The State of Western Australia v Hoxha
[2025] WASCA 101
•30 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOXHA [2025] WASCA 101
CORAM: BUSS P
MAZZA JA
COBBY J
HEARD: 9 MAY 2025
DELIVERED : 16 MAY 2025
PUBLISHED : 30 JUNE 2025
FILE NO/S: CACR 44 of 2025
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
EJUP HOXHA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 1749 of 2023
Catchwords:
Criminal law - State appeal against sentence - Where respondent convicted of one count of selling a prohibited drug, namely cannabis, and one count of possessing money the proceeds of an offence - Where respondent received total effective sentence of 10 months' immediate imprisonment - Whether individual sentences manifestly inadequate - Whether total effective sentence infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Appeal allowed
Sentences set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | L M Fox SC |
| Respondent | : | R Sleeth |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Podmore Legal |
Case(s) referred to in decision(s):
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Diamantopoulos v The State of Western Australia [2024] WASCA 82
Griffin v The State of Western Australia [2020] WASCA 17
Harvey v The State of Western Australia [2017] WASCA 149
HNA v The State of Western Australia [2016] WASCA 165
Knowler v The State of Western Australia [2023] WASCA 27
Lester v The State of Western Australia [2011] WASCA 128
McRobb v The State of Western Australia [2015] WASCA 189
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Tan v The State of Western Australia [2019] WASCA 112
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Wilson [2015] WASCA 119
Turner v The State of Western Australia [2021] WASCA 132
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
This is a State appeal against sentence pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA).
On 5 February 2025, the respondent was convicted after a trial before Wallace DCJ and a jury of two offences committed on 27 November 2022 at Beldon. Count 1 alleged that the respondent sold a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). Count 2 alleged that the respondent possessed money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Criminal Code (WA) (the Code). The maximum penalty for count 1 is 10 years' imprisonment, or a fine not exceeding $20,000, or both, and for count 2 is 20 years' imprisonment. The quantity of cannabis involved in count 1 was 8.77 kg. The amount of cash the subject of count 2 was $10,000.
The respondent's offending was described by the sentencing judge as a 'one‑off, opportunistic transaction'.[1] Her Honour characterised the respondent as 'a middle man or a facilitator', who transported cannabis to another.[2] Her Honour also characterised the respondent as 'a low‑level offender'.[3] Her Honour considered that parity with a sentence imposed on another offender, whom we will refer to as Mr A, was a relevant sentencing factor.
[1] ts 185.
[2] ts 186.
[3] ts 186.
On 11 March 2025, the sentencing judge imposed a sentence of 10 months' immediate imprisonment on count 1, and 8 months' immediate imprisonment on count 2. These sentences were ordered to be served concurrently. Thus, the total effective sentence imposed was 10 months' immediate imprisonment. This sentence was backdated to commence on 3 February 2025, and the respondent was made eligible for parole.[4]
[4] ts 191 - 192.
The State relied on three grounds of appeal. Grounds 1 and 2 alleged that the individual sentences on counts 1 and 2, respectively, were manifestly inadequate. Ground 3 alleged that the total effective sentence infringed the first limb of the totality principle.
The State's appeal was heard on an expedited basis.
On 16 May 2025, this court unanimously allowed the State's appeal. The court ordered that:
1.Leave to appeal is granted on the grounds of appeal contained in the appellant's case dated 22 April 2025.
2.The appeal is allowed.
3.The sentences imposed by Wallace DCJ on 11 March 2025 in IND 1749 of 2023 are set aside.
4.The respondent is resentenced as follows:
Count 1: 18 months' immediate imprisonment
Count 2: 14 months' immediate imprisonment
5.The sentence on count 2 is to be served concurrently with the sentence on count 1. Thus, the total effective sentence to be served by the respondent is 18 months' immediate imprisonment.
6.The respondent remains eligible for parole and the sentences are taken to have taken effect from 3 February 2025.
At the time these orders were pronounced, the court said that it would publish its reasons later. Our reasons for allowing the State's appeal are as follows.
The facts of the offending
The facts as found by the sentencing judge were not in dispute for the purposes of this appeal.
In late November 2022, the respondent travelled from Adelaide, where he resided, to Perth. While in Perth, he spent time with 'a long‑term associate' of his, Mr A, including staying overnight at Mr A's house on 26 November 2022. Mr A had been involved in the sale and supply of cannabis for several years, and had converted his shed to enable him to cultivate cannabis hydroponically. Mr A would, on occasion, buy cannabis from others to sell.
