of 12 months imposed in relation to count 2 and that the terms of

imprisonment in relation to all of the other counts be served

concurrently with each other. His Honour stated that this resulted in a

total effective sentence of 58 months or 4 years and 10 months'

The appellant submits that the sentencing process was ambiguous and

thereby miscarried because the judge did not specify whether the

sentences on the balance of the counts were cumulative on, or

concurrent with, the sentences on counts 2 and 6. The appellant

contends that this miscarriage requires the appellant to be resentenced.

It is obvious that the other sentences were made to be concurrent with

counts 2 and 6, as well as with each other. There is no other sensible

reading of his Honour's language. Further, that is what his Honour

ordered, as revealed by the Certificate of Final Outcome.

The appellant also points out that in the course of referring to the

totality principle, the sentencing judge stated that the appellant's

individual sentences add up to 14 years and 11 months or 179 months,

whereas those sentences in fact add up to 181 months.

so, this immaterial mathematical slip did not have, and could not have

had, any effect on his Honour's exercise of discretion. His Honour

referred to the sum of the individual sentences in order to make the

obvious and correct point that, if all sentences were to be imposed

cumulatively, the resultant sentence would be disproportionate to the

overall offending in the case. In that context, whether the numerical

sum of the individual sentences was 179 months or 181 months was,

[2018] WASCA 41

For these reasons, we would refuse leave to appeal in respect of

Ground 3 asserts that the sentencing judge erred in applying the one

For the reasons that follow, the ground is entirely without merit.

As the appellant's submissions acknowledge, the one transaction 'rule'

is not a rule. It is no more than a rule of thumb designed to assist

judges to ensure that the total sentence imposed for offences which

occur close in time or in a spree is proportionate to the offender's

total sentence properly reflects the overall criminality of the offender's

offending, having regard to all the circumstances and the offender's

the total effective sentence did not infringe the totality principle, for

practical purposes it would not matter whether the sentencing judge had

erred in the manner submitted in ground 3. As explained below, the

In any event, whether ground 3 is viewed as a stand alone ground or as

a factor in relation to the totality ground, insofar as ground 3 asserts

that the judge incorrectly applied the one transaction rule, it has no

merit. A series of offers to sell drugs to different people on different

days over a period of about two months is not a single continuing

episode that would engage the one transaction rule. Of course, the

overall criminality of the conduct must be evaluated in giving effect to

the totality principle, but that is a question of totality, the subject of

For these reasons, we would refuse leave to appeal in respect of

In both written and oral submissions, counsel dealt with grounds 1, 2

and 5, together. We infer that this is because the appellant considers

the contention made in ground 2 - that offences of offering to sell

necessarily carry lower sentences than 'completed' offences such as

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28]; Lesay v The State of Western Australia

[2011] WASCA 154 [21]; Salkilld v The State of Western Australia [2017] WASCA 168 [84].

R v Faithfull [28]; Lesay [21]; Salkilld [84].

[2018] WASCA 41

selling or possession with intent to sell or supply - is a central element

of each. Consequently, it is convenient to deal next with ground 2.

Ground 2: sentences for offences of offering to sell

The appellant emphasises that the vast majority of her offences were

offers to sell, not sales or offences of possession with intent to sell or

supply. The thrust of ground 2 is captured in the appellant's submission

that 'a sale of prohibited drugs must always be more serious than an

offer to sell because the harm to the buyer is more serious than it is to

an offeree'. The appellant cites the decision of this court in Le v The

For the reasons that follow, the submission must be rejected.

The starting point is that the maximum penalty for an offence of

offering to sell is the same as the maximum for offences of possession

with intent to sell or supply, and offences of selling or supplying.

That starting point in itself provides a significant obstacle to the

universal proposition advanced by the appellant. Another obstacle

arises from the character of the sentencing process. Sentencing requires

attention to, and a synthesis of, a range of factors and circumstances,

not all of which point in the same direction, so as to arrive at a sentence

advance universal propositions, grading the seriousness of different

species of offences which carry the same maximum penalty, by

reference to a single factor, have often been rejected.

the response has been that no one factor is controlling; rather, all the

circumstances must be considered. The same position seems to us to

The seriousness of any offence against s 6 of the Misuse of Drugs Act

1981 (WA) must be evaluated by reference to all of the circumstances

of the offending. The appellant's universal proposition as to the

comparative seriousness of an offence of offering to sell and an offence

of selling cannot be accepted. While it is generally of some relevance

that an offence of offering to sell does not involve the supply of drugs,

'its relevance will depend upon the reason the offer did not come to

Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269 [143].

