Charles v The State of Western Australia
[2021] WASCA 114
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHARLES -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 114
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 23 JUNE 2021
DELIVERED : 23 JUNE 2021
PUBLISHED : 30 JUNE 2021
FILE NO/S: CACR 87 of 2020
BETWEEN: BRYIAH LEIGH NAOMI CHARLES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 763 of 2019
Catchwords:
Criminal law - Sentencing - Appeal against sentence for attempting to pervert the course of justice - Whether sentencing judge made a material factual error in finding that the offender pleaded guilty 'late in the day' when the plea was actually entered at the first reasonable opportunity - Whether a different sentence should have been imposed - Relevant considerations when sentencing an offender for an offence of attempting to pervert the course of justice
Legislation:
Criminal Code (WA), s 143
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | F P Merenda |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Lam v Beesley (1992) 7 WAR 88
LJH v The State of Western Australia [2016] WASCA 155
Minister for Immigration v AAM17 [2021] HCA 6; (2021) 95 ALJR 292
NI v The State of Western Australia [2020] WASCA 78
R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378
Ranford v The State of Western Australia (No 2) [2006] WASCA 243; (2006) 166 A Crim R 451
Santos v The State of Western Australia [2018] WASCA 164
Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337
Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Winmar v The State of Western Australia [2018] WASCA 155
REASONS OF THE COURT:
At the conclusion of the hearing of this appeal, the court made the following orders, for reasons to be published later:
(1)The appeal is allowed.
(2)The appellant's sentence of 2 years 6 months' immediate imprisonment for the sole count on District Court Indictment 763 of 2019 is set aside, and a sentence of 22 months' immediate imprisonment is substituted.
(3)The substituted sentence is taken to have commenced on 5 June 2020.
(4)The appellant is eligible for parole.
These are our reasons for making those orders.
Summary
On 28 November 2019, the appellant was convicted, on her plea of guilty, of one count of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (WA). The offence was allegedly committed between 20 December 2018 and 5 March 2019. It was alleged that the appellant attempted, by providing false evidence in support of a bail application, to pervert the course of justice upon the prosecution of Matthew Addison Salt on charges of possession of a prohibited drug with intent to sell or supply. On 5 June 2020, the appellant was sentenced to 2 years 6 months' immediate imprisonment for the charged offence.
The appellant now appeals against her sentence on two grounds. Ground 1 contends that the sentencing judge erred in fact by finding that the appellant's plea of guilty was a late plea of guilty, when in fact it was a fast-track plea of guilty that had been entered at the earliest reasonable opportunity. Ground 2 contends that:
The sentencing Judge erred in law by failing to afford procedural fairness to the Appellant by taking into account the delay between the date of the Appellant's plea of guilty and the date of her sentencing, in circumstances where:
a. the issue of the delay had not been raised, either by the sentencing Judge or the prosecutor, in the sentencing hearing; and
b. the sentencing Judge did not inform the Appellant's Counsel that he was considering that issue for the purposes of determining the appropriate discount pursuant to s. 9AA of the Sentencing Act 1995 (WA).
Leave to appeal has been granted on ground 1. The application for leave to appeal on ground 2 was referred to the hearing of the appeal.
In our view, ground 1 is established and it is unnecessary to determine ground 2. We considered it appropriate to resentence the appellant to 22 months' immediate imprisonment, with eligibility for parole, backdated to 5 June 2020.
Circumstances of the offending
The sentencing judge made the following findings as to the circumstances of the offending, which were not in dispute.[1]
[1] See primary ts 45 - 47, 73 - 74.
The appellant was an associate of Mr Salt, who was remanded in custody on charges of serious drug offences. He was a schedule 2 offender for the purposes of the Bail Act 1982 (WA), who was required to demonstrate exceptional circumstances to obtain a grant of bail. The appellant was in contact with Mr Salt, who was then in Hakea Prison. During their conversations, they spoke about whether or not Mr Salt's bail application could be successful.
On 20 February 2019, Mr Salt foreshadowed a bail application through his counsel. On 26 February 2019 the appellant sent, by email, the following in support of Mr Salt's bail application to the Magistrates Court at Perth:
(1)A letter purportedly written by Mr Salt's ex-partner and the mother of his child. The last name of Mr Salt's ex-partner had been misspelt, and the mobile telephone number provided in the letter was registered to the appellant.
(2)A letter purportedly written by Naomi Rodling Lester, a known alias of the appellant, claiming that the author had:
(a)taken care of Mr Salt's son, and required further assistance (when, in fact, Mr Salt's son had not resided with the appellant); and
(b)made arrangements for Mr Salt to obtain employment at a gardening service (when, in fact, the gardening service had not been approached and was not willing to offer Mr Salt employment).
(3)A letter purportedly written by Chelsea Charles,[2] who claimed to be an aged care worker, and who claimed to own a property in Girrawheen. The letter indicated that Chelsea Charles was prepared to rent the property to Mr Salt and his children. The Girrawheen property was actually owned by a person who lived in New South Wales, and was leased to the appellant through a real estate agent.
[2] The sentencing judge's remarks at primary ts 73 refer to the letter being purportedly written by a Chelsea Black, however nothing turns on this error.
The appellant subsequently met a Community Corrections officer, who was preparing a report in relation to home detention bail, at the Girrawheen property. The appellant claimed to be Ms Chelsea Black and to be the only resident at the property. The appellant also told the Community Corrections officer that she was a devout Christian who had no tolerance for illicit substances. The appellant told the Community Corrections officer that she would ensure that Mr Salt led a law-abiding lifestyle and would not tolerate drug use or 'adverse peers' attending the address. In fact, the appellant was a heavy drug user at that time.
On 4 March 2019, police executed a search warrant at the Girrawheen property, at which the appellant and another person were present. Police located the original letters sent to the Magistrates Court on 26 February 2019 in a basket on the top shelf of a linen cupboard. They also located drafts of the letters on a Samsung device found in a bedroom of the property. During the execution of the search warrant, the appellant admitted going by names which included Naomi Rodling Lester.
Although the sentencing judge did not make an express finding about this, the appellant also denied knowledge of the letters during the execution of the search warrant.[3]
[3] Primary ts 46.
Entry of guilty plea
The appellant was charged by prosecution notice signed on 6 March 2019. She appeared unrepresented in the Magistrates Court at Perth on 7 March 2019. She appeared by duty lawyer at the next hearing on 19 March 2019, when the matter was adjourned to 16 April 2019 for the appellant to seek legal advice. The appellant entered a guilty plea at the hearing on 16 April 2019, and was committed to the District Court for sentencing.
There were a number of appearances in the District Court before the appellant appeared on 28 November 2019 and was arraigned and pleaded guilty to the offence.[4] A judgment of conviction was entered on 5 December 2019.[5] The matter was adjourned for an updated psychological report to be obtained.
[4] Primary ts 32.
[5] Primary ts 38.
Sentencing hearing
When the matter came before the sentencing judge on 5 June 2020, his Honour noted that it had been more than 6 months since the appellant's arraignment and conviction.[6] The prosecutor then read the facts, noting that the matter came to court 'by way of expedited committal for sentence'.[7]
[6] Primary ts 44.
[7] Primary ts 45.
Soon after commencing her plea in mitigation, the appellant's sentencing counsel referred to the lengthy period of time taken for the matter to 'reach culmination'. She indicated that part of the reason for the delay had been the appellant's admission to hospital in November 2019 and on subsequent occasions.[8]
[8] Primary ts 47.
The plea in mitigation contained only passing reference to the plea of guilty as a mitigating factor,[9] but dealt with a number of other matters which counsel submitted should lead the court to suspend the sentence of imprisonment to be imposed. The appellant's sentencing counsel concluded her submissions by asking whether there was anything else the court would like her to address, to which the sentencing judge responded, 'Thank you. I think you've covered the points'.[10]
[9] Primary ts 54.
[10] Primary ts 69.
The State acknowledged the mitigating factors in this case, but submitted that a sentence of immediate imprisonment was the only appropriate sentencing option.[11] The prosecutor did not address the plea of guilty, the strength of the prosecution case or the discount which should be given under s 9AA of the Sentencing Act.
[11] Primary ts 69 - 70.
The sentencing judge began his remarks by noting the dates of the plea and conviction.[12] In dealing with the plea of guilty, the sentencing judge observed:[13]
To your credit, you have pleaded guilty to mitigating factors that entitles you to a reduction in the sentence that would otherwise be imposed. I accept that it's indicative of remorse and an acceptance of responsibility, but it does come late in the day.
For the benefits in the fact of what is an exceptionally strong case however, I acknowledge the finality associated with the plea and reduce the sentence that would otherwise be imposed by 15 per cent in respect of your plea.
(emphasis added)
[12] Primary ts 72.
[13] Primary ts 76.
After sentence was passed, the following exchange occurred between the prosecutor and the sentencing judge:[14]
[14] Primary ts 82 - 83.
[PROSECUTOR]: Your Honour, just one matter. Just if I could just clarify?
BIRMINGHAM DCJ: Yes?
[PROSECUTOR]: Sorry, your Honour. Just in terms of the discount under section 9AA, just to confirm that that's 15 per cent.
BIRMINGHAM DCJ: Sorry. Section 9AA, I thought I said 15 per cent.
[PROSECUTOR]: Is that correct?
BIRMINGHAM DCJ: Did I not express it?
[PROSECUTOR]: You probably did. I might have missed it. I just wanted to confirm that that's correct.
BIRMINGHAM DCJ: I said 15 per cent, 9AA.
[PROSECUTOR]: Thank you. Your Honour did make a reference to it being late in the piece. Is that just because of the protracted history? It was a fast-track plea, that's - - -
BIRMINGHAM DCJ: Was it a fast-track plea?
[PROSECUTOR]: It was, yes. It was a fast-track plea.
BIRMINGHAM DCJ: Yes.
[PROSECUTOR]: And then there was obviously some issues after. So that's why we've taken so long. And I understood your Honour - - -
BIRMINGHAM DCJ: Yes. I took that into account.
[PROSECUTOR]: Thank you, your Honour.
BIRMINGHAM DCJ: The 15 per cent comes from the overall strength of the case.
[PROSECUTOR]: Thank you, your Honour. I just needed to clarify.
BIRMINGHAM DCJ: Thank you.
(emphasis added)
Section 9AA of the Sentencing Act
Section 9AA of the Sentencing Act 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 general principles relating to the application of s 9AA were recently summarised in NI v The State of Western Australia.[15] As was noted in that case:
(1)A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
(2)The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.
(3)It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.
[15] NI v The State of Western Australia [2020] WASCA 78 [61] - [68].
Ground 1: error of fact as to when plea entered
The appellant construes the statement 'it does come late in the day' in the passage of the sentencing judge's remarks quoted at [19] above as referring to the lateness of the plea of guilty. The appellant submits that this is a factual error, as the plea was entered at the first reasonable opportunity a little over a month after the appellant was charged with the offence.
By contrast, the State contends that the statement 'it does come late in the day' in the passage of the sentencing judge's remarks quoted at [19] above is to the appellant's arraignment in the District Court. The State contends that this did not involve any factual error. The State submits that the judge's formal sentencing remarks are to be understood in light of his Honour's express statement, in the passage quoted at [20] above, that he took into account the appellant's entry of a fast‑track plea of guilty.
In our view, the appellant's construction of the judge's sentencing remarks is the only available construction of those remarks.
First, the context in which the reference is made makes it plain that the judge was referring to the lateness of the plea of guilty. As noted above, the sentencing judge said:[16]
To your credit, you have pleaded guilty to mitigating factors that entitles you to a reduction in the sentence that would otherwise be imposed. I accept that it's indicative of remorse and an acceptance of responsibility, but it does come late in the day.
For the benefits in the fact of what is an exceptionally strong case however, I acknowledge the finality associated with the plea and reduce the sentence that would otherwise be imposed by 15 per cent in respect of your plea.
[16] Primary ts 76.
In the first sentence quoted above the judge refers, in express terms, to the appellant's plea of guilty, saying it is to her credit and that the plea entitles the appellant to a reduction in the sentence that would otherwise have been imposed. The second sentence has two limbs. In the first limb - 'it's indicative of remorse and an acceptance of responsibility' - the 'it' is plainly a reference to the appellant's plea, which was the subject of the immediately preceding sentence. In the second limb - 'but it does come late in the day' - the 'it' cannot sensibly be construed as anything other than a reference to the plea of guilty. To construe the second limb of the sentence as referring to the timing of the appellant's arraignment, so that the first 'it' refers to the plea and the second 'it' refers to the arraignment, would be grammatically nonsensical.
In the third sentence, the sentencing judge acknowledged the benefits of the appellant's plea of guilty in the face of a strong prosecution case by reducing the sentence his Honour would otherwise have imposed by 15%. This context confirms that the topic of the first two sentences was the plea of guilty rather than the timing of the arraignment.
Secondly, a mandatory relevant consideration under s 9AA is the timing of the plea of guilty.[17] Consistently with that requirement, it is common practice for a sentencing judge to make some findings about how early the plea was made or indicated. Under s 9AA, what matters is when the offender pleaded guilty or indicated that he or she would plead guilty. When an offender was first arraigned, which occurs when an indictment is put to the offender in a superior court, is of no moment.
[17] Section 9AA(3); see, for example, LJH v The State of Western Australia [2016] WASCA 155 [48], [115].
The State could not suggest any reason why the sentencing judge would have referred to the timing of the appellant's arraignment, as distinct from the timing of her plea or indication that she would plead guilty. No such reason is apparent. To construe the sentencing remarks in the manner invited by the State would make no legal sense. By contrast, it makes good legal sense for the judge to refer to the timing of the appellant's plea of guilty, as that timing, and whether the plea was entered or indicated at the first reasonable opportunity, is a mandatory relevant consideration under s 9AA. In the present case, the judge did not make any other finding as to when the plea was entered or indicated, or as to whether the plea was entered or indicated at the first reasonable opportunity. That context objectively indicates that the judge's reference to 'it' coming late in the day was to the appellant's plea.
Thirdly, the language used by the sentencing judge indicates that the lateness of 'it' reduces the mitigatory value of the plea. That would not be so if the judge was referring to the time at which the appellant was arraigned, which was not a matter the appellant controlled.
Fourthly, the limited discount of only 15% would be difficult to justify if the judge recognised that the plea was entered or indicated at the first reasonable opportunity.[18] That counts against the strength of the prosecution case being the only factor which led the sentencing judge to reduce the discount from the maximum available 25% to only 15%. It suggests that a contributing factor was that the judge thought the plea was entered 'late in the day'.
[18] Cf Winmar v The State of Western Australia [2018] WASCA 155 [35], [63].
The subsequent exchange with the prosecutor quoted at [20] above, after the judge's formal sentencing remarks, does not permit a different conclusion.
The exchange is, putting the best light on it from the State's perspective, ambiguous. The earlier part of the exchange is capable of suggesting that the sentencing judge did not appreciate that a fast‑track plea had been entered until he was informed of that fact by the prosecutor in the course of the exchange. The latter part is capable of suggesting that the sentencing judge subjectively appreciated that an early plea of guilty had been entered and took that fact into account in sentencing the appellant. However, for the following reasons, even if the sentencing judge's statement in discussions with counsel that he took the fast‑track plea of guilty into account is taken at face value, it cannot lead to the formal sentencing remarks being construed in the manner proposed by the State.
In considering whether appellable error is established, there is an important difference between the status of a judge's sentencing remarks and the status of what a judge says after the process of passing sentence has been completed. The task of the appellate court is to be undertaken by construing the sentencing remarks as a whole. It is not to be undertaken by reading the sentencing remarks together with any subsequent statements by the judge as an undiscriminated whole - treating the two as of equal significance - and then construing them. That is what the respondent's submission involves.
The precise limits of the ability of a sentencing judge, or a court which delivers ex tempore reasons, to make revisions to the oral reasons need not be analysed. It is clear that it is open to correct errors of grammar or infelicity of expression. It is also permissible, in civil cases at least, to correct an error where the oral reasons plainly misstate what the decision‑maker was meaning to say. However, it is established that, even in a civil case, a judge may not revise his or her reasons for decision to make an objectively substantive change to the reasons originally given.[19] The ability to make revisions to oral reasons may well be more limited in criminal cases.[20]
[19] Minister for Immigration v AAM17 [2021] HCA 6; (2021) 95 ALJR 292 [30] - [32]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [56]; Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 [41] - [48]; R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 [122] - [124].
[20] See Lam v Beesley (1992) 7 WAR 88, 93 - 95; Todorovic [46].
Likewise, oral statements following a judge's formal sentencing remarks cannot be used to change the substance of what a judge has said in the formal remarks. The appeal must be resolved by reference to the objective meaning of the judge's formal sentencing remarks, understood in their context. While a subsequent informal exchange with counsel may provide some context which assists in the construction of the judge's reasons, that exchange cannot be used to change the plain meaning of the formal reasons which the sentencing judge has given.
This is not to say that a sentencing judge has no means of rectifying an error where the judge becomes aware, by an indication from a party or otherwise, that he or she has made an error in the sentencing process. In the limited class of case to which s 37 of the Sentencing Act applies,[21] the court may recall the order imposing the sentence and impose a sentence that is in accordance with the Sentencing Act and the written law under which the offence is committed, even after a Certificate of Final Outcome has been signed. Further, where a judge realises, before a Certificate of Final Outcome has been signed, that he or she has made an error of fact or law in sentencing an offender, which may be an error of a kind to which s 37 of the Sentencing Act does not apply, then the appropriate course is to recall the sentence and resentence the offender to correct the error. However, as will be apparent, that is not what occurred in this case.
[21] As to which, see Santos v The State of Western Australia [2018] WASCA 164 [24] - [35], [48].
If a decision‑maker delivers oral reasons and subsequently publishes written reasons which alter the substance of the reasons, it is the oral reasons to which an appellate court has regard in discerning whether appellable error is established.[22] Similarly, if in a subsequent oral statement a sentencing judge were to (purport to) alter the substance of sentencing remarks given earlier in passing sentence, an appellate court would direct its attention to the sentencing remarks in evaluating whether error has been demonstrated.
[22] Vogt [57] - [59].
In the present case, for the reasons explained above, the only reasonable objective meaning of the formal sentencing remarks is that the judge sentenced the appellant on the incorrect basis that she pleaded guilty 'late in the day'. The judge's subsequent statement - that, in determining the discount under s 9AA, he took into account the fact that the appellant's plea of guilty was a fast‑track plea - is intractably inconsistent with the unambiguous statement in the sentencing remarks that the plea came late in the day. To state the obvious, a fast‑track plea cannot be said to have come late in the day.
The subsequent exchange with counsel cannot be used to alter the plain meaning of the formal sentencing remarks. To construe the impugned passage of the judge's sentencing remarks in the manner invited by the State would be to permit the judge's subsequent statement - that he took into account the fact the plea of guilty was a fast‑track plea - to alter the substance of the sentencing remarks.
Consequently, ground 1 is to be resolved by reference to what his Honour said in his sentencing remarks as to the s 9AA discount for the appellant's plea of guilty. His Honour's subsequent statement cannot properly bear on this court's task.
In the circumstances described at [13] - [14] above, the appellant's plea of guilty was entered at the first reasonable opportunity. The sentencing judge's finding that the plea was entered late in the day was a material error of fact. That error having been identified, it is for this court to determine for itself whether a different sentence should have been imposed on a correct understanding of the facts.
Ground 2: procedural fairness
The success of ground 1 means that it is unnecessary for this court to resolve ground 2.
Resentencing
The maximum penalty for the offence of perverting the course of justice under s 143 of the Criminal Code is 7 years' imprisonment.
The sentencing considerations in relation to the offence, in the context of the swearing of a false statutory declaration as to the identity of a driver of a car photographed by a speed camera, were addressed in Ranford v The State of Western Australia (No 2):[23]
[23] Ranford v The State of Western Australia (No 2) [2006] WASCA 243; (2006) 166 A Crim R 451 [36].
Without being at all exhaustive, the following considerations may be discerned from the authorities as affording guidance to sentencing in cases involving the giving of a false name to avoid the consequences of traffic offences:
(1) Offences of attempting to pervert the course of justice strike at the heart of the justice system and there is a need for general deterrence in such cases.
(2) There is no tariff for such offences.
(3) A term of imprisonment will ordinarily be imposed, although other dispositions are not excluded in an appropriate case, particularly for a youthful first offender. A fine would normally not be appropriate.
(4) Where imprisonment has been imposed, sentences have ranged from [around 4 to 11 months post-transitional]. Clearly these are not fixed starting and ending points of sentences which may be imposed, but are general indicia only, for purposes of broad comparison.
In addition to all those circumstances relating to the particular case and particular offender which must be taken into account, some of the factors which bear upon the assessment of the seriousness of offences of this kind include:
(a) the nature and seriousness of the consequences sought to be avoided (as for example, whether to avoid demerit points, or to avoid conviction);
(b) the period of time over which the deception occurred and whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;
(c) whether the deception involved some other person, either as an accomplice or a victim;
(d) whether there was any threat or violence involved;
(e) whether the deception caused diversion of investigative, police or court resources;
(f) whether the offence was a 'spur of the moment' response or was premeditated, and if so, the degree of premeditation, planning and persistence;
(g) whether the deception was carried through to the extent of deceiving a court, or the creation of false public records, and if so, the extent and consequences of that.
In Ranford, sentences of 15 months' immediate imprisonment for each of the two offenders, imposed on early pleas of guilty, were held to be manifestly excessive. A sentence of 8 months' immediate imprisonment was substituted for the instigator of the offending and a suspended sentence of 6 months' imprisonment was imposed on the other offender.
More serious examples of sentences for attempting to pervert the course of justice, ranging up to 3 years' immediate imprisonment, were reviewed by Hall J (Martin CJ and Mazza JA agreeing) in Spence v The State of Western Australia.[24] His Honour observed that sentences of 3 years' imprisonment or more are towards the higher end of the range of sentences imposed for offences of this nature.[25]
[24] Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337 [40] - [50].
[25] Spence [51].
The circumstances of the appellant's offending are referred to above. The offending was a planned course of conduct sustained over a number of days, involving the writing of three letters and the assumption of a number of false identities. It involved an attempt to mislead a court in the exercise of its judicial functions. However, it is relevant to note that the course of conduct was not designed or likely to result in the wrongful conviction or acquittal of any person of an offence. The exercise of the jurisdiction which the appellant sought to subvert involved a decision as to whether or not bail should be granted pending the final determination of the criminal proceedings against Mr Salt. While the appellant's conduct was a serious example of the offence, it was not in the most serious category of offending against s 143 of the Criminal Code.
The appellant was 33 years old at the date of sentence. She had a difficult life, and had been diagnosed with borderline personality disorder, with a secondary diagnosis of post-traumatic stress disorder and substance use disorder. She was a drug user with a lengthy criminal record, including convictions for a large number of offences involving dishonesty. The sentencing judge accepted that she was remorseful and accepted responsibility for the offending. She had taken steps to engage with programs to address her drug use and mental health issues.[26] Material handed up at the hearing of the appeal indicates that she has continued these steps towards rehabilitation since the original sentence was imposed.
[26] Primary ts 74 - 76.
In our view, the seriousness of the offending was such that a sentence of immediate imprisonment was the only appropriate kind of sentence.
We reduced the sentence by 25% under s 9AA of the Sentencing Act, on account of the appellant's plea of guilty at the first reasonable opportunity. In that regard, while the State's case may be regarded as relatively strong, it was not overwhelming. The location of drafts of the letters at the appellant's house and on her computer does not necessarily establish, beyond reasonable doubt, that she was the author of the letters or was the person who sent them to the court. Questions of the identity of the person who the community corrections officer met with at the Girrawheen property may have been raised. In all the circumstances of the case, we considered the benefits to the State warranted a discount of the full 25%, notwithstanding the relative strength of the prosecution case.
Having regard to all of the above matters, and all relevant sentencing principles, we considered a sentence of 22 months' immediate imprisonment to be commensurate with the seriousness of the appellant's offending. The sentence was backdated to the date the original sentence was imposed by the sentencing judge, and the appellant remained eligible for parole.
Orders
For the above reasons, at the conclusion of the hearing of the appeal, we were of the opinion that the sentencing judge made a material error of fact in sentencing the appellant, and that a different sentence should have been imposed. It was for these reasons that we made the orders set out at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
30 JUNE 2021
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