DYER -v- THE KING [2025] WASCA 165 (5 November 2025)

1. On 14 February 2024, the appellant and Ms Baker arrived at the Perth International Airport, having flown from Kuala Lumpur, Malaysia. They had been in Cambodia for a week, with a short stopover in Kuala Lumpur on their return to Australia.
2. The appellant and Ms Baker were stopped at the airport by Australian Border Force officers and subjected to personal examinations. Both were suspected of internally concealing a border‑controlled drug. They were taken to Royal Perth Hospital, where CT scans revealed that they each had numerous foreign objects within their bodies.
3. The appellant later passed six pellets, containing heroin with a total weight of 115.4 grams, a purity of 74.8 per cent and a total pure weight of 86.3 grams. Depending upon how it was sold, the value of this heroin was between about $4,300 and $51,000.
4. Ms Baker passed seven pellets, containing heroin with a total weight of 139.7 grams, a purity of 68.6 per cent, a total pure weight of 95.8 grams, and a value of between about $5,000 and $56,000.
5. Ms Baker declined to participate in a record of interview with police.
6. The appellant participated in a record of interview with police in which he admitted travelling to Cambodia with Ms Baker, his partner. He did not at that time admit his offending.
7. However, having pleaded guilty, the appellant told the author of his pre‑sentence report that, after a period of a couple of years of not using illicit drugs, he met a former associate who was involved in drug dealing. He soon relapsed into heroin use and became addicted. He resumed using heroin on a daily basis, and quickly incurred a significant drug debt that he could not pay.
8. The appellant admitted travelling to Cambodia with Ms Baker, where he collected a quantity of heroin. He imported the heroin with an intention of repaying a $10,000 drug debt.
9. In submissions on his behalf before the sentencing judge, the appellant explained that heroin was packaged and provided to him in Cambodia.
10. In submissions filed on behalf of Ms Baker, she explained that the appellant had approached her to participate in the offending. She said she was initially reluctant to do so, but eventually agreed knowing that she would be assisting the appellant to repay his drug debt. She believed the appellant was in contact with a third party who provided instructions, but she did not have any contact with that person.
11. As the sentencing judge observed, whilst not particularly sophisticated, the offending involved a degree of planning and expense. It involved travelling to Cambodia from Perth, staying there for a week and, in the case of the appellant, meeting up with a contact to obtain the heroin.
12. Both the appellant and Ms Baker placed their own health and safety at risk by ingesting the heroin. The amounts ingested by both well exceeded the statutory threshold for a marketable quantity of 2 grams.
13. The appellant and Ms Baker were both users at the time of the offending. However, their offending had a commercial purpose. In the case of the appellant, his intention was to pay off a drug debt of $10,000; and in the case of Ms Baker, her intention was to assist her partner to pay off his drug debt. To that end, it was contemplated that, once back in Australia, the quantities of heroin imported by the appellant and Ms Baker would both be supplied to the appellant's drug dealer.
14. As the judge explained, had the offending not been interrupted, it would have resulted in a significant quantity of heroin being distributed into the community of Western Australia. The potential for harm, if this had occurred, was great.
15. An issue arose during the course of sentencing submissions as to the quantity for which the appellant was responsible for importing.
16. The statement of material facts, filed in the District Court, alleged that the appellant had ingested and imported heroin with a pure weight of 86.3 grams, and that Ms Baker had ingested and imported heroin with a pure weight of 95.8 grams. The prosecution's written submissions on sentencing were to the same effect.
17. However, during the course of oral sentencing submissions, the judge queried whether the appellant's culpability and responsibility extended to the total ingested by both the appellant and Ms Baker. In the course of the exchange which followed, the judge said that he understood the prosecution case to be that the appellant had recruited Ms Baker; that his role was far more serious than hers; and that the appellant was to be sentenced on the basis that he was responsible for the total quantity of heroin ingested and imported by both the appellant and Ms Baker.
18. The prosecutor initially agreed with this description of the basis upon which the appellant fell to be sentenced. However, upon defence counsel submitting that the appellant's responsibility was limited to importing the weight he ingested, and objecting to the suggestion that his client 'recruited' Ms Baker, the prosecutor appear to acquiesce in this description of the prosecution case.
19. After an opportunity to reflect and take instructions, the prosecutor informed the court as follows:[1]

Having regard to [the appellant's] conduct in arranging the import and essentially, arranging for Ms Baker's involvement, our submission is that [the appellant] is to be sentenced on the basis that he had a more serious role in the offending, therefore we submit that it is open for your Honour to sentence [the appellant] on the basis that he did import the total amount of heroin, including the amount imported by Ms Baker.

