NG -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 121 (13 August 2025)

Count 1 2 years 6 months' imprisonment (cumulative)

Count 4 2 years 9 months' imprisonment (head sentence)

1. The appellant's notice of appeal was filed on 28 November 2024, approximately three months after the time for appealing expired. The appellant requires an extension of time. Some of the delay is explained in an affidavit sworn by the appellant's solicitor. However, ultimately, whether an extension should be granted turns on the merits of the appeal.
2. There are two grounds of appeal. The first ground alleges, in essence, that the total effective sentence of 7 years' imprisonment breached the first limb of the totality principle. The second ground alleges that the sentencing judge made an express error by failing to take into account the purity of the dexamphetamine the subject of count 3.
3. For the reasons that follow, the total effective sentence of 7 years' imprisonment was unreasonable or plainly unjust. Ground 1 has been made out. The error alleged in ground 2 has not been established.
4. An extension of time should be granted, the appeal allowed and the appellant resentenced.

1. The facts were not in dispute. They can be summarised as follows.
2. At 4.20 pm on Friday 11 September 2020, officers from the Cockburn Police Station executed a search warrant at the appellant's home in Success. Entry to the premises was gained through the front door. Police forced entry into the appellant's bedroom as it was locked.[3]
3. The police located 68.54 g of MDMA in a white cardboard box in the walk‑in robe in the appellant's bedroom. The MDMA was in a variety of forms, including large chunks, finely ground granules and packed into gel capsules. On analysis, the majority of the MDMA was of a purity of between 79% and 82%.[4]
4. Inside the same white cardboard box, police located a set of digital scales packed in another box. A latent fingerprint obtained from the box containing this set of scales was forensically analysed and found to match a fingerprint of the appellant.[5]
5. The police also found a shoe box containing numerous empty clipseal bags; a brown cardboard box containing two clipseal bags, which contained 2.63 g and 0.47 g of cocaine respectively, and a clear plastic bag which contained a rolled‑up $5 note; a metal scoop; an Officeworks card; and a small clipseal bag containing 0.01 g of cocaine.[6] The total quantity of cocaine was 3.11 g. On analysis the cocaine was of 49% purity.[7]
6. Also inside the walk‑in robe, police located a gold box containing five bottles of dexamphetamine tablets. The five bottles contained a total of 99.5 g of dexamphetamine. The tablets appeared to be commercially produced 5 mg tablets. On analysis, the dexamphetamine was of 2.5% purity.[8]
7. Inside the pockets of a leather jacket hanging in the walk‑in robe, police located a MasterFoods jar containing four clipseal bags. The clipseal bags had weights marked on the bags and contained a total of 3.13 g of methylamphetamine. Inside the bottom right external pocket of the same leather jacket, police located a black grenade pouch which contained a clipseal bag, containing two further clipseal bags, containing a total of 2.56 g of methylamphetamine shards. In the top left external pocket of the same jacket, police located two further clipseal bags, containing a total of 6.49 g of methylamphetamine. The overall total weight of methylamphetamine was 12.18 g. On analysis, the methylamphetamine was of between 77% and 82% purity.[9]
8. The leather jacket was forensically examined, and a DNA sample was obtained from swabs of the outside front lower left pocket and the inside of the collar and cuffs. The DNA sample was found to match the DNA of the appellant.[10]
9. Inside the walk‑in robe, police also located $AUD10,075 and $USD180.[11]
10. Near to the drugs were large quantities of unused empty gel capsules, large quantities of unused clipseal bags, scales, scoops, tick lists, identification documents in the name of the appellant, and a quantity of dimethyl sulfone (a cutting agent used to bulk up illicit drugs).[12]
11. The appellant was not present during the execution of the search warrant.[13]
12. At 9.30 pm on Thursday 17 September 2020, the appellant presented himself at the Cockburn Police Station where he participated in an electronic record of interview. He made no comment regarding the drugs.[14]
13. As at the date of the search warrant, the appellant was a polysubstance user‑dealer operating at the low to mid‑range of the drug distribution hierarchy. His stock‑in‑trade was MDMA and dexamphetamine, which he was able to source in reasonably large quantities for sale to others.[15]
14. The appellant intended to sell the MDMA and the dexamphetamine for commercial gain, as well as consume a portion himself. He was not a user of methylamphetamine, and his intention was to sell that drug for commercial gain. The cocaine was for his personal use. Text messages obtained from the appellant's mobile telephone showed that he had been engaged in selling MDMA and dexamphetamine tablets at a street level for several years.[16]
15. The street value of the MDMA was $3,916. Text messages showed that the appellant was selling the dexamphetamine tablets for $5 each and thus the total street value of the tablets possessed by the appellant was $2,380.[17] The street value of the methylamphetamine was $10,807.[18]
16. The appellant entered pleas of guilty to the charges on 19 October 2023. That was very shortly before his trial was due to commence on 23 October 2023. The charge relating to the cocaine (count 2) alleged an intent to sell or supply, however the prosecutor consented to a plea of guilty to simple possession in full discharge of that count.[19]

