The State of Western Australia v Gholizadeh - [2024] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GHOLIZADEH [2024] WASCA 45
CORAM:   BUSS P
HALL JA
VANDONGEN JA

HEARD:   16 APRIL 2024
DELIVERED          :   30 APRIL 2024
FILE NO/S:   CACR 14 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
FARHAD GHOLIZADEH
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 1507 of 2021

Catchwords:

Criminal law - State appeal against sentence - Drug offences - Possession of 23.6 g of heroin with intent to sell or supply - Where respondent a user/dealer - Whether sentence of 12 months' immediate imprisonment manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(a), s 31(4)(a)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Sentence imposed by the District Court on counts 2 and 3 set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	R Owen SC
Respondent	:	N Sinton

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Gaskell v The State of Western Australia [2018] WASCA 8
Kabambi v The State of Western Australia [2019] WASCA 44
O'Malley v The State of Western Australia [2021] WASCA 8
Pearman v The State of Western Australia [2021] WASCA 106
Ruich v The State of Western Australia [2006] WASCA 241
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Johnson [2010] WASCA 187
Turner v The State of Western Australia [2021] WASCA 132
Wade v The State of Western Australia [2022] WASCA 68

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was charged by police after being found in possession of heroin. He was also found with scales and a mobile telephone. The telephone contained messages that revealed that the respondent had been actively engaged in drug dealing for many months. When his house was searched, a quantity of cash was found that the respondent later admitted was the proceeds of the sale of drugs.
The respondent was convicted on his pleas of guilty of one count of simple possession of heroin, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA), one count of possession of heroin with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act and one count of possession of cash that was reasonably suspected of having been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). The first count related to 2.38 g of heroin, the second count to 23.5 g of heroin, and the third count to $4,990 cash.
The respondent was fined $500 on count 1, sentenced to 12 months' immediate imprisonment on count 2, and 6 months' immediate imprisonment on count 3. The sentences on counts 2 and 3 were ordered to be served concurrently. Accordingly, the total effective sentence was 12 months' immediate imprisonment. An order was made that the respondent be eligible for parole.
The sentence was imposed on 15 February 2024 and backdated to 13 January 2024 to take into account time the respondent had spent in custody prior to being sentenced. His earliest release date is 13 July 2024.
The State filed a notice of appeal on 26 February 2024. An appellant's case was filed on the same day. On 6 March 2024, Buss P granted leave to appeal on the grounds of appeal contained in the appellant's case and made an urgent appeal order.
There are two grounds of appeal. The first is that the sentence of 12 months' imprisonment on count 2 is manifestly inadequate. The second is that the total effective sentence of 12 months' imprisonment infringed the first limb of the totality principle, in that it failed to properly reflect the overall criminality of the offending conduct.
For the reasons that follow, both grounds have been made out. The sentence imposed on the respondent on count 2 was plainly unreasonable or unjust. As a consequence, the total effective sentence was also disproportionate to the overall criminal conduct. The appeal should be allowed and the respondent resentenced.

