The State of Western Australia v Charles

[2016] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CHARLES [2016] WASCA 108

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   6 APRIL 2016

DELIVERED          :   29 JUNE 2016

FILE NO/S:   CACR 121 of 2015

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

BRENDEN JASON CHARLES
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :LEVY DCJ

File No  :IND 112 of 2015, IND 231 of 2015

Catchwords:

Criminal law - Offences of possession of prohibited drugs and drug paraphernalia, possession of cash reasonably suspected to have been unlawfully obtained, possession of a prohibited weapon and driving while unlicensed or disqualified - Total effective sentence 22 months' imprisonment - State appeal against sentence - Whether individual sentences manifestly inadequate - Whether total effective sentence breached the first limb of the totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(a)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 7B(6)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)
Sentencing Act 1995 (WA), s 9AA, s 32
Weapons Act 1999 (WA), s 6(1)(b)

Result:

Application for leave to adduce additional evidence granted
Appeal allowed, respondent resentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr J McGrath SC

Respondent:     Mr P N Bevilacqua

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Paul Neville Bevilacqua

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

Baghdadi v The State of Western Australia [2011] WASCA 38

CMB v Attorney‑General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407

Dann v The State of Western Australia [2006] WASCA 254

Dixon v The State of Western Australia [2006] WASCA 255

Le v The State of Western Australia [2014] WASCA 120

Moreton v The State of Western Australia [2011] WASCA 258

Skiropoulos v The State of Western Australia [2006] WASCA 225

The State of Western Australia v Baldini [2015] WASCA 39

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Reid [2012] WASCA 109

The State of Western Australia v Stoeski [2016] WASCA 16

The State of Western Australia v Walley [2014] WASCA 85

1. REASONS OF THE COURT:    This is a State appeal against sentence.

Background

1. The respondent was charged in the District Court with four offences in two indictments and four other offences contained in a notice under s 32 of the Sentencing Act 1995 (WA) (the s 32 notice).

Indictment 112 of 2015 (the first indictment)

1. The first indictment alleged two counts that on 20 July 2014 at Atwell, the respondent possessed 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) (the MDA).

Indictment 231 of 2015 (the second indictment)

1. The second indictment alleged that on 4 February 2015 at Rockingham, the respondent had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA (count 1). It further alleged that on the same date and at the same place, the respondent had in his possession $500 cash that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (count 2).

The s 32 notice offences

1. The s 32 notice offences alleged that on 20 July 2014, the respondent:

   (a)possessed a prohibited weapon, contrary to s 6(1)(b) of the Weapons Act 1999 (WA) (FR 7227 of 2014);

   (b)had in his possession a prohibited drug, namely cannabis, contrary to s 6(2) of the MDA (FR 7228 of 2014);

   (c)had in his possession drug paraphernalia, namely three glass smoking implements, on which there was methylamphetamine, contrary to s 7B(6) of the MDA (FR 7229 of 2014); and

   (d)drove a motor vehicle while under suspension, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (FR 7408 of 2014).

2. On 18 June 2015, the respondent was convicted on his pleas of guilty of all of these offences. 

Sentencing in the District Court

1. The learned sentencing judge imposed the following sentences:

The first indictment

Count	Description of offence	Total quantity	Approximate purity	Maximum penalty	Sentence
1	Possession of prohibited drug (methylamphetamine) with intent to sell or supply it to another	2.31 g	1.73 g (78%) 0.58 g (80%)	Up to a $100,000 fine or 25 years' imprisonment or both	18 months' imprisonment
2		54.3 g	72%		18 months' imprisonment (concurrent)

The second indictment

Count	Description of offence	Total quantity	Approximate purity	Maximum penalty	Sentence
1	Possession of prohibited drug (methylamphetamine) with intent to sell or supply it to another	9.95 g	3.37 g (46%) 3.47 g (52%) 2.88 g (65%)	Up to a $100,000 fine or 25 years' imprisonment or both	4 months' imprisonment (cumulative)
2	Possession of cash reasonably suspected to have been unlawfully obtained	$500	N/A	7 years' imprisonment	1 month's imprisonment (concurrent); $500 forfeiture order

