BSN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 142 (19 September 2025)

1. The instinctive synthesis approach to sentencing is, of course, subject to statutory provisions to the contrary. In this State, that approach has been affected by a number of provisions of the Sentencing Act 1995 (WA), most notably s 9AA, which requires the Court to quantify, in percentage terms, the discount for a plea of guilty from a hypothetical 'head sentence'.
2. In a case in which s 9AA applies, the need to fix a 'head sentence' and quantify the discount for the guilty plea, requires a departure from the 'one‑step instinctive synthesis approach'.[4] Even in such a case, however, the sentencing process remains dynamic and not mechanical. As this Court said in Greenland:[5]

The sentencing judge's sense of the appropriateness of the ultimate sentence resulting from the application of particular tentatively determined discounts (for the plea of guilty and for other mitigating factors) to an identified tentatively determined head sentence may lead the judge to revisit one or more of those integers and then re‑undertake the process accordingly.

1. The iterative nature of the process contemplated by s 9AA underscores the complexity of the sentencing task. It also highlights the risk, recognised in the above passage from Wong v The Queen, that the attribution of specific numerical or proportionate values to some sentencing considerations may distort the sentencing process, even (and perhaps especially) where that attribution is required by statute.
2. This appeal provides a further illustration of that potentially distorting effect in the application of another provision of the Sentencing Act that requires the attribution of a numerical or proportionate value to an individual sentencing consideration: s 8(5) of the Sentencing Act.
3. Section 8(5) provides that:

If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.

1. As Mazza and Mitchell JJA have explained in their reasons, in applying s 8(5) in the present case, the learned sentencing judge, having already determined that the appropriate discount for the appellant's plea of guilty was 25%, attributed a value of six years (or 40%) to the appellant's 'future cooperation' (i.e. the undertaking to assist law enforcement) prior to, and independently of, assessing the value of any other mitigating factors. His Honour therefore settled on a sentence of nine years imprisonment, before turning to any other mitigating factors.
2. The effect of that approach was that the learned sentencing judge was then artificially constrained as to the account that he could take of all other mitigating factors. As his Honour acknowledged, having applied the discounts that he had already made, 'the extent to which [he] could give a further discount [was] really very limited'.[6] That constraint meant that his Honour 'attributed' a value of only four months to all other mitigating factors, some of which, as his Honour acknowledged, were significant indeed.
3. The methodology adopted by the learned sentencing judge, accordingly, produced a distorted final outcome. Not, I would hasten to add, as to the term of imprisonment actually imposed of 8 years and 8 months imprisonment. That term of imprisonment was well within the bounds of a sound exercise of sentencing discretion, and if that were the only issue in the appeal, I would not have interfered with the sentence imposed by his Honour.
4. Rather, the distortion in the final outcome in the present case was in the identification, for the purposes of s 8(5) of the Sentencing Act, of 'the sentence [his Honour] would otherwise have imposed on the offender' in the absence of the undertaking to assist law enforcement (and, in turn, the identification of the resulting 'reduction' within the meaning of s 8(5)). As Mazza and Mitchell JJA have said, the 'extent of the reduction', as required by s 8(5), is part of the sentence, and, by operation of s 37A of the Sentencing Act, can have significant consequences for an offender in the event that the undertaking is not fulfilled.
5. By fixing the 'discount' for 'future cooperation' prior to, and independently of, all other mitigating factors, the methodology adopted by the learned sentencing judge in this case produced a sentence that his Honour 'would otherwise have imposed' (namely 14 years and 8 months imprisonment) that was plainly unjust. In particular such a sentence would not have recognised, in any meaningful way, the significant mitigation in the appellant's past cooperation with law enforcement.
6. As in the case of s 9AA, in applying s 8(5) of the Sentencing Act, a sentencing judge may need to test their sense of the appropriateness of the overall sentence, including that which would 'otherwise have been imposed' in the absence of the promise of future cooperation, produced by the application of the section to determine whether one of the integers making up the sentence needs to be revisited.
7. While the Sentencing Act prescribes no particular methodology for applying s 8(5), in my view, a preferable approach (and one more apt to avoid the risk of distortion) is to determine the ultimate sentence to be imposed, having regard to all mitigating factors (including any past and future cooperation), and then to identify the sentence that would otherwise have been imposed without the promise of future cooperation.[7] It is the difference between those two putative sentences that produces the 'reduction' for the purposes of s 8(5).
8. Adopting such an approach has the advantage that the mitigating factors other than future cooperation are not artificially constrained, as

they were in the present case and that they are given appropriate weight in determining the sentence that would otherwise have been imposed in the absence of the undertaking to assist law enforcement. It also preserves, so far as is consistent with the statutory requirements of the Sentencing Act, the instinctive synthesis approach to sentencing.

1. I am tempted to apologise for the burden of complexity that issues such as this add to the already complex task of sentencing. Ultimately, however, modifications such as this to the instinctive synthesis approach are what the Sentencing Act requires.
2. In relation to the outcome of this appeal, as I have said, the ultimate sentence of 8 years and 8 months imprisonment imposed by the learned sentencing judge in this case was well within the bounds of a sound exercise of sentencing discretion. Nevertheless, as the identification of the reduction for the undertaking to assist law enforcement miscarried, the sentence as a whole must be set aside and the appellant resentenced.
3. I agree with Mazza and Mitchell JJA in relation to resentencing and the orders that they propose.

