BROWNE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 162 (23 December 2024)

(a) count 1: 7 years;

(b) count 2: 7 years;

(c) count 3: 3 years (reduced from 7 years in the application of the totality principle); and

(d) count 6: 6 months (reduced from 12 months in the application of the totality principle).

1. His Honour ordered that the sentences for counts 3 and 6 be served cumulatively upon each other and cumulatively upon the sentence for count 1. His Honour ordered that the sentence for count 2 be served concurrently with the sentence for count 1. The total effective sentence was therefore 10 years 6 months' imprisonment. His Honour backdated the total effective sentence to 22 February 2023 to take account of time the appellant had spent in custody in respect of the offending. His Honour made a parole eligibility order.
2. The appellant relies upon three grounds of appeal. Ground 1 alleges, in essence, that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges, in essence, that the sentence for each count was manifestly excessive. Ground 3 alleges, in essence, that his Honour erred 'in failing to apply' the Bugmy principles.
3. I agree with Vaughan JA that leave to appeal should be granted on ground 3. I agree with Mazza and Vaughan JJA that leave to appeal should be refused on grounds 1 and 2. The appeal must be dismissed. I will state my own reasons for arriving at those conclusions.

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

1. The facts and circumstances of the offending, the appellant's personal circumstances and antecedents, the trial judge's sentencing remarks and the submissions of the parties in the appeal are summarised in the reasons of Mazza JA. I will not repeat his Honour's summary except to the extent necessary to explain my reasons.

Overview of the facts and circumstances of the offending

1. Each of counts 1, 2 and 3 related to packages seized by the Australian Border Force during searches at a UPS facility in Perth. Each package contained methylamphetamine. The Australian Border Force officers removed the methylamphetamine from each package and substituted an inert substance. The total quantity of methylamphetamine the subject of counts 1, 2 and 3 was 1.483 kg. It had a value of about $252,000 if sold by the kilogram and about $2.24 million if sold in points.
2. As to count 1, on 27 May 2021, the appellant attempted to possess a package containing 495 g of methylamphetamine. The drug had a purity of 78%. The package was addressed to a 'Michael Le' at the appellant's home address in Heathridge.
3. As to count 2, on 31 May 2021, the appellant attempted to possess a package containing 493 g of methylamphetamine. The drug had a purity of 76%. The package was addressed to a 'Martin Laroque' at an address in North Beach. A mobile telephone number was written on the package. The number was associated with a pre‑paid mobile telephone found in the appellant's car.
4. As to count 3, on 1 June 2021, the appellant attempted to possess a package containing 495 g of methylamphetamine. The drug had a purity of 80%. The package was addressed to a 'Stephane Tremblay' at an address in North Beach. A mobile telephone number was written on the package. The number was associated with the same pre‑paid mobile telephone found in the appellant's car.
5. Count 6 related to the police having served on the appellant a data access order in relation to the pre‑paid mobile telephone that was found in the appellant's car and seized by police. The appellant refused to provide access to the mobile telephone.

The organisation of the balance of these reasons

1. It is convenient, first, to deal with ground 3, which alleges an express error. I will then deal with grounds 1 and 2, which allege inferred errors.

Ground 3: the psychological reports before the trial judge

1. The material before the trial judge at the sentencing hearing included a report dated 2 April 2023 from Tanina Oliveri, a clinical and forensic psychologist, and a report dated 20 April 2023 from Eliza Hatton, a psychologist.
2. Ms Oliveri said in her report, relevantly:

[The appellant's] childhood was marred by parental separation; an absent father; parental alcohol misuse, violence and volatility; caregiver separations and reunifications; normalised alcohol use in his community; and peer victimisation. He admitted that he felt mistreated, abused and worthless and he harboured some anger and resentment. He is also likely to have felt neglected, rejected and abandoned by his father, mother and stepfather. A problematic attachment history was described and from a young age he experienced depression, anxiety, low confidence, poor self‑worth and trauma symptoms. He misused alcohol from his early teens and he later progressed to methamphetamine. He has used substances as a negative coping mechanism, and such early use has prevented him from developing functional coping skills. Additionally, he was exposed to the poor emotional regulation and coping skills of his caregivers. He felt he had no choice in his career and this has likely fuelled underlying anger, resentment and depression. Additionally, he struggled to cope with the death of two nieces, there appear to have been more issues in his marriage than he was willing to admit and he was diagnosed with ADHD as an adult. He presents as emotionally immature and overly dependent on others. As he has maintained his stance of innocence in relation to the current offences, it is not possible to confidently determine the reasons for his offending. However, it is evident that he had a methamphetamine problem, he was avoidant of admitting his problems, there may have been financial problems and he was associating with other methamphetamine users. He also has a history of low confidence, poor self‑worth, depression, anxiety, trauma, ADHD, poor judgement and a lack of consequential thinking.

1. Ms Hatton noted in her report, relevantly, that the appellant 'grew up on Christmas Island in a highly volatile family home environment involving alcohol abuse and family violence which he both observed and was the victim of'. Ms Hatton also noted that the appellant had reported 'a large "drinking culture" on Christmas Island and from a young age this was normalised and encouraged' and, as a result, '[the appellant] engaged with this culture leading to various antisocial behaviours including fighting, self‑harm and drink driving which resulted in imprisonment'.

Ground 3: defence counsel's written submissions to the trial judge

1. On 19 April 2023, defence counsel filed written submissions on sentence in the primary proceedings.
2. Defence counsel submitted, relevantly, that:

(a) The appellant experienced physical, verbal and emotional abuse and exposure to alcohol and drug use as a young person. Those factors 'may give rise to the application of the type of principles' examined in Bugmy v The Queen.[1]

(b) The appellant had worked hard to overcome a childhood involving exposure to alcohol, drugs and violence and to become a productive and generally prosocial member of society.

(c) The appellant's moral culpability for the offending was lessened by his exposure to and the normalisation of substance abuse from a young age. It was 'all he ever knew growing up'.

Ground 3: defence counsel's oral submissions to the trial judge at the sentencing hearing

1. At the sentencing hearing, defence counsel referred to Ms Oliveri's report and then submitted (ts 396):

[The appellant's] childhood was marred by parental separation, absent father, parental alcohol misuse, violence[,] volatility, caregiver separations and reunifications. And the fact that alcohol abuse was effectively normalised within the community in which he was brought up are factors which perhaps explain to us where he is now.

1. Defence counsel noted that the appellant had experienced problems with drugs and alcohol at various times in his life and that he had relapsed into using drugs in about 2021, shortly before the offending in question (ts 398).
2. Defence counsel made this submission in relation to the Bugmy principles (ts 400):

Your Honour will be aware of the extent to which issues arising from a person's background can be invoked in the sentencing process. Difficulties in childhood and adolescence, we say, are matters which have been dealt with in cases such as Peterson and will be well known to your Honour. What we say is that there is a degree of lessening of the overall moral culpability by reason of his background and exposure and normalisation of substance abuse from a very young age.

Ground 3: the prosecutor's oral submissions to the trial judge at the sentencing hearing

1. The prosecutor submitted at the sentencing hearing that 'matters personal to an offender of course carry less weight than might otherwise be the case were the court dealing with offences that were other than serious drug‑related offences' (ts 402).
2. The trial judge sought the prosecutor's response to defence counsel's submission that the appellant's 'moral culpability is lessened by reason of his exposure [to] and normalisation [of] substance abuse from a young age' (ts 403). The prosecutor responded that he did not 'cavil with that' (ts 403). The prosecutor then elaborated (ts 403):

It's a question of degree. I mean, I think it would be very bold to stand here and say it's irrelevant but it's a matter for your Honour as to what weight it carries. I come back to that principle that I think applies [to] serious drug offences and that is that matters personal to an offender carry less weight than would otherwise be the case were the court dealing with, for example, an assault or something like that.

1. The trial judge observed in his sentencing remarks that:

(a) The appellant had 'a difficult childhood, experiencing trauma and abuse and ... often being frightened due to the violence and unpredictable mood and behaviour of [his] mother and stepfather'. His Honour added that 'these are matters I will address separately in due course' (ts 409).

(b) The appellant 'commenced using alcohol from the age of 14 years'. Alcohol use and abuse was normalised by the appellant's parents and on Christmas Island generally. Alcohol use and abuse was a problem for the appellant until his early 30s (ts 409).

(c) The appellant had 'a difficult childhood and [he was] exposed to alcohol and domestic abuse' (ts 410).

1. His Honour referred in detail to Ms Oliveri's report (ts 411 ‑ 413).
2. The trial judge made these comments in relation to defence counsel's submissions about the Bugmy principles (ts 416 - 417):

[Defence] counsel submits in written submissions that [the appellant's] moral culpability is lessened by reason of [his] exposure to and the normalisation of substance abuse from a young age.

The materials before me indicate that [the appellant was] exposed to alcohol rather than illicit substances from a young age and of course in terms of illicit substances, I have already remarked that [the appellant] would hide [his] drug use from [his] family and friends which indicates that [he] knew that engaging in the taking of drugs was wrong. Furthermore, there is nothing in the materials before me that indicates that [the appellant] did not know that what [he was] doing in terms of [his] offending was wrong or against the law.

