Fisher v Moffat - [2019] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FISHER -v- MOFFAT [2019] WASC 39
CORAM:   ACTING JUSTICE STRK
HEARD:   18 JANUARY 2019
DELIVERED          :   18 JANUARY 2019
PUBLISHED           :   19 FEBRUARY 2019
FILE NO/S:   SJA 1140 of 2018
BETWEEN:   SHARNA LEE FISHER
Appellant

AND

SARAH MOFFAT
Respondent

ON APPEAL FROM:
For File No:   SJA 1140 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P G MALONE
File Number            :   FR 8487 of 2018

Catchwords:

Criminal law - Appeal against conviction entered after a plea of guilty - Miscarriage of justice - Improper inducement - Whether the appellant misapprehended the effect of the guilty plea once made

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA), s 401(2)(ba)

Result:

Leave to appeal granted on appeal ground 1
Appeal allowed

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

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

AD v The State of Western Australia [No 2] [2007] WASCA 207
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Borsa v The Queen [2003] WASCA 254
De Bono v Southam [2018] WASCA 218
Donnelly v Richardson [2017] WASC 194
Groom v Police [No 2] [2013] SASC 50; (2013) 115 SASR 446
Grover v Scott [2010] WASCA 164
Guariglia v The Queen [2010] VSCA 343
Lancaster v The Queen [1989] WAR 83
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Liberti v The Queen (1991) 55 A Crim R 120
Moukachar v Police [2013] SASC 71
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
R v Boyd [2000] NSWCCA 110
R v Guariglia [2011] HCA Trans 162
R v Holden [2009] VSCA 254
R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233
R v Pain [2016] VSC 532
R v Pinhassovitch (Unreported, VSCA, 7 February 1994)
R v Pugh [2005] SASC 427
R v Turner [1970] 2 QB 321
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v Baker [2015] WASC 465
Smith v Rowe [2012] WASC 215
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Taylor v Rogers [2013] WASC 391
Vella v The State of Western Australia [2006] WASCA 129
Wimbridge v The State of Western Australia [2009] WASCA 196
Windie v The State of Western Australia [2012] WASCA 61
Zocchi v The Queen [2000] FCA 1163; (2000) 116 A Crim R 245

ACTING JUSTICE STRK:

(This judgment was delivered extemporaneously on 18 January 2019 and has been edited from the transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)

Introduction

This is an appeal against conviction in the Magistrates Court of Western Australia. The appellant pleaded guilty to nine charges in Fremantle Magistrates Court on 3 August 2018. On 8 October 2018, the appellant was sentenced to a total effective sentence of immediate imprisonment for 12 months with respect to 15 offences, with eligibility for parole.
The appellant seeks leave to appeal her conviction for only one charge, FR 8487 of 2018, the head charge of aggravated burglary with the commission of an offence contrary to the Criminal Code1913 (WA) s 401(2)(ba).
The appellant presses two separate grounds of appeal.[1] The first ground is as follows:
Guilty plea only entered because magistrate would only allow bail if plea entered for all charges. Unfair influence to enter a plea. Needed bail to be with dying brother.
[1] At the hearing of the appeal, an order was made to include the second ground of appeal, without objection on behalf of the respondent.
The second ground of appeal concerns the finality of the plea of guilty that was entered in relation to the head charge of aggravated burglary. The second ground is as follows:
I was under the assumption that since it wasn't time to plea, that I would be able to change my plea of guilty to not guilty when it came to pleading at possibly my next court date.
In summary, the primary basis of the appeal is that the appellant was induced by the learned magistrate to plead guilty to the head charge. The alternative ground of appeal is that the appellant mistakenly believed that she would be able to alter her plea as to the head charge on her next appearance.
The respondent opposes the appeal. The appellant and the respondent rely upon written outlines of submissions filed on 2 January 2019 and 14 January 2019, respectively. I also have regard to the transcript of hearing before the magistrate on 3 August 2018, when the plea of guilty the subject of the appeal was entered.

Extension of time

An appeal against the decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision, unless this court orders otherwise. However, if a person is sentenced on a later date that the date on which the person is convicted of the offence, the time for appeal runs from the date of sentencing.[2]
[2] Criminal Appeals Act 2004 (WA) s 10(3) and (4).
The appeal notice was filed on 4 December 2018, about 29 days out of time. The appellant did not file an affidavit in support of the application for an extension of time. Neither the appellant's nor the respondent's written outline of submissions addressed the fact that this appeal was commenced out of time.
This court will grant an extension of time to appeal if it is in the interests of justice to do so.[3] Where there has been a lengthy delay, the appellant must establish exceptional circumstances, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[4] Merely showing that there are reasonable prospects of the appeal succeeding is not sufficient.[5] Something more has to be shown, otherwise there would be no practical consequences ever flowing from the failure to appeal within time.[6] The classes of exceptional circumstances are not closed, and a compelling explanation for delay would generally constitute exceptional circumstances.[7]
[3] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA); Zocchi v The Queen [2000] FCA 1163; (2000) 116 A Crim R 245 [4] (Burchett, Higgins & Weinberg JJ).
[4] Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); Wimbridge [19] ‑ [20] (Wheeler JA & Miller JA concurring), [42] (Buss JA); AD v The State of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA concurring); Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA, Owen & Miller JJA concurring).
[5] Wimbridge [21] ‑ [22] (Wheeler JA & Miller JA concurring); Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [102] ‑ [114] (Wheeler J); Grover v Scott [2010] WASCA 164 [16] ‑ [17] (Jenkins J, McLure P & Buss JA concurring).
[6] Wimbridge [21], citing Bardsley [113] ‑ [114] (Wheeler J).
[7] Wimbridge [20] (Wheeler JA & Miller JA concurring), [48] (Buss JA); Donnelly v Richardson [2017] WASC 194 [44] (Fiannaca J).
Counsel for the respondent indicated that the extension of time was not opposed. Although no affidavit material was filed on behalf of the appellant, the court may take into account factors which gave rise to the delay.
The court may have regard to factors which may include that the appellant was unrepresented and was a layperson, although in the case of Grover v Scott the court did not find, in all of the circumstances, those factors alone to be sufficient to establish exceptional circumstances.[8]
[8] Grover v Scott [18] (Jenkins JA, McLure P & Buss JA concurring).
In this case, the appellant was not represented in the appeal. Further, she had been remanded in custody at all relevant times leading up to commencement of the appeal, bail having been granted by Hall J on 10 December 2018.
The respondent did not oppose the grant of an extension of time and there was no evidence of any prejudice to the respondent if an extension of time was granted. The delay was not particularly lengthy.
However, before substantively determining whether an extension of time should be granted, the merits of the appeal should be considered.[9]
[9] Donnelly v Richardson [46] (Fiannaca J).

Leave to appeal

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), and the appellant requires leave to appeal on each ground.[10] The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[11] That means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[12] If leave to appeal is refused for both grounds, the appeal is taken to be dismissed.[13]
[10] Criminal Appeals Act s 9(1).
[11] Criminal Appeals Act s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
[13] Criminal Appeals Act s 9(3).
It is appropriate that the question of extension of time to appeal and the application for leave to appeal be heard together with the appeal.[14]
[14] Samuels v The State of Western Australia [55] ‑ [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

The appeal

The Criminal Appeals Act s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction.
Pursuant to the Criminal Appeals Act s 8(1)(b), such an appeal may be made on the ground that there has been a miscarriage of justice.
The Criminal Appeals Act s 8(2) expressly provides that an appeal may be instituted against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
The well-established principles concerning an appeal against conviction entered after a plea of guilty were recently restated by the Court of Appeal in Lawson v The State of Western Australia [No 2]:[15]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
[15] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19] (Buss P, Mazza and Beech JJA), cited in De Bono v Southam [2018] WASCA 218 [18] (Buss P, Mazza & Beech JJA).
The circumstances in which a conviction based on a plea of guilty will be set aside were explained in Vella v The State of Western Australia.[16] Steytler P (Wheeler & Buss JJA concurring) made the following observation at [26]:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like. (Citations omitted.)
[16] Vella v The State of Western Australia [2006] WASCA 129.
However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed.[17]
[17] Vella v The State of Western Australia [26]; De Bono v Southam [18] (Buss P, Mazza and Beech JJA); Lawson v The State of Western Australia [No 2] [19].
It is well settled that once a plea of guilty is entered and a conviction has been recorded, the approach to an application to change the plea is one of 'caution bordering upon circumspection'.[18]
[18] Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P); Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [174] (Mazza JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J); Windie v The State of Western Australia [2012] WASCA 61 [31] (Mazza JA); Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] ‑ [104] (Hall J).
The ultimate question to be determined is whether the appellant has established, on the balance of probabilities, and in all of the circumstances, that a miscarriage of justice has occurred.[19]
[19] Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154 [60] (Steytler J).

Ground 1 - Improper inducement

The appellant contends that she was induced to plead guilty to the head charge of aggravated burglary with the commission of an offence contrary to the Criminal Code s 401(2)(ba).
As noted above, it is recognised that a plea of guilty may be set aside owing to a miscarriage of justice where the plea has been obtained by improper inducement. It is also well established that the use of improper means to persuade an accused to plead guilty hinders or prevents the exercise of a free choice by the accused in deciding upon the plea.[20]

Was the appellant induced to enter a plea of guilty?

[20] Smith v Baker [2015] WASC 465 [42] (Pritchard J).

The first issue to be determined is whether, on the balance of probabilities, the appellant was, in fact, induced to enter a plea of guilty because of the alleged inducing conduct.
The appellant's position is succinctly put. She says that she was unfairly influenced by the magistrate to enter the plea on the grounds that she would be granted bail.[21] Various comments and observations made by the learned magistrate on 3 August 2018 are said to constitute inducing conduct.
[21] Outline of submissions filed by the appellant on 2 January 2019 par 1.
For the reasons set out below, I am satisfied that the appellant was induced. I have given careful consideration to the transcript of 3 August 2018, from which I understand as follows.
At the hearing on 3 August 2018, before the appellant entered the plea of guilty, the appellant was represented. In the transcript, counsel was identified as Mr Cranley. I understand that he was a duty lawyer. The appellant appeared by video link from Melaleuca Remand and Reintegration Facility.
The appellant appeared before the court on 3 August 2018 for the purpose of a bail application, which had been prepared and filed by the appellant without the benefit of representation.[22] A discussion took place as between the magistrate and counsel in the context of the magistrate giving consideration to whether bail should be granted pending a trial of the charges.
[22] ts 2 (3 August 2018).
The transcript reveals that on 18 July 2018, the magistrate had refused an application for bail, which application had been made by the appellant without legal representation. The magistrate had on that previous occasion made a note in the following terms: 'High risk of reoffending. On a community-based order which was previously breached and allowed to continue'.[23]
[23] ts 3 (3 August 2018).
The support extended by the accused's brother, who was described as being terminally ill, appeared to be the change in circumstances relied upon to ground the second bail application,[24] together with the appellant having secured the assistance of duty counsel in the making of the second bail application.[25]
[24] ts 3 (3 August 2018).
[25] ts 4 (3 August 2018).
The magistrate noted that the appellant had not indicated pleas to the various charges,[26] and then made remarks which suggested that he had formed a pessimistic view as to the prospects of the appellant's second bail application.
[26] ts 4 (3 August 2018).
Counsel for the appellant made a number of observations in relation to the appellant's associations and living arrangements, and in relation to the conditions that might deal with the risks identified by the magistrate.[27] It was in this context that the magistrate made the following observation:
HIS HONOUR: But can I just say this, and I don't mind you reporting that it's a somewhat bizarre proposition, because I would understand if you did respond that way, but when I was musing to myself about the contemplation of the Ms Fisher's application, I thought, well, it might be different if Ms Fisher says, 'Okay. Yes, I'm pleading guilty to everything, and now I'm really throwing myself on the mercy of the court because I want to go out and be with my brother who's gravely ill, and I know that when I get back from that I'm likely to go to prison, or, you know, the best I can hope for is a suspended term, or something like that.'
[27] ts 6 (3 August 2018).
Prior to his Honour making the observation reproduced above, there had been no suggestion that the appellant was considering pleading guilty to any of the charges. The magistrate then went on to state:
HIS HONOUR: That way, the court would know that she's absolutely admitting to everything, in as much trouble as she can possibly be, staring down the barrels of imprisonment and just with the hope that it might be suspended and she's going out to be compassionate with the brother, or whatever, and the moment that she steps off the line be scooped up, and that will be goodnight to the sort of well-meaning idea about caring for the brother, etcetera. But I don't like it at all - I'm not trying to force Ms Fisher into pleading and I'm sorry if I - (interruption) - and I know it might cause you, as an adviser, some discomfort to be saying, 'Look, I'm having to fast-track advice', and all those sorts of things. I understand that, and I wouldn't be insisting on anything, of course, and shouldn't. But, yes, I guess I just feel that there would be more the compassionate element if Ms Fisher said, 'Yes, you've got me. I'm pleading guilty to everything, but now you can be incredibly, spectacularly compassionate, even in the face of imprisonment by letting me go out there for, you know, the time I've got left to make amends with my brother, and life - and all the rest of it, and then I'll do my time, and - if it's unsuspended, obviously - 'and then, you know, get on with the rest of my life'. So that's a thought, …
Counsel responded to the magistrate's observations, noting that '[if] that's the position of your Honour', then there appeared to be two options available to the appellant; and suggesting that Legal Aid would be able to take instructions from the appellant if the matter was remanded for a week.[28]
[28] ts 7 (3 August 2018).
The magistrate then made a further observation which suggested that he was unlikely to immediately release the appellant on bail, without a plea of guilty having been entered.[29]
[29] ts 7 - 8 (3 August 2018).
As to the question of whether the matter might be remanded for a week to ensure that the appellant secured legal advice, the appellant stated that she did not want to do that, and the following exchange took place:
HIS HONOUR:   Yes, which is to say, 'Well, I just want to plead guilty to everything'.
ACCUSED:   Yes, I'll do that. I'll plead guilty to everything. And I'll come back and I'll do my time.
HIS HONOUR:   Because your price for that will be Mr Cranley will probably withdraw, will you, or …
CRANLEY, MR:   I would, sir, yes.
HIS HONOUR:   Yes. Because he's not in a position to advise you and he's very sensibly suggesting that you should give him, or Legal Aid an opportunity to advise you ...
ACCUSED: No, I would rather be compassionate.
HIS HONOUR:   ... because, I assure you, you're not going to get away with some claim that this court is forcing you to plead guilty because it's not.
ACCUSED:   No. I'm not saying that you are, your Honour. I will plead guilty.
HIS HONOUR:   Okay. And you're quite – I mean, you know, sometimes ‑ ‑ ‑
ACCUSED:   Pardon? I know what I need to do, your Honour. When I get out there, I'm not going to forget about the charges. I know I've done wrong. I just want to be out there with my brother.

