BAKER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 117 (27 July 2020)

1. In November 2017, police executed a search warrant at the residence of James Faram. They located a quantity of methylamphetamine and cash, and also obtained Mr Faram's mobile telephone. The mobile telephone contained records of 'WhatsApp' communications between Mr Faram and the appellant. The WhatsApp communications included numerous offers by the appellant to sell or supply methylamphetamine to Mr Faram. The eight counts arose from those communications.
2. Count 1 was an offer to sell 10.5 g of methylamphetamine on 2 February 2017. The messages comprising the offer were in the following terms:[1]

Appellant: Oh wait I got like 3 of the next size down bin

Faram: I meant money haha

Appellant: Yeah 3b

Faram: Need more then that

Offender: K will b tomor then

1. Count 2 was an offer to sell 28 g of methylamphetamine on 20 August 2017. Following enquiry from Mr Faram to the appellant on 14 August 2017 as to whether the appellant had any product, the offer was made in messages on 20 August 2017 in the following terms:

Appellant: Did u sort that thing

Faram: Yea bro

Appellant: How much

Faram: 55

Appellant: Cash up I'll do 55 but don't tell anyone else

1. Count 3 was an offer to sell 112 g of methylamphetamine on 6 September 2017. The messages comprising the offer were in the following terms:

Faram: Hey bro [d]o you have non wet shit ...

Appellant: Yeah. I got this nice dry one big chunks

Faram: How much bro do us good deal ay I can smash it out bro if it's quality and decent price I got rid of 5 or 6 last week alone

Appellant: Yeah sweet I'll throw u 4 of them today if u want. Really good quality

Faram: Yea bro what's the damage

Appellant: Happy with 21k?

Faram: If I grab 4 surely 20. I'll smash it bro

Appellant: Do 20.5 I'm not making much on that. I'm getting next lot cheaper then will do 20

Faram: Yea bro I'm happy with that I'll smash it bro

Appellant: That's the very bottom

Faram: Sweet bro that's what I thought, sorry man

1. Count 4 was an offer to sell 28 g of methylamphetamine on 11 September 2017. The messages comprising the offer were in the following terms:

Faram: You got any left or you gotta reload

Appellant: Easy as. Like 3g. Or I've got 2o actually. Have one of them. Will give u tomor

Faram: Yea mad bro that'll be good if can

1. Count 5 was an offer to sell 56 g of methylamphetamine on 26 September 2017. The messages comprising the offer were in the following terms:

Appellant: How fast are things going? Got 10 left but 4 of these for u

Faram: Yea their going pretty good def save 4 for me I'll come grab them soon I'm just trying to chase one fella and I'll be over

Offender: Easy. How long do U think to move the 4 can I give u 2 this time instead plz

Faram: Prob by Friday they'll be gone but if you just want to give us 2 this time that's alright

1. Count 6 was an offer to sell 84 g of methylamphetamine on 10 October 2017. The messages comprising the offer were in the following terms:

Faram: Gotta come see ya tomorrow. Almost done

Appellant: Easy peasey. I need reload soon how many u think u will need to be finished Saturday/sun?

Faram: I'd prob do 4 by then. Definitely 3

Appellant: Ok [I'll] grab 3

Faram: Sweet bro sounds good

1. Count 7 was an offer to sell 23 g of methylamphetamine on 12 October 2017. The messages comprising the offer were in the following terms:

Faram: So 23 g would be about 41 ay?

Appellant: Yes

Faram: To easy msg you when on way

1. Count 8 was an offer to sell 448 g of methylamphetamine on 20 October 2017. The messages comprising the offer were in the following terms:

Faram: Hey bro can you do 16 cash up and what price

Faram: All good if can't just keep getting hassled

Appellant: 76800 is lowest I can do

Faram: Sweet bro all good for now then but need to see you tonight

1. As we have mentioned, the appellant offered to sell or supply, in total, 789.5 g of methylamphetamine.[2]

1. Before the sentencing judge, in both written and oral submissions, senior counsel for the appellant submitted that the appellant did not have the capacity to supply the 448 g or 16 ounces of methylamphetamine referred to in the messages the subject of count 8.[3] Senior counsel emphasised that count 8 involved a quantity significantly greater than all the other transactions, which were in the range of less than 28 g or 1 ounce up to about 112 g or 4 ounces.[4] As to the price quoted, senior counsel recounted his instructions that the appellant did not have a price from any supplier, and had not asked his supplier for a price. Rather, the appellant had worked out a price, by implication, based on previous sales. He had done that to get Mr Faram 'off his back'.[5] Senior counsel also submitted that it may have been 'a matter of marketing' or that the appellant was 'trying to hold out that he's a bigger wheel in the system than he actually is'.[6]
2. The prosecutor challenged the appellant's contention that he did not have the capacity to supply the quantity of methylamphetamine the subject of count 8.[7] According to the prosecutor, the appellant did have the requisite capacity.[8]
3. The appellant did not give evidence at the sentencing hearing in support of senior counsel for the appellant's submission that the appellant did not have the capacity to supply the quantity of methylamphetamine the subject of count 8.

