GNO -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 111 (18 July 2025)

1. On 10 September 2021, Australian Border Force officers seized a suspicious parcel that arrived at Perth Airport on a Singapore Airlines flight. The parcel was found to contain 485.47 g of methylamphetamine in four plastic bags. The purity of the methylamphetamine ranged from 50% to 55%. Its value was between $135,000 and $600,000, depending on the quantities in which it was sold.
2. Police officers replaced the methylamphetamine with an inert crystalline substance and repackaged the parcel. They also inserted into the parcel a listening device to capture and record audio, and a tracking device to record its movement.
3. The parcel was addressed to a restaurant in Wembley. The appellant knew the owner of the restaurant, and had known her for many years.
4. On 15 September 2021, the parcel was delivered to the restaurant by police officers pretending to be Australia Post workers.
5. Later that day, the parcel was collected by the appellant and taken to a property in Cannington. The appellant and Mr A were living in a converted shed on the property.
6. The listening device captured the sounds of the package being opened, and of the appellant and Mr A talking and laughing about its contents. Police entered the property, arrested both men, and searched the property.
7. In addition to the substituted substance and packaging, the police found several sets of electronic scales, empty clip seal bags and drug paraphernalia.
8. During the search, the appellant exercised his right to silence.
9. The next day, the appellant was released on bail.

Count 4 - possessing heroin with intent to sell or supply

1. Seven months later, on 27 April 2022, police officers executed a search warrant at the Cannington property. The appellant was found asleep in the main bedroom of the converted shed.
2. During the search, a Coles zip‑up shopping bag was found inside the property, behind the front gate. Inside the Coles bag was a red insulated bag. Inside the red bag was a plastic bag that contained six packages.
3. The six packages contained a total of 158.30 g of heroin with purities between 70% and 71%. Five of the six packages of heroin weighed between 27 g and 28.2 g. There was expert evidence that 28 g (one ounce) was an amount of drug that is readily sold on the drug market. The sentencing judge said that it seemed that these five packages were prepared and ready to sell.
4. The appellant told police that he knew nothing about the Coles bag or its contents and that he had never seen or touched the bag.
5. Police officers also found a cardboard box in the rear of the shed inside a woodchipper. Inside the cardboard box was a taped‑up package, which contained 352 g of heroin with purities ranging from 69% to 71%.
6. The appellant said that the package in the cardboard box was likely owned by Mr A. He told police that he did not know anything about it and that he did not use the woodchipper. The appellant's DNA was later found on the tape on the cardboard box and on an envelope inside the box.
7. During the search, the police also found glass smoking implements and a clip seal bag of about 5 g of methylamphetamine. The appellant told the police that he used the implements to smoke methylamphetamine and that the drug in the clip seal bag was his, for his own use.
8. Later that day, the appellant participated in an electronically recorded interview. During the interview, the appellant only admitted to purchasing and possessing the small amount of methylamphetamine for his personal use. He again denied that he had any knowledge of the heroin.
9. The total amount of heroin found in the Coles bag and the cardboard box was 510.30 g. The value of the total amount was between $250,000 and $550,000, depending on the quantities in which it was sold.[2]
10. The appellant was on bail for count 2 when he committed count 4.

1. The sentencing judge recounted the appellant's personal circumstances, which included the following.
2. The appellant was 46 years old at the time of the offending. He was 49 years old at sentencing.
3. The appellant came to Australia with his family when he was 3 years old, fleeing war in their home country. He worked on a market garden after he finished school. He later worked with his brother and a friend in their fruit and vegetable stall.
4. The appellant had experienced some difficulties in his personal life, including his father's death a few years earlier.
5. The appellant suffers from depression, which started during the COVID‑19 pandemic. His time on remand in prison had aggravated his depression.
6. The appellant started using methylamphetamine a couple of months before September 2021 when a friend introduced him to it. He said that he liked it and used a few points[3] each day. The appellant does not use heroin.
7. At the time of his sentencing for these offences, the appellant's criminal history was limited to three traffic convictions in 2016 and 2021, and two drug convictions relating to the small amount of methylamphetamine and the smoking implements found in the same search in which the heroin the subject of count 4 was found. The sentencing judge noted, however, that the appellant had been a significant user of methylamphetamine for some months before the offending in count 2.
8. The sentencing judge was satisfied that the appellant had demonstrated genuine remorse, but said it was tempered with a 'decent dose of self‑interest'.[4]
9. The sentencing judge said that she did not have enough information to make a meaningful assessment about the appellant's prospects of rehabilitation or re‑offending.[5]

