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[2021] WASCA 215
General information, not legal advice.
Court of Appeal (WA)
2021-12-16
Buss P
Original judgment source is linked above.
1 This is an application for leave to appeal against sentence.
2 The appellant was convicted on his pleas of guilty of 35 counts of offering to sell a prohibited drug to another. Twenty‑nine of the counts involved an offer to sell methylamphetamine, four of the counts involved an offer to sell cannabis and the remaining two counts involved a single offer to sell cocaine and heroin, respectively.
3 On 4 March 2021, Goetze AUDCJ imposed a total effective sentence of 5 years 2 months' imprisonment with parole eligibility, to commence on that day. The individual offences committed by the appellant and the sentences imposed are set out in the following table:
On 25 January 2017 at Perth, the appellant offered to sell 900 g of cannabis to another, contrary to s 6(1)(c) Misuse of Drugs Act 1981 (WA) (MDA).
10 years' imprisonment and/or a fine not exceeding $20,000
Between 16 April 2017 and 26 July 2017 at Perth, the appellant offered to sell 4 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 21 April 2017 and 17 May 2017 at Perth, the appellant offered to sell 1.375 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 5 June 2017 and 27 September 2017 at Perth, the appellant offered to sell 6.05 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 20 June 2017 and 25 September 2017 at Perth, the appellant offered to sell 5.875 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 25 June 2017 and 16 September 2017 at Perth, the appellant offered to sell 3.25 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 2 July 2017 at Perth, the appellant offered to sell 28 g of cocaine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 9 July 2017 and 31 October 2017 at Perth, the appellant offered to sell 2.3 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 14 July 2017 at Perth, the appellant offered to sell 1 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 20 July 2017 and 28 October 2017 at Perth, the appellant offered to sell 2.3 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 21 July 2017 at Perth, the appellant offered to sell 453.6 g of cannabis to another, contrary to s 6(1)(c) MDA.
10 years' imprisonment and/or a fine not exceeding $20,000
Between 3 August 2017 and 24 September 2017 at Perth, the appellant offered to sell 1.4 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 9 August 2017 at Perth, the appellant offered to sell 0.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 9 August 2017 and 2 September 2017 at Perth, the appellant offered to sell 1.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 12 August 2017 and 16 September 2017 at Perth, the appellant offered to sell 3.3 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 12 August 2017 and 7 November 2017 at Perth, the appellant offered to sell 9.7 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 19 August 2017 at Perth, the appellant offered to sell 453.6 g of cannabis to another, contrary to s 6(1)(c) MDA.
10 years' imprisonment and/or a fine not exceeding $20,000
Between 19 August 2017 and 5 October 2017 at Perth, the appellant offered to sell 1.814 kg of cannabis to another, contrary to s 6(1)(c) MDA.
10 years' imprisonment and/or a fine not exceeding $20,000
Between 7 September 2017 and 31 October 2017 at Perth, the appellant offered to sell 10.9 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 22 August 2017 and 14 September 2017 at Perth, the appellant offered to sell 3.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 18 September 2017 and 7 November 2017 at Perth, the appellant offered to sell 5.25 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 19 September 2017 at Perth, the appellant offered to sell an unknown amount of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 20 September 2017 and 8 November 2017 at Perth, the appellant offered to sell 10.625 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 20 September 2017 and 1 October 2017 at Perth, the appellant offered to sell 1.2 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 21 September 2017 at Perth, the appellant offered to sell 0.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 22 September 2017 at Perth, the appellant offered to sell 3.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 28 September 2017 and 23 October 2017 at Perth, the appellant offered to sell 4.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 2 October 2017 at Perth, the appellant offered to sell 1.75 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 19 October 2017 at Perth, the appellant offered to sell 1.75 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 20 October 2017 at Perth, the appellant offered to sell 0.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 21 October 2017 at Perth, the appellant offered to sell 0.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 22 October 2017 at Perth, the appellant offered to sell 1.75 g of heroin to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 22 October 2017 at Perth, the appellant offered to sell 3.5 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
Between 23 October 2017 and 25 October 2017 at Perth, the appellant offered to sell 1.75 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
On 27 October 2017 at Perth, the appellant offered to sell 0.87 g of methylamphetamine to another, contrary to s 6(1)(c) MDA.
25 years' imprisonment and/or a fine not exceeding $100,000
4 The appellant seeks leave to appeal on two grounds. Ground 1, as pleaded, alleges that the 15% discount allowed for each of the appellant's pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA), was manifestly inadequate. At the hearing of this application, senior counsel for the appellant also submitted that his Honour erred in finding that the pleas of guilty were not entered at the first reasonable opportunity. Ground 2 alleges, in substance, that the total effective sentence infringed the first limb of the totality principle.
