KRUGER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 99

[2026] WASCA 99 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KRUGER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 99 CORAM : ARCHER JA SWEENEY JA SEAWARD JA HEARD : 19 JUNE 2026 DELIVERED : 17 JULY 2026 FILE NO/S : CACR 97 of 2025 BETWEEN : JOHANNES DIDERIK KRUGER Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : CLEARY DCJ File Number : IND 443 of 2025 Catchwords: Sentencing - Drug offences - Possession of trafficable quantity of methylamphetamine - Drug courier - Manifest excess -- 1 of 21 -- [2026] WASCA 99 Page 2 Legislation: Nil Result: Leave to appeal granted Appeal dismissed Category: B Representation: Counsel: Appellant : Mr J E Keogh Respondent : Ms N R Sinton Solicitors: Appellant : Tudori Hager Grubb Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Al-Rafei v The State of Western Australia [2017] WASCA 4 ATH v The State of Western Australia [2021] WASCA 149 Bond v The State of Western Australia [2011] WASCA 123 Browne v The State of Western Australia [2024] WASCA 162 Diamantopoulos v The State of Western Australia [2024] WASCA 82 Gaskell v The State of Western Australia [2018] WASCA 8 Guler v The State of Western Australia [2014] WASCA 83 HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 Kabambi v The State of Western Australia [2019] WASCA 44 McGrath v The State of Western Australia [2021] WASCA 118 Pham v The State of Western Australia [2011] WASCA 244 Phan v The State of Western Australia [2014] WASCA 144 Ta v The State of Western Australia [2022] WASCA 49 Tran v The State of Western Australia [No 2] [2025] WASCA 102 -- 2 of 21 -- [2026] WASCA 99 Page 3 VRW v The State of Western Australia [2022] WASCA 177 Watson v The State of Western Australia [2022] WASCA 80 Watson v The State of Western Australia [No 2] [2024] WASCA 66 Wood v The State of Western Australia [2024] WASCA 143 Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 -- 3 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: Introduction 1 At about 10.30 pm on Christmas Eve 2024, the appellant stopped his Isuzu truck outside a house in Osborne Park, then stashed a zip lock bag containing almost a kilogram of methylamphetamine, concealed within a jumper, under a bush in a garden bed next to the driveway. 2 The house was equipped with a CCTV camera. The occupant, alerted by the noise of the truck, saw the appellant on the screen inside. After the appellant drove off, she came outside, looked around the garden bed and found the package. She called the police. 3 Three days later, the appellant was arrested at Hillarys Boat Harbour. While he was being escorted away by police, he grabbed his mobile phone out of his pocket and managed to fold it in half, destroying it and any evidence it contained. 4 The appellant pleaded guilty at an early stage to one offence of being in possession of a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (count 1), and an offence of wilful destruction of evidence (count 2). 5 On 12 August 2025, the appellant was sentenced to a total effective sentence of 9 years 1 month's imprisonment. Count 1 attracted a term of 8 years 7 months' imprisonment to be immediately served, while the sentence imposed in respect of count 2 effectively added 6 months to the overall total. 6 The appellant appeals against the sentence imposed in respect of count 1 only, on the basis that it is manifestly excessive. For the reasons which appear below, leave to appeal is granted but the appeal is dismissed. Ground of appeal 7 There is a single ground of appeal, to the effect that the sentence of 8 years 7 months' imprisonment imposed in respect of count 1 was, in all the circumstances, manifestly excessive. 8 The appellant does not challenge the sentence imposed in respect of count 2, and accepts that a degree of cumulation between the two terms was appropriate. Nor does the appellant suggest that anything other than a substantial term of immediate imprisonment was required. -- 4 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 5 Facts of the offending 9 The following is taken from the facts read to the court by prosecuting counsel at sentencing, which were incorporated into the learned sentencing judge's sentencing comments,1 and findings made by her Honour. Count 1 - possess prohibited drug with intent to sell or supply 10 At about 10.30 pm on Tuesday 24 December 2024, the appellant, then aged 48, was driving his Isuzu work truck in Osborne Park. 11 He parked the vehicle on the front verge of a residential address. He got out of the truck and walked to the front garden of the premises. He went to place an item in the garden bed, before choosing a slightly different spot for it, leaving it beneath bushes in a garden bed to the side of the driveway. He returned to his truck and drove off. 12 The resident of the property, having been alerted by the sound of the appellant's truck, watched the incident via her CCTV camera system. After the appellant had left, she went out to the front garden to investigate and discovered a dark-coloured jumper concealing a large zip lock bag which contained a white crystal substance. 13 Suspecting the substance to be a prohibited drug, she contacted police. Police officers attended the property and seized the item. 14 Subsequent analysis confirmed the white crystal substance was 993 g of methylamphetamine, at a purity of approximately 75%. Count 2 - wilful destruction of evidence 15 Shortly before midday on 27 December 2024, the appellant was arrested at Hillarys Boat Harbour. As he was being escorted away, the appellant grabbed his mobile phone out of his pocket and destroyed it by folding it in half, rendering the device inoperable. Items found at his house 16 Following his arrest, the appellant was taken to his residence in Girrawheen, where police executed a search warrant. In the appellant's bedroom, police found: (a) two sets of digital scales; 1 WAB 48. -- 5 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 6 (b) a syringe containing a quantity of methylamphetamine mixed with blood; (c) a grinder containing cannabis residue (approximately 2 g of cannabis) and a container of cannabis (approximately 10 g of cannabis); and (d) a glass smoking implement. 17 Police also located clothing items that matched the appearance of the clothes the appellant was wearing in the CCTV footage when he dropped the package off. 18 When questioned by police, the appellant acknowledged that the syringe contained approximately 0.1 g of methylamphetamine, which had been mixed with his own blood. He admitted to being a methylamphetamine user, claiming that he typically consumed the substance about once a month, in quantities of approximately 0.1 g ('a point') per use. He said he used the digital scales to weigh methylamphetamine for his own use. He also admitted ownership of the cannabis, but said he had not consumed cannabis in the past six to seven months. The appellant's counsel at sentencing informed the court that the appellant had significantly understated his drug use to police, which her Honour accepted. 19 In the appellant's bedroom, police located a black storage cabinet containing six firearms (five rifles and one shotgun) as well as a large quantity of ammunition of various calibres. The firearms and ammunition were seized, since the appellant's firearms licence had expired in September 2024. Her Honour accepted that the firearms, which had been lawfully possessed until the appellant's licence had lapsed and which were securely stored, were of no relevance in determining the appellant's role in the offending.2 20 During questions from police, the appellant admitted destroying his mobile phone device following his arrest earlier that day. He claimed that he had done so because he did not want police to access personal photos on the device. Counsel for the appellant at sentencing, however, accepted that the appellant had destroyed his phone because, following the drop, he had informed 'the person' connected to the transaction 'where the address is'.3 Her Honour described the appellant's act of breaking the phone as 'a serious example of trying to 2 WAB 50. 3 WAB 41. -- 6 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 7 protect those who were directing you at least'.4 Clearly, her Honour found that the appellant had destroyed his phone in order to destroy evidence of his communications with another or others involved with the package of methylamphetamine. 21 After the completion of the search, police took the appellant to the offices of the Drug and Firearms Squad at Curtin House. He declined to participate in an electronic record of interview and was subsequently charged, with his bail being refused. He has remained in custody since that date. Findings as to the appellant's role in relation to the drugs 22 The appellant's counsel at sentencing informed the court that the appellant's construction company went into liquidation in 2018 and he lost everything. This put a strain on his second marriage, and he and his wife, with whom he shares two children, separated. He attempted to build a new business, but the impact of the Covid pandemic adversely impacted his efforts. His daughter from his first marriage in South Africa, who had moved to Australia to live with him when she was aged 13, died suddenly in 20205 at the age of 20. While dealing with grief and the stress of his business, the appellant became depressed. His marriage officially ended in divorce during this same period. 23 It was at that time, counsel said, that the appellant was introduced to methylamphetamine. He threw himself into his work, working two jobs and, initially, drug use enabled him to work long hours and numbed the pain of his loss. He quickly developed an addiction, and his usage grew to two to three 'points' per day, costing him about $3,000 a week. 24 Counsel informed the learned sentencing judge that the appellant accumulated a drug debt, while also borrowing money in relation to his struggling business, and came to owe about $30,000. The appellant was told, counsel said, that on account of his drug debt he had to deliver the package to an address and, while he knew that it was wrong to do so and knew the risks, he felt that he had no choice but to deliver the package. Counsel did not suggest that the appellant had been subjected to violence or threats of violence, but submitted that he felt pressured. 4 WAB 56. 5 The year is misstated as 2013 in the learned sentencing judge's comments at WAB 49 but later correctly stated as 2020 at WAB 53. The year 2020 accords with other facts. -- 7 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 8 25 Counsel described the appellant as being 'happy to do it because it was a quick and easy way to get this massive monkey off his back',6 implying at least that the debt would be cleared by the single delivery of the package. That is how the prosecutor understood the submission. The prosecutor submitted that it was implausible that the appellant was a one-off drug courier possessing the drugs for the purpose of supply only, and that a single drop-off of 1 kg of methylamphetamine could suffice to clear a debt of $30,000. 26 Her Honour considered that the CCTV footage depicted a 'clumsy way of effecting this delivery',7 and noted that the appellant had used his own work vehicle which was likely to be observed. 27 Her Honour also found that the drug-related items at the appellant's home were consistent with drug use, rather than drug dealing, and drug use at a higher rate than claimed to police, finding the appellant's claimed usage to police of a point per week to be a 'ridiculous proposition'.8 Her Honour accepted that the appellant was a regular user, using at a rate of two to three points per day costing $3,000 per week9 and, as regular users do, had racked up debt. Her Honour accepted that was the position the appellant found himself in.10 28 Her Honour was not able to assess on the evidence whether the appellant had thought that a single delivery would cancel a $30,000 debt11 and noted that, as the appellant had destroyed his phone, there could be no determination of whether the phone contained evidence about any other dealing. 29 Her Honour noted that she could not take into account whether the appellant may have been asked in the future to drop another package off.12 Her Honour sentenced him on the basis that he dropped off one package in order to clear a debt,13 and 'if that's called being a courier, so be it, but all names aside, what I'm sentencing you on is that drop off, that one-off drop off'.14 6 WAB 43. 7 WAB 50. 8 WAB 50. 9 WAB 49. 10 WAB 50. 11 WAB 50. 12 WAB 51. 13 WAB 50 - 51. 14 WAB 51. -- 8 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 9 30 Her Honour accepted that the appellant found himself in a position where he felt pressured to drop off the drugs and, although there was no evidence of personal threats, her Honour accepted that the appellant nonetheless felt financial pressure to make the delivery.15 31 Her Honour could not determine when the appellant had picked up the package, and sentenced him on the basis that he had only been in possession of the package for the duration of the truck ride.16 On that basis, her Honour found that the offending 'wasn't fleeting, because you obviously had the package for a little bit, and you drove to where you were driving to'.17 The transcript shows that her Honour later remarked that the offending 'was also fleeting, as I said',18 but then her Honour remarked that there was 'no evidence but that it was the one delivery' and took into account that the appellant was not required to drive across State borders or drive for a long period.19 It seems her Honour was earlier contrasting the offending to cases where an offender is in possession of drugs for a matter of a few minutes, but then later contrasting the offending to cases where a courier is in possession of the drug for an extended time or across borders. 32 Her Honour acknowledged that there was also no evidence that the appellant knew the exact quantity of drugs in the package, but accepted that, given that the package weighed a kilogram (and he handled it), he must have known that it was a considerable quantity.20 33 Her Honour acknowledged that there was no evidence of the appellant having any influence or position in any drug dealing organisation.21 The factors taken into account in mitigation 34 Both a pre-sentence report and a psychological report were before the court, as well as written submissions filed on behalf of the appellant. Those materials provided information about the appellant's background and personal circumstances. The learned sentencing judge took into account the following matters in mitigation. 15 WAB 51. 16 WAB 50. 17 WAB 50. 18 WAB 51. 19 WAB 51. 20 WAB 50. 21 WAB 51. -- 9 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 10 35 The pleas of guilty were entered at the earliest reasonable opportunity, with benefits to the State, and her Honour allowed a discount of 25% for the early pleas.22 36 The appellant's prior criminal history is minimal, consisting only of two traffic offences. Her Honour accepted that the appellant did not usually assist in the dissemination of large quantities of drugs into the community, or engage in drug-dealing generally.23 Her Honour noted, however, that the appellant has been a regular user of methylamphetamine.24 37 Her Honour noted the appellant's regret for the impact of his offending on his family and disappointment in himself, and desire to return to his previous positive lifestyle, free of drugs.25 38 Her Honour accepted that the appellant had some insight into the effects of his offending on the community in relation to the package, and that he had some remorse, reflected in his plea of guilty, for his involvement in the delivery of the package.26 Her Honour considered that the appellant did not have much insight or remorse into the destruction of his phone, but considered that may have been 'out of self-preservation rather than anything else'.27 39 Her Honour noted that the appellant was raised in a stable and supportive home environment in South Africa, and reported a happy childhood, free of trauma. Her Honour noted that, until the death of his daughter, the appellant had been pro-social28 and against illicit drugs for most of his life, not having used prior to 2020.29 40 The appellant has family support. The appellant's parents and brother also emigrated to Perth from South Africa in 2017 and remain very supportive of him. The appellant intends to live with them following his release.30 He remains friends with his former (second) wife, and they co-parent their two children together, although his son will not speak to him in prison.31 22 WAB 51 - 52. 23 WAB 53. 24 WAB 53. 25 WAB 52. 26 WAB 52 - 53. 27 WAB 53. 28 WAB 53. 29 WAB 54. 30 WAB 53. 31 WAB 53, 55. -- 10 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 11 41 Her Honour had regard to material in the pre-sentence report, which spoke of the appellant's mother describing his inability to cope with the loss of his daughter and expressing the belief that he needs psychological assistance to deal with his grief.32 The appellant did attend a couple of counselling sessions following his daughter's death, at which time he was diagnosed with clinical depression.33 Her Honour referred to the appellant having turned to methylamphetamine, rather than seeking professional assistance, to deal with his 'mental health decline' following the death of his daughter and his financial stresses.34 42 Her Honour had regard to the appellant's solid history of employment, having run his own businesses and earned substantial income. He ran his construction business here for 15 years. He considered himself to have been financially stable for most of his life, prior to the events around the Covid period. Most recently, the appellant owned a tyre and suspension business prior to his remand in custody. He has plans to re-acquire a business of that nature when released.35 43 Her Honour considered the appellant to be at a very early stage on his road to recovery.36 The appellant reports having ceased methylamphetamine use since his remand in custody. At the time of sentencing, the appellant had commenced the voluntary (and self-funded) Whitehaven drug recovery programme and the appellant had said that he was doing well. He wants to return to his previous pro-social lifestyle, free of any drugs,37 and to re-engage with his son.38 44 Her Honour accepted that prison is difficult and must have come as a shock to the appellant. Her Honour agreed that the appellant is 'not a small man' and that three people in a cell would be difficult for him.39 Sentencing judge's findings about the seriousness of the offending conduct 45 Her Honour acknowledged that the amount of methylamphetamine that the appellant delivered could, if disseminated into the community, spread incredible misery and crime throughout Western Australia.40 32 WAB 54. 33 WAB 54. 34 WAB 54. 35 WAB 54. 36 WAB 55. 37 WAB 54. 38 WAB 55. 39 WAB 55. 40 WAB 49. -- 11 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 12 Her Honour acknowledged that the dominant sentencing considerations are personal and general deterrence,41 and that the appellant's personal circumstances carry less weight in determining the appropriate sentence, although they are not irrelevant. 46 Her Honour noted that the appellant was not to be treated more leniently merely because his motive for the delivery was the need to finance his drug habit.42 Her Honour accepted that the appellant may have felt compelled to deliver the drugs, having a debt that he could not otherwise pay off, but found that he had chosen to use methylamphetamine and therefore voluntarily took on the consequences.43 47 Her Honour remarked that the appellant had experienced the harmful effect of drugs and the devastating effects of drugs on a user's family, friends and community yet, knowing these effects, still chose to perpetuate them through his offending.44 48 Her Honour commented that the appellant played an important role in the dissemination of a significant amount of a very harmful drug on behalf of a drug dealing syndicate.45 He offended for his own gain by way of the clearing of his debt.46 49 Her Honour noted that, given the 'significant'47 amount of methylamphetamine in the package, just short of a kilogram, it was rightly conceded by counsel at sentencing that the only appropriate disposition was a substantial term of imprisonment to be served immediately.48 50 Her Honour noted, in relation to the phone-breaking offence, that the appellant's conduct in destroying his phone compounded his behaviour.49 Her Honour noted that the appellant's actions had the effect of shielding others from prosecution and, as such, the appellant had assisted them to continue to remain in the community with impunity.50 41 WAB 56. 42 WAB 56. 43 WAB 49. 44 WAB 49. 45 WAB 56. 46 WAB 56. 47 WAB 49. 48 WAB 55. 49 WAB 56. 50 WAB 49. -- 12 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 13 51 Her Honour regarded the offending in count 2 as a serious example of that type of offending, such that the only appropriate penalty for that offence was also one of immediate imprisonment.51 52 Her Honour considered that, unless the appellant ceases his drug use, he will find himself back in the position of having drug debts and being asked to perform tasks for organisations as a result.52 Accordingly, having recognised that the appellant had begun his road to recovery, her Honour considered that he was still at risk of reoffending, although that risk was relatively low.53 Her Honour viewed specific deterrence therefore as a relevant factor in the sentencing exercise, though not the predominant factor.54 Her Honour emphasised general deterrence.55 The sentence imposed 53 Her Honour found that, had the appellant not pleaded guilty and had there been no mitigating circumstances, the appropriate penalty for count 1 would have been 12 years' imprisonment and, in relation to count 2, 2 years' imprisonment.56 54 After applying the 25% discount for the appellant's guilty pleas and taking into account his other mitigating circumstances, her Honour imposed a term of 8 years 7 months' imprisonment in respect of count 1 and 15 months' imprisonment in respect of count 2.57 Her Honour partly accumulated the sentence for count 2 by ordering that the appellant must serve 6 months of the sentence imposed on count 2 before the term for count 1 commences. The total effective sentence was therefore one of 9 years 1 month's imprisonment.58 55 The appellant was made eligible for parole, and the sentence was backdated to 27 December 2024 to take into account time spent in custody.59 Relevant legal principles 56 A ground of appeal alleging that an individual sentence is manifestly excessive is an assertion of implied error on the part of the 51 WAB 56. 52 WAB 55. 53 WAB 55. 54 WAB 55. 55 WAB 56. 56 WAB 56. 57 WAB 56. 58 WAB 57. 59 WAB 57. -- 13 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 14 sentencing judge. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. The general legal principles applicable to such a ground are set out in numerous decisions of this court, including Kabambi v The State of Western Australia,60 and do not need repeating here. 57 The general sentencing principles in relation to drug-related offending are also well known and repeated in many cases.61 The dominant sentencing considerations in cases of serious offences relating to prohibited drugs are personal and general deterrence. Matters personal to the offender carry less weight in the sentencing process, though they are not wholly irrelevant. 58 The quantity of the drug involved is a matter of importance because, the greater the quantity, the greater the potential harm to the community. The gravity of a drug offence is not to be assessed solely or chiefly by the weight of the drug involved, however, but by reference to all relevant circumstances, including the nature of the drug enterprise and the role the offender played, the offender's motive for becoming involved, and mitigatory matters.62 Disposition 59 Acknowledging that there is no tariff for such offending, the appellant submits that a review of the sentences imposed in (a) cases involving similar quantities of drugs, but involving an offender having a greater role than the appellant, (b) cases involving substantially larger quantities of drugs but involving an offender having a similar role to the appellant and (c) cases involving similar scenarios to the present but involving an offender with significantly worse antecedents, suggests that the sentence imposed on the appellant was manifestly excessive. By implication, the appellant is not able to refer the court to a truly comparable case. 60 The appellant has drawn this court's attention to the following cases: Tran v The State of Western Australia [No 2];63 Browne v The State of Western Australia;64 Wood v The State of Western Australia;65 Diamantopoulos v The State of Western Australia;66 60 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 61 See, for example, Gaskell v The State of Western Australia [2018] WASCA 8 [128] - [129]. 62 Gaskell [128] - [129]. 63 Tran v The State of Western Australia [No 2] [2025] WASCA 102. 64 Browne v The State of Western Australia [2024] WASCA 162. 65 Wood v The State of Western Australia [2024] WASCA 143. 66 Diamantopoulos v The State of Western Australia [2024] WASCA 82. -- 14 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 15 Watson v The State of Western Australia [No 2];67 VRW v The State of Western Australia;68 Watson v The State of Western Australia;69 Ta v The State of Western Australia;70 ATH v The State of Western Australia;71 and McGrath v The State of Western Australia.72 The State has also referred this court to HSV v The State of Western Australia,73 which refers in turn to Zanon v The State of Western Australia.74 61 The appellant's counsel particularly relies upon the case of McGrath. The offender was initially sentenced to a term of 8 years' imprisonment for a single offence of being in possession of a trafficable quantity of methylamphetamine with intent to sell or supply. The quantity of the drugs was 985 grams. He had pleaded guilty, for which he received a 25% discount. After his successful appeal, this court resentenced the offender to a term of 5 years 9 months' imprisonment. He was sentenced on the basis that, on the morning of the offending, he was asked by a friend whether he wanted to assist in the transportation of drugs, for which he would receive an unspecified amount of methylamphetamine for his own use. He sat in the passenger seat of the car being driven by the friend, and the methylamphetamine was in a package at the offender's feet. His role was really giving moral support and security to his friend in the transportation of the drugs, in return for some modest amount of drugs. Police stopped the car at 7.30 am. The offender then made a futile attempt to escape and an even more futile gesture in throwing the bag to the driver. 62 The State accepted at sentencing that the offender's role was at the lowest end of the hierarchy, and a search of his residence produced no evidence of dealing. The offender had no contact with those instructing his friend to transport the drugs and there was nothing to indicate that they knew of his presence. The offender was 27 at the time of the offence, from a supportive family, had a minimal criminal history consisting of two prior convictions for simple possession of methylamphetamine, and was remorseful. 63 His counsel at his appeal accepted that a term of 8 years' imprisonment was within the range of sentences customarily imposed 67 Watson v The State of Western Australia [No 2] [2024] WASCA 66. 68 VRW v The State of Western Australia [2022] WASCA 177. 69 Watson v The State of Western Australia [2022] WASCA 80. 70 Ta v The State of Western Australia [2022] WASCA 49. 71 ATH v The State of Western Australia [2021] WASCA 149. 72 McGrath v The State of Western Australia [2021] WASCA 118. 73 HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147. 74 Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1. -- 15 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 16 for offending involving such a quantity of methylamphetamine, but emphasised his low level of criminality. 64 This court found that his offending was to be distinguished from the many 'courier' cases in which an offender has been engaged by others to transport a drug from one location to another (which had attracted terms ranging from 7 years to 8 years 6 months' imprisonment), and that his criminality was 'appreciably lower' than the offenders in those cases.75 The court rejected a submission by the State that the facts established that the offender had been 'trusted' with such a quantity of drugs. The court also considered the offender's obstructive behaviour in his dealings with police to be 'panicked and desperate'.76 After reasoning that the starting point for his sentence must have been not less than 11 years and considering the mitigation, this court allowed the appeal and resentenced. 65 The appellant's counsel rightly conceded before this court that the appellant's offending was more serious than that of the offender in McGrath. In fact, the appellant's role was considerably more serious than that of the offender in McGrath. 66 The quantity of methylamphetamine involved is comparable, the same discount was allowed for the plea of guilty, and the antecedents of the appellant were slightly more favourable, bearing in mind however that, while he had no convictions for simple possession of methylamphetamine, the appellant had been using the drug on a daily basis and was in simple possession on every such occasion. 67 By contrast to the offender in McGrath, however, the appellant was a courier, the sole courier, tasked with ensuring the package was transported to a nominated address, he was entrusted with a kilogram of methylamphetamine, he was in contact with the person or people behind the transaction and, at best for him, he stood to gain the equivalent of $30,000 for his one-off services by way of the forgiveness of a $30,000 debt, which seems handsome pay for a courier. By further contrast to the offender in McGrath, the appellant's conduct in destroying his mobile phone was cool-headed and effective. 68 The outcome in a single decision of this court does not establish the benchmark against which the sentence imposed on the appellant 75 McGrath [59]. 76 McGrath [62]. -- 16 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 17 should be measured.77 The offender in McGrath, however, was deserving of a rather lower sentence than the appellant. 69 The offender in VRW was offered $1,500 by a friend to take delivery of a product and then drop it to three different locations. He was apprehended before he could make the deliveries, and found in possession of approximately 3 kg of methylamphetamine, hidden in his boot. He knew the product was a prohibited drug, such as 'cocaine. Whatever'.78 His friend had provided him with an encrypted device a few days prior and, on the offender's own admission, this was the second such round of deliveries. 70 He pleaded guilty to possession of the trafficable quantity of methylamphetamine and an offence of possession of $1,085 in cash reasonably suspected to have been unlawfully obtained. He was 33 years old with no prior record, was remorseful, made admissions and had a low risk of reoffending. Following a discount of 25% for his pleas, and further discounts of 15% for cooperation and unspecified discounts for mitigatory matters, the offender was sentenced to 8 years' imprisonment for the drug offence and then 9 months' imprisonment to be served concurrently in relation to the cash. Leave to appeal was given, but this court was not persuaded that the sentence of 8 years' imprisonment was manifestly excessive. Such a decision does not establish the upper limit of the range of sentences that would fall within a sound exercise of the sentencing discretion. While it is difficult to reverse-engineer sentences with multiple mitigatory factors, the specified discounts in VRW suggest that the starting point for that sentence was probably around 13 years' imprisonment or slightly higher, compared to the 12 years' starting point announced by her Honour in the case of the appellant. The offending in VRW was more serious than the appellant's offending, although the reward to the appellant was rather more substantial. 71 This court refused leave to appeal on the manifest excess grounds in the cases of ATH, Browne, Wood, Diamantopoulos and Watson. When this court refuses leave to appeal on the basis that it is not even reasonably arguable that the sentence imposed at first instance is manifestly excessive, the decision cannot be used to imply some upper limit for a sound exercise of the sentencing discretion, or even this court's approval of the sentence imposed as being the 'correct' sentence. Those cases are of no assistance. 77 Wood [57]. 78 VRW [7]. -- 17 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 18 72 The offender in Watson was successful in his appeal in Watson [No 2] against the addition of 8 years' imprisonment to his existing sentence of 13 years' imprisonment. The appeal against the total sentence of 21 years' imprisonment turned on the question of the application of the totality principle, and is not of assistance as a comparator. 73 The offender in Ta successfully argued that her sentence of 13 years 6 months' imprisonment after a discount of 15% for her pleas of guilty did not appropriately reflect the difference in criminality between her and one of her co-offenders, who was sentenced to 16 years 6 months' imprisonment. This court agreed, and resentenced her to a total effective term of 12 years' imprisonment, suggesting a starting point higher than 14 years, given that there were other matters in mitigation. The individual terms imposed on her at first instance, including a term of 11 years' imprisonment for possession of 2.8 kg of methylamphetamine with intent, were not challenged. The decision turned entirely on the question of parity, and does not assist this court as a comparator. 74 Likewise, the sole ground of appeal against sentence in the case of Tran [No 2] alleged a breach of the parity principle having regard to the sentence imposed on one of the offender's two co-offenders, whose sentence had been reduced following her successful appeal. This court observed that it very much doubted whether the ground could have succeeded based on the sentence his co-offender had originally received. The decision in Tran [No 2] was therefore concerned with the new relativities following the co-offender's successful appeal and is not useful as a comparator. In substituting a sentence of 9 years 6 months' imprisonment for the offender's original 11 years' imprisonment for having transported 2.8 kg of methylamphetamine from Melbourne to Perth for a fee of $4,000, this court was not considering sentences imposed in comparable cases, and the decision does not determine that a term of 9 years 6 months' imprisonment is the correct sentence for such offending. 75 The offender in the case of HSV, relied upon by the State, appealed his total effective sentence of 13 years' imprisonment following pleas of guilty and a discount of 20% for those pleas, and a further specified discount of 20% for other confidential mitigation. His most serious offence was one of possession of 978 g of methylamphetamine with intent. He was both a user of drugs and a mid-level dealer in his own right, but also warehoused drugs and acted as a runner for others due to his having incurred a $20,000 drug debt. -- 18 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 19 He was in possession of $33,000 destined for others higher up the chain, but made about $5,000 a week from his services to others. He was 30 years old with a very minimal criminal record and was sentenced by the sentencing judge as effectively a first offender. 76 The offender did not challenge the individual terms imposed. The decision turned upon the application of the totality principle, which has no relevance to this appeal, and the upholding of the total sentence is not of assistance as a comparator. The court in HSV did observe, however, that 'there is no challenge, and in the circumstances there could be no challenge, to the individual sentence of 9 years 6 months' imprisonment imposed on count 4',79 which related to the possession of the 978 g methylamphetamine with intent. The substantial discounts applied at sentencing indicate a starting point in excess of 15 years for that individual term. 77 This court in HSV also observed that, prior to the increase in the maximum penalty applicable to offences involving a trafficable quantity of methylamphetamine, the courts were already imposing significant sentences.80 The court cited the 2016 decision of Zanon, prior to the increase in the maximum penalty, in which McLure P (with whom Buss & Mitchell JJA agreed) noted that there are a number of cases, including some following a plea of guilty, in which a total quantity of around 1 kg attracted sentences of 9 - 12 years' imprisonment.81 78 We have had regard to the 'courier' cases referred to in McGrath.82 All but one of the cited cases involved trafficable quantities of methylamphetamine and all of that offending pre-dated the increase in the maximum penalty for such cases. It is therefore to be expected that higher sentences would have been passed for the same offending had it occurred today. 79 It is unnecessary to detail all of those cases. By way of example, the offender in Phan transported 1 kg of methylamphetamine from Sydney to Perth before being apprehended at the airport. He was sentenced on the basis that he was a courier, expecting to be paid $5,000. He was a 19-year-old first offender from an impoverished background, who was providing for his mother as well as himself, and 79 HSV [47]. 80 HSV [43]. 81 Zanon [174] (McLure P). 82 Bond v The State of Western Australia [2011] WASCA 123; Pham v The State of Western Australia [2011] WASCA 244; Guler v The State of Western Australia [2014] WASCA 83; Phan v The State of Western Australia [2014] WASCA 144; Al-Rafei v The State of Western Australia [2017] WASCA 4. -- 19 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 20 pleaded guilty at the earliest opportunity. A sentence of 7 years 4 months' imprisonment was upheld by this court. 80 The offending in the case of Al-Rafei did not involve methylamphetamine; the offender was handed a package outside his house which he then began transporting elsewhere but was promptly apprehended by police. The package contained 2.2 kg of MDMA. He pleaded guilty, for which he received a 15% discount. He was 23 years old, financially struggling and wanting to assist his financially struggling single mother. A sentence of 8 years 6 months' imprisonment was upheld by this court. 81 The various decisions relied upon by the appellant do not establish that the sentence imposed on him is indicative of error. At best for the appellant, the decisions in McGrath and VRW suggest that the starting point chosen by the learned sentencing judge and the sentence ultimately imposed was within, though at the higher end of, the range of a sound exercise of the sentencing discretion. 82 Moving on from comparable cases, the background to the appellant's descent into drug use, namely the sudden death of his daughter a few years prior to the offending, was a sympathetic factor amongst the other matters in mitigation. The appellant could not learn to cope with his grief. He took refuge in drugs, which over time created a new issue for him to deal with. The appellant offended when he was still at a very low point, feeling the pressure of a debt at a time when his business was struggling and he had no ability to pay. 83 As against that, however, matters personal to an offender in such cases carry limited weight, though they are not irrelevant. Sadly, many offenders are initially drawn to illicit drug use in order to numb the pain or the memory of trauma from past or ongoing experiences, be they experiences in childhood, or adulthood, or both. 84 The appellant's debt was the consequence of voluntarily entering the world of illicit and financially unsustainable drug use. He was not subject to an express threat of violence. Though he felt the pressure of having the debt hanging over him, that was just the likely consequence of his prior drug use. It cannot amount to any meaningful mitigation.83 85 Couriers play an important role in the distribution of drugs within the community.84 The involvement of couriers reduces the risk of 83 See the discussion in Diamantopoulos [62] - [66]. 84 Phan [25]. -- 20 of 21 -- [2026] WASCA 99 JUDGMENT OF THE COURT Page 21 detection to those who occupy a higher place in the drug world. That shielding of those higher up occurred in this case, despite the apprehension of the courier. The appellant must also have known that the quantity of drugs in the package was substantial. His involvement was plainly intended to facilitate a substantial drug transaction on behalf of another or others. His motivation was financial and the financial benefit to the appellant by way of forgiveness of his debt, particularly if the delivery was to be a one-off, was also substantial. 86 Though the appellant has taken steps while in custody to tackle his drug use, specific deterrence remains relevant, and the need for general deterrence is high. 87 Within the range of a sound exercise of the sentencing discretion, the sentence imposed was at the high end, however we are not satisfied that it was so unreasonable or plainly unjust that error is shown. We would grant leave to appeal, but dismiss the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NM Associate to the Hon Justice Sweeney 17 JULY 2026 -- 21 of 21 --