Gillespie v The State of Western Australia
[2013] WASCA 149
•19 JUNE 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GILLESPIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 149
CORAM: MARTIN CJ
PULLIN JA
MAZZA JA
HEARD: 14 FEBRUARY 2013
DELIVERED : 19 JUNE 2013
FILE NO/S: CACR 7 of 2012
CACR 8 of 2012
BETWEEN: RANDOLPH ERIC GILLESPIE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :INS 40 of 2011
Catchwords:
Criminal law and procedure - Indictment charging counts of robbery and alleging circumstances of aggravation - Plea of guilty to robbery - Denial of circumstance of aggravation - Existence of circumstance of aggravation tried by judge without application under s118 of the Criminal Procedure Act 2004 - Whether any error of law - Whether any substantial miscarried of justice
Criminal law - Sentencing - Multiple property offences - Whether manifestly excessive - Parity principle - Double punishment
Legislation:
Crimes at Sea Act 2000 (WA), s 5
Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 3, s 5, s 391, s 392, s 401
Criminal Code Act 1913(WA), s 4, s 7
Criminal Code Amendment Act 2004 (WA), s 28
Criminal Injuries Compensation Act 2003 (WA), s 3, s 14
Criminal Procedure Act 2004 (WA), s 3, s 23, s 59, s 84, s 85, s 91, s 92, s 113, s 118, s 124, s 126
Customs Act 1901 (Cth)
Interpretation Act 1984 (WA), s 67
Sentencing Act 1995(WA), s 6, s 7, s 146
Result:
Appeal against conviction dismissed
Ground 1 of appeal against sentence dismissed
Leave to appeal on grounds 2, 3, 4 and 6 of appeal against sentence dismissed
Leave to appeal on ground 5 of appeal against sentence granted
Ground 5 of appeal against sentence allowed
Sentence of 6 months imprisonment for stealing (charge 6102) quashed
Category: A
Representation:
Counsel:
Appellant: Mr S Gabriel
Respondent: Mr D Dempster
Solicitors:
Appellant: Stephen Gabriel
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Barry v The State of Western Australia [2012] WASCA 175
Benter v The State of Western Australia [2005] WASCA 245
Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Burke v Corruption and Crime Commission [2012] WASCA 49
Caporn v The State of Western Australia [No 2] [2008] WASCA 26; (2008) 36 WAR 294
Carney v The State of Western Australia [2010] WASCA 90
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Drake v The State of Western Australia [2006] WASCA 209
Grierson v The Queen (1928) 60 CLR 431
JKL v The State of Western Australia [2012] WASCA 215
Johnston v The State of Western Australia [2010] WASCA 121
Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7
Nannup v The State of Western Australia [2011] WASCA 257
Nguyen v The State of Western Australia [2007] WASCA 114
Nicolaides v The State of Western Australia [2012] WASCA 199
Papertalk v The State of Western Australia [2011] WASCA 229
Penny v The State of Western Australia [2006] WASCA 173
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Bright [1916] 2 KB 441
R v De Simoni (1981) 147 CLR 383
R v Hietanen (1989) 51 SASR 510
R v Kayal [1979] 2 NSWLR 117
R v Meaton (1986) 160 CLR 359
R v Pryor [2001] QCA 341
R v Sawyer [1967] VR 725
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Taudevin [1996] 2 VR 402
Ricciardo v The State of Western Australia [2010] WASCA 116
Royer v The State of Western Australia [2009] WASCA 139
The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25
The State of Western Australia v Munda [2012] WASCA 164
Tomov v The Queen [2011] WASCA 189
Vagh v The State of Western Australia [2007] WASCA 17
Wade v The Queen [2001] WASCA 252
Wright v The State of Western Australia [2010] WASCA 199
Zimmerman v The State of Western Australia [2009] WASCA 211
MARTIN CJ:
Summary
Randolph Eric Gillespie appeals from his conviction of robbery committed while armed and in other circumstances of aggravation. The only ground of appeal against that conviction arises from a difference of opinion between judges of this court with respect to the precise mechanism by which the question of whether a substantive offence was committed in circumstances of aggravation can be tried by a judge sitting alone. Mr Gillespie, through his counsel, was aware of the differences of opinion and consented to and encouraged the procedural course which was adopted. The procedural course which Mr Gillespie, through the same counsel, now contends should have been followed would have made no difference at all to the conduct of the hearing or its outcome, nor upon the sentence actually imposed. In those circumstances, any procedural irregularity cannot have occasioned a miscarriage of justice and Mr Gillespie's appeal against conviction should be dismissed. In any event, the procedure which was followed was in fact proper, and accords with the relevant statutory provisions.
Mr Gillespie also appeals against various aspects of the total effective sentence of 8 years imprisonment imposed upon him following his conviction for the robbery, and various other offences committed in company with others in the course of an extraordinary rampage across various suburbs of Perth. At the time Mr Gillespie was also on bail, and the offences constituted a breach of a number of community‑based orders imposed upon him as a consequence of prior offences of some seriousness, and for which he was resentenced. In this context, and for the reasons which follow, the sentences imposed upon Mr Gillespie were well within the range available to the sentencing judge in the exercise of his discretionary judgment, and were not disparate to the sentences imposed upon a co‑offender. Leave to appeal from those sentences should be refused, with the exception of an appeal from one sentence which should be allowed and the sentence quashed because it amounts to double punishment. The quashing of that sentence will have no effect upon the total effective sentence imposed.
The appeal against conviction
The indictment presented against Mr Gillespie contained ten counts, although one count (count 7) was discontinued. For the purposes of the appeal against sentence, it will be necessary to consider all nine remaining counts. However, for the purposes of the appeal against conviction, only counts 1 and 2 are relevant. They are in the following terms:
1.On or about 24 September 2010 at Como, Randolph Eric Gillespie entered or was within the place of [name omitted] without his consent, with intent to commit an offence therein
And that Randolph Eric Gillespie was in the company of others
And that immediately before the commission of the offence, Randolph Eric Gillespie knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation
(contrary to s 401(1) of the Criminal Code).
2.On the same date and at the same place as in count (1) Randolph Eric Gillespie stole from Ms L [name omitted] with violence, keys and other items the property of Ms L.
And that Randolph Eric Gillespie was armed with an offensive instrument, namely a set of gardening secateurs
And that Randolph Eric Gillespie was in company with others
And that Randolph Eric Gillespie did bodily harm to Ms L.
(contrary to s 392 of the Criminal Code).
At a very early stage in the proceedings, through his counsel, Mr Gillespie indicated a willingness to enter a plea of guilty in respect of count 1, and further indicated that he admitted committing the robbery the subject of count 2 in company with others. However, he did not admit that he was armed with an offensive instrument or that he caused bodily harm to Ms L.
On his first appearance in the Supreme Court, through his counsel, Mr Gillespie proposed that the issues of whether or not he was armed with an offensive instrument and whether or not he had caused bodily harm to Ms L should be tried by a judge alone, rather than by a judge sitting with a jury. That position never changed. The only question which was ventilated prior to the trial of those issues by a judge sitting alone was the question of how that result might be achieved procedurally. Before relating the procedural course which was in fact followed, it is appropriate to first identify the legal principles applicable to the procedural issue, starting with a consideration of the nature of the charge the subject of count 2.
Count 2
Count 2 alleges the commission of the offence of robbery created by s 392 of the Criminal Code (the Code). That section provides:
392. Robbery
A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -
(a)to obtain the thing stolen; or
(b)to prevent or overcome resistance to its being stolen,
is guilty of a crime and is liable -
(c)if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life; or
(d)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or
(e)in any other case, to imprisonment for 14 years.
There is only one offence created by s 392, being the offence of robbery. The maximum penalty for that offence is 14 years imprisonment. However, if the offence is committed in circumstances of aggravation, the applicable maximum penalty increases to 20 years. If immediately before or after the commission of the offence of robbery the offender is armed with any dangerous or offensive weapon, or pretends to be so armed, the applicable maximum penalty increases to life imprisonment. The expression 'circumstances of aggravation' is defined for the purposes of s 392 of the Code by s 391 which provides:
391. Term used: circumstances of aggravation
In sections 392 and 393 -
circumstances of aggravation means circumstances in which -
(a)immediately before or at or immediately after the commission of the offence -
(i)the offender is in company with another person or persons; or
(ii)the offender does bodily harm to any person; or
(iii)the offender threatens to kill any person;
or
(b)the person to whom violence is used or threatened is of or over the age of 60 years.
It should be noted that s 392 does not create a separate offence of armed robbery, in the sense that being armed is an additional element which distinguishes such an offence from the offence of robbery. Rather, the effect of the section is to provide that if the offence of robbery is committed in a particular circumstance, being the circumstance defined in s 392(c), the maximum penalty that may be imposed is life imprisonment.
Put another way, although in ordinary parlance it is common to refer to 'robbery', 'aggravated robbery', 'armed robbery' and 'aggravated armed robbery' in terms which might suggest that they are distinct offences, there is but one offence created by the section, although the maximum penalty applicable to that offence is dependent upon the circumstances of its commission.
It is also of some significance that each of being in company and causing bodily harm are circumstances of aggravation, as that term is defined by s 391 of the Code. As I have indicated, Mr Gillespie admitted that he committed the offence of robbery in company, and by virtue of that admission was liable to a maximum penalty of 20 years imprisonment, in accordance with s 392(d) of the Code. Accordingly, although he denied causing bodily harm to Ms L, the resolution of that question had no impact or effect upon the maximum penalty to which Mr Gillespie was liable.
This is, of course, not to say that the resolution of that question was irrelevant to the sentencing process - far from it. If Mr Gillespie caused bodily harm to Ms L, that would be an aggravating factor for the purposes of the sentence properly imposed upon him for that offence. However because he admitted committing the offence in company, it would not increase the maximum penalty to which he was liable. This distinction between an aggravating factor which operates to increase the sentence properly imposed, and a circumstance which increases the maximum penalty to which the offender is liable is evident in the Sentencing Act 1995 (WA) (Sentencing Act) to which I will now turn.
Sentencing Act 1995 (WA)
Section 6 of the Sentencing Act sets out the principles which are to be applied by a court when passing sentence. The first principle specified in the section is to the effect that the sentence imposed must be commensurate with the seriousness of the offence (s 6(1)). Secondly, s 6(2) sets out that the seriousness of the offence is to be determined by taking into account a number of factors, including 'any aggravating factors'.
Meaning is given to the expression 'aggravating factor' by s 7 of the Sentencing Act which relevantly provides:
7. Aggravating factors
(1)Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.
…
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
So, s 7(3) of the Sentencing Act distinguishes between an aggravating factor and a circumstance of aggravation. An aggravating factor is a factor which, if present, increases the culpability of the offender, causing the court to evaluate the offence more seriously and which may therefore increase the penalty properly imposed. A circumstance of aggravation is a circumstance which, if present, renders the offender liable to an increased maximum penalty. The effect of the section is that an offender is not liable to the increased maximum penalty unless he or she has been charged and convicted of committing the offence in the relevant aggravating circumstance. However, if the offender has not been charged and convicted of committing the offence in such a circumstance, and is therefore not liable to the increased maximum penalty, the circumstance, if established, may nevertheless be taken into account by the court when assessing the seriousness of the offence and the penalty properly imposed for that offence.
In the present case, as Mr Gillespie admitted that he committed the offence of robbery in a circumstance of aggravation - namely, being in company with others. Therefore, on the basis of that admission he was liable to a maximum of 20 years imprisonment. Pursuant to s 7(3)(b) of the Sentencing Act, if it were established that Mr Gillespie had caused bodily harm to Ms L, that fact could be taken into account as an aggravating factor for the purposes of sentence irrespective of whether or not Mr Gillespie had been charged and convicted of committing the offence of robbery in such a circumstance. Similarly, if it were established that Mr Gillespie had committed the offence of robbery in the circumstance defined in s 392(c) of the Code, that fact could be taken into account as an aggravating factor for the purposes of sentence irrespective of whether or not Mr Gillespie had been charged and convicted of committing the offence while armed. However, as explained, he would not be liable to the maximum penalty of life imprisonment.
