HAYTER -v- THOMSON [2020] WASC 194 (4 June 2020)

1. On 20 January 2020, the appellant appeared before the magistrate in the South Hedland Magistrates Court. The appellant was represented by a legal practitioner. Her Honour read the charges to the appellant and he pleaded guilty to each of the seven charges.
2. The facts, which were not disputed by the appellant, were read to the court.[1] The facts may be summarised as follows.

Charge PH 40/2020 - possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (methylamphetamine (0.5 g))

1. On 16 March 2018, investigators obtained a telephone interception warrant with respect to a telephone service subscribed by an associate of the appellant. Between 16 March 2018 and 30 May 2018 police intercepted the telecommunications from the service. On 5 April 2018, investigators obtained a telephone interception warrant with respect to another associate of the appellant being Mr Lees-Mulholland.
2. At approximately 10.30 pm on Friday 6 April 2018, the appellant was a party to a text conversation with an associate Ms Herbert. Ms Herbert advised the appellant to tell a third party that she could sell him 0.5 g of methylamphetamine for $350. Ms Herbert then stated that she could give the appellant the next one.

Charge PH 41/2020 - possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (methylamphetamine (1.5 g))

1. At 4.50 pm on 8 April 2018, the appellant asked Ms Herbert via text message to sell him a gram of methylamphetamine, which he intended to supply to another. Ms Herbert advised the appellant that she could provide him with 1.5 g of methylamphetamine.

Charge PH 42/2020 - possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (methylamphetamine (1.5 g))

1. On Friday 13 April 2018, Mr Lees-Mulholland agreed to sell the appellant 1.5 g of methylamphetamine so that he could sell it to a third party. They arranged via text for the appellant to attend Mr Lees-Mulholland's house to collect the drugs, deliver them to and collect money from the third party, and to then deliver that money back to Mr Lees-Mulholland.

Charge PH 43/2020 - possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (methylamphetamine (1.5 g))

1. On 29 April 2018, Ms Herbert advised the appellant that she had $1,000 worth of methylamphetamine. The appellant agreed to meet her to help her sell the drugs alleged to be 1.5 g of methylamphetamine.

Charge PH 1714/2018 - supplied a prohibited drug (MDA s 6(1)(c) (MDMA (1 g))

1. At approximately 6.32 pm on 1 June 2018, the appellant entered into an agreement with an adult male to supply him with four ecstasy tablets. Shortly after, the appellant met with the adult male and supplied him with the four ecstasy tablets.

Charge PH 1715/2018 - supplied a prohibited drug (MDA s 6(1)(c) (MDMA (0.5 g))

1. At approximately 6.54 pm on 1 June 2018, the appellant entered into an agreement with an adult female to supply her with two ecstasy tablets. Shortly after, the appellant met with the adult female and supplied her with the ecstasy tablets.

Charge PH 1716/2018 - possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (MDMA (2.25 g))

1. At approximately 2.00 am on Sunday 10 June 2018, the appellant was a passenger in a taxi in South Hedland when the vehicle was stopped for a random breath test. The taxi was searched under the provisions of the Act. The appellant was subject to a search. Inside the appellant's wallet was a small clip seal bag containing six white tablets weighing 2.25 g.

1. At the sentencing hearing the appellant was represented by counsel who delivered a plea in mitigation.[2] The prosecutor submitted that a term of immediate imprisonment was within the magistrate's sentencing discretion. Her Honour ordered a pre-sentence report and adjourned the sentencing to 17 February 2020.
2. On 17 February 2020, a further plea in mitigation was made by counsel for the appellant.[3] Her Honour imposed a sentence of 12 months' immediate imprisonment in respect of the seven charges. Her Honour stated that 'I've arrived at 12 months imprisonment in relation to these matters.'[4] However, her Honour did not impose a separate term of imprisonment in respect of each charge, observing that 'I haven't broken those down. I will over the seven charges. I have dealt with it as a total sentence'.[5]
3. It appears that after the hearing her Honour noted a separate penalty on the Prosecution Notice and the Warrant of Commitment for each charge. However, her Honour did not pronounce a sentence for each offence in the presence of the appellant.

