Watson v The State of Western Australia [No 2] - [2024] WASCA 66

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WATSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 66
CORAM:   MAZZA JA
HALL JA
VANDONGEN JA

HEARD:   9 FEBRUARY 2024
DELIVERED          :   14 JUNE 2024
FILE NO/S:   CACR 39 of 2023
BETWEEN:   KANE SEAN WATSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MacLEAN DCJ
File Number            :   IND 925 of 2022

Catchwords:

Criminal law – Appeal against sentence – Drug offences – Totality principle – Where appellant sentenced on two indictments at different times – Where offending all arising from same series of events – Where conspiracy charges not adequately particularised - Whether total effective sentence of 21 years' imprisonment disproportionate to overall criminality

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	S Rafferty SC & A Plenderleith
Respondent	:	R Wilson

Solicitors:

Appellant	:	Aaron Plenderleith Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Ramachandran v The State of Western Australia [2021] WASCA 54
Roffey v The State of Western Australia [2007] WASCA 246
Siskopoulos v The State of Western Australia [2022] WASCA 138
The State of Western Australia v Edwards [2022] WASCA 141
The State of Western Australia v Radford [2022] WASCA 142
Watson v The State of Western Australia [2022] WASCA 80

JUDGMENT OF THE COURT:

Between August and November 2020, the appellant committed a series of offences arising from his involvement in a large‑scale drug dealing enterprise. The offences were split between two indictments that were dealt with by the same sentencing judge, but at different times. This appears to have occurred because the appellant indicated pleas of guilty to some of the charges at the committal stage and not guilty to others, though he ultimately pleaded guilty to all of the charges.
In 2021, the appellant was sentenced to a total of 13 years' imprisonment for the offences contained in the first indictment. In 2023 he was sentenced to a further 8 years' imprisonment for the offences contained in the second indictment, to be served cumulatively. Thus, the total effective sentence for all of the offending was 21 years' imprisonment.
The appellant seeks leave to appeal against his sentence on one ground. That ground is that the order for accumulation of the sentence of 8 years' imprisonment with the sentence of 13 years' imprisonment resulted in a breach of the first limb of the totality principle. That is, the appellant submits that the total effective sentence of 21 years' imprisonment was disproportionate to his overall criminality.
As serious as the appellant's offending was, it did not justify a total sentence of 21 years' imprisonment. Indeed, when viewed as whole, and having regard to the appellant's role in the drug dealing enterprise, sentences imposed in comparable cases and the appellant's personal circumstances, the total sentence is clearly disproportionate to his criminality. For the reasons that follow, leave to appeal should be granted, the appeal allowed, and the appellant resentenced.

The charges and sentences imposed

On Indictment IND 1136 of 2021 (the first indictment) the appellant was charged with the following offences:
1.On 19 August 2020 at Dianella [the appellant] supplied a prohibited drug, namely methylamphetamine, to another.
And that the offence involved a trafficable quantity of methylamphetamine.
2.On 9 October 2020 at Banksia Grove [the appellant] possessed money that was the proceeds of an offence, namely the sale or supply of a prohibited drug.
On 18 November 2021, the appellant was sentenced to 10 years' imprisonment on count 1 and 3 years' imprisonment on count 2. The sentences were ordered to be served cumulatively. Thus, the total effective sentence on the first indictment was 13 years' imprisonment. An appeal against that sentence was dismissed.[1]
[1] See Watson v The State of Western Australia [2022] WASCA 80.
On Indictment IND 925 of 2022 (the second indictment) the appellant was charged with the following offences:
1.(Count 1 related to a co‑offender, Sean Jay O'Callaghan, and alleged possession by him of the quantity of cash that the appellant had been convicted of possessing in count 2 of the first indictment).
2.Between 31 October 2020 and 4 November 2020 at Perth, Sean Jay O'Callaghan and the appellant conspired with another to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
And that the offence involved a trafficable quantity of methylamphetamine.
3.And further that between the same dates and at the same place as in count 2, Sean Jay O'Callaghan and the appellant conspired with another to possess a prohibited drug, namely cocaine, with intent to sell or supply to another.
4.And further that between the same dates and at the same place as in count 2, Sean Jay O'Callaghan and the appellant conspired with another to possess a prohibited drug, namely heroin, with intent to sell or supply to another.
On 31 March 2023, the appellant was sentenced to 8 years' imprisonment on count 2 and 7 years' imprisonment on each of counts 3 and 4. Those sentences were ordered to be served concurrently. Thus, the total effective sentence on the second indictment was 8 years' imprisonment. That sentence was ordered to be served cumulatively on the sentence imposed on the first indictment, thus producing an overall total effective sentence of 21 years' imprisonment.

The facts

The facts are not in dispute. As the appeal relates to both the offences dealt with in the first indictment and those dealt with in the second indictment, it is necessary to refer to the facts of both matters.

