Walker v The State of Western Australia

[2024] WASCA 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WALKER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 153

CORAM:   BUSS P

MAZZA JA

HALL JA

HEARD:   20 NOVEMBER 2024

DELIVERED          :   10 DECEMBER 2024

FILE NO/S:   CACR 135 of 2023

BETWEEN:   BRAYDON REX WALKER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PETRUSA DCJ

File Number            :   IND SHE 6 of 2023

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 19 counts of offering to sell or supply a prohibited drug and one count of possession of a prohibited drug with intent to sell or supply - Sentence of 3 years 4 months' immediate imprisonment for possession of 27.2 g of methylamphetamine with intent to sell or supply - Total effective sentence of 4 years 1 month's immediate imprisonment - New evidence on appeal about the appellant's mental health issues - Manifest excess - Totality principle

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 34(1)(aa)

Result:

Leave to rely upon additional evidence in the appeal granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	M T Trowell KC
Respondent	:	N R Sinton

Solicitors:

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

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

Austin v The State of Western Australia [2023] WASCA 191

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Kabambi v The State of Western Australia [2019] WASCA 44

OAI v The State of Western Australia [2022] WASCA 110

O'Malley v The State of Western Australia [2021] WASCA 8

Sharp v The State of Western Australia [2023] WASCA 142

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

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426

Tran v The State of Western Australia [2010] WASCA 38

Wark v The State of Western Australia [2023] WASCA 66

WRT v The State of Western Australia [2020] WASCA 68

JUDGMENT OF THE COURT:

1. This is an appeal against sentence. 

2. The appellant was convicted, on his pleas of guilty, of 20 counts in an indictment.

3. Each of counts 1 to 19 alleged that on a specified date between 27 October 2022 and 18 November 2022, at South Hedland, the appellant offered to sell or supply a prohibited drug (namely cocaine in respect of count 17 and methylamphetamine in respect of the other counts) to another, contrary to s 6(1)(c) read with s 34(1)(aa) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

4. Count 20 alleged that on 22 November 2022, at Boodarie, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 34(1)(aa) of the MD Act.

5. The weight of the drugs the subject of counts 1, 3, 6 to 15 and 17 to 20, and the sale price of the drugs the subject of counts 1 to 14 and 16 to 19, were as follows:

Count	Drug Weight	Sale Price
1	1.75 grams	$2,000
2	Unknown quantity	$150
3	0.1 grams	$150
4	Unknown quantity	$200
5	Unknown quantity	$400
6	1.75 grams	$1,300
7	1.75 grams	$2,000
8	0.1 grams	$100
9	1.75 grams	$2,200
10	1 gram	$1,750
11	0.5 grams	$650
12	0.5 grams	$800
13	0.5 grams	$650
14	0.3 grams	$300
15	0.4 grams	Unknown amount
16	Unknown quantity	$400
17	1 gram (cocaine)	$500
18	3.5 grams	$4,000
19	0.5 grams	$750
20	27.2 grams	Unsold

1. The maximum penalty for each offence charged in counts 1 to 20 is 25 years' imprisonment or a fine of $100,000 or both.

2. On 16 November 2023, Petrusa DCJ imposed sentences of immediate imprisonment on the appellant as follows:

Count	Sentence	Cumulative or concurrent
1	3 months	Cumulative upon counts 18 and 20
2	1 month	Concurrent
3	1 month	Concurrent
4	1 month	Concurrent
5	1 month	Concurrent
6	3 months	Concurrent
7	3 months	Concurrent
8	1 month	Concurrent
9	3 months	Concurrent
10	3 months	Concurrent
11	1 month	Concurrent
12	1 month	Concurrent
13	1 month	Concurrent
14	1 month	Concurrent
15	1 month	Concurrent
16	1 month	Concurrent
17	3 months	Concurrent
18	6 months	Cumulative upon counts 1 and 20
19	1 month	Concurrent
20	3 years 4 months	Cumulative upon counts 1 and 18

1. The total effective sentence was 4 years 1 month's immediate imprisonment.  The total effective sentence was backdated to 16 October 2023 to take account of time the appellant had spent in custody in respect of the offences.  A parole eligibility order was made.