1. The appellant initially relied upon one ground of appeal in the following terms.[6]
   1. The magistrate erred in law by failing to suspend the sentence of imprisonment.

A sentence of immediate imprisonment was so excessive as to manifest error, having regard to:

1. The appellant's youth;
2. The appellant's lack of criminal record;

1. The strong evidence of rehabilitation, and the consequences for his rehabilitation if immediate imprisonment was imposed;
2. The appellant's low position in the distribution hierarchy;
3. The lack of commercial gain or motive;
4. The appellant's plea of guilty.

1. Prior to the hearing of the appeal, counsel were requested by the court to consider the significance, if any, of her Honour's failure to impose a sentence for each offence. Subsequently on 31 March 2020, the appellant made an application in the appeal in the following terms:[7]
   1. A review order pursuant to s 36(1)(a) and (6) of the Magistrates Court Act 2004 against Michelle Ridley, a magistrate of the Magistrates Court at South Hedland, on the basis that her Honour failed to sentence the appellant with respect to each offence, as she was under a duty to do pursuant to s 148 of the Criminal Procedure Act 2004.

1. That the appellant's grounds of appeal be amended to add a second ground of appeal as follows:

'The learned magistrate erred in law by failing to first fix an appropriate sentence for each offence before considering questions of cumulation, concurrency or totality.'

1. A preliminary issue for determination is whether the alleged error in failing to impose a sentence on each of the seven charges should proceed as an appeal under the Criminal Appeals Act 2004 (WA) or as a review order under s 36(1)(a) and s 36(6) of the Magistrates Court Act 2004 (WA).
2. Section 7 of the Criminal Appeals Act provides the right to appeal from a court of summary jurisdiction to the Supreme Court, with s 7(1) providing that 'a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.' Except as provided by that section no appeal lies against a decision of a court of summary jurisdiction.
3. Section 6 of the Criminal Appeals Act defines the term 'decision' with respect to a court of summary jurisdiction to mean any of the determinations specified in that section. Relevantly, s 6(f) provides that a decision means 'a sentence imposed, or order made, as a result of a conviction or acquittal.'
4. Section 148 of the Criminal Procedure Act 2004 (WA), which requires that the magistrate must sentence a convicted person provides:

If a court convicts an accused of an offence, then subject to The Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.

1. The contention of the appellant was that the magistrate had failed in her duty to act by not imposing a sentence in respect of each offence. Therefore, there was no decision under s 6(f) of the Criminal Appeals Act. Accordingly, the appropriate remedy was a review order under s 36 of the Magistrates Court Act requiring the matter to be returned to the summary jurisdiction for the magistrate to impose sentence on the appellant and thereby make a decision.
2. I am of the view that properly considered, her Honour did impose sentence on the appellant and thereby did make a decision as defined in terms of s 6(f) of the Criminal Appeals Act. Her Honour did sentence the appellant by imposing, in effect, a global penalty of 12 months' immediate imprisonment in respect of seven separate offences. I do not accept that her Honour failed to sentence the appellant. Rather, the issue raised on appeal is whether her Honour, by imposing a global sentence with respect to seven separate charges, erred in law. Therefore, an appeal lies under the Criminal Appeals Act in respect of the orders made by her Honour.
3. Accordingly, on 7 April 2020 I granted the appellant leave to rely upon proposed ground two as particularised in the Application dated 31 March 2020.

1. This is an appeal under pt 2 of the Criminal Appeals Act, which means that leave to appeal is required.[8] The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[9]
2. An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[10]
3. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[11]

1. By ground two the appellant pleads that her Honour erred in law by failing to first fix an appropriate sentence for each offence before considering questions of cumulation, concurrency or totality.
2. The respondent conceded ground two. That concession was properly made. Her Honour erred in law by imposing a global sentence and thereby failed to impose a sentence in respect of each offence and further erred by purporting to sentence the appellant but not in his presence and in open court.
3. Her Honour imposed a 12 month term of imprisonment stating:[12]

But ultimately, given the quantity, given the nature of the dealing, where you sat in the hierarchy and taking all personal circumstances into account and most particularly, a lack of record and obviously a first time in custody, I've arrived at 12 months imprisonment in relation to these matters ... I haven't broken those down. I will over the seven charges. I have dealt with it as a total sentence.