The facts

At about 4.00 am on Wednesday, 29 July 2020, the police were called to a traffic incident in Dianella. The attending police officers found the respondent standing beside his car. He appeared to be dazed and under the influence of drugs. He was breath tested and found not to have any alcohol in his system. However, he admitted to being a previous heroin user and to having taken Valium earlier that evening.[1]
[1] ts 60.
The respondent told the police that his wallet was missing and suggested that a man who had earlier stopped to assist him may have taken it. The police searched the respondent's car and found a set of scales but nothing else of interest. The police left shortly afterwards.[2]
[2] ts 60.
Several hours later, at around 7.30 am, the police were again called to the scene. On attendance, they found the respondent slumped over the steering wheel of the car. He still appeared to be dazed and under the influence of drugs.[3]
[3] ts 60.
A second search of the respondent's car was undertaken. A black leather pouch was found on the rear passenger seat. Inside the pouch was a clear bag containing 2.38 g of heroin. That heroin was the subject of count 1.[4]
[4] ts 61.
In the rear footwell behind the driver's seat a pink bag was found. The bag contained 23.5 g of heroin and a set of digital scales. That heroin was subsequently analysed and found to be of a high level of purity (71%). The heroin in the pink bag was the subject of count 2.[5]
[5] ts 61, 84.
The respondent was arrested and taken to the Mirrabooka Police Station. A mobile telephone in his possession was seized. The telephone was examined and found to contain numerous messages connected with the sale and supply of prohibited drugs. Although not the subject of separate charges, these messages place into context the respondent's possession of the heroin that is the subject of count 2.[6]
[6] ts 61.
The messages on the respondent's mobile telephone included:
1.On 20 January 2020, the respondent sent a message to DN, 'U chasing' and 'U want some up'. DN asked, 'how much hb', and the respondent replied, '2500'. DN said that he could get it for '17 to 20', and the respondent replied, 'If is good and no chop i want'. DN said he would ask and let the respondent know. The respondent then asked, 'Any down', and was told, 'yep he got'.[7]
[7] WAB 124 - 125.
2.On 25 March 2020, LS asked the respondent, 'Do u have', and the respondent replied, 'yeah how much you after'.[8]
[8] WAB 185.
3.On 9 April 2020, the respondent was asked by DM whether he had 'any gear'. He replied, 'I had before I sold it'.[9]
[9] WAB 109 - 110.
4.On 11 April 2020, CM messaged the respondent that he (CM) wanted to obtain 'a gram minimum'.[10]
[10] WAB 89.
5.On 18 May 2020, BE messaged the respondent to say that if he wanted any 'down' he had to come to a particular address. On 20 May 2020, the respondent replied, 'Any up'.[11]
[11] WAB 178.
6.On 14 April 2020, MB said that she was in a red car and asked whether she should pull into a driveway. The respondent texted that she should 'just come in at front'. MB then asked the respondent if he could do a 'decent one please bro', and referred to being 'ripped today by some maggot in the city'.[12]
[12] WAB 101.
7.On 10 June 2020, the respondent texted BF to ring him urgently. BF responded by saying that he had 'managed to get a g brother'. The respondent texted back saying that he could 'get cheaper'. After BF made several attempts to make an audio call, the respondent texted, 'If u want that I Chuck some coins too we get HB'. There followed a discussion regarding price.[13]
[13] WAB 141 - 142.
8.On 10 July 2020, the respondent texted 'White china' to GW, who responded, 'I got $150'. The respondent told GW to come to a particular location.[14]
[14] WAB 190.
9.On 11 July 2020, MB enquired of the respondent whether there was 'any smoko around'. On 17 July 2020, MB asked, 'Any up Bro'. The respondent replied, 'Only down'. MB asked if the respondent would be 'getting any up later?', to which the respondent replied, 'nothing yet'.[15]
[15] WAB 102 - 103.
10.On 13 July 2020, the respondent messaged BF, 'If you chasing any upper I got killa one' and then, 'I do hw for 450 for u'. On 17 July 2020, BF replied, 'Any thing around, uptown 400 a half??? want'. On 20 July 2020, the respondent replied, 'There is some but 600 for hw'. BF responded, '500 please bud', and the respondent replied with a thumbs up emoji.[16]
11.On 17 July 2020, the respondent messaged JC, 'Any up' and 'Hb'. JC replied saying that he did not have any yet but would have some soon and that he would 'hit you up'. The respondent then asked, 'what about down' and 'Anything'. JC asked the respondent how much he wanted and the respondent replied, '50'. JC said that he was waiting to get more and then said, 'I do U a P' 'For 50 K xx'.[17]
12.On 18 July 2020, the respondent provided an address to VT, who replied, 'coming now'. In a subsequent message on 21 July 2020, the respondent asked, 'U chasing', to which VT replied, 'I can only afford half a point'. They had an audio call and then VT texted, 'Can I come over now', and the respondent replied, 'Yes of course'.[18]
13.On 20 July 2020, GW complained about the quality of drugs he had purchased from the respondent. GW said that he thought it would be 'killa cause u usually got the best up'. The respondent replied that he had a shot and it was good.[19]
14.On 21 July 2020, CB asked the respondent, 'U got any' and 'Oi u got can u drop off'. There were then two audio calls.[20]
15.On 21 July 2020, the respondent sent a message to LR saying, 'U told me that U want some upper I said all good but nothing happens'. LR replied that the respondent took too long and that her mate had gone.[21]
16.On 22 July 2020, DM asked, 'Any gear' and 'My mates chasing 1 ounce'. It is not clear that the respondent read this message and there was no recorded response.[22]
17.On 22 July 2022, there was another exchange with BF where BF said he had '400 what U do for that??', and the respondent replied, 'Is 150 $ for p', 'I do 3 p for that', and 'U want some down too'. BF negotiated to receive a larger amount because he had a mate who had another $500. On 23 July 2020, the respondent texted BF, 'How was that gear my buddy' and 'There is no way U can find better than that now'.[23]
18.On 24 July 2020, VT asked the respondent, 'Have you got a shot for me', to which he responded, 'Yeah of course'. They then arranged to meet.[24]
19.On 26 July 2020 (being the Sunday immediately prior to the offending), the respondent asked DT, 'U chasing'. DT replied that she was with someone at the moment and would text the respondent when she gets home.[25]
[16] WAB 145 - 146.
[17] WAB 165 - 166.
[18] WAB 117 - 118.
[19] WAB 188.
[20] WAB 180 - 181.
[21] WAB 98.
[22] WAB 114.
[23] WAB 151 - 152, 155.
[24] WAB 120.
[25] WAB 127.
The police also conducted a search of the respondent's house. In a speaker box on the top shelf of a wardrobe in his bedroom, the police located a box containing $6,990 in cash. It was accepted that $4,990 of that cash was the proceeds of drug dealing. That part of the cash was the subject of count 3.[26]
[26] ts 61.
The black pouch and pink bag seized in the respondent's car were analysed for DNA. The respondent's DNA was detected on both items.[27]
[27] ts 61.
The value of the 23.5 g of heroin, the subject of count 2, was approximately $35,000 if sold in 0.1 g quantities. An ounce (28 g) of heroin sold as a single unit was worth between $15,000 and $18,000.[28]
[28] Signed Statement of Detective Dean Properjohn, dated 15 May 2023, WAB 71.

