LUU -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 73

[2026] WASCA 73 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LUU -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 73 CORAM : THOMSON P HALL JA HEARD : 20 MAY 2026 DELIVERED : 27 MAY 2026 FILE NO/S : CACR 11 of 2026 BETWEEN : THI DUYEN LUU Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : BOWDEN DCJ File Number : IND 101 of 2025 Catchwords: Criminal law - Appeal against sentence - Possession of methylamphetamine and heroin with intent to sell or supply - 48.6 g of methylamphetamine - 46.57 g of heroin - Appellant held drugs intending to return them to owner - Whether total effective sentence of 5 years' imprisonment breached first limb of totality principle -- 1 of 13 -- [2026] WASCA 73 Page 2 Legislation: Misuse of Drugs Act 1981 (WA), s 6(1)(a) Result: Leave to appeal refused Appeal dismissed Category: B Representation: Counsel: Appellant : R Kashyap Respondent : No appearance Solicitors: Appellant : Holborn Lenhoff Massey Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Astone v The State of Western Australia [2024] WASCA 18 Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262 Dao v The State of Western Australia [2007] WASCA 237 Delovski v The Queen [2002] WASCA 88 Fenton v The State of Western Australia [2015] WASCA 255 Gaskell v The State of Western Australia [2018] WASCA 8 Humes v The State of Western Australia [2023] WASCA 110 Kabambi v The State of Western Australia [2019] WASCA 44 Ng v The State of Western Australia [2025] WASCA 121 Owen v The State of Western Australia [2024] WASCA 28 Stipanich v The State of Western Australia [2023] WASCA 118 The State of Western Australia v Stocker [2022] WASCA 178; (2022) 305 A Crim R 335 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 Zadarnowski v The State of Western Australia [2025] WASCA 48 -- 2 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: 1 The appellant was convicted on her pleas of guilty of one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) and one count of possession of a prohibited drug with intent to sell or supply (heroin), contrary to s 6(1)(a) of the MDA. She was sentenced to 3 years' imprisonment on the first count and 2 years' imprisonment cumulative on the second count. Accordingly, the total effective sentence was 5 years' imprisonment. She now seeks leave to appeal against that sentence. 2 There are two grounds of appeal. The first ground, in essence, is that the total effective sentence of 5 years' imprisonment breached the first limb of the totality principle. The second ground alleges that the learned sentencing judge failed to properly take into consideration the 'one transaction rule'. There is no rule as such and the second ground, in substance, is a claim that the sentences should have been ordered to be served concurrently or partly concurrently because not to do so would result in a sentence that was disproportionate to the overall offending conduct. In this sense it is, in reality, a particular of ground 1. 3 Leave to appeal is required for each ground of appeal. This court cannot grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless leave to appeal is granted on at least one ground of appeal, the appeal is taken to have been dismissed.1 4 For the reasons that follow, there is no merit in the grounds of appeal. Leave to appeal should be refused and the appeal dismissed. The facts 5 At 8.45 am on 27 October 2023, detectives from the Drug and Firearms Squad executed a search warrant at the appellant's home in Girrawheen.2 At the time, the appellant's son, daughter, granddaughter and her daughter's partner were present at the house. The appellant was not present but arrived at approximately 9.55 am and was placed under arrest and searched by police. 1 Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3). 2 ts 19. -- 3 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 4 6 During the search of the appellant, a clipseal bag containing 0.27 g of methylamphetamine was located. She made admissions under caution that this methylamphetamine was for her personal use. 7 During the search of the appellant's bedroom, police officers located a large formula milk container on the windowsill, behind the curtain. Inside the container was a large clipseal bag containing 48.6 g of methylamphetamine with a purity of 79% (count 1), and a metal spoon.3 There was also a large clear Cryovac bag containing 26 clipseal bags, each containing an amount between 1.71 g and 1.77 g of heroin, and a loose clipseal bag containing 1.2 g of heroin. The total amount of heroin was 46.57 g (count 2). 