Curry v The State of Western Australia
[2022] WASCA 36
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CURRY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 36
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 14 MARCH 2022
DELIVERED : 25 MARCH 2022
FILE NO/S: CACR 37 of 2021
BETWEEN: SIMON PATRICK CURRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MacLEAN DCJ
File Number : IND 792 of 2019
Catchwords:
Criminal law - Appeal against sentence - Two offences involving possession of large quantity of methylamphetamine and cash reasonably suspected to have been stolen or unlawfully obtained - Where appellant sentenced to total effective sentence of 7 years 2 months' imprisonment - Offending part of a sophisticated criminal enterprise - Whether judge erred by failing to award 25 per cent discount for pleas of guilty entered after negotiations with State - Whether judge infringed first limb of the totality principle, taking into account the appellant's previous sentence for which he was on parole at the time he committed these offences - Whether judge took into account irrelevant considerations regarding weapons possessed by the criminal enterprise and the appellant's personal charm
Legislation:
Sentencing Act 1992 (WA), s 9AA
Result:
Leave to appeal on grounds 1 to 3 refused
Application to adduce additional evidence dismissed
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | B W Standish |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Bernard Standish |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnes v The State of Western Australia [2004] WASCA 258.
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
Labrook v The State of Western Australia [2016] WASCA 127.
LYN v The State of Western Australia [2019] WASCA 45.
Mill v The Queen (1988) 166 CLR 59.
Roffey v The State of Western Australia [2007] WASCA 246.
Savory v The State of Western Australia [2018] WASCA 165.
The State of Western Australia v Doodson [2021] WASCA 148.
JUDGMENT OF THE COURT:
Introduction
On 12 March 2021, the appellant was sentenced to a total effective sentence of 7 years 2 months' imprisonment following his conviction, on his pleas of guilty, of one count of possession of 248 g of methylamphetamine with intent to sell or supply and one count of possession of $146,225 in cash reasonably suspected to have been stolen or unlawfully obtained.
The appellant advances three grounds of appeal. Ground 1 asserts error in the judge's failure to apply a 25% discount for the appellant's pleas of guilty. Ground 2 asserts that the appellant's total effective sentence infringed the first limb of the totality principle, having regard to the fact that, at the time he committed these offences, the appellant was on parole, and in that sense still serving a sentence, for an offence of aggravated burglary for which he had been sentenced in 2016 to 2 years 2 months' imprisonment. Ground 3 asserts that the judge took into account irrelevant considerations in imposing sentence.
For the reasons that follow, none of the grounds of appeal has sufficient merit to sustain the grant of leave to appeal. Leave to appeal must be refused and the appeal must be dismissed.
The facts
The judge adopted the agreed facts and incorporated them into his sentencing remarks.[1]
[1] ts 50.
At 5.45 pm on Monday 30 April 2018, officers from the Organised Crime Squad executed a Misuse of Drugs Act1981 (WA) search warrant at an apartment in Innaloo. The police arrested the appellant inside a bedroom at the apartment.[2]
[2] ts 33.
The police searched the bedroom. They found a vacuum sealed bag with 248 g of methylamphetamine at 74% purity (count 1). They found $146,225 in cash (count 2). They also found part of a rifle (namely a box magazine), five shotgun rounds, an electronic stun device, a metal baton, and identification documents in the name of the appellant.[3] The box magazine fitted a rifle that police had seized earlier from a locked security cage in the apartment complex.[4]
[3] ts 33.
[4] ts 33.
The appellant was involved with a group of people who dealt drugs. The appellant did not possess the drugs and the cash alone. The appellant was not merely a courier. The appellant's position in the group is otherwise unknown.[5]
[5] ts 33.
The appellant was on parole for an offence of aggravated burglary at the time of the offending.[6]
Personal circumstances
[6] ts 34.
The appellant was 31 years old when he was sentenced. He grew up in a metropolitan suburb of Perth, and was raised by his mother as a single parent.
For a period of a few years, starting when the appellant was about 12 years old, his father returned to the household in what was an ultimately unsuccessful attempt to revive the relationship between the appellant's parents.
