GLOEDE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 254

[2026] WASC 254 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : GLOEDE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 254 CORAM : MCGRATH J HEARD : 19 JUNE 2026 DELIVERED : 24 JUNE 2026 FILE NO/S : SJA 1016 of 2026 BETWEEN : BLAIR RICHARD GLOEDE Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE J A SCUTT File Number : FR 11432/24, FR 12872/24, FR 1303/25, FR 2084-2124/25, FR 2157-2158/25, FR 3518/25 Catchwords: Criminal law - Appeal against sentence - Possession of cannabis with intent to sell or supply to another - Offer to sell or supply cannabis - Express error - Error of law as to maximum penalty - Whether a different sentence should be imposed -- 1 of 22 -- [2026] WASC 254 Page 2 Legislation: Misuse of Drugs Act 1981 (WA) Result: Extension of time in which to appeal granted Leave to appeal granted on ground 1 Leave to appeal not granted on ground 2 Appeal allowed Application to rely upon further evidence at resentencing granted Appellant resentenced Category: B Representation: Counsel: Appellant : Mr J Prior Respondent : Ms M Wong Solicitors: Appellant : Legal Aid (WA) Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): ARX v The State of Western Australia [2023] WASCA 169 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 GSO v The State of Western Australia [2021] WASCA 58 Harding v The State of Western Australia [2015] WASCA 27 Harvey v The State of Western Australia [2017] WASCA 149 Harvey v The State of Western Australia [2017] WASCA 149 Harvey v The State of Western Australia [2021] WASCA 132 Lester v The State of Western Australia [2011] WASCA 128 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Miles v The State of Western Australia [2016] WASCA 138 Rillotta v The State of Western Australia [2017] WASCA 55 -- 2 of 22 -- [2026] WASC 254 Page 3 Rodi v The State of Western Australia [2014] WASCA 233 Roffey v The State of Western Australia [2007] WASCA 246 Samardali v The Queen [2018] WASCA 220 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Savory v The State of Western Australia [2018] WASCA 165 SBJ v The State of Western Australia [2019] WASCA 32 The State of Western Australia v Hoxha [2025] WASCA 101 The State of Western Australia v Stocker [2022] WASCA 178 Turner v The State of Western Australia [2021] WASCA 132 Vickery v McAlinden [2017] WASC 224 West v The State of Western Australia [2023] WASCA 3 Wong v The Queen (2001) 207 CLR 584 Zinga v Johnson [2012] WASC 216 -- 3 of 22 -- [2026] WASC 254 MCGRATH J Page 4 MCGRATH J: Introduction 1 On 30 October 2025, the appellant was convicted on his own plea of two charges of possession of cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), 43 charges of offering to sell or supply cannabis to another contrary to s 6(1)(c) of the Misuse of Drugs Act and one charge of failing to comply with a data access order contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). 2 As a consequence of the convictions, the appellant breached a 6-month community-based order made on 7 January 2025 imposed in respect to one charge that on 26 September 2024 he was in possession of property, namely $5,000 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (charge FR 11432/2024). 3 The learned Magistrate imposed a total effective sentence of 14 months' imprisonment conditionally suspended for 14 months. 4 The appellant appeals that sentence on two grounds. Ground 1 contends that the learned Magistrate erred in respect to the maximum penalty for the offence of selling or supplying cannabis to another. By ground 2, the appellant contends that the sentence imposed breached the totality principle. The respondent concedes that leave to appeal should be granted, the appeal should be allowed on ground 1 and the appellant resentenced. I accept that the concession of the respondent has been properly made and that the appeal should be allowed and the appellant resentenced. 5 The appellant requires an extension of time in which to appeal. The appellant's solicitor has filed an affidavit that satisfactorily explains the delay in commencing the appeal.1 The respondent accepts that an extension of time should be granted. The question for the court to consider is whether it is in the interests of justice to grant the extension of time in which to appeal.2 Given the satisfactory explanation given for the delay and moreover the concession of the respondent regarding the appeal it is in the interests of justice to grant the extension in which to appeal. 1 Affidavit of Jemma Pope affirmed 26 February 2026. 2 Criminal Appeals Act 2004 (WA) s 10(3); Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14]. -- 4 of 22 -- [2026] WASC 254 MCGRATH J Page 5 Magistrates Court proceedings 6 The particulars of the charges to which the appellant pleaded guilty are outlined in annexure A. The facts upon which the appellant was sentenced were accepted by the appellant.3 7 The first charge of possession of cannabis with intent to sell or supply involved the appellant on 8 October 2024 being driven to an Airbnb by his mother. After entering the premises, the police attended and commenced a search of the vehicle and the premises. The police located two large vacuum-sealed bags of cannabis in the vehicle. The appellant's DNA was subsequently found on one of those bags which contained 384 g of cannabis (charge FR 12872/2024). 8 The police conducted an examination of the appellant's mobile phone which disclosed that he had been selling or supplying cannabis. The appellant was released on bail in respect to charge FR 12872/2024. 9 On 6 February 2025, whilst on bail for charge FR 12872/2024, the police attended and searched the appellant's home address. During the search, 1 kg of cannabis was located within the premises. The amount included 174 g of cannabis found in a pink duffle bag in the appellant's mother's room but was identified as being the property of the appellant. The appellant was charged with possession with intent to sell or supply in relation to 174 g of cannabis (charge FR 1303/2025). 10 During the search, other indicia of drug dealing activities were observed by the police, including the presence of plastic bags and digital scales. Further, examination of the mobile phone of the appellant disclosed that he had sent 43 text messages between 26 July and 25 September 2024 offering to sell cannabis. Among the text messages was a pricelist that the appellant had provided prospective customers. The list confirmed the appellant had been offering to sell between a quarter ounce (for $110) to one pound ($2,300 to $4,150) of cannabis. The 43 charges preferred against the appellant are grounded in the 43 messages (charges FR 2084/2025 - FR 2158/2025). The relevant facts for each charge were particularised at the sentencing hearing.4 The offending involved, in part, the offering to sell cannabis at the prices of half a pound at $1,300 to $2,300, a quarter of a pound at $1,250 to $1,300, an ounce at $230 to $380 and half an ounce at $120 to $220. The analysis of the mobile phone disclosed photographs of the 3 ts 13 - 21 (30/10/25). 4 ts 16 - 21 (30/10/2025). -- 5 of 22 -- [2026] WASC 254 MCGRATH J Page 6 appellant holding large quantities of cash, cannabis and several photographs of the appellant in possession of firearms.5 The particularisation of the messages are outlined in Annexure A. 11 In addition, during the search the police located 33 g of cannabis in two clip seal bags and drug paraphernalia, namely a glass smoking implement.6 The appellant was charged with simple possession of the cannabis (charge FR 1303/2025) and possessing drug paraphernalia (charge 1301/2025). 12 On 12 February 2025, the appellant was served with a data access order in relation to a mobile telephone located at his house during the execution of the warrant on 6 February 2025. The appellant failed to comply with that order to give access to the mobile telephone by 24 February 2025 (charge FR 3518/2025).7 13 The facts in respect to the offence for which the community-based order was imposed, involved the appellant on 11 October 2024 having in his possession $5,000 in cash that was reasonably suspected to be stolen or otherwise obtained contrary to s 417(1) of the Criminal Code (charge FR 11432/2024). 14 In imposing sentence, the learned Magistrate observed that the ordinary outcome for drug-related offending is immediate imprisonment.8 Her Honour stated that the question was whether the term of imprisonment to be imposed should be immediate or suspended.9 Her Honour characterised the offending as serious in that the appellant had offered to sell or supply cannabis on 43 occasions to 11 different people and that the value offered was approximately $10,000.10 15 The learned Magistrate made the finding that in light of the entire factual circumstances of the offending, the appellant was not a mere street-level dealer but rather a mid-level dealer.11 Further, her Honour stated that the offending occurred in part to support the appellant's drug habit but the offending also had 'an element of commerciality'.12 Her Honour accepted that the majority of the cannabis found at the 5 ts 16 (30/10/2025). 6 ts 15 (30/10/2025). 7 ts 15 - 16, 21 (30/10/2025). 8 ts 8 (31/10/2025). 9 ts 5 (31/10/2025). 10 ts 7 (31/10/2025). 11 ts 8 (31/10/2025). 12 ts 11 (31/10/2025). -- 6 of 22 -- [2026] WASC 254 MCGRATH J Page 7 premises by the police was likely possessed by the appellant's mother. I observe that the appellant was not charged in respect to possessing the majority of the cannabis. 16 The learned Magistrate stated that the factors in mitigation were the youth of the appellant and the early plea of guilty for which a 15% discount was given pursuant to s 9AA of the Sentencing Act 1995 (WA).13 Her Honour observed that the offending commenced when the appellant was 18 years of age and that most of the sell or supply charges were committed when he was 18 or 19 years of age and that regrettably, his own mother was actively involved with like offending and therefore, the appellant was not being given proper direction and support by his mother. 17 Her Honour stated that a letter of support from Ms McDowell, produced at the sentencing hearing, showed that the appellant had support in the community and that he intended to engage in FIFO employment.14 Her Honour accepted that the appellant intended to rehabilitate when released from incarceration.15 18 Her Honour stated that aggravating factors were the appellant's persistence in supplying prohibited drugs, that he had offended whilst on bail and that he had breached a community-based order.16 19 In respect to the community-based order, the learned Magistrate stated that there was compliance with supervision, but the appellant did not complete the community service work and programs.17 20 The learned sentencing Magistrate stated that it was a borderline case whether an immediate term of imprisonment was the only appropriate sentence. The learned Magistrate determined that the terms of imprisonment should be conditionally suspended. 21 In imposing the terms of imprisonment, the learned Magistrate observed that the appellant came before the court after having served nearly 9 months' imprisonment awaiting sentencing. The learned Magistrate imposed 3 months' conditionally suspended imprisonment in respect to each of the sell or supply charges except charge FR 2158/2025 for which a term of 4 months' conditionally suspended 13 ts 5 - 6 (31/10/2025). 14 ts 6 (31/10/2025). 15 ts 10 (31/10/2025). 16 ts 8 (31/10/2025). 17 ts 14 (31/10/2025). -- 7 of 22 -- [2026] WASC 254 MCGRATH J Page 8 imprisonment was imposed.18 A term of 8 months' conditionally suspended imprisonment was imposed in respect to the charge of possession with intent to sell or supply 384 g of cannabis (charge FR 12872/2024); a term of 6 months' conditionally suspended imprisonment was imposed in respect to the charge of possession with intent to sell or supply 174 g of cannabis (charge FR 1303/2025); and a term of 2 months' conditionally suspended imprisonment was imposed for the data access charge (charge FR 3518/2025).19 The learned Magistrate resentenced the appellant in respect to the possession of $5,000 cash by setting aside the community-based order and imposing a 4-month term of conditionally suspended imprisonment (charge FR 11432/2024). 22 Accordingly, the learned Magistrate determined that a total effective sentence of 14 months' imprisonment was appropriate but suspended that term on conditions. The learned Magistrate stated but for the period of time already served, an immediate term of imprisonment of between 2½ years to 3 years' imprisonment would have been imposed.20 Therefore, the learned Magistrate did not backdate the term of imprisonment stating that the length of the term of imprisonment took into account the period already served.21 23 In respect to the offence of simple possession of 33 g of cannabis (charge FR 1303/2025) and possession of drug paraphernalia (charge FR 1301/2025), a global fine of $1,500 was imposed.22 Grounds of appeal and legal principles 24 The appeal notice is in the following terms: 1. The learned sentencing Magistrate erred in law in sentencing the appellant on the basis that the maximum penalty for each the offences of possession of a prohibited drug with intent to sell or supply and offer to sell or supply cannabis is 25 years. 2. The learned sentencing Magistrate erred in imposing a total sentence that infringed the first limb of the totality principle. 25 This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.23 An appeal may 18 ts 11 (31/10/2025). 19 ts 12 (31/10/2025). 20 ts 12 (31/10/2025). 21 ts 13 (31/10/2025). 22 ts 10 (31/10/2025). 23 Criminal Appeals Act s 9(1). -- 8 of 22 -- [2026] WASC 254 MCGRATH J Page 9 be made on the basis that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.24 26 The court must not grant leave to appeal unless a ground has a reasonable prospect of success.25 A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.26 27 The court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.27 Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. 28 In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.28 The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence. Consideration of merits of appeal Ground 1 - maximum penalty 29 By ground 1, the appellant contends that the learned Magistrate erred in that she applied the incorrect maximum penalty for the offences of possession of cannabis with intent to sell or supply to another. The learned Magistrate, in her sentencing remarks, stated as follows:29 24 Criminal Appeals Act s 8. 25 Criminal Appeals Act s 9(2). 26 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA). 27 Criminal Appeals Act s 14. 28 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. 29 ts 5 (31/10/2025). -- 9 of 22 -- [2026] WASC 254 MCGRATH J Page 10 Possess with intent sell supply carries 25 years imprisonment. The summary conviction penalty is much less, that's four years, but the court must have regard to the maximum penalty because it places this sort of offending in the scale of offences generally and highlights that these are very serious offences. 30 The maximum penalty for an offence of possession of cannabis with intent to sell or supply to another is 10 years' imprisonment.30 31 The application of an incorrect higher statutory maximum penalty in the exercise of the sentencing discretion is an error of law which is capable of affecting sentence.31 Given the significance of the statutory penalty in the exercise of the sentencing discretion, a significant error in relation to the maximum penalty will ordinarily be material to the exercise of the sentencing discretion and will have the consequence of vitiating the exercise of that discretion. There are cases where an error as to the maximum penalty was held not to be material.32 32 The appellant submits that a sentence imposed on an offender must be commensurate with the seriousness of the offence and, in determining the appropriate disposition, the learned Magistrate was required to consider the statutory penalty for the offence.33 The appellant submits that the learned Magistrate sentenced on the basis of a 250% increase in respect to the statutory maximum penalty, which resulted in a misconception as to the seriousness of the offence and therefore, the appropriate sentencing disposition. Further, the error regarding the statutory maximum penalty was in respect to the head sentence offence and the offence for which the term of imprisonment was made cumulative. 33 The respondent submits that the learned Magistrate made an error of law and that the error was material and that the court cannot exclude the possibility that a different sentence would have been imposed if the error had not been made. The respondent submitted that there is 'no basis upon which the court did not in fact affect the appellant's sentence.'34 Further, the respondent does not rely upon s 14(2) of the Criminal Appeals Act. The respondent submits that a different sentence should be imposed and therefore, there has been a miscarriage of justice. 30 Misuse of Drugs Act 1981 (WA) s 34(2)(a)(ii). 31 ARX v The State of Western Australia [2023] WASCA 169 [4], [7], [53]. 32 Harding v The State of Western Australia [2015] WASCA 27 [43] (Martin CJ), [76] (Mazza JA); Samardali v The Queen [2018] WASCA 220. 33 Sentencing Act 1995 (WA) s 6(2). 34 Respondent's written submissions [15]. -- 10 of 22 -- [2026] WASC 254 MCGRATH J Page 11 34 I am satisfied that the error was material for the reason that the learned Magistrate imposed sentence on the erroneous belief of a 250% increase as to the maximum penalty and was made in respect to the two principal offences. I turn to the question of whether there is a miscarriage of justice in that a different sentence should be imposed and if so, resentence the appellant. Whether a different sentence should be imposed 35 In undertaking the assessment as to whether a different sentence should be imposed, I must apply the applicable sentencing principles and statutory provisions. The law requires that the sentence imposed reflect the seriousness of the offence. In determining the seriousness of the offence and the sentence to be imposed, I must have regard to the maximum penalty for the offence, the circumstances of the offending and any aggravating factors or mitigating factors.35 36 In imposing sentence, I must have regard to the standards of sentencing customarily imposed for this type of offending. 37 A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.36 38 If the court reaches the conclusion that a sentence of imprisonment of not more than five years is the only appropriate disposition, the court must then consider whether or not that sentence of imprisonment should be suspended or whether it should be immediately served.37 The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment. In order to decide if the term of imprisonment imposed can be suspended, the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition. 39 Given that the appellant is being sentenced in respect to multiple offences, I must apply the totality principle which requires that the total effective sentence imposed on an offender who has committed multiple offences bares a proper relationship to the overall criminality involved 35 Sentencing Act s 6(2). 36 Sentencing Act s 6(4). 37 Sentencing Act s 39(3), s 76(1), s 76(2), s 81(1) and s 81(2); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] - [79]. -- 11 of 22 -- [2026] WASC 254 MCGRATH J Page 12 in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment) viewed in their entirety having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.38 Maximum penalty 40 The maximum penalty for the offence of possession of cannabis with intent to sell or supply is 10 years' imprisonment. The maximum penalty for the offence of offering to sell or supply cannabis is 10 years' imprisonment.39 The maximum penalty for the offence failing to comply with a data access order is 5 years' imprisonment.40 Personal circumstances of the appellant & factors in mitigation 41 The appellant was born on 28 July 2004 and therefore as the learned Magistrate stated, the offending commenced when the appellant was 18 years of age, and the majority of the sell and supply charges were committed between 18 to 19 years of age. Therefore, youth is a significant mitigating factor. 42 The appellant had a limited criminal record and therefore, is not sentenced on the basis of being a person with good character. However, as the learned Magistrate observed the appellant is committed to his rehabilitation with support in the community and with the intention to obtain work as a FIFO worker. Seriousness of the offences - aggravating factors 43 The offending is serious. The principle sentencing considerations for drug offences are personal and general deterrence. Matters personal to the offender, whilst remaining relevant, are ordinarily of lesser significance. The weight of the drugs is a matter of importance but other matters are relevant including the nature of the offending and the level of the offender's participation in drug dealing and whether the offending was committed for commercial gain.41 In Lester v The State of Western Australia42 McLure P observed: 38 Roffey v The State of Western Australia [2007] WASCA 246 [24]; GSO v The State of Western Australia [2021] WASCA 58 [44(3)]. 39 Misuse of Drugs Act s 34(2)(b). 40 Criminal Investigations Act s 61(2). 41 Wong v The Queen (2001) 207 CLR 584 [67] - [70]. 42 Lester v The State of Western Australia [2011] WASCA 128 [21] - [22]. -- 12 of 22 -- [2026] WASC 254 MCGRATH J Page 13 The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times. Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need. 44 There are a number of aggravating factors. First, the appellant committed charge FR 1303/2025 whilst on bail for the earlier possession of cannabis with intent to sell or supply charge. Second, the appellant committed the offences whilst subject to a community-based order. 45 Third, the appellant was persistently selling or supplying cannabis in the community. Fourth, the learned Magistrate described the appellant as being above a street-level dealer being involved in an activity in part funding his own drug addiction and in part commercial. That finding by the learned Magistrate was well-founded and understandably, is not challenged. The electronic communications support the finding that the appellant is a persistent mid-level dealer selling cannabis in various weights. Standard of sentences customarily imposed 46 Whilst decisions provide guidance to courts who must seek broad consistency in sentencing as to what may constitute a sound exercise of discretion in a particular case, they do not determine what the appropriate sentence should be. The appellant referred to a number of sentencing authorities: The State of Western Australia v Hoxha,43 Harvey v The State of Western Australia44 and Savory v The State of Western Australia.45 The respondent referred to: Miles v The State of Western Australia, 46 West v The State of Western Australia,47 Turner 43 The State of Western Australia v Hoxha [2025] WASCA 101. 44 Harvey v The State of Western Australia [2017] WASCA 149. 45 Savory v The State of Western Australia [2018] WASCA 165. 46 Miles v The State of Western Australia [2016] WASCA 138. 47 West v The State of Western Australia [2023] WASCA 3. -- 13 of 22 -- [2026] WASC 254 MCGRATH J Page 14 v The State of Western Australia,48 and Rodi v The State of Western Australia.49 47 In Rillotta v The State of Western Australia50 the Court of Appeal reviewed general sentencing patterns for dealing cannabis. I apply the analysis of the Court of Appeal and need not repeat it. 48 In Savory v The State of Western Australia, the Court of Appeal resentenced the offender who attempted to possess more than 1.3 kg of cannabis with intent to sell or supply whilst on bail for another drug charge. The offender had two previous convictions for possession of cannabis with intent to sell or supply. In mitigation the offender was given a 20% discount for the early plea of guilty. The Court of Appeal imposed a term of 20 months' immediate imprisonment. 49 In Turner v The State of Western Australia, the offender appealed in respect to a total effective sentence of 5 years imprisonment comprising terms of 18 months for possession with intent to sell or supply 8.57 g of MDMA; 2 years 8 months imprisonment for possession with intent to sell or supply 362.4 g of cannabis and 3 years 6 months imprisonment for possession with intent to sell or supply 4.96 g of methylamphetamine. In resentencing the appellant, the Court of Appeal imposed a term of 10 months' immediate imprisonment in respect to the cannabis offence with the total effective sentence being 3 years 10 months imprisonment. 50 In Harvey v The State of Western Australia51 the offender attempted to purchase 909 g of cannabis from a person from whom he had previously purchased cannabis. The offender proposed to keep 57 g of cannabis for personal use and sell the balance to others. The offender was 24 years of age and was afforded a 15% discount for his plea of guilty. The Court of Appeal determined that the sentence of 2 years' immediate imprisonment was manifestly excessive and resentenced the offender to 12 months' immediate imprisonment. 51 In Harvey v The State of Western Australia, the Court of Appeal summarised previous decisions:52 In Rodi v The State of Western Australia, the offender, a mature man without criminal record, was sentenced to 12 months' immediate 48 Turner v The State of Western Australia [2021] WASCA 132. 49 Rodi v The State of Western Australia [2014] WASCA 233. 50 Rillotta v The State of Western Australia [2017] WASCA 55. 51 Harvey v The State of Western Australia [2021] WASCA 132. 52 Harvey v The State of Western Australia [2017] WASCA 149 [25] - [29]. -- 14 of 22 -- [2026] WASC 254 MCGRATH J Page 15 imprisonment after trial for possessing about 925 g of cannabis as part of a 'fairly lucrative cash business'. In that case the sentencing judge had been mistaken as to the applicable maximum penalty. This court regarded a term of 12 months' immediate imprisonment as an appropriate sentence having regard to the quantity of cannabis possessed, that it was possessed for the purpose of commercial dealing and that the appellant was found to be a mid-level dealer. Rodi's appeal was dismissed on the basis that, despite the sentencing judge's error of law, there was no basis for concluding that a different sentence should have been imposed. That is, the court did not merely decide Rodi on the basis that the sentence imposed was not manifestly excessive. In Lester, a mature offender who established a relatively sophisticated cultivation operation, and was found in possession of 2 kg of cannabis head material, received a sentence of 18 months' immediate imprisonment. Like the appellant, Lester was a regular cannabis user. He had a minor record of simple drug related offences, and pleaded guilty at the first reasonable opportunity. In Sandwell, the offender received a 12 month sentence of immediate imprisonment, on a plea of guilty, for possessing about 2.5 kg of cannabis and 147 cannabis seedlings. He was sentenced on the basis that he cultivated and possessed the cannabis with the intention of using it himself and distributing it to a small number of his friends. While Sandwell was not engaged in a commercial enterprise, he was in possession of a much larger quantity of cannabis than the appellant, and was responsible for its cultivation. Although he played only a very minor role in harvesting a hydroponic crop, the offender in HNA received a 9 month sentence of immediate imprisonment. In Miles v The State of Western Australia, a total effective sentence of 22 months' immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with possession of dexamphetamine tablets and $27,500 in cash reasonably suspected of being unlawfully obtained. The sentence imposed for the cannabis offence was 11 months' immediate imprisonment. The impact of the totality principle means, however, that the individual sentence for the cannabis offence needs to be treated with some caution. (citations omitted) 52 The respondent submitted that upon consideration of the sentencing authorities the total effective sentence imposed by the learned Magistrate was excessive and therefore, a lesser sentence should be imposed. I accept the respondent's submission. Given that the appellant had served almost 9 months' imprisonment prior to being sentenced, the 14 month term of imprisonment equates to approximately 23 months' imprisonment. That effective term of -- 15 of 22 -- [2026] WASC 254 MCGRATH J Page 16 imprisonment must necessarily take into account a 15% discount for the early plea of guilty and then the other significant mitigating factor being the appellant's youth. 53 After considering the maximum penalty, the circumstances of the offending, mitigating and aggravating factors and the standard of sentences customarily observed with respect to the offences, I am satisfied that a different sentence should be imposed. Resentencing the appellant 54 In resentencing the appellant, I first turn to the application of the appellant to rely upon new material. The appellant has filed an affidavit of Mr Prior, legal practitioner, affirmed 18 June 2026 producing a letter from Mr Brown, Director of Thrive Integration, dated 27 March 2025 confirming that the appellant has been working as a steel fixer since November 2025 and has ongoing employment. Further, a letter from Ms McDowell, of the Beside You Foundation, dated 16 June 2026 confirming that the Foundation is providing ongoing support to the appellant in the community. I will receive the references as material to be considered in exercising the sentencing discretion.53 Based on the further material, I am satisfied that the appellant is continuing his commitment to his rehabilitation in the community and that he is gainfully employed. I make those findings. 55 The resentencing of the appellant is a difficult exercise due to legislative restraints. In short, in the circumstances of this case, I have limited sentencing options available. The appellant spent 8 months and 3 weeks (being 267 days) in custody prior to sentencing by the learned Magistrate. The learned Magistrate took that period into account by imposing 14 months' conditionally suspended imprisonment (rather than 23 months). That term commenced on the day of sentencing being 31 October 2025. The appellant has now served approximately 8 months of the 14 months' conditionally suspended term of imprisonment (7 months 24 days). However, I am mindful that the appellant served approximately 9 months' imprisonment on remand. Therefore, the appellant has to date effectively served 16 months 24 days imprisonment (either immediate or conditionally suspended). 56 I am satisfied the appropriate sentencing disposition is a term of conditionally suspended imprisonment. However, as I have stated, the term imposed by her Honour was excessive. A term of 14 months' 53 Criminal Appeals Act s 41(4)(a). -- 16 of 22 -- [2026] WASC 254 MCGRATH J Page 17 conditionally suspended imprisonment would have been within the sentencing range if the time in custody (9 months) had formed part of that term. 57 I am unable to impose a term of 14 months' conditionally suspended imprisonment backdated to the date the appellant was first incarcerated (and remained incarcerated for 9 months). In SBJ v The State of Western Australia, the Court of Appeal held that there is no power to backdate the commencement of partly suspended imprisonment just as there is no power to do so in relation to wholly suspended imprisonment.54 Therefore, I am in this position. The appellant has served a total effective term of imprisonment of 16 months (9 months immediate and 7 months 24 days conditionally suspended). I am unable to backdate a term of conditionally suspended imprisonment. 58 Counsel for both the appellant and the respondent proposed that I set aside the sentence and in lieu thereof, impose a short immediate term of imprisonment backdated to the date the appellant was incarcerated after arrest. I am not satisfied that an immediate term of imprisonment is an appropriate disposition (and neither was the learned sentencing Magistrate) and therefore, I will not impose a backdated term of immediate of imprisonment, though it would be convenient to do so. Alternatively, counsel proposed that I impose a fine with the quantum taking into account the fact that the appellant has served effectively 16 months. The appellant has the capacity to pay a fine. 59 Having found that the sentence must be set aside and being unable to backdate a conditionally suspended term of imprisonment, I am left in the position where I set aside the terms of imprisonment imposed by the learned Magistrate and in lieu thereof, impose a global fine of $200. In so doing, I reiterate that the appellant has already served approximately 9 months' immediate imprisonment and approximately 8 months' conditionally suspended imprisonment. Ground 2 - totality 60 By allowing the appeal on ground 1 and finding that a different sentence ought to be imposed, I need not consider ground 2. 54 SBJ v The State of Western Australia [2019] WASCA 32 [137]; see also: The State of Western Australia v Stocker [2022] WASCA 178; Zinga v Johnson [2012] WASC 216 [23]; Vickery v McAlinden [2017] WASC 224 [30]. -- 17 of 22 -- [2026] WASC 254 MCGRATH J Page 18 Conclusion 61 Accordingly, the appeal must be allowed and the appellant resentenced. I make the following orders: 1. An extension of time in which to appeal is granted. 2. Leave to appeal is granted on ground 1. 3. Leave to appeal is not granted on ground 2. 4. The appeal is allowed. 5. The application to rely upon further evidence at resentencing is granted. 6. The conditionally suspended terms of imprisonment imposed by the learned Magistrate are set aside and in lieu thereof a global fine of $200 is imposed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CEM Associate to the Hon Justice McGrath 24 JUNE 2026 -- 18 of 22 -- [2026] WASC 254 MCGRATH J Page 19 ANNEXURE A - TABLE OF CHARGES No. Charge No Date Particularisation Sentence 1. FR 12872/2024 8 October 2024 Possession of 384 g with intent to sell or supply 8 months' imprisonment Head sentence 2. FR 11432/2024 25 September 2024 $5,000 located in the appellant's car 4 months' imprisonment Concurrent 3. FR 1303/2025 6 February 2025 Possession of 174 g with intent to sell or supply 6 months' imprisonment Cumulative 4. FR 2084/2025 26 July 2023 Offered to sell cannabis 3 months' imprisonment Concurrent 5. FR 2085/2025 26 July 2023 Offered to sell half an ounce of cannabis for $220 3 months' imprisonment Concurrent 6. FR 2086/2025 30 July 2023 Offered to sell a portion of cannabis for $230 3 months' imprisonment Concurrent 7. FR 2087/2025 3 August 2023 Offered