That's because [the appellant] can be considered to have met both limbs of the definition of import, under the Commonwealth Criminal Code in that he, firstly, brought the substance into Australia by concealing it in his body and he also dealt with the substance in connection with its importation by reason of his conduct in arranging for Ms Baker's participation in the offending and also concealing the substance on his own body.

1. Defence counsel maintained the objection to this approach, but left the matter for the judge to determine.
2. The judge proceeded to sentence the appellant on the basis that he was criminally responsible for importing the total quantity of heroin ingested and imported by both offenders. In doing so, his Honour explained that he was sentencing the appellant 'on the basis that you arranged for Ms Baker to assist you in the offending and that your criminal culpability relates to the total weight of pure heroin imported into Australia of 182 grams'.
3. The judge later described the appellant as the person 'primarily involved' in the offending, but noting that Ms Baker 'readily became involved in the offending to assist [the appellant] to import a significant quantity of heroin to Australia knowing the heroin you ingested was to be used by [the appellant] to help pay off a significant drug debt'.

1. As the judge noted, the appellant was 49 years of age at the date of sentencing. He was the youngest of five children, and after his parents separated, his mother re‑partnered and had a further four children. The appellant had a difficult relationship with his stepfather, who was violent towards him. He was forced to leave home when only 14 years of age.
2. The appellant's mother passed away many years ago, but he has maintained a close relationship with his elderly father. At the time of this offending, the appellant had been living in a caravan at his father's property.
3. The appellant had been in a relationship with Ms Baker for three years at the date of sentencing. He has two daughters, who were aged 29 and 9 at the date of sentencing, from previous relationships and has maintained regular contact with both. His older daughter has two children of her own and was pregnant with her third.
4. The appellant left school when he left home, at the age of 14. He had been using amphetamines since the age of 13, and commenced using heroin when 21. Since then he has been a regular user of heroin, albeit ceasing his use several times for varying periods.
5. To his credit, the appellant has been largely employed since leaving school. At the time of his offending, he was in the process of establishing his own business.
6. Based on observations the appellant made to the writer of his pre‑sentence report, the judge accepted that the appellant had shown some remorse for his offending, and some insight into the potential impact on members of the community from the distribution of heroin. In a letter to the judge, the appellant also expressed regret, and apologised, for his offending and the harm it may have caused the community. He said that his judgment had been clouded by his drug addiction, which had led to him making choices which he now recognised were harmful and irresponsible.
7. The appellant has an extensive criminal history, much of which appears to have been related to his abuse of illicit drugs. As a juvenile, he was convicted of various offences, including drug‑related offending, stealing and burglary. As an adult, he was first convicted of cultivating and possessing cannabis in 1994, when he was 19 years of age. Since then, he has been convicted of a number of offences, including stealing, fraud, assaulting a public officer, drug‑related offences, and a number of road traffic offences.
8. The appellant had previously been sentenced to various community‑based dispositions, including suspended terms of imprisonment. He had been sentenced to some short periods of imprisonment for road traffic offences. Significantly, but not expressly mentioned by the judge, the appellant had also been sentenced to a term of 2 years' imprisonment for an offence of attempting to manufacture a prohibited drug.
9. Ms Baker was also 49 years of age at the time of sentencing. She had a 20‑year‑old son with whom she was close. Her parents were in a stable marriage, and she had the benefit of a close and supportive family.
10. After leaving school, Ms Baker was employed in various jobs, but had been unemployed for an extended period of time prior to sentencing. Ms Baker was the victim of a sexual assault when she was in her early twenties. Like the appellant, she had a long‑standing addiction to illicit drugs.
11. Ms Baker had been suffering mental health difficulties for a long period prior to being sentenced. She expressed a commitment to addressing her mental health, which it was suggested might assist her to avoid relapsing into drug use. She expressed remorse for her offending, and some insight into the seriousness of her offending and its harmful effects.
12. Like the appellant, Ms Baker also had a significant criminal history, involving her being sentenced to various community‑based dispositions, including suspended sentences. She did not, however, have any previous convictions for manufacturing or selling drugs.

