Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Appellant pleaded guilty to seven offences - One count of possession of about 21 kg of methylamphetamine - Whether sentence of 18 years 6 months' imprisonment manifestly excessive - Other offences of possession of unlawfully obtained cash totalling about $600,000 and firearm offences - Appropriate total effective sentence

Firearms Act 1993 (WA), s 19(1)(c), s 19(1ac), s 19(1ad)

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

Sentencing Act 1995 (WA), pt 2 div 1

Allen v The State of Western Australia [2017] WASCA 203

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Barton v The State of Western Australia [2016] WASCA 196

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Chadburne v The State of Western Australia [2017] WASCA 216

Chen v The State of Western Australia [2017] WASCA 99

Cummins v The State of Western Australia [2017] WASCA 135

Dias v The State of Western Australia [2017] WASCA 49

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions(Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063

Giglia v The State of Western Australia [2010] WASCA 9

House v The King [1936] HCA 40; (1936) 55 CLR 499

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

Jarvis v The Queen (1993) 20 WAR 201

Karakuyu v The State of Western Australia [2012] WASCA 75

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

My v The State of Western Australia [2018] WASCA 1

Neumann v The State of Western Australia [2013] WASCA 70

Ng v The State of Western Australia [2017] WASCA 124

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Penney v The State of Western Australia [2011] WASCA 71

R v Kilic [2016] HCA 48; (2016) 259 CLR 256

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Pham [2015] HCA 39; (2015) 256 CLR 550

Ricciardi v The State of Western Australia [2012] WASCA 106

Rinaldi v The State of Western Australia [2017] WASCA 48

Roffey v The State of Western Australia [2007] WASCA 246

Sakhie v The State of Western Australia [2017] WASCA 103

Santos v The State of Western Australia [2016] WASCA 107

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

The State of Western Australia v Charles [2016] WASCA 108

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Wilson [2015] WASCA 119

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

2 The appellant was convicted, on his pleas of guilty in the District Court before O'Neal DCJ, of seven counts in an indictment.

3 Count 1 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant and two co-offenders had in their possession 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) (the MD Act). The quantity of methylamphetamine was 21.74 kg. Its purity ranged between 73.5% and 80.3%.

4 Count 4 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant and two co-offenders were in possession of a thing capable of being stolen, namely $569,000 in money, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).

5 Count 5 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant was in possession of a firearm, namely a double barrel shotgun, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and that the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1)(c) read with s 19(1ac) of the Firearms Act.

6 Count 6 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant was in possession of a firearm, namely a double action revolver, while not being the holder of a licence or permit under the Firearms Act entitling him to do so, and that the firearm was a handgun, and that the number or identification mark on the firearm had been removed, and that the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1)(c) read with s 19(1ac) of the Firearms Act.

7 Count 7 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant was in possession of ammunition, namely 13 .38 special hollow point rounds, while not being the holder of a licence or permit under the Firearms Act entitling him to do so, contrary to s 19(1)(c) read with s 19(1ad) of the Firearms Act.

8 Count 8 alleged that between 27 July 2015 and 5 August 2015, at Osborne Park, the appellant was in possession of ammunition, namely four 12 gauge shotgun rounds, while not being the holder of a licence or permit under the Firearms Act entitling him to do so, contrary to s 19(1)(c) read with s 19(1ad) of the Firearms Act.

9 Count 9 alleged that on 4 August 2015, at Leederville, the appellant was in possession of a thing capable of being stolen, namely $39,950 in money, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code.

(a) the offence alleged in count 1 was 25 years' imprisonment or a fine of $100,000 or both;

(b) the offence alleged in each of counts 4 and 9 was 7 years' imprisonment;

(c) the offence alleged in each of counts 5 and 6 was 7 years' imprisonment; and

(d) the offence alleged in counts 7 and 8 was 5 years' imprisonment.

11 The sentencing judge imposed the following individual sentences:

12 His Honour ordered that the sentence for count 6 be served cumulatively upon the sentence for count 1 and that all other sentences be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 20 years' imprisonment. The sentence for count 1 and the total effective sentence were backdated to commence on 5 August 2015. A parole eligibility order was made.

13 I would set aside the sentence for count 1 on the ground that it is manifestly excessive and substitute a sentence of 16 years 6 months' imprisonment. However, I would not impose a different total effective sentence.

The facts and circumstances of the offending, the appellant's personal circumstances, the sentencing judge's sentencing remarks and the parties' submissions

15 The facts and circumstances of the offending, the appellant's personal circumstances, the sentencing judge's sentencing remarks and the parties' submissions are summarised in Mazza and Beech JJA's reasons. I will not repeat them except to the extent necessary to explain my reasons.

The relevant general sentencing principles, the relevant sentencing principles in respect of drug dealing or trafficking offences and the previous sentencing cases on drug dealing or trafficking offences referred to by the parties

16 The relevant general sentencing principles, the relevant sentencing principles in respect of drug dealing or trafficking offences and the previous sentencing cases on drug dealing or trafficking offences referred to by the parties are summarised in Mazza and Beech JJA's reasons. I will not repeat them except to the extent necessary to explain my reasons.

(a) a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

(b) if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

(c) if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.

See Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] (McHugh, Hayne & Callinan JJ).

19 Ground 1 alleges in essence that the sentence of 18 years 6 months' imprisonment imposed by his Honour for count 1 was manifestly excessive.

20 Ground 2 alleges in essence that the total effective sentence of 20 years' imprisonment infringed the first limb of the totality principle.

21 On 9 June 2017, Mazza JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

22 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

23 If, in a particular case, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance. See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ); The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

24 Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

25 In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.

26 By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.

27 The statutory principle that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportionate to the offence. See Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 484 - 486 (Wilson J), 490 - 491 (Deane J).

28 If offending falls within the 'worst category' of the offence it is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty. Both the nature and facts of the offending and the circumstances of the offender must be considered in deciding whether the case falls within this 'worst category'. If offending falls within the 'worst category' it is immaterial that it may be possible to conceive an even worse instance of the offence. Accordingly, an offence may be so grave as to warrant the maximum penalty even though it is possible to imagine an even worse instance. See R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).

29 Where offending, although a grave instance of the offence, is not so grave as to require the imposition of the maximum penalty, the sentencing judge is obliged to consider where the nature and facts of the offending and the circumstances of the offender lie on the 'spectrum' that extends from the least serious instances of the offence to the 'worst category'. See Kilic [19].

30 Sentencing patterns for a particular offence emerge over time as a result of the experience of the courts in sentencing offenders who have committed the offence in question with varying degrees of culpability. David Thomas, Principles of Sentencing (2nd ed, 1979) states in relation to the emergence of upper and lower sentencing limits for a particular offence:

[A] variety of typical factual situations will recur; with each of these typical factual situations there are associated upper and lower limits within which the sentence should normally fall, in the absence of exceptional circumstances in the offence and without regard to mitigating features peculiar to the offender himself. The difference between the upper and lower limits applicable to a particular typical situation constitutes the 'range', 'bracket', 'normal level' or 'pattern of sentence' for that variation of the offence. A sentence above the upper limit will be described as 'excessive', 'out of scale', 'beyond the range', and is normally reduced. A sentence which is within the limits will not be reduced on the ground of disproportion alone even though it is marginally more severe than the members of the Court might individually have passed (33). (footnotes omitted)

31 Sentencing appeals often refer to an 'available range' of sentences for the offender. The notion of an 'available range' of sentences derives from the principles expressed in House v The King [1936] HCA 40; (1936) 55 CLR 499. In House, Dixon, Evatt and McTiernan JJ identified a residuary category of error in discretionary judgment, namely the appellate court infers error where the result or conclusion of the primary court is unreasonable or plainly unjust (505). This kind of error is usually referred to, in the context of sentencing appeals, as 'manifest excess' or 'manifest inadequacy'. However, appellate courts also refer to this kind of error as involving the imposition of a sentence that falls outside the 'range of sentences' which could have been imposed if proper principles had been applied. See Barbaro [26].

