WELLSTEAD -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 130 (28 August 2019)

Circumstances of offending as found by trial judge

1. The trial judge made the following findings of fact as to the circumstances of the offending by the appellant and the Co-offender.[2]
2. In the months leading up to the offence, the appellant was engaged in a business of dealing methylamphetamine in the Kalgoorlie area. He was a casual user of methylamphetamine, but was not dealing to support the cost of his own habit. He was dealing for commercial gain. Text messages on the appellant's phone showed him making threatening demands to two drug clients for the repayment of debts.
3. In the six months prior to the offence, the appellant became the Co-offender's drug supplier. The Co-offender, who was an addicted user of methylamphetamine, was getting drugs on a weekly basis from the appellant in amounts between 0.5 g and 1 g.
4. The appellant needed to go to Perth to obtain more methylamphetamine because his stocks had run low. The appellant asked the Co-offender to accompany him to Perth. The appellant wanted some company in order to stay awake and have someone to talk to on the drive. The two of them drove from Kalgoorlie to Perth on the evening of 20 July 2017. The appellant owned and drove the car, and it was his plan.
5. On arriving in Perth, the two men went to a location where the appellant had pre-arranged to collect the drugs. A person came out and passed the drugs through the car window to the Co-offender, who was in the front passenger seat. The Co-offender then passed the drugs across to the appellant.
6. The Co-offender was well aware that the package was methylamphetamine. He did not appreciate the quantity they were going to collect, but had some idea when the drugs were passed across and when he handled the drugs later in the trip.
7. The appellant and the Co-offender turned around and drove away from Perth, intending to return to Kalgoorlie. The appellant had the drugs with him, in all likelihood secreted against his body under his shirt. On the journey back, the appellant offered some of the methylamphetamine to the Co-offender. The Co-offender tore the package open with his teeth, and the two men smoked methylamphetamine for a fairly lengthy period of time as they drove back towards Kalgoorlie.
8. They were driving past Northam when police officers saw the Navara, performed a registration check and discovered that its registration had expired. At this point, the appellant removed the methylamphetamine from where he had secreted it, holding it in his shirt so as not to come into contact with the bag directly himself. The appellant threw the bag of drugs at the Co-offender, telling him to hide the drugs and not to panic. The Co-offender did panic, and went to put the drugs and a glasses case (containing a glass pipe they had been using to smoke methylamphetamine) in a cavity behind a glovebox of the vehicle.
9. Police pulled the Navara over and the vehicle was searched. Police quickly found the methylamphetamine, and arrested and charged the appellant and the Co-offender. The trial judge noted that 'at an early time [the Co-offender] ha[d] made some admissions'.[3]
10. The appellant obtained the drugs as part of his business of methylamphetamine dealing in the Kalgoorlie area. His motivation was commercial. He owned the drugs and expected to sell them. The appellant used a small amount of the drug with the Co-offender. The appellant may have used some more when he returned to Kalgoorlie, but the vast bulk of it was to be stock‑in‑trade for his commercial business of selling methylamphetamine.
11. The drugs were not the Co-offender's and he was not to obtain any commercial benefit from the drugs apart from any small amount of money the appellant may have given him. The Co-offender's benefit was the drug itself, some of which was given to him on the way back to Kalgoorlie. The Co-offender's intention when he had the methylamphetamine was simply to return it to the appellant. The Co-offender knew what the appellant was doing and knew that the appellant was involved in dealing drugs in Kalgoorlie.

1. The appellant was 50 years old at the time of the offence. He grew up in Kalgoorlie and, from a young age, had to work to support his family. He had to leave home because his parents were unable to support him. He had a good work history.
2. The appellant's marriage collapsed in 2015 or 2016, when things took a turn for the worse in his personal circumstances. He had two adult children and one 15-year-old child. The appellant's family had effectively abandoned him because of the serious charge brought against him. As a result, he had, up to the point of sentence, led a somewhat isolated existence within the prison. In the trial judge's view, the appellant's isolation in prison was not such an exceptional factor as would require his Honour to reduce the sentence he would otherwise impose.
3. After travelling and working around regional Western Australia, the appellant returned to Kalgoorlie in around 2016 to work as a prospector. He said that his prospecting business had been good to him. However, the appellant had been engaged in the business of commercial methylamphetamine dealing for profit on the side.
4. The appellant was not remorseful and the trial judge was unable to find that he had any insight into the seriousness of his offending. The appellant's criminal record was 'neutral'. He had some convictions, most of them old and none of which involved commercial dealing in prohibited drugs. The vast majority of the convictions were dealt with by fines or community based orders. There was no evidence of any rehabilitation on his part.