Nonetheless, [the appellant's] background indicates that [he was] raised in and [was] exposed to difficult circumstances of the nature I've already discussed, namely verbal and emotional and perhaps even physical abuse as well as exposure to alcohol which, as I have remarked, was normalised.

I take those circumstances into account in the sentencing exercise consistent with the authorities referred to [by defence] counsel in submissions, those authorities being two cases called Bugmy and Peterson, however, as counsel for the State submitted and as I will come on to observe in due course, matters personal to an offender carry less weight in cases involving drugs. (emphasis added)

1. His Honour addressed the risk of the appellant reoffending as follows (ts 417 ‑ 418):

In this regard, [Ms Oliveri] states that the tools used to guide comment on recidivism risk are designed for those with violent and/or sexual offenders and so are not suitable in [the appellant's] case.

However, on the one hand, [Ms Oliveri] observes that [the appellant has] a prior offending history and that [he has] associated with other substance users and also that [he possesses] some antisocial traits. In addition, [the appellant has] substance misuse problems which [he] had tried to hide and that [his] methylamphetamine use was likely to have been more of a problem than [he was] willing to admit.

On the other hand, [Ms Oliveri] states that there is no evidence of entrenched antisocial personality disorder and that [the appellant has] a supportive family and wife. In addition, I note that Ms Hatton, in her report, states that she considers the likelihood of [the appellant] committing similar offences again to be highly unlikely.

Based on the information available to me, it is difficult to assess with any degree of certainty whether [the appellant is] at risk of reoffending in the future but it does seem to me that much will depend upon the support structures around [him] at the time which in turn is likely a factor into whether [he is] drug free or whether, in the alternative, [he re‑engages] with drugs.

If [the appellant does] have support structures and [he does] engage in the appropriate programmatic rehabilitation then it seems to me that the risk of reoffending is perhaps low, although I say that with a degree of hesitation given [his] history of hiding [his] drug use from [his] family.

If, on the other hand, [the appellant does] not have support structures around [him], it seems to me that there is a high possibility to [sic] that [he] will re‑engage with drug use and that in those circumstances, there is an average chance of [him] reoffending.

Nonetheless, in light of the comments of [Ms Oliveri] to the effect that there is no evidence of entrenched antisocial personality disorder, coupled with both Ms Hatton's comments and the fact that [the appellant] presently [has] a supportive family environment and there's no suggestion that that support [will] wane in the future, I find that [the appellant's] likely risk of reoffending for the type of offending that brings [him] before me today is perhaps in the low range but by no means in the very low range. (emphasis added)

1. A little later in his sentencing remarks, the trial judge referred to the importance of general deterrence in the context of serious drug dealing offences as follows (ts 418 - 419):

[I]t is the experience of the courts that illicit drugs such as methylamphetamine cause or materially contribute to a very significant proportion of the criminal offences committed in this state either as a result of users acting under the influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs.

Further, significant public resources, including of course public money, are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences relating to attempt to possess and possession of prohibited drugs with intent to sell or supply that significant weight is given to general deterrence.

To put it another way and perhaps more crudely, in sentencing for offences of this nature, a clear message is sent to the community, and in particular those who are or might be considering becoming involved in the dealing of drugs in any way which of course would include attempting to possess drugs and trafficable amounts in particular, that if you deal in drugs, you are going to go to prison and you are going to go there for a long time.

It is for that reason that mitigating circumstances personal to an offender are ordinarily accorded less weight than might otherwise be the case. (emphasis added)

1. His Honour concluded that a total effective sentence of 10 years 6 months' imprisonment bore a proper relationship to the overall criminality involved in all of the offences committed by the appellant, 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 comparable cases' (ts 423) (emphasis added).

1. In Lee v The State of Western Australia,[2] Mitchell JA, Livesey AJA and I examined the principles in Bugmy. It is convenient to repeat at [37] ‑ [45] below what was written on that occasion.
2. In Bugmy, the offender, who was an Aboriginal man aged 29, had pleaded guilty to three offences including causing grievous bodily harm with intent. His background was characterised by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence. He also had a history of head injury and of auditory hallucinations.
3. In the Court of Criminal Appeal of New South Wales, Hoeben JA said that with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending. Nevertheless, Hoeben JA said that consideration of the background of social deprivation experienced by the offender in Bugmy remained a matter of relevance which could properly be taken into account in sentencing, but any reduction on that account would be 'modest'.
4. In the High Court, the offender (who was the appellant) challenged Hoeben JA's statement of principle. He submitted that the effects of childhood deprivation do not diminish with time and with repeated incarceration. Despite his age and his long criminal record, the appellant contended that it was open to the primary judge to impose a lenient sentence reflecting his reduced moral culpability for his offence.
5. In Peterson v The State of Western Australia,[3] Mazza JA and I summarised the principles embodied in Bugmy, relevantly, as follows:

In Munda v The State of Western Australia ([2013] HCA 38; [2013] HCA 38; (2013) 249 CLR 600), French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:

'The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.'

In Veen v The Queen [No 2] ([1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477), Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.

The principles enunciated by the High Court in Bugmy, in the passage quoted at [47] above, are, relevantly, as follows:

(a) The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.

(b) The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.

(c) However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.

(d) Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.

In our opinion, the principles enunciated by the High Court in Bugmy do not apply solely to an offender whose upbringing has resulted in the offender suffering from alcohol addiction and mental illness. The principles are of broader application. They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform.

1. The High Court's statement in Bugmy that the effects of an offender's profound childhood deprivation must be given 'full weight' in every sentencing decision relating to the offender, notwithstanding the passage of time, was referring to 'full weight' being given to the effects of that deprivation and not to 'full weight' being given to those effects as a mitigating factor. The distinction is important. It is necessary to exercise particular care when referring to 'weight' in this context.
2. The notion of 'full weight', as explained by the High Court in Bugmy, concerns the effects of an offender's profound childhood deprivation being taken into account, notwithstanding the passage of time, and not to taking those effects into account solely for the purpose of mitigation.
3. A sentencing judge will give 'full weight' to the effects of an offender's profound childhood deprivation, in accordance with Bugmy, by taking those effects into account as part of the instinctive synthesis process in arriving at the sentence.
4. As the High Court recognised in Bugmy, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing considerations. For example, on the one hand, those effects may be mitigating, at least to some extent, in that the effects may diminish the offender's moral culpability for the offending. However, on the other hand, those effects may not be mitigating, at least to some extent, in that they may increase the importance of protecting the community from the offender's criminal behaviour.
5. More recently, in Nasrallah v The Queen,[4] Bell P explained:

... Plainly enough, the nature and degree of an offender's background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence.

On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. This does not mean that 'full weight' has not been given to Bugmy considerations. (footnotes omitted)

1. However, the recognition of relevant mitigatory factors cannot 'lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence': Veen v The Queen [No 2].[6]
2. An offender's background of childhood deprivation is a relevant sentencing factor, as part of the offender's personal circumstances and antecedents, even if the deprivation cannot be characterised as profound.
3. An offender's background of childhood deprivation does not necessarily make the sentencing considerations of denunciation, personal and general deterrence and the protection of the community less important.
4. The significance of those sentencing considerations, where an offender has a background of childhood deprivation, will vary depending upon:

(a) the facts and circumstances of the offence;

(b) the nature and degree of the deprivation; and

(c) whether the deprivation has adversely affected the offender's ability to abstain from criminal behaviour; for example, the ability to control a violent response to frustration.

See Bugmy [44]; Honeysett v The Queen;[7] Webb v The Queen.[8]

1. Similarly, where an offender has a background of childhood deprivation, whether and, if so, to what extent the deprivation reduces the offender's moral culpability will vary depending upon:

(a) the facts and circumstances of the offence;

(b) the nature and degree of the deprivation; and

(c) whether the impact of the deprivation upon the offender explains the offending.

See Sabbatucci v The Queen;[9] Newton (a pseudonym) v The King.[10]

1. Significantly, however, as I have explained, although a background of childhood deprivation may reduce an offender's moral culpability, the effect of the deprivation upon the offender may increase the importance of protecting the community from the offender's criminal behaviour.
2. It is well‑established by the case law in this State that:

(a) the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are personal and general deterrence;

(b) 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;

(c) 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;

(d) the degree of purity of the drugs in question is often regarded as significant; and

(e) matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

See, for example, Bellissimo v The Queen;[11] Kezkiropoulos v The Queen;[12] The State of Western Australia v Marchese;[13] Gaskell v The State of Western Australia.[14]

1. Accordingly, in sentencing for offences of dealing or trafficking in dangerous drugs of addiction, matters personal to an offender will almost always be subsidiary considerations (that is, the offender's personal circumstances and antecedents will ordinarily 'play a secondary role in the sentencing process': Bellissimo (469)). However, that is not necessarily so in every case. The ordinary status of personal and general deterrence as sentencing factors of primary importance does not relieve a sentencing judge of his or her obligation to evaluate, in the particular case, the significance for sentencing purposes of evidence and submissions that the offender has a background of childhood deprivation. The effects of the offender's childhood deprivation must be given 'full weight' by taking those effects into account, notwithstanding the passage of time. However, as I have mentioned, those effects may point in different directions in relation to relevant sentencing factors. The sentencing judge will give 'full weight' to the effects of an offender's childhood deprivation if the judge takes those effects into account in arriving at the sentence. Bugmy does not require that, in any and all circumstances, 'full weight' be given to the effects of childhood deprivation as a mitigating factor.
2. In the present case:

(a) The prosecutor conceded, in essence, at the sentencing hearing that, having regard to the Bugmy principles, the appellant's moral culpability for his offending was lessened.

