THE STATE OF WESTERN AUSTRALIA -v- STOCKER [2022] WASCA 178 (30 December 2022)

• Count 2 - 2 years' imprisonment.
• Count 3 - 3 years 6 months' imprisonment.
• Count 4 - 1 year's imprisonment.

(1) The sentences on counts 1 and 2 be served concurrently.

(2) The sentences on counts 3 and 4 be served concurrently.

(3) 1 year 6 months of the sentences imposed in relation to counts 1 and 2 be served cumulatively upon the sentences imposed for counts 3 and 4, so that the total effective sentence of imprisonment was 5 years. (It is clear that this order was intended to be an order for partial concurrency of the sentences on counts 1 and 2 with the sentences imposed on counts 3 and 4 under s 88(3)(d) of the Sentencing Act.)

(4) the overall total effective sentence imposed be partially suspended so that, after the respondent served 20 months' imprisonment from 12 May 2021, the remainder of the sentence - 3 years and 4 months - would be suspended for 2 years.[33]

1. The appellant appeals to this court on five grounds. Grounds 1 and 2, which are pleaded as alternatives, allege express errors of law. Ground 1, in essence, asserts that her Honour had no power to order both partial accumulation and partial suspension of the sentences. Ground 2, in essence, alleges that, even if her Honour had the power to order both partial concurrency and partial suspension of the sentences, her Honour's orders for partial concurrency did not comply with s 88(4) of the Sentencing Act 1995 (WA) and were erroneous. Grounds 3, 4 and 5 allege implied error. Grounds 3 and 4 allege that the sentences on counts 1 and 3 respectively are manifestly inadequate only as to type. By ground 5, the appellant alleges that the overall total effective sentence infringed the first limb of the totality principle as to length and type.
2. On the assumption her Honour had the power to order both partial concurrency and partial suspension, the respondent accepts that the sentencing judge made the express error the subject of ground 2. He also accepts that the error was material and, consequently, this court's discretion to resentence the respondent is enlivened. He submitted that this court should not interfere with the overall total effective sentence or the orders for partial concurrency and partial suspension.
3. On 17 November 2022, this court unanimously made the following orders:
   1. The respondent's application to adduce additional evidence filed 18 March 2022 is granted.
   2. The appeal is allowed.
   3. The sentences, including orders for concurrency and cumulacy imposed by Barbagallo DCJ on 12 May 2021, are set aside.
   4. The respondent is resentenced as follows:

Count 1 - 3 years' immediate imprisonment

Count 2 - 2 years' immediate imprisonment

Count 3 - 3 years 6 months' immediate imprisonment

Count 4 - 12 months' immediate imprisonment

The sentence on count 2 is to be served concurrently with the sentence on count 1 and the sentence on count 4 is to be served concurrently with the sentence on count 3. The sentences on counts 1 and 3 are to be served cumulatively. The respondent is eligible for parole and the sentences are to commence on 5 November 2020.

1. For the avoidance of any doubt, the total effective sentence now imposed on the respondent is 6 years 6 months' imprisonment, with eligibility for parole, backdated to commence on 5 November 2020.
2. My reasons for making these orders are as follows.

1. There was no dispute in this court, nor before the sentencing judge, as to the facts of the respondent's offending which may be summarised as follows.
2. The respondent was, around the time of his offending, engaged in the business of dealing in methylamphetamine.
3. On 28 May 2020, police officers attended at the respondent's home in East Victoria Park. At the time, the respondent was not home, although a co‑accused was present. Police found a glove on the kitchen bench that contained two clipseal bags of methylamphetamine. A third quantity of methylamphetamine was found in a plastic wrapper inside the glove. In addition to the methylamphetamine in the glove, police found two other clipseal bags on the kitchen bench. A DNA profile consistent with the respondent's was found on the inside surfaces of the glove, the plastic wrapper and a clipseal bag on the kitchen bench. In total, the respondent possessed 26.01 g of methylamphetamine at purities that ranged between 35 ‑ 72% (count 1).
4. The police also found bags of cash in the master bedroom. The total amount of cash found in the bedroom was $107,270. A DNA profile consistent with the respondent's was found on a satchel in which the bulk of the cash ($74,960) was found. At the sentencing hearing, the respondent admitted that the cash was the proceeds of dealing in prohibited drugs. The respondent was sentenced on the basis that he was in joint possession of the bags of cash, although he did not have specific knowledge of the amounts (count 2).
5. Police also found, in the house and garage, items consistent with the respondent being engaged in the business of drug dealing, including multiple electronic scales, tick lists, rubber bands, clipseal bags and black disposable gloves.
6. The respondent was subsequently arrested and charged with counts 1 and 2. He was then released on bail.
7. On 5 November 2020, while the respondent was on bail, police again attended at the respondent's home. The respondent arrived at his house while the police were present. He was found to be carrying a bumbag with a pouch containing 25.8 g of methylamphetamine with a purity of 81%. In the bumbag, police also discovered three small clipseal bags containing 0.99 g, 0.18 g and 1.16 g of methylamphetamine, respectively. The total amount of methylamphetamine in the bumbag was 28.13 g (count 3).
8. Police conducted a search of the wardrobe in the respondent's bedroom and found $10,000 in cash in $50 notes. The police also found $595 in cash in the bumbag. The total amount of cash found by police was $10,595 (count 4). The police also discovered two mobile CIPHR phones. CIPHR phones are encrypted and are predominantly used by those involved in criminal activity to avoid being detected by law enforcement agencies. The respondent was arrested on 5 November 2020 and he remained in custody until he was sentenced by her Honour.

1. Her Honour comprehensively described the respondent's personal circumstances.[34] The respondent was born and raised in Perth and grew up in a close‑knit, loving and supportive family environment. His parents and his siblings continue to support him.
2. After completing year 12, the respondent completed an auto mechanic apprenticeship with a vehicle dealership. He continued to work in that dealership until he was about 25 years of age, after which he commenced work in his father's meat supply business. By the time the respondent was 29, he had worked his way up in the business to the position of an operational manager which was a time‑consuming and demanding role. The respondent did well financially and was able to build the home in East Victoria Park in which the offending occurred.
3. The respondent was introduced to cannabis when he was 14 years of age. It became a regular part of his life in his twenties. He first tried methylamphetamine at about the age of 25 after the breakdown of a relationship. In December 2016, the respondent commenced a relationship with a young woman. This relationship was highly problematic. The relationship continued until her tragic death in March 2019. The respondent found it difficult to cope with the turbulent and dysfunctional nature of the relationship and to manage the demands of his employment. The respondent increased his methylamphetamine use to the point where he became a regular user of the drug.
4. Following the young woman's death, the respondent increased his methylamphetamine use and began another relationship with a woman who was also a methylamphetamine user.
5. In mid-2019 the respondent, realising that he had become addicted to methylamphetamine, sought to detoxify himself at a facility in Albany, but, upon his return to Perth, resumed his methylamphetamine use.
6. In March 2020, the respondent was made redundant. Subsequently his methylamphetamine use worsened to the point where he had what the sentencing judge described as 'a $1,000 a day habit'.[35]
7. At the time he was sentenced, the respondent had no prior criminal history. Her Honour was provided with a number of references, including from his parents, siblings and a number of friends. The references spoke highly of the respondent.
8. Her Honour made reference to a report prepared by a clinical and forensic psychologist, Dr Phil Watts, dated 30 April 2021. Dr Watts administered a standardised psychological test, the Personality Assessment Inventory (PAI). This assessment did not indicate any major elevations in terms of anxiety, depression or major mental health issues. However, Dr Watts noted 'a very high elevation on the drug scale'.
9. In Dr Watts' opinion, had it not been for the turbulent relationship followed by the tragic death of the respondent's partner referred to earlier in these reasons, 'he would not have been in the criminal justice system' and that the respondent's drug use 'appears to be directly related to dealing with trauma and the selling of drugs to fund the habit'.
10. Towards the end of the report Dr Watts wrote:

To summarise my assessment, [the respondent] present [sic] with a pathological grief reaction and substance addiction as formal mental health issues. However, there were aspects in the PAI which suggest some interpersonal difficulties and his presentation was suggestive that he may have some autistic spectrum traits. The evidence was not clear that it would necessarily be at diagnosable levels; however, I suspect that there are ways in which he deals with interpersonal situations which are likely to be problematic for him. In a prison environment, these situations are likely to escalate and make it more difficult for him than the average offender.