5 For the following reasons, leave to appeal should be refused on each ground and the appeal dismissed.
6 On 8 November 2017, the appellant was travelling in a motor vehicle in East Victoria Park. Police officers stopped the vehicle and the appellant's mobile telephone was seized.
7 An examination of the text messages stored in the appellant's mobile telephone revealed that, between 25 January 2017 and 8 November 2017, the appellant made offers to sell to others prohibited drugs, being methylamphetamine, cannabis, heroin and cocaine. In total, the appellant offered to sell, for various sums of money, 93.145 g of methylamphetamine, 3.6212 kg of cannabis, 1.75 g of heroin and 28 g of cocaine.
8 The appellant made offers to sell prohibited drugs to 32 of the contacts listed in his mobile telephone. Each count related to one named contact. A small number of contacts were the subject of more than one count because the appellant offered to sell that contact more than one kind of prohibited drug. For example, counts 1 and 2 concerned offers to sell to a person named 'Blaire' cannabis (count 1) and methylamphetamine (count 2).
9 Many of the counts were alleged to have been committed over a period of time. For example, count 4 was alleged to have occurred between 5 June 2017 and 27 September 2017. In such counts, as set out in the amended statement of material facts, the State particularised a number of offers that were made by the appellant to the buyer. Again using count 4 as an example, it was alleged that the appellant offered to sell 'Les' small quantities of methylamphetamine on 12 occasions. In his sentencing remarks, his Honour said that there were, in total, 120 (separate) offers made by the appellant to his various customers.
10 The table at [3] above sets out, for each count, the total quantity of the prohibited drug involved.
11 In his written submissions to this court (and repeated in oral submissions) it was said that the appellant was not charged with the present offences until about 18 January 2019, a week after completing a 10‑month term of immediate imprisonment in respect of three counts of aggravated burglary, one count of burglary and one count each of reckless driving, failing to stop and aggravated reckless driving. These offences were committed on 15 July 2017 and 25 December 2017. However, the committal report (and prosecution notices) do not bear out the appellant's submission that he was not charged with the present offences until about 18 January 2019.
12 It appears from these documents that the appellant was charged with the present offences on 23 March 2018. He did not enter pleas of guilty to them until 30 August 2019.
13 His Honour was provided with two pre‑sentence reports and separate reports written by a clinical psychologist and a forensic psychiatrist.
14 The appellant was 25 years of age when he committed the offences and 29 when he was sentenced.
15 The appellant's parents separated when he was 12. He witnessed episodes of domestic violence during his upbringing. After his parents separated, he continued living with his mother. He left school at the end of year 10 and completed an apprenticeship in motor mechanics. Later he trained and worked in plastic fabrication. Prior to his imprisonment, he had last worked in August 2017.
16 The appellant first used cannabis at the age of 12 years and methylamphetamine at the age of 16 years. Up until his incarceration in 2018, apart from a period in his early twenties, the appellant had been a regular user of methylamphetamine. He was a heavy user of the drug at the time of his offending.
17 The author of the psychological report noted that the appellant minimised aspects of his offending and lacked insight, empathy and accountability.[1] The psychologist's assessment of the appellant was impeded by the appellant's tendency to provide inconsistent information. This, along with other aspects of his presentation, historical inconsistencies and his response to psychometric testing, meant that the psychologist was unable to determine, with confidence, the psychological factors relevant to his risk of further offending.
18 The forensic psychiatrist concluded that the appellant did not suffer from any 'formal mental illness'. The forensic psychiatrist noted that the appellant had 'self‑managed his own drug withdrawal in prison' and claimed that he had been abstinent from illicit drugs during and after his imprisonment.
19 The appellant's criminal and traffic history show that prior to 15 July 2017, he had committed no criminal or traffic offences. Since then, the appellant has committed numerous offences. We have already referred to the offences for which he was imprisoned for 10 months. In addition to these offences, the appellant has been convicted of driving offences, possession of methylamphetamine and drug paraphernalia, possession of a prohibited weapon, and possession of stolen or unlawfully obtained property. His criminal history is largely consistent with his drug addiction.
20 It is clear from references provided to the sentencing judge that the appellant's mother and other members of his family are supportive of him and his efforts to remain drug free.
21 Since being released from prison in January 2019, the appellant has not committed any further offences.
22 His Honour found that the appellant committed the present offences in order to fund, and thereby sustain, his drug habit.