The s 32 notice offences

Charge number	Description of charge	Maximum penalty	Sentence
FR 7227 of 2014	Possession of a prohibited weapon	Up to a $36,000 fine or 3 years' imprisonment or both	1 month's imprisonment (concurrent)
FR 7228 of 2014	Possession of a prohibited drug (cannabis - 1 g)	Up to a $2,000 fine or 2 years' imprisonment or both	$200 fine
FR 7229 of 2014	Possession of drug paraphernalia on which there was a prohibited drug (methylamphetamine)	Up to a $36,000 fine or 3 years' imprisonment or both	$200 fine
FR 7408 of 2014	Driving while unlicensed or disqualified	Disqualification from holding or obtaining a driver's licence for 9 months to 3 years, plus a fine of $400 to $2,000 and up to 12 months' imprisonment (first offence); or a fine of $1,000 to $4,000 and up to 18 months' imprisonment (subsequent offence(s))	Disqualification from holding or obtaining a driver's licence for 9 months; $1,000 fine

1. The total effective term of imprisonment was 22 months' imprisonment to be served immediately.  The learned sentencing judge ordered the destruction of the drugs and associated paraphernalia, as well as the prohibited weapon.  The respondent was declared a drug trafficker.  He was made eligible for parole, and the total effective sentence was ordered to commence on 4 February 2015.

Appeal to this court

1. The State alleges that the individual sentences in count 2 in the first indictment (18 months' imprisonment) and count 1 in the second indictment (4 months' imprisonment) were manifestly inadequate (grounds 1 and 2, respectively).  The State also alleges that the total effective sentence of 22 months' imprisonment infringed the first limb of the totality principle (ground 3). 

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

3. The respondent concedes grounds 2 and 3.

Facts of the offending

Facts of the offending the subject of the first indictment and the s 32 notice

1. At approximately 3.00 pm on 20 July 2014, the respondent was driving his Holden motor vehicle on Gibbs Road in Atwell when it was stopped, and subsequently searched, by police.  His motor vehicle driver's licence was, at the time, under a demerit point suspension (FR 7408 of 2014).  Police located two small clipseal bags on the driver's side door containing 2.31 g of methylamphetamine (count 1 in the first indictment).  Police also discovered a small cooler bag near the front passenger seat.  Inside the bag was a large clipseal bag containing 54.3 g of methylamphetamine with a purity of 72% (count 2 in the first indictment).  In the course of the search, police found digital scales and clipseal bags in the driver's side door. 

2. The respondent was arrested and, at approximately 6.25 pm on 20 July 2014, detectives executed a search warrant at his then place of residence in Port Kennedy.  There, they located in the respondent's bedroom and in the kitchen area:

   (a)numerous clipseal bags containing 34.67 g of dimethyl sulfone (also known as MSM, a common drug cutting agent);

   (b)a black torch in which an electronic shock device (more commonly known as a taser) of working order was contained (FR 7227 of 2014);

   (c)a small clipseal bag containing approximately 1 g of cannabis (FR 7228 of 2014); and

   (d)three glass implements used to smoke methylamphetamine (FR 7229 of 2014).

3. After the respondent was charged with the offences in the first indictment and the s 32 notice, he was released to bail.

Facts of the offending the subject of the second indictment

1. In the early afternoon of 4 February 2015, while the respondent was on bail for the offences the subject of the first indictment and the s 32 notice, police executed a search warrant at his then place of residence in Rockingham. There, they located:

   (a)in the kitchen, a set of electronic scales, several small clipseal bags containing trace amounts of a crystal substance and a small clipseal bag containing mixing agent;

   (b)on top of a refrigerator, a glass smoking implement with trace amounts of methylamphetamine;

   (c)in the spare bedroom, a second set of electronic scales and several empty clipseal bags;

   (d)underneath the mattress in the respondent's bedroom, a small zip‑up pouch in which were contained four clipseal bags comprising a total of 9.95 g of methylamphetamine, of which 9.72 g ranged in purity between 46% and 65% (ts 24) (count 1 in the second indictment); and

   (e)in the respondent's wallet, $500 cash (count 2 in the second indictment).