1. On 11 October 2024, the appellant was convicted on his fast‑track plea of guilty of one count of attempting to possess approximately 1.2 tonnes of cocaine, with intent to sell or supply it to another.[8] The maximum penalty for this offence is 25 years' imprisonment, or a fine not exceeding $100,000, or both. The appellant was sentenced by MacLean DCJ to 8 years 8 months' imprisonment, with eligibility for parole, backdated to commence from the date of his arrest on 31 December 2022.
2. The appellant now appeals to this court against that sentence. The appellant relies on a number of grounds, which will be referred to later in these reasons. However, as became apparent at the hearing of the appeal, his essential complaint is that the sentencing judge erred in law

in his treatment of the appellant's past and future cooperation with law enforcement authorities.[9]

1. In the sentencing proceedings, the prosecutor read aloud an amended statement of material facts. The statement was accepted by defence counsel, and incorporated by the sentencing judge into his sentencing remarks.[10] The facts can be summarised as follows.
2. On or about 18 November 2022, the United States Coast Guard (the USCG) intercepted a vessel and seized approximately 2.4 tonnes of cocaine, along with GPS buoys and satellite communication devices. The cocaine was packaged in bricks of approximately 1 kg each, which were, in turn, packed in bales.
3. According to the United States Drug Enforcement Administration (the DEA), the plan was for about half of the cocaine (approximately 1.2 tonnes) to be tied onto a series of flotation and navigation buoys, which would then be dropped at a designated drop point off the coast of Western Australia. The cocaine would then be picked up by then unknown persons by boat, and taken ashore in Western Australia, from where it would be distributed.
4. The drugs and the equipment were taken into custody by the DEA. The DEA informed Western Australian Police of the seizure and provided photographs to WA Police of the drugs and the equipment, particularly of the manner in which the drugs were packaged. The flotation and navigation buoys were delivered to WA Police, who then replicated the bricks of cocaine using an inert substance, and reconstructed the bales using the substituted product and other equipment, in order to conduct a controlled delivery of what, for ease of reference, we will refer to in these reasons as 'cocaine'. In all, the cocaine was repackaged in 30 separate bales, each weighing approximately 41 kg. In each bale there were approximately 40 bricks, weighing roughly 1 kg each. Some of the bricks contained surveillance devices to enable WA Police to track the product. The bales were tethered together with rope, flotation buoys, and the GPS buoys seized by the DEA.
5. At about 2.00 am on 28 December 2022, WA Police executed a controlled delivery of the 30 bales at the intended drop point in the ocean, approximately 40 nautical miles off the coast. The surveillance devices were activated, as were the GPS buoys and seized satellite communication devices, to alert the then unknown persons that the delivery had occurred.
6. The appellant was one of a number of men who were involved in the process of collecting the drugs from the designated point and taking them ashore, from where they would be distributed. The appellant, who is a citizen of the United States of America, was hired in that country to act, as the sentencing judge described it, as the 'eyes and ears' of the organisers of the enterprise. The appellant flew from the United States to Australia on 10 December 2022 and travelled to Perth on 21 December 2022. The appellant was in direct contact, via the encrypted service Threema, with one of the organisers of the enterprise, a person known only as 'The Mexican'. The appellant was to be paid US$50,000 for his services.
7. Another person involved in the enterprise was an Australian, who we will refer to as 'NMM'. NMM, who was an experienced sailor, purchased two vessels, the Catalina and Cool Runnings, and a Toyota LandCruiser vehicle for the purposes of the importation. The Catalina was the larger of the vessels. Cool Runnings was small enough to be put on a trailer. NMM was given the GPS coordinates of the designated point. The original plan was for the Catalina to pick up the bales from the designated point and then transfer them onto Cool Runnings while at sea. Cool Runnings would then land, with the bales on board, and be placed onto a trailer. The trailer would then be driven to a location where the bales would be broken down for the cocaine to be distributed.
8. Shortly after the bales were delivered to the designated point on 28 December 2022, investigators identified a vessel (the Catalina) travelling in close proximity. However, the Catalina was unable to identify the location of the bales at that time. On board the Catalina were the appellant and four other men.
9. At approximately 5.09 am that same morning, the Catalina was observed travelling towards Hillarys Boat Harbour. At about 8.57 am, the Catalina turned around and headed back out to sea, towards the location of the cocaine. At about 12.41 pm, the Catalina was again observed near the bales, but did not find their exact location. At about 1.11 pm, the Catalina began the return journey to Hillarys Boat Harbour, arriving there empty‑handed at approximately 2.55 am on 29 December 2022. Shortly after the Catalina docked, NMM boarded it. At about 6.00 am, NMM and the skipper of the Catalina disembarked and drove to a hotel in Scarborough.
10. In the meantime, the Catalina was taken to the refuelling jetty and refuelled. After being refuelled, it crashed into some rocks at Hillarys Boat Harbour. Police were called to the scene. The appellant was one of the persons on board the vessel when it crashed. Eventually, the Catalina was extricated, apparently without suffering any significant damage.
11. Also on 28 December 2022, at approximately 10.41 pm, NMM and another man entered Hillarys Boat Harbour in the Toyota LandCruiser, towing Cool Runnings. At 11.19 pm, Cool Runnings left Hillarys Boat Harbour with three persons on board to search for the bales.
12. At about 7.00 pm on 29 December 2022, aerial surveillance observed Cool Runnings near the location of the bales. Information from the police surveillance devices revealed the bales were being towed by Cool Runnings towards the small town of Seabird, located approximately 100 km north of Perth. At about 11.54 pm on 29 December 2022, Cool Runnings beached south of the mouth of the Moore River. The three persons on board Cool Runnings tried, without success, to push the vessel off the beach.
13. In the early hours of 30 December 2022, the three men on Cool Runnings were arrested. A search of Cool Runnings located the cocaine on board. Investigators left the cocaine on Cool Runnings, but kept the vessel under surveillance.
14. At about 7.40 am on 30 December 2022, the Catalina departed Hillarys Boat Harbour and headed north towards the location where Cool Runnings had beached. Among the persons on board were the appellant, NMM, and two crew members. NMM was the skipper. At approximately 1.25 pm, the Catalina arrived at the location, but remained approximately 50 m offshore.
15. One of the crew of the Catalina swam ashore and tethered a rope to the bow of Cool Runnings. The Catalina then towed it into open water. At about 3.30 pm on 30 December 2022, the crew of the Catalina were seen to transfer the cocaine from Cool Runnings onto the Catalina. Cool Runnings was then scuttled. The appellant counted that 28 bales had been recovered from the 30 which were apparently expected. This information was conveyed in real time, via Threema, to The Mexican, by the appellant. The Catalina then travelled south towards Hillarys Boat Harbour. In the course of the journey, the crew members broke down the bales and stored the contents on the Catalina. Materials such as ropes and labelling were discarded.
16. At approximately 11.50 pm on 30 December 2022, the Catalina docked at Hillarys Boat Harbour. Because of the sinking of Cool Runnings, the original plan which had involved that vessel storing the cocaine and being towed away could not be implemented. Instead, six large Eskys were purchased at a Bunnings Warehouse store, with the intention that the cocaine on the Catalina could be put into them and moved to the Toyota LandCruiser without raising suspicion. One Esky was filled with 26 bricks from the Catalina. Shortly after, in the early hours of 31 December 2022, police attended Hillarys Boat Harbour and seized a total of 1,112 bricks of the substituted product: 1,086 from the Catalina and 26 from the Esky. That same morning, the appellant, NMM, and six others were arrested and charged.
17. The total quantity of cocaine seized was 1,112 kg. At the time of the seizure, 200 kg of cocaine, if sold by the kilogram, was worth approximately $50 million. If sold by the kilogram, 1.2 tonnes of cocaine was worth approximately $300 million.