1. The Co-offender was 26 years old at the time of the offence. He grew up in Kalgoorlie. At the time of sentence, he lived with his supportive parents and his wife, with whom he had been in a relationship for 10 years. The Co-offender and his wife had two young children and she was pregnant. The marriage had previously broken down, but he had reconciled with her. The Co-offender had mental health issues, suffering from depression.
2. The Co-offender had a consistent employment history until the death of a stillborn child, following which he fell into drug use and was retrenched.
3. While the Co-offender had a history of offending, it was regarded by the trial judge as neutral save that the Co-offender was serving a suspended sentence of imprisonment for the offence of assault occasioning bodily harm at the time of the current offence (which the trial judge rightly regarded as aggravating).
4. The Co-offender pleaded guilty at a late stage, for which he received a discount of 5% under s 9AA of the Sentencing Act 1995 (WA). He was genuinely remorseful for his offending and had attempted to turn his life around since the offence. While the Co-offender had not yet resumed employment, he was 'off the drugs'.
5. The trial judge regarded the Co-offender's cooperation with police and the State to the extent of giving evidence against the appellant as the most significant mitigating factor, which required a substantial discount. His evidence was a significant part of the prosecution case, and was entirely frank and believable. The Co-offender also cooperated with police at the time that he did his recorded interview, and also made a statement to the police.
6. The trial judge observed that imprisonment would be more difficult for the Co-offender as a result of the evidence that he gave against the appellant.

1. The appellant contends that a miscarriage of justice arose from the absence of the proposed additional evidence, which he says would have affected the trial judge's finding as to his role in the offending. It is therefore appropriate to note the evidence led at trial as to the appellant's role, and the manner in which that evidence was dealt with at trial and sentencing.

1. At trial, there was no substantive controversy as to the circumstances of the appellant's apprehension, summarised below.
2. At about 8.45 am on 21 July 2017, police officers patrolling in a marked police vehicle came up behind a black Nissan Navara utility on the Great Eastern Highway, past Northam. The officers conducted a registration check, which indicated that the registration of the Navara was expired.[4]
3. The lights of the police vehicle were activated and the Navara was pulled over. It was being driven by the appellant, with the Co-offender in the front passenger seat. The appellant's driver's licence was checked and he submitted to a roadside oral fluid test which gave a positive indication for methylamphetamine.[5]
4. A search of the Navara at about 9.10 am located a plastic bag covered in paper tissue containing a white crystal substance, subsequently analysed to be 27.1 g of methylamphetamine of 82% purity.[6] Police also located a black sunglasses case in which a glass pipe and a small red straw were found. These items were located in the cavity beneath the top glovebox on the passenger side of the dashboard. The cavity became exposed when the police officer conducting the search tried to open the top glovebox and the whole assembly came out of the dashboard.[7]
5. Plastic resealable bags and a food sealing machine were also located in the Navara.[8]
6. Other officers arrived at about 10.45 am and conducted a video-recorded roadside interview with the appellant. In that interview, the appellant identified his mobile phone, which had previously been seized. The appellant said that the Navara was his car, and that he had been driving it with the Co-offender sitting in the passenger seat. The appellant said that he could not tell the police anything about the package containing the crystalline substance, and that he had not seen it before.[9]
7. Messages were subsequently located on the appellant's phone suggesting that he was engaged in the commercial supply of methylamphetamine and was demanding money owed to him by his customers.[10]
8. The vacuum‑sealed bag in which the methylamphetamine was contained had been opened in its corner, apparently by pulling (the cut was not clean and had jagged edges).[11]

1. At the appellant's trial, the Co-offender gave evidence to the following effect.
2. The appellant had been the Co-offender's regular supplier of methylamphetamine over the six months prior to their arrest.[12]
3. On the evening of 19 July 2017, the Co-offender bought some methylamphetamine from the appellant at the Co-offender's house. The appellant asked the Co-offender if he would accompany the appellant on his trip to Perth to keep the appellant awake. The appellant said that he was getting low on methylamphetamine, so he had to get more. The Co-offender agreed to go along as he thought he was 'going to get some gear out of it'. The appellant offered the Co-offender some 'meth and some money' for accompanying the appellant on the journey.[13]
4. The Co‑offender did not know anything about the quantity of drugs to be obtained. He was not involved in any of the arrangements that were made to obtain the drugs. He did not know who or where they were to be obtained from.[14]
5. The appellant and the Co-offender left Kalgoorlie for Perth at about 9 pm on 20 July 2017. The appellant did all of the driving. They drove to a house in Perth and stopped the appellant's car in the driveway, probably at around 4 am on 21 July 2017. A man waiting in the driveway passed a parcel to the Co-offender through the car window. The Co-offender passed the parcel, which he knew contained methylamphetamine, to the appellant, who put it under his jumper.[15]
6. The two men then began driving back to Kalgoorlie. On the way back, the appellant asked the Co-offender to 'take a bit out' for the trip home. The Co-offender did so using a cut straw in a glasses case as a scoop. The glasses case was located in the centre console of the car. About an hour before they reached Northam,[16] the appellant and the Co-offender both smoked some methylamphetamine using a glass pipe also located in the glasses case.
7. The Co-offender became aware that police were following them when the appellant used his shirt to throw the package of methylamphetamine at him and told him not to panic and to 'just try and stash it'.[17] The Co-offender then saw the police car behind them. The Co-offender panicked and threw the package of methylamphetamine and the glasses case with the glass pipe and straw behind the glove box. The Co-offender later saw police find those items.[18]
8. The Co-offender said that he was arrested and charged with possessing the methylamphetamine with intent to sell or supply it to another. He pleaded guilty on the day before the trial. He had not been promised anything in relation to his evidence at the appellant's trial.[19]
9. The Co-offender maintained the above account in cross-examination. The cross-examination included a number of references to what the Co-offender had said in his recorded interview with police.
10. The Co-offender accepted that he had told police that he went to Perth to sort out some money problems. The Co-offender gave evidence that the appellant had offered him some money for when they got back, but had not said how much, and they 'weren't major money problems'.[20] The Co-offender denied that he said this because he intended to sort out his money problems by picking up and selling drugs.[21]
11. The appellant's trial counsel also questioned the Co-offender about an answer that he gave during the course of the recorded interview:[22]