8 When asked about the formula container, the appellant said that someone had stayed in her house, and when that person moved out a month and a half previously, they had left the container in the small room next to the garage.4 The appellant said that she had moved the container into her bedroom a few days before the police attended. She said that she knew that there was methylamphetamine inside the container, and believed that the owner was coming back to collect it. 9 A clear smoking pipe was also located next to the formula container. When asked about the pipe, the appellant said that she had used it previously. The police officers also located a further two smoking implements in the walk-in wardrobe adjacent to the bedroom. 10 During a search of a storage room at the rear of the property, officers located nine further smoking implements, an empty Cryovac bag in a shoebox, a heart-shaped container containing 0.16 g of methylamphetamine, and a working set of digital scales with white powder residue.5 11 For the purposes of sentencing, the State accepted that the appellant was a bailee in relation to the drugs, in that she knew that there were drugs inside the formula container of sufficient value that it should not be discarded.6 She was aware the owner of the drugs was engaged in drug dealing, and she possessed those drugs by moving them and concealing them in a safe place with the intention of returning them to their owner. 3 ts 19 - 20. 4 ts 20. 5 ts 20. 6 ts 20. -- 4 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 5 Personal circumstances 12 The appellant was 54 years of age at the time of sentencing.7 13 The appellant came to Australia with her family as a refugee in the mid-1980s. In her youth, she worked at her parents' bakery.8 She has spent much of her adult life looking after her two children and three grandchildren. 14 The appellant has endured two traumatic relationship breakdowns, each leaving her as the primary caregiver for children and relatives.9 15 References from members of the appellant's family attested to her central place within the family, particularly in regard to the care for her elderly father. Her father suffered an aneurysm in early 2025, resulting in a hospital admission, permanent disability, and complete loss of mobility and independence. He requires 24-hour care, including hoist transfers, assistance with all aspects of daily living and management of personal hygiene, and emotional support.10 The appellant's mother is also elderly and physically unable to care for the appellant's father. At the time of sentencing, the appellant was providing full-time care for her father. 16 It was not submitted at sentencing that the appellant's imprisonment would cause exceptional hardship to her father, or her family generally. Rather, it was put that this was part of her personal circumstances and was relevant to her character. 17 The appellant was described in sentencing submissions as being vulnerable, in the sense that her personality is such that she is very willing to help others, and this has resulted in others sometimes taking advantage of her. She was described by members of her family as kind and naïve.11 18 The appellant has a criminal record. It includes an offence of a similar nature. In 2009, she was sentenced to 2 years 6 months' immediate imprisonment for an offence of possession of a prohibited drug with intent to sell or supply. 7 ts 30. 8 ts 30 - 31. 9 ts 25, 31. 10 ts 31. 11 ts 31. -- 5 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 6 19 In sentencing submissions, the appellant's explanation for the offending was put in the following way. The formula container belonged to a woman who the appellant had known for around 15 years.12 The woman had been in prison and had given birth to a child, who the appellant had cared for. After the woman was released from prison, the appellant permitted her to stay at her home. The appellant asked the woman to leave after becoming concerned at the behaviour of other people visiting the house. The formula container was left behind by the woman. The appellant located the container a 'few days' before the police search.13 She knew that the container contained drugs and that they had significant value. She moved the container to her bedroom out of fear and confusion, and to ensure that it was kept safe. She did not report it to police as she feared that she would be required to pay for the drugs by the owner. Sentencing remarks 20 As the grounds of appeal assert implied error, it is not necessary to analyse the sentencing remarks in great detail. 21 The sentencing judge accepted that the appellant had entered guilty pleas at a relatively early stage, though not at the first reasonable opportunity. His Honour allowed a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA).14 His Honour also accepted that the appellant was remorseful. 22 The sentencing judge said that, whilst he would take into account the appellant's father's condition and her caring role, there was less capacity for personal factors to mitigate punishment, given the nature and seriousness of the offending. His Honour said that the offending was so serious that both the protection of the public and the need to impose a penalty that properly reflected that seriousness required that a period of imprisonment be imposed.15 There was a need for personal deterrence having regard to the appellant's prior conviction for a drug offence. General deterrence was also a significant consideration. 