Mr Cranley then withdrew and a plea of guilty was entered to each of the charges, including the charge the subject of this appeal.
On the balance of probabilities, I find that the appellant was in fact induced to enter into the plea of guilty for the charge the subject of this appeal. In so doing, I have weighed in the balance the following matters.
First, the appellant appeared before the court on 3 August 2018 for the hearing of her application for bail. The charges were not before the magistrate for the purpose of the appellant entering pleas.
Secondly, prior to the hearing of the second bail application, the appellant had not indicated her plea to any of the charges.
Thirdly, the possibility that the appellant might plead guilty to the charges (which included FR 8487 of 2018), was raised by the magistrate in the course of hearing the bail application, and not by counsel for the appellant.
Fourthly, the observations made by the magistrate made it plain that the applicant's second bail application was unlikely to succeed if pressed on 3 August 2018.
Fifthly, the observations made by the magistrate made it plain that an application for bail might be more favourably considered if the appellant pleaded guilty to all of the charges.
Sixthly, the appellant's language suggests that she was in fact listening carefully to and influenced by the words of the magistrate. The transcript reveals a tendency on the part of the appellant to adopt the language of the magistrate as her own.[30]
[30] ts 8 - 9 (3 August 2018).
Seventhly, the appellant appeared to be motivated to plead guilty, after the option was raised by the magistrate, to avail herself of better prospects of securing bail. The appellant's statements suggest that she would do whatever it took to be with her brother.
Eighthly, while the appellant was represented at the hearing on 3 August 2018, duty counsel withdrew when the appellant indicated that she would plead guilty. The plea was entered by an unrepresented accused, without the benefit of legal advice.
I have also weighed in the balance the fact that after the appellant indicated that she did not want to remand the matter for a week to get legal advice, the magistrate responded as follows.[31]
HIS HONOUR: Yes, which is to say, 'Well, I just want to plead guilty to everything'.
[31] ts 8 (3 August 2018).
I note that the alternative way forward was not also raised at that juncture, that is, the magistrate's comment suggested that it was not open for that the appellant to press for the second bail application, then before the court, to be immediately determined. The omission of this alternative reinforced the message that the applicant's second bail application was unlikely to succeed if pressed on 3 August 2018 without pleas of guilty.
On the balance of probabilities, I find that the combination of all of the matters identified above did hinder the exercise of a free choice by the accused, and that she, in fact, was induced to enter a plea of guilty for charge FR 8487 of 2018.
I note that in coming to this conclusion, I also weighed in the balance the acknowledgements made by the appellant that she had done wrong; that the appellant made statements by which she appeared to recognise the seriousness of her actions; and that she confirmed her intention to 'walk the walk' by complying with any bail conditions. The appellant repeated her intention to plead guilty despite the magistrate's assurances that the court was not forcing the appellant to make a plea. Further, I have had regard to the fact that the appellant did plead guilty to nine charges, only one of which is the subject of appeal.