1. However, her Honour did not during the sentencing hearing specify the actual term of imprisonment to be imposed on each respective charge. I requested that copies of the Prosecution Notices and the Warrant of Commitment be obtained in order to determine, whether subsequent to the sentencing of the appellant, her Honour made entries on these documents.
2. The Prosecution Notice is defined by s 3 of the Criminal Procedure Act to mean the document that contains one or more charges, complies with s 23(2), and is lodged with a court of summary jurisdiction. The Prosecution Notice is the formal document that commences a prosecution in the summary court.[13] Section 68 of the Criminal Procedure Act provides:

If a court determines a charge, or dismisses a charge for want of prosecution, it must record on the prosecution notice the determination or dismissal and any order it makes as a result of the determination or dismissal.

1. In relation to these charges, her Honour made entries on the Prosecution Notices in the following terms:

Imprisonment PH 1714/2018 1M CM Eligible for Parole: Yes; PH 1715/2018 1M CC Eligible for Parole: Yes; PH 1716/2018 2M CM Eligible for Parole: Yes; PH 40/2020 1M CC Eligible for Parole: Yes; PH 41/2020 3M CM Head Sentence: Yes Eligible for Parole: Yes; PH 42/2020 3M CM Eligible for Parole: Yes; PH 43/2020 3M CM Eligible for Parole: Yes Total term: 1 Y Eligible for Parole: Yes Sentence Start Date: 17/02/2020

1. Section 36 of the Sentencing Act 1995 (WA) provides that 'if a court imprisons an offender and does not suspend the term, it must issue a warrant of commitment accordingly.' The Warrant of Commitment is a warrant issued by a judicial officer subsequent to the imposition of sentence that authorises the chief executive officer under the Prisons Act 1981 (WA) to imprison the offender for the term stated on the warrant. The Warrant of Commitment states the date of sentence, the commencement date of sentence, the offences, and the respective sentences imposed on each offence. The Warrant of Commitment records the terms of imprisonment imposed on each respective charge; that is, the terms that were imposed in the courtroom at the time of sentencing the offender.
2. The Warrant of Commitment issued by her Honour, in part, records the respective sentences that were imposed:[14]

Possession of a prohibited drug with intent to sell or supply (MDA s 6(l)(a) (methylamphetamine (0.5 g))

Possession of a prohibited drug with intent to sell or supply (MDA s 6(l)(a) (methylamphetamine (1.5 g))

Possession of a prohibited drug with intent to sell or supply (MDA s 6(l)(a) (methylamphetamine (1.5 g))

Possession of a prohibited drug with intent to sell or supply (MDA s 6(l)(a) (methylamphetamine (1.5 g))

Supplied a prohibited drug (MDA s 6(l)(c) (MDMA (l g))

Supplied a prohibited drug (MDA s 6(l)(c) (MDMA (0.5 g))

Possession of a prohibited drug with intent to sell or supply (MDA s 6(1)(a) (MDMA (2.25 g))

1. The Warrant of Commitment and the entries on the Prosecution Notices are not means by which the Court passes sentence on the offender but rather should record the sentence that was imposed at the time of the pronouncement of the sentence in the courtroom.
2. Section 171(2) of the Criminal Procedure Act requires all proceedings to be in open court unless that Act, or the rules of court or another written law provides otherwise.
3. Section 14(1) of the Sentencing Act provides that a court is not to sentence an offender unless the offender is personally present for the sentencing process:
   1. Offender to be present for sentencing

(1) A court is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under section 14A.

