Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Drug offences - Application to withdraw notice of discontinuance in respect of an appeal against sentence - Turns on own facts

Australian Constitution, s 109

Crimes Act 1914 (Cth), pt IB

Criminal Appeals Act 2004 (WA), s 40(1)(l)

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 9, s 11(a), s 34(1)(a), sch III, sch V

Supreme Court (Court of Appeal) Rules 2005 (WA), sch 1 cl 16

Application to withdraw notice of discontinuance dismissed

Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197

MGM v The State of Western Australia [2012] WASCA 24

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Ponnambalam v The State of Western Australia [2015] WASCA 185

Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100

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

Santos v The State of Western Australia [2013] HCASL 123

Santos v The State of Western Australia [2014] HCASL 226

Santos v The State of Western Australia [No 2] [2013] WASCA 39

Vagh v The State of Western Australia [2007] WASCA 17

Zanon v The State of Western Australia [2016] WASCA 91

3 MAZZA JA: This is an application to withdraw a notice of discontinuance in respect of an appeal against sentence.

Background Proceedings in the District Court

4 On 9 December 2011, following a trial in the District Court before Stevenson DCJ and a jury, the appellant and a co-accused, Joseph Frank Micalizzi, were convicted of two counts of possession of prohibited drugs, namely MDMA (count 1) and methylamphetamine (count 2), with intent to sell or supply them to another, each offence being contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).

5 On 2 February 2012, the appellant and Mr Micalizzi were each sentenced to 13 years' imprisonment on count 1 and 15 years' imprisonment on count 2. His Honour ordered that the sentences be served concurrently, effective from 1 May 2011. Thus, the total effective sentence imposed on the appellant and Mr Micalizzi was 15 years' imprisonment. Each appellant was made eligible for parole.

6 The appellant appealed to this court against conviction and sentence.[1]

7 The appeal against conviction relied upon 19 grounds. Leave to appeal on each of these grounds was refused and the appeal was dismissed: Santos v The State of Western Australia [No 2] [2013] WASCA 39 (Santos [No 2]). The appellant twice applied, unsuccessfully, to the High Court of Australia for special leave to appeal against this decision: Santos v The State of Western Australia [2013] HCASL 123 and Santos v The State of Western Australia [2014] HCASL 226.

First appeal against sentence (CACR 25 of 2012)

8 On 28 February 2012, with respect to the appeal against sentence, being CACR 25 of 2012 (the first appeal), a notice of discontinuance was filed by Marshall Legal, the solicitors who were then on the record for the appellant (the notice of discontinuance). The notice was signed by the appellant in person. It was in the form prescribed by cl 16 of sch 1 to the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).[2]

9 On 1 March 2012, a certificate of conclusion of a criminal appeal in the form prescribed by the Rules was completed and sealed by the acting Court of Appeal Registrar.[3]

Second appeal against sentence (CACR 194 of 2014)

10 On 6 November 2014, the appellant filed another appeal against sentence, being CACR 194 of 2014 (the second appeal).[4] An appellant is not entitled to commence multiple appeals from the same decision: Ponnambalam v The State of Western Australia [2015] WASCA 185 [30]. Thus, the second appeal is incompetent and must be struck out. However, this court has a discretionary power to permit an appellant to withdraw a notice of discontinuance in an appeal pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA): Ponnambalam [29].

11 On 22 December 2014, the appellant filed an application which, in substance, seeks an order from this court permitting him to withdraw the notice of discontinuance. It is this application which must now be decided.

12 The facts were described in broad terms by McLure P in Santos [No 2]. It is convenient to repeat what her Honour wrote on that occasion:

The appellant piloted a light aircraft from Bankstown in New South Wales to Jandakot Airport in Perth. His only passenger was Mr Micalizzi. Shortly after landing, the aircraft was intercepted and searched by police. In a black bag in the rear cargo area of the aircraft police located approximately 9 kg of ecstasy and approximately 22 kg of methylamphetamine.