The appellant left school at the age of 16 years, and undertook a four‑year electrical apprenticeship.
The appellant has had two significant relationships. The first involved mutual substance abuse. His relationship with his second partner was positive and supportive. The appellant has two children who, at the time of sentencing, were aged 3 and 5.
The appellant began using methylamphetamine when he was about 20 years old. By the time he was sentenced, he had a long‑standing and entrenched drug addiction. The sentencing judge noted that, while in custody, the appellant had taken steps to address his drug use.[7]
[7] ts 55.
The appellant has a long criminal history recording numerous convictions. Those convictions include offences involving illicit drugs, theft, property, violence, weapons, traffic and other kinds of offending.
None of the appellant's previous offending was of an order of seriousness approaching the present offending.
The appellant's previous sentence and time in custody
On 22 December 2016, the appellant was sentenced to 2 years 2 months' imprisonment for an offence of aggravated burglary committed on 11 June 2015. The sentence was backdated to commence on 23 May 2016. He was released on parole on 2 October 2017.
The appellant was arrested for the current offences on 30 April 2018. The following day, his parole was suspended and he was returned to custody. He served the outstanding parole days between 1 May 2018 and 22 July 2018. On the expiry of the aggravated burglary sentence on 22 July 2018, the appellant was released again on bail for the current offences. Following charges of further offending, of which he was subsequently convicted, his bail was revoked on 5 October 2018.
Sentencing remarks
Seriousness of the offending
The sentencing judge noted that the appellant was in possession of approximately 8.85 times the trafficable quantity of methylamphetamine.[8] The appellant's offending was for commercial gain. There was a clear connection between the appellant's possession of the methylamphetamine and his possession of the $146,225 in cash.[9]
[8] ts 50.
[9] ts 50.
The judge noted, as a matter of significance, the 74% purity of the methylamphetamine.[10]
[10] ts 50.
The offending formed part of a prolonged drug dealing operation and a serious criminal enterprise.[11] While his precise role could not be identified, the appellant was an essential part of the criminal enterprise.[12]
[11] ts 50.
[12] ts 50.
The appellant showed an awareness, in his dealings with clients, of the risks of breaching his parole.[13] There were indications that the appellant was involved in a trade in firearms.[14]
[13] ts 52.
[14] ts 53.
The judge noted text messages which suggested that the appellant dealt with 'lower level' dealers, as well as clients. These indicate that the appellant's involvement in the overall drug enterprise was much more than a courier or storekeeper, and encompassed dealing with users and dealers at a number of levels. While the appellant was not to be sentenced for offending with which he was not charged, the messages helped better identify the appellant's role in the drug enterprise and showed that his offending the subject of count 1 was sustained rather than isolated.[15]
[15] ts 52 - 54.
The weight and purity of the methylamphetamine meant that the offending the subject of count 1 presented a great harm to the community and was part of a consistent commercial enterprise.[16]
[16] ts 54.
The offending occurred while the appellant was on parole for an offence of aggravated burglary. The appellant demonstrated a disregard for the law. The appellant was aware of the significance of offending while on parole and took steps to hide his criminal activity.[17]
[17] ts 54.
The judge accepted the State's submission that aggravating factors included:[18]
(1)the quantity of the drugs;
(2)the high degree of commerciality of the criminal enterprise and of the appellant; and
(3)the fact that the appellant committed the offences while on parole.
[18] ts 54 - 55.
The judge noted that it was also significant that the criminal enterprise possessed firearms and weapons. Although the appellant was not being sentenced for possession of weapons, the weapons formed part of the circumstances of the offending.[19]
Mitigating factors and personal circumstances
[19] ts 55.
The judge accepted that the appellant showed insight and remorse.[20]
[20] ts 55.
The appellant's risk of reoffending was linked to his substance use, associations with criminal peers and poor mental health.[21] When released from prison in December 2017, the appellant was lonely, had poor mental health, and fell into company with a community of drug users.[22]
[21] ts 55.
[22] ts 55.