(2) Despite subsection (1), a court may, in an offender's absence -

(a) under Part 6 impose no sentence; or

(b) under Part 8 impose a fine; or

(c) under Part 8A impose a suspended fine,

and, in connection with such a sentence, may also make an order under Part 15, 16, or 17, or under another written law if that law does not require the offender to be present when such an order is made.

(3) Despite subsection (1), a court may sentence an offender in his or her absence if the offender is in custody and the proceedings, because of the offender's conduct, have been directed to proceed in the offender's absence.

(4) Despite subsection (2) or any other law that does not require an offender to be present when a sentence is imposed, a court may require an offender to appear personally to be sentenced.

1. The exceptions specified in sections 14(2) and (3) are not presently relevant. Her Honour failed to impose a sentence for each of the offences in the presence of the appellant and thereby erred in law.
2. Further, her Honour imposed a single term of imprisonment for the seven offences. Subject to limited exceptions,[15] the Sentencing Act contemplates that a court will impose a sentence for each offence for which an offender is convicted.[16] The only circumstance in which a court may impose a single sentence for two or more offences is set out in s 54 of the Sentencing Act. A single sentence of a fine is permitted by the Sentencing Act when a court sentences an offender for two or more offences that are founded on the same facts or form, or are part of, a series of offences of the same or similar kind.[17] In all other circumstances, the court must impose sentence for each offence. Accordingly, it was necessary that her Honour impose a sentence in respect of each offence.
3. A judicial officer is not permitted to impose a global sentence and then after the offender is so sentenced administratively impose an appropriate sentence for each offence and then consider questions of cumulation and concurrency.
4. Section 88 of the Sentencing Act provides that an offender sentenced to one or more fixed terms is to serve the terms concurrently unless the court makes an order that the fixed term is to be served cumulatively on the other fixed term or that the fixed term is to be served partly concurrently with the other fixed term.
5. There are very good reasons why the Sentencing Act requires that the judicial officer impose a sentence in respect of each offence. A global term of imprisonment disguises possible error. In Pearce v The Queen[18] the proper approach to sentencing an offender for multiple offences was stated as follows:
   1. To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
   2. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
   3. Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
6. By imposing a global term of imprisonment it is not known to the appellant whether proper principle has been applied given that there is no transparency with respect to the length of the respective terms, nor how the principles of concurrency, cumulation and totality were applied.
7. The respondent contended that properly understood, the magistrate's error was not explaining the effect of the sentence in accordance with s 34(1) and s 34(2) of the Sentencing Act. Section 34 requires the judicial officer to, relevantly, explain the total effective sentence and the minimum period that the offender will serve in respect of the term, or if more than one term is imposed, the aggregate term.
8. I do not accept the respondent's submission. The error made by her Honour was not merely a failure to explain the effect of the sentence. Rather, her Honour erred by imposing a global sentence and thereby failed to impose a sentence in respect of each offence and further erred by purporting to sentence the appellant, but not in his presence and in open court (by recording on the Prosecution Notice and Warrant of Commitment specified terms and whether the terms were to be served concurrently or cumulatively).
9. Given that a global sentence was imposed for seven offences, I am satisfied that leave to appeal should be granted on ground two and that the ground has been made out. If a ground of appeal is decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[19] I find that there has been a substantial miscarriage of justice. Accordingly, the appeal must be allowed. I must therefore resentence the appellant. Given that the appeal is allowed on ground two I will not determine ground one. Leave is not granted on ground one.

1. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of any victim of the offence, and any aggravating and mitigating factors.
2. Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
3. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offending, viewed in its entirety and having regard to the circumstances of the case including those referrable to the offender personally.[20] The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all of the terms that are appropriate for each of the individual sentences. The total effective sentence must not be unreasonable or plainly unjust.
4. The sentencing options available are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.
5. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[21] Pursuant to s 76(2) of the Sentencing Act, a suspended term of 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. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
6. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[22] That is, all of the circumstances must be revisited. The judicial officer 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.

