WOOD -v- WA POLICE [2026] WASC 359

[2026] WASC 359 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : WOOD -v- WA POLICE [2026] WASC 359 CORAM : MCGRATH J HEARD : 24 AUGUST 2026 DELIVERED : 24 AUGUST 2026 PUBLISHED : 26 AUGUST 2026 FILE NO/S : SJA 1069 of 2025 BETWEEN : GRAHAM JOHN WOOD Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE D SCADDAN File Number : PE 5058/2025 Catchwords: Criminal law - Misuse of Drugs Act - Possession of steroids - Appeal against sentence - Miscarriage of justice - Plea of guilty - Sentenced on incorrect facts - Turns on own facts -- 1 of 13 -- [2026] WASC 359 Page 2 Legislation: Criminal Appeals Act 2004 (WA) s 8, s 9(1), s 9(2), s 14(2), s 39(1), s 39(3), s 40(1)(e) Criminal Procedure Act 2004 (WA) s 129(3) Misuse of Drugs Act 1981 (WA) s 6(2) Sentencing Act 1995 (WA) s 6 Spent Convictions Act 1988 (WA) s 3(1), s 6(2), s 11(1), s 11(3), s 11(4), s 11(5) Spent Convictions Regulations 1992 (WA) reg 3 Result: Extension of time in which to appeal granted Leave to adduce additional evidence granted to appellant Leave to adduce additional evidence granted to respondent Leave to appeal granted Appeal dismissed The appellant to pay the respondent's costs Category: B Representation: Counsel: Appellant : In person Respondent : Ms A Jakupovic Solicitors: Appellant : In person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 Hall v The State of Western Australia [2018] WASCA 151 JAD v McRae [2022] WASC 220 -- 2 of 13 -- [2026] WASC 359 Page 3 Roberts v The State of Western Australia [2014] WASCA 239 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Wallam v Dent [2008] WASC 170 -- 3 of 13 -- [2026] WASC 359 MCGRATH J Page 4 MCGRATH J: Introduction 1 The appellant was convicted, on his own plea of guilty, of one charge of possessing a prohibited drug, namely anabolic steroids, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (charge PE 5058/2025). The learned Magistrate imposed a $600 fine and declined to order a spent conviction. 2 The appellant now appeals on one ground that there was a miscarriage of justice, or error of fact, by the learned Magistrate in that the appellant was sentenced on an incorrect factual basis because there was no evidence that the seven vials of anabolic steroids were full and that, in fact, the vials were not so, and thereby the sentence imposed was excessive. 3 For the following reasons, I have determined that the appeal must be dismissed. Extension of time 4 The appellant requires an extension of time in which to appeal. 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.1 In considering whether it is in the interests of justice to grant an extension of time, the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice, if any, to the respondent if an extension of time is granted.2 5 In support of the application for an extension of time in which to appeal, the appellant relies upon his affidavit affirmed on 12 September 2025. The appellant deposes that the delay was caused by family issues, being that he is a carer to his parents who live in Northam and further, he has been dealing with Family Court proceedings which has impacted his mental health. 6 The respondent does not oppose the extension of time in which to appeal, observing that the respondent will not suffer any particular 1 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [13] (McLure P, Pullin JA & Mazza J). 2 JAD v McRae [2022] WASC 220 [25]. -- 4 of 13 -- [2026] WASC 359 MCGRATH J Page 5 prejudice if an extension of time is granted. I grant the extension of time in which to appeal. Application to adduce additional evidence 7 Both the appellant and respondent seek to adduce additional evidence on the appeal that was not before the learned Magistrate at the time of the sentencing. The appeal court must decide an appeal on the evidence and material that were before the lower court.3 Notwithstanding this, the court has power to 'admit any other evidence' for the purpose of dealing with an appeal.4 The power to admit further evidence is discretionary and is not limited or confined by statute. 8 The general test for whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed.5 9 The court is not entitled to intervene on the basis of events which have occurred since the sentence was imposed. However, evidence of subsequent events may show facts relevant to the sentencing process which were in existence at the time of the sentence but were either not known to the sentencing judge or not properly appreciated at the time.6 10 The appellant seeks to adduce his affidavit affirmed 24 June 2026 producing eight photographs of the seven vials of steroids the subject of the appeal, taken on 16 January 2025. It was common ground at the hearing of the appeal that the photographs were taken by the investigating officer and were disclosed to the appellant, prior to sentencing, as part of the prosecution's obligation to do so. The appellant deposes that the photographs of the steroid vials 'shows the steroids in question were mostly empty, with a few vials containing less than 2 ml'.7 11 The respondent seeks to adduce the affidavit of Detective Senior Constable Plummer affirmed 31 July 2026. 