2. By an application in an appeal filed on 5 June 2024, the appellant sought leave to rely upon the affidavit of his lawyer, Trent Andrews, sworn 31 May 2024 and its annexures as additional evidence.  The relevant additional evidence comprises a report dated 3 February 2024 from Dr Phil Watts, a clinical and forensic psychologist.  We would grant the appellant leave to rely upon Dr Watts' report as additional evidence in the appeal.

3. There are three grounds of appeal.  Ground 1 alleges, in essence, that the sentence of 3 years 4 months' immediate imprisonment for count 20 was manifestly excessive as to length.  Ground 2 alleges, in essence, that the total effective sentence of 4 years 1 month's immediate imprisonment infringed the first limb of the totality principle.  Ground 3 alleges, in essence, that had Dr Watts' report been before the sentencing judge a different and lesser sentence should have been imposed.

4. In our opinion, none of the grounds of appeal has a reasonable prospect of success.  Leave to appeal should be refused and the appeal dismissed.

The sentencing judge's sentencing remarks

1. The sentencing judge recounted the facts and circumstances of the offending in her sentencing remarks. 

2. In October and November 2022, police lawfully intercepted the appellant's mobile telephone.  As a result, police became aware that on 22 November 2022 the appellant and his domestic partner, Jade Wilson, were driving from Perth to South Hedland.  Police suspected that the appellant and Ms Wilson were in possession of prohibited drugs.  As a result, police stopped the vehicle in which the appellant and Ms Wilson were travelling.  Police located a package in Ms Wilson's pants.  The package contained the 27.2 g of methylamphetamine the subject of count 20.  The drug had a purity of 70%.  Police arrested the appellant.

3. During an electronically recorded interview with police, the appellant admitted that he had purchased the 27.2 g of methylamphetamine for between $8,000 and $10,000.  He had withdrawn that amount from his bank account.  The appellant said that Ms Wilson was aware of the presence of the methylamphetamine in the vehicle.  During the journey she had moved the methylamphetamine from the compartment on the driver's side door.  The appellant denied having asked her to hide the methylamphetamine.  He admitted to being a drug user.

4. After the appellant's arrest, police analysed the communications that had been intercepted on the appellant's mobile telephone.  They identified the transactions the subject of counts 1 to 19.  Those charged offences were committed on 11 different days during a 22‑day period and involved eight different people. 

5. The sentencing judge found that the appellant had an established network of people to whom he would sell and supply drugs.  He was selling quantities of between a point and 3.5 g.  The transactions the subject of counts 1 to 19 represented offers to sell or supply a quantity of drugs totalling about 15 g.  If the transactions had been carried out, the appellant would have sold prohibited drugs having a value of about $18,300.  Her Honour characterised the appellant as 'an active dealer in a rural community' and 'at least a lower mid‑level dealer' (ts 68).  Her Honour found that the appellant's activities were 'for commercial gain above and beyond financing [his] own [drug] habit' (ts 68).  The appellant had worked throughout the period of the offending.

6. The sentencing judge referred to the appellant's personal circumstances and antecedents.

7. The appellant was aged 30 at the time of the offending and was 31 when sentenced.

8. The appellant was born and raised in Port Hedland.  He completed year 12 at school.  He spent some time at a boarding school in Perth on a sporting scholarship.  The appellant is the youngest of four siblings.  He had a very loving and supportive family and upbringing.  His family remains loving and supportive.

9. The appellant is a qualified boilermaker.  He had previously been employed by a large mining company for about 10 years.  The appellant resigned from that employment shortly before he was sentenced because he was struggling with mental health issues and the stress of the proceedings relating to his offending.

10. The appellant was diagnosed with depression about six to 10 years before he was sentenced.  The depression was related to a significant assault he suffered when he was aged about 16.

11. The appellant denied having any substance abuse issues until he began using cocaine and methylamphetamine when he was 29.  He explained that he turned to prohibited drugs as 'a crutch' to manage a decline in his mental health.  The appellant made some serious attempts on his own life in April 2022.  He had been diagnosed with bipolar disorder and, when he was sentenced, he was taking prescribed medication for that condition. 

