Larsen v The State of Western Australia - [2019] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LARSEN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 181
CORAM:   MAZZA JA
BEECH JA
ALLANSON J

HEARD:   1 MARCH 2019
DELIVERED          :   15 NOVEMBER 2019
FILE NO/S:   CACR 35 of 2018
BETWEEN:   CHRISTOPHER ALEXANDER LARSEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number             :   IND 415 of 2017

Catchwords:

Criminal law and procedure - Appeal against conviction following a plea of guilty - Mandatory minimum sentence - Whether appellant understood charge and existence and consequence of mandatory minimum sentence - Whether abuse of process in application by State to amend indictment - Whether mandatory minimum in s 294(2) of the Criminal Code applies even if the circumstances rendering it applicable not pleaded in the indictment

Legislation:

Criminal Code (WA), s 294(1), s 294(2), s 401(2)(a)
Criminal Procedure Act 2004 (WA), s 39, s 41(2)
Sentencing Act 1995 (WA), s 7(3)

Result:

Applications for leave to adduce additional evidence granted
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Huron Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Borsa v The Queen [2003] WASCA 254
Gibson v The State of Western Australia [2017] WASCA 141
Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 54 WAR 207
Rowsell v The State of Western Australia [2015] WASCA 2
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v Smith [2016] WASCA 153
Topuz v The State of Western Australia [2017] WASCA 186
Vella v The State of Western Australia [2006] WASCA 30

MAZZA & BEECH JJA:

This is an appeal against conviction.
On 24 November 2017, the appellant was convicted on his pleas of guilty of one count of each of: being armed with a dangerous instrument in circumstances likely to cause fear to any person contrary to s 68 of the Criminal Code (WA) (the Code) (count 1); aggravated home burglary contrary to s 401(2)(a) of the Code (count 2); and with intent to maim, disfigure, disable or do some grievous bodily harm to K, unlawfully wounded K, and the offence was committed in the course of an aggravated home burglary contrary to s 294(1) and s 294(2) of the Code (count 3).[1]
[1] ts 10 - 11.
Section 294 of the Code relevantly provides:
294. Act intended to cause grievous bodily harm or prevent arrest
(1)Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -
(a)unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or
…
is guilty of a crime and is liable to imprisonment for 20 years.
(2)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).
Thus, by virtue of count 3 being allegedly committed in the course of an aggravated home burglary, the appellant was liable to be sentenced to a maximum penalty of 20 years' imprisonment and a mandatory minimum period of 15 years' imprisonment.[2]
[2] See s 9, Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA), which commenced operation on 31 October 2015.
The appellant also pleaded guilty to some offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA) (s 32 notice). It is unnecessary to describe those offences. They are irrelevant for the purposes of this appeal.
On count 3, the appellant was sentenced to 15 years' imprisonment with eligibility for parole to commence on 5 February 2017. He received concurrent terms of imprisonment with respect to all of the other offences (including the offences on the s 32 notice).[3]
[3] ts 29 - 30.
The appellant seeks leave to appeal on three grounds. Grounds 1 and 2 concern only the conviction on count 3. Ground 3, as amended at the hearing of this appeal,[4] concerns the convictions on counts 2 and 3.[5] Accordingly, there is no challenge to the appellant's conviction on count 1.
[4] Appeal ts 53 - 54.
[5] Appeal ts 57.
Ground 1 alleges that the appellant suffered a miscarriage of justice in relation to count 3 because he pleaded guilty to the charge without understanding its nature. Ground 2 alleges that there was an abuse of process by reason of the amendment of the indictment on the morning of the appellant's sentencing.[6] Ground 3, as amended at the hearing of the appeal, alleges that the appellant suffered a miscarriage of justice by failing to apply for an adjournment of the proceedings in respect of counts 2 and 3 following the amendment of the indictment.[7] The question of whether leave to appeal should be granted on these grounds has been referred to the hearing of the appeal.[8]
[6] WAB 33.
[7] Appeal ts 54.
[8] Order, 9 September 2018.
The parties each filed two applications for leave to adduce additional evidence in the appeal. The two applications filed by the appellant were dated 6 August 2018 and 8 February 2019, respectively, and sought to adduce, as additional evidence, affidavits sworn by the appellant on 3 August 2018 and 7 February 2019. The two applications filed by the respondent were dated 7 November 2018 and 22 February 2019, respectively. Those applications sought to adduce, as additional evidence, the affidavits of the appellant's counsel in the proceedings below, Maxwell Ian Crispe, sworn 26 September 2018 and 21 February 2019.
All of the applications for leave to adduce additional evidence were referred to the hearing of the appeal.
At the hearing of the appeal, the appellant and Mr Crispe each gave oral evidence and was cross‑examined.