12 Mr Plummer deposes that he executed a search warrant pursuant to the Misuse of Drugs Act with other officers at the appellant's home address on 16 January 2025. During the search of the premises, the police located seven vials of steroids in the bathroom cupboard under 3 Criminal Appeals Act 2004 (WA) s 39(1). 4 Criminal Appeals Act s 39(3), s 40(1)(e). 5 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28]. 6 Colwell v The State of Western Australia [29] – [30]. 7 Affidavit of appellant affirmed 24 June 2026 [2]. -- 5 of 13 -- [2026] WASC 359 MCGRATH J Page 6 the basin. The seven vials of steroids were removed from the cupboard and placed on the benchtop near the bathroom basin. Mr Plummer observed liquid in each of the seven vials of steroids but did not take note of how much liquid was in each of the vials, but deposes there was 'a varying degree of liquids in each vial' and that '[s]ome vials had only a small amount of liquid and others had more'.8 13 Mr Plummer deposes that he took seven photos of the seven vials of steroids in various combinations and another officer took eight photographs.9 Subsequently, the seven vials were placed in a security movement envelope.10 Mr Plummer produces 15 photographs comprising the seven photographs he took, and the further eight photographs taken by another police officer during the search. 14 The respondent does not oppose the appellant's application for leave to adduce the additional materials on appeal should leave to appeal be granted. I do propose to grant leave to appeal. During the hearing of the appeal, the appellant submitted that he did not oppose the respondent's further evidence being adduced. 15 Accordingly, I grant the respective applications for the appellant and respondent to adduce further evidence on the appeal. 16 During the hearing of the appeal, both the appellant and respondent stated that they did not seek to cross-examine the deponents. Magistrates Court hearing 17 On 14 July 2025, the appellant appeared in the Perth Magistrates Court for his trial in respect to charge PE 5058/2025. The appellant informed the learned Magistrate that he proposed to change his plea to guilty and did so.11 The prosecutor read the facts to the court in the following terms:12 There is history, your Honour. About 4.21 pm, 16 January 2025, officers of police executed a Misuse of Drugs Act search warrant at an address in Bayswater. They seized seven vials of anabolic steroids, which was testosterone, trenbolone, boldenone and trestolone. No comment interview. And request destruction, your Honour. 8 Affidavit of Mr Plummer affirmed 31 July 2026 [9]. 9 Affidavit of Mr Plummer affirmed 31 July 2026 [10] - [11]. 10 Affidavit of Mr Plummer affirmed 31 July 2026 [14]. 11 ts 2 (14/07/2025). 12 ts 2 (14/07/2025). -- 6 of 13 -- [2026] WASC 359 MCGRATH J Page 7 18 In mitigation, the appellant stated that he previously worked in the fitness industry and that working in that industry was 'not a great lifestyle' but that now he works in community services.13 The appellant stated that he was seeking a spent conviction because he was six years through a 10-year period since his last conviction and that the matter could be dealt with by way of a fine.14 19 The learned Magistrate imposed a $600 fine and declined to grant a spent conviction order, noting that the appellant has previous convictions for similar offences regarding other substances and there was no basis for the appellant to be relieved of the immediate effects of the conviction.15 Appeal grounds and relevant principles 20 The appellant relies upon one ground of appeal, being: The magistrate made an error due to information missing from the prosecution brief, which resulted in an excessive penalty. The sentence imposed was decided on the basis all vials of steroids in my possession were full and unused, when in fact they were all used and only traces of oil found in 3 vials, which were contaminated and unable to be used. 21 This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.16 An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.17 22 The court must not grant leave to appeal unless a ground has a reasonable prospect of success.18 A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.19 23 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.20 Section 14(2) of the Criminal Appeals Act provides that 13 ts 3 - 4 (14/07/2025). 14 ts 3 (14/07/2025). 15 ts 5 - 6 (14/07/2025). 16 Criminal Appeals Act s 9(1). 17 Criminal Appeals Act s 8. 18 Criminal Appeals Act s 9(2). 19 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA). 20 Criminal Appeals Act s 14. -- 7 of 13 -- [2026] WASC 359 MCGRATH J Page 8 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. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.21 24 The appellant submitted that he sought orders setting aside the fine and that a 'conditional release order' be imposed instead so that he would remain eligible to apply for a spent conviction in three years' time in respect of other charges, rather than the period being reset to 10 years.22 25 The respondent submits that the premise for the appellant's contention as outlined in his written submissions is misconceived.23 I accept that submission. 