1. The sentencing judge referred to the increase in the maximum penalty for offering to sell or supply a trafficable quantity of methylamphetamine (that is, a quantity not less than 28 g) that came into effect on 18 September 2017. Thus, the maximum penalty for counts 5, 6 and 8 was life imprisonment and, for the other five counts, was 25 years' imprisonment or a fine of $100,000 or both.[9]
2. His Honour noted that counts 1, 2 and 3 were committed while the appellant was on bail for an offence of wilfully destroying evidence. The appellant was given a suspended sentence of imprisonment for that offence on 8 September 2017. His Honour observed that offending while on bail seriously aggravated the appellant's offending on counts 1, 2 and 3. His Honour noted that the appellant committed count 3 two days before being sentenced for the offence of wilfully destroying evidence and then, three days later, he made a further offer to sell methylamphetamine. His Honour observed that the appellant had demonstrated a breathtaking audacity and disregard for the law.[10]
3. The sentencing judge identified, correctly, that whether the appellant had the capacity to supply the 448 g or 16 ounces of methylamphetamine, the subject of count 8, was not a matter encompassed by the plea of guilty. His Honour assumed, favourably to the appellant, that the appellant's capacity to fulfil the offer was an aggravating factor, so that the onus was on the State to prove it beyond reasonable doubt.[11]
4. His Honour found, without challenge on appeal, that he was satisfied beyond reasonable doubt that at least some of the seven offers preceding count 8 had been fulfilled. His Honour then made the following observations and findings:[12]

The question is whether if Mr Faram was to ask you to provide him with 16 ounces, whether you would claim an ability to comply with that request by indicating the lowest price that you would be able to sell such a quantity for, a price which is consistent with the known price for that quantity in circumstances where you knew that you did not in fact have access to such a large amount of drugs and therefore would inevitably disappoint Mr Faram.

There was - and as I've noted in discussions with the prosecutor, Ms Lynch, an almost immediate response by you to Mr Faram's request. Twenty‑one minutes lapsed between the request and the offer. You had offered to provide a lesser sum that Mr Faram was seeking in the past, for example, offering to supply an ounce rather than a [sic] four on 26 September at count 5 - correction, offering to sell two ounces rather than four ounces on that day.

There is no reason, it seems to me, for you to wish to get Mr Faram off your back as on instructions it is submitted. That suggests that he was a pest or a nuisance. He was not. He was on the face of it a source of funds for you, enabling you to achieve funds which you were to put into your failing business.

For each count, including count 8, I am inferentially satisfied beyond reasonable doubt that you had the capacity to fulfil terms of the offer that you made. Therefore, over a period of eight and a half months you offered to supply Mr Faram with a total of 789.5 grams and you had the capacity to source that - those individual amounts making up that total.

It is not necessary for me to make a finding as to whether all of the offers giving rise to the eight counts were fulfilled but I'm satisfied beyond reasonable doubt that at least the majority were.

1. The sentencing judge outlined a number of general principles relevant to sentencing for offending of this type, together with matters specifically relevant to the appellant.[13]
2. His Honour referred to submissions concerning the hardship experienced by the appellant while in custody, and mentioned what had been said about that matter in the appellant's written submissions.[14] His Honour then said:[15]

You were the subject of a standover attempt by persons - prisoners, obviously - associated with an outlaw motorcycle gang in March of last year. You were assaulted, and that has meant that since that time you are what's described as an escort prisoner, so you cannot be moved without staff accompanying you.

For some reason conditions have worsened, from your perspective, since February of this year, so that for the last eight months - sorry, for the last five months or so you have been held in isolation/protection conditions, which are described as extremely restrictive, restricting you to one phone call a day, one shower a day and being fed through your cell hatch.

You hope that once you are sentenced you will be transferred to the Eastern Goldfields Regional Prison where the regime will be less onerous in terms of your freedom of movement, within reason, obviously, and your access to exercise and education, but the down side of that is that the ability for you to have visits from family will be reduced because of the geographical distance.

Now, none of the assertions set out in the written submissions on your behalf were disputed by the State, so I approach matters on the basis that what is set out in the written submissions reflects the reality of your detention or the circumstances of your remand in custody since firstly March of last year and then, more latterly, February of this year.

1. The sentencing judge referred to the principles stated in Milenkovski v The State of Western Australia.[16] His Honour paraphrased what Buss P said at [151] ‑ [155], including that:[17]

[G]reater leniency or a larger discount will ordinarily be given to an offender who is at risk of reprisals from other criminals held in prison because of the offender's cooperation with law enforcement authorities than an offender who is at risk of reprisals because of grudges arising in the context of the illegal activities of rival criminal gangs.