Facts relating to the first indictment

At about 2.05 pm on 19 August 2020, the appellant was observed driving a Mazda motor vehicle in Dianella. He parked the vehicle on Cornwall Street, near Breckler Park, a bush reserve. He got out of the car and entered Breckler Park carrying a black backpack. A short time later he returned to the car, no longer in possession of the black backpack.[2]
[2] ts 18 November 2021, 6.
At 2.25 pm on the same day, another man, Rhys Clark, was observed entering Breckler Park. A short time later, Mr Clark was observed carrying the black backpack left by the appellant as he walked towards a Mitsubishi Pajero motor vehicle.[3]
[3] ts 18 November 2021, 6.
At about 3.45 pm on 20 August 2020, police executed a search warrant in respect of the Mitsubishi Pajero vehicle. The vehicle had three rows of seating. The rear row of seats, in the boot area, was folded down and the boot had a floor compartment. The compartment door was closed at the time of the search. The compartment was searched, and a black and brown coloured bag was located. Inside the bag was a package containing 3.999 kg of methylamphetamine.[4]
[4] ts 18 November 2021, 6.
The methylamphetamine was divided into four portions. One portion weighed 999 g and was of about 72% purity.[5] The second portion weighed 1 kg and was of about 68% purity. The third portion also weighed 1 kg and was of about 68% purity. The fourth portion also weighed 1 kg and was of about 69% purity.[6]
[5] The transcript records the prosecutor referring to this as 499 g when reading the facts, but this was plainly an error and the appellant was sentenced on the basis that the correct amount was 999 g and the total amount was approximately 4 kg.
[6] ts 18 November 2021, 6.
A forensic examination of the backpack was conducted. DNA obtained from the backpack matched the appellant's DNA profile.[7]
[7] ts 18 November 2021, 6.
On 9 October 2020, the appellant and two co‑accused, Beau White and Sean O'Callaghan, were involved in packaging cash at the appellant's home in Banksia Grove. The cash was packed into six boxes. Inside each box was about $1,000,000 cash. The cash was vacuum sealed in plastic bags.[8]
[8] ts 18 November 2021, 7 - 8.
Later the same day, police executed a search warrant at premises in Stirling usually occupied by Sean O'Callaghan. No one was at home at the time of the search. The six boxes that had been packed with cash at the appellant's home were located in the garage of the Stirling property. The cash was seized and substituted with paper. The total amount of cash seized was $5,987,220. This cash was the proceeds of the sale and distribution of prohibited drugs. The boxes were then resealed and left in place.[9]
[9] ts 18 November 2021, 7.
On 11 October 2020, Mr O'Callaghan transported the six boxes to the residence of the co‑accused, Mr White, in Butler.[10]
[10] ts 18 November 2021, 7.
On 31 October 2020, Mr O'Callaghan collected the six boxes from Mr White's residence and drove to a Bunnings store in Bayswater. Another co‑accused, SC, met Mr O'Callaghan in the car park. They parked their vehicles alongside each other, unloaded the boxes from Mr O'Callaghan's vehicle and loaded them into SC's vehicle. SC then conveyed the six boxes to his home in Caversham.[11]
[11] ts 18 November 2021, 7.
On 3 November 2020, SC drove with the six boxes to a place where he met the occupants of an orange truck. SC handed the boxes to the occupants of the truck and departed.[12]
[12] ts 18 November 2021, 7 - 8.
At about 10.55 pm on 3 November 2020, police executed a search warrant at the appellant's home in Banksia Grove. During the search, police located a blue Samsung mobile telephone in a garden ornament. This telephone was a Ciphr encrypted mobile device. Ciphr messages downloaded from the telephone and also the telephone of one of the co‑offenders revealed that the appellant was involved in arranging the distribution, sale and supply of drugs. Police also located boxes, strapping and clips identical to the boxes and packaging which had contained the cash. Further notations of cash counting were also located. [13] A cash‑counting machine located at the Butler address had DNA on it that matched that of the appellant.[14]
[13] ts 18 November 2021, 6 - 8.
[14] ts 18 November 2021, 28.
The appellant was located and arrested. He participated in an electronically recorded interview. During the interview, he admitted that the Ciphr encrypted mobile telephone found at this house was his. He further admitted that he had attended at Breckler Park and dropped off the backpack containing the methylamphetamine. He took photos of the location which he then sent to another person. He stated that he was following directions provided to him via the Ciphr mobile telephone and said that he was paid $1,000 for performing that role.[15]

Facts relating to the second indictment

[15] ts 18 November 2021, 7.

