ENW -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 213 (15 December 2021)

5 On 27 August 2021, Flynn DCJ sentenced the appellant to 12 months' immediate imprisonment with eligibility for parole. The sentence began on the date that it was imposed.

6 The appellant appealed to this court. The sole ground of appeal alleged that the sentence was manifestly excessive as to type in that it was not reasonably open to the primary judge, in all the circumstances, to conclude that it was inappropriate to suspend or conditionally suspend the sentence of imprisonment.

7 On 6 October 2021, this court heard the appeal and reserved judgment.

8 On 12 October 2021, this court made orders to this effect:

(1) leave to appeal granted;

(2) appeal allowed;

(3) the sentencing decision of the primary judge is set aside;

(4) subject to order (5), the appellant is resentenced to 15 months' imprisonment; and

(5) the whole of the new sentence of 15 months' imprisonment is suspended for a period of 12 months, subject to the conditions of a programme requirement under s 84A of the Sentencing Act 1995 (WA) and a supervision requirement under s 84B of that Act.

9 When this court made those orders the court said that reasons for judgment would be published at a later date. These are our reasons.

10 The facts and circumstances of the offending were, in summary, as follows.

11 On 5 July 2018, police executed a search warrant at residential premises occupied by the appellant and her partner. When the police arrived, the appellant and her partner were in the main bedroom.

12 During the search, police officers located a clipseal bag containing about 20.8 g of methylamphetamine in the bedroom behind the headboard. The police officers also located another clipseal bag containing 0.64 g of methylamphetamine on the bedside table in the bedroom. A total of about 21.44 g of methylamphetamine was found.

13 A search of the living area revealed two digital scales and clipseal bags with a white residue.

14 The quantity of about 20.8 g of methylamphetamine located in the bedroom behind the headboard had a purity of about 74%. Forensic analysis of the clipseal bag returned a DNA match for the appellant's partner. The appellant's DNA was not found on the clipseal bag.

15 Before the police executed the search warrant, the appellant was aware that her partner was engaged in a drug dealing business to fund his own use of illicit drugs. However, the appellant was not involved in aiding her partner in his drug dealing business, other than to permit him to use her mobile telephone from time to time in connection with the business. Her partner would hide any larger quantities of methylamphetamine and not disclose their location to the appellant or a housemate, both of whom used illicit drugs regularly.

16 The appellant's partner would from time to time give her small quantities of methylamphetamine for her own use. However, the appellant primarily purchased drugs for her own use with her money. In particular, on 2 May 2018 the appellant received into her bank account a total of $9,070 from the Australian Tax Office. On 8 May 2018, she withdrew $8,600 from her account and applied that money, as well as income she received from Centrelink, in purchasing drugs for her own use.

17 On 5 July 2018, when police arrived to execute the search warrant, the appellant's partner told the appellant that there was a big bag of methylamphetamine in the bedroom, but he was uncertain as to its exact location. The appellant then attempted to find the big bag with a view to assisting her partner to hide the bag more securely before the police found it. The appellant's partner was unable to carry out this task because he had a significant foot injury which he had suffered during an invasion of their home in the previous month. The appellant had not previously seen or touched the big bag of methylamphetamine.

18 When the appellant's partner told her that there was a big bag of methylamphetamine in the bedroom, the appellant assumed that there would be, at most, about 10.5 g of the drug. The appellant's partner had previously told her that 10.5 g was the most he had ever possessed. The appellant was unaware of the exact location of the big bag. She merely understood that the bag was somewhere in the bedroom.

19 After the police officers located the total quantity of about 22.44 g of methylamphetamine, the appellant falsely informed the police officers that the drugs were hers. She lied to the police officers because she was concerned that her partner would be incarcerated and attacked in prison.

The primary judge's sentencing remarks and the appellant's personal circumstances

20 The primary judge recounted the facts and circumstances of the appellant's offending.

21 His Honour summarised the appellant's role in the offending as follows (ts 47):

Now, you did not know about that particular quantity of methylamphetamine until shortly before the police, or as the police, were executing that warrant. [Your partner] told you that he had a big bag of meth in that room, that he wasn't sure where it was. You then, in effect, volunteered to attempt to deal with that.

From the point that he told you about that big bag of meth, you had knowledge of it. You attempted to relocate it. You wanted to help [your partner] to hide it. When you went to take hold of it to shift it, you revealed an intention to control that methylamphetamine. It's apparent that your possession with the methylamphetamine was joint with [your partner], and it's also apparent that your possession was also momentary, perhaps only minutes before the police themselves took possession of the methylamphetamine.