1. Dr Watts concluded his report by observing that, as long as the respondent addressed his drug problem, his risk of reoffending was 'quite low'. Dr Watts added, 'However, he needs to address the drug problem and the way in which he deals with emotions which led to the drug use, before the court will be confident that he will not reoffend'.
2. While in custody on remand, the respondent completed four of the six units for a certificate 1 in business and a two‑day drug intervention program with the goal of being accepted into the Solid Steps rehabilitation program at Casuarina Prison.

1. Her Honour characterised the respondent's offending as 'very serious'. She observed that methylamphetamine is an extremely dangerous drug. She said that the respondent was 'living proof' of its dangerousness and how it had caused him 'immeasurable misery and damage in all aspects of your life'.[36] Her Honour stated that the addiction and damage caused by methylamphetamine was prevalent in the community and that the respondent's drug dealing had 'perpetuated this problem'.[37]
2. Her Honour stated that penalties imposed on drug dealers were 'significant' and that matters personal to an offender carry less weight than in other types of offending.
3. Her Honour identified the following aggravating factors:

(1) The quantities of drugs involved in counts 1 and 3. She specifically acknowledged that the quantity the subject of count 3 was a trafficable quantity of methylamphetamine which was subject to the greater statutory penalty of life imprisonment.

(2) The offending was not isolated. Rather, the respondent was conducting a drug‑dealing business in which he was the principal. Her Honour found, from the amount of money he possessed, that the respondent's business was 'very lucrative'. She said that the explanation that the respondent engaged in drug dealing to support his 'out‑of‑control drug habit' was not mitigatory. The explanation did not 'negate the damage and misery [the respondent's] drug dealing ravages upon his community'.[38]

(3) The respondent conducted his drug‑dealing business over a period of at least six months and, in all likelihood, much longer.

(4) Her Honour observed that on 28 May 2020, the respondent's drugs and money had been taken from him by the police and that, in order for him to engage in further drug offending, he must have acquired more drugs and sold them in order to acquire the significant amount of drugs and cash that he possessed on 5 November 2020.

(5) The respondent committed counts 3 and 4 while on bail for counts 1 and 2. Her Honour said that this showed that the respondent had 'no regard for the law'.[39]

1. Her Honour identified the following mitigating factors:

(1) The respondent's pleas of guilty. Her Honour found that the pleas of guilty on counts 1 and 2 were entered at an early stage in the proceedings and that that the pleas on counts 3 and 4 were entered on 'the earliest possible occasion'. On counts 1 and 2, her Honour reduced the sentences pursuant to s 9AA of the Sentencing Act by 20% and, on counts 3 and 4, by 25%.

(2) The respondent's antecedents.

(3) The matters referred to in Dr Watts' report, including the matters set out at [91] above.

(4) The respondent had no relevant prior criminal history and was sentenced on the basis that he was a person of prior good character, having regard to references that were provided to her Honour. Although her Honour accepted that the respondent was to be sentenced on this basis, she also said that the offending could not be said to be out of character because he had used illicit substances on a regular basis in the past and was dealing in those substances for quite some time before 28 May 2020 and then after, until his arrest on 5 November 2020.

(5) The respondent was genuinely remorseful.

(6) Having regard to such matters as his acceptance of responsibility, remorse, excellent work history and the support that he has outside the prison system, the respondent was 'in a better position than most who come before this court who wish to rehabilitate themselves'.[40]

(7) The respondent had been in custody since 5 November 2020 until the date of sentence. Her Honour stated that as she could not backdate a partially suspended sentence, she had 'taken that period of time into account when I have structured the sentence that you are to serve'.[41]

1. Grounds 1 and 2 are as follows:
   1. The sentencing judge erred in law by making orders for partial accumulation of the sentences for counts 1 and 2 upon the sentences for counts 3 and 4, in circumstances where the sentencing judge ordered that the aggregate term, or individual terms, be partly suspended.
   2. In the alternative to ground one, the sentencing judge erred in law by effectively ordering that the sentences imposed on counts 1 and 2 were to commence after 2 years of the sentences imposed on counts 3 and 4 had been served, such period extending beyond the earliest date on which the respondent could be released in relation to the sentences imposed on counts 3 and 4, contrary to s 88(4) Sentencing Act 1995 (WA). (the Act)
2. Although the ground refers to partial accumulation, s 88 of the Act speaks of partial concurrency and not partial accumulation.[42] This said, for practical purposes there is no difference between the two expressions.

1. By ground 1, the appellant, in effect, contends that, on a proper construction of the relevant provisions of the Act, particularly pts 11 and 13, a court sentencing an offender for more than one offence that makes a suspended or partly‑suspended imprisonment order under pt 11 has no power to make an order for partial concurrency pursuant to s 88, which appears in pt 13 of that Act. The appellant contends, in effect, that a consideration of issues of concurrency, cumulacy or partial concurrency may only be made in the event an offender breaches the suspended or partly suspended imprisonment order and is then dealt with for the breach, under s 80 of the Act. Accordingly, her Honour erred by making an order for partial concurrency under pt 13 at the time she made an order for partial suspension under pt 11 of the Act.
2. Ground 2 is expressed to be an alternative to ground 1. By ground 2, the appellant, in effect, contends that if her Honour was empowered to make an order for partial concurrency, pursuant to s 88 of the Act, and an order for partial suspension under pt 11, her Honour erred in her application of s 88(4) of the Act.

1. The respondent, in effect, contends that on a proper construction of the relevant provisions of the Act a court is empowered to make orders for partial concurrency and partial suspension. The respondent contends that her Honour did not err as alleged in ground 1.
2. However, the respondent concedes that her Honour erred in her application of s 88(4) of the Act and that ground 2 has been made out. The respondent also concedes that the error was material and that this court's jurisdiction to resentence the respondent has been enlivened.

The issues raised by grounds 1 and 2 and should they be decided by the court?

1. The issue raised by ground 1 is whether a court sentencing an offender for more than one offence is empowered to order both partial concurrency and partial suspension of the aggregate sentence. The issue is one of statutory construction and involves a consideration of the relationship between pt 11 and pt 13 of the Act. The relationship between these parts of the Act has been the subject of two recent decisions of this court: SBJ v The State of Western Australia[43] and Johnson v Vander Sanden,[44] the correctness of which has not been called into question in this appeal. However, neither case was concerned with the issue raised by ground 1.
2. Ground 1 raises a question of statutory construction not previously decided by this court which is of practical importance in the sentencing of offenders to suspended imprisonment for more than one offence. With great respect to Buss P and Vaughan JA, both of whom would prefer not to decide grounds 1 and 2 as the appeal should be allowed on grounds 3, 4 and 5, I would decide grounds 1 and 2.