The facts relating to count 1 on the second indictment, which charged Mr O'Callaghan with possession of the cash found by police on 9 October 2020, essentially mirrored the facts relating to count 2 on the first indictment, which charged the appellant with possession of the same quantity of cash. It was apparent, however, that the possession and movement of the cash was relied on by the prosecution as relating to the other charges on the second indictment.
Counts 2 ‑ 4 on the second indictment each alleged that the appellant, Mr O'Callaghan and another had conspired to possess prohibited drugs. However, the prosecutor made it clear at the outset that the three conspiracy counts related to a single agreement.[16] There were three counts only because three different drugs were involved. In proof of the agreement the prosecution relied on the movement of the cash and on encrypted messages found on devices associated with the appellant and the other conspirators.
[16] ts 31 March 2023, 23.
Examination of the messages extracted from the devices revealed that the appellant was using the handle 'RunsltStr8', Mr O'Callaghan was using the handle 'MF' and a third man, JR, was using the handle 'DB22?'. A series of text messages was said to disclose 'an agreement to have transported into the State of Western Australia a quantity of 50 kilograms of prohibited drugs, comprised of 30 kilograms of methylamphetamine, 10 kilograms of cocaine and 10 kilograms of heroin'. The drugs were initially due to arrive on 3 November 2020 but delivery was delayed to 4 November 2020.[17]
[17] ts 31 March 2023, 27.
The State said that the substance of the agreement was that on 1 November 2020, between 9.23 am and 11.00 am, JR sent a series of messages to Mr O'Callaghan, including:
And [I'm] thinking for storage, let's find someone whose house we can leave gear at and they dead drop work to LB ... The boss wants work to be dead dropped to the dead dropper.
In this message, reference to LB was to the appellant. A 'dead drop' occurs when drugs are dropped to a specified location where no one is present and another person comes later and collects them.[18]
[18] ts 31 March 2023, 27.
On 1 November 2020, at 4.19 pm, Mr O'Callaghan sent a text message to the appellant, 'I need to find someone'. He sent a further text message at 4.20 pm, 'Who can dead drop your day's load to you. Like, just what you're gonna flick that day'. The appellant replied by sending three text messages, 'Yeah cuz I get you hmm', 'Everyone I know works g', and 'Need a flexible guy aye'.[19]
[19] ts 31 March 2023, 28.
On 1 November 2020, at 4.02 pm, amongst other general conversation with Mr O'Callaghan, JR stated, 'I've got like 10 mil worth of shit arriving Tuesday'. The reference to Tuesday was to Tuesday 3 November 2020.[20]
[20] ts 31 March 2023, 28.
On 1 November 2020, between 4.29 pm and 4.38 pm, the following messages were exchanged between Mr O'Callaghan and JR.[21]
[21] ts 31 March 2023, 28.
JR: Do you have any other driver in mind that would be keen? Need a driver/storage and dead dropper.
Mr O'Callaghan: Codean maybe if we can use his bro‑in‑law's parents' abandoned house. He wouldn't keep at home Mrs too nosey.
JR: Yeah go have a talk with Codean he's due for 100 K.
Mr O'Callaghan: Lol I was just with him 30 min ago too
JR: What about your fake boss
Mr OCallaghan: Codean's bro‑in‑law is my fake boss, same guy….yeah he's all g he wants to grow weed in that abandoned house. I said fuck that let me use for storage.
JR: Nah that's our storage 100%.
Mr O'Callaghan: This was a while back. I reckon they might [do] it aye for a good price.
JR: Can you go see him tomorrow. And then see if he [wants] to drop work to our dead dropper 100 K.
Mr O'Callaghan: They could drop it where they work and LB scoop up.
JR: Yeah g. And I'll get LB a van to use.
On 1 November 2020 at 4.43 pm, the appellant sent a message to Mr O'Callaghan, 'Is Tuesday still on so far', to which Mr O'Callaghan replied, 'Yeah g. It'd already on the truck'.[22]
[22] ts 31 March 2023, 29.
On 2 November 2020 at 12.51 pm, Mr O'Callaghan sent a message to JR, 'Fake boss sounds keen as or maybe he was saying yes in person to not disappoint me [but] they keen on the cash'. JR replied, 'All he has to do is store and drop in chose location. Then LB collects and does drops'. Mr O'Callaghan advised that he would know later on and would update JR.[23]
[23] ts 31 March 2023, 29.
On 2 November 2020 at 8.50 pm, Mr O'Callaghan sent a message to the appellant, 'Yo', and 'Need to suss a spot for that reverse dead drop tomorrow cuz'.[24]
[24] ts 31 March 2023, 29.
On 2 November 2020 at 8.51 pm, JR replied. 'What's the details g' and at 8.56 pm, sent him a further message saying, 'I can use that other spot out Yanchep'. Mr O'Callaghan replied, 'Yanchep. Which one was that?'. The appellant replied, 'Yeah bro Sintra road. The first place I sussed out for the first drop but we ended up using that mattress one'. There was continued conversation between Mr O'Callaghan and JR as to the organisation and logistics with JR stating, 'Yeah [I'll] get LB a van too … Hopefully tomorrow'.[25]
[25] ts 31 March 2023, 29.
Between 10.10 pm and 10.18 pm, the following exchange occurred:[26]
Mr O'Callaghan: Say if you start 8 finish by 11 and we schedule first drop at 12 then 1 then 2 then 3. Then you just sit back and text cunts. Only thing that sucks doing small drops is take a longer to get rid of.
JR: Sounds good to me bro. Yeah true but that's alg I don't mind, be like an extra week. Was it 50 coming tomorrow?
Mr O'Callaghan: Yeah 50.
JR: Sweet.
Mr O'Callaghan: I think it's 30 Karu 10 ehu 10 hoiho. Hahaha first lot of hoiho we've had.
JR: Mean. Yeah what's hoiho? LOL Not horse tranquiliser is it hahahaha.
Mr O'Callaghan: Heroine :)
[26] ts 31 March 2023, 29.
It was an agreed fact that Karu is the Māori word for 'eye' and was code for methylamphetamine. Ehu is the Māori word for 'nose' and was code for cocaine. Hoiho is the Māori word for 'horse' and was code for heroin (as was apparent when it had to be explained to JR).[27]
[27] ts 31 March 2023, 29 - 30.
On 3 November 2020 at 10.13 am, JR sent a message to Mr O'Callaghan, 'Work tomorrow g. Yous are all g today'. This was in reference to the fact that the consignment was originally due to arrive on Tuesday 3 November 2020, but there had been a delay to 4 November 2020. JR further enquired as to how Mr O'Callaghan was going with arranging a truck with a 'tail lift', advising 'Wog wants it asap haha he's blowing up at me'.
Mr O'Callaghan then sent a message to the appellant at 11.40 am advising, 'Cuz. Truck delayed we on tomorrow', with the appellant replying, 'Aw gay bruz haha. Safe bro'. Mr O'Callaghan then enquired whether the appellant could assist in locating an appropriate truck as per JR's instructions.[28]
[28] ts 31 March 2023, 30.
At some time on the same day, Mr O'Callaghan asked Codean James Manu (the person referred to in the earlier messages as Codean), if he wanted to earn $100,000. Mr O'Callaghan told him it was 'low risk, high reward'. When Mr Manu asked Mr O'Callaghan what he had to do, Mr O'Callaghan told him he just had to store some 'shit' for him for about a week. He told Mr Manu it was coming in on a truck. Mr Manu assumed by 'shit' that he meant cocaine. Mr O'Callaghan asked Mr Manu what kind of trucks the company or entity that he worked for had on site. Mr Manu did not accept the offer of $100,000. On the same day, Mr O'Callaghan offered another man, Matthew Crisafulli, the sum of $100,000 in the presence of Mr Manu.[29]
[29] ts 31 March 2023, 31.
At 3.54 pm, Mr O'Callaghan updated JR, advising, 'Codean is keen. They just rang', with JR responding 'Fuck yeah mad', and 'Can ww get onto this truck asap wog's blowing up at me'. Further conversation ensued about the truck and sourcing one with curtains.[30]
[30] ts 31 March 2023, 30.
At 7.29 pm, JR sent a text message to Mr O'Callaghan, 'Hahahahaha well this wprk is landing at 3 am ihe is staying at the great eastern in Belmont. Who's [going] to collect the wprk is anyone on moosh? Maybe jump on the waters cuz. They want us to grab this work at 5:30 g'. JR further enquired, 'Is old mate on moosh yet? Or not yet', to which Mr O'Callaghan replied, 'Not yet. But LB can receive as a reverse dead then pass'. At 7.51 pm, Mr O'Callaghan relayed the information from JR to the appellant advising, 'Work might arrive at 5.30 am' and 'We need to grab the work at 5.30 am'. The appellant replied at 8.03 pm with, '5.30 is cool with me bro. I'll get out there at 5. How am I giving it to the storage boys?'.[31]
[31] ts 31 March 2023, 30.
On Tuesday 3 November 2020, at approximately 7.00 pm, SC had in his possession what he thought was approximately $6 million that was being delivered to an unknown person in a truck. The boxes in fact contained the substituted blank A4 paper.[32] The implication was that the money was to be used to pay for the drugs that were to be delivered on 4 November 2020.
[32] ts 31 March 2023, 30.

