VXM v The State of Western Australia - [2022] WASCA 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   VXM -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 74
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   25 MARCH 2022
DELIVERED          :   28 JUNE 2022
FILE NO/S:   CACR 40 of 2021
BETWEEN:   VXM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   IND XXXX of 20XX

Catchwords:

Criminal law and sentencing - Guilty pleas - One count of possession of prohibited drugs - One count of possession of unlawfully obtained cash - Total effective sentence of 7 years and 4 months' imprisonment - Individual sentences not challenged - Whether total effective sentence unreasonable or plainly unjust - Turns on own facts

Criminal law and sentencing - Guilty pleas - One count of possession of prohibited drugs - One count of possession of unlawfully obtained cash - Cooperation with authorities - Whether sentencing judge erred in failing to take cooperation with the authorities into account - Turns on own facts

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Holmes Criminal Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285
Gaskell v The State of Western Australia [2018] WASCA 8
Gowan v The State of Western Australia [2016] WASCA 98
Jiang v The State of Western Australia [2020] WASCA 7
Kabambi v The State of Western Australia [2019] WASCA 44
Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
McGrath v The State of Western Australia [2021] WASCA 118
Moore v The State of Western Australia [2006] WASCA 121
Musulin v The State of Western Australia [2020] WASCA 18
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Ngo v The State of Western Australia [2007] WASCA 221
NHI v The State of Western Australia [2021] WASCA 32
Pennetta v The State of Western Australia [2013] WASCA 234
R v Ng [2012] WASCA 180
Roffey v The State of Western Australia [2007] WASCA 246
Schischka v The State of Western Australia [2015] WASCA 15
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Paolucci [2020] WASCA 188
Trainor v The State of Western Australia [2021] WASCA 36
Ye v The State of Western Australia [2016] WASCA 103

BUSS P & MAZZA JA:

We agree with Vaughan JA that this appeal against sentence must be dismissed. We respectfully agree with his Honour's reasons on ground 2. We will express our own reasons for dismissing ground 1. In doing so, we gratefully adopt Vaughan JA's description of all of the relevant background.

Ground 1 - her Honour's alleged error with respect to the appellant's cooperation

The relevant legal principles with respect to ground 1 are well established and have been stated in the authorities referred to in Vaughan JA's reasons.
Ground 1 alleges:
The learned sentencing judge erred in deciding that she was unable to further discount the sentences to be imposed on the appellant because no benefit had been derived by the State from the appellant's cooperation with authorities.
The ground of appeal refers to the following passage in the sentencing remarks:[1]
I also have referred to the matters raised in paragraphs 29 to 31 of the written submissions and I'm told that there was no in fact benefit to the statement so I'm unable to further discount the sentence I will otherwise impose, but I do take that into account in the general sentencing disposition.
[1] ts 72.
The impugned passage appears in the course of a lengthy passage in the sentencing remarks dealing with the mitigating factors. Senior counsel for the appellant summed up his contention as to the effect of this passage as:[2]
So, to be clear, what we say her Honour is saying is no benefit, no separate mitigation.
We do not think that this is the effect of the impugned statement.
[2] Appeal ts 8.
The impugned passage must be understood in light of the well established sentencing principles relating to an offender's cooperation and her Honour's sentencing remarks read as a whole.
A sentencing judge is not bound, absent any statutory requirement, to quantify the discount for a mitigating factor. The task of a sentencing judge is, again absent any statutory requirement, to intuitively synthesise all relevant sentencing considerations in order to arrive at a sentence commensurate with the seriousness of the offence.[3]
[3] See s 6(1) of the Sentencing Act 1995 (WA).
The provision by an offender of cooperation to law enforcement authorities falls into two broad categories - past cooperation and a promise to give future cooperation. In the present case, the cooperation provided by the appellant was past cooperation. Past cooperation, unlike future cooperation,[4] is not subject to any statutory requirement that the discount be quantified. A sentencing judge may quantify the discount for past cooperation, but is not required to do so.
[4] See s 8(5) of the Sentencing Act.
While it is well‑recognised that past cooperation that does not actually result in assistance to the State may still be regarded as mitigating, past cooperation that does, in fact, assist law enforcement authorities will generally have greater mitigating weight.
The impugned passage must also be understood in light of the letter of recognition that was provided to her Honour. The letter referred to the appellant providing law enforcement authorities with information on one occasion. No details of the information are set out. The letter states that the information did not meet the criteria to be graded. The inference to be drawn from this statement is that, as far as the law enforcement authorities were concerned, the information was of no use. The appellant did not attempt, at first instance or on appeal, to suggest otherwise. The only submission, at first instance, made on behalf of the appellant in relation to the cooperation, was 'the assistance that was provided was the extent of his knowledge'.[5]
[5] See amended sentencing submissions on behalf of the appellant, par 31.
It is clear from the impugned passage that her Honour expressly took into account the cooperation as a mitigating factor. By taking the cooperation into account, her Honour necessarily gave it some weight. There is no reason to think that she did otherwise. As we understand it, in the impugned passage her Honour is stating that a further discount, on the basis that the appellant's cooperation actually assisted law enforcement authorities, was not available to the appellant. Taken this way, her Honour's comment is not erroneous, either in principle or fact.