12. It was not submitted at the sentencing hearing that there was a causal link between the appellant's mental health, on the one hand, and the offending, on the other.  Nevertheless, her Honour accepted that the appellant's mental health issues provided relevant context for the offending.

13. After his arrest for the offences in question, the appellant took steps to address his mental health issues.  A pre‑sentence report dated 17 May 2023 stated that the appellant was attending sessions with a psychiatrist and an Aboriginal Health Co‑ordinator through Pilbara Mental Health and Drug Hospital with a view to managing his mental health and developing more appropriate coping mechanisms and emotional regulation.  There was some evidence before her Honour that the appellant had abstained from taking prohibited drugs.  Her Honour said that it boded well for the appellant's rehabilitation that there had been 'some abstinence' from taking prohibited drugs, that he had largely had a law‑abiding life and that he had been able to maintain employment.  The appellant's prospects of rehabilitation were good, but there were some issues that he still needed to address. 

14. The sentencing judge noted that the appellant had a prior criminal record, but his record was minor in nature.  His previous offences had been punished by the imposition of fines.  He had never been imprisoned.  Her Honour said that she would not give the appellant's prior criminal record significant weight, but the record did show that the appellant was not a person of prior good character and that there was some scope for personal deterrence as a sentencing factor.

15. Her Honour observed that the appellant had cooperated with police and had entered pleas of guilty at the first reasonable opportunity. Her Honour allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). Her Honour also observed that the pleas of guilty were a reflection of some remorse.

Dr Watts' report dated 3 February 2024

1. On 31 January 2024, Dr Watts interviewed the appellant twice at Roebourne Regional Prison.

2. The appellant informed Dr Watts that:

   (a)he was taking Valdoxan and Quetiapine as prescribed medications;

   (b)since he began taking the medications he had been feeling 'fairly mentally stable';

   (c)he had a history of depression, past suicide attempts and mental health treatment; and

   (d)he had been previously diagnosed with depression, anxiety and bipolar disorder.

3. Dr Watts considered there was a likelihood that the appellant's depression and anxiety were consistent with a post‑traumatic stress disorder (PTSD) reaction to trauma, but it was unclear whether there was also 'a [bipolar] mental disorder present in addition to the PTSD'.

4. Dr Watts was of the opinion that it is likely the appellant suffers from attention deficit hyperactivity disorder (ADHD).  Although this is a significant condition, Dr Watts thought the appellant was at the mild end of the range.

5. Dr Watts was of the opinion that the appellant's PTSD and probable ADHD caused his drug use.  However, using the drugs then escalated the appellant's depression, hopelessness and suicidal thinking.

6. Psychological testing indicated a number of different diagnostic possibilities.  The most likely included PTSD, bipolar disorder type 1 and some dysfunctional personality traits.  A neuro‑cognitive disorder was also possible.

7. Dr Watts recorded in his report that the appellant informed him that he had done well financially from his legitimate employment.  He had bought a large boat, motorcycles and cars.  However, despite this material success, the appellant felt empty and depressed.  He recounted five major suicide attempts during the previous eight years.

8. Dr Watts was of the opinion that not caring about the future, feeling hopeless and taking methylamphetamine to relieve the tension were the relevant factors in the appellant's offending.  Dr Watts added:

   At the end of the day, the actual motivation for selling drugs was money, partly to pay for drugs, partly because mentally he was struggling to be able to work, and because it gave a lifestyle which seemed beneficial.

9. Dr Watts noted the appellant's explanation that being in prison had been beneficial to him in many ways.  The appellant's arrest had saved him from an imminent suicide attempt.  His medication had been stabilised in prison and he had ceased using drugs.  His relationship with his partner had been repaired and they were relating well to each other.  His arrest and imprisonment had forced him for the first time to confront his trauma and he was keen to pursue the recommendations for his treatment.

10. Dr Watts considered that '[a] longer term of imprisonment [would] be more onerous for [the appellant]' because his PTSD symptoms would not be treated.  He would not have 'an avenue to get on with life' and his recovery of his mental health would be 'in limbo' in prison.