1. The appellant was born on 23 September 1993. Accordingly, he was 26 years old at the time of the offences and 30 years old at the time of sentencing.[20]
2. The appellant was born in Singapore and came to Australia with his family when he was two or three years old. He has a sister who is two years older than him. His father and mother work in responsible positions and provided a loving and stable home for the children. His family remain supportive of him.[21]
3. The appellant completed his primary and secondary education at a private school, where he felt he was under pressure to achieve. His parents had high expectations, and he was able to achieve some good grades, but spent considerable time playing computer games. He went on to undertake university studies, completing a Bachelor of Science degree. He then commenced a master's degree in pharmacy. He discontinued that course after one year and transferred to a master's course in nursing. At the time of his arrest, he had completed one year and nine months of the two‑year nursing course. He was unable to complete the final practical component of that course.[22]
4. The appellant lived at home until he was approximately 20 years old. He then moved into a rental property owned by his parents, with his partner at the time. He was in that relationship for about two years. The relationship had ended by the time of the offences. After his arrest, the appellant moved back to live with his parents. He remained there until being remanded in custody.[23]
5. The appellant has been gainfully employed throughout most of his adult life. Whilst at high school, he worked as a kitchenhand in a fast‑food restaurant. He continued to work in hospitality whilst studying at university. After his arrest he worked with his mother, who is an accountant, as a book‑keeping assistant, as well as continuing to work in hospitality.[24]
6. The appellant has reported suffering severe anxiety for most of his life. He did not seek medical treatment for this until 2022, when he was prescribed diazepam. After being remanded in custody, he was able to engage in counselling and has consulted a psychologist. He has also been prescribed an anti‑depressant.[25]
7. The appellant has a long‑standing history of illicit drug use. He began to use MDMA at university as it reduced his anxiety in social settings. He later started to use dexamphetamine as it assisted his ability to study. Over time his usage of both drugs increased. He estimated that at the time of his arrest, he was using MDMA three or four times a week, and his usage was approximately ten 'caps' per night. His usage of dexamphetamine would vary depending on the pressures of study and would increase at the time of exams. He would often consume ten or more tablets of dexamphetamine per day.[26]
8. The appellant has no criminal history prior to the commission of these offences. He did commit further drug offences in June 2022, whilst on bail. These offences related to relatively small quantities of drugs for personal use and were dealt with in the Magistrates Court by the imposition of fines. They are relevant primarily to the issue of the appellant's remorse.[27]
9. References were provided by the appellant's parents, sister, cousin and the pastor of a church that the appellant attended with his parents. These references attested to the appellant's good qualities, including that he is hard‑working, kind and compassionate. The appellant had expressed his remorse to his family and regret for the impact of his offending on them. He had also taken steps towards his rehabilitation.[28]
10. Whilst on remand, the appellant sought medical treatment for a heart condition. He attended Fiona Stanley Hospital on two occasions, but no diagnosis had been made. He has engaged with a cardiologist through the prison.[29]

1. The psychologist noted that the appellant seemed to lack assertive qualities and presented as quiet and timorous. Although there were no overt indications that he suffered from a serious psychological disorder, he seemed withdrawn and depressed.[30]
2. The appellant reported feeling sad all of the time during his childhood and that these feelings intensified from the age of sixteen. He said that when he went to university, he struggled with social interactions and experienced panic attacks. He used MDMA because it made him feel more positive about himself. He used dexamphetamine because it helped him study. He accepted that his use escalated out of control and that he was spending about $1,000 per week on drugs. He began dealing drugs to support his addiction.[31]
3. The appellant was assessed using a diagnostic questionnaire as being in the 'extreme' range on an anxiety scale. His scores also indicated that he was severely depressed.[32]
4. The appellant was not exposed to antisocial influences until his late teens, in the context of procuring illicit substances. He has enjoyed prosocial influences through his family, who continue to support him. His poor self‑esteem is inconsistent with his educational achievements. An antisocial personality pattern is not indicated, and the appellant has shown some remorse and acknowledged the disappointment of his family. He has demonstrated insight and acknowledged the effect of his addiction to illicit drugs.[33]
5. The psychologist recommended individual therapy for the appellant to develop skills to manage his anxiety. Group therapy to work on his drug addiction was also suggested. On release into the community, random urinalysis, psychological therapy and psychiatric support were recommended.[34]

