Criminal law - Appeal against sentence - Appellant carrying on a drug dealing business - Offences committed while on bail for other drug-dealing offences - Whether total effective sentence of 8 years' imprisonment infringes the first limb of the totality principle

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

Bees v The State of Western Australia [2017] WASCA 202

Birch v The State of Western Australia [2011] WASCA 101

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

Chu v The State of Western Australia [2012] WASCA 135

Clarke v The State of Western Australia [2018] WASCA 190

Doherty v The State of Western Australia [2014] WASCA 142

Formica v The State of Western Australia [2013] WASCA 237

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

Jneid v The State of Western Australia [2018] WASCA 67

Le v The State of Western Australia [2014] WASCA 120

Lear v The State of Western Australia [2015] WASCA 90

Lenton v The State of Western Australia [2017] WASCA 224

RIN v The State of Western Australia [2015] WASCA 51

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

The State of Western Australia v Hunter [2014] WASCA 87

The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110

Trajkoski v The State of Western Australia [2018] WASCA 176

Wilson v The State of Western Australia [2010] WASCA 82

1. The appellant was sentenced, on her plea of guilty, to a total effective sentence of 8 years' imprisonment in respect of:

(1) three counts of possession of a prohibited drug with intention to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA); and

(2) once count of possession of a thing capable of being stolen that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).

1. The offending involved the appellant's possession of a total of 232.6 g of methylamphetamine ranging in purity from 71 - 89%, 2.72 g of MDMA and $33,690 cash reasonably suspected to be unlawfully obtained. The offences were alleged to have been committed on 14 November 2015 and 19 June 2016, the latter occasion being when the appellant was on bail. The particular offences and sentences are set out in the following table:

Possession of methylamphetamine (108.7 g) with intent

Possession of unlawfully obtained property ($33,690 cash)

Possession of methylamphetamine (123.9 g) with intent

1. The appellant appeals against these sentences on the sole ground that the total effective sentence infringes the first limb of the totality principle. The appellant expressly does not challenge any of the individual sentences.[1]
2. For the following reasons, the appeal must be allowed, and the appellant resentenced to a total effective sentence of 6 years 6 months' imprisonment.

1. At about 9.00 am on Saturday 14 November 2015, police executed a search warrant at an address in Kelmscott, where the appellant was living in an old bus parked at the side of the property. They located a box amongst the bedclothes, in which were three small bundles of methylamphetamine wrapped in tissue and secured with a rubber band. The bags contained 27.4 g (83% purity), 27.3 g (75% purity) and 27.4 g (82% purity) of methylamphetamine. Two tablets of MDMA were also located.
2. During the search, the appellant admitted that the tablets were MDMA, but denied using that drug. The appellant said that she:

(1) expected the bundles to contain methylamphetamine;

(2) came into possession of the methylamphetamine on the previous night or during the early hours of that morning;

(3) had been provided with the methylamphetamine 'on tick' and did not know what to do with it;

(4) used methylamphetamine daily, but was unable to quantify her use;

(5) believed that an ounce of methylamphetamine was currently (at that time) worth about $10,000;

(6) knew that the bundles each weighed an ounce because she had weighed one of them and had four bundles in total;

(7) assumed that the methylamphetamine was worth about $40,000; and

(8) opened one of the bundles and used some of the methylamphetamine.

1. Police subsequently located a fourth bundle containing 26.6 g (83% purity) methylamphetamine. The total amount of methylamphetamine found in the appellant's possession on this occasion was 108.7 g. The possession of this methylamphetamine was the subject of count 1 on the indictment.
2. Police also located other items, including a clipseal bag containing 8.21 g of cannabis (which the appellant said she did not use, and did not know what to do with), clipseal bags and elastic bands.
3. The appellant was charged with offences including what became count 1, and was subsequently released on bail.
4. At about 3.00 am on 19 June 2016, police in Kelmscott stopped a Nissan vehicle with an expired registration. The appellant was the driver and sole occupant of the vehicle. The Nissan was loaded with suitcases and bags stuffed with personal belongings.
5. Police officers undertook a preliminary search of the vehicle and located four large bundles of $50 and $100 notes, totalling $33,690, in the centre console of the vehicle. The cash is the subject of count 3 on the indictment. Police also located the following other items in the vehicle:

(1) Six smoking implements, one of which had traces of white powder on its surfaces and was also located in the centre console.