Personal circumstances

The respondent was born in Iran in November 1989. He was 30 years old at the time of the offending and 34 years old when he came to be sentenced.[29]
[29] ts 84.
The respondent travelled to Australia as a refugee when he was 21 years old. He was detained in an immigration detention facility for approximately one year. Prior to leaving Iran he had undertaken two years' compulsory army service, which had been a traumatic experience. Shortly after arriving in Australia, the respondent converted to Christianity.[30]
[30] ts 85.
The sentencing judge accepted that it is practically impossible for the respondent to return to Iran to see his family, who remain there. That includes his mother, who is ill. About seven years ago, the respondent's younger brother was killed in a traffic accident in Iran. This caused the respondent considerable grief, which was intensified because of his distance from his family. He attributes this loss to the commencement of his use of illicit drugs.[31]
[31] ts 85.
The respondent was released from immigration detention on a temporary visa. He received support from a religious community and was provided with a place to live by a parish priest. He was living at the house of the parish priest when the search was conducted - for which he said he was ashamed.[32]
[32] ts 85.
The respondent initially worked in his own business as a carpenter and cabinet maker. Work became scarce due to the COVID‑19 pandemic. As noted, the respondent began using drugs after his brother died. He was initially able to pay for his own drugs from what he earned. When the work dried up, he turned to selling drugs to fund his drug use.[33]
[33] ts 85.
After his arrest, the respondent took steps to cease his drug use. He participated in the Next Step program and received injections of a medication every six weeks. In a letter dated March 2023, a clinical nurse from the Next Step Drug and Alcohol Service stated that the respondent had never attended intoxicated or sedated, and that his urine samples had been negative for illicit substances. Notwithstanding the age of the letter, it was said, in sentencing submissions, that the respondent had continued with the program and remained free of illicit drugs, and there was no evidence to the contrary.[34]
[34] ts 68, 86.
The respondent had obtained employment with a local company, and that employment was continuing at the time of sentencing. He also had made efforts to distance himself from the people that he formerly associated with.[35]
[35] ts 76, 85.
The respondent has a criminal record, which consists largely of minor drug and traffic offences. The drug offences are representative of the fact that the respondent was a drug user. They include possession of cocaine and methylamphetamine. The first such offence occurred in 2016. The last recorded offence relating to drugs is an offence of driving whilst under the influence of a prescribed illicit drug, which occurred on 10 November 2021.
The respondent provided a letter to the sentencing court and a character reference from the parish priest who had provided him with a place to live. The reference confirmed that the respondent had suffered badly from the death of his brother and stated that the respondent had always been honest and trustworthy.[36]
[36] WAB 232 - 233.

