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[2009] WASCA 236
mixed. The conviction appeal was dismissed. Leave to appeal against sentence was granted, the four-year sentence with eligibility for parole was set aside, and a three-year sentence with eligibility for...
The Court held that taking drugs back to the supplier falls within the statutory definition of supply because the Act expressly includes return. It found no error in the relevant jury directions or in the use of evidence about visitors to the appellant's home. The sentencing judge could find that the offence was commercial where the evidence supported that finding. However, the appellant's assistance to authorities had significant practical value and was not sufficiently reflected in the four-year sentence, so the Court reduced the sentence to three years.
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2,347 words · generated 28/09/2026
EBE appealed both his conviction and his sentence in the Western Australian Court of Appeal. The conviction was for possessing methylamphetamine with intent to sell or supply it to another. Police found two packages in his clothing when he was visiting premises searched under warrant. Analysis found 49.1 grams of methylamphetamine at 13% purity ([3]).
1 cited instrument linked from this judgment.
The case involved two competing accounts of the drugs. Initially, EBE denied knowing about the packages and alleged police had planted them. He later said he had bought the drugs from the person living at the premises and was taking them back because he considered their quality poor ([4]–[6]). The State's principal case was that this explanation was untrue and EBE was a commercial dealer. It also argued that, even if his account were accepted, returning the drugs to the supplier amounted to supply under the Misuse of Drugs Act 1981 (WA) ([5]).
Other items found at EBE's home included scales with traces of methylamphetamine, approximately $30,000 in cash, ammunition, a homemade firearm, lists of names and figures, cutting agent, clipseal bags and a chemical formula for making methylamphetamine ([4]). The State relied on these items as circumstantial evidence of commercial activity.
The appeal challenged two aspects of the conviction. One concerned whether “return” in the statutory definition of supply required a pre-arranged arrangement, such as a bailment. The other concerned a jury direction and evidence about people who visited EBE's home ([8]). The sentence appeal disputed findings about addiction and whether the offending was isolated, and argued that the four-year term was manifestly excessive ([26]–[30]).
The result was mixed. The conviction appeal was dismissed. The sentence appeal succeeded because the Court considered the sentence did not sufficiently recognise EBE's useful cooperation with authorities. The four-year sentence was set aside and a three-year term with eligibility for parole was imposed, commencing 6 February 2009 ([21], [34]).
The Court treated the meaning of “return” as straightforward. Section 3 of the Act included “return” in the definition of supply. The Court applied the ordinary English meaning: to give, take or send back ([10]). EBE's own account was that he obtained the drugs from a person and was taking them back. That account therefore described a return, and the jury direction that this amounted to supply was correct ([10]–[11]).
The proposed limitation, that a return must occur under a pre-arranged plan or agreement, was rejected. The Court said the word had a clear meaning in context and did not produce an odd or unjust result. It explained that returning unwanted drugs to a supplier puts those drugs back into a chain through which they may be supplied to someone else ([11]). That explanation connects the statutory language to the potential circulation of the drugs, rather than limiting the definition to a particular form of prior arrangement.
The Court also rejected the complaint about the direction concerning what the jury might conclude if it did not accept EBE's proposed return. EBE relied on his evidence that he was a heavy drug user and argued that, even if the jury rejected his account about returning the drugs, it might infer that he intended to consume them himself ([12]). The Court considered the direction in context. The judge had earlier told the jury they could accept part of EBE's evidence and had left possession simpliciter as a possible verdict. In the Court's view, the proposed reasoning had not been taken away from the jury ([15]–[16]).
The judgment was careful not to decide that heavy use could never rebut the relevant presumption. It said that drug use, even heavy use, was not inconsistent with supplying drugs to others. Whether heavy-use evidence alone could establish a different purpose depended on all the circumstances. The Court did not need to determine whether that verdict was properly open in this case ([16]).
On the second conviction ground, the Court considered the context and substance of Ms T's evidence. She had lived with EBE for about a month. She said visitors came occasionally, that she generally did not stay when they visited, and that she did not like the look of them ([17]–[19]). The Court accepted that describing the visitors as of a “dubious” nature captured the flavour of that evidence. It also held that evidence about the number and frequency of visitors, and whether visits were social, was capable of being part of a circumstantial case. Ms T's explanation for avoiding the visitors was relevant to assessing her evidence ([20]).
On sentence, the Court rejected the argument that the judge was required to treat the offending as isolated. A sentencing judge had to assess the circumstances of the offence and relevant circumstances bearing on culpability. The material found at EBE's home was capable of supporting a finding beyond reasonable doubt that the offence formed part of a broader commercial enterprise ([29]). The Court cited R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281 for the proposition that the judge was not compelled to sentence on the most favourable factual basis ([29]).
The decisive sentencing issue was cooperation. The Court said the assistance had significant practical use to authorities. It also noted that informants in drug cases may face a risk of being suspected or identified, even if the particular assistance did not appear to have placed EBE in significant danger when it was given ([31]–[32]). The four-year term might have fallen within an appropriate range for the offence and offender, but the Court considered it did not adequately reflect the cooperation. It therefore found the sentence manifestly excessive ([33]).
This judgment applied, rather than newly formulated, the statutory definition in s 3 of the Misuse of Drugs Act 1981 (WA). On the text discussed by the Court, “supply” included “return”. The judgment resolved the specific argument that return required a pre-arranged arrangement or a bailment: the Court applied the ordinary meaning of return and rejected that proposed limitation ([10]–[11]).
The judgment's approach was contextual but restrained. It did not rely on the legislative history urged by the appellant's former counsel to narrow the meaning. It said there was no doubt or difficulty arising from context and no odd or unjust result from applying the ordinary meaning ([11]). Its reasoning also supplied a practical explanation for the legislative inclusion: returning unwanted drugs allows them to re-enter the supply chain ([11]).
On sentencing, the Court relied on R v Olbrich for the proposition that the sentencing judge was not compelled to adopt the factual basis most favourable to the appellant ([29]). The judgment applied that point to competing claims about whether the offence was a one-off transaction or part of commercial activity. It did not treat the sentencing judge's finding as automatic: the stated basis was that the material was capable of supporting the finding beyond reasonable doubt ([29]).
For cooperation with authorities, the Court referred to The State of Western Australia v Tran [2008] WASCA 183, identifying passages from Steytler P and Miller JA on the weight to give cooperation ([32]). It expressly said it would not repeat what had been said in Tran. Instead, it applied the relevant considerations to EBE's assistance, including its practical use and the risk associated with providing information ([32]–[33]).
The judgment does not provide a later history of EBE or show how subsequent courts treated it. Its account of the law's “before and after” state is therefore limited to its application of the cited statute and authorities. Claims about later developments cannot be drawn from this judgment alone.
At [10], the Court said: “'Return' is an ordinary English word meaning to give, take or send back.” In plain English, the Court did not consider the statutory word technically obscure. EBE's account of taking the drugs back to the supplier fit its ordinary meaning.
At [11], the Court explained that returning drugs to a supplier could reintroduce them into the supply chain. This explains why the Court considered that an ordinary return came within the Act's definition, even if the person returning them originally obtained them for personal reasons. The judgment's point was about the statutory meaning, not a finding that EBE's account was true.
At [16], the Court observed that being a heavy user was not inconsistent with supplying drugs to others. The practical point is that evidence of use did not necessarily resolve the question of intended purpose. The Court also qualified its observation: the significance of heavy-use evidence would depend on all the circumstances, and it did not decide whether such evidence alone could discharge the relevant onus in this case.
At [29], the Court said EBE was “not compelled to sentence on the basis most favourable” to him. In context, the sentencing judge could decide whether the offending was isolated or commercial, provided the evidence supported the finding. The Court considered the evidence found at the home capable of supporting the finding of a broader commercial enterprise.
At [33], the Court said that, “[i]n the light of that co-operation and assistance,” the sentence was manifestly excessive. The result did not depend on the Court rejecting the commercial finding. Rather, it concluded that the assistance had not been recognised with a sufficiently significant discount in the sentence imposed.
The statutory interpretation reasoning is relevant where a person says they were taking drugs back to the person who supplied them. The key features are the statutory inclusion of “return” in supply and the ordinary meaning the Court gave that word ([10]–[11]). The judgment rejected the argument that the return had to be part of a pre-arranged plan. It does not, however, resolve every question about how the statutory definition applies to different facts or different legislative wording.
The jury-direction discussion concerns cases where a person relies on drug use to explain possession of a quantity that raises a statutory presumption or onus. The Court emphasised that drug use and supply to others can coexist. It left the weight of heavy-use evidence to the circumstances of the particular case ([16]). It did not decide that heavy use alone is always insufficient.
The circumstantial-evidence discussion concerns cases where evidence of visitors, their frequency, and the nature or purpose of their visits is used alongside other evidence of dealing. The Court treated the visitor evidence as one component of a broader case, not as proof of drug dealing by itself ([17]–[20]). It expressly recognised that the evidence, standing alone, could not possibly give rise to an inference of dealing ([20]).
The sentencing discussion is relevant where the evidence permits a sentencing judge to distinguish an isolated transaction from conduct within a broader commercial enterprise. Here, the scales, cash, lists and other items were the material identified as capable of supporting the finding ([29]). The judgment does not say that any one item necessarily establishes commercial offending.
Finally, the cooperation reasoning concerns sentencing where an offender gives information or other assistance of practical use to authorities. The judgment considered both the assistance's value and risks associated with being suspected or identified as an informant ([31]–[33]). It does not specify a numerical discount or a formula for calculating one.
The supplied judgment does not describe any later court treatment of EBE. It would therefore be unsupported to say whether later courts followed, distinguished, limited or questioned this decision.
Within this judgment, the Court's treatment of earlier authority is clear. It cited R v Olbrich at 281 in support of the proposition that the sentencing judge was not compelled to choose the factual basis most favourable to EBE ([29]). The Court applied that proposition to the evidence about whether the offence was isolated or part of a commercial enterprise.
It also referred to The State of Western Australia v Tran [2008] WASCA 183 on the appropriate weight for cooperation with authorities. Wheeler JA noted that Steytler P had addressed the issue at [12] and Miller JA at [75]–[81], and stated that the Court would not repeat what Tran said ([32]). The present judgment then applied the relevant considerations to EBE's practical assistance and the associated risks ([32]–[33]).
The judgment includes no other cited case in the supplied text. Its discussion of the Second Reading Speech is not a citation to a reported case, and the Court did not accept that the legislative history justified departing from the ordinary meaning of “return” ([11]).
The Court expressly left open whether evidence of heavy drug use, without more, could satisfy the onus of establishing a purpose other than sale or supply. Its answer was that this would depend on all the circumstances, and that it was unnecessary to decide the issue on the appeal ([16]). The judgment therefore provides a caution against treating the observation about heavy users and dealers as a complete evidential rule.
The Court also did not examine the boundaries of “return” in settings materially different from EBE's account. It decided that returning unwanted drugs to the supplier fell within the ordinary meaning and the statutory definition, but did not consider other possible disputes about the operation of the definition ([10]–[11]).
On sentencing, the reasons do not quantify the discount that should be given for cooperation. The Court found the assistance significant and the existing sentence manifestly excessive in light of it, but gave no percentage or general calculation method ([32]–[34]). It also acknowledged that the apparent level of immediate danger to EBE was not significant, while recognising that informants in drug cases may nevertheless face a real risk of identification ([32]).
