GRL -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 146 (25 November 2024)

Count 2 6 months' (reduced from 12 months for totality)

Count 3 2 years 5 months' (reduced from 2 years 10 months for totality)

1. His Honour ordered that the sentences be served cumulatively upon each other. Thus, the total effective sentence imposed upon the appellant was 8 years 11 months' imprisonment. The appellant was made eligible for parole. The sentences were backdated to commence on 26 July 2023.
2. The appeal was filed three days out of time. Accordingly, an extension of time to appeal was required. On 28 November 2023, Buss P granted an extension of time.
3. The appellant relies upon a single ground of appeal, which alleges that the learned sentencing judge erred by failing to take into account the appellant's past cooperation and promised future cooperation with law enforcement authorities as separate mitigating factors. The respondent conceded that his Honour erred as alleged and that this court's jurisdiction to resentence the appellant afresh was enlivened.[1] As we will explain, the respondent's concession was correctly made. We would sentence the appellant to a lower total effective sentence than that imposed at first instance.
4. These reasons will first deal with the conceded ground of appeal and then the resentencing.

1. As to count 1, on the morning of 26 August 2021, Australia Post identified a suspicious package which had been sent from New South Wales to a fictitious recipient at an address in North Perth. Police officers attended at the Australia Post facility and seized the parcel. It was found to contain 1.978 kg of methylamphetamine, with a purity ranging from 74% ‑ 82%. Police seized the methylamphetamine and replaced it with an inert substance. They then reconstructed the package. At approximately 12.40 pm, a controlled delivery occurred in which the package was left unattended at the front door of the North Perth address. The appellant attended the property and examined the package, but left without it. Later on the same day, he returned to the address, collected the package, and placed it in his vehicle. He then drove the vehicle to an address in the Perth CBD and carried the package into a residential unit. Once inside, he opened the package and emptied part of its contents into a large bowl in the kitchen. At this point, the appellant was arrested. The appellant was wearing disposable gloves. Nearby, were plastic bags and scales. It is clear that he was in the process of repackaging what he believed was methylamphetamine.
2. As to count 2, police conducted a search of the unit. During the search, police located a black cooler bag containing $60,000 in cash, as well as a further $1,000 cash in the appellant's wallet.
3. As to count 3, police officers also executed a search warrant at the appellant's residential address in a Perth suburb. There, they found several clipseal bags containing methylamphetamine weighing a total of 22.89 g, with a purity of between 74% ‑ 82%.
4. A search of the text messages stored on the appellant's mobile telephone revealed messages relating to the sale and supply of methylamphetamine.
5. The appellant admitted to law enforcement officers that he had been involved with co‑offenders in drug dealing in the past.

1. At the time of the offending, the appellant was 40 years of age. He was 42 years old when he was sentenced.
2. The appellant grew up in a supportive family environment, but struggled with the effects of what was then undiagnosed Attention Deficit Hyperactivity Disorder (ADHD). The appellant was bullied at school, which left him traumatised and caused him to withdraw and act out through vandalism and fighting. In his mid‑teens, he commenced using cannabis, MDMA and amphetamines. Later, he became addicted to methylamphetamine. The appellant missed much of year 12, but eventually completed a Certificate IV in sound engineering. His musical ability enabled him to find good work in the music industry.
3. Unfortunately, being in the music industry normalised his illicit drug use. Moreover, the appellant used illicit drugs to cope with the symptoms of ADHD and the emotional challenges he experienced.
4. The appellant's intimate relationships have been marred by infidelity and drug abuse. The appellant has a young child, who lives with her mother. The appellant has regular contact with the child.
5. Character references received from the appellant's parents and friends spoke highly of his personal qualities, including his musical talent, confirmed their support for him, and stated that they considered his offending to be out of character.
6. After his arrest, the appellant attended 14 sessions with a forensic and clinical psychologist and received counselling designed to address his drug addiction. During these sessions, the appellant was diagnosed with ADHD, but did not receive treatment for it at that time. Prior to being sentenced, the appellant consulted another forensic and clinical psychologist, Ms Jane Sampson, who provided a psychological report for use in the sentencing proceedings.
7. Ms Sampson noted that the appellant had not yet received any treatment for his ADHD. In her opinion, the appellant appeared to suffer from the disorder, which compromised his impulse control, concentration and emotional regulation. She described him as having been traumatised by his years at school, where he was severely physically and emotionally bullied, and marginalised by his peers and teachers. In addition to what appeared to Ms Sampson to be ADHD, the appellant also suffered from chronic depression, anxiety and Complex Post‑Traumatic Stress Disorder. Ms Sampson observed that the appellant had a long history of managing his ADHD symptoms through substance use.
8. In Ms Sampson's opinion, the main drivers for the appellant's offending behaviour appeared to be:

(a) a traumatic history involving insecure attachments and physical and emotional victimisation as a child;

(b) substance use as a negative coping strategy;

(c) poor coping and emotional resilience;

(d) untreated mental health challenges;

(e) an attentional condition, leading to impulsivity and poor judgment;

(f) involvement with antisocial others;

(g) poor judgment and poor consequential thinking;

(h) resources for his own drug use; and

(i) possible financial gain.

1. Unsurprisingly, Ms Sampson stated that the appellant would benefit from an intensive substance use intervention program. She reported that the appellant was willing to attend such a program. She also observed that the appellant requires medication for his mental health challenges.
2. Shortly before he was sentenced, the appellant consulted a psychiatrist, Dr Oleh Kay, who provided a brief report dated 21 August 2023. In this report, Dr Kay stated, amongst other things, that he diagnosed the appellant with probable ADHD. Dr Kay stated that any treatment involving the prescription of stimulants would have to be initiated by the prison health service, and that, if his probable ADHD was appropriately treated, the appellant's chances of recidivism would be substantially reduced.
3. The appellant had a modest criminal history, restricted to offences which were dealt with in courts of summary jurisdiction, including offences of possession of prohibited drugs, drug paraphernalia and smoking utensils.

1. After the appellant's arrest, he provided, what was rightly considered to be at the time of his sentencing, both past and promised future cooperation. The past cooperation involved providing a statement against a co‑offender. The promised future cooperation involved providing an undertaking to give evidence in a future trial of that co‑offender in accordance with the statement. The nature of this cooperation (which will also be relevant to the resentencing of the appellant) is described in a confidential annexure to these reasons, which, in the interests of justice, will be subject to a suppression order.

1. The sentencing judge comprehensively and accurately set out in his sentencing remarks the facts of the offending and the appellant's personal circumstances.
2. His Honour identified the maximum penalties for the offences, and then analysed the aggravating and mitigating circumstances.
3. The sentencing judge characterised the offending as 'extremely serious'.[2] His Honour described the appellant's role in the drug network as 'taking responsibility for the collection and storage of a large quantity of illicit drugs'.[3] He said that the appellant was 'somewhat of a trusted individual within the drug network'.[4] His Honour found, having regard to the fact that the appellant was found by police at the time of his arrest at a kitchen bench with a bowl containing what he believed to be methylamphetamine, plastic bags, and digital scales, that the appellant's involvement in the drug enterprise extended to repackaging the drugs for onward sale and supply.[5]
4. His Honour found that the prohibited drugs the subject of counts 1 and 3 would have been sold to others, thereby causing substantial harm to the community.[6] Further, his Honour found that the appellant's offending was motivated by financial gain; a point illustrated by his possession of the money the subject of count 2.[7]
5. A further aggravating factor was that the appellant took steps to conceal his offending from law enforcement authorities via the use of the Signal application.[8] His Honour considered that, in respect of count 1, the appellant was part of well‑planned and well‑orchestrated importation of illicit drugs into Western Australia from New South Wales using the postal system.
6. His Honour concluded that the appellant was 'blind and ill‑concerned about the extremely dangerous and devastating effects' that methylamphetamine has on users of the drug, and people in the community who have become innocent victims of crime committed by such people.[9]
7. His Honour then turned to the mitigating factors. The sentencing judge acknowledged that the pleas of guilty were entered by the appellant at an early opportunity. Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour reduced the length of the sentence he would otherwise have imposed but for the plea of guilty on each count by 20%.[10]
8. In addition, his Honour found that the appellant was genuinely remorseful for his offending.[11] The sentencing judge acknowledged the steps the appellant had taken towards his rehabilitation, including undertaking psychological counselling, his willingness to attend residential drug rehabilitation, and his efforts to cease illicit drug use.
9. His Honour took into account as a mitigating factor the appellant's cooperation with law enforcement authorities. We will say more about this when we deal with the merits of the ground of appeal. For present purposes, it is enough to say that his Honour was aware of the appellant's past cooperation and his offer to provide future cooperation, and he took these things into account as mitigating factors by giving a single deduction of 15% for their combined effect.[12]
10. His Honour noted that the appellant had 'a relatively modest [criminal] record'.[13] His Honour said that the appellant was not entitled to the mitigation afforded to someone who was before the court for the first time, and who was otherwise of good character. He then said that the appellant's criminal history indicated that a more severe penalty should be imposed, both to deter him and to protect the community. His Honour added that, having regard to the appellant's admission that he had been involved in drug dealing with his co‑offenders prior to the commission of these offences, the offending could not be said to be an aberration.[14]
11. His Honour found, based on the report of Dr Kay, that if the appellant did not receive appropriate treatment for his ADHD, his risk of reoffending 'is not low'.[15] Beyond this, his Honour was unable to discern the appellant's risk of reoffending in the future. His Honour went on to state that, in the event the appellant received appropriate treatment, his risk of reoffending would be substantially reduced.[16]
12. His Honour addressed the effect of the appellant's mental health and childhood experiences. He said that while these matters may have helped to explain the offending, they did not excuse it and they were not mitigatory.[17] After applying the totality principle, his Honour imposed the sentences and made the orders referred to in [3] and [4] above.

1. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) states that the seriousness of an offence must be determined by taking into account:

(a) the statutory penalty for the offence; and

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

(c) any aggravating factors; and

(d) any mitigating factors.

1. Aggravating factors and mitigating factors are defined in s 7 and s 8, respectively. Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.[18]
2. It is well established that a sentencing judge is not bound, absent any statutory requirement, to quantify the discount for a mitigating factor. The task of a sentencing judge is, subject to any statutory requirement, to intuitively synthesise all relevant sentencing considerations in order to arrive at a sentence commensurate with the seriousness of the offence.[19]
3. Although it scarcely needs to be said, the provision by an offender of cooperation to law enforcement authorities is a mitigating factor. The relevant legal principles relating to an offender's cooperation are well established and have been explained in many cases. See, for example, SYL v The State of Western Australia.[20] It is unnecessary to repeat the relevant principles.
4. Cooperation falls into two broad categories; past cooperation, that is, cooperation given to law enforcement authorities prior to sentencing; and future cooperation, that is, a promise to cooperate after sentencing. Past cooperation is not subject to any statutory requirement that the discount be quantified. A sentencing judge may quantify the discount for past cooperation, but is not required to do so.
5. The position with future cooperation is different. Future cooperation is the subject of a statutory requirement that the discount be quantified. The relevant statutory provision is s 8(5) of the Sentencing Act, which states:

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

1. The requirement in s 8(5) that the court must state the fact and the extent of the reduction for promised future cooperation in open court is important to the sentencing process, having regard to s 37A of the Sentencing Act. Section 37A provides for the consequences for an offender who, having undertaken to assist law enforcement authorities, fails wholly or partly to fulfil the undertaking. In such circumstances, the sentencing court may recall the order imposing the reduced sentence and impose a sentence based on the full sentence, that is, the sentence that would have been otherwise imposed had the offender not undertaken to assist law enforcement authorities.[21]
2. Thus, when a court reduces the sentence it would otherwise have imposed on an offender for an offence because the offender has undertaken to assist law enforcement authorities, the court is obliged to state that fact, and the extent of the reduction, in open court. A sentencing judge may comply with the requirement in s 8(5) to state the extent of the reduction by stating the reduction in terms of the actual period, for example, in actual years or months, or by stating a percentage, or both. Whatever method is used, it is essential for the sentencing judge to ensure that, in the event the offender should subsequently fail, wholly or partly, to fulfil the undertaking, the court recalling the order imposing the original sentence is able to ascertain the extent of the reduction given at first instance. The specification of the extent of a reduction, as required by s 8(5), is part of the sentence.
3. In the present case, as the appellant states in the ground of appeal and the respondent accepts in its concession of the ground, the sentencing judge did not fully comply with the requirements of s 8(5) of the Sentencing Act. While he stated in open court that he gave a discount for the appellant's promised future cooperation, he did not state the extent of the reduction for this factor.[22] By specifying a singular discount for both past and future cooperation combined, on the facts of this case, it is impossible to ascertain the extent of the reduction for future cooperation, although it appears that some reduction was made. As the respondent points out in its written submissions, the approach taken by his Honour was likely to be problematic if the appellant had subsequently reneged on his undertaking, and proceedings were brought pursuant to s 37A(2) of the Sentencing Act.[23]
4. For these reasons, the ground of appeal has been made out. In our opinion, a different sentence should have been imposed. It is therefore necessary that the appellant be sentenced afresh.

