASCA 162
Citation 17 (Para 2)

…ry [1999] NSWCCA 107 [28] (Hulme J); Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 [56] (Rolfe AJ); The State of Western Australia v Hatch [2008] WASCA 162 [20] (McLure JA); Mejtska v The State of Western Australia [2009] WASCA 80 [24] (Miller JA).…
The State of Western Australia v Porter [2008] WASCA 154
Citation 18 (Para 1)

…dates after 27 April 2008. See The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229; The State of Western Australia v Porter [2008] WASCA 154 [21] (Miller JA).…
The State of Western Australia v Higgins [2008] WASCA 157
Citation 19 (Para 2)

…MDMA is in the same category as methylamphetamine: The State of Western Australia v Higgins [2008] WASCA 157 [109] ‑ [111] (Steytler P). Possession with intent to sell or supply of substantial quantities of MDMA will bring sentences within the same range as sentences for possession with intent to sell or supply of…
The State of Western Australia v Saxild [2008] WASCA 156
Citation 20 (Para 7)

…y to the sentencing of drug traffickers are well known. They have recently been reiterated by this court in The State of Western Australia v Saxild [2008] WASCA 156 and The State of Western Australia v Andela [2006] WASCA 77. General and personal deterrence are the predominant sentencing considerations with the co…
Yates v The State of Western Australia [2008] WASCA 144
Citation 21

…, 29 March 1999) Whittaker v The King (1928) 41 CLR 230 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Yates v The State of Western Australia [2008] WASCA 144 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 2…
The State of Western Australia v Richards [2008] WASCA 134
Citation 22 (Para 1)

…ng section applies to cases in which the sentence appealed dates after 27 April 2008. See The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229; The State of Western Australia v Porter [2008] WASCA 154 [21] (Miller JA).…
Dair v The State of Western Australia [2008] WASCA 72
Citation 23 (Para 6)

…In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value' within s 31A(2)(a), at [60] ‑ [61]: The evidence in question must obviously be relevant before it can be admitted into evidence. That…
The State of Western Australia v Amoore [2008] WASCA 65
Citation 24 (Para 8)

…In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, I said: It is unsatisfactory for any party to an appeal, contending that a sentencing judge imposed a sentence that was outside the range of sentences customarily imposed and therefore manifestly inadequate or manifestly excessive…
Upton v The State of Western Australia [2008] WASCA 54
Citation 25

…of Western Australia v Wynne [2008] WASCA 195 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Upton v The State of Western Australia [2008] WASCA 54 Urbano v The State of Western Australia [2006] WASCA 147 Vagh v The State of Western Australia [2007] WASCA 17 Vlek v The Queen (Unreported, WASCA, Libra…
Bahn v The State of Western Australia [2008] WASCA 40
Citation 26

…Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417 Bahn v The State of Western Australia [2008] WASCA 40 Barnes v The State of Western Australia [2004] WASCA 258 Bellissimo v The Queen (1996) 84 A Crim R 465 Benter v The State of Western Australia [2005] WASCA 245 Borbil v The State of Western Australi…
Cohen v The State of Western Australia [No 2] [2007] WASCA 279
Citation 27

…han v The Queen (1989) 38 A Crim R 337 Civello v The State of Western Australia [No 2] [2008] WASCA 163 Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348 Colangelo v The State of Western Australia [2004] WASCA 294 Coleski v The State of Western Australia [2008] WASCA 260 Dair v…
The State of Western Australia v Collier [2007] WASCA 250
Citation 28 (Para 5)

…ions made by Isaacs J and King CJ and referred to in the previous paragraph (summarised and expanded upon in The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 [20] by Steytler P) were made before, and in circumstances where there was no equivalent of s 41(4) of the Criminal Appeals…
Dao v The State of Western Australia [2007] WASCA 237
Citation 29 (Para 1)

…bano v The State of Western Australia [2006] WASCA 147, Ruich v The State of Western Australia [2006] WASCA 241, Dao v The State of Western Australia [2007] WASCA 237, Monument v The State of Western Australia [2007] WASCA 239, Civello v The State of Western Australia [No 2] [2008] WASCA 163 and Toothill (referred…
Monument v The State of Western Australia [2007] WASCA 239
Citation 30 (Para 1)

…h v The State of Western Australia [2006] WASCA 241, Dao v The State of Western Australia [2007] WASCA 237, Monument v The State of Western Australia [2007] WASCA 239, Civello v The State of Western Australia [No 2] [2008] WASCA 163 and Toothill (referred to above). They are cases where the sentences were imposed u…
The State of Western Australia v Toothill [2007] WASCA 236
Citation 31 (Para 10)

…years post‑transitional), Tulloh [49] (pre‑transitional converted to post‑transitional) and The State of Western Australia v Toothill [2007] WASCA 236. However, to submit as the State does, that sentences of up to 10 years can be within the customary sentencing range, says nothing at all about the bottom of an acce…
Swains v The State of Western Australia [2007] WASCA 251
Citation 32

…SCA 241 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Sinagra‑Brisca v The Queen [2004] WASCA 68 Swains v The State of Western Australia [2007] WASCA 251 The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 The State of Western Australia v Andela [2006] WASCA 77 The State of Wes…
Ziino v The State of Western Australia [2007] WASCA 222
Citation 33