Given this legal structure, it is significant to note that the sentence actually imposed upon Mr Gillespie in respect of count 2 on the indictment was 5 years imprisonment. Obviously, that sentence did not exceed or even approach the maximum penalty available for the offence of robbery committed without any circumstances of aggravation. Equally obviously, that sentence did not exceed or even approach the maximum penalty available for the offence of robbery committed with circumstances of aggravation. That is significant because the argument advanced in support of the proposition that the procedure adopted was irregular depends upon s 7(3)(a) of the Sentencing Act, which is only concerned with the maximum penalty to which an offender is liable. But in this case, the maximum penalty to which Mr Gillespie was liable in respect of count 2 made little or no practical difference to the penalty actually imposed. That penalty depended upon the presence of the aggravating factors which increased Mr Gillespie's culpability, and which, pursuant to s 7(3)(b), could be taken into account whether or not Mr Gillespie was charged and convicted of them. This is relevant to the question of whether the procedural irregularity alleged has occasioned a miscarriage of justice.
Before leaving the Sentencing Act, s 146 should be noticed. It provides:
In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by a verdict of a jury.
Thus, the presence or absence of aggravating factors within the meaning of s 7(3)(b) of the Sentencing Act is, on any view, a matter to be determined by a judge alone. Whether the presence or absence of a circumstance of aggravation can also be tried by a judge alone is the contentious issue.
Criminal Procedure Act 2004 (WA)
Section 126 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) specifies the pleas which an accused may enter to a charge. It provides:
126. Pleas available to charges
(1)If under this Act an accused may or must plead to a charge, the accused may -
(a)plead that the court does not have jurisdiction to deal with the accused or the charge;
(b)plead that the offence charged is not an offence under any of the provisions referred to in the Criminal Code Act 1913 section 4;
(c)plead that the accused has a defence to the charge under The Criminal Code section 17;
(d)plead not guilty of the charge on account of unsoundness of mind under The Criminal Code section 27;
(e)plead not guilty to the charge;
(f)plead guilty to the charge or, with the prosecutor’s consent, to some other offence of which the accused might be convicted instead of the charge.
(2)An accused may enter a plea under subsection (1)(b) to a charge at any time before a judgment on the charge is entered against the accused under section 147.
(3)For the purposes of entering a plea under subsection (1)(c), it is sufficient for the accused to describe the offence of which the accused has been convicted or acquitted in any way in which it is commonly known.
(4)Unless the accused pleads guilty, 2 or more of the pleas in subsection (1) may be made together.
(5)If an accused, on being required by a court to plead to a charge -
(a)enters a plea other than one permitted by subsection (1);
(b)does not plead in accordance with subsection (4); or
(c)does not plead,
the court must enter a plea of not guilty on behalf of the accused, unless -
(d)the court, under section 99(4) or (5), enters a plea on behalf of the accused; or
(e)the accused is not mentally fit to stand trial under the Criminal Law (Mentally Impaired Accused) Act 1996.
(6)A plea entered by a court under this Act on behalf of an accused has the same effect as if it had been entered by the accused.
The term 'charge' is defined by s 3 of the Criminal Procedure Act to mean 'a written allegation in a prosecution notice or indictment that a person has committed an offence'.
Section 92 of the Criminal Procedure Act specifies the consequence of the entry of a plea of not guilty to 'a charge'. It provides:
92.Plea of not guilty, consequences of
If an accused pleads not guilty to a charge, or such a plea is entered by a superior court on behalf of the accused, then unless -
(a)the accused’s plea is not accepted under section 99; or
(b)an order is made under section 118 that the trial of the charge be by a judge alone without a jury,
the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury.
No express provision is made in the Criminal Procedure Act for the entry of a plea to the effect that the offender is guilty of an offence, but not guilty to committing that offence in the circumstances of aggravation alleged. On one view there is no need for an express provision to that effect, because the plea is entered in relation to 'the charge' - which is the offence alleged, not to the presence or absence of circumstances of aggravation. On that view, once a conviction has been entered in respect of the offence charged, as the presence or absence of circumstances of aggravation goes only to sentence, that is an issue which can be tried in the same way as other issues going only to sentence - namely, by a judge alone under s 146 of the Sentencing Act. The contrary view is that such an approach is difficult to reconcile with s 7(3)(a) of the Sentencing Act which refers to an offender being charged and convicted of committing the offence in circumstances of aggravation. On this view, before the increased maximum penalty is available, the offender must be convicted of having committed the offence in the relevant circumstance of aggravation either on the offender's plea, or after trial by jury, or by judge alone if an order to that effect is made pursuant to s 118 of the Criminal Procedure Act. It is this division of view which has bedevilled this case and given rise to Mr Gillespie's appeal against conviction.
Relevantly, s 118 of the Criminal Procedure Act provides:
118. Trial by judge alone without a jury may be ordered
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers —
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
Section 124 of the Criminal Procedure Act empowers a superior court to make 'rules of court' regulating the practice and procedure to be followed in that court in cases involving the court's criminal jurisdiction. The Criminal Procedure Rules 2005 (Criminal Procedure Rules) have been promulgated in the exercise of that power. Rule 28 of those rules provides:
28.Trial by judge alone, application for (CPA s. 118)
An application for an order under the CPA section 118 must be supported by an affidavit that -
(a)identifies the charge which the applicant wants to be tried by a judge alone; and
(b)identifies all accused who are jointly charged with the charge and, if known, says whether each such accused will consent to being tried on the charge by a judge alone; and
(c) says that the applicant does not know the identity of the trial judge; and
(d)if the applicant is the accused, says that the accused intends to plead not guilty to that charge.
Finally, s 113 of the Criminal Procedure Act is relevant to the circumstances in which a jury may be entrusted with determining whether or not an offence was committed in circumstances of aggravation. It provides:
113. Special verdict may be required
(1)If in a trial the question arises whether, under The Criminal Code section 27, the accused was not criminally responsible for an act or omission on account of unsoundness of mind, the judge must direct the jury that if it finds the accused not guilty of the charge on account of unsoundness of mind, it must return a special verdict to that effect.
(2)If the judge is of the opinion that the proper sentence or order to be imposed -
(a)on an accused if convicted; or
(b)on an accused if found not guilty on account of unsoundness of mind,
may depend upon a specific fact, the judge may require the jury to give its verdict on that fact specifically.
The cases
The division of judicial opinion to which I have referred is evident in the cases on the subject.
Wade v The Queen
In Wade v The Queen [2001] WASCA 252, after setting out s 7 of the Sentencing Act, McKechnie J (Malcolm CJ and Anderson J agreeing), referred to the distinction which I have drawn between an aggravating factor and a circumstance of aggravation which increases the maximum penalty to which the offender is liable:
Section 7 makes a distinction between factors and circumstances. The reference to circumstances is a reference to the provisions of the Criminal Code.
Aggravating factors under the Sentencing Act are to be distinguished from circumstances of aggravation under the Criminal Code.
The Criminal Code defines circumstances of aggravation:
'The term "circumstance of aggravation" means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.'
The offence with which the applicant was charged was that of burglary under s 401 of the Criminal Code. Section 401 provides that a person guilty of the crime is liable:
'(a) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years;'
Section 400(1) defines the circumstances of aggravation for the purposes of Chapter XXXIX - Offences in or in respect of buildings etc as follows:
'(1)In this chapter -
"circumstances of aggravation" means circumstances in which -
(a)immediately before or during or immediately after the commission of the offence the offender -
(i)is or pretends to be armed with a dangerous or offensive weapon or instrument;
(ii)is or pretends to be in possession of an explosive substance;
(iii)is in company with another person or other persons;
(iv)does bodily harm to any person;
(v)threatens to kill or injure any person; or
(vi)detains any person (within the meaning of section 332(1));
or
(b)immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place;'
The indictment in this case charged the circumstances of aggravation under s 400(1)(a)(i) but did not charge the circumstance of aggravation under s 400(1)(a)(iv). The fact was that the applicant entered the house because he thought the complainant was inside. It was the whole purpose of his attending the house in the first place.
It would be artificial in the extreme for the trial Judge to ignore that fact notwithstanding it did not form part of the pleaded issue in the indictment. The Sentencing Act allows the Judge to take the fact that the applicant knew the complainant was in the house into account as an aggravating factor. If there were no other circumstance of aggravation pleaded, although the Judge could take the fact into account, he could not increase the sentence beyond a maximum of 18 years. I have used this example to explain the difference between aggravating factors and circumstances of aggravation. A circumstance of aggravation is always an aggravating factor. An aggravating factor is not always a circumstance of aggravation.
The difference is highlighted within the Sentencing Act 1995 s 7(3). Under the Sentencing Act the responsibility for determining aggravating factors is that of the court, in reality the sentencing judicial authority. Under the Criminal Code the responsibility for determining whether circumstances of aggravation are proved, in the absence of a plea to that effect, is that of the jury. The word 'liable' in the definition of circumstances of aggravation means liable on conviction of [sic on] indictment [37] ‑ [45].
It should be noted that the relevant statutory provisions were, at that time, contained in the Criminal Code, as the case was decided prior to the passage of the Criminal Procedure Act. Although his Honour asserts that the word 'liable' in the definition of 'circumstances of aggravation' then contained within the Criminal Code means 'liable on conviction of [sic on] indictment', no process of reasoning to that conclusion is elucidated by his Honour or apparent on the face of the terminology then used in the Code. Section 622 of the Criminal Code, as it then was, made provision for trial by jury in the event of any plea other than a plea of not guilty, or a plea to the jurisdiction of the court. However, the section and, as far as I can see, the Code generally were silent on the question of whether the accused was required to plead only to the substantive offence charged, or to the offence charged in the circumstances of aggravation alleged. This distinction will be further considered below.
The State v Majok
The question which arises in this case arose for determination in The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25. In that case, the indictment upon which the accused was presented at trial contained three counts of robbery and a count of unlawful detention. The indictment asserted that each count of robbery had been committed in circumstances of aggravation, including, in each case, that it was committed in company, and in two out of three cases, that the offender had caused bodily harm to the victim of the alleged robbery. Further, in each case it was alleged in the indictment that each robbery was committed while the offender was either armed or pretending to be armed.
When the offender was arraigned, he was directed to enter a plea to each substantive charge of robbery before entering a plea in relation to each alleged circumstance of aggravation. In each case, a plea of guilty was entered to the offence of robbery, and all circumstances of aggravation were admitted save that in each case the offender denied being armed or pretending to be armed. A plea of not guilty was entered in relation to the count of unlawful detention, which was then tried by a jury which was empanelled.
The question presented to Murray J was whether the jury which had been empanelled should also try the question of whether the offender committed the offences of robbery while armed or pretending to be armed, or whether that issue should be tried by the judge sitting alone. His Honour concluded that those issues should be tried by him sitting without a jury, and later published his reasons for that view.
His Honour observed, as I have, that s 392 of the Code creates only one offence of robbery, and that the circumstances which increase the maximum penalty to which an offender is liable are not elements of that offence [8]. His Honour then went on to consider relevant provisions of the Criminal Code (as it then was) relating to criminal procedure, as the Criminal Procedure Act had not then come into force. In his Honour's view, the effect of those provisions of the Code was to provide that where a plea of not guilty to the substantive offence was entered, the question of whether the offence was committed in circumstances of aggravation was to be determined by the jury empanelled to try the substantive offence, utilising the mechanism of the special verdict available under s 642 of the Code (the relevant provision is now s 113(2) of the Criminal Procedure Act). However, in his Honour's view, if a plea of guilty was entered to the substantive offence and a conviction thereby recorded, there was no remaining function for a jury to perform and the question of whether the offence was committed in circumstances of aggravation was a matter for the judge sitting alone. His Honour drew support for that conclusion from observations made by members of the High Court in Kingswell v The Queen (1985) 159 CLR 264, admittedly in a somewhat different context.
After referring to s 7(3) of the Sentencing Act, his Honour observed:
The requirement that the greater maximum penalty will only apply if the offender has been charged and convicted of the offence in the circumstance of aggravation might suggest that the existence of that circumstance is to be tried by a jury, but in my opinion that view is not open, having regard to the express provisions of the Code to which I have adverted.