1. The principles of statutory construction were recently summarised in Mohammedi v Bethune.[45] As the court in SBJ observed, the constructional task is to expound the meaning of the statutory text, not to divine unexpressed legislative intentions or to remedy perceived legislative inattention. Construction is not speculation and it is not repair.
2. In Project Blue Sky Inc v Australian Broadcasting Authority,[46] McHugh, Gummow, Kirby and Hayne JJ stated:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

The statutory framework relevant to grounds 1 and 2

1. The Act introduced significant reform to the law relating to the sentencing of offenders in Western Australia, including by broadening the sentencing options open to magistrates and judges. For the first time, a court sentencing an offender to imprisonment was empowered to suspend the whole (but, at that time, not part) of a term or an aggregate of terms of imprisonment by pt 11 of the Act, which included s 76.
2. At its commencement, the Act included pt 12. At that time, pt 12 dealt with the detention of young adult offenders. Part 12 was repealed in 1998.[47]
3. Also at its commencement, it was not possible for a sentencer to impose conditions upon the making of a suspended imprisonment order pursuant to pt 11 of the Act. For example, a court sentencing an offender to suspended imprisonment under pt 11 was unable to impose obligations upon an offender to require him or her to be supervised or to undertake programs designed to rehabilitate the offender.
4. However, in 2004, conditionally suspended imprisonment was introduced into the Act.[48] Parliament effected this change by the inclusion into the Act of a new pt 12.
5. A partly‑suspended imprisonment order was not a sentencing option until the commencement of the Sentencing Legislation Amendment Act 2016 (WA), which (among other measures) amended the Act by introducing s 4(4) which provides:

In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of -

(a) the whole of the term or terms; or

(b) part of the term or terms.

1. At the same time, s 76(1) was amended. From the commencement of the Act, until this amendment, s 76(1) empowered a court to order that 'the whole of a term of imprisonment or an aggregate of terms of imprisonment' terms be suspended. The amendment deleted the words 'the whole of', with the effect of enabling a court to impose, under s 76(1), a partly‑suspended term or terms of imprisonment.
2. While effective to confer the power, the shorthand drafting technique chosen by Parliament has posed difficulties which were the subject of comment by this court in SBJ.[49]
3. Before the commencement of the Act, the Criminal Code empowered a court to direct that sentences of imprisonment take effect concurrently or cumulatively. There was no power to provide for a sentence of imprisonment to be served partly concurrently with another sentence of imprisonment. The absence of such a power - and the potential benefits in being able to provide for a sentence to be in part cumulative upon another - had been the subject of judicial comment.[50] However, with the commencement of the Act, sentencers were empowered to do so.
4. Part 13 of the Act is concerned with imprisonment, in the sense of imprisonment that is to be immediately served.[51] Section 88 of the Act comes within pt 13 and is headed 'Concurrent, cumulative or partly cumulative terms'.
5. Parts 11, 12 and 13 of the Act must be construed in the context of the Act as a whole, including the following fundamental sentencing principles.
6. Section 6 sets out the general principles applicable to the sentencing of an offender for a State offence. Fundamentally, by s 6(1), a sentence must be commensurate with the seriousness of the offence. Section 6(4) states that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
7. The sentencing options available to a court sentencing an offender who is a natural person are set out in s 39(2) of the Act in an ascending order of seriousness. Section 39(3) stipulates that a court can only adopt a sentencing option in s 39(2) if it is satisfied that it is not appropriate to use an option listed before it. For present purposes, it is only necessary to refer to the sentencing options in s 39(2)(f) to (h) which confer power on a court sentencing an offender to, under pt 11, impose suspended imprisonment and order the release of the offender (s 39(2)(f)); under pt 12, impose conditionally suspended imprisonment (CSI) and order the release of the offender (s 39(2)(f)) or, under pt 13, impose a term of immediate imprisonment (s 39(2)(h)). For the reasons explained in SBJ,[52] there is no inconsistency between the imposition of a suspended imprisonment, partly suspended imprisonment and a CSI and the making of an order for the release of the offender.
8. Although s 39(2)(f) of the Act and pt 11 do not expressly refer to partly‑suspended imprisonment, in SBJ this court held that partly‑suspended imprisonment is a form of imprisonment imposed only under pt 11 and not, as contended for by the offender in that case, in part under pt 11 and in part under pt 13.[53] Further, as noted in SBJ, the power to partly suspend does not extend to the making of a CSI under pt 12, because the empowering provision in pt 12, s 81, has not been amended in the like manner to s 76.[54]
9. The focus of grounds 1 and 2 is upon pts 11 and 13 of the Act. Although the appellant was not sentenced to conditionally suspended imprisonment, I will refer to some of the provisions in pt 12 because they are related to submissions made by the appellant in the appeal.
10. Part 11 of the Act comprises ss 76 to 80. Section 76 relevantly includes subsections (1), (2) and (3), which state:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) Suspended imprisonment is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order; or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended. (emphasis added)

1. It may immediately be seen that s 76 of the Act contains four express restrictions of the power of the court to impose suspended imprisonment. First, suspended imprisonment is not available where the court sentences an offender to a term or an aggregate of terms that is more than 5 years in length (s 76(1)). Second, most importantly, suspended imprisonment is not available unless imprisonment for a term or terms equal to that suspended would be appropriate in all the circumstances, assuming it was not possible to suspend imprisonment (s 76(2)). Accordingly, the term of imprisonment provided for has to be appropriate in the circumstances. Third, suspended imprisonment is not available if a relevant offence was committed when the offender was subject to an early release order (s 76(3)(a)). Fourth, suspended imprisonment is not available if the offender is serving or is yet to serve a term of imprisonment that is not suspended (s 76(3)(b)).
2. Section 77 states:

(1) An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless -

(a) during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and

(b) a court makes an order under section 80.

(2) The suspension period begins on the day on which the sentence is imposed.

(3) If during the suspension period an offender is sentenced to imprisonment for another offence that was not committed during the suspension period, the suspension period continues to elapse while the offender is serving that sentence.

(4) An offender who is sentenced to suspended imprisonment is to be taken to be discharged from the sentence at the end of the suspension period.

(5) Subsection (4) does not affect the operation of subsection (1) or sections 78 to 80.

(6) For the purposes of a law other than this Part and Parts 12 and 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment.

1. Section 80 of the Act sets out how a person who breaches a suspended imprisonment order is to be dealt with. Section 80 relevantly includes subsections (1), (3) and (5), which state:

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

...

(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

...

(5) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -

(a) section 88 applies in respect of the term to be served; and

(b) the court may make a parole eligibility order under section 89,

as if the term to be served were a term of imprisonment being imposed by the court.

1. I will not refer at length to the provisions in pt 12 which comprise ss 81 to 84. However, I make these observations about pt 12. As in s 76(1), under s 81(1), a CSI is not available where the court sentences an offender to a term or an aggregate of terms that is more than 5 years in length. There are also common features between s 84F, which deals with how an offender who breaches a CSI is to be dealt with, and s 80. Section 84F(5) states:

(5) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -

(a) section 88 applies in respect of the term to be served; and

(b) the court may make a parole eligibility order,

as if the term to be served were a term of imprisonment being imposed by the court.

1. Section 84F(5) uses very similar language to s 80(5), although, unlike s 84F(5)(b), s 80(5)(b) specifies that the parole eligibility order is made 'under s 89'.
2. Part 13 comprises ss 85 to 97A. Section 85(1) sets out a number of definitions, including for the expression 'fixed term' and the word 'term'. These definitions state:

fixed term means a term that is not life imprisonment;

term means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment, but does not include -

(a) detention under a sentence imposed under section 279(5)(b) of The Criminal Code; or

(b) indefinite imprisonment;

For the purposes of this Part and Part 11 and for the purposes of the Sentence Administration Act 2003, the aggregate of 2 or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or partly concurrently or cumulatively.