The appellant had an entrenched drug addiction, but has taken steps while in custody to address his drug use.[23]
[23] ts 55.
The judge noted the appellant's capacity for kindness and charm with clients.[24] The judge questioned whether the appellant's charm and intellect might have influenced people who read and wrote positive things about him.[25] On the other hand, at times the appellant threatened violence to clients.[26]
[24] ts 51.
[25] ts 51.
[26] ts 51 - 52.
The appellant had the support of family and expressed a desire to avoid reoffending.[27]
[27] ts 55 - 56.
The judge considered that the appellant was impacted by his own experience with an absent father.[28] The return of his father seemed to be the catalyst for the appellant's negative course of conduct.[29] The appellant used his time on remand to reflect on his past and to prioritise positive steps for his future. The appellant wanted to fulfil his responsibilities as a father.
[28] ts 57.
[29] ts 57.
The appellant undertook courses while in custody and successfully qualified in a trade prior to his methylamphetamine use.[30] The appellant's references demonstrated that the appellant had support in the community amongst people who were not involved in the distribution of drugs.[31]
Sentencing factors
[30] ts 57 - 58.
[31] ts 60.
The judge observed that personal matters were of limited weight in this case because the appellant's offending was so serious.[32]
[32] ts 58.
After noting the appellant's aggravating and mitigating factors, the judge observed that the most important sentencing factor was general deterrence.[33]
[33] ts 58.
The weight and purity of the methylamphetamine demonstrated significant risk to the community.[34] The judge commented on the serious consequences of methylamphetamine use in the community.[35]
[34] ts 58 - 59.
[35] ts 59.
The appellant was 'front and centre' in a sophisticated criminal enterprise.[36]
[36] ts 59.
The judge recognised that counts 1 and 2 were connected, but considered that their seriousness made it appropriate to impose cumulative sentences.[37]
Discount for pleas of guilty
[37] ts 60 - 61.
The sentencing judge did not award the full 25% discount because the pleas of guilty were not entered at the 'first available opportunity',[38] evidently intended as a reference to the first reasonable opportunity. Nonetheless, his Honour considered that the pleas of guilty deserved a significant discount of 20%. The appellant pleaded guilty after negotiating with the State, as a result of the negotiations counts 3 to 6 on the indictment were discontinued, the discontinued counts were less serious than count 1, the parties helpfully agreed on the material facts, and the appellant made the pleas during the uncertainty of the COVID‑19 period. The pleas were also of considerable utility to the State - the State could not identify with precision the appellant's role in the criminal enterprise and none of the other people found by police in the apartment made adverse statements against the appellant.[39]
Sentences imposed
[38] ts 61.
[39] ts 61 - 62.
The judge imposed an immediate term of imprisonment of 6 1/2 years for count 1. The judge imposed an additional cumulative term of 8 months (reduced from 1 year) for count 2, having regard to totality. The total effective sentence of 7 years 2 months' imprisonment was backdated to 5 October 2018 to account for time spent by the appellant in custody.
Grounds of appeal
The appellant's grounds of appeal are:
(1)The learned sentencing judge erred in failing to impose a 25% discount for the pleas of guilty, giving rise to a miscarriage of justice.
(2)The total effective sentence imposed infringed the first limb of the totality principle.
(3)The learned sentencing judge took into account irrelevant considerations in the sentencing hearing.
Particulars:
a.His Honour took into account that a box magazine had been located by police secreted in a built-in wardrobe in the unit where the prohibited drugs and cash were found; and
b.His Honour found that the appellant was a person of obvious intellect, with an obvious capacity to charm, and that such qualities may have influenced his referees to write positive things for, and on behalf of, the appellant.
The question of leave to appeal was referred to the hearing of the appeal.
Ground 1: error in s 9AA discount?