Mr O'Callaghan did not reply to the question from the appellant. JR then contacted Mr O'Callaghan at 8.05 pm stating that there was an issue with the money that was dropped off stating, 'Cuz all the money is gone. And replaced by a4 paper and trackers'. Conversation continued about the missing money with Mr O'Callaghan asking, 'What do we do'. JR replied, 'Fuck I dunno. We def [can't] get this work'.[33]
[33] ts 31 March 2023, 30 - 31.
At 9.24 pm, Mr O'Callaghan messaged the appellant, 'We have a situation', to which the appellant replied, 'Code red?'. Mr O'Callaghan immediately responded, 'Yeah'.[34]
[34] ts 31 March 2023, 31.
Data obtained from a tracking device placed in a Mazda vehicle driven by the appellant disclosed that at about 9.45 am on 3 November 2022, the vehicle travelled to Sintra Road in Yanchep.[35]
[35] ts 31 March 2023, 31.
The encrypted devices seized from Mr O'Callaghan and the appellant contained numerous photographs of kilogram quantities of prohibited drugs and instructions on how to supply prohibited drugs.[36]
[36] ts 31 March 2023, 31.

Personal circumstances

At the time of the offending, the appellant was 27 years old. He was 30 years old when sentenced in 2023.
The appellant was born in New Zealand and spent a happy childhood there. He excelled at sport at school and had prospects of making a career in rugby. He left school in year 13 and undertook some study before obtaining full‑time employment.[37]
[37] ts 31 March 2023, 47 - 48.
The appellant moved to Australia after being advised by a close friend of employment opportunities in this country. On arrival he shared a house with this friend and another housemate. After the friend returned to New Zealand, the appellant felt isolated and unmotivated. He felt that he had failed to reach age‑appropriate life goals. As a result of his low mood, the appellant stopped working and was dismissed in about July 2020. He was receiving Centrelink payments at the time of the offending.[38]
[38] Pre-sentence report dated 16 August 2021, 2 - 4.
Prior to the 2021 and 2023 conviction, the appellant had a minor criminal history which consisted of traffic convictions. He was convicted of traffic‑related offences in Australia in 2017 and 2018 for which he received fines and license disqualifications. The appellant also had traffic convictions in New Zealand for which he received a fine and driving disqualifications and was ordered to do community work.[39]
[39] Pre-sentence report dated 16 August 2021, 1 - 2.
The appellant was in an intimate relationship which commenced in approximately 2019. He told the author of a pre‑sentence report that his partner had remained supportive, despite learning of his offending behaviour after his arrest. The appellant has no children. He has no family in Australia and since his arrest and incarceration has only been able to maintain contact with his family in New Zealand through Skype calls.[40]
[40] Pre-sentence feport dated 16 August 2021, 3; ts 31 March 2023, 48.
The appellant is in good physical health though he described a decline in his mental health prior to his offending. He described himself as a social drinker and admitted to smoking cannabis once or twice a week.[41]
[41] Pre-sentence report dated 16 August 2021, 4.
The appellant had written a letter to the court indicating an awareness of the seriousness of his offending and the damage that prohibited drugs cause to the community.[42] He expressed an intention to improve his life. Whilst on remand he worked at Hakea prison as a peer support prisoner and was well‑regarded by prison officers. Numerous personal references attested to his prior good character.[43]
[42] WAB 172.
[43] ts 31 March 2023, 49, 64 - 65.
In sentencing submissions in the proceedings dealing with the first indictment, counsel for the appellant said that after becoming unemployed the appellant had met a man after attending a party. The man had offered him work that would involve easy money for simple jobs. He was attracted by the prospect of earning money, though it became apparent when he was given an encrypted telephone that the work related to an illegal enterprise. He was described as a low‑level player who had unfortunately got in way over his head.[44]
[44] ts 18 November 2021, 11, 22.

Sentencing – first indictment

In the sentencing proceedings for the first indictment, the learned sentencing judge referred to the Ciphyr messages contained in the prosecution brief and noted that the two offences on that indictment did not appear to be isolated, but rather were part of a continuing involvement by the appellant in the criminal enterprise. However, his Honour also commented that the appellant was an enthusiastic supporter and ideas‑generator, but not a decision‑maker. He was not at the same level as the other participants in the enterprise. In relation to the cash, his Honour described the appellant's role as similar to that of a bank clerk, in that he counted, packaged and moved the money. He was an administrative assistant rather than a decision‑maker. The State did not dispute these characterisations.[45]
[45] ts 18 November 2021, 30 - 33.
The sentencing judge made the following findings in regard to the offending:
(a) The methylamphetamine was packaged for on‑sale and supply into the community for profit.[46]
(b)The appellant willingly participated in the commission of count 1 for commercial reward. Although the amount of the appellant's reward ($1,000) was 'paltry', that did not excuse or reduce the seriousness of his offending.[47]
(c)The appellant's offending in relation to count 1 was 'not an aberration or a one‑off'.[48]
(d) The appellant knew that the cash the subject of count 2 was the proceeds of the sale of prohibited drugs. His activities in relation to the cash involved 'counting, packaging, and delivering or receipt of' the money.[49]
(e)The appellant expected to receive some kind of commercial benefit for his participation in the commission of count 2.[50]
(f) The appellant's criminal conduct in relation to count 1 provided protection to the principals of the drug dealing enterprise.[51]
(g)The amount of cash the subject of count 2 demonstrated 'the vast reach and magnitude of [the criminal] enterprise'.[52]
(h)The appellant was a person in whom people who were higher in the chain of hierarchy reposed a large degree of trust, having regard to the quantity of the methylamphetamine and the amount of the cash involved. However, the trust was limited by 'the very strict instructions' that the appellant received in relation to the delivery of the methylamphetamine and by the presence of his co‑offenders, Mr White and Mr O'Callaghan, when the appellant was engaged in the money laundering activities.[53]
(i)The appellant was not a user of methylamphetamine and engaged in the criminal conduct for profit.[54]
(j)Characterising the appellant's role in the chain of hierarchy was difficult because of the limited information available. However, the appellant was 'more than a warehouseman' and 'more than a courier'. He was not 'a [decision‑maker]', but he was 'an ambitious and enthusiastic supporter of the enterprise'.[55]
[46] ts 18 November 2021, 37.
[47] ts 18 November 2021, 37.
[48] ts 18 November 2021, 37 - 38.
[49] ts 18 November 2021, 38.
[50] ts 18 November 2021, 38.
[51] ts 18 November 2021, 39.
[52] ts 18 November 2021, 40.
[53] ts 18 November 2021, 40.
[54] ts 18 November 2021, 40.
[55] ts 18 November 2021, 39, 43, 47.
The sentencing judge discounted the head sentence he would otherwise have imposed for each offence by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in recognition of the appellant's pleas of guilty.[56]
[56] ts 18 November 2021, 47.
The sentencing judge noted that the appellant had prior convictions for traffic offences. His Honour said that consequently the appellant could not be described as of prior good character. However, his Honour had regard to the written references from people who spoke well of the appellant and stated that the offending was out of character for him.[57] His Honour also took into account that imprisonment would be more difficult for the appellant because his family resides overseas.[58]
[57] ts 18 November 2021, 48.
[58] ts 18 November 2021, 48.
The sentencing judge said that the appropriate individual sentences were 10 years' imprisonment for count 1 and 5 years' imprisonment for count 2. However, having regard to the totality principle, his Honour reduced the sentence for count 2 to 3 years' imprisonment. His Honour ordered that the individual sentences of imprisonment be served cumulatively. The total effective sentence on the first indictment was, therefore, 13 years' imprisonment with eligibility for parole.[59]
[59] ts 18 November 2021, 48 - 49.