1. As part of the appellant's past cooperation, he provided WA Police with a 35‑page statement, which, among other things, sets out in detail his involvement in the offence. A summary of the parts of the statement that deal with his involvement in the offence is set out in the confidential schedule to these reasons. In the interests of justice, the confidential schedule will be the subject of a suppression order.
2. The sentencing judge made numerous findings and observations about the appellant's role in the offence.
3. The sentencing judge accepted that when the appellant agreed to participate in the offence, he thought that the enterprise involved 'only' 150 kg of cocaine, and that the appellant did not appreciate, until he was out at sea and saw the bales, the precise nature and scale of the operation.[11]
4. The sentencing judge found that the appellant was on board the Catalina on its first unsuccessful trip to find the bales on 28 and 29 December 2022, and on its second trip, during which it picked up the bales from Cool Runnings, on 30 December 2022.
5. The sentencing judge expanded on the role performed by the appellant during the Catalina's second trip, in this way:[12]

Significantly, so far as your involvement goes, at paragraph 49 of the State's statement of material facts, it records that during the journey back to Hillarys, that's the boat harbour, after the Cool Runnings had been sunk and you were on the Catalina, that you confirmed that 28 bales out of 30 had been recovered from the ocean and you relayed this information to your overall boss, who is described as the Mexican.

That conduct of [sic] your part is consistent with the finding that I make, that your role in this part of the enterprise was to supervise the collection of the material and report back to the principals overseas as to what was happening. As will be covered later in the course of these remarks, that supervision was important given the view of the Mexican that the people in Australia had taken steps to rip him off or to steal the products themselves, so you really represented an insurance or an overseer in that point to report back that what was being done and could be done to recover the product and to make sure that the product, which was obviously extremely valuable, was not being stolen by the [hired] local help.

1. The sentencing judge also noted that the appellant had maintained contact with the overseas syndicate members, informing them of the progress of the collection of the cocaine as the operation unfolded and developed.[13]
2. The sentencing judge observed that the appellant communicated with others in the enterprise using Threema in order to minimise the risk of detection.[14]
3. The sentencing judge said that the appellant was trusted by the organisers, as demonstrated by the fact that the appellant's word regarding the number of bales recovered from sea would be dependable and reliable.[15] The sentencing judge also said that when The Mexican was informed by the appellant that there were 28 and not 30 bales of cocaine, the appellant assured him that the other two bales had not been hidden. His Honour concluded:[16]

[T]his demonstrates the trust that those overseas had in you and the need for you to be engaged because it seems implausible and unlikely that those overseas would have risked the transportation and the shipment of this huge amount of [product] without a trusted pair of eyes and hands by way of being there to report that things were going as well as they could have gone and being able to report that, in fact, they weren't being ripped off, notwithstanding the travails that the locals had and the missing two bales.

1. The sentencing judge noted that, in the appellant's conversation with The Mexican during the second trip on the Catalina, the appellant was told to dispose of the labels on the bales and make sure that they were not found. His Honour found that the appellant's willingness to ensure that the labels on the bales were disposed of showed that his role was 'not simply just as an inventory person and reporter but [extended to] taking physical steps to advance and protect the enterprise by way of destroying material' that was linked to the cocaine.[17]
2. The sentencing judge described the appellant as 'the lynchpin' between The Mexican and 'the local hired help'.[18]
3. His Honour accepted that the appellant's role involved him obeying instructions that were given to him by The Mexican, and that he did not have 'an independent decision making role' in the enterprise.[19] However, his Honour said:[20]

Notwithstanding that you were obeying instructions, the enterprise could not have been undertaken without your involvement, given the need, it seems, for a representative of that organisation to be here and see the product itself, and the not surprising lack of trust that those overseas had in what I've described as the local hired help. Your offending was not necessarily, I find positively, co‑extensive with the activities and objectives of the broader criminal enterprise.