When they asked you, 'Can you tell me where you went to collect it?' your answer was, 'Um, not without getting a family member in trouble sort of thing 'cause he he's helped me'?---Which I was referring to [the appellant].

Well, I would suggest to you, you were referring to the person that you were picking the drugs up from?---No, I referred to [the appellant] because I looked at him as like an uncle.

I'm suggesting to you that you refused to answer that question because you were picking up drugs from somebody you knew?---No, I was with someone.

And you didn't want to get them into trouble?---I was with someone picking up drugs I didn't want to refer to, which was [the appellant].

1. After the Co-offender reaffirmed that the appellant had not told him how much they were picking up, the following exchange occurred with the appellant's trial counsel:[23]

Because you seemed to know how much there was going to be picked up when you spoke to the police in your video?---I don't recall.

Remember the police saying, 'Did you have a rough idea of how much it would be?' and you said, 'I think it was only half an ounce'?---No, I don't recall saying that.

Well, do you agree that you said it or would you like to see your video? ---I agree that I said it, but I don't recall saying it.

1. At the conclusion of the cross-examination, the Co-offender was asked:[24]

Is there any reason why, when you were doing your video record of interview with the police, why at no point in time did you actually mention [the appellant] having possession of it at all?---Because I didn't want to dob him in.

So you told a lie to the police for that reason. Is that what you're saying? ---Yes, I don't recall the thing - interview. As I was saying, I was high, very high.

Well, the police did ask you whether you were fit to continue with the interview, didn't they? They said, 'How are you feeling at the moment? Are you all right? Can you think clearly?' Your answer was, 'Yeah, just got a headache.' But now you're saying, 'Well, I was high on meth. I didn't know what I was saying.' Is that what you're telling us?---That those answers and that that I had give back then, I was obviously high.

1. The appellant's evidence at trial was to the following effect.
2. The appellant went to Perth on 20 - 21 July 2017 to get some equipment that he was going to use when prospecting. He denied ever selling drugs to the Co-offender.[25] The appellant was a social user of methylamphetamine and was not involved in the methylamphetamine 'scene' in Kalgoorlie.[26]
3. The appellant met the Co-offender at the caravan park where the appellant was living in Kalgoorlie. They smoked some methylamphetamine in the appellant's 'donga' before driving to Perth. The appellant did not know why the Co-offender wanted to go to Perth.[27]
4. The appellant drove from Kalgoorlie to Southern Cross, and the Co-offender drove from Southern Cross to Perth. They arrived in Perth at between 4 - 5 am. The appellant left the Co-offender at a house in Swan View, and then drove to his son's house in Baldivis to collect the prospecting equipment (which was shown in the back seat in the search video).[28] He drove back to where the Co-offender was, and picked him up without going inside the house.[29]
5. At one point on the return journey, the two men stopped and smoked some methylamphetamine from the appellant's glass pipe. The appellant did not know where the drugs came from, and did not see the bag of methylamphetamine. The first time he saw the bag was when the police stopped them and searched his car.[30]

1. On the third and final day of the trial, the trial judge gave his direction to the jury. The following points may be noted about the trial judge's direction.
2. The trial judge directed the jury that if they believed the appellant's evidence that he did not know the drugs the subject of the charge were in the car, or thought that it might be true, they must acquit him.[31] By their verdict, the jury must have rejected the appellant's evidence as to that matter.
3. The trial judge also gave a detailed direction as to the inconsistencies between the Co-offender's evidence and what he had told police in the recorded interview, and the Co-offender's explanation of those inconsistencies.[32] His Honour clearly appreciated the existence of the inconsistencies.
4. The trial judge also gave the jury directions about the Co-offender's self-interest in giving evidence. His Honour directed that the jury should carefully scrutinise the Co-offender's evidence. This was because the Co-offender might be seeking to justify and minimise his own conduct, so as to shift blame to the appellant, and was aware of the possibility that he will receive a discount in his own sentencing as a result of cooperating with the State and giving evidence.[33]
5. There is nothing to suggest that the trial judge ignored these considerations in making his own assessment of the reliability of the Co-offender's evidence for the purposes of sentencing.

1. The jury returned its guilty verdicts later that afternoon. The trial judge proceeded to sentencing the appellant and the Co-offender that same day.
2. The Co-offender's counsel made the first plea in mitigation. As counsel began to address on the facts, the following exchange occurred:[34]

QUAIL DCJ: Look, Ms McKenzie, if it's of any assistance, I don't need to hear you on my findings of fact. In relation to what occurred, I've got a pretty clear idea of what happened.

McKENZIE, MS: Yes. That's right. You don't need to hear further from me.

QUAIL DCJ: No. And I accept [the Co-offender's] evidence. I will tell you that now.

1. The appellant's trial counsel began his plea in mitigation by indicating that he was 'not going to go into the facts' as the trial judge had 'just heard them'.[35] In the course of addressing the trial judge about matters personal to the appellant, his counsel said that 'essentially, I guess, your Honour is going to take the facts as him being a dealer'.[36]

1. As noted at [3] above, the trial judge sentenced the appellant to 4 years 10 months' immediate imprisonment and the Co-offender to 2 years' imprisonment, suspended for 20 months.

Finding facts for the purposes of sentencing after trial: general principles

1. At this point, it is convenient to recall the general principles in relation to finding facts for the purposes of sentencing. In RMM v The State of Western Australia,[37] this court gave the following summary of those general principles.
2. The respective roles of the trial judge and a jury were explained in the following terms by the plurality in Cheung v The Queen:[38]

The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability.

1. Generally speaking,[39] a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.[40]
2. Section 15 of the Sentencing Act provides:

To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

1. Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence. However, the discretionary power under s 15 must be exercised:

(a) in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and

(b) in accordance with the rules of procedural fairness.[41]

So, for example, s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, information he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.[42]

1. If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[43]
2. Notwithstanding s 15 of the Sentencing Act, where an offender disputes facts or circumstances asserted by the prosecution, the facts or circumstances must be established according to the strict rules of evidence.[44]
3. A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.[45]
4. Where the prosecution fails to prove a fact or circumstances which is adverse to an offender, but an alternate fact or circumstances favourable to the offender has not been established on the balance of probabilities, a sentencing judge is not bound to sentence the offender on the basis of the more favourable version. In such a case, the sentencing judge may sentence the offender on the basis that neither of the competing possibilities is known.[46]
5. In the present case, the jury's verdict necessarily involved rejection of the appellant's evidence at trial. The evidence led at trial left it open to the trial judge to accept the Co-offender's account. There was nothing inherently implausible about the Co-offender's account. The Co-offender's evidence that the appellant was a drug dealer was supported by the evidence of messages on the appellant's phone which appeared to indicate that he was operating a business selling methylamphetamine. In these circumstances, the success of the appellant's challenge to the trial judge's factual findings as to the appellant's role in the offending must depend on the admission of additional evidence in the appeal. It is convenient to turn to the principles relating to the admission of that evidence.

Admitting additional evidence in an appeal against sentence Statutory provisions

1. Under s 31(4)(a) of the Criminal Appeals Act 2004 (WA), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. Under s 31(5), if the court allows an appeal against sentence it must set aside the sentence and may instead impose a new sentence that is either more or less severe or may send the charge back to the court that imposed the sentence to be dealt with further.
2. Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may 'admit any other evidence'.
3. Under s 41(4)(a) of the Criminal Appeals Act:

The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard.

1. The exercise of the power in s 40(1)(e) to admit any other evidence in an appeal against sentence was considered by this court in Wheeler v The Queen [No 2].[47] In that case, the offender had been sentenced for Commonwealth tax offences. Following sentence, he was diagnosed as having suffered from a 'generalised anxiety disorder'. He sought to appeal against his sentence, and applied to have the evidence of his diagnosis admitted as additional evidence in the appeal.
2. McLure P and Newnes JA both agreed with Owen JA as to the test to be applied in determining whether additional evidence should be admitted in an appeal against sentence.[48] Owen JA described the power to admit additional evidence in a sentence appeal in the following terms:[49]

The well known distinction between 'fresh' and 'new' evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it. (emphasis added)