The respondent was not involved in, but was aware of, Mr A's enterprise, albeit not its size and scale. The sentencing judge found that the offending was not the purpose of the respondent's travel to Perth. Thus, she concluded that it was opportunistic, rather than pre‑planned.
While in Perth, the respondent spent time with another associate, Mr Ditmir Hasani, who was at the time, under covert surveillance by police. After observing Mr Hasani and the respondent together, police expanded their covert surveillance to include the respondent as a person of interest.
The respondent became aware that Mr Hasani had a quantity of cannabis he wished to sell. This cannabis was stored in the boot of Mr Hasani's Toyota RAV4 vehicle. The respondent suggested to Mr Hasani that Mr A may be a potential buyer for this cannabis.
On 27 November 2022, the respondent contacted Mr A via Facebook Messenger. At 1.09 pm, the respondent called Mr A. It is likely that, in this conversation, the respondent and Mr A discussed the prospect of Mr A purchasing the cannabis from Mr Hasani, with the respondent acting as a go‑between. The respondent and Mr Hasani then drove in the Toyota RAV4 to a business premises in Beldon. There, the respondent called Mr A, who then picked the respondent up in his car and drove the respondent back to his house. Later, Mr A drove the respondent to a veterinary clinic in Beldon where Mr Hasani also was. The respondent was observed getting out of Mr A's car and looking into the boot of Mr Hasani's Toyota RAV4, before returning to Mr A's vehicle. Mr A and the respondent then returned to Mr A's house together at 3.07 pm.
At about 4.00 pm, police observed the respondent in Mr Hasani's company at Hungry Jack's in Beldon. At 4.14 pm, the respondent called Mr A. The sentencing judge found that, at this point, Mr A had agreed to purchase some of Mr Hasani's cannabis.
At 4.20 pm, the respondent was observed by covert police operatives arriving at Mr A's house alone in Mr Hasani's RAV4 vehicle. He reversed into the driveway. The sentencing judge found that the respondent did this to obscure the view of the boot of the car from the street. The respondent entered Mr A's house. The cannabis was then transported from the boot of the Toyota RAV4 into Mr A's home. Once inside, Mr A tested some of the cannabis buds to ascertain the percentage of tetrahydrocannabinol (THC) in the material. Mr A also tested the cannabidiol (CBD) and cannabinoid active (CBA) of the cannabis. Mr A wrote the results of the tests on a piece of paper and gave it to the respondent, who put it in his wallet. Mr A also weighed some of the cannabis, and the respondent took eight photographs of it on his mobile telephone. The respondent wanted evidence of the testing and the weighing of the cannabis to show to Mr Hasani.
After Mr A tested and weighed the cannabis, he told the respondent that he only had $50,000 cash, and that that was the value of the cannabis. After some discussion, it was ultimately agreed that Mr A would purchase the cannabis for $50,000. The respondent received the money in a Coles shopping bag, predominantly in $50 and $100 bills. The respondent then left Mr A's house in the Toyota RAV4 vehicle to meet again with Mr Hasani.
After leaving Mr A's house, the respondent removed $10,000 of the cash and put it in his wallet. In effect, the $10,000 was his fee for his services. The remaining $40,000 was put in the centre console of the Toyota RAV4 vehicle. Police stopped the vehicle at the Beldon Shopping Centre car park and executed a search warrant. They located the $40,000 in the centre console, $11,140 in cash in the respondent's wallet, the handwritten note on which Mr A had recorded the testing results, and a clipseal bag containing approximately 1 g of cannabis.
Police officers also executed a search warrant at Mr A's house. There, they located approximately 83.6 kg of cannabis, a hydroponic cannabis set up, and a testing machine for cannabis. Police also located two large bags of cannabis plant material, one weighing 7.61 kg and the other weighing 8.77 kg. It is the cannabis weighing 8.77 kg which was the subject of count 1. The cash the subject of count 2 is the $10,000 the respondent took from the Coles bag, as described in [18] above. Although at trial the prosecution alleged that count 2 related to the whole of the $50,000 in cash handed to the respondent by Mr A, the sentencing judge found that, at the time of his arrest, the respondent was in possession of only the $10,000 in his wallet. This finding, which appears generous to the respondent, was not challenged by the State on appeal.[5]
[5] See respondent's answer, par 14.