Sentencing – second indictment

At the commencement of the reading of the facts, the State prosecutor said that whilst there were three charges, this was a function of there being three different types of drugs. The State submitted that there was, in fact, only one agreement. The prosecutor said that for the purposes of sentencing 'the gravamen of the criminal conduct in this case is the one overall agreement to bring a quantity of prohibited drugs into Western Australia, made up of three different prohibited drugs'.[60]
[60] ts 31 March 2023, 23 - 24.
In the course of sentencing submissions, defence counsel submitted that the previous sentencing on the first indictment was directly related to the current sentencing. The appellant's role was said to be more than just a courier but significantly less than those who were 'calling the shots in the enterprise'. It was said that the appellant was only going to receive a 'small reward' for taking the risk that he undertook. He was not involved in the purchasing of the drugs and was not involved in what was going to happen after what he had agreed to do was complete, nor was he going to share in the profits. It was accepted by defence counsel that whilst the role of the appellant was important, it was limited to what was described as 'an administrative role'. Counsel for Mr O'Callaghan accepted that his client was in a more senior position in the hierarchy than the appellant.[61]
[61] ts 31 March 2023, 43, 48.
In referring to the 13‑year sentence imposed on the first indictment, defence counsel said that the appellant's conduct was 'really one transaction within that'. At this point, the sentencing judge interrupted and said:[62]
Sorry to interrupt but as is the case with Mr O'Callaghan, namely a connection between the offending in count 1 and count 2, 3 and 4 it seems to me that there's an obvious connection between [the appellant] and the offending in counts 2, 3 and 4 and the matters for which he was sentenced in November 2021. It's the same enterprise - - -
[DEFENCE COUNSEL]: That's correct.
[SENTENCING JUDGE]: - - - it's the same organisation of people and it's the same business.
[DEFENCE COUNSEL]: That's correct, your Honour. And he's already served two years of that sentence.
[62] ts 31 March 2023, 50.
A little later, the sentencing judge said:[63]
Insofar as the roles that goes to implementation of the agreement once the drugs were available. It seems to me that there was an inchoate or unclear arrangement as to who was specifically going to do what turned on the drugs becoming available. So is it helpful really to distinguish between Mr O'Callaghan and [the appellant] because obviously, the crime's completed when the agreement is made. That's so here.
And then what happened from there seemed to be dependent on circumstances as they presented. So necessarily the enterprise is a fluid one that changes to react to circumstances as are presented, and people may do a role or may fill in and do another role. There's descriptions of [the appellant's] availability to perform a number of different functions as circumstances change.
[63] ts 31 March 2023, 51.
In response, defence counsel said:[64]
He effectively was going to be and was always going to effectively be limited to the administrative tasks of picking up, doing a dead drop and potentially purchasing a van with somebody else's money.
[64] ts 31 March 2023, 53.
A little later, the sentencing judge suggested that the conspiracy that was the subject of the present charges was 'perhaps buoyed' by the success of previous enterprises and encouraged the appellant and his associates to 'go big'.[65]
[65] ts 31 March 2023, 56.
Throughout these exchanges no clarification was sought from the State as to exactly what it was that the appellant had agreed to do and how that might be relevant in determining the level of his criminality. The criminality of the appellant was essentially assumed to be co‑extensive with the scope of the broader criminal enterprise. This assumption is also reflected in the sentencing judge's sentencing remarks. The problem inherent in this will be referred to in more detail later.
In his sentencing remarks, the sentencing judge said the following:[66]
Insofar as counts 2, 3 and 4 go, they allege separate offences, but they are really of the same criminal conduct. And the criminal conduct is an agreement to bring very large amounts of illicit drugs into Western Australia. The drugs differ, namely methylamphetamine, cocaine and heroin, but the criminality is the same because it was part of an enterprise to distribute into this community those very dangerous drugs. Your agreement was to import a quantity of 50 kilograms, collectively, of those prohibited drugs into Western Australia, and the obvious inference is that they would be sold for a profit.
The drugs were 30 kilograms of methylamphetamine,10 kilograms of cocaine, and 10 kilograms of heroin. The value of those drugs was at least $10 million. The State resiled from an earlier submission that the drugs made their way to this State and with respect, that was a sensible resolution. But the criminality arises by reason of the agreement itself to bring these drugs into the community for distribution, for profit. And as has been submitted by Mr Mactaggart, and I accept, that there is no significant distinction between a conspiracy and the commission of the substantive offence.
The agreement between you was to undertake a significant criminal offence, namely to possess very large quantities of prohibited drugs for sale into the community. And your intent was to derive an obscene profit, driven by the misery of countless others and at the expense of the State entirely. It is very serious offending, not only for the very large volume of the illicit drugs, which were contemplated by the agreements in counts 2, 3 and 4, but by reason of the nature of those drugs, methylamphetamine, cocaine and heroin, each of which wreak considerable havoc on the community and devastation into the lives of those who take them. (emphasis added)
[66] ts 31 March 2023, 60.
The sentencing judge found that the offending was motivated by personal gain. Having regard to the 'very large financial incentives', his Honour concluded that the only appropriate penalty was a term of immediate imprisonment.[67]
[67] ts 31 March 2023, 61.
The sentencing judge noted that the agreement was reached in the context of an already existing successful enterprise, demonstrated by the large sum of money that was being retained by the appellant and Mr O'Callaghan. The ambition to expand the enterprise was demonstrated by the agreement that was the subject of counts 2, 3 and 4.[68]
[68] ts 31 March 2023, 62.
The sentencing judge found that the appellant was 'an enthusiastic participant' in the agreement, which was made obvious not only by the appellant's preparedness to agree but by the communications that revealed the steps that the appellant was prepared to perform should the illicit drugs have materialised.[69]
[69] ts 31 March 2023, 62.
Turning to the drugs the subjects of the agreement of counts 2, 3 and 4, the sentencing judge found that they were connected to the cash referred to in count 1. This had been evidenced by the overall tenor of the conversations which demonstrated that the cash was going to be used as the purchase price for the drugs in counts 2, 3 and 4. His Honour was not satisfied that the drugs were ever delivered.[70]
[70] ts 31 March 2023, 62 - 63.
The sentencing judge allowed the maximum discount of 25% for the guilty pleas pursuant to s 9AA of the Sentencing Act.[71]
[71] ts 31 March 2023, 63.
The sentencing judge accepted that the appellant was 'sincerely remorseful' for his 'very serious conduct'. His Honour also accepted that the appellant had undertaken study and passed bridging courses whilst in custody. Further, his Honour accepted that being in prison and observing others who had been the victims of drug use had been instructive for the appellant and made him aware of the serious nature of his offending. His Honour accepted that the appellant had shown insight and remorse.[72]
[72] ts 31 March 2023, 64.
The sentencing judge noted that the appellant had voluntarily provided the police with the passcode to his phone. Whilst not a mitigating factor, his Honour accepted that this demonstrated cooperation on the appellant's part.[73]
[73] ts 31 March 2023, 64 - 65.
The sentencing judge accepted that the appellant has a good work history, is capable of making a positive contribution on his release from prison and has the support of family and friends. His Honour accepted that imprisonment would be particularly hard for the appellant because his family resides in New Zealand. His‎ honour also found that the appellant is at low risk of reoffending.[74]
[74] ts 31 March 2023, 68.
As regards the agreement, the sentencing judge found that there was no meaningful distinction between the role of the appellant and that of Mr O'Callaghan because both offenders were 'enthusiastic participants in the agreement and capable of putting the agreement into action'.[75]
[75] ts 31 March 2023, 72 - 73.
The sentencing judge imposed a sentence of 12 years' imprisonment on count 2, reduced to 8 years' imprisonment for totality reasons, 8 years' imprisonment on counts 3 and 4, reduced to 7 years' imprisonment in each case for totality reasons. The sentence on count 2 was ordered to be served concurrently with the sentences on counts 3 and 4. The total effective sentence for the second indictment was therefore 8 years' imprisonment.[76]
[76] ts 31 March 2023, 73.
The sentencing judge ordered the total effective sentence for the second indictment to be served cumulatively with the total sentence imposed in respect of the first indictment (13 years), thereby producing an overall total effective sentence of 21 years' imprisonment.[77]
[77] ts 31 March 2023, 73.

