Count 6 alleged, in essence, that on the same date and at the same place as in count 5, the respondent was in possession of a firearm, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and that the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1) read with s 19(1ac) of the Firearms Act.

THE STATE OF WESTERN AUSTRALIA -v- TULLOCH [2025] WASCA 17 | Case summary | Zoe

WAWASCA

THE STATE OF WESTERN AUSTRALIA -v- TULLOCH [2025] WASCA 17 (29 January 2025)

[2025] WASCA 17

Court of Appeal (WA)|2025-01-29|Before: Quinlan CJ

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2025-01-29

Before

Quinlan CJ

Source

Original judgment source is linked above.

Judgment (128 paragraphs)

[1]

This is a State appeal against sentence.
The respondent was convicted, on his pleas of guilty, of six counts in an indictment.
Count 1 alleged, in essence, that on 2 December 2021, at Noranda, the respondent had in his possession methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 34(1)(aa) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged, in essence, that on the same date and at the same place as in count 1, the respondent had in his possession $610 cash that is reasonably suspected to have been stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).
Count 3 alleged, in essence, that on the same date and at the same place as in count 1, the respondent was in possession of a Western Australian driver's licence in the name of another person that is reasonably suspected to have been stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Code.
Count 4 alleged, in essence, that on the same date and at the same place as in count 1, the respondent, without lawful excuse, had ready access simultaneously both to an offensive weapon (namely a tomahawk) and a prohibited drug (namely methylamphetamine) when not authorised under the MD Act to be in possession of that drug, contrary to s 68E of the Code.
Count 5 alleged, in essence, that on 9 February 2022, at Dianella, the respondent, with intent to harm, did an act, as a result of which the life, health or safety of JS was, or was likely to be, endangered, contrary to s 304(2) of the Code.

[8]

The respondent refused to comply with a requirement of police that he provide the PIN numbers for the mobile telephones.
The respondent and JS (the victim in count 5) had known each other for more than 10 years.
Late on 8 February 2022, the respondent and JS spoke by telephone regarding an ongoing feud between them that had existed for some time. During the feud it was alleged that JS had made threats to the respondent and his family.
JS and a witness were in company with each other in a motor vehicle. They discussed previous issues and tensions involving JS and the respondent. JS and the witness stopped their vehicle at an address in Morley. The witness entered the house to use the bathroom. JS remained in the vehicle. When the witness returned he used a mobile telephone to make a call via Snapchat to the respondent. The call was made by speaker so that JS was able to hear the conversation. The respondent was angry at JS and, on hearing JS's voice, the respondent threatened him and said he intended to 'kick his head in'. During the conversation, the respondent indicated that he was aware of their location. After the conversation, the respondent departed from his house with his younger brother. Each of them was riding a motorcycle. They rode towards the location of JS and the witness.
Shortly after midnight, JS and the witness drove away in their vehicle to avoid a confrontation with the respondent. The respondent and his younger brother saw JS and the witness as they were riding their motorcycles. The respondent and his younger brother performed a U-turn and pursued JS and the witness.
At about 12.20 am on 9 February 2022, JS and the witness stopped their vehicle outside residential premises in Dianella. The respondent parked his motorcycle near the right‑hand front wheel of the vehicle and his younger brother parked his motorcycle towards the rear of the vehicle.
After the respondent and his younger brother dismounted from their motorcycles, the respondent produced a firearm which had been shortened to make it concealable. He had never held a firearm licence (count 6). Police have not recovered the firearm.
The respondent and his younger brother walked to the passenger side of the vehicle. They endeavoured to open the front door while JS endeavoured to hold it shut. The respondent and his younger brother forced the door open and they began assaulting JS. They punched and kicked JS while he sat defensively in the front passenger seat of the vehicle. During the assault JS attempted to apologise to the respondent for the previous issues and tensions between them. After a short period, the respondent stopped assaulting JS, but his younger brother continued the attack. The witness, who was in the driver's seat of the vehicle, intervened by saying words to the effect of 'that's enough' and 'leave'. The assault on JS ended. JS closed the door to the vehicle. During the incident, and while holding the firearm, the respondent had threatened to use the firearm on JS.
Next, the respondent walked around the front of the vehicle to the driver's side door. He pointed the barrel of the firearm through the open window and discharged a single round. The bullet passed through JS's upper right arm. Fragments of the bullet then entered JS's upper chest area. The respondent and his younger brother mounted their motorcycles and rode away.
JS's blood spurted from his wound onto the witness. The witness called the emergency services. The witness performed first aid on JS before driving him to the vicinity of the Morley Police Station. JS was then conveyed by ambulance to Royal Perth Hospital where he was treated. The treatment involved the exploration and washing out of the gunshot wounds to JS's right arm and chest. A bullet fragment was recovered from his wounds. Later, JS underwent occupational therapy and physiotherapy. The medical opinion was that had JS not received medical treatment, his injuries were of such a nature as to endanger or be likely to endanger his life because of the significant bleeding he had suffered. Ballistic testing on the bullet fragment indicated that the bullet was fired from a .22 calibre long rifle.
On 10 February 2022, the respondent was arrested. He was originally charged with attempted murder. The respondent declined to participate in an electronically recorded interview.
When he committed counts 5 and 6 the respondent was on bail for counts 1, 2, 3 and 4.

[14]

The sentencing judge referred to the respondent's personal circumstances and antecedents. The respondent was aged 26 at the time of the offending and was aged 28 when sentenced. His upbringing was difficult. At the age of about 4 or 5 he was diagnosed with and medicated for attention‑deficit hyperactivity disorder. When he was aged 9 to 10 he was assessed by the Bentley Hospital Mental Health Unit as having 'severe conduct disorder and oppositional defiance disorder' (ts 42). Both of the respondent's parents inflicted physical violence upon him when he was a child. His father was often drunk and at times there was no food in the house. At an early age the respondent resorted to alcohol and illicit drugs. He began using alcohol and cannabis at the age of 8. He used cannabis every day from the age of 10 or 11. He began using methylamphetamine at the age of 13 or 14 and smoked the drug on most days from the age of about 14. The respondent struggled at school. He kept relapsing into drug use and antisocial behaviour.
When he was sentenced the respondent had a domestic partner. She was not a drug user and was supportive of him. The partner gave birth to the respondent's daughter in June 2022 while he was in custody. The respondent had voluntarily engaged in a parenting course. His Honour said that, given the respondent's deprived upbringing, his participation in the parenting course showed 'considerable insight ... if [the respondent is] genuine in relation to the importance of children being brought up in a loving and caring environment' (ts 42).
The information before the sentencing judge included a report dated 18 December 2023 from The Whitehaven Clinic and Ms Fowler's report. His Honour referred to the reports in his sentencing remarks.
The report from The Whitehaven Clinic stated that the respondent had voluntarily completed 14 one‑on‑one counselling sessions as part of an addiction recovery process programme. The programme focussed on addressing the underlying root cause of the respondent's drug addiction. The programme also focussed on the respondent rebuilding a life without drugs by incorporating a holistic approach to recovery and identifying key areas of his life that needed to be addressed. The author of the report was of the opinion that the respondent had shown he was capable of changing his future direction should he choose to do so. The respondent had 'reflected at length on his past actions and gained considerable insight into why he does what he does'. He is aware of 'his psychologically based fears and triggers and understands the benefits of staying emotionally and mentally healthy'. The author said that she had seen 'excellent progress in [the respondent's] growth and capacity for change'.
Ms Fowler determined that the respondent meets the criteria for antisocial personality disorder. He is also likely to meet the criteria for traumatic childhood events, given his description of his father's behaviour and the family environment in which he was raised. Ms Fowler said that the respondent did not, however, present as suffering from any major mental illness.
Ms Fowler said that, based upon information provided by the respondent and his mother, the respondent used substances during critical early periods in his neurological, emotional and psychological development. The respondent exhibited 'challenging behaviours' as a child. He was not modelled, either directly or indirectly, on 'how to manage his emotions, deal with delayed gratification, problem solve functionally, or live with an absence of some form of legal or illegal substance in his system'. His early challenging behaviours evolved into the respondent engaging in offending behaviour and substance use.
Ms Fowler was of the opinion that the respondent offended against JS because the respondent 'sought to change his feelings, from powerless to powerful, which led him to use the gun on [JS]'. Ms Fowler considered that the respondent's risk of reoffending in general was significant given his offending history. His risk of reoffending in a violent manner will be linked to the individuals and subculture he connects with upon his release from custody, especially if he resumes the lifestyle he had before being arrested for the current offending. Ms Fowler said that the respondent requires consistent forensic psychological treatment to assist him to manage his significant risk of relapsing into drug use and an antisocial lifestyle upon release from custody.
Defence counsel recorded in his written sentencing submissions that the respondent completed school during year 10. He has no tertiary or trade qualifications. The respondent has worked intermittently as a bricklayer. He was unemployed when he committed the offences in question.
The respondent has a significant prior criminal record. His previous convictions as an adult include numerous traffic offences including reckless driving; criminal damage or destruction of property (multiple offences); receiving stolen property; stealing a motor vehicle (multiple offences); breach of a community based order (multiple offences); breach of a family violence restraining order (multiple offences); breach of bail; possession of a controlled weapon; breach of a suspended imprisonment order; possession of drug paraphernalia (multiple offences); and common assault.
As to the timing of the respondent's pleas of guilty on counts 1, 2 and 4:

[25]

The prosecutor responded that the State 'certainly [does not] accept' that the pleas on counts 1, 2, 3 and 4 were entered at the first reasonable opportunity. The prosecutor added that she '[took the sentencing judge's] point as to [his Honour's] view as to the timing of the plea', and did not seek 'to press that any further' (ts 27).
Counsel for the State submitted that the prosecutor's statements in response to the sentencing judge were not a concession that the pleas on counts 1, 2, 3 and 4 were entered at the first reasonable opportunity. Rather, the prosecutor merely indicated that the State adhered to its submissions on the point, and did not intend to repeat those submissions which his Honour had said he understood.
Counsel noted that in his sentencing remarks his Honour observed that 'it seems to me just as a matter of practical common sense that [the respondent] would wait until [the attempted murder charge] was dealt with before [the respondent] decided to do whatever [he was] going to do with the drug charges' (ts 43). His Honour then allowed the maximum discount of 25% for all of the counts.
Counsel for the State submitted that the sentencing judge had no power under s 9AA to grant the maximum discount of 25% unless the pleas of guilty were entered or indicated at the first reasonable opportunity. No question of discretion arises. It was always open to the respondent to plead guilty or to indicate unconditionally a willingness to plead guilty to counts 1, 2 and 4 after he was charged. Any strategic advantage to the respondent in delaying his pleas on those counts while he pursued negotiations on other counts did not make his delay reasonable.
Accordingly, so it was submitted, his Honour erred in law in affording the respondent the maximum discount of 25% for his pleas of guilty on counts 1, 2 and 4. Further, his Honour ordered that the individual sentence for count 1 be served cumulatively upon the individual sentence for count 5. The discount of 25% on count 1 therefore had a material effect upon the total effective sentence.

[36]

Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA. See Abraham v The State of Western Australia.[2]
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by those matters. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors or criteria relating to the offender that are subjective to the offender. See Abraham [53].
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%.
However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'. The making or the indication of a plea of guilty at 'the first reasonable opportunity' enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount. The sentencing judge's discretion is informed by the considerations specified in s 9AA(2). See Thomas v The State of Western Australia.[3] The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act.
Rossi v The State of Western Australia[4] is the leading authority on the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA.
The salient facts of Rossi, for present purposes, were these. The appellant pleaded guilty to six counts in Indictment 790 of 2013 (Indictment 790). Between 17 October 2012 and 19 December 2012, police lawfully intercepted a mobile telecommunication service which belonged to and was used by the appellant. The counts in Indictment 790 were established by the intercepted material. Count 3 involved the sale of methylamphetamine. The other counts involved offers to sell methylamphetamine. The statement of material facts served on the appellant set out the precise times and dates on which each offence was committed.
On 11 February 2013, the appellant in Rossi was charged in the Perth Magistrates Court with the offences which became the subject of Indictment 790. On 28 June 2013, after the fourth or fifth disclosure/committal hearing, the appellant entered pleas of guilty to the offences in Indictment 790. He was committed to the District Court for sentence.
The sentencing judge in Rossi indicated that he had reduced the 'head sentence', as defined in s 9AA(1), for each offence by 12.5%, being one half of the maximum allowed under s 9AA, in recognition of the appellant's pleas of guilty.
The appellant in Rossi appealed against the sentences imposed by the sentencing judge. He relied on two grounds of appeal. The ground that is relevant, for present purposes, alleged that the sentencing judge erred in law by failing to give a sufficient discount, pursuant to s 9AA, for the appellant's pleas of guilty to the offences charged in Indictment 790.
Counsel for the appellant in Rossi alleged, relevantly for present purposes, that:

[45]

The appellant claims it was reasonable for the appellant not to plead guilty before obtaining disclosure of the recorded telephone calls alleged to contain the offers the subject of the charges in Indictment 790 because the statement of material facts contained very little detail of the factual basis of the offences and only briefly summarised the effect of the telephone calls rather than set out what was actually said. Further the telephone calls relied on were amongst a number of telephone calls intercepted over the course of around two months.

The appellant also claims that it is irrelevant that the appellant may have been able to obtain copies of the recordings from police earlier in the proceedings, as police were not obliged to provide disclosure unless he elected to proceed to a committal hearing. I do not accept this submission. A failure to request access to the recordings is relevant, as is any failure to respond to, or refusal of, the request. There was no evidence that, prior to disclosure under the [Criminal Procedure Act], a request was made on behalf of the appellant of the investigating police or the DPP to listen to the records.

The appellant contends that this is not a case in which it can be concluded that disclosure of the recordings was sought to ascertain the strength of the prosecution case or that he held back pleading as a bargaining chip in plea negotiations.

At his sentencing, the appellant bore the onus of establishing matters of mitigation on the balance of probabilities. He fell well short of establishing that he entered pleas of guilty to the charges in Indictment 790 at the earliest reasonable opportunity.

The written and oral submissions put on behalf of the appellant at sentencing did not state with any precision or clarity that the appellant's delay in pleading guilty was because he did not know the facts that made up the elements of the offences the subject of Indictment 790. Such a submission would have been met with bewilderment, the appellant having been the principal (and sole) offender who must have had actual knowledge of all the material (and other) facts of his offending. At its very highest, any issue could only be one of recollection of detail.

Based on all the material before the sentencing judge, the compelling inference is that disclosure of the recordings was sought before entering a plea to any of the charges in order to ascertain the strength of the prosecution case. ... It is on the strength of the prosecution case that the appellant may have required legal advice. (emphasis added)

[50]

The sentencing judge concluded that the pleas of guilty on counts 1, 2 and 4 were entered at the first reasonable opportunity based on his Honour's opinion that 'as a matter of practical common sense ... [the respondent] would wait until [the attempted murder] charge was dealt with before [he] decided to do whatever [he was] going to do with the drug charges' (ts 43).
We are satisfied, for the following reasons, that his Honour's conclusion that the pleas of guilty on those counts were entered at the first reasonable opportunity was erroneous.
First, the offending the subject of counts 1, 2 and 4 occurred on 2 December 2021. The respondent was charged with those offences on that day or the following day. However, the respondent did not enter pleas of guilty or indicate that pleas of guilty would be entered on counts 1, 2 and 4 until 10 May 2023. That date was more than 17 months after the respondent's first appearance on counts 1, 2 and 4 and at the ninth committal mention. Secondly, the offending the subject of counts 5 and 6 occurred on 9 February 2022 and that offending was unrelated to the offending on counts 1, 2 and 4. Thirdly, as at 2 February 2022, the respondent knew all of the factual elements of counts 2 and 4. He was present on 2 December 2021 when police searched his vehicle and found the $610 cash and the tomahawk. The respondent knew the source of the $610 cash. The respondent knew the purpose for which he possessed the tomahawk. Accordingly, the respondent's delay in pleading guilty to counts 2 and 4 was not attributable to any absence of knowledge of the facts that comprised the elements of those offences. Fourthly, the respondent was present on 2 December 2021 when police searched his vehicle and found the methylamphetamine. At the hearing of the appeal, counsel for the respondent acknowledged that the certificate of analysis in respect of the drug was produced to the respondent or his lawyers about 5 months before he entered the plea of guilty to count 1. By virtue of s 11(a) of the MD Act, the respondent was deemed to have possession of the methylamphetamine with intent to sell or supply it to another unless he proved the contrary on the balance of probabilities. So, the respondent knew all of the factual elements of count 1 for at least about five months before he entered the plea of guilty on that count. Fifthly, at the sentencing hearing before the sentencing judge, defence counsel's explanation for the delay was that counts 1, 2 and 4 were 'effectively in abeyance' until negotiations between the State and the respondent in relation to the attempted murder charge were completed. In our opinion, on an objective appraisal of the facts and circumstances, it was not reasonable, for the purposes of s 9AA, for the respondent not to enter or indicate pleas of guilty on those counts while he pursued negotiations with the State on the attempted murder charge. Sixthly, his Honour's reference to the respondent waiting 'as a matter of practical common sense' until the attempted murder charge was dealt with before he decided whether to enter or indicate pleas of guilty was an extraneous consideration in determining whether the pleas on counts 1, 2 and 4 were entered at the first reasonable opportunity. The criterion of 'first reasonable opportunity' within s 9AA is objective. His Honour's invocation of 'practical common sense', as a justification for the respondent's decision to put counts 1, 2 and 4 'in abeyance', fails to engage with the text of s 9AA; in particular, with the objective character of the concept of 'first reasonable opportunity'. It also fails to engage with the public interest that underpins s 9AA; namely, encouraging and rewarding the entry or indication of pleas of guilty as early as reasonably possible. Seventhly, the respondent was not entitled to sit back and fail to take the necessary steps to enter or indicate pleas of guilty on counts 1, 2 and 4, while he pursued negotiations with the State on the attempted murder charge, without compromising his ability to claim the maximum discount of 25% pursuant to s 9AA.
The entry or the indication of a plea of guilty at the first reasonable opportunity, within s 9AA, enlivens a sentencing judge's power to grant the maximum discount of 25%. See Thomas [18]. In other words, the entry or indication of a plea of guilty at the first reasonable opportunity is a condition for the exercise of the power to grant the maximum discount. See Miller v Byrne.[12] A sentencing judge does not have a discretion to grant the maximum discount of 25% unless the plea has been entered or indicated at the first reasonable opportunity.
Ground 2 has been made out.

[57]

There is no sentencing tariff for offences contrary to s 304(2) of the Code because of the wide variety of circumstances in which the offences are committed and the wide variety of personal circumstances and antecedents of the offenders who commit them. See Popal [74]; Cheeseman [84]. A wide range of sentences has been imposed for offences of this kind. See Quirk v The State of Western Australia.[21]
We have had regard to a number of decisions of this court in sentencing appeals concerning offending contrary to s 304(2) of the Code including Penny; Sophiadakis v The State of Western Australia;[22] Kaokula; Chikonga v The State of Western Australia;[23] Ugle v The State of Western Australia;[24] Quirk; Gleeson v The State of Western Australia;[25] Popal; Cheeseman. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. None of them is truly comparable with the current offending.
In the present case, the very serious character of the respondent's offending on count 5 is apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks.
It is necessary, in determining whether the respondent's sentence for count 5 was manifestly inadequate, to consider, amongst other things, the nature and seriousness of the respondent's intent to harm; the nature and seriousness of the respondent's act which resulted in JS's injuries; the nature and seriousness of JS's injuries; and the potential (as distinct from the actual) consequences of the respondent's conduct.
Although the respondent may not have intended to shoot JS when the incident began, he had armed himself with a loaded firearm and shot JS after the assault upon JS had ended. The respondent intended that JS should be struck by the bullet. His Honour found that the respondent's motive was to teach JS a lesson. The respondent shot JS because he had a grievance against him arising from their pre‑existing feud. The respondent's act was a form of vigilantism and a gratuitous act of violence.
The respondent discharged the firearm at close range. The photographs in the State brief reveal an entry wound to the outside of JS's upper right arm; an exit wound from the inside of his upper right arm; and a further entry wound to his chest between the right nipple and the armpit. The respondent indicated in a recorded conversation, while he was on remand in custody, that the firearm was not accurate (ts 30).
The injuries suffered by JS were towards the lower end of seriousness on the spectrum of injuries likely to be inflicted by a bullet discharged from a firearm at close range. However, the respondent admitted by his plea of guilty, as was the fact, that as a result of his act, JS's life, health or safety was, or was likely to be, endangered. If JS had not received medical treatment, his injuries were of such a nature as to endanger or be likely to endanger his life because of the significant bleeding he had suffered.
The discharge of the firearm at close range, in the context of a firearm that was inaccurate, demonstrated that the respondent's act had the potential to result in more serious injuries for JS than in fact occurred. The risk to JS included the possibility of a permanent physical disability or even death. The location of the entry wounds on JS's body also indicated the potential for JS to have suffered more serious injuries than he did.
After the respondent shot JS, he fled the scene. He made no effort to secure medical treatment for JS.
The respondent was in company when he committed count 5. The circumstances of the commission of the offence would have been frightening for JS. The respondent was not youthful for sentencing purposes. Although his prior criminal record did not aggravate the current offending, his previous convictions showed that he was not a person of prior good character and underscored the importance of personal deterrence. The respondent committed count 5 while he was on bail for counts 1, 2, 3 and 4.
There were some mitigating factors. The respondent pleaded guilty. There was some limited remorse. The respondent had evinced insight into the wrongfulness of his conduct and had taken some actions to address the causes of his offending behaviour. The sentencing judge was prepared, on balance, to take the respondent's willingness to change and rehabilitate himself into account by way of mitigation. The respondent experienced a childhood in which abuse of alcohol and drugs was common and he was exposed to violence. His Honour found that, during his childhood, the respondent experienced 'profound ... deprivation' (ts 45).
In our opinion, the sentence of 4 years 6 months' immediate imprisonment for count 5 was not commensurate with the seriousness of the respondent's offending. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the respondent's personal circumstances and antecedents and the mitigating factors), that the length of the sentence was unreasonable or plainly unjust.
When the sentence for count 5 is viewed from the perspective of:

[64]

The maximum penalty for the offence charged in count 1 is 25 years' imprisonment or a fine of $100,000 or both.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial 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.
We have had regard to the sentencing dispositions in a range of cases including Haasy v The State of Western Australia;[30] Potaka; Leckie v The State of Western Australia;[31] Kirkup v The State of Western Australia;[32] Donaldson v The State of Western Australia;[33] Mrsa v The State of Western Australia;[34] Gallagher v The State of Western Australia;[35] Phan v The State of Western Australia;[36] Dinh v The State of Western Australia;[37] Lovell; Italiano; Pearman; Wade v The State of Western Australia.[38] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. There are some facts and circumstances that are comparable to the current offending but there are also some material differences.
In the present case, the respondent's offending on count 1 was serious. The respondent was a dealer as well as a user of methylamphetamine. He was selling the drug for commercial gain. Defence counsel characterised the respondent as an 'upper low‑level user‑dealer for profit' (ts 15 ‑ 16). The sentencing judge said that the respondent was 'a user/dealer [who] sold drugs to support the lifestyle [he was] in' at the time (ts 38). When he was arrested the respondent was in possession of a number of items associated with drug dealing; in particular, the $610 cash; a weapon (the large tomahawk); a set of electronic scales; clipseal bags and three mobile telephones. The respondent refused to provide police with the PIN numbers for the mobile telephones. Although 8.5 g of the methylamphetamine had a very low purity, namely 0.3%, it was reasonably possible, if not likely, that it would have been used as a cutting agent in respect of the balance of the methylamphetamine, which had a significantly greater purity. The presence of the 8.5 g was consistent with the respondent's status as a dealer (as well as a user) of methylamphetamine who was selling the drug for commercial gain.
In Italiano [53], Buss P, Mazza and Beech JJA observed:

[83]

We would allow the appeal.
The sentencing judge's sentencing decision, including the sentences imposed by his Honour and the orders for cumulacy and concurrency, should be set aside. However, the violence restraining order, the forfeiture order and the orders for destruction of the methylamphetamine, the tomahawk and other items made by his Honour should be not disturbed.
This court has the material necessary to resentence the respondent.
At the hearing of the appeal, counsel for the respondent informed the court about the progress the respondent had made towards his rehabilitation since his original sentencing.
We have taken into account, in exercising the sentencing discretion afresh, all of the information that was before his Honour; the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered from maximum security; the progress the respondent has made in his rehabilitation since he was sentenced by his Honour; and the submissions on resentencing made by counsel for the State and counsel for the respondent.
We would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each of counts 1, 2 and 4, on account of the pleas of guilty. The discounts of 25% allowed by his Honour, pursuant to s 9AA, for the pleas of guilty on counts 3, 5 and 6 were not challenged by the State in the appeal. We would allow those discounts in resentencing.
We would also reduce the sentences we would otherwise have imposed for counts 1, 2, 4 and 5 to reflect the other mitigating factors mentioned by his Honour.
We would further reduce the sentences we would otherwise have imposed for counts 1, 2, 4 and 5 to recognise the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered from maximum security and to recognise the progress the respondent has made in his rehabilitation since he was sentenced by his Honour.
The individual sentences imposed by his Honour for counts 3 and 6 were not challenged by the State in the appeal. Those sentences should stand.
We have taken into account and reduced the total effective sentence we would otherwise have imposed to reflect the mitigating factors mentioned by his Honour and the additional mitigation mentioned in these reasons.
We would exercise the sentencing discretion afresh by imposing individual sentences of immediate imprisonment as follows: