Howard v The State of Western Australia

[2016] WASCA 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HOWARD -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 70

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   6 APRIL 2016

DELIVERED          :   6 MAY 2016

FILE NO/S:   CACR 101 of 2015

BETWEEN:   JAMES PETER HOWARD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND 1201 of 2014

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Possession of unlicensed firearms - Timing of guilty plea to offences under s 32 Sentencing Act 1995 (WA) - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27, s 31
Criminal Procedure Rules 2005 (WA), r 44
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 9AA, s 32, s 33

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J McGrath SC

Solicitors:

Appellant:     Gary Rodgers Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. McLURE P: This is an appeal against sentence. On 21 November 2014 the appellant was convicted on his plea of guilty of one count of possession of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).

2. The basis of the appellant's guilty plea to the indictable offence was that his intention was to supply the methylamphetamine to his partner.  A trial of issues was conducted before Birmingham DCJ on 30 April 2015 and 4 May 2015.  The sentencing judge was not satisfied on the balance of probabilities that the 11.8 g of methylamphetamine the subject of the indictable offence was for the appellant's use and for supply to his partner.  He based his finding on the purity of the drug (79%), the presence at the appellant's residence of scales, cutting agent, clipseal bags, surveillance cameras and firearms and the absence of a credible explanation as to the appellant's capacity to pay for the drugs.  The appellant was sentenced to 2 years 6 months imprisonment for the indictable offence on the basis that he was a user/dealer.

3. The background is as follows.  On 4 February 2014, police executed an MDA search warrant at the appellant's residence.  As a result of that search the appellant was charged with the indictable offence and the following further offences:

   -possession of a firearm in circumstances of aggravation, namely a .22 calibre revolver handgun (charge 66623/14);

   -possession of an unlicensed firearm, namely a .117 calibre air pistol (charge 66625/14);

   -possession of unlicensed ammunition, namely fifty two .22 calibre rounds, eight .38 calibre rounds and two shotgun cartridges (charge 66624/14); and

   -two counts of failing to ensure safe keeping of firearm/ammunition (charges 66626 ‑ 27/14).

4. The appellant was on bail in respect of the above charges when a further MDA search warrant was executed at his residence on 28 February 2014.  As a result of this search the appellant was charged with the following further offences:

   -possession of a firearm in circumstances of aggravation, namely a sawn‑off shotgun (charge 69591/14);

   -possession of unlicensed ammunition, namely four shotgun rounds (charge 69592/14);

   -possession of a prohibited drug, namely cannabis (charge 69593/14);

   -possession of a prohibited weapon, namely a Taser (charge 69594/14); and

   -possession of drug paraphernalia, namely two smoking implements (charge 69595/14).

5. On 30 April 2015, the appellant pleaded guilty to the 10 other offences with which he had been charged and which were the subject of a notice under s 32 of the Sentencing Act 1995 (WA) (the s 32 offences). On 22 May 2015 Birmingham DCJ sentenced the appellant for the indictable offence and the s 32 offences. The sentences for the s 32 offences are as follows:

Charge	Sentence
66623/14	12 months imprisonment
66625/14	3 months imprisonment
66624/14	6 months imprisonment
66626/14	3 months imprisonment
66627/14	3 months imprisonment
69591/14	12 months imprisonment
69592/14	6 months imprisonment
69593/14	1 month's imprisonment
69594/14	6 months imprisonment
69595/14	$1,000 fine

1. The sentencing judge ordered that the sentence for the indictable offence be served cumulatively with the sentences for the firearm offences the subject of charges 66623/14 and 69591/14, resulting in a total effective sentence of 4 years 6 months imprisonment.  The appellant relies on two grounds of appeal in the following terms:

   (1)the sentence that the appellant received was manifestly excessive in light of the failure of the learned sentencing judge to correctly apply s 9AA of the Sentencing Act 1995 (WA); and

   (2)the principle of totality was offended.

2. Leave to appeal was granted on ground 1.  The application for leave on ground 2 was referred to the hearing of the appeal.

Guilty plea discount - ground 1

1. Although the ground complains of implied error (manifest excess), it is in substance a claim of express error in relation to the sentencing for the s 32 offences. In particular, the complaint is that the sentencing judge failed to comply with his obligation in s 9AA(5) of the Sentencing Act in omitting to state the extent of the discount for his plea of guilty to the s 32 offences.

2. Under s 9AA(4), if the head sentence is or includes a fixed term of imprisonment, the court must not reduce the fixed term under subsection (2) by more than 25%, or by 25% unless the offender pleaded guilty at the first reasonable opportunity. Section 9AA(5) provides:

   If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

3. The requirement to state the extent of the reduction is linked with the prohibitions in s 9AA(2) relating to fixed terms. On my reading of the sentencing judge's reasons as a whole, I infer he applied a 10% discount in respect of all relevant offences for which he was sentencing the appellant, including the s 32 offences. After referring to the facts of all the offending and the appellant's personal circumstances, the sentencing judge said:

   It's to your credit you pleaded guilty.  It was late.  It came at a committal stage when the matter was then prepared for trial.  Although your counsel has indicated you had always offered to plead guilty to the issue of ‑ to the matter of supply, and sought to challenge the facts, that was not a plea that was accepted, and resulted in a two‑day trial of issues that might have been avoided had you been forthright with your involvement in relation to the matter.