1. The appellant's lawyers obtained a report from Emeritus Professor Jason White, who was formerly the Professor of Addiction Studies at the University of Adelaide, and the Professor of Pharmacology at the University of South Australia. Professor White has also served as the Director of Drug and Alcohol Services South Australia. He has over 20 years' experience in the treatment of people with drug and alcohol problems and in the management of clinics providing such treatment. The report was received without objection in the sentencing proceedings.[35]
2. Professor White's report deals with the use and potential harm caused by dexamphetamine. Dexamphetamine is a drug used in the treatment of attention deficit hyperactivity disorder (ADHD) and narcolepsy. It is classified as a stimulant, meaning that it tends to increase brain activity and cause physiological arousal such as an increase in heart rate. The therapeutic effects of dexamphetamine are: for ADHD, an enhanced ability to maintain attention; and, for narcolepsy, reduced fatigue and sleepiness during the day.[36]
3. Dexamphetamine is commercially produced in the form of 5 mg tablets. The maximum recommended daily dose for ADHD is 40 mg per day. The maximum recommended daily dose for narcolepsy is 60 mg per day.[37]
4. There is little information available on the illicit use of dexamphetamine. One study showed that the median number of tablets consumed illicitly was 1 ‑ 2 and that the maximum number of tablets consumed was around 3 ‑ 6. This translates to 5 ‑ 10 mg as the median amount used per occasion and 15 ‑ 30 mg as the maximum amount used.[38]
5. Dexamphetamine has a range of potential adverse side‑effects. These include decreased appetite and weight loss, insomnia, increased heart rate and blood pressure, headaches, impulsive behaviour, anxiety and irritability, mood disturbances, obsessive‑compulsive behaviour, psychotic symptoms, and withdrawal symptoms on cessation of use. These effects are more likely to occur with higher dosages but this also depends on individual susceptibility. It is possible to overdose on dexamphetamine, though the occurrence is low. An overdose is usually manifested in symptoms of increased heart rate, increased blood pressure and agitation. More severe symptoms, such as severe agitation, cardiac toxicity and kidney damage, are relatively uncommon.[39]
6. The results of wastewater analysis indicate that illicit use of dexamphetamine is extremely small compared to the illicit use of methylamphetamine. This is also consistent with reports of drug seizures by the police. Drug treatment facilities rarely see people whose problems are related principally to pharmaceutical stimulants such as dexamphetamine.[40]
7. Whilst illicit use of dexamphetamine is not common, it is more common amongst people who use MDMA or another stimulant as a recreational drug. However, in this group of users the doses reported were relatively low. Doses of between 1 and 2 tablets were below the normal therapeutic level. The equivalent dose of methylamphetamine would be 2.5 ‑ 5 mg. This is because methylamphetamine is considered to be approximately twice as potent as dexamphetamine.[41]
8. The actual doses of methylamphetamine consumed by users of that drug are typically 30 mg or more of pure drug. Similar comparisons could be made with cocaine and MDMA. Thus, while some people are using stimulants like dexamphetamine every few weeks, the doses commonly being consumed are well below the equivalent doses of methylamphetamine, and are likely to have only a mild to moderate impact in medical and social effects.[42]

1. The appellant entered pleas of guilty in the District Court on 19 October 2023. In respect of count 2, the count dealing with the cocaine, the charge on the indictment alleged possession with intent to sell or supply. As noted earlier, a plea of guilty to the alternative charge of simple possession was accepted in respect of this count. Judgments of conviction were entered on 19 October 2023. The matter was then adjourned to a sentence listing hearing on 27 October 2023.
2. The transcript of the sentence listing hearing was not provided on this appeal, but it would appear that a psychological report was ordered and that the matter was set down for sentencing on 16 January 2024.[43]
3. On 16 January 2024 the appellant appeared before the sentencing judge. The facts were read, and detailed sentencing submissions were made on behalf of the appellant and the State. The appellant's lawyer also filed written submissions prior to the hearing, which included reference to comparable cases.[44]
4. Senior counsel for the appellant emphasised that all of the drugs were found on the same day in the same location and were 'all part of the same undertaking'. For this reason, it was submitted that, whilst immediate terms of imprisonment were appropriate, those sentences should not be fully cumulative.[45]
5. The prosecutor submitted that the seriousness of the offending was indicated by the variety of drugs in the appellant's possession and the indicia of dealing. The State accepted that the appellant was a 'low‑level polysubstance dealer'.[46] The offending was not isolated as it occurred in the context of ongoing dealing.[47]
6. The sentencing judge stated that he intended to adjourn sentencing so that he could give further consideration to the structure of the sentences. There was also an issue as to whether it was appropriate to order forfeiture of the cash seized during the execution of the warrant. The matter was then adjourned to 27 March 2024.
7. Shortly before the resumed hearing, the State filed written submissions. Those submissions were to the effect that only an immediate sentence of imprisonment was appropriate and that 'some degree of accumulation' was necessary to reflect the different drugs involved. The State also suggested that the common law principle that requires the avoidance of double punishment may arise. That was said to be because evidence of commerciality (the indicia of dealing) and the fact that the appellant was dealing in multiple types of drugs, could be taken into account in respect of more than one count.[48]
8. At the hearing on 27 March 2024, the sentencing judge engaged in a lengthy exchange with the prosecutor. Amongst other things, his Honour raised questions regarding the operation of the totality principle, the proper use of comparable cases and whether any distinction could be drawn between different drugs based on their relative harmfulness. He also sought submissions as to whether there was inconsistency between what had been said by members of this court in past cases regarding the operation of the totality principle.[49]
9. The sentencing judge invited the prosecutor to take these questions on notice.[50] The matter was then adjourned to 3 May 2024 to allow the State to consider those questions and prepare further written submissions.
10. The State filed further written submissions providing details of comparable cases and addressing the other questions posed by the sentencing judge.[51] In particular, the State submitted that the statement of principle by McLure JA in Roffey v the State of Western Australia[52] regarding the totality principle remained good law and that it had been consistently affirmed by this court. Further, the State submitted that there was no inconsistency in other judgments of this court regarding that principle. As regards the relative harmfulness of different drugs, the State submitted that the same quantities of different drugs could not be equated. Further, the relative harm of different drugs is not an irrelevant consideration, though it is not a factor to which much weight can be given.[53]
11. The appellant's lawyers also filed submissions, which included a Consumer Medicine Information summary for the brand of dexamphetamine tablets seized by the police.[54] The appellant also raised the possibility of obtaining further information from a toxicologist and foreshadowed an application to adjourn the 3 May 2024 hearing. It was estimated that three weeks were required to obtain the report, however the earliest date that the matter could be relisted was 1 August 2024. A consent order adjourning the matter to that date was filed on 2 May 2024.
12. Professor White's report is dated 29 May 2024. It was provided to the sentencing judge sometime prior to the adjourned sentencing hearing.[55]

1. On 1 August 2024, oral submissions were made regarding Professor White's report.[56] The sentencing judge then proceeded to sentence the appellant. In doing so, he made the following relevant findings:

(a) The appellant was overall a low‑level polysubstance dealer. He had been engaged in dealing for a 'period of time' and was selling drugs on a commercial basis. There was a greater element of commerciality in respect of count 4 because the appellant was not a user of methylamphetamine and intended to sell the whole amount of that drug.[57]

(b) The appellant was a user of MDMA and dexamphetamine. He sourced drugs for his own use as well as to sell or supply to others to fund his addiction.[58]

(c) Dexamphetamine can be distinguished from the other drugs. There is less illicit use of that drug than methylamphetamine. Less rehabilitation is required and there is a lower level of overdose. The side effects are not as significant as for other drugs. This was tempered by the fact that the same maximum penalty applies.[59]

(d) The fact that the appellant was dealing in a variety of drugs was an aggravating factor.[60]

(e) The appellant had no prior criminal record, and the offending was out of character.[61]

(f) The pleas of guilty were entered at a relatively late stage, after several unsuccessful plea proposals. The pleas were ultimately entered shortly before the trial was due to commence. The appropriate discount under s 9AA of the Sentencing Act 1995 (WA) was one of 5%.[62]

(g) The appellant is remorseful for the offending.[63]

(h) Youth was not a relevant factor.[64]

(i) The appellant has taken positive steps towards his rehabilitation and has a number of protective factors, including a supportive family and insight into the wrongfulness of his conduct. He has reasonable prospects of successfully continuing with his rehabilitation. This will reduce the risk of re‑offending.[65]

(j) There was no sufficient connection between any mental health impairment and the appellant's offending. Nor was mental health mitigating in any other way.[66]

(k) In relation to the appellant's treatment for a heart condition, this was not a significant mitigating factor. It did not impact on the offending nor on the severity of imprisonment.[67]

1. In regard to count 2, the simple possession of cocaine, the sentencing judge noted that this offence would normally attract a fine. However, his Honour said that a fine was impractical given that the appellant would receive sentences of imprisonment for the other offences. Accordingly, his Honour said that a concurrent sentence of 1 month's imprisonment would be imposed for that offence.[68]
2. As regards the other counts, the sentencing judge referred to the quantity and purity of the drugs in each of counts 1 and 4, that is the MDMA and the methylamphetamine. In respect of count 3, his Honour referred to the quantity, but not the purity, of the dexamphetamine.[69]
3. The sentencing judge determined that the appropriate sentence for count 1 (MDMA) was imprisonment for 2 years 6 months, for count 3 (dexamphetamine) was imprisonment for 2 years, and for count 4 (methylamphetamine) was imprisonment for 2 years 9 months. If these sentences were made wholly cumulative, it would have produced a total effective sentence of 7 years 3 months' imprisonment. His Honour said that he considered that the appropriate total sentence was 7 years' imprisonment. To achieve that outcome, the sentence on count 3 was reduced by 3 months to 1 year 9 months' imprisonment. That reduction was made for totality and double punishment reasons.[70]
4. The final sentences imposed were:

Count 1 2 years 6 months' imprisonment (cumulative)

Count 4 2 years 9 months' imprisonment (head sentence)

The total effective sentence of 7 years' imprisonment was backdated to 30 June 2023 to take into account time spent in custody. The appellant was made eligible for parole.

1. There are two grounds of appeal. They are as follows:[71]
   1. The learned sentencing Judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
   2. The learned sentencing Judge made an express error by failing to take into account the purity of the dexamphetamine the subject of count 3 on the indictment in sentencing the appellant for that count.
2. As ground 2 asserts an express error, it is appropriate to deal with that ground first.

1. The appellant submits that there were references in the sentencing submissions to the relatively low purity of the dexamphetamine and the unlikelihood that that drug could be cut further. However, the actual level of purity of 2.5% was not expressly mentioned either by counsel or the sentencing judge. The focus was on the question of relative harm rather than the purity of the dexamphetamine.[72]
2. The appellant accepts that the weight and purity of a drug are not the only, or even the primary, criteria in assessing the level of seriousness of an offence. However, purity is a relevant factor. It is submitted that had the sentencing judge appreciated the purity of the dexamphetamine, it would have resulted in a 'different appreciation of the overall seriousness of that offence'.[73]

1. The respondent submits that there was reference to the low level of purity of the dexamphetamine in sentencing submissions and no reason to think that this was not taken into account by the sentencing judge. Further, the respondent submits that the potency of different drugs cannot be compared such that the purity of one drug is relevant when considering the purity of another.[74]
2. The respondent notes that there is nothing to suggest that the purity of the dexamphetamine in this case was unusually low as compared to other cases dealing with the same drug. The purity here was the standard for commercially produced tablets. Other cases dealing with dexamphetamine do not refer to the purity, but it can be safely assumed that the purity was no different in those cases. Seen in that light, the sentence imposed for count 3 was not inconsistent with sentences imposed in other cases involving dexamphetamine.[75]