23 His Honour observed that the appellant offered for sale four different prohibited drugs and that his offending was aggravated by its repeated and persistent nature. The sentencing judge referred to a number of mitigating factors. Pursuant to s 9AA of the Sentencing Act, he gave a discount of 15% for the pleas of guilty. We will say more about this when dealing with ground 1 below. In addition to the pleas of guilty, his Honour accepted that the appellant was remorseful and had been 'a couple of years clear of drug use without any further offending'. In effect, his Honour recognised that the appellant had taken positive steps towards his rehabilitation.
24 It is clear from the sentencing remarks as a whole that his Honour regarded the appellant's offending as serious and that emphasis needed to be given to the sentencing objective of general deterrence.
25 His Honour referred to and applied the totality principle, stating that 'there will be quite a degree of concurrency'.[2]
The sentence imposed by the learned sentencing judge was manifestly excessive by reason that the discount allowed for the appellant's plea[s] of guilty was manifestly inadequate in all the circumstances of the case.
27 As stated above, the sentencing judge reduced each of the individual sentences he imposed by 15%, pursuant to s 9AA of the Sentencing Act.
28 Although the ground alleges, in effect, an implied error by the sentencing judge in his assessment of the discount he gave for the pleas of guilty, senior counsel for the appellant in oral argument also submitted that his Honour made an express error by wrongly finding that the appellant had not entered his pleas of guilty at the first reasonable opportunity.[3]
Section 9AA of the Sentencing Act
29 Section 9AA of the Sentencing Act relates to the discount that a sentencer may give for a plea of guilty when imposing a term of imprisonment.
9AA. Plea of guilty, sentence may be reduced in case of
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA of the Sentencing Act - legal principles
31 The legal principles applicable to the assessment of any reduction of a sentence for a plea of guilty pursuant to s 9AA of the Sentencing Act were described by Buss P, Mazza and Mitchell JJA in NI v The State of Western Australia:[4]
The general principles relating to the application of s 9AA are set out in Mussarri v The State of Western Australia, recently adopted in Hume v The State of Western Australia, and need not be repeated here.
Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The court may reduce the head sentence:
'[I]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.'
These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.
The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:
(a) securing the conviction of a person who has committed a criminal offence;
(b) the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c) if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d) avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e) the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [point] (a) above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.
However, as Buss P and Mazza JA noted in Winmar v The State of Western Australia, in evaluating the appropriate discount to be given under s 9AA it is important to bear in mind the underlying purpose or object of the provision. As Mazza JA and Hall J observed in Gobetti v The State of Western Australia:
'It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.'
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust. (citations omitted)
How the pleas of guilty were treated in the sentencing proceedings
32 In the sentencing proceedings, the following exchange took place between defence counsel and his Honour about the timing of the pleas of guilty and their mitigating effect:[5]
[PEARSON, MS:] He has also ceased using illicit substances since he went into custody in 2018 and instructs to me that he has been clean since, your Honour. So that's quite a considerable period of over three years where he engaged in some assistance from services and the rest has been on his own but he has been able to maintain that sobriety and done well. We say that's significant.
In terms of his pleads [sic] of guilty, it was at the committal stage. Although it was an intention to plead, it was some confirmation of values and the like that we required. There was some further delay in this matter that your Honour might see from the court file in terms of calculations over quantities which delayed the first sentencing of this matter. There was some discussions with the State and there were amendments made by agreement between the parties. But I make the point and the fact it was never listed for trial, [the appellant] hasn't wasted those resources and avoided that need. We've got to the point that we're at today where he has wanted to accept responsibility and plead guilty.
GOETZE DCJ: So this has all come from telephone intercepts?
PEARSON, MS: From a download, yes, sir.
GOETZE DCJ: So it's, you would have to say, a strong State case.
PEARSON, MS: I don't think we would persuade your Honour otherwise. It was more so confirming the values reflected what was in the messages and there were, as I said your Honour, amendments made so the initial values weren't completely correct in that respect. (emphasis added)
33 In the first italicised portion of the above exchange, defence counsel's statement 'it was an intention to plead' is to be understood as a reference to the appellant's pleas of guilty in the Magistrates Court at committal mention. The pleas of guilty were entered at a committal mention hearing on 30 August 2019. The reference to 'some further delay in this matter' is to be understood as a reference to the delay in sentencing the appellant after the committal mention hearing. As explained by defence counsel, this delay involved discussion between the parties over the quantities of the prohibited drugs the subject of the charges. Defence counsel did not submit that the pleas of guilty were entered or indicated at the first reasonable opportunity.