1. The court in Wheeler resolved the appeal and the application to adduce additional evidence, in essence, by reference to whether the additional evidence led the court to conclude that a different sentence should have been imposed. The evidence did not so convince the court, so the appeal and application were dismissed.[50]
2. Wheeler has been cited in numerous cases for the proposition that the test, for when the power in s 40(1)(e) to admit additional evidence should be exercised, in the context of an appeal against sentence, is whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed.[51]
3. Expressed in that manner, the question of whether additional evidence should be admitted coalesces with the question of whether the appeal should succeed on the basis that a different sentence should have been imposed. However, on that approach, it remains necessary to identify the circumstances in which additional evidence may justify allowing an appeal against sentence on the basis that a different sentence should have been imposed. That requires identification of the nature of the power, conferred by s 31(4)(a) of the Criminal Appeals Act, to allow an appeal on the basis that this court is of the opinion that a different sentence should have been imposed.
4. As will be seen, a conclusion that a different sentence should have been imposed is not, on its own, sufficient to justify appellate interference. Before the question of whether a different sentence should have been imposed arises, there is an additional critical element that is a precondition for appellate intervention - namely, that (1) the judge made an error or (2) a miscarriage of justice has occurred.

1. It was well established prior to the enactment of the Criminal Appeals Act that an appellate court is not entitled to intervene in a sentence appeal merely because it would have exercised a sentencing discretion in a manner different from the sentencing judge.[52] The same approach has been consistently applied under the Criminal Appeals Act, which does not derogate from that fundamental character of a sentence appeal. As this court noted in LAT v The State of Western Australia,[53] in a passage recently adopted in Abbott v The State of Western Australia:[54]

The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice below in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed.

1. That is, this court does not proceed to consider what sentence it would have imposed until material error by the sentencing judge or some other miscarriage of justice is established.[55] In other words, the question arising under s 31(4)(a) - whether a different sentence should have been imposed - does not arise unless the appellate court has found error, or a miscarriage of justice, in the sentence imposed.
2. Ordinarily, the court's power to intervene is not enlivened in the absence of a material error of fact or law which can be detected in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or plainly unjust.[56] Once error is established this court will, unless it remits the matter to the sentencing court,[57] then consider for itself the sentence which it considers to be appropriate. If, in the independent exercise of its discretion, it would impose the same sentence as the sentencing judge then this court will dismiss the appeal, notwithstanding the error detected or inferred, on the basis that it considers that no different sentence should have been imposed.[58] Otherwise, the court may impose a new sentence that is either more or less severe.[59]
3. However, even where no error of the kind referred to in House v The King is established, this court may interfere to avoid a miscarriage of justice from arising. The High Court in Betts recognised, in a similar statutory context to the present, that the New South Wales Court of Criminal Appeal has the flexibility to receive new evidence when it is necessary to do so in order to avoid a miscarriage of justice.[60] The High Court referred to a number of authorities, including the observation of Gleeson CJ in Araya v The Queen that:[61]

As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.

However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.

In our view, these observations, which are consistent with those of Owen JA in Wheeler, are equally applicable to the Criminal Appeals Act.

1. A sentencing judge cannot ordinarily be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court.[62] A miscarriage of justice may arise from the absence of material evidence before the primary court.[63] However, it is clear that such a miscarriage will not arise in all cases, and that the identification of miscarriage must be undertaken consistently with the nature of an appeal, in a manner that does not 'have the practical effect of obliterating the distinction between original and appellate jurisdiction'.[64]
2. That is illustrated by the approach taken in cases referred to in LWD, where the court noted the distinction usually drawn between matters which existed but were not known at the time of sentencing and matters which have come into existence since the time of sentence. Those authorities recognise that, ordinarily, evidence will not be admitted of events which have occurred since the sentence was imposed.[65] As recently reiterated in Baynah,[66] that is because:

[A]n appellate court does not fulfil a continuing supervisory role over the effect of a sentence of imprisonment upon an individual. Where a sentence, appropriate when passed, has, by reason of subsequent events, turned out to be excessive, that is a matter for executive government, rather than this court.

1. It has been recognised that, consistently with the role of an appellate court, evidence of events subsequent to the time of sentencing may be received to show facts relevant to the sentencing process which were in existence at the time of sentencing but either not known to the sentencing judge or not properly appreciated at the time.[67] That may occur, for example, where a mental health impairment which existed prior to sentencing is diagnosed, or its significance is appreciated, after sentencing has occurred. A miscarriage of justice may arise from the absence of evidence of that kind at the sentencing hearing.[68] That was the kind of evidence sought to be advanced in Wheeler, although ultimately the appeal was dismissed on the basis that the additional evidence did not, as a matter of fact, justify a lower sentence being imposed in that case.
2. Once error or miscarriage is established, this court may receive evidence of the offender's rehabilitation in the period since the sentencing hearing, under s 41(4)(a) of the Criminal Appeals Act.[69] However, even once express or inferred error is established, then, exceptional cases apart, the question of whether some different sentence ought to have been imposed is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.[70]