(2) Four mobile phones located in the appellant's handbag.

(3) Four sets of scales on which there were detectable traces of prohibited drugs.

1. A further search of the appellant's vehicle was undertaken on the following morning using drug detection dogs. A magnetic box was located under a panel beneath the driver's door. It contained:

(1) A total of 123.9 g of white crystalline methylamphetamine powder, in twelve clipseal bags containing between 1.73 g and 28 g of powder ranging in purity between 71% and 89%.

(2) 0.5 g of MDMA powder, and a total of eight MDMA tablets, in clipseal bags weighing a total of 2.72 g.

(3) 20 capsules containing lisdexamphetamine dimesylate in a clipseal bag.

(4) 46 capsules containing dexamphetamine sulphate in a clipseal bag.

(5) 65 tablets containing dexamphetamine sulphate in a clipseal bag.

1. The MDMA referred to above was the subject of count 2 on the indictment, the cash was the subject of count 3 and the methylamphetamine was the subject of count 4.

1. The appellant was 38 years old at the time of offending and 40 years old at the time of sentence.
2. The appellant was born in Armadale, Western Australia, and was raised with two sisters and a brother. She was subjected to traumatic incidents between the ages of 7 - 8 which were not disclosed at that time. She left school at the beginning of year 11, and worked as a manager at a supermarket; then nightshifts at an alcohol warehouse; and then for 14 years at an automotive parts retailer.
3. When the appellant was 20 years old, her mother told her the man who the appellant regarded as her father was actually her step-father, which the appellant found quite upsetting.
4. The appellant's only long-term intimate relationship was with her former husband, who she met when aged 15 years old. He left the appellant to pursue a same-sex relationship when she was about 28 years old. At that time, they had been married for 6 years and had a 3-year-old daughter. The appellant was left to raise their daughter.
5. Some years after her marriage ended, the appellant was finding it increasingly difficult to make ends meet as a single mother. She was using methylamphetamine recreationally every two weeks or so. This particularly occurred when the appellant associated with her sister, who was a methylamphetamine user.
6. After her sister was subsequently imprisoned, the appellant's mood deteriorated and she started using increased amounts of methylamphetamine in an attempt to cope. The appellant began to sell methylamphetamine when she lost her money at the casino and was unable to pay her drug bills. Her increased methylamphetamine use led to her resigning from her employment. The appellant was evicted from her home. She sent her daughter to live with the child's father and started living in her car. In the 3 years prior to her incarceration, the appellant was smoking methylamphetamine daily while also selling methylamphetamine. She has been incarcerated since her arrest in June 2016.
7. The appellant did not suffer from any mental illness.
8. The appellant's only convictions prior to May 2016 were for traffic and minor drug offences, for which she received fines. The minor drug offences, which occurred in 2015 and 2016, involved charges of simple possession and possession of drug paraphernalia. She was sentenced for the offences which are the subject of the current appeal on 16 January 2018. On 13 February 2018, she received fines for traffic and drug offences, most of which arose out of the searches conducted on 14 November 2015 and 19 June 2016. One of the offences for which the appellant was also fined on that date was failure to obey a data access order on 15 August 2016, relating to the phones located in the search of her vehicle on 19 June 2016.

1. After referring to the circumstances of the offence committed on 14 November 2015, the sentencing judge observed:[3]

You had clipseal bags and other drug paraphernalia that indicated that you were selling drugs and it was also apparent from your knowledge of the prices that you then quoted in relation to ice per ounce that clearly you were dealing in large quantities of drugs and the description of you as being in a mid to high level in the hierarchy of drugs is appropriate.