Later in his reasons, his Honour reiterated that the appellant 'only had possession [of the drugs] momentarily' (ts 49).

22 The primary judge said that the appellant was aware that her partner was engaged in a drug dealing business to fund his own use of illicit drugs. The appellant benefited from her partner's drug dealing by receiving from time to time small quantities of drugs for her own use.

23 His Honour found that, to the appellant's knowledge, her partner used her mobile telephone, when it was convenient, to deal in methylamphetamine. However, his Honour was not persuaded that there was any connection between the use of the appellant's telephone, on the one hand, and her partner's acquisition of the drugs the subject of the charged offence, on the other.

24 The appellant was aged 35 at the time of the offending and was 38 when sentenced.

25 The primary judge discounted the head sentence he would otherwise have imposed by 10%, pursuant to s 9AA of the Sentencing Act, in recognition of the appellant's plea of guilty.

26 His Honour also reduced the sentence he would otherwise have imposed by 25% on account of the matters set out in the confidential annexure to these reasons.

27 The appellant was not of prior good character. She had numerous previous convictions for possession of prohibited drugs, possession of drug paraphernalia and other offences. However, the appellant had not previously been sentenced to a term of imprisonment.

28 The information before the primary judge included a psychological report dated 8 March 2021 from Ms Jane Sampson, a clinical and forensic psychologist, and two pre-sentence reports dated 3 March 2021 and 12 August 2021 respectively.

(a) The appellant's life had been adversely affected by trauma when she was a child and as an adult because of her exposure to a number of tragic events beyond her control.

(b) The appellant completed high school and some studies at TAFE.

(c) The appellant was employed, mostly in hospitality, until she gave birth in her early 20s to a son. (This son was aged 17 at the time of sentencing.)

(d) The appellant was polite and cooperative when interviewed by Ms Sampson. However, the appellant did not demonstrate emotion, even when discussing very traumatic events in her history, which suggested emotional repression as a coping strategy.

(e) The appellant was orientated to time and place and showed no evidence of mood disorder, thought disorder, cognitive difficulties or perceptual disturbance.

(f) The appellant accepted responsibility for her offending. She expressed regret for her behaviour.

(g) The appellant's offending appears to have been driven by her exposure to significant trauma as a child and an adult; substance use as a negative coping strategy; poor judgment and poor consequential thinking; susceptibility to the influence of and association with other substance users; normalisation of substance use in her relationships; protecting her partner from the legal consequences of his actions; a lack of pro-social purposeful activity in her life at the time; and access to substances from her partner's supply.

30 As well as the son to whom she gave birth in her early 20s, the appellant has had a baby with her partner. The baby was born in April 2021. At the hearing of the appeal, counsel for the appellant informed this court that since on or about 24 September 2021 the appellant has had the care of her baby while she has been in custody.

31 Since she became pregnant in September 2020, the appellant has not used methylamphetamine.

32 Between 22 July 2020 and 21 July 2021 the appellant was the subject of a community based order with supervision and programme requirements. The order was made in respect of an earlier offence of possessing a prohibited drug. She completed the community based order satisfactorily.

33 His Honour found that, since she gave birth to her baby in April 2021, the appellant had been receiving counselling, including group therapy, and that her response to the counselling had been consistently positive.

34 The primary judge accepted that the appellant was remorseful for her offending. His Honour also accepted that the appellant had resolved to reform.

35 His Honour found some mitigation in the trauma which the appellant had suffered when she was a child and as an adult. That trauma had precipitated her use of methylamphetamine.

36 The primary judge also took into account the significant impact that the appellant's imprisonment would have on her children and on her elderly parents. The parents have issues with their health and have had the care and custody of the appellant's 17 year old son and two other grandchildren.

37 His Honour referred to a number of written references he had received. The authors of the references spoke well of the appellant. His Honour was of the view that the appellant had good prospects of rehabilitation.

38 After imposing the term of imprisonment, the primary judge considered whether the term should be suspended or conditionally suspended. His Honour said:

I am positively satisfied that it is not appropriate to suspend the term of imprisonment. I've considered alternatives such as whether or not it should be suspended wholly or partly or conditionally. My view is that the seriousness of the offending outweighs the other considerations that are personal to you (ts 54).

The appellant's submissions on the ground of appeal

39 Counsel for the appellant submitted that the primary judge erred in being positively satisfied that it was not appropriate to suspend or conditionally suspend the sentence of imprisonment.