26 By virtue of s 6(2)(a) of the Spent Convictions Act 1988 (WA), an application for a spent conviction may not be made until the 'prescribed period' for the conviction has expired. The 'prescribed period' for a conviction is, relevantly, 10 years commencing from the day on which the conviction is incurred, plus any period of imprisonment imposed relevant to that conviction.24 27 The prescribed period is, in effect, reset (or recommences) when a person incurs a 'latest' conviction other than a 'conviction for which no punishment, or only minor punishment, was imposed'.25 28 For the purposes of the definition of minor punishment in s 3(1) of the Spent Convictions Act, the amount prescribed is currently $1,500.26 The imposition of a $600 fine constitutes 'minor punishment' within the meaning of s 11(4) of the Spent Convictions Act and would not reset the prescribed period. 29 During the hearing of the appeal, the appellant confirmed that his paramount concern was that the prescribed period would recommence. 21 Roberts v The State of Western Australia [2014] WASCA 239 [47]. 22 Appellant's written submissions [13]. 23 Respondent's written submissions [6]. 24 Spent Convictions Act s 11(1)(a) and (3). 25 Spent Convictions Act s 11(4), (5). 26 Spent Convictions Regulations 1982 (WA) reg 3. -- 8 of 13 -- [2026] WASC 359 MCGRATH J Page 9 Assessment of ground of appeal 30 The respondent submits that the ground of appeal is ambiguous.27 The appellant appears to contend that there was a miscarriage of justice, or error of fact, in that the learned Magistrate sentenced the appellant on an incorrect factual basis because the facts suggested that the seven vials of anabolic steroids were full and that the appellant does not agree with the statement of material facts by the prosecutor at the sentencing hearing.28 Alternatively, the learned Magistrate sentenced the appellant on an incorrect factual basis because there was no evidence in existence that the seven vials of anabolic steroids were full, and the learned Magistrate sentenced the appellant on the basis of seven full vials of anabolic steroids.29 The sentence was thereby excessive. 31 In circumstances where an offender pleads guilty, the prosecutor must state aloud to the court the material facts of the offence before the court imposes sentence.30 Where the accused has '… been served with one or more written statements of material facts, the facts must be those in the written statement that was last served'.31 On a plea of guilty, the facts read to the court are accepted as the essential elements that constitute the offence. 32 Any facts beyond accepting an element of the offence must be proved by evidence, or may be admitted formally or informally, which ordinarily is by the reading of the statement of facts which are not contradicted.32 The circumstances of the offending are of significance to the sentencing exercise which requires that any sentence imposed is commensurate with the seriousness of the offending.33 33 The public reading of the facts upon which an offender is to be sentenced provides an opportunity to the offender and his or her counsel to identify any facts in dispute that require determination by the sentencing judicial officer.34 27 Respondent's written submissions [11]. 28 Respondent's written submissions [12]. 29 Respondent's written submissions [13]. 30 Criminal Procedure Act 2004 (WA) s 129(3). 31 Criminal Procedure Act s 129(3). 32 GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 [30]. 33 Sentencing Act 1995 (WA) s 6. 34 Hall v The State of Western Australia [2018] WASCA 151 [13]. -- 9 of 13 -- [2026] WASC 359 MCGRATH J Page 10 34 In the present case, the learned Magistrate asked the appellant 'do you understand that if you're pleading guilty, you're pleading guilty to the facts?', to which the appellant responded, 'I sure do, your Honour'.35 35 The respondent submits there has been no miscarriage of justice for two reasons. 36 First, the learned Magistrate can only be taken to have sentenced the appellant on the basis of the statement of facts read from the bar table, being the possession of seven vials of anabolic steroids of an unspecified quantity. The facts did not state or by necessary implication contend that the appellant was to be sentenced on the basis that the vials were full. Rather, the appellant pleaded guilty to the charge of possessing an unspecified quantity of steroids. 37 Second, and in any event, the appellant pleaded guilty and accepted the facts as read to the court by the prosecutor and did not contradict, nor seek to contradict, the facts.36 38 If in exercising the sentencing discretion, a judicial officer has mistaken the facts, the determination should be reviewed, and the appellate court may exercise its own discretion in substitution for that of the primary judicial officer.37 39 The respondent submits that the facts read out by the prosecutor were correct and that the appellant was sentenced on the basis of those facts. 