34 As can be seen from the second italicised portion, defence counsel, in substance, accepted that the State's case against the appellant was strong.
35 In respect of the pleas of guilty, the prosecutor said:[6]
In terms of the plea of guilty, the State would say that it's certainly not the earliest opportunity - the earliest reasonable opportunity but do accept that some of the delay is related to negotiations in terms of the actual amounts and what has constituted each particular offer and so that - once that has been done, obviously, the plea of guilty was maintained and there is some - you know, considerable utility for the fact that this that [sic] didn't have to go to trial and there should be a discount for that. (emphasis added)
36 In his sentencing remarks, his Honour said the following about the pleas of guilty:[7]
Mitigating that is your cooperation, your plea of guilty. The maximum discount I can give you for a plea of guilty is 25 per cent. That requires a plea at the earliest reasonable opportunity to get that discount. Yours was not at the earliest reasonable opportunity, but it came early. It came after negotiations on factual disputes between you and the State, and then there was the plea. But I have to recognise here that you were caught by reason of telephone intercepts which are there for any jury to hear, so it was a red-hot case the State had against you, very strong.
So the discount I'm going to give you is 15 per cent. By your plea, you've accepted responsibility for your offending, you've facilitated the administration of justice, and you've shown remorse. Your remorse goes further than, though, what's just in the plea. It has been expressed in the reference that I've mentioned, and counsel has also urged that upon me. Your remorse has required you to go off drugs once you're in prison.
37 In oral submissions to this court, senior counsel for the appellant accepted that defence counsel did not expressly submit that the pleas of guilty had been entered at the first reasonable opportunity, but asserted that, by implication, this is what she meant.[8] Senior counsel claimed that it had been common ground that the pleas of guilty had been entered at the first reasonable opportunity.[9] Senior counsel submitted that the pleas of guilty were entered at a committal mention hearing, at the first reasonable opportunity, after negotiations about the quantities of the prohibited drugs offered for sale.[10] According to senior counsel, his Honour erred in stating that the pleas of guilty had not been entered at the first reasonable opportunity.[11]
38 In any event, senior counsel for the appellant submitted that a 15% discount was manifestly inadequate. In effect, the appellant submitted that the pleas were entered early, and that the State's case was not as strong as his Honour stated.[12]
39 The allegation of express error has no merit. Defence counsel did not expressly submit that the pleas of guilty were entered at the first reasonable opportunity. Nor, on any sensible reading of her plea in mitigation, was it implied. Further, it was not common ground in the sentencing proceedings that the pleas had been entered at the first reasonable opportunity.
40 Contrary to the submissions of the appellant, as the relevant prosecution notices and committal report show, the appellant was not charged with the present offences in January 2019. He was, in fact, charged with them on 23 March 2018. He was committed to the District Court at a committal mention hearing on 30 August 2019. The committal report reveals that there were not less than 17 court appearances in the Magistrates Court after his initial appearance. The appellant entered pleas of guilty in the District Court on 22 November 2019.
41 The onus is upon the appellant to establish that the pleas of guilty were indicated or entered at the first reasonable opportunity. The appellant entered his pleas of guilty about 17 months after he was charged. There was nothing before his Honour, and nothing has been put before this court, to explain, if negotiations took place before the pleas were entered, what they involved, when they occurred, or why it took so long to enter the pleas. In any event, there is nothing to prevent an offender from entering a plea of guilty and subsequently negotiating over facts which are not elements of the offence.
42 His Honour characterised the pleas as being entered at an early point in the proceedings. However, it has not been shown that the pleas of guilty were indicated or entered at the first reasonable opportunity. His Honour did not err in failing to make a finding to this effect.
43 As to the allegation that the discount pursuant to s 9AA of the Sentencing Act of 15% was manifestly inadequate, it is for the appellant to demonstrate that his Honour exercised his discretion unreasonably or in a way that was plainly unjust.
44 For the reasons set out above, the appellant was not statutorily entitled to a 25% discount because the evidence does not establish that the pleas of guilty were indicated or entered at the first reasonable opportunity. Even if the pleas had been indicated or entered at the first reasonable opportunity, it does not follow that the appellant was entitled to the maximum discount. His Honour was entitled to take into account the strength of the case against the appellant. His Honour regarded the case against the appellant as 'very strong'. Having regard to the fact that the text messages which founded the charges were on the appellant's mobile telephone and their content involved clear offers to sell prohibited drugs, his Honour's characterisation of the case as being 'very strong' was well open. In accordance with the legal principles set out at [31] above, the sentencing judge was entitled to take into account the strength of the case against the appellant in assessing the appropriate discount under s 9AA of the Sentencing Act. In these circumstances, and having regard to when the pleas were entered, we are satisfied that a 15% discount was not unreasonable or plainly unjust. It was not manifestly inadequate.