40 Counsel argued that, having regard to the appellant's limited role in the offending and the significant mitigating factors, the present case was 'one of those rare cases that fall within an exceptional category which provide no guidance as to the sentences customarily imposed for offences of the type committed' by the appellant.

41 According to counsel, having regard to all relevant facts and circumstances and all relevant sentencing factors, the imposition of a term of immediate imprisonment was unreasonable or plainly unjust.

The State's submissions on the ground of appeal

42 Counsel for the State submitted that the appellant had failed to demonstrate that it was not reasonably open for the primary judge to conclude that suspending or conditionally suspending the term of imprisonment was inappropriate. There was nothing exceptional about the combination of mitigating factors and the appellant's personal circumstances to warrant a departure from the established sentencing standards for offences of the kind in question. The seriousness of the offence was such that it was open to his Honour to conclude that suspending or conditionally suspending the term of imprisonment was not appropriate. The mitigating factors were properly reflected in the length of the term of immediate imprisonment that was imposed. Even if the present case were considered to be 'a borderline case', no error had been demonstrated. In 'a borderline case' it may reasonably be open to impose different types of sentences.

The appellant's criminal responsibility for the offending and the essence of her criminality for sentencing purposes

43 At the hearing of the appeal, this court raised with counsel the basis of the appellant's criminal responsibility for the offending and the essence of her criminality for sentencing purposes, having regard to the following:

(a) the appellant was unaware of the big bag containing about 20.8 g of methylamphetamine until she was informed of its existence by her partner when the police arrived at their home to execute the search warrant;

(b) the appellant's partner told her that the big bag of methylamphetamine was in the bedroom, but he was unsure of its precise location;

(c) the appellant assisted her partner by endeavouring to locate the big bag of methylamphetamine with the intention of hiding the bag in a more secure location before the police found it; and

(d) the appellant endeavoured unsuccessfully to locate the bag for a very short time (probably less than one minute) until she was apprehended and handcuffed by the police.

44 The count in the indictment, to which the appellant pleaded guilty, alleged that on 5 July 2018 she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

45 Counsel for the appellant informed this court that, before the appellant entered the plea of guilty to the count in the indictment, the appellant had offered to plead guilty to the offence of attempting to possess the methylamphetamine. However, the State was unwilling to accept a plea of that basis. Section 33(1)(a) of the MD Act provides, in effect, that a person who attempts to commit an offence under the MD Act (the principal offence) commits, if the principal offence is a crime, the crime and is liable on conviction to the same penalty to which a person who commits the principal offence is liable. Consequently, the appellant decided, based on legal advice, that whether she attempted to possess the drug as opposed to actually possessing it was not an issue worth pursuing. The appellant therefore decided to plead guilty to the count in the indictment.

46 An accused person may enter a plea of guilty to a charged offence whether or not the accused believes that he or she has committed the offence. A court will act on an accused's plea of guilty when the plea is entered in open court by a person who is an adult and appears to be of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the accused's interests. There is no miscarriage of justice if the court does act on such a plea, even if the accused is not in fact guilty of the charged offence. See Meissner v The Queen.[1]

47 A plea of guilty to a charged offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill.[2] The plea also negatives all defences. See Schugman v Menz.[3] The plea does not, however, constitute an admission of all of the facts stated in the prosecution brief. See Hill (312). It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and to decide upon an appropriate sentence.

48 In the present case, the primary judge sentenced the appellant, consistently with her plea of guilty, on the basis that she was 'momentarily' in joint possession with her partner of the big bag of methylamphetamine.

49 We are satisfied that the appellant made an informed decision, having regard to legal advice, to plead guilty to the count in the indictment. The appellant entered the plea in open court. The plea appears to have been entered in the exercise of a free choice in the appellant's interests. There is no reason to suspect that at any material time the appellant was not of sound mind and understanding. In any event, the appellant has not sought to impugn her conviction. In the circumstances, and having regard to the appellant's case in the appeal, it is unnecessary to determine whether on the facts the appellant attempted to possess the methylamphetamine as opposed to actually possessing it.

50 The essence of the appellant's criminality, for sentencing purposes, is to be found in the facts and circumstances of her offending conduct. In particular, as regards the big bag containing about 20.8 g of methylamphetamine, the essence of her criminality is to be found in the facts and circumstances to which we have referred at [43] above.

51 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

52 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

53 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

54 If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence.

55 The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

56 At the material time, the maximum penalty for the offence of possessing a quantity of methylamphetamine less than 28 g, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MD Act.

57 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

58 By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

59 Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

60 Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

61 Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.