1. The appellant was 38 years old at the time of the offence, and 40 years old at the time of sentencing.
2. He was born in the United States. The appellant was adopted at an early age, after living with his biological parents for a short period of time. He has siblings who live in the United States, with whom he maintains contact.
3. After graduating from high school, he joined the United States Army. After about four years' service, including in Iraq, he was medically discharged in 2005, after sustaining an injury to his foot in 2003. It is accepted that this injury continues to cause him chronic pain, for which he requires constant pain relief. Presently, he wears a buprenorphine patch. It is accepted that the effects of this injury make imprisonment more onerous for the appellant.
4. After being medically discharged from the United States Army, the appellant has held various occupations. He has not experienced any lengthy period of unemployment.
5. The appellant has been married twice, and has no dependent children of his own. He is not currently in a relationship.
6. The appellant does not appear to have any mental health issue, nor any issue with alcohol or illicit drugs.
7. Apart from two minor convictions in the United States from 2005, the appellant has no offending history. However, on his own admission, the appellant had been engaged in the movement of cocaine for approximately three years before arriving in Australia.

1. The appellant provided significant past and future cooperation, the details of which are set out in the confidential schedule to these reasons. The past cooperation involved substantially more than the provision of the 35‑page statement.

1. The sentencing judge found that the offence was a sophisticated, planned commercial operation 'at the highest end',[21] which involved the attempted possession of a huge weight of cocaine (1.2 tonnes) of very high purity (between 77% and 86%), and which was valued at approximately $300 million. Appropriately, his Honour observed that the offence was carried out for profit, and would have caused incalculable harm to the community had law enforcement authorities in the United States and Australia not intercepted the operation.
2. The sentencing judge found, in effect, that the appellant's motive for committing the offence was to make money; specifically, he expected to be paid US$50,000 for his participation.
3. Putting to one side the appellant's past and future cooperation, the sentencing judge found the following mitigating factors:

(1) The appellant entered a plea of guilty at the earliest reasonable opportunity, for which he received a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

(2) Having regard to the plea of guilty, the appellant's cooperation, and the contents of a letter he wrote to the sentencing judge, his Honour found that the appellant had insight into his offending and was genuinely remorseful.

(3) Given that the appellant is a United States national, it is unlikely that he will receive any visitors while incarcerated in Western Australia.

(4) The appellant had undertaken military service for his country.

(5) The appellant was 'capable of leading a meaningful life and a positive life'.[22]

1. While his Honour observed that the appellant had no criminal history in Australia, and no record to speak of in the United States, he had, on his own admission, been involved in drug dealing in the past.
2. Consistently with settled authority, his Honour acknowledged that the principal sentencing considerations for offences of the kind committed by the appellant were general and personal deterrence.[23]
3. His Honour had regard to the parity principle in sentencing the appellant. The sentencing judge observed that, like the appellant, NMM had been charged with an offence of attempting to possess cocaine with intent to sell or supply it to another, and pleaded guilty to the charge at the first reasonable opportunity. His Honour acknowledged that, on 20 June 2024, he sentenced NMM to 9 years' imprisonment. Like the appellant, NMM also provided past and future cooperation to law enforcement authorities. It is clear from the sentencing remarks that, although the roles played by NMM and the appellant were different, his Honour did not think that the objective criminality of their offending was materially different. His Honour was of the view that the sentences imposed on the two offenders should be very similar.
4. The sentencing judge acknowledged that the witness statement the appellant had provided to police was full and frank, and included information that was previously unknown to police.[24] His Honour regarded the undertaking the appellant made to give evidence against his co‑accused as 'a most important sentencing aspect in this exercise today and does call for a significant further discount'.[25] His Honour found that the appellant's cooperation placed the appellant at ongoing risk.
5. In assessing the size of the discount for the appellant's cooperation, the sentencing judge said:[26]

The State told me, and I accept, that your cooperation and assistance warrants a sentencing discount. The State, with respect accurately, told me that there is no tariff for cooperation and assistance and the size of any sentencing discount depends on the facts and circumstances of a particular case.

Insofar as the discount goes, the capacity for discount is limited insofar, and [NMM] was confronted with the same difficulty, insofar as I've got to be conscious of that there's limited room to discount to a degree without going by the bottom line. And the bottom line in this context is a sentence that is commensurate with the seriousness of the offence, that is, reflects the actual criminality and the seriousness of the offence, the offence obviously being a very serious offence for the reasons described previously.

That being the case, I do propose to discount the penalty by a further 40 per cent, that is additional to the 25 per cent, and that is consistent with the penalty that was imposed upon [NMM]. That seems, and I do consider to be appropriate, given the similarity in detail and in significance that you're undertaking to give evidence against others, and again, but for those discounts and, but for not placing or taking into account matters personal to you, this at some point would have been a term of imprisonment of 20 years' imprisonment.

20 years then becomes 15 years having regard to the 25 per cent, and then the further 40 per cent results in a further reduction of six years, which translates into a term of imprisonment of nine years.

1. His Honour went on to note that, unlike NMM, the appellant had no prospect of receiving visitors whilst he is incarcerated in Western Australia. This, his Honour said, represented a further hardship. However, his Honour said that any further discount for that factor was 'very limited', having regard to the very serious nature of the offending, and having regard to the discounts that he had given for the plea of guilty (25%) and the cooperation (40%).
2. It appears, from [64] ‑ [65] above, that his Honour determined the sentence he imposed on the appellant as follows.
3. His Honour identified the head sentence, for the purposes of s 9AA of the Sentencing Act (that is, the sentence the court would have imposed if the appellant had been found guilty after trial, where there had been no mitigating factors) of 20 years' imprisonment. He then reduced the head sentence by 25% (or five years) in order to recognise the benefits to the State resulting from the appellant's plea of guilty.
4. Next, his Honour applied a further reduction of six years (being 40% of 15 years) for cooperation. His Honour did not expressly state whether the 40% was a combined discount for past and future cooperation, or just for future cooperation. As we will explain later in these reasons, we infer that the further reduction of six years was for future cooperation.
5. Thus, it appears that the further reduction of four months that his Honour applied, to produce the final sentence of 8 years 8 months' imprisonment, reflected all of the other mitigation available to the appellant, having regard to the factors referred to in [59] pars (2) ‑ (5) above, and including the mitigation afforded to the appellant for his past cooperation.