Appellant's submissions
The appellant submits that the judge erred in failing to apply a 25% discount to each sentence, pursuant to s 9AA of the Sentencing Act 1995 (WA) (the Act), because:[40]
(1)as his counsel informed the sentencing judge, a clear indication had been given by a judge (not the sentencing judge) in a compulsory case conference (CCC) that, if the appellant pleaded guilty, his pleas of guilty would attract a 25% discount;[41]
(2)the pleas of guilty were entered at the first reasonable opportunity after negotiations had resulted in the discontinuance of counts 3 to 6; and[42]
(3)the State case against the appellant was not overwhelmingly strong.
[40] Appellant's submissions [34].
[41] Appeal ts 2 - 3.
[42] Appeal ts 5.
Further, the appellant submits that it is unclear whether the judge applied the 20% discount to both offences because his Honour specified that he had done so in relation to count 1, but failed to specify that he had done so in relation to count 2.[43]
Respondent's application to adduce additional evidence
[43] Appellant's submissions [35].
In response to ground 1, the respondent applied for leave to adduce additional evidence in the appeal in the form of an affidavit of Ms Katherine Gregory. That affidavit set out aspects of the matter's history, which are anyway evident from the record. The affidavit also set out the deponent's recollection as to what was said at the CCC.
Disposition
Ground 1 is without merit, for the following reasons.
First, s 9AA of the Act in its terms precludes a court from reducing a sentence by 25% unless the offender pleaded guilty, or indicated that they would plead guilty, at the first reasonable opportunity.[44] The appellant did not enter his pleas of guilty to counts 1 and 2 at the first reasonable opportunity. That is readily apparent from the history of the matter, which may be summarised as follows:
[44] Sentencing Act 1995 (WA) s 9AA(4)(b).
(1)The appellant was charged with the offences contained in IND 792 of 2019 on 30 April 2018.[45]
[45] ts 07/12/20 25.
(2)After ten committal mention hearings, the appellant pleaded not guilty on 18 April 2019 and six charges were committed to the District Court.[46]
[46] Respondent's submissions [18].
(3)At a hearing on 26 July 2019, a seven‑day trial was listed to commence on 2 June 2020.[47]
(4)At a hearing on 12 December 2019, an application for bail was adjourned until 24 January 2020.[48]
(5)At a hearing on 23 January 2020, the application for bail was adjourned until 20 February 2020.[49]
(6)At the hearing for the bail application on 20 February 2020, the appellant withdrew his application for bail.[50]
(7)On 22 April 2020, the trial listed to commence on 2 June 2020 was vacated due to the COVID-19 pandemic.[51] A CCC was listed on 3 June 2020 and a trial listing hearing was listed on 19 June 2020.[52]
(8)The CCC was held on 3 June 2020.[53] The appellant asserts that at the CCC, the CCC judge told the appellant that he should get the full 25% discount on his sentence for his pleas of guilty.[54]
(9)The trial listing hearing listed on 19 June 2020 was vacated by consent and a trial listing hearing was listed on 24 July 2020.[55]
(10)On 24 July 2020, a directions hearing was listed on 15 January 2021 to hear the State's application to adduce evidence, and a seven‑day trial was listed to commence on 2 March 2021.[56]
(11)The parties entered into negotiations which resulted in an agreement on 30 November 2020 that the appellant would plead guilty to two of the charges (the charges that form counts 1 and 2 in this appeal), that the State would discontinue the remaining charges, and an agreement on the agreed facts for sentencing.[57]
(12)After negotiations, the matter was listed before the duty judge on 7 December 2020. On 7 December 2020, the appellant pleaded guilty to counts 1 and 2 on the indictment, and a notice of discontinuance was accepted for counts 3 to 6.[58]
[47] ts 26/07/19 3.
[48] ts 12/12/19 7 - 8.
[49] ts 23/01/20 12.
[50] ts 20/02/20 14.
[51] ts 22/04/20 17.
[52] ts 22/04/20 18.
[53] Respondent's submissions [18].
[54] ts 38.
[55] Respondent's submissions [18].
[56] ts 24/07/20 21 - 22.
[57] Respondent's submissions [18].
[58] ts 07/12/20 25.