1. As Owen JA noted in Wheeler, the distinction between 'fresh' and 'new' evidence is of lesser significance in an appeal against sentence than it is in an appeal against conviction. However, the distinction between fresh and new evidence may, in a particular case, bear significantly upon the question of whether the absence of evidence at first instance gives rise to a miscarriage of justice. A miscarriage of justice may more readily arise in an appeal against sentence from the absence of evidence which was not known to, or reasonably obtainable by, the appellant at the time of sentence.
2. In general terms, a miscarriage of justice will be difficult to establish where evidence was actually known to an appellant and not used in the sentencing hearing. This point was made by Howie AJ in Fordham v The Queen,[71] in a passage cited in Betts:[72]

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

1. In M v The Queen, decided under the appeal provisions that preceded the Criminal Appeals Act, Steytler J made similar observations:[73]

The guiding principle, as I understand it, is simply that the Court has a discretion to admit new evidence so as to avoid a miscarriage of justice. For myself, I would be reluctant to say anything which might be taken to limit that broad principle. However, I think that it can safely be said that, where the further evidence was known to the applicant at the time of sentencing, it will only be in an exceptional case that the Court will be persuaded that the failure to disclose it has resulted in a miscarriage. Even criminal defendants will ordinarily be made to bear the consequences of their own decisions and there are sound policy reasons for emphasising the need to ensure that all relevant evidence is adduced before the primary tribunal and for discouraging the possibility of withholding evidence for tactical reason. (citations omitted)

We agree with those observations which, in our view, remain applicable under the provisions of the Criminal Appeals Act. The need to consider the particular circumstances in which the evidence was not adduced at sentencing in order to determine whether there is a miscarriage of justice is also indicated by the passage of Wheeler emphasised in the quote at [82] above.

1. In KWLD v The State of Western Australia [No 4],[74] the court considered the exercise of the discretion to admit additional evidence which was said to go to the credibility of a witness. In that case, evidence of a prior inconsistent statement by a complainant was sought to be led as additional evidence in the appeal. The court considered that the possibility that evidence of a prior inconsistent statement could have affected the sentencing judge's findings as to the complainant's credibility was negated when account was taken of the whole of the evidence.[75] Hall J (with whom the other members of the court agreed) observed:[76]

Generally speaking, fresh evidence on a sentence appeal that relates only to the credibility of a witness called at a trial of issues is unlikely to meet the test referred to in Wheeler unless it is clear, unequivocal and of such a nature as to be likely to have affected the factual findings in some significant respect.

Hall J concluded that the matters raised by the offender in his affidavit were vague or speculative and raised 'no reasonable possibility that the sentences imposed would have been different'. His Honour was not satisfied that the test required for s 40(1)(e) of the Criminal Appeals Act had been met.[77]

1. Bearing in mind what we have said as to the grounds and limits of appellate intervention, a conclusion that additional evidence means that a different sentence should have been imposed involves two essential steps. First, the absence of the evidence at first instance gave rise to a miscarriage of justice. Secondly, when account is taken of the additional evidence, the appellate court considers that a different sentence should have been imposed. Thus in KWLD (like in Wheeler), the court refused to admit additional evidence which did not give rise to any reasonable possibility that the sentences imposed would have been different. However, the existence of such a reasonable possibility will not necessarily be sufficient in all cases to establish a miscarriage of justice, particularly where the evidence was known to but not used by an appellant.
2. Having made these observations, it is now convenient to turn to ground 1 to determine the appropriate disposition of the application to adduce the additional evidence.

1. Ground 1 contends that a miscarriage of justice occurred resulting in the appellant being sentenced on an incorrect factual basis. The alleged miscarriage arises from the absence of the evidence of the Co-offender's recorded interview with police, which the appellant seeks to adduce as additional evidence in the appeal.

Proposed additional evidence: Co-offender's recorded interview

1. The Co-offender was interviewed at Northam Police Station from 2.48 pm on 21 July 2017. At the beginning of the interview, he indicated that he was affected by drugs, having taken methylamphetamine before being stopped by police. When asked whether he could think clearly, the Co-offender responded that he could, and that he just had a headache.[78]
2. The Co-offender admitted that he was returning from Perth with the appellant.[79] He said that he went to Perth because he 'needed to sort out money problems'. He said that he had been laid off work and that his 'drug problem and money problem has been a massive factor'.[80]
3. The Co-offender told police that:[81]

I went to a location where I knew there was something ... [a]nd I had to grab it. ... it was some methamphetamines.

The Co-offender said that he did not know how much there was, but thought it was only half an ounce or two to three balls. The Co-offender told police that he was the one who went and picked up the drugs physically.[82] When asked if he could tell police where he went to collect the drugs, the Co-offender responded:[83]

[N]ot without getting a family member in trouble, sorta thing, 'cause he's helped me.

1. The Co-offender said that no money was exchanged for the drugs. When asked why, the Co-offender said:[84]

Um, 'cause it was someone close to me trying to help me out.