1. At the hearing of the appeal on 23 May 2024, it was evident that the court would, very likely, be required to resentence the appellant afresh. If this occurred, it was open to this court to have regard to any relevant event which had occurred since the appellant was sentenced on 22 August 2023. Relevantly, this would include anything which had occurred that concerned the appellant's cooperation and his mental health.
2. Counsel for the appellant sought the opportunity to adduce additional evidence of events which have occurred since the appellant was sentenced. The respondent agreed that this was appropriate. Accordingly, at the conclusion of the hearing on 23 May 2024, this court made orders, the effect of which was to permit the appellant to file and serve any application for leave to adduce additional evidence in the appeal, as well as written submissions on the subject of the appellant's resentencing by this court. The respondent was permitted to file and serve any written submissions in response. It was agreed that this court would determine the appellant's resentencing on the papers.
3. By application dated 4 June 2024, the appellant sought leave to adduce as additional evidence in the appeal the affidavit of his lawyer, Gerald Chui Ren Yin, affirmed 4 June 2024. Among the annexures to Mr Yin's affidavit were the appellant's prison medical records, and two supplementary reports written by Dr Kay, dated 22 May 2024, and 23 May 2024, respectively. The respondent did not put before this court any additional sentencing material.
4. It appears from these materials that the appellant has ADHD and that he is being adequately treated for the disorder. Because the appellant is serving a term of imprisonment, he is not permitted to have stimulant medication such as dexamphetamine, methylphenidate, or lisdexamfetamine, although stimulant medication may be prescribed once he is released from prison. In prison, he has been prescribed a non‑stimulant medication called atomoxetine. The appellant's dosage of atomoxetine was, on 6 March 2024, increased from 40 mg to 80 mg.
5. According to Dr Kay, based on a recent consultation with the appellant, the atomoxetine has helped him focus and, in general, 'he is somewhat improved with it'.[24]
6. Dr Kay was asked by the appellant's solicitors to comment on the appellant's risk of recidivism, in light of the treatment now being administered to the appellant. Dr Kay stated in his report of 22 May 2024:

In relation to [the appellant's] recidivism risk, it is not possible to make a definitive statement as to him in person, but rather, a general statement in relation to persons with ADHD and the risk of recidivism which is that if the ADHD is treated then the risk of re offending is substantially reduced which has been a finding consistently found over a number of years. There is an over representation of ADHD in the prison population and it has been demonstrated in a number of studies that the treatment for ADHD reduces the risk of recidivism.

1. In Dr Kay's addendum report of 23 May 2024, in response to a question from the appellant's solicitors as to the significance of the increase in the dosage of atomoxetine from 40 mg to 80 mg, Dr Kay said, in substance, that 'the higher the dose the more likely for it to be therapeutic'.
2. Events relevant to the assessment of the appellant's cooperation have also occurred since his sentencing on 22 August 2023. They are set out in the confidential annexure to these reasons.

1. The parties provided this court with written submissions on the resentencing. It is unnecessary to refer to all of the submissions.
2. The appellant relevantly submitted:

(a) Now that he is being adequately treated for ADHD, his risk of recidivism has been substantially reduced.

(b) All of the appellant's assistance to authorities should now be characterised as past cooperation. In this regard, it was submitted that the appellant's cooperation in the prosecution of the co‑offender made the case against this person 'an overwhelming one'. The others who were prepared to give evidence against the co‑offender gave statements limited to propensity reasoning.

(c) This court should make a different finding from that made by the sentencing judge about the need to impose a penalty to deter the appellant from offending, and to protect the community by reason of his prior criminal record. Contrary to the sentencing judge's findings, the appellant's criminal record did not justify these findings.

(a) The additional evidence sought to be adduced by the appellant was relevant to his resentencing, but it should not result in any more than 'modest mitigation' because personal deterrence remains a significant sentencing consideration and the appellant's mental health challenges were not the sole drivers of his offending.

(b) In effect, that it agreed with the submission referred to at [56(c)] above, that the appellant's criminal history did not require additional weight to be given to personal deterrence and community protection. The respondent submitted that the true significance of the appellant's criminal record was that he should not receive the mitigation that would be afforded to a person of prior good character. Further, the facts of the offending demonstrated that it was not an aberration or a one‑off error of judgment, as illustrated by the appellant's involvement in ongoing commercial drug dealing.

