KOVACS -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 76

[2026] WASCA 76 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KOVACS -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 76 CORAM : HALL JA SEAWARD JA SMITH AUJ HEARD : 14 APRIL 2026 DELIVERED : 3 JUNE 2026 FILE NO/S : CACR 99 of 2025 BETWEEN : ALEX JOHN KOVACS Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : TOVEY DCJ File Number : IND 1087 of 2024 Catchwords: Criminal law - Appeal against sentence - Possession of 1816.7 g of cocaine with intent to sell or supply - Express factual error - Appellant sentenced on basis of incorrect quantity of cocaine - Is error material - Should different sentence be imposed - Should matter be remitted to District Court for resentencing -- 1 of 17 -- [2026] WASCA 76 Page 2 Legislation: Criminal Appeals Act 2004 (WA), s 23(1)(b), s 31(3), s 31(4)(a), s 31(5)(b) Misuse of Drugs Act 1981 (WA), s 6(1)(a) Result: Leave to appeal allowed Appeal dismissed Category: B Representation: Counsel: Appellant : A Rogers Respondent : I O'Brien Solicitors: Appellant : Abigail Rogers Barristers & Solicitors Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Carlucci v The State of Western Australia [2019] WASCA 37 Fernandes v The State of Western Australia [2009] WASCA 227 HSDO v The State of Western Australia [2025] WASCA 152 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 LAT v The State of Western Australia [2018] WASCA 215 Lau v The State of Western Australia [2020] WASCA 4 Law v The Queen [2019] WASCA 81 The State of Western Australia v Tulloch [2025] WASCA 17 Trainor v The State of Western Australia [2021] WASCA 36 Tricoli v The State of Western Australia [2011] WASCA 74 Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 -- 2 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: Overview 1 This is an appeal against sentence. 2 On 13 March 2025, the appellant, Alex Kovacs, was convicted on his plea of guilty to one charge of possession of a prohibited drug (being cocaine) with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). 3 Unfortunately, when the statement of material facts was read to the court on 25 July 2025 it contained a factual error in relation to the amount of cocaine the subject of the offence, and the prosecutor stated that the appellant possessed 2153.7 g of cocaine with intent to sell or supply. 4 On 1 August 2025, the learned sentencing judge sentenced the appellant, on the basis of the statement of material facts, to a sentence of 7 years' immediate imprisonment backdated to 27 May 2025. The appellant was made eligible for parole. 5 Approximately two weeks later, the State realised that the statement of material facts contained an error, and that the amount of cocaine the subject of the offence was actually 1816.7 g, being 337 g less than what was in the statement of material facts. The error appears to have been a calculation error. 6 Appropriately, this error was communicated to the appellant, who then commenced this appeal. 7 The appellant appeals his sentence pursuant to s 23(1)(b) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) on the ground that the learned sentencing judge made an express error of fact, and that this error has resulted in a miscarriage of justice. The appellant requires leave to appeal.1 8 The State accepts that the sentencing judge made an express error of fact and accepts that this error was a material error. We accept that this concession is properly made. 9 However, the parties differ as to the consequences of this error. 1 Criminal Appeals Act 2004 (WA), s 27. -- 3 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 4 10 The appellant submits that the appropriate course of action is for the matter to be remitted to the District Court for the appellant to be resentenced pursuant to s 31(5)(b) of the Criminal Appeals Act. 11 The State submits that notwithstanding this error, no different sentence should have been imposed, and therefore the appeal should be dismissed pursuant to s 31(3) of the Criminal Appeals Act. 12 For the reasons set out below, whilst we would grant the appellant leave to appeal, we have concluded that no different sentence should be imposed, and therefore the appeal must be dismissed pursuant to s 31(3) of the Criminal Appeals Act. Circumstances of offending 13 On 25 July 2025, the prosecutor read an amended statement of material facts to the court, which was dated 14 March 2025. Those facts, which were then accepted by counsel for the appellant,2 were as follows: At all material times, the accused Tony Nhek, who I'll refer to as Nhek, and Alex Kovacs, who I'll refer to as Kovacs, were residents of New South Wales. In the months leading up to the alleged offending, or to the offending, on 