In a case where a circumstance of aggravation is pleaded so as to inflate the maximum penalty available upon conviction and where a plea of not guilty is made, the jury's task and statutory capacity to try the case is at an end when it returns a verdict of guilty of the offence charged. Unless they are asked for a special verdict in relation to the existence of a circumstance of aggravation under s 642, as is the practice on a trial by jury, the jury would have no power to find any such circumstance. A fortiori in a case where there is a plea of guilty to the offence charged, a jury may not be empanelled to find the existence of a circumstance of aggravation, which is relevant to sentence only and the available penalty in respect of which the judge's discretion is to be exercised.
Consistently with that view, that matters concerning sentence are the province of the judge, subject only to the requirement where there has been a trial by jury that the findings made by the judge must not be inconsistent with the verdict of the jury, s 146 of the Sentencing Act provides:
'In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury.'
It is clear, of course, that where the judge is required to try the issue of fact concerning the existence of a circumstance of aggravation, that fact would not be found unless the judge was satisfied of its existence beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346; 87 A Crim R 1 [30] ‑ [33].
Caporn v The State of Western Australia (No 2)
Caporn v The State of Western Australia (No 2) [2008] WASCA 26 was another case involving an indictment alleging the offence of robbery, committed in circumstances of aggravation, and a separate charge for the offence of stealing a motor vehicle in circumstances of aggravation. A plea of not guilty was entered to both charges, and the matter was tried by a jury. When the jury returned after deliberating, instead of following the conventional course and taking first a verdict in relation to the substantive offence of robbery, and then, in the event of a guilty verdict, taking a specific verdict in relation to each alleged circumstance of aggravation, the trial judge directed that the jury would first be asked whether the offender was guilty of the offence committed with all circumstances of aggravation. In the event of a verdict of not guilty, the jury would then be asked for a verdict in respect of the offence with one of the circumstances of aggravation omitted. This process would be continued, systematically alternating and then stripping away each circumstance of aggravation until either a guilty verdict was delivered, or a verdict of not guilty without any circumstance of aggravation was delivered. A similar direction was given in relation to the second charge. As it happened, the first verdict given by the jury, in relation to the substantive offence of robbery and all circumstances of aggravation was that of guilty. An appeal was brought from that conviction.
Two members of the court (Pullin JA and Beech AJA) concluded that although it would have been preferable for the trial judge to have followed the conventional procedure when taking the verdict of the jury, he had not erred in law by taking the course which he followed. Miller JA was of the view that the judge had erred in law, but would nevertheless have dismissed the appeal against conviction on the ground that the error did not give rise to any miscarriage of justice.
It should be noted that the question at issue in Caporn was whether the course taken by the trial judge at the time of taking the verdict constituted an error of law which occasioned a miscarriage of justice. It follows that observations made by the members of the court which go beyond that question are necessarily obiter and not binding. It is also worthy of note that in Caporn, the accused entered a plea of not guilty to the substantive offence of robbery, so that the question which arose in this case, and in Majok - namely, as to the course to be followed when the accused enters a plea of guilty to the substantive offence did not arise. Rather, the issue before the court related to the procedure to be followed when a plea of not guilty to the substantive offence was entered.
In that context, Beech AJA (with whom Pullin JA agreed) observed:
Miller JA has reached the conclusion that a pleaded circumstance of aggravation is put to the jury by way of a special verdict under s 113(2) of the Criminal Procedure Act 2004 (WA). (The terms of the section are set out in Miller JA's reasons). From that, his Honour has concluded that the jury should be asked for its verdict on the substantive charge and then for a special verdict on any circumstances of aggravation.
I respectfully differ from Miller JA as to the first of those propositions. To my mind, a circumstance of aggravation pleaded in an indictment does not give rise to an occasion for the exercise, by the trial judge, of power under s 113(2) of the Criminal Procedure Act 2004. That subsection is engaged when the judge forms the opinion that the proper sentence may depend upon a specific fact. Such a conclusion does not seem to me to be apposite to a pleaded circumstance of aggravation which, by definition, alters the maximum penalty.
I read the subsection as applying when a specific fact not pleaded in the indictment may, in the judge's opinion, influence the proper sentence. When that is so, the judge is given a power (not a duty) to require the jury to give a special verdict in relation to the identified specific fact.
By contrast, when a circumstance of aggravation is pleaded in an indictment, in my opinion the trial judge is required, not merely empowered, to obtain the verdict of the jury in relation to the pleaded circumstance of aggravation. That is so, it seems to me, by force of the presence of the circumstance of aggravation in the indictment.
Section 7(3) of the Sentencing Act 1995 provides as follows:
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
In my opinion an offender is only 'convicted' of committing the offence in the circumstances of aggravation, within the meaning of s 7(3)(a), if (in a jury trial), the jury convicts the offender of committing the offence in the circumstances of aggravation.
That was the conclusion reached by McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Wade v The Queen [45].
In my opinion, when a circumstance of aggravation is pleaded in the indictment the trial judge must obtain the verdict of the jury in relation to that circumstance of aggravation, otherwise, the offender would not, by force of s 7(3)(a) of the Sentencing Act 1995, be liable to the greater statutory penalty.
In The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, Murray J held that when an accused pleaded guilty to the offence of robbery, denying a pleaded circumstance of aggravation, the alleged disputed circumstance of aggravation was to be tried by him, rather than by a jury. (Compare the practice in South Australia, as to which see R v Hietanen (1989) 51 SASR 510, 514.) The appeal against the sentence imposed by his Honour did not raise any issue as to whether the disputed circumstance of aggravation was to be tried by the judge or by the jury; see Majok v The State of Western Australia [2006] WASCA 140.
In The State of Western Australia v Majok, Murray J expressed the obiter opinion that, in the event of a plea of not guilty, a pleaded circumstance of aggravation gives rise to a power, on the part of a trial judge, to seek a special verdict under s 642 of the Criminal Code (substantially the predecessor to s 113(2) of the Criminal Procedure Act 2004), and that only if and when the trial judge exercised that power did the jury have any role to play in determining whether the pleaded circumstance of aggravation had been established. I have, with respect, come to a different conclusion, as is set out earlier in these reasons. I note that the decision in Wade v The Queen was not cited to his Honour.
In my view neither the applicable statutory provisions nor any rule of criminal law or procedure precludes the taking of a jury's verdict, first, on the charge including the pleaded circumstance(s) of aggravation. For these reasons, I am not satisfied that the course adopted by the trial judge, albeit unconventional, involved any error of law. Accordingly, I would dismiss the appeal [128] ‑ [139].
It is of some significance that the observations made by his Honour with respect to the operation of s 7(3)(a) are conditioned by the premise that there is a trial by jury. Further, his Honour's disagreement with the views expressed by Murray J in Majok appears to be limited to the proposition advanced by Murray J in that case to the effect that when a plea of not guilty was entered, it was open to the trial judge to take special verdicts from the jury in relation to each alleged circumstance of aggravation. The reasons of Beech AJA do not appear to deal directly with the particular circumstance which arose in Majok, and in this case, in which a plea of guilty is entered to the substantive offence, but a circumstance which would increase the maximum penalty to which the offender is liable is denied.
Miller JA agreed with the views expressed by Murray J in Majok in relation to the taking of a special verdict in relation to circumstances of aggravation. Miller JA considered Majok in light of the enactment of the Criminal Procedure Act and the repeal of the procedural provisions of the Criminal Code. In his view, s 113(2) of the Criminal Procedure Act provided a similar procedure to that previously provided by s 642 of the Criminal Code, and enabled a judge to require a jury to deliver a special verdict. In his view, that provision corresponded with, and complemented, s 7(3)(a) of the Sentencing Act, so that in a case in which circumstances of aggravation were alleged in the indictment, if a plea of not guilty to the offence was entered, a special verdict could be required in relation to each alleged circumstances of aggravation, thereby enabling satisfaction of the requirement of s 7(3)(a) to the effect that the offender be charged and convicted of such a circumstance.
Zimmerman v The State of Western Australia
In Zimmerman v The State of Western Australia [2009] WASCA 211, the appellant was tried on two counts of sexual penetration without consent, alleged to have been committed in circumstances of aggravation, namely, that the victim was between 13 and 16 years of age, and that bodily harm was caused.
On the morning of the first day of the trial, in the absence of the jury, the appellant indicated through counsel that he intended to plead guilty to the substantive offence of sexual penetration without consent, but deny the circumstances of aggravation. He was then arraigned and entered pleas of guilty to the counts of sexual penetration, and pleas of not guilty to each of the circumstances of aggravation alleged in each count. Following entry of those pleas, in the absence of the jury, submissions were made with respect to the procedure which should be followed. It was resolved that the jury should determine whether the circumstances of aggravation pleaded in the indictment were established to the requisite standard. Following the trial, the jury returned a verdict to the effect that neither of the circumstances of aggravation pleaded in respect of the first count had been proven, and in respect of the second count, concluded that one circumstance of aggravation had been proven beyond reasonable doubt - namely, that bodily harm had been caused.
No appeal was brought against the appellant's conviction. The only appeal brought related to the sentence imposed. In that context, Pullin JA noted:
The appellant contends, and the respondent agrees, that the procedure adopted was irregular. The appellant's contention was that the only pleas that were available to the appellant were those set out in s 126(1) of the Criminal Procedure Act 2004 (WA). Further, s 126(4) of the Act does not allow two or more pleas to be entered in circumstances in which one of the pleas entered is a plea of guilty. The course which should have been followed is that pleas of not guilty to the charges should have been entered pursuant to s 126(1)(e) of the Act. It would then have been open to the appellant to make a formal admission pursuant to s 32 of the Evidence Act 1906 (WA) that he did not dispute that he had sexually penetrated the victim without her consent as alleged in each count in the indictment. At the conclusion of the trial, the jury should then have been directed about the availability of the statutorily alternative offence of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) if they were not satisfied beyond reasonable doubt that the prosecution had proven each of the circumstances of aggravation beyond reasonable doubt.
Although the procedure was said by the parties to be irregular, no claim is made that the procedural irregularity warrants interference with the appellant's sentence. As a result, it is not necessary for this court to express an opinion about the parties' view regarding the correctness of the procedure followed [53] ‑ [54].
In this passage, Pullin JA was recording the position adopted by the parties in relation to the asserted irregularity of the procedure which had been followed and expressing the view that it was unnecessary for the court to express any view on the correctness of the position asserted by the parties.
Further, Pullin JA went on to observe that by contrast to Caporn, in Zimmerman the circumstances of aggravation were in fact elements of the offence, with the result that s 7(3) of the Sentencing Act had no application [65]. McLure P and Owen JA each agreed with that conclusion. Put another way, the course followed in Zimmerman is entirely explicable by the fact that, unlike this case, the circumstances alleged were elements which, if present, resulted in the accused being convicted of a difference offence. This may well explain the position of the parties with respect to the irregularity of the procedure which was followed. The fact that the relevant circumstances in Zimmerman were accepted by all members of the court to be elements of the offence is an important point of distinction from this case.
McLure P observed:
On the morning of the first day of the trial, the appellant was permitted to enter pleas of guilty to two counts of having sexually penetrated the complainant without her consent. He was also permitted to enter pleas of not guilty to each of the circumstances of aggravation alleged in the two counts. There was a trial of those issues before a jury. As explained by Pullin JA, the course permitted by the trial judge is not in accordance with the Criminal Procedure Act 2004 (WA), s 126 [4].
Although it is true that Pullin JA explained the position adopted by the parties with respect to s 126 of the Criminal Procedure Act, it is significant that he expressly refrained from expressing any view with respect to the position which the parties had adopted. It may be that her Honour's view that the procedure was irregular was based on the fact that the circumstances were elements of the offence, with the result that the accused was required to plead to the entire offence alleged, and not part of the offence.
The substantive issue which arose in Zimmerman was whether the trial judge erred by taking into account the fact that the victim was 14 years of age at the time the offences were committed, when the jury had found that, in respect of each count, the circumstance of aggravation with respect to the victim's age had not been made out, presumably on the basis that the offender believed, on reasonable grounds, that the victim was over the age of 16. That question is far removed from the question in this case. That is another reason why any expressions of view with respect to the procedure followed in Zimmerman are necessarily obiter and not binding.