1. The Co-offender described himself and the appellant having some of the methylamphetamine on the way back to Kalgoorlie, him seeing police behind them, panicking and putting the drugs behind the glovebox.[85]
2. The Co-offender told police that the appellant was going to sell the methylamphetamine for him and give the Co-offender money.[86]

1. The appellant submits that what the Co-offender said in the recorded interview contradicts the trial judge's factual finding that the Co-offender joined the appellant with the mere expectation that he might get some methylamphetamine for his own use and, potentially, a financial reward.[87] The appellant submits that, on the account that the Co-offender gave to police, the Co-offender was the principal purchaser of the methylamphetamine. He submits, in effect, that it was unlikely that the Co-offender would lie to incriminate himself in the recorded interview with police and then tell the truth to incriminate the appellant at trial.[88]
2. The appellant submits that the recorded interview should be considered in the context of the forensic evidence that DNA exclusively belonging to the Co-offender was found on the bag of methylamphetamine.[89] However, it appears that no evidence of this fact was actually led at trial. The appellant does not seek to adduce such evidence as additional evidence in the appeal.
3. The appellant contends that, had the recorded interview been raised with the trial judge, his Honour would have found the appellant to 'hold a lower level of criminal culpability than was found and consequently a lower sentence would have been considered appropriate'.[90] The appellant in effect contends that he should have been sentenced on the basis that the commercial enterprise was the Co-offender's, the Co-offender was the principal buyer of the methylamphetamine and the appellant was merely the helper.[91]

1. The difficulty for the appellant in relation to ground 1 is that evidence of the Co-offender's inconsistent statements to police was introduced at trial. The matters noted at [50] - [53] above were put to the Co-offender in cross‑examination and the Co-offender accepted that he had made the statements. The Co-offender offered an explanation as to why he had made the statements: he was 'high' on methylamphetamine at the time. In sentencing the appellant, the trial judge was clearly cognisant of the existence of the prior inconsistent statements, having directed the jury about them only a few hours prior. Although not all of the inconsistencies had been put to the Co-offender in cross-examination, the trial judge accepted his evidence knowing that he had given a different account to police.
2. It also appears, from the sentencing remarks that refer to the Co-offender's admissions in the recorded interview,[92] that the trial judge was generally aware of its contents.
3. Further, the absence of any parts of the recorded interview which were not before the trial judge was a result of the decision of the appellant's trial counsel not to lead the evidence. The trial judge cannot be held to have committed any error by making factual findings without regard to material not before him. The appellant's trial counsel clearly had the recorded interview, as he cross-examined upon it. There is no miscarriage of justice involved in the absence of evidence of parts of the recorded interview which was in the possession of the appellant's trial counsel, who chose not to adduce the evidence.
4. It is also significant that the appellant's trial counsel did not, in sentencing submissions, seek to challenge the trial judge's indication that he proposed to sentence the appellant on the basis of the facts recounted in evidence by the Co-offender (see [65] - [66] above). As the High [93]urt observed in Betts:93

Forensic choices are made in the conduct of the offender's case at the sentence hearing, which include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested.

The interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal.[94]

1. In our view, the appellant has not identified any error by the trial judge or miscarriage of justice arising from the absence of evidence before the trial judge. Evidence of the recorded interview was before the trial judge, and the absence of any relevant parts of that interview did not give rise to a miscarriage of justice in all the circumstances.
2. Ground 1 is not arguably established and we would refuse to grant leave in respect of that ground. Consistently with the approach in Wheeler, the application to adduce additional evidence in the appeal should therefore be dismissed.

1. Ground 2 alleges an infringement of the parity principle.
2. The principles to be applied in determining whether this court should interfere with a sentence on parity grounds are well established. The court recently adopted the following summary of Buss JA in Barnden v The State of Western Australia:[95]

The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.

An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.

More recently, in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:

'(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].'

Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].

It has often been said that it is highly desirable for co‑offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. (some citations omitted)

1. Some parts of the appellant's submissions suggested that ground 2 was relied on in conjunction with ground 1. However, the appellant only needs to rely on ground 2 if ground 1 is not established. If ground 1 were established and the appellant were to be resentenced on the basis that he was merely helping the Co-offender then, having regard to all the circumstances (including the sentence imposed on the Co-offender), it is clear that a different, lower, sentence would be imposed. However, as ground 1 is not established, the issue of parity must be addressed by reference to the facts found by the trial judge.
2. In the present case, the significant differences between the sentence imposed on the appellant and the Co-offender are explained by the following matters found by the trial judge:

(1) The offenders played very different roles in the offending. The appellant was operating a commercial business of dealing in methylamphetamine, owned the drugs and intended to profit from their distribution in the Kalgoorlie community. The Co-offender was merely accompanying the appellant in the expectation of receiving some drugs and money as a reward. As the trial judge observed, the culpability of the appellant and the Co-offender was 'worlds apart'.[96]

(2) The Co-offender provided assistance to police by giving evidence in the appellant's trial, which the trial judge correctly recognised as the most significant mitigating factor in his favour.