1. Originally, the appellant relied on three grounds of appeal. Ground 1 alleged, in effect, that his Honour erred by giving a discount for cooperation which impermissibly, under s 8(5) of the Sentencing Act, combined both past and future cooperation. Ground 2 alleged that there was an implied error of law because the total discount the sentencing judge gave for all mitigating factors, other than the appellant's plea of guilty, was manifestly inadequate. Ground 3 alleged an infringement of the parity principle, having regard to the sentence imposed upon NMM. Specifically, it was said that there should have been a greater disparity between the sentence imposed upon the appellant, on the one hand, and the sentence imposed upon NMM, on the other.
2. The respondent conceded that the error alleged by ground 1 had been established because the appellant had not been afforded separate mitigation for the provision of the 35‑page statement he gave to police.[27]
3. At the outset of the hearing, the coram raised with Mr Wilson, counsel for the appellant, whether ground 1, as drafted, accurately captured the error made by the sentencing judge in respect of the appellant's cooperation.[28] With the consent of the respondent, the appellant was given leave to add an additional ground of appeal, ground 4, in the following terms:
   1. The learned sentencing judge erred in law in failing to properly state the extent to which the court had reduced the sentence it would otherwise have imposed on the appellant because he undertook to assist law enforcement authorities, as required by s 8(5) of the Sentencing Act 1995 (WA).

(a) The sentencing judge determined the sentence which was commensurate with the seriousness of the offence by:

(i) identifying the head sentence for the purposes of s 9AA of the Sentencing Act (being the sentence the court would have imposed if the appellant had been found guilty after a plea of not guilty and there were no mitigating factors) of 20 years;

(ii) reducing the head sentence by 5 years or 25% in order to recognise the benefits to the State resulting from the appellant's plea of guilty;

(iii) then applying a further reduction of 6 years to the head sentence for future cooperation; and

(iv) then applying a further reduction of 4 months to the head sentence for all other mitigating factors (including past cooperation).

(b) The extent of the reduction applied by the sentencing judge to other mitigating factors (including past cooperation) was influenced by the reduction which the trial judge had already applied in respect of future cooperation and would have been greater if the appellant had not undertaken to assist law enforcement authorities.

(c) As such, the reduction of 6 years applied to the head sentence did not represent the extent to which the court reduced the sentence it would have imposed if the appellant had not undertaken to assist law enforcement authorities but all other mitigating factors (including past cooperation) were present.

(d) Further, if the appellant had not undertaken to assist law enforcement authorities but all other mitigating factors (including past cooperation) were present, a sentence of 14 years 8 months' imprisonment (being the 8 years 8 months imposed by the sentencing judge plus the 6‑year reduction for future cooperation) would be manifestly excessive.

1. Counsel for the respondent, Ms Cook, conceded at the appeal hearing that the error alleged in ground 4 had been made out. In our opinion, the respondent's concession was properly made. The sentencing judge made the error alleged in ground 4. The error is material in the sense that it could have resulted in the imposition of a different (and lower) sentence on the appellant. In these circumstances, it is unnecessary to deal with grounds 1 ‑ 3. The balance of these reasons will be focused upon ground 4 and the resentencing of the appellant.

1. Ground 4 concerns the sentencing judge's treatment of the appellant's past cooperation and promise to provide future cooperation, after sentencing.
2. The legal framework applicable to the treatment of an offender's cooperation was recently explained in this court in GRL v The State of Western Australia.[29] For convenience, we repeat what the court said in that case.
3. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) states that the seriousness of an offence must be determined by taking into account:

(a) the statutory penalty for the offence; and

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

(c) any aggravating factors; and

(d) any mitigating factors.

1. Aggravating factors and mitigating factors are defined in s 7 and s 8 of the Sentencing Act, respectively. Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.[30]
2. It is well established that a sentencing judge is not bound, absent any statutory requirement, to quantify the discount for a mitigating factor. The task of a sentencing judge is, subject to any statutory requirement, to intuitively synthesise all relevant sentencing considerations in order to arrive at a sentence commensurate with the seriousness of the offence.[31]
3. Although it scarcely needs to be said, the provision by an offender of cooperation to law enforcement authorities is a mitigating factor. The relevant legal principles relating to an offender's cooperation are well established and have been explained in many cases. See, for example, SYL v The State of Western Australia.[32] It is unnecessary to repeat the relevant principles.
4. Cooperation falls into two broad categories: past cooperation, that is, cooperation given to law enforcement authorities prior to sentencing; and future cooperation, that is, a promise to cooperate after sentencing. Past cooperation is not subject to any statutory requirement that the discount be quantified. A sentencing judge may quantify the discount for past cooperation, but is not required to do so.
5. The position with future cooperation is different. Future cooperation is the subject of a statutory requirement that the discount be quantified. The relevant statutory provision is s 8(5) of the Sentencing Act, which states:

If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.

