WJS v The State of Western Australia
[2025] WASCA 69
•9 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WJS -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 69
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 20 NOVEMBER 2024
DELIVERED : 9 MAY 2025
FILE NO/S: CACR 10 of 2024
BETWEEN: WJS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Whether discounts for past and promised future cooperation manifestly inadequate - Whether total discount for cooperation manifestly inadequate - Whether sentencing judge erred in failing to take into account past cooperation
Legislation:
Sentencing Act 1995 (WA), s 8(5), s 37A
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | C Porter |
| Respondent | : | N R Sinton |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
DGF v The Queen [2021] WASCA 4
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
NHI v The State of Western Australia [2021] WASCA 32
SYL v The State of Western Australia [2021] WASCA 16
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was jointly charged along with Mr P and Ms A with two offences, both of which were alleged to have occurred on 16 June 2020, at Manning. These offences were designated as counts 3 and 4 in the indictment.
Count 3 alleged that the appellant and the co‑offenders had in their possession a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Count 4 alleged that the appellant and the co‑offenders were in possession of $255,100 in cash that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
The maximum penalty for count 3 is life imprisonment, and for count 4, 7 years' imprisonment.
On 6 April 2023, 12 days before the commencement of his scheduled trial and after negotiations with the State, the appellant pleaded guilty to the two offences.
On 30 January 2024, the appellant was sentenced by Prior DCJ to 11 years' imprisonment on count 3 and 2 years 6 months' imprisonment on count 4. The sentencing judge ordered that the sentences be served concurrently. Thus, the total effective sentence imposed upon the appellant was 11 years' imprisonment. This sentence was backdated to commence on 23 September 2023, and the appellant was made eligible for parole.
As will be seen, the mitigating factors that applied to the appellant included both past and promised future cooperation. The sentencing judge gave a discount for each form of cooperation of 10%, amounting to a total discount of 20% for cooperation.
Originally, the appellant relied on two grounds of appeal but, at the hearing of the appeal, ground 1 (which alleged that the sentence imposed on count 3 was manifestly excessive) was abandoned.[1] Ground 2, as reformulated at the hearing, alleged:
That the discount of 20% for cooperation (past and future) was manifestly inadequate in that both the past and future discounts were unreasonable in all the circumstances and demonstrated implied error and that the discount for past cooperation was additionally accompanied by an express error of the trial judge not allocating any discount for past cooperation in relation to the letter of recognition dated 3 May 2023.
[1] Appeal ts 5 - 6.
The ground of appeal raises three issues for determination by this court. First, did the sentencing judge make an express error by not allocating any discount for past cooperation to the contents of a letter of recognition provided by the police dated 3 May 2023? Secondly, were the individual discounts of 10% for each of past and future cooperation manifestly inadequate? The third issue, which overlaps with the second, is whether the total discount for past and future cooperation of 20% was manifestly inadequate.
For the reasons that follow, we would uphold, in part, the ground of appeal, allow the appeal and resentence the appellant.
The facts
There was no dispute, either before the sentencing judge or this court, as to the facts of the offending, which were contained in an amended statement of material facts dated 11 May 2023, and which was read to his Honour in open court on 15 December 2023 and summarised in the sentencing remarks.
Mr P is the appellant's brother‑in‑law.
In the days leading up to 16 June 2020, Mr P, with the knowledge of the appellant, arranged to obtain 10 kg of methylamphetamine. They settled on a plan to package the drug into bags at rented Airbnb accommodation at an address in Cloister Avenue, Manning (the Airbnb). Ms A booked the Airbnb at the appellant's request. The plan involved the appellant, Mr P, Ms A and Mr K attending at the Airbnb on the morning of 16 June 2020 to divide and repackage the methylamphetamine for sale.
By the evening of 15 June 2020, the appellant had obtained the 10 kg of methylamphetamine. He then, with the assistance of Mr P, stored it overnight at his workplace at Yangebup.
Early on the morning of 16 June 2020, the appellant and Mr P arrived at the appellant's workplace in a Toyota HiLux utility. There, they removed from a wheelie bin a large grey bag which contained the 10 kg of methylamphetamine, which they then loaded into the HiLux.
The appellant and Mr P then drove to the car park of a Bunnings store in Bibra Lake. At 7.09 am, Mr K arrived in a white utility. He got out of his vehicle and into the HiLux. The three men then immediately left the car park.
The HiLux was driven to an address in Waterford, where the men checked on a silver BMW sedan which was parked on Anthus Corner. After checking on the vehicle, the HiLux was driven to the Airbnb, arriving at 7.45 am. The appellant, Mr P and Mr K remained there for several hours.
While at the Airbnb, the appellant used an encrypted Ciphr telephone to contact Ms A, who was supposed to be at the Manning address of the Airbnb when the others arrived. After the appellant chastised her for being late, Ms A made her way to the Airbnb, eventually arriving at 10.19 am.
Meanwhile, at 10.12 am, the appellant, Mr P and Mr K left the Airbnb in the HiLux. First, they dropped Mr K at the Waterford Plaza shopping centre, where Mr K purchased bags and disposable gloves that would later be used in the repackaging of the 10 kg of methylamphetamine. While Mr K was purchasing the items, the appellant drove Mr P to a location close to where the BMW had been left. Mr P then drove the BMW to the car park of the Manning Tennis Club, where he was met by the appellant in the HiLux. The appellant and Mr P drove in convoy to an address at Challenger Avenue, Manning, where they swapped cars. The appellant drove the BMW to the Airbnb, where he met Ms A and parked the vehicle in the garage. Mr P drove to the Waterford Plaza shopping centre and picked up Mr K. He drove both of them to the Airbnb, where Mr P dropped Mr K. Mr P then drove the HiLux back to the Manning Tennis Club. After parking it, he took an electric scooter from the HiLux, rode back to the Airbnb and went inside.
At 11.15 am, shortly after Mr P's arrival, police executed a search warrant at the Airbnb. Inside, they found all four offenders. On the dining table was an open hard plastic container, in which was 1 kg of methylamphetamine. Also on the table were scales, cups and bags. The offenders were in the process of breaking down and repackaging the methylamphetamine into smaller quantities. The gloves and bags purchased by Mr K were being used for that purpose. Police located the remaining 9 kg of methylamphetamine in a large duffel bag in the boot of the BMW parked in the garage. Also in the BMW was the $255,100 in cash, most of which was in the duffel bag.
The appellant and Ms A were immediately arrested in the living room. Initially, the appellant told the police that he did not know why he was at the Airbnb or that he knew what was in the container on the dining table. After initially denying that he knew any of the other people who were at the Airbnb, he admitted that he did know them all. The key to the BMW was located in a bag that the appellant admitted was his.
Mr P and Mr K ran from the house, but were soon after arrested. When Mr P was apprehended, he had two black disposable gloves in his pocket. Similar gloves were found on the kitchen bench inside the Airbnb. When he was later interviewed by police, Mr P denied any knowledge of the BMW and said that he went to the Airbnb to smoke methylamphetamine. In effect, he denied knowledge and possession of the 10 kg of methylamphetamine and the cash.
The appellant and Mr P were found to be joint principal offenders. Mr K and Ms A played lesser roles. Ultimately, Mr K pleaded guilty to one count of attempting to aid in the preparation of a trafficable quantity of methylamphetamine, contrary to s 6(1)(b) read with s 33(1)(a) of the Misuse of Drugs Act. On 1 June 2023, he was sentenced to 6 years' imprisonment with eligibility for parole. Ms A pleaded guilty to counts 3 and 4 on the basis that she aided in the possession of the 10 kg of methylamphetamine and the $255,100 cash. On 22 May 2023, she was sentenced to a total of 7 years' imprisonment with eligibility for parole.
Of the four accused, only Mr P went to trial. His trial took place in the District Court between 4 and 14 November 2024. On 14 November 2024, a jury found him guilty of counts 3 and 4. As will be seen, the State called the appellant to testify against Mr P. It is the sentencing judge's treatment of the appellant's cooperation in the prosecution of Mr P which is at the heart of this appeal.
The appellant's personal circumstances
The appellant was born in New Zealand. At the time of the commission of the offences he was just short of his 38th birthday. He was 41 years of age when he was sentenced.