19 April 2023, Nhek and Kovacs had been in regular communication with one another on an encrypted communications application known as Signal. The communications reveal that the two together were involved in a continuing course of conduct involving the collection, transportation, and sale or supply of prohibited drugs, and the cash proceeds of the drug dealing on behalf of a criminal network that was engaged in drug trafficking. Prior to 19 April 2023, as part of that continuing course of conduct, Nhek and Kovacs arranged to travel to Perth separately for a mutually agreed unlawful purpose in connection with their involvement in the criminal network, and for which they expected to be paid. While in Perth, on 19 April 2023, they were jointly involved in unknown activities, as a result of which, firstly, Nhek possessed $140,060 in Australian currency, the proceeds of an offence presumed to be the sale of illicit drugs, which he received from persons unknown after arriving in Perth that evening, with the intention of transporting it to Sydney, where it would be delivered to another or others. 2 ts, 25/07/2025, SAB 40 - 43. -- 4 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 5 And secondly, Kovacs possessed 2.153 kilograms of cocaine, which he received on or in the days leading up to 19 April 2023, whilst he was in Perth. He possessed that cocaine with the intention of selling or supplying it to another or others. In respect of the background of the matter, your Honour, on 18 April 2025, Kovacs asked Nhek to borrow money to pay for his flight to Perth. Nhek said that he would book a flight for Kovacs and that once they land there would be money for him. Bank records show that Nhek made the $814 Qantas transaction for a flight in the name of Kovacs leaving Sydney on 19 April 2023. Nhek enabled Kovacs to possess the cocaine in Perth or did an act for that purpose, subject to section 7(b) of the Code, by booking Kovacs' flight to Perth knowing that after Kovacs arrived in Perth he would take possession of an item in respect of which Nhek had the belief in the likelihood, in the sense that there was a significant or real chance that it would be a prohibited drug. On 19 April 2023, Kovacs travelled from Sydney to Perth on Qantas flight 643, arriving at about 11.25 am. On 20 April 2023, he rented a white Jeep Compass station sedan 1HRE-771, referred to as the Jeep. On 23 April 2023, a reservation was made on Airbnb, in the name of Kovacs, for a four-night stay in apartment 106/11 Money Street in Perth, being the Money Street apartment, between 24 and 28 April 2023. Nhek paid for the accommodation. On 24 April 2023, police from the serious and organised crime division became aware that Nhek was travelling from Sydney to Perth on a Virgin flight 559. At approximately 4.30 pm at Perth Airport, police located a checked-in silver suitcase belonging to Nhek. Pursuant to a Misuse of Drugs Act search warrant, the silver suitcase was searched, however, no items of interest were located. That silver suitcase would later be found to contain $140,060 in cash when Nhek returned to Perth Airport at about 11 pm on the same date, intending to board a return flight to Sydney, and checked in that same suitcase. It is inferred therefore that Nhek travelled to Perth without cash and was intending to leave Perth on the same date with the cash. Police coordinated resources to monitor the movements of Nhek whilst in Perth. At about 4.30 pm on 24 April 2023, covert operative 1100 and covert operative 781 commenced observations on and in the vicinity of gate 46, terminal 1, domestic Perth Airport. At 5.02 pm, 781 observed Nhek exit gate 46 and continue out of view towards the baggage collection area. Nhek was carrying a black backpack. At 5.18 pm, 781 and 970 observed Nhek collect the silver suitcase from a baggage carousel, exit the terminal and enter the airport car park. Observations were maintained in the car park, where Nhek stood within -- 5 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 6 the car park talking on a mobile phone. Kovacs was at the airport in the Jeep, parked in the car park, waiting to collect Nhek. At 5.22 pm, Nhek walked towards the Jeep. Nhek placed the backpack and the silver suitcase into the vehicle and entered the front passenger seat. 781 and 975 observed Nhek drive to the Money Street apartment. At 5.57 pm, Nhek and Kovacs exited the Jeep, opened the boot and collected a backpack and suitcase each. Observations were maintained. At 5.59, 1100 observed Nhek and Kovacs walk into the apartment complex. Nhek was observed holding the silver suitcase as well as a backpack. Kovacs was now observed carrying a blue backpack. At 6.40 pm, 1100 observed Nhek and Kovacs exit the apartment complex. Nhek and Kovacs continued out of the view towards the Jeep. At 6.42 pm, Nhek entered the front passenger seat, and Kovacs entered the driver's seat before the Jeep departed. Between 6.55 and 7.55 pm, the Jeep was parked at a Wilson parking in Northbridge. During this period it was unoccupied, and the movements of Kovacs and Nhek were not observed by the surveillance team. At 7.58 pm, 389 observed Nhek and Kovacs return to the Jeep and park on Newcastle Street. They again entered the Money Street apartment. At 9.32 pm, 1100 observed Nhek and Kovacs exit the apartment complex and return to the Jeep. Nhek was carrying the silver suitcase that he had brought into the apartment. At 9.39, 1100 observed the Jeep enter the drive through at the Bottlemart Express at 803 Beaufort Street in Inglewood. At 9.41 pm, 975 observed the Jeep enter the drive through at McDonald's at 208 Beaufort Street in Perth. At 9.57 pm, 757 observed that Nhek and Kovacs arrived and street-parked outside the Money Street apartment complex. They continued out of view into the complex. At 10.39 pm 910 observed Nhek and Kovacs exit the apartment complex. Nhek was pulling the silver suitcase which by this time inferentially contained the $140,060 cash, and placed it in the Jeep before entering the front passenger seat. Kovacs then drove Nhek to the Perth Airport. Observations were maintained on the Jeep which was observed arriving at Perth Airport. At 11.06 pm 757 observed Nhek carrying the black backpack and the silver suitcase. Nhek entered the terminal and checked in the suitcase at the self check-in area. Nhek then carried the black backpack, walked through the terminal, passed through the security bag check area and continued out of view in the vicinity of Gate 43. Surveillance then ceased. Utilising the same search warrant used prior in the day police requested to search the silver suitcase belonging to Nhek that had been checked -- 6 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 7 in. Sergeant Jason Carter opened the bag and observed the $140,060 cash in Australian currency which had been sealed in Cryovac wrapping. The bag was sealed in a hessian bag which was sealed with a tag number T100101. Sergeant Carter immediately attended the departures area of the airport, walked up to Nhek, removed three phones from his possession and placed Nhek under arrest. Nhek was conveyed to the Serious and Organised Crime Squad offices. He provided a code for two of the mobile phones, being an Apple iPhone, the small one, and a black Apple iPhone, being the large one. The third mobile phone was a Samsung dedicated encrypted communication device. He was arrested and conveyed to Curtin House. He participated in an electronic record of interview, however, he made no comment of the questions of him. At about 10.52 pm Detective First Class Constable Ben Turner executed an undeclared search warrant in company with other officers. During the search Detective First Class Constable Turner located the blue backpack inside the wardrobe. This backpack had earlier been seen on Kovacs and captured by CCTV footage as he entered the apartment complex at 6.02 pm earlier that night. Contained in the backpack was a Cryovac bag containing 2153.7 grams of cocaine. The cocaine was contained within eight separate packages ranging from 76 per cent to 83 per cent in purity. During the search Kovacs was cautioned and interviewed. He answered some questions asked of him. He said that he was staying in the unit as an Airbnb. An iPhone and black Samsung mobile phone were seized from him. Subsequently detectives searched the Jeep and nothing of interest was located. He did not participate in an electronic record of interview. 14 The error in relation to the amount of cocaine is underlined (on the two occasions it was referred to) in the above recitation of the statement of material facts. The appellant's personal circumstances 15 The appellant's personal circumstances, as found by the learned sentencing judge, are as follows.3 16 The appellant was 25 years old when he committed the offence, and 28 years old at the time of sentencing. 3 ts, 1/08/2025, SAB 76 - 77. -- 7 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 8 17 The appellant was born and raised in New South Wales, and is the oldest of three children born to his parent's union. He also has a number of half-siblings. The appellant is close to his younger sisters. The appellant's immediate family all reside in New South Wales. The appellant maintains regular telephone contact with his father, but unfortunately his contact with his mother has been strained because of this offending. The appellant is not currently in a relationship. 