The respondent's personal circumstances

1. The respondent was 26 years old when he committed the offences and 27 years old when he was sentenced.  His parents separated when he was very young (ts 16).  The respondent left home when he was 16 years old.  Since then, he has consistently worked in several occupations, including for five years as a spray painter and as a truck driver.

2. In late 2013 and early 2014, the respondent suffered a number of setbacks.  He and his partner, with whom he has a young child, separated and he lost his job.  As a consequence, the respondent's consumption of methylamphetamine - which was described as being 'on the weekend' (ts 17) - increased to the point where he was addicted to the drug and using it daily.  He accumulated a sizeable drug debt which, in turn, led him to sell methylamphetamine.  This debt worsened after his arrest for the offences in the first indictment.  As a consequence, he continued selling methylamphetamine until he was arrested on 4 February 2015 and remanded in custody. 

3. While on remand, the respondent has participated in a number of rehabilitation courses.  Letters tendered to his Honour showed that he has the support of his family and friends, and opportunities to work upon release. 

4. Between 2006 and 2014, the respondent was convicted in the Magistrates Court of various traffic and criminal offences, including for burglary, stealing, trespass, assault, possession of a prohibited weapon and driving whilst unlicensed or disqualified.  He had not previously been sentenced to imprisonment.

The sentencing remarks

1. His Honour correctly recited the facts of the respondent's offending and his personal circumstances. Of the drugs the subject of count 2 in the first indictment, he remarked that the purity was 'at or near what is commonly called the theoretical maximum purity for methylamphetamine' (ts 24). He said that the offending the subject of the second indictment was aggravated, having been committed whilst on bail (ts 24 ‑ 25). The learned sentencing judge found that the pleas of guilty to the offences in the first indictment were entered at a 'relatively early' stage and he gave a 20% discount for them, pursuant to s 9AA of the Sentencing Act (ts 27). His Honour found that the pleas of guilty to the offences in the second indictment were, in effect, entered at the first reasonable opportunity, for which he gave a s 9AA discount of 25% (ts 27).

2. There appeared to be a difference between the parties as to the respondent's position in the drug hierarchy.  Counsel for the respondent described him as a 'user/dealer' (ts 15). The State did not dispute that the respondent was a 'user/dealer', but submitted that, at least in respect of the offences the subject of the first indictment, the respondent was higher up the chain (ts 20 - 21).  His Honour said that it was unnecessary for him to make specific findings about the respondent's position in the drug hierarchy (ts 25).  He continued:

   The simple fact of the matter is that once you are caught in possession of approximately two ounces of high‑grade methylamphetamine, dire consequences will follow (ts 25).

3. His Honour then referred to statements made by McLure P in The State of Western Australia v Baldini [2015] WASCA 39 concerning the negative impact of drug offending on the community [23]; and the sentencing principle that significant weight must be given to general deterrence, with the consequence that mitigating circumstances are accorded less weight [27]. His Honour observed that the respondent had, in the time he had been in custody, 'done what [he could] to address [his] offending behaviour' (ts 26).

4. For reasons of totality, his Honour reduced the sentence on count 1 in the second indictment from 12 months' imprisonment to 4 months' imprisonment (ts 28).

The appeal to this court

The State's submissions

Grounds 1 and 2

1. The State argued grounds 1 and 2 together. 

2. It emphasised that, on each of the occasions the subject of the first and second indictments, the respondent was found in possession of high purity methylamphetamine (white AB 14 ‑ 15 [15] ‑ [19]; appeal ts 2 ‑ 3). 

3. With respect to ground 1 (that is, count 2 in the first indictment), it was submitted that the quantity of methylamphetamine was substantial and this fact, combined with its high purity and the presence of MSM at his home, made it 'virtually certain' that the 54.3 g would be cut, thereby increasing the potential harm to the community (white AB 15 [19]). 

4. As to ground 2 (that is, count 1 in the second indictment), the State emphasised that it was committed whilst the respondent was on bail (white AB 16 [21]); and that three of the four clipseal bags containing the methylamphetamine were packaged so as to be likely sold into the community as an 'eight ball' (white AB 15 [20]).  The State submitted that there was no mitigation to be found in the respondent being a 'user/dealer' (white AB 16 [22]); and that little mitigation was to be found in the respondent's personal circumstances (white AB 16 [24] ‑ [25]). 