The appellant's childhood in New Zealand was somewhat dysfunctional. His parents separated when he was very young. Later, his mother remarried. The appellant never knew his biological father, and, until the age of 15 years, he believed that his stepfather was his biological father.
The appellant's relationship with his mother and stepfather deteriorated at this point. For a time, the appellant lived on the streets. He left school during year 10. At an early age, the appellant was exposed to illicit drug use, particularly cannabis, which became normalised. Later, the appellant became addicted to methylamphetamine. At the time of the offences, the appellant was dependent on methylamphetamine.
In 2008, the appellant relocated to Australia. He arrived in Western Australia in 2009. He is married and has four children. He has a good record of employment. He has been heavily involved in community sport, at club and regional levels.
The appellant has a prior criminal record. Most notably, in 2013, he was convicted of offences of possession of MDMA and methylamphetamine with intent to sell or supply to another. He was sentenced to 3 years 2 months' immediate imprisonment with eligibility for parole.
After his arrest for the present offences, the appellant undertook voluntary counselling at the Whitehaven Clinic. A report dated 11 October 2023 was tendered to the sentencing judge. The author of the report was of the opinion that the appellant was 'extremely capable of changing his future direction should he choose', and that he had demonstrated 'considerable insight into his past actions and why he does what he does'.
The sentencing judge was also provided with a number of character references, which spoke well of the appellant as a husband and father, and attested to his remorse.
On 9 October 2023, the appellant and two of his children were involved in a serious car accident, which resulted in them being hospitalised. The appellant suffered injuries to his neck and spine and a fractured skull.
The appellant's cooperation with law enforcement authorities as at the date he was sentenced
After the appellant was arrested, he agreed to provide assistance to the WA police. His motive for doing so was to receive a letter of recognition.
On 3 May 2023, a letter of recognition was signed by an assistant commissioner of police. This letter was provided to the sentencing judge.
The letter revealed that on 16 and 25 June 2020, the appellant provided information which resulted in police creating 11 intelligence reports. This information contributed towards understanding the methodology of a drug‑dealing syndicate. No charges were preferred or property seized as a result of this assistance. The appellant was exposed to low risk, and was not required to undertake any particular task as a consequence of the information. The appellant's assistance was determined to be Grade 3 (the lowest of the grades given to offenders who assist the WA police).
On 13 April 2023, the appellant signed a 16‑page witness statement for the police. It was provided to the legal representatives of Mr P, Mr K and Ms A. The witness statement detailed the events of 15 and 16 June 2020 and implicated Mr P, Mr K and Ms A. It was accepted in the sentencing proceedings that the letter of recognition did not take into account the making of the statement.
Later, on 15 December 2023, the appellant signed an undertaking to give evidence in accordance with the statement as a prosecution witness in any trial involving Mr P. The undertaking was made pursuant to s 8(5) and s 37A of the Sentencing Act 1995 (WA).
The appellant was sentenced on the basis that he had provided the information to the WA police the subject of the letter of recognition, the statement dated 13 April 2023, and had entered into the undertaking. As will be seen, the sentencing judge gave a 10% discount for past cooperation and an additional 10% discount for promised future cooperation, pursuant to s 8(5) of the Sentencing Act.
The sentencing remarks
While the sentencing judge found that the appellant and Mr P were joint principal offenders, he accepted that Mr P had a more senior role than the appellant because it was he who sourced the 10 kg of methylamphetamine.[2] His Honour accepted that Mr K and Ms A aided the appellant and Mr P, and played lesser roles in the offending. His Honour explained the appellant's role in the offending in this way:[3]
There were four active participants in this offending. You stood to make a considerable amount of money from this activity. You might not have organised to originally get the 10 kilograms of methylamphetamine, but you were answerable to [Mr P] in this criminal enterprise by taking instructions from him. He trusted you. You are his brother‑in‑law. You knew 10 kilograms was involved when you were assisting him and directing others.
You acted significantly in obtaining a suitable venue to package and distribute the drugs. You directed the co‑offender [Ms A]. You had met [Ms A] on the day before the police raid at the Airbnb house in Manning with the other two co‑offenders. You were involved over a number of days with [Mr P]. [Mr K] was known to you as he had worked with you.
You used a Ciphr phone to communicate with others. The amount of money and the amount of methylamphetamine found in the motor vehicle indicates your level of trust in this enterprise and the significant commerciality of this illegal enterprise. [Ms A] and [Mr K] played much lesser roles. You had some role in directing both of them in their roles in this criminal activity.
At the time of the offending, you had relapsed into illicit substance use. You understood your role would allow you easy access to methylamphetamine. You'd been using methylamphetamine daily for six months leading up to the offending and selling that drug to fund your addiction.
The seriousness of the offending is clearly such that a sentence of immediate imprisonment for each offence is the only appropriate sentence. In setting the term of imprisonment, I've taken into account the aggravating factors I've already outlined, the circumstances of your offending and the role in your offending. I've also made reductions for the mitigating factors in your case and I've referred to the principal mitigating factors already.
[2] ts 477.
[3] ts 483 - 484.
The sentencing judge identified the significant aggravating factor in the appellant's offending as being that he engaged in 'organised and premeditated offending, drug dealing for a commercial benefit'.[4]
[4] ts 480.
The sentencing judge identified the following mitigating factors:
(a)The appellant pleaded guilty after discussion with the prosecution, 12 days before the commencement of his scheduled trial. The appellant was the first of the offenders to notify the State of his intention to plead guilty. His Honour gave a 10% discount for the plea of guilty pursuant to s 9AA of the Sentencing Act.[5]
(b)The appellant was genuinely remorseful for his offending.[6]
(c)Since his arrest, the appellant had abstained from illicit drug use and voluntarily attended counselling at the Whitehaven Clinic. He had a good employment record, including while on bail for these offences, and had the support of his family. His Honour found that the appellant had 'very good prospects of rehabilitation'.[7]
(d)The appellant had suffered injuries in the motor vehicle accident referred to at [32] above.[8] His Honour noted that the appellant's recovery from his injuries was 'good', but accepted that his spinal injury may have an impact on him during his time in custody, for which his Honour gave 'some limited weight in [his] sentencing'.[9]
(e)His Honour noted the contents of the letter of recognition. In respect of the letter, his Honour observed that it was prepared before the appellant signed the witness statement on 13 April 2023. His Honour also noted the appellant's undertaking to give evidence against Mr P signed on 15 December 2023.[10] His Honour gave the discounts for cooperation set out at [38] above.[11]
(f)The appellant grew up in an environment of abuse of alcohol, exposure to violence and some childhood deprivation. The appellant also had a somewhat dysfunctional childhood, where drug use was somewhat normalised.[12]
[5] ts 480, 482.
[6] ts 480.
[7] ts 480.
[8] ts 480. His Honour misdescribed the date of that accident as October 2020. The motor vehicle accident occurred in October 2023.
[9] ts 480.
[10] ts 481. His Honour erroneously stated that the undertaking was given on 15 December 2024.
[11] ts 481.
[12] ts 481.
His Honour noted the appellant's prior criminal record. He observed that the appellant was not a person of prior good character, and that required that 'some weight … be given to the principles of specific deterrence in [his] sentencing'.[13]
[13] ts 479.
The sentencing judge recognised that the major sentencing consideration for offences of the kind committed by the appellant was general and personal deterrence. He acknowledged that while matters personal to the appellant were not irrelevant, they were subsidiary considerations.[14]
[14] ts 482.
Little was said about the facts and circumstances of count 4. The precise source of the cash is not the subject of any particular finding by the sentencing judge, although it is clear that it is somehow connected with the trafficking of prohibited drugs. The sentencing judge found that both counts 3 and 4 were part of the same drug‑dealing activity. His Honour ordered that the sentence on count 4 be served concurrently with the sentence on count 3, to accommodate the first limb of the totality principle.[15]
[15] ts 484.
The parties' submissions
Counsel for the appellant submitted that the sentencing judge committed a combination of express and implied errors in respect of the discount he gave for the appellant's past and future cooperation.
As to the express error, counsel alleged that it was apparent from the sentencing remarks that his Honour did not take into account any of the matters contained in the letter of recognition, dated 3 May 2023, as part of the appellant's past cooperation. The appellant's counsel submitted that a 10% discount for past cooperation was manifestly inadequate, having regard to the combined effect of the matters contained in the letter of recognition, the giving of the statement, and the fact that the statement, as counsel for the State submitted in the sentencing proceedings, led to Ms A indicating that she would plead guilty to counts 3 and 4 on the factual basis proposed by the State.[16]
[16] See prosecutor's submissions, ts 458.
As to the discount for future cooperation, that is, on the basis that the appellant would give evidence in accordance with his statement at Mr P's trial, counsel for the appellant submitted, in accordance with submissions made at first instance by the State prosecutor, that the appellant's proposed evidence was of 'very significant value' and should attract a 'very significant degree of mitigation'.[17] Counsel for the appellant submitted that the discount of 10% accorded to the appellant's future cooperation was, having regard to its importance to the State in Mr P's prosecution, manifestly inadequate. Counsel for the appellant also submitted that, given the overall importance to the State of the appellant's past and future cooperation, the total discount of 20% was manifestly inadequate.
[17] ts 457.
Counsel for the appellant submitted that, if the ground of appeal was made out, this court should resentence the appellant to a lesser sentence on count 3, and to a lesser total effective sentence. Counsel for the appellant pointed out that, since the appellant was sentenced, he has testified at Mr P's trial in accordance with his undertaking. Thus, in any resentencing exercise, all of his cooperation could be considered to be past cooperation.
Counsel for the respondent submitted that, having regard to the sentencing remarks as a whole, it is apparent that his Honour did not make the express error alleged by the appellant. In other words, in his assessment of the appellant's past cooperation, the sentencing judge took into account the matters in the letter of recognition.
As for the alleged implied errors, counsel for the State accepted that the cooperation given by the appellant was of considerable value, however, it was said, in effect, that this was not a case where the appellant's past and future cooperation could be considered exceptional. Counsel for the respondent submitted that a total discount for cooperation of 20% was not 'an inconsiderable percentage' and was within an appropriate discretionary range.[18]
[18] Appeal ts 23.
Counsel for the respondent submitted that, in any event, having regard to the seriousness of the offending, this court should not resentence the appellant to a lower individual sentence for count 3 or a lower total effective sentence.
Legal principles in respect of an offender's cooperation
The principles relating to the discount to be given for an offender's assistance and cooperation with law enforcement authorities are well settled and have been stated on many occasions by this court.[19]
[19] See, for example, SYL v The State of Western Australia [2021] WASCA 16 [72] ‑ [83]; NHI v The State of Western Australia [2021] WASCA 32 [46] ‑ [51].
An offender's cooperation with law enforcement authorities may comprise cooperation given prior to an offender's sentencing (past cooperation) or by an offender's promise to cooperate with law enforcement authorities after the appellant has been sentenced (future cooperation). It is not necessary as a matter of law for a sentencer to allocate any specific discount for past cooperation, although this is frequently done. The position with respect to future cooperation is different. The allocation of a discount for future cooperation is governed by the provisions of s 8(5) of the Sentencing Act, which provides:
If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court. (emphasis added)
The provision of a specific discount for future cooperation is designed to ensure that if an offender reneges on the undertaking to assist law enforcement authorities, the offender may be resentenced. Section 37A of the Sentencing Act relevantly provides:
(1)If -
(a)a court reduces the sentence it would otherwise have imposed on an offender for an offence (the full sentence) because the offender undertakes to assist law enforcement authorities; and
(b)the offender subsequently fails wholly or partly to fulfil the undertaking,
the court may recall the order imposing the sentence (the reduced sentence) and impose a sentence based on the full sentence but taking into account the extent to which the reduced sentence has taken effect and the extent to which the offender has complied with any orders made under it.
It is to the advantage of ordinary law‑abiding citizens that crimes should be detected and successfully prosecuted. Hence, there is a clear public interest in encouraging offenders to cooperate with law enforcement agencies. In some cases an offender's cooperation may demonstrate genuine contrition, remorse and rehabilitation. However, the public interest in encouraging offenders to cooperate with law enforcement agencies is served even if the offender's cooperation does not demonstrate contrition, remorse or rehabilitation.
In MXP v The State of Western Australia,[20] it was observed that the public interest in encouraging offenders to cooperate with law enforcement authorities in the detection, apprehension and prosecution of crime applies with particular force in relation to offences of dealing or trafficking in prohibited drugs - drug dealing being a scourge in modern society.
[20] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [64].
There is no tariff for a discount for cooperation. Depending upon the particular facts and circumstances of the case, the discount may be very small but, in other cases, it may be as much as 50% or even more.[21] The factors which may be taken into account in the assessment of a discount for past or future cooperation were discussed in SYL [80] by reference to statements made in this court in DGF v The Queen.[22] The factors include:
(1)The nature and extent of the cooperation - a consideration which might, in an appropriate case, encompass both quantitative and qualitative matters; for example, as to the latter, the accuracy, reliability and timeliness of any information provided by the offender.
(2)Whether the cooperation is genuine; for example, information which is knowingly false could attract no discount.
(3)Whether the offender discloses all that he or she knows - full and frank assistance will ordinarily result in a more substantial discount than partial assistance.
(4)The benefit that has resulted, or is expected to result, from the cooperation - ordinarily, the more useful, or potentially useful, the information or assistance, the greater the discount.
(5)The risk or danger of retributive violence to the offender or the offender's family.
(6)Hardship which the offender may be placed in, or may undergo, as a result of cooperation; for example, where the offender may have to serve his or her sentence in more onerous conditions than the general prison population because he or she will be in some form of protective custody.
[21] MXP [54].
[22] DGF v The Queen [2021] WASCA 4 [53].
In the assessment of the discount for cooperation, it is important that the court ensure that the end result is commensurate with the seriousness of the offence or, as it has been expressed in other cases, the resulting sentence does not constitute 'an affront to community standards'.[23]
[23] MXP [52].
Disposition
The allegation of express error that the sentencing judge failed to take into account the matters contained in the letter of recognition as part of the appellant's past cooperation has not been made out.
In the sentencing remarks, his Honour expressly referred to the letter of recognition in the context of the appellant's past cooperation:[24]
There is a letter of recognition Grade 3, that letter was prepared before your detailed statement to the police, or your undertaking was signed to give evidence against [Mr P].
So although it's of the lowest grade, it doesn't take into account those things I've stated that you did, in relation to [Mr P] and the other co‑accused. You've provided some significant past assistance to the prosecuting and investigating authorities and, as I have stated, you've agreed to provide future assistance in relation to [Mr P's] prosecution.
[24] ts 481.
In our opinion, it is clear that his Honour took into account the contents of the letter of recognition as past cooperation. Indeed, the letter of recognition could only be relevant to the appellant's past cooperation.
However, in our opinion, the allegations of implied error have been made out. While we accept that it is open for the appellant to impugn the separate discounts the sentencing judge gave for past and future cooperation, as counsel for the appellant appeared to accept in oral argument,[25] the real question for this court is whether the overall discount for cooperation of 20% was manifestly inadequate.
[25] See appeal ts 12.
The appellant's past cooperation was constituted by the letter of recognition and the provision of the statement. The cooperation detailed in the letter of recognition, which is distinct from the provision of the statement, was relatively modest. It was considered of low value to the WA police and, while it was apparently given genuinely and reflected contrition and remorse, it could only be given modest mitigatory weight.
The statement had much greater mitigatory value. The appellant gave accurate and reliable information against all of the co‑offenders, particularly Mr P and Ms A. As a direct result of the provision of the statement, Ms A changed her plea to guilty in circumstances where it was accepted by the State that, in the absence of the evidence the appellant proposed to give against her, there was a realistic prospect that she would have been acquitted.[26]
[26] ts 458.
As valuable as the appellant's past cooperation was, the appellant's promise to give future cooperation was even more valuable. According to the State, the appellant's proposed evidence against Mr P 'comprehensively establish[ed]' that Mr P knew 'what was going on'.[27] In other words, the appellant's proposed evidence contradicted and undermined any defence Mr P offered at trial to the effect that he did not know of, and therefore did not possess, the 10 kg of methylamphetamine and the cash. It was accepted by the State that the giving of evidence against Mr P in accordance with the statement exposed the appellant to a degree of personal risk.
[27] ts 456.