   Your plea is a mitigating factor, however, and you're entitled to a reduction of the sentence that might otherwise be imposed, and that will necessarily reflect the benefit that the State obtain from your plea.  You must also bear in mind, however, that there has been delay in the context of your acknowledgement or conviction in relation to the offence and the terms ‑ or the basis upon which you were convicted, and the utility of your plea is somewhat restricted in that regard.

   For the purposes of section 9AA of the Sentencing Act I reduce the head sentence that would otherwise have been imposed by 10% to reflect the benefits to the State from the plea (ts 249 ‑ 250).

4. Later in his reasons, the sentencing judge returns to the subject of matters in mitigation:

   Having regard to the matters that have been raised by your counsel … in mitigation, and also to your plea, in my view the only appropriate disposition in this matter is a term of imprisonment.  I am obliged to sentence you in respect of each offence and then consider questions of cumulation, concurrence and totality.  I'll announce the individual sentences I intend to impose, and then announce how I structure the sentence to take account of the totality principle.

   In each case, when I announce the sentence, I take into account those factors identified in mitigation including your plea of guilty and the factors that have been drawn to my attention.

5. The sentencing judge then goes on to sentence the appellant for the indictable offence and each of the s 32 offences. I infer the sentencing judge applied a 10% discount from the head sentence of all relevant offences, not just the indictable offence.

6. That inference is supported by the content of the appellant's plea in mitigation and the statutory framework for the s 32 offences. The appellant's sentencing counsel in his plea of mitigation did not differentiate between the indictable offence and the s 32 offences in relation to matters relevant to the extent of the discount for the plea of guilty. In particular, the appellant's counsel did not place before the sentencing judge any material from which it could be inferred that the appellant had indicated his intention to plead guilty to the s 32 offences at the first reasonable opportunity.

7. To understand this point it is necessary to refer to the terms of s 32 and s 33 of the Sentencing Act.  An offender who is to be sentenced by a superior court for an offence (referred to as the 'original offence') may request the court to also deal with impending charges against him or her:   

   s 32(1). On such a request being made, a list of pending charges is to be prepared and served in accordance with rules of court: s 32(2). When a list of pending charges has been prepared and served, the superior court must ask the offender to plead to any of the pending charges listed which the offender has not previously been convicted of and to say whether he or she wants the superior court to also pass sentence for each of those pending charges that he or she is convicted of: s 33(1). If the State consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence, also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with: s 33(3).

8. Under r 44(1) of the Criminal Procedure Rules 2005 (WA) (the Rules) the request by an offender under s 32(1) of the Sentencing Act must be in the form of Form 11. A request under s 32(1) would not be made before the offender had decided to plead guilty to the original offence. The usual course is for the offender to indicate to the Magistrates Court at an early stage an intention to plead guilty to charges which may in due course become the subject of a s 32 notice. To enter a guilty plea in the Magistrates Court would result in the Magistrates Court being seized with jurisdiction to enter a conviction, in which event s 32 would have no application.

9. The appellant did not lodge a Form 11 until 26 March 2015. There is nothing in the record of proceedings in the Magistrates Court evidencing that the appellant had foreshadowed his intention to plead guilty to any of the s 32 offences. At the conclusion of the hearing of the appeal, the appellant's appeal counsel (who had not appeared for the appellant below) was given the opportunity to place evidence before the court contradicting or supplementing the Magistrates Court record. Counsel for the appellant below, Gary Rodgers, deposed in an affidavit sworn on 8 April 2016 that, although he understood the appellant 'was always going to plead guilty' to the s 32 offences, there is nothing in his file to suggest that notice of his client's intention was given prior to the filing and service of the Form 11. An undisclosed intention is irrelevant for the purposes of s 9AA.

10. In the absence of relevant information from the appellant's sentencing counsel, it was open to the sentencing judge to apply the same discount to all the offences. The only information before the sentencing judge was that the appellant had not foreshadowed his intention to plead guilty to the s 32 offences until more than four months after the appellant pleaded guilty to the indictable offence. The information winkled out in

the hearing of the appeal supports the correctness of the sentencing judge's approach.

1. Even if, contrary to my view, the sentencing judge made an appealable error, I am not of the opinion that a different sentence should have been imposed for any of the s 32 offences. Accordingly, the appeal cannot be allowed on this ground: Criminal Appeals Act 2004 (WA) (CAA), s 31(4)(a).

Totality - ground 2

1. There is no merit in the claim that the total effective sentence infringes the first limb of the totality principle.  Such a claim relies on an implication of error.  The total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. 

2. The appellant was aged 32 at the time of the offences.  The unchallenged finding of the sentencing judge was that the appellant's lengthy criminal record indicated a persistent defiance and disregard for the law and that the offending was not an uncharacteristic aberration.  This, together with the appellant's offending on 28 February 2014 whilst on bail for the offences committed on 4 February 2014, underscores the need for personal deterrence in addition to general deterrence.  A total sentence of 4 years 6 months is well within a proper exercise of the sentencing discretion.

3. Ground 2 does not have a reasonable prospect of succeeding. Accordingly, leave to appeal on that ground must be refused: CAA, s 27(2).

Conclusion

1. I would dismiss ground 1 and refuse leave to appeal on ground 2.  Accordingly, the appeal must be dismissed.

2. BUSS JA:  I agree with McLure P.

3. MAZZA JA:  I agree with McLure P.