In any event, even if the error alleged in ground 1 had been made out, it is not reasonably arguable that a different sentence should have been imposed. The appellant's cooperation could at best provide only modest mitigation. The individual sentences and the total effective sentence imposed were towards the lower end of the range open to her Honour on a proper exercise of her discretion. On a re‑exercise of the sentencing discretion, which had proper regard to all relevant sentencing factors including the appellant's cooperation, no lesser individual sentences or total effective sentence (than those imposed at first instance) would have resulted.
We would not give leave to appeal on ground 1. The ground did not have a reasonable prospect of success.

VAUGHAN JA:

Overview

The appellant has made an application for leave to appeal against sentence.
On 18 March 2021, the appellant was convicted, on his pleas of guilty, of:
1. One count of possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for that offence is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years or both.[6]
2. One count of possession of stolen or unlawfully obtained property, namely an amount of cash, contrary to s 417(1) of the Criminal Code (WA). The maximum penalty for that offence is imprisonment for 7 years.
[6] Misuse of Drugs Act s 34(1)(aa).
On 22 March 2021, the appellant was sentenced to a total effective sentence of 7 years and 4 months' imprisonment backdated to 10 March 2021. The total effective sentence was made up of a sentence of 6 years and 10 months' imprisonment on count 1 and 6 months' imprisonment on count 2 to be served cumulatively (reduced from 12 months' imprisonment for totality). The sentencing judge ordered that the appellant was eligible for parole.

The appellant seeks leave to appeal against his sentence on two grounds:
1.By ground 1 the appellant alleges that the sentencing judge made an error of principle in finding that she was unable to further discount the sentences to be imposed on the appellant for his cooperation with authorities because no benefit had been derived by the State from the appellant's cooperation.
2.By ground 2 the appellant contends that the total effective sentence of 7 years and 4 months' imprisonment infringed the first limb of the totality principle.
The appellant does not challenge the individual sentences on each count.
For the reasons that follow there should be leave to appeal on ground 1. Leave to appeal should be refused on ground 2. While there should be leave to appeal on ground 1, the appeal fails and should be dismissed.

The circumstances of the offending

The circumstances of the offending are set out in the confidential schedule to these reasons.

The appellant's personal circumstances

The appellant's personal circumstances are set out in the confidential schedule to these reasons.