Ground of appeal

The ground of appeal is as follows:
The order for accumulation of the total effective sentence imposed on District Court Indictment 925 of 2022 with the total effective sentence imposed on District Court Indictment 1196 of 2021 resulted in a breach of the first limb of the totality principle.
It is evident from this ground that it is focused on the total overall effective sentence of 21 years. There is no challenge to any of the individual sentences. Nor is there a challenge to the total sentence of 13 years imposed for the 2021 offences. Indeed, as mentioned, that sentence was the subject of an earlier appeal in respect of which leave to appeal was refused.

Appellant's submissions

The appellant accepts that the offences are very serious and required a significant sentence of imprisonment to give effect to the need for general and personal deterrence. The appellant also accepts that it was appropriate to impose a cumulative sentence for the offending contained in the second indictment to reflect the fact that separate and distinct offending should be met by separate and discrete penalties. However, it is submitted that the extent of the accumulation, resulting in a total effective sentence of 21 years' imprisonment, reveals implied error in that such a total sentence was plainly unreasonable or unjust in all of the circumstances.[78]
[78] WAB 15 - 16.

The appellant submits that the offending behaviour in the first indictment involved delivering a large quantity of methylamphetamine at the direction of others and packing and concealing of a very large sum of cash in which the appellant had no beneficial or proprietary interest. As to the offending in the second indictment, there was no evidence that the agreement to import large quantities of three illicit substances was successful.[79]
[79] WAB 16.
As to comparable cases, the appellant refers to Ramachandran v The State of Western Australia,[80] in which a total effective sentence was reduced on appeal from 19 years 10 months' to 16 years' imprisonment, Siskopoulos v The State of Western Australia,[81] in which a total effective sentence of 16 years' imprisonment was upheld, and The State of Western Australia v Edwards,[82] in which a total effective sentence of 17 years' imprisonment was upheld.
[80] Ramachandran v The State of Western Australia [2021] WASCA 54.
[81] Siskopoulos v The State of Western Australia [2022] WASCA 138.
[82] The State of Western Australia v Edwards [2022] WASCA 141.
At the hearing of the appeal, senior counsel for the appellant also referred to The State of Western Australia v Radford[83] in which a total effective sentence of 18 years' imprisonment was imposed for offending on two separate indictments involving close to two and a half times the quantity of methylamphetamine of the current case.[84]
[83] The State of Western Australia v Radford [2022] WASCA 142.
[84] Appeal ts 22 - 23.
Senior counsel submitted that regardless of the nature of the conspiracy, the appellant's offending and his role was at the bottom end of seriousness. As such, the total effective sentence of 21 years does not bear a proper relationship to the totality of the appellant's offending.[85]
[85] Appeal ts 22 - 23.