The judgment does not set out later judicial consideration of these issues. Any account of subsequent developments, including whether later cases refined the return reasoning or the treatment of cooperation, would require sources beyond this judgment.
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : EBE -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 236
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction and sentence - Possession of methylamphetamine with intent to sell or supply - Meaning of "return" in definition of supply - Discount for cooperation with authorities
Misuse of Drugs Act 1981 (WA), s 3
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Tran [2008] WASCA 183
2 WHEELER JA: This an application for leave to appeal against conviction and sentence. It was ordered that the application for leave be heard together with the appeals.
3 The appellant was charged with one offence, that in early 2007 he had possession of methylamphetamine with intent to sell or supply it to another. The police had searched premises, pursuant to a search warrant, at a time when the appellant was visiting those premises. He was searched, and two packages were found in his clothing. They contained a substance in clipseal bags, wrapped in tissues then wrapped in other wrapping. The packages were sent for analysis and the contents were found to be 49.1 g of methylamphetamine of 13% purity.
4 The appellant was cautioned and underwent a videotaped record of interview. Initially, the appellant claimed that he knew nothing about the packages and that the police had planted them in his clothing. He was arrested and his house was searched. There were found in his bedroom scales which contained traces of methylamphetamine, approximately $30,000 in cash, ammunition and a homemade firearm, lists of names and figures, a substance commonly used as a cutting agent, clipseal bags and a chemical formula for making methylamphetamine.
5 The appellant initially agreed to plead guilty and made several statements of fact. He said that the packages were purchased from the person who lived in the house which he had been visiting. He said that he had tried the methylamphetamine and found it be of a poor quality and was returning it on the morning of the search. The State's primary case was that this latter statement was untrue, and that the appellant was in fact was a commercial drug dealer. However, in the alternative, it was submitted that even if the appellant's account was accepted, then pursuant to the definition of "supply" under the Misuse of Drugs Act 1981 (WA) (the Act), "supply" included return.
6 The defence evidence was that the appellant was a heavy user of drugs. He did not give evidence concerning the purpose for which he had purchased the drugs. He gave evidence that he wanted to return these drugs to the supplier because of their poor quality.
7 The appellant was convicted of possession of methylamphetamine with intent to sell or supply it to another. He was sentenced to 4 years' imprisonment with eligibility for parole.
8 There are essentially two grounds of appeal against conviction. Ground 1 is concerned with the proposition that the learned trial judge erred in directing the jury that an intention to return the drugs, in circumstances described by the appellant, was an intention to supply them. It is asserted that proof of an intention to "return" for the purposes of the Act means "proof of an intention to return pursuant to some sort of prearranged plan or agreement with the supplier, wherein the drugs have been held by the accused on behalf of the supplier" (in effect, as I understood it, some form of bailment). The second ground is that his Honour erred in directing in a manner that invited speculation as to the purpose of the attendance at the appellant's address by persons "of a dubious nature".
9 The grounds of appeal have apparently been drafted by senior counsel; the appellant was not represented by senior counsel at the hearing of this appeal. At the hearing of the appeal, counsel who appeared for the appellant did not resile from ground 1, but did not address oral argument to it, except in relation to one particular. That was a proper course in circumstances where counsel's instructions were not to abandon any of the grounds, but where counsel was not in a position to make any fairly arguable oral submission in support of it.
10 Ground 1 can be dealt with briefly. As it consists of particulars (a) - (d), it is rubbish. "Return" is an ordinary English word meaning to give, take or send back. The appellant, on his own account, had said that he had obtained the drugs from a person and was taking them back. That meant that he was returning them. Because s 3 of the Act defines "supply" to include "return", it is plain that his Honour's direction to the jury was correct.