18 The appellant completed up to year 10 in New South Wales, before leaving school to pursue an apprenticeship in carpentry. He obtained Certificates I, II and III in carpentry, but did not complete his apprenticeship. The appellant was then employed as a forklift driver for approximately eight years, before coming to Western Australia in 2023. 19 The appellant was granted home detention bail for this offence in June 2023 and was employed as a delivery driver whilst on bail. 20 The appellant reported no physical or mental health issues to the author of the pre-sentence report. 21 The sentencing judge found that the appellant had used cocaine in the past but did not have a significant drug use history. Her Honour also found that there was no suggestion of any drug use by the appellant whilst on bail. 22 The sentencing judge was provided with numerous letters and character references on the appellant's behalf, including from family members, friends and his employer, all of which spoke to the appellant's positive qualities. 23 In terms of a criminal record, save for a minor offence when the appellant was about 20, the appellant only has driving or traffic-related prior offences, and the sentencing judge sentenced the appellant on the basis that he was of prior good character. Sentencing remarks4 24 After outlining the facts of the offending and the appellant's personal circumstances, the sentencing judge noted that the maximum penalty for the offence is a fine not exceeding $100,000 or a term of imprisonment not exceeding 25 years, or both. 4 ts, 1/08/2025, SAB 72 - 81. -- 8 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 9 25 Her Honour then observed that the appellant had pleaded guilty to the offence. This followed an indication at the trial listings hearing in February 2025 that the appellant would plead guilty, and the plea was formally entered on 13 March 2025. Her Honour found that whilst the plea of guilty was not made at the first reasonable opportunity, it was made at an early stage in the proceedings, and therefore her Honour allowed a discount of 17.5% pursuant to s 9AA of the Sentencing Act 1995 (WA). 26 The sentencing judge also accepted that the appellant had expressed contrition and deep regret for the harm he caused by his offending, and her Honour found that he was remorseful for his actions. 27 The sentencing judge accepted that at age 25, the appellant's relative youth was a matter to take into account by way of mitigation. 28 Her Honour found, based on the appellant's performance on home detention bail, that he had good prospects of rehabilitation. 29 The sentencing judge also accepted that it was onerous for the appellant to be on home detention bail without family support in Western Australia, and that for the same reason his time in prison will be more onerous than for someone who has family in Western Australia. 30 The sentencing judge then referred to the need to have regard to the considerations of general and personal deterrence. Her Honour observed that in the context of the offence to which he pleaded guilty, the appellant's personal circumstances are accorded less weight, although they are not irrelevant. 31 Her Honour then considered the weight and purity of the cocaine, and said as follows:5 The weight of the drugs in question is not generally the chief factor to be taken into account in fixing sentence, but it is a matter of importance. The weight and purity of the drugs involved is, ordinarily at least, a matter of importance. Because it can be presumed that the greater the weight and greater the purity, the greater the harm that can be done to the community. Other factors to be taken into account in my sentencing of you includes the nature and level of your participation in drug dealing and whether the offending was committed for commercial gain. 5 ts, 1/08/2025, SAB 79 - 80. -- 9 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 10 Now, the facts reveal that you had possession of a very large amount of cocaine, some 2.153 kilograms of cocaine, with intent to sell or supply. Such an amount of cocaine would have caused substantial harm if it had made its way into the community. 32 In terms of the appellant's role in the offence, the sentencing judge found that:6 Your role in this offence includes travelling to Perth in connection with your involvement in this offence. Your role was to collect the drugs in Perth and to supply them to someone else in Perth. You were involved in the offence for a large financial reward, approximately $50,000. So you were involved in the offence for commercial gain. And you were trusted with a large amount of cocaine. And your role was of significance in the possible dissemination of a considerable amount of drugs into the community, which was only thwarted by the actions of the police. 