(b) On my assessment of the information before the trial judge, the appellant's background of childhood deprivation was not profound. The effects of his childhood deprivation were at or at least towards the lower end of the spectrum of relevant disadvantage.

(c) The appellant was aged 35 when he committed the offences. He had a relatively minor prior criminal record. In 2004 he committed the offence of being on premises or the curtilage of premises without lawful excuse for which he received a $150 fine. During 2007 he committed a number of traffic offences as well as an offence of simple possession of methylamphetamine. In 2016 he was convicted of driving a motor vehicle with a blood alcohol level in excess of 0.05%. In 2021 he was convicted of driving a motor vehicle while affected by a prescribed illicit drug. The appellant has no history of violent offending. He has not previously committed any offences of dealing or trafficking in prohibited drugs.

(d) The appellant's background of childhood deprivation has not adversely affected, to a significant extent, his ability to abstain from criminal behaviour. However, the deprivation explains, to some degree, his current offending.

(e) The appellant's risk of reoffending in a similar manner, as found by his Honour, was 'perhaps in the low range but by no means in the very low range' (ts 418).

1. I am satisfied that, in the circumstances of the present case (and having regard, in particular, to the matters I have set out at [54] above), general deterrence was a sentencing factor of primary importance. Denunciation, personal deterrence and the protection of the community were relevant sentencing factors, notwithstanding that the appellant had not previously committed any offences of dealing or trafficking in prohibited drugs and notwithstanding that his risk of reoffending in a similar manner was 'in the low range' (ts 418).
2. I am not persuaded that his Honour erred 'in failing to apply' the Bugmy principles, as alleged in ground 3. Specifically, I am not persuaded that:

(a) his Honour did not evaluate the significance, for sentencing purposes, of the evidence and submissions that the appellant had a background of childhood deprivation; or

(b) his Honour did not give 'full weight' to the effects of the appellant's deprivation by taking those effects into account and reducing the appellant's moral culpability in determining the sentencing outcome.

(a) my reading of the trial judge's sentencing remarks as a whole including, notably, the observations, comments and findings of his Honour to which I have referred at [30] ‑ [35] above; and

(b) my assessment that the length of the sentences imposed by his Honour indicates that the effects of the appellant's background of childhood deprivation were appropriately taken into account.

1. In any event, even if (contrary to my opinion) his Honour did make the error alleged in ground 3, I am of the opinion that no different sentences should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
2. The maximum penalty for each of the offences charged in counts 1, 2 and 3 is life imprisonment. The sentencing pattern for offences of the kind charged in counts 1, 2 and 3 is discernible from numerous decisions of this court, including HSV v The State of Western Australia;[15] Musulin v The State of Western Australia;[16] Baker v The State of Western Australia;[17] Vidich v The State of Western Australia;[18] Nickson v The State of Western Australia;[19] ATH v The State of Western Australia;[20] Walker v The State of Western Australia;[21] Stipanich v The State of Western Australia;[22] Wijnen v The State of Western Australia;[23] Owen v The State of Western Australia.[24] Each of counts 1, 2 and 3 concerned separate and distinct offending. It was appropriate, in the circumstances, that there be some accumulation of the individual sentences for those counts.
3. The maximum penalty for the offence charged in count 6 is 5 years' imprisonment. A failure to comply with a data access order is a serious offence, especially in the context of dealing or trafficking in prohibited drugs. The appellant's offending on count 6 required punishment in addition to the punishment imposed for the offences charged in counts 1, 2 and 3. This court has emphasised that unless offenders who fail to comply with data access orders, in the context of offences of dealing or trafficking in prohibited drugs, receive some additional punishment there will be no incentive to comply with a data access order. See The State of Western Australia v Doyle;[25] Sharp v The State of Western Australia.[26]
4. I am satisfied, after evaluating the individual sentences for counts 1, 2, 3 and 6 and the total effective sentence, in the context of:

(a) the maximum penalties;

(b) the facts and circumstances of the offending;

(c) the place which the appellant's offending occupies on the relevant scale of seriousness;

(d) the appellant's personal circumstances and antecedents, including the appellant's reduced moral culpability in accordance with the Bugmy principles;

(e) all other mitigating factors; and

(f) all other sentencing considerations,

that the sentences imposed by the trial judge were commensurate with the seriousness of the offending; that is, the sentences were commensurate with the principle of proportionality embodied in s 6(1) of the Sentencing Act 1995 (WA) and explained in s 6(2).

1. In my opinion, the total effective sentence did not infringe the first limb of the totality principle (as alleged in ground 1) and the individual sentences were not manifestly excessive (as alleged in ground 2). I am of that opinion for the reasons I have given at [59] ‑ [61] above (in concluding that no different sentences from those imposed by the trial judge should have been imposed) and, subject to those reasons, for the reasons given by Mazza JA in relation to grounds 1 and 2. Grounds 1 and 2 fail.

1. I agree with Vaughan JA that leave to appeal should be granted on ground 3. I agree with Mazza and Vaughan JJA that leave to appeal should be refused on grounds 1 and 2. The appeal must be dismissed.

1. This is an appeal against sentence.
2. On 24 February 2023, the appellant was convicted, after trial before Egan DCJ and a jury, of three counts of attempted possession of a trafficable quantity[27] of methylamphetamine with intent to sell or supply it to another (counts 1 ‑ 3) and one count of failing to obey a data access order (count 6).[28] Counts 1 ‑ 3 are offences contrary to s 6(1)(a), read with s 33(1) and s 34(1)(a), of the Misuse of Drugs Act 1981 (WA), which carries a maximum penalty of life imprisonment. Count 6 is contrary to s 61(2) of the Criminal Investigation Act 2006

(WA) and carries a maximum penalty of 5 years' imprisonment. The appellant was tried together with a co‑accused, Gordon Lee, in respect of counts 2 ‑ 5. Mr Lee was acquitted of all four counts.

1. On 28 April 2023, the appellant was sentenced to 7 years' imprisonment on each of counts 1 and 2; 3 years' imprisonment (reduced from 7 years' imprisonment for totality) on count 3; and 6 months' imprisonment (reduced from 12 months' imprisonment for totality) on count 6. The sentencing judge ordered that the terms of imprisonment on counts 1 and 2 be served concurrently with each other, and that the terms of imprisonment on counts 3 and 6 be served cumulatively on count 1.[29] Thus, the total effective sentence imposed on the appellant was 10 years 6 months' imprisonment. The sentence was backdated to commence on 22 February 2023, and the appellant was made eligible for parole.
2. As set out in the substituted appellant's case, the appellant relies on three grounds of appeal. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges that each of the individual sentences is manifestly excessive. Ground 3 alleges that the sentencing judge erred in failing to apply the principles in Bugmy v The Queen[30] and Peterson v The State of Western Australia.[31] The question of leave to appeal in respect of these grounds was referred to the hearing of the appeal.[32]
3. In my opinion, none of the grounds of appeal have been made out, and the appeal must be dismissed. My reasons for these conclusions are as follows.

