Crugnale v The State of Western Australia
[2015] WASCA 147
•28 JULY 2015
CRUGNALE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 147 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:59/2015 | 1 JULY 2015 | |
| Coram: | McLURE P MAZZA JA | 28/07/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applications to adduce additional evidence and amend grounds of appeal refused Leave to appeal on proposed grounds 1, 2 and 3 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LORELLA ERSILIA CRUGNALE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Applications for leave to appeal against sentence, adduce additional evidence and amend proposed grounds of appeal Attempting to pervert the course of justice Total effective sentence 2 years' immediate imprisonment Whether the sentencing judge erred by failing to consider whether the facts and circumstances of appellant's case required the imposition of an immediate term of imprisonment Whether it was open to the sentencing judge to suspend the terms of imprisonment Whether the total effective sentence breached the first limb of the totality principle |
Legislation: | Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e) Criminal Code (WA), s 143 Road Traffic Act 1974 (WA), s 77(1) Sentencing Act 1995 (WA), s 9AA |
Case References: | Abraham v The State of Western Australia [2014] WASCA 151 Beins v The State of Western Australia [No 2] [2014] WASCA 54 Cartwright v The State of Western Australia [2010] WASCA 4 Dillon v The State of Western Australia [2010] WASCA 135 Dudzik v The State of Western Australia [2012] WASCA 195 Murphy v The State of Western Australia [2013] WASCA 178 Spence v The State of Western Australia [2014] WASCA 171 Tasovac v The State of Western Australia [2015] WASCA 24 Thomas v The State of Western Australia [2014] WASCA 202 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CRUGNALE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 147 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCHOOMBEE DCJ
File No : IND KAR 52 of 2014
Catchwords:
Criminal law - Applications for leave to appeal against sentence, adduce additional evidence and amend proposed grounds of appeal - Attempting to pervert the course of justice - Total effective sentence 2 years' immediate imprisonment - Whether the sentencing judge erred by failing to consider whether the facts and circumstances of appellant's case required the imposition of an immediate term of imprisonment - Whether it was open to the sentencing judge to suspend the terms of imprisonment - Whether the total effective sentence breached the first limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e)
Criminal Code (WA), s 143
Road Traffic Act 1974 (WA), s 77(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Applications to adduce additional evidence and amend grounds of appeal refused
Leave to appeal on proposed grounds 1, 2 and 3 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Cartwright v The State of Western Australia [2010] WASCA 4
Dillon v The State of Western Australia [2010] WASCA 135
Dudzik v The State of Western Australia [2012] WASCA 195
Murphy v The State of Western Australia [2013] WASCA 178
Spence v The State of Western Australia [2014] WASCA 171
Tasovac v The State of Western Australia [2015] WASCA 24
Thomas v The State of Western Australia [2014] WASCA 202
Wheeler v The Queen [No 2] [2010] WASCA 105
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence. The appeal was filed out of time, but an extension of time has been granted.
3 The appellant, by application filed 2 June 2015, also seeks to adduce additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). That additional evidence is contained in the appellant's affidavit sworn 26 May 2015.
Background
4 The appellant was charged on indictment with two offences as follows:
(1) On 13 March 2014 at Exmouth [the appellant], by creating and tendering in court a falsified and misleading document, attempted to pervert the course of justice upon the application of [the appellant] to obtain an Extraordinary Motor Driver's Licence pursuant to s 76(1) of the Road Traffic Act 1974.
(2) On 7 August 2014 at Exmouth [the appellant], by creating and tendering in court a falsified and misleading document, attempted to prevent the course of justice upon the prosecution of [the appellant] on a charge of 'Contravening the Conditions of an Extraordinary Motor Driver's Licence' pursuant to s 77(1) of the Road Traffic Act 1974.
5 Each offence is contrary to s 143 of the Criminal Code (WA) and carries a maximum penalty of 7 years' imprisonment.
6 As may be gleaned from the charges, the appellant tendered, on separate days, a forged document to a court. On 13 March 2014, the appellant tendered a letter, purportedly written by her employer, in support of an application for an extraordinary driver's licence. This application was ultimately successful. Subsequently, the appellant drove on an occasion in contravention of the conditions of that extraordinary driver's licence. In defence to this charge, on 7 August 2014, the appellant tendered to a court another letter which she had forged, purportedly written by her employer. The police were suspicious of the letter and, after making inquiries, discovered its falsity. Ultimately, the appellant pleaded guilty to the charge of driving in contravention of her extraordinary driver's licence. Consequently, the appellant was fined and her extraordinary driver's licence was cancelled.
7 On 17 February 2015, the appellant pleaded guilty in the Karratha District Court to the offences in the indictment. She was sentenced that day by Schoombee DCJ to 18 months' immediate imprisonment on count 1 and 6 months' immediate imprisonment on count 2, to be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 2 years' immediate imprisonment. The appellant was made eligible for parole.
8 The appellant, who is self-represented in this appeal, seeks leave to appeal on three grounds, being:
1. The learned Judge erred in law in stating that there is a 'rule' that those who are convicted of attempting to pervert the course of justice are imprisoned.
2. The learned Judge erred in ordering that the appellant serve an immediate sentence of imprisonment when in the circumstances it was open to suspend the sentence.
3. The sentence which was imposed was in total disproportionate to the total criminality having regard to the circumstances of the offending, the personal circumstances of the appellant and the sentencing standards.
The facts
9 The materials which were tendered to the learned sentencing judge comprised the brief for the prosecution, the appellant's video record of interview (VROI) with police on 3 October 2014, a pre-sentence report, the appellant's criminal history and materials attesting to the appellant's character and community service. The facts of the appellant's offending are as follows.
10 As a result of a number of drink driving convictions in 2011 and 2012, the appellant had been disqualified from holding or obtaining a motor driver's licence. In 2013, an application by the appellant for an extraordinary driver's licence was refused. Subsequently, she brought another application for an extraordinary driver's licence. This application was heard in the Exmouth Magistrate's Court on 13 March 2014 (ts 15). Amongst the documents she tendered to the court in support of her application was a letter purportedly from Adams and Co Construction and signed by the director of that business, Mr Craig Adams. The appellant forged that document (ts 15). To make the letter appear genuine, the appellant used the logo on Mr Adams' business card.
11 The letter purportedly written by Mr Adams and dated 13 March 2014 states, in part:
I am the owner and director of South Australian based Adams and Co [C]onstructions specialising in constructions and renovation.
In 2013, I was contracted by the Australian Department of Defence to renovate a number of Defence residential properties in Exmouth, WA.
I employed All Round Cleaning [the appellant] to carry out the construction cleans at the end of the jobs.
The work was impeccable with every attention paid to detail which is an essential job requirement. She displayed a very strong work ethic and was always motivated and reliable.
I [sic] aware [the appellant's] licence was under suspension …
I have been awarded the building contracts for eight more defence properties in 2014 …
My wish is to employ All Round Cleaning [the appellant] to carry out these construction cleans.
Due to the location and nature of this employment a valid drivers [sic] licence is essential.
12 In the VROI, the appellant was asked what the purpose of creating the letter was. She replied:
To support my application for the extraordinary [driver's] licence 'cause I was pretty well frightened that I wasn't going to unless I had an extra, extra documentation on top of what I already had (VROI ts 7).
13 The appellant was granted an extraordinary driver's licence by the learned magistrate.
14 On Sunday 4 May 2014, the appellant was stopped by police in Exmouth while driving her vehicle in contravention of the conditions of her extraordinary driver's licence. As a result, she was charged with an offence contrary to s 77(1) of the Road Traffic Act 1974 (WA).
15 On 7 August 2014, she appeared in the Exmouth Magistrates Court to answer this charge. She provided the magistrate with another letter, this time dated 18 July 2014, purportedly written by Mr Craig Adams on what appeared to be the letterhead of Adams and Co Constructions Pty Ltd. The letter read:
I would like to state that on May 4 2014, I requested [the appellant] [All Round Cleaning] [address given] to quote on a contract clean of my yacht 'The Pearl' which I had just sailed into the Exmouth Marina the previous day. I have previously employed [the appellant] to carry out contract cleaning jobs.
As stated in my previous letter on 13/03/2014 I am a building contractor specialising in construction and renovation and have a number of contracts coming up in Exmouth and my intention was to continue to employ All Round Cleaning [the appellant] to carry out the construction cleans at the end of each job.
16 The police conducted inquiries into the provenance of this letter. Those inquiries revealed that it too had been forged by the appellant. Mr Adams was contacted and stated that he knew nothing about this letter or the letter dated 13 March 2014. A search of one of the appellant's workplaces revealed drafts and unsigned copies of the letters.
17 With respect to the second forged letter, the appellant, in substance, admitted in the VROI that she had forged the letter and that Mr Adams had not requested her to clean his yacht. She said that the contents of the letter were false. She said that the purpose of creating the letter and tendering it to the court was 'to try and keep my extraordinary driver's licence' (VROI ts 10).
The appellant's personal circumstances
18 At the time she was sentenced, the appellant was 53 years of age. She was born and raised in country Western Australia. She has a good relationship with her parents and her surviving siblings. Her father, who is living some distance from the appellant, is suffering from dementia. The appellant has cared for him when her mother has been away.
19 The appellant has a Bachelor of Education and has previously worked as a teacher. She has also run her own cleaning business. It is clear from the materials that were tendered to the learned sentencing judge that she has contributed positively to the Exmouth community, in particular, while managing the Exmouth Police and Citizens Youth Club.
20 The pre-sentence report noted that the appellant 'suffers from neck and back problems resulting in pressure on her spine'. It was also noted that the appellant was awaiting surgery as a consequence of breaking her leg in December 2014.
21 Although the appellant describes herself as a 'social drinker', her court history reveals that she has been convicted of drink driving offences on eight occasions between 1982 and 2012. In addition, she has been convicted on four occasions of driving whilst disqualified, three of which occurred in 2012.
22 In 1998, the appellant was convicted of entering into a false bail undertaking. She also has four convictions for stealing, although the last of these was in 1997.
The sentencing proceedings
23 The appellant was represented by counsel before the District Court. Both the prosecutor and defence counsel filed written sentencing submissions.
24 Defence counsel's oral submissions were brief, but referred to the following matters:
(a) The first offence occurred 'as a spur of the moment matter' (ts 9).
(b) She was deeply remorseful and ashamed of her actions (ts 10).
(c) Notwithstanding her prior convictions, she had 'good standing within the community' (ts 10).
(d) She had a number of medical problems, particularly her broken leg and a degenerative condition in her neck which caused compression on her spinal cord, for which surgery was booked (ts 10).
(e) 'Her lack of consequential thinking' was the main cause of her offending behaviour (ts 10).
25 Defence counsel submitted that the appropriate disposition was a conditional suspended imprisonment order (ts 10).
26 The prosecutor submitted that terms of immediate imprisonment should be imposed (ts 11). It was submitted that the offences were 'completely distinct offences' involving 'two different forged letters in two different court proceedings' (ts 12). The State submitted that the terms of imprisonment should be served either wholly or partly cumulative (ts 12).
27 Her Honour accurately described the facts of the offences and the appellant's personal circumstances. She acknowledge that the appellant had done 'some good work for the community' and she accepted that, in other respects, 'you have been a good citizen' (ts 17). She acknowledged the appellant's health problems, but she said the fact the appellant was awaiting surgery for her neck was not a matter that impacted on the sentence because of the obligation of prison authorities to ensure that the appellant receives appropriate medical attention (ts 18).
28 Her Honour acknowledged that the appellant had made full admissions to the police in the VROI and that she had taken responsibility for her offending and was remorseful for what she had done. The learned sentencing judge gave a 20% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) for the appellant's pleas of guilty (ts 18).
29 Her Honour characterised the appellant's offending as being 'particularly serious', observing that each offence was premeditated and planned (ts 18). She noted that the offending took place on two separate occasions and was aimed at avoiding different consequences - the first letter being falsified for the purpose of obtaining an extraordinary driver's licence; the second letter to defend a charge of driving contrary to the conditions of that licence (ts 19). Her Honour noted that the appellant's conduct had 'indirectly involved an innocent person [Mr Adams]' (ts 19).
30 The learned sentencing judge accepted the prosecutor's submission to the effect that the efficient administration of justice depends upon courts being able to trust the authenticity of references and other materials which are provided to a court (ts 19). She regarded the fact that the falsified letters were presented to a court to be a most important factor.
31 The learned sentencing judge observed that:
[T]he rule is generally that for perverting the course of justice, the appropriate sentence is a sentence of immediate imprisonment, and that is because perverting the course of justice is seen to be striking at the heart of the justice system (ts 19).
32 The learned sentencing judge made express reference to the totality principle and reduced the sentence that she would otherwise have imposed on count 2 from 18 months to 6 months' imprisonment for reasons of totality (ts 19).
33 Having imposed terms of imprisonment for the offences, her Honour then considered whether or not it was appropriate to suspend those terms. Her Honour referred to 'the usual rule' that a sentence for perverting the course of justice will result in immediate imprisonment because 'general deterrence is so important' and the offence 'strikes at the heart of the justice system' (ts 19 - 20). She then said:
Nevertheless, I've looked again at all your circumstances and your offending, but as I have said, your offending does fall into a quite serious category because it was premeditated, it was persisted with, it involved another person and it deceived a court on two occasions. So it would be just not appropriate to suspend your sentences (ts 20).
The application to adduce additional evidence
34 This court must decide an appeal on the evidence and material before the court below: s 39(1) of the Criminal Appeals Act. However, the court has broad powers to admit other evidence: s 40(1)(e). In the context of an appeal against sentence, the test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. The capacity of an appellant to adduce additional material in a sentencing appeal is not at large. Each case must be assessed according to its own facts: Wheeler v The Queen [No 2] [2010] WASCA 105 [53].
35 Insofar as the contents of the appellant's affidavit alleges facts which may be inconsistent with her pleas of guilty, these are matters that cannot be taken into account in the context of an appeal against sentence.
36 The appellant seeks to adduce material in respect of earlier applications made by her for extraordinary driver's licences in 2009 and 2013. At best, these documents merely provide general background to the proceedings in March 2014. In my opinion, they are incapable of giving rise to a conclusion that, had they been before the learned sentencing judge, a different sentence should have been imposed.
37 The appellant also seeks to adduce documents in relation to her various health conditions. These comprise a number of reports written by the appellant's orthopaedic spinal surgeon, Mr Peter Woodland. His reports document the appellant's spinal conditions. In his report dated 13 June 2014, Mr Woodland says that the appellant required surgery to take pressure off her spinal cord. However, in Mr Woodland's opinion, there was 'no urgency for surgery'. This information was, in substance, the information that was conveyed to, and considered by, the learned sentencing judge. It would not have given rise to a different sentence.
38 Finally, the appellant annexed a newspaper article written by Mirko Bagaric, the Dean of the School of Law at Deakin University, which was published in The West Australian on 13 April 2015. The appellant said in her affidavit that she did not submit the article as evidence. Rather, it was submitted in support of her argument that she should not have been sentenced to an immediate term of imprisonment. It is not admissible evidence.
39 None of the additional material, had it been before the sentencing judge, would have given rise to a different sentence. In these circumstances, the application to adduce additional evidence must be dismissed.
The merits of the appeal
40 I now turn to the merits of the proposed grounds of appeal.
41 This court will not intervene simply because, had it been sentencing the appellant at first instance, it might have imposed a different sentence. Rather, an appellate court can only intervene if the appellant demonstrates that the judge made a material error of fact or law. An error may be express or implied. Where an implied error is alleged, it must be demonstrated that the end result was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
42 The relevant principles relating to suspension of a term of imprisonment were set out in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] as follows:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21]
Proposed ground 1
43 The gravamen of proposed ground 1 is that, although immediate imprisonment is the generally appropriate sentence for attempting to pervert the course of justice, her Honour erred by failing to consider whether the facts and circumstances of the appellant's case were such that the imposition of an immediate term of imprisonment was not required. In support of this submission, the appellant referred to the learned sentencing judge's use of the word 'rule' when referring to the appropriate sentence for the offence of perverting the course of justice.
44 This court has stated on a number of occasions that the generally appropriate sentence for an offence contrary to s 143 of the Criminal Code is immediate imprisonment: see Dillon v The State of Western Australia [2010] WASCA 135; Dudzik v The State of Western Australia [2012] WASCA 195; Spence v The State of Western Australia [2014] WASCA 171 and Tasovac v The State of Western Australia [2015] WASCA 24.
45 Her Honour's use of the word 'rule', when examined in the context of the whole of the sentencing reasons, conveyed no more than the general principle enunciated in the cases. Her Honour qualified the word 'rule' by the words 'generally', and later, 'usual'. Significantly, her Honour, having decided that imprisonment was the only appropriate sentence on each count, expressly considered whether the sentences of imprisonment could be suspended.
46 Proposed ground 1 has no reasonable prospect of succeeding.
Proposed grounds 2 and 3
47 Proposed grounds 2 and 3 may be dealt with together.
48 A sentence of immediate imprisonment is ordinarily imposed for the offence of attempting to pervert the course of justice because the offence strikes at the very heart of the administration of justice: Dillon [3], [29]; Dudzik [23] - [24] and Murphy v The State of Western Australia [2013] WASCA 178 [28].
49 While there is no tariff for the offence, the individual sentences imposed upon the appellant were within the range of sentences customarily imposed. The appellant's offending was, as the learned sentencing judge found, serious for the reasons that she identified and which I need not repeat.
50 There were mitigatory factors, the most significant of which was the appellant's pleas of guilty. When weighed against the seriousness of the offences, the pleas of guilty, along with the other mitigating factors, including the appellant's health problems and her good works in the community, do not justify the imposition of suspended terms of imprisonment.
51 Nor do I think that the total effective sentence of 2 years' immediate imprisonment was, having regard to all of the circumstances of the case, unreasonable or unjust. Having regard to all relevant matters, I am not satisfied that the total effective sentence infringed the first limb of the totality principle.
52 In my view, grounds 2 and 3 have no reasonable prospect of succeeding.
Proposed amendment to the grounds of appeal
53 After the hearing of the appellant's application for leave to appeal against sentence, the appellant sent by facsimile to the court on 1 July 2015 what I will take to be an application to add a fourth ground of appeal in these terms:
The learned judge erred in imposing a 20% discount on the sentence when it should have been 25% on the grounds that I pleaded guilty at the first available opportunity. The first available opportunity was described at [sic] being at the electronically recorded police interview in November [sic] 2014. In fact I admitted to the crime to the police in August 2014.
54 The prosecution notices which appear in the brief for the prosecution show that the appellant entered fast track pleas of guilty, having earlier sought to obtain legal advice. I am prepared to accept that the appellant entered her pleas of guilty at the first reasonable opportunity and thus, the learned sentencing judge's discretion to give the appellant a 25% discount, the maximum allowable pursuant to s 9AA of the Sentencing Act, was enlivened. However, the fact that the power is enlivened does not mean that a sentencer must allow a discount of 25%. Once the power is enlivened, a sentencing judge has a discretion as to the amount of discount which is informed by the nature, character and extent of the benefits to the State and to any victim of, or witness to, the offence: Thomas v The State of Western Australia[2014] WASCA 202 [17].
55 In Beins v The State of Western Australia [No 2] [2014] WASCA 54 and Abraham v The State of Western Australia [2014] WASCA 151, this court held that the strength of the prosecution case is a matter relevant in considering the extent of any discount to be given under s 9AA of the Sentencing Act for a guilty plea. The strength of the prosecution case is directly relevant to the extent of the benefits received or derived by the State as a consequence of the guilty plea: Abraham [58].
56 In the present case, the case against the appellant was very strong, having regard to:
(a) the evidence of Mr Adams to the effect that he did not write either of the documents that were tendered to the court;
(b) the draft and unsigned copies of the letters found at one of the appellant's work places; and
(c) the admissions she made to the police.
57 In my opinion, a discount of 20% pursuant to s 9AA of the Sentencing Act was a proper exercise of the learned sentencing judge's discretion. The ground of appeal the appellant proposes to add has no merit. Accordingly, leave to amend the grounds of appeal to include the proposed ground 4 must be refused.
Conclusion and orders
58 In my opinion, the application to adduce additional evidence should be dismissed. So too should the appellant's application to amend her grounds of appeal to add proposed ground 4. None of proposed grounds 1, 2 and 3 have a reasonable prospect of succeeding. The appeal must be dismissed.
59 The orders that I would make are as follows:
1. The application to adduce additional evidence is refused.
2. The application to amend the grounds of appeal to add proposed ground 4 is refused.
3. Leave to appeal on proposed grounds 1, 2 and 3 is refused.
4. The appeal is dismissed.
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