32 In this State, comparable cases, in the context of deciding upon the 'available range' of sentences in a particular case, comprise relevant decisions of this court and its predecessor, the Court of Criminal Appeal.

33 In the present case, the previous decisions of this court in Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324, Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 and Chen v The State of Western Australia [2017] WASCA 99, and the decisions reviewed or referred to in those cases, are of some assistance as comparable cases. However, none of these previous cases involved offending on a single count that is directly comparable with the appellant's offending on count 1. I will review the facts and sentencing outcomes in Milenkovski and Zanon.

34 In Milenkovski, the offender was convicted, after trial, of two counts. He was sentenced to 12 years' imprisonment on one count of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and to 14 years 6 months' imprisonment on a further count of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. He was ordered to serve a total effective sentence of 17 years' imprisonment. The methylamphetamine the subject of the counts comprised 7.658 kg in total, of which 4.983 kg was of high purity. One count was committed on 4 December 2009 and the other on 25 February 2010. The offender was at the top of the Western Australian chain of distribution of illicit drugs. He was in charge of a significant criminal enterprise and his operations were well organised. He had numerous people working for him at different levels. The offender's network of contacts and associates enabled him to disseminate large quantities of methylamphetamine into the community within a relatively short period. He committed the offences solely for very significant commercial gain. The offender did not have a prior criminal record of any relevance. Some of his personal circumstances and antecedents were reasonably favourable. The offender did not have the mitigation of youth or inexperience. The relevant offences were not isolated incidents. He demonstrated no remorse or contrition and no acceptance of responsibility for his offending. The offender appealed to this court on three grounds including that each of the individual sentences was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle. His appeal was dismissed.

35 In Zanon, one of the offenders, namely Mr Quaid, was convicted, after trial, of two counts. One count alleged that on 6 March 2013 Mr Quaid sold or supplied 8.75 kg of methylamphetamine to another, contrary to s 6(1)(c) of the MD Act. The other count alleged that on 21 March 2013 Mr Quaid sold or supplied 4 kg of methylamphetamine to another, contrary to s 6(1)(c) of the MD Act. All of the methylamphetamine had a high degree of purity. On the first count Mr Quaid was sentenced to 20 years' imprisonment. On the second he was sentenced to 15 years' imprisonment. The sentencing judge ordered that the 15-year term commence after Mr Quaid had served 8 years of the sentence on the first count, resulting in a total effective sentence of 23 years' imprisonment. Mr Quaid operated a drug dealing business on a very significant scale and reaped significant financial rewards. He was at the top or near the top of the drug industry in this State. Mr Quaid was the principal in a successful commercial enterprise. He operated at the high end of the prohibited drug dealing market. Mr Quaid sourced large quantities of drugs and provided instructions and directions to those in his distribution network. His business was sophisticated, well directed and orchestrated, and conducted in a manner aimed at avoiding detection. Mr Quaid was aged 40 at the time of sentencing. When he committed the offences in question he had a prior criminal record for traffic offences and for giving false or misleading evidence to the Australian Crime Commission. The drug dealing offences were not isolated incidents. Mr Quaid demonstrated no remorse or contrition and no acceptance of responsibility for his offending. Mr Quaid appealed to this court, relevantly, against sentence on the basis that his total effective sentence infringed the first limb of the totality principle. The individual sentences were not challenged. Mr Quaid's appeal was dismissed.

36 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6], Gleeson CJ and Hayne J observed:

(a) Manifest excess in relation to a sentence is a conclusion.

(b) A sentence is, or is not, unreasonable or plainly unjust; excess is, or is not, plainly apparent.

(c) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.

(d) Frequently, the conclusion does not admit of amplification except by stating the respect in which the sentence is excessive.

See also Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] - [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

37 Recently, in Allen v The State of Western Australia [2017] WASCA 203, this court (Buss P, Mazza & Mitchell JJA) said:

The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15], as recognised by the Court of Criminal Appeal in Morley v The Queen [2001] WASCA 49 [8]). The absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles) [66].

38 However, if a sentencing judge imposes a sentence that falls outside the 'range of sentences' which could have been imposed on the offender if proper principles had been applied, an appellate court is entitled and bound to intervene and correct the sentence even if the numerical difference between the original sentence, on the one hand, and the upper or lower limit (as the case may be) of the available range, on the other, is not large. The original sentence will be manifestly excessive or inadequate (as the case may be).

39 In the present case, I am persuaded that the sentence of 18 years 6 months' imprisonment for count 1 is manifestly excessive. The sentence falls outside the 'range of sentences' which could have been imposed if proper principles had been applied. My reasons are as follows.

40 First, the appellant's offending in relation to count 1 was not within the 'worst category' of the offence as explained in Kilic [18].

41 Secondly, unlike Mr Quaid in Zanon and the offender in Milenkovski, the appellant was not at the top of a major drug dealing hierarchy. The appellant was close to the top of a major drug dealing hierarchy. He was 'an essential senior participant in a multi-million dollar drug trafficking operation' (ts 442). However, there was at least one other person who was the beneficial owner of the methylamphetamine in question. The beneficial owner was at the top of the hierarchy and his or her culpability was more egregious than the appellant's.

42 The nature and level of an offender's participation in drug dealing or trafficking within a particular organisation, or generally, is a highly significant sentencing factor.

43 Thirdly, unlike Mr Quaid in Zanon and the offender in Milenkovski, the appellant pleaded guilty. The sentencing judge in the present case allowed the appellant a discount of 12%, pursuant to s 9AA of the Sentencing Act, for each of his pleas of guilty.

44 Fourthly, although there was no material difference between the personal circumstances and antecedents of the appellant, on the one hand, and Mr Quaid and the offender in Milenkovski, on the other, the appellant (unlike Mr Quaid and the offender in Milenkovski) evinced some remorse for his offending.

45 Fifthly, despite the appellant having pleaded guilty and despite the appellant's place in the drug dealing hierarchy being materially lower than that of Mr Quaid and the offender in Milenkovski, the sentence of 18 years 6 months' imprisonment imposed on the appellant for count 1 exceeded the sentence of 14 years 6 months' imprisonment imposed on the offender in Milenkovski for one of the two counts on which he was convicted and was only 18 months less than the sentence imposed on Mr Quaid for one of the two counts on which he was convicted.

46 Sixthly, otherwise, as Mazza and Beech JJA have noted, the highest sentences for a single count of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, which have been considered by this court have been in the region of 14 years to 15 years. There are some features of the appellant's offending which are comparable to at least some of those cases, but there are also distinguishing features. The principal distinguishing feature is the very large quantity of the methylamphetamine the subject of the appellant's offending on count 1.

47 Seventhly, there is no doubt that the appellant's offending on count 1 was extremely serious. He was in possession of 21.74 kg of methylamphetamine. The drugs were of a very high purity. Their value was in the region of $4.3 million to $6.2 million. The appellant sold large quantities of prohibited drugs on a commercial basis. His motivation was profit.

48 The weight of the drugs the subject of an offender's drug dealing or trafficking is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. The degree of purity of the drugs is often regarded as significant.