The cases - summary
The only case which bears squarely upon the question which arises in this case is the decision of Murray J in Majok. However, that case turned to a significant extent upon his Honour's view of the construction and effect of provisions of the Criminal Code which have now been repealed. A similar observation may be made with respect to the decision in Wade, with the further observation that the reasoning in that case is, with respect, somewhat obscure. In each of Wade and Caporn, pleas of not guilty were entered in respect of the substantive offence charged, and a jury was empanelled to try that question. On my reading of the observations made by Beech J in Caporn, they go only so far as to suggest that in such a circumstance, the verdict of the jury should be taken in relation to the circumstances of aggravation if they have the effect of increasing the maximum penalty to which the offender is liable. The observations made in Caporn do not appear to deal with the circumstance in which a plea of guilty is entered in respect of the substantive offence.
Zimmerman was an appeal against sentence which turned upon a very different issue. Two members of the court (Pullin and Owen JJA) declined to express any view on the correctness or otherwise of the procedure that had been followed. McLure P expressed the view, obiter, that the procedure followed in that case was irregular based upon s 126 of the Sentencing Act, although the precise basis for that view is not clear. The fact that in Zimmerman the relevant circumstances were all elements of the offence (unlike this case) may well explain the position adopted by the parties and the views expressed by the court.
For the reasons which follow, it would be possible to resolve this appeal solely on the basis that even if there was an irregularity in the procedure adopted, the irregularity did not occasion any miscarriage of justice. However, given the uncertainty with respect to the procedure properly followed in a case such as this, it is appropriate for this court to determine that issue. Before I express my views on that question, it is appropriate to set out the course which was followed in this case, and to explain why this appeal should be dismissed whatever view is taken with respect to the regularity of the procedure adopted.
The procedural course of this case
Mr Gillespie first appeared in the Supreme Court at a status conference on 11 April 2011, following his committal from the Stirling Gardens Magistrates Court. In that court he had entered pleas of guilty to most charges brought against him, save for one charge of motor vehicle theft (to which I will later refer) and the charge of robbery which became the subject of count 2 on the indictment. In relation to the latter charge, he had indicated in the Magistrates Court, through his counsel, that the only issue was whether he was the one who had entered the house carrying garden secateurs and thrown those secateurs at the victim, causing her injury.
During the status conference, counsel for Mr Gillespie (Mr Gabriel) addressed the question of the procedure to be adopted to resolve the issue of whether it was Mr Gillespie, or one of his accomplices, who threw the garden secateurs during the course of the robbery. In that context, the following interchange took place (Ms Andretich represented the State of Western Australia (State)):
GABRIEL, MR: My concern is that if the allegation of being armed is a particular of law included in the indictment, I think that my client cannot plead to that particular other than by denying it in a relevant sense. However, if it's a particular of fact said to aggravate the circumstances of an aggravated robbery, then it can be dealt with on the basis of a disputed fact type situation. I'm really in the state's hands. As I said to the state, it's really how they prepare the indictment at the end of the day. I certainly would have ‑ ‑ ‑
JENKINS J: Well, I understand that the offence is robbery.
GABRIEL, MR: Yes.
JENKINS J: And that the allegation of being armed is a circumstance of aggravation which affects the question of sentence.
GABRIEL, MR: Yes.
JENKINS, J: Now, looked at that way, I can't see why a judge can't decide that on sentence after a plea of guilty to robbery.
GABRIEL, MR: Yes. The aggravated robbery in company as well.
JENKINS, J: Well, yes, but he would plead guilty to robbery and then not guilty to whatever circumstances of aggravation were alleged - if he wanted to plead not guilty or guilty to others, if that was his wish, but I know that there are contrary views.
GABRIEL, MR: As I say, it really is in the state's hand. I concur with your Honour. If it's pleaded as an aggravated robbery with a particular of fact being that he was armed at the time, then that particular of fact is a matter of dispute that can be tried. If it's pleaded as aggravated armed robbery as a particular of law, then I think there's a difficulty arising. It's really a matter for the state though.
JENKINS J: But if it's pleaded as an element of the offence, then he has to plead not guilty to the offence.
GABRIEL, MR: Yes.
JENKINS J: Whereas I think, arguably, if it's pleaded as a circumstance of aggravation, it can be decided by the judge.
GABRIEL, MR: If it's an aggravating circumstance, factually, then the onus is borne by the state to prove it. It's a matter of disputed facts.
JENKINS J: Yes.
GABRIEL, MR: So I don't have a difficulty with that. I have no difficulty with the general concept of how this matter should proceed.
JENKINS J: What I will do is I will adjourn it for a status conference, and I think the state has to perhaps look at the issue more carefully and make sure that the correct approach is taken when the matter comes for the status conference, so it can either be listed for a jury trial, a short trial, or ‑ ‑ ‑
ANDRETICH, MS: I hear what your Honour's saying. I think the point my learned friend is making is probably a valid point, that what brings it into the jurisdiction, as your Honour is aware, of this court is the fact that it's an armed robbery as opposed to a robbery.
JENKINS J: I see, yes.
ANDRETICH, MS: And in those circumstances there is a differing view, and I think perhaps if we do go through to a status conference, then perhaps we can liaise with the court ahead of time if it can be dealt with by way of a one-day trial of the issues; if not, set it for trial, if that's what the state determines need be done.
JENKINS J: And I think even some judges take differing views, but that's another issue.
ANDRETICH, MS: Yes.
JENKINS J: It's a pity that the Code or the Criminal Procedure Act doesn't just say - - -
ANDRETICH, MS: No, it doesn't.
JENKINS J: - - - how circumstances of aggravation can be tried.
ANDRETICH, MS: Also logistically within our office I think the other matters can't really be sentenced on, your Honour, until this is resolved.
JENKINS J: No.
ANDRETICH, MS: Because it was a string of offences and I think that needs to be taken into account (ts 4 ‑ 6).
Although the observations made by Mr Gabriel are not pellucidly clear, it is a fair inference that he was referring somewhat obliquely to the tension between the position adopted by Murray J in Majok, and expressed by Beech J in Caporn. At all events, it is relatively clear that he indicated on behalf of Mr Gillespie that he did not oppose adopting a course by which the question of whether it was Mr Gillespie who was armed and threw the secateurs at the victim would be resolved by a judge sitting alone trying issues of fact following entry of a plea of guilty.
At the next status conference on 2 June 2011, Mr Gabriel made his client's position unequivocally clear: that he would prefer to plead guilty to the robbery, and to have a trial of the issues in relation to the circumstance of aggravation. At that status conference, referring to the charge the subject of count 2, Mr Gabriel made the following remark to Justice Jenkins:
GABRIEL, MR: My view is that if the matter from Como that is contentious is drafted in the same way, there may be scope for him to plead to the matter with an issue being as a trial of issues as opposed to a trial on the matter. We accept that there was a robbery. He was in company. There are two further particulars that will be alleged. They may be contentious and they can be resolved. We think it would be desirable if the matter could be resolved on that basis rather than having a trial on a not guilty plea (ts 16).
Mr Gillespie more fully elucidated his position at the first status conference held following presentation of the indictment. On that occasion (30 June 2011), the following exchange took place:
JENKINS J: Thank you, Mr Gabriel. Please take a seat, Mr Gabriel. Now, we have an - actually, you can probably remain standing because we have an indictment dated 28 June. I understand the proposal is that he be arraigned on the indictment. From what I read, in respect of count 2, it is asked that the circumstances of aggravation be put separately and he will plead guilty to being armed and in company but not guilty to the bodily harm, is that - - -
GABRIEL, HR: No.
JENKINS J: No.
GABRIEL, MR: Can I just put it on record.
JENKINS J: Yes.
GABRIEL, MR: Look, the various allegations in the materials before the court that have been filed by the officer from the state are largely non contentious. We have pleaded to the prosecution notice. The only issue on the prosecution notice was the pleading of the particulars of law and in relation to the robbery matters to count 2 from the Como incident issues arise as to whether my client was aware of anyone being armed and whether he was aware that bodily harm was caused. It was reasonably foreseeable on my instructions and he understands that, that the allegation is that he was armed and that he used the weapon that he had armed himself with to cause bodily harm. He disputes being armed. He disputed causing the bodily harm and he denies knowing that anyone had armed themselves. There was a pair of secateurs that were picked up.
There was a further statement available from the complainant. The position we take at this end of the bar table is that if your Honour is content to take a plea with those provisos, we would be happy with a trial of issues about the matter. We are not going to be happy about it - it's embarrassing and unfortunate. Our account is there were others involved in the incident. They have not been charged. Another person was present. He was charged with some related offending and has been dealt with as a sentenced prisoner but he has appealed against the orders that were made in relation to sentence. We can see this is going to take perhaps a day of the court's time to resolve.
JENKINS J: What pleas do you think Mr Gillespie will enter in respect of count 2?
GABRIEL, Mr: I think it will be a plea of guilty but it was a dispute as to the issues that I've raised with your Honour.
JENKINS J: So there is really no need to put the separate allegations to him.
GABRIEL, Mr: No; issues of fact that will be disputed.
JENKINS J: He will plead guilty to the offence as charged but seek a trial of the issues of fact.
GABRIEL, Mr: We would suggest that if your Honour is content with that course I've suggested. We don't want to see at this end of the bar table a plea of not guilty being directed by the court with a jury trial which could take two days, I would have thought - at least.
JENKINS J: I had a look at it after I received the correspondence. I agree it's not altogether clear, but I have to say I came to the view that if someone does not perhaps, Mr Gillespie, you can take a seat whilst we discuss this issue. The way, I think, the word 'offence' is defined - I can't now - I've printed off the relevant provisions, but, of course, didn't bring them into court with me, did I. But the way the word 'offence' is defined, I think, in the Sentencing Act - 'offence' means any offence under a written law - maybe it was in the Criminal Code - it's unfortunate because now I can't find the provision which determined it, but what I came down to was that a circumstance of aggravation is an allegation of fact which renders someone liable to punishment and that an accused is entitled to a trial by jury in respect to any such matter.
I thought the way to resolve that if an accused did not admit a circumstance of aggressive [sic aggravation] was simply for the defence and the prosecution to agree that the matter could be tried by judge alone and then the judge would hold - - -
GABRIEL, MR: I have no difficulty with that approach. My position is that if there is an additional penalty following on from the matter of aggravation, then that is a pleading of law that causes difficulties. So if your Honour wishes to direct a plea of not guilty to take the position that it can be dealt with as a trial by judge alone, I would not seek to be further heard.
I have explained to my client that there is an arguable proposition that he is entitled to a trial by jury. His instructions are that as consistent with what has occurred from the outset when he was approached by the police. He does not wish to cause any inconvenience of any relevant nature. He has always acknowledged involvement in what has occurred and has given a clear and cogent account of events subsequent to being first confronted with the matter.
He was cooperative with the police. He gave them a statement that could have been used against the principal offenders, those who initiated this unfortunate sequence of very serious offending. He absolutely understands that, but he does not wish to see - and for the purposes of otherwise putting it on record, we have always maintained that this honourable court would have more than sufficient sentencing powers with the charges that we see would be available and open.
If there was a need for an issue to resolve the role of various participants in the matters, that may change the position on sentence in some respects, but it could be dealt with as a trial of issues. The maximum penalties for burglaries on dwellings in circumstance of aggravation are condign. The increase that is associated with an armed robbery, whilst having a jurisdictional issue for this court, we are not a person who fortunately is so bad that he is going to attract the maximum penalties. He is still capable of and is indeed showing considerable propensity and capacity for rehabilitation.
JENKINS J: Just let me try and work out how I got to this view again.
GABRIEL, MR: I don't know if my learned friend - I appreciate my learned friend is only acting on instructions from Mr Nicholls. I was going to suggest if there is a need for the court to be properly assisted, your Honour could request submissions. We could set a date provisionally to move things ahead and my learned friend, Mr Nicholls, and I could assist the court with some clarification so that everyone is clear on the issue.