1. The following statement of the facts of the offending is substantially derived from the sentencing remarks. Prior to the hearing of the appeal, the parties jointly wrote to the court to correct two factual errors in the sentencing reasons, neither of which were material to the outcome. The summary of facts below reflects these corrections.
2. Each of counts 1, 2 and 3 concerned packages seized by Australian Border Force officers at a United Postal Service facility in Perth on 27 May 2021, 31 May 2021, and 1 June 2021, respectively. Each package originated from Canada, and contained a quantity of methylamphetamine. The packaging used in each case was similar.
3. The package the subject of count 1 contained 495 g of methylamphetamine with a purity of 78% and was addressed to a 'Michael Le' at the appellant's home address in Heathridge. The package the subject of count 2 contained 493 g of methylamphetamine with a purity of 76%. This package was addressed to a 'Martin Laroque' at an address in North Beach which belonged to the appellant's co‑accused (the North Beach address). The package the subject of count 3 contained 495 g of methylamphetamine with a purity of 80%. This package was addressed to a 'Stephane Tremblay' at the North Beach address. Both packages the subject of counts 2 and 3 had a mobile telephone number ending in 995 listed on them, which was later found to be the number for a prepaid mobile telephone which was located in the appellant's vehicle.
4. Australian Border Force officers removed the methylamphetamine contained in each of the three packages and substituted an inert substance. It is because of this substitution that the appellant was charged with attempted possession. In respect of counts 1 and 2, but not count 3, police officers, disguised as couriers, then delivered the packages to the addresses on them.
5. As to count 6, on 3 June 2021, police officers served the appellant with a data access order in relation to the prepaid mobile telephone located in the appellant's vehicle, which had the same number as that written on the packages the subject of counts 2 and 3. The appellant refused to provide police with the PIN to access the mobile telephone within the time allowed by the order.
6. The total quantity of methylamphetamine the appellant attempted to possess, as alleged in counts 1, 2 and 3, was 1.483 kg. If sold by the kilogram, this quantity of methylamphetamine was valued at approximately $252,000. However, if sold by the 'point' (a 'point' being one‑tenth of a gram), the methylamphetamine was worth approximately $2.24 million.[33] By the jury's verdicts, it is clear that the jury was satisfied that the appellant knew of, and intended to possess, the drug that had been in each package, with the intention that the drug would be sold or supplied to another.
7. The sentencing judge found that it was likely that the appellant would have passed the methylamphetamine in each package onto someone else higher within the criminal enterprise in which the appellant was involved.[34] His Honour accepted the State's submission that the appellant was 'likely at the mid‑level of any criminal enterprise', and that he was 'a trusted part of the exercise'.[35]
8. The sentencing judge characterised the offending the subject of counts 1, 2 and 3 as 'very serious and at the mid‑range of seriousness of offending of [this] nature'. His Honour also said that the appellant was 'clearly part of a serious criminal enterprise of obtaining and dealing and supplying drugs to others'.[36]
9. His Honour found that the appellant committed the offences for commercial gain, although the value of the gain was unclear. His Honour noted the substantial quantity of methylamphetamine the subject of counts 1, 2 and 3, and observed that, due to the high purity of the drug, there was the potential for it to be 'cut' before it was sold, thus broadening the potential harm to the community. His Honour described the offending the subject of counts 1, 2 and 3 as 'sustained over a period of time', although it exhibited 'a degree of unsophistication'.[37]
10. As to count 6, his Honour said that the appellant's failure to obey the data access order was 'a crude and unsuccessful attempt to conceal [his] involvement in counts 1, [2] and 3'.[38] The sentencing judge found that the appellant obstructed law enforcement officers from detecting the extent of his involvement and the involvement of others in the offences, and categorised the circumstances of count 6 as falling 'in the low to mid‑range of seriousness of an offence of [this] nature but towards the high end of that range given the weight and purity of the drugs involved in [the] offending'.[39]

1. At the time of the commission of the offences, the appellant was 35 years old. He was 37 years of age when he was sentenced.
2. The appellant's parents separated when he was very young. Since the separation, the appellant has had no significant contact with his father. The appellant was raised by his mother and stepfather, who his mother met when the appellant was around 4 years of age.
3. When the appellant was about 6 years old, he, his mother, stepfather and half‑sister moved from Perth to Christmas Island. He attended primary school in both Perth and on Christmas Island, and secondary school on Christmas Island and in Geraldton. The appellant primarily resided on Christmas Island up until around 2008.
4. The appellant had a difficult childhood. Both his mother and stepfather abused alcohol. The appellant was the victim of verbal, emotional and physical abuse. As a child, the appellant was often frightened due to the violence and the unpredictable mood and behaviour of his mother and stepfather. It was accepted, in the sentencing proceedings, that alcohol use and abuse was normalised by the appellant's mother and stepfather, and on Christmas Island generally.[40]
5. The appellant completed high school to year 10, after which he completed an electrical apprenticeship. Up until about June 2022, he worked as an electrician. In June 2022, he commenced an adult apprenticeship as a motorcycle mechanic.
6. The appellant commenced using alcohol at the age of 14. His use of alcohol was, up until his early 30s, problematic. The appellant commenced using cannabis at the age of 17, and methylamphetamine in his early 20s. He was using methylamphetamine on a regular basis in his 30s.
7. The appellant is married and has no children. His wife has remained very supportive of him.[41]
8. The appellant had been significantly affected by the tragic deaths of his two nieces in March 2015 and January 2016, which have caused him to experience bouts of depression.[42]
9. The appellant has a prior record of offending, mostly for offences committed contrary to the Road Traffic Act 1974 (WA). In 2008, he was sentenced to 6 months 1 day's immediate imprisonment for dangerous driving occasioning bodily harm. On the same day, he was fined for an offence of driving under the influence of alcohol. He was fined in 2007 and 2016 for drink driving offences, and in 2021 for driving with a prescribed illicit drug. Apart from a conviction in 2007 for possession of methylamphetamine, for which he was fined, he has not been convicted of any prior offences under the Misuse of Drugs Act.
10. The sentencing judge was provided with 14 character references from family members, friends and work colleagues, each of whom expressed support for the appellant and spoke of his good qualities. It is clear that the sentencing judge read them and took them into account.[43]

1. The sentencing judge was provided with two psychological reports. The first, dated 2 April 2023, was prepared, pursuant to a court order, by Tanina Oliveri, a clinical and forensic psychologist retained by the Department of Justice. The second, obtained by the appellant's lawyers, dated 20 April 2023, was prepared by Eliza Hatton, a psychologist in private practice, who, in the course of her professional career, had extensive experience completing psychological assessments, including for adult offenders. Neither party challenged the expertise of Ms Oliveri or Ms Hatton, nor were their observations or conclusions disputed.
2. Ms Oliveri made the following observations and conclusions:

(a) While the appellant was 'somewhat evasive' when questioned about his substance use, he admitted that his alcohol use had been a problem until his early 30s. However, from 2016, he had reduced his alcohol consumption, a statement which Ms Oliveri said was supported by 'collateral sources'. The appellant admitted that, whilst in his 30s, he may have used methylamphetamine up to three or four times a week.

(b) Despite a short period of abstinence from methylamphetamine, the appellant relapsed into methylamphetamine use when he was 35 years old.

(c) Testing using the Millon Clinical Multiaxial Inventory (3rd ed) (MCMI‑III) revealed a personality profile which displayed depressive, dependent, paranoid and borderline personality traits, and indicated chronic and major depression, severe anxiety, and a dependence on substances.

(d) The appellant's childhood was marred by parental separation; an absent father; parental alcohol misuse, violence and volatility; caregiver separations and reunifications; normalised alcohol use in his community; and peer victimisation. The appellant's use of substances was a negative coping mechanism, and his early use of them had prevented him from developing functional coping skills.

(e) The appellant had 'staunchly maintained [a] stance of innocence' throughout the psychological assessment. Due to this stance, it was not possible for Ms Oliveri to confidently determine the reasons for his offending. However, she noted that the appellant had a methylamphetamine problem, avoided admitting his problems, and may have experienced financial problems. Ms Oliveri also noted that the appellant had a history of low confidence, poor self‑worth, depression, anxiety, trauma, attention deficit hyperactivity disorder (ADHD), poor judgement, and a lack of consequential thinking.

(f) While the appellant had a history of prior offending, was associated with other substance users, and had some antisocial traits, there was no evidence of an entrenched antisocial personality disorder. Ms Oliveri noted that the appellant had a supportive family and some prosocial friends, as well as a mostly consistent employment history. However, the appellant had attempted to hide his methylamphetamine use from his wife and family, and his use of the substance was likely to have been more of a problem than he was willing to admit.

1. Ms Hatton had been the appellant's treating psychologist since August 2015. Since then, up until his incarceration, she had engaged in 26 psychological sessions with the appellant, engaging in various forms of psychological therapy. Ms Hatton made observations and expressed opinions, as follows:

(a) The appellant had previously been diagnosed with post‑traumatic stress disorder (PTSD) due to significant developmental trauma and abuse, witnessing the sinking of a refugee boat in 2010 off the coast of Christmas Island, where many people lost their lives, and the deaths of his two nieces (referred to at [87] above). As a consequence, the appellant experienced clinically significant levels of anxiety, depression, and intrusive experiences in the form of flashbacks, nightmares, and anger.

(b) The appellant was diagnosed with ADHD in 2019, which manifested itself in the appellant as high impulsivity, poor self‑esteem, difficulties in friendships and relationships, poor executive function, poor focus, and emotional dysregulation.

(c) Both his ADHD and PTSD had 'contributed significantly to [the appellant's] criminogenic behaviour with poor emotional regulation and low self‑esteem leading to addiction issues, high impulsivity and risk‑taking behaviours'.

(d) The nature of the offences committed by the appellant did not fit with Ms Hatton's knowledge of the appellant or his previous criminogenic behaviour. She did not regard the appellant as an individual with a 'tendency' to commit offences of the type presently before the court, and said that it was 'highly unlikely' that he would commit a similar offence again.

(e) The appellant's PTSD would likely be triggered in the prison environment, keeping him in a state of hypervigilance, heightened symptomology, and an increased likelihood of deterioration in mental health compared to individuals who do not have PTSD prior to being incarcerated.

1. During the sentencing proceedings, written submissions made on behalf of the appellant sought to invoke the Bugmy principles.[44] These principles will be described below. It was said that the appellant experienced physical, verbal and emotional abuse, and exposure to alcohol and drug use as a young person. It was submitted that the appellant's moral culpability for the offences was lessened by reason of his exposure to, and the normalisation of, substance abuse from a young age. The issue was briefly touched upon by defence counsel in the oral submissions, where it was contended that 'there is a degree of lessening of the overall moral culpability by reason of [the appellant's] background and exposure and normalisation of substance abuse from a very young age'.[45]
2. At the sentencing hearing, in response to a question by the sentencing judge, the prosecutor said that he did not cavil with the proposition that the appellant's moral culpability was lessened by reason of his exposure to, and normalisation of, substance abuse from a young age.[46] No further submission was made to the sentencing judge as to how the appellant's childhood deprivation, and, in particular, his exposure to alcohol and the normalisation of its abuse, related to his offending in a way which reduced his moral culpability.