62 The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

63 The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.

64 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

65 A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[4] Fogg v The State of Western Australia.[5] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[6] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

66 The principles applicable to suspended sentences for serious drug offences were explained by McLure P (Owen and Wheeler JJA agreeing) in Cartwright v The State of Western Australia[7] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

67 So, ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. In other words, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. See The State of Western Australia v Johnson;[8] Truscott v The State of Western Australia.[9]

68 In the present case, we are satisfied, for the following reasons in combination, that:

(a) a term of imprisonment to be served immediately was not the only appropriate sentencing option in relation to the appellant and the offence she committed; and

(b) the appellant's case is, as a matter of fact, exceptional.

69 First, the appellant's joint possession with her partner of the big bag of methylamphetamine was fleeting. She did not at any time have physical possession of the drugs. Her unfulfilled intention, for less than one minute, was to take control of the drugs and hide them from the police.

70 Secondly, before the police arrived at the appellant's home to execute the search warrant, the appellant was unaware of the existence of the big bag of methylamphetamine.

71 Thirdly, the appellant's offending was very unusual having regard to what she did and what she did not do in relation to the big bag of methylamphetamine, including the very short period of her offending conduct and the very short period that she was aware of the existence of the drugs.

72 Fourthly, it is true that, prior to the offending, the appellant knew that her partner carried on a drug dealing business and that the appellant assisted him, from time to time, by permitting him to use her mobile telephone in connection with drug dealing transactions. However, these matters were not part of the criminal conduct for which the appellant was to be sentenced, as the primary judge was not persuaded that there was any connection between the use of the appellant's telephone, on the one hand, and her partner's acquisition of the drugs the subject of the charged offence, on the other. Further, it appears that the appellant was not aware of the full extent of her partner's drug dealing. For example, the appellant's partner would hide any larger quantities of methylamphetamine and not disclose their location to her or a housemate, and the appellant's partner told her that 10.5 g of methylamphetamine was the most he had ever possessed. It is true that the appellant benefited from her partner's drug dealing business by receiving small quantities of methylamphetamine, from time to time, for her own use. However, the appellant primarily purchased drugs for her own use with her money.

73 Fifthly, prior sentencing decisions of this court where offenders have received terms of immediate imprisonment for drug dealing offences have not involved offending of the very limited and transitory kind that occurred in the present case.

74 Sixthly, there was substantial mitigation. In particular, the appellant pleaded guilty and she had the benefit of the matters set out in the confidential annexure to these reasons.

75 Seventhly, although the appellant was not of prior good character in that she had numerous convictions, the appellant had not previously been sentenced to a term of imprisonment.

76 After evaluating all relevant facts and circumstances and all relevant sentencing factors, including:

(a) the maximum penalty for the offence;

(b) the standards of sentencing customarily observed with respect to offences of the kind committed by the appellant (including the sentencing pattern revealed by the cases cited by the appellant and the State and other cases);

(c) the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind;

(d) the appellant's personal circumstances; and

(e) all mitigating factors,

we are of the opinion that the imposition by the primary judge of a term of imprisonment to be served immediately was not the only appropriate sentencing option and consequently that the sentence of 12 months' immediate imprisonment was unreasonable or plainly unjust.

78 Finally, we note that, in resentencing the appellant, we took into account all relevant facts and circumstances and all relevant sentencing principles, including the matters to which we have referred at [69] ‑ [75] above and the fact that when the appellant was resentenced she had served about 6 weeks in custody. We reduced the length of the term of imprisonment we would otherwise have imposed on account of the mitigating factors which we have mentioned. In particular, like his Honour, we gave a discount of 10% for the plea of guilty and a discount of 25% for the matters set out in the confidential annexure to these reasons. It was appropriate, having regard to the appellant's history of drug use and the other personal circumstances referred to in Ms Sampson's report, to impose conditionally suspended rather than suspended imprisonment and to condition the suspended imprisonment by a programme requirement and a supervision requirement.

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

[1] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ).

[2] R v Hill [1979] VicRp 33; [1979] VR 311, 312 (Young CJ, Menhenitt & Crockett JJ).

[3] Schugman v Menz [1970] SASR 381, 381-382 (Bray CJ).

[4] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[5] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).

[6] Dinsdale v The Queen [2000] HCA 54; (2002) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

[7] Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10].

[8] The State of Western Australia v Johnson [2010] WASCA 187 [15] - [25] (McLure P; Newnes JA & Mazza J agreeing).

[9] Truscott v The State of Western Australia [2016] WASCA 58 [20] (Buss & Mazza JJA).