Sentencing remarks

The sentencing judge accepted that the respondent had taken positive steps towards his rehabilitation and that he had good prospects in that regard. She accepted that the respondent was remorseful and that he was at low risk of reoffending. However, she did note that with drug‑related offending, there was always a risk because it was sometimes difficult to maintain abstinence.[37]
[37] ts 86 - 87.
The sentencing judge then stated:[38]
I find this a very difficult sentencing exercise to sentence you, because the law is pretty clear. The Court of Appeal has made it clear that for offences of this type, a term of immediate imprisonment is appropriate unless there are exceptional circumstances. Because the principle sentencing objectives for drug related offending is general deterrence, in other words, to send a message to the community, but also to personally deter you.
Now, in your case, because of the steps you've taken towards your rehabilitation, the needs of personal deterrence are much less than they might otherwise be. And while the Court of Appeal says that your personal circumstances are of a secondary consideration, they are not irrelevant, and I am taking them into account.
[38] ts 87.
The sentencing judge stated that the seriousness of the offence was such that only a sentence of imprisonment was appropriate. She said that count 2 involved a relatively large and valuable quantity of heroin. She said that there was some commerciality in the offending, and that the respondent was 'a low‑level dealer'. She accepted that the respondent was selling drugs to support his own addiction.[39]
[39] ts 87.
The sentencing judge said that it was fairly clear that the respondent was usually only selling in small amounts to fund his habit, and that the amount of drugs that he was caught with on this occasion 'seems to be unusual for you'. Her Honour noted that the cash of $4,990 was accepted by the respondent as being proceeds of the sale of drugs.[40]
[40] ts 87.
In regard to the pleas of guilty, the sentencing judge accepted that whilst the plea was not made at an early opportunity, that was not entirely of the respondent's making. There had been delays occasioned by the illness of a lawyer who had previously represented the respondent. Her Honour found that once the matter was taken over by other lawyers, it had moved fairly quickly. In those circumstances, her Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).[41]
[41] ts 87 - 88.
The sentencing judge considered whether a suspended sentence was open and said:[42]
[U]nfortunately, because of the volume of heroin, I just don't find that I can suspend your sentence.
[42] ts 88.
The sentencing judge made reference to the totality principle and said that she would take all of the mitigating factors into account in that regard. Her Honour imposed a fine of $500 on count 1, 12 months' immediate imprisonment on count 2, and 6 months' immediate imprisonment on count 3. She said that she would make the sentence of 6 months' imprisonment on count 3 concurrent, such that the total effective sentence was one of 12 months and said:[43]
[T]hat's the most merciful I feel that I can be in the circumstances.
[43] ts 88.
The sentence was backdated to 13 January 2024 to take into account time spent in custody. An order for eligibility for parole was made. Orders for the destruction of the drugs and the forfeiture of the cash were also made.[44]
[44] ts 88.