Appellant's cooperation with law enforcement authorities

1. The appellant cooperated with authorities in relation to count 2, primarily by giving witness statements and testifying against the co‑accused Mr A. Prior to that, the appellant's cooperation had been limited to admitting that he possessed the small amount of methylamphetamine found in the second search and that he purchased methylamphetamine for personal use.
2. The sentencing judge said that the appellant would receive a discount for his cooperation. Her Honour noted that she was required to consider several factors when determining the appropriate level of discount, including:[6]
   1. the nature and extent of the cooperation and assistance;
   2. whether the cooperation and assistance were genuine;
   3. whether the offender had disclosed all of his relevant knowledge;
   4. the public benefit that had resulted or was expected to result from the cooperation and assistance;
   5. the risk or danger to the offender or his family and associates because of the cooperation and assistance; and
   6. any hardship (including hardship in custody) which the offender may experience or was likely to experience because of the cooperation and assistance.
3. As to the first factor, the sentencing judge found that the nature and extent of the appellant's cooperation and assistance were 'no more than at a medium level'.[7] The appellant's evidence in Mr A's trial was a 'filtered' version of events.[8] The appellant was careful about withholding evidence that may have implicated other people he knew well.
4. In relation to the second factor, the sentencing judge found that the appellant's cooperation and assistance was genuine, although it was moderated by self‑interest.
5. As to the third, the sentencing judge found that the appellant had not disclosed all that he knew about other people who were close to him and their possible involvement in count 2. Her Honour noted that the appellant did not regard Mr A as a close associate.
6. In relation to the fourth factor, being the public benefit that resulted from his cooperation and assistance by giving evidence at trial, Mr A had been acquitted of the offence in relation to which the appellant testified.
7. The sentencing judge said that it was difficult to know what the jury made of the appellant's evidence. Her Honour said that her 'sense' of it was that the appellant was obviously withholding evidence against those he knew or liked to avoid getting them into trouble.[9] She found that it was likely that this had negatively impacted the jury's assessment of his honesty as a witness.
8. The sentencing judge also said that, with one exception, the appellant's evidence was supported by the objective independent evidence and not contradicted by any independent evidence. The exception was his evidence that he and Mr A did not travel in a car to Marangaroo during the late afternoon of 15 September 2021. This evidence was contradicted by evidence of police surveillance operatives, who had followed the appellant and Mr A while they made that trip. Although this trip was not directly relevant to the alleged offending, the sentencing judge said that the jury may have considered that the inconsistency adversely impacted on the appellant's credibility more generally.[10]
9. As to the fifth factor, being the risk or danger caused by the cooperation, the sentencing judge noted that she had not been made aware of any such risks, nor had she seen or heard anything in Mr A's trial which suggested that the appellant's cooperation had caused a risk to arise. However, her Honour noted that the mere fact that the appellant had given evidence against Mr A carried risks.
10. In relation to the sixth factor, her Honour noted that offenders who give evidence for the prosecution are not held in high regard in the prison system and there was always a risk of retribution, even by a party who is not connected to them.
11. The sentencing judge then said:[11]

You are, of course, entitled [to] and will receive a significant discount as a result of your cooperation with law enforcement agencies. Most, but not all, of that discount will be referable to count 2 only.