The appellant's submissions

1. As to ground 1, counsel for the appellant submitted that, although there is no tariff for drug dealing offences, it was accepted in Tran v The State of Western Australia[1] that the range of sentences for offences involving possession of methylamphetamine, with intent to sell or supply, involving quantities of between 3 g and 65 g was between 2 and 4 years' imprisonment.

   [1] Tran v The State of Western Australia [2010] WASCA 38 [24] ‑ [26] (Newnes JA; Owen & Wheeler JJA agreeing).

2. It was submitted that, having regard to:

   (a)Tran and subsequent decisions of this court;

   (b)the facts and circumstances of the offending; and

   (c)the appellant's personal circumstances and antecedents,

   the sentence of 3 years 4 months' immediate imprisonment imposed on the appellant for count 20 was manifestly excessive.

3. As to ground 2, counsel for the appellant submitted that there were a number of factors relating to the appellant and his offending which, considered as a whole, required a lesser total effective sentence than 4 years 1 month's immediate imprisonment.  Those factors included:

   (a)the appellant was found by the sentencing judge to be a 'lower mid‑level dealer';

   (b)apart from the drug the subject of count 20, which was purchased to break down into smaller quantities for sale, the quantity of drugs in each transaction was relatively small;

   (c)the transactions the subject of counts 1 to 20 were committed over a short period of time;

   (d)the appellant was suffering from complex mental health issues at the time, with a significant history of depression, past suicide attempts and mental health treatment;

   (e)the appellant was not dealing solely for commercial gain, but also to support his own drug use;

   (f)the appellant pleaded guilty to the offences at the first reasonable opportunity;

   (g)the appellant cooperated with police by making admissions before he was confronted with the telephone intercept material;

   (h)the appellant's criminal history was of a minor nature;

   (i)the appellant was aged 30 at the time of the offending and he was married with two young children;

   (j)the appellant is a qualified boilermaker and has had long‑term employment with a mining company as a supervisor before being charged with the offences in question;

   (k)having regard to the appellant's submissions on ground 1, the total effective sentence was outside the customary range of sentencing for drug offences of this seriousness; and

   (l)the appellant had strong emotional support from his parents and partner, which suggested that he had strong prospects of rehabilitation.

4. As to ground 3, counsel for the appellant submitted that had Dr Watts' report been before the sentencing judge, a different and lesser sentence should have been imposed.

The State's submissions

1. As to ground 1, counsel for the State submitted that the primary consideration in determining the seriousness of drug offending is the role of the offender rather than the quantity of the drug.  In the present case, the appellant was engaged in the business of drug dealing for profit.  Part only of the profit was used to fund his own drug consumption.  The appellant's moral culpability was greater than that of those who are engaged by others as couriers and who have no beneficial interest in the drugs they possess.

2. It was submitted that numerous decisions of this court establish that the sentence of 3 years 4 months' immediate imprisonment imposed on the appellant for count 20 was not manifestly excessive.  Counsel referred to O'Malley v The State of Western Australia;[2] OAI v The State of Western Australia;[3] Sharp v The State of Western Australia;[4] The State of Western Australia v Gholizadeh.[5]

   [2] O'Malley v The State of Western Australia [2021] WASCA 8.

   [3] OAI v The State of Western Australia [2022] WASCA 110.

   [4] Sharp v The State of Western Australia [2023] WASCA 142.

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

3. As to ground 2, counsel for the State noted that counts 1 to 19 involved offers to sell or supply a total of 15.4 g of methylamphetamine and cocaine.  The drugs were offered for sale for a total of about $18,300.  The offers were made over a period of 22 days.  It was appropriate that there be some accumulation of the sentences for counts 1 to 19 upon the sentence for count 20 to reflect the appellant's additional criminality and the fact that the offers to sell or supply involved more than one type of drug.  It was submitted that, given the extensive and ongoing criminality reflected in counts 1 to 19 and the fact that the appellant was only required to serve an additional 9 months in custody, the extent of the accumulation was lenient and generous.

4. As to ground 3, counsel for the State noted Dr Watts' conclusion that the appellant's actual motivation for selling drugs for money was in part to pay for drugs for his own consumption; in part because he was struggling to be able to work; and in part 'because it gave a lifestyle which seemed beneficial'.  The appellant was therefore not merely a user/dealer who was selling drugs solely to fund his own drug consumption.  Dr Watts referred to the appellant having done well financially through his legitimate employment.