Grounds of appeal

The grounds of appeal are as follows.
1.The learned sentencing judge erred in law in imposing a sentence of 12 months' imprisonment on count (2) of the indictment, which was so inadequate as to manifest error having regard to:
a.The maximum penalty for the offending;
b.The serious nature of the offence and the circumstances in which it was committed;
c.The standards of sentencing customarily observed for offending of this nature; and
d.The personal circumstances of the respondent.
2.The sentencing judge erred in law in imposing a total effective sentence of 12 months' imprisonment, which infringed the first limb of the totality principle in that it failed to properly reflect the overall criminality of the offending conduct.

Relevant legal principles

The State has a right to appeal against a sentence imposed on a person convicted of a charge pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA). An appeal against sentence depends on the appellant establishing error on the part of the primary court. Even if error is established, this court may only allow the appeal if, in its opinion, a different sentence should have been imposed.

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the first limb of the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[45]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[45] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The major sentencing considerations for offences of dealing in or trafficking dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be a subsidiary consideration, but they are not completely irrelevant.[46]
[46] Gaskell v The State of Western Australia [2018] WASCA 8 [128].

Submissions

The appellant submits that in determining the seriousness of an offence of this type, the role played by an offender is of greater importance than a simple assessment of the quantity of prohibited drugs involved. In this case, the respondent was a low‑level dealer in that he was dealing in relatively small quantities. However, the fact that he was habitually selling small amounts of prohibited drugs to what are likely to have been end users does not reduce his moral culpability.[47]
[47] WAB 15.
The appellant submits that the sentence of 12 months' imprisonment on count 2 for what was almost an ounce of high purity heroin, cannot be sensibly reconciled with broadly comparable cases. In this regard, the appellant refers to a number of cases involving methylamphetamine rather than heroin. It is said that the distinction is immaterial because Parliament has not drawn a distinction between the maximum penalties for prohibited drugs other than cannabis and trafficable quantities of methylamphetamine. Further, the quantities for determining the presumption of an intention to sell or supply heroin and whether a drug trafficker declaration is to be made are the same as between heroin and other drugs such as cocaine and methylamphetamine. However, it is noted that there is a point of distinction between heroin and drugs such as cocaine and methylamphetamine. Heroin has been omitted from sch III of the Misuse of Drugs Act and consequently indictable offences under that Act cannot be dealt with summarily where the type of prohibited drug in question is heroin.[48]
[48] WAB 15 - 18.
The appellant refers to the following cases as being broadly comparable: Wade v The State of Western Australia;[49] Pearman v The State of Western Australia;[50] Turner v The State of Western Australia;[51] and O'Malley v The State of Western Australia.[52]
[49] Wade v The State of Western Australia [2022] WASCA 68.
[50] Pearman v The State of Western Australia [2021] WASCA 106.
[51] Turner v The State of Western Australia [2021] WASCA 132.
[52] O'Malley v The State of Western Australia [2021] WASCA 8.
The appellant submits that having regard to the maximum penalty for count 2, the seriousness of the offence and comparable cases, the sentence imposed manifests error. The factors personal to the respondent could only be given comparatively small weight in the sentencing exercise.[53]
[53] WAB 14, 18.
As regards ground 2, the appellant does not contend that the sentences imposed on counts 1 and 3 were in themselves inadequate. The total effective sentence is said to be disproportionate as a consequence of the inadequate sentence imposed on count 2. It is suggested that count 3 as a separate discrete offence would have warranted a degree of accumulation. However, it is accepted that total concurrency would not be impeachable if the discrete term of imprisonment imposed on count 2 was sufficiently high.[54]
[54] WAB 18 - 19.
The respondent submits that comparable cases only demonstrate that the sentence imposed for count 2 could have been higher. It is submitted that it has not been demonstrated that the sentence on count 2 or the sentence in its totality had to be higher. The respondent submits that it was open to the sentencing judge to impose a merciful sentence in the circumstances of this case.[55]
[55] WAB 25.
The respondent refers to The State of Western Australia v Baldini,[56] in which a sentence of 18 months' suspended imprisonment was set aside on a State appeal. The respondent notes that the sentence imposed on resentencing was 18 months' immediate imprisonment. Having regard to the facts of that case, which involved possession of 129 g of MDMA and $3,800 in cash, it is suggested that the outcome supports a conclusion that the sentence in this case was not erroneously low.[57]
[56] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.
[57] WAB 26 - 27.

Merits of the appeal

The maximum penalty for an offence of possession of heroin with intent to sell or supply contrary to s 6(1) of the Misuse of Drugs Act is 25 years' imprisonment and/or a $100,000 fine.[58]
[58] Misuse of Drugs Act, s 34(1)(aa).
As to the seriousness of count 2, the quantity of heroin possessed by the respondent was significant in terms of size, purity and value. The respondent was not a mere courier or bailee. His involvement in the possession of the heroin was not brief or limited in scope. He was in possession of the heroin because he was actively engaged in drug dealing for profit.
The respondent's admission that he was a drug dealer was amply confirmed by the telephone messages, the scales found in his possession and the cash found at his house. It is apparent from this that the heroin found in the respondent's possession was his stock‑in‑trade in a drug dealing business that he had been engaged in for many months. The respondent was plainly a retail or street level dealer, but the telephone messages reveal that he had many customers and was active in seeking to source and sell his product. This places count 2 in its proper context.
As regards the respondent's personal circumstances, his history as a refugee deserves sympathy, but it cannot, of course, excuse or justify engaging in drug dealing for a profit. It may be accepted that the respondent commenced using drugs in an attempt to deal with the death of his brother, but the habit plainly grew over time and expanded to encompass commercial dealing. The respondent's considerable efforts towards rehabilitation were also relevant in mitigation. By the time he came to be sentenced, personal deterrence was not a significant consideration. However, whilst the respondent had favourable personal circumstances, it must be stressed that for offending involving drug dealing which has a commercial element, personal circumstances can only be afforded comparatively small weight. The importance of general deterrence is not reduced in a case such as the present.
As to comparable cases, the cases referred to by the State support a conclusion that the sentence imposed in this case was manifestly inadequate. The fact that those cases relate to methylamphetamine rather than heroin does not deprive them of utility. Heroin and methylamphetamine are comparable in terms of seriousness and attract the same maximum penalty at the quantities involved in this case. It must also be recognised that methylamphetamine has become a much more common drug and that there are comparatively few recent cases dealing with heroin.
In Wade, the offender was convicted of possessing 9.71 g of methylamphetamine with intent to sell or supply. He was also apprehended with $112,750 in cash. Like the respondent, the offender was in his early 30s when he was sentenced and received discounts ranging between 20% and 25% for his pleas of guilty. As to the drugs, the offender admitted that some of the drugs would be consumed, some of the drugs would be sold and some of the drugs would be shared. He received a total effective sentence of 3 years 6 months' immediate imprisonment. The discrete term of imprisonment for the methylamphetamine charge was 2 years 3 months' immediate imprisonment. Leave to appeal was refused.
In Pearman, the offender was in her early 30s and entered a plea of guilty for which she received a 10% discount. Pearman was apprehended with 13.38 g of methylamphetamine and $2,280. Her personal circumstances were of greater mitigatory weight than in the present case, including chronic mental health challenges and exposure to domestic violence that had left her vulnerable to drug use. She received a sentence of 2 years 4 months' immediate imprisonment for the methylamphetamine charge, and a concurrent term of 6 months' immediate imprisonment for possession of the unlawfully obtained cash. Leave to appeal was refused.
In Turner, the offender was 27 years old at the time of the offending and entered a plea of guilty at a very late stage. He was convicted of possessing 8.57 g of MDMA, 362.45 g of cannabis and 4.96 g of methylamphetamine. The offender was found to be a regular user of drugs, who was likely to either sell or supply drugs to others within his circle. The sentence originally imposed for the cannabis offence was found to be manifestly excessive and the appeal was allowed on that basis. This required a resentencing on all counts. The offender was resentenced to a total effective sentence of 3 years 10 months' immediate imprisonment. The sentence for the methylamphetamine charge was 2 years 10 months' immediate imprisonment.
In O'Malley, the offender was charged with possession of 26.49 g of methylamphetamine. The sentencing judge found that the offender was engaged in the offending to support his own drug habit. The offender was in his mid‑30s, pleaded guilty at an early stage and received a 20% discount. He obtained some commercial benefit from his drug dealing and had taken some steps towards his rehabilitation. He was sentenced to a term of 3 years 6 months' immediate imprisonment. Leave to appeal was refused.