1. The requirement in s 8(5) that the court must state the fact and the extent of the reduction for promised future cooperation in open court is important to the sentencing process, having regard to s 37A of the Sentencing Act. Section 37A provides for the consequences for an offender who, having undertaken to assist law enforcement authorities, fails wholly or partly to fulfil the undertaking. In such circumstances, the sentencing court may recall the order imposing the reduced sentence and impose a sentence based on the full sentence, that is, the sentence that would have been otherwise imposed had the offender not undertaken to assist law enforcement authorities.[33]
2. Thus, when a court reduces the sentence it would otherwise have imposed on an offender for an offence because the offender has undertaken to assist law enforcement authorities, the court is obliged to state that fact, and the extent of the reduction, in open court. A sentencing judge may comply with the requirement in s 8(5) to state the extent of the reduction by stating the reduction in terms of the actual period, for example, in actual years or months; or by stating a percentage; or both. Whatever method is used, it is essential for the sentencing judge to ensure that, in the event the offender should subsequently fail, wholly or partly, to fulfil the undertaking, the court recalling the order imposing the original sentence is able to ascertain the extent of the reduction given at first instance. The specification of the extent of a reduction, as required by s 8(5), is part of the sentence. We would add that where an offender who has been given a reduction of sentence under s 8(5) gives evidence at the trial of a co‑accused, it will be necessary for the prosecutor and counsel for a co‑accused to know what the precise discount was to the offender's sentence. This is because promised cooperation is nearly always a matter relevant to the credibility of the offender's testimony. The need for the accused and their legal representatives in criminal trials in which the cooperating person is a witness to be aware of, and to be in a position to adduce evidence of, the extent of the discount given for doing so, explains the requirement to state the fact and extent of the reduction in open court.
3. Section 8(5) of the Sentencing Act does not require the sentencing court to abandon the instinctive synthesis approach to sentencing. That is, it does not require the sentencing court to adopt a staged approach of giving separate discounts for each mitigating factor. We agree with Quinlan CJ's observations as to the dangers in adopting such an approach, which manifested themselves in the present case. In a case to which s 8(5) applies, it is open to the sentencing court, and may ordinarily be preferable, for the court to adopt an approach along the following lines.
4. First, s 9AA of the Sentencing Act requires the sentencing court to identify (but not to state in open court) the 'head sentence' which would have been imposed had the offender been found guilty after trial and there were no mitigating factors. The sentencing court must then identify the reduction to the head sentence to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the guilty plea. The extent of the reduction must be stated in open court and is usually stated in open court as a percentage of an unspecified head sentence. Section 9AA mandates this departure from the instinctive synthesis approach to sentencing.
5. Having applied s 9AA of the Sentencing Act, the sentencing court then returns to the instinctive synthesis sentencing approach and determines the sentence which is commensurate with the seriousness of the offence having regard to all mitigating factors without necessarily attaching separate percentage or numerical discounts to individual mitigating factors other than the guilty plea.
6. In this context, the requirement in s 8(5) of the Sentencing Act is to state the fact and extent of the reduction to the sentence the court would otherwise have imposed because the offender undertakes to assist law enforcement authorities. Stating the extent of the reduction involves ascertaining the sentence the court 'would otherwise have imposed on the offender' if the undertaking had not been given. This may involve the court considering the sentence which would have been commensurate with the seriousness of the offence in the hypothetical situation where the offender had not given the undertaking but the circumstances (including past cooperation) were the same. In some cases, this may be the only means by which the extent of the reduction in the sentence which the court would otherwise have imposed because of the undertaking can be fairly ascertained.
7. In the present case, the sentencing judge gave a discount of 40%, or six years, for the appellant's cooperation, but he did not expressly specify whether this discount was solely for his promised future cooperation. It is arguable that the reduction was for both future and past cooperation, as the appellant contended in ground 1. However, in our view, having regard to the sentencing remarks as a whole, the better construction of the sentencing remarks is that the 40% discount was, in fact, for future cooperation alone.
8. In his sentencing remarks, his Honour said:[34]

The fact of you providing an undertaking to give evidence is also significant. And the statement contains a summary of your role in the offending, which is expressly referred to by the State at paragraph 128 of its sentencing submissions, and which I have referred to previously in the course of these remarks.

And I do accept that the statement is significant and does represent a wholesale and sincere effort on your part to tell investigators all that you knew in relation to this particular offending.

The State tell me that there are other matters by way of paragraph 128(b) of the sentencing submissions. And I accept that there are other matters. And those are other matters in [sic] their own are significant. (emphasis added)

1. The first two paragraphs of the quotation appear to refer to the appellant's undertaking to give evidence in accordance with the 35‑page statement he gave to law enforcement authorities after his arrest.
2. The third paragraph of the quoted statement concerns 'other matters'. In that paragraph, his Honour refers to other matters that appear in par 128(b) of the State's sentencing submissions. The reference to par 128(b) is a transcription error. Paragraph 128(b) of the State's sentencing submissions concerned the appellant's plea of guilty. The audio record of the sentencing remarks reveals that his Honour, in fact, referred to par 128(e) of the State's sentencing submissions, which concerned the appellant's past cooperation. This is consistent with what his Honour said later in the sentencing remarks:[35]

The fact of your isolation and distance does call for some marginal adjustment of the nine years in your favour, along with the military service and along with other matters that I'm aware of and have been referred to insofar as the State's sentencing submissions at paragraph [128](e). Those matters, in my view have been most significant in justifying you further discount.

But the extent to which I can give a further discount is really very limited by regard to the very serious nature of the offending overall and by way of the discounts of 25 per cent and 40 per cent that have already been given. It's as much as I can do to reduce the nine years by a period of four months to take into account those matters that I have referred to. (emphasis added)