The respondent's personal circumstances
The respondent was 44 years old at the time of the offending, and 47 years old when he was sentenced. He was born and raised in Albania, and is the eldest of four children born of his parents' union. The sentencing judge described the respondent's childhood as 'unremarkable' in the sense that it was 'devoid of neglect, trauma or abuse'.[6] The respondent attended school until he was 16 years of age, before moving to North Macedonia and then to Athens, where he lived for 10 years and worked in the hospitality industry. The respondent then returned to Albania and purchased land, with the intention of building homes for himself and his family members.
[6] ts 186.
In 2012, a dispute arose between the respondent and a neighbour. The neighbour threatened and physically attacked the respondent. The dispute escalated to the point that the respondent was shot at by the neighbour. Fearing for his safety, the respondent then fled Albania, leaving behind his wife and young son. He travelled to Indonesia and then took a boat to Australia, as a result of which he was detained as an irregular arrival for 12 months, before being released on a bridging visa. In 2017, he was joined in Australia by his wife. They now have four children, who were, at the time of sentencing, aged 12 years and under.
While in Australia, the respondent completed a painting course and has successfully operated his own painting business for a number of years. The respondent is the sole provider for his family. Prior to being charged, the respondent and his family were in the process of applying for permanent residency in Australia. The respondent fears deportation to Albania due to his neighbour's ongoing threats.
The respondent is in sound physical and mental health. He has type 2 diabetes, which is managed by diet. He has no issues with alcohol or drug abuse. As a consequence of the criminal proceeding, the respondent has been suffering an adjustment disorder, with mixed anxiety and a depressed mood.
The respondent has no prior criminal history, and was sentenced on the basis that he was a person of prior good character, with good prospects of rehabilitation, and who posed a low risk of reoffending.
Mr A's sentencing
Following his arrest, Mr A was charged with three offences, being counts of cultivation of cannabis relating to the hydroponic cannabis set up that was discovered in his shed (count 1); possession of 83.6 kg of cannabis, with intent to sell or supply it to another (count 2); and possession of $5,675 in cash, reasonably suspected to have been unlawfully obtained (count 3). The cannabis the subject of count 1 in respect of the respondent comprised, in part, the cannabis the subject of count 2 against Mr A.
The maximum penalty for each of counts 1 and 2 is 10 years' imprisonment, a fine not exceeding $20,000, or both. The maximum penalty for count 3 is 7 years' imprisonment.
On 19 January 2024, Troy DCJ sentenced Mr A. Unlike the respondent, Mr A pleaded guilty at the first reasonable opportunity. Mr A received a 25% discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his pleas of guilty.
Mr A was sentenced on the basis that he was operating his own hydroponic cannabis grow house, and had been involved in the commercial sale and supply of cannabis over a number of years. Troy DCJ said that Mr A was engaged in an extremely large enterprise, in which he was involved at the upper end.
In addition to his pleas of guilty, Mr A offered future cooperation to law enforcement authorities, and, in particular, gave an undertaking to testify against the respondent. Mr A fulfilled his undertaking. Mr A also gave past cooperation to law enforcement authorities.
Troy DCJ found that Mr A had been frank and cooperative with police, particularly as to the extent and duration of his cannabis enterprise; Mr A was genuinely remorseful; Mr A had a good work ethic; Mr A had excellent prospects of rehabilitation and that his risk of reoffending was very low. Mr A had no prior convictions and had been a person of prior good character until he commenced his commercial cannabis enterprise when he was aged in his late 50s. However, Mr A's offending was not isolated, given that it was part of an ongoing enterprise.
Troy DCJ imposed the following sentences upon Mr A:
Count 111 months' immediate imprisonment
Count 23 years 2 months' immediate imprisonment
Count 34 months' immediate imprisonment
As required by s 8(5) of the Sentencing Act, Troy DCJ stated that, but for Mr A's promise to give future cooperation, his Honour would have imposed the following sentences:
Count 115 months' immediate imprisonment
Count 24 years 3 months' immediate imprisonment
Count 36 months' immediate imprisonment
Troy DCJ ordered that all of the sentences imposed be served concurrently. Thus, Mr A received a total effective sentence of 3 years 2 months' immediate imprisonment. His Honour stated that, if Mr A reneged on his undertaking, he would be liable to be brought back before his Honour to be sentenced to 4 years 3 months' immediate imprisonment, being the sentence that would have been imposed but for his promise to give future cooperation.
