Abraham v The State of Western Australia - [2014] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ABRAHAM -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 151

CORAM: McLURE P
BUSS JA

HEARD: 3 JUNE 2014

DELIVERED : 21 AUGUST 2014

FILE NO/S: CACR 53 of 2014

BETWEEN: GRAHAM MERVYN ABRAHAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 1531 of 2013

Catchwords:

Criminal Law - Appeal against sentence - Appellant convicted on his plea of guilty of aggravated burglary - Sentence of 12 months' immediate imprisonment - Proper construction of s 9AA of the Sentencing Act 1995 (WA) - Whether the sentencing judge made an express error in taking into account the strength of the State's case in determining the discount for the appellant's plea

Criminal law - Application for leave to appeal against sentence - Ground of appeal alleging an express error by the sentencing judge - Whether the Court of Appeal retains a discretion to refuse a grant of leave if the court is satisfied that, even if the express error is made out, it is not reasonably arguable that a different sentence should have been imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 27, s 31(4)(a)
Criminal Code (WA), s 401(2)(a)
Sentencing Act 1995 (WA), s 7(2)(a), s 8(2) (repealed), s 9AA
Young Offenders Act 1994 (WA), s 189(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P J Callaghan SC & Mr D D Brunello
Respondent: No appearance

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Ashworth v The State of Western Australia [2006] WASCA 36
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Boddington v The State of Western Australia [2013] WASCA 179
Brady v The State of Western Australia [2013] WASCA 253
Butler v The State of Western Australia [2012] WASCA 249
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Conley v The State of Western Australia [2013] WASCA 95
Danial v The Queen [2008] NSWCCA 15
Dolan v The Queen [2010] NSWCCA 10
Drake v The State of Western Australia [2006] WASCA 209
Forkin v The State of Western Australia [2013] WASCA 51
Fullgrabe v The State of Western Australia [2013] WASCA 130
Law v The State of Western Australia [2009] WASCA 193
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Nguyen v The State of Western Australia [2007] WASCA 114
Nolan v The State of Western Australia [2013] WASCA 235
Pennetta v The State of Western Australia [2013] WASCA 234
Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149
R v Mahony; R v Shenfield [2012] QCA 366
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Ridley v The State of Western Australia [2013] WASCA 45
Sartori v The State of Western Australia [2014] WASCA 98
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Spry v The State of Western Australia [2013] WASCA 68
Whitby v The State of Western Australia [2014] WASCA 99
Wragg v The State of Western Australia [2013] WASCA 198

McLURE P: I agree with Buss JA.
BUSS JA: This is an application for leave to appeal against sentence.
On 7 March 2014, the appellant was convicted on his plea of guilty in the District Court of one count in an indictment.
The count alleged that on 9 December 2013, at Scarborough, the appellant, while in the place of the complainant without her consent, committed the offence of stealing, and that:
(a)immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place;
(b)the appellant was in company with another; and
(c)the place was ordinarily used for human habitation,
contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
On 7 March 2014, O'Neal DCJ sentenced the appellant to 12 months' immediate imprisonment. The sentence was backdated to 9 December 2013 when the appellant was taken into custody for the offence. A parole eligibility order was made.
The appellant alleges that the primary judge made an express error by taking into account the strength of the State's case in determining the discount to be given under s 9AA of the Sentencing Act 1995 (WA) for the appellant's plea of guilty.

The facts and circumstances of the offending

On 9 December 2013, at about 7.45 am, the appellant and a male member of his family went to residential premises in Scarborough.
The appellant and his co‑offender decided to break into the dwelling. The appellant stood on the verge while his co‑offender knocked on the front door to ascertain whether anyone was at home.
The complainant, a woman aged 22, was asleep in her bed. She was awoken by the co‑offender's knocking. The complainant looked through a window and saw the co‑offender. She fled and contacted the police.

Meanwhile, the co‑offender kicked in the front door of the dwelling. He and the appellant entered the premises. Each searched different rooms for valuable items to steal.
The appellant took the complainant's wallet, which was on a bench in the kitchen, and a backpack, which was in one of the bedrooms. He also located and took a laptop computer and a mobile telephone. The total value of the property was about $2,000.
However, the appellant was disturbed by the police while he was rummaging through drawers in a bedroom. He was arrested and taken to the Scarborough police station where he participated in a video‑recorded interview. The appellant admitted his involvement in the offence but refused to identify his co‑offender.
The items stolen by the appellant were recovered when he was arrested.

The timing of the appellant's plea of guilty

The appellant pleaded guilty on 10 December 2013 in the Magistrates Court. At the sentencing hearing defence counsel accepted, and the prosecutor conceded (properly, in my opinion), that the plea was entered at the 'first reasonable opportunity' within s 9AA(4)(b) of the Sentencing Act.

The primary judge's sentencing remarks

The primary judge referred in his sentencing remarks to the appellant's plea of guilty:
In this State, a plea of guilty can attract a reduction of sentence of up to 25 per cent by reason of the benefits to the State, and any victim or witness to the offence by reason of the plea, and for that reason alone. The earlier in the proceedings that the plea comes, the greater this reduction may be.
Now, here of course you were caught red handed, in the course of ransacking the house. That's how the police found you. Your conviction was never in doubt. Nonetheless, it's an early plea, and the victim has been saved inconvenience.
The State has been saved the difficulty of preparing for a trial. Although as I say, the outcome of that trial would never really have been in doubt. In my view, though, in all the circumstances, it's appropriate to reduce the head sentence that would otherwise be imposed by 20 per cent (ts 19).

The proposed ground of appeal

The appellant relies on one ground of appeal, which reads:
The learned sentencing judge, having regard to the appellant's plea of guilty, erred in law in concluding that it was appropriate to reduce the head sentence that would otherwise be imposed by 20 per cent under s 9AA of the Sentencing Act 1995 (WA) ('the Act'). In so doing, his Honour improperly took into account the strength of the State case in determining the appropriate reduction of that head sentence.

Section 27 of the Criminal Appeals Act 2004 (WA)

Section 27(1) of the Criminal Appeals Act 2004 (WA) provides that the leave of this court is required for each ground of appeal in an appeal under pt 3 of the Act. By s 27(2), after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. By s 27(3), unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.

The repeal of s 8(2) and the introduction of s 9AA of the Sentencing Act

Section 8(2) of the Sentencing Act was repealed and s 9AA of that Act was introduced by the Sentencing Amendment Act 2012 (WA).
Section 8(2) provided:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
Section 9AA provides:
(1)In this section ‑
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

The appellant's submissions

Senior counsel for the appellant, in his written submissions, asserted:
(a)The strength of the State's case against an offender has 'no part to play in the section 9AA process'.
(b)The utilitarian objectives of s 9AA will be 'defeated quickly if the State case has to be assessed during the section 9AA process'. The strength of the State's case will always be debatable. It is 'immeasurable, at least with any precision' because 'it will only begin to be possible to discuss the concept meaningfully once a full brief of evidence is assembled'.
(c)A State case 'is only ever as strong as the defence available to meet it'. For many possible reasons, a plea of guilty might be entered in circumstances where the offender has decided to waive an available defence. It is in the interests of the State, and of any victim of or witness to an offence, for an available defence to be waived at the earliest possible opportunity and, if that occurs, 'the potential effect of the defence is completely irrelevant to the utilitarian effect of the plea'. If, however, the strength of the State's case is relevant at this point, defences will still have to be explored and measured, and their likely effect assessed, for the purposes of determining the discount under s 9AA.
(d)The strength of the State's case may have relevance to some aspects of the sentencing process, for example, those aspects that require an assessment of the offender's remorse, but 'there is no place for it in the section 9AA process'.
Senior counsel argued that, to the extent the decision of this court in Beins v The State of Western Australia [No 2] [2014] WASCA 54 holds that the strength of the State's case can be taken into account in determining the discount to be given to an offender under s 9AA, it is wrong and should be overruled.
At the hearing of the application senior counsel for the appellant submitted that if an offender enters a plea of guilty at the first reasonable opportunity the sentencing judge must allow a discount of 25% under s 9AA (appeal ts 6). That is, if an offender pleads guilty at the first reasonable opportunity the sentencing judge is not entitled, in any circumstances, to reduce the maximum available discount of 25% (appeal ts 6).
At the sentencing hearing I raised with senior counsel whether, in any event, the court should refuse leave to appeal on the basis that, in all the circumstances, the sentence of 12 months' immediate imprisonment imposed on the appellant was lenient and the appellant has no reasonable prospect of persuading the court that a different sentence should have been imposed (appeal ts 6). See s 31(4)(a) of the Criminal Appeals Act. Senior counsel responded:
Well, if the court was of that view then we would be struggling. You have seen our argument. We have … confined the argument to the one area and we have argued for no result other than which was the functional effect of that error. So without explicitly saying we give in, I think that answers your question (appeal ts 6 - 7).

The decision in Beins [No 2]

In Beins [No 2], McLure P (Mazza JA agreeing) held that the strength of the State's case can be taken into account 'under the rubric of "the benefits to the State" in s 9AA(2)' of the Sentencing Act [57]. Her Honour's reasoning was, relevantly, as follows:
As explained by the High Court in Cameron v The Queen (2002) 209 CLR 339, under the former sentencing regime a distinction had to be made between the objective and subjective considerations relating to a plea of guilty. In broad terms the objective considerations are the saving of time and expense of those involved in the administration of criminal justice including police, prosecuting authorities, witnesses, jurors and the courts. The objective considerations are often referred to as the utilitarian value or benefit of a plea of guilty. The subjective considerations go to personal issues of remorse, acceptance of responsibility and willingness to facilitate the course of justice. The utilitarian benefits of a plea of guilty were not directly relevant to the discount for a plea of guilty under Cameron. Section 9AA reversed that position.
…
It is of benefit to the State to secure the conviction of people who offend against the criminal law. The strength of the State case is directly relevant to the prospect of securing a conviction. The stronger the case, the greater the prospect of securing a conviction absent a plea of guilty. The strength of the State case also has the potential to impact on the time and expense required by the State in the preparation and conduct of its case at trial. As a general rule, the stronger the State case the smaller the benefit to the State in the extent of the savings [55], [58].
McLure P said her conclusion on this point did not alter the fact that the strength of the State's case is also relevant to subjective considerations including remorse and a willingness to facilitate the administration of justice [59].
Pullin JA dissented in Beins [No 2] in relation to s 9AA.
After referring to the decision of the High Court in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 and the text of s 9AA, his Honour said:
The utilitarian value of a plea of guilty is now the relevant consideration. The two stated matters, namely the benefits to the State and the benefits to any victim or witness to the offence, 'exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty' and if so, 'the extent of the discount' [87].
After noting that the parties had referred to the decisions in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149 and R v Mahony; R v Shenfield [2012] QCA 366, Pullin JA observed:
A reference was first made to the New South Wales Court of Appeal decision in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The New South Wales court said that the strength of the Crown case was an irrelevant factor in determining the utilitarian value of a guilty plea [136] - [137]. In Victoria, in Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149, the Court of Appeal stated that the strength of the Crown case was irrelevant to the discount to be allowed for the utilitarian benefit of a guilty plea because it did not bear upon the objective benefits of the plea [36]. However, in Queensland, in R v Mahony; R v Shenfield [2012] QCA 366, the Court of Appeal held that the strength of the prosecution case was not 'wholly irrelevant' to the utilitarian of an early plea of guilty [56]. In none of these cases in New South Wales, Victoria or Queensland, was there legislation the equivalent of s 9AA of the Sentencing Act [90].
His Honour concluded that there was 'good reason for allowing a discount only for utilitarian reasons':
If accused persons understand that a discount for a plea of guilty will not be reduced just because the sentencing judge thinks that the case against them was 'strong', then it will lead to a greater inducement to plead guilty and thereby produce benefits to the State and benefits to the victim. It also brings Western Australia into line with the New South Wales and Victorian approach [94].

The New South Wales, Victoria and Queensland decisions

In R v Thomson; R v Houlton, the Court of Criminal Appeal of New South Wales considered s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the course of promulgating a guideline judgment with respect to the discount for a plea of guilty. Section 22(1) provided:
In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a)the fact that the offender has pleaded guilty; and
(b)when the offender pleaded guilty or indicated an intention to plead guilty;
and may accordingly impose a lesser penalty than it would otherwise have imposed.
Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) held that the question of the strength of the prosecution case is linked only to the issue of contrition or remorse [137]. A 'recognition of the inevitable' may qualify the extent of genuine contrition or remorse, but it does not qualify the utilitarian value of a plea [137]. So, on the application of s 22(1), the strength of the prosecution case does not have any bearing upon the weight to be given to that aspect of the discount for a plea of guilty which is attributable to purely utilitarian considerations. See also Danial v The Queen [2008] NSWCCA 15; Dolan v The Queen [2010] NSWCCA 10.
In Phillips, the Court of Appeal of Victoria considered whether the strength of the prosecution case was relevant to the discount to be allowed to an offender for a plea of guilty. The relevant statutory provisions were s 5(2)(e) and s 6AAA of the Sentencing Act 1991 (Vic). By s 5(2)(e), in sentencing an offender a court must have regard to 'whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so'. By s 6AAA(1), relevantly, if, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence, the court must state the sentence and the non‑parole period, if any, that it would have imposed but for the plea of guilty.
Redlich JA and Curtain AJA (Maxwell P agreeing) held:
(a)at common law there has been 'a very broad and long‑standing acceptance that a sufficient and necessary rationale for the public interest in providing a discount for a plea of guilty is its utilitarian benefit and … there is no requirement that there be present any of the subjective criteria before the discount is allowed' [48];
(b)the underlying purpose of s 5(2)(e) and s 6AAA is the encouragement of offenders to plead guilty [52];
(c)even where the prosecution case is strong and a plea of guilty may be thought to be inevitable, 'it will, save in rare and quite exceptional cases, be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and resources have been released to other duties'; a plea of guilty 'will always have facilitated the course of justice and have its utilitarian value, irrespective of the offender's reason for so pleading'; and the strength of the prosecution case 'is thus irrelevant to the discount to be allowed for the utilitarian benefit of the plea because it does not affect the objective benefits of the plea' [55];
(d)a 'recognition of the inevitable' may qualify 'the extent of genuine contrition, if conditions exist which enable such reasoning, but it does not qualify the utilitarian value of a plea' [61];
(e)'the inevitability of conviction or an assessment of the likelihood of the offender having gone to trial' can never be a relevant consideration in determining the utilitarian benefit of a plea [63];
(f)the policy which underlies the common law and relevant provisions of the Sentencing Act 'is irreconcilable with the suggestion that the sentencing court should embark upon a problematic and speculative evaluation of whether there was any real prospect that there would have been a trial or what matters might have been conceded or put in issue had there been a trial' [63];
(g)although the strength of the prosecution case cannot affect the discount for the utilitarian benefits of a plea, the length and complexity of the potential trial may do so [64];
(h)the strength of the prosecution case will only be relevant to 'the existence of the subjective criteria and only where the state of the evidence permits the inference that there is only limited or no remorse or willingness to facilitate the course of justice' [64];
(i)an exceptional case arises where 'the gravity or aggravating features of the offending conduct are of such an order that even allowing [for] the mitigatory effect of the plea, the maximum sentence remains appropriate … because the offender's criminality so outweighs any circumstances of mitigation that are present' [67]; and
(j)the strength of the prosecution case may cast doubt on 'the extent of an offender's remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice and so result in a lesser discount than one would otherwise allow', but '[t]he state of the evidence on the plea must be such as to permit a process of inferential reasoning that the subjective criteria are only present to a limited extent' [70] ‑ [71].

In Mahony; Shenfield, the Court of Appeal of Queensland considered whether a sentencing judge had erred in refusing to reduce sentences of life imprisonment on account of the offenders' pleas of guilty. The relevant statutory provision was s 13(1) of the Penalties and Sentences Act 1992 (Qld), which provided that, in imposing a sentence on an offender who has pleaded guilty to an offence, a court must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty.
The sentencing judge in Mahony; Shenfield declined to reduce the life sentences on account of the guilty pleas. He said that 'had the matter been tried, there would have been overwhelming evidence against the applicants and … the "best thing" going for them was what the complainant and her family had been spared' [53]. His Honour concluded:
But it is a factor which, in my view, is completely outweighed by the gravity of the offences you committed against her. What you did to this girl was so bad that neither of you deserves to have your sentences reduced on account of having pleaded guilty [54].
On appeal, counsel for one of the offenders criticised the sentencing judge's approach by submitting that 'the strength of the prosecution case is irrelevant to the question whether there ought to be a reduction in penalty to take … account of the utilitarian value of a plea of guilty' [55]. Gotterson JA (Muir JA and Applegarth J agreeing) held that the criticism was not valid. His Honour said:
The extent of the utilitarian value of a plea of guilty in a given case can be gauged by having regard to the extent of the savings of court and judicial time, of costs of preparation of the prosecution case and of provision of legal aid that has occurred on account of the plea. For a case such as this one where there was not only the complainant’s timely complaint but also medical evidence of her injuries and photographic and film evidence of their infliction by the applicants, the savings can expected to have been less than what they might reasonably be expected to be in a different case, for example, a complicated circumstantial one.
I therefore do not regard the strength of the prosecution case as wholly irrelevant to the utilitarian value of an early plea. There are circumstances where, as here, it can have some relevance [55] ‑ [56].

The merit of the proposed ground of appeal

In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, Gleeson CJ, Gummow, Hayne and Callinan JJ said a plea of guilty is ordinarily to be taken into account in mitigation for two reasons [22]. First, the plea is usually evidence of some contrition or remorse on the offender's part. Secondly, the community is spared the expense of a contested trial. The extent of the mitigation afforded by the plea varies depending on the circumstances of the case.
Prior to the introduction of s 9AA of the Sentencing Act, the rationale in this State for reducing, on account of a plea of guilty, the sentence that would otherwise have been imposed on an offender, was explained by the High Court in Cameron [17] ‑ [22] (Gaudron, Gummow & Callinan JJ) and by this court in Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [29] ‑ [38] (Steytler P, Wheeler, McLure & Buss JJA).
In Cameron, the High Court allowed an appeal against sentence by an offender because the sentencing judge had not properly considered the mitigating circumstances of the offender's plea of guilty. The relevant statutory provisions included s 7(2)(a) and s 8(2) (now repealed) of the Sentencing Act.At all material times, s 7(2)(a) has provided that an offence is not aggravated by the fact that the offender pleaded not guilty to it. I have already set out the text of s 8(2).
In Cameron, Gaudron, Gummow and Callinan JJ referred to the observations in Siganto which I have summarised at [38] above. Their Honours then said:
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
…
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing [11], [14].
Later, Gaudron, Gummow and Callinan JJ explained that s 8(2) should be reconciled with s 7(2)(a) as follows:
… s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but … whether it was possible to enter a plea at an earlier time [19].
As McLure P (Mazza JA agreeing) noted in Forkin v The State of Western Australia [2013] WASCA 51 [20], the introduction of s 9AA into the Sentencing Act, and the accompanying repeal of s 8(2) of that Act, involved a very significant departure from the previous legislative scheme, as explained by Gaudron, Gummow and Callinan JJ in Cameron [17] ‑ [22].
It is readily apparent that the text of s 9AA is materially different from the text of the statutory provisions applicable in Thompson; Houlton, Phillips and Mahony; Shenfield and the common law. Section 9AA refers to 'the benefits to the State'. The decisions in Thompson; Houlton, Phillips and Mahony; Shenfield were not concerned with the proper construction of the phrase 'the benefits to the State' or any analogous statutory expression.
Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.
The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).
Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).
The apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA is readily discernible from the text of the provisions. It was:
(a)to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;
(b)to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;
(c)to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and
(d)to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.
Section 9AA(2) exhaustively states the factors or criteria which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins [No 2] [54].
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea' enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA.
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified.
I accept that, in the present case, the primary judge, in allowing a discount of 20% under s 9AA, made a reduction from the maximum available discount of 25% to reflect the strength of prosecution case against the appellant.
The merit of the proposed ground of appeal depends on the proper construction of the phrase 'the benefits to the State … resulting from the plea' in the context of s 9AA and the Act as a whole.
In my opinion, the 'benefits to the State … resulting from a plea of guilty', for the purposes of s 9AA, are those benefits which the State directly or indirectly receives or derives as a consequence of the offender entering a guilty plea. The term 'the State' in s 9AA has a broad connotation. Although the nature and extent of any benefits depend on the facts and circumstances of each particular case, they would ordinarily include:
(a)securing the conviction of a person who has committed a criminal offence;
(b)the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c)if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d)avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e)the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
These matters are not, of course, an exhaustive list of the 'benefits to the State … resulting from the plea' within s 9AA.
In my opinion, the strength of the prosecution case is a relevant factor in considering the extent of any discount to be given under s 9AA for a guilty plea.
As McLure P pointed out in Beins [No 2], the strength of the State case is directly relevant to the prospect of securing a conviction [58]. In general, the stronger the prosecution case, the higher the prospect of a judgment of conviction absent a guilty plea. Conversely, in general, the weaker the prosecution case, the lower the prospect of a judgment of conviction absent a guilty plea. Ordinarily, as a matter of fact, the strength of the prosecution case will be directly relevant to the extent of the benefits received or derived by the State as a consequence of the offender entering a guilty plea.
A strong prosecution case does not, of course, necessarily involve a short or simple trial. For example, the State may have a powerful circumstantial case against an accused but a trial of its case may be long and complex. There is no necessary correlation between the strength of the prosecution case and the length of a trial of its case. Whether there is or not depends on the nature and character of the particular case.
Where the strength of the prosecution case is in dispute at a sentencing hearing it will be necessary for the sentencing judge to make a finding on the issue by reference to the evidence and other information tendered by the State and the offender. The State would ordinarily tender the prosecution brief. As to the general principles governing the establishment of a mitigating circumstance at a sentencing hearing following a guilty plea, see Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34] (Buss JA, McLure & Pullin JJA agreeing).
In the present case, the appellant's submissions fail to focus on the statutory text; in particular, the proper construction of the phrase 'the benefits to the State … resulting from the plea' in the context of s 9AA and the Sentencing Act as a whole. The decisions in Thomson; Houlton, Phillips and Mahony; Shenfield are distinguishable on the basis set out at [44] above. The submission on behalf of the appellant to the effect that the apparent purpose or object underlying the introduction of s 9AA will be 'defeated quickly if the State case has to be assessed during the section 9AA process' is flawed. It is not evident that sentencing judges in this State have encountered any difficulty in assessing the strength of the prosecution case for the purposes of s 9AA. As a practical matter, any dispute between the prosecution and the defence, in a sentencing context, as to the strength of the prosecution case has been, and is likely to be, unusual. In any event, an assessment of the strength of the prosecution case has always been, and continues to be, a factor of potential relevance in considering the extent of any discount for mitigating features that are subjective to an offender; for example, the existence and degree of any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice.
Senior counsel for the appellant's submission that if an offender pleads guilty at the first reasonable opportunity the sentencing judge must allow a discount of 25% under s 9AA is misconceived. The nature, character and extent of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', within s 9AA(2), may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity. The sentencing judge retains a discretion in deciding upon the discount to be given in each case.
The discount available under s 9AA combined with the discount available for subjective factors or criteria such as genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice constitute, without doubt, a powerful incentive for an offender to plead guilty.
The proposed ground of appeal is without merit. It has no reasonable prospect of succeeding.

In any event, it is not reasonably arguable that a different sentence should have been imposed

The maximum penalty for the offence of aggravated burglary of a dwelling, contrary to s 401(2)(a) of the Code, is 20 years' imprisonment.
The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for these offences were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Butler v The State of Western Australia [2012] WASCA 249; Ridley v The State of Western Australia [2013] WASCA 45; Spry v The State of Western Australia [2013] WASCA 68; Conley v The State of Western Australia [2013] WASCA 95; Fullgrabe v The State of Western Australia [2013] WASCA 130; Boddington v The State of Western Australia [2013] WASCA 179; Wragg v The State of Western Australia [2013] WASCA 198; Pennetta v The State of Western Australia [2013] WASCA 234; Nolan v The State of Western Australia [2013] WASCA 235; Brady v The State of Western Australia [2013] WASCA 253; Sartori v The State of Western Australia [2014] WASCA 98; Whitby v The State of Western Australia [2014] WASCA 99; and the cases cited in those decisions.
Burglaries and aggravated burglaries can be and are, of course, committed in a wide range of circumstances. The sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of any victim), any aggravating factors and any mitigating factors.
As I have mentioned, s 31(4)(a) of the Criminal Appeals Act provides that this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
The appellant was born on 11 June 1994. He was aged 19 at the time of the offence and when sentenced.
The appellant finished school when he was 15. He has poor literacy and numeracy skills. He has no work experience of any note. When he left school the appellant commenced using cannabis. A year later he started using methylamphetamine.
The primary judge found that the appellant and his co‑offender caused a significant amount of damage when they broke into and ransacked the complainant's home (ts 16, 19).
The complainant fled in terror when she saw the co‑offender at her front door.
The appellant was not of good character. He had a prior criminal record.
When the offending occurred the appellant was subject to a community based order imposed on 29 October 2013, for a term of 9 months, in the Magistrates Court. The order was imposed in connection with the offences of stealing a motor vehicle and breach of bail. The aggravated burglary offence in question constituted a breach of the community based order. In addition to the offences of stealing a motor vehicle and breach of bail, the appellant was convicted on 8 November 2013 in the Magistrates Court and fined for possessing drug paraphernalia in or on which there was a prohibited drug or plant.
When he was sentenced by the primary judge on 7 March 2014, the appellant had convictions as a juvenile that had not been expunged under s 189(2) of the Young Offenders Act 1994 (WA). In particular, on 10 February 2012 the appellant was convicted in the Children's Court of two counts of aggravated burglary and committing an offence in a dwelling, contrary to s 401(2)(a) of the Code, and stealing a motor vehicle and driving it recklessly, contrary to s 378(2)(a) of the Code. These offences were committed on 10 January 2012. He was sentenced to terms of detention.
Although the appellant's previous convictions, and the fact the previous sentences had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, those matters demonstrated that the current offence was not an aberration by a person who was otherwise of good character.
Appropriate punishment and personal and general deterrence were important sentencing considerations.
It must be acknowledged that there were some significant mitigating features. The appellant was youthful at the time of the offending and when sentenced. All of the property stolen from the complainant was recovered and returned to her. He pleaded guilty at the first reasonable opportunity. The primary judge found that he was, to some extent, remorseful upon learning the age and sex of the complainant (ts 20).
In my opinion, the sentence of 12 months' immediate imprisonment was well within the range open to the primary judge on a sound exercise of his discretion. It was a reasonably lenient sentence.
Even if (contrary to my opinion) there is any merit in the proposed ground of appeal, I am satisfied it is not reasonably arguable that a different sentence should have been imposed on the appellant.

Section 27(2) of the Criminal Appeals Act embodies a negative proposition, namely this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. Neither s 27 nor any other provision of the Act requires this court to grant leave to appeal on a ground of appeal in an appeal against sentence which, as in the present case, alleges an express error by the sentencing judge, if this court is satisfied the ground has a reasonable prospect of succeeding. The court retains a discretion to refuse a grant of leave if the court is satisfied that, even if the express error is made out, it is not reasonably arguable that a different sentence should have been imposed.

Conclusion

Leave to appeal should be refused. The appeal must therefore be dismissed.