1. It was submitted that the sentencing judge was aware of the appellant's mental health difficulties, including his depression, the serious attempts he had made on his own life in April 2022 and his bipolar disorder.  It is apparent that her Honour treated the appellant's mental health issues as a mitigating factor.  However, it was submitted that the connection between the appellant's mental health issues and his offending was tenuous and indirect.

2. Counsel argued that the appellant chose to deal in drugs as a method of making money.  His mental health issues did not appear to have played a role in his decision to deal in drugs as distinct from his decision to consume drugs.  Despite his mental health issues, the appellant was able to operate a busy and financially successful drug dealing business.

3. It was submitted that the appellant had not demonstrated that if Dr Watts' report had been before her Honour a different and lesser sentence should have been imposed.

The merits of ground 1

1. The general sentencing principles applicable to a ground of appeal which alleges that an individual sentence is manifestly excessive are well established.  See, for example, Kabambi v The State of Western Australia;[6] Wark v The State of Western Australia.[7]

   [6] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).

   [7] Wark v The State of Western Australia [2023] WASCA 66 [606] ‑ [615] (Buss P, Mazza & Vaughan JJA).

2. 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.

3. The facts and circumstances of the appellant's offending on count 20 were very serious.  The quantity of the methylamphetamine was significant.  It was only marginally less than a trafficable quantity, which would have attracted the higher maximum penalty of life imprisonment.  The offence was committed in the context of the appellant carrying on a successful drug dealing business.  The profit he derived did not merely finance his own drug use.  His activities produced a substantial commercial gain.

4. There were, of course, a number of mitigating factors.  The appellant pleaded guilty at the first reasonable opportunity and was allowed a discount of 25% for his plea.  He had a very good employment history.  The appellant had significant mental health issues which he had taken steps to address.  After he was arrested and before he was sentenced the appellant had abstained from taking prohibited drugs.  This was a positive sign for his rehabilitation.  The appellant had a loving and supportive family.  Although the appellant had a criminal history and consequently was not a person of prior good character for sentencing purposes, his prior convictions were relatively minor.  He had never previously been imprisoned.  The appellant's cooperation with police and his pleas of guilty indicated some remorse.

5. The appellant's reliance upon Tran is misplaced.

6. In Tran, Newnes JA (Owen and Wheeler JJA agreeing) said [24]:

   In Bosworth v The State of Western Australia [2007] WASCA 144 [41], Miller [AJA] reviewed a number of cases involving sentences for possession of methylamphetamine with intent to sell or supply and concluded that in cases involving quantities of methylamphetamine of between 3 g and 65 g, sentences (converted in accordance with the post‑transitional provisions) had ranged from between 2 and 5 years. His Honour concluded that sentences under the new regime (the post‑transitional regime) were often between 2 and 4 years' imprisonment but sometimes more [42]. His Honour observed that most of the cases he had reviewed involved pleas of guilty. See also Atherton v The State of Western Australia [2009] WASCA 148 [377].

7. Newnes JA then observed that sentencing ranges of the kind formulated by Miller AJA in Bosworth v The State of Western Australia[8] can only provide general guidance and each case turns on its own particular facts and circumstances [25].

   [8] Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [41].

8. In our opinion, the sentencing range formulated by Miller AJA in Bosworth and adopted in Tran, namely that, in cases involving quantities of methylamphetamine of between 3 g and 65 g, sentences (converted in accordance with the post‑transitional provisions) have ranged between 2 and 5 years' imprisonment, is not a reliable guide to current sentencing patterns.  First, in 2017 the maximum penalty for possession of a quantity of methylamphetamine of not less than 28 g, with intent to sell or supply it to another, was increased to life imprisonment.  Secondly, since Tran was decided in 2010 sentences for possession of a quantity of methylamphetamine less than 28 g with intent to sell or supply it to another, where the offender has been carrying on a drug dealing business, have generally increased.  The increase is attributable to the prevalence of methylamphetamine use within the community, the very serious consequences of methylamphetamine consumption upon users of the drug and for the wider community, and the association between methylamphetamine consumption, on the one hand, and criminal behaviour, on the other.  In any event, as Steytler P (McLure and Miller JJA agreeing) observed in TheState of Western Australia v Higgins,[9] caution is needed when endeavouring to determine the level of severity of a particular sentence by comparison with those imposed in other cases because there will inevitably be differences in the circumstances of offenders and offences.