1. The sentencing judge made the following findings.
2. The appellant was in possession of the methylamphetamine jointly with Mr A. At the very least, the methylamphetamine provided a readily available source of income to the appellant from which he could fund his significant drug habit.[12]
3. The appellant was a principal offender in relation to count 4, as he was in sole possession of the heroin. The appellant was not a user of heroin, and intended to sell all of it for financial gain.
4. The offending was far from the low end of offending of this kind. The appellant was not a courier or intermediary. He was the end destination for the drugs to be further distributed for financial gain.
5. The motive for committing both offences was financial gain.
6. The quantity of drugs in each count was significant, being around half a kilogram. The drugs had significant value.
7. The degree of purity of the methylamphetamine was such that it could have been diluted further for sale, making the appellant's financial gain even greater.
8. The offending was not a one‑off occasion. Count 4 was committed while the appellant was on bail in relation to count 2.

1. On 31 May 2022, the appellant pleaded not guilty to count 2. On 13 October 2022, he pleaded not guilty to count 4. There were subsequently numerous mentions of counts 2 and 4 in the District Court.
2. On 11 March 2024, a matter of days before the trial was listed to begin, the appellant pleaded guilty to counts 2 and 4.
3. The sentencing judge noted that, although the appellant did not plead guilty until shortly before his trial was to begin, he was still entitled to credit for those pleas. Her Honour reduced the head sentences she would otherwise have imposed by 5%, under s 9AA of the Sentencing Act 1995 (WA).

1. The sentencing judge sentenced the appellant to 7 years' imprisonment for count 4, the heroin offence.
2. Her Honour reduced the sentence on count 2 from 4 years' imprisonment to 12 months' imprisonment for reasons of totality. Her Honour ordered that the 12 month sentence be served cumulatively on the sentence imposed for count 4. Thus, the total effective sentence was 8 years' imprisonment.
3. Her Honour backdated the appellant's sentence to 25 April 2022 to take into account the time he had spent in custody, and ordered that he be eligible for parole.

Ground 1 - discount for the appellant's cooperation

1. By ground 1, the appellant alleges that the sentencing judge erred 'when providing a discount for co‑operation to law enforcement agencies by providing a discount mostly referrable to count 2, rather than both counts'.[13]
2. The appellant relies on the sentencing judge's statement, repeated here for convenience:[14]

You are, of course, entitled [to] and will receive a significant discount as a result of your cooperation with law enforcement agencies. Most, but not all, of that discount will be referable to count 2 only.

1. The appellant contends, in effect, that there was no justification for applying the discount unequally. He submits that the principles underpinning the need to apply discounts in sentencing for cooperation all apply equally to count 4, where there was no co‑offender.[15] The appellant contends that the error was material to the sentence imposed for count 4.
2. The rationale for allowing a sentencing discount for cooperation is the demonstration of genuine remorse and apparent rehabilitation, and the public interest in the detection and successful prosecution of crime.[16] It follows that a sentencing discount for cooperation can be applied to a sentence even when the cooperation does not relate to the offence for which the sentence is being imposed.
3. When allowing a sentencing discount for cooperation where the offender has committed multiple offences, the orthodox approach is to apply the discount equally to all of the offences, regardless of whether the cooperation related to one or more (or any) of the offences.
4. The approach of the sentencing judge was unorthodox. However, whether an appropriate discount was given is to be assessed as a matter of substance, not form. What is important is that cooperation is rewarded and seen to be rewarded, not how that is achieved.
5. It appears that, consistently with her Honour's statement that '[m]ost, but not all, of [the significant discount for cooperation] will be referable to count 2 only',[17] the sentencing judge significantly discounted the sentence she would otherwise have imposed for the methylamphetamine offence to give credit for the appellant's cooperation. A sentence of 4 years' imprisonment reduced to 12 months' imprisonment for totality reasons was extremely lenient for the attempted or completed possession of nearly half a kilogram of methylamphetamine of 50% ‑ 55% purity with intent to sell or supply it. It further appears, again consistently with her Honour's statement, that her Honour applied a lesser discount to the sentence she would otherwise have imposed for the heroin offence in giving credit for the appellant's cooperation.
6. Had the sentencing judge applied the discount equally, her Honour may have instead imposed, after taking into account the cooperation, sentences of 4 years' imprisonment on each count. Then, after considering the totality principle, her Honour may have ordered those sentences to be served cumulatively on one another. The total effective sentence would have been identical.
7. While her Honour's approach was unorthodox, it was transparent. As a matter of substance, a significant discount was given, and can be seen to have been given, for cooperation. Had there been no cooperation, the appellant would inevitably have received a significantly higher total effective sentence. The complaint that the discount was applied unequally is a complaint of form, not substance.
8. While we would grant leave to appeal on ground 1, we would dismiss this ground.