As I say, this was the reason, in effective terms, why my client wasn't dealt with the co-accused as I would understand it. We have always had a problem about this first incident.
JENKINS J: You see, I think it came down to this. In section 7 of the - look, I follow the reasoning that a circumstance of aggravation was not a separate offence and therefore the provisions in the Criminal Procedure Act which say that if someone pleads not guilty to a charge, which is basically an offence, then you have a trial; so that didn't seem to include a circumstance of aggravation attached to an offence, but then when I looked at section 7 of the Sentencing Act it says this, subsection (2):
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances -
so that's clearly a circumstance of aggravation, then:
(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.
So you have to be actually convicted of committing the offence with those circumstances in order to be viable to the greater penalty. It then goes on to say:
And whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
That is the distinction. I could have a trial of the issues if, say, he pleaded not guilty - start again. If he pleaded guilty to the offence but did not admit those circumstances of aggravation, then a judge could hold a trial of the issues in respect of whether the aggravating factors existed and sentence whether the trial judge came to the view they did or did not, but he would not be liable to the greater punishment that is provided for under the statute if he had been convicted of the offence with those circumstances of aggravation. Is counsel following?
GABRIEL, Mr: I'm at ad idem with your Honour.
JENKINS J: That is one version, but basically the state would then have to be happy for the matter to proceed without him being liable to the greater punishment provided for; so the maximum penalty would be different. On the other hand, if the state wants to have him sentenced on the basis that he is liable to the greater statutory penalty, then he has to be charged and convicted of committing the offence in those circumstances, so that would seem to me then, he can't be convicted in those circumstances either - well, unless he either pleads guilty with the circumstances of aggravation, or is found guilty by a jury, or he consents to trial by judge alone on those issues.
GABRIEL, Mr: Yes.
JENKINS J: Dr Barber, do you follow that?
BARBER, DR: From the state's perspective, your Honour, the state is seeking to pursue those issues of fact for the purpose of a greater penalty if they are established.
JENKINS J: But it's a question of whether you want simply a greater penalty because they are established as a matter of fact on a trial of the issues, or whether you want him liable to the maximum penalty of life imprisonment as opposed to 14 years. Do you see the distinction?
BARBER, DR: Yes, your Honour.
JENKINS J: I mean, really - well, it's a matter for the state, I suppose.
GABRIEL, Mr: May I just approach my client? I just need to talk to him very briefly.
JENKINS J: Yes.
BARBER, DR: The instructions I have, your Honour, are that the matter can be dealt with, and I accept what your Honour says about this issue, but still it can be dealt with by way of a trial of the issues.
JENKINS J: Well, I'm just not quite sure. I mean section 7 subsection (3) (a) is explicit: 'An offender is not liable to the greatest statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.'
BARBER, DR: Yes.
JENKINS J: Now, if he was to plead guilty to the offence as charged, we could have a trial of the issues, but that doesn't really seem to make sense if he doesn't in fact admit the circumstances.
BARBER, DR: Yes, I understand, your Honour.
JENKINS J: If he doesn't admit to the circumstances, he has to plead not guilty. I mean if he is only disputing - say in respect of the issue of whether it was committed in circumstances of aggravation that he was armed, now if the only issue is as to who was holding the weapon, then he could plead guilty to the offence in those circumstances of aggravation and we could have a trial of the issue as to who was holding the weapon, but if he says no-one had a weapon, he can't plead guilty to the circumstance of aggravation; he would have to plead not guilty and there would have to be a proper determination as to whether he should be convicted of committing the offence in the circumstance of being armed.
BARBER, DR: Yes, your Honour.
JENKINS J: Counsel is saying, 'Yes, yes,' but I'm really not sure that they understand the points I'm trying to make. Do the parties need some time to consider the position?
GABRIEL, MR: I am mainly concerned for my learned friend who is acting on the brief, but I absolutely understand what your Honour is saying in relation to section 7 subsection (2) that if as a matter of law the state wishes to establish the higher sentencing, then there has to be a trial.
If the state is happy to take a plea to a lesser charge but to argue particulars of fact that would be aggravating factors for what I think is section 8 of the Sentencing Act where the onus is borne by the state to prove aggravating factors, just as defence has to establish mitigating factors, then that would be a different issue; it would be a trial of issues.
JENKINS J: Yes.
GABRIEL, MR: And I have just confirmed with my client, because I said to him my thoughts on this are such your Honour has now effectively indicated that is how you see the law, and I have confirmed with him he does not with [sic wish] to inconvenience a jury. If there is a need for a trial of issues to advance this matter on the basis that the state want to prove, as a matter of law, he is guilty of all those matters in aggravation so that the record would show that he was a party to the matters or was a principal offender in relation to those matters, then there can be a trial by judge alone; so that I think assists us one way or the other.
The position I see is that that may well be, as your Honour has indicated at the outset, a way of just avoiding these issues. I don't know whether the state wants to have a trial with a jury and all that involves, but that's a matter for the state.
JENKINS J: I would then perhaps suggest that he be arraigned. If, as per your instructions, he pleads guilty to the offence simplicita or only with one circumstance of aggravation, then the state will then have to advise me whether it pursues those or whether it accepts the plea in satisfaction of the charge.
GABRIEL, MR: Just so it's clear for my client, with the greatest respect to him, he is not a very sophisticated person at times, it's a situation of he accepts it was a robbery and it was aggravated by being in company.
JENKINS J: Dr Barber, do you wish to obtain some further instructions before I proceed to arraign the accused?
BARBER, DR: I think that may be the preferable course, your Honour, in the circumstances where - I'm not sure that the file manager's understanding is as you have indicated this morning.
JENKINS J: I don't think the file manager had considered section 7 subsection (2) of the Sentencing Act, and it seems to me that that really is the nub of it.
BARBER, DR: In those circumstances, your Honour, perhaps it would be appropriate for me to seek an adjournment of these matters, although I appreciate that there have been a number of adjournments in the past (ts 21 ‑ 27).
I have set out the interchange at some length, because Mr Gabriel contested the proper characterisation of the position which he had adopted on behalf of his client during the course of argument on the appeal. It is clear from the transcript that Mr Gabriel indicated to the court, on behalf of his client, that he was willing to enter a plea of guilty to the charge of robbery, and that he admitted that the robbery was committed in a circumstance of aggravation, namely, being in company. Further, it is clear that Mr Gillespie, through his counsel, consented to the question of whether he was the person who was armed and caused bodily injury to the victim being tried by a judge alone, as the trial of an issue following a plea of guilty. When the court raised an issue as to whether that course could be followed, consistently with the provisions of s 7 of the Sentencing Act, and after taking instructions from Mr Gillespie, Mr Gabriel indicated to the court that Mr Gillespie would consent to the issue of whether Mr Gillespie was guilty of armed robbery being tried by a judge alone (implicitly pursuant to s 118 of the Criminal Procedure Act).
The status conference was adjourned until 4 July 2011, in order that the State could take instructions on the question of the procedure to be followed. On that occasion the State was represented by different counsel. Jenkins J commenced the hearing by summarising the view she had previously expressed, in the following terms:
JENKINS J: I expressed the view that if the state wished to have Mr Gillespie sentenced on the basis of the maximum penalty for armed robbery, then there would have to be a trial, either by judge or jury, that is, if being armed was not admitted, and I was told by Mr Gabriel it wasn't admitted (ts 17).
Mr Gabriel, on behalf of Mr Gillespie, then advised the court that if arraigned, Mr Gillespie would plead guilty to the offence of robbery and guilty to the circumstance of aggravation that he was in company, but would enter pleas of not guilty to the allegation that he was armed and that he caused bodily harm.
Counsel for the State then referred the court to the decisions in Wade, Zimmerman and Majok. After counsel's reference to the observations made by McKechnie J in Wade, the following interchange took place:
JENKINS J: That's right, and that's what I have said, and he makes the distinction, a helpful one, between aggravating factors, which are matters of fact which the judge can take into account or can determine, and circumstances of aggravation, which only a jury can determine, but there would be one step on from there, wouldn't there, to say that the accused can elect to have a judge alone try the circumstances of aggravation?
NICHOLLS, MR: Yes.
JENKINS J: And, as I understand it, that is what is going to be proposed here if he pleads not guilty to the circumstances of aggravation. Mr Gabriel?
GABRIEL, Mr: I had understood the state would make the application. I have sent correspondence and indicated that we would consent to it.
JENKINS J: All right.
GABRIEL, Mr: I have also adverted my learned friend to the case of Edwards from last year, of Heenan J - I apologise, I don't have the citation or a copy available suggesting that there may be some difficulties with that application.
JENKINS J: And why would that be?
GABRIEL, MR: To some level the issues here are going to be matters of what was reasonable in the circumstances, and the issues might well just be purely matters that would normally be left for a jury. I don't have the provisions in front of me. I apologise, your Honour.
NICHOLLS, Mr: What we really need to know, your Honour, is whether or not the accused consents to the procedure of trial by judge alone in those circumstances.
GABRIEL, Mr: We have indicated previously that if the state makes the application we don't want to be heard. I have pointed out to my learned friend that we think that there may be some difficulties, but that's a matter for the state. I'm not instructed to make an application, and I haven't done that.
JENKINS J: So you weren't proposing to make the application.
GABRIEL, Mr: I haven't done an affidavit, and I can see some issues in the legislation, but it's a matter for the state and the court.
JENKINS J: But if the state makes the application, you would consent to it? Let's get down to tin tacks.
GABRIEL, Mr: I would have to advise my client carefully, but I think he would say that we wouldn't want to be heard.
JENKINS J: You might have to go further than that I think if an application is made.
GABRIEL, Mr: Sorry, I apologise.
JENKINS J: You would have to make a decision as to whether you object to it or not.
GABRIEL, Mr: The legislation does require that the accused has to consent to an application by the state.
JENKINS J: We're getting ahead of ourselves I suppose. I didn't think there was any issue about that.
GABRIEL, Mr: No, there's no issue in a relevant sense (ts 21 ‑ 22).
I have set out the text of this interchange in full because, again, the characterisation of what took place was contested by Mr Gabriel during the course of argument on the appeal. It is, however, clear that Mr Gabriel indicated, on behalf of Mr Gillespie, at the commencement of the interchange that he had advised the State that if an application was made for trial by judge alone, Mr Gillespie would consent to that application. Despite some coyness in the discussion which followed, there was no departure from that position, and the interchange concluded with counsel advising the court that there was no issue in relation to Mr Gillespie's consent to trial by judge alone.
Counsel for the State then referred the court to Zimmerman, and in particular, the passage from the reasons of Pullin JA which I have set out above. Counsel for the State put submissions to the court on the basis that, in that passage, Pullin JA was expressing a view as to the effect of s 126 of the Criminal Procedure Act when, in fact, as I have pointed out, Pullin JA was simply reciting the position adopted by the parties. Nor was the court's attention drawn to the fact that in Zimmerman, all members of the court proceeded on the basis that the relevant circumstances were elements of the offence. Jenkins J then relied on that inadequate submission to conclude that the decision in Zimmerman precluded her from following the procedure of requiring Mr Gillespie to plead to the substantive offence of robbery alleged by count 2 on the indictment, and then to plead separately to each of the alleged circumstances aggravating penalty. Following the expression of that view by her Honour, Mr Gillespie was arraigned. Prior to the arraignment, Mr Gabriel stated:
[W]hat I would propose, when count 2 is put to him, I anticipate that he would plead not guilty to that, but then I can put before the court that he would, in the alternative, plead to aggravated robbery by being in company, but the state does not accept that, so it's a matter of just to put it on the record if it's necessary (ts 25).
When Mr Gillespie was arraigned, he entered a plea of not guilty in respect of count 2 on the indictment. Following the arraignment, Mr Gabriel stated:
In relation to count 2, as I indicated before, my client would plead guilty to the charge of aggravated robbery by being in company, but we understand that the state will not accept that (ts 28).