33 The sentencing judge observed that a sentence reflective of the seriousness of the appellant's offending must be imposed. Her Honour also identified that she must not use a more severe sentencing option unless satisfied that it is not appropriate to use any one of the less severe options available, and that imprisonment is a sentence of last resort. 34 Her Honour concluded in all the circumstances that the appellant's offending was such that a term of imprisonment to be served immediately was the only appropriate disposition. 35 The sentencing judge then imposed a sentence of 7 years' immediate imprisonment, backdated to commence on 27 May 2025, and the appellant was made eligible for parole. Her Honour also made an order declaring the appellant to be a drug trafficker.7 Ground of appeal 36 The appellant appeals on the single ground of appeal that an error occurred when the court was advised that the appellant was in possession, with intent to sell or supply, of the incorrect weight of drugs, such that a miscarriage of justice occurred. 37 The appellant particularised the ground of appeal as follows: 6 ts, 1/08/2025, SAB 80. 7 This order was made on 25 July 2025. -- 10 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 11 (i) Counsel for the State read to the court an amended statement of material facts which provided that the appellant was in possession with intent to sell or supply 2153.7 g of cocaine. (ii) The State accepts that an administrative error occurred. (iii) The appellant was only in possession with intent to sell/supply 1816.7 g of cocaine. (iv) The appellant was sentenced based on being in possession of 337 g of cocaine more than he should have been sentenced for. (v) It is submitted that a lesser sentence should have been imposed. Legal principles - sentencing appeals and express error 38 The legal principles regarding an appeal against sentence are well established. This court can only intervene in a sentencing appeal if the primary judge made an express or implied material error of fact or law, or if a miscarriage of justice has occurred.8 39 As outlined by this court in Law v The Queen,9 an error will be 'material' if the error is capable of affecting the actual sentence imposed by the primary judge. An error will be capable of affecting an actual sentence if:10 the nature or degree of the error has the capacity to affect the primary judge's assessment of the seriousness of the offence, having regard to the factors which the judge must take into account when sentencing the offender. 40 See also Fernandes v The State of Western Australia11 and HSDO v The State of Western Australia.12 41 In Kentwell v The Queen,13 French CJ, Hayne, Bell and Keane JJ explained the nature of the assessment of an express error which is undertaken by an appellate court. Their Honours explained that the appellate court does not assess whether and to what degree the error influenced the outcome. Rather, in such a case the judge's discretion has miscarried and it is the appellate court's duty to exercise the 8 LAT v The State of Western Australia [2018] WASCA 215 [39]. 9 Law v The Queen [2019] WASCA 81 [127] - [128]. 10 Law v The Queen [2019] WASCA 81 [128]. 11 Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10]. 12 HSDO v The State of Western Australia [2025] WASCA 152 [77]. 13 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42]. -- 11 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 12 discretion afresh, subject to the applicable criminal appeals statute, the provisions of the applicable sentencing legislation and any other statute or rule of law, as required or permitted. 42 Their Honours said that in the case of an express factual error, the appellate court's power to intervene is enlivened and it becomes its duty to resentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.14 This reflects the particular statutory scheme applicable in that case, being the Criminal Appeal Act 1912 (NSW). 43 See also Law v The Queen15 and HSDO v The State of Western Australia.16 44 In Western Australia, the applicable criminal appeals statute is the Criminal Appeals Act, which in s 31 relevantly provides as follows: (1) This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against - (a) the sentence imposed or any order made as a result of - (i) a conviction on indictment; or (ii) a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence; (b) … [(2) deleted] (3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal. (4) The Court of Appeal may allow the appeal if, in its opinion - (a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed or a different order made; or (b) … 14 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35]. 