The sentencing disposition

The sentencing judge made findings as to the circumstances of the offending (ts 62 - 64). Her Honour then found that the appellant was to be sentenced on the basis that:
1.The appellant knew of the existence of the prohibited drugs and the money (ts 65).
2.The prohibited drugs and the cash did not belong to the appellant. Rather, the appellant was minding them for someone else - a person to whom the appellant had been introduced because he and the appellant had an interest in similar pastimes (ts 64 - 65).
3.The appellant knew the owner of the prohibited drugs and cash to be a drug dealer (ts 65).
The appellant's role was found to be to warehouse the prohibited drugs and cash by providing a safe place for their storage (ts 66). Her Honour said that this was an 'important role' in drug distribution albeit that the appellant was much lower down the hierarchical chain than the owner of the drugs (ts 66).
Her Honour concluded that the appellant must have been trusted enough by the owner of the prohibited drugs and money, and those higher in the drug distribution chain, to warehouse both the prohibited drugs and the money (ts 65). The appellant was warehousing the prohibited drugs for someone who was selling or dealing at a commercial level (ts 66). The appellant had said that the person who had stored the prohibited drugs and money at the appellant's house was desperate for a new location having been 'ripped off' at the last house (ts 65).
The sentencing judge was not satisfied beyond reasonable doubt that the appellant benefitted commercially from the role that he undertook (ts 61, 65). However, while there was no evidence that the appellant benefitted commercially or financially from the arrangement, there was an intangible benefit for the appellant associated with ingratiating himself with, and in terms of the appellant's friendship with, the owner of the prohibited drugs and money (ts 65). While the sentencing judge was satisfied that there was such an intangible benefit, her Honour said that this did not aggravate the offending (ts 62, 65).
The sentencing judge concluded that text messages on the appellant's mobile phone demonstrated that he was using methylamphetamine and buying and supplying methylamphetamine at street levels (ts 67, 73). Her Honour thus observed that the appellant was not a stranger to drugs (ts 67).
In assessing the seriousness of the offending, the sentencing judge referred to the weight of the prohibited drugs, their purity and the amount of the cash (ts 66).
The sentencing judge said that, other than in respect of the matters mentioned going to the seriousness of the offending, the State had not drawn her attention to any specific aggravating factors (ts 67).
Her Honour referred to the appellant's personal circumstances (ts 68 - 70). So far as the sentencing judge took into account that the appellant had a personality structure that meant he was vulnerable by reason of not being able to say no to others, her Honour observed that this placed the appellant at risk of reoffending in the future (ts 69 - 70).
In relation to mitigating factors, the sentencing judge stated that:
1.The appellant had pleaded guilty at the first reasonable opportunity - her Honour determined pursuant to s 9AA of the Sentencing Act 1995 (WA) that it was appropriate to reduce the length of the sentences she would otherwise have imposed by 25% before taking other matters in mitigation into account (ts 68).
2.The appellant was genuinely remorseful, referring, in this respect, to letters the appellant had written to the court (ts 70 - 71).
3.The appellant's previous criminal convictions meant that he did not come to the court as a person of good character. However, to the extent that the appellant did not have any previous convictions for drug offending, that provided some mitigation (ts 70, 73).
4.The extent of the offending of which the appellant had been convicted was out of character (ts 70 - 71).
5.The appellant had taken some positive steps towards his rehabilitation by completing some alcohol and drug treatment courses (ts 71).
6.There were a number of prosocial factors in the appellant's life which provided the appellant with a degree of stability - her Honour referring to accommodation, the appellant's relationship with his family and the appellant's qualification and work history as well as a significant number of references from people who were close to the appellant (ts 71 - 72).
The sentencing judge then referred, somewhat cryptically, to what had been said in pars 29 - 31 of written submissions filed on behalf of the appellant. Those paragraphs referred to the appellant's cooperation with the authorities. The sentencing judge stated:
I'm told that there was no[t] in fact benefit to the statement [sic - meaning 'State'] so I'm unable to further discount the sentence I will otherwise impose, but I do take that into account in the general sentencing disposition (ts 72).
This statement is said to constitute an express error of principle and is the subject of ground 1.
The sentencing judge referred to relevant sentencing considerations, in orthodox terms, before turning to her sentencing disposition (ts 62 - 63, 72 - 73). Her Honour considered that the seriousness of the offending was such that there was no alternative other than to sentence the appellant to a significant period of immediate imprisonment (ts 73, 74). The sentencing judge imposed a sentence of 6 years and 10 months' imprisonment in relation to count 1 and, but for totality considerations, would have imposed a sentence of 12 months' imprisonment in relation to count 2 (ts 73 - 74). However, her Honour considered that the total effective sentence that ought to apply was 7 years and 4 months' imprisonment. Accordingly, for totality reasons, her Honour reduced the term on count 2 to 6 months' imprisonment and ordered that it be served cumulatively on the term of 6 years and 10 months' imprisonment in respect of count 1 (ts 74).
The appellant was made eligible for parole and the sentence was backdated to commence on 10 March 2021 (ts 74 - 75).

Ground 1: Alleged express error in principle in no discount for cooperation with the authorities

Proposed ground 1 provides:
The learned sentencing Judge erred in deciding that she was unable to further discount the sentences to be imposed on the appellant because no benefit had been derived by the State from the appellant's co-operation with authorities.

The parties' submissions

The appellant submitted that, properly understood, her Honour's observation as reproduced at [31] above revealed that in the sentencing judge's opinion:
1.The appellant's cooperation with the authorities had not resulted in any benefit to the State.
2.That being the case, her Honour was 'unable' to further discount the sentences to be imposed.
In other words, on the appellant's argument, the sentencing judge approached the evidence of the appellant's cooperation with the authorities on the basis that, because the State did not derive any benefit from the cooperation, her Honour was precluded from discounting the sentences to be imposed for cooperation (ie the sentencing judge was saying 'no benefit, no separate mitigation').[7]
[7] Appeal ts 8. See also Appeal ts 3.
This was said to be an error in principle. The appellant accepted that a discount for cooperation might, all things being equal, be greater where there was some benefit to the State. But, in the appellant's submission, cooperation did not have to be effective in the law enforcement process for the fact of cooperation to be a relevant circumstance in determining the extent of any discount to be afforded. Moreover, regardless of the usefulness of the cooperation, where it demonstrates genuine remorse or contrition, the discount should be greater.
The appellant submitted that ground 1 was not affected by the sentencing judge's statement that she took the appellant's cooperation into account in the general sentencing disposition. The appellant said that it was difficult to see how the cooperation was properly taken into account insofar as the sentencing judge found that she was unable to further discount the sentence on the basis of the appellant's cooperation.
The State accepted, correctly, that cooperation may be mitigating even if, at the time of sentencing, it was shown to have been ineffective or of no value. It was said, however, that the cooperation had to be shown to have had some value, actual or potential, at the time it was provided or promised, even if the potential value did not eventuate. The State said that, in the present case, the information provided was of so little value that it was open to the sentencing judge to conclude that the cooperation was mitigatory but did not warrant any further quantifiable reduction of the appellant's sentence. The State submitted that the sentencing remarks should be understood in this way so far as her Honour said that she took the factor into account in the general sentencing disposition in the context of dealing with matters in mitigation.
If, however, the sentencing remarks were to be understood in the manner as urged by the appellant (namely that, as a matter of law no mitigation was available because the cooperation was of no value to the authorities) the State conceded that ground 1 would have been established - the sentencing judge would have failed to have had regard to a relevant consideration.
Accordingly, as senior counsel for the appellant explained at the appeal hearing, ground 1 turned on the proper understanding of what the sentencing judge meant by the passage in the sentencing remarks as reproduced at [31] above.[8]

Applicable legal principles: cooperation with the authorities

[8] Appeal ts 3.

The legal principles that apply in sentencing where an offender has cooperated with the authorities have been examined by this court in numerous authorities. For present purposes it suffices to refer to Ma v The Queen,[9] A Child v The State of Western Australia,[10] MXP v The State of Western Australia,[11] SYL v The State of Western Australia[12] and NHI v The State of Western Australia.[13] It is unnecessary to repeat the relevant principles. I adopt, without repeating, what was said by the court in those cases.
[9] Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 [110] - [118].
[10] A Child v The State of Western Australia [2007] WASCA 285 [11] - [13].
[11] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [7] - [9], [52] - [56], [63] - [64], [67].
[12] SYL v The State of Western Australia [2021] WASCA 16 [16] - [19],[72] - [83].
[13] NHI v The State of Western Australia [2021] WASCA 32 [46] - [52].

The relevant factors to be taken into account in determining the appropriate level of any sentencing discount for cooperation with the authorities include the public benefit that has resulted or is expected to result from the assistance. But, as was said by Roberts-Smith J (Steytler J agreeing) in Ma v The Queen in reviewing the authorities on discounts for cooperation with law enforcement authorities:
3.The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4.The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount.[14] (emphasis added)
[14] Ma v The Queen [118] (approved in: A Child v The State of Western Australia [11]; MXP v The State of Western Australia [53]).
In MXP v The State of Western Australia, McLure P stated, to similar effect as with the italicised portion of proposition 3 above, that discounts for cooperation can be given when the information and assistance is of limited value and sometimes even where it is of no value.[15]

Ground 1: Conclusion

[15] MXP v The State of Western Australia [9].

It is plain that, if the sentencing judge's remarks are to be read and understood in the manner as contended for by the appellant, her Honour committed an error in principle. On the authorities a sentencing discount is not precluded simply because an offender's cooperation with the authorities does not in fact result in a benefit to the State. But, in my view, read fairly in context of the sentencing remarks as a whole, the impugned portion of the sentencing judge's remarks are not to be understood in the way asserted by the appellant.
Part of the relevant context is the letter of recognition that was before the sentencing judge. The letter informed the sentencing judge that the appellant had provided information to the authorities on one occasion. However, the letter went on to state that the information did not meet the criteria to be graded. Accordingly, viewed objectively, it was open to the sentencing judge to assess the appellant's cooperation as having limited value such that it did not justify a quantifiable discount (in percentage terms) of the sentences to be imposed. The sentencing remarks should be understood in this way. That is particularly the case insofar as her Honour goes on to state that she does take the factor 'into account' in the general sentencing disposition.
In this respect I do not accept that the sentencing judge did not have proper regard to the appellant's cooperation with the authorities. To the contrary, her Honour expressly said that she did take the factor into account in the sentencing disposition. The reference to this factor came after the sentencing judge had referred to a series of matters to be taken into account as mitigating circumstances. In that context I understand her Honour to have had regard to the appellant's cooperation with the authorities as one of a number of mitigating factors.
There is an element of ambiguity in the sentencing remarks which meant that the argument presented on behalf of the appellant had a rational and logical prospect of succeeding. It is appropriate, in the circumstances, that the appellant have leave to appeal on ground 1. Ultimately, however, I am not persuaded that the sentencing judge erred in principle in the manner alleged in ground 1.
Ground 1 fails.

Ground 2: Alleged infringement of first limb of the totality principle

Proposed ground 2 provides:
The learned sentencing Judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
Ground 2 relies on the first limb of the totality principle.[16]

The parties' submissions

[16] Appeal ts 8; Appellant's submissions par 31 WAB 11.

The appellant submits that when proper regard is had to the following factors his total effective sentence breached the first limb of the totality principle:
1.The circumstances of the offending including that:
(a)the appellant had no beneficial interest in the prohibited drugs and money that he was warehousing;
(b)the appellant did not obtain any commercial benefit from the offending; and
(c)the appellant's involvement in any drug dealing operation was at the lowest level.
2.The appellant pleaded guilty at the first reasonable opportunity, the sentencing judge deciding that a discount of 25% should be afforded.
3.The appellant's pre-disposition to committing the offences by reason of the personality disorders as referred to by the sentencing judge.
4.The mitigating factors as taken into account by the sentencing judge including the appellant's genuine remorse, his positive steps towards rehabilitation and the appellant having no prior criminal record for drug-related convictions. Also referred to was the appellant's good record of continuing employment.
The appellant also relied on a number of supposedly comparable cases in seeking to identify sentencing standards. The appellant said, however, that it was difficult to identify any case that could be described as truly comparable to the appellant's offending, having regard to what was found to be the appellant's role. The appellant relied on: The State of Western Australia v Paolucci[17] (submitting that the offending in that case was 'far more serious' than the appellant's offending); Jiang v The State of Western Australia;[18] Ye v The State of Western Australia;[19] and Trainor v The State of Western Australia.[20]
[17] The State of Western Australia v Paolucci [2020] WASCA 188.
[18] Jiang v The State of Western Australia [2020] WASCA 7.
[19] Ye v The State of Western Australia [2016] WASCA 103.
[20] Trainor v The State of Western Australia [2021] WASCA 36.
The appellant submitted that the total effective sentence was unreasonable or plainly unjust. It was said that, having regard to all the relevant sentencing factors and in particular what the appellant actually did, the total effective sentence of 7 years and 4 months' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct.
The State submitted that the appellant's offending involved a high degree of criminality. The possession of the cash money was said to significantly increase the overall seriousness of the appellant's criminal conduct. The State contended that it was therefore important that there should be some accumulation of sentences in order to reflect the full extent of the criminality involved in the offending. In terms of sentencing standards, the State also relied on The State of Western Australia v Paolucci as a comparable case. However, the State contested the appellant's submission that the offending in Paolucci was far more serious than the appellant's offending. The State also relied on Ngo v The State of Western Australia[21] and McGrath v The State of Western Australia.[22]

Applicable legal principles

[21] Ngo v The State of Western Australia [2007] WASCA 221.

[22] McGrath v The State of Western Australia [2021] WASCA 118.

In Roffey v The State of Western Australia, McLure JA (Steytler P & Miller JA agreeing) described the first limb of the totality principle in these terms:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[23]
[23] Roffey v The State of Western Australia [2007] WASCA 246 [24].
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.[24]
[24] Roffey v The State of Western Australia [26].
The general principles governing appeals contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established. See for example Gaskell v The State of Western Australia[25] and Kabambi v The State of Western Australia.[26] For present purposes it suffices to repeat that, 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.
[25] Gaskell v The State of Western Australia [2018] WASCA 8 [127] (esp. [127(3)]).
[26] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. Matters personal to the offender are not irrelevant but will almost always be subsidiary considerations.[27] Of particular relevance to the appellant's offending are the observations of this court in Musulin v The State of Western Australia:
Those who securely store large quantities of drugs for others play a role in distribution networks not substantially less than those who actually distribute the drugs to dealers, or those who sell the drugs to the ultimate users.[28]
[27] R v Ng [2012] WASCA 180 [34].
[28] Musulin v The State of Western Australia [2020] WASCA 18 [55] (approved in Trainor v The State of Western Australia [52]).
The characterisation of the offender's role, where possible, must not obscure an assessment of what the offender did. An offender is sentenced not for his or her role or place in a hierarchy but for a particular dealing with a particular drug at a particular time.[29]

Ground 2: Conclusion

[29] Moore v The State of Western Australia[2006] WASCA 121 [17]; Gaskell v The State of Western Australia [129].