Thereafter, the following interchange took place:
JENKINS J: Take a seat, Mr Gillespie. We have then pleas of not guilty to counts 2 and count 7. What is the state's application in respect of those counts? I suspect, looking at the provisions about trial by judge alone - not that I suspect, I say it more strongly than that - I think it is appropriate in the circumstances that the state, if it wishes to make an application for trial by judge alone, that it does so in writing, supported by an affidavit, for the same of formality.
NICHOLLS, Mr: I am inclined to pursue that application, your Honour, but I will only pursue it if the accused consents to the procedure, and I seem to have some different answers in that regard. I think on Thursday it was stated that it would be consented to. I just want that position to be unequivocal before I make that application.
GABRIEL, Mr: May I approach my client?
JENKINS J: I think that it's a decision best made out of court rather than in the heat of the battle, so I will leave it for the parties to liaise about that. What I will direct, Mr Nicholls, is that if the state intends to make an application that it file it within the next fortnight, it will then be listed and it should come back before me for determination seeing I'm familiar with the issues. Otherwise I would put Mr Gillespie off to a status conference, sooner rather than later, so that trial dates can be set. Any opposition to that proposal, Mr Nicholls?
NICHOLLS, Mr: No, your Honour. I don't know how long my learned friend requires to take instructions from his client as to the trial by judge alone issue, but if it is a no, then certainly the state would be in a position to list for a jury trial today.
JENKINS J: We could list it provisionally today.
GABRIEL, Mr: Can I just say is all I'm looking for is the materials. My client will consent. My only concern is whether there is a proper basis for the application as an officer of the court. That's the issue. As I say, my client's position is he should be able to see the supporting materials and to assess the affidavit that has to be filed under the Criminal Procedure Regulations (ts 29 ‑ 30).
Again, during argument on the appeal, Mr Gabriel contested the proper characterisation of the position which he had adopted on behalf of his client. It is, however, clear from his last observation to the court that Mr Gillespie would consent to any application for trial by judge alone, consistently with the position he had always adopted.
Mr Gabriel indicated a desire to assess the affidavit to be filed in support of the application pursuant to 'the Criminal Procedure Regulations', which no doubt should be taken to be a reference to rule 28 of the Criminal Procedure Rules, which I have set out above [23]. When consideration is given to the terms of that rule, it is difficult to identify any rational basis upon which Mr Gabriel would have wanted to review the affidavit. The rule relevantly requires that the affidavit identify the charge the subject of the application, identify the position adopted by any co‑accused, and assert that the applicant did not know the identity of the trial judge. All those matters were well known to all parties and to Mr Gabriel.
The matter was adjourned to a further status conference to be held on 25 August 2011. Prior to that hearing, no application was made by the State for trial by judge alone. The matter came before Murray J, when the following interchange took place (Ms Mattocks representing the State):
MURRAY J: Mr Gabriel will confirm, but as I understand it, Mr Gabriel, from the note that was made for me of previous proceedings, is that the accused would plead guilty - at the moment he's pleaded to count 2.
GABRIEL, MR: Yes, sir.
MURRAY J: That's right. He would plead guilty to the robbery and that he was in company but he would deny the circumstances of aggravation that he was armed with the secateurs and that he did bodily harm to Ms L.
GABRIEL, MR: Yes, your Honour.
MURRAY J: Okay. Now, what's the state's position then in relation to that, Ms Mattocks?
MATTOCKS, MS: Your Honour, I understand it is being looked at, the options of that proceeding. It's anticipated that the disputes will take two days to hear at a jury trial, your Honour. I understand that's the preferred cause of action.
MURRAY J: So you are not proposing to abandon - you are not instructed that the prosecution will abandon those allegations in relation to count 2?
MATTOCKS, MS: No, your Honour, the dispute will have to proceed to a trial as far as the state is concerned.
MURRAY J: So you want a trial of that issue.
MATTOCKS, MS: Yes.
MURRAY J: All right. It won't be a jury trial.
GABRIEL, MR: Might I assist?
MURRAY J: Yes, Mr Gabriel.
GABRIEL, MR: Her Honour, Jenkins J, looked very carefully at this issue and we certainly don't want to cause any inconvenience to the state, the courts or the community, but her Honour took the decided view that because those allegations were particularised on the indictment then the matter would require, if sentence was to be passed under the Sentencing Act, I think section 7, it would have to involve a trial.
The proposition we put to the state was that we could have those particulars excluded from the indictment and that the issues of fact, ie the involvement of the weapon and my client's alleged use of it, could be resolved for sentencing purposes as a hearing of issues without the need for a jury. Now, I understand the state considered that position very carefully, and in light of her Honour's ruling have determined at this stage at least, unfortunately as far as we are concerned, it's entirely within their parameters, to do so it needs a jury trial.
MURRAY J: It's a situation that has arisen before. The relevant decision is one of mind [sic mine], a case called Majok [2005] WASC 13. It went to the Court of Appeal in relation to sentences I passed but not in relation to this point. The reasons that I gave then dealt with exactly this situation where there is a plea to the robbery, a conviction can be recorded then in relation to the robbery, and the question which arises in relation to the circumstances of aggravation is a question relevant to the sentencing framework within which the court is to pass sentence.
At least relevantly in a robbery situation as you understand, the relevant sentencing framework can be affected, not by the addition of doing bodily harm but being armed. It's that circumstance of aggravation which takes the maximum penalty to life imprisonment. So they are questions which don't arise except if you are convicted of the offence. Now, if you are pleading not guilty and you go to trial, you go to trial for the robbery and they would prove the robbery and if you are convicted by the jury then the jury would be asked questions about and make separate findings about the circumstances of aggravation.
But the jury trial only gets to deal with the circumstances of aggravation because it is dealing with the question of the guilt or innocence of the robbery. If there is no issue about the guilt or innocence of the robbery, the proper course, if you want the trial of issues to take place, is to plead guilty to the robbery, deny the circumstances of aggravation that you wish to contest.
Evidence, if it's thought to be sufficiently important to proper sentencing for the case can then be led and the court can make a finding about the existence or otherwise of the circumstance of aggravation, depending upon whether the judge is satisfied of it beyond reasonable doubt necessarily because it is a circumstance of aggravation. So that's the process and if on the day you plead guilty to the robbery and admit one circumstance of aggravation and deny the other two, there would be no empanelment of a jury.
GABRIEL, MR: I'm obliged for your Honour's assistance in that regard.
MURRAY J: So what should I do? Send it off to the 10th on the basis that you might take that course, I suppose.
GABRIEL, MR: We have already indicated willingness to take that course.
MURRAY J: Yes.
GABRIEL, MR: I apologise to the court, I can't recall whether that case was cited in the previous discussions involving her Honour and I don't know whether it's been brought to my learned friend Mr Nicholls', who is the file manager, attention. We didn't seek to be heard in relation to the issue. It was an issue that her Honour raised, sought assistance from counsel as to and in the circumstances it was the direction previously made. If your Honour wishes to make a direction that the matter proceed as a trial of issues without a jury - - -
MURRAY J: I think there's no problem, and I would certainly propose to just send everything off to the 10th and then he can be arraigned and enter his pleas, but as to whether or not a jury is to be summoned for that date, it would be important, I think, to know in advance rather than to trouble these people, what course the defence proposed to take.
GABRIEL, MR: I have already indicated the position, your Honour, that we don't wish to be heard.
MURRAY J: Yes.
GABRIEL, MR: We are happy to be dealt with on any basis. We merely wish to refute those issues that have been alleged as aggravating factors.
MURRAY J: Mr Gabriel, I am obliged to you for making the position clear. Ms Mattocks, I think what I should do is adjourn this matter to the 10th on the basis that there will be pleas of guilty entered, but there will in all likelihood in relation to count 2, need to be a trial of issues of fact in relation to the existence or otherwise of the circumstances of aggravation as part of the sentencing process.
MATTOCKS, MS: Yes, your Honour. Just outlining from the history in relation to this matter, her Honour, Jenkins J, indicated that on 4 July 2011 that if the state were to make an application for a trial by judge alone should the accused enter the plea of guilty to the substantive charge and only a couple of the circumstances of aggravation be in dispute then the state was to do so within two weeks of that date.
MURRAY J: I'm afraid in relation to that, you see, I'm taking a different view.
MATTOCKS, MS: Yes, your Honour, I understand, and it's for that - the state decided not to make that application. Your Honour, I understand that Mr Nicholls, the file manager, is aware of your views in relation to whether it's a trial to proceed by way of trial by the issues, circumstances of aggravation, should proceed as a trial of the issues or whether it should proceed to be a jury trial. I understand that there is actually some divergence in the judicial opinions on this point do not, obviously with respect, to honour but there are other opinions and there is - - -
MURRAY J: I'm sure you are right.
MATTOCKS, MS: Yes, your Honour. There are opinions that it's for a jury to determine such matters. It was for that reason that the state thought we will leave it as a matter of course in - - -
MURRAY J: I think for better or worse I have cut the Gordian knot and the order I make is that it will go on to the 10th on the basis that there is a clear understanding that pleas will be entered and that when arraigned the accused would contest those two circumstances of aggravation and if they are to be relied on for sentencing purposes that there will be a trial of that issue (ts 38 ‑ 42).
The matter was concluded on the following basis:
MURRAY J: All right. Then the only - I think it should therefore go through to 19 December on the basis that I have mentioned. Now, if there is going to be a trial of the question of the guilt or innocence of the robbery alleged in count 2, Mr Gabriel, the court would need to be advised so that a jury precept can be entered into and we can get a jury together for that.
GABRIEL, MR: I have no instructions. I think it should be set down for the two days with the anticipation there needs to be a trial. It can be the trial of issues that your Honour has indicated. I have no difficulty with your Honour making a direction in that terms.
There is no doubt that during the course of this interchange, consistently with the position which had always been adopted, Mr Gabriel on behalf of Mr Gillespie consented to the question of whether Mr Gillespie was armed and caused bodily harm to Ms L at the time of committing the robbery which he admitted, being tried by a judge alone. Further, during argument on the appeal, Mr Gabriel accepted (properly in my view), that there was an 'irresistible inference' that Murray J considered that trial of those issues by a judge sitting alone was in the interests of justice - that being the proper explanation for his intervention in the course otherwise proposed. Further, there is no suggestion that the parties were aware of the identity of the trial judge at the time of this hearing. It follows that all the requirements for an order for trial by judge alone under s 118 of the Criminal Procedure Act were met, other than the requirement that there be an application for such an order. That requirement was not met because of the view, unequivocally expressed by Murray J, to the effect that such an application was unnecessary (contrary to the view earlier expressed by Jenkins J).
The first two home invasions were followed by another burglary and car theft in a southern suburb, which was in turn followed by the burglary of a hotel, following a forceful breaking in.
When offences of this seriousness are committed, there is a temptation to engage hyperbolic adjectives like 'egregious', 'abhorrent', 'shocking', appalling', 'outrageous', 'horrendous' and so on. I will endeavour to resist that temptation, notwithstanding that descriptions of that kind could be aptly applied to Mr Gillespie's conduct. It is sufficient to observe that the seriousness of the offences committed by Mr Gillespie requires the court to impose a total effective sentence which sends a clear and unequivocal message to the offender, and others who might be minded to commit similar offences, that conviction for such offences will inevitably result in a substantial term of imprisonment, thereby giving effect to community expectations with respect to the punishment which should be imposed upon offenders who behave with such flagrant disregard for the standards of behaviour demanded by any civilised community.
The seriousness of Mr Gillespie's offending behaviour is aggravated by the fact that he was on bail at the time these offences were committed, and by the fact that the commission of the offences constituted a breach of the conditions attached to more lenient sentences imposed upon him in the past.
At one point in the course of oral submissions, counsel for Mr Gillespie suggested that the total effective sentence imposed was manifestly excessive because of Mr Gillespie's antecedents. The submission was not developed at any length, and it must be rejected. Although Mr Gillespie's relatively young age must be taken into account, and has a mitigating effect, he was an adult at the time the offences were committed, and bore all the responsibilities which go with adulthood. He is not entitled to any mitigation as a consequence of previously having been of good behaviour, as he has a criminal record which is not insignificant. He was given an opportunity to demonstrate his capacity to realise the error of his ways and become a law‑abiding citizen when he was placed on community‑based orders, which he abused by embarking on a spree of serious offences.