The facts of the offending

No issue was taken at first instance with the statement of material facts that was read in the sentencing proceedings and which his Honour, in substance, incorporated into his sentencing remarks.[9] The facts may be summarised in this way.
[9] ts 11 - 15, 24.
In 2016, the appellant and the victim met through an online website.[10] They subsequently engaged in an intimate relationship. They never lived together.[11] Eventually, their relationship broke up, as a result of which the appellant became distraught.[12] On 17 December 2016, a violence restraining order protecting the victim was served on the appellant.[13]
[10] ts 24.
[11] ts 24.
[12] ts 25.
[13] ts 11.
On 3 February 2017, in breach of the violence restraining order, the appellant attempted to communicate with the victim via mobile telephone. Then, over a period of two or three days, he made 243 telephone calls to the victim in an attempt to contact her.[14]
[14] ts 25.
On 4 February 2017, the victim left Perth with the intention of driving to Denham to stay with her sister.[15]
[15] ts 11.
Somehow, the appellant learned that the victim was leaving Perth. He stole a motor vehicle and followed her to Geraldton,[16] where he again breached the violence restraining order by communicating or attempting to communicate with her and by following her to the vicinity of a restaurant.[17]
[16] ts 14.
[17] ts 11 - 12, 15.
On 5 February 2017, the victim left Geraldton on her way to Denham. The appellant again pursued her. In Northampton, he stole another vehicle which he crashed and left on the verge of the North West Coastal Highway short of Denham. He abandoned the vehicle and hitchhiked to Denham.[18]
[18] ts 15.
At about 4.00 pm on 5 February 2017, the appellant arrived at the vicinity of the victim's sister's unit. There he hid, awaiting the appearance of the victim. He was armed with a large knife which had a curved and pointed blade that was approximately 20 cm in length. At about 5.00 pm, the victim walked out of her sister's unit towards her parked car. The appellant took this opportunity to confront her. As he neared the victim, he pulled the knife out and waved it at her. He then pushed her to the ground, still holding the knife. This occurred in view of multiple witnesses, including the victim's sister, the victim's young children, and passing members of the public. The appellant put the tip of the knife against the victim's throat and repeatedly told her that he wanted to talk.[19]
[19] ts 12.
The victim managed to break away from the appellant and fled inside her sister's unit. The appellant pursued her, still holding the knife, and entered the house without consent. Once inside, the appellant slashed and stabbed the victim in a frenzied and concerted attempt to seriously injure her. The victim fell to the floor and the appellant pinned her there, continuing to slash and stab her. The victim feared that she was going to die.[20]
[20] ts 12 - 13.
Numerous family, neighbours and other members of the public came to the victim's assistance, attempting to stop the appellant from further assaulting her. Initially, the appellant continued his attack, but eventually he was restrained.[21]
[21] ts 13.
As a result of the attack, the victim sustained multiple injuries including a puncture wound to her left arm that nicked an artery, multiple puncture wounds to her upper torso including to the chest area and a 10 cm cut to her cheek. After receiving emergency medical treatment, she was flown to Perth and later underwent surgery.[22]
[22] ts 13.
The appellant was himself injured, as a consequence of which he was hospitalised for a couple of days.[23]
[23] ts 13.