(3) The Co-offender pleaded guilty (albeit at a very late stage) while the appellant did not.

(4) The Co-offender was remorseful and had taken positive steps towards his rehabilitation, which could not be said for the appellant.

(5) The Co-offender received a small amount of mitigation for his youth, whereas the appellant was 'a mature man who should have known better' and received no such credit.[97]

1. In our view, the above differences combine to amply justify the different types of sentence imposed on the appellant and the Co-offender, and the different periods of imprisonment. Having regard to those differences, the disparity in the sentencing outcomes is not capable of giving rise to a legitimate or justifiable sense of grievance, or giving the appearance in the mind of an objective observer that justice has not been done. Ground 2 is not arguably established and we would refuse to grant leave in respect of that ground.

1. For the above reasons, there is no merit in either of the appellant's grounds of appeal. There would be no utility in extending the time for him to appeal. The following orders should be made in the appeal:

(1) The appellant's application for an extension of time in which to appeal is dismissed.

(2) The appellant's application for leave to adduce additional evidence in the appeal is dismissed.

(3) Leave to appeal is refused on both grounds of appeal.

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

[1] Order of Mazza JA, 24 December 2018.

[37] RMM v The State of Western Australia [2018] WASCA 183 [197] - [204].

[38] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].

[39] Cf Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.

[40] Chiro [52], [70], [83] - [85]; Cheung [14] - [17], [98] - [99], [162] - [163]; R v Olbrich [1999] HCA 54 (1999) 199 CLR 270 [24].

[41] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [64] - [65]; Tanner v The State of Western Australia [2013] WASCA 142 [134] - [135].

[43] Olbrich [25]; Law v The State of Western Australia [2009] WASCA 193 [29] - [31].

[44] Rimington v The State of Western Australia [2015] WASCA 102 [59]; The State of Western Australia v JWRL [2010] WASCA 179 [10]; Pelemis v The State of Western Australia [2009] WASCA 151 [13]; HAS v The State of Western Australia [2005] WASCA 29 [49] - [55].

[45] Olbrich [27]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].

[47] Wheeler v The Queen [No 2] [2010] WASCA 105.

[50] See Wheeler [16], [74] - [75].

[51] See, for example, Papworth v The State of Western Australia [2017] WASCA 82 [17] and cases there cited; LWD v The State of Western Australia [2017] WASCA 174 [83]. Wheeler was referred to in Rinaldi v The State of Western Australia [2017] WASCA 48 [76], and applied in LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1 [120], [124] - [132] and Carter v The State of Western Australia [No 2] [2015] WASCA 59 [42] - [55].

[52] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3], [21], [57] - [58].

[53] LAT v The State of Western Australia [2018] WASCA 215 [39]

[54] Abbott v The State of Western Australia [2019] WASCA 90 [44].

[55] See also Law v The Queen [2019] WASCA 81 [126].

[56] House v The King (1936) 55 CLR 499, 505; Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10].

[58] See, for example, Kentwell v The State of Western Australia [2014] HCA 37; (2014) 252 CLR 601 [35]; Collins v The State of Western Australia [2007] WASCA 108 [8]; Trajkoski v The State of Western Australia [2008] WASCA 130 [25]; R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [50].

[59] Under s 31(5)(a) of the Criminal Appeals Act.

[61] Araya v The Queen (1992) 63 A Crim R 123, 129 - 130.

[62] Baynah v The State of Western Australia [No 2] [2019] WASCA 103 [67].

[63] Gallagher v The Queen [1986] HCA 26; (1985) 160 CLR 392, 395; see also 402, 408.

[64] Rinaldi v The State of Western Australia [2007] WASCA 53 [84], referred to with approval in Huggins v The State of Western Australia [2018] WASCA 61 [395] - [396].

[66] Baynah [49]. To similar effect, see Abbott [44] - [46]; LAT [40] - [44].

[67] Baynah [49]; LWD [85] - [87] and cases there cited.

[68] See, for example, the cases cited in LWD [85] - [87].

[69] In LWD [82], the court noted that, arguably, s 41(4) is only relevant where the court has found error and is exercising the sentencing discretion afresh or considering whether to exercise its residual discretion to dismiss a prosecution appeal. See also Woods v The State of Western Australia [2017] WASCA 179 [66]; The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [220] ‑ [224]

[70] See, in a similar statutory context to the present, Betts [11], [14], [16] and DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764 [9].

[71] Fordham v The Queen (1997) 98 A Crim R 359, 377.

[72] Betts [10]; see also Gordon v The Queen [2017] NSWCCA 199 [35].

[73] M v The Queen [2004] WASCA 236 [7].

[74] KWLD v The State of Western Australia [No 4] [2013] WASCA 185.

[95] Barnden v The State of Western Australia [2014] WASCA 161 [55] ‑ [59], adopted in Bull v The State of Western Australia [2019] WASCA 24 [36].