1. The sentencing judge set out the facts of the offending and the appellant's role in it, the appellant's personal circumstances, and the content of the psychological reports and the extensive character references provided to his Honour. These have been substantially set out above and need not be reproduced.
2. His Honour observed that the drug offences committed by the appellant were not victimless crimes. He noted 'the terrible consequences' that illicit drugs have on individual drug users, their families and society in general.
3. The only aggravating factor identified by the sentencing judge was the 'persistent nature' of the offending, that is, it was not 'a one‑off'.[47]
4. His Honour took into account mitigating factors. These factors included the efficient manner in which the appellant's trial was conducted, noting that numerous witness statements had been read, which led to a significant shortening of the length of the trial.[48] The sentencing judge acknowledged the numerous character references, which spoke highly of the appellant. His Honour said that, although the appellant did not have the mitigation afforded to someone who is a first offender, he would take into account (in a positive way) the references.[49]
5. His Honour concluded that the appellant's likely risk of reoffending was 'perhaps in the low range but by no means in the very low range'.[50]
6. His Honour expressly referred to the appellant's exposure, as a young person, to alcohol, and that he was raised in circumstances where alcohol abuse was normalised. His Honour accepted that the principles laid down by the High Court in Bugmy, and explained by this court in Peterson, applied to the sentencing of the appellant. However, the mitigating weight to be given to these principles was reduced because of the emphasis that general deterrence has in the sentencing of persons who commit serious drug trafficking offences.[51] I will say more about this aspect of the sentencing remarks when I deal with ground 3.
7. In respect of count 6, his Honour noted that there was a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data, and that any penalty imposed for an offence of failing to comply with a data access order must serve as a deterrent to others.[52]
8. In connection with the sentences to be imposed on counts 1, 2 and 3, the sentencing judge referred to a number of decisions of this court, including Nickson v The State of Western Australia;[53] KJL v The State of Western Australia;[54] McGrath v The State of Western Australia;[55] Curry v The State of Western Australia;[56] and Ta v The State of Western Australia.[57] In respect of count 6, his Honour referred to a decision of a single judge of the General Division in Clarke v Director of Public Prosecutions (WA).[58]
9. As reflected in the sentences imposed on counts 3 and 6, and in the orders for cumulacy and concurrency, his Honour had regard to the totality principle.[59]

1. The general legal principles which govern appeals against sentence of this kind are well established and have been summarised by this court many times. An often quoted statement of those principles is contained in Kabambi v The State of Western Australia.[60] I incorporate, without repetition, that statement of principles in these reasons.
2. The general sentencing considerations for serious drug offences are also well established and have been stated many times by this court. 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, the greater the harm that may be done to the community. 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.[61]
3. Ground 3 is an allegation of express error on the part of the sentencing judge. Grounds 1 and 2 allege implied error.
4. Mr Grace KC, senior counsel for the appellant, argued ground 3 first on the basis that the outcome of this ground impacted upon whether the assertions of implied error the subject of grounds 1 and 2 were accepted. Senior counsel candidly (and correctly) accepted that if ground 3 was not made out, then much of the argument in respect of grounds 1 and 2 would fall away.[62] Accordingly, I will deal with the grounds of appeal in the same order.

Ground 3 - alleged error in the application of the Bugmy principles

1. Ground 3 is couched in broad terms. It reads:
   1. The learned sentencing judge erred in failing to apply the principles enunciated in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and Peterson v The State of Western Australia [2019] WASCA 207.
2. In his oral submissions, Mr Grace KC submitted that the alleged erroneous application of the Bugmy principles is apparent from the following excerpt of the sentencing remarks, and, in particular, the italicised portion of the quotation:[63]

The next matter relates to those matters that you were exposed to as [a] young person growing up. Your counsel submits in written submissions that your moral culpability is lessened by reason of your exposure to and the normalisation of substance abuse from a young age.

The materials before me indicate that you were exposed to alcohol rather than illicit substances from a young age and of course in terms of illicit substances, I have already remarked that you would hide your drug use from your family and friends which indicates that you knew that engaging in the taking of drugs was wrong. Furthermore, there is nothing in the materials before me that indicates that you did not know that what you were doing in terms of your offending was wrong or against the law.

Nonetheless, your background indicates that you were raised in and were exposed to difficult circumstances of the nature I've already discussed, namely verbal and emotional and perhaps even physical abuse as well as exposure to alcohol which, as I have remarked, was normalised.

I take those circumstances into account in the sentencing exercise consistent with the authorities referred to [by] your counsel in submissions, those authorities being two cases called Bugmy and Peterson, however, as counsel for the State submitted and as I will come on to observe in due course, matters personal to an offender carry less weight in cases involving drugs. (emphasis added)

1. Senior counsel for the appellant submitted that while his Honour purported to apply the Bugmy principles, he in fact failed to do so because he did not give 'full weight' to the appellant's childhood deprivation in accordance with the principles stated by the High Court in Bugmy.
2. Senior counsel for the appellant submitted that the evidence before the sentencing judge revealed that the appellant's substance abuse history was directly related to his childhood deprivation and upbringing. While senior counsel accepted that there was no direct causal connection between the effects of his dysfunctional upbringing and the offending, as a result of his dysfunctional upbringing his cognitive function was impaired 'and his whole moral compass was thrown out'.[64]
3. Senior counsel for the appellant contended that there was 'apparent friction' between the concept of 'full weight', as referred to in Bugmy, and the application of the general principle described at [105] above, that in order to give full effect to general deterrence in sentencing for serious drug matters, matters personal to the offender carry [65]ss weight.65
4. In essence, the appellant submitted that his Honour infringed the Bugmy principles by diminishing the weight he gave to the effect of the appellant's childhood deprivation because of the emphasis ordinarily given to the objective of general deterrence in the sentencing of those convicted of serious drug trafficking offences.
5. Ms Cook, on behalf of the respondent, submitted no error of principle was made by the sentencing judge. His Honour gave 'full weight' to the appellant's childhood deprivation as required by the Bugmy principles, and there was no 'apparent friction' between the proper application of the Bugmy principles and the application of the ordinary sentencing principles applicable to those who commit serious drug trafficking offences.[66]

1. In Bugmy, the offender was a 29‑year‑old Aboriginal man, with prior convictions for violent offending and who had grown up in a household in which alcohol abuse and violence were commonplace. He was convicted on his pleas of guilty of three offences, including an offence of causing grievous bodily harm to a correctional officer in a correctional centre in New South Wales. The offender was upset at the prospect that anticipated visitors might not arrive at the correctional centre in which he was being held before the close of visiting hours. The victim, a senior correctional officer, agreed to make enquiries to find out if the visiting hours could be extended. The offender was not satisfied with the officer's response and began threatening him. A short time later, the offender picked up a number of pool balls, throwing two of them at the correctional officer, one of which struck him to the left eye causing him to lose the sight in that eye.
2. At first instance, the offender was sentenced to a term of imprisonment which, on appeal to the New South Wales Court of Criminal Appeal, was alleged to be erroneous by the Director of Public Prosecutions. The Court of Criminal Appeal upheld the Director's appeal and resentenced the offender.[67] The principal judgment was given by Hoeben JA, in which his Honour stated that he agreed with a submission then put by the Director, that, with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account must diminish, particularly when the offender had engaged in substantial offending over that time. His Honour nevertheless accepted that the offender's background of social deprivation remained a relevant sentencing factor, but its mitigatory effect was modest.[68]
3. The correctness of that part of Hoeben JA's statement, that the mitigatory extent of the offender's social deprivation diminishes over time, was challenged by the offender in the High Court. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ stated that:[69]

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the [offender's] deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.

The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the [offender's] submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (footnotes omitted)

1. It is apparent from the passages quoted above that their Honours carefully explained what was meant by their use of the expression 'full weight' as it related to an offender's deprived background. 'Full weight' refers to the fact that the effects of childhood deprivation do not diminish over time and, thus, are to be considered in every sentencing decision where the evidence establishes the offender's childhood deprivation. Their Honours explained that the use of the expression 'full weight' did not suggest, and should not be understood to mean, that an offender's deprived background has the same mitigatory relevance for all of the purposes of punishment.
2. The principles enunciated in Bugmy and the meaning of the expression 'full weight' were discussed by this court in Peterson[71] and, more recently, in Lee v The State of Western Australia.[72] Relevantly, the court in Lee said:[73]

The High Court's statement in Bugmy that the effects of an offender's profound childhood deprivation must be given 'full weight' in every sentencing decision relating to the offender, notwithstanding the passage of time, was referring to 'full weight' being given to the effects of that deprivation and not to 'full weight' being given to those effects as a mitigating factor. The distinction is important. It is necessary to exercise particular care when referring to 'weight' in this context.