That you were getting such large quantities of drugs on tick, that is to say, on credit, goes to show you're a person who was well regarded and treated by others within the drug hierarchy as a person who could be trusted with large volumes of methylamphetamine in the form of crystalline powder that was capable of being cut and distributed further throughout the community by dealers who would be buying from you.

Your motivation was said to be trying to arrange financial gain and to place yourself in a position where you could purchase a house and have stable accommodation.

1. The sentencing judge referred to the circumstances of the offences committed on 19 June 2016, and said:[4]

Again it's quite apparent that you were then selling these drugs for a considerable sum of money to dealers at a higher level. The drugs were of high purity. MDMA was also located in the vehicle, together with dexamphetamine.

By any measure you were simply carrying on the business of selling drugs in the hopeful expectation that you would be able to buy a house or something of that nature. I'm in no doubt that the cash that was located was the sale of proceeds of drugs and being used by you in your enterprise of endeavouring to sell drugs to purchase a property.

1. The sentencing judge identified the following aggravating features of the appellant's offending:[5]

(2) The appellant was in the business of being a drug dealer and was motivated to gain money; and

(3) The offences the subject of counts 2, 3 and 4 were committed while the appellant was on bail.

1. In the course of referring to the appellant's personal circumstances, the sentencing judge said that at the time of her second arrest the appellant had a very significant amount of money on her person 'that would have otherwise provided the capacity to obtain some property'. The sentencing judge said:[6]

I suspect you were probably more mobile and itinerant because it was easier for the way you could carry out your business.

1. The sentencing judge referred to a psychiatrist's report which diagnosed her with 'amphetamine use disorder - in extended remission' and said she had no psychiatric illness.[7] The psychiatrist's report had also observed:

[The appellant's] offending is relatively late in onset following significant social upheavals in her life. Given that she has a good work history and had been responsible in looking after her daughter until the beginning of amphetamine use, her remorse and determination to avoid further offending, she is at a low risk offending'.

1. The sentencing judge said that this psychiatrist's assessment:[8]

seemingly doesn't take into account that whilst you were on bail in relation to the offence in November you reoffended, seemingly without having any qualms whatsoever in carrying on your illicit drug business.

1. The sentencing judge said that the appellant's criminal history indicated 'a persistent defiance of the law, both in respect of drugs and traffic matters and you're certainly not entitled to any leniency'.[9]
2. The sentencing judge said that the appellant pleaded guilty, albeit not at the earliest possible time. His Honour accepted that there was some delay in obtaining certificates of analysis. He accepted that the plea indicated remorse, acceptance of responsibility and a willingness to facilitate the course of justice. The sentencing judge said that he reduced the head sentence that would otherwise be imposed by 15% in order to recognise the benefits to the State from the plea.[10]
3. The sentencing judge said:[11]

I note you have been in custody now since 15 June 2016 and undertaken courses and seem to be settled in a prison environment. And to a large extent, the initial impact of incarceration and the extent to which that imprisonment as a sanction has largely been served.

1. The trial judge referred to well established principles in relation to sentencing offenders for serious drug offending, including general and personal deterrence. In the course of doing so, the trial judge said:[12]

Obviously the weight of the drugs in question is generally - is not generally the chief factor to be taken into account but it's a matter of importance. And in this case, it is important because the high quantity and high percentage goes to demonstrate where you are in the drug hierarchy.

And counsel quite properly accepts that you must be seen as being mid to high level in dealing with those who are supplying effectively from the top to you on trust to be sold to other persons within the community to distribute their misery throughout the community.

Clearly matters personal to you must almost be subsidiary although they're not completely irrelevant. But clearly this drug in powder form was clearly intended to be diluted and that it would have been further distributed into the community, it's high purity, large amount, supplied on tick and packaged in larger amounts where you were obviously selling it to other dealers.

You were willingly involved in the distribution of dangerous drugs throughout Western Australia and were seemingly motivated principally by commercial gain. This offending is a serious example of its type and you bear substantial criminal culpability.