1. Section 85(2) of the Act does not, in terms, apply its meaning of the word 'aggregate' to pt 12. This is so, notwithstanding that s 81 and pt 12 use the word 'aggregate' in a like manner to the use of the word 'aggregate' in s 76 in pt 11.
2. Section 85(2) has not always omitted a reference to pt 12. When the Act was originally enacted, s 85(2) applied for the purposes of pts 11 and 12. However, as already mentioned, at that time, pt 12 dealt with the detention of young adult offenders. It did not deal with conditionally suspended imprisonment. That, as I have explained, came later. Section 85(2), as originally enacted, also used the phrase 'concurrently or cumulatively or partly cumulative', rather than the current 'concurrent or partly concurrently or cumulatively'.
3. Section 85(2) as originally enacted was repealed and the current s 85(2) was inserted.[55] The new version omitted any reference to pt 12 and altered the subsection to include the phrase 'concurrently or partly concurrently or cumulatively'. The latter is consistent with a change then adopted in relation to s 88(3)(d).[56] At the time the new version of s 85(2) was inserted, there was no pt 12 to the Act.
4. On the insertion of pt 12 into the Act to provide for conditional suspended imprisonment, there was no amendment to s 85(2) of the Act, even though s 81, like s 76 in pt 11, used the expression 'an aggregate of terms of imprisonment'. This difference is curious, given that there is a strong commonality in the statutory provisions that empower a sentencing court to impose a sentence of suspended imprisonment or conditional suspended imprisonment, but it does not materially impact upon the task of statutory construction in this case.
5. Section 88 deals with concurrent, partly concurrent and cumulative terms. Relevantly, the section states:

(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).

(2) An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).

(3) If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously; or

(b) the offender is then also sentenced to serve another fixed term,

(c) the fixed term is to be served cumulatively on the other fixed term; or

(d) the fixed term is to be served partly concurrently with the other fixed term.

(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.

135 Thus, the default position is that fixed terms of imprisonment are to be served concurrently (s 88(1) and (2)). However, a sentencing court may order that a fixed term of imprisonment is to be served cumulatively on another fixed term (s 88(3)(c)). Alternatively, a sentencing court may order that a fixed term of imprisonment is to be served partly concurrently with another fixed term (s 88(3)(d)). Where the latter occurs, the sentencing court must observe the requirements of s 88(4), the failure to do so in the present case being the basis for ground 2.

1. As originally enacted, the Act contained s 88(6) which provided that s 88 did not apply to a sentence of suspended imprisonment. Section 88(6) was repealed in 1999. The Explanatory Notes to the Sentencing Legislation Amendment and Repeal Bill 1998 (cl 6) state that the subsection was deleted as a consequence of amendments to be made to s 80, most relevantly to effect the introduction of s 80(5) into the Act. No equivalent to the repealed s 88(6) appears in the current version of s 88.
2. It will be appreciated that I have sought to differentiate between the distinct statutory regimes found in each of pt 11 (suspended imprisonment), pt 12 (conditional suspended imprisonment) and pt 13 (immediate imprisonment). It is necessary to do so. In Johnson v Vander Sanden, this court stated, at [93]:

[T]he provisions of pt 13, in relation to imprisonment under that part, do not automatically apply to suspended imprisonment under pt 11 ... It is therefore necessary, in the case of each of the separate sentencing options in pt 11, pt 12 and pt 13, that (unless, in relation to a particular provision, a contrary intention appears) the courts' statutory powers, and the conditions on those powers, be found within each part itself.

1. Thus, the court's powers in relation to a particular sentencing option are ordinarily found in the part of the Act dealing with that option. This is subject to contrary intention appearing from the relevant statutory provisions. It follows that the power in pt 13 under s 88(3)(d) to order that a fixed term is to be served partly concurrently with another fixed term will only apply to partly‑suspended imprisonment under pt 11 where the Act reveals a statutory intention to that effect. As I will explain, in my opinion, the Act reveals such an intention and that her Honour was empowered to order partial concurrency and partial suspensions of the terms of imprisonment she imposed.

1. The appellant's written submissions in support of ground 1 are sparse. The appellant merely referred to s 80(5) and its analogue in pt 12, s 84F(5), read with s 88(3), without analysing or even setting out their text. In large measure, the appellant's written submissions rely on observations made by this court in two cases, Morgan v The State of Western Australia [No 2][57] and The State of Western Australia v Richards,[58] which the appellant submits support the proposition that a court imposing a partly‑suspended term of imprisonment cannot also, at the same time, order partial concurrency.
2. In a letter addressed to the Court, dated 22 March 2022, the then Director of Public Prosecutions, Ms Forrester SC, who also appeared as counsel for the appellant at the hearing of the appeal, drew the Court's attention to s 85(2) of the Act which, it was acknowledged, had not been addressed in the written submissions. The letter then stated:

It is the appellant's position in Ground 1 that, on the application of Morgan and Richards, the sentencing judge was in error. However, in neither of those decision was the interaction between sections 76 and 85(2) of the Act addressed. It may be that those provisions resolve the issue, at least in relation to pt 11 (suspended sentences). It is noted that pt 12 is not referred to in s 85(2).

1. In oral submissions, Ms Forrester SC accepted that it would be logical for a court to decide the individual terms of imprisonment and then, having regard to s 88 of the Act, questions of concurrency, cumulacy or partial concurrency before deciding whether there should be suspension.[59] However, Ms Forrester SC submitted that there was 'significant authority' (apparently SBJ and cases decided after it) which state that the provisions in pt 13 (in particular s 88) could not be applied when sentencing a person to suspended imprisonment under pt 11.[60] Ms Forrester SC said that she sought 'resolution' of this question, having observed that s 85(2) may be of significance.

1. The respondent submitted that a court sentencing an offender in respect of more than one offence is authorised, by the relevant provisions of the Act, to make an order for both partial concurrency and partial suspension. The respondent submitted that the introductory words used in s 76(1) make it clear that a necessary condition for the exercise of the power to make an order that a term of imprisonment be suspended under pt 11 is that the court has, or is, sentencing an offender to a term of imprisonment or an aggregate of terms of imprisonment of 60 months or less, s 88 must operate before a sentencing judge makes an order under s 76(1) to ensure that the aggregate of terms complies with the requirement that it be 60 months or less.
2. The respondent submitted that the phrase 'aggregate of terms of imprisonment' necessarily contemplates that a sentencing court would consider whether to make an order under s 76(1) in circumstances in which the power in s 88(3)(c) had already been exercised. This is consistent with the evident statutory intent that the determination of the length of the aggregate sentence is a mandatorily relevant consideration in relation to the exercise of the power in s 76(1).

1. The provisions of pt 11 of the Act, properly construed, reveal a statutory intent that s 88 applies when a court imposes suspended imprisonment. That is the case whether the suspended imprisonment is for the whole or part of the term of imprisonment. Relevantly:
   1. Suspended imprisonment (whether for the whole or part of the term) is imposed under s 76(1) of the Act.
   2. The decision to impose suspended imprisonment necessarily requires, as a first step, a determination that a term or terms of imprisonment is appropriate in all the circumstances.[61] That logically follows from and is a consequence of ss 76(1) and 76(2). As was explained in Johnson v Vander Sanden:

In that context the expression 'term of imprisonment' in s 76(1) can only mean a term of imprisonment that is (save for the possibility of suspension) 'to be served'. That is, it means a term of imprisonment that (in the absence of the power of suspension) would otherwise be imposed in accordance with pt 13. The 'term of imprisonment' logically precedes any order of the court that it 'be suspended'.[62] (footnotes omitted)