40 The questions that arise are first, whether the amount of steroids seized by the police is known or ascertainable, and second, whether the appellant was sentenced on the basis that the vials were full. 41 The prosecution notice provides a record of the court proceedings, with entries made by the court concerning the outcome and any orders made. On 7 February 2025, the appellant appeared in the Magistrates Court before Magistrate Young. The record of proceedings entered on the prosecution notice states that the appellant 'concedes substance' and therefore 'no need for analysis'.38 35 ts 2 (14/07/2025). 36 ts 2 (14/07/2025). 37 Wallam v Dent [2008] WASC 170. 38 Prosecution Notice - Charge PE 5058/2025. -- 10 of 13 -- [2026] WASC 359 MCGRATH J Page 11 42 I turn to the evidence produced by the appellant and respondent. I have outlined the evidence. In short, Mr Plummer deposes that on 16 January 2025 he observed that the seven vials had liquid in them but to varying degrees and the vials would not have been seized otherwise.39 43 The appellant in his affidavit contends that the 'steroids in question were mostly empty, with a few vials containing less than 2 ml'.40 The appellant produces eight photographs. The eight photographs comprise part of the 15 photographs produced by Mr Plummer. 44 I have examined the 15 photographs produced by Mr Plummer and the eight photographs produced by the appellant. I am unable to discern that any of the vials are empty but accept that each of the vials were not full. The most that may be stated regarding quantity is that there is some amount, although very small in each of the seven vials. In assessing the photographic evidence, I have taken into account the affidavit of Mr Plummer concerning the seizure of the vials. 45 Counsel for the respondent submitted at the appeal hearing that the respondent accepts that WA Police did not seize seven full vials of anabolic steroids. 46 The facts as read to the court by the prosecutor stated, 'seized seven vials of anabolic steroids, which was testosterone, trenbolone, boldenone and trestolone'.41 The appellant accepted the facts as read by the prosecutor. 47 The word 'vial' is not a term of measurement. A vial is '[a] vessel of a small or moderate size used for holding liquids'.42 48 During the sentencing hearing, the learned Magistrate did not inquire, nor did the appellant or the police prosecutor make submissions, regarding the quantity of the steroids in any vials or the significance of the particular respective steroids. 49 Upon a fair reading of the sentencing transcript, it is not possible to find that the learned Magistrate interpreted the statement of material facts as read in open court as suggesting or confirming that the seven 39 Affidavit of Mr Plummer affirmed 31 July 2026 [15]. 40 Affidavit of appellant sworn 3 June 2026 [2]. 41 ts 2 (14/07/2025). 42 Oxford English Dictionary, 'Vial (n.)' (Web Page) https://www.oed.com/dictionary/vial_n?tab=meaning_and_use#15511168 -- 11 of 13 -- [2026] WASC 359 MCGRATH J Page 12 vials were full of the substance. To the contrary, the sentencing remarks do not mention the quantity or volume of anabolic steroids. 50 Accordingly, I am satisfied that the learned Magistrate sentenced the appellant on the basis of an unknown quantity of steroids as opposed to seven full vials. 51 The appellant did not seek to assert at the sentencing hearing that the type of substance in the vials was anything other than what was stated by the prosecutor. Further, the appellant on 25 February 2025 before a different Magistrate accepted the nature of the substances. 52 Further, at the sentencing hearing the appellant did not contend that the vials were not full, nor did he contend the measurement of the total amount of steroids in his possession. The appellant had received full disclosure of the prosecution brief for the trial that was anticipated to be held on 15 July 2026. Having received the photographic evidence and a written copy of the material facts, the appellant understood the factual basis upon which he was pleading guilty. 53 The prosecutor did not assert that the vials were full, but rather that each of the seven vials held one of the four substances. The learned Magistrate in her sentencing remarks did not state that the vials were full nor did the appellant or prosecution seek to contend that a specific amount was found in the appellant's possession. 54 There is no merit in the ground of appeal and therefore, whilst I grant leave to appeal, the appeal must be dismissed. Conclusion 55 Accordingly, I grant an extension of time in which to appeal, grant leave to both the appellant and respondent to adduce further evidence on the appeal, grant leave to appeal but dismiss the appeal. The appellant must pay the respondent's costs. -- 12 of 13 -- [2026] WASC 359 MCGRATH J Page 13 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JK Associate to the Hon Justice McGrath 26 AUGUST 2026 -- 13 of 13 --