The procedural history up to 23 November 2017

The committal summary report which formed part of the prosecution brief reveals that the appellant was, soon after his arrest, charged with three offences which alleged that, on 5 February 2017 at Shark Bay, he:
(a)was armed with a dangerous weapon, namely a filleting knife, in circumstances that were likely to cause fear to any person contrary to s 68(1) of the Code (PE 7944 of 2017); and
(b)with intent to do grievous bodily harm to K, did grievous bodily harm to her, contrary to s 294(1) of the Code (PE 7945 of 2017); and
(c)while in the place of H without her consent, committed the offence of acts intending to cause grievous bodily harm therein in circumstances of aggravation, namely that the appellant 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(2)(a) of the Code (PE 7946 of 2017).
The prosecution brief also included a statement of material facts dated 7 February 2017.[24] The contents of that statement very closely resemble the statement of facts that was ultimately read by the prosecutor to the sentencing judge. It is clear from the document that it was alleged that the offence contrary to s 294(1) occurred during the aggravated house burglary.[25]
[24] Blue AB, pages 31 - 33.
[25] Blue AB, page 32.
On 7 March 2017, the appellant entered pleas of guilty to the charges referred to in [23]. It is relevant to note that by operation of s 39 of the Criminal Procedure Act 2004 (WA) (CPA), before an accused may plead to an indictable charge, the prosecution must have served upon an accused a statement of material facts and the court must be satisfied that the accused understands the charge. No suggestion has been made that these procedures were not followed nor is it said that the appellant did not understand the charges. In accordance with s 41(2) of the CPA, the presiding magistrate, without convicting the appellant, committed him for sentencing in the District Court on 5 May 2017. The magistrate ordered the preparation of pre‑sentence reports for the District Court.
On a date in May 2017, the State filed an indictment alleging three offences which were as follows:[26]
[26] Blue AB, pages 1 - 2.
(1)On 5 February 2017 at Shark Bay [the appellant] was armed with a dangerous instrument, namely a filleting knife in circumstances likely to cause fear to any person.
(2)On the same date and at the same place as in Count (1) [the appellant], while in the place of [H] without her consent, committed the offence of unlawful wounding
And that [the appellant] was armed with a dangerous instrument, namely a filleting knife
And that [the appellant] did bodily harm to [K]
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(3)On the same date and at the same place as in Count (1) [the appellant], with intent to maim, disfigure, disable, or do some grievous bodily harm to [K], unlawfully wounded [K].
The marginal notes in the indictment refer to s 68 of the Code for count 1, s 401(2)(a) of the Code for count 2 and s 294(1) of the Code for count 3.
On 5 May 2017, the case came before a deputy registrar of the District Court. Defence counsel, Ms Crouch, sought and obtained an order for a psychiatric report. The matter was adjourned to 28 July 2017 to allow time for the report to be prepared.[27]
[27] ts 2 - 3.
By 28 July 2017, the psychiatric report had not been completed. The deputy registrar adjourned the matter for mention to 20 October 2017 'to make sure that the psychiatric report is in'[28] and provisionally listed the appellant's sentencing to 24 November 2017.[29] The psychiatric report was prepared and provided to the court in time for the mention on 20 October 2017.[30]
[28] ts 5.
[29] ts 5.
[30] ts 7.
On 22 November 2017, Mr Crispe filed written sentencing submissions in the District Court.[31]
[31] Annexure A to exhibit 1; WAB 16 - 23.
On 23 November 2017, that is, the day prior to the scheduled sentencing hearing, the State filed an application seeking to amend count 3 on the indictment dated May 2017 by adding the following paragraph after the substantive offence:[32]
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
and seeking an order that a new indictment dated 23 November 2017 be substituted for the indictment dated May 2017 to reflect the proposed amendment. It appears the State's application was brought in response to a query from Bowden DCJ via his associate as to whether the State would rely upon s 294(2) of the Code and, if so, his Honour required an amendment to count 3 to reflect this.[33]
[32] ts 10.
[33] Respondent's answer [11].
The proposed indictment dated 23 November 2017 was in these terms:[34]
[34] Blue AB, pages 3 - 4.
(1)On 5 February 2017 at Shark Bay [the appellant] was armed with a dangerous instrument, namely a filleting knife in circumstances likely to cause fear to any person.
(2)On the same date and at the same place as in Count (1) [the appellant], while in the place of [H] without her consent, committed the offence of unlawful wounding
And that [the appellant] was armed with a dangerous instrument, namely a filleting knife
And that [the appellant] did bodily harm to [K]
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(3)On the same date and at the same place as in Count (1) [the appellant], with intent to maim, disfigure, disable, or do some grievous bodily harm to [K], unlawfully wounded [K]
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
The only difference between the May 2017 indictment and the proposed indictment dated 23 November 2017 was the amendment to count 3 to add a circumstance which alleged that count 3 was committed in the course of the conduct that constituted an aggravated burglary. The effect of the addition of this circumstance was to make it clear that, if convicted of the count, the appellant was liable to the mandatory minimum sentence of 15 years' imprisonment.