And you fall between those two poles, it seems to me. There's no risk of reprisal because of cooperation with law enforcement; there has been none, but nor can it be said that you are suffering from reprisals because of your own illegal activity as part of a rival criminal gang. Rather, finding yourself in prison, you have been subjected to the unwelcome attentions of those associated with an illegal criminal gang.

1. After further discussion of Milenkovski, the sentencing judge concluded that he should take into account the more arduous circumstances of the appellant's detention in considering the appropriate length of sentence.[19]

1. The appellant relies upon two grounds of appeal.
2. Ground 1 alleges, in essence, that it was not reasonably open to the sentencing judge to be satisfied beyond reasonable doubt that the offer the subject of count 8 was 'a genuine offer'.
3. However, it became apparent at the hearing of the appeal that counsel for the appellant's real contention, in the context of ground 1, was that it was not reasonably open to his Honour to be satisfied beyond reasonable doubt that the appellant had the capacity to supply the quantity of methylamphetamine the subject of count 8. At the hearing, ground 1 was argued on that basis by counsel for the appellant and counsel for the State. Consequently, we will deal with ground 1 as though it alleged that it was not reasonably open to his Honour to be satisfied beyond reasonable doubt that the appellant had the capacity to supply 448 g or 16 ounces of methylamphetamine in fulfilment of the offer.
4. Ground 2 alleges, in essence, that the sentencing judge's discretion miscarried in that his Honour found that the appellant had 'contributed himself toward the need for him to be the subject of special conditions whilst imprisoned'.
5. On 1 November 2019, Buss P referred the application for leave to appeal to the hearing of the appeal.
6. It is convenient, first, to consider ground 2 and then to deal with ground 1.

1. Ground 2 is without merit and should not have been advanced. As counsel for the appellant ultimately accepted, the sentencing judge did not make the finding asserted in ground 2.[20] It is clear that his Honour gave the appellant some credit for the 'more arduous circumstances' of his detention.[21] Although conceding that his Honour did not make the impugned finding, counsel for the appellant did not expressly abandon ground 2. We would refuse leave to appeal on this ground.

Ground 1: the relevant principles of law governing the fact‑finding process for the purposes of passing sentence

1. Where an offender is convicted on his or her plea of guilty, the plea necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill.[22] The plea also negatives all defences. See Schugman v Menz.[23] A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill (312). It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. See Law v The State of Western Australia.[24]
2. An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must establish an aggravating circumstance beyond reasonable doubt and the offender must establish a mitigating circumstance on the balance of probabilities. See R v Storey;[25] R v Olbrich;[26] Law [25] ‑ [34]; s 7 and s 8 of the Sentencing Act 1995 (WA).
3. If the sentencing judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban;[27] Bomford v The State of Western Australia.[28]

Ground 1: the issue raised before the sentencing judge as to the appellant's capacity to supply the quantity of methylamphetamine the subject of count 8

1. Prior to the sentencing hearing, senior counsel for the appellant filed written submissions dated 22 July 2019 in relation to the sentencing. In par 11 of those submissions, senior counsel submitted that the appellant 'did not in truth have access to amounts as high as the 16 ounces as referred to by Mr Faram in one of the messages'. The 16 ounces was referred to by Mr Faram in the messages relating to count 8.
2. On 23 July 2019, the prosecutor and senior counsel for the appellant made submissions to his Honour in relation to sentencing.
3. At the sentencing hearing, the prosecutor read aloud the material facts alleged by the State in relation to each count in the indictment. Those material facts did not include an assertion that the appellant had the capacity to supply 448 g or 16 ounces of methylamphetamine in fulfilment of the offer the subject of count 8.
4. At the hearing, the following exchange occurred between the sentencing judge and senior counsel for the appellant in relation to the assertion in par 11 of senior counsel's written submissions that the appellant did not have access to 448 g or 16 ounces of methylamphetamine:[29]

FREITAG, MR: [The appellant] says, 'Look, I could never have got 16 ounces. That was out of the ball park of what I was able to achieve from the person I was getting the drugs from,' and it seems out of the range by a significant margin of all of the other transactions. They're in sort of a range of less than one ounce through to perhaps four ounces.

TROY DCJ: Yes.

FREITAG, MR: That seems to be - and there's a - more so in the one to two-ounce range, perhaps, but there's certainly that range of under one through to four. So to go up to 16 seems somewhat of a jump and out of the usual behaviour of Mr Baker during this period.

What he says is, and I've referred to it in the message, is Mr Baker quotes a price. He said he just, you know, added a figure. He didn't have a figure from a supplier, he didn't ask the supplier. He simply says that's, you know, something that he worked out and he thought it would get Mr Faram off his back, and Mr Faram then says:

'Sweet, bro. All good for now then but need to see you tonight.'