49 Eighthly, in my opinion, the sentence of 18 years 6 months' imprisonment was not, in the circumstances I have mentioned, commensurate with the seriousness of the offence. In particular, the sentence failed properly to recognise the mitigating character of the appellant's plea of guilty (for which he was given a 12% discount) and the fact that he was below the top of the drug dealing hierarchy in the context of the maximum penalty of 25 years' imprisonment or a fine of $100,000 or both.

50 Ninthly, the sentence imposed on the appellant for count 1 had to (but did not) properly take into account, within the sentencing spectrum for the offence created by s 6(1)(a) of the MD Act, that:

(a) the maximum penalty of 25 years' imprisonment or a fine of $100,000 or both must be reserved for offending falling within the 'worst category' of the offence, as explained in Kilic [18];

(b) offending which is, objectively, of similar seriousness to the appellant's offending on count 1, but without any mitigating factors, must attract a significantly higher sentence than that imposed on the appellant; and

(c) offending which is, objectively, of similar seriousness to the appellant's offending on count 1, but with only some of the mitigation available to the appellant, must attract a higher sentence than that imposed on the appellant.

51 Ground 1 has been made out. A different and lower sentence should have been imposed for count 1.

52 Prior to the hearing of the appeal the sole ground of appeal (now embodied in ground 2) was that the total effective sentence of 20 years' imprisonment infringed the first limb of the totality principle. At the suggestion of the court, counsel for the appellant sought and was granted leave at the hearing to amend the grounds by adding ground 1. Counsel for the appellant gave this explanation as to why a ground alleging manifest excess in relation to count 1 had not been raised earlier:

Can I say that the ground [alleging infringement of the first limb of the totality principle] was chosen because prior to the decision [in Cummins v The State of Western Australia [2017] WASCA 135] this court appeared to be of the view that manifest excess grounds ought not be run with totality grounds because the issue of manifest excess was subsumed in the question of totality. But the court has taken a different view or, at least, has clarified its position since the submissions were filed (appeal ts 2 - 3).

53 It is appropriate, in the circumstances, to make some observations about counsel for the appellant's explanation and rationale for not alleging manifest excess earlier.

54 In Giglia v The State of Western Australia [2010] WASCA 9, the appellant was convicted of 14 drug-related offences. He was sentenced to 2 years' imprisonment on count 1, 4 years' imprisonment on count 2, and 2 years 6 months' imprisonment on count 14. The individual sentences on the other counts ranged between 2 years' imprisonment and 2 years 8 months' imprisonment. The sentence for count 2 was the head sentence. The sentencing judge ordered that the sentences for counts 1 and 14 be served cumulatively upon each other and cumulatively upon the sentence for count 2. His Honour ordered that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 2. The total effective sentence was therefore 8 years 6 months' imprisonment.

55 The appellant appealed to this court on two grounds. Ground 1 alleged that the sentence of 2 years' imprisonment for count 1 was manifestly excessive. Ground 2 alleged that total effective sentence infringed the totality principle. However, at the hearing of the appeal, counsel for the appellant did not pursue ground 1. Counsel's explanation was that the question whether or not the sentence for count 1 was correct was effectively subsumed into the larger question of whether the total effective sentence was excessive. Owen JA (McLure & Pullin JJA agreeing) said that in his opinion that analysis of the issues raised by the grounds of appeal was correct. His Honour continued:

There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive. In this case, such a question is raised by the second ground of appeal [40]. (emphasis added)

56 Two significant points may be made about the decision in Giglia and the passage from Owen JA's reasons which I have cited. First, on the facts of Giglia, whether the sentence for count 1 (2 years' imprisonment) was 'correct' was plainly subsumed in effect into the larger question of whether the total effective sentence was 'excessive'. The appellant had been sentenced on 14 drug-related offences. Each individual sentence was between 2 years' imprisonment and 2 years 8 months' imprisonment, except for count 2 in respect of which the head sentence of 4 years' imprisonment was imposed. The total effective sentence of 8 years 6 months' imprisonment was very significantly in excess of the sentence of 2 years' imprisonment for count 1. There was no reason in principle why the sentencing judge accumulated the sentence for count 1 rather than one of the other sentences of 2 years' imprisonment which his Honour ordered to be served concurrently. Secondly, Owen JA, in referring to a 'heavy individual sentence' being 'softened' (by an order for concurrency) or a 'relatively light sentence' having 'increased severity' (by an order for accumulation) was not including within those descriptions individual sentences that are manifestly excessive or manifestly inadequate; in other words, that are not within the 'available range' of sentences for the offender.

57 In Cummins v The State of Western Australia [2017] WASCA 135, the appellant pleaded guilty to six counts in an indictment. He was sentenced to 18 months' immediate imprisonment on count 1; 3 years 6 months' immediate imprisonment on count 2; 2 years 4 months' immediate imprisonment on count 3; 8 months' immediate imprisonment on count 4; 2 years 6 months' immediate imprisonment on count 5; and 3 years 8 months' immediate imprisonment on count 6. The sentencing judge ordered that the sentences for counts 4 and 6 be served cumulatively upon each other and cumulatively upon the sentence for count 2, and that the other sentences be served concurrently with each other and concurrently with the sentence for count 2. The total effective sentence was therefore 7 years 10 months' imprisonment.

58 The appellant appealed to this court against sentence. The sole ground of appeal alleged that the total effective sentence infringed the first limb of the totality principle. This court (Mazza & Mitchell JJA & Hall J), in the course of refusing leave to appeal and dismissing the appeal, said:

In written submissions, the appellant stated that the claim that the first limb of the totality principle had been infringed should not be taken as a concession that any of the individual sentences was not manifestly excessive. However, there was no ground to that effect and no submissions were directed to this question by the appellant. The appellant sought to justify this by relying on what was said in this court in Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40] and in GO v The State of Western Australia [2016] WASCA 132 [247], namely that where terms of imprisonment are imposed for separate offences, the question of whether any individual sentence is manifestly excessive is usually subsumed to the larger question of whether the aggregate sentence infringed the totality principle. However, it does not follow from that that where there is a totality ground it is irrelevant to consider the individual sentences. Subject to the cautionary note referred to above, the individual sentences imposed may be factors that are relevant to the question of whether the aggregate sentence is unreasonable [47].

59 In my opinion, this court did not, prior to the decision in Cummins, enunciate that manifest excess grounds should not be run with totality grounds because manifest excess is subsumed in the question of totality. Nothing said by this court in Cummins indicates that a different approach is to be taken in relation to arguing manifest excess grounds in conjunction with totality grounds. As I have explained, Owen JA did not, in Giglia, include within his references to a 'heavy individual sentence' being 'softened' (by an order for accumulation) or a 'relatively light sentence' having 'increased severity' (by an order for accumulation) individual sentences that are manifestly excessive or manifestly inadequate; in other words, that are not within the 'available range' of sentences for the offender.

60 If an appellant wishes to contend, in an appeal to this court, that the sentence imposed on him or her for a single offence was manifestly excessive or not within the 'available range' of sentences, the contention must be the subject of a separate and distinct ground of appeal.

61 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.

62 The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia [40].

63 As to count 1 and the offending against s 6(1)(a) of the MD Act, I have already examined the seriousness of that offence in the course of deciding ground 1.

64 As to counts 4 and 9 and the offending against s 417(1) of the Code, there are no directly comparable cases decided by this court or its predecessor. However, some guidance can be discerned from My v The State of Western Australia [2018] WASCA 1; Dias v The State of Western Australia [2017] WASCA 49; Barton v The State of Western Australia [2016] WASCA 196; and The State of Western Australia v Charles [2016] WASCA 108.

