Few v The State of Western Australia
[2009] WASCA 201
•13 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FEW -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 201
CORAM: OWEN JA
McLURE JA
PULLIN JA
HEARD: 7 OCTOBER 2009
DELIVERED : 7 OCTOBER 2009
PUBLISHED : 13 NOVEMBER 2009
FILE NO/S: CACR 21 of 2009
BETWEEN: FEW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 1116 of 2008
Catchwords:
Criminal law - Sentence - Undertaking to give assistance to law enforcement authorities - No reduction in sentence - Miscarriage of justice - Requirement for compliance with s8(5) Sentencing Act 1995 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 40
Sentencing Act 1995 (WA), s 8(5), s 37
Result:
Appeal allowed
Category: D
Representation:
Counsel:
Appellant: Mr M R Hall
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Hall & Hall Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bazzi v The State of Western Australia [2007] WASCA 195
Ma v The Queen [2001] WASCA 325
Scook v The Queen [2008] WASCA 114
OWEN & PULLIN JJA: This is an appeal against sentence. At the conclusion of the hearing the appeal was allowed, the sentences set aside and new sentences imposed with reasons to follow. These are our reasons.
The appellant was convicted of one count of inciting a child under the age of 13 years to indecently deal with a co‑offender, and one count of unlawful carnal knowledge of a child under the age of 13 years. Upon conviction the appellant was sentenced to 15 months' immediate imprisonment on each count, to be served cumulatively, with parole eligibility. The result was a total effective sentence of 2 1/2 years' imprisonment with eligibility for parole.
Facts
The child complainant was the daughter of some close friends of the appellant and her co‑offender husband. The complainant stayed at the offenders' house in January 1991, during school holidays for about two weeks. The complainant was then 12 years old. During her stay there was an incident in which the appellant, at the request of her husband, performed oral sex upon him in front of the complainant. The complainant was then induced by the appellant's husband to do likewise. The complainant complied. The appellant watched. The first count related to the appellant's participation in these activities.
The incident which resulted in the second count occurred a couple of days after this. The appellant at the request of her husband, engaged in sexual intercourse in the presence of the complainant. The offender's husband then induced the complainant to allow him to have sexual intercourse with her. The appellant watched. The husband stopped when the complainant tensed up. The complainant experienced vaginal bleeding. The bleeding continued for approximately three weeks after the offence. The bleeding was due to the act of penetration and not due to menstruation because the complainant did not begin menstruating until about a year later. The co‑offender husband told the complainant not to tell anyone or she would get into trouble.
Many years later, in March 2008, the appellant was interviewed by detectives in relation to these offences and claimed she could not remember any such offences occurring. The appellant indicated that she would be pleading not guilty to the charges and arrangements were made for a trial. However, on 2 September 2008 and 4 September 2008 the appellant provided two statements to the police describing the acts committed by her husband and admitting her involvement in the offences.
Sometime before the appellant pleaded guilty, there were discussions between the State and the accused in which the State asked the appellant to give evidence against her husband. On 21 November 2008, under the 'fast track' system the appellant was arraigned and pleaded guilty to the offences. The transcript of the sentencing submissions made by both counsel before the appellant was sentenced reveals the following statements and exchanges (sentencing ts 13 ‑ 14):
MR HALL (Defence Counsel): She's made full admissions. She's given a statement, she's agreed to give evidence against Mr W, who has denied the offences and she's given a statement detailing her involvement and his involvement and agreed to give evidence against him (sentencing ts 9). …
MS MARKHAM (State Counsel): I did refer to the video record of interview that was conducted earlier this year and you're already aware that the offender claimed to have no knowledge at that time, but it's accepted, yes, she has made some statements to the police and has indicated that she's going to give evidence against DW but, of course that ---
Keen DCJ: So the State accepts what Mr Hall [defence counsel] has said about that, that she has agreed to give evidence the husband and she has given a statement.
MS MARKHAM: Well, she's given a statement.
KEEN DCJ: Yes
MS MARKHAM: That hasn't occurred yet so that's as far as I can take it.
KEEN DCJ: Yes, but anyway, as far as the State is concerned, she will cooperate as far as you know.
MS MARKHAM: That's the indication so far.
Sentencing
In his sentencing remarks on 21 November 2008, the learned sentencing judge noted the appellant's earlier record. He said he would give credit for the offender's plea of guilty, took into account the length of time that had elapsed between the commission of the offences and the imposition of sentence, applied the transitional provisions, and correctly applied the totality principle. In relation to the appellant's indication of cooperation with the State, his Honour said that 'There is also a suggestion that you will cooperate with the authorities in respect of proceedings against your husband. Whether that occurs or not I don't know': (sentencing ts 30). No reference was made to s 8(5) of the Sentencing Act 1995 (WA) and the sentencing judge did not say that the sentence was being reduced because of any undertaking to assist law enforcement authorities.
The s 37 application
On 11 December 2008 an application by the State for correction of sentence pursuant to s 37 of the Sentencing Act 1995 was heard. The written application set out the reason for the application in the following terms, that 'having apparently reduced the sentence imposed because of the offender's undertaking to assist authorities, the Court did not state the extent of the reduction as required by s 8(5) Sentencing Act 1995'.
During the s 37 application hearing, counsel for the appellant said:
MR HALL: … perhaps your Honour, the State and the defence didn't express to your Honour that behind the scenes, there had been discussions; that the State had specifically asked, 'Will she give evidence against her husband? Will she cooperate?' and it was assumed by the defence that it would be a matter taken into account in relation to sentencing.
On that basis, Ms W agreed to provide a statement detailing her actions and her husband's actions and agreed to give evidence, and she still instructs that that is her position. But my understanding was, from your sentence, there was no discount given.
The sentencing judge agreed that no reduction was given for the fact that the appellant had 'agreed to give evidence' (ts 5).
The learned sentencing judge stated that, in his view (application ts 6):
What I've done now is I've done a complete sentence. I've completed the sentencing exercise on the materials that were before me. I'm now being asked to engage upon a sentencing exercise again on essentially some fresh material. The question is whether or not I can, in fact, do that and whether I should do that.
Both counsel were asked for their views as to whether the judge had the power to do this and whether he should proceed to do so. Counsel for the defence proffered the tentative view that he 'would have thought your Honour could re-sentence … I would have thought your Honour has the power to do that' (application ts 6). Counsel for the State expressed no view as to this, advising instead that they would need to consult first with the file manager at the Office of the DPP. It was suggested that, for that purpose, an adjournment should be granted. The hearing was adjourned but before this occurred, the sentencing judge said (application ts 7):
If I sentence somebody in a manner that is not in accordance with the Act, I can recall the order. Now, as I've said, what I've done, I consider is in accordance with the Act because I've taken the view that, well, it hasn't been elevated as high as an undertaking. It's just a mere suggestion, so I couldn't make the appropriate reductions and I haven't made any reduction.
So the question arises whether or not I, in fact, even have power to re-visit this or whether or not my function is complete – functus officio in other words.
The matter was then adjourned to a date to be fixed. The judge requested that 'some written submissions' prior to such a hearing regarding 'one, that there is a relevant undertaking in place; and secondly, … that I do, in fact, have the power' (application ts 6 and 8) be submitted before the matter came before him again. The State was to communicate with counsel for the defence and bring the matter back on at a mutually agreeable time.
In due course, the State wrote to the appellant's counsel, concluding that because of his Honour's understanding of the facts at the time of sentencing, the fact that the omission was a deliberate (rather than accidental) one, and that the judge was now functus officio in the matter, the only mechanism by which the appellant could now receive a reduction on sentence would be by way of lodging an appeal against sentence. The s 37 application was never relisted or determined and no issue arises in this appeal as to whether the sentencing judge was correct or not in suggesting he may have been functus officio.
The appeal and submissions made
The single ground of appeal in this matter is that there was an error of law (or a miscarriage of justice) because the sentencing judge failed to reduce the sentence imposed to reflect the Appellant's undertaking to assist law enforcement authorities.
The appellant submitted that, after reducing the appellant's sentence for her plea of guilty, the learned sentencing judge imposed a sentence but failed to appreciate that the appellant had given an undertaking to give evidence against her co-accused. It was in effect submitted that if his Honour had done so this was a case where a reduction was plainly warranted. The appellant seeks an appropriate reduction in sentence to reflect this.
The State says that the appellant had been 'full and frank with the authorities prior to her sentencing' and admits that the appellant did (before pleading guilty) give an undertaking to assist the law enforcement authorities by giving evidence against her husband in accordance with her statements. The State agrees with the appellant that the undertaking was one which warranted a reduction in sentence.
The law
The Sentencing Act 1995 (WA) s 8 provides that:
(4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
(5)If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.
Section 8(5) only imposes a duty on the court to state the fact that a sentence has been reduced and the extent of the reduction in circumstances where an offender undertakes to assist law enforcement authorities and the court in fact reduces the sentence. It is obvious that a court is unable to comply with s 8(5) if the court is not informed about the existence of the undertaking.
The ordinary meaning of the word 'undertaking' is 'a pledge or a promise': see Oxford English Dictionary and Macquarie Dictionary. A 'promise' is a declaration made to another person with respect to the assurance that one will do, not do, give or not give something; or an express assurance on which expectation is to be based: Macquarie Dictionary.
It is common ground that the appellant gave a statement to the prosecuting authorities which provided evidence of the husband's offences against the complainant. However, the sentencing judge stated in the s 37 application, that he had not been told that an undertaking had been given and that he understood that a 'mere suggestion' had been made that the appellant would assist. The ground of appeal implicitly challenges his Honour's statement that he had not been told. What defence counsel had said was that the appellant had 'agreed' to give evidence against her husband, not that she had 'undertaken' to do so.
Fortunately, this case will not turn on an argument about semantics and about whether there is a difference between the word 'undertaking' and 'agreed'. This is because further evidence should be received pursuant to s 40 of the Criminal Appeals Act 2004 (WA) that the appellant had indeed undertaken to assist the prosecuting authorities by giving evidence in accordance with the statement she gave about the offences committed by her husband. The evidence is in the form of an agreed admission to that effect. Thus, if there is a difference between the word 'agreed' and the word 'undertaking' and an agreement is something less than an undertaking, then the 'new' evidence which has been received, makes it clear that there has been an undertaking. There is no doubt that such an undertaking was a substantial mitigating factor which warranted a reduction of sentence; as to which see Bazzi v The State of Western Australia [2007] WASCA 195 [25].
The principles stating whether a reduction of sentence should be given when an undertaking has been given were stated by Roberts‑Smith J in Ma v The Queen [2001] WASCA 325 where his Honour said:
1.A substantial discount must be given to an offender who gives useful information or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so.
2.Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.
3.The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4.The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount [118].
The undertaking to give evidence was an undertaking of great value to the prosecuting authorities because without the appellant's evidence, it was possible that the complainant and the co‑offender husband would have been pitted against each other rather than the co‑offender husband facing the evidence of both the complainant and his co‑accused. The undertaking also indicated genuine contrition on the part of the appellant. As a result, a miscarriage of justice occurred because the appellant's undertaking did not result in any reduction of sentence. As a result, the appeal was upheld and the sentences set aside.
The court was informed that the appellant gave evidence during the trial of her husband in accordance with her undertaking and that the husband was convicted. Taking into account all of the factors referred to above, the influence of the appellant's husband, the appellant's previous record of sex offences she and her husband committed against her children and stepchildren and the fact that the appellant had served a long prison term in relation to the latter offences, the appellant was resentenced by this court to 12 months' imprisonment on each count. The sentence on the second count is to be served cumulatively on the sentence on the first count. The sentence on the first count was ordered to commence on 21 November 2008. The appellant was made eligible for parole.