1. The judge referred to the totality principle, and imposed the sentences noted at [2] above. In the course of doing so, his Honou[13]observed:13

Clearly the criminality involved in this is something in the order of nine years' imprisonment. I say that because the second offence should be in essence wholly accumulated. In my view however, that would be crushing.

1. The sentencing judge reduced the sentence for count 1 from 4 years 6 months to 3 years, and the sentence for count 4 from 5 years 6 months to 5 years' imprisonment for totality purposes. His Honour made those sentences cumulative on each other, and the other sentences concurrent, resulting in a total effective sentence of 8 years' imprisonment. The appellant was made eligible for parole, and the sentence backdated to 15 June 2016 to take account of 580 days spent on remand.

Principles in relation to appeals against sentence

1. The principles applicable to sentencing appeals are well established. They were set out in Wilson v State of Western Australia[14] and have been repeated and endorsed in many subsequent cases. It is unnecessary to set out those principles here.
2. The totality principle comprises two limbs. 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, viewed in their entirety having regard to all relevant circumstances, including those referrable to the offender personally (and including, for example, the desirability of accommodating any prospects of rehabilitation), and the total effective sentences imposed in comparable cases.[15] The second limb is that the court should not impose a sentence which is 'crushing', in the sense that it destroys any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb, even if it cannot be described as 'crushing'.[16]
3. The practical effect of the application 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.[17] The severity or leniency of an individual sentence will nevertheless be relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[18]

Sentencing for drug offences - general principles

1. The general principles of sentencing offenders for serious drug offences are well established.[19] 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.

1. The parties referred to a number of cases dealing with sentences imposed for offences involving the sale of methylamphetamine. Not all cases are comparable, and the difficulty in drawing comparisons with other cases is made difficult by the variety of conduct and associated offences involved.
2. A number of the cases involve sentences of 5 - 7 years' imprisonment imposed on persons engaged in a commercial drug business which involve dealing in ounces rather than kilograms.[20]
3. The appellant referred to the decision of this court in Nillson. In Nillson, the 23-year-old offender pleaded guilty at the first reasonable opportunity to possession or attempted possession of a total of 377.65 g of methylamphetamine (68% - 81% purity). The drugs were intercepted in a package posted to the offender, and found in the offender's home and a self-storage unit in a search conducted on the same day the offender collected the posted package (with an inert substance substituted). About $35,000 cash was also located at the offender's home and self-storage unit. The offender was sentenced as the sole proprietor of a drug-dealing business. A total effective sentence of 4 years 6 months' imprisonment was set aside on a State appeal and a total effective sentence of 6 years 6 months' imprisonment substituted. The offender in Nillson was operating a drug dealing business on a similar scale to the appellant, although he possessed or attempted to possess a greater quantity of methylamphetamine. The offender in Nillson was found to have high culpability, conducting a widespread drug retailing operation with 'deep market penetration' and being an 'important player' in the drug market in the regional town in which he offended.[21] However, the offender had some additional mitigation from youth and, more significantly, did not have the aggravating factor of having offended on bail.
4. The appellant also referred to the decision of this court in Le v The State of Western Australia.[22] In Le, the offender was charged with offending on two separate days. On 8 April 2011, police searched the offender's bedroom, and located a shotgun with a shortened barrel, $36,000 in cash and various drugs including 16.46 g of methylamphetamine with a purity between 78% and 85%. The offender was sentenced on the basis that he was holding these items as bailee for another person. While the offender was on bail, a search of properties associated with him on 28 September 2011 located drugs and cash, including a total of 67.77 g of methylamphetamine of purity between 69% and 80%. The offender was sentenced on the basis that he was selling these drugs for the purpose of meeting his living expenses, funding his drug addiction and repaying a debt which other drug dealers claimed he owed as a result of police seizing items on 8 April 2011. The offender was aged in his early 30's, had a long history of drug abuse and had an extensive prior record. He entered very late pleas of guilty, for which he received a 10% discount under s 9AA of the Sentencing Act. A total effective sentence of 6 years 6 months' imprisonment was held not to infringe the first limb of the totality principle.
5. Counsel for the State was unable to point to any cases which involved offending no more serious than the appellant's where the offender received a total effective sentence in the order of 8 years' imprisonment.[23] The State referred to the decision in Chu, where the 34-year-old offender entered an early plea of guilty to selling or possessing a total of 227.5 g of methylamphetamine (mostly of very high grade). The appellant carried on a business of selling substantial quantities of high grade methylamphetamine from his house, and sold drugs to an undercover police officer on 5 occasions in November 2010. He was at or near the top of the drug hierarchy. A total effective sentence of 7 years' imprisonment was upheld on appeal.
6. Sentences above the 5 - 7 year range have been imposed in some cases, which involve a greater degree of criminality than is involved in the present case.
7. In Lear v The State of Western Australia,[24] the 48-year-old offender pleaded guilty at the first reasonable opportunity to selling a total of 314.4 g of methylamphetamine (of 44% - 69% purity) to an undercover officer for a total of $184,000. The offender was also convicted of conspiracy to sell a further 112 g to the officer for $66,000, which he was unable to source. A total effective sentence of 9 years' imprisonment was upheld on appeal. The scale of the drug dealing business in that case was greater than the present.
8. In Lenton v The State of Western Australia,[25] the 47-year-old offender was convicted, on a late plea of guilty, in relation to possession of a total of 84.15 g of methylamphetamine. The offender had previous drug-dealing convictions. Although the quantity of methylamphetamine was less than the appellant dealt with, the offender was engaged in a significant commercial drug-dealing enterprise, and was also sentenced for offences involving the sale of other drugs, weapons offences and offences arising out of a high-speed chase. A total effective sentence of 8 years' imprisonment was upheld on appeal. When account is taken of those other offences, the overall criminality of the offending in Lenton was distinctly more serious than the appellant's offending in this case.
9. In The State of Western Australia v Wilson, the 39-year-old offender had a long criminal history, including for possession of methylamphetamine with intent to sell or supply it to another. He was convicted of offences including:

(1) attempting to possess 71.4 g of methylamphetamine (purity 76%), which had been intercepted in the post and substituted for an inert substance;

(2) possession of a total of 675 g of methylamphetamine with intent to sell or supply it to another;

(3) possession of a total of approximately 2.7kg of cannabis with intent to sell or supply it to another;

(4) possession of $196,600 cash reasonably suspected of having been stolen; and

The offender pleaded guilty at the first reasonable opportunity. On a State appeal, his total effective sentence of 6 years 6 months' imprisonment was increased to 8 years 6 months' imprisonment. Despite the offender running a much larger operation than the appellant, this court imposed a sentence only 6 months longer than that imposed on the appellant.

1. Sentences of 10 years' and 10 years 6 months' imprisonment were respectively upheld in Clarke v The State of Western Australia[26] and Trajkoski v The State of Western Australia.[27] In each of those cases, repeated offending elevated the need for personal deterrence. However, in each case, the scale of the drug dealing business was greater than in the present case, and Clarke also involved associated firearms offences.
2. Sentences of 10 years or more have been imposed for charges arising from a single occasion of possession of very large quantities of prohibited drugs, especially methylamphetamine, with the intent to sell or supply.[28]
3. Of course, as noted above, the quantity of the drugs involved is not the only determinant of the overall criminality involved. All of the factors involved in a particular case require consideration in determining the overall criminality involved. As was noted in Clarke:[29]

Whether a sentence offends the totality principle is not answered simply by reference to other cases, let alone just one case. That is because no two cases are ever precisely the same. Consequently, the identification of cases which, on a broad comparison, appear to involve similar offending but different sentences, will not suffice to demonstrate error. All of the relevant circumstances of a case need to be assessed to permit any useful comparison.