In addition to those cases, we have also had regard to some earlier cases involving heroin: Ruich v The State of Western Australia[59] and Borbil v The State of Western Australia.[60] In Ruich, the offender pleaded guilty to a number of charges, including one of possession of 35.75 g of heroin with intent to sell or supply. That heroin was of 38% purity. The offender was engaged in a drug dealing business with another man. He was also a user of heroin. The count relating to the 35.75 g of heroin attracted a sentence of 4 years 8 months' imprisonment. An appeal against the total effective sentence of 7 years 4 months' imprisonment was dismissed.
[59] Ruich v The State of Western Australia [2006] WASCA 241.
[60] Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [64] - [69].
In Borbil, the offender pleaded guilty to three counts of selling or supplying a prohibited drug and one of possession of a prohibited drug. One of the counts related to the sale or supply of 28 g of heroin at 17% purity. That count attracted a sentence of 4 years' imprisonment. The offender was not a user of illicit drugs and had become involved in selling drugs due to financial pressures. One of the grounds of appeal challenged the sentence imposed in respect of the 28 g of heroin. President Steytler referred to previous cases and noted that pre‑transitional sentences of between 3 years and 5 years' imprisonment had been imposed for possession of around 28 g of heroin where the offender pleaded guilty, and that this equated to a range of between 2 years and 3 years 6 months' imprisonment under current sentencing provisions. The appeal was allowed on this ground and a sentence of 3 years' immediate imprisonment was imposed for the heroin count.
The respondent's reliance on Baldini is misplaced. In that case, the offender pleaded guilty to one count of selling MDMA (65 tablets), one count of possessing MDMA (490 tablets), and one charge of possessing $3,800 that was reasonably suspected of being unlawfully obtained. The offender was described by the sentencing judge as 'a modest dealer … a street dealer'.[61] He received a 25% discount for the pleas of guilty. The offender was aged 19 at the time of the offending, had no prior criminal record, had cooperated fully with the police, was remorseful, and had engaged with a rehabilitation program at Next Step and was progressing well. He was sentenced to 12 months' imprisonment on count 1, 18 months on count 2, and 3 months' imprisonment for the cash (that offence being contained on a s 32 notice under the Sentencing Act). The sentences were ordered to be served concurrently and the total sentence of 18 months' imprisonment was conditionally suspended for 18 months. A State appeal against the sentence was allowed, and the order suspending the sentence was set aside.
[61] Baldini [7].
The fact that a sentence of 18 months' immediate imprisonment was imposed on resentencing in Baldini cannot be viewed as setting any standard for offences of this nature. This is particularly so having regard to the fact that McLure P said that the sentence of 18 months' imprisonment on count 2 in that case was 'at the very lenient end of the range of sentences imposed in closely comparable cases'.[62] The length of that term was only justified in the circumstances of that case having regard to the combination of significant mitigating factors, including youth, cooperation with the police, early pleas of guilty, and rehabilitation.
[62] Baldini [38].
The consistent approach to sentencing for drug offences is that significant weight must be given to general deterrence, with the consequence that mitigating factors personal to the offender are accorded less weight.[63] Matters personal to an offender may have a greater impact on the length of the term of imprisonment than on the type of sentence imposed.[64] However, personal circumstances cannot justify the imposition of a sentence that entirely fails to reflect the seriousness of the particular offence.
[63] Baldini [27].
[64] The State of Western Australia v Johnson [2010] WASCA 187 [21].
The present case clearly required that significant weight be given to general deterrence. The sentencing judge correctly identified that the law is clear. There was nothing exceptional about the offending which would justify a merciful sentence. The only factors that favoured the respondent were personal factors. Those factors had to be weighed against the fact that the respondent was actively engaged in drug dealing for profit. There is significantly less scope for mercy on grounds of personal circumstances in the context of an offence of this nature. In any event, the circumstances of the offending excluded that possibility. Those circumstances clearly demanded a sentence significantly higher than that imposed by the learned sentencing judge.
The sentence imposed was inconsistent with sentencing standards established in other comparable cases. Further, the sentence on count 2 failed to adequately reflect the maximum penalty for that offence. When the maximum penalty, the seriousness of the offence, the personal circumstances of the respondent and comparable cases are considered, it is apparent that the sentence imposed on count 2 was not merely lenient, it was plainly unreasonable or unjust. The State has established that that sentence was manifestly inadequate.