Respondent's submissions

The respondent submits that the total effective sentence, while high, reflects the fact that the appellant was involved in the trafficking of drugs into the state, supplying drugs within the state, and dealing with money which was the proceeds of the sale of drugs.[86]
[86] WAB 31.
The respondent agrees that the appellant was plainly subordinate to Mr O'Callaghan in the conspiracy but says that the appellant was actively involved in the enterprise and was willing and able to perform a variety of roles in the furtherance of the conspiracy. This was said to be demonstrated by, amongst other things, participating in the storing and packaging of the money the subject of the laundering charge. It was submitted that the appellant's role could not be equated with that of a 'mere' courier.[87]
[87] WAB 22.
The respondent submits that there is a significant difference between the appellant and the offenders in the cases cited by the appellant, which is that the appellant was sentenced for involvement in a series of drug trafficking operations and performed a variety of roles, whereas the other cases each involved a single operation and/or a single role, being either a 'warehouseman' (Ramachandran), a courier (Edwards), an agent for an incarcerated co‑offender (Siskopoulos) or an 'expendable worker' (Radford).[88]
[88] WAB 30.

Relevant legal principles

A ground of appeal that asserts that a total sentence breaches the totality principle because it is disproportionate to the overall criminality asserts the existence of an implied error. 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.
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.[89] 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[90] and Gaskell v The State of Western Australia.[91]
[89] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[90] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[91] 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. 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 intermediate 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.
It is often more difficult to compare cases where the total effective sentence is in issue. Other cases may involve different numbers and types of offences and this must be added to any other differences in the factual and personal circumstances of the offenders. Nonetheless other comparable cases must be considered to ensure that broad consistency is maintained.
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 offences were committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be a subsidiary considerations, but they are not completely irrelevant.