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75].

See, for example, Wong [67] - [72]; Kaokula v The State of Western Australia [2016] WASCA 198 [62];

Chikonga v The State of Western Australia [2017] WASCA 34 [26].

[2018] WASCA 41

Indeed, that observation proceeds on the assumption that the

offer did not come to fruition. While in an offence of offering to sell, it

cannot be assumed that the offer came to fruition in the form of a sale,

equally it cannot necessarily be assumed that the offer did not result in

Many factors will be relevant in assessing the seriousness of an offence

of offering to sell a prohibited drug. Among the factors that will often

The terms of the offer, in particular as to the quantity of a drug,

Whether a particular offer is an isolated one or whether it occurs

in the context of an ongoing supply of prohibited drugs.

Whether, and if so, the extent to which the offer is motivated by

Whether the offeror, at all material times, had the intention to

Whether the offeror had the capacity to fulfil the offer to

Whether the offeror attempts to fulfil the order. If not, whether

any failure to perform was the result of a decision by the person

concerned not to supply or whether it was due to some

What was said by this court in Le v The Queen does not assist the

appellant. In Le v The Queen, one of the grounds of appeal alleged

that the sentence imposed on one of the counts was manifestly

excessive because there was no actual transaction, rather an offer to

sell, but the judge had sentenced on the same basis as an actual sale.

This court rejected the ground, finding that the judge had not made the

error asserted by the ground. Rather, the judge had evidently taken into

account that the offer to sell had not been completed by an actual sale.

Nothing said in Le v The Queen supports a universal proposition that,

Bahn v The State of Western Australia [2008] WASCA 40 [38].

The State of Western Australia v Doyle [2017] WASCA 207 [32], quoting Vu v The Queen [2006]

[2018] WASCA 41

in all cases, an offence of offering to sell must attract a lesser sentence

For these reasons, we would refuse leave to appeal in respect of

The appellant did not articulate submissions specifically directed to her

contention, in ground 5, that the sentence of 3 years 10 months'

imprisonment on count 6 was manifestly excessive. Rather, her

complaint in that regard was wrapped up with her contention, in

ground 2, as to the lesser seriousness of an offence of offering to sell or

supply. Her submissions also emphasised the mitigating factors in the

appellant's favour, including her youth, good record (including since

the offences were committed), remorse and insight, and low risk of

For the reasons that follow, we are not persuaded that the sentence

The judge imposed a sentence of 3 years 10 months' imprisonment.

The maximum penalty for the offence is 25 years' imprisonment or a

On the judge's unchallenged findings of fact, the appellant's offence in

Her offer was to sell a very significant quantity of MDMA,

namely 2,000 tablets. She offered to sell them at $12.50 per

Although the appellant did not have stock of MDMA when she

offered to sell 2,000 tablets, she evidently had access to large

amounts of drugs in that she was able to get two quotes from

The appellant intended to fulfil her offer, but agreement on

Count 6 was not an isolated offence. Rather, it occurred in the

context of a persistent and ongoing commercial drug operation.

[2018] WASCA 41

The offence was committed as part of commercial drug dealing

by the appellant, operating at the higher end of the scale, well

above street level. The appellant was offering to sell to other

The appellant's plea of guilty was entered very late. Perhaps somewhat

generously, the sentencing judge allowed a discount of 10% for that

There is no doubt that the appellant had a number of mitigating factors

in her favour. However, in sentencing for drug dealing offences,

matters personal to the offender have less significance than might

otherwise be the case. Regrettably, the commission of drug dealing

offences by young offenders exhibiting some or all of prior good

character, early guilty plea, remorse, family support, positive steps

towards rehabilitation and no significant risk of reoffending, is all too

The following principles are well established. The major

sentencing considerations for offences of dealing or trafficking in

dangerous drugs of addiction are general and personal deterrence. The

quantity of the drugs in question is not generally the chief factor to be

taken into account, but it is a matter of importance. In part, that is

because it can be presumed that the greater the quantity the greater the

harm which may be done to the community. 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 are highly significant. Matters personal to

the offender are not irrelevant, but will almost always be given a

Until recently, this court had not been called upon to decide whether an

individual sentence for offering to sell or supply a prohibited drug was

pool of reasonably comparable cases against which to measure the

sentence. That in itself does not prevent this court from considering

and determining whether the sentence imposed was manifestly

See, for example, the cases discussed in The State of Western Australia v Johnson [2010] WASCA 187

[25] and in The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [26].