1. Ground 2 in form asserts an express error. The error is said to be the failure to take into account the purity of the dexamphetamine in respect of count 3. The purity of the dexamphetamine was not referred to by the sentencing judge in his remarks. However, there is no requirement to expressly refer to every relevant sentencing factor and it cannot be assumed that purity was not taken into account merely because it was not referred to.
2. This ground amounts to a contention that the sentence imposed on count 3 is not consistent with due regard being paid to the purity of the dexamphetamine. In substance, this is an assertion that the sentence on that count was manifestly excessive when regard is had to the circumstances of the offence, including the purity of the dexamphetamine.
3. The difficulty with a manifest excess argument based on purity alone is that it is not apparent that the purity in this case was unusually low for this type of drug. Dexamphetamine is commercially produced in 5 mg tablets and illicit use often involves commercially produced tablets. Other cases involving dexamphetamine do not refer to the purity and in the absence of that information, it cannot be assumed that those cases involved the drug at any different level of purity to this case.
4. The only relevant comparator for an individual sentence involving dexamphetamine is Palladino v The State of Western Australia.[76] In that case the purity of the dexamphetamine was not stated but was described in terms that indicated that it was a commercially manufactured product. The quantity of tablets (730) was significantly larger than in the present case. The offender in Palladino also possessed other drugs but did not have an intention to sell or supply, other than to her partner in the course of their mutual use. The offender in Palladino was not of prior good character. She received a 20% discount for pleading guilty. A sentence of 3 years' immediate imprisonment for the offence involving 730 dexamphetamine tablets was described as high. That sentence is not inconsistent with the starting sentence of 2 years for count 3 in the present case.
5. It is not apparent that the sentence imposed on count 3 is manifestly excessive, taking into account the maximum penalty for the offence, the circumstances of the offending, the personal circumstances of the appellant, and the limited guidance afforded by comparable cases. That assessment takes into account the purity of the dexamphetamine.
6. Leave to appeal on ground 2 should be refused.

1. It is not contended that the sentencing judge misstated the relevant sentencing principles, however, it is submitted that the process his Honour followed shows that he misapplied them. This conclusion is principally based on the fact that only a 3‑month reduction was made for totality purposes.[77]
2. The appellant submits that ordinarily the practical effect of the operation of the totality principle is to produce a sentence that is significantly less than the sentence that would be arrived at by simply adding up all the terms appropriate for the individual offences. More than a notional discount is appropriate where there is significant commonality in the criminality involved in the offences.[78]
3. In the present case, counts 1 and 3 could fairly be described as two facets of a single course of criminal conduct, namely that of a polysubstance user‑dealer at the lower end of the drug distribution hierarchy. Count 4 was a 'one‑off' offence that could also be said to fall under the umbrella of that course of activity. However, the discount of three months represented a little less than 3.5% of the original total sentence. This resulted in a total effective sentence that does not bear a proper relationship to the overall criminality involved in all of the offences.[79]

1. The respondent submits that a ground that alleges a breach of the first limb of the totality principle is concerned with whether the total effective sentence properly reflects the overall criminality - not whether the process followed to reach that sentence was flawed. Error cannot be inferred from the fact that sentences were made wholly cumulative. The question is not whether three months is an appropriate reduction for totality but whether a total sentence of 7 years' imprisonment is unreasonable or plainly unjust.[80]
2. Some degree of accumulation was appropriate to reflect the fact that different drugs were involved, notwithstanding that all of the drugs were found in the same location and on the same day. Possible issues of double punishment could be subsumed under the rubric of totality.[81]
3. The respondent submits that the individual sentences were consistent with sentences imposed in other cases. As to count 1, the MDMA, the respondent referred to Mrsa v The State of Western Australia;[82] Tran v The State of Western Australia;[83] and Franklin v The State of Western Australia.[84] As to count 3, the dexamphetamine, the respondent referred to Palladino. As to count 4, the respondent referred to Stewart v The State of Western Australia;[85] Nguyen v The State of Western Australia;[86] Italiano v The State of Western Australia;[87] and The State of Western Australia v Tulloch.[88]
4. The respondent submits that there is limited utility in referring to other cases where the challenge is to totality due to the large number of variables. However, reference was made to Jenkin v The State of Western Australia;[89] Celani v The State of Western Australia;[90] IIO v The State of Western Australia;[91] and North v The State of Western Australia.[92] The respondent submits that those cases suggest that the total effective sentence imposed in the present case was high - even towards the upper end of the discretionary range open to the sentencing judge - but not unreasonable or plainly unjust.[93]

1. A ground of appeal that asserts that a total effective sentence breaches the first limb of the totality principle because it is disproportionate to the overall criminality of the offending asserts the existence of an implied error. The general principles governing appeals that contend that the total effective sentence infringes the first limb of the totality principle are well established. Those principles were summarised in Kabambi v The State of Western Australia,[94] and need not be repeated.
2. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
3. The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at by merely adding up all of the terms appropriate for the individual offences. The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.
4. The guidance afforded by comparable cases is flexible rather than rigid. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5. It is often more difficult to compare cases where the total effective sentence is in issue. Other cases may involve different numbers and types of offences, and this must be added to any other differences in the factual and personal circumstances of the offenders. Nonetheless other cases must be considered to ensure that broad consistency is maintained.
6. If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence infringes the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.
7. The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its own opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
8. It is well established that:[95]

(a) a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

(b) 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; and

(c) if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.