The notion of 'full weight', as explained by the High Court in Bugmy, concerns the effects of an offender's profound childhood deprivation being taken into account, notwithstanding the passage of time, and not to taking those effects into account solely for the purpose of mitigation.

A sentencing judge will give 'full weight' to the effects of an offender's profound childhood deprivation by taking those effects into account as part of the instinctive synthesis process in arriving at the sentence.

As the High Court recognised in Bugmy, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing considerations. For example, on the one hand, those effects may be mitigating, at least to some extent, in that the effects may diminish the offender's moral culpability for the offending. However, on the other hand, those effects may not be mitigating, at least to some extent, in that they may increase the importance of protecting the community from the offender's criminal behaviour.

More recently, in Nasrallah v R,[74] Bell P explained:

'... Plainly enough, the nature and degree of an offender's background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence.

On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. This does not mean that "full weight" has not been given to Bugmy considerations. (footnotes omitted)'

1. The court in Lee went on to state:[75]

[T]he effect of deprivation must be balanced with other sentencing considerations and objectives, including the need for general deterrence and community protection.

1. It is clear enough from the passage set out at [109] above, when read as a whole, that the sentencing judge accepted the submission put on behalf of the appellant, with which the prosecutor did not cavil, that the appellant's moral culpability was lessened by his exposure to, and the normalisation of, alcohol abuse from a young age.
2. It is also clear that the sentencing judge regarded these circumstances as being sufficient to invoke the principles laid down by the High Court in Bugmy and discussed by this court in Peterson. Given that the offending engaged in by the appellant involved a degree of planning, premeditation and persistence, this may be regarded as a generous finding for the appellant,[76] but the appropriateness of this finding has not been challenged and is accepted for present purposes.
3. The appellant does not dispute that his Honour purported to apply the Bugmy principles. Ground 3 is an allegation that he misapplied those principles, in that he did not give 'full weight' to the appellant's childhood deprivation as required.
4. The appellant contends that this error is evident from the italicised portion of the exerpt of the sentencing remarks quoted at [109[77]] above:77

[H]owever, as counsel for the State submitted and as I will come on to observe in due course, matters personal to an offender carry less weight in cases involving drugs.

1. The appellant submits, in effect, that the general sentencing principle applicable to the sentencing of offenders who commit serious drug offences described at [105] above, which provides, in effect, that by reason of the emphasis ordinarily given to general deterrence as a sentencing objective, less weight will be given to personal considerations, conflicts with the Bugmy principle that the effects of child deprivation must be given 'full weight'.
2. I do not accept this submission. As mentioned earlier in these reasons, the meaning of the expression 'full weight' was explained by the High Court itself in Bugmy and by this court in both Peterson and Lee. The giving of 'full weight' for the purposes of the Bugmy principles means that an offender's childhood deprivation is taken into account notwithstanding the passage of time and an offender's criminal history. It does not mean the effects of childhood deprivation are taken into account solely for the purposes of mitigation.
3. The existence of childhood deprivation is one of potentially many sentencing factors which must be brought into account in the sentencing calculus. The weight to be given to it will depend upon an evaluation of it along with all of the other facts and circumstances of the particular case, including such matters as deterrence.
4. As observed in Bugmy and the other cases, an offender's childhood deprivation may point in different directions; for example, the mitigating effect of an offender's childhood deprivation and reduction of moral culpability may be offset by the need to provide personal deterrence and appropriate public protection.
5. For a sentencing judge to engage in such a process is part of the orthodox instinctive synthesis method of sentencing. It does not conflict with the 'full weight' requirement as laid down in Bugmy. Contrary to the submissions made on behalf of the appellant, there is no 'apparent friction' between the general principles which apply to the sentencing of persons who commit serious drug trafficking offences and the Bugmy principles.
6. The plain words of the impugned portion of the sentencing remarks do not reveal the error alleged by the appellant in ground 3. They cannot reasonably be understood to mean that his Honour regarded the effects of the appellant's childhood deprivation as having diminished over time. Rather, the sentencing judge was addressing the weight that could properly be given to the appellant's childhood deprivation in the sentencing process, having regard to the well‑established sentencing principles relating to persons who commit serious drug trafficking offences. When viewed in this way, his Honour's approach was completely consistent with the principles laid down in Bugmy, Peterson and Lee. His Honour did not err as alleged in ground 3.
7. Further and in any event, even if the sentencing judge made the error alleged in ground 3, in my opinion no different sentence should have been imposed.[78] This is because, having regard to the objective seriousness of the appellant's offending, the need for general deterrence and the limited weight that can be given for personal circumstances, the sentences imposed at first instance were commensurate with the seriousness of the offences committed by him.
8. For these reasons, I would refuse leave to appeal on ground 3.

Grounds 1 and 2 - did the total effective sentence infringe the first limb of the totality principle and were any of the individual sentences manifestly excessive?

1. Ground 1, which alleges that the total effective sentence imposed upon the appellant of 10 years 6 months' imprisonment infringed the first limb of the totality principle, and ground 2, which alleges that each of the individual sentences imposed upon the appellant were manifestly excessive, may be dealt with together.
2. Senior counsel for the appellant, having acknowledged that grounds 1 and 2 were impacted upon by the outcome of ground 3, was content to rely on the written submissions for each ground.[79]
3. The written submissions in support of grounds 1 and 2 emphasise the mitigatory aspects of the personal circumstances of the appellant. The submissions point to the circumstances of the appellant's dysfunctional childhood, his employment history, and that the appellant suffers from significant mental health issues which he has sought to deal with by abusing alcohol and illicit substances. The appellant points to the opinion of Ms Hatton, referred to at [92](c) above, that his ADHD and PTSD contributed significantly to his criminogenic behaviour.
4. It was also submitted on behalf of the appellant that the character references tendered on his behalf were impressive and showed that the appellant has substantial support from his family and within the community, and that he has good prospects of rehabilitation.
5. As for the circumstances of the offending, it was contended that, while he was an active participant in the commission of the offences and was involved in the offending for financial gain, the role he played was not toward the upper level.
6. Having regard to all of the circumstances, it was submitted that the total effective sentence of 10 years 6 months' imprisonment and each of the individual sentences failed to reflect a just and appropriate measure of the appellant's criminality.
7. The respondent submitted that the appellant's offending was very serious. It was said that the appellant was part of a criminal enterprise which involved obtaining drugs from overseas and then selling and supplying those drugs to others in Australia. The respondent emphasised the weight and purity of the methylamphetamine; its value; that the appellant offended for personal gain; that the offending was sustained over a period of time; and the finding that the appellant was likely at the mid‑level of the criminal enterprise and played an important and trusted role in it.
8. The respondent noted that a number of mitigating factors were absent in the appellant's case, including that the appellant was convicted after trial and did not have the benefit of pleas of guilty. Nor did he have the benefit of youth, and he did not cooperate with the police in the investigation. However, the respondent accepted that there was mitigation in the appellant's history of childhood dysfunction, including the verbal and emotional abuse he suffered, and his exposure to and the resulting normalisation of alcohol misuse from a young age. Nevertheless, these and other matters personal to the appellant carry less weight in serious cases of drug trafficking.
9. The respondent pointed to the maximum penalty of life imprisonment in respect of counts 1, 2 and 3, as well as a number of cases decided by this court in addition to those referred to at first instance, being HSV v The State of Western Australia;[80] Musulin v The State of Western Australia;[81] Baker v The State of Western Australia;[82] Vidich v The State of Western Australia;[83] ATH v The State of Western Australia;[84] and Walker v The State of Western Australia.[85] The respondent submitted that the outcomes in the cited cases do not support the appellant's contentions in grounds 1 and 2.

1. I have already set out the maximum penalties for the offences committed by the appellant. I note that the maximum penalty for counts 1, 2 and 3 increased from the previous maximum penalty of 25 years' imprisonment in 2017. When Parliament increases the maximum penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty is an indication that sentences for the offence in question should be increased.[86]
2. The offending the subject of counts 1, 2 and 3 was correctly observed by the sentencing judge to be 'very serious'. In each offence, the appellant attempted to possess a substantial quantity of methylamphetamine, many times more than the quantity which constitutes a trafficable quantity of the drug, with the intention that it would be sold or supplied. That each offence was an attempt does not diminish the seriousness of what the appellant did. The appellant was unaware that the methylamphetamine in each package had been removed by law enforcement officers and substituted with an inert substance. Clearly, he believed that each package contained methylamphetamine which he intended to sell or supply.
3. The methylamphetamine was of high purity and was worth a substantial sum of money. The appellant committed the offences for commercial gain, although the value of the gain was unclear.
4. Although the appellant was not at the upper echelon of the criminal enterprise in which he was engaged, he played an important and trusted role in the venture. The offending was not spontaneous and involved an element of planning, as illustrated by the appellant's purchase of the prepaid mobile telephone, the number of which appeared on two of the three packages. As acknowledged by the sentencing judge, the offending was persistent.
5. The appellant did not have the benefit of mitigation for pleas of guilty, youth, or the absence of any prior convictions. There was no evidence of remorse. However, there were matters of mitigation which were mostly derived from his personal circumstances. While matters personal are not generally accorded significant weight in the sentencing of offenders who commit serious drug trafficking offences, matters personal to an offender are not irrelevant, as his Honour recognised.
6. The appellant had a dysfunctional upbringing which gave rise to childhood deprivation of a kind which invoked the Bugmy principles. While it was submitted that, as a result of the appellant's childhood deprivation, the appellant had lost his moral compass, this submission goes too far. It is not borne out by the expert opinions of Ms Oliveri and Ms Hatton, nor by the many character references which were before the sentencing judge. The appellant's criminal history is not the kind which indicated a complete loss of the appellant's moral compass. As recognised by the sentencing judge, the appellant knew that his offending was wrong.
7. In addition to the appellant's childhood deprivation, the appellant also suffers from ADHD and PTSD. There may be some relationship between these conditions and the appellant's childhood dysfunction. Whether this is so or not, these disorders are mitigating in themselves. One of the consequences of these conditions and their affect upon the appellant, is that they will, to some extent, make imprisonment more difficult for him. The appellant has the support of family and friends, and good prospects for rehabilitation. His risk of reoffending is low.
8. In combination, the appellant's personal circumstances, particularly his dysfunctional upbringing, ADHD and PTSD, are plainly mitigatory. However, the weight that can be accorded to these factors is limited by the objective seriousness of the offending and the need to provide general deterrence. The emphasis that is given to the objective of general deterrence in serious drug trafficking offences is a response to the very significant harm inflicted upon individuals, and the community generally, by the illicit drug trade. Appropriately, this was recognised by the sentencing judge, who, in his sentencing remarks, said:[87]

