The State of Western Australia v Paolucci - [2020] WASCA 188

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAOLUCCI [2020] WASCA 188
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   9 SEPTEMBER 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CACR 14 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

ALESSIO PAOLUCCI
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 1152 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted, on his pleas of guilty, of one count of selling MDMA, one count of possessing cocaine with intent to sell or supply it to another, one count of possessing MDMA with intent to sell or supply it to another, two counts of possessing a thing capable of being stolen, namely money, that was reasonably suspected to have been unlawfully obtained - Manifest inadequacy - Totality

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 34(1)

Result:

Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC & Ms M M Yeung
Respondent	:	Mr S Vandongen SC

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Holborn Lenhoff Massey

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

Al-Rafei v The State of Western Australia [2017] WASCA 4
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bond v The State of Western Australia [2011] WASCA 123
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Galbraith v The State of Western Australia [2011] WASCA 70
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Guler v The State of Western Australia [2014] WASCA 83
Hoang v The State of Western Australia [2015] WASCA 130
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Law v The Queen [2019] WASCA 81
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nembousse v The State of Western Australia [2015] WASCA 68
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Nguyen v The State of Western Australia [2017] WASCA 35
Nguyen v The State of Western Australia [2019] WASCA 56
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
Roffey v The State of Western Australia [2007] WASCA 246
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Tago v The State of Western Australia [2018] WASCA 59
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Nillson [2017] WASCA 68
Tirkot v The State of Western Australia [2018] WASCA 41
Tricoli v The State of Western Australia [2011] WASCA 74
YDN v The State of Western Australia [2018] WASCA 62
Ye v The State of Western Australia [2016] WASCA 103
Yiu v The State of Western Australia [2016] WASCA 172

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted, on his pleas of guilty, of five counts in an indictment.
Count 1 alleged that on 15 February 2019, at Northbridge, the respondent sold a prohibited drug, namely MDMA, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged that on 15 February 2019, at Northbridge, the respondent was in possession of a thing capable of being stolen, namely money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
Count 3 alleged that on 15 February 2019, at Innaloo, the respondent had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
Count 4 alleged that on 15 February 2019, at Innaloo, the respondent had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
Count 5 alleged that on 15 February 2019, at Innaloo, the respondent was in possession of a thing capable of being stolen, namely money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code.
On 16 January 2020, Gillan DCJ imposed individual sentences of immediate imprisonment as follows:
(a)count 1:     4 years;
(b)count 2:     4 months;
(c)count 3:     1 year;
(d)count 4:     1 year; and
(e)count 5:     1 year.
Her Honour ordered that the individual sentence for count 3 be served cumulatively upon the individual sentence for count 1 and that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 1. The total effective sentence was therefore 5 years' imprisonment. The total effective sentence was backdated to 12 February 2019. A parole eligibility order was made.
We would allow the appeal. The sentencing judge's sentencing decision should be set aside and the respondent resentenced by this court.

The facts and circumstances of the offending

The facts and circumstances of the offending, as found by the sentencing judge, were not in dispute before this court. They were, relevantly and in essence, as follows.
At about 5.05 pm on 15 February 2019, the respondent was at a unit in Northbridge occupied by an alleged co‑offender, Leighton Reece Smith, who was also present. Two undercover police officers (UCOs) attended the unit with an alleged co‑offender, Zara Skye Hobson, for the purpose of purchasing 1 kg of MDMA.
Ms Hobson took them to Mr Smith's unit. The female UCO remained outside whilst the male UCO went into the unit with Ms Hobson. He handed over the sum of $61,000 of marked police operational money in exchange for the MDMA. The UCO then left the unit which, a short time later, was entered by police who apprehended the respondent and Mr Smith. Both had stuffed some of the money down their trousers.
The MDMA, which was in a crystalline powder form, was later analysed and found to weigh 996 g with a purity of 81% (count 1).
The police searched the respondent's BMW vehicle (which was parked in a nearby street) and found $320 cash (count 2) in a compartment above the radio. The respondent declared the presence of the cash.
The police later executed a search warrant at the respondent's Innaloo unit where the respondent lived by himself. Police located two clipseal bags containing what the respondent said was cocaine on the kitchen dining table. Later analysis revealed that one bag contained 26.3 g of cocaine with a purity of 21% (count 3). The other bag contained 4.99 g of lactose.
On the kitchen dining table at the respondent's unit was a clipseal bag containing 13.6 g of MDMA with a purity of 83% (count 4). Also on the dining table were digital scales with traces of powder on them.
Police located $3,400 cash (count 5) on top of the washing machine in the laundry.
Police also found an iPhone on the kitchen bench which the respondent admitted was his. The respondent exercised his right to silence. However, he did, reluctantly, give police the passcode for the telephone. Analysis of the telephone revealed drug‑related text messages and a tick list containing 14 names and figures. The figures ranged from 300 to 2,300.