So Faram's not saying, 'Great. I'll take 16 ounces,' or, 'It's a go,' or, 'Green light,' or, 'I can get that, bro,' or anything of that sort. Faram's asking, Mr Baker just gives him a number, but there's no effort by anybody to actually get this transaction off the ground.

TROY DCJ: Why would he need to get Mr Faram off his back?

FREITAG, MR: Well, because Mr Faram's just asking him about this particular figure ...

TROY DCJ: Sure.

FREITAG, MR: He's not - he just gives him something in response. He doesn't ever go to the supplier and get that amount, or try and get that amount. He says he just didn't think he'd ever be capable of that. I'm not suggesting he's got a moral objection to supplying that quantity and if it had been available he wouldn't have done it. I'm not suggesting that he's too good a person to be engaged in that level of transaction, I'm just saying as a matter of practicality his instructions were that wasn't the level of transaction he was engaged in.

TROY DCJ: But nonetheless that's what he represented to Mr Faram.

FREITAG, MR: It's clear in the WhatsApp messages that he did put a price there for Mr Faram - - -

TROY DCJ: Sure, and - - -

FREITAG, MR: - - - but he says that's - - -

TROY DCJ: Sorry - and not just put a price but indicated a willingness to supply him with that quantity at a particular price that appears to be proportionate to the quantity, and the question is, if he didn't have the ability to fulfil that offer why would he have said to Mr Faram that he did?

FREITAG, MR: And, your Honour, the reason he's pleaded guilty to count 8 is because of the words used, because he says in there:

'76,800 is the lowest I can do.'

TROY DCJ: Sure.

FREITAG, MR: So it obviously, in its wording, constitutes an offer, and hence - - -

TROY DCJ: It does, but - - -

FREITAG, MR: Hence the plea of guilty.

TROY DCJ: Sure, but that's not the point. The point is, why would he have made an offer to that extent to Mr Faram, with whom he had been dealing on an ongoing basis since February, unless he had the capacity to fulfil that offer?

FREITAG, MR: And that's a fair question to ask. Mr Baker simply says, 'I didn't have that capacity. I just gave Faram a figure and never made any inquiries beyond that. Never went back to the supplier to ask. It just wasn't what I was capable of doing'.

TROY DCJ: Yes.

FREITAG, MR: But I don't know whether it's a matter of marketing or trying to hold out that he's a bigger wheel in the system than he actually is.

Your Honour talked about a hierarchy. Mr Baker has, what he would say, is that's his spot in the hierarchy and he's not able to do more than that. He doesn't go down to the retail level. He's not out on the street corner looking for customers.

He's primarily dealing with Mr Faram and he says, 'Look, that was my range, that was what I was doing at that time'. So I don't know that I can assist your Honour more than that.

1. After that exchange between the sentencing judge and senior counsel for the appellant, the prosecutor made submissions in response. The prosecutor submitted that:[30]

(a) the State did not have to prove that the offer the subject of count 8 was fulfilled;

(b) the State did not know whether or not the offer the subject of count 8 had been fulfilled;

(c) however, the offer the subject of count 8 was made and the State did not accept that the appellant did not have the capacity to supply the relevant quantity (that is, 448 g or 16 ounces);

(d) the terms of the offer, as recorded in the WhatsApp messages, indicated that the appellant 'had the ability to supply that amount of methylamphetamine for that price';

(e) the fact that the appellant quoted a price indicated that the appellant 'would have had [the] capacity to fulfil that offer, if required'; and

(f) the text messages the subject of the counts in the indictments showed that the appellant had access to large quantities of methylamphetamine.

1. Our assessment of the record of the proceedings before his Honour is that:

(a) Senior counsel for the appellant raised before his Honour the issue as to the appellant's capacity to supply the quantity of methylamphetamine the subject of count 8.

(b) Senior counsel for the appellant contended, in effect, that the appellant's offending in relation to count 8 was mitigated because he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine.

(c) The prosecutor responded to that assertion by contending, in effect, that the appellant did have the actual capacity at all material times to sell or supply the quantity of methylamphetamine the subject of count 8. The prosecutor did not respond merely by contending that the appellant had not established on the balance of probabilities that he did not have the actual capacity at any material time to sell or supply the quantity of methylamphetamine the subject of count 8.

1. It was necessary for the appellant to make out the contention at [48(b)] above on the balance of probabilities and for the State to make out the contention at [48(c)] above beyond reasonable doubt.