Ground 2 - was the sentence imposed on count 4 manifestly excessive?

1. Ground 2 alleges that the sentence imposed for count 4 was manifestly excessive in light of the maximum penalty for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending, and the personal circumstances of the appellant.
2. The general sentencing principles applicable to a ground of appeal that alleges that an individual sentence is manifestly excessive are well established.[18] So too are the general principles of sentencing offenders for serious drug offences.[19]
3. The appellant asserts that three cases in this court show that the sentence imposed for count 4 was manifestly excessive: KJL v The State of Western Australia;[20] The State of Western Australia v Paolucci;[21] and Carlucci v The State of Western Australia.
4. In our view, these cases do not establish this.
5. The offender in KJL was sentenced for five offences, and given a total effective sentence of 10 years 6 months' imprisonment. The fifth of those offences, count 5, was attempting to possess 991 g of MDMA with intent to sell or supply it to another. For this offence, KJL was sentenced to 8 years 6 months' imprisonment (reduced from 9 years for totality reasons).
6. KJL appealed against the sentence on two grounds. Ground 1 contended that the sentence imposed for count 5 was manifestly excessive. Ground 2 contended that the total effective sentence breached the first limb of the totality principle.[22] The court granted leave to appeal on ground 1, refused leave to appeal on ground 2, and dismissed the appeal.
7. The appellant points out that the weight of MDMA in count 5 of KJL was nearly twice the total amount of heroin possessed by the appellant. However, its value was significantly less, at least in today's terms. The judge sentencing KJL (in 2020) found that the MDMA was worth approximately $50,000 if sold by the kilogram, and approximately $141,000 if sold in ounce lots.[23] The heroin possessed by the appellant was worth $250,000 if sold in 350 g lots and $550,000 if sold by the gram.[24]
8. An attempt to otherwise compare the relevant factors in each case only shows that the cases are not comparable.
9. There were some aggravating features in KJL that are not present in the appellant's case. Although KJL did not have a criminal record, he had been drug dealing for financial gain for a period of years prior to the offending for which he was sentenced. He was at the mid to high‑level (but not at the highest level) of the drug hierarchy. His offending involved a high level of sophistication.
10. However, an aggravating feature of the appellant's case was not present in KJL ‑ KJL was not on bail when he committed his offences.
11. Further, there were some mitigating factors in KJL that are not present in the appellant's case, or not to the same extent.
12. KJL was found to be genuinely remorseful, without qualification. KJL was at low risk of re‑offending. KJL had made 'every effort' to rehabilitate himself since his arrest. Urinalysis tests showed that KJL had not used illicit drugs since the date of his arrest.
13. The court said that the two most favourable mitigating circumstances were KJL's guilty pleas at the earliest opportunity (for which he received a 25% reduction, compared with 5% in the appellant's case) and the matters referred to in a confidential annexure. Given the other matters of mitigation referred to above, and given that the court said that the matters in the annexure was one of the two most favourable mitigating circumstances, the matters in the annexure must have been significant.
14. The court concluded that the sentence of 8 years 6 months' imprisonment (reduced from 9 years' imprisonment for totality) for the MDMA offence was not outside the range of an appropriate exercise of the sentencing discretion. The dismissal by this court of an appeal against sentence does not fix the upper limits of a proper exercise of the sentencing discretion.[25]
15. For these reasons, KJL does not suggest that the appellant's sentence for count 4 was excessive, still less manifestly excessive.
16. In the next case, Paolucci, a State appeal against sentence was upheld. Mr Paolucci was sentenced for five offences, and given a total effective sentence of 5 years' imprisonment. The first of those offences, count 1, was the selling of 996 g of MDMA, for which Mr Paolucci was sentenced to 4 years' imprisonment.