Section 9AA of the Act directs attention to the timing of the plea of guilty to each individual offence. It was always open to the appellant to plead guilty, or to unconditionally indicate a willingness to plead guilty, in relation to counts 1 and 2. In identifying the first reasonable opportunity for the purposes of s 9AA, the strategic advantage to the appellant in delaying his plea while he pursued negotiations as to other counts does not render the delay reasonable.[59]
[59] See, for example, Savory v The State of Western Australia [2018] WASCA 165 [50]; Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [132].
Secondly, nothing said in a CCC can control the discretion exercised by a sentencing judge. Such conferences are plainly not a part of the trial or sentencing proceedings. Their purpose is only to facilitate confidential, without prejudice discussions with a view to the narrowing of issues.[60] Consequently, what is said at such a conference is not admissible on, or relevant to, the offender's sentencing.
[60] Criminal Procedure Act2004 (WA) s 137(3)(a)(i); District Court of Western Australia Consolidated Practice Directions and Circulars to Practitioners Criminal Jurisdiction 2017, Practice Direction 20.11.
Thirdly, the judge said that the sentences he had pronounced were imposed recognising that the appellant had pleaded guilty to the offences and that, accordingly, he was entitled to a discount.[61] The reference to 'the offences' in the plural demonstrates that his Honour took into account the appellant's plea of guilty to both offences. There is no basis to suppose that the judge failed to apply the 20% discount to both counts 1 and 2.
[61] ts 61.
For these reasons, we would refuse leave to appeal on ground 1.
For the reasons in [48] above, we would dismiss the respondent's application to adduce additional evidence.
Ground 2: error in application of the totality principle?
Appellant's submissions
The appellant contends that the judge failed to properly take into account the term served by the appellant for aggravated burglary in the application of the totality principle.[62] He submits that the combination of the sentence he received for aggravated burglary and the sentences the subject of this appeal results in an overall sentence of 9 years 4 months' imprisonment, which does not bear a proper relationship to the overall criminality of the appellant's offending, viewed in its entirety and taking into account his personal circumstances.[63]
[62] Appellant's submissions [47]; appeal ts 9 - 10.
[63] Appellant's submissions [52]; appeal ts 10.
In oral submissions, the appellant made clear that his argument on ground 2 was of implied error as set out in [52]; he does not allege an express error in failing to take into account, at all, his earlier sentence.[64]
The totality principle and multiple sentencing hearings
[64] Appeal ts 11 - 12.
The totality principle has been outlined in many cases. It was summarised by McLure JA, with whom Steytler P and Miller J agreed, in Roffey v The State of Western Australia:[65]
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
[65] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
It is well established that, in some circumstances, an already completed sentence may properly be taken into account in applying the totality principle.[66]
[66] Labrook v The State of Western Australia [2016] WASCA 127 [34] ‑ [38]; LYN v The State of Western Australia [2019] WASCA 45 [13].
One category of such a situation is where multiple offences are committed and, subsequent to the commission of all of the offences, the offender is sentenced for some of them, and, following the completion of that sentence, is sentenced for some or all of the other offences. That is illustrated by cases such as Mill v The Queen,[67] Barnes v The State of Western Australia[68] and LYN v The State of Western Australia.[69]
[67] Mill v The Queen (1988) 166 CLR 59.
[68] Barnes v The State of Western Australia [2004] WASCA 258.
[69] LYN.
That category is not exhaustive of the circumstances in which the application of the totality principle requires or permits account to be taken of a sentence being served - in that the offender was on parole - at the time of the offending, but which was completed at the time of sentence. Outside that category, whether, in what manner, and to what extent that prior sentence should be taken into account depends upon all the circumstances, including the circumstances of the two sets of offences and the resulting sentences.
Disposition
In the present case, the appellant was still serving his sentence, albeit on parole, for the offence of aggravated burglary at the time he committed the offences the subject of this appeal. At the time he committed the present offences, he had been on parole for approximately 7 months and had just under 3 months left to serve for the offence of aggravated burglary.