1. The penalty for the offences is 4 years' imprisonment or a fine not exceeding $5,000 or both when the offender is dealt with summarily.[23] Whilst the maximum sentence that the magistrate could impose summarily was one of 4 years' imprisonment, it is relevant to have regard to the statutory maximum being 25 years' imprisonment or a fine not exceeding $100,000 or both, and not merely the jurisdictional limit in assessing the seriousness of the offence.[24]

1. Turning to the circumstances of the offending, the appellant committed seven offences over a nine week period. The offending was not a single aberrant act of supply but rather a course of conduct. The amount of drugs possessed was at the lower level. The magistrate found that the appellant did not receive money from being involved in the supply of drugs and therefore it was not 'commercial'.[25] However, the appellant did supply for the purposes of reward being the acquisition of drugs for his own personal use and therefore, the magistrate made the finding that the appellant was a low level user dealer.[26]

1. Turning to the appellant's personal circumstances, the appellant was 19 years of age at the time of the offending. The appellant's youth is a mitigating factor. A youthful offender may be less capable of mature reflection and proper judgment, which may be relevant to the youthful offender's level of moral culpability and to the application of general deterrence. However, significant weight must be given to the need for general deterrence and the prevalence of drug offending among young people.[27]
2. Regrettably, the appellant commenced using ecstasy on a social basis when he was in year 12. In 2017, the appellant commenced using methylamphetamine.
3. The appellant has no prior criminal record. During the period that the appellant was on bail he did not reoffend. Further, the appellant has a sound history of employment being employed prior to his incarceration. In February 2018, the appellant commenced an apprenticeship in heavy duty mechanics with BHP and has been fully employed in that position until his incarceration.
4. I received references for the purpose of resentencing from members of the community that speak highly of the appellant's positive qualities and in particular, his supervisor at work who expresses his strong support for the appellant. Accordingly, I make the finding that the appellant is progressing with his rehabilitation and has very strong prospects of rehabilitating. The author of the pre-sentence report observed that the appellant has accepted responsibility for his offending, expressed remorse and is willing to comply with any conditions that may be imposed upon him.[28]

1. The magistrate recognised the plea as a factor in mitigation and afforded the appellant a 15% discount pursuant to s 9AA of the Sentencing Act. A co-offender, Mr Lees-Mulholland, was afforded a 25% discount for his plea of guilty to the charges. The appellant was afforded only a 15% discount for his plea of guilty by the same magistrate though the pleas were entered on the same date after the two co-offenders negotiated their respective pleas with the prosecution. The circumstances and timing of the pleas were the same for both the appellant and Mr Lees-Mulholland. Therefore given that the delay in the plea was only as a consequence of the plea negotiation, I afford the appellant a 25% discount for his plea of guilty to the charges.

1. Whilst decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[29]
2. The appellant referred to the cases of The State of Western Australia v Thompson,[30] Attenborough v The State of Western Australia,[31] and R v Weston.[32] The respondent referred to the cases of The State of Western Australia v Egeland,[33] Donaldson v The State of Western Australia,[34] Bailey v The State of Western Australia,[35] Truscott v The State of Western Australia,[36] Maric v The State of Western Australia,[37] Fenton v The State of Western Australia,[38] Pepper v The State of Western Australia,[39] and Vogel v The Queen.[40] I have considered those decisions.
3. The only two cases that are broadly comparable are Attenborough v The State of Western Australia and The State of Western Australia v Egeland. In Attenborough, the offender was 20 years of age and had possession of 8.43 g (40% purity) of MDMA. The MDMA tablets had been purchased by the offender for herself and her friends to be consumed at her 21st birthday. The offender was remorseful, pleaded guilty, cooperated with police, had no prior criminal record and there was no element of commercial motive. In Attenborough the offender received a 12 month suspended term of imprisonment.
4. In Egeland, the offender was sentenced on the basis that he found MDMA tablets, weighing 12.35 g with 57 ‑ 65% purity, on a floor of a music festival and decided to keep the drugs with an intention to sell them. The offender's mobile phone had communications supporting a finding of sell and supply of prohibited drugs. There was a low level of commerciality. The offender was convicted after trial and received a 16 month term of imprisonment conditionally suspended for a period of 12 months. The Court of Appeal dismissed the State's appeal.
5. The authorities support the proposition that a suspended term of imprisonment for the type of offences committed by the appellant is, as a matter of fact, exceptional.[41] However, as the Court of Appeal observed in Egeland, 'there is no de facto regime of mandatory sentencing such that terms of immediate imprisonment must be imposed in all such cases, whatever the circumstances.'[42]