23 The sentencing judge said that, whilst the appellant's possession was brief, it could not be described as fleeting, in the sense used in a number of other cases.16 His Honour accepted that there was no 12 Outline of offender's sentencing submissions, filed 29 January 2026, pars 14 - 15. 13 Outline of offender's sentencing submissions, filed 29 January 2026, pars 18 - 19. 14 ts 30. 15 ts 33. 16 ts 32. -- 6 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 7 suggestion that the appellant owned the drugs or was personally going to deal with them, or would commercially benefit from the sale of those drugs. His Honour said that, if the appellant had been involved in commercial activity, that would have been an aggravating feature that would have led to the imposition of higher sentences. 24 The sentencing judge noted that the quantity and purity of the drugs was relevant, but that it was also necessary to look at what the appellant's role was and what she actually did. His Honour said that the appellant located the drugs and then concealed them in a safe place. She did this in circumstances where she knew that the person she was going to return them to was a drug dealer. Grounds of appeal 25 The grounds of appeal are as follows: 1. The learned sentencing [j]udge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally. 2. The learned sentencing judge did not properly take into consideration the 'one transaction rule' in the consideration of whether the sentences on counts one and two were to be made wholly or partially cumulative. Appellant's submissions 26 The appellant contends that the total effective sentence of 5 years' imprisonment is disproportionate to the overall criminality, given the appellant's brief period of possession and that the reason the appellant retained the drugs was for the sole purpose of returning them to the owner. The appellant says that these facts reduce the level of her criminality and justify the imposition of a different aggregate sentence. 27 Further, the appellant contends that the sentencing judge erred in finding that personal deterrence was a relevant sentencing consideration, as the appellant only came into possession of the drugs after the woman who was living at the house was evicted. Although the appellant made admissions to being a methylamphetamine user, she had demonstrated insight into the need to distance herself from commercial illicit drug activity. The appellant also argues that she retained possession of the drugs out of fear of retribution and because disposing -- 7 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 8 of the drugs may have burdened her with a significant debt or further trouble. 28 The appellant notes the relatively early plea of guilty and the hardship that imprisonment would have on the appellant's father. 29 The appellant says that there are a limited number of cases that are truly comparable. The appellant refers to the following cases: Astone v The State of Western Australia;17 Dao v The State of Western Australia;18 Delovski v The Queen;19 and Fenton v The State of Western Australia.20 30 As to ground 2, the appellant accepts that the 'one transaction rule' is not a rule as such, but submits that the sentencing judge gave 'insufficient consideration' to whether the sentences on each count could have been served wholly or partially concurrently. The appellant suggests that consideration of concurrency was appropriate given that the offences occurred simultaneously and arose substantially out of the same facts. The merits 31 The principles applicable to a claim that the totality principle has been infringed are well known. Those principles were summarised in Kabambi v The State of Western Australia21 and do not need to be repeated. 32 The totality principle is concerned with substance, not form. It does not necessarily require reductions to individual sentences, or orders for concurrency, in every case where an offender commits multiple offences. The objective of the totality principle is to ensure that the total effective sentence is proportionate to the overall criminality of all of the offending. The principle assumes a process by which appropriate sentences for each of the individual offences are first determined. Those sentences should then only be reduced or made concurrent to the extent necessary to ensure that the total effective sentence is not disproportionate. 33 The major sentencing considerations for offences relating to dangerous drugs of addiction are general and personal deterrence. The 17 Astone v The State of Western Australia [2024] WASCA 18. 18 Dao v The State of Western Australia [2007] WASCA 237. 19 Delovski v The Queen [2002] WASCA 88. 20 Fenton v The State of Western Australia [2015] WASCA 255. 