1. In Dinsdale v The Queen Gleeson CJ & Hayne J identified the specific integers in considering whether to impose a sentence of suspended imprisonment (a CSI was not an available sentencing option). There, in describing the approach to the kind of sentence to be imposed - in a case that required a choice between suspended imprisonment and a term of immediate imprisonment - their Honours said that the sentencing court must determine, under s 6(4), whether imprisonment is warranted and, under s 76(2), must 'fix' the length of the term which would otherwise be appropriate.[63] Those steps are in addition to, but naturally precede, the need to decide whether suspended imprisonment is an appropriate sentencing disposition.
2. The logical necessity to fix the length of the term or terms of imprisonment that would be appropriate in all the circumstances is also inherent in s 76(1). The court must do so to be in a position to conclude that the term or the aggregate of the terms is for a period of 5 years or less, thereby satisfying the condition in s 76(1) for the imposition of suspended imprisonment. So too s 80(1) is premised on the court fixing the length of the term or terms of imprisonment that would be appropriate in all the circumstances. A re-offender may be dealt with by ordering him or her to serve the whole or part of the term or terms of imprisonment that were suspended (s 80(1)(a) & (b)). That cannot be done unless the court fixes the term or terms at the time of imposing suspended imprisonment.
3. The court's determination, for the purpose of s 76(2), that imprisonment for a term or terms equal to that suspended would be appropriate in all the circumstances is not an abstract exercise.[64] It is necessarily informed by and must be reached conformably with the principles that ground the Act. Those principles include the totality principle[65] - a matter of significance to the State's contention by ground 1 insofar as s 88 self-evidently provides for statutory rules and powers of relevance to the operation of the totality principle. In determining that imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances, the court must have regard to the total effective period of imprisonment it would otherwise be appropriate to impose.
4. In that context, s 88 of the Act must apply for the purpose of fixing, under s 76(2), the length of the term or terms of imprisonment that would otherwise be appropriate in all the circumstances. The determination of an 'appropriate' term or terms of imprisonment, conformably with the principles that ground the Act, requires the application of s 88. The contrary would be incompatible with the structure of the Act. The power to impose suspended imprisonment under s 76 imports s 88 in the same way that, in respect of the accepted application of s 86 to suspended imprisonment under pt 11, a term of imprisonment that would be contrary to a statutory prohibition could not, at the same time, be appropriate.[66]
5. These reasons for concluding that the provisions of pt 11 of the Act, properly construed, in their context reveal a statutory intent that s 88 applies when a court imposes suspended imprisonment, do not rely on s 85(2).
6. It is necessary to test the construction by reference to s 85(2). Section 85(2) forms part of the statutory context and, so far as it gives content and meaning to the word 'aggregate' (as used in s 76(1)), forms part of the relevant statutory text. But nothing in s 85(2) detracts from the conclusion that, properly construed, s 88 applies when a court imposes suspended imprisonment. To the contrary s 85(2) supports that construction.
7. Section 85(2) is expressed to apply to pt 11. It provides, relevantly and in effect, that the 'aggregate' of two or more fixed terms is the 'total effective period of imprisonment' having regard to whether the terms are to be served 'concurrently or partly concurrently or cumulatively'. This again, in substance, imports s 88. Identification of whether, in terms of s 76(1), suspended imprisonment is precluded because the court would sentence the offender to an aggregate of terms of imprisonment of more than 5 years requires consideration of matters of concurrency and cumulacy. That can only be necessary as - consistent with the earlier discussion - the provisions of pt 11 of the Act, properly construed, reveal a statutory intent that s 88 applies when a court imposes suspended imprisonment.
8. So understood, s 85(2) is consistent with, and supports, my conclusion that the provisions of pt 11 of the Act, properly construed, reveal a statutory intent that s 88 applies when a court imposes suspended imprisonment.
9. In my opinion, there is no other reasonable way to construe the expression in s 76(1), 'an aggregate of terms of imprisonment'. A possible alternative is to ascribe to the expression a mere totting up of the appropriate individual terms of imprisonment without any consideration of concurrency, cumulacy or partial concurrency. Such a construction would be inconsistent with the totality principle and would have the consequence that a court imposing immediate imprisonment would have available to it the approaches set out in s 88 of the Act, yet a court considering a suspended imprisonment order would not have available to it those options.
10. A possible barrier to the application of s 88 to s 76(1) of the Act is the stipulation in s 77 that an offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless, during the suspension period, the offender commits an offence the statutory penalty for which is or includes imprisonment and the court makes an order under s 80. It might be thought that as an offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended, this precludes the operation of s 88 which applies to offenders who are to serve terms, whether concurrently (s 88(1) and (2)), cumulatively (s 88(3)(c)) or partly concurrently (s 88(3)(d)).
11. In my opinion, the provisions can and should be construed to apply harmoniously. As explained, logically, issues of concurrency, cumulacy or partial concurrency are to be determined at the sentencing process before the decision whether to suspend is made. In doing so the sentencing court decides the issue of concurrency, cumulacy or partial concurrency as if the offender was required to serve the terms of imprisonment. In this way, s 88 may be applied despite it being expressed as applying to offenders who are to serve terms of imprisonment.
12. I now turn to some of the appellant's submissions and the cases.
13. The State's reliance on s 80(5) (and the cognate provision in s 84F(5)) is misplaced. Section 80(5) is facultative. It allows a sentencing court to apply the powers in ss 88 and 89 in the event that the court is called on to deal with a reoffender and the court determines that the offender is to serve the whole or part of the suspended imprisonment.
14. In context, it is easy to see why it is desirable that these powers should be available at this time as, necessarily, the offender will have reoffended by committing an offence for which the statutory penalty is or includes imprisonment. It is likely that totality considerations will arise in respect of any order under ss 80(1)(a) or 80(1)(b). The sentencing court may also be dealing with the further offence or offences. That will commonly be the preferable course. Alternatively, the sentencing court may be called upon to consider how its order under ss 80(1)(a) or 80(1)(b) interacts with the sentence imposed for any further offence or offences.
15. In any case, s 80(5) speaks to the court's powers at a date after the determination to impose suspended imprisonment under s 76 of the Act. So understood, nothing in s 80(5) controls or restricts the sentencing court's power under s 76. The mere fact that s 88 applies at this later time, putting beyond doubt court's power to provide for concurrency, cumulacy or partially concurrency in the changed context of an order under s 80(5)(a) or s 80(5)(b) says nothing as to the court's power to impose suspended imprisonment under s 76.
16. As mentioned, Ms Forrester SC accepted that despite it being logical to apply s 88 before turning to the question of suspension, she noted that there was 'significant authority' which stated that the provisions in pt 13 (in particular, s 88) could not be applied when sentencing a person to suspended imprisonment under pt 11.
17. In SBJ,[67] it was stated, 'The provisions of pt 13 to not apply to a partly suspended term of imprisonment'. This statement must be understood in its context. In SBJ, the issues raised for determination were only the applicability of pt 13's provision as to backdating (s 87) and parole eligibility (s 89) to suspended imprisonment under pt 11. The court decided that there was no power to backdate the commencement of partly suspended imprisonment, nor is there power to make a parole eligibility order.
18. The broad statement made in SBJ was explained in the subsequent decision of this court in Johnson v Vander Sanden. There, the court was called upon to decide whether the prohibition in s 86, which appears in pt 13 and provides that, subject to certain exceptions, the court must not impose a term of imprisonment of 6 months or less, applied to the imposition of suspended imprisonment. The court held that the prohibition in s 86 applied. The court's reasoning included the statement referred to in [137] above. The point which is relevant for present purposes is that the court in Johnson v Vander Sanden held that the provisions of pt 13 in relation to immediate imprisonment do not automatically apply to suspended imprisonment under pt 11, but may apply where the Act reveals a statutory intention to that effect, as in the present case.
19. Since the decision in SBJ, there have been several cases decided in this court in which statements have been made to the effect that a court sentencing an offender to suspended imprisonment is not required to decide questions of accumulation at the time the suspended imprisonment order is made. Rather, it has been said these are questions to be decided in the event that a court is required to resentence the offender after a breach of the order. The relevant cases are Nguyen v The State of Western Australia;[68] Morgan v The State of Western Australia [No 2];[69] Dillon v The State of Western Australia[70] and The State of Western Australia v Richards.[71]
20. The statements made in these cases are obiter dicta. In none of the cases was the court asked to, or indeed required, to analyse the relevant statutory provisions in the Act or decide the issues raised in this appeal.

1. Ground 2 depends upon an acceptance that s 88 of the Sentencing Act applies to a suspended sentence (including a partially suspended sentence) under pt 11. As my reasons in respect of ground 1 show, s 88 applies.
2. The issue in ground 2, is whether her Honour erred by failing to apply s 88(4) when she made her orders for partial concurrency. The respondent accepts that her Honour made the error alleged in ground 2. This concession should be accepted for the reasons explained below.
3. For convenience, I will repeat subsections 88(3) and 88(4) of the Sentencing Act:

(3) If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously; or

(b) the offender is then also sentenced to serve another fixed term,

(c) the fixed term is to be served cumulatively on the other fixed term; or

(d) the fixed term is to be served partly concurrently with the other fixed term.