1. A sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly, or partly, concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. Although there may be a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.[96]
2. If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.[97]
3. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offences were committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be a subsidiary consideration, but they are not completely irrelevant.[98]

1. Other than the issue raised by ground 2, there is no challenge to the individual sentences. The only question is whether the total effective sentence is proportionate to the overall criminality of the appellant's offending. In that regard, it is relevant to take into account the maximum penalties, the seriousness of the offending, the personal circumstances of the appellant, and sentences imposed in broadly comparable cases.
2. The maximum penalty for each of counts 1, 3 and 4 is imprisonment for 25 years or a fine of $100,000 or both.
3. The appellant was a low‑level user‑dealer of MDMA and dexamphetamine. The relatively low‑level nature of that activity is reflected in: the quantities of those drugs possessed by the appellant, the indicia of drug dealing, the cash found at his house, and the messages found on his mobile telephone. His possession of those drugs had to be viewed in the context of that ongoing dealing. The value of the drugs was also indicative of the relatively low level of dealing in which the appellant was engaged. The total street value of the drugs was less than $20,000, and most of that was attributable to the methylamphetamine, a drug in which the appellant was not regularly dealing.
4. The appellant was not a user of methylamphetamine. The possession of that drug appears to be part of a one‑off transaction. There was nothing in the mobile telephone messages to suggest any prior dealing in methylamphetamine. Nonetheless, it was accepted that he intended to sell the drug for profit.
5. All of the drugs were located in the same place at the same time. Clearly, they formed part of the same course of criminal conduct. The fact that different drugs were involved in that course of conduct was an aggravating factor that needed to be reflected in the total sentence. The fact that the offences arose out of the same course of conduct did not raise any issue of double punishment as there was no common element or fact, rather that course of conduct was part of the context in which the offences occurred.
6. There is no rule that requires concurrency in respect of offences arising from the same course of conduct. However, as a matter of fact, some degree of concurrency will often be appropriate to ensure that the total sentence is proportionate to the overall criminality of the offending. There is an obvious distinction between offences committed on different days, in different circumstances; and offences committed on the same day, as part of the same activity.
7. The relative harm caused by different drugs is a relevant consideration, though not one that can be given great weight where the maximum penalties are the same. In this case there was evidence that supported the conclusion that dexamphetamine is less harmful than methylamphetamine. That factor was reflected in the sentence imposed on count 3.
8. As regards personal circumstances, the appellant had no prior criminal record. He was found to be remorseful, with good prospects of rehabilitation. He had undertaken tertiary studies, been gainfully employed and had the support of his family. The risk of re‑offending was directly linked to his ability to overcome his personal addiction to MDMA and dexamphetamine. His plea of guilty was late and deserving of only a small s 9AA discount.
9. The comparable cases relied on for totality purposes suggest that the total effective sentence in the present case was very high. In Jenkin, the offender was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply, and one count of possession of MDMA with intent to sell or supply. The weight of the methylamphetamine was 54.8 g with a purity of between 20 and 21%. The weight of the MDMA tablets (199) was 58.7 g with a purity of 23%. The aggregate sentence was 6 years' imprisonment. However, the utility of that case is limited as the sole ground of appeal was parity.
10. In Celani, the offender pleaded guilty to 35 counts of offering to sell a prohibited drug to another. Twenty‑nine of the counts involved offers to sell methylamphetamine, four counts involved offers to sell cannabis and the remaining two counts were single offers to sell cocaine and heroin, respectively. The offending represented drug dealing over a 10‑month period and involved a total of 93.14 g of methylamphetamine, 3.62 kg of cannabis, 1.75 g of heroin and 28 g of cocaine. The offender received a 15% discount for his pleas of guilty. He had served a term of imprisonment for non‑drug offending before he came to be sentenced and was said to have ceased drug use. He had no prior convictions. A challenge to a total effective sentence of 5 years 2 months' imprisonment was held not to be reasonably arguable and leave to appeal was refused.
11. In IIO, the offender was convicted on his pleas of guilty to four counts of selling a prohibited drug, three counts of possession of a prohibited drug with intent to sell or supply, and one count of possession of money reasonably suspected of being unlawfully obtained. The offender was the target of an undercover operation and sold MDMA to undercover police on four occasions over a four‑month period. He was also searched on two occasions and found to be in possession of drugs and cash. His offences were not isolated incidents but part of his activities as a mid‑level street dealer. The total amounts of drugs involved in the offending were 129.79 g of MDMA sold, 12.41 g of MDMA possessed with intent to sell or supply and 2.7 g of cocaine. The offender received a 25% discount for his early pleas of guilty. He had a modest prior criminal record and good prospects of rehabilitation. An appeal against a total effective sentence of 5 years 3 months' imprisonment on the basis that it breached the first limb of the totality principle was dismissed.
12. In North, the offender was convicted on his pleas of guilty of four offences of possession of a prohibited drug with intent to sell or supply and one count of possession of cash reasonably suspected of having been unlawfully obtained. The offences were committed whilst the offender was on home detention bail for other offences. He decided to make some 'quick' money by selling drugs so that he could send his seriously ill partner on a holiday and buy presents for his children. The appellant was arrested in a hotel room that he was using as a base for his drug dealing. The total weight of drugs involved in the offending was 74.66 g of heroin. The offender had a significant prior criminal record, including numerous prior terms of imprisonment arising from entrenched drug use. He received a 10% discount for his pleas of guilty. The total effective sentence of 7 years' imprisonment was described as significant, given the scale of the offender's operation and the amount of drugs involved, but justified having regard to the aggravating factors of commercial dealing and offending whilst on home detention bail. The only significant mitigating factor was said to be the pleas of guilty, which were entered at a very late stage. Personal deterrence and community protection were elevated considerations given the offender's history of drug offending. Leave to appeal against both the individual sentences and the total effective sentence was refused.
13. The comparable cases afford only limited assistance. As has been noted by this court previously, the difficulty in making comparisons for totality purposes is raised where the exercise involves total sentences that comprise different groupings of offences.[99] Nonetheless, to the extent that they are useful, the cases referred to support a conclusion that the total effective sentence imposed in the present case was unusually high. The appellant's offending was less serious than that in Jenkin and Celani, and comparable to that in IIO. Yet, the sentence imposed was significantly higher. The appellant's offending was broadly similar to that in North but was not committed in the same aggravating circumstances, and the appellant had significantly better personal circumstances.
14. Having regard to all of the circumstances of the offending and the appellant's personal circumstances, and all relevant sentencing factors; we have concluded that the total effective sentence of 7 years' imprisonment was disproportionate to the overall criminality of the appellant's offending. It did not properly reflect the appellant's role as a low‑level user‑dealer. The total effective sentence was unreasonable or plainly unjust. Ground 1 succeeds, and the appellant must be resentenced.