17. The State appealed against the sentence on two grounds. Ground 1 contended that the sentence imposed for count 1 was manifestly inadequate. Ground 2 contended that the total effective sentence breached the first limb of the totality principle. The court upheld both grounds. In resentencing, the court imposed a sentence of 7 years' imprisonment for count 1, and a total effective sentence of 8 years' imprisonment.
18. The sentence of 7 years' imprisonment for count 1 does not suggest that the appellant's sentence of the same length for count 4 was excessive, still less manifestly excessive. In Paolucci, the court allowed a discount of 25% on the head sentence it would otherwise have imposed for each offence for the pleas of guilty, under s 9AA of the Sentencing Act. Further, Mr Paolucci was 'a low‑key drug dealer' who supplied the drugs 'as a trusted person, more in the nature of courier than in the nature of a profit taker'.[26] Nor was he on bail at the time of the offence.
19. The third case relied upon is Carlucci. In that case, the offender was sentenced in relation to four counts as follows:
    1. Count 1: possession of 108.7 g of methylamphetamine with intent to sell or supply ‑ 3 years' imprisonment;
    2. Count 2: possession of 2.72 g of MDMA with intent to sell or supply ‑ 1 year's imprisonment, concurrent with count 1;
    3. Count 3: possession of unlawfully obtained property ($33,690) ‑ 2 years 6 months' imprisonment, concurrent with count 1;
    4. Count 4: possession of 123.9 g of methylamphetamine with intent to sell or supply ‑ 5 years' imprisonment, cumulative on count 1.
20. The sentences were imposed before the maximum penalty for the possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another was increased to life imprisonment.
21. The total effective sentence was 8 years' imprisonment. Ms Carlucci appealed against that total effective sentence, on the ground that it breached the first limb of the totality principle. The appeal was upheld. She was resentenced to a total effective sentence of 6 years 6 months' imprisonment. The court did not interfere with the individual sentences imposed for the two counts that involved the possession of methylamphetamine. To achieve the reduction, the court ordered that the sentence for count 4 was to begin after Ms Carlucci had served 18 months of the sentence for count 1.
22. The individual sentences and the reduced total effective sentence imposed on Ms Carlucci do not suggest that the appellant's sentence for count 4 was manifestly excessive. The total quantity of the drugs possessed by Ms Carlucci in counts 1, 2 and 4 combined was less than half of the heroin possessed by the appellant in this case. Further, Ms Carlucci received a discount of 15% on the head sentence that would otherwise have been imposed for each offence for her pleas of guilty, under s 9AA of the Sentencing Act.
23. The appellant noted that the court in Carlucci discussed comparable cases.
24. The court observed that a number of the cases involved sentences of 5 to 7 years' imprisonment imposed on persons engaged in a commercial drug business which involved dealing in ounces rather than kilograms.[27] In his submissions, the appellant referred to the court's discussion of two of those cases ‑ The State of Western Australia v Nillson[28] and Chu v The State of Western Australia.[29]
25. In Nillson, the offender possessed 377.65 g of methylamphetamine and had been given a total effective sentence of 4 years 6 months' imprisonment. On a State appeal, that sentence was set aside, and a total effective sentence of 6 years 6 months' imprisonment was substituted.
26. In Chu, the offender pleaded guilty to six counts. Five involved the selling or possession of a total of 227.5 g of methylamphetamine. One was for the sale of a tablet of MDMA. The total effective sentence was 7 years' imprisonment.
27. Mr Chu's grounds of appeal included that the sentences imposed for three of the counts relating to methylamphetamine were manifestly excessive ‑ counts 2, 3 and 6. Count 2 related to the sale of 28 g of 79% pure methylamphetamine for $15,000. He was sentenced to 4 years' imprisonment on count 2. Count 3 was the sale of 28.3 g of 65% pure methylamphetamine for $15,000, for which he was also sentenced to 4 years' imprisonment. Count 6 was the possession of 101.6 g of methylamphetamine in three bags. One bag contained 11.99 g of the drug at a purity of 72%. A second bag contained 40.3 g with a purity of 23% and the third bag contained 49.4 g with a purity of 81%. He was sentenced to 5 years' imprisonment on count 6.
28. Leave to appeal was refused on all grounds. Further, the court observed that the total effective sentence of 7 years' imprisonment was just.[30]