(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.

165 Relevantly to this appeal, the effect of these provisions is that, at the time an offender is sentenced to one or more fixed terms of imprisonment, the sentencing court may order that a fixed term is to be served partly concurrently with the other fixed term. When this occurs, the court must specify the period of the fixed term that is to be served before the partly concurrent term is to begin.

1. I immediately note that her Honour did not refer to s 88(3) and s 88(4) of the Sentencing Act in making her orders for partial concurrency and did not address their requirements in her sentencing remarks.
2. As already stated, her Honour ordered that the sentences on count 1 (3 years' imprisonment) and count 2 (2 years' imprisonment) be served concurrently, thus making the total sentence for the offences committed on 28 May 2020 3 years' imprisonment. Her Honour also ordered that the sentence on count 3 (3 years 6 months' imprisonment) and count 4 (1 year imprisonment) be served concurrently, thus making the total sentence for the offences committed on 5 November 2020 3 years 6 months' imprisonment.
3. For the purposes of analysing ground 2, it is only necessary to refer to the fixed term of imprisonment on count 1 (3 years' imprisonment) and count 3 (3 years 6' months imprisonment) as the terms on counts 2 and 4 were ordered to be served concurrently.
4. It is apparent from her Honour's sentencing remarks and the certificate of final outcome that the sentence on count 3 was designated as the head sentence should be considered to be 'the other fixed term' for the purposes of s 88(3)(d) and s 88(4) of the Sentencing Act. The sentence on count 1 should be considered to be 'the fixed term to be served partly concurrently with the other fixed term' for the purposes of s 88(3)(d) and s 88(4) of the Sentencing Act.
5. Her Honour did not expressly specify the period of the sentence on count 3 which was to be served before the sentence on count 1 was to begin. However, her Honour did state that 1 year 6 months of the sentence on count 1 was to be served, as she put it, cumulatively upon the 3 years 6 months' term imposed on count 3. As the sentence on count 1 was 3 years' imprisonment, it should be inferred that her Honour intended the sentence on count 1 begin after the respondent had served 2 years of the sentence on count 3.
6. This falls foul on the stipulation on s 88(4) that the period of the other fixed term that is to be served must not extend beyond the earliest date on which the offender could be released (whether on parole or not) because the period of 2 years is longer than the term of 20 months' imprisonment the respondent must serve before he is released under the partially suspended imprisonment order. Accordingly, s 88(4) has been infringed and ground 2 has been made out. As the respondent accepts, the error is a material error.

1. By grounds 3 and 4, the appellant challenges the individual sentences imposed on counts 1 and 3 respectively, but only as to the type of sentence that was imposed. The State does not challenge the length of these sentences.
2. In essence, the State submits that having regard to the circumstances of each offence, the relevant sentencing principles with respect to offences of the type under consideration and, on count 3, the fact that it was committed on bail, it was not open to her Honour to impose a partly‑suspended term of imprisonment, or any suspended imprisonment order, and that the only appropriate sentence was a term of immediate imprisonment.
3. It is to be noted that there is no ground of appeal specifically directed at the individual sentences on counts 2 and 4. As explained by Ms Forrester SC for the appellant, this is because if grounds 3 and 4 are upheld, it would be necessary to resentence the respondent on counts 2 and 4.[72] If immediate terms of imprisonment were ordered in respect of either counts 1 or 3, suspended imprisonment would not be available on counts 2 or 4 having regard to the operation of s 76(3)(b) or its analogue in pt 12, s 81(3)(b) of the Sentencing Act.
4. By ground 5, the appellant contends that the total effective sentence imposed at first instance infringed the first limb of the totality principle as to length and type. The State submits that having regard to the seriousness of the respondent's overall offending, the relevant sentencing principles and that the respondent committed counts 3 and 4 on bail, her Honour, notwithstanding the mitigating factors, should have imposed a longer total term of imprisonment to be immediately served.
5. On behalf of the respondent, it was accepted that the respondent's offending was serious, and that the offending on counts 3 and 4 was aggravated by being committed while the respondent was on bail for counts 1 and 2. It was acknowledged that, as a matter of fact, the sentence for offences of possession of a prohibited drug such as methylamphetamine with intent to sell or supply, other than exceptional instances, were met with terms of immediate imprisonment. However, it was submitted on behalf of the respondent that having regard to his early pleas of guilty, his remorse, his prior good character, his favourable prospects of rehabilitation, and that the genesis of his drug use and involvement in the distribution of drugs was the tragic death of his partner, it was open to her Honour to impose on the respondent partially concurrent and partially suspended sentences of imprisonment in the manner she did.

1. Grounds 3, 4 and 5 allege implied or inferred error on the part of the sentencing judge. The general principles applicable to a claim of implied error are well established and have been explained in many cases, including Kabambi v The State of Western Australia[73] as follows:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. The principles applicable to suspended sentences for serious drug offences were explained by McLure P (Owen & Wheeler JJA agreeing) in Cartwright v The State of Western Australia.[74] See also, The State of Western Australia v Egeland.[75]
2. As explained by Mitchell JA and me in Egeland, when a sentence is said to be manifestly inadequate as to type, the question for this court is whether it was reasonably open to the sentencing judge, upon application of all of the relevant sentencing principles and considerations and in all the circumstances, to fail to be satisfied that earlier listed sentencing options in s 39(2) of the Sentencing Act were inappropriate.[76]
3. It is well established that the major sentencing considerations for offences of dealing or trafficking dangerous drugs such as methylamphetamine 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 offending was committed for personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. Even in cases where an offender is youthful, of prior good character and has taken positive steps towards rehabilitation, the imposition of a term of immediate imprisonment is a matter of fact almost always imposed.

1. The maximum penalty for count 1 is 25 years' imprisonment and/or a fine of $100,000. The maximum penalty for count 3, because it involved a trafficable quantity of methylamphetamine (28 g or more), is life imprisonment.
2. While the quantities of methylamphetamine involved in counts 1 and 3 were not as great as in some cases seen by this court, the quantities of methylamphetamine were, nevertheless, significant. So, too, were the purities of the drug in each count. The respondent was engaged in a drug dealing enterprise which was largely motivated by personal profit. The offending is not mitigated by the respondent's methylamphetamine addiction, although this provides an explanation for the offending.
3. Specifically with respect to count 3, as stated by the sentencing judge and acknowledged on behalf of the respondent, its commission was aggravated by the respondent being on bail for counts 1 and 2.
4. The mitigating factors identified earlier in these reasons must be acknowledged. Although the respondent is not a youthful offender, his antecedents are favourable, as are his prospects for rehabilitation. The pleas of guilty were entered at an early stage in the proceedings, and were accompanied by genuine remorse. In combination, they are significant, but, in accordance with the principles referred to in Cartwright and Egeland above, they do not, in my opinion, constitute the kind of exceptional circumstances which would lead me to conclude suspended imprisonment was open in this case. Put another way, having regard to all of the circumstances, the offending in each of counts 1 and 3 was simply too serious to appropriately permit the imposition of a suspended term of imprisonment of any kind. The only appropriate disposition for the offences was a term of immediate imprisonment.
5. Grounds 3 and 4 have been made out.

1. The appellant submitted that the total effective sentence imposed by her Honour infringed the first limb of the totality principle, both as to length and type. The appellant submitted that the respondent's overall criminality was significant because it reflected drug dealing for commercial purposes over a significant period of time and was not deterred by his arrest on counts 1 and 2. The offending the subject of each count was separate and distinct and warranted greater accumulation. The appellant contended that, notwithstanding the mitigating factors, the respondent should have been sentenced to a significantly longer period of imprisonment.
2. It was submitted on behalf of the respondent that, notwithstanding the serious features of the respondent's overall offending, having regard to the mitigating factors and the respondent's steps towards rehabilitation, the total effective sentence imposed did not infringe the first limb of the totality principle.

1. The real issue in respect of ground 5 is the length of the total effective sentence of 5 years. Given that suspended imprisonment on counts 1 and 3 was inappropriate, an order for suspended imprisonment was not open - see s 76(3)(b) and s 81(3)(b) of the Sentencing Act. There is no dispute that the respondent's overall offending was very serious. It involved dealing in methylamphetamine over a relatively extended period of time, in part, at least, for profit. The extent of the profit cannot be precisely ascertained, but the presence of in excess of $100,000 in cash, the subject of count 2, indicates that the respondent's drug dealing derived a substantial commercial gain. Counts 3 and 4 were committed some five months after counts 1 and 2 and, as already observed, when the respondent was on bail for counts 1 and 2. While the amount of cash in count 4 was relatively modest compared to the cash the subject of count 2, it nevertheless showed that the respondent had recommenced his drug dealing and derived some commercial gain from it. The commission of counts 3 and 4 show, in my opinion, that personal deterrence, along with general deterrence, was a highly relevant sentencing factor.
2. It cannot be overlooked that count 3 was subject to the greater maximum penalty of life imprisonment. Although the length of the sentence of count 3 has not been challenged, it was, on any analysis, lenient.
3. In its written submissions, the appellant cited, as broadly comparable cases, Fernandes v The State of Western Australia;[77] Wickham v The State of Western Australia;[78] Lynch v The State of Western Australia;[79] The State of Western Australia v Charles;[80] Kirkup v The State of Western Australia;[81] EDU v The State of Western Australia[82] and Cochrane v The State of Western Australia.[83]
4. Of these cases, only Cochrane was decided after the increase in the maximum penalty for a trafficable quantity of methylamphetamine to life imprisonment, which occurred as a result of the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA).
5. I have also considered a number of cases decided since the increase in the maximum penalty to life imprisonment, including those discussed in Cochrane, being HSV v The State of Western Australia;[84] Musulin v The State of Western Australia;[85] McConnell v The State of Western Australia;[86] The State of Western Australia v Delaney;[87] Staiger v The State of Western Australia;[88] Baker v The State of Western Australia;[89] Moodley v The State of Western Australia;[90] SYL v The State of Western Australia;[91] Blasco v The State of Western Australia;[92] Trainor v The State of Western Australia;[93] Nickson v The State of Western Australia;[94] Ramachandran v The State of Western Australia;[95] The State of Western Australia v MDZ;[96] McGrath v The State of Western Australia[97] and Watson v The State of Western Australia.[98]
6. The facts and circumstances of these cases vary considerably. Having evaluated the respondent's overall criminality, which I regard as serious, and having regard to the respondent's personal circumstances, which are favourable, and the other mitigating factors identified by the sentencing judge and all relevant sentencing considerations and principles, it was not open to the primary judge to order partial concurrency of the sentences. While some concurrency was required (as between each of counts 1 and 2, on the one hand, and counts 3 and 4, on the other), having regard to the totality principle, the orders for partial concurrency as between count 1 (to which count 2 was concurrent) and count 3 (to which count 4 was concurrent) resulted in an overall term of imprisonment which was not commensurate with the overall seriousness of the offences committed by the respondent and thus infringed the first limb of the totality principle.
7. Ground 5 has been made out.

1. There is a residual discretion under s 31(4)(a) of the Criminal Appeals Act to dismiss a State appeal against sentence, notwithstanding that appellable error has been established. The onus is on the State to negate any reason why the residual discretion should be exercised. While the respondent bears no onus, in the respondent's written submissions he expressly acknowledges that there is no basis for the residual discretion to be applied in this favour. The intervention of this court is required because s 88(4) was not complied with and to ensure that proper sentencing standards for the offences of the kind committed by the respondent are maintained. In my view, there is no reason for the residual discretion to be exercised in favour of the respondent.

1. It is necessary for this court to resentence the respondent.
2. I will not repeat what I have already written about the facts of the respondent's offending, his personal circumstances, the mitigating and aggravating factors and the relevant sentencing principles applicable to the sentencing of offenders for serious drug offences.
3. The State has not challenged the length of the individual sentences imposed at first instance. This is a relevant and significant matter in resentencing the respondent. The individual sentences, imposed at first instance, especially in respect of count 3, were lenient.
4. For the purpose of resentencing, the respondent, by an application in an appeal on 18 March 2022, sought leave to adduce as additional evidence in the appeal the affidavit of his solicitor, Nicholas Jeremy Terry, sworn 17 March 2022. Mr Terry's affidavit annexes documents relevant to the respondent's resentencing, including:

(a) a letter from the respondent addressed to this court, dated 16 March 2022;
>
> (b) a letter from Margaret Mwangi, Recover Program Worker at Solid Steps AOD Recovery Program, which is undated;
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> (c) a certificate of completion for stage 1 and 2 of the Solid Steps AOD Recovery Program, dated 24 October 2021 and 16 January 2022, respectively;
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> (d) a letter from Letitia Stocker, the respondent's sister, dated 13 March 2022;
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> (e) a letter from Nicholas Peter Stocker and Jessica Lee Garrett, the respondent's brother and his partner, dated 15 March 2022;
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> (f) a letter from Paul Palermi, who has known the respondent since 2006, dated 12 March 2022; and
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> (g) a letter from Peter and Mary Stocker, the respondent's parents, dated 15 March 2022.

5. I have read this material. The effect of it is to show that the respondent has continued to participate in rehabilitation programs since his sentencing and appears to be progressing well towards his rehabilitation. The appellant has not challenged any of this material. As the additional evidence is relevant to the respondent's resentencing, the application for leave to adduce additional evidence should be granted.
6. I acknowledge the mitigating factors found by the sentencing judge. I would, pursuant to s 9AA of the Sentencing Act, give a discount for the respondent's pleas of guilty in respect of counts 1 and 2 of 20% and, in respect of counts 3 and 4, 25%.
7. The additional material now relied upon by the respondent indicates that the respondent has continued, in custody, to pursue his rehabilitation for methylamphetamine addiction and appears to have improved both physically and psychologically since he was sentenced. Along with the materials that were before the sentencing judge, this additional evidence shows that the respondent is committed to his rehabilitation and that there is cause for some optimism in this regard.
8. However, it must be recognised that the respondent's offending was serious. Over a significant period of time, he was engaged in dealing in methylamphetamine, in part, for profit. As I have observed, it is a significant aggravating factor that counts 3 and 4 were committed despite the respondent being on bail for counts 1 and 2, and that count 3, unlike count 1, was subject to the increased maximum penalty of life imprisonment.
9. The major sentencing considerations for offences of the kind committed by the respondent are personal and general deterrence. In the present case, general deterrence looms large. While acknowledging that matters personal to the respondent are favourable to him, it must also be acknowledged that these are matters of less significance, having regard to the need for deterrence.
10. Plainly, having regard to what I have already said in disposing of the grounds of appeal, the only sentencing option open in all of the circumstances for each offence was a term of imprisonment to be immediately served.
11. I regard the individual sentences are lenient. That is especially the case with count 3. However, I consider it appropriate to adopt them for the purpose of resentencing. This is a State appeal. The State made no challenge to the adequacy of the individual sentences. While lenient the individual sentences are, in my view, open - albeit at the lower end of what I consider to be open. Finally, in adopting the individual sentences as imposed by the sentencing judge I take into account the continuing rehabilitative steps undertaken by the respondent.
12. As between counts 1 and 2, count 2 is a serious offence involving a considerable sum of money which was derived from drug dealing. But for totality, I would have ordered the sentences on counts 1 and 2 to be served cumulatively. I would order that the sentences on counts 3 and 4 be served concurrently, principally because the sum of money the subject of count 4 was relatively modest.
13. In my opinion, an appropriate total effective sentence, bearing in mind the respondent's overall criminality, all other relevant circumstances including the mitigating factors, and having regard to the relevant sentencing principles applicable to offending of the kind engaged in by the respondent, is 6 years 6 months' imprisonment. I would achieve this by ordering that the sentences on counts 1 and 3 be served cumulatively and that the other sentences be served concurrently.
14. The respondent should be made eligible for parole and the total effective sentence should commence on 5 November 2020 to take into account the periods the respondent has spent in custody. The State did not oppose the backdating of the sentences and did not object to eligibility for parole.

1. I agree with Mazza JA's reasons for upholding grounds 3 - 5. I also agree with his Honour's determination that there is no reason to exercise the residual discretion in the respondent's favour. Finally, I agree with Mazza JA's resentencing disposition.
2. It is for those reasons that I agreed with and joined in the orders of the court made 17 November 2022.
3. I would not determine grounds 1 - 2. It is unnecessary to do so insofar as I would allow the appeal by upholding grounds 3 - 5. The reasons of Buss P demonstrate that ground 1 requires close and careful consideration of authorities and issues that were not addressed by the parties in the context of the appeal hearing. I agree that when the issue raised by ground 1 next presents itself in this court it would be appropriate to convene a bench of five judges to hear argument as to the issue in the context more generally of the interaction between pt 11 and pt 13 of the Sentencing Act 1995 (WA).

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

[1] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 (Mazza, Beech & Pritchard JJA).

[2] Farquhar v The State of Western Australia [2005] WASCA 49 (Malcolm CJ, Roberts‑Smith & Pullin JJA).

[3] Hull v The State of Western Australia [2005] WASCA 194; (2005) 156 A Crim R 414 (Wheeler & Roberts‑Smith JJA).

[4] Egan v The State of Western Australia [2007] WASCA 182 (Wheeler, Pullin & Buss JJA).

[5] Sunfly v The State of Western Australia [2009] WASCA 22 (Steytler P, McLure & Miller JJA).

[6] CJ v The State of Western Australia [2009] WASCA 42 (McLure, Buss & Miller JJA).

[7] Abdullah v The State of Western Australia [2011] WASCA 21 (McLure P, Newnes JA & Mazza J).

[8] BGR v The State of Western Australia [2014] WASCA 82 (McLure P & Pullin JA).

[9] NJB v The State of Western Australia [2016] WASCA 114 (McLure P, Mazza JA & Mitchell J).

[10] Nayna v The State of Western Australia [2016] WASCA 169 (Buss P, Mazza & Mitchell JJA).

[11] Heedes v The State of Western Australia [No 2] [2008] WASCA 142 (Buss JA, Miller JA & Murray AJA).

[12] The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 (Steytler P & Wheeler JA).

[13] The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 (Owen, Wheeler & Buss JJA).

[14] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 (Owen & Wheeler JJA).

[15] Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39 [24] ‑ [28] (Heerey, Moore & Goldberg JJ).

[16] Klewer v Attorney General (NSW) [2010] NSWCA 219 [18] ‑ [21] (McColl & Campbell JJA & Sackville AJA).

[17] Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 [121] (Sackville AJA; McColl & Basten JJA agreeing).

[18] Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595 [23] (Branson & Finkelstein JJ).

[19] Evans v The State of Western Australia [2019] WASCA 73.

[20] Nguyen v The State of Western Australia [2019] WASCA 149 (Buss P, Mazza & Mitchell JJA).

[21] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 (Buss P, Mazza & Mitchell JJA).

[22] Dillon v The State of Western Australia [2020] WASCA 24 (Buss P & Mitchell JA).

[23] The State of Western Australia v Richards [2020] WASCA 129 (Buss P, Mitchell & Beech JJA).

[24] Johnson v Vander Sanden [2021] WASCA 27; (2021) 57 WAR 209.

[25] Re Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354 (Steytler J; Kennedy, Pidgeon, White & Wheeler JJ agreeing).

[26] Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159 [24] ‑ [26] (Steytler P, Wheeler, Roberts‑Smith, McLure & Pullin JJA).

[27] Willoughby v Clayton Utz [2007] WASCA 5 [37] (Wheeler JA; Steytler P agreeing).

[28] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [83] ‑ [87] (Heydon J).

[29] Brewerton v The State of Western Australia [2017] WASCA 191 [34] (Martin CJ, Mazza & Mitchell JJA).

[30] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [22] (Wheeler JA).

[31] Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [57] (Buss P, Murphy JA & Allanson J).

[32] Count 1 is contrary to s 6(1)(a), read with s 34(1)(aa) of the Misuse of Drugs Act 1981 (WA). Counts 2 and 4 are contrary to s 417(1) of the Criminal Code (WA). Count 3 is contrary to s 6(1)(d), read with s 34(1)(a) of the Misuse of Drugs Act.

[42] The expression 'partly cumulative' appeared in s 88 of the Sentencing Act as originally enacted. In 1999, the expression was deleted and replaced with 'partly concurrently'. This expression has been used in all subsequent versions of the Act.

[43] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310.

[44] Johnson v Vander Sanden [2021] WASCA 27; (2021) 57 WAR 209.

[45] Mohammedi v Bethune [2018] WASCA 98 [31] ‑ [36].

[46] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].

[48] See s 5 of the Sentencing Legislation Amendment Act 2004 (WA).

[49] SBJ v The State of Western Australia [103], [137].

[50] Magee v The Queen [1980] WAR 117, 119; Mickelberg v The Queen (1984) 13 A Crim R 365, 369, 371 ‑ 372, 373.

[55] By Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 16(4).

[56] See Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 17(1).

[57] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [319] ‑ [320].

[58] The State of Western Australia v Richards [2020] WASCA 129 [39].

[61] Johnson v Vander Sanden [79]. See also [84]. To like effect see Dinsdale v The Queen [78] - [79].

[65] While the totality principle is a sentencing principle under the common law, it has statutory acknowledgement in s 6(3)(b) of the Act.

[66] Compare Johnson v Vander Sanden [84].

[68] Nguyen v The State of Western Australia [2019] WASCA 149.

[69] Morgan v The State of Western Australia [No 2] [2019] WASCA 185.

[70] Dillon v The State of Western Australia [2020] WASCA 24.

[71] The State of Western Australia v Richards [2020] WASCA 129.

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

[74] Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10].

[75] The State of Western Australia v Egeland [2018] WASCA 228 [69] ‑ [70] (Buss P).

[77] Fernandes v The State of Western Australia [2009] WASCA 227.

[78] Wickham v The State of Western Australia [2010] WASCA 73.

[79] Lynch v The State of Western Australia [2011] WASCA 243.

[80] The State of Western Australia v Charles [2016] WASCA 108.

[81] Kirkup v The State of Western Australia [2018] WASCA 102.

[82] EDU v The State of Western Australia [2019] WASCA 55.

[83] Cochrane v The State of Western Australia [2021] WASCA 5.

[84] HSV v The State of Western Australia [2020] WASCA 5.

[85] Musulin v The State of Western Australia [2020] WASCA 18.

[86] McConnell v The State of Western Australia [2020] WASCA 59.

[87] The State of Western Australia v Delaney [2020] WASCA 93.

[88] Staiger v The State of Western Australia [2020] WASCA 99.

[89] Baker v The State of Western Australia [2020] WASCA 117.

[90] Moodley v The State of Western Australia [2020] WASCA 158.

[91] SYL v The State of Western Australia [2021] WASCA 16.

[92] Blasco v The State of Western Australia [2021] WASCA 26.

[93] Trainor v The State of Western Australia [2021] WASCA 36.

[94] Nickson v The State of Western Australia [2021] WASCA 40.

[95] Ramachandran v The State of Western Australia [2021] WASCA 54.

[96] The State of Western Australia v MDZ [2021] WASCA 95.

[97] McGrath v The State of Western Australia [2021] WASCA 118 .

[98] Watson v The State of Western Australia [2022] WASCA 80.