Was the conduct improper?

The second issue to be determined is whether the conduct complained of was objectively improper.
There are a number of authorities which concern whether a judicial officer's comments have induced an accused to make certain decisions in the course of a trial.[32] In R v KCH, Ipp AJA (as his Honour then was) made the following observations:[33]
The effect of advice as to the prospects of a defendant being found guilty given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence would be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.
In my opinion a guilty plea so brought about is an irregularity or flaw in the conduct of the trial so fundamental that it goes to the root of the proceedings and, of itself, will amount to a substantial miscarriage of justice. In such a case the appellate court is not required to determine if a conviction would have been inevitable and the relative strengths and weaknesses of the prosecution and defence cases become irrelevant. (Citations omitted)
[32] See R v Turner [1970] 2 QB 321, 327 (Lord Parker CJ); R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 [36] ‑ [37] (Ipp AJA); R v Pinhassovitch (Unreported, VSCA, 7 February 1994) (Phillips CJ, Crockett & O'Bryan JJ); R v Boyd [2000] NSWCCA 110; R v Pugh [2005] SASC 427; R v Holden [2009] VSCA 254; Guariglia v The Queen [2010] VSCA 343; R v Pain [2016] VSC 532; Taylor v Rogers [2013] WASC 391; Groom v Police [No 2] [2013] SASC 50; (2013) 115 SASR 446; Moukachar v Police [2013] SASC 71.
[33] R v KCH [36] ‑ [37] (Ipp AJA).
I have also had regard to the decision of Nettle J (as his Honour then was) in Guariglia v The Queen, and his Honour's reconciliation of the relevant authorities at [30] ‑ [38].[34] The authorities establish that a judicial intimation as to the advantages of pleading guilty which materially contributes to an accused person's decision to plead guilty is an improper inducement.[35]
[34] Guariglia v The Queen [2010] VSCA 343; affirmed in R v Guariglia [2011] HCA Trans 162 (French CJ & Crennan J). See also Groom v Police [No 2] [2013] SASC 50; (2013) 115 SASR 446 [15] (Sulan J); Moukachar v Police [10] - [12].
[35] Guariglia v The Queen [35] (Nettle J).
It is appropriate to consider whether all of the facts, in the circumstances of this case, establish a miscarriage of justice. In all of the circumstances, and having given careful consideration to the transcript of hearing of 3 August 2018, I find that there was a miscarriage of justice. For the reasons set out above, leave to appeal on ground 1 is granted, and the appeal on this ground will be allowed.

Ground 2 - Withdrawal of the plea of guilty

The appellant also presses the second ground of appeal. She contends that she mistakenly believed that she would be able to alter her plea as to the head charge on her next appearance.
I have given careful consideration to the transcript of 3 August 2018. There is no suggestion in that transcript that the appellant misapprehended the effect of the guilty plea once it was made. To the contrary, she appeared to accept that she would be required to serve at least a suspended sentence upon entry of her plea.
I have regard to the decision of Hall J in Smith v Rowe,[36] particularly [25] in which his Honour states:
The entering of a plea of guilty depends on an acceptance of responsibility for what was done, not an understanding of all of the consequences that may flow from that acceptance.
[36] Smith v Rowe [2012] WASC 215.
In this case, the appellant expressed acceptance of responsibility for what she had done.
I do not have the benefit of the transcript of hearings that occurred in the period between the plea being entered on 3 August 2018, and when the appellant was sentenced on 8 October 2018. Given my finding in relation to appeal ground 1, I have not canvassed with the appellant (who is not represented) whether she seeks the opportunity to secure and put before the court any additional transcripts. On the evidence before me, I am unable to conclude that leave to appeal on ground 2 should be granted. However, given my findings in relation to ground 1, no prejudice flows from the same.

Conclusion and orders

For the reasons set out above, I propose to make orders in the following terms.
1.The time to file the appeal is extended to 4 December 2018.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The conviction for FR 8487 of 2018 is set aside.
5.The head sentence for FR 8487 of 2018 is set aside.
6.The matter will be remanded to the Magistrates Court to hear the appellant's plea for FR 8487 of 2018.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Acting Justice Strk
19 FEBRUARY 2019