The successful prosecution of drug offenders in the upper level of the hierarchy is often hamstrung by a lack of direct evidence of their participation in the offending. Therefore, those who undertake to give significant evidence against principal offenders, a prospect often made more difficult by threats of harm, should be properly rewarded. All the more so where the cooperating witness is, like the appellant in this case, a fellow principal offender. Such an informer will often be privy to information which others do not know and which is highly damaging to the accused against whom the evidence is given. The appellant was such an informer.
Of course, in considering the adequacy of the discounts for cooperation given to the appellant, the other discounts given by the sentencing judge, most notably for the plea of guilty, must be considered. Further, the discounts must not result in the imposition of an inadequate sentence.
When all the facts and circumstances of the present case are considered, we have been persuaded that the individual discounts given for past and future cooperation were manifestly inadequate, and that the overall discount for cooperation was manifestly inadequate. The discount should have been substantially larger.
To the extent that the discounts for past and future cooperation and the overall discount were manifestly inadequate, the ground of appeal has been made out. This court's discretion to resentence the appellant has therefore been enlivened.
Resentencing
We will not repeat the facts of the offending or the appellant's personal circumstances.
In resentencing the appellant, this court may take into account events which have occurred since the appellant was sentenced. The appellant testified at Mr P's trial. Mr P's defence was that he had no knowledge of the drugs prior to his arrival at the Airbnb, and that at no time did he possess the drugs nor the cash found in the BMW.
The appellant gave evidence at Mr P's trial over two sitting days in accordance with his statement. In addition, he testified about Mr P's Ciphr handle. This was of assistance to the prosecution because Mr P denied ever using a Ciphr telephone, and denied that a Ciphr telephone found at his house belonged to either him or his wife. There is no suggestion that the appellant's evidence at Mr P's trial was anything other than complete and reliable. It also appears to remain the case that the appellant has placed himself at some risk by giving evidence against Mr P, which will make the term of imprisonment he will be required to serve more burdensome.
It was accepted at first instance that the appellant is remorseful and contrite for his offending. He entered a plea of guilty at a late stage in the proceedings. As did the sentencing judge, we would give a discount under s 9AA of the Sentencing Act of 10% for the plea of guilty. As for the appellant's cooperation, all of which is now past cooperation, we would give a discount of 35%.
The appellant's offending was doubtless very serious. Both personal and general deterrence loomed large. The quantity of the methylamphetamine was significant. The appellant offended, in large part, for commercial gain. There was some mitigation in his personal circumstances, but not much weight could be given to this factor. In the absence of the appellant's cooperation and plea of guilty, very substantial terms of imprisonment were warranted. However, in the particular circumstances of the present case, significantly discounted terms are justified. After taking into account all relevant facts and circumstances and all relevant sentencing factors (including the parity principle), we would impose a term of imprisonment on count 3 of 9 years' imprisonment with eligibility for parole.
As for count 4, the only information that has been provided to this court is to the effect that the $255,100 found in the BMW at the Airbnb was, as his Honour put it, 'part of clearly the same drug dealing activity'. While we are somewhat sceptical as to whether this is in fact the case, there is no evidence before this court to the contrary. The State has not sought to persuade this court differently. Nor has it sought that the term of imprisonment be served cumulatively or partly cumulatively. After taking into account all relevant facts and circumstances and all relevant sentencing factors (including the parity principle), we would sentence the appellant to 2 years' imprisonment on count 4. We would order that the sentence on count 4 be served concurrently with the sentence on count 3. Thus, the total effective sentence we would impose is 9 years' imprisonment. The appellant should remain eligible for parole.
Orders
The orders we would make are as follows:
1.Leave to appeal on ground 2 is granted.
2.The appeal is allowed.
3.The sentences imposed by Prior DCJ on 30 January 2024 are set aside.
4.The appellant is resentenced on count 3 to 9 years' imprisonment and on count 4 to 2 years' imprisonment.
5.The sentence on count 4 is to be served concurrently with the sentence on count 3. For avoidance of doubt, the total effective sentence imposed by this court upon the appellant is 9 years' imprisonment.
6.The appellant remains eligible for parole and the sentences are backdated to commence on 23 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
9 MAY 2025
0
4
1