21 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. -- 8 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 9 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. That is because it can be presumed that the greater the quantity and purity, the greater the harm which may be done to the community. 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.22 34 The so called 'one transaction rule' is no more than a working principle. Courts are not required to impose concurrent sentences in respect of offences that are committed at the same time as part of the same course of offending.23 Of course, the fact that offences may occur as part of the same course of conduct may justify a reduction in one of the penalties, or an order for concurrency to reflect that there may be some overlap in the conduct, and to ensure that the total sentence is not disproportionate to the overall offending. Any suggestion that the one transaction rule has been breached can only be viewed as a claim that the first limb of the totality principle has been breached. Accordingly, ground 2 adds nothing to ground 1.24 35 In the present case, the maximum penalty for count 1 was life imprisonment.25 The maximum penalty for count 2 was 25 years' imprisonment.26 36 The seriousness of the offences is reflected in the fact that they involved significant quantities of two types of prohibited drugs, and that the appellant intended to return those drugs to a person who she knew to be a drug dealer. In doing this, she would facilitate the dispersal of those drugs into the broader community. The appellant moved the container in which the drugs were stored to her own bedroom in order to secure them. She believed that the drugs were of significant value. Although the exact period that the appellant possessed the drugs is not known, it was accepted on her behalf that it was not fleeting and that cases dealing with fleeting or momentary possession could be distinguished. 22 Gaskell v The State of Western Australia [2018] WASCA 8 [128] (Mazza & Beech JJA). 23 Ng v The State of Western Australia [2025] WASCA 121 [102]. 24 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24] (Steytler P, with Malcolm CJ agreeing). 25 MDA, s 34(1)(a). 26 MDA, s 34(1)(aa). -- 9 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 10 37 The appellant's personal circumstances were relevant but could not be accorded great weight, given the importance of general deterrence. Contrary to the appellant's submissions, personal deterrence was plainly a relevant consideration. The appellant had previously served a sentence of imprisonment for similar offending, and that sentence had not achieved the objective of deterring the appellant from engaging in this type of conduct. The appellant also acknowledged continuing personal use of prohibited drugs, so it could not be said that she had distanced herself from the drug trade. 38 There is no challenge to the individual sentences. Each of those sentences plainly fell within the appropriate range for offences of this nature. Some degree of accumulation was appropriate to reflect the fact that there were two quantities of two different types of drugs. The total sentence was required to reflect the fact that the total quantity of prohibited drugs was nearly 100 g. 39 Of the cases referred to by the appellant, two involved the refusal of leave to appeal on a totality ground (Astone and Dao). Since it was not reasonably arguable that the sentences in those cases were erroneous, they can provide no assistance as to the upper limits of any range. In any event, none of the cases are meaningfully comparable to that of the appellant. 40 Astone involved an offender who pleaded guilty to seven counts, including offers to supply methylamphetamine, possession of 111 g of methylamphetamine, and possession of 60.79 g of heroin. He was sentenced to a total sentence of 7 years 6 months' imprisonment. The individual sentences, which were not challenged as being manifestly excessive, were 4 years' imprisonment for the possession of the methylamphetamine and 3 years 3 months' imprisonment for the possession of heroin. 41 Dao involved an offender who pleaded guilty to offences of possessing 56.03 g of heroin with intent to sell or supply, and 119.2 g of methylamphetamine with intent to sell or supply. She was sentenced to 4 years' imprisonment on each count. Two years on the second count was made partly concurrent, resulting in a total effective sentence of 6 years' imprisonment. The offences were committed at the same time and in the course of the offender's drug dealing business. Miller JA said that the total sentence of 6 years' imprisonment was 'entirely within range',27 and that sentences for possession of quantities of 27 Dao [21]. -- 10 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 11 methylamphetamine of between 3 g and 65 g commonly attracted sentences of between 2 and 5 years.28 This appeal was decided prior to the increase in the maximum penalty for possession of 28 g or more of that drug. 42 Delovski involved an offender who pleaded guilty to an offence of possessing 524 g of heroin. He travelled to Western Australia from Melbourne and received the heroin, which he took to another location for the purpose of sale. He was said to be at the upper end of the commercial hierarchy. He was sentenced to 9 years' imprisonment.29 Whilst leave to appeal was granted, the appeal was dismissed. 