Sentencing remarks
Wallace DCJ found that the respondent's offending 'was a one‑off, opportunistic transaction',[7] in which he acted as a middle man or facilitator, and also as a courier. She characterised the respondent as 'a low‑level offender' whose offending was uncharacteristic of him.[8]
[7] ts 185.
[8] ts 185 - 186.
Her Honour found that the quantity of cannabis the subject of count 1 (8.77 kg) and the commerciality of the offending were aggravating factors.[9]
[9] ts 186.
Her Honour found the following mitigating factors:
(a)The respondent had no prior criminal record and was a person of prior good character. The offending was uncharacteristic of him and his risk of recidivism was very low.
(b)The respondent would suffer a number of particular hardships as a result of a custodial sentence being imposed upon him, including the impact on his mental health, that prison would be more onerous for him because English is not his first language; and that he would be required to serve his term of imprisonment in Western Australia, away from his family, who would be unable to visit him.
(c)The respondent had no rehabilitative needs, and personal deterrence was of very little relevance to the sentencing exercise.
Her Honour accepted that, as a result of the respondent's incarceration, his wife and children would suffer significant financial hardship. However, her Honour did not find that hardship to be exceptional in nature.[10]
[10] ts 188.
Her Honour found, in effect, that there was no mitigation for remorse, and she observed (correctly) that the predominant sentencing consideration was general deterrence.[11]
[11] ts 189.
The sentencing judge expressly took into account the parity principle, stating that she had 'tempered' the sentence she would otherwise have imposed, 'in particular because of parity'.[12] She elaborated, 'If not for parity, in my view, the sentence would have been higher'.[13] As we will explain later in these reasons, her Honour's approach to parity was unorthodox. Despite this, there is no ground of appeal which challenges the approach.
[12] ts 192.
[13] ts 192.
The appellant's submissions
As to ground 1, the State submitted that the sentence of 10 months' immediate imprisonment for the sale of 8.77 kg of cannabis was manifestly inadequate, having regard to:
(1)The maximum penalty for the offence, namely 10 years' imprisonment, or a fine not exceeding $20,000, or both.
(2)The respondent played a crucial role in bringing together Mr Hasani, as seller, and Mr A, as buyer of a substantial quantity of cannabis. Not only did the respondent make all of the necessary arrangements, he did so for substantial commercial gain.
(3)The sentence of 10 months' immediate imprisonment was inconsistent with comparable cases, including Lester v The State of Western Australia;[14] The State of Western Australia v Wilson;[15] Harvey v The State of Western Australia;[16] Griffin v The State of Western Australia;[17] and Turner v The State of Western Australia.[18]
(4)The leniency of the sentence imposed was not justified by parity considerations, nor by any of the other mitigatory circumstances applicable to the respondent, including his favourable antecedents and his personal circumstances. Nor is it properly explained by the hardship the respondent will suffer as a result of serving his sentence in Western Australia, away from his family, or by fear of deportation.
[14] Lester v The State of Western Australia [2011] WASCA 128.
[15] The State of Western Australia v Wilson [2015] WASCA 119.
[16] Harvey v The State of Western Australia [2017] WASCA 149.
[17] Griffin v The State of Western Australia [2020] WASCA 17.
[18] Turner v The State of Western Australia [2021] WASCA 132.
As to ground 2, the State emphasised that the maximum penalty for an offence under s 563A(1)(b) of the Code is 20 years' imprisonment. The respondent was not charged with, nor convicted of, an offence under s 417(1) of the Code, which carries a lower maximum penalty of 7 years' imprisonment.
The State submitted that, 'unusually', the respondent in this case had 'absolute knowledge of the cognate offence' (sale of cannabis) and that he obtained a significant sum of money, consistent with the high degree of trust reposed in him by Mr Hasani and Mr A.
The State noted that there was no customary pattern of sentences for offences of money laundering, but the outcome was inconsistent with that in Knowler v The State of Western Australia.[19]
[19] Knowler v The State of Western Australia [2023] WASCA 27.
