THE STATE OF WESTERN AUSTRALIA -v- AIDEN SANTO (A PSEUDONYM) [2026] WASCA 94

[2026] WASCA 94 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- AIDEN SANTO (A PSEUDONYM) [2026] WASCA 94 CORAM : THOMSON P VAUGHAN JA SEAWARD JA HEARD : 26 JUNE 2026 DELIVERED : 26 JUNE 2026 PUBLISHED : 26 JUNE 2026 FILE NO/S : CACR 55 of 2026 BETWEEN : THE STATE OF WESTERN AUSTRALIA Appellant AND AIDEN SANTO (A PSEUDONYM) Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : TROY DCJ File Number : XXX IND XXX of XXXX -- 1 of 10 -- [2026] WASCA 94 Page 2 Catchwords: Criminal law - Sentencing - Letter of recognition for assistance provided to WA Police - Letter not provided to sentencing judge - Whether absence of letter occasioned miscarriage of justice Legislation: Misuse of Drugs Act 1981 (WA), s 6(1)(a) Sentencing Act 1995 (WA), s 6(2)(d) Result: Extension of time to appeal granted Leave to appeal granted Appeal allowed Respondent resentenced Representation: Counsel: Appellant : G N Beggs SC Respondent : F M Hugo Solicitors: Appellant : Director of Public Prosecutions (WA) Respondent : Tehan Legal Case(s) referred to in decision(s): RXA v The State of Western Australia [2022] WASCA 116 SYL v The State of Western Australia [2021] WASCA 16 -- 2 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: (These reasons were delivered ex temporaneously and have been edited from the court's record of the decision.) 1 This appeal is another recent example of a letter of recognition acknowledging assistance provided by an offender to the Western Australian Police, where that letter of recognition has not been placed before the sentencing judge. As a result, it is necessary for there to be an appeal to bring about a resentencing of the offender according to law, by taking into account the contents of the letter of recognition. This court has been informed that the Office of the Director of Public Prosecutions has recently altered its systems to minimise the prospects of this unfortunate situation recurring. The sentence imposed below 2 The respondent pleaded guilty to possession of a prohibited drug (namely methylamphetamine) with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The plea of guilty was made after the respondent had been committed for trial. In other words, the plea was not made at the first reasonable opportunity. 3 The offence occurred on 14 September 2024, when the respondent was 31 years old. Just after midnight on that date, police observed the respondent travelling along a country road on an electric scooter, without wearing a helmet and without displaying any lights. Two officers stopped the respondent and indicated that they proposed to search him. The respondent ran away, but was apprehended after a short distance. When he was searched, two clip-seal bags were located in the pockets of his shorts. One contained 9.73 grams of methylamphetamine, and the other contained 14.4 grams of methylamphetamine. The purity of the larger quantity of methylamphetamine was approximately 50%. In total, the respondent was in possession of 24.13 grams of methylamphetamine. 4 The maximum penalty for the offence to which the respondent pleaded guilty is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years or both: s 34(1)(aa) of the Misuse of Drugs Act. 5 The sentencing judge (Troy DCJ) could not be satisfied how much of the drug was for the respondent's personal use, and how much he planned to sell commercially. Consequently, the sentencing judge -- 3 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 4 sentenced the respondent on the basis that he was in possession of a total of 24.13 grams of methylamphetamine, and that he intended to sell or supply at least some of that quantity of drug.1 6 The appellant was on bail and was subject to an intensive supervision order at the time of offending. Further, while the sentencing judge considered a number of character references, he also noted that the appellant had prior convictions, which meant that he was not sentenced as a person of prior good character. The prior convictions included one offence of possession of a prohibited drug with intent to sell or supply (in relation to cannabis) and multiple offences of possessing a prohibited drug (both cannabis and methylamphetamine). The respondent had been sentenced to previous periods of imprisonment. Accordingly, as the sentencing judge correctly observed, personal deterrence was an important sentencing consideration.2 7 Judge Troy considered that the nature of the offence meant that general deterrence was an important consideration and that matters personal to the respondent were of limited relevance.3 Notwithstanding this, his Honour referred to the trauma which the respondent had endured at various stages of his life (including a violent father, inattentive mother and an obligation to care for a terribly ill sister), and also acknowledged that the respondent had apparently been 'on a very positive track' since he had obtained stable employment about 6 months before being sentenced.4 8 The respondent was sentenced on the basis that he received a reduction of 12% pursuant to s 9AA of the Sentencing Act 1995 (WA) by reason of his guilty plea. This plea was not made at the first reasonable opportunity, but did avert a trial.5 9 In all these circumstances, the sentencing judge imposed a term of immediate imprisonment of 2½ years, backdated to 5 March 2026. His Honour also ordered that the respondent should be eligible for parole, which would mean that he could apply for parole after serving 15 months of imprisonment.6 1 Sentencing transcript, The State of Western Australia and [Aiden Santo], District Court of Western Australia, 30 March 2026 (ts), 80. 2 ts 81. 3 ts 80 - 81. 4 ts 81. 5 ts 81. 6 ts 82. -- 4 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 5 Letter of recognition 10 On 16 October 2024, the Assistant Commissioner, State Crime, provided a letter of recognition for cooperation given by the respondent to the Western Australian Police. The respondent provided information which was used to create three intelligence reports. No charges were laid or property seized as a result of that information. The respondent was exposed to low risk and was not required to carry out any tasks by the police. His assistance was determined to be 'grade 3'. 11 The reference to 'grade 3' cooperation is to the lowest category of cooperation referred to in the 'Joint Protocol between the Director of Public Prosecutions and Western Australia Police regarding issuing and handling of Letters of Recognition'. This covers the provision of information on a criminal offence (paragraph [10.3]). 12 Through no fault of the respondent or his counsel at the sentencing hearing (who did not know of the letter), this letter of recognition was not provided to the sentencing judge. It appears to have been overlooked by the officers of the Director of Public Prosecutions, due to difficulties in the system of administration of their files.7 Applicable legal principles 13 Due to a number of previous cases in which a letter of recognition has not been provided to a sentencing judge, the applicable legal principles have been recently considered and do not need to be re-stated here. The relevant authorities include SYL v The State of Western Australia,8 and RXA v The State of Western Australia.9 There are also other cases, where it has been necessary to suppress the reasons for judgment. Miscarriage of justice 14 In the present case, the letter of recognition existed, but was not furnished to the sentencing judge. The existence of the letter was known to the Office of the Director of Public Prosecutions, but not to the respondent's counsel. 15 Immediately after the Office of the Director of Public Prosecutions became aware of the error, it quite properly caused the State of Western 7 WAB 9 - 10 (Affidavit of G N Beggs sworn 9 June 2026 [18] - [20]). 8 SYL v The State of Western Australia [2021] WASCA 16 [16] - [18] (Buss P & Mazza JA), [72] - [83] (Vaughan JA). 9 RXA v The State of Western Australia [2022] WASCA 116 [26] - [30] (Buss P, Mazza & Beech JJA). -- 5 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 6 Australia to commence the present appeal, sought leave to appeal out of time and sought leave to adduce the letter of recognition as evidence in the appeal, along with an explanation of how the error occurred, which meant that it was overlooked at the time of sentencing. 16 Section 6(2)(d) of the Sentencing Act requires the sentence of an offender to be determined taking into account any mitigating factors. In this case, the letter of recognition provided a mitigating factor which ought to have been taken into account, but was not through no fault of the respondent or the sentencing judge. In these circumstances, we are satisfied that the sentencing process involved a miscarriage of justice. The appeal must be allowed and the respondent must be resentenced according to law. 17 For that reason, we would: (a) grant the appellant an extension of time to appeal together with leave to appeal; and (b) grant the appellant leave to adduce the evidence of the letter of recognition in the affidavit of Natalie Rae Sinton affirmed 10 June 2026. 18 However, for obvious reasons, access to the letter of recognition must be restricted notwithstanding that it has been received as additional evidence in the appeal. Having regard to the nature of the letter of recognition it is in the interests of justice that confidentiality be maintained as to the contents of the letter of recognition. Accordingly, access to the letter of recognition will not be permitted to any person without an order of a judge of appeal. Principles relating to cooperation 19 The principles relating to the significance of cooperation with authorities to the fixing of an appropriate sentence are well established, and were summarised in SYL and RXA. While those principles need not be restated in full, the following principles have particular application in this matter: (1) assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation; (2) there is a clear public interest in giving a significant discount to offenders who provide assistance to authorities, or offer to -- 6 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 7 provide future assistance, as it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted; (3) a substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so. In particular, the public interest, in encouraging offenders to cooperate with law enforcement authorities, applies with particular force in relation to offences of dealing or trafficking in prohibited drugs; (4) where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater; (5) the information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been; (6) there is no standard percentage discount for an offender who cooperates. The discount depends upon all the circumstances of the individual case, including the nature and extent of the cooperation, as well as the nature and extent of the offending behaviour. Full and frank assistance will ordinarily result in a more substantial discount than partial assistance. The greater the disclosure and the more potentially useful it is to the authorities, the greater should be the discount; (7) where a separate discount is provided for a guilty plea there is less scope to provide a large reduction for assisting authorities; and (8) when deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards. The sentence must still meet the requirement enshrined in s 6(1) of the Sentencing Act that the sentence must be commensurate with the seriousness of the offence. -- 7 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 8 Re-sentencing 20 We have reviewed all of the material which was placed before the sentencing judge, including the parties' written sentencing submissions, the respondent's character references and the transcript of the oral submissions at the sentencing hearing. The respondent did not seek to adduce any additional materials before this court in relation to resentencing. 21 The sentencing judge provided admirably concise and well-structured sentencing remarks. There is no need to repeat those sentencing remarks in these reasons. We respectfully agree with these particular observations made by his Honour: (a) the respondent should be sentenced on the basis that he was in possession of a total of 24.13 grams of methylamphetamine, and that he intended to sell or supply at least some of that quantity of drug; (b) the need for general deterrence must be accorded greater emphasis in relation to offences of the present nature, and personal circumstances are of limited relevance; (c) the respondent is not entitled to be sentenced as a person of prior good character; and (d) the respondent should be entitled to a s 9AA reduction of 12% on account of his plea of guilty prior to trial. 22 The cooperation provided by the respondent is at the very low end. However, we regard it as important that it should receive some acknowledgement. The provision of information to the police should be encouraged, even if it does not necessarily yield immediate fruit. 23 In all of the circumstances, we consider that the sentence imposed by Troy DCJ reflects the sentence which we would have imposed had it not been for the respondent's past cooperation referred to in the letter of recognition. 24 We consider that a small further discount should be allowed for the respondent's past cooperation as evidenced by the letter of recognition. In all of the circumstances, we propose to resentence the respondent to a term of immediate imprisonment for 2 years and 3 months, backdated to 5 March 2026. Accordingly, there will be a 3-month reduction on account of the respondent's past cooperation with -- 8 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 9 law enforcement authorities. We will also order that the respondent is eligible for parole. Orders 25 The orders we would make are as follows: 1. The time to commence an appeal against the sentence imposed by the District Court on IND XXX of 20XX is extended to 9 June 2026; 2. Leave to appeal on the single ground of appeal in the appellant's case dated 10 June 2026 is granted; 3. Leave is granted to the appellant to adduce the evidence in the affidavit of Natalie Rae Sinton affirmed 10 June 2026 as additional evidence on the appeal. However, access to the annexure to that affidavit is restricted such that no person may, at any time, access or inspect the annexure without prior order of a judge of appeal. For that purpose a single hard copy of the annexure is to be maintained in the custody of the acting Court of Appeal registrar and the annexure is not to be reproduced in the filed version of the affidavit as maintained in the court's electronic file within ICMS eBench; 4. The appeal is allowed; 5. The sentence imposed by the District Court on IND XXX of 20XX is set aside; 6. The respondent is resentenced on District Court Indictment IND XXX of 20XX to a term of immediate imprisonment for 2 years and 3 months; 7. The sentence on District Court Indictment IND XXX of 20XX is backdated to 5 March 2026; and 8. The appellant is eligible for parole. -- 9 of 10 -- [2026] WASCA 94 JUDGMENT OF THE COURT Page 10 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LH Associate to the Hon President Thomson 26 JUNE 2026 -- 10 of 10 --