The sentences of 15 months on each of the counts were appropriate sentences if there had been no undertaking to cooperate with the prosecuting authorities. In view of the undertaking to assist the prosecuting authorities, the court was satisfied that there should be a 20% reduction which is how the sentences of 12 months were arrived at. In compliance with s 8(5) of the Sentencing Act 1995, this was announced in open court when the appeal was allowed.
There are lessons in this case for the future. First, if an offender claims that he or she has given an undertaking to assist law enforcement authorities, the solicitor for the offender or counsel for the offender should confirm with the DPP that such an undertaking has been given. A description of the nature of the assistance should be agreed between the parties. If the information about the undertaking should be kept confidential (which will often be the case), then the precise terms of the undertaking and the assistance to be given can be set out in a document or letter which can be tendered to the court and made the subject of a confidentiality order. Secondly, if an undertaking has been given, the word 'undertaking' should be used rather than some other word which might lead to argument about whether an undertaking was given or not. If the sentencing judge is provided with information which does not make it unambiguously clear that there has been an undertaking, the sentencing judge should clarify the situation with the parties before sentencing. If the undertaking results in a reduction of sentence, then s 8(5) of the Sentencing Act 1995 must be complied with.
McLURE JA: These are my reasons for joining in the orders made by the court on 7 October 2009. The facts are set out in the reasons of Owen and Pullin JJA.
In short, the appellant was convicted on a fast‑track plea of guilty of one count of inciting a child under the age of 13 years to indecently deal with a co‑offender and one count of unlawful carnal knowledge of the same child. The appellant was sentenced to 15 months' imprisonment on each count to be served cumulatively resulting in a total effective sentence of 2 years and 6 months' imprisonment.
The offences were committed in early 1991. The appellant was convicted of and sentenced for the offences on 21 November 2008, over 17 years after they were committed. The appellant's co‑offender, her husband, pleaded not guilty to charges based on the same conduct.
In May 2001, the appellant was sentenced to 8 years' imprisonment for a number of counts of sexual offending against her children. Her co‑offender husband was sentenced to 12 years for the same offences. Whilst in prison (and after) the appellant underwent psychological and psychiatric counselling. She was released to, and successfully completed, parole. It was accepted by both sentencing judges that the appellant had been dominated by her co‑offender husband. At the time of sentencing in 2008, the appellant was in the process of divorcing her husband and had become heavily involved in a Christian church. The sentencing judge accepted that she had made progress towards rehabilitation. The mitigatory effect of rehabilitation in the context of a long delay between the commission of an offence and conviction is discussed in Scook v The Queen [2008] WASCA 114.
Further, at the time of sentencing in 2008, the appellant had cooperated with authorities by providing statements to police concerning her co‑offender husband's involvement in the offences for which she was being sentenced and had agreed to give evidence at his trial. That information was conveyed to the sentencing judge.
There was only one ground of appeal being that the sentencing judge erred in failing to reduce the sentence to reflect the appellant's undertaking to assist law enforcement authorities by giving evidence against her co‑offender husband. Section 8(5) of the Sentencing Act 1995 (WA) provides that if a court reduces a sentence it would otherwise have imposed on an offender because the offender undertakes to assist law enforcement authorities, the court must state that fact and the extent of the reduction in open court. No such statement was made by the sentencing judge. It subsequently emerged that the sentencing judge had not reduced the sentence because it was not his understanding that the appellant had provided an 'undertaking' to cooperate.
The state's position at the hearing of the appeal was that the appellant had provided an undertaking to cooperate and that that information had, in effect, been communicated to the sentencing judge who erred in failing to take it into account in mitigation. The state's concession was correctly made. The error enlivened this court's jurisdiction to intervene and re‑sentence. The court was informed that the appellant had complied with her undertaking to give evidence in the trial of her co‑offender husband. Moreover, the state accepted that the individual and total sentences imposed by the sentencing judge appropriately and proportionately reflected all relevant sentencing factors save for the appellant's undertaking to cooperate. I agree. Thus, it was appropriate to reduce the individual sentences to reflect the appellant's cooperation with authorities.