1. It appears that his Honour's reference to 'other matters' in the passage quoted above refers to the appellant's past cooperation. It is also evident from the passage that his Honour gave a further discount of four months for the past cooperation, and for the appellant's isolation and distance by having to serve a term of imprisonment in Western Australia, and for his military service. As his Honour explained, such a modest discount for those matters was justified by the granting of substantial discounts for the appellant's plea of guilty (25%), and promised future cooperation (40%).
2. Thus, as asserted in particular (b) of ground 4, the extent of the reduction applied by the sentencing judge to other mitigating factors (including past cooperation) was influenced by the reduction his Honour had already applied in respect of promised future cooperation, and would have been greater if the appellant had not undertaken to assist law enforcement authorities.
3. Having regard to the significance of the appellant's past cooperation, as set out in the confidential schedule, it is difficult to justify the disproportion between the discount for promised future cooperation (40%, or six years) and for all of the other mitigating factors, including past cooperation (only four months). This disproportion bespeaks error in his Honour's methodology. So too, the quantum of each discount. Forty percent or six years for future cooperation is, in the circumstances of this case, excessive; and 4 months for past cooperation, too little.
4. Furthermore, under s 8(5) of the Sentencing Act, a sentencing judge is required to identify the sentence that would have been imposed if there had been no undertaking to assist law enforcement authorities. As referred to above, under s 37A of the Sentencing Act, if an offender fails, wholly or partly, to fulfill their undertaking, the sentencing court may recall the order imposing a reduced sentence and impose the sentence that would have been otherwise imposed had the offender not undertaken to assist law enforcement authorities.
5. As things stand, if the appellant fails to fulfill his undertaking, he would be liable to be sentenced to 14 years 8 months' imprisonment. This sentence would be, having regard to the appellant's plea of guilty; his past cooperation, which, we emphasise, went beyond making the 35‑page statement; and other mitigation, plainly unjust and, thus, manifestly excessive.
6. It is clear that his Honour's assessment of the discount to be given for future cooperation under s 8(5) of the Sentencing Act has miscarried. As counsel for the respondent conceded, the error expressed in ground 4 has been made out and was material.[36] The appellant must be resentenced.

1. At the hearing of the appeal, the appellant's application to adduce additional evidence in the appeal, dated 26 August 2025, was granted. The additional evidence sought to be adduced was relevant only to the question of resentencing. It comprised the affidavit of Mr Wilson, sworn 26 August 2025, and other documents designated 'Annexure A' and 'Annexure B'. The contents of Annexure A are confidential. The contents of Annexure B concern the ongoing effects of the injury to the appellant's foot, referred to in [51] above, and their consequences to his imprisonment.
2. In resentencing the appellant, we have considered all of the material that was before the sentencing judge, and the additional evidence. We must specify the discounts to be given for the plea of guilty; otherwise, the process is one of intuitive synthesis. It is also necessary to state the fact and extent of the reduction in the sentence we would otherwise imposed because of the undertaking.
3. It is unnecessary for us to repeat what we have already said concerning the facts of the offending, the appellant's role in it, and his personal circumstances. We have taken into account all of the mitigating factors.
4. This court's task is to sentence the appellant afresh, having regard to the sentencing judge's unchallenged findings of fact.
5. The maximum penalty for the offence committed by the appellant is, as we mentioned at the outset of these reasons, 25 years' imprisonment or a fine of up to $100,000, or both.
6. The general sentencing principles with respect to offences of the kind committed by the appellant are uncontroversial. The primary sentencing considerations are personal and general deterrence. Because of the emphasis that must generally be given to deterrence, the weight that can be given to matters personal to an offender, although not irrelevant, is limited.
7. The fact that the offence committed by the appellant was an attempt, as opposed to a completed offence, where the prohibited drug was substituted for an inert substance by law enforcement authorities, is not mitigating.
8. The appellant willingly involved himself in an international enterprise concerning a massive quantity of cocaine, which, had it been sold in kilogram lots, would have reaped in the order of $300 million and caused inestimable harm to the community. While the appellant was unaware of the actual quantity of cocaine involved in the offence (approximately 1.2 tonnes), the fact that he believed that the quantity of cocaine was in the order of 150 kg ‑ 200 kg is not of great moment. Either quantity was extraordinarily large and had the capacity to cause the harm we have mentioned. Furthermore, once the appellant became aware of the huge quantity of cocaine, he continued his involvement in the commission of the offence.
9. The appellant travelled to Australia to participate in the offence. He was in direct contact with the organisers, and took instructions from them. He was part of a team whose objective was to pick up the cocaine from the designated point, take it ashore, and unpack it. It is obvious that, once unpacked, the product would ultimately be sold.
10. Specifically, and importantly, the appellant was, as the sentencing judge described, the 'eyes and ears' of the organisers. While he may not have planned to have been on board the Catalina on its two trips, he willingly agreed to do so. It appears that he was prepared to do whatever he was asked to do in order to successfully land the cocaine.
11. The appellant was not at the upper echelon of the enterprise. He did not organise it, and was not going to be a part of the distribution of the cocaine in Australia. However, it is clear that he was trusted by those in the upper echelon of the syndicate to ensure the success of the operation. It is significant that The Mexican reposed complete trust in the appellant's ability to truthfully report the number of bales of cocaine that were put on the Catalina.
12. In our opinion, the appellant's objective criminality was very high, although not in the category of the worst case.
13. Although the appellant's personal circumstances provided limited mitigation, his plea of guilty at the first reasonable opportunity and his past and promised future cooperation were substantial mitigating factors.
14. As for the plea of guilty, like the sentencing judge, we would give a discount, under s 9AA of the Sentencing Act, of 25% from the head sentence, as defined in s 9AA(1) of the Sentencing Act.
15. Next, it is necessary to have regard to the other mitigating factors, including the appellant's genuine remorse, the fact that he will suffer additional hardship by having to serve his sentence away from his homeland and with little possibility of visitors, his military service, the consequences of his foot injury, and his prospects of rehabilitation. While the appellant has no record of convictions in Australia, and only a modest record in the United States, he is not entitled to any discount for prior good character, given his admitted involvement in drug dealing prior to the commission of the present offence.
16. In determining the sentence which is commensurate with the seriousness of the offence it is also necessary to have regard to the appellant's past and future cooperation.
17. The rationale for giving an offender a discount for cooperation reflects two underlying principles. The first is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The second is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law‑abiding citizens that crimes should be detected and successfully prosecuted.[37]
18. The public interest in encouraging offenders to cooperate with law enforcement authorities in the detection, apprehension and prosecution of crime applies with particular force in relation to offences of dealing or trafficking in prohibited drugs.
19. There is no tariff for a discount for cooperation.
20. There is a limit on the discount that may be provided for cooperation. As Buss JA explained in MXP v The State of Western Australia:[38]

When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.