Ground 1: the sentencing judge's findings as to the appellant's capacity to supply the quantity of methylamphetamine the subject of count 8

1. The sentencing judge said in his sentencing remarks that he had considered the issue raised in par 11 of the appellant's written submissions, namely that the appellant did not have the capacity to fulfil the offer the subject of count 8.[31]
2. His Honour then said that the facts 'necessarily implicit from [the appellant's] guilty plea on [count 8]' were that the appellant offered to sell or supply a quantity of methylamphetamine to Mr Faram with the intention that Mr Faram should regard the offer 'as a serious one'.[32]
3. The sentencing judge observed that 'whether [the appellant had] an actual capacity ... to provide' the 448 g or 16 ounces of methylamphetamine had to be decided by his Honour.[33]
4. His Honour then observed that, 'on the assumption that [the existence of an actual capacity is an aggravating factor]', it was necessary for the actual capacity to be established by the State beyond reasonable doubt.[34]
5. After reviewing the content and timing of the WhatsApp messages between the appellant and Mr Faram in relation to all of the counts, the sentencing judge concluded in relation to count 8 that he was 'inferentially satisfied beyond reasonable doubt that [the appellant] had the capacity to fulfil [the] terms of the offer'.[35]
6. His Honour imposed sentence on count 8 on the basis that the appellant's capacity to supply 448 g or 16 ounces of methylamphetamine in fulfilment of the offer was an aggravating factor.
7. Our assessment of the record of the sentencing proceedings before the sentencing judge is that:

(a) His Honour proceeded to make findings of fact and to sentence the appellant in relation to count 8, in effect, on the basis that the issue raised by senior counsel for the appellant and the prosecutor in their submissions was whether the appellant had the actual capacity at all material times to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram.

(b) His Honour addressed that issue on the assumption that the existence of an actual capacity to fulfil the offer the subject of count 8 was an aggravating factor which the State had to prove beyond reasonable doubt.

(c) His Honour's finding beyond reasonable doubt that the appellant had the actual capacity at all material times to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram necessarily dismissed senior counsel for the appellant's contention that the appellant's offending in relation to count 8 was mitigated because he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine.

Ground 1: the offender's actual intention and actual capacity to sell or supply in the context of the offence of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c) of the MD Act

1. The offence of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c) of the MD Act, is complete even if the offeror did not, or did not intend to, sell or supply a prohibited drug. The offence is complete upon the offeror making an offer to sell or supply a prohibited drug with the intention that the offer be regarded by the offeree as genuine. See Tsagaris v The Queen;[36] Floyd v The State of Western Australia.[37]
2. Where a person is charged with offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), it is not necessary for the prosecution to prove that the accused actually intended to sell or supply the prohibited drug. The relevant intention is the accused's intention that the offer be regarded by the offeree as genuine. The relevant intention is not the accused's intention actually to sell or supply. The relevant intention of the accused is bound up with the making of the offer itself. See R v Dendic;[38] R v Addison;[39] R v Swan;[40] Aoun v The Queen.[41]
3. Whether an offeror has the capacity to fulfil the offer to supply is one of a number of factors that may be relevant to the seriousness of an offence of offering to sell or supply a prohibited drug. See Tirkot v The State of Western Australia.[42]
4. Where a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and the prosecution contends, in effect, at the sentencing hearing that the offender actually intended to sell or supply or had the actual capacity to sell or supply the prohibited drug, that contention is a matter of aggravation which the State must prove beyond reasonable doubt. See R v Puciarello;[43] Aoun [6] ‑ [7], [44] ‑ [66].
5. Where a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and the offender contends, in effect, at the sentencing hearing that he or she did not actually intend to sell or supply or did not have the actual capacity to sell or supply the prohibited drug, that contention is a matter of mitigation which the offender must prove on the balance of probabilities. See Puciarello. See also McKibben v The Queen.[44]
6. If a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and neither the prosecution nor the offender makes any contention at the sentencing hearing in relation to whether the offender actually intended to sell or supply or had the actual capacity to sell or supply the prohibited drug, the facts of the offending should be taken at face value. The offender should be sentenced on the basis that the offender intended to sell or supply the prohibited drug in accordance with the terms of the offer, but was denied the opportunity of doing so before his or her arrest. See McKibben [16]; Aoun [51], [57] ‑ [58].

1. Prior to the commission of count 8, the largest offer made by the appellant was for the sale or supply of 112 g or 4 ounces of methylamphetamine. It can properly be inferred, from the tone and content of the communications between the appellant and Mr Faram, that at least most of the seven preceding offers had resulted in an actual supply of drugs. The sentencing judge made that finding and it is not challenged on appeal.
2. If subsequent communications had demonstrated that the offer the subject of count 8 was fulfilled, then the appellant's capacity would, of course, have been demonstrated. But that was not the case. There is no evidence that the offer the subject of count 8 was fulfilled. If anything, the proper inference is that the offer was not fulfilled, given that the parties did not communicate on WhatsApp about the offer again during the three week period between 20 October 2017, when the offer was made, and 10 November 2017, when the search warrant was executed at Mr Faram's residence and Mr Faram's mobile telephone obtained.
3. As to the appellant's assertion, in his plea in mitigation, that he had made the offer the subject of count 8 knowing that he could not fulfil it, the sentencing judge was entitled to reject the assertion and to be satisfied beyond reasonable doubt of the contrary. That is so, in our opinion, substantially for the reasons given by his Honour. Having regard to the course of dealings between appellant and Mr Faram, it would make no sense for the appellant to have made an offer if he knew that he could not fulfil it. Mr Faram said that if the appellant was unable to supply 16 ounces, that was 'all good'. Rather than so indicating, the appellant promptly responded affirmatively to Mr Faram's request.[45] The appellant would have had nothing to gain by telling Mr Faram that he could supply 16 ounces, only to have to inform him subsequently that he was unable to do so. His Honour was entitled to be satisfied beyond reasonable doubt that when the appellant made the offer the subject of count 8, he believed that he had the capacity to fulfil it.
4. However, the appellant's belief that he had capacity is not to be equated with capacity in fact.
5. The totality of the matters having a tendency to indicate that the appellant did, in fact, have the capacity to supply 448 g or 16 ounces of methylamphetamine are:

(a) the fact that the appellant fulfilled at least most of the preceding offers, which related to quantities of 1 ‑ 4 ounces;

(b) the occasion when the appellant told Mr Faram, in the course of committing the offence the subject of count 5, that he had 10 ounces in his possession; and

(c) the appellant's belief that he had the capacity to supply 16 ounces.

1. In our opinion, the totality of those matters falls short of establishing beyond reasonable doubt that the appellant in fact had the requisite capacity. The appellant's belief carries some weight, since he was aware of his history and his discussions with his supplier(s). However, his belief may have been unduly optimistic or ill‑founded. There is a significant difference between the scale of the previous offers and that of count 8. Consequently, the fulfilment of those previous offers is of limited assistance in proving the appellant's capacity to fulfil the offer the subject of count 8. The appellant's assertion that he possessed, at one point, 10 ounces is an insecure foundation for inferring that he had the capacity to supply 16 ounces at the time when he made the offer the subject of count 8.
2. We are therefore of the opinion that it was not open to his Honour to be satisfied beyond reasonable doubt that the appellant had the capacity to supply the 448 g or 16 ounces the subject of count 8. His Honour erred in making that finding.
3. Ground 1 has been made out.

1. In Kentwell v The Queen,[46] French CJ, Hayne, Bell and Keane JJ explained that when a sentencing judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination of the sentence, mistakes the facts or does not take into account some material consideration, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing judge's discretion has miscarried. It is the appellate court's duty to exercise the discretion afresh, subject to the applicable criminal appeals statute, the provisions of the applicable sentencing legislation and any other statute or rule of law, as required or permitted. Their Honours did not suggest that a sentencing judge's discretion will miscarry if the judge makes an 'immaterial' error of fact or law.
2. In the present case, the sentencing judge's finding, based on inference, that he was satisfied beyond reasonable doubt that the appellant had the actual capacity at all material times to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram, was an aggravating factor of significance. We are satisfied that his Honour's erroneous finding, on the criminal standard of proof, was capable of affecting the actual sentence his Honour imposed for count 8 and the actual total effective sentence his Honour imposed. His Honour's error was therefore 'material' in the relevant sense. His Honour's discretion miscarried, irrespective of whether and to what extent the error actually influenced the outcome. See Kentwell [42].
3. Section 31(3) of the Criminal Appeals Act 2004 (WA) provides that, unless under s 31(4), this court allows an appeal against sentence, this court must dismiss the appeal.
4. By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
5. Section 31(5) provides that if this court allows an appeal against sentence, it must set aside the sentence and:

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

1. It is the duty of this court to exercise the sentencing discretion afresh in deciding whether a different sentence should have been imposed. See Kentwell [42] ‑ [43]. This court has the material necessary to exercise the sentencing discretion afresh.
2. In the present case, after the hearing of the appeal, this court requested supplementary written submissions from the appellant and the State in relation to whether, if ground 1 was made out:

(a) the appellant should be permitted to adduce additional evidence (for example, sworn or affirmed evidence from the appellant) in support of senior counsel for the appellant's contention before the sentencing judge that the appellant's offending in relation to count 8 was mitigated because he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram;

(b) the proper conclusion on the material before his Honour, based on inference, is that the appellant has not established, on the balance of probabilities, that he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram; and

(c) if this court is of the opinion that the proper conclusion on the material before his Honour, based on inference, is that the appellant has not established, on the balance of probabilities, that he did not have the actual capacity at any material time to sell or supply that quantity of methylamphetamine to Mr Faram, different individual sentences and a different total effective sentence should have been imposed.

1. On 17 June 2020, the appellant filed supplementary written submissions in accordance with this court's request. On 25 June 2020, the State filed supplementary written submissions in accordance with this court's request.
2. The appellant stated in his supplementary written submissions that he did not seek to adduce additional evidence in support of senior counsel for the appellant's contention before the sentencing judge that the appellant's offending in relation to count 8 was mitigated because he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram.
3. We consider that the proper conclusion on the material before his Honour, based on inference, is that the appellant has not established, on the balance of probabilities, that he did not have the actual capacity at any material time to sell or supply 448 g or 16 ounces of methylamphetamine to Mr Faram. Although, as we have mentioned, the totality of the matters referred to at [67] above falls short of establishing, beyond reasonable doubt, that the appellant in fact had the capacity to supply 448 g or 16 ounces of methylamphetamine, those matters do indicate, in combination, that there was at least a significant prospect that the appellant could have acquired 448 g or 16 ounces of methylamphetamine and supplied it to Mr Faram. The matters relied upon by senior counsel for the appellant in his written and oral submissions before the sentencing judge do not, either alone or together, support an inference, on the balance of probabilities, that the appellant did not have the requisite capacity. On appeal, counsel for the appellant did not refer to any other matters that enhanced the appellant's argument on the point.
4. We have previously mentioned the maximum penalties for the counts in the indictment.
5. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant. All of these propositions are well-established by the case law.
6. In Tirkot, this court rejected the proposition that completed sales of prohibited drugs are always or necessarily more serious than offers to sell or supply prohibited drugs because completed sales usually involve the dissemination of prohibited drugs into the community. The court said:[47]

The seriousness of any offence against s 6 of the Misuse of Drugs Act 1981 (WA) must be evaluated by reference to all of the circumstances of the offending. The appellant's universal proposition as to the comparative seriousness of an offence of offering to sell and an offence of selling cannot be accepted. While it is generally of some relevance that an offence of offering to sell does not involve the supply of drugs, 'its relevance will depend upon the reason the offer did not come to fruition' (Bahn v The State of Western Australia [2008] WASCA 40 [38]). Indeed, that observation proceeds on the assumption that the offer did not come to fruition. While in an offence of offering to sell, it cannot be assumed that the offer came to fruition in the form of a sale, equally it cannot necessarily be assumed that the offer did not result in a sale. The position may simply be unknown.

Many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug. Among the factors that will often be relevant are (The State of Western Australia v Doyle [2017] WASCA 207 [32], quoting Vu v The Queen [2006] NSWCCA 188 [89]):

(a) The terms of the offer, in particular as to the quantity of a drug, its price, etc.

(b) Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.

(c) Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.

(d) Whether the offeror, at all material times, had the intention to fulfil the offer.

(e) Whether the offeror had the capacity to fulfil the offer to supply.

(f) Whether the offeror attempts to fulfil the order. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.

See also Slade v The State of Western Australia.[48]

1. In the present case, the appellant's offending in relation to the counts in the indictment was very serious. The appellant was carrying on a business of drug dealing for profit. The quantities of methylamphetamine in which he was dealing were significant. As we have mentioned, the sentencing judge was satisfied beyond reasonable doubt that at least some of the seven offers preceding count 8 had been fulfilled. The appellant is to be sentenced in relation to the offers that were not fulfilled (including count 8) on the basis that he intended to sell or supply the methylamphetamine in accordance with the terms of the offers, but was denied the opportunity of doing so before his arrest. See [62] above. As we have mentioned, there was at least a significant prospect that the appellant could have acquired the 448 g or 16 ounces of methylamphetamine the subject of count 8 and supplied it to Mr Faram. Counts 1, 2 and 3 were committed while the appellant was on bail for another offence.
2. We have considered the sentencing outcomes in a range of cases involving offers to sell or supply a prohibited drug to another, contrary to s 6(1)(c) of the MD Act. See, in particular, Hobby v The State of Western Australia;[49] TXT v The State of Western Australia;[50] The State of Western Australia v Doyle;[51] Le v The State of Western Australia;[52] Labrook v The State of Western Australia;[53] ENR v The State of Western Australia;[54] Tirkot; Slade; Law v The Queen;[55] and Winder v The State of Western Australia.[56] None of those cases is truly comparable to the appellant's offending.
3. The appellant was aged 31 or 32 at the time of the offending and was aged 34 when sentenced by his Honour. He was not youthful or inexperienced for sentencing purposes.
4. The information before the sentencing judge included a pre‑sentence report dated 1 May 2019. The author of the report said that the appellant's dysfunctional personality, substance misuse, poor choice of companions, antisocial pattern of behaviour, poor problem solving skills and poor coping skills had been identified as contributing factors in his offending behaviour. The author noted that the appellant has a history of self‑harm during periods of crisis and episodes of drug induced psychosis. In 2012, Dr Victoria Pascu, a consultant psychiatrist, had diagnosed the appellant as having 'an underlying mixed personality disorder with marked borderline and antisocial traits, significantly complicated by polysubstance abuse'. The author of the pre‑sentence report said that the appellant's drug use is entrenched and warrants intensive intervention.
5. The appellant has a substantial prior criminal record. Although his previous convictions and the failure of previous sentences to achieve the purpose for which they were imposed did not aggravate the offending in question, the previous convictions demonstrate that the appellant is not ordinarily of good character. The appellant's previous convictions include a conviction in 2008 for possession of MDMA, with intent to sell or supply it to another, which underscores the importance of personal deterrence.
6. There were some mitigating factors. The principal mitigating factor was the appellant's pleas of guilty. The other mitigating factors included the appellant's constructive work in the past in the community and the efforts he has made towards his own education and personal development. Like his Honour, we would reduce the head sentence of imprisonment we would otherwise have imposed by 10%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of each plea. We would also reduce the sentences we would otherwise have imposed to recognise the other mitigating factors. We would further reduce the sentences we would otherwise have imposed to recognise the special conditions in which the appellant has been held and will likely be held while in custody.
7. After taking into account the maximum penalties for the offences; the facts and circumstances of the offending; the seriousness of the offending; the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending; all aggravating and mitigating factors; and all other relevant sentencing factors including the appellant's personal circumstances and antecedents, we would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment in respect of the eight counts in the indictment as follows:

1. We have reduced the sentence of immediate imprisonment for count 3 from 5 years to 2 years in the application of the totality principle.
2. As the table set out at [90] above reveals, we would order that the new sentence for count 8 be the head sentence; the new sentence for count 3 be served cumulatively upon the new sentence for count 8; and that all of the other new sentences be served concurrently with each other and concurrently with the new sentence for count 8. The total sentence in respect of the eight counts in the indictment is therefore 8 years' imprisonment.
3. Like the sentencing judge, we are satisfied that it would not be unjust to require the appellant to serve the sentence of 12 months' imprisonment that was conditionally suspended on 8 September 2017 and which the appellant breached by his offending on counts 4, 5, 6, 7 and 8. Like his Honour, we would order that the sentence of 12 months' imprisonment be served cumulatively upon the new total sentence of 8 years' imprisonment in respect of the eight counts in the indictment. The new overall total effective sentence is therefore 9 years' imprisonment. See, generally, s 84F of the Sentencing Act; Hall v The Queen.[57]
4. The new overall total effective sentence of 9 years' imprisonment should be taken to have taken effect on 12 February 2018. Like his Honour, we would make a parole eligibility order. The appellant will be eligible to be considered for release on parole when he has served 7 years in custody calculated from 12 February 2018.

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

[1] The transcript of the prosecutor's outline of this and the other messages was not entirely clear and appeared to have some errors. What is quoted in these reasons is taken directly from the transcript of the WhatsApp messages, which was part of the prosecution brief.

[3] Written sentencing submissions dated 22 July 2019 [11]; ts 77.

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

[22] R v Hill [1979] VicRp 33; [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ).

[23] Schugman v Menz [1970] SASR 381, 381 ‑ 382 (Bray CJ).

[24] Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA; McLure & Pullin JJA agreeing).

[25] R v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

[26] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

[27] R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing).

[28] Bomford v The State of Western Australia [2013] WASCA 153 [22] (Buss JA; Mazza JA agreeing).

[36] Tsagaris v The Queen (Unreported, WACCA, Library No. 980721, 14 December 1998).

[37] Floyd v The State of Western Australia [2013] WASCA 33 [13] (McLure P; Newnes and Mazza JJA agreeing).

[38] R v Dendic (1987) 34 A Crim R 40, 45 (Street CJ; Slattery CJ at CL & Wood J agreeing).

[39] R v Addison (1993) 70 A Crim R 213, 217 (Gleeson CJ; Finlay & Grove JJ agreeing).

[40] R v Swan [2003] NSWCCA 318; (2003) 140 A Crim R 243 [12] ‑ [18] (Howie J; Barr & Greg James JJ agreeing).

[41] Aoun v The Queen [2011] NSWCCA 284 [44] (Johnson J; Basten JA & Adams J relevantly agreeing).

[42] Tirkot v The State of Western Australia [2018] WASCA 41 [53] (Buss P, Beech JA & Hall J).

[43] R v Puciarello (Unreported, NSWCCA, 4 June 1990).

[44] McKibben v The Queen [2007] NSWCCA 89 [16] (Howie J, Simpson & Hislop JJ agreeing).

[45] The appellant's response was 21 minutes after Mr Faram's enquiry.

[46] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42].

[48] Slade v The State of Western Australia [2019] WASCA 65 [40].

[49] Hobby v The State of Western Australia [2009] WASCA 108.

[50] TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266.

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

[52] Le v The State of Western Australia [2015] WASCA 73.

[53] Labrook v The State of Western Australia [2016] WASCA 127.

[54] ENR v The State of Western Australia [2018] WASCA 9.

[55] Law v The Queen [2019] WASCA 81.

[56] Winder v The State of Western Australia [2020] WASCA 30.

[57] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [31] ‑ [34].