43 Fenton involved an offender who pleaded guilty to one count of possessing 5.19 g of methylamphetamine. He purchased the drug intending to use some himself and supply some to his friends. He was sentenced to 10 months' immediate imprisonment. An appeal on the basis that the sentence should have been suspended was dismissed. 44 We have also had regard to the following cases: Cochrane v The State of Western Australia;30 The State of Western Australia v Stocker;31 Zadarnowski v The State of Western Australia;32 and Humes v The State of Western Australia.33 45 In Cochrane, the offender pleaded guilty to one count of possessing 47.13 g of methylamphetamine with intent to sell or supply. He was described as a courier who was to receive a small portion of the drugs as payment for his services. The offender pleaded guilty at the first reasonable opportunity and received a 25% discount. He had a prior criminal record and was of moderate risk of reoffending. An appeal against a sentence of 5 years 6 months' imprisonment was dismissed. 46 In Stocker, the offender was convicted of two counts of possessing methylamphetamine with intent to sell or supply (26.01 g and 28.13 g), and two counts of possessing unlawfully obtained property, namely cash. The offences occurred in the context of a drug dealing business. A State appeal was allowed, and the offender was resentenced to 3 years' imprisonment on the first drug count, and 3 years 6 months' 28 Dao [20]. 29 Delovski was decided in 2002 under the pre-transition sentencing provisions. 30 Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262. 31 The State of Western Australia v Stocker [2022] WASCA 178; (2022) 305 A Crim R 335. 32 Zadarnowski v The State of Western Australia [2025] WASCA 48. 33 Humes v The State of Western Australia [2023] WASCA 110. -- 11 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 12 imprisonment on the second drug count, cumulative. The sentences on the other counts were made concurrent. Accordingly, the total effective sentence following the appeal was 6 years 6 months' imprisonment. 47 In Zadarnowski, the offender was convicted after trial of one count of supplying 55.13 g of methylamphetamine, one count of supplying 25.3 g of MDMA, and one count of possessing unlawfully obtained property, namely cash. The offender was a drug user who was dealing in drugs to support his habit. Sentences of 6 years' imprisonment on the first count, 4 years' imprisonment concurrent on the second count, and 1 year's imprisonment cumulative on the third count, producing a total effective sentence of 7 years' imprisonment, were imposed. Leave to appeal against the length of the sentences on counts 1 and 2 and the total sentence was refused. The refusal of leave indicates that it was not reasonably arguable that these sentences were erroneous. 48 Other similar cases where leave was refused in respect of higher sentences for similar quantities of drugs include Stipanich v The State of Western Australia34 and Owen v The State of Western Australia.35 49 In Humes, the offender was convicted of one count of possession of 166.3 g of methylamphetamine, and one count of possession of unlawfully obtained property, namely cash. The offender pleaded guilty at the first reasonable opportunity and received a 25% discount. He was sentenced on the basis that he possessed the drugs momentarily and with the intention of returning them to the owner. On appeal, the offender was resentenced to 5 years' imprisonment. 50 The cases referred to do not support the contention that the total sentence of 5 years' imprisonment breached the totality principle. The sentence here was consistent with sentences imposed in other cases. The fact that the appellant did not have a commercial motivation does not assist her. Cases in which there was an element of commerciality have attracted higher sentences for similar quantities of drugs. The appellant's personal circumstances were not exceptional, and personal deterrence was an important factor. 51 It is not reasonably arguable that the total sentence was disproportionate to the overall offending. Leave to appeal should be refused and the appeal dismissed. 34 Stipanich v The State of Western Australia [2023] WASCA 118. 35 Owen v The State of Western Australia [2024] WASCA 28. -- 12 of 13 -- [2026] WASCA 73 JUDGMENT OF THE COURT Page 13 Orders 52 We would make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RD Associate to the Honourable Justice Hall 27 MAY 2026 -- 13 of 13 --