The proceedings on 24 November 2017

On 24 November 2017, the matter was called on before Bowden DCJ. The appellant was represented by Mr Crispe. His Honour referred to the State's foreshadowed application to amend the indictment and asked Mr Crispe if it took him by surprise. Mr Crispe answered:[35]
Look, there is no problem with the matter proceeding with that change, your Honour. So although I only just saw it today it doesn't materially change what we are about to do.
[35] ts 9.
Mr Crispe went on to inform his Honour that he did not oppose the substitution of the indictment.[36]
[36] ts 9.
His Honour then made orders in terms of the State's application dated 23 November 2017 and allowed the State to substitute the indictment dated May 2017 with the indictment dated 23 November 2017.[37]
[37] ts 10.
The appellant was arraigned on the indictment dated 23 November 2017. To each charge, including count 3 as it had been amended, the appellant unequivocally pleaded guilty.[38] The prosecutor proceeded to read the statement of material facts for the indictable offences and the offences contained in the s 32 notice.[39]
[38] ts 10, 11.
[39] ts 11 - 15.
After doing so, his Honour confirmed with the prosecutor that the appellant was liable on count 3 to a mandatory minimum sentence of 15 years' imprisonment. In response to a further question from his Honour, the prosecutor said that the State did not urge the imposition of a sentence higher than the mandatory minimum penalty.[40]
[40] ts 16.
Mr Crispe began his plea in mitigation by saying that he became aware 'last night' of the effect of s 294(2) of the Code.[41] His Honour immediately intervened and asked Mr Crispe, 'Are you happy to proceed?', to which Mr Crispe replied:[42]
I am happy to proceed, your Honour. There's no issue at all.
[41] ts 17.
[42] ts 18.
After canvassing the appellant's antecedents, his mental health and the circumstances of the offending, Mr Crispe turned to the question of the effect of the early pleas of guilty. He submitted that the appellant was entitled to a reduction pursuant to s 9AA of the Sentencing Act of 25% on the basis that the pleas had been entered at the first reasonable opportunity.[43] At this point, his Honour queried how the appellant could receive the benefit of such a discount when he was subject to the mandatory minimum sentence of 15 years' imprisonment.[44] Mr Crispe responded to the effect that the quantum of the discount pursuant to s 9AA would only be relevant if the sentencing judge was inclined to impose a sentence greater than 15 years.[45] His Honour replied, in substance, that he was not contemplating the imposition of a sentence greater than 15 years.[46]
[43] ts 20.
[44] ts 21.
[45] ts 21.
[46] ts 21.
In concluding his plea in mitigation, Mr Crispe observed that, in light of the amendment, which he had discussed with the appellant early that morning, the appellant was certainly facing