1. Accordingly, the sentence must still meet the standard in s 6(1) of the Sentencing Act; that is, the sentence must be commensurate with the seriousness of the offence.
2. Where a separate discount is provided for a guilty plea, there is less scope to provide a large reduction for assisting authorities. There is only 'limited room to discount a sentence without going below the bottom line',[39] that is, a sentence that is commensurate with the seriousness of the offence.
3. In our opinion, the appellant's past cooperation, including the provision of the 35‑page statement, and having regard to the matters contained in the confidential schedule to these reasons, along with the contents of Annexure A of Mr Wilson's affidavit, merits a significant discount, which we have given.
4. So, too, does the appellant's undertaking to provide future cooperation. This court has been informed that the appellant is scheduled to give evidence at the trial of some of his co‑accused.
5. There remains the question of parity. The legal principles applicable to this principle are well established and were explained in Ngo v The Queen.[40] In our opinion, the parity principle applies to the resentencing of the appellant. Acknowledging that the roles played by NMM and the appellant were different, both were important. Both the appellant and NMM were not involved in the upper echelon of the enterprise, but were clearly trusted. We regard their objective criminality as equal. Each pleaded guilty at the first reasonable opportunity and was given a 25% discount pursuant to s 9AA of the Sentencing Act. Each of them also cooperated with law enforcement authorities; although, based on the information provided to this court, the appellant's past cooperation is substantially greater than that of NMM. This is the only real point of differentiation between the two of them. In our opinion, having regard to this factor, some difference in favour of the appellant is required to avoid an objectively justifiable sense of grievance on his part.
6. However, we are mindful that, ultimately, the sentence that is to be imposed must conform with s 6(1) of the Sentencing Act; that is, it must be commensurate with the seriousness of the offence having regard to the matters in s 6(2). Parity of sentences does not require the imposition of a sentence that is entirely disproportionate to the offence.
7. Having regard to the very serious nature of the offending and the significance of general deterrence as a sentencing consideration the sentences imposed on the appellant and NMM were lenient. Had we been sentencing both offenders at first instance, we would have imposed higher sentences than the sentencing judge. However, NMM has been sentenced, and the State has not appealed against NMM's sentence. Given the significantly greater extent of his past cooperation, the appellant would be left with a justifiable sense of grievance if he did not receive a lower sentence than NMM.
8. However, given these matters, there is scope for only a small difference between the 9‑year sentence imposed on NMM and the sentence to be imposed on the appellant having regard to the parity principle.
9. Having regard to all of the relevant facts and circumstances of this case, including parity, we would impose a sentence of 8 years 6 months' imprisonment on the appellant, with eligibility for parole, backdated to commence on 31 December 2022.
10. If the appellant had not undertaken to assist law enforcement authorities by giving evidence against his co‑accused, but all other circumstances were the same, then we would have imposed a sentence of 11 years 6 months' imprisonment. The extent of the reduction in the appellant's sentence because of his undertaking to assist law enforcement authorities is therefore 3 years.
11. It is obvious that the sentence we would impose is only marginally less than that imposed at first instance. Given the extent of the reduction, some might question why this court's intervention was required. This court's intervention was required because the appellant was not sentenced according to law. Left unremedied, had the appellant not complied with his undertaking, as pointed out at [96] above, he would have been required to serve a manifestly excessive term of imprisonment.
12. The orders that we would make are as follows:
    1. Leave to appeal is refused on grounds 1, 2 and 3.
    2. Leave to appeal is granted on ground 4.
    3. The appeal is allowed.
    4. The sentence imposed by MacLean DCJ on 11 October 2024 is set aside.
    5. Having reduced the sentence of imprisonment this court would have imposed by 3 years because of the appellant's undertaking to assist law enforcement authorities under s 8(5) of the Sentencing Act 1995 (WA), the appellant is sentenced to 8 years 6 months' imprisonment with eligibility for parole, backdated to commence on 31 December 2022.

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

[1] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [39] (Gleeson CJ, Gummow, Hayne & Callinan JJ).

[2] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 (Wong v The Queen) [75] (Gaudron, Gummow & Hayne JJ); SKL v The State of Western Australia [2024] WASCA 32 [24] (Mazza & Hall JJA).

[3] Wong v The Queen [76] (Gaudron, Gummow & Hayne JJ).

[4] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [80] (McLure P; Mazza JA & Hall J agreeing); Greenland v The State of Western Australia [2017] WASCA 83 (Greenland) [158] (Newnes & Mazza JJA, Beech J).

[5] Greenland [157] (Newnes & Mazza JJA, Beech J).

[7] In a case in which s 9AA applies, that ultimate sentence will have been determined applying the iterative process referred to in Greenland at [4] above.

[8] This offence is contrary to s 6(1)(a), read with s 33(1) and s 34(1)(aa), of the Misuse of Drugs Act 1981 (WA).

[9] The appeal was filed out of time. At the hearing, an extension of time to appeal was granted.

[29] GRL v The State of Western Australia [2024] WASCA 146 [37] - [44].

[30] Sentencing Act, s 8(1).

[31] VXM v The State of Western Australia [2022] WASCA 74 [7] (Buss P & Mazza JA).

[32] SYL v The State of Western Australia [2021] WASCA 16 [72] ‑ [83] (Vaughan JA).

[33] Sentencing Act, s 37A(1).

[37] See A Child v The State of Western Australia [2007] WASCA 285 [12].

[38] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [52].

[39] SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [6].

[40] Ngo v The Queen [2017] WASCA 3 [36] ‑ [39].