1. The appellant submitted that the parity principle arises with respect to co‑offenders Mr Lees-Mulholland and Mr Kain Hayter. I must consider the sentences imposed on the co-offenders Mr Lees-Mulholland and Mr Kain Hayter and the application of the parity principle. At the sentencing of the appellant the magistrate did not consider the issue of parity. Counsel did not make submissions regarding issues of parity.
2. I have received the sentencing transcripts for both Mr Lees-Mulholland and Mr Kain Hayter. I am of the view that the parity principle does apply with respect to the co-offender Mr Lees-Mulholland. However, I am of the view that Mr Kain Hayter is not an offender in respect of which the parity principle arises.
3. The parity principle requires appropriate consistency in the sentencing of co-offenders. The parity principle is based upon the norm of equality before the law and requires, so far as the law permits, that like cases be treated alike. It also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.[43] The question that arises is whether the disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[44]
4. In Higgins v The State of Western Australia[45] the Court of Appeal considered the application of the parity principle in circumstances where co-offenders had committed one or more offences but some or all of them had also committed other unrelated offences. In Petrusic v The State of Western Australia,[46] the Court of Appeal stated the applicable principles as follows:
   1. A person's sentence, for the purposes of the parity principle, is comprised of the sentence imposed in respect of each individual offence, any minimum non-parole period, orders for accumulation and concurrence and the resulting total effective sentence, and, where a person is already serving an earlier term of imprisonment, the period of imprisonment which the offender is actually required to serve as a consequence of the later sentence. The parity principle may apply to each and any of these components.
   2. There is no hard and fast rule that, in cases of co-offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. An infringement of the parity principle may arise from a marked disparity in the respective sentences imposed on co-offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though either, or both, of the co‑offenders was sentenced for other offences.
   3. In evaluating a parity argument, all the facts and circumstances must be considered, together with all relevant components of the sentences and all relevant sentencing principles, including the totality principle.
5. Therefore, it is necessary to consider all the relevant facts and circumstances as well as all of the components of the offender's respective sentences.
6. Mr Lees-Mulholland was convicted of eight counts of sell or supply of a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act. The offending by the appellant the subject of charges PH 40/2020 ‑ PH 43/2020 was offending in respect of which Mr Lees-Mulholland was also concerned.
7. On 20 January 2020, her Honour Magistrate Ridley sentenced Mr Lees-Mulholland to 18 months' imprisonment suspended for 12 months.[47] Her Honour did not impose individual sentences on each charge but purported to impose a global term of 18 months' imprisonment suspended for 12 months.
8. In respect of Mr Lees-Mulholland, the weight of the methylamphetamine in relation to each charge was less than 1 g, with the combined weight being 4.1 g.[48] Mr Lees-Mulholland was sentenced on the basis that he was a user/dealer and that there was a commercial element to his offending.[49] Further, Mr Lees-Mulholland's offending occurred over a 6 month period. The appellant's offending occurred over a 9 week period. The respondent accepted that the appellant's role in the offending was less serious than that of Mr Lees-Mulholland.[50]
9. Mr Lees-Mulholland was 24 or 25 years of age during the period of the offending while the appellant was 19 years of age. Mr Lees-Mulholland has a prior criminal history that comprises convictions for drug, weapons, dishonesty and traffic offences. In contrast, the appellant was sentenced as a person with good character with no prior convictions. Mr Lees-Mulholland was afforded a 25% discount for his plea of guilty to the charges. The appellant was afforded a 15% discount for his plea of guilty by the same magistrate though the pleas were entered on the same date after negotiations with the prosecution. That is, the circumstances and timing of the pleas were the same for both the appellant and Mr Lees-Mulholland. As I have stated, I afford the appellant a 25% discount for his plea of guilty to the charges.
10. Both the appellant and Mr Lees-Mulholland made significant gains towards their own rehabilitation, including abstinence from drug use, maintaining employment and distancing themselves from antisocial peers.
11. The magistrate appeared to place weight on the circumstance that Mr Lees-Mulholland had a young family who were 'going to suffer' if he was imprisoned, as he supported the family financially.[51] There was no finding that the family circumstances could be characterised as being exceptional.[52] I do not accept that this is a factor that distinguishes Mr Lees-Mulholland from the appellant. It does not justify the disparity in their respective sentences.
12. Mr Kain Hayter was convicted of five charges of attempting to possess a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act[53] and two charges of attempt to possess a prohibited drug contrary to s 6(2) of the Act. On 9 March 2020, his Honour Magistrate Potter imposed an intensive supervision order for a period of 9 months with supervision and program requirements.[54] An oral pre-sentence report that was presented at the sentencing hearing stated that there was 'no financial benefit at all' to Mr Kain Hayter from dealing.[55] His Honour did not make any express findings concerning the involvement of Mr Kain Hayter in distributing drugs.
13. The appellant contended that Mr Kain Hayter is an offender relevant for comparison in determining parity. Counsel for the appellant accepted that Mr Kain Hayter's offending was separate from the offences committed by the appellant, however contended that the offending formed part of the same investigation being undertaken by the WA Police.
14. However, there is no relationship between the two offenders nor their respective offending. Rather, the appellant and Mr Kain Hayter were involved in distinct offending but the same team of police officers were investigating a number of persons. I do not accept that Mr Kain Hayter is an offender relevant for comparison for the reason that his offending is not related to the appellant's distinct offending.
15. Therefore, with respect to the issue of parity, the position is that the co-offender Mr Lees-Mulholland received a suspended term of imprisonment. He was convicted of eight offences, had a more significant involvement in the offending, had a prior criminal record, did not have the benefit of youth but has sound prospects for rehabilitation, and yet he received a suspended term of imprisonment. In contrast, the appellant was convicted of seven offences which involved no commercial gain, was of good character, had the benefit of youth and has excellent prospects for rehabilitation, and received an immediate term. The imposition of an immediate term of imprisonment on the appellant would give rise to a legitimate sense of grievance by the appellant.
16. After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors, and the standard of sentencing customarily observed with respect to the offences and significantly the parity principle, I am of the view that a term of imprisonment must be imposed in respect of each charge. I have revisited all sentencing factors in determining whether the terms of imprisonment should be suspended and determined that the terms of imprisonment should be conditionally suspended. The respondent submitted that the imposition of conditionally suspended terms of imprisonment was within my discretion.
17. In this case the parity principle is a very significant factor in my determination to impose a conditionally suspended term of imprisonment. Further, the appellant is a young man with previous good character having never offended, and is fully employed, successfully undertaking his apprenticeship, well supported in the community, and has established a prosocial lifestyle. Imposing a conditionally suspended term of imprisonment which assists the appellant achieve rehabilitation, rather than an immediate term of imprisonment that may increase rather than reduce the risk of future offending, serves the interests of the community. It must be understood that the appellant's offending is serious and such offending would ordinarily be dealt with by the imposition of an immediate term of imprisonment.