11 It appears from the submissions made at trial, and from the written submissions in support of ground 1, that counsel then representing the appellant had a view, based upon the Second Reading Speech for the amending Act which inserted the word "return" into the definition, that Parliament had in mind, at the time of the amendment, some particular scenario involving a person acting in concert with another to effect a return. However, the word "return" is one of clear meaning and no doubt or difficulty arises from its context. Nor can it possibly be suggested that reading "return" in its ordinary sense gives rise to any odd or unjust result. A person who returns to a supplier drugs which, for one reason or another, that person does not want (rather than, for example, destroying the drugs) is, in effect, reintroducing the drugs into the supply chain in a way which permits the supplier then to supply them to another. An act of return of that kind would appear to me to be part of the mischief within the contemplation of the Act.
12 The only particular of ground 1 which appears to be directed to a slightly different point is (e), which asserts that his Honour erred in directing that, if the jury did not accept the appellant's evidence as to an intention to return the drugs, there was no other evidence that would enable the jury to come to the view that the appellant did not have an intention to sell or supply the drug to another. There were oral submissions developed in relation to that particular. The appellant's counsel before us pointed to evidence from the appellant that he was a heavy user of drugs. It was submitted that if the jury had rejected his evidence concerning the proposed return, it might have been possible for them to infer, from his evidence of his rate of usage, that he intended to use the drugs himself.
13 It is unlikely that the jury in the present case would have formed the view that the appellant had been untruthful about his intention, disregarded the other drug-related material, and drawn from the appellant's evidence about his usage an inference which satisfied them that the appellant had rebutted the presumption arising from the quantity of drug with which he was found. However, I do not think that his Honour took that line of reasoning away from the jury.
14 The context of his Honour's direction is important. Senior counsel for the appellant addressed the jury, it appears, in a way which effectively invited them to bring in a perverse verdict. Having had a warning of the way in which his Honour would instruct the jury in relation to the question of "return" of the drug, counsel for the appellant foreshadowed that direction, but told the jury that they could, nevertheless, bring in whatever verdict they thought fit. In that context, a firm direction about the most logical way in which the evidence should be viewed, and the consequences of that, was called for.
15 Having directed the jury that if they accepted the appellant's evidence about the intended return, that would constitute an intention to sell or supply, his Honour turned to what the position would be if the appellant's evidence in that respect was put aside. His Honour said (at ts 232):
But putting that evidence aside, it would be open to you to conclude that there is nothing else in the evidence that would enable you to come to the view that the accused did not have an intention to sell or supply the drug to another. But there is no other material which would satisfy you that [it] is more probable than not that he did not have that intention and that would displace the presumption to which I have made reference. In those circumstances, if you were satisfied - if you didn't accept that evidence, you put it to one side and you were satisfied that there was nothing else in the evidence that would suggest to you on the balance of probabilities that there was another purpose [presumably for possessing the drug] the proper verdict, assuming you are satisfied as to the other elements - that is that he was the offender, that he possessed the substance and that he knew what it was - the proper verdict would be one of guilty. (emphasis added)
16 His Honour had earlier directed the jury that they could accept part only of the appellant's evidence. He left to the jury, as a possible verdict, conviction of possession simpliciter. It would appear to me that his Honour left open to the jury, as a matter of law, the reasoning contended for by counsel for the appellant (at ts 231). I would add that I am not convinced that merely adducing evidence of heavy usage, without more, would suffice to satisfy the onus lying upon an accused person in possession of more than a prescribed quantity of drug, to establish on the balance of probabilities that he or she possessed the drug for a purpose other than sale or supply. As a matter of logic and common experience, being a user of drugs - even a heavy user - is not inconsistent with also being a person who sells or supplies drugs to others. Whether evidence of heavy usage, without more, is capable of proving to any standard that an accused person did not have an intention to sell or supply will depend, no doubt, upon all of the circumstances of the case. In the present case, it has not been necessary to consider whether such a verdict was properly open.