15 Law v The Queen [2019] WASCA 81 [130]. 16 HSDO v The State of Western Australia [2025] WASCA 152 [77]. -- 12 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 13 (5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence or order and - (a) may instead impose a new sentence that is either more or less severe or make a new order; or (b) may send the charge back to the court that imposed the sentence or made the order to be dealt with further. 45 The task for this court is therefore to consider (a) whether there has been an express error of fact; (b) if so, whether that error is material; and (c) if so, whether, in the exercise of its independent sentencing discretion, 'a different sentence should have been imposed'. 46 If this court concludes that a different sentence should have been imposed, then pursuant to s 31(4) and s 31(5) of the Criminal Appeals Act, the appeal must be allowed, and this court must go on to impose a new sentence (that is either more or less severe) or to send the charge back to the court that imposed the sentence to be dealt with further. 47 However, if this court concludes that no different sentence should have been imposed, then pursuant to s 31(3) of the Criminal Appeals Act, the appeal must be dismissed. 48 The question is not whether the learned sentencing judge 'would have' imposed a different sentence absent the error. Rather, if a material error is established, the appellate court must consider, by exercising the sentencing discretion afresh, whether a different sentence should have been imposed. Was an express error made, and was that error material? 49 In the present case there is no dispute that an express error of fact was inadvertently made by the learned sentencing judge when her Honour sentenced the appellant on the basis that he possessed 2153.7 g of cocaine with intent to sell or supply. The appellant ought to have been sentenced on the basis that he possessed 1816.7 g of cocaine with intent to sell or supply. 50 We also accept that this express error was material to the learned sentencing judge's sentence in that it was capable of affecting the sentence imposed. In this regard, her Honour clearly had regard to the weight of the cocaine, even accepting that it was not determinative. Her Honour also had regard to the fact that the appellant's role in the offending was of significance 'in the possible dissemination of a -- 13 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 14 considerable amount of drugs into the community'. We therefore accept that the error was relevant to her Honour's determination of a sentence that was commensurate with the seriousness of the offence and was therefore capable of affecting the sentence imposed. Should a different sentence be imposed? 51 Having concluded that an express material error was made, it is necessary to consider whether, in the exercise of this court's independent sentencing discretion, a different sentence should have been imposed. 52 In all the circumstances, we are not satisfied that a different sentence should have been imposed. 53 The legal principles relevant to sentencing for offences of dealing or trafficking in dangerous drugs are well known and have been outlined by this court on numerous occasions. In The State of Western Australia v Tulloch, this court explained as follows:17 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. 54 The maximum penalty for this offence is a fine of $100,000 or 25 years' imprisonment, or both. 55 The circumstances of the offending were serious. The appellant was involved in the possession of 1816.7 g of cocaine, which is a significant quantity, with the intent to sell or supply that cocaine. The purity of the cocaine was between 76% to 83%. Whist the weight and purity of the drugs are not the chief factor to be taken into account when sentencing, it can be relevant to the sentencing exercise in that the greater the weight and purity of the drugs, the greater the harm that may be done to the community. 17 The State of Western Australia v Tulloch [2025] WASCA 17 [122]. -- 14 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 15 56 The appellant's role in the offending was to collect the cocaine and then supply it to another person in Perth. The appellant was entrusted with a significant quantity of cocaine of a high purity, and his role was of importance in the proposed dissemination of a considerable amount of drugs into the community. His role was more than that of a mere courier. His involvement commenced in the months prior to his travel to Perth from Sydney, when he was in communication with his co-offender. He travelled to Perth on 19 April 2023 for the purpose of assisting in a drug deal. He rented a car and stayed at premises rented for this purpose. He was involved with his co-offender's activities, including collecting the co-offender from the airport when he arrived on 24 April 2023 and taking him to the rented accommodation. He later drove the co-offender to Northbridge, and later that night back to the airport. All of this indicates that he played a significant role in this drug enterprise. 