The sentencing judge's sentencing remarks and the respondent's personal circumstances

The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending.
The respondent was aged 25 at the time of the offending and was 26 when sentenced.
The respondent is an Italian citizen. Since 2014 he has resided in Australia, initially on a working holiday visa and then on a student visa and a partner visa. His parents and his brother live in Italy.
The respondent had been in a relationship with a young Australian woman. She remains supportive of him but the relationship has ended. The respondent has studied English and business in Australia. He has worked part-time as a plasterer.
The respondent had a long standing addiction to cocaine. He incurred a debt to those who supplied him with drugs.
The respondent did not have a criminal record. Her Honour regarded him as of prior good character.
The sentencing judge accepted that the respondent was genuinely remorseful for his offending. He had commenced steps towards rehabilitation while he was in custody.
Her Honour accepted that 'in general terms' the respondent was 'a low‑key drug dealer'. Her Honour found that the respondent supplied the drugs the subject of count 1 'as a trusted person, more in the nature of courier than in the nature of a profit taker', and that the respondent's role in relation to those drugs was 'to take the drugs from one place and to the point of the … unit in Northbridge, and then take the money back' (ts 43).
Her Honour made the following observations:
But the sentences I'm going to impose are, with respect to count 1 - and might I also say that it's for totality reasons I've reduced the overall - all of the overall sentences, so I'm - if they’ve been stand-alone sentences, they might have carried a greater sentence than they otherwise do.
But on count 1, and I'll make this the head sentence - for totality reasons I'm going to - and for the fact that you were a lesser role in this case, I'm going to give you a sentence of four years.
Count 2, four months, and I'll make that concurrent.
Count 3, and I'm going to make this count cumulative, and I'm going to give you a sentence of one year.
It would have been more, but I've reduced it for totality reasons.
Count 4, one year concurrent.
Count 5, one year, concurrent.
So the total effective sentence is five years, and that's a sentence I think bears a proper relationship to your actions in this regard. (ts 43 ‑ 44).
The sentencing judge concluded her sentencing remarks by stating that it was 'tragic that [the respondent found himself before the court]' and that her Honour thought the respondent was 'in [his] heart a genuine young man with a lot to look forward to'. Her Honour added that she was 'very sad that [the respondent found himself before the court]'. Her Honour 'wish[ed the respondent] well in the future' (ts 44 ‑ 45).

The respondent's pleas of guilty and s 9AA of the Sentencing Act 1995 (WA)

At the sentencing hearing before the sentencing judge, the prosecutor and defence counsel agreed that the respondent's pleas of guilty were entered at the first reasonable opportunity after he had received legal advice. The prosecutor conceded, in written submissions on sentence, that the maximum discount under s 9AA of the Sentencing Act 1995 (WA) could be given for the pleas [27].
However, her Honour made no reference in her sentencing remarks to the respondent's pleas of guilty or to the extent of any discount she had awarded under s 9AA.

The grounds of appeal

The State relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the sentence of 4 years' immediate imprisonment imposed for count 1 was manifestly inadequate.
Ground 2 alleges, in essence, that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.
On 23 March 2020, Buss P granted leave to appeal on those grounds.