to sell a portion of cannabis for $200 3 months' imprisonment Concurrent 8. FR 2088/2025 6 August 2023 Offered to sell a portion of cannabis for $200 3 months' imprisonment Concurrent 9. FR 2089/2025 20 August 2023 Offered to sell a quarter ounce of cannabis for $130 3 months' imprisonment Concurrent 10. FR 2090/2025 26 August 2023 Offered to sell a portion of cannabis for $130 3 months' imprisonment Concurrent 11. FR 2091/2025 30 August 2023 Offered to sell a quarter ounce of cannabis for $130 3 months' imprisonment Concurrent 12. FR 2092/2025 8 September Offered to sell a quarter ounce of 3 months' imprisonment -- 19 of 22 -- [2026] WASC 254 MCGRATH J Page 20 2023 cannabis Concurrent 13. FR 2093/2025 14 September 2023 Offered to sell a quarter ounce of cannabis 3 months' imprisonment Concurrent 14. FR 2094/2025 22 September 2023 Offered to sell half and a quarter ounce of cannabis 3 months' imprisonment Concurrent 15. FR 2095/2025 25 September 2023 Offered to sell a quarter ounce of cannabis for $120 3 months' imprisonment Concurrent 16. FR 2096/2025 15 October 2023 Offered to sell a quarter ounce of cannabis 3 months' imprisonment Concurrent 17. FR 2097/2025 23 October 2023 Offered to sell half and a quarter ounce of cannabis 3 months' imprisonment Concurrent 18. FR 2098/2025 24 October 2023 Offered to sell half an ounce of cannabis for $250 3 months' imprisonment Concurrent 19. FR 2099/2025 29 October 2023 Offered to sell half an ounce of cannabis for $200 3 months' imprisonment Concurrent 20. FR 2100/2025 30 October 2023 Offered to sell half an ounce of cannabis for $250 3 months' imprisonment Concurrent 21. FR 2101/2025 30 October 2023 Offered to sell a quarter ounce of cannabis for $120 3 months' imprisonment Concurrent 22. FR 2102/2025 7 November 2023 Offered to sell half an ounce of cannabis for $220 3 months' imprisonment Concurrent 23. FR 2103/2025 20 November 2023 Offered to sell a quarter ounce of cannabis for $130 3 months' imprisonment Concurrent 24. FR 2104/2025 22 November 2023 Offered to sell a quarter ounce of cannabis 3 months' imprisonment Concurrent -- 20 of 22 -- [2026] WASC 254 MCGRATH J Page 21 25. FR 2105/2025 22 November 2023 Offered to sell half an ounce of cannabis for $230 3 months' imprisonment Concurrent 26. FR 2106/2025 26 November 2023 Offered to sell half an ounce of cannabis with different strains, one being for $220 and the other for $330 3 months' imprisonment Concurrent 27. FR 2107/2025 30 November 2023 Offered to sell half an ounce of cannabis for $200 3 months' imprisonment Concurrent 28. FR 2108/2025 1 December 2023 Offered to sell an amount of cannabis for $60 3 months' imprisonment Concurrent 29. FR 2109/2025 4 December 2023 Offered to sell an amount of cannabis for $120 3 months' imprisonment Concurrent 30. FR 2110/2025 4 December 2023 Offered to sell half an ounce of cannabis for $200 3 months' imprisonment Concurrent 31. FR 2111/2025 5 December 2023 Offered to sell portions of cannabis for $60 and $120 3 months' imprisonment Concurrent 32. FR 2112/2025 5 December 2023 Offered to sell a quarter ounce of cannabis 3 months' imprisonment Concurrent 33. FR 2113/2025 6 December 2023 Offered to sell cannabis and sent a picture of the cannabis he had in stock 3 months' imprisonment Concurrent 34. FR 2114/2025 8 December 2023 Offered to sell an ounce of cannabis for $350 3 months' imprisonment Concurrent 35. FR 2115/2025 8 December 2023 Offered to sell half an ounce of cannabis 3 months' imprisonment Concurrent 36. FR 2116/2025 11 December Offered to sell cannabis and sent a 3 months' imprisonment -- 21 of 22 -- [2026] WASC 254 MCGRATH J Page 22 2023 picture of the cannabis he had in stock Concurrent 37. FR 2117/2025 11 December 2023 Offered to sell cannabis in ounces and half ounces 3 months' imprisonment Concurrent 38. FR 2118/2025 12 December 2023 Offered to sell an ounce for $350 3 months' imprisonment Concurrent 39. FR 2119/2025 12 December 2023 Offered to sell half an ounce of cannabis for $230 or an ounce for $350 3 months' imprisonment Concurrent 40. FR 2120/2025 13 December 2023 Offered to sell a quarter ounce of cannabis 3 months' imprisonment Concurrent 41. FR 2121/2025 16 December 2023 Offered to sell half an ounce of cannabis 3 months' imprisonment Concurrent 42. FR 2122/2025 16 December 2023 Offered to sell three grams of cannabis for $60 3 months' imprisonment Concurrent 43. FR 2123/2025 17 December 2023 Offered to sell half an ounce of cannabis for $220 3 months' imprisonment Concurrent 44. FR 2124/2025 18 March 2024 Sent image of cannabis and prices for two strains 3 months' imprisonment Concurrent 45. FR 2157/2025 21 September 2024 Offered to sell an ounce of cannabis 3 months' imprisonment Concurrent 46. FR 2158/2025 25 September 2024 Offered to sell half a pound of cannabis for $2250 4 months' imprisonment Concurrent 47. FR 3518/2025 24 February 2025 Failed to provide access to an Apple iPhone seized in search warrant executed on 6 February 2025 2 months' imprisonment Concurrent -- 22 of 22 --