Ground 2 - the merits

As the State has properly acknowledged, it was open to the sentencing judge to impose a concurrent sentence on count 3. The total effective sentence was disproportionate to the total offending because the sentence on count 2 was manifestly inadequate. Thus, since ground 1 must be allowed, ground 2 must necessarily also succeed.

Residual discretion

This court has a residual discretion not to interfere with a primary judge's exercise of the sentencing discretion in the context of a State appeal notwithstanding that appellable error is established: see s 31(4)(a) of the Criminal Appeals Act. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to satisfy this court that the residual discretion should not be exercised.
The difference in the approach between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.

In the present case, counsel for the respondent did not suggest that there was any basis for the exercise of the residual discretion. That concession is plainly correct. On our assessment, intervention in the present case is necessary to maintain proper standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for serious offending of the type committed here weighs strongly against the exercise of the residual discretion.

Conclusion

The individual sentence on count 2 was manifestly inadequate and the total effective sentence infringed the first limb of the totality principle, in that it failed to reflect the overall criminality of the respondent. The individual sentence on count 2 and the total effective sentence were plainly unreasonable or unjust. Both grounds have been established. The appeal must be allowed and the respondent resentenced.

Resentencing

The facts of the offending and the personal circumstances of the respondent have been set out earlier. It is unnecessary to repeat them.
Counsel for the respondent relied upon an affidavit setting out further information relevant to a resentencing exercise.[65] That information confirms that the respondent has been attending Narcotics Anonymous in prison and regularly attends religious services. Those matters are greatly to his credit and indicate that his prospects of rehabilitation remain positive.
[65] Affidavit of Natalie Rae Sinton, sworn 12 April 2024.
Like the sentencing judge, we would allow a discount of 20% for pleading guilty, noting that the quantum of the discount, whilst described as being generous, was not challenged by the State.
No sentence other than immediate imprisonment is appropriate for count 2. The offence is too serious to permit a suspended sentence to be imposed. Having regard to the maximum penalty, the seriousness of the offence, the personal circumstances of the respondent, and the importance of general deterrence, the appropriate sentence on count 2 is 3 years' immediate imprisonment.
We would not impose a different sentence on count 3. Having regard to considerations of totality and also the respondent's significant efforts towards rehabilitation, we would order that the sentence on count 3 be served concurrently with that on count 2. This should not be seen as being a rejection of the State's submissions that in other circumstances a cumulative sentence could be appropriate for such an offence.
There is no need to interfere with the sentence on count 1.
This produces a total effective sentence of 3 years' immediate imprisonment. We would order the respondent be eligible for parole and backdate the sentence to commence on 13 January 2024.

Orders

1.The appeal is allowed.
2.The sentences imposed by the District Court on counts 2 and 3 are set aside.
3.In lieu thereof, the respondent is sentenced to 3 years' immediate imprisonment on count 2, and 6 months' immediate imprisonment on count 3. The sentence on count 3 is to be served concurrently with that on count 2. The total effective sentence is 3 years' immediate imprisonment.
4.The respondent is eligible for parole and the sentence is taken to have commenced on 13 January 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
30 APRIL 2024