1. It is necessary to say something about the way the proceedings were conducted. As earlier noted, the appellant pleaded guilty on 19 October 2023. Judgments of conviction were entered on that day. The sentencing judge commenced the sentencing proceedings on 16 January 2024. The delay between October and January is explicable because of the time required to obtain a psychological report. The delay that occurred thereafter is more difficult to justify.
2. This was not a difficult sentencing exercise. The facts were simple. There was no dispute about the circumstances of the offences or the appellant's personal circumstances. The principles applicable to sentencing for offences involving prohibited drugs are very well established. Matters of this type are dealt with by judges of the District Court on an almost daily basis.
3. The Sentencing Act provides that sentencing of an offender must not be adjourned for more than six months after the offender has been convicted.[100] Whilst a failure to comply with that time limit does not prevent a court sentencing an offender more than six months after conviction,[101] it stands as an important goal that sentencing judges should endeavour to meet. It should be a rare sentencing case that is not finally determined within six months of conviction. Sometimes delays in sentencing are unavoidable, such as where reports are required or where there is a dispute as to the facts. However, there is a strong public interest in sentencing occurring within a reasonable time after a conviction is entered.
4. Further, delays in sentencing can prejudice a convicted person's rehabilitation. Many prison programs are not available to remand prisoners. Long adjournments will, in practical terms, mean that offenders may miss out on opportunities to participate in programs.
5. In the present case, the proceedings became unnecessarily complicated and protracted. Sentencing extended over three hearings between 16 January 2024 and 1 August 2024, and consumed over 120 pages of transcript.
6. The adjournment on 27 March 2024 occurred because the sentencing judge took the view that it was necessary to raise a number of legal issues, on which he sought further submissions. These were not issues that ought to have been contentious. Some related to a perception of the sentencing judge that there were inconsistencies in decisions of this court. There were no such inconsistencies and, with respect, no reasonable basis for thinking that there were. Whilst it is the duty of a sentencing judge to ensure that he or she understands the legal principles involved, and the position of the parties in respect of those principles, sentencing is not an opportunity to engage in a critique of the decisions of this court.
7. In his sentencing remarks, the sentencing judge included references to many cases, both as a source of legal principles and for comparative sentence purposes. Sentencing judges are presumed to know the law. Generally speaking, there is no requirement to cite cases in sentencing remarks. This court has recently referred to the content of sentencing remarks in Lee v The State of Western Australia:[102]

Whilst it is important that the approach of the sentencing court be simply and clearly explained to an offender, particularly the reasons why particular punishment is imposed, sentencing remarks are not to be viewed as a written judgment. As was explained by Wells J in The Queen v Reiner:

'A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not 'Reasons for Sentence'); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing.'