17 So far as ground 2 is concerned, the State's case at trial was that the appellant was a commercial level drug dealer, and there was circumstantial evidence in support of this proposition. I have already referred to the items found in the appellant's home. In addition, a Ms T, who had been living with the appellant for approximately a month at the time of the search, also gave evidence. In examination-in-chief, she said that other people visited the house "occasionally" and, when cross-examined on this point, said that she did not usually continue to be present when they visited. She said that she never saw the appellant offer to sell drugs to anyone. In re-examination, asked why she would leave when people came to the house, she said (at ts 61):
Really because I didn't want to, you know, get involved with his friends. I used to just go and watch television in the bedroom. They were his friends, not mine.
18 Asked why it was that she did not want to get involved with them, she said (at ts 61):
19 It does not seem to be suggested in the submissions in support of ground 2 that his Honour had misstated the effect of Ms T's evidence. Suggesting that they were of a "dubious" nature seems to me to adequately capture the flavour of what Ms T had said.
20 By itself, that evidence could not possibly have given rise to an inference of drug dealing. However, it is proper for the State to adduce, as part of a circumstantial case in relation to an offence of this kind, evidence of the numbers and frequency of visitors to an accused person's house. It was relevant that Ms T's evidence was to the effect that these visitors did not attend for the purpose of having a social visit with the appellant and Ms T as a couple. Further, the State, in asking its questions in re-examination, was clearly exploring the question of whether Ms T had absented herself because of some knowledge concerning the purpose of the visits. Her response was relevant to a proper assessment of her evidence.
21 I would refuse leave to appeal in relation to ground 1. I would grant leave in relation to ground 2, but dismiss the appeal.
22 The trial judge set out the evidence given at trial as to the facts of the offending, and noted the factual dispute as to whether the appellant was involved in commercial distribution (BAB 31). Given that intent to sell or supply was an element of the offence with which the appellant was convicted, an assertion that there was no commercial element involved was a mitigating factor which the appellant bore the onus of proving on the balance of probabilities. The trial judge was satisfied beyond reasonable doubt that the appellant possessed the substance with the intent to disseminate it commercially (BAB 31). He referred to the quantity and purity of the drug, and to the improbability, as he saw it, that a user would be able to return drugs to their supplier if unsatisfied with their quality. He found the explanation given by the appellant for the cash and other paraphernalia unconvincing, and found that all the material pointed to a commercial element to the activity. He said:
You fall to be sentenced on the basis that you possessed the drug with the intent to sell it or a substantial part of it to another or other and that this was not an isolated event (BAB 32).
Given the seriousness of the offence, a term of imprisonment was required.
23 In dealing with personal factors, the trial judge noted that the appellant was in his early 40s and was born overseas. He was married, but separated, with three children. He had worked consistently in Western Australia until suffering a back injury during the course of his employment. This led to the development of depression, which led the appellant to take prescription medication. He then began to take marijuana and methylamphetamine, becoming a heavy user of methylamphetamine (BAB 33). His Honour did not accept that the drug addiction was causally related to the back injury, and said that it did not provide mitigation for the offence in question.
24 The appellant had no adverse history and had demonstrated a desire to address substance abuse in the community (BAB 33 - 34). He had acknowledged the evil of illicit substance dissemination, which was a positive indicator for rehabilitation (BAB 34).
25 His Honour sentenced the appellant to a period of 4 years' imprisonment.
26 There are three grounds of appeal against sentence. The first two can be dealt with fairly briefly.
27 This ground concerns the proposition that his Honour erred, in sentencing the appellant, in finding, in effect, that his drug addiction was not causally related to a back injury which the appellant had suffered, or to other personal circumstances. It is not necessary to determine as a matter of fact whether his Honour did err in making this finding. That is because his Honour continued:
Even if that were the case, it would not provide mitigation for your dissemination of methylamphetamine for reward.