29. We have considered the circumstances of both of those cases. Neither indicates that the appellant's sentence for count 4 was manifestly excessive.
30. The court in Carlucci also observed that sentences above the 5 to 7 year range have been imposed in some cases, which involved a greater degree of criminality than was involved in Ms Carlucci's offending.[31] In his submissions, the appellant referred to the court's discussion of one of those cases ‑ Lear v The State of Western Australia.[32]
31. In Lear, the offender pleaded guilty at the first reasonable opportunity to selling a total of 314.4 g of methylamphetamine to an undercover officer for a total of $184,000. Of the 314.4 g, 149.4 g had a purity of between 6% and 46%. The rest had a purity of between 44% and 69%. The offender was also convicted of conspiracy to sell a further 112 g to the officer for $66,000, which he was unable to source. The court refused leave to appeal against the total effective sentence of 9 years' imprisonment. The scale of the drug dealing business in that case was greater than in Carlucci.[33]
32. The sentence in Lear does not indicate that the appellant's sentence for count 4 was manifestly excessive. In any event, the court refused leave to appeal. That is, the court found that the total effective sentence under appeal was not even arguably excessive. In those circumstances, the sentence imposed does not provide any marker as to the upper limits of the proper exercise of discretion.[34]
33. The court in Carlucci also observed that sentences of 10 years or more have been imposed for charges arising from a single occasion of possession of very large quantities of prohibited drugs, especially methylamphetamine, with the intent to sell or supply.[35]
34. The respondent noted that, in The State of Western Australia v YCL,[36] this court analysed a number of relevant cases in the course of allowing a State appeal against sentence. We have considered those cases, and the case of YCL itself. None indicate that the appellant's sentence for count 4 was manifestly excessive.
35. The offence in count 4 was serious. The maximum penalty is 25 years' imprisonment. The appellant was in sole possession of 510.30 g of heroin with the intention of selling all of it for financial gain. It was worth between $250,000 and $550,000. The offending was far from the low end of offending of this kind. The appellant was not a courier or intermediary. He was the end destination for the drugs to be further distributed for financial gain. The appellant was on bail for count 2 when he committed count 4. The sentencing judge took into account all relevant mitigating factors including the late plea of guilty and his cooperation (bearing in mind that most of the cooperation discount had been given on count 2).
36. In our view, it was well open to the sentencing judge to impose a term of 7 years' imprisonment in relation to count 4.
37. We would refuse leave to appeal on ground 2.

1. The appellant sought an extension of time within which to appeal. The delay has been explained and the State does not oppose the application. We would grant the application for an extension of time.

1. For these reasons, we would grant the application for an extension of time, grant leave to appeal on ground 1, but dismiss the appeal.

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

[2] Sentence appeal book (AB) 62 ‑ 63, 72. The sentencing judge was told that if the heroin was sold in 'plates' (350 g), it would be worth $250,000. If sold by the gram, it would be worth $550,000.

[6] AB 80 - 81. See also VRW v The State of Western Australia [2022] WASCA 177 [29].

[12] AB 74 - 75. See also AB 79. Clearly, the sentencing judge was referring to the methylamphetamine the appellant and Mr A believed they possessed.

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

[19] See Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37].

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

[21] The State of Western Australia v Paolucci [2020] WASCA 188.

[22] The first limb of the totality principle relevantly 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 the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases ‑ Kabambi [21(3)].

[25] GUE v The State of Western Australia [2022] WASCA 121 [59].

[28] The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110.

[29] Chu v The State of Western Australia [2012] WASCA 135.

[32] Lear v The State of Western Australia [2015] WASCA 90.

[36] The State of Western Australia v YCL [2024] WASCA 124 [69] ‑ [74].