5. The State submitted that the individual sentences were inconsistent with comparable cases (white AB 18 - 23 [31] ‑ [45]; appeal ts 3 ‑ 4). 

Ground 3

1. The State submitted that the total effective sentence of 22 months' imprisonment was an inadequate reflection of the respondent's total criminality (white AB 24 [48]).  It sought to highlight this inadequacy by reference to comparable cases (white AB 24 ‑ 26 [49] ‑ [52]; appeal ts 3 ‑ 4). 

2. In relation to all of the grounds, the State claimed that this court's intervention was necessary in order 'to maintain proper standards of sentencing to provide effective and appropriate deterrence for offences of this type' (white AB 26 [53]).

The respondent's submissions

Ground 1

1. The respondent submitted that, while the sentence imposed on count 2 in the first indictment was 'very lenient and at the very low end of the scale', it was not outside the appropriate range of his Honour's sentencing discretion (white AB 33 [18]). 

Grounds 2 and 3

1. The respondent conceded that grounds 2 and 3 were made out (white AB 34 [25] ‑ [26]).  Counsel for the respondent accepted that, as a result of the sentence the subject of ground 2 being inadequate, the total effective sentence was inadequate (appeal ts 4).  As a consequence, the respondent conceded that this court must resentence him.

Appellate sentencing principles

1. The general principles applicable to this appeal are well known and well settled.  They were explained by McLure P in The State of Western Australia v Baldini [17] ‑ [22] as follows:

   This court can only intervene if the sentencing judge made an express or implied material error of fact or law.  A claim of manifest inadequacy (and manifest excess) relies on the implication of error.  The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

   In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

   Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors:  The State of Western Australia v Johnson [2010] WASCA 187 [19]. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Barbaro v The Queen (2014) 305 ALR 323 [41]; Hili v The Queen (2010) 242 CLR 520 [54].

   Manifest inadequacy (and excess) apply to an individual sentence.  The totality principle applies to the total effective sentence for multiple offences.  A breach of the totality principle is also a claim of implied error. 

   The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Roffey v The State of Western Australia [2007] WASCA 246 [24].

   The practical effect of the totality principle is ordinarily to arrive at a total effective sentence that is less than that achieved by adding up all the terms of imprisonment for the individual offences.

2. The relevant sentencing principles with respect to drug cases are also well known and well settled.  In The State of Western Australia v Johnson [2010] WASCA 187 [17], McLure P said:

   It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs.  There are often strong financial incentives to deal in prohibited drugs.  Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.  It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.

Disposition of the grounds of appeal

1. It is logical to deal with grounds 1 and 2 (manifest inadequacy) first, followed by ground 3 (totality). 

Grounds 1 and 2 - manifest inadequacy

Ground 1 (count 2 in the first indictment)

1. There is no issue that the respondent had in his possession a substantial quantity of high purity methylamphetamine.  He had at his house a cutting agent as well as the common tools of trade of those who deal in drugs.  The respondent was no mere bailee or courier - he had far more of the drug than was required to feed his addiction, and this disparity is even greater when the high likelihood that the 54.3 g would be cut is considered.  The stark fact is that the respondent was primarily motivated by commercial gain.  His addiction to the drug affords no mitigation.

1. The most significant mitigating factor was the respondent's plea of guilty for which his received a discount of 20% pursuant to s 9AA of the Sentencing Act.  The factors personal to the respondent, being his:

   (a)relative youth (although, at 26, this was at the outer limit of relevance for this factor);

   (b)rehabilitation; and

   (c)support from family and other networks,

   could only be of limited mitigatory weight given the significant weight required to be given to general deterrence.  The respondent's prior convictions meant that he could not call upon good character as a mitigating factor.

2. Of the cases cited by the State, the most relevant to our minds are Siskopoulos v The State of Western Australia [2006] WASCA 225; Dann v The State of Western Australia [2006] WASCA 254; Dixon v The State of Western Australia [2006] WASCA 255; Baghdadi v The State of Western Australia [2011] WASCA 38; Moreton v The State of Western Australia [2011] WASCA 258; The State of Western Australia v Reid [2012] WASCA 109 and Le v The State of Western Australia [2014] WASCA 120. It is unnecessary to describe in detail the facts and circumstances of these cases. It is enough for me to say that, having regard to these cases and the decisions they cite, we are of the view that the sentence imposed on count 2 in the first indictment is substantially inconsistent with the range of sentences customarily imposed for offences of this type.