57 The appellant also participated in the offending behaviour for commercial gain, being a significant financial reward of approximately $50,000. 58 The appellant entered a plea of guilty to the charges and demonstrated remorse. That plea was not entered at the earliest opportunity, but it still had the effect of avoiding the need for a trial. 59 The personal circumstances of the appellant are detailed earlier in these reasons. However, as outlined in the authorities, in offences such as this one, whilst the personal circumstances of the appellant are relevant to the exercise of the sentencing discretion, they will almost always be subsidiary to matters of general and specific deterrence. 60 Counsel for the respondent referred the court to a number of comparable cases. It is not necessary to refer to them all. 61 In Tricoli v The State of Western Australia,18 this court considered an appeal against a sentence of 6 years' immediate imprisonment imposed for possession of 436.59 g of cocaine with intent to the sell or supply. This court considered a number of other cases and observed that possession of a large quantity of cocaine often attracts sentences of up to 10 years' imprisonment, and that 436.59 g can be described as a large quantity. 18 Tricoli v The State of Western Australia [2011] WASCA 74 [4] - [5]. See also Lau v The State of Western Australia [2020] WASCA 4 [16]. -- 15 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 16 62 As outlined in Trainor v The State of Western Australia,19 there are a number of decisions of this court reviewing the patterns of sentencing for offences involving quantities of methylamphetamine of 1 kg or more in cases involving the previous maximum penalty of 25 years' imprisonment, with which cocaine can be equated. These include Zanon v The State of Western Australia,20 where McLure P held that there are a cluster of cases in which possession of a quantity of prohibited drugs of approximately 1 kg have attracted sentences of between 9 years' and 12 years' imprisonment. 63 In Carlucci v The State of Western Australia,21 this court observed that a number of cases concerning the sale of methylamphetamine imposed sentences of between 5 years' and 7 years' imprisonment on persons engaged in a commercial drug business which involved dealing in ounces rather than kilograms. The cases referred to by the court all involved quantities of methylamphetamine in grams (as opposed to kilograms) and involved significantly lower quantities than the 1.8167 kg in the present case. 64 In Carlucci, this court also observed that sentences above the 5 to 7 year range have been imposed in cases which involve a greater degree of criminality.22 Further, sentences of 10 years or more have been imposed for charges arising from a single occasion of possession of very large quantities of prohibited drugs with the intent to sell or supply.23 In those cases where sentences of 10 years or more were imposed, the quantity of prohibited drugs were generally in the kilograms and greater than the quantity involved in the present case. The individual cases referred to in Carlucci all involved the previous maximum penalty of 25 years' imprisonment. 65 In all the circumstances, we do not consider a different sentence should have been imposed. A sentence of 7 years' imprisonment is a proper reflection of the nature and seriousness of offending, pays proper regard to the plea of guilty entered by the appellant and to his personal circumstances, gives appropriate weight to general and personal deterrence, and is consistent with customary sentencing standards for offending of this type. 19 Trainor v The State of Western Australia [2021] WASCA 36 [39]. 20 Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [174]. 21 Carlucci v The State of Western Australia [2019] WASCA 37 [39] (Carlucci). 22 Carlucci [43]. 23 Carlucci [48]. -- 16 of 17 -- [2026] WASCA 76 JUDGMENT OF THE COURT Page 17 Conclusion 66 As the appellant has demonstrated that the learned sentencing judge made a material error of fact, leave to appeal should be granted. 67 However, as we have concluded that no different sentence should be imposed, the appeal must be dismissed pursuant to s 31(3) of the Criminal Appeals Act. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SS Associate to the Hon Justice Seaward 3 JUNE 2026 -- 17 of 17 --