65 In the present case, the sentencing judge found that the $569,000 cash, the subject of count 4, and the $39,950 cash, the subject of count 9, were derived from drug trafficking operations and reflected the sale of very substantial quantities of drugs (ts 442). Plainly, the appellant's offending on count 4 and, to a lesser extent, on count 9 involved very serious examples of this type of offence.

66 As to counts 5, 6, 7 and 8 and the offending contrary to the Firearms Act, firearms and ammunition are found frequently in the possession of criminals who are involved at a medium to high level in illicit drug dealing enterprises. The possession of firearms and ammunition reflects the significant value of the illicit drugs and the risks involved in dealing in them. It is not unknown for weapons to be used in the actual or attempted resolution of disputes between criminals in relation to illicit drugs. Personal and general deterrence are important sentencing factors. See Sakhie v The State of Western Australia [2017] WASCA 103; Rinaldi v The State of Western Australia [2017] WASCA 48; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Ricciardi v The State of Western Australia [2012] WASCA 106; and Karakuyu v The State of Western Australia [2012] WASCA 75.

67 In the present case, the sentencing judge found that the firearms and ammunition the subject of counts 5, 6, 7 and 8 were assets of the drug dealing business. The purpose of the firearms and ammunition was to protect the business and its activities from the greed and violence of others associated with the illicit drug industry. The firearms and ammunition were also connected with the appellant 'in terms of ownership' (ts 442).

68 I am satisfied that it was necessary, in order properly to mark the extremely serious nature of the appellant's overall offending, for there to be some accumulation of the individual sentences. There is no element of double punishment in any of the individual sentences.

(a) the maximum penalty for each of counts 1, 4, 5, 6, 7, 8 and 9;

(b) the extremely serious nature of the offending viewed as a whole;

(c) the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;

(d) the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offending of this kind;

(e) the appellant's personal circumstances and all matters of mitigation; and

the proper conclusion is that the total effective sentence of 20 years' imprisonment imposed by the sentencing judge was appropriate. In other words, the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending. No different total effective sentence should have been imposed.

The result of the appeal and the resentencing of the appellant

70 Leave to appeal should be granted on ground 1 and refused on ground 2.

72 This court has the material necessary to resentence the appellant consequent upon ground 1 having been made out.

73 The individual sentence imposed by the sentencing judge for count 1 should be set aside on the ground that the sentence is manifestly excessive. The individual sentence imposed by his Honour for count 4 should be reduced from 4 years' imprisonment to 2 years' imprisonment to facilitate the application of totality principle in the course of resentencing

the appellant. His Honour's orders for concurrency and cumulacy should also be set aside. However, the individual sentences imposed by his Honour for counts 5, 6, 7, 8 and 9 should not be disturbed.

74 Like the sentencing judge, I would allow a discount of 12%, pursuant to s 9AA of the Sentencing Act, on the head sentence I would otherwise have imposed for count 1, on account of the appellant's plea of guilty. This recognises the benefits to the State and its witnesses resulting from the plea.

75 I have also reduced the sentence I would otherwise have imposed for count 1 because of other mitigating factors; in particular, the appellant's prior good character, the absence of relevant previous convictions and his remorse.

76 After taking into account the maximum penalty for count 1, the facts and circumstances of the offence, the general standards of sentencing for this type of offence, the place which the appellant's offending occupies on the scale of seriousness applicable to this type of offence, the appellant's personal circumstances, and all other relevant sentencing principles, including the aggravating factors referred to by his Honour and the mitigating factors, I would impose a sentence of 16 years 6 months' imprisonment for count 1. The new sentence for count 1 is the head sentence.

77 The new sentence for count 4 (2 years' imprisonment) and the sentence for count 6 (18 months' imprisonment) should be served cumulatively upon each other and cumulatively upon the new sentence for count 1 (16 years 6 months' imprisonment). The other individual sentences should be served concurrently with each other and concurrently with the new sentence for count 1. The total effective sentence therefore remains 20 years' imprisonment.

78 The new sentence for count 1 and the total effective sentence are to be taken to have taken effect on 5 August 2015. The appellant remains eligible for parole. He will be eligible to be considered for release on parole upon having served 18 years in custody calculated from 5 August 2015.

79 MAZZA & BEECH JJA: The appellant pleaded guilty to seven charges: one count of possession of about 21 kg of methylamphetamine with intent to sell or supply (count 1); two counts of possession of unlawfully obtained property, being cash totalling about $600,000 (counts 4 and 9);

two counts of aggravated unlicensed possession of a firearm (counts 5 and 6); and two counts of unlicensed possession of ammunition (counts 7 and 8). He was sentenced to 18 years 6 months' imprisonment on count 1 and to a total effective sentence of 20 years. He appeals on the grounds that the sentence on count 1 was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.

80 For the reasons that follow, we would uphold the appeal against the sentence on count 1 and resentence the appellant to 16 years' imprisonment on count 1 and to a total effective sentence of 18 years.

82 At about 8 am on 4 August 2015, police executed a Misuse of Drugs Act search warrant at the appellant's home address and at the address of the appellant's co-accused, Mr Henderson. At the appellant's home, heat sealing bags were located, including one signed with the appellant's initials.[2] Inside Mr Henderson's vehicle was a contract for a storage unit at Kangaroo Storage in Osborne Park. The contract was in Mr Henderson's name, and had his year of birth as the PIN number. The police forced open the lock of the storage unit and searched the storage unit.[3]

83 CCTV footage from Kangaroo Storage showed the appellant, Mr Henderson and another man unloading from Mr Henderson's car and transporting to the storage unit the three tubs which contained the material giving rise to the counts listed below.[4] The appellant's DNA and fingerprints were found on the material.[5]

84 In addition to the items found in the three tubs in the storage unit which gave rise to the counts below, the police also found in the tubs in the storage unit a box of disposable gloves, a box of large clip-seal bags, a notebook, a hard drive, and a money counting machine. Vacuum sealed bags and rolls were also seized from the appellant's home.[6]

85 The State's case was that the notebook that was found was a tick book, being a book which records drugs that have been sold on credit. The appellant disputed that the notebook was a tick book. The appellant submitted that the notebook should be categorised as a 'record of account in relation to the distribution of drugs', and submitted it was not a tick book because it did not record money that was owing to the appellant but rather it recorded work that the appellant was doing for other people.[7] However, the appellant conceded that in the scheme of the offending this detail was unlikely to make much difference.[8] The State ultimately accepted that the 'tick book' could be a 'record of account' and that 'it would be curious that at this level of dealing that ... credit would be involved', and that dealings were more likely to be in cash.[9]

86 The police never gained access to the appellant's BlackBerry phone, which was protected by certain security software.[10]

Count 1 - possession of a prohibited drug with intent to sell or supply

87 Inside the storage unit there were two containers which contained methylamphetamine. The total weight of the methylamphetamine, which is the subject of count 1, was 21.74 kg. The purity of the bulk of the methylamphetamine, which weighed almost 21 kg, ranged from 73.5% to 80.3%. In total there was more than 16.6 kg of pure methylamphetamine contained in the 21.74 kg seized.[11] The value of the methylamphetamine, if sold in 1 kg parcels, was approximately $4.3 million, and if it were sold by the ounce, uncut, it would be worth approximately $6.2 million.[12]