28 His Honour had found that there was no suggestion that the appellant was dealing to finance his own addiction. Drug dependence which leads to dealing in order to finance it may be relevant where it appears that, but for the dependency, the offender would not have engaged in selling the drug and where it also appears that there is reason to believe that the offender is overcoming, or has overcome, his addiction. In that case, the need for personal deterrence will be reduced, compared with other cases. His Honour's finding of a "commercial" element to the offending took the appellant out of this category.
29 Ground 2 asserts that his Honour erred in making the finding that the offending was not isolated, but was part of a broader commercial enterprise. The written submissions contain the startling submission that his Honour was "compelled to sentence on the basis that this was an isolated event". There is no authority in support of that proposition, no doubt because all authority is to the contrary. It was necessary for his Honour to make a finding about the circumstances of the offence, and about any relevant circumstances personal to the appellant which went to his moral culpability. Had the offence been an isolated one, then the appellant would have had available to him the mitigating factor of good character. Had the appellant been engaged in a single transaction of no commercial sophistication, that might have properly led the sentencing judge to a view that there was a lesser need for personal deterrence. It was therefore necessary for his Honour to determine, if the material before him permitted him to do so, whether the appellant had engaged in a "one-off" transaction, or whether this offence was part of a broader commercial enterprise. The material to which I have referred, relating to the scales, the cash, the lists and so on plainly was capable of satisfying his Honour beyond reasonable doubt that this offence had been part of a broader commercial enterprise. His Honour was not compelled to sentence on the basis most favourable to the appellant: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281.
30 It is submitted in relation to this ground that the sentence is manifestly excessive, having regard to certain matters. In my view, only one of them is of relevance. It is a matter which leads me to the view that the sentence is manifestly excessive. It is the reason why the appellant is referred to, in these reasons, not by his name, but by initials which are not the initials of his name. His Honour did take this matter into account, referring to it obliquely in his sentencing remarks. An oblique reference was proper, having regard to the material.
31 That material was to the effect that the appellant had provided information which proved to be of considerable assistance to the authorities in relation to certain other drug offenders and had taken certain steps to assist in the apprehension of one of them. One of the two offenders was an offender in relation to whom police had previously had no information.
32 The question of the appropriate weight to be given in relation to co-operation with authorities was considered by this court in The State of Western Australia v Tran [2008] WASCA 183, by Steytler P at [12] and by Miller JA at [75] - [81]. I do not repeat what was said there. Having regard to the matters which are relevant to the setting of an appropriate discount, it is clear from the material before us that, in the present case, there was significant practical use to the authorities provided by the appellant's assistance. The assistance was not, as is sometimes the case, assistance which appears to have placed him in significant danger at the time at which he gave it, but there is always, in cases involving the drug trade, a real risk that it will be suspected, or will become known, who has provided information which led to the detection of a particular offence, and there is therefore always a risk to those providing information. The greater the scale of the operation in respect of which information is given, and the more sophisticated it is, the greater the risk.
33 In the present case, it appears to me that the sentence imposed upon the appellant would have been within an appropriate range for an offender convicted after trial of possession with intent to sell or supply of a drug of this quantity and purity, who had some mitigating factors. I would not accept that, as the appellant's counsel submitted, the sentence was at the top of, or outside, the range for an offence and offender of that kind, but neither could it be described as lenient. The sentence actually imposed suggests that, while his Honour recognised the significant co-operation given by the appellant, he did not reward it with a discount of the magnitude suggested by the authorities. In the light of that co-operation and assistance, the sentence imposed upon the appellant is manifestly excessive.
34 I would therefore grant leave to appeal against sentence, allow the appeal, set aside the sentence of 4 years' imprisonment with eligibility for parole, and impose a sentence of 3 years' imprisonment with eligibility for parole, to commence from 6 February 2009.
R
Olbrich
(1999) 199 CLR 270
The conviction appeal was dismissed. Leave to appeal against sentence was granted, the four-year sentence with eligibility for parole was set aside, and a three-year sentence with eligibility for parole, commencing 6 February 2009, was imposed ([21], [34]).