Merits of the appeal

The totality principle is applicable where an offender who is to be sentenced is already serving a sentence. In such a case the sentencing judge must ensure that any additional sentence imposed does not result in a total effective sentence that is disproportionate to the overall criminality. The effect should be the same as if all of the offending had been dealt with at the same time. In practical terms this will require the sentencing judge to consider the whole of the offending conduct and give consideration to whether the total effective sentence is a fair and just punishment for that conduct.
In this case two other issues also impacted on sentencing. First, the possession of the cash, whilst the subject of separate charge, was also relevant as part of the conduct relating to the conspiracy. In these circumstances any sentences imposed for the offences on the second indictment needed to take into account that the appellant had already received a sentence for possession of the cash. It is apparent from the facts relied on in the two sentencing proceedings that all of the charges arose from a series of closely connected events. It was important in that context to ensure that the appellant was not doubly punished for any part of the conduct.
Second, the exact nature of the conspiracy was significant in assessing the seriousness of the appellant's conduct. What the appellant had agreed to do was the essence of his offending and also revealed his role in the criminal enterprise. The conspiracy the appellant was convicted of was not necessarily coextensive with the activities and objectives of the broader criminal enterprise.
It can be seen from the sentencing judge's remarks quoted at [65] that the conspiracy was described in different ways. Firstly, it was described as an agreement to 'bring very large amounts of illicit drugs into Western Australia'. Secondly, it was described as an agreement to 'bring these drugs into the community for distribution'. Thirdly, it was described as an agreement 'to possess very large quantities of prohibited drugs for sale into the community'. Each of these phrases describe an agreement with a different purpose or objective. This uncertainty was a product of the way in which the State presented the facts in the sentencing proceedings.
The difficulty was that the agreement that the appellant had made and that was the subject of the conspiracy charges was never properly identified by the prosecution. Furthermore, no particulars were sought by the defence and no clarification was sought by the sentencing judge. Seemingly, all involved were content to deal with the matter on this unsatisfactory basis. The conspiracy was pleaded as one to possess the drugs, but there was no identification of what this possession was to involve, when it was to occur and how long it was intended to endure. It was not made clear whether it was an agreement for the appellant to possess the drugs or Mr O'Callaghan to possess the drugs or for someone else to possess the drugs or for some combination of people to possess the drugs jointly.
Despite the fact that the prosecutor described the agreement as one to bring the drugs into Western Australia, there was nothing in the admitted facts to support that characterisation of what the appellant had agreed to do. That might be a fair description of the general objective of the larger criminal enterprise, but to say that that was what the appellant had agreed to do was to attribute to him a role that was greater than the facts supported.
On the admitted facts the appellant's agreed role was confined to collecting the drugs in a dead drop and delivering them on in one, or several, further dead drops (and possibly assisting with purchasing a van for movement of the drugs). That involvement occurred over a three‑day period between 1 and 3 November 2020. The appellant's possession of the drugs was likely to be confined to the period necessary to effect the movement of the drugs. There was nothing to suggest that he had any role in the purchase, sale or ultimate distribution of the drugs. It was not clear exactly what reward he would receive for performing this role, but based on the comparatively small reward he received for the first drop in Dianella, it was unlikely to be a large one. There was nothing to suggest that he would share in any profits.
Although the description of a courier was disavowed by defence counsel, the appellant's role was closer to that of a courier than someone at a more senior position in the criminal enterprise. He also had a role in the movement of the cash that was to be used to purchase the drugs, but only in a role that was likened to that of a clerk who counted and stored the money. Further, to a very large extent his criminality in that regard was dealt with in the earlier sentencing proceedings and any double punishment needed to be avoided.
The sentencing judge's descriptions of the agreement to which the appellant was a party were an inaccurate reflection of the admitted facts. They were apparently based on an unchallenged assertion of the prosecutor, who failed to distinguish between the roles of the appellant and Mr O'Callaghan when describing the conspiracy to which they were both said to be parties. The effect of this was that the appellant was dealt with on a basis that attributed to him much greater criminality than he had in in fact admitted or that was established on the uncontested facts.
There is no ground alleging express error on the part of the sentencing judge and thus it is unnecessary to make a finding in that regard. However, the course of the sentencing proceedings provides an explanation for the sentence imposed. The question that must be answered on this appeal is whether the total sentence of 21 years' imprisonment is disproportionate to the overall criminality. In that regard the sentencing judge's assessment of the seriousness of the appellant's offending is irrelevant. This court must make its own assessment in that regard, taking into account the admitted facts.
In our view, the total sentence of 21 years' imprisonment was unreasonable or plainly unjust having regard to the appellant's limited role in both sets of offending and his early pleas of guilty. Where large amounts of drugs are involved there are likely to be many people in the enterprise, and those people are likely to vary significantly in their level of criminality. In such cases the role of the offender is often a more significant consideration than the amount of drugs. In this case a total sentence of 21 years' imprisonment for what the appellant did, or agreed to do, was disproportionate to his criminality.
As the parties acknowledged at the hearing of the appeal, given the nature of the issues in this case there is little benefit to be obtained from consideration of comparable cases. However, for the sake of completeness I will mention those cases referred to by the parties.
In Ramachandran, the offender pleaded guilty to possession of a trafficable quantity of methylamphetamine (32.5 kg) with intent to sell or supply and possession of 4.9 kg of MDMA with intent to sell or supply. The offender acted as a 'warehouseman', responsible for storing drugs and repackaging them for further distribution.[92] He received a 22% discount for his plea of guilty and received a total effective sentence of 19 years 10 months' imprisonment. This court noted that while the quantity of methylamphetamine was very large, there was no evidence that the appellant's involvement in the operation was other than as a paid worker.[93] The appeal was allowed and the offender was resentenced to a total effective sentence of 16 years' imprisonment.
[92] Ramachandran [25].
[93] Ramachandran [65].
In Siskopoulos, the offender pleaded guilty to one count of attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply. The offender had attempted to purchase 40 kg of methylamphetamine from an undercover operative. He was 42 years old, had no criminal history, and received a 17% discount for his plea of guilty. Like the appellant, the offender was subordinate to his co‑offender, who was in prison and unable to take part in the day‑to‑day activities of the operation. An appeal against the total effective sentence of 16 years' imprisonment was dismissed.
In Edwards, the offender pleaded guilty to two counts of selling or supplying a trafficable quantity of methylamphetamine and one count of property laundering (dealing with approximately $4.5 million, being the proceeds of an offence). The offender had driven a truck from New South Wales to Western Australia and had supplied one person with 119 kg of methylamphetamine (count 1) and a second person with 43 kg of methylamphetamine (count 2). The offender received a 25% discount for his pleas of guilty and was sentenced to 14 years' imprisonment for each of the drug offences and 8 years' imprisonment for the money offence. The sentences were ordered to be served concurrently, so the total effective sentence was 14 years' imprisonment. A State appeal against sentence was allowed and the offender was resentenced to 17 years' imprisonment on count 1 and 15 years' imprisonment on count 2. The sentence on count 3 was undisturbed. The sentences were ordered to be served concurrently, so the total effective sentence was 17 years' imprisonment.
The offender in Radford was the co‑accused of Edwards, who had received the 119 kg of methylamphetamine from Mr Edwards. He pleaded guilty to three charges of possession of stolen or unlawfully obtained property ($36,050) and, on a separate indictment, a charge of supplying 14.6 kg of methylamphetamine and a charge of property laundering (dealing with approximately $3.5 million, being the proceeds of an offence). The offender was 52 years old and of prior good character. He was sentenced to 14 years' imprisonment for the possession of the 119 kg of methylamphetamine as part of a total effective sentence of 17 years' imprisonment. A State appeal was allowed and the offender was resentenced to 17 years' imprisonment for the methylamphetamine offence. The individual sentences for the other charges were not disturbed but they were restructured to produce a total effective sentence of 18 years' imprisonment.
Those cases support the conclusion that the total sentence of 21 years' imprisonment imposed in this case was disproportionate to the overall offending.

Conclusion

The single ground of appeal has been made out. Leave to appeal should be granted, the appeal allowed and the appellant resentenced.

Resentencing

This court has all of the materials necessary to resentence the appellant for the offences on the second indictment. The facts of the offending and the appellant's personal circumstances have been set out earlier in these reasons. We would allow the same discount for pleading guilty as allowed by the sentencing judge, namely 25% for the offences on the second indictment.
No issue was taken with the appropriateness of any of the individual sentences. Thus, it is only necessary to adjust those sentences on the second indictment to the extent necessary to achieve an appropriate total effective sentence. Having regard to all of the relevant factors, including the nature and circumstances of the offences, the appellant's role in the offending, his pleas of guilty, his personal circumstances and the importance of general and personal deterrence in respect of drug offences, the appropriate total effective sentence is 17 years' imprisonment.
We would achieve that sentence by reducing the sentences imposed on each of counts 2 to 4 on the second indictment to 4 years' imprisonment, making those sentences concurrent on each other and the total sentence of 4 years' imprisonment on the second indictment cumulative on the sentence of 13 years' imprisonment imposed for the offences on the first indictment. We would emphasise that these reductions are due entirely to the application of the totality principle and should not be seen as otherwise indicating the sentences appropriate for standalone offences of this nature. The sentences imposed by the sentencing judge would otherwise stand. We would order that the appellant be eligible for parole.

Orders

The orders are as follows:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The sentences on counts 2 to 4 on IND 925 of 2022 are set aside and in lieu thereof the appellant is sentenced to 4 years' imprisonment on each of those counts, to be served concurrently with each other.
4.The sentence of 4 years' imprisonment on IND 925 of 2022 is to be served cumulatively on the sentence of 13 years' imprisonment imposed on IND 1136 of 2021.
5.The total effective sentence of 17 years' imprisonment is backdated to commence on 3 April 2021.
6.The appellant is eligible for parole.

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