Counsel for the State's submissions

Counsel for the State submitted that the sentence of 4 years' immediate imprisonment imposed for count 1 was significantly lower than the sentences that are customarily imposed for similar offending. The sentence did not adequately reflect the seriousness of the offending on count 1 or the major sentencing considerations of personal and general deterrence. It was submitted that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the sentence of 4 years' immediate imprisonment was so unreasonable as to manifest error.
Counsel submitted that the total effective sentence of 5 years' immediate imprisonment failed to reflect the overall criminality of the offending conduct, viewed in its entirety, and having regard to the facts and circumstances of the offending as a whole, all relevant sentencing factors including the respondent's personal circumstances, and sentencing standards for similar offending.

Counsel for the respondent's submissions

Counsel for the respondent accepted that the offending in relation to count 1 was serious.
However, counsel emphasised the finding of the sentencing judge that:
(a)the respondent 'supplied the drugs as a trusted person, more in the nature of a courier than in the nature of a profit taker'; and
(b)the respondent's role in relation to those drugs was 'to take the drugs from one place and to the point of the … unit in Northbridge, and then take the money back' (ts 43).
It was submitted that this finding was very relevant to the determination of where the respondent's offending on count 1 should be placed on the scale of seriousness.
Counsel accepted that the drug dealing enterprise in which the respondent was involved in relation to count 1 was clearly able to source a relatively large amount of MDMA at relatively short notice. Counsel also accepted that the respondent's motive for being involved in relation to count 1 was 'commercial' in that the respondent intended to 'pay down [his drug debt]' [15].
However, counsel stressed that the respondent did not have any proprietary interest in the drugs the subject of count 1. Also, the respondent was not at 'the top end of the drug hierarchy specifically or generally'. His role in relation to count 1 was limited to taking the drugs to where they were to be sold and then to take the money back to the supplier [16].
Counsel accepted that the respondent's role in physically carrying out the sale of the drugs the subject of count 1 enabled the people who were higher up the chain of distribution to avoid detection by law enforcement authorities. However, it was submitted that this circumstance did not increase the seriousness of the respondent's offending on count 1. Indeed, it was consistent with the respondent occupying a very low position in the hierarchy.
Counsel accepted that the respondent's overall criminality in relation to all of the counts in the indictment was serious. It had never been contended on behalf of the respondent that the offending behaviour the subject of the counts in the indictment was isolated or an aberration. However, the fact that his offending was not isolated or an aberration did not aggravate the seriousness of his offending. It merely had the consequence that no mitigation could be afforded on the basis that his offending was out of character.
Counsel noted that there were various mitigating factors that were taken into account by the sentencing judge. It was submitted that, in addition to those mitigating factors, there were a number of personal circumstances that were relevant, including the circumstances set out in letters from the respondent's parents, brother, former partner and a friend. The respondent also relied upon a letter that he had written to the sentencing judge, as well as various certificates which evidenced that he had completed many courses while he was in custody awaiting sentence.
In summary, it was argued on the respondent's behalf that:
(a)although the sentence of 4 years' immediate imprisonment for count 1 was 'towards the bottom end of the range of available sentences', it cannot be inferred that the sentencing judge's discretion miscarried to such an extent that appellate intervention is required [38]; and
(b)when all relevant facts and circumstances and all relevant sentencing factors are taken into account, based on her Honour's unchallenged findings of fact, it cannot be concluded that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.
Counsel informed the court that, in the event this court considers that error has been established as alleged in ground 1 or ground 2, the respondent does not submit that the appeal should nevertheless be dismissed in the exercise of the court's residual discretion.

