WEST -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 3 (6 January 2023)

1. The facts of the offending are not in dispute and may be summarised as follows.
2. At about 8.20 am on 3 June 2018, police executed a search warrant at the appellant's home in Langford. As to count 1, the police located a number of items consistent with the manufacture of cannabis oil, including cannabis plant material, butane gas canisters, glycerine, propylene glycol, two decarboxylators, which had cannabis traces within, and a machine capable of extracting oil from plant material. Chemists who examined the scene confirmed that all the items necessary to manufacture cannabis oil were present at the appellant's home and that cannabis oil had, in fact, been manufactured.
3. As to count 2, at the rear of the appellant's property police located a room that had a number of drug‑related items including scales, clipseal bags, syringes and silicone containers. Police found messages relating to the sale and supply of drugs on the appellant's computer and mobile telephone. Police also located and seized 679 g of cannabis which was packaged in clipseal bags in amounts ranging from 1 g to 83 g or 84 g. Police also located $2,645 in cash derived from the sale and supply of drugs.
4. As to count 3, on 11 June 2018, officers from the Australian Border Force and Customs intercepted a parcel addressed to the appellant at his home in Langford. The parcel appeared to have been posted from Poland. The parcel contained paper sheets impregnated with LSD. The sheets were perforated into small squares (colloquially called 'tabs'). There were 600 tabs within the contents of the parcel. The LSD tabs were seized and an inert substance was substituted.
5. Police in Western Australia arranged for the controlled delivery of the parcel to the Langford address. At about 10.15 am on 15 June 2018, a police officer dressed as an Australia Post courier placed the parcel into the letter box at the appellant's home. Shortly after, police officers executed a search warrant and found the unopened parcel hidden in a rubbish bin.
6. The total weight of the 600 tabs of LSD was 11.6 g, comprising the combination of the paper and the active LSD impregnated in it. The LSD component of that was 0.0436 g or 43.6 milligrams (mg). Each tab contained 72.7 micrograms (μg) of LSD. The appellant had sold LSD in the past and advertised LSD for sale on the internet for $25 per tab. If sold by the tab, the LSD would have been worth $15,000. If sold by the sheet, its value was between $6,000 and $7,800.[2]

1. At the time of the commission of the offences, the appellant was 26 years of age. By the time he was sentenced, he was 29.
2. The appellant completed year 10 at school. Since leaving school at about the age of 16 years he has been constantly employed.
3. The appellant has used cannabis since he was 16 years old. His Honour described the appellant as having 'a general interest in drugs', including LSD. In 2012, the appellant was convicted in the Magistrates Court of seven drug‑related offences, including an offence of possession of MDMA with intent to sell or supply. For all of these offences, he was placed on a 12 months intensive supervision order. The appellant successfully completed this order.
4. The appellant was remanded in custody for the current offences from 15 June 2018 until 20 February 2019. After his release, the appellant successfully completed a three‑month residential drug rehabilitation program at Palmerston Farm. In 2019 and 2020, the appellant undertook a number of courses, including obtaining a certificate IV in work health and safety. After he committed the offences the subject of this appeal he obtained employment at Rottnest Island as a general hand, where he was highly regarded. In a letter provided to the sentencing judge, written by the operations manager of the Island, the appellant is described as leading a team of 15 or so workers and as an integral part of that team.

1. The sentencing judge described the appellant as 'a low to mid‑level [drug] dealer'.[3] He concluded that the appellant dealt in drugs 'probably for some personal gain and also to support [his] drug use'.[4]
2. His Honour identified as an aggravating feature that the appellant dealt with two different types of drugs. The appellant was arrested on count 3 while on bail for counts 1 and 2. However, his Honour observed, in effect, that this was not an aggravating factor, stating that this was 'not as bad in [the appellant's] case as it seems because things must have been afoot before 3 June for [the appellant] to get these drugs coming from Poland on the 15th [of June]'.[5]
3. His Honour remarked on the quantity of the LSD, the subject of count 3, and the seriousness of the offence having regard to the quantity of the drug required to base a drug trafficker declaration. He said:[6]

The total weight of the LSD was 11.6 grams. Now, that's the six sheets. The LSD component of that was 0.0436 grams or 43.6 milligrams. There were 72.7 micrograms - I said milligrams, I meant micrograms, there were 72.7 micrograms which I'm told is of mid‑range purity. That 72.7 is per square.

Now, 600 tablets could be sold by you at the advertised price on your Internet note $25 each which would bring in $15,000 or if sold per sheet would being [sic] in 6,000 to $7,800 with 100 tabs on each sheet.

Now, in terms of the seriousness of this offending, that can be references to what Parliament has said makes you a drug trafficker, and that is if you sell more than - well, yes, if you sell 0.01 of a gram or more of LSD, then that makes you a drug trafficker which results in you being declared to be a drug trafficker with the loss of all your assets, or the forfeiture of your assets, to the State.

So you had four and a bit times more than that amount. And to give you a comparator, that would be 28 grams, say, of methylamphetamine which would make you a drug trafficker. That's perhaps not the most useful comparison but it shows that, with you having four times the quantity which makes you a drug trafficker, we're talking serious supply and sale of drugs in your case.

1. His Honour identified a number of mitigating factors:

(a) As to counts 1 and 2, his Honour observed that the appellant had pleaded guilty. His Honour did not quantify the discount for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA), although his Honour referred to the maximum discount that can be given under that section of 25%.[7]
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> (b) The appellant had shown remorse in respect of counts 1 and 2.
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> (c) Since his arrest, the appellant had voluntarily undertaken a number of steps towards his rehabilitation, including his completion of the three‑month residential drug rehabilitation course at Palmerston Farm and a number of work and trade courses.
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> (d) The appellant made a number of admissions in his trial which shortened the proceedings 'considerably'.[8]
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> (e) The appellant had remained drug free since his release from prison in early 2019.
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> (f) At the time of the offences the appellant was 26 years of age and was entitled to 'some vestiges' of mitigation for youth.[9]

2. His Honour referred to the appellant's criminal history. His Honour found that the offending was 'not an uncharacteristic aberration'.[10]
3. In respect of the harm that illicit drugs do to the community and the need for penalties to provide general deterrence, his Honour said:[11]

Now, the offences, the maximum penalties of which I've mentioned earlier, are serious. It's Parliament which has laid down the maximum penalties. Parliament has done that because the community is sick and tired of drug offending.

Drugs are the scourge of our society and every day in this court we deal with matters that relate purely to drugs like yours. We also have to deal with other drug related matters such as stealing with violence, home burglaries and the like, in which people try to steal to get money or things they can trade for drugs.

Magistrates have a similar problem, in the Supreme Court most of the murders are in some way or other related to drugs. So that's why the penalties or [sic] so high, because the community has told Parliament what I just mentioned, that they're sick and tired of drugs in our society.

Drugs, when you take them, can affect you health wise. The fact that you're here now has impacted on your family and friends sitting in the back of the court. When other people to whom you sell commit burglaries, steal or do whatever they do to get money or things to get drugs with, they commit those offences against innocent members of the community.

And so drugs have a broad impact across the whole of the community, even if people aren't using drugs. Because people in the community become victims of people who commit crimes because of their drug dependency.

And that's why, as I mentioned to [defence counsel], we really have a problem here in that I need to impose a penalty that acts as a general deterrent to [sic] that other people in the community will know that if they commit offences of this kind then there are serious consequences, as I've already mentioned.

1. His Honour expressly referred to the totality principle. As to its effect, he said:[12]

I'm going to have regard to the totality principle in terms of cumulation and concurrence and also, I think it can result in the sentences being less than perhaps might otherwise be the case.

1. His Honour did not specify the actual reduction he made in the imposition of the sentences for totality.

Observations relevant to the sentencing remarks

1. Before dealing with the grounds of appeal, it is convenient to make observations about two aspects of the sentencing remarks.
2. First, it is not disputed that his Honour took into account the appellant's pleas of guilty on counts 1 and 2 as mitigating factors in respect of those offences. However, he did not quantify the reduction he gave for these pleas.
3. Where a sentencing judge reduces a sentence because the offender pleads guilty, s 9AA(5) of the Sentencing Act requires that this fact and the extent of the reduction be stated in open court. His Honour did the former, but not the latter. By failing to state the extent of the reduction, his Honour fell into error. Although the matter was raised by the bench in oral argument in this court, there is no ground of appeal complaining of the error.
4. It is not disputed that the pleas of guilty on counts 1 and 2 were entered on the fast‑track system at the first reasonable opportunity.[13] It was therefore open to his Honour to give the maximum discount of 25% pursuant to s 9AA(4)(b) of the Sentencing Act. The State prosecutor, at first instance, did not submit that a discount less than 25% should be given. His Honour did not express any view.
5. The individual sentences imposed for counts 1 and 2 are towards the lower end of the appropriate sentencing range, and therefore indicate that his Honour probably gave the full discount.
6. In all of the circumstances, it appears that his Honour intended, but overlooked, stating in open court that he gave a discount of or about 25% pursuant to s 9AA(4)(b) of the Sentencing Act.
7. In the circumstances of this case, we are satisfied that although his Honour erred, the error was not material because if it became necessary to resentence the appellant on counts 1 and 2, we would not have imposed a different sentence. We observe that a similar approach to the one we would adopt in this case was taken by Hall J (with whom McLure P agreed) in Burrows v The State of Western Australia.[14]
8. The second aspect relates to that part of the sentencing remarks quoted at [21] above. It is clear from those remarks that his Honour accepted that the total weight of LSD was 11.6 g, being the active LSD component and the paper into which it had been impregnated. His Honour used the active LSD component (0.0436 g) to base his observation that the appellant possessed more than four times the quantity necessary for a drug trafficker declaration (0.01 g).
9. In the respondent's written submissions,[15] it was asserted that his Honour's observation was not factually accurate, as the relevant quantity for calculating whether the appellant was a drug trafficker was 11.6 g, that is, the combination of the paper and active LSD component. The respondent submitted that, in fact, the appellant possessed more than 1,000 times the quantity required for the purposes of making a drug trafficker declaration.
10. LSD is a potent drug used in tiny quantities. This is illustrated by the amounts prescribed under the MDA to give rise to the presumption of an intention to sell or supply (0.002 g - sch V div 1); to determine that the offence is to be dealt with on indictment (0.004 g - sch III div 1); and to give rise to a drug trafficker declaration (0.01 g - sch VII div 1).
11. LSD is often consumed in the form of tabs, which are pieces of paper in which the LSD is impregnated and then swallowed by the user. The paper will invariably, if not always, significantly outweigh the active LSD component.
12. At the appeal hearing, counsel for the State did not press this court to consider the seriousness of count 3 on the basis that the weight of the LSD was more than 1,000 times the quantity required for a drug trafficker declaration. Sensibly, counsel for the respondent took the position that, in ascertaining the seriousness of count 3, whether the appellant was taken to have possessed the LSD including the paper (11.6 g) or the weight of the active LSD component alone (0.0436 g), it was not a crucial point.[16] Whatever the position, the State submitted that the appellant's offending in respect of count 3 was serious.
13. In the circumstances of this case, the position of counsel for the respondent at the appeal hearing should be accepted. It is unnecessary in the present case to determine the method by which the quantity of LSD, for the purposes of making a drug trafficker declaration, is to be calculated where the offender is in possession of paper into which the active LSD component has been impregnated.

1. The general principles governing sentencing appeals are well known and have been stated in many cases in this court. We adopt without repetition the statement of principles made by this court in Kabambi v The State of Western Australia.[17]
2. The general principles concerning the sentencing of offenders who possess or traffic in illicit drugs are also well known. The major sentencing considerations for offences of the kind committed by the appellant are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
3. It is convenient to deal first with ground 3, which alleges a specific error on the part of the sentencing judge, and then grounds 1 and 2, which allege implied error.

The learned sentencing judge made findings as to the actual harm caused by the consumption and trafficking of lysergic acid diethylamide (LSD) where there had been no expert or other evidence placed before the Court and there were no matters of which the learned sentencing judge could take judicial notice of in relation to the actual harm to users and society from the consumption and trafficking of LSD.

1. Purportedly, in support of ground 3, the appellant, by an application in an appeal filed 22 June 2022, sought to adduce additional evidence in the form of a report written by Emeritus Professor Jason M White, a professor in pharmacology, with respect to 'the impact upon users and society of LSD and the actual harm caused by the consumption and trafficking of LSD', dated 9 June 2022. The report sets out the nature of LSD, the drug's range of effects, its impact on the user, and its association with criminal behaviour. Precisely how Professor White's report is relevant to ground 3 was not explained. The application to adduce as additional evidence the report was opposed by the State on the ground of irrelevance.[18] As we will shortly explain, the application should be refused.
2. The ground concerns a remark made by the sentencing judge in the course of sentencing submissions by the prosecutor. After his Honour observed that there were not many comparable sentencing cases in respect of LSD, he said:[19]

And from general knowledge, I think I can say this, LSD probably can, to use a common expression, blow your mind.

1. Neither the statement, nor anything resembling it, was included in the sentencing remarks. Despite this, the appellant submitted that his Honour 'fell into error' by taking into account a matter which was not the subject of evidence and was not a matter of which a court could take judicial notice.
2. In oral submissions, counsel for the appellant, candidly, stated that the ground was 'not the trump card' in the appeal.[20] Nevertheless, the ground was not abandoned.
3. The ground is without merit for the following reasons.
4. First, his Honour's remark was just that - a remark. It was not, as the ground of appeal alleges, a finding, nor, as the written submissions claim, did his Honour express 'a concluded view'.[21] It is notable that experienced defence counsel, who addressed the court in mitigation shortly after the remark was made, took no exception to it.
5. Second, as mentioned in [46], no mention of the capacity of LSD to 'blow your mind' was mentioned in the sentencing remarks. When error by a sentencing judge is alleged, generally speaking, attention is given to what is said in the sentencing remarks and not what is said in dialogue between the court and counsel in the sentencing hearing.
6. Third, the only statements made in the sentencing remarks which bear on the question of harm were those that we reproduced above at [24]. These statements, which his Honour made in the context of explaining why general deterrence was an important sentencing factor, reflect the well‑established and uncontroversial principles laid down by this court in respect of the sentencing of offenders who commit serious offences contrary to s 6(1)(a) of the MDA.
7. Fourth, as the appellant's counsel accepted in his oral submissions,[22] in substance, the remark meant no more than stating that LSD can have a profound effect on the user's brain. This is hardly a controversial statement. Indeed, in Furness v The Queen,[23] the Court of Criminal Appeal stated that LSD was 'an insidious substance' which 'has the potential to have devastating effects on the community'. Nothing his Honour said was erroneous.
8. Fifth, Parliament has not distinguished between LSD and other prohibited drugs (apart from cannabis and a traffickable quantity of methylamphetamine) in determining the maximum penalty for an offence against s 6(1)(a), read with s 34(1)(aa) of the MDA.[24] Ordinarily at least, the relative harm to users caused by a prohibited drug is not a matter which can or should be given much weight.[25]
9. Professor White's report should not be admitted in evidence in this appeal. It does not show that his Honour had an erroneous impression of the effects of LSD on the user. In any event, no different sentence should have been imposed on the appellant.
10. Where Parliament has stated that dealing in certain specified drugs should attract the same maximum penalty, the court should respect Parliament's policy‑based legislative decision and should not proceed on the basis that one of the specified drugs is less anti‑social than others. See R v Stamatov.[26]
11. Ground 3 fails.

1. Grounds 1 and 2 allege implied error.
2. In support of grounds 1 and 2, counsel for the appellant emphasised the positive steps the appellant had taken towards his rehabilitation since his release on bail, including that the appellant had successfully completed a three‑month residential drug rehabilitation program, after which he had been drug free. Counsel reiterated the mitigating factors identified by his Honour, such as the appellant's age, family support, his employment, the pleas of guilty on counts 1 and 2, and the cooperative way he had conducted the trial on count 3.
3. As to the offending itself, counsel for the appellant submitted that, in respect of count 3, the appellant stood to make only a 'modest' profit.
4. Counsel for the appellant submitted that, having regard to all of the matters he had referred to, the sentence imposed on count 3 was manifestly excessive and the total effective sentence infringed the first limb of the totality principle.
5. Counsel for the respondent submitted, in effect, that the appellant's offending was serious. The appellant had engaged in the manufacture, possession and attempted possession of different prohibited drugs. It was submitted, in effect, that the offending in respect of count 3 was particularly serious, because it involved the sourcing of 600 LSD tabs from overseas.
6. It was submitted by the respondent that while the appellant was entitled to credit for his pleas of guilty on counts 1 and 2, and the manner in which he cooperated in the trial process on count 3, as well as the steps he had taken to rehabilitate himself, it could not be said that the sentence on count 3 was manifestly excessive or that the total effective sentence infringed the first limb of the totality principle.

1. We have already stated the maximum penalties for each offence.
2. Each offence committed by the appellant was serious. The appellant engaged in the actual manufacture of cannabis oil. He possessed cannabis, packaged for sale, in a context where he was selling the drug for profit. Count 3 involved even more serious offending. The appellant arranged for a substantial quantity of LSD to be sent to him, via the post, from Poland, for sale. If not for the interception of the package containing the LSD by customs officers, it is highly likely the delivery would have been completed. While count 3 was an offence of attempting to possess LSD with intent to sell or supply, the appellant did everything he could to effect his possession of it. He did so against the background that he had previously sold the drug and had advertised its sale over the internet. Even allowing for the cost of purchasing the LSD, and his own use, the appellant stood to derive a profit from its sale.
3. The offending, as a whole, involved planning, determination and some sophistication. The appellant's overall offending involved substantial criminality.
4. Few comparable cases in respect of LSD were cited by the parties. The appellant referred to Harvey v The State of Western Australia.[27] The respondent referred to Chick v The Queen;[28] Watson v The Queen;[29] Vagh v The State of Western Australia[30] and Jordan v The State of Western Australia.[31]
5. It is unnecessary to discuss in detail the facts and circumstances of each of these cases. All of them involved offenders who had committed multiple offences, including an offence of possession of LSD with intent to sell or supply. In all of the cases, the issue to be decided was whether there had been an infringement of the totality principle, and not whether the sentence for the LSD offence was manifestly excessive. The facts and circumstances of the cases varied considerably from the present case. This factor, along with their small number, means that the cited cases provided little assistance in the resolution of grounds 1 and 2. Of course, the absence of relevant comparable cases does not preclude a conclusion that an individual sentence was manifestly excessive, or that the first limb of the totality principle has been infringed.
6. Although it cannot be said that the appellant was a person of prior good character, we acknowledge that, after his release on bail for the current offences, he made considerable progress towards his rehabilitation. This, along with the other mitigating factors, including his early pleas of guilty on counts 1 and 2, must be taken into account.
7. Nevertheless, despite the mitigating factors, general deterrence remains an important sentencing consideration.
8. Having considered all of the relevant facts and circumstances, and all relevant sentencing factors (including the authorities as referred to by the parties), we are satisfied that the sentence for count 3 of 4 years 6 months' imprisonment was not unreasonable or plainly unjust. Implied error has not been demonstrated. The sentence is not manifestly excessive. While we would grant leave to appeal on ground 1, the ground fails.
9. Turning to ground 2, the offending as a whole involved planning, persistence and some sophistication. We will not repeat what we have said about the sentence on count 3. Counts 1 and 2 involved significant additional criminality. The appellant had gone to some considerable lengths to manufacture cannabis oil, and, on the evidence, had successfully done so. The quantity of cannabis the appellant possessed, which was the subject of count 2, was reasonably significant. It was clear from the items seized by the police that the appellant was engaged in the sale of the drug. Not only was the appellant engaged in dealing in cannabis for a commercial purpose, but he also intended to deal in LSD for the same purpose. It was entirely appropriate for his Honour to impose an additional term of imprisonment to take account of the criminality involved in counts 1 and 2.
10. We are satisfied that the total effective sentence of 5 years 6 months' imprisonment imposed in the present case did not infringe the first limb of the totality principle. The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally and including the steps taken by the appellant towards his rehabilitation, and all relevant sentencing factors. The total effective sentence was not unreasonable or plainly unjust. Implied error has not been established. While we would grant leave to appeal on ground 2, the ground fails.

1. None of the grounds of appeal have been made out. While we would grant leave to appeal in respect of grounds 1 and 2, we would not grant leave to appeal on ground 3 and we would dismiss the application to adduce evidence in the appeal filed in respect of this ground. We would grant an extension of time to appeal.
2. The orders that we would make are as follows:
   1. The application for an extension of time is granted.
   2. The application to adduce additional evidence in the appeal filed 22 June 2022 is dismissed.
   3. Leave to appeal on grounds 1 and 2 is granted.
   4. Leave to appeal on ground 3 is refused.
   5. The appeal is dismissed.

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

[14] Burrows v The State of Western Australia [2014] WASCA 147 [32].

[15] Respondent's answer, par 19, fn 5.

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

[23] Furness v The Queen (1995) 79 A Crim R 59, 63.

[24] Monisse v The State of Western Australia [2021] WASCA 52 [73].

[25] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [102].

[26] R v Stamatov [2017] QCA 158; [2017] 2 Qd R 1.

[27] Harvey v The State of Western Australia [2015] WASCA 146.

[28] Chick v The Queen [2000] WASCA 231; (2000) 114 A Crim R 417.

[29] Watson v The Queen [2000] WASCA 119.

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

[31] Jordan v The State of Western Australia [2012] WASCA 163.