   [9] TheState of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [19].

9. Sentencing decisions of this court in reasonably comparable cases since Tran demonstrate that the sentence imposed on the appellant for count 20 was not manifestly excessive.

10. In O'Malley, the offender was convicted on his plea of guilty of possession of 26.49 g of methylamphetamine with intent to sell or supply. The purity of the drug was 78%. The offender drove from Geraldton to Perth where he purchased about 25 g of methylamphetamine. After spending two nights in Perth he began the return journey to Geraldton. His vehicle was stopped by police and searched. Police found the 26.49 g of methylamphetamine. The offender was sentenced on the basis that he intended to sell or supply about 8.3 g of the methylamphetamine to each of two other people. The offender admitted that he had sold methylamphetamine before he was arrested, but only in small quantities to people whom he knew. The offender was aged 35 when he committed the offence. The sentencing judge allowed the offender a discount of 20%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty.  The sentencing judge found that the appellant was remorseful and that he had taken some steps towards his rehabilitation.  The offender had a lengthy criminal history, including convictions for drug dealing which had been punished by fines.  The offender was sentenced to 3 years 6 months' immediate imprisonment with parole eligibility.  The offender's application for leave to appeal to this court on the ground of manifest excess was refused and his appeal was dismissed.

11. In OAI, the offender was convicted on his plea of guilty of possession of just under 28 g of methylamphetamine with intent to sell or supply. The purity of the drug was relatively high. The offender was the sole occupant of a vehicle that was stopped by police and searched. The police found the methylamphetamine. The offender was a user of the drug who had agreed to deliver the methylamphetamine for a dealer and to collect payment for the dealer. The offender had been promised a small quantity of methylamphetamine for his own use in return. The offender was a facilitator of the drug dealing rather than someone who was in the business of drug dealing. The offender was not youthful. He had previous convictions for drug dealing offences, for which sentences other than immediate imprisonment had been imposed. The sentencing judge allowed the offender a discount of 25%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty.  The sentencing judge also gave the offender a substantial further discount for his cooperation with police.  The nature and extent of the cooperation was described in a confidential letter to the sentencing judge, who accepted that the cooperation was significant and involved a high level of risk for the offender.  The sentencing judge concluded that the offender had good prospects of rehabilitation.  The offender was sentenced to 2 years' immediate imprisonment with parole eligibility.  The offender's application for leave to appeal to this court on the ground of manifest excess was refused and his appeal was dismissed.

12. In Sharp, the offender was convicted, on his pleas of guilty, of three counts including a count that he had attempted to supply methylamphetamine to another. The total quantity of methylamphetamine was 27.85 g with a purity of 80%. The offender threw two tennis balls containing the methylamphetamine over the fence of the Yongah Hill Detention Centre in Northam. The presence of the offender's DNA on the packaging inside the tennis balls indicated that he was involved in packaging the drugs. Further, the offender admitted to police that he had previously supplied drugs to persons at the Yongah Hill Detention Centre in a similar manner. The sentencing judge accepted that the offender's addiction to illicit drugs had made the offender more vulnerable to being taken advantage of by more sophisticated people. The sentencing judge also accepted that the offender had done the bidding of others and that had he not been arrested he may well have done so again. The sentencing judge found that it was in the offender's interest to commit the offences to secure a supply of drugs for himself. The offender was aged 30 when he committed the offence of supplying the methylamphetamine. He had a significant family history of addiction and had displayed symptoms of ADHD as a child. The offender did not receive appropriate support as a child for his developmental needs. The offender had an extensive prior criminal record, including convictions for offences involving methylamphetamine and cannabis. The sentencing judge allowed the offender a discount of 20%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty.  The offender was sentenced to 4 years' immediate imprisonment for the offence in question and to a total effective sentence of 4 years 6 months' immediate imprisonment for the three counts.  The offender's application for leave to appeal to this court on the ground of an infringement of the totality principle was refused and his appeal was dismissed.

13. In Gholizadeh, the offender was convicted, on his pleas of guilty, of three counts including a count of possession of heroin with intent to sell or supply. The quantity of the heroin was 23.5 g. The drug had a high level of purity, namely 71%. The heroin was found by police when they searched the offender's car. The sentencing judge found that there was 'some commerciality' in the offending and that the offender was 'a low‑level dealer'. The offender was selling drugs to support his own addiction. The offender was aged 30 at the time of the offending. He arrived in Australia from Iran as a refugee when he was aged 21. The offender had a criminal record, which consisted mainly of minor drug and traffic offences. The sentencing judge allowed the offender a discount of 20%, pursuant to s 9AA of the Sentencing Act, for his plea of guilty.  The sentencing judge accepted that the offender had taken positive steps towards his rehabilitation and had good prospects of being rehabilitated.  The sentencing judge also accepted that the offender was remorseful and was at a low risk of reoffending.  The sentencing judge imposed a sentence of 12 months' immediate imprisonment with parole eligibility for the offence in question.  The State's appeal on the ground of manifest inadequacy was allowed.  Like the sentencing judge, this court allowed a discount of 20% for the plea of guilty.  This court substituted a sentence of 3 years' immediate imprisonment for the offence in question.

14. In our opinion, the sentence of 3 years 4 months' immediate imprisonment imposed on the appellant was commensurate with the seriousness of the offence.

15. We are satisfied, after considering the sentence imposed by the sentencing judge in the context of:

    (a)the maximum penalty;

    (b)the facts and circumstances of the offending;

    (c)the appellant's personal circumstances and antecedents;

    (d)the mitigating factors; and

    (e)all other relevant sentencing factors, including the importance of general deterrence,

    that the sentence was not unreasonable or plainly unjust.

16. Ground 1 fails.

The merits of ground 2

1. The general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established.  See, for example, The State of Western Australia v Murray.[10]

   [10] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [68] ‑ [69], [71] (Buss P, Mazza & Beech JJA).

2. We have already recounted the facts and circumstances of the appellant's offending on each of the counts in the indictment, the sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents.

3. Further, we have already decided that the sentence of 3 years 4 months' immediate imprisonment for count 20 was not manifestly excessive.

4. In our opinion, it was necessary to order that some of the appropriate individual sentences for counts 1 to 19 be served cumulatively upon the appropriate individual sentence for count 20 in order to ensure that the total effective sentence imposed on the appellant was commensurate with the seriousness of his overall offending.

5. In our opinion, the total effective sentence of 4 years 1 month's immediate imprisonment did not infringe the first limb of the totality principle.  A custodial term of that length was required in order properly to mark the serious character of the appellant's offending as a whole, and to give effect to all relevant sentencing considerations.  The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the appellant's personal circumstances and antecedents and the mitigating factors.

6. Error by the sentencing judge in the exercise of the sentencing discretion cannot be inferred, based on the first limb of the totality principle, from the sentencing outcome.  The total effective sentence of 4 years 1 month's immediate imprisonment was not unreasonable or plainly unjust.

7. Ground 2 fails.

The merits of ground 3

1. In WRT v The State of Western Australia,[11] Buss P and Beech JA made the following observations in relation to the power of this court to receive additional evidence in the context of a sentencing appeal:

   In Colwell v The State of Western Australia [No 2], this court held that, as a general rule, an appeal court decides an appeal on the evidence and material before the court below: see s 39(1) of the Criminal Appeals Act 2004 (WA). While this court has a broad discretion to admit other evidence on appeal pursuant to s 40(1)(e) of the Criminal Appeals Act, in the context of an appeal against sentence, ordinarily at least, a distinction is drawn between matters which existed at the time of sentencing, but were not known, and matters which have come into existence since the time of sentence.  An appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed and which are unrelated to facts in existence at the time of sentencing.  The reasons for this are grounded in the role of an appellate court and were explained by Newnes JA (with whom Pullin and Mazza JJA agreed) in Colwell:

   It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed.  Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court.  It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual.

   Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed.  However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time.  (citations omitted)

   This passage has been adopted and applied in a number of decisions of this court, including JKL v The State of Western Australia; MacCauley v The State of Western Australia [No 2]; LWD v The State of Western Australia; LAT; Abbott; Baynah v The State of Western Australia [No 2]; and Wellstead v The State of Western Australia. (footnotes omitted)

   [11] WRT v The State of Western Australia [2020] WASCA 68 [80] ‑ [81].

2. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour.  See Austin v The State of Western Australia.[12]

   [12] Austin v The State of Western Australia [2023] WASCA 191 [83] (Buss P & Mazza JA).

3. The significance of Dr Watts' report, for the purposes of this appeal, must be evaluated having regard to defence counsel's submissions to the sentencing judge about the appellant's mental health issues and her Honour's findings on that topic.

4. Defence counsel's written submissions in the primary proceedings stated, relevantly:

   (a)The appellant spoke about his mental health deterioration to the author of the pre‑sentence report and explained that it commenced at a young age.

   (b)The appellant had used methylamphetamine as a coping mechanism for his heightened depression.

   (c)The appellant has a history of suicide ideations and attempts.  The appellant engaged with Mission Australia in January and February 2023, who referred him for more intensive support from Pilbara Mental Health and Drug Services.

   (d)The appellant was being medicated for his mental health issues including depression and bipolar disorder.

5. Defence counsel referred to the appellant's mental health issues in her oral submissions at the sentencing hearing.

6. The sentencing judge devoted a significant part of her sentencing remarks to the appellant's mental health issues.  In particular, her Honour noted that:

   (a)in late 2022 or early 2023 the appellant was struggling with his mental health;

   (b)the appellant was diagnosed with depression some six to 10 years ago as a result of a significant assault he suffered;

   (c)the appellant used illicit drugs to manage a decline in his mental health;

   (d)there was a decline in the appellant's mental health that led to the relatively recent diagnosis of bipolar disorder;

   (e)the appellant may have made some serious attempts on his own life in April 2022;

   (f)the appellant was receiving medication in respect of his bipolar disorder;

   (g)it was not submitted that there was a causative link between the appellant's mental health and his offending; and

   (h)since his arrest the appellant had taken some steps to address his mental health issues.

1. As we have mentioned, Dr Watts considered it was likely that the appellant's depression and anxiety were consistent with a PTSD reaction to trauma.  Dr Watts also considered it was likely that the appellant suffers from ADHD, but at the mild end of the range.  The material before the sentencing judge did not include any reference to PTSD or ADHD.

2. Also, as we have mentioned, Dr Watts was of the opinion that the appellant's PTSD and probable ADHD had caused his drug use.  However, Dr Watts did not indicate that the appellant's PTSD and probable ADHD or any other mental condition had caused the appellant to engage in drug dealing.  Indeed, Dr Watts expressed the view that the appellant's 'actual motivation for selling drugs was money, partly to pay for drugs, partly because mentally he was struggling to be able to work, and because it gave a lifestyle which seemed beneficial'.

3. Dr Watts noted the appellant's explanation that being in prison had been beneficial to him in many ways.  The appellant's medication had been stabilised in prison; he had ceased using drugs; his relationship with his partner had been repaired; his arrest and imprisonment had forced him for the first time to confront his trauma; and he was keen to pursue the recommendations for his treatment.

4. Although there was some information in Dr Watts' report that was not before the sentencing judge, the additional material provided by Dr Watts was not significantly different from the material before her Honour.  Nothing in Dr Watts' report established a causative link between the appellant's mental health issues and his offending.

5. In our opinion, the sentence of 3 years 4 months' immediate imprisonment for count 20 and the total effective sentence of 4 years 1 month's immediate imprisonment were moderate.

6. We are not persuaded that had Dr Watts' report been before the sentencing judge a different and lesser sentence should have been imposed.

7. Ground 3 fails.

Conclusion

1. Leave to appeal should be refused.

2. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

WH

Research Associate to the Honourable President Buss

10 DECEMBER 2024