The appellant does not allege that the sentence of 6 years and 10 months' imprisonment for count 1 is manifestly excessive. Nor is there any challenge to the sentence imposed in relation to count 2. Ground 2 simply invokes the first limb of the totality principle by reference to the total effective sentence of 7 years and 4 months' imprisonment.
While the grounds do not challenge the sentence imposed in relation to count 1 or count 2, senior counsel for the appellant argued that the overall criminality of what had occurred could not be parsed in that way. Senior counsel said that the prohibited drugs and the money were found in the same place, at the same time and in the same circumstances. According to senior counsel, it was, in terms of overall criminality, a single transaction. The appellant had possession of both the drugs and the money.[30]
[30] Appeal ts 8.
The so-called 'one transaction rule' is not a rule of law but merely a rule of thumb - it is no more than a working guide in the exercise of the sentencing discretion.[31] It applies where:[32]
1.a number of offences arise out of substantially the same act, circumstances or series of occurrences;
2.there is one multi-faceted course of criminal conduct; or
3.a number of offences are considered to be manifestations of the one criminal enterprise, transaction or episode.
[31] Schischka v The State of Western Australia [2015] WASCA 15 [25]; Gowan v The State of Western Australia [2016] WASCA 98 [35] - [36].
[32] Gowan v The State of Western Australia [35].
It is not a principle of sentencing law that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode. Even if the offences are properly considered part of one transaction, the sentencing judge must always consider whether the requirement that the total effective sentence imposed be proportional to the total criminality involved might demand cumulative or partly cumulative terms.[33]
[33] Schischka v The State of Western Australia [25]; Gowan v The State of Western Australia [36].
In the present case, a degree of accumulation was open and, in my view, appropriate.
The appellant's possession of a substantial amount of money which was reasonably suspected to have been unlawfully obtained materially increased the total criminality of the appellant's offending as a whole. Money is not the same as a prohibited drug. Two things are apparent insofar as the appellant's role was to warehouse and provide a safe place for the storage of both the prohibited drugs and a considerable quantity of cash. First, the trust reposed in the appellant by the owner of the prohibited drugs and the money was considerable. Second, the role undertaken by the appellant in support of the particular drug distribution network was of increased importance to what it would have been had the appellant simply been providing a safehouse for the prohibited drugs.
While, for these reasons, a degree of accumulation was appropriate, that conclusion alone is insufficient to answer ground 2. It remains to consider whether the total effective sentence of 7 years and 4 months' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in the two offences, viewed in their entirety, having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in comparable cases.
The circumstances of the offending are addressed in the confidential schedule. The offending was serious. The relevant prohibited drug is a harmful prohibited drug which has a high level of seriousness.[34] The serious nature of the appellant's offending is apparent from the quantity and purity of the prohibited drugs and the large amount of cash in his possession. It must be acknowledged that the appellant did not act for financial gain. Nevertheless, even though the appellant did not act for commercial gain, his role was important and essential to the continuing operation of a drug distribution operation which, but for the appellant's apprehension, would have resulted in the dissemination of a substantial quantity of prohibited drugs into the community.
[34] The State of Western Australia v Paolucci [64].
So too there has already been reference to the appellant's personal circumstances and the mitigating circumstances (see [21], [29] - [31] above). The mitigating circumstances included the appellant's cooperation with the authorities, such as it was. The main matter in mitigation was the appellant's pleas of guilty at the first reasonable opportunity. Otherwise the appellant's limited prior criminal history, remorse, steps towards rehabilitation and social stability, while to his credit, are subsidiary sentencing considerations. The appellant's vulnerability to this kind of offending due to his personality disorders weighs both positively and negatively in the balance - while, to a limited extent, it moderates the appellant's moral culpability, it increases the necessity for personal deterrence.
I have considered the authorities referred to by the appellant and the State. It is not necessary to reproduce the facts of each case or the sentences imposed in the cases. In some respects the cases have some features that are comparable to the appellant's offending. There are also, for each 'comparable' case, a number of differences in the relevant circumstances which reduce the utility of the comparison. The limited utility of the cases relied on by the parties is readily apparent insofar as the appellant's challenge is to his total effective sentence and the cases relied on involve a different mix of offences.[35]