I would add that it is the experience of the courts that illicit drugs such as methylamphetamine cause or materially contribute to a very significant proportion of the criminal offences committed in this state either as a result of users acting under the influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs.

Further, significant public resources, including of course public money, are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences relating to attempt to possess and possession of prohibited drugs with intent to sell or supply that significant weight is given to general deterrence.

To put it another way and perhaps more crudely, in sentencing for offences of this nature, a clear message is sent to the community, and in particular those who are or might be considering becoming involved in the dealing of drugs in any way which of course would include attempting to possess drugs and trafficable amounts in particular, that if you deal in drugs, you are going to go to prison and you are going to go there for a long time.

1. As for count 6, the facts and circumstances of this offence were serious. As the sentencing judge pointed out, there is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data, and that any penalty imposed on an offender who fails to comply with an order must serve as a deterrent to others.[88]
2. The appellant did not place any real emphasis on the comparable cases. It is unnecessary to analyse them in any detail. This is because both the individual sentences imposed and the total effective sentence are broadly consistent with the comparable cases.
3. The sentencing judge was obliged to, and did, have regard to the totality principle. It must be acknowledged that counts 1, 2 and 3, whilst separate offences and indicative of a degree of persistence, were committed over a short period of time. Some accumulation was justified to reflect the fact that there were multiple drug offences, and that count 6 involved separate and additional offending designed to thwart the detection of the drug offences.
4. The total effective sentence had to reflect that the appellant attempted to possess almost 1.5 kg of high purity methylamphetamine. Although he was not found to be in the upper echelon of the particular criminal enterprise, his role in the offending was important. The appellant was aware of the wrongfulness of what he did, but nevertheless chose to offend, no doubt appreciating the potential adverse consequences if the offending was detected.
5. There can be no argument that the individual sentences for counts 3 and 6 were substantially discounted for totality and are not manifestly excessive. In my opinion, having regard to all of the relevant facts and circumstances, none of the individual sentences were manifestly excessive and the total effective sentence did not infringe the totality principle. The sentences imposed by the sentencing judge were not unreasonable or plainly unjust. To the contrary, they reflected a proper exercise of the sentencing discretion. The allegations of implied error have not been made out. I would refuse leave to appeal on grounds 1 and 2.

1. None of the grounds of appeal have been made out. The sentences must stand. The orders I would make are as follows:
   1. Leave to appeal on grounds 1, 2 and 3 is refused.
   2. The appeal is dismissed.

1. I have the considerable advantage of having read Mazza JA's reasons for decision in draft. Mazza JA has detailed the background facts, the sentencing remarks, the grounds of appeal and the parties' submissions. I will not repeat what has been stated in this respect by Mazza JA. I will only refer to those matters so far as is necessary to develop my own reasons in relation to ground 3.
2. By ground 3 the appellant alleges an express sentencing error. The appellant alleges that the sentencing judge erred in failing to apply the principles enunciated in Bugmy v The Queen[89] and Peterson v The State of Western Australia.[90] In submissions senior counsel for the appellant clarified that the alleged error the subject of ground 3 concerned an alleged error in failing to give full weight in the exercise of the sentencing discretion to the appellant's childhood deprivation contrary to the principles enunciated in Bugmy and Peterson.[91]
3. The appellant identified the error as arising in the portion of the sentencing judge's remarks italicised below:

[Y]our background indicates that you were raised in and were exposed to difficult circumstances of the nature I've already discussed, namely verbal and emotional and perhaps even physical abuse as well as exposure to alcohol which, as I have remarked, was normalised.

I take those circumstances into account in the sentencing exercise consistent with the authorities referred to [by] your counsel in submissions, those authorities being two cases called Bugmy and Peterson, however, as counsel for the State submitted and as I will come on to observe in due course, matters personal to an offender carry less weight in cases involving drugs (ts 416 - 417). (emphasis added)

1. There is, according to the appellant, an apparent friction - in the sense of a tension - between giving childhood deprivation 'full weight' in every sentencing exercise and the application of the sentencing principle that matters personal to an offender, while not completely irrelevant, are almost always subsidiary considerations for serious offences of dealing or trafficking in illicit drugs.[92]
2. I do not accept that there is any such tension. Nor, in my opinion, did the sentencing judge err in the manner alleged by ground 3. In explaining why that is the case it is convenient to begin by describing the principles to be derived from Bugmy.
3. Mazza JA has described the facts in Bugmy and reproduced key extracts from the plurality's reasons. In Bugmy the plurality referred to 'profound childhood deprivation' and 'deprived background' [44]. Subsequently it has been recognised that it is not necessary to characterise an offender's childhood as one of 'profound deprivation' - the principle is that social disadvantage may reduce an offender's moral culpability, particularly where the offending is in the nature of impulsive or learned responses to situations arising from the circumstances of social disadvantage: Hoskins v The Queen.[93] So too this court has accepted that the Bugmy principles are capable of applying beyond offenders whose upbringing has resulted in alcohol addiction and mental illness: Peterson [55]; Lee v The State of Western Australia;[94] Kelly v The State of Western Australia.[95] The Bugmy principles are relevant to an offender who has experienced 'very significant childhood deprivation' of a kind and to a degree which leaves its mark on the offender throughout his or her life, 'such as to impair the offender's capacity to mature and to learn from experience, and to reform': Peterson [55]; Lee [60].
4. The relevant Bugmy principles include the following:
   1. Profound childhood deprivation is a feature of a person's make‑up [43].
   2. The effects of an offender's profound childhood deprivation do not diminish with the passage of time and repeated offending [44]. For example:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience [43].

1. A sentencing court is to give 'full weight' to an offender's profound childhood deprivation in every sentencing decision [44] (see also [42]).
2. However, an offender's profound childhood deprivation may not have the same relevance for all purposes of punishment [44]. For example:

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender [44].

1. Those potentially conflicting purposes of punishment must be weighed in the balance [44].
2. Accordingly, an offender's profound childhood deprivation may point in different directions in relation to different relevant sentencing considerations. The effects of profound childhood deprivation may lead to a reduction in moral culpability and in that respect be mitigating. But, at the same time, those effects may increase the importance of protecting the community from the offender: Peterson [60]; Nasrallah v The Queen;[96] Lee [64] - [65], [68] - [69]; and Kelly [216] - [217], [367].
3. Giving due recognition to its potentially conflicting purposes is part of giving 'full weight' to the effects of profound childhood deprivation. The other aspect of giving full weight to the effects of profound childhood deprivation is giving due recognition to the circumstance that the effects do not diminish with the passage of time and repeated offending. 'Full weight' is given to the effects of profound childhood deprivation by taking all of the effects into account as part of the instinctive synthesis process in arriving at a sentence: Lee [61] - [63]; Kelly [213] - [215].
4. The impact and consequences of an offender's profound childhood deprivation must be considered having regard to all relevant sentencing factors: Peterson [60]. Moreover, as Quinlan CJ stated in Peterson:

[T]he weight that is to be given to each of the various, and potentially conflicting sentencing considerations will always be relative to the weight to be given to the other sentencing considerations [11].