…tern Australia [2008] WASCA 144 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297…
The State of Western Australia v Osborne [2007] WASCA 183
Citation 34 (Para 6)

…9, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] ‑ [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13]. The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Bui…
Bosworth v The State of Western Australia [2007] WASCA 144
Citation 35 (Para 11)

…f this court suggesting an appropriate range in a case involving quantities greater than those mentioned in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 is Toothill . In that case Le Miere J said (Wheeler JA agreeing): Having regard to the quantity and purity of the drug involv…
Zammit v The State of Western Australia [2007] WASCA 66
Citation 36

…ong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Yates v The State of Western Australia [2008] WASCA 144 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297…
R v Hillier [2007] HCA 13
Citation 37

…The Queen [1997] HCA 26; (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Abboud [2005] NSWCCA 251 R v Henry [1999] NSWCCA 107 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Osenkowski (1982) 30 SASR 212 Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 Ruich v The State of Western Austr…
The State of Western Australia v R [2007] WASCA 42
Citation 38 (Para 2)

…t he exercised control over the drug knowing, or suspecting, the substance he controlled was prohibited drugs: see The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483) with the specified intent. Who owns the drug is not relevant to the issue of guilt.…
Borbil v The State of Western Australia [2007] WASCA 24
Citation 39

…CA 258 Bellissimo v The Queen (1996) 84 A Crim R 465 Benter v The State of Western Australia [2005] WASCA 245 Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 BRS v The Queen [1997] HCA 47; (1997) 191…
Vagh v The State of Western Australia [2007] WASCA 17
Citation 40 (Para 5)

…pe of offences charged and many such sentences are reviewed on appeal. In Chan (1989) 38 A Crim R 337, 342, and Vagh v The State of Western Australia [2007] WASCA 17 [47], it was said that it is necessary in determining whether a sentence is manifestly inadequate, to consider, among other factors, the standards of…
Noto v The State of Western Australia [2006] WASCA 278
Citation 41 (Para 5)

…2] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers…
Ruich v The State of Western Australia [2006] WASCA 241
Citation 42 (Para 1)

…r v The State of Western Australia [2005] WASCA 245, Urbano v The State of Western Australia [2006] WASCA 147, Ruich v The State of Western Australia [2006] WASCA 241, Dao v The State of Western Australia [2007] WASCA 237, Monument v The State of Western Australia [2007] WASCA 239, Civello v The State of Western Au…
Di Lena v The State of Western Australia [2006] WASCA 162
Citation 43 (Para 5)

…s guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evide…
The State of Western Australia v Marchese [2006] WASCA 153
Citation 44

…of Western Australia v Hatch [2008] WASCA 162 The State of Western Australia v Higgins [2008] WASCA 157 The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 The State of Western Australia v Osborne [2007] WASCA 183 The State of Western Australia v Porter [2008] WASCA 154 The State of…
Macri v The State of Western Australia [2006] WASCA 63
Citation 45 (Para 3)

…2) 27 WAR 19; Kezkiropoulos v The Queen (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; and Macri v The State of Western Australia [2006] WASCA 63. In some cases, even where pleas of guilty have been entered, sentences as high as 13 years or more have been imposed for multiple counts of possession…
Carr v The State of Western Australia [2006] WASCA 125
Citation 46

…R 49 BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 Buiks v The State of Western Australia [2008] WASCA 194 Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 Chan v The Queen (1989) 38 A Crim R 337 Civello v The State of Western A…
De La Espriella-Velasco v The Queen [2006] WASCA 31
Citation 47

…008) 36 WAR 413 Dao v The State of Western Australia [2007] WASCA 237 Darwell v The Queen (1997) 94 A Crim R 35 de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Delovski v The Queen [2002] WASCA 88 Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 Dinsdale v T…
Donaldson v The State of Western Australia [2005] WASCA 196
Citation 48 (Para 5)

…ew of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of…
R v Abboud [2005] NSWCCA 251
Citation 49

…n [2000] WASCA 283; (2000) 116 A Crim R 398 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Abboud [2005] NSWCCA 251 R v Henry [1999] NSWCCA 107 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Osenkowski (1982) 30 SASR 212 Re Calder; Ex parte Cable Sands (WA) Pty Lt…
Markarian v The Queen [2005] HCA 25
Citation 50

…9) 195 CLR 665 Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mejtska v The State of Western Australia [2009] WASCA 80 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Monument v The State of…

AI Chat coming soon

Count 1	Possession of methylamphetamine with intent to sell or supply, 3 years 4 months' imprisonment.
Count 2	Possession of methylamphetamine with intent to sell or supply, 6 years 8 months' imprisonment.
Count 3	Possession of cannabis with intent to sell or supply, 8 months' imprisonment.

(a)	the large quantities of methylamphetamine found in the 2004 search;
(b)	the large quantities of MDMA found in the 2004 search;
(c)	the smaller quantities of methylamphetamine and MDMA respectively, found in the 2006 search.

Count 1	5 years' imprisonment
Count 2	8 years' imprisonment
Count 3	8 months' imprisonment