1. In arriving at sentences for the appellant and Ms Baker, the judge accepted that they had both entered pleas of guilty at an early opportunity, which had facilitated the administration of justice and were to be recognised in the sentence to be imposed. They had each shown some remorse and insight, and had expressed a determination to address their long‑term drug use.
2. The judge considered that personal deterrence, and protection of the community, were important considerations in relation to both the appellant and Ms Baker. The need for general deterrence limited the judge's ability to attach weight to their mitigating personal circumstances.
3. The judge concluded that nothing less than immediate terms of imprisonment would meet the relevant sentencing objectives.
4. In the case of the appellant, the judge imposed a head sentence of imprisonment for 7 years and 4 months, with a non‑parole period of 4 years and 6 months.
5. In the case of Ms Baker, the judge imposed a head sentence of 4 years' imprisonment, with a non‑parole period of 2 years and 4 months.

1. On appeal, the prosecution conceded Ground 1; that the judge erred in sentencing the appellant on the basis that he was responsible for importing the total weight of pure heroin ingested by both offenders (that is, the 86.3 grams ingested by the appellant and the 95.8 grams ingested by Ms Baker).
2. This concession was properly made.
3. In circumstances where the appellant was arraigned and pleaded guilty to an allegation that he imported 86.3 grams of heroin, he ought to have been sentenced on that same factual basis.
4. Further, and in any event, if the appellant was to be sentenced on a basis which included some level of responsibility for the heroin ingested by his partner, Ms Baker, this needed to be proved. The appellant's then counsel did not concede this responsibility, and no evidence or material was before the judge which would have justified this conclusion. Although the judge was entitled to proceed on the basis that Ms Baker became involved at the appellant's suggestion, and that the appellant had the lead role in organising the offending, there not a sufficient basis for the judge to conclude beyond a reasonable doubt that the appellant was responsible for importing the 95.8 grams ingested by Ms Baker.
5. In circumstances where it was not the way the case was presented or run at first instance, it is neither necessary nor appropriate for this court to consider whether there might have been a proper factual and legal basis for convicting the appellant of importing this additional quantity.
6. Having established error in the sentencing process, it is also not necessary to consider the appellant's complaint, through Ground 2, that his sentence involved a misapplication of the parity principle. That said, this principle must inform the process of resentencing the appellant.

1. In resentencing the appellant, it is appropriate to have regard to the circumstances of the appellant's offending, and his personal circumstances, as set out above.
2. The appellant's offending was serious, and called for a significant measure of general deterrence. Significant sentences of imprisonment for this type of offending are necessary to deter others from like offending in an effort to protect the general community from the danger presented by the importation of illicit substances such as heroin.
3. In assessing the seriousness of the appellant's offending, it is appropriate to take into account the commercial aspect of his offending. Whilst ultimately grounded in an addiction which he was not able to fund, it was the appellant's decision to involve himself in the importation for which he has been convicted. He made the arrangements necessary to travel to Cambodia and collect the heroin. His offending was motivated by a desire to address his own drug-related debt.
4. The appellant's level of involvement in, and motivation for, his importation offence may be contrasted with the lesser and different involvement and motivation of his partner Ms Baker. She fell to be sentenced for her otherwise similar offending on the basis that she became involved, at the appellant's suggestion, in an undertaking organised by the appellant, and was motivated by a desire to address a debt which he owed.
5. Given the appellant's history of offending, including drug‑related offending, a significant measure of personal deterrence was also warranted. The appellant is to be given credit for pleading guilty, and it is encouraging that he expressed some remorse and insight, and a commitment to addressing his long‑term difficulties with addiction to illicit substances. Further, as outlined by the appellant's counsel in oral submissions, the appellant has taken some steps towards rehabilitation whilst in prison, and intends to undertake a Pathways Program (intended to assist him to address his difficulties with substance abuse, amongst other things) once that becomes available to him. He has also continued to enjoy the support of his family, particularly his eldest daughter. All of that said, the appellant's long‑standing history of offending and addiction suggest that his prospects of successful rehabilitation are at best modest.
6. Having regard to all of the circumstances relevant to the appellant and his offending, it is appropriate that he be sentenced to imprisonment for a period of 5 years and 6 months. Given his modest prospects of rehabilitation, I would fix a non‑parole period of 3 years and 6 months.
7. I am satisfied that this sentence adequately reflects the parity principle. Whilst the appellant's sentence is heavier than that imposed upon his co‑offender, the difference appropriately reflects his higher level of involvement in the importation of which he was convicted, as well as his previous conviction for a serious drug offence.

1. For the reasons set out, I would allow the appellant's appeal, set aside the sentence impose at first instance, and resentence the appellant to a sentence of imprisonment for 5 years and 6 months, with a non‑parole period of 3 years and 6 months. Both the head sentence and non‑parole period are to be back‑dated to 14 February 2024, to reflect the time already spent in custody.

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

[1] Primary court ts 29/10/2024, 51 ‑ 52.