Because each case turns on its own particular facts and circumstances, comparative cases provide only general guidance, and any such guidance is flexible rather than rigid. Reference to other cases may also be of use because those cases may stand as yardsticks against which to examine the sentence which was imposed. (citations omitted)

1. The appellant's offending was undoubtedly very serious. She persisted in conducting a drug-dealing business involving the sale of significant quantities of methylamphetamine for commercial gain. The sentencing judge correctly regarded the fact that counts 2 - 4 were committed while on bail as a significant aggravating feature of the offence. The damaging effects of the drugs which the appellant was selling are well-known, and the trial judge properly recognised personal and general deterrence as dominant sentencing factors.
2. Consideration of the comparable cases suggests that the sentence imposed on the appellant is, at the least, high. The real issue in this appeal is whether the sentence imposed is properly characterised as merely high, or whether it is so high as to reveal implied error. In the end, we have been persuaded that the sentence falls into the latter category.
3. In our view when regard is had to all of the circumstances of the case and customary sentencing standards, the total effective sentence of 8 years' imprisonment is disproportionate to the overall criminality involved in all of the offences, viewed in their entirety. While the scale of her business was significant, the appellant's parlous circumstances at the time of the offending indicated that the cash which it generated for her personal benefit was limited. Her drug dealing, conducted from her car, did not have the level of sophistication of the operations in a number of the cases to which we have referred. It was relevant to note that the appellant had pleaded guilty, and the psychiatrist assessed her amphetamine use disorder as being in extended remission. She did not have a serious prior record, and there appeared to be some prospect of rehabilitation. Having regard to all of the circumstances, including those personal to the offender, and all relevant sentencing principles, including total effective sentences imposed in comparable cases, it was not open to the sentencing judge to conclude that a sentence of 8 years' imprisonment bore a proper relationship to the overall criminality involved in all of the offences. Inferred error is established, and it is necessary for this court to resentence the appellant.
4. We agree with the sentencing judge that a reduction of 15% for the individual sentences is appropriate under s 9AA of the Sentencing Act. We would not disturb the individual sentences. In our view, a total effective sentence of 6 years 6 months' imprisonment reflects the overall criminality involved in all of the offences. We would achieve that outcome by ordering that the sentence for count 1 is taken to have begun on 15 June 2016 (to take account of time spent on remand) and that the sentence for count 4 is to begin after the appellant has served 18 months of the sentence for count 1. The sentences for counts 2 and 3 should be served concurrently with the sentence for count 1. The appellant should remain eligible for parole.

1. For these reasons, we would make the following orders in the appeal:

(1) Leave to appeal is granted on the sole ground of appeal.

(3) The orders for accumulation and concurrency of sentences made by the sentencing judge on District Court indictment 1131 of 2017 are set aside and there is substituted the following orders:

(a) The sentence for count 1 is taken to have begun on 15 June 2016.

(b) The sentence for count 4 is to begin after the appellant has served 18 months of the sentence for count 1.

(c) The sentences for counts 2 and 3 should be served concurrently with the sentence for count 1.

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

Research Associate/Orderly to the Honourable Justice Mitchell

[14] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[15] Bees v The State of Western Australia [2017] WASCA 202 [74].

[16] Birch v The State of Western Australia [2011] WASCA 101 [30]; Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

[17] Bees [75]; Roffey [26].

[18] Bees [75]; Giglia v The State of Western Australia [2010] WASCA 9 [40].

[19] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].

[20] See, for example, Wilson and cases referred to at [25] of that decision; Chu v The State of Western Australia [2012] WASCA 135; Formica v The State of Western Australia [2013] WASCA 237 and cases referred to at [20] - [23] of that decision; The State of Western Australia v Hunter [2014] WASCA 87; Le v The State of Western Australia [2014] WASCA 120; Doherty v The State of Western Australia [2014] WASCA 142; RIN v The State of Western Australia [2015] WASCA 51; The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110.

[22] Le v The State of Western Australia [2014] WASCA 120.

[24] Lear v The State of Western Australia [2015] WASCA 90.

[25] Lenton v The State of Western Australia [2017] WASCA 224.

[26] Clarke v The State of Western Australia [2018] WASCA 190.

[27] Trajkoski v The State of Western Australia [2018] WASCA 176.

[28] See, for example, Chadburne v The State of Western Australia [2017] WASCA 216 and the cases discussed therein at [48] - [58].