1. Leave to appeal is granted on ground two and the appeal is allowed. Accordingly, being mindful of the parity principle and all relevant sentencing considerations including that the appellant has spent 50 days in custody in respect of this offending, I have determined that the order of her Honour imposing a global term of imprisonment of 12 months in respect of the seven offences is set aside. In lieu thereof, I impose the following terms of imprisonment.
   1. A term of imprisonment of 1 month is imposed in respect of charge PH 40/2020.
   2. A term of imprisonment of 2 months is imposed in respect of charge PH 41/2020.
   3. A term of imprisonment of 2 months is imposed in respect of charge PH 42/2020.
   4. A term of imprisonment of 2 months is imposed in respect of charge PH 43/2020.
   5. A term of imprisonment of 1 month is imposed in respect of charge PH 1714/2018.
   6. A term of imprisonment of 1 month is imposed in respect of charge PH 1715/2018.
   7. A term of imprisonment of 2 months is imposed in respect of charge PH 1716/2018.
2. In determining the lengths of the terms of imprisonment I reduced each term by 1 month from the terms that would otherwise have been imposed but for reasons of totality. The respective terms of imprisonment will be served cumulatively and therefore, the total effective sentence is 11 months' imprisonment. The terms of imprisonment will be conditionally suspended for a period of 18 months.