The grounds of appeal: their merits

In the present case, the State does not assert that the sentencing judge made any express error. Also, the State does not challenge the individual sentences imposed for counts 2, 3, 4 and 5. As we have mentioned, ground 1 alleges that the individual sentence for count 1 was manifestly inadequate and ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[4] The State of Western Australia v Doyle;[5] McAlpine v The State of Western Australia.[6]
[4] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[5] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[6] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[7]
[7] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[8]
[8] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[9] Nguyen v The Queen.[10]
[9] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[10] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[11] Johnson v The Queen;[12] Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[11] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[12] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.
In the present case, the sentencing judge's approach to the imposition of the individual sentences was unusual and was not in accordance with the principles set out at [58] and [60] above. Her Honour appears, on one view of the passage we have reproduced at [28] above, to have reduced all of the individual sentences in the application of the totality principle. On another view of that passage, her Honour only reduced the individual sentences for counts 1 and 3 on account of totality. It is difficult to understand why her Honour would have reduced the individual sentences for counts 2, 4 and 5 on account of totality when each of those counts was significantly less serious than count 1 and her Honour ordered that those sentences be served wholly concurrently with each other and with the individual sentence for count 1. Her Honour could only have reduced the individual sentence for count 1 from 5 years to 4 years having regard to her decision that the total effective sentence should be 5 years. Her Honour did not state the extent to which she had reduced any of the individual sentences for totality.
At all material times, the maximum penalties for:
(a)the offence of selling MDMA, contrary to s 6(1)(c) of the MD Act, has been 25 years' imprisonment or a fine of $100,000 or both (see s 34(1) of the MD Act);
(b)the offence of possessing MDMA or cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, has been 25 years' imprisonment or a fine of $100,000 or both (see s 34(1) of the MD Act); and
(c)the offence of possessing a thing capable of being stolen, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code, has been 7 years' imprisonment.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
MDMA is a harmful prohibited drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin. See The State of Western Australia v Higgins;[13] Tirkot v The State of Western Australia.[14]
[13] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111] - [121] (Steytler P; McLure & Miller JJA agreeing).
[14] Tirkot v The State of Western Australia [2018] WASCA 41 [73] (Buss P, Beech JA & Hall J).
We have had regard to the sentencing dispositions in a range of cases including the cases cited by counsel for the State and counsel for the respondent. The cases to which we have had regard include Galbraith v The State of Western Australia;[15] Tricoli v The State of Western Australia;[16] Bond v The State of Western Australia;[17] Pham v The State of Western Australia;[18] Guler v The State of Western Australia;[19] Phan v The State of Western Australia;[20] Nembousse v The State of Western Australia;[21] Ye v The State of Western Australia;[22] Yiu v The State of Western Australia;[23] Hoang v The State of Western Australia;[24] Al-Rafei v The State of Western Australia;[25] Nguyen v The State of Western Australia;[26] The State of Western Australia v Nillson;[27] Tago v The State of Western Australia;[28] Nguyen v The State of Western Australia.[29]
[15] Galbraith v The State of Western Australia [2011] WASCA 70.
[16] Tricoli v The State of Western Australia [2011] WASCA 74.
[17] Bond v The State of Western Australia [2011] WASCA 123.
[18] Pham v The State of Western Australia [2011] WASCA 244.
[19] Guler v The State of Western Australia [2014] WASCA 83.
[20] Phan v The State of Western Australia [2014] WASCA 144.
[21] Nembousse v The State of Western Australia [2015] WASCA 68.
[22] Ye v The State of Western Australia [2016] WASCA 103.
[23] Yiu v The State of Western Australia [2016] WASCA 172.
[24] Hoang v The State of Western Australia [2015] WASCA 130.
[25] Al-Rafei v The State of Western Australia [2017] WASCA 4.
[26] Nguyen v The State of Western Australia [2017] WASCA 35.
[27] The State of Western Australia v Nillson [2017] WASCA 68.
[28] Tago v The State of Western Australia [2018] WASCA 59.
[29] Nguyen v The State of Western Australia [2019] WASCA 56.
The very serious nature of the respondent's offending on count 1 is apparent from the following:
(a)The quantity and purity of the MDMA.
(b)The respondent's role in relation to count 1 was not merely to transport the drugs from one location to another. He was trusted by those who were more senior in the drug dealing enterprise to transport the drugs, meet with the purchaser, transfer the drugs to the purchaser in exchange for $61,000 cash, and deliver the cash to those from whom he took his instructions. The respondent's role was of importance in the dissemination of drugs into the community.
(c)The respondent performed significant tasks that were integral to the continuing operation of a drug distribution network that was able to obtain and provide 996 g of MDMA, with a high degree of purity, at relatively short notice.
(d)The respondent carried out his role in relation to count 1 for financial gain, namely to reduce or extinguish an existing drug debt.
The very serious character of the respondent's offending on count 1 was mitigated by the factors referred to by her Honour and, of course, by his plea of guilty. As we have mentioned, her Honour did not mention, in her sentencing remarks, the plea of guilty or the extent of any discount she had awarded under s 9AA of the Sentencing Act. We are satisfied that, in the circumstances, a discount of 25% on the 'head sentence', as defined in s 9AA(1), would have been appropriate. The very serious character of the respondent's offending on count 1 was also mitigated by the personal circumstances raised by his counsel which we have mentioned at [44] above.
The respondent was aged 25 when he committed the offence charged in count 1 and aged 26 when sentenced. His relative youth could be accorded only very limited weight. Although the respondent did not have a criminal record, he had used and possessed MDMA and cocaine for about two years. He began selling cocaine to support his drug addiction and sold large quantities of illicit substances to reduce his drug debt.
Since January 2014 the respondent has resided in Australia. His family lives in Italy and they are unlikely to be able to visit him while he is in prison. Fortunately, he still has the support of his former partner and friends who live in Perth.
It is apparent, having regard to all relevant facts and circumstances and all relevant sentencing factors, that the sentence of 4 years' immediate imprisonment imposed by her Honour for count 1 is significantly lower than, and significantly inconsistent with, the standards of sentencing customarily observed with respect to similar cases.
In our opinion, the sentence of 4 years' immediate imprisonment for count 1 was not commensurate with the seriousness of the offence. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending; the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence as sentencing considerations; and all mitigating factors. The sentence was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion.
The observations we have made at [70] ‑ [71] above apply if the individual sentence her Honour would have imposed for count 1, but for totality, was 5 years' immediate imprisonment.
Ground 1 of the appeal has been made out.
We turn to ground 2. The appellant's overall offending on the counts in the indictment was very serious. We have already dealt with count 1. In addition to the criminality revealed by the facts and circumstances of count 1, the respondent carried on a separate and distinct drug dealing business in his own right. The existence of that business was discovered when the police executed the search warrant at the respondent's Innaloo unit. The police found a clipseal bag containing 26.3 g of cocaine with a purity of 21% and another clipseal bag containing 13.6 g of MDMA with a purity of 83%. Police also found digital scales bearing traces of powder and the cash the subject of counts 2 and 5. The respondent's mobile telephone contained drug-related text messages and a tick list with 14 names and figures. The figures ranged from 300 to 2,300. The sentencing judge described the respondent as 'a low-key drug dealer'.
In our opinion, the total effective sentence of 5 years' immediate imprisonment did not bear a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. Significant weight had to be given to general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to her Honour on a proper exercise of her discretion.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[30] The State of Western Australia v Cairns;[31] Sathitpittayayudh v The State of Western Australia;[32] YDN v The State of Western Australia;[33] Law v The Queen.[34]
[30] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[31] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[32] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).
[33] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[34] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).
As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, different and substantially higher sentences of immediate imprisonment should be imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