As to ground 3, the State submitted that, while it was open for the sentencing judge to order concurrency in respect of the sentences imposed on counts 1 and 2, the inadequacy of the individual sentences that were imposed resulted in a total effective sentence which did not properly reflect the respondent's overall criminality.
The State submitted that, if one or more of the grounds was made out, the residual discretion under s 31(4) of the Criminal Appeals Act should not be exercised, essentially because appellate intervention was necessary in order to maintain proper sentencing standards for offences of the kind committed by the respondent, and there was nothing in the individual circumstances of the case, or the respondent, which justified the application of the residual discretion.
The respondent's submissions
As to ground 1, counsel for the respondent submitted that the sentencing judge had described the respondent's actions as constituting a one‑off, opportunistic offence of short duration, and that the respondent was a low‑level offender. Having regard to these findings, the respondent's favourable antecedents, and the hardship the respondent will suffer while in prison, and taking into account parity considerations with Mr A, the individual sentence imposed on count 1 was not manifestly inadequate.
The respondent, in effect, submitted that the comparable cases cited by the State did not, bearing in mind the facts and circumstances of the present case, point to implied error on the part of the sentencing judge.
As to ground 2, the respondent submitted that the sentence imposed was not manifestly inadequate, having regard again to the one‑off and low‑level nature of the respondent's offending. The respondent submitted that the sentence imposed by the sentencing judge on count 2 was a proper reflection of what the respondent had actually done.
As to ground 3, the respondent submitted that there was, in effect, a complete overlap between the offending the subject of counts 1 and 2, and that concurrency, in respect of the individual sentences imposed for those offences, was justified. The respondent contended that, as none of the individual sentences were manifestly inadequate, there was no infringement of the first limb of the totality principle.
The respondent submitted that, in the event that any of the grounds of appeal were made out, this court should invoke the residual discretion under s 31(4) of the Criminal Appeals Act and not allow the State's appeal and resentence the respondent.
Counsel for the respondent submitted that this court should exercise the residual discretion, having regard to:
(1)the expectation that the respondent would be eligible for parole on 3 July 2025;
(2)the effect the respondent's incarceration is having upon his family;
(3)the respondent's 'realistic fear' that, if he were sentenced to a term of immediate imprisonment beyond 12 months, he would be liable to deportation; and
(4)even if the sentences imposed in the present case were manifestly inadequate, it was not necessary to correct the sentences in order to provide proper guidance to sentencing standards in other cases.
Relevant legal principles
The general principles applicable to State appeals against sentence that allege implied error are well established, and do not require repetition. They were summarised by this court in The State of Western Australia v Hussian.[20]
[20] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [103].
In Lester v The State of Western Australia,[21] McLure P observed:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.
[21] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22].
These observations have been approved in a number of decisions of this court, including McRobb v The State of Western Australia;[22] HNA v The State of Western Australia;[23] and Rillotta v The State of Western Australia.[24]
[22] McRobb v The State of Western Australia [2015] WASCA 189 [52] (Buss JA, McLure P & Mazza JA agreeing).
[23] HNA v The State of Western Australia [2016] WASCA 165 [38].
[24] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21].
The parity principle has been explained and discussed in numerous cases decided by this court, including recently in Diamantopoulos v The State of Western Australia.[25] It is enough, for present purposes, to state: (1) the parity principle is concerned with substance, rather than form; (2) the manner in which the principle is to be applied will vary according to the facts and circumstances of the case; (3) the application of the parity principle is often nuanced, and does not involve strict mathematical comparisons; and (4) proper application of the principle does not require the imposition of a sentence that is wholly inadequate, or a sentence that is an affront to the administration of justice.
[25] Diamantopoulos v The State of Western Australia [2024] WASCA 82 [36] ‑ [42].
In Tan v The State of Western Australia,[26] this court set out a number of general principles applicable to offences contrary to s 563A of the Code, including that money laundering is an offence in respect of which general deterrence is ordinarily given significant weight.[27]
[26] Tan v The State of Western Australia [2019] WASCA 112.
[27] Tan [49].
Ground 1 - disposition
The maximum penalty for count 1 is, as we have mentioned, 10 years' imprisonment, or a fine not exceeding $20,000, or both.
The characterisation of the respondent by the sentencing judge as 'a low‑level offender' is not a finding of fact, and is not binding on this court. While the respondent's offending may have been opportunistic, and a one‑off occurrence, these factors do not diminish the serious criminality involved in what the respondent actually did in this case.