[35] See Pennetta v The State of Western Australia [2013] WASCA 234 [39].
I should, however, say something about The State of Western Australia v Paolucci given that the parties are in dispute about whether the offending in Paolucci was 'far more serious' than the appellant's offending.
In Paolucci, following a successful State appeal, the offender was resentenced to a total effective sentence of 8 years' imprisonment made up of 7 years for selling 996 g of MDMA to another and 1 year for being in possession of $3,400 that was reasonably suspected to have been unlawfully obtained. There were also three other concurrent sentences for possession of lesser amounts of prohibited drugs (26.3 g of cocaine and 13.6 g of MDMA) and money reasonably suspected to have been unlawfully obtained ($320). As to the sale of the 996 g of MDMA, the offender was a trusted person, in the nature of a courier rather than a profit taker, but had a commercial motive for his involvement in the sale: the offender intended to pay down his drug debt. The offender was also undertaking a low-level drug dealing business on his own account (the three less serious offences arose from those dealings). The offender received a 25% discount pursuant to s 9AA of the Sentencing Act, was of prior good character and was accepted to be genuinely remorseful, having commenced steps towards rehabilitation.
On balance the offending in Paolucci was more serious than the offending in the present case. The appellant was in possession of a materially greater quantity of prohibited drugs than the prohibited drugs involved in Paolucci and considerably more money. However, the offender in Paolucci had a more active role - transporting and supplying the prohibited substance - and acted to obtain a financial benefit. The offender in Paolucci was evidently trusted to deliver the significant cash proceeds of the sale of the MDMA to those from whom he took instructions. The offender in Paolucci also committed the further offences as part of his own drug dealing business.
I am, however, not satisfied that the offending in Paolucci was far more serious than the appellant's offending. The appellant's offending was serious offending notwithstanding that he did not stand to benefit financially. The appellant was playing an important part in the distribution of a substantial quantity of prohibited drugs by enabling others to hide it in his possession until it was required, whereupon the prohibited drugs would be disseminated into the community. The difference in the seriousness of the offending in Paolucci and the present case is in any event reflected in the higher total effective sentence that was imposed on the offender in Paolucci. When the various differences are taken into account I am not satisfied that the outcome in Paolucci demonstrates that the total effective sentence imposed on the appellant is unreasonable or plainly unjust.
Nor can such a conclusion be drawn from the sentencing standards evident in the other authorities to which the parties referred. In particular, Ngo v The State of Western Australia supports the conclusion I have reached. There this court upheld as not manifestly excessive a sentence of 6 years and 6 months' imprisonment imposed on an offender who was holding 490 grams of high purity cocaine for a friend (for which he received 10.5 g of heroin with a purity of 18%).
I am satisfied that the total effective sentence of 7 years and 4 months' imprisonment bears a proper relationship to the overall criminality involved in both of the offences, viewed together, after having regard to all relevant facts and circumstances and all relevant sentencing factors, including the total effective sentences imposed in comparable cases. It was necessary, in my view, in order to properly mark the appellant's overall criminality, to order the partial accumulation of the sentence for the possession of the cash money (count 2) with the sentence for possession of the prohibited drugs (count 1). The sentencing judge reduced the individual sentence for count 2 from 12 months to 6 months in the application of the totality principle. In all the circumstances it was reasonably open to her Honour to do so.

The total effective sentence was within the range reasonably open to the sentencing judge on a proper exercise of the sentencing discretion. Error should not be implied or inferred from the sentencing outcome in relation to the total effective sentence. The first limb of the totality principle was not infringed.
Ground 2 is without merit.

Conclusion and orders

For these reasons the appellant should have leave to appeal on ground 1. Leave to appeal should be refused in relation to ground 2. The appeal should be dismissed.
In the interests of the due administration of justice the details in the confidential schedule will be provided to the parties but otherwise will not be published. The foregoing provides sufficient information to allow a proper understanding of the basis for the determination of the appeal while ensuring that the identity of the appellant is not readily ascertainable. A non-publication order will be made in relation to the confidential schedule.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Vaughan
28 JUNE 2022