45 Even if we had been persuaded that the s 9AA discount was manifestly inadequate, we would not have imposed any different sentences. In our opinion, the individual sentences and the total effective sentence were well within the range open to his Honour. It is not reasonably arguable that different sentences should have been imposed.[13]
46 For these reasons, ground 1 as argued has no merit. Leave to appeal on ground 1 should be refused.
The sentence of imprisonment imposed by the learned sentencing judge was manifestly excessive in all the circumstances of the case, in particular:
(a) the appellant's age and antecedents;
(b) the appellant's proven record of rehabilitation since being released from prison on about 11 January 2019; and
(c) sentence[s] usually imposed in similar cases.
48 The ground of appeal should be understood as alleging that the total effective sentence of 5 years 2 months' imprisonment infringed the first limb of the totality principle.
49 The legal principles applicable to the totality principle are well established. They were recently restated by this court in Kabambi v The State of Western Australia:[14]
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
...
(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
50 The principal sentencing objectives for offenders being sentenced for offences of the nature committed by the appellant are personal and general deterrence. Favourable personal factors, including favourable prospects of rehabilitation, while not irrelevant, are less important than considerations of deterrence.
51 The factors which are often relevant to the assessment of the seriousness of offences of offering to sell a prohibited drug were stated by this court in Tirkot v The State of Western Australia,[15] as follows:
Many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug. Among the factors that will often be relevant are:
(a) The terms of the offer, in particular as to the quantity of a drug, its price, etc.
(b) Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.
(c) Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
(d) Whether the offeror, at all material times, had the intention to fulfil the offer.
(e) Whether the offeror had the capacity to fulfil the offer to supply.
(f) Whether the offeror attempts to fulfil the order. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.
52 Senior counsel for the appellant emphasised that the appellant had served 10 months' immediate imprisonment and, by the time he had served this sentence, he was rehabilitated. Senior counsel said that the appellant had remained drug free since his release from prison, and submitted that, having regard to this, the total effective sentence imposed by the sentencing judge was infected by implied error and should be reduced.
53 The appellant does not challenge any of the individual sentences that were imposed upon him.
54 The maximum penalties for the offences are stated in the table at [3] above.
55 It is self‑evident from the facts as found by the sentencing judge that the appellant was involved, during the commission of the offences, in a commercial enterprise in which he sold prohibited drugs. The offers that he made were in respect of four different prohibited drugs, being cannabis, methylamphetamine, heroin and cocaine. He was engaged in this business for the purpose of funding his own methylamphetamine habit. It was not suggested that the appellant did not have the capacity or intention to fulfil the offers.
56 It is clear that the appellant had a large coterie of customers, and it was not suggested that he did not have access to the prohibited drugs he offered to sell. While it was not said that all of the offers resulted in actual sales, it was not claimed that the offers were unfulfilled.
57 At the time of his offending, the appellant was 25 years of age. At the time he was sentenced, the appellant was 29. He cannot be said to be a youthful offender. He had a record of offending. He was not a person of good character.
58 It is to the appellant's credit that he has stopped using illicit drugs, but the reports, particularly the psychological report, fall short of demonstrating that the appellant is not at risk, or is at a low risk, of further offending. They do not demonstrate that the appellant is rehabilitated and is unlikely to reoffend and his Honour made no finding to this effect.
59 We have had regard to the fact that the appellant served the 10‑month sentence of immediate imprisonment referred to at [11] above. We have had regard to Tirkot and the cases cited i[16]that case.16 We have also had regard to cases decided since Tirkot, being Higgins v The State of Weste[17] Australia17 and Moodley v The State of Wester[18]Australia.18 The comparable cases do not assist the appellant.
60 Having regard to all the relevant facts and circumstances, it is not reasonably arguable that the total effective sentence of 5 years 2 months' imprisonment infringed the first limb of the totality principle. Leave to appeal must be refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Psychological report, pages 5 and 6.
[4] NI v The State of Western Australia [2020] WASCA 78 [61] - [68].
[13] See Abraham v The State of Western Australia [2020] WASCA 192.
[14] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[15] Tirkot v The State of Western Australia [2018] WASCA 41 [53].
[17] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
[18] Moodley v The State of Western Australia [2020] WASCA 158.
(2019) 54 WAR 342