It is clear that the totality principle was taken into account by the sentencing judge. That is apparent from the fact that the sentence imposed in respect of count 5, which was a very serious offence of home invasion, was made only partly cumulative on count 2, and from the fact that the sentence imposed in respect of count 10, being the count relating to the burglary at the hotel, was made entirely concurrent, notwithstanding that it was a completely separate and distinct offence.
Mr Gillespie was entitled to the benefit of the entry of a plea of guilty at the earliest reasonable opportunity in respect of all counts, notwithstanding that he disputed the circumstances of aggravation relating to count 2. He was also entitled to benefit from his cooperation with police, including by the provision of information which assisted police to identify two of his co‑offenders, notwithstanding that Mr Gillespie did not go so far as to formally offer to assist by giving evidence against those co‑offenders. It was also relevant that he had participated in the Halo programme between arrest and sentence. All these matters were specifically taken into account by the sentencing Judge.
It was not submitted, nor could it be seriously contended, that the individual sentences imposed in respect of the various offences which Mr Gillespie committed were outside the range which would be derived taking into account the circumstances of the offending behaviour, the standards of sentencing customarily observed with respect to the various offences involved, and all relevant mitigating factors. Those factors are, as I have noted, Mr Gillespie's relative youth, his early plea of guilty, his cooperation with police, and the steps he had taken towards his own rehabilitation prior to sentence.
The sentences which he received for the various offences of aggravated burglary were each terms of 3 years imprisonment, save for the term of 1 year imprisonment imposed in respect of the burglary committed in Brentwood, May 2010 (charge 6101) for which Mr Gillespie was resentenced as a result of his breach of the community‑based order. For the offence of burglary at the hotel, Mr Gillespie was sentenced to a term of 2 years imprisonment. Each of these sentences is well within the relevant range - see Ashworth v The State of Western Australia [2006] WASCA 36; Drake v The State of Western Australia [2006] WASCA 209; Nguyen v The State of Western Australia [2007] WASCA 114. In recent years, the sentencing range for offences involving home burglaries of the kind committed by Mr Gillespie have been firmed up in the recognition of the prevalence of those offences, and the impact which they have upon the occupants of the burgled homes. In such cases, the primary sentencing considerations are personal and general deterrence - see Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7 [14].
For the two offences of robbery, Mr Gillespie was sentenced to terms of 5 years and 4 years imprisonment respectively. The maximum penalty for those offences was life imprisonment. It has been observed that the range of sentences commonly imposed for single offences of armed robbery is 4 to 6 years imprisonment, expressed in terms of the transitional provisions then in force, and without taking into account matters of mitigation (Nannup v The State of Western Australia [2011] WASCA 257 [72] (Buss JA)). However, the offences committed by Mr Gillespie were particularly serious. The offence committed in Como involved actual violence and significant injury to the victim. The offence committed in Nedlands involved a confrontation which must have been terrifying to the vulnerable female occupants of the house, who were threatened with murder by armed intruders. In Nannup, following a successful appeal against conviction, one of Mr Gillespie's co‑offenders was sentenced in this court to a term of 4 years and 4 months imprisonment in respect of the Nedlands offence. As the Como offence can be regarded as more serious, having regard to the degree of violence actually used, it is clear that the sentences imposed upon Mr Gillespie for armed robbery are well within the range indicated by the sentence imposed by this court in Nannup.
In relation to the three offences of stealing a motor vehicle, Mr Gillespie was sentenced to 18 months imprisonment in respect of two of those offences, and 1 year imprisonment in respect of the third. Given that the maximum penalty for those offences was 7 years, it could not be suggested that they fell outside the range of sentences properly available to the sentencing judge - see Penny v The State of Western Australia [2006] WASCA 173 [19] (McLure JA).
As the individual sentences imposed in respect of each offence was each well within the range available to the sentencing judge, the only remaining question is whether the orders which were made for concurrence and accumulation which had the effect of producing a total effective sentence of 8 years imprisonment breached the totality principle, on the ground that it did not bear a proper relationship to the overall culpability reflected in the offending behaviour. In my view, when proper account is taken of the culpability of Mr Gillespie's offending behaviour, a total effective sentence of 8 years imprisonment is, if anything, at the lower end of the range of sentences which would appropriately reflect that culpability. As I have noted, a sentence of 5 years imprisonment for the armed robbery committed in Como was well within the applicable range, having regard to its seriousness. In terms of total effective sentence, Mr Gillespie received only one additional year as a consequence of his commission of the Nedlands armed robbery. Further, in terms of total effective sentence, Mr Gillespie received only one further year in respect of both the Lakelands aggravated burglary and motor vehicle theft, and the burglary on the hotel in Cottesloe. Again viewed in terms of total effective sentence, Mr Gillespie received only one further year in respect of the eight offences for which he was resentenced as a result of his breach of the community‑based orders, including the serious offence of aggravated burglary.
Viewed in these terms, the total effective sentence imposed upon Mr Gillespie was, in my view, lenient. Ground 1 of the appeal against sentence should be dismissed.
Ground 2
Ground 2 asserts that because the sentence imposed in respect of count 5 on the indictment (the Nedlands armed robbery) was partly cumulative, and the sentences imposed for the theft of the Holden motor vehicle and the aggravated burglary committed in Brentwood in May 2010 were also cumulative, they were manifestly excessive. These propositions add nothing to ground 1. Leave to appeal on ground 2 should be refused for the reasons I have given in relation to ground 1.
Grounds 3 and 4 - parity
Ground 3 and 4 assert that the sentences imposed upon Mr Gillespie are out of parity with the sentences imposed upon the co‑offender Mr Nannup after he was resentenced in this court. Using the count numbers on the indictment brought against Mr Gillespie, those sentences were:
| Count (Gillespie indictment) | Offence | Nannup |
| 3 | Stealing motor vehicle | 1 year imprisonment |
| 4 | Aggravated burglary | 3 years 4 months imprisonment |
| 5 | Armed robbery | 4 years 4 months imprisonment |
| 6 | Stealing motor vehicle | 1 year imprisonment |
| 8 | Aggravated burglary | 3 years 4 months imprisonment |
| 9 | Stealing motor vehicle | 1 year imprisonment |
| 10 | Aggravated burglary | 1 year imprisonment |
The court ordered that the sentence for the theft of the motor vehicle in Como should be served cumulatively on the sentence imposed for the Nedlands armed robbery, and all other sentences served concurrently, giving rise to a total effective sentence of 5 years 4 months imprisonment.
If the individual sentences imposed upon Mr Nannup are compared with those imposed upon Mr Gillespie, it will be seen that the sentence imposed upon Mr Nannup for the aggravated burglary and the armed robbery committed in Nedlands, and for the aggravated burglary committed in Lakelands exceeded the sentences imposed upon Mr Gillespie by 4 months in each case. The sentence imposed in respect of the Cottesloe burglary was one year less than that imposed upon Mr Gillespie. The sentences imposed upon Mr Nannup for motor vehicle theft were, in two out of the three cases, six months less than those imposed upon Mr Gillespie.
It is trite to observe that the principles which underpin parity of sentencing are not infringed merely because of a lack of exact mathematical correspondence between sentences imposed upon co‑offenders. Those principles are only infringed if the sentence imposed upon one offender, when compared to that imposed upon another, gives rise to a justifiable sense of grievance on the part of an offender who can be seen to have been the subject of harsher penalties: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ); Nicolaides v The State of Western Australia [2012] WASCA 199 [102] (Buss JA, Mazza JA agreeing); Tomov v The Queen [2011] WASCA 189 [98] (Buss JA, Newnes JA & Hall J agreeing); Barry v The State of Western Australia [2012] WASCA 175 [55] ‑ [57] (Mazza JA, Buss JA agreeing); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA). Given that the total effective sentence imposed upon each of Mr Nannup and Mr Gillespie was significantly influenced by the totality principle, the relatively small differences in the individual sentences imposed, and which, very generally speaking, balance each other out, cannot give rise to any justifiable sense of grievance on the part of Mr Gillespie.
It is necessary to assess whether the total effective sentence imposed upon Mr Gillespie is disparate to that imposed upon Mr Nannup. As I have mentioned, the relative total effective terms were 8 years (Mr Gillespie) and 5 years and 4 months imprisonment (Mr Nannup).
There is no material difference in the mitigatory factors properly taken into account in respect of each offender. Each was a relatively young adult at the time the offences were committed, each pleaded guilty at the earliest reasonable opportunity, and each cooperated with police in the identification of their co‑offenders without going further and offering to give evidence against those co‑offenders.
Counsel for Mr Gillespie suggested that a significant distinction between the two cases arose from the fact that Mr Nannup had a significantly more extensive prior record than Mr Gillespie. This submission misconceives the effect of a prior record upon the sentencing process. Prior offending is not an aggravating factor. However, prior offending precludes the offender from obtaining any benefit from mitigation as a result of prior good behaviour: Benter v The State of Western Australia [2005] WASCA 245 [30] (McLure JA); Sentencing Act s 7(2). For the reasons I have given, Mr Gillespie could not be said to have been of prior good behaviour, or to be entitled to any mitigatory benefit as a result of his prior record. It follows that the distinction between the prior records of the two offenders has no effect upon the sentences properly imposed upon each.
Most significantly, Mr Nannup did not commit either the aggravated burglary or the armed robbery in Como which were committed by Mr Gillespie. These were the most serious offences Mr Gillespie committed. Further, unlike Mr Nannup, Mr Gillespie was sentenced on eight further offences as a consequence of his breaches of the community‑based orders to which he was subject. In the way in which Mr Gillespie's total effective sentence was structured, as compared to Mr Nannup he received a greater penalty of 1 year and 8 months imprisonment by reason of the offences he committed in Como, and a further 12 months imprisonment in respect of the eight offences for which he was resentenced. Those increases in effective sentence are entirely justified by the culpability of the offending conduct involved. Grounds 3 and 4 are without substance. Leave to appeal should be refused.
Ground 5
Ground 5 draws attention to the fact that Mr Gillespie was sentenced to a term of 6 months imprisonment for the offence of stealing which formed an element of the offence of aggravated burglary which he committed in May 2010, and for which he was sentenced to a term of 1 year imprisonment. The ground points out, correctly, that the imposition of a sentence for the offence of stealing in those circumstances amounts to double punishment contrary to s 11 of the Sentencing Act. The State properly concedes this ground. Leave to appeal should be granted, the ground allowed, and the sentence imposed for the offence of stealing (charge 6102) quashed. As the term imposed in respect of that offence was directed to be served concurrently with the other terms imposed, this will have no impact upon the total effective sentence.
Ground 6
Ground 6 challenges the sentences of 3 months imprisonment which were imposed in respect of the two other offences of stealing for which Mr Gillespie was resentenced (charges 4465 and 6703). It is submitted that the penalties imposed exceed the maximum penalty available following a summary conviction for stealing, which is a fine of $6,000 where the value of the property stolen is less than $1,000 (Code s 426(4)(b)). However, when the stealing offence is dealt with by way of indictment, the maximum penalty is 7 years imprisonment.
Pursuant to s 130(1)(b) of the Sentencing Act, when a court resentences an offender as a result of breach of a community‑based order, the court may sentence 'in any manner the court could if it had just convicted the person of (the) offence'. If the Supreme Court had convicted Mr Gillespie of stealing, he would have been presented to that court on an indictment. It follows that he was liable to be sentenced in any manner available to the Supreme Court as if presented on indictment, with the consequence that the maximum penalty applicable in the event of summary conviction did not apply. Accordingly, leave to appeal on this ground should be refused. Further and in any event, it should be noted that, as the sentences imposed in respect of these offences were ordered to be served concurrently, they had no impact upon the total effective sentence imposed.
Summary
The appeal against conviction should be dismissed. Ground 1 of the appeal against sentence should be dismissed. Leave to appeal on grounds 2 ‑ 4 and ground 6 of the appeal against sentence should be refused. Leave to appeal should be granted in respect of ground 5, that ground allowed, and the sentence of 6 months imprisonment imposed for the offence of stealing (charge 6102) quashed.
PULLIN JA: I agree with the orders proposed by the Chief Justice concerning the sentence appeal for the reasons given by the Chief Justice.
I agree also that the conviction appeal should be dismissed. These are my reasons.
The appellant was guilty of a serious case of home invasion. The charge on the indictment read:
[On or about 24 September 2010] at [Como he] stole from [the victim], with violence, keys and other items the property of [the victim] and that [he] was armed with an offensive instrument, namely a set of gardening secateurs, and that [he] was in company with others and that [he] did bodily harm to [the victim].
When the indictment was put to the appellant, he answered 'I'm guilty for robbery only'. When asked to clarify this he said that he was 'guilty of robbery in company only' (ts 50 ‑ 51). In other words, he was indicating that he admitted all elements of the offence except for the allegation that he was armed with the secateurs.
The appellant was represented by counsel. The appellant, over a number of earlier hearings, indicated that he did not want a trial by jury. He wanted a trial by judge alone. On 19 December 2011, there was a hearing before Murray J sitting alone. During the hearing, witnesses were called who proved that the accused was armed with the secateurs. At the end of the hearing, Murray J gave reasons for his decision. The reasons read:
[T]he offender is guilty and I now convict him of the offence which is count 2 on the indictment in the circumstances of aggravation which are alleged and contained in the indictment; not only that he was in company with others, but that he was armed with the gardening secateurs as an offensive instrument and that he did bodily harm to [the victim] …
A judgment of conviction was then entered.
The appellant now contends that there was a technical deficiency with the process. He goes so far as to contend in the particulars to the grounds of appeal that he was 'deprived of his right to a trial by a judge and a jury'. However, s 118 of the Criminal Procedure Act 2004 (WA) (CP Act) allows for a trial by a judge alone without a jury, and that was what the parties wanted. In terms of s 118, the prosecutor expressed an intention to apply for an order that the trial should be by judge alone, and the appellant expressed his intention to consent to such an order. This was clear before the trial and at a time where the identity of the judge to conduct the hearing was not known to the parties. Murray J did not make an order because his Honour expressed the view that the appropriate course was to determine the issue about whether the appellant was armed with secateurs as a sentencing issue (ts 49).
No matter what Murray J's views were about the process to be followed, the fact is that the process followed was the process which would have been followed if an order had been made under s 118 of the CP Act. If Murray J had truly conducted a hearing to resolve a sentencing issue about the secateurs, then the hearing would have been preceded by a verdict of guilty and a judgment of conviction. That did not happen. Instead, Murray J conducted a trial, heard evidence and made findings not just about the circumstances of aggravation, including whether or not the appellant was armed with the secateurs, but that the offences had been proved. His Honour found the appellant guilty and then entered a judgment of conviction. His Honour's view and belief that the proceedings on 19 December 2011 were proceedings about a single sentencing issue, is not consistent with what happened. The verdict of guilty and the judgment of conviction only occurred on 20 December 2011 following and in consequence of the trial.
It is true that no order was made under s 118, but the parties had intended that there should be such an order and the conditions for the making of the order existed. The hearing was conducted in the manner that a trial would have been conducted had an order been made. The standard of proof applied was the standard of proof necessary to return a verdict of guilty. I agree with the Chief Justice that there was no wrong decision on a question of law. Insofar as the conduct of a trial before a judge without a jury constituted a miscarriage of justice, there was no substantial miscarriage of justice for the reasons given by the Chief Justice.
The appeal against conviction should be dismissed.
As a result of the reasons set out above, it is not necessary to discuss the correct procedure to follow when the offender is charged with robbery in the circumstances provided for in s 392(c) or (d). However, the subject is discussed by the other two members of the court. I agree with Mazza JA's reasons on that point.
MAZZA JA: I have had the advantage of reading the draft reasons of Martin CJ. I join with him in dismissing the appeal against conviction and allowing the appeal against sentence but only to the extent of allowing ground 5 and quashing the sentence on the stealing charge No 6102.
With respect to the appeal against conviction, for the reasons given by Martin CJ, I agree that, in the particular circumstances of this case, his Honour did not make a wrong decision on a question of law as alleged by the appellant. I also agree, for the reasons given by Martin CJ, that even if his Honour made an error, no substantial miscarriage of justice occurred. The appellant always wanted a trial by judge alone with respect to the circumstance of aggravation. Through his counsel, he eschewed the possibility of a jury trial. The proceedings conducted by Murray J were, as it turned out, no different in substance to a trial by judge sitting alone.
However, I respectfully differ from Martin CJ's conclusion that the procedure followed by Murray J was correct. My reasons for arriving at this conclusion are as follows.
The questions which arise are these: what is the correct procedure when an offender is charged with robbery in the circumstances provided for in s 392(c) or (d) and wishes to admit the robbery but dispute one or more of the circumstances of aggravation? Do the disputed circumstances have to be tried by a jury (or a judge sitting alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA)) or can they be tried by the sentencing judge in a trial of issues?
There are conflicting authorities in this State on these questions.
In the present case, Murray J applied his earlier decision in The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, which was decided prior to the commencement of the Criminal Procedure Act. There, his Honour ruled that when an offender pleads guilty to robbery but disputes a pleaded circumstance of aggravation, the dispute was to be resolved not by a jury but by the sentencing judge in a trial of issues. As I understand his Honour's reasons, they depend
substantially on provisions in the Criminal Code (WA) that have since been repealed.
However, in Caporn v The State of Western Australia[No 2] [2008] WASCA 26; (2008) 36 WAR 294, Beech AJA, with whom Pullin JA agreed, held that when a circumstance of aggravation is pleaded in an indictment and disputed by an accused, a trial judge is required to obtain the verdict of a jury in respect of that circumstance: [132] ‑ [136].
Since Caporn [No 2], the general practice in this State is for a disputed circumstance of aggravation to be tried by a jury or by a judge sitting alone, pursuant to s 118 of the Criminal Procedure Act.
The answers to the questions that I have posed are matters of statutory interpretation. The relevant provisions are contained in the Criminal Code, the Criminal Procedure Act and the Sentencing Act 1995 (WA). They should be interpreted harmoniously.
The starting point is s 392 of the Criminal Code. That section provides:
A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -
(a)to obtain the thing stolen; or
(b)to prevent or overcome resistance to its being stolen,
is guilty of a crime and is liable -
(c)if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life; or
(d)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or
(e)in any other case, to imprisonment for 14 years.
The circumstances of aggravation referred to in s 392(d) are set out in s 391 of the Criminal Code as follows:
circumstances of aggravation means circumstances in which -
(a)immediately before or at or immediately after the commission of the offence -
(i)the offender is in company with another person or persons; or
(ii)the offender does bodily harm to any person; or
(iii)the offender threatens to kill any person;
or
(b)the person to whom violence is used or threatened is of or over the age of 60 years.
The structure and text of s 392 of the Criminal Code are clear. The section creates one offence of robbery. The elements of that offence are described in the first part of the section concluding with the words 'is guilty of a crime'. What follows is the statement of the maximum penalty to which an offender is liable in the event that his or her guilt is established. The maximum penalty varies according to the circumstances in which the offence is committed. The circumstances in s 392(c) and (d) do not alter the nature of the offence of robbery and do not create a series of distinct robbery offences. I acknowledge that there exists in common speech a taxonomy of robbery offences. Descriptions such as 'simple robbery', 'aggravated robbery', 'robbery in company', 'armed robbery' and 'aggravated armed robbery' are regularly used. These descriptions conveniently, in a shorthand way, categorise the circumstances of a robbery so that the offence can be related to the relevant maximum penalty. However, these descriptions do not alter the fact that s 391 creates one offence.
To commence a prosecution in a superior court, a duly authorised officer must lodge an indictment that alleges an indictable offence: s 83(1) and (2) of the Criminal Procedure Act. The formal requirements of an indictment are found in s 85 and sch 1 of the Criminal Procedure Act. Clause 5(1) of sch 1 requires a charge in an indictment to inform an accused of the alleged offence in enough detail to enable the accused to understand and defend the charge. The word 'charge' is defined in s 3 as a written allegation in an indictment that a person has committed an offence. 'Offence' is defined in the same section to mean relevantly 'an indictable offence'. It seems to me that, in light of these provisions, a charge in an indictment alleging an offence of robbery said to have been committed in the circumstances provided for in s 392(c) and (d) must plead the relevant circumstance or circumstances.
The position is made clear by s 7(3) of the Sentencing Act which provides:
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors. (emphasis added)
The meaning of this subsection is obvious. It requires that the charge written in the indictment includes not just the statement of the offence, but also the circumstance or circumstances which make the offender liable to the greater penalty. The effect of s 7(3)(a) is that unless this occurs, an offender is not liable upon conviction to the greater maximum penalty.
Therefore, before a person is liable to the statutory maximum provided for in s 392(c) or (d) of the Criminal Code, that person must be first charged with committing a robbery in the circumstances set out in those subsections, and second, the offender must be convicted of committing the robbery in those circumstances.
The requirement in s 7(3)(a) of the Sentencing Act that an offender be 'convicted' of committing the offence in the circumstances said to give rise to the greater maximum penalty is important to the present discussion. In order to be liable for the greater maximum penalty, an offender must be convicted of the offence, in the circumstance or circumstances which make the offender liable to the greater penalty.
To be convicted of something requires a finding of guilt. Where a person pleads not guilty, guilt may only be established after trial. If a person is charged with an indictable offence, s 92 of the Criminal Procedure Act applies so that the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury or, pursuant to s 118 of the Criminal Procedure Act, by judge alone.
Where an offender pleads guilty to a charge on indictment which contains a statement of the offence including the circumstances said to give rise to the greater maximum penalty and that plea is accepted by the court, the offender is convicted of the offence including the circumstances which give rise to the greater penalty.
For myself, I have considerable doubt as to whether an offender can, in relation to a charge which alleges the commission of an offence in circumstances which give rise to a greater maximum penalty, plead guilty to the offence and not guilty to the circumstances said to give rise to the greater penalty. This doubt arises due to s 126(4) of the Criminal Procedure Act, which does not allow a person to enter two or more pleas in circumstances in which one of the pleas is entered as a plea of guilty: see Zimmerman v The State of Western Australia [2009] WASCA 211. However, for the purposes of the present analysis I will assume that it is possible for an offender to plead guilty to the offence of robbery and not guilty to any alleged circumstances said to make the offender liable to a greater maximum penalty.
Where an offender enters a plea of guilty to robbery and not guilty to the circumstances said to give rise to the greater penalty, there must be, in my view, a trial either by jury or pursuant to an order made under s 118 of the Criminal Procedure Act. This is because of the requirement in s 7(3) of the Sentencing Act that the offender be convicted of the offence in the circumstances giving rise to the greater penalty.
With great respect, I do not agree with Martin CJ's conclusion that s 146 of the Sentencing Act allows a judge to determine, after a plea of guilty is entered to robbery, whether there exists circumstances which render the offender liable to a greater maximum penalty. Section 146 of the Sentencing Act reads:
In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury.
Section 146 of the Sentencing Act refers to the resolution of disputed facts in proceedings 'under this Act'. The Sentencing Act 'applies to' all persons 'convicted' of an offence (s 3(1)). Section 146 applies to a trial of issues. In other words, proceedings before a sentencing judge who must determine facts relevant to the exercise of the sentencing discretion within the prescribed range and which need not be pleaded in the indictment: R v Hietanen (1989) 51 SASR 510, 514. The determination by a judge of a fact at a trial of the issues is not in any sense a conviction. A trial of issues occurs after a conviction is recorded.
In my opinion, when a circumstance of aggravation is pleaded in an indictment, superior courts at first instance should obtain the verdict of a jury or, in the case of a trial by judge alone, of that judge, in respect of that circumstance. The matter should not be resolved by a trial of issues.
I accept that this result may, in some cases, be inconvenient. The most obvious alternative is for an accused to seek, as the appellant did in substance in the present case, a judge alone trial pursuant to s 118 of the Criminal Procedure Act. It is also a matter which might readily be addressed by legislative amendment.
With respect to the appeal against sentence, I agree with the Chief Justice's reasons.
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