The respondent was fully aware that both Mr A and Mr Hasani were each involved in the business of selling cannabis. Seeing an opportunity from which he thought he would profit, the respondent put together 'a deal' in which Mr Hasani sold to Mr A 8.77 kg of cannabis.
The respondent was more than an intermediary. He initiated and then drove the transaction. He saw the opportunity and brought the parties together. He conducted the negotiations between vendor (Mr Hasani) and purchaser (Mr A). He obtained the cannabis from Mr Hasani and took it to Mr A's house. After Mr A assessed the cannabis and the price of $50,000 was agreed, Mr A gave this sum to the respondent. The respondent paid himself $10,000 and was on his way to Mr Hasani's house with the balance when he was arrested. Had the respondent not been stopped, Mr Hasani would have received $40,000.
Without the involvement of the respondent, the transaction would not have occurred, given that, prior to the respondent's intervention, the parties to the transaction did not know each other. The respondent was plainly trusted by both vendor and purchaser. The respondent's motive for committing count 1 (which became a reality) was to make a quick and substantial profit.
We have had regard to all of the comparable cases cited by the parties. We have also had regard to the analysis of the comparable cases undertaken by this court in Rillotta.[28]
[28] Rillotta [23] - [31].
None of the facts and circumstances of the comparable cases are on all fours with the current case. They are of only limited assistance and represent a broad spectrum of seriousness. Given the relatively modest maximum penalty for a cannabis offence contrary to s 6(1) or s 7(1) of the Misuse of Drugs Act, there is some compression of the sentencing outcomes in cases involving very large quantities of cannabis.
Insofar as the outcomes in Lester, Griffin, Wilson, Harvey and Turner are of assistance, they point to the manifest inadequacy of the individual sentence imposed on count 1, particularly having regard to the fact that the respondent in this case did not, in contrast to the offenders in Lester, Wilson, Harvey and Turner, have the advantage of the mitigation to be gained by a plea of guilty.
The respondent was a mature adult who had no prior criminal history, and was a person of prior good character. He had good prospects of rehabilitation, and posed a low risk of reoffending. While these matters are relevant, they could not be accorded great weight, having regard to the importance of general deterrence. In addition to the respondent's personal circumstances, it must be accepted that the respondent's time in prison in Western Australia will be more onerous for him, given his separation from his family. The respondent's inability to provide for his wife and children and the possibility of his deportation will add to the stress of his imprisonment. These were matters that her Honour evidently took into account. It was not alleged that she erred in doing so.
Then, there is the matter of parity with the sentence imposed on Mr A by Troy DCJ for count 2 in the indictment against Mr A.
Wallace DCJ reduced the sentence she would otherwise have imposed upon the respondent having regard to parity. The State does not suggest that her Honour erred in this regard. However, her Honour's approach to parity in this case was, as we have mentioned, unorthodox, and should not be adopted in other cases.
In applying the parity principle, a difficulty which confronted Wallace DCJ was that, of the offences committed by Mr A, only count 2 had any real relevance, and only to the extent that, of the 83.6 kg of cannabis the subject of that count, only 8.77 kg of that cannabis had any connection with the respondent.
Her Honour 'reverse‑engineered' the sentence Troy DCJ imposed on Mr A for count 2. Her Honour calculated that, but for the discounts Troy DCJ gave for the plea of guilty and Mr A's promise of future cooperation, Mr A would have been sentenced on count 2 to 5 years 9 months' imprisonment (69 months). Although her Honour stated that sentencing judges 'do not sentence by utilising mathematical equations', she said that a sentence of 5 years 9 months' imprisonment 'equate[d] to imposing under a month of imprisonment per kilogram of cannabis'.[29] Having eschewed a mathematical approach, she nevertheless regarded it as 'a relevant observation'.[30] We note that the sentence imposed on the respondent on count 1 of 10 months' immediate imprisonment, was reasonably close to a calculation of about one month per kilogram of cannabis sold by the respondent.
[29] ts 191.
[30] Sentencing remarks (191).