As observed in Roffey, a rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. There may also be assumed to be a lesser demand for personal deterrence.[70] As this court observed in The State of Western Australia v Doodson,[71] the commission of further offences while on parole may negate any assumption that rehabilitation has been achieved. Correspondingly, where, as here, an offence is committed towards the end of a sentence that is in the process of being served, the partial service of that sentence may do little to reduce the demand for retribution for the offender's subsequent offending and the need for personal deterrence.[72] In all the circumstances, considerations of totality arising from the appellant's sentence for his aggravated burglary offence had a very limited, if any, role in moderating the sentence to be imposed for the present offending.
[70] The State of Western Australia v Doodson [2021] WASCA 148 [50].
[71] Doodson [50].
[72] Doodson [50].
Bearing in mind:
(i)the appellant's essential role in what the judge found, without challenge on the appeal, to be a prolonged drug‑dealing enterprise - see [20], [22] and [37] above;
(ii)the weight and purity of the methylamphetamine; and
(iii)the fact that the appellant committed the offence while on parole,
the appellant's sentence on count 1 was well within the range of sentences available on a proper exercise of the sentencing discretion. A materially higher sentence could have been imposed without revealing error.
The same is true, in our opinion, of the sentence imposed on count 2, and the total effective sentence on counts 1 and 2 as a whole.
In our opinion, the appellant has fallen well short of demonstrating that, when proper regard is had to the sentence which he was serving at the time he committed these offences, the total effective sentence imposed by the sentencing judge infringed the first limb of the totality principle.
For these reasons, we would refuse leave to appeal on ground 2.
Ground 3: did the judge take into account irrelevant considerations?
Appellant's submissions
The appellant contends that, in sentencing him, the judge took into account two irrelevant considerations.
First, by particular (a) of ground 3, he contends that the judge took into account that a box magazine had been located by police secreted in a built‑in wardrobe in the apartment where the police found the prohibited drugs and cash.
Echoing a submission made to the sentencing judge,[73] the appellant submits that, by referring to the firearms, ammunition and prohibited weapons in his sentencing remarks, the sentencing judge took into account irrelevant considerations.[74] The appellant points to his submissions to the sentencing judge to the effect that those things 'had nothing to do with the appellant'.[75]
[73] ts 42.
[74] Appellant's submissions [56]; appeal ts 12.
[75] Appellant's submissions [55]; appeal ts 12.
Secondly, by particular (b) of ground 3, the appellant contends that the judge took into account an irrelevant consideration in finding that the appellant was a person of obvious intellect with the capacity to charm and that such qualities may have influenced his referees to write positively about the appellant. He submits that, by forming this adverse view, the sentencing judge erred in not affording any, or any appropriate, weight to the appellant's references in determining the sentence to be imposed.[76]
Disposition
[76] Appellant's submissions [60]; appeal ts 12.
In our view, there is no merit in either of these complaints.
As already noted, the sentencing judge observed that the appellant was not being sentenced for offences concerning the firearms, ammunition and weapons. However, the fact that the criminal enterprise of which the appellant was a part was in possession of those items formed part of the circumstances relevant to the appellant's offending.[77] The judge did not err in so finding. The nature, scale and characteristics of the criminal enterprise of which the appellant's offending formed a part was a matter relevant to the judge's evaluation of the seriousness of the appellant's offences.
[77] ts 55.
As to particular (b), considering the judge's sentencing remarks as a whole, it cannot be concluded that the judge discounted the weight to be given to the appellant's character references on account of the appellant's intellect and charm. The judge properly recognised that matters personal to the appellant carried less weight than might otherwise be the case given the serious nature of his offending. Nevertheless, it is evident from the sentencing remarks that his Honour afforded not insubstantial mitigating weight to the favourable references, to which the judge referred on several occasions.[78] Thus, the judge did not take into account in any material way the alleged irrelevant consideration, namely the appellant's capacity to charm others.
[78] ts 56, 57, 60.
For these reasons, we would refuse leave to appeal on ground 3.
Conclusion
For the above reasons, we would make the following orders:
1.Leave to appeal on each of grounds 1 to 3 is refused.
2.The respondent's application to adduce additional evidence is dismissed.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
25 MARCH 2022
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