The outcome of the appeal and the resentencing of the respondent

As we have mentioned, counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney-General (NSW).[35]
[35] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, the impugned sentences imposed by the sentencing judge were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.
We would allow the appeal.
Her Honour's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
At the hearing of the appeal, counsel for the respondent informed the court that the respondent had continued to undertake courses in custody since he had been sentenced by the sentencing judge. He had also been able to undertake counselling in relation to illicit drug use from a private organisation called Whitehaven.
We would allow a discount of 25% pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty. We have also reduced each sentence we would otherwise have imposed for each offence to reflect the other mitigating factors to which we have referred.
We would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment in respect of the counts in the indictment as follows:
(a)count 1: 7 years;
(b)count 2: 6 months;
(c)count 3: 3 years 4 months;
(d)count 4: 2 years 8 months; and
(e)count 5: 1 year.
We would order that the new sentence for count 5 (1 year) be served cumulatively upon the new sentence for count 1 (7 years) and that the other new sentences be served concurrently with each other and concurrently with the new sentence for count 1. The new total effective sentence in respect of the counts in the indictment is therefore 8 years' imprisonment.
The new total effective sentence of 8 years' imprisonment should be taken to have taken effect on 12 February 2019. A parole eligibility order should be made. The respondent will be eligible to be considered for release on parole when he has served 6 years in custody calculated from 12 February 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
16 NOVEMBER 2020