Her Honour's method of dealing with parity was flawed. This is for at least four reasons. First, comparisons, for the purposes of the parity principle, will rarely, if ever, be capable of the kind of mathematical analysis engaged in by her Honour. Secondly, as the State points out in its written submissions,[31] her Honour's reverse‑engineering process to come to a starting point for the sentence that would have been imposed on Mr A, before discounts were given for his plea of guilty and his promise of future cooperation (69 months), failed to take into account significant, but unquantified, mitigation in favour of Mr A which did not apply to the respondent, being genuine remorse and past cooperation. Thus, her Honour's starting point of 69 months for Mr A was erroneously low. Thirdly, her Honour's calculation was based entirely on the weight of the cannabis possessed by Mr A, when it is well established that the gravity of a drug offence is not to be assessed solely, or chiefly, by the weight of the relevant prohibited drug.[32] Fourthly, her Honour's calculation assumed that the sentences imposed upon Mr A and the respondent, respectively, should have a linear relationship with the weight of the cannabis involved.[33]
[31] Appellant's case, par 38.1
[32] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [73].
[33] Diamantopoulos [81].
In the present case, we will assume that parity considerations had some role to play, but the weight that could properly be given to parity was limited, having regard to the very different circumstances which existed between Mr A and the respondent, and the need to ensure that, ultimately, the sentence that was imposed on the respondent was not manifestly inadequate.
In our opinion, her Honour did not properly appreciate or have regard to the seriousness of the respondent's offending as, described in [59] ‑ [61] above, and the need for general deterrence. The individual sentence imposed by her Honour was not merely low, it was manifestly inadequate. The length of the sentence was not justified by the mitigating circumstances her Honour identified, either individually or in combination, or by parity considerations.
Ground 2 - disposition
In our opinion, the individual sentence imposed for count 2 of 8 months' immediate imprisonment was also manifestly inadequate. The respondent received a substantial sum of money for his services. He knew it was money derived from the sale of a large quantity of cannabis. The maximum penalty for an offence contrary to s 563A of the Code is 20 years' imprisonment. This is to be contrasted with an offence contrary to s 417(1) of the Code, for which the maximum penalty is 7 years' imprisonment. The sentencing objective of general deterrence looms large in cases such as the present. Substantial sentences should be imposed in cases such as the respondent's to deter others from profiting from their criminal conduct, or from the criminal conduct of others. The sentence of 8 months' immediate imprisonment imposed by her Honour did not properly reflect the maximum penalty for the offence, the serious nature of the offending, or the need for general deterrence, and was not justified by the mitigating factors, either individually or in combination. Like count 1, the sentence on count 2 was not merely low, it was manifestly inadequate.
Ground 3 - disposition
Ground 3 must be upheld, having regard to the conclusions that we have reached in respect of grounds 1 and 2.
The residual discretion
The residual discretion under s 31(4)(a) of the Criminal Appeals Act is a 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 has been established. It is well established that State appeals serve a different purpose from offender appeals against sentence. Offender appeals are concerned with the correction of error in the particular case, and State appeals are concerned with laying down principles for the guidance of sentencing courts.[34] A prosecution appeal requires the State to demonstrate appellable error in the exercise of the sentencing discretion, and, in addition, to negate any reason why the residual discretion should be exercised.[35]
[34] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keene JJ).
[35] R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 [12] (Heydon JA).
In our opinion, the residual discretion should not be exercised in this case for these reasons. First, the sentences imposed were plainly inadequate. Secondly, even though any sentence imposed on the respondent by this court would be relatively short, this court's intervention is necessary to ensure the maintenance of proper sentencing standards for offences of the kind committed by the respondent. Thirdly, while it is well established in Western Australia that the prospect of an offender being deported is not a mitigating factor,[36] assuming, favourably to the respondent and without deciding the point, that the prospect of deportation may be a matter relevant to the exercise of the residual discretion, the intervention of this court to maintain proper sentencing standards must, in the public interest, take priority. Fourthly, the impact of the offending on the respondent's dependants, as unfortunate as it is, is a consequence of the respondent's criminal behaviour, for which he must take personal responsibility.
[36] Hussian [144] and the cases cited therein.
In our opinion, the residual discretion should not be applied. Consequently, the State's appeal must be allowed and the respondent must be resentenced.
Resentencing
In resentencing the respondent, we have taken into account all of the relevant facts and circumstances. We have also had regard to all relevant sentencing factors, including the need to impose sentences which provide an appropriate measure of general deterrence and the mitigating factors. We have reduced the sentences we would otherwise have imposed to recognise the mitigating factors.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
30 JUNE 2025
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