1. In short, the effects of profound childhood deprivation must be balanced with other sentencing considerations and objectives: Lee [69] (see also [76]).
2. The predominant sentencing considerations for serious drug dealing and trafficking offences are well established. They were acknowledged on behalf of the appellant in his written submissions.[97] The relevant sentencing principles were summarised most recently by this court in Wood v The State of Western Australia in the following terms:

The major sentencing consideration 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 drug 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 a subsidiary consideration, but they are not completely irrelevant.[98] (emphasis added)

1. The Bugmy principles, involving as they do the effects of profound childhood deprivation, are quintessentially concerned with matters personal to an offender.
2. The consideration of one sentencing factor does not take place in a vacuum but rather as part of the process of instinctive synthesis. In giving full weight to the effects of profound childhood deprivation a sentencing judge must do so in the context of and conformably with the sentencing principles generally applicable to offending of the kind for which the offender falls to be sentenced. In the present case, one involving serious drug offences, the giving of full weight to the appellant's exposure to and normalisation of substance abuse from a young age (as well as verbal, emotional and physical abuse) was in a context where matters personal to the appellant, while not completely irrelevant, were a subsidiary consideration. The effects of the appellant's exposure to and normalisation of substance abuse moderated the major sentencing considerations of general and personal deterrence. But the mitigation afforded by the appellant's social disadvantage was to be measured having regard to the sentencing principles generally applicable for serious drug offences.
3. The sentencing judge recognised as much in observing that 'matters personal to an offender carry less weight in cases involving drugs' (ts 417). His Honour did not err in so stating. It might have been better had the sentencing judge not used the words 'less weight'. That usage was potentially loaded, and capable of being misunderstood, given the use of the term 'full weight' in Bugmy. It would have been better had his Honour used the terminology of 'subsidiary consideration'. But reading the sentencing remarks fairly and as a whole it is clear enough that this is the sense in which the sentencing judge used the terminology of 'less weight'.
4. Accordingly, the sentencing judge did not err in stating the relevant principle. Nor, in my opinion, did his Honour err by misapplying the relevant principle by not giving full weight to the effects of the appellant's childhood deprivation.
5. As to the latter matter, in submissions before the sentencing judge then senior counsel for the appellant submitted that 'there is a degree of lessening of the overall moral culpability by reason of [the appellant's] background and exposure and normalisation of substance abuse from a young age' (ts 400). The prosecutor did not cavil with that proposition but emphasised that it was a 'question of degree' (ts 403). In sentencing remarks his Honour referred to the appellant's 'difficult childhood' (ts 409) and exposure to alcohol and domestic abuse (ts 410). Those matters were then developed by reference to the psychological reports before the court (ts 411 - 413). After doing so, as part of his discussion of the relevant mitigating factors, the sentencing judge expressly dealt with the appellant's submissions that his moral culpability was lessened by reason of his exposure to and the normalisation of substance abuse from a young age (ts 416 - 417).
6. The question of whether the Bugmy principles have been properly applied by a sentencing judge is one of substance rather than form: Kelly [223].
7. The sentencing judge recognised that the appellant's social disadvantage was a mitigating factor. That finding was perhaps generous. The offending, while said to have a 'degree of unsophistication', was sustained and persistent (ts 414, 416). It could not be characterised as impulsive. Elsewhere it has been observed that the Bugmy principles may not operate to reduce moral culpability in a situation where careful planning and premeditation is involved - such as cultivation and drug supply matters: Dungay v The Queen;[99] Hoskins [57]; but compare Robertson v The King.[100] Be that as it may, the sentencing judge's finding was open, and perhaps inevitable given the attitude of the prosecutor to the appellant's submission. In any event it cannot be said that his Honour failed to take account of the Bugmy principles as they applied to the appellant's circumstances of social disadvantage.
8. Moreover, reading the sentencing remarks fairly and as a whole, I am satisfied that his Honour gave 'full weight' - in the relevant sense - to the matters raised by the appellant in reliance on the principles in Bugmy. His Honour recognised that the appellant's childhood exposure to and normalisation of substance abuse was a mitigating factor. But, in so doing, his Honour also recognised - correctly in my view - that given the nature of the appellant's offending matters personal to the appellant were a subsidiary consideration. There was no misapplication of or failure to apply the principles enunciated in Bugmy or Peterson.
9. Ground 3 should be dismissed. Given the sentencing judge's reference to 'less weight', and the limited authority directly on point in this court, I would however grant leave to appeal on ground 3.
10. Having dismissed ground 3 I would, for the reasons given by Mazza JA, also dismiss ground 1 and ground 2. It follows that, like Mazza JA, I would dismiss the appeal.

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

[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[2] Lee v The State of Western Australia [2022] WASCA 137 [57] ‑ [65].

[3] Peterson v The State of Western Australia [2019] WASCA 207 [52] ‑ [55].

[4] Nasrallah v The Queen [2021] NSWCCA 207; (2021) 105 NSWLR 451 [8] ‑ [9].

[5] R v Perry [2022] SASCA 127 [139] (Livesey P & David JA).

[6] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).

[7] Honeysett v The Queen [2018] VSCA 214; (2018) 56 VR 375 [58] (Priest, Beach & Hargrave JJA).

[8] Webb v The Queen [2022] VSCA 85 [37] (Priest & Walker JJA).

[9] Sabbatucci v The Queen [2021] VSCA 340; (2021) 98 MVR 256 [6] (Maxwell P & Emerton JA).

[10] Newton (a pseudonym) v The King [2023] VSCA 22 [37] (Beach & Macaulay JJA).

[11] Bellissimo v The Queen (1996) 84 A Crim R 465, 469 (Rowland J; Ipp J agreeing), 471 (Anderson J).

[12] Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522 [15] (Steytler J), [57] (Olsson AUJ; Malcolm CJ agreeing).

[13] The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [8] (Steytler P; Wheeler JA relevantly agreeing).

[14] Gaskell v The State of Western Australia [2018] WASCA 8 [128] (Mazza & Beech JJA).

[15] HSV v The State of Western Australia [2020] WASCA 5.

[16] Musulin v The State of Western Australia [2020] WASCA 18.

[17] Baker v The State of Western Australia [2020] WASCA 117.

[18] Vidich v The State of Western Australia [2020] WASCA 171.

[19] Nickson v The State of Western Australia [2021] WASCA 40.

[20] ATH v The State of Western Australia [2021] WASCA 149.

[21] Walker v The State of Western Australia [2022] WASCA 100.

[22] Stipanich v The State of Western Australia [2023] WASCA 118.

[23] Wijnen v The State of Western Australia [2024] WASCA 1.

[24] Owen v The State of Western Australia [2024] WASCA 28.

[25] The State of Western Australia v Doyle [2017] WASCA 207 [42] (Buss P, Mazza JA & Hall J).

[26] Sharp v The State of Western Australia [2023] WASCA 142 [38] (Buss P & Hall JA).

[27] That is, more than 28 g: Misuse of Drugs Act, s 34(1A), read with sch VII item 8.

[28] The appellant was acquitted of two further charges of attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply it to another (counts 4 and 5).

[30] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[31] Peterson v The State of Western Australia [2019] WASCA 207.

[32] Order of Buss P dated 2 August 2023.

[44] Defence written submissions on sentencing, dated 19 April 2023, pars 24 - 28.

[53] Nickson v The State of Western Australia [2021] WASCA 40.

[54] KJL v The State of Western Australia [2021] WASCA 65.

[55] McGrath v The State of Western Australia [2021] WASCA 118.

[56] Curry v The State of Western Australia [2022] WASCA 36.

[57] Ta v The State of Western Australia [2022] WASCA 49.

[58] Clarke v Director of Public Prosecutions (WA) [2022] WASC 468.

[60] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[61] Gaskell v The State of Western Australia [2018] WASCA 8 [128].

[65] See appeal ts 2; substituted appellant's case, par 29.

[67] R v Bugmy [2012] NSWCCA 223.

[68] R v Bugmy [50] (Hoeben JA, Johnson & Schmidt JJ agreeing).

[71] See Peterson [52] - [55] (Buss P & Mazza JA).

[72] Lee v The State of Western Australia [2022] WASCA 137.

[74] Nasrallah v The Queen [2021] NSWCCA 207; (2021) 105 NSWLR 451 [8] - [9].

[76] See Hoskins v The Queen [2021] NSWCCA 169 [57] (Brereton JA).

[78] As required by the Criminal Appeals Act 2004 (WA), s 31(4)(a).

[80] HSV v The State of Western Australia [2020] WASCA 5.

[81] Musulin v The State of Western Australia [2020] WASCA 18.

[82] Baker v The State of Western Australia [2020] WASCA 117.

[83] Vidich v The State of Western Australia [2020] WASCA 171.

[84] ATH v The State of Western Australia [2021] WASCA 149.

[85] Walker v The State of Western Australia [2022] WASCA 100.

[89] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[90] Peterson v The State of Western Australia [2019] WASCA 207.

[91] Appeal ts 8, 19; appellant's submissions par 6 WAB 8.

[92] Appeal ts 2; appellant's submissions pars 26, 29 WAB 14, 15.

[93] Hoskins v The Queen [2021] NSWCCA 169 [57].

[94] Lee v The State of Western Australia [2022] WASCA 137 [60].

[95] Kelly v The State of Western Australia [2024] WASCA 116 [212].

[96] Nasrallah v The Queen [2021] NSWCCA 207; (2021) 105 NSWLR 451 [9].

[97] Appellant's submissions par 23 WAB 13.

[98] Wood v The State of Western Australia [2024] WASCA 143 [48].

[99] Dungay v The Queen [2020] NSWCCA 209 [143] - [146].

[100] Robertson v The King [2024] NSWCCA 22 [111] - [114].