Count 4 - possession of stolen or unlawfully obtained property

88 In the storage unit the police also found a large amount of cash in vacuum sealed bags. The total amount of cash was $569,000. Most of the bags had monetary amounts written on them and the appellant's initials on the bags.[13]

Count 5 - unlicensed possession of a firearm, and possession of an altered firearm whilst not being the holder of a firearms licence

89 Inside a box found in the storage unit was a 'Hombra' double-barrel shotgun which had both the stock and the barrel sawn off, making it easily concealable.[14]

Count 6 - unlicensed possession of a firearm, and possession of an altered firearm whilst not being the holder of a firearms licence

90 Inside a box found in the storage unit was also a six-shot revolver handgun which had the serial number removed.[15]

Count 7- unlicensed possession of ammunition, whilst possessing an unlicensed firearm

91 In a clip-seal bag in the storage unit were 13 special hollow-point .38 rounds for the handgun.[16]

Count 8 - unlicensed possession of ammunition, whilst possessing an unlicensed firearm

92 In the storage unit were four 12-gauge shotgun rounds.[17]

Count 9 - possession of stolen or unlawfully obtained property

93 On 5 August 2015, a search warrant was executed at a unit in Leederville that was sublet by the appellant from a friend. An amount of $39,950 in cash was found inside a safe in that unit.[18]

94 The appellant was born on 3 February 1982 and was 33 years old at the time of the offending and 35 years old at the time of sentencing. He had some relatively minor prior criminal convictions for traffic offences. He had never previously been sentenced to a term of immediate imprisonment.[19]

95 The appellant's parents separated when he was 11 years old, and his close friend died when he was 14 years old. Otherwise his childhood was 'comparatively uneventful'. He had a sound education, completing schooling up to year 10, and then completed a tiler's apprenticeship. After that he worked as a tiler. He is now married. The appellant stated that there was mutual drug use in the relationship.[20]

96 The appellant began using drugs in his early teens, when he used alcohol and cannabis. In his early twenties he began using ecstasy and amphetamine. He then used cocaine in his late twenties. He described his use of drugs as recreational, and not daily. Over time he accumulated a drug debt and was approached by others with a request that he store 'some stuff' for them in exchange for clearance of his debt. He knew that the proposal concerned drugs. He received an initial payment of $10,000 and then three to four $5,000 increments. He spent the money on more drugs and maintaining his lifestyle image that he described as being 'better than most' but not extravagant. He expressed regret for his offending behaviour.[21]

97 In the pre-sentence report, it is stated that '[the appellant] appears to consider his drug use as a means of enhancing his lifestyle and fails to appreciate the scourge drug use/distribution represents for the broader community'.[22] During sentencing submissions counsel for the appellant took issue with this part of the report.[23]

98 The State submitted that while the appellant was not at the highest level within the drug dealing enterprise he was, nevertheless, at a very high level.[24] It pointed, among other things, to: the substantial quantity, high purity and high value of methylamphetamine; the manner in which the methylamphetamine was packaged; the large quantity of cash; and the fact that the appellant's initials were on many of the parcels of cash.[25]

99 Counsel for the appellant submitted to the sentencing judge that the appellant was holding the drugs, money, guns and ammunition for other people. While he played a vital role in the distribution of drugs, and was an important part of the hierarchy, the drugs were not his and he was not at the top of the hierarchy.[26]

100 It was accepted that he had committed a very serious offence and would get a significant term of imprisonment. It was also accepted that the appellant was not entitled to a 25% discount for his plea of guilty, it not having been made at the first reasonable opportunity.[27]

101 His Honour found it to be an aggravating factor that the appellant intended to distribute the drugs in his possession, and the distribution was at the very highest level of commercial activity, even accepting that the appellant was effectively dealing with those drugs on consignment from someone else.[28] The judge said it had to be accepted that there was someone higher than the appellant in the hierarchy.[29]

102 The money found was unlawfully obtained, being derived from drug trafficking and representing the fruits of very substantial quantities of drugs sold. The firearms and ammunition were assets of a drug trafficking business, kept to protect that business from the greed and violence of others.[30]

103 His Honour observed that the appellant's drug use had not caused the appellant the level of harm usually seen amongst lower level drug dealers. His Honour went on to state that '[i]n the context of the harm caused to the community by methylamphetamine you are a victimiser not a victim'.[31]

104 The methylamphetamine found in the appellant's possession was relatively pure. This suggests that the appellant was relatively close to the source of the drugs, as drugs are often cut in purity as they proceed downstream towards the street.[32] The sheer volume and purity of the drugs show that the appellant was indeed very close to the source.[33]

105 The appellant was instrumental in the distribution into the community of great quantities of a drug that is causing immeasurable harm both to individuals and the broad community.[34] Dealing for commercial gain was also an aggravating factor.[35]

106 The offending was at a very high level of objective criminality and extremely serious. It was only really the absence of prior drug offending convictions that suggest a lack of additional moral culpability that meant it was not appropriate to use the maximum punishment as the starting point to the sentencing exercise.[36]

107 The judge outlined the appellant's personal circumstances, as summarised above.

108 The judge observed that the pleas of guilty were neither early nor relatively late.[37] In the circumstances, he was given a reduction of 12%.[38]

109 Further, it was accepted that the appellant had no relevant history of offending and his antecedents appeared to be good.[39] However, the appellant must have been involved in the drug trade for some time without drawing the attention of the police. His possession of the drugs, cash, firearms and ammunition did not occur overnight.[40] The fact that his record is relevantly clear is not to be given significant weight because this is a case concerning methylamphetamine, which is a drug that 'takes over and destroys the lives of users and their families'.[41] General and personal deterrence is of great importance.[42]

110 The appellant's prospects for rehabilitation were said to be 'probably fair', in part because 'the sentence that must be imposed here is likely to long separate you from criminal associations'.[43]

111 It is clear that the appellant accepted responsibility, although he did not have a great deal of choice in doing so.[44] The appellant was also given 'slight credit for remorse'.[45]

112 Very little weight, if any, was given to his character references.[46]

113 The only appropriate disposition was said to be immediate imprisonment.[47] Before considering questions of accumulation, concurrence and totality, his Honour fixed the following sentences for each offence.[48]

114 With respect to count 1, the possession of methylamphetamine with intent to sell or supply, a sentence of 18 years and 6 month was imposed.

115 With respect to count 4, possession of unlawfully obtained property, being the $569,000, a sentence of 4 years was imposed.

116 With respect to count 5, the aggravated possession of a firearm, the shotgun, a sentence of 1 year was imposed.

117 With respect to count 6, the aggravated possession of an altered firearm, the revolver, a sentence of 18 months was imposed.

118 With respect to count 7, the possession of some 38 calibre ammunition, a sentence of 3 months was imposed.

119 With respect to count 8, the possession of some shotgun rounds, a sentence of 1 month was imposed.

120 With respect to count 9, possession of unlawfully obtained property, being the $39,950, a sentence of 6 months was imposed.

121 His Honour then ordered that the sentence imposed on counts 1 and 6 be cumulative upon one another, making a total of 20 years' imprisonment. His Honour directed that the remaining sentences be served concurrently with each other and with the 20 year term imposed.[49]

122 The total effective sentence of 20 years' imprisonment was backdated to commence on 5 August 2015, being the date that the appellant was taken into custody, and an order was made that the appellant be eligible for parole.[50]

1. The learned sentencing judge erred in imposing a sentence of 18 years 6 months' imprisonment on count 1 because that sentence was manifestly excessive.
2. The learned sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.

124 The appellant's submissions recognise that he committed a number of serious offences and that the overall criminality revealed by those offences was at a very high level.[51] Given the very high quantity of high purity methylamphetamine the subject of count 1, the appellant recognises that comparison with other cases will be of limited assistance.[52] The appellant submits that there are three cases that may be of some assistance: Zanon v The State of Western Australia;[53] MSO v The State of Western Australia;[54] and Mikulic v The State of Western Australia.[55] The appellant submits that the criminality of Mr Quaid, one of the appellants in Zanon v The State of Western Australia, was significantly more serious than the appellant's offending. The offender Mr Quaid was at the top of the drug distributing business, sourced very large quantities of drugs, directed the operation of a very sophisticated and significant drug distribution business and gained very large financial rewards.[56] By contrast the appellant in this case was not at the top of the business and was not the ultimate beneficial owner of the drugs.[57]

125 The appellant also refers to the outline of comparable cases by McLure P in Zanon v The State of Western Australia,[58] suggesting that Penney v The State of Western Australia;[59] and Milenkovski v The State of Western Australia[60] have some comparable features with the present case.[61]

126 The respondent's submissions emphasised the serious features of the appellant's offences, especially count 1, as found by the sentencing judge.[62] The appellant should be seen to be very near the top of the drug distribution pyramid.[63] In imposing the sentence on count 1, the judge did not start at the maximum penalty before discounting for the plea of guilty.[64] The sentence on count 1 was appropriate for the seriousness of the offence.[65] The respondent submits that the total effective sentence was a just reflection of the appellant's criminality, and no error by the sentencing judge can be implied.[66]

Appeals against sentence: general principles

127 The following principles relevant to appeals on grounds of manifest excess and totality are well established.

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

(2) A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

128 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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community.[67] Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[68]

129 As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.[69]

130 As the parties accept, the very large quantity of methylamphetamine involved in this case means that other cases provide limited assistance. Nevertheless, we will summarise a number of cases which have some similar features, although many of them involve very significantly smaller quantities of drugs.

131 This court's decision in Zanon also concerned an appeal against sentence by a co-offender, Mr Quaid. Mr Zanon and Mr Quaid were convicted after a joint trial. Mr Quaid operated a drug dealing business on a very significant scale, reaping a significant financial reward. He was at the top or near the top of the drug industry, sourced large quantities of drugs and provided instructions and directions to those in his distribution network.[70] Mr Quaid's drug dealing business was conducted in a sophisticated manner, so as to avoid detection.[71] Mr Zanon was one of a number of couriers used by Mr Quaid. Mr Quaid was convicted of two counts, one of having sold or supplied 8.75 kg of methylamphetamine, and the other of having sold or supplied 4 kg of methylamphetamine. On the count of having sold or supplied 8.75 kg of methylamphetamine, Mr Quaid was sentenced to 20 years' imprisonment and Mr Zanon to 14 years' imprisonment.[72] Mr Quaid's culpability was described as being at the very high end of the scale.[73] He received a total effective sentence of 23 years' imprisonment. Leave to appeal against the total effective sentence on the ground that it infringed the first limb of the totality principle was refused, and so the appeal was taken to be dismissed.

132 McLure P made the following observations as to comparable cases:[74]

The court's attention was drawn to a number of sentence appeals in broadly comparable cases including Kitis v The State of Western Australia [2013] WASCA 34 (total quantity of 5 kg of methylamphetamine; 22% - 69% purity; late plea of guilty; 12 years imprisonment); Ozan v The State of Western Australia [2013] WASCA 27 (total quantity of 7.6 kg; late plea of guilty; 17% - 69% purity; total sentence of 14 years); Neumann v The State of Western Australia [2013] WASCA 70 (total of 1.27 kg of methylamphetamine; late guilty plea; 15 years); Penney v The State of Western Australia [2011] WASCA 71 (total of 9 kg of which 5.76 kg was methylamphetamine at 10% - 12% purity; early guilty plea; 13 years, not the principal); Mikulic v The State of Western Australia [ 2011] WASCA 127 (total of around 15 kg of primarily ecstasy; purity between 23% - 80%; late guilty plea; cooperation; 12 years imprisonment; Milenkovski v The State of Western Australia [2014] WASCA 48 (a total of 7.68 kg of methylamphetamine; 2.7 kg at 17% - 19% purity, 5 kg at 53% - 69% purity; 17 years imprisonment).

There is also a cluster of cases in which the total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 years and 12 years imprisonment (including Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Halmi v The State of Western Australia [2013] WASCA 229; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Seeto v The State of Western Australia [2014] WASCA 221).

133 In Neumann, to which McLure P referred, there were four counts: one of conspiracy and three of possession with intent.[75] The highest individual sentence imposed on Mr Neumann was 10 years' imprisonment for possession of 860.9 g of methylamphetamine with intent to supply or supply. The drug was contained in four packages and ranged in purity from 46% to 75%.

134 The appellant in MSO had provided warehousing and related services to two drug traffickers over a period of about one year prior to his arrest.[76] The appellant collected, weighed, checked, stored, made up orders and delivered drugs on behalf of two drug traffickers, and was instructed by those drug traffickers from time to time. He was not a user of drugs.[77] MSO concerned an appeal against a total effective sentence of 8 years and 3 months imprisonment imposed following the appellant's conviction in the District Court upon his plea of guilty to four counts of possession of a prohibited drug with intent to sell or supply. Each of the four counts related to a different type of illegal drug.[78] Count 1 related to a total of 10.54 kg of methylamphetamine with a street value of between $4.7 million and $5.2 million. The purity ranged from 46% to 75%.[79] The appellant entered early pleas of guilty. He provided significant assistance and cooperation to law enforcement authorities and undertook to assist the authorities in the future by giving evidence at the trial of the two drug traffickers for whom he had provided the warehousing and related services. The sentencing judge said that, after allowing a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA) on the sentence he would have imposed if the appellant had not pleaded guilty and there were no other mitigating factors, and after taking into account all other mitigating factors except the appellant's past assistance and cooperation with law enforcement authorities and his undertaking in relation to future cooperation, he would have imposed a sentence of 11 years 6 months' imprisonment for count 1. There were two grounds of appeal, both of which were dismissed. One ground asserted that the sentencing judge erred by finding that the appellant's offences were motivated in part by a desire to make a significant financial gain. The other ground was that the sentencing judge erred by not allowing a greater discount to reflect the assistance which the appellant had given, and promised to give in the future, regarding the prosecution of other offenders.[80] The court noted that there was no challenge to the implicit conclusion of the trial judge that a total effective sentence of 16 years and 6 months would have been the term appropriately imposed in the absence of any discount for cooperation.[81]

135 In Milenkovski the offender was convicted after trial of one count of drug trafficking and one count of attempted drug trafficking. Count 1 involved 2.675 kg of methylamphetamine with a purity of between 17% and 19%. The other count involved 4.983 kg of methylamphetamine with a purity between 53% and 69%. The offender committed the offences solely for very significant commercial gain. He was at the top of the chain of distribution of illicit drugs. He was in charge of a significant and well organised criminal enterprise with numerous people working for him at different levels.[82] Sentences of 12 years for count 1 and 14 years 6 months for the other count were imposed, with a total effective sentence of 17 years' imprisonment. Appeals against the individual sentences on the ground of manifest excess, and against the total effective sentence on the ground of infringement of the totality principle, were both dismissed. Buss JA was of the view that the total effective sentence was 'reasonably lenient' [200]. Mazza JA said the total effective sentence was 'well within the range of a proper sentencing discretion' [216].

136 In Rinaldi v The State of Western Australia,[83] the offender pleaded guilty to 39 counts, including three counts of possession of prohibited drugs with intent and a large number of firearm offences. The three drug offences each involved different drugs: 888 g of MDMA of purity varying between 25% and 73%; 1.65 kg of methylamphetamine of purity between 45% and 77%; and 7.29 g of cocaine with a purity of about 68%. The offender was sentenced to a total effective sentence of 14 years. The sentences for the drug offences were, respectively, 18 months (reduced from 5 years for reasons of totality), 8 years and 2 years. The offender's appeal on the ground that the total effective sentence infringed the totality principle was dismissed. The court described the offender's overall criminality as extremely serious. He participated in a large scale commercial enterprise aimed at distributing into the community a large quantity of dangerous illicit drugs and firearms.[84] The court identified that the firearms offences were a significant aggravating feature of the offender's overall criminality.[85]

137 In Mikulic, the appellant was convicted on his own plea of guilty of eight separate offences, all of which related to the possession of methylamphetamine (a total of approximately 3 kg of a purity between 23% and 27%), MDMA (approximately 11 kg in total) and cocaine (19.15 g of a purity of 76% to 80%) with intent to sell or supply to another. The sentencing judge imposed a total effective sentence of 12 years' imprisonment. On appeal it was relevantly contended that the total sentence infringed the first limb of the totality principle.[86] The appellant was 48 years old at the time of sentencing and had no relevant prior convictions. However, his offending was at a very high level of seriousness because the appellant had planned, financed and facilitated the acquisition and transportation of some of the drugs seized. He was involved in the dissemination of illicit substances at a significantly high level, close to the source of manufacture. The offences related to relatively high quantities of high purity prohibited drugs. It was held that the total sentence of 12 years' imprisonment was consistent with comparable cases and was within the range of a sound exercise of the sentencing discretion.[87]

138 In Santos v The State of Western Australia,[88] Mr Santos was convicted after trial and sentenced to a total effective sentence of 15 years' imprisonment on two counts of possession of prohibited drugs with intent to sell or supply. His role was as pilot of the aircraft which brought the drugs from New South Wales to Western Australia. The first count concerned 9 kg of MDMA (ecstasy) and the other concerned about 22 kg of methylamphetamine. The sentence was imposed following a trial. At the time of sentencing he had recently completed a sentence of 2 years 9 months for an offence of knowingly taking part in the cultivation of 298 cannabis plants. The decision of this court concerned an application to withdraw a notice of discontinuance. In the course of refusing that application, this court observed that it could not reasonably be maintained that there had been a breach of the first limb of totality principle.[89]

139 In Chen v The State of Western Australia,[90] the offender was convicted after trial of one count of possession of 3.426 kg of methylamphetamine of 80 - 81% purity. He was sentenced as one of three offenders, each of whom played a significant and important role, and each of whom was close to and trusted by the heads of the drug distribution network, but were not themselves the principals. Leave to appeal on the ground that his sentence of 14 years' imprisonment was manifestly excessive was refused.

140 In Ng v The State of Western Australia,[91] the offender pleaded guilty to possessing nearly 5 kg of methylamphetamine of 77 - 78% purity (count 1) and possessing $385,000 in cash reasonably suspected to be unlawfully obtained (count 2). He played an important role in a significant drug dealing enterprise, acting as a crucial conduit between the suppliers and wholesale purchasers of the drug. He was trusted by suppliers to hold the large and valuable quantity of high purity methylamphetamine and cash.[92] The offender received a discount of 25% for his plea of guilty. He was sentenced to a term of 12 years on count 1. The term of 18 months on count 2 was ordered to be served concurrently. He appealed against the sentence on count 1 on the ground that it was manifestly excessive. His appeal was dismissed.

141 In Chadburne v The State of Western Australia,[93] the offender was convicted after trial and sentenced to a total effective sentence of 16 years 6 months' imprisonment for four counts of possessing a prohibited drug with intent to sell or supply and one count of failing to obey a date access order. The offender transported from Sydney to Perth 8.41 kg of MDMA of 30% purity (count 1), 2.04 kg of methylamphetamine of 66 - 82% purity, 482 g of cocaine of 58% purity and a separate parcel of 275 g of cocaine also of 58% purity. He was sentenced to 14 years 6 months' imprisonment on count 1. An appeal on the grounds that the sentence on count 1 was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle was dismissed.

142 With the exception of Mr Quaid's sentence of 20 years, the appellant's sentence of 18 years 6 months on count 1 is, so far as we are aware, the highest sentence for a single count of possession of a prohibited drug with intent to sell and supply or of selling or supplying a prohibited drug that has been considered by this court. Otherwise, the highest sentences for a single count considered by this court have been in the region of 14 to 15 years.[94] That fact does not provide any support for a conclusion that the appellant's sentence in this case is unreasonable or plainly unjust. With the exception of Santos, the weight of methylamphetamine possessed by the appellant exceeds any case that has come before this court. Moreover, in this case the appellant was in possession of only one drug, all of which was the subject of a single count. Most of the other cases to which we have referred involved multiple counts. Consequently, as the appellant accepts, other cases provide very limited assistance. A range of sentences for very serious offending involving very large quantities of one drug has not yet emerged.[95]

143 The absence of reasonably comparable cases against which to measure the sentence does not prevent this court from considering and determining whether a given sentence is manifestly inadequate or manifestly excessive.[96] It simply means that the question of manifest excess (or manifest inadequacy) must be approached by reference to the maximum sentence for the relevant offence, the place which the offending conduct occupies on the scale of seriousness of offences of that kind, and the personal circumstances of the offender.[97]

144 The maximum penalty for an offence 'provide[s], taken and balanced with all the other relevant factors, a yardstick'.[98] Attention should be directed to where the facts of the particular offence and offender lie on the spectrum that extends from the least serious instances of the offence to the worst category, being those offences so grave as to warrant the maximum prescribed penalty.[99]

145 At the material time, the maximum penalty for an offence under s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) was 25 years. The appellant's sentence on count 1 was 18 years 6 months' imprisonment. The sentencing judge gave the appellant a discount of 12% for his plea of guilty. He also gave the appellant credit for his good character and the absence of any prior record, as well as 'slight credit' for his remorse.

146 Taken together, those matters indicate that the learned sentencing judge must have had a starting point not less than or very close to 22 years.

147 There is no doubt that the appellant's offending was very serious. He had possession of an extremely large quantity of drugs of high purity valued in the region of $4 million to $6 million. As the packaging of the drug indicated, he was commercially selling large quantities of drugs. His motivation was financial gain. These features and the other circumstances of the case demonstrated that the appellant was near the top of the drug dealing hierarchy.

148 Nevertheless, the appellant was not at the top of the drug dealing hierarchy. He was not the beneficial owner of the drugs which he was engaged in selling. It was the person or persons above him who were in ultimate control and who derived the ultimate profits of the enterprise, notwithstanding that the appellant was, it may be inferred, richly rewarded for his criminal conduct. Milenkovski and Quaid are illustrative of cases in which (leaving aside the volume of drugs involved) the offender's role, and what the offender did, involved greater criminality, to a not insignificant degree, than that of the appellant in this case. While one case falls well short of establishing a sentencing range, and while there was no appeal against the individual sentence on the count of selling or supplying 8.75 kg of methylamphetamine, it should be noted that, after trial, Mr Quaid was sentenced to 20 years' imprisonment on that count. If he was given the 12% discount applied to the appellant in this case, his sentence would have been less than 18 years' imprisonment.

149 In all the circumstances, evaluated against the yardstick of the maximum penalty of 25 years, locating the offence on the spectrum that extends from the least serious instances of the offence to the worst category and taking into account his plea of guilty (for which he received at 12% discount), in our respectful opinion it must be concluded that the sentence imposed for count 1 reveals implied error. For those reasons we would uphold ground 1.

150 Until the hearing of the appeal the sole ground of appeal was that the total effective sentence infringed the first limb of the totality principle. At the hearing of the appeal the appellant sought and was granted leave to amend the grounds of appeal to add, as ground 1, a ground that the sentence on count 1 was manifestly excessive.

151 In Giglia v The State of Western Australia,[100] Owen JA observed that where terms of imprisonment are imposed for separate offences, the question of whether any individual sentence is manifestly excessive is usually subsumed into the larger question of whether the total effective sentence infringed the totality principle. These well-known and often cited observations should not be misunderstood. They do not mean there is never a role for a manifest excess ground in a sentencing exercise involving multiple offences.[101] As explained immediately below, this case provides an example.

152 The result of upholding ground 1 is that the sentencing process has miscarried and this count must re-exercise the sentencing discretion in relation to all counts.[102] As part of that process, this court must come to its own view as to the appropriate total effective sentence. Consequently, it is unnecessary to determine whether ground 2, which alleged that the total effective sentence was unreasonable or plainly unjust, would have succeeded. The appellant's success on ground 1 is no indication that ground 2 would have succeeded. The relationship between the sentence imposed and the maximum sentence for count 1 was central to the success of ground 1. Similar considerations would not have sustained ground 2, given that the appellant was convicted of seven offences. For present purposes it is enough to say that ground 2 would have faced some significant obstacles. Had the totality ground stood alone, the fact that some degree of accumulation on account of the other offending, especially the firearm offences, would appear to have been warranted may have provided an obstacle to the success of the ground. A further obstacle may have arisen from or be reflected in the moderate difference between our view of the appropriate total sentence and that imposed by the sentencing judge and whether the conclusion of implied error could be drawn.[103]

153 In resentencing the appellant we evaluate for ourselves all the relevant facts and circumstances of the case, including the appellant's personal circumstances. We do not differ from the sentencing judge's assessment of the appropriate reduction for the appellant's plea of guilty, namely 12%, pursuant to s 9AA of the Sentencing Act. After applying that reduction, and a moderate further reduction on account of the appellant's prior good character, the absence of any prior record and for his remorse, we would impose a sentence of 16 years' imprisonment.

154 It can fairly be said that, at least in proportionate terms, the difference between a sentence of 18 years 6 months and one of 16 years is not large. The modest size of that difference has given us pause as to whether the sentencing judge's disposition of the matter reveals implied error. As this court has recently observed, the absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with the characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles).[104]

155 However, the difference between the sentence imposed at first instance and the appellate court's sentence is not to be assessed solely by reference to the proportion between them. The nominal difference between the two sentences is also relevant. The severity of a term of imprisonment increases more than proportionately as the length of sentence increases.[105] A difference of 2 ½ years' imprisonment is not insubstantial. Further, where, as here, deterrence is the dominant sentencing consideration and personal circumstances carry little weight, the range of legitimate variation in sentences is materially reduced.[106] Also, as one approaches the statutory maximum sentence, the available range may be somewhat compressed. The question for this court is whether the sentence imposed exceeds the bounds of a proper exercise of the sentencing discretion. If this court is satisfied that it does, it is entitled and obliged to intervene. In the end, in this case we have been satisfied that, for the reasons already given, the sentence imposed by the learned sentencing judge reveals implied error.

156 We would impose the following further sentences:

157 In our view the appropriate total effective sentence is one of 18 years' imprisonment. We would order that the sentences on counts 5 and 6 be cumulative on the sentence for count 1, and upon each other and that all other sentences be served concurrently with those sentences and with each other. We would order that the appellant be eligible for parole.

158 The sentence for count 1 and the total effective sentence are to be taken to have taken effect from 5 August 2015, when the appellant was taken into custody. The appellant will be eligible to be considered for release on parole when he has served 16 years from 5 August 2015.

159 For the reasons we have given, we would make orders to the following effect:

(3) The appeal be allowed, the sentences imposed in the District Court be set aside and the appellant be resentenced to:

(4) The sentences on counts 5 and 6 be served cumulatively on the sentence for count 1 and each other, and all other sentences be served concurrently with those sentences and with each other.

(5) The sentence on count 1 and the total effective sentence of 18 years' imprisonment be taken to have effect from 5 August 2015.

[1] ts 412, with a minor exception, referred to below.

[11] ts 410; respondent's submissions par 2.

[12] ts 433 - 434; State's sentencing submissions in the District court, par 9.

[19] Outline of State's sentencing submissions in the District Court, pars 2 - 3.

[20] Pre-sentence report, 23 February 2017, p 2.

[21] Pre-sentence report, 23 February 2017, pp 1 - 2.

[22] Pre-sentence report, 23 February 2017, p 3.

[25] ts 434 - 435; outline of the State's sentencing submissions in the District Court, par 10.

[36] ts 447. There was no ground of appeal alleging that this view revealed an express error.

[50] ts 449; appellant's submissions par 4.

[52] Appellant's submissions [27], appeal ts 5, 8.

[53] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.

[54] MSO v The State of Western Australia [2015] WASCA 78.

[55] Mikulic v The State of Western Australia [2011] WASCA 127.

[58] Zanon v The State of Western Australia [173] - [174].

[59] Penney v The State of Western Australia [2011] WASCA 71.

[60] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.

[62] Respondent's submissions [2] - [5].

[63] Appellant's submissions [25], [30], appeal ts 11, 12.

[66] Respondent 's submissions [33]; appeal ts 13.

[67] The State of Western Australia v Wilson [2015] WASCA 119 [25].

[68] The State of Western Australia v Wilson [26].

[69] Ng v The State of Western Australia [2017] WASCA 124 [35], referring to R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [14], [19]. See also R v Pham [2015] HCA 39; (2015) 256 CLR 550 [34].

[75] Neumann v The State of Western Australia [2013] WASCA 70.

[82] Milenkovski v The State of Western Australia [60].

[83] Rinaldi v The State of Western Australia [2017] WASCA 48.

[88] Santos v The State of Western Australia [2016] WASCA 107.

[90] Chen v The State of Western Australia [2017] WASCA 99.

[91] Ng v The State of Western Australia [2017] WASCA 124.

[92] Ng v The State of Western Australia [33].

[93] Chadburne v The State of Western Australia [2017] WASCA 216.

[94] See Santos, Milenkovski, Chadburne and Chen, all of which were imposed after trial.

[95] Any range would inform but not control the sentencing discretion in a given case; see, for example, the discussion in Allen v The State of Western Australia [2017] WASCA 203 [62] - [65].

[96] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39]; The State of Western Australia v Doyle [2017] WASCA 207 [36].

[97] As to the relevance of those matters, see Munda v The State of Western Australia [33].

[98] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31]; Munda v The State of Western Australia [40]; Director of Public Prosecutions(Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 [10].

[99] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452; The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19].

[100] Giglia v The State of Western Australia [2010] WASCA 9 [40].

[101] See for example, Cummins v The State of Western Australia [2017] WASCA 135 [47]; The State of Western Australia v Doyle [2017] WASCA 207 [25].

[102] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28].

[104] Allen v The State of Western Australia [2017] WASCA 203 [66].

[105] Jarvis v The Queen (1993) 20 WAR 201, 207, 213.

[106] Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46].