1. It is unnecessary to repeat what we have already written about the maximum penalties for the offences committed by the appellant, the facts and circumstances of the offending, the appellant's personal circumstances, and his cooperation and the legal principles that pertain to it.
2. There can be no doubt that the appellant's offending was very serious. We agree with the sentencing judge's finding that the appellant was part of a well‑planned and well‑orchestrated importation of illicit drugs into Western Australia from New South Wales, using the postal system. The appellant's role was to collect and store the prohibited drugs, and to repackage them for onward sale and supply. Although the appellant was not at the upper echelon of the enterprise, he played an important and trusted role in it. The offending was not isolated.
3. Count 1 involved almost 2 kg of high purity methylamphetamine, with the potential to directly and adversely effect many individual users and the community at large.
4. There were substantial mitigating factors, the most important of which were the appellant's pleas of guilty and his cooperation. In addition, the appellant appears genuinely remorseful and has mental health challenges, particularly ADHD. The appellant's ADHD did not deprive him of the ability to know that what he did was morally wrong. Based on the evidence of Dr Kay, the appellant is now being adequately treated for his ADHD and provided he maintains that treatment, including after his release from prison, his risk of recidivism will be reduced.
5. The appellant has a modest criminal history. We agree with the submissions made by the appellant on resentencing, which were, in effect, conceded by the respondent, that his prior criminal history is not of the kind that requires personal deterrence and protection of the public be given greater weight.
6. Of course, it is necessary to bear in mind that the primary sentencing considerations for sentencing offenders who commit serious drug trafficking offences are personal and general deterrence, and that matters personal to such offenders carry less weight.
7. The appellant's pleas of guilty were entered at an early stage in the proceedings, but in circumstances where he faced a strong prosecution case. In exercising the powers set out in s 9AA of the Sentencing Act, we would, in respect of each offence, reduce the head sentence as defined in s 9AA(1) to reflect the benefits to the State resulting from the plea by 20%.
8. We agree with the submission of the appellant at [56(b)] above, that the totality of the appellant's cooperation should be characterised as past cooperation. The provision of the statement in respect of the co‑offender significantly assisted the State to bring to justice a significant drug offender, who appears to have been in a senior position in an organisation which was bringing into Western Australia by mail large amounts of methylamphetamine from interstate. The evidence that he would have given against the co‑offender was of considerable importance to the State's case against this person. As a result of his cooperation, he will experience a degree of hardship in prison.
9. While we are not required to specify the amount of the discount for past cooperation, it is, in this case, appropriate to do so. We would give a discount for past cooperation of 20%.
10. Having regard to all of the relevant facts and circumstances, we would resentence the appellant to the following terms of imprisonment:

1. The offending when looked at as a whole, while related, involved separate offences, and thus warrants some accumulation. Having regard to totality, we would reduce the sentence on count 3 from 2 years 3 months' imprisonment to 1 year 2 months' imprisonment. We would order that the sentences on counts 1 and 3 be served cumulatively, and that the sentence on count 2 be served concurrently with the sentence on count 1. Thus, the total effective sentence we would now impose upon the appellant is 8 years' imprisonment. The appellant remains eligible for parole, and the sentences are backdated to commence on 26 July 2023.

1. The ground of appeal relied upon by the appellant is made out. The sentences imposed upon the appellant by the sentencing judge are set aside and the appellant is resentenced in accordance with [68] above. The orders that we would make are as follows:
   1. The appellant's application dated 4 June 2024 to adduce additional evidence in the appeal is granted.
   2. Leave to appeal is granted.
   3. The appeal is allowed.
   4. The sentences imposed by Egan DCJ on 22 August 2023 are set aside.
   5. The appellant is resentenced as follows:

Count 3 1 year 2 months' imprisonment (reduced from 2 years 3 months for totality)

1. The sentences on counts 1 and 3 are to be served cumulatively, and the sentence on count 2 is to be served concurrently with the sentence on count 1. Thus, the total effective sentence now imposed upon the appellant is 8 years' imprisonment.
2. The appellant remains eligible for parole.
3. The sentences are backdated to commence on 26 July 2023.

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

[1] Respondent's answer, par 16; appeal ts 2.

[8] This application encrypts text communications so that they cannot be detected.

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

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

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

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