1. The facts of the offences and the personal circumstances of the appellant have been referred to earlier in these reasons. No additional information has been provided.
2. Like the sentencing judge, we would give a 5% discount for the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act. A further reduction should be allowed for other mitigating factors, including, the appellant's prior good character, remorse and his efforts towards rehabilitation.
3. We would impose the same individual sentences as the sentencing judge. However, in our view, the appropriate total effective sentence is one of 5 years' imprisonment. That sentence would be proportional to the overall criminality of the appellant's offending. It would properly reflect the appellant's role as a low‑level user‑dealer. We would achieve that result by reducing the sentence on count 1 to 2 years 3 months' imprisonment and ordering that the sentences on counts 1 and 4 be cumulative, and the sentences on counts 2 and 3 be concurrent.
4. It was not suggested, and we do not consider, that a suspended term of imprisonment would be appropriate having regard to the nature and circumstances of these offences.
5. The appellant was subsequently sentenced for a number of other drug offences that were dealt with summarily. The respondent filed an application seeking leave to rely on additional evidence relating to those convictions. The respondent notes that as the sentences imposed for those summary offences took into account the sentences imposed in the District Court, it is open to this court to also resentence for those summary offences.
6. In our view, there is no necessity to resentence on the summary offences. Those offences were dealt with by the imposition of fines. There is no suggestion that those offences would have otherwise attracted terms of imprisonment, or should do so now. It was accepted at the hearing of the appeal that the relevance of this offending, occurring as it did after the offences the subject of this appeal, was limited to an assessment of the appellant's remorse. However, by the time the appellant came to be sentenced in the District Court, he had been remanded in custody for some time, and it was following that remand period that his real appreciation of the seriousness of his offending and his remorse appears to have developed. In those circumstances we accept that the sentencing judge's finding that the appellant was remorseful was correct.
7. The appellant should be made eligible for parole. The sentence should be backdated to take into account the time spent in custody.

1. For the above reasons we would make the following orders:

1. An extension of time is granted. 2. Leave to appeal on ground 1 is granted. 3. Leave to appeal on ground 2 is refused. 4. The appeal is allowed. 5. The respondent's application to adduce additional evidence in the event of resentencing is granted. 6. The sentences imposed on IND 997 of 2022 are set aside and in lieu:

(a) the appellant is sentenced to 2 years 3 months' imprisonment on count 1, 1 month's imprisonment on count 2, 1 year 9 months' imprisonment on count 3, and 2 years 9 months' imprisonment on count 4;
>
> (b) the sentence on count 4 is the head sentence and the sentence on count 1 is to be served cumulatively on that sentence. The sentences on counts 2 and 3 are to be served concurrently with the sentence on count 4;
>
> (c) the total effective sentence is 5 years' imprisonment;
>
> (d) that sentence is taken to have commenced on 30 June 2023;
>
> (e) the appellant is eligible for parole; and
>
> (f) the drug trafficker declaration and orders for destruction made by the sentencing judge are unaffected.

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

[1] This was the purity referred to in the admitted facts. The certificates of analysis refer to 79% ‑ 81%, but nothing turns on the slight difference in the maximum level.

[6] At ts 128, his Honour says 0.20 grams. However, the Statement of Material Facts (WAB 195) and Certificate of Approved Analyst 20F0719001 (WAB 520) indicate the amount was 0.01 grams.

[16] ts 30 - 31, 128, 132; WAB 280 - 507.

[17] The value of the dexamphetamine tablets was initially estimated to be $2,980 (see WAB 258), however this figure included tablets not included in the indictment (see WAB 30).

[19] ts 17 - 20; see Criminal Procedure Act 2004 (WA), s 126(1)(f).

[21] ts 137; psychological report for court, dated 30 November 2023, 2.

[23] ts 137; psychological report for court, dated 30 November 2023, 3.

[30] Psychological report for court, dated 30 November 2023, 2.

[31] Psychological report for court, dated 30 November 2023, 3 - 4.

[32] Psychological report for court, dated 30 November 2023, 3.

[33] Psychological report for court, dated 30 November 2023, 4.

[34] Psychological report for court, dated 30 November 2023, 5.

[46] In the agreed facts, the appellant was referred to as a user‑dealer in the mid to low‑level range (ts 43). However, in submissions he was referred to as a low‑level dealer (ts 35, 44 ‑ 45) and this is reflected in the sentencing judge's sentencing remarks (ts 131, 136).

[52] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].

[53] Childs v The State of Western Australia [2023] WASCA 145 [74] (Quinlan CJ & Hall JA).

[71] WAB 11; appellant's proposed further ground of appeal, filed 25 July 2025.

[72] Appellant's submissions in support of proposed further ground of appeal, filed 25 July 2025, 1 ‑ 3.

[73] Appellant's submissions in support of proposed further ground of appeal, filed 25 July 2025, 5.

[76] Palladino v The State of Western Australia [2023] WASCA 101.

[82] Mrsa v The State of Western Australia [2018] WASCA 217.

[83] Tran v The State of Western Australia [2019] WASCA 50.

[84] Franklin v The State of Western Australia [2017] WASCA 102.

[85] Stewart v The State of Western Australia [2014] WASCA 195.

[86] Nguyen v The State of Western Australia [2019] WASCA 56.

[87] Italiano v The State of Western Australia [2020] WASCA 115.

[88] The State of Western Australia v Tulloch [2025] WASCA 17.

[89] Jenkin v The State of Western Australia [2014] WASCA 226.

[90] Celani v The State of Western Australia [2021] WASCA 215.

[91] IIO v The State of Western Australia [2022] WASCA 38.

[92] North v The State of Western Australia [2020] WASCA 6.

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

[95] The State of Western Australia v ADS [2021] WASCA 99 [60]; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ); Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

[98] Gaskell v The State of Western Australia [2018] WASCA 8 [128] (Mazza & Beech JJA); The State of Western Australia v Wilson [2015] WASCA 119 [25] ‑ [26] (Mazza JA, Martin CJ & Buss JA agreeing).

[99] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J, Mazza JA agreeing).

[100] Sentencing Act, s 16(2).

[101] Sentencing Act, s 16(3).

[102] Lee v The State of Western Australia [2022] WASCA 137; (2022) 303 A Crim R 340 [54].