3. The respondent sought to support his argument that the sentence imposed on count 2 in the first indictment was not outside an appropriate range by reference to The State of Western Australia v Baldini which, he claimed, involved circumstances 'not too dissimilar to the present' (white AB 33 [18]).  We do not accept this submission.

4. Mr Baldini was convicted on his pleas of guilty of one count of selling MDMA (65 tablets) to another, contrary to s 6(1)(c) of the MDA; one count of possessing MDMA (490 tablets) with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA; and one charge in a s 32 notice of being in possession of $3,800 which was reasonably suspected to have been unlawfully obtained. At first instance, the learned sentencing judge sentenced the respondent to 12 months' imprisonment on count 1, 18 months' imprisonment on count 2, and 3 months' imprisonment on the s 32 notice offences, all of which were ordered to be served concurrently. The learned sentencing judge suspended the total effective sentence of 18 months' imprisonment on conditions.

5. The State appealed to this court against the adequacy of the type and length of the sentences imposed on counts 1 and 2.  The State also alleged that the total effective sentence of 18 months' imprisonment infringed the first limb of the totality principle. 

6. This court found that the offence the subject of count 1 only came to light as a result of Mr Baldini's voluntary admissions to police. Mr Baldini was, at the time the offences were committed, 19 years old. He had no prior criminal record, was remorseful and cooperated fully with police, and had taken steps to rehabilitate himself before sentencing. He came from a stable and supportive family and was of otherwise good character. He had been in stable employment since leaving school [10] ‑ [13]. This court allowed the State's appeal, having concluded that a term of immediate imprisonment was the only appropriate sentencing option, notwithstanding the combination of mitigating factors, the most significant of which were Mr Baldini's youth, early plea of guilty, cooperation and, to a lesser extent, positive steps towards rehabilitation [32]. As to the length of the sentences imposed on counts 1 and 2, this court concluded that, having regard to Mr Baldini's cooperation regarding count 1 and the other mitigating factors, the sentence of 12 months' imprisonment imposed on count 1 was not manifestly inadequate [37]. Similarly, the sentence of 18 months' imprisonment imposed on count 2 was described as being 'at the very lenient end of the range of sentences imposed in closely comparable cases'; but, having regard to the combination of significant mitigating factors, the State did not make out the claim of manifest inadequacy [38].

7. The present case is materially different to The State of Western Australia v Baldini.  Unlike Mr Baldini, the respondent did not make voluntary admissions to police; has a prior criminal history; and did not have the advantage of prior good character.  Further, youth, while not irrelevant, was not as prominent a factor in the present case.

8. Having regard to all of the relevant circumstances and all reasonably comparable cases, we have been persuaded that the sentence imposed on count 2 in the first indictment was manifestly inadequate.

9. Ground 1 has been made out.

Ground 2 (count 1 in the second indictment)

1. As we have already indicated, the respondent conceded that the sentence imposed on count 1 in the second indictment was manifestly inadequate.  This court is not bound by that concession; but, in our view, it should be accepted.

2. We immediately acknowledge that the sentence of 4 months' imprisonment reflected totality considerations; that is, absent those considerations, his Honour would have imposed a sentence of 12 months' imprisonment.

3. The high purity of the methylamphetamine, and the fact that the respondent committed the offence whilst on bail for identical offences, were seriously aggravating circumstances.  In our opinion, the sentence imposed did not adequately reflect the seriousness of the offence and is, in our view, substantially inconsistent with comparable cases.  See, for example, Le v The State of Western Australia and the cases cited therein at [50].

4. Notwithstanding the mitigating factors to which we have already referred, we have been persuaded that the sentence was manifestly inadequate. 

5. Ground 2 has been made out.

Ground 3 - totality

1. As both grounds 1 and 2 have been made out, it follows that the total effective sentence of 22 months' imprisonment infringed the first limb of the totality principle. 