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

[6] Appellant's Notice of Appeal filed 9 March 2020.

[7] Application in an appeal dated 31 March 2020.

[8] Criminal Appeals Act 2004 (WA), s 9(1).

[9] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).

[10] Criminal Appeals Act 2004 (WA), s 8.

[11] Criminal Appeals Act 2004 (WA), s 14.

[13] Criminal Procedure Act 2004 (WA), s 23, s 24.

[14] Warrant of Commitment issued by Magistrate Ridley dated 17 February 2020.

[15] Sentencing Act 1995 (WA), s 11(1), s 39(2)(a), s 39(5), s 46.

[16] See for example: Sentencing Act 1995 (WA), s 6, s 9AA(2), s 39(4), s 41(1), s 42(1), s 43(1), s 88.

[17] Sentencing Act 1995 (WA), s 54.

[18] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 ‑ 624.

[19] Criminal Appeals Act 2004 (WA), s 14(2).

[20] Roffey v The State of Western Australia [2007] WASCA 246 [24].

[21] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

[22] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

[23] Misuse of Drugs Act 1981 (WA), s 34(2)(b).

[24] Misuse of Drugs Act 1981 (WA), s 6(1), s 34(1)(aa).

[27] The State of Western Australia v Johnson [2010] WASCA 187 [25].

[28] Pre-sentence report dated 12 February 2020, 1.

[29] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].

[30] The State of Western Australia v Thomspon [2014] WASCA 108.

[31] Attenborough v The State of Western Australia [2005] WASCA 132.

[32] R v Weston [2000] WASCA 389.

[33] The State of Western Australia v Egeland [2018] WASCA 228.

[34] Donaldson v The State of Western Australia [2018] WASCA 143.

[35] Bailey v The State of Western Australia [2016] WASCA 10.

[36] Truscott v The State of Western Australia [2016] WASCA 58.

[37] Maric v The State of Western Australia [2015] WASCA 190.

[38] Fenton v The State of Western Australia [2015] WASCA 255.

[39] Pepper v The State of Western Australia [2005] WASCA 177.

[40] Vogel v The Queen [2002] WASCA 261.

[41] The State of Western Australia v Andela [2006] WASCA 77 [17]; Salkilld v The State of Western Australia [2017] WASCA 168; Cartwright v The State of Western Australia [2010] WASCA 4.

[42] The State of Western Australia v Egeland [2018] WASCA 228 [174].

[43] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472 ‑ 475 (French CJ, Crennan and Kiefel JJ).

[44] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J).

[45] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.

[46] Petrusic v The State of Western Australia [2020] WASCA 62 [49].

[47] ts 10 (20/01/2020), sentencing hearing - Mr Lees-Mulholland.

[48] ts 10 (20/01/2020), sentencing hearing - Mr Lees-Mulholland.

[49] ts 8 (20/01/2020), sentencing hearing - Mr Lees-Mulholland.

[50] Respondent's supplementary submissions on sentence filed 21 May 2020 [3].

[51] ts 9, 10 (20/01/2020), sentencing hearing - Mr Lees-Mulholland.

[52] Juma v The State of Western Australia [2011] WASCA 54 [45] ‑ [46].

[53] Prosecution Notice, charges numbers SHE 123/20 ‑ SHE 129/20.

[54] ts 14 (09/03/2020), sentencing hearing - Mr Kain Hayter.

[55] ts 9 (09/03/2020), sentencing hearing - Mr Kain Hayter.