The appellant was found in possession of just over $9,000 in cash. He was at the time an undischarged bankrupt. He was also found to be in possession of two mobile phones which were not subscribed in his name or at addresses associated with him. The appellant told police that his passenger was on a joy flight from New South Wales to Western Australia and, although Mr Micalizzi had offered to pay for the cost of the fuel for the journey, no money had yet been paid for this purpose. The appellant also told police that he did not know the name of his passenger, that the black bag was not his and that he did not know if the passenger had any bags when he came on board the plane. There is no forensic evidence to link either the appellant or Mr Micalizzi with the bag that contained the drugs.

Mr Micalizzi's phone records revealed that during the flight from Bankstown to Jandakot he had been in contact with two people known as Oz and Bowa. The telephone contact between Mr Micalizzi and Oz and Bowa was prolific right up until his arrest. SMS exchanges revealed that Mr Micalizzi was to meet both Oz and Bowa in Perth upon his arrival at Jandakot Airport on 5 March 2008.

At the trial, propensity evidence concerning two prior drug offences committed by the appellant in 2004 and 2008 was adduced pursuant to s 31A of the Evidence Act 1906 (WA). The purpose of this evidence, in combination with other evidence, was to demonstrate that the appellant was involved in the business of drug dealing.

The State's primary case was that the appellant and Mr Micalizzi jointly possessed the drugs found in the aircraft and that they were transporting them from Sydney to Perth as part of a larger drug distribution enterprise.

The appellant's case was that he flew the aircraft without any knowledge of the drugs that were on board. The appellant did not give evidence at trial. However, he called his father who gave evidence to the effect that the appellant's lifestyle was funded by legitimate means [2] - [7].

The application to withdraw the notice of discontinuance Material relevant to the application

13 The appellant has filed affidavits in the first and second appeals which, when taken together, seek to support the application to withdraw the notice of discontinuance.

14 The most significant are the affidavits sworn by the appellant on 19 December 2014[5] and 1 October 2015.[6] These affidavits seek to explain why the notice of discontinuance was filed and why this court should exercise its discretion to allow its withdrawal. The appellant has filed several versions of his proposed appellant's case. The most recent version was filed on 7 May 2015 and contains six proposed grounds of appeal.[7]

15 The respondent sought to rely upon the affidavit of Simon Barry Watters[8] sworn on 13 March 2015,[9] the affidavit of Jeffrey Alan Scholz sworn on 29 January 2015[10] and the affidavit of Lindsay Makinson Fox sworn on 16 December 2015.[11] Mr Fox's affidavit annexes the respondent's written submissions in response to the application.

16 The legal principles applicable to the exercise of the discretion to allow the withdrawal of a notice of discontinuance were described by the court in Ponnambalam [32] as follows:

[T]he exercise of the discretionary power to permit an appellant to withdraw a notice of discontinuance in an appeal is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must also be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If, as in this case, there has been a very lengthy delay after the discontinuance, the appellant will need to establish that he would suffer a miscarriage of justice if he is not permitted to withdraw his notice of discontinuance. See by analogy, Wilson v The State of Western Australia [2014] WASCA 236 [27] - [38].

Disposition of the application to withdraw the notice of discontinuance

17 In his affidavit sworn on 1 October 2015, the appellant explained his reasons for filing the notice of discontinuance in these terms:

1. [The first appeal] was discontinued as I was not legally trained nor had any legal representation at the time of filing the notice of discontinuance, and at the time I was not aware of the laws and sentencing principles that applied to this matter.
2. Therefore my mind was not in the application, as at the time I did not no [sic] the law or the consequences of what a notice of discontinuance meant. Macri v Thobaven [2010] WASC 18 [13] - [21].
3. At no time did I receive a[n] 18 page letter from Mr Watters in regards to my sentence appeal, the first time I heard about this 18 page letter was upon receiving the application and affidavit produced by the prosecutor. I am still waiting for a copy of this supposed letter.
4. On a visit from Mr Watters at Hakea Prison in 2012, he verbally told me he would not do my sentence appeal, and if I wanted to do a sentence appeal, I would have to do it myself.

18 To the extent that the appellant gives an explanation for the delay in filing the application to withdraw the notice of discontinuance, he deposed in the same affidavit that:

1. Upon studying and reading legal authorities and law, it has now became [sic] apparent that there was a jurisdictional error and an error of law in regards to the sentencing of the appellant, leading to a miscarriage of justice.

19 The appellant's statement that he was not legally represented at the time that the notice of discontinuance was filed cannot be accepted. The notice of discontinuance was filed on the appellant's behalf by Marshall Legal. Further, the notion that he had not received legal advice appears most unlikely as the notice of discontinuance was filed after Mr Watters had given written advice to Marshall Legal regarding the merits of the appeal against sentence.[12] The appellant is vague as to when Mr Watters visited him at Hakea Prison, but it was 'in 2012'.[13] He does not depose to the advice given to him through his solicitors. The appellant may not have received Mr Watters' letter of advice; however, that does not mean that the gist of that advice was not conveyed to him. It beggars belief that the appellant would have signed the notice of discontinuance without receiving and accepting legal advice. The appellant, on his own account, was aware of the possibility that he could bring his own appeal against sentence. He undoubtedly possesses the capacity to do so. The compelling inference to be drawn is that he signed the notice of discontinuance because, at that time, he believed the appeal against sentence was futile.

20 The appellant's reasons for the delay in bringing the application to withdraw the notice of discontinuance are inadequate. The period of time between the filing of the notice of discontinuance and the filing of the application to withdraw it is almost three years. Whilst some leeway will ordinarily be given to a litigant in person, his delay in bringing the application in the present case is gross by any measure. Further, the appellant, although not a lawyer, appears to have had access to a person with some legal training from whom he has been given assistance: see the observations in Santos [No 2] [10].

21 The reason for and extent of the delay in bringing the application are matters which weigh against the exercise of the discretion in the appellant's favour.

22 I now turn to the merits of the appeal and the question of whether the appellant would suffer a miscarriage of justice if he is not permitted to withdraw the notice of discontinuance.

23 Whether the appellant would suffer a miscarriage of justice if he is not permitted to withdraw the notice of discontinuance requires a consideration of the appellant's proposed grounds of appeal as set out in his proposed appellant's case filed on 7 May 2015.

24 Proposed ground 1 (without particulars) is in these terms:

1. The Trial Judge erred in not holding that the sentencing provision of Western Australia on 'Quantifying' the amount of drugs for which the appellant was liable for punishment, in its application to the appellant, [is] inconsistent with s 312 of the Criminal Code (Cth) Thus inoperative [sic].

25 The claimed inconsistency referred to in this proposed ground is an inconsistency of the type engaged by s 109 of the Australian Constitution, which reads:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

26 The legislative provisions which 'quantify' the amount of a drug differ as between the MDA and the Criminal Code (Cth).

27 The appellant was convicted of offences contrary to s 6(1)(a) of the MDA. The relevant maximum penalty for that offence is 25 years' imprisonment or a fine of $100,000, or both: s 34(1)(a) of the MDA. The availability of that maximum penalty is not dependent upon the quantity of the prohibited drug in question; however, the quantity of the prohibited drug may determine the court of trial (s 9 read with sch III to the MDA) or give rise to a presumption of intention to sell or supply (s 11(a) read with sch V to the MDA). As to the relevant quantities of each of the prohibited drugs in this case (MDMA and methylamphetamine), possession of 4 g or more determines that the court of trial is the District Court, and 2 g or more engages the presumption of intention to sell or supply them to another.

28 The method by which a prohibited drug is quantified for the purposes of the MDA was described by this court in Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100. The quantity of a prohibited drug is the weight of the admixture containing that drug, not the weight of the drug in its pure form [205].

29 Part 9.1 of the Criminal Code (Cth) deals with serious drug offences, including offences of trafficking controlled drugs such as MDMA and methamphetamine. Section 312(1) of the Criminal Code (Cth), in broad terms, provides that, for the purposes of pt 9 of the Criminal Code (Cth), a quantity of a controlled drug in a mixture of substances refers to the pure form of that controlled drug. Depending upon that pure weight, the maximum penalty for certain offences varies, for example:

(a) trafficking in a commercial quantity of controlled drugs (500 g or more of MDMA; 750 g or more of methamphetamine) has a maximum penalty of life imprisonment or 7,500 penalty units, or both: s 302.2(1) and s 314(1) of the Criminal Code (Cth);

(b) trafficking in marketable quantity of controlled drugs (100 g of more of MDMA; 250 g or more of methamphetamine) has a maximum penalty of 25 years' imprisonment or 5,000 penalty units, or both: s 302.3(1) and s 314(1) of the Criminal Code (Cth); and

(c) trafficking in a trafficable quantity of controlled drugs (0.5 g or more of MDMA; 2 g or more of methamphetamine) has a maximum penalty of 10 years' imprisonment or 2,000 penalty units, or both: s 302.4 and s 314(1) Criminal Code (Cth).

30 The appellant's submissions in support of proposed ground 1 are difficult to follow. They largely repeat submissions which were rejected by this court in Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197. The gist of his arguments is set out in the particulars to this proposed ground of appeal, which read:

1.1 The fact that the [appellant] was a resident of NSW and was charged and prosecuted by the State of Western Australia becomes a 'matter' interpreted in s 75(iv) of the Constitution [sic].

1.2 This 'matter' now adopts a federal element and along with s 39(b) of The Judiciary Act 1903 [sic], vests federal jurisdiction on that State Court.

1.3 In the way of sentencing the (State of Western Australia) [sic] 'Quantifies' the amount of drug in a mixture of substances in total, where this differs to the Criminal Code Act 1995 Division 312 [sic] which quantifies the amount of drug in pure form.

1.4 The sentencing judge erred in sentencing the appellant on 22 kg of Methamphetamine. This was the incorrect amount liable for punishment.

1.5 This is because in pure form as under Commonwealth law, the applicant should have been sentenced for approximately 2.2 kg of Methamphetamine. As it was 8 - 12% purity.

1.6 In the case of the MDMA the sentencing judge sentenced the appellant on 8 kg at 23 - 26% purity, under Commonwealth law; the applicant should have been sentenced for approximately 2 kg of MDMA.

1.7 In this matter the State law is inconsistent with the Commonwealth laws and s 109 of the Constitution [sic] becomes active.

32 While it may be accepted that the District Court was exercising Federal diversity jurisdiction in respect of the appellant by reason of his residency in New South Wales at the time of the offences, this does not mean that the appellant is not subject to the provisions of the MDA, including as to the quantification of the drugs in question.

33 As this court explained in Hughes, based on the relevant judgments in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, offences under the MDA retain their character as laws of the State of Western Australia and are to be applied as such by the courts of this State [152]. Moreover, there is no relevant s 109 inconsistency between the MDA and the Criminal Code (Cth) [153] - [154]. This is sufficient to dispose of proposed ground 1.

34 It is relevant to make two final remarks regarding the appellant's submissions in support of this proposed ground.

35 First, had the appellant's submissions been accepted and taken to their logical conclusion, then the appellant would be subject to the relevant maximum penalty under the Criminal Code (Cth), rather than the relevant maximum penalty under the MDA. Although the precise pure weights of MDMA and methylamphetamine have not been calculated, they are, even on the most optimistic analysis from the appellant's perspective, very large indeed and well over the threshold of being commercial quantities. For example, at a purity of 23%, there would have been just over 2 kg of pure MDMA and at 8%, there would have been approximately 1.75 kg of pure methylamphetamine. Thus, instead of being subject to a maximum penalty of 25 years' imprisonment or a fine of $100,000, or both, under the MDA, the appellant would have been subject to the greater maximum penalty of life imprisonment or 7,500 penalty units, or both, under the Criminal Code (Cth).

36 Second, the appellant assumes that, if he was sentenced under Federal law on the basis of the pure weight of the MDMA and methylamphetamine, he would have received a lesser sentence. That is a doubtful assumption supported by nothing more than mere assertion.

The trial Judge erred in sentencing the appellant to the same sentence as his co-accused given the large disparity in culpability and criminality. The learned sentencing judge erred in the sentencing principles of totality and parity.

39 This proposed ground rolls up two alleged errors: one being an infringement of the parity principle; the other an infringement of the first limb of the totality principle. I will deal first with the alleged infringement of the parity principle.

40 The relevant legal principles are uncontroversial and have been explained in a number of cases by this court. In MGM v The State of Western Australia [2012] WASCA 24 [41] - [43], the relevant principles were explained in this way:

The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).

The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).

Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J).

41 The learned sentencing judge in the present case expressly considered the question of parity when sentencing the appellant and Mr Micalizzi:

(a) He described each of the appellant's and Mr Micalizzi's roles in the enterprise as being 'different' (sentencing remarks ts 8). Specifically, he described Mr Micalizzi as being 'in charge of the custody and safekeeping [of the drugs] for the purpose of their transport' from Sydney to Perth, however he described the appellant as 'the pilot' (sentencing remarks ts 8).

(b) He accepted that Mr Micalizzi took possession of the drugs from 'either Bowa and Oz or someone acting on their behalf at Bankstown Airport'; he stowed them onto the aircraft; and was in communication with Bowa and Oz during the flight (sentencing remarks ts 7 - 8).

(c) He considered Mr Micalizzi as being closer in proximity to those who owned the drugs, and was more trusted by them, than the appellant (sentencing remarks ts 8).

42 The learned sentencing judge described the appellant's role as being 'critical to the enterprise' (sentencing remarks ts 8). His Honour noted that the appellant, despite having committed drug-related offences in the past, was prepared to fly the aircraft to Jandakot Airport, aware that illicit drugs were on board (sentencing remarks ts 6). He observed that the appellant paid cash for fuel on the journey (sentencing remarks ts 9).

43 The appellant's antecedents were poor when compared with Mr Micalizzi's by reason of the appellant's prior drug convictions in 2004 and that, at the time of his offending, the appellant was engaged in the cultivation of cannabis, for which he was later sentenced to a term of imprisonment in New South Wales (sentencing remarks ts 14).

44 The sentencing judge summarised his analysis of the parity issue in this way:

In my view, the role played by the offenders was different in the way that I have described and I regard the role played by [Mr] Micalizzi as more important than that of [the appellant].

However, the fact of course is that [the appellant] in 2004 and at the time of this offending was engaged in the cultivation of cannabis, which means that he has already demonstrated his attitude to the law and the use of prohibited drugs.

So to that extent, his antecedence [sic] differs and is worse than that of Mr Micalizzi, who until the point in time he was apprehended for this offending, notwithstanding his own admitted involvement in the drug scene, had no criminal record.

The view I take is that on balancing out the objective criminality and the role played by each of the offenders, and having regard to their personal antecedents, for the purpose of parity there should be no difference between the sentence [sic] imposed (sentencing remarks ts 14).

45 The appellant can have no objective justifiable grievance by reason of the lack of disparity in the sentences he received when compared to those imposed on Mr Micalizzi. As the learned sentencing judge recognised, there were differences in the roles played by the appellant and Mr Micalizzi in the commission of the offences. He regarded the role played by Mr Micalizzi as being more important than that played by the appellant. By itself, that may have justified Mr Santos receiving lesser sentences. However, the appellant's antecedents were worse than Mr Micalizzi's. Personal deterrence was a matter of heightened importance in his case, thus justifying longer sentences.

46 In my view, his Honour appropriately balanced out the various competing considerations. It was well open to him to arrive at a conclusion that, for the purpose of parity, there should be no difference in the sentences imposed on the appellant and Mr Micalizzi. There is no merit to the allegation that the sentences imposed on the appellant infringed the parity principle.

47 I now turn to the allegation that the total effective sentence imposed on the appellant infringed the totality principle.

48 The appellant submits that the first limb of the totality principle has been infringed because the learned sentencing judge failed to have regard to the term of imprisonment that the appellant served prior to being extradited to Western Australia to face the present charges.

49 On 16 November 2010, the appellant was sentenced in the District Court of New South Wales to an offence of knowingly taking part in the cultivation of 298 cannabis plants at a property near Narrabri in that State. The cultivation occurred between 1 January 2008 and 8 March 2008; that is, at the same time that the appellant committed the offences the subject of this application.[14] He was sentenced to 2 years 9 months' imprisonment with a non-parole period of 2 years and 26 days. The appellant was in custody from 21 October 2008 to the date on which he was sentenced. The sentence expired on 20 July 2011.

50 The first limb of the totality principle requires that the total effective sentence imposed bear a proper relationship to the overall criminality involved in all the offences for which an offender is to be sentenced, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. An allegation to this effect is an allegation of implied error. Accordingly, the sentence must be unreasonable or plainly unjust before it can be disturbed by an appellate court.

51 It cannot reasonably be argued that his Honour was unaware of the cultivation offence and sentence - he expressly referred to it in his sentencing remarks (sentencing remarks ts 10, 14). It is true, as the appellant points out, that the combined effect of the sentences imposed in New South Wales and by the sentencing judge is that the appellant received terms of imprisonment which totalled 17 years 9 months. However, in my opinion, it cannot reasonably be maintained that a sentence of that length infringed the first limb of the totality principle. This is for a number of reasons:

(b) The offences committed by the appellant in this State were, self-evidently, very serious.

(c) The appellant's offending in New South Wales was also serious, although not to the same extent as the offending in Western Australia. He engaged in the cultivation of a large number of cannabis plants plainly for commercial reasons. It was deliberate, calculated criminal activity separate from the offences committed in this State.

(d) There was little mitigation. He was, at the time of sentencing, 41 years of age. He had poor antecedents. He had not pleaded guilty.

(e) The total effective sentence is broadly consistent with outcomes in comparable cases: see, for example, Zanon v The State of Western Australia [2016] WASCA 91 and the cases cited therein at [173] and [174].

52 In my view, the total effective sentence, including the sentence imposed in New South Wales, was proportionate to the criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.

54 Proposed ground 3 (without particulars) reads as follows:

The learned sentencing judge erred in finding that evidence which was not proved beyond reasonable doubt could be used 'adversely' as an aggravating factor against the appellant to increase his criminality and culpability upon sentencing. The Queen v Olbrich [1999] HCA 54 (7 October 1999) at 27, R v Storey [1998] 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell AJA [sic].

55 The appellant's written submissions in support of this proposed ground are essentially a collateral attack on his conviction. For example, he alleges that there was 'no evidence that could even be inferred that the appellant knew that Mr Micalizzi would be carrying drugs'.[15] To the extent that the appellant's submissions mount a collateral attack on his conviction, and not his sentences, they cannot be accepted.

56 By proposed ground 3 the appellant seeks, in truth, to impugn factual findings made by his Honour in the course of his sentencing remarks, being that:

(a) a person only identified in the proceedings as 'A' communicated with the appellant regarding the timing and departure of the flight and, after the aircraft touched down at Jandakot, sent a text to the appellant at 4.07 pm, to the effect 'How are you going, brother?' (sentencing remarks ts 7); and

(b) shortly before the flight, the appellant was given some cash at Bankstown Airport by those associated with Mr Micalizzi (sentencing remarks ts 9).

57 The appellant also claims that the sentencing judge found as a fact that the appellant's business, Santos Aviation Pty Ltd, had no legitimate income and that such a finding was erroneous. I will deal with this point immediately. There was conflicting evidence led at trial on whether Santos Aviation Pty Ltd was funded from legitimate sources. In the end, the learned sentencing judge made no finding adverse to the appellant on this point. His Honour said:

The financial records of Santos Aviation and the flight activity of [the appellant] do suggest that he was being funded by funds obtained from illegitimate sources, but in respect of his previous flights and in respect of sentence today in respect of this offence [sic], I make no finding about that and he is not to be punished for any inference which may be drawn from that body of the evidence (sentencing remarks ts 10).

58 There was evidence led at trial capable of sustaining these factual findings (a) and (b). A's communications with the appellant were evident from an examination of the appellant's mobile telephone. As for the appellant being given cash at Bankstown Airport, Mr Micalizzi gave evidence to that effect and, when the appellant was apprehended by Western Australian police, he had in his possession $9,065 in cash.

59 In his written submissions in support of this proposed ground, the appellant alleges that the learned sentencing judge erred by disregarding, as a mitigating circumstance, the unchallenged evidence of his father, Mr Piltz, to the effect that his father, from time to time, gave him large amounts of cash. The short answer to this submission is that Mr Piltz's evidence was not, in any material sense, mitigating.

61 Proposed ground 4 (without particulars) is in these terms:

The sentencing judge erred in failing to place sufficient weight upon the proven mitigating facts and criminal culpability of the appellant.

62 The appellant makes no written submissions in support of this proposed ground.

63 The proposed ground of appeal is, in effect, a complaint of weighting errors. As this court has said on many occasions in the past, a ground of appeal which merely alleges a weighting error is not a proper ground of appeal: Vagh v The State of Western Australia [2007] WASCA 17 [49].

65 Proposed ground 5 (without particulars) is in these terms:

The District Court judge erred in law by applying the incorrect sentencing legislation in a 'Matter' as defined under Chapter III s 75(iv) of the Constitution [sic]. The application of the judicial power of the State does not apply. Only the judicial power of the Commonwealth was applicable, this has led to a judicial error and a substantial miscarriage of justice.

66 The particulars and the written submissions in support of this proposed ground are largely nonsense. The proposition the appellant puts forward appears to be that, as he was a Federal offender, he should have been sentenced under the provisions of pt IB of the Crimes Act 1914 (Cth) and not the Sentencing Act 1995 (WA).

67 The answer to this proposed ground of appeal is that the appellant was not a Federal offender - the offences for which he was convicted were State offences; thus, he was subject to State sentencing laws.

69 Proposed ground 6 (without particulars) is in these terms:

The sentencing judge erred by imposing a sentence upon a null and void indictment.

70 The appellant's submissions in support of this proposed ground allege that the sentences imposed on him were invalid because the indictment was a nullity. The appellant alleges that the indictment was a nullity because the senior State prosecutor who signed the indictment was not authorised to do so as he did not hold an appointment to present a Federal indictment under the laws of the Commonwealth. It is not disputed the senior State prosecutor who signed the indictment was authorised under State law to do so.

71 Proposed ground 6 has no merit. First, it is a collateral attack on his conviction. Second, it is misconceived - as has already been explained, the proceedings before the District Court were in respect of State offences, not Federal offences.

72 None of the appellant's proposed grounds of appeal have any merit.

Application to withdraw the notice of discontinuance

73 There is no merit whatever in the appellant's application to withdraw the notice of discontinuance; thus, there is no basis for this court to exercise its discretionary power to permit the appellant to withdraw the notice of discontinuance.

[1] A cross-appeal by the State against the leniency of the sentence imposed on the appellant was discontinued by a notice dated 16 April 2012 (CACR 25 of 2012 application book 3, 62). A certificate of conclusion of a criminal appeal was signed and sealed by the Court of Appeal Registrar on 17 April 2012 (CACR 25 of 2012 application book 63).

[5] CACR 25 of 2012 application book 9 - 14.

[6] CACR 25 of 2012 application book 15 - 49.

[7] CACR 194 of 2014 appeal book 11 - 30.

[8] A barrister who had been briefed to provide an opinion as to the merits of the first appeal.

[9] CACR 25 of 2012 application book 82 - 84.

[10] CACR 25 of 2012 application book 50 - 65.

[11] CACR 25 of 2012 application book 66 - 80.

[14] See the District Court of New South Wales sentencing remarks sent to the learned sentencing judge and the State by the appellant's then counsel, Ms Judy Seif, by facsimile dated 27 January 2012.