2. Ground 3 has been made out. 

The residual discretion

1. The State must negative any reason why the residual discretion should not be exercised:  see CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407 [33] ‑ [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ) and The State of Western Australia v Stoeski [2016] WASCA 16 [163] (Buss JA).

2. The respondent does not proffer any reason as to why the residual discretion should be exercised and, indeed, he conceded that there is no reason as to why the residual discretion should be invoked (white AB 34 [28]).  The concession was properly made.

Respondent's resentencing

1. It is necessary for this court to resentence the respondent in respect of the individual sentences imposed for count 2 in the first indictment (the subject of ground 1) and count 1 in the second indictment (the subject of ground 2), as well as the total effective sentence (the subject of ground 3). 

Application to adduce additional evidence potentially relevant to the respondent's resentencing

1. By application filed on 21 January 2016, the respondent sought to adduce additional evidence in the event that this court resentences him (yellow AB 2). Such evidence may be relevant because this court may take into account in a resentencing 'any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard': s 41(4)(a) of the Criminal Appeals Act2004 (WA).

2. The additional evidence the respondent seeks to adduce is contained in his affidavit sworn on 17 December 2015 (yellow AB 3 - 22).  The matters deposed to in, and material annexed to, that affidavit show that, since the respondent was sentenced in the District Court, he:

   (a)continues to have the support of his family, including support from the mother of his child;

   (b)attended 12 Narcotics Anonymous meetings at Acacia Prison;

   (c)agreed to enrol in a pre-release and post‑release drug and alcohol program at Cyrenian House;

   (d)completed three fortnightly sessions of a drug and alcohol program in prison conducted by Cyrenian House; and

   (e)completed a One Star Food Safety and Hygiene Training certificate in prison.

3. The State neither objected to the application (appeal ts 5), nor challenged the contents of the respondent's affidavit. 

4. We would allow the respondent's application to adduce additional evidence in this appeal for the purpose of resentencing.

Respondent's resentencing by this court

1. It is unnecessary to repeat the facts of the offending or the matters personal to the respondent. We would give the same discounts for the pleas of guilty pursuant to s 9AA of the Sentencing Act as those given by Levy DCJ.  We take into account the additional mitigating factors which the learned sentencing judge identified, as well as the matters raised in the additional material before this court.  We also take into account as a further mitigating factor the concessions made by the respondent in this appeal:  as to which, see The State of Western Australia v Walley [2014] WASCA 85 [20] ‑ [21] (Pullin JA).

2. Having regard to all of the relevant sentencing factors, we would resentence the respondent on count 2 in the first indictment to 3 years' immediate imprisonment.  On count 1 in the second indictment, we would resentence the respondent to 1 year 6 months' immediate imprisonment.

3. None of the other sentences imposed by Levy DCJ are the subject of appeal; accordingly, we would not interfere with them.  We would order that the new sentence imposed on count 2 in the first indictment and the new sentence imposed on count 1 in the second indictment be served cumulatively; thus, leading to a total effective sentence of 4 years 6 months' immediate imprisonment (the sentence the subject of ground 3).  In our opinion, that is an appropriate measure of the criminality of the respondent's overall offending, having regard to all of the circumstances of the case.  The respondent should be made eligible for parole and the total effective sentence should be backdated to commence on 4 February 2015. 

Conclusion and orders

1. The orders that we would made are as follows:

   1.The application for leave to adduce additional evidence filed on 21 January 2016 is granted.

   2.The appeal is allowed.

   3.The sentences imposed by Levy DCJ on 18 June 2015 in respect of count 2 in indictment 112 of 2015 and count 1 in indictment 231 of 2015 are set aside.  His Honour's order for cumulacy is set aside, but his Honour's orders for concurrency stand.

   4.The respondent is sentenced to 3 years' immediate imprisonment on count 2 in indictment 112 of 2015; and to 1 year 6 months' immediate imprisonment on count 1 in indictment 231 of 2015. 

   5.The sentences referred to in paragraph 4 above are to be served cumulatively upon each other and the total effective sentence is to commence on 4 February 2015. 

   6.The respondent is eligible for parole.