The first such decision is The State of Western Australia v Doyle [2017] WASCA 207.

The State of Western Australia v Doyle [36]; Gaskell v The State of Western Australia [2018] WASCA 8

[2018] WASCA 41

In The State of Western Australia v Doyle, this court upheld a State

appeal on grounds, among others, of the manifest inadequacy of

individual sentences imposed for offering to sell or supply a prohibited

drug. The youthful offender, who received a 25% discount for guilty

pleas, was resentenced to a term of immediate imprisonment of 3 years

on each of three offences of offering to sell or supply 2,000 tablets of

MDMA. While one sentencing decision falls well short of establishing

a customary range of sentence, bearing in mind the 25% discount given

in Doyle as against the appellant's 10% discount for her guilty plea, this

court's resentencing in Doyle does not sit easily with the appellant's

contention that her sentence of 3 years 10 months' immediate

the maximum penalty of 25 years' imprisonment or a $100,000

the seriousness of the appellant's offence, including the features

the place the appellant's offence occupies on the scale of

the mitigating factors to which the sentencing judge referred;

we are not persuaded that the sentence of 3 years 10 months' immediate

imprisonment was unreasonable or plainly unjust. The sentence

imposed was commensurate with the seriousness of the offending.

One major strand of the appellant's claim of breach of the totality

principle is her contention, by ground 2, that offences of offering to sell

necessarily attract lower sentences than offences of sale or possession

with intent to sell or supply. We have rejected that contention in

dealing with ground 2. In support of her contention that the total

[2018] WASCA 41

effective sentence infringed the first limb of the totality principle, the

appellant also points to her youth, her good record both before and after

this offending, and the fact that the sentence imposed amounted to

about a quarter of her life at the time of sentencing. Further, the

appellant points to what she characterises as comparable cases.

We have set out at [53] some factors that will often be relevant in

determining the seriousness of offences of offering to sell a prohibited

drug. Consideration of those factors in this case demonstrates the

serious nature and extent of the appellant's offending.

On the judge's unchallenged findings, factors (a) to (e) all tended to

reinforce the seriousness of the appellant's offences of offering to sell

or supply prohibited drugs, while factor (f) was unknown and thus

neutral. The appellant offered to sell more than 2,850 MDMA pills and

more than 10 g of methylamphetamine for prices totalling more than

The offers were made in the context of an ongoing and

persistent commercial drug operation. The offers were motivated by

commercial gain. The appellant was a commercial drug dealer,

operating at the higher end of the scale, well above street level. Often

at least, she was offering to sell to dealers, not to users.

clearly intended to fulfil her offers, at least whenever agreement on

price was reached. While it is true, as the appellant submits, that in

the case of offers of large quantities, the appellant was offering tablets

she did not then have, the judge found that the appellant had access to

the judge found that, although the appellant did not have stock of

MDMA when she offered to sell 2,000 pills, she was able to get two

quotes from two suppliers for 2,000 pills on the same day.

There were mitigating factors in the appellant's favour, including those

that the appellant has emphasised in her submissions. However, our

observations at [61] as to the lesser weight ordinarily to be given to

personal factors in sentencing for drug dealing offences apply again

[2018] WASCA 41

Very few of the cases to which the appellant points are of any real

assistance as reasonably comparable cases. The cases relied on by the

appellant can be placed into two groups. The first group involve

first-instance sentencing decisions on drug offences under

Commonwealth law. For two reasons, these are of no assistance. First,

cases from the Commonwealth sphere, with different sentencing

regimes and different sentencing principles, are of no material

assistance in discerning whether sentences for offences under the

Misuse of Drugs Act reveal implied error. Secondly, consistency in

sentencing is assessed by reference to the decisions of this court, rather

than by reference to decisions of judges at first instance.

The second group of cases on which the appellant relies57

of this court concerning offences under the Misuse of Drugs Act. Most

of those decisions provide only very limited assistance as comparators

because of the differences in the circumstances of the offending, the

offender, or both. In that regard, the following observations, which are

In TXT v The State of Western Australia, the ultimate total

effective sentence of 2 1/2 years' imprisonment reflected a 50%

discount for police cooperation, as well as the discount for a

plea of guilty at the earliest reasonable opportunity.

The State of Western Australia v Baldini involved only three

counts, two of which involved offences against s 6(1) of the

Misuse of Drugs Act. The quantities of drugs involved were

considerably less than the present case. The offender in Baldini

was found to be dealing at street level. The offender also

voluntarily disclosed information that led to one of his charges.

Zohdy v The State of Western Australia concerned only two

counts, to which the offender entered fast-track pleas of guilty.

The sentencing judge observed that the offender was a 'foolish

Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551 [161]; Salkilld v

The State of Western Australia [2017] WASCA 168 [66].

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266.

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

Zohdy v The State of Western Australia [2014] WASCA 141.

[2018] WASCA 41

and immature person' who was 'partly driven by blind loyalty to

Ruvinovski v The State of Western Australia involved a

conspiracy to sell or supply 1.25 kg of methylamphetamine with

a purity ranging between 68% and 70%. Consequently, it

Bahn v The State of Western Australia involved significantly

more serious offences for which a significantly higher sentence

was imposed. The offences were (1) conspiracy to sell or

supply 2 kg of methylamphetamine; (2) offering to sell 10,000

tablets of MDMA; and (3) supplying 1 kg of heroin. It provides

The other cases relied on by the appellant are dealt with below.

For the purposes of comparison, it should be noted that MDMA is to be

treated as seriously, for the purposes of sentencing, as

The other cases referred to by the parties include the following.

guilty to eight drug offences for which she was sentenced to a total

effective sentence of 8 years' imprisonment. The offender was 29 years

old. She had a prior criminal history, but, apart from an offence of

possession of cannabis, had not previously been convicted of a drug

offence. The offender was characterised as a significant dealer in

In Labrook v The State of Western Australia,69

total effective sentence of 4 years 10 months' immediate imprisonment

for three counts of offering to sell methylamphetamine with a total

sentenced after a plea of guilty to a total effective sentence of 8 years'

Ruvinovski v The State of Western Australia [2013] WASCA 204.

Bahn v The State of Western Australia [2008] WASCA 40.

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111].

Birch v The State of Western Australia [2011] WASCA 101.

Labrook v The State of Western Australia [2016] WASCA 127.

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.

[2018] WASCA 41

imprisonment for 16 drug-related offences, including (1) two offences

of possession with intent to sell or supply of amounts totalling about 60

g of methylamphetamine; (2) five offences of offering to sell

methylamphetamine in amounts totalling 37 g; and (3) an offence of

guilty to 20 drug offences. Nineteen were counts of offering to sell or

supply a prohibited drug, variously MDMA, methylamphetamine and

cannabis. The other offence was possession of methylamphetamine

with intent to sell or supply. The offers were to sell, in total, more than

140 g of cannabis, more than 552 MDMA tablets and more than

was an offer to sell 470 MDMA tablets, for which the offender was

sentenced to a term of 3 years' immediate imprisonment.

offender's appeal on totality grounds was dismissed.

In Russell v The State of Western Australia [No 2],73

resentencing on appeal, the offender received a total effective sentence

of 6 years' imprisonment for seven counts in an indictment of offering

to sell, selling or attempting to possess various quantities of MDMA or

methylamphetamine and numerous drug related charges in a notice

under s 32 of the Sentencing Act. The offender pleaded guilty on the

fast-track and was not motivated solely by commercial motives.

Consideration of the cases referred to by the parties provides no support

for a conclusion that the total effective sentence imposed on the

appellant in this case is so high as to reveal implied error. In our

opinion, accounting for the scale, persistence and commercial character

of the appellant's offending, the total effective sentence of 4 years

10 months' immediate imprisonment imposed is broadly consistent with

the sentencing outcomes in other cases with some comparable features,

the circumstances and criminality of the appellant's overall

offending, including the features summarised at [68] above;

Hobby v The State of Western Australia [2009] WASCA 108.

Russell v The State of Western Australia [No 2] [2010] WASCA 159.

[2018] WASCA 41

general sentencing patterns for offending of this kind;

it is not reasonably arguable that the total effective sentence of 4 years

10 months' immediate imprisonment infringed the first limb of the

totality principle. In our view, the total effective sentence imposed was

commensurate with the overall seriousness of the offending having

regard to all relevant circumstances and all relevant sentencing factors.

Error by the sentencing judge cannot be implied from the sentencing

For these reasons, we are not satisfied that ground 1 has reasonable

prospects of success. Consequently, we would refuse leave to appeal in

Given our views on the lack of merit of the appellant's grounds of

appeal, we would refuse to grant an extension of time to appeal.

For the reasons set out above, we would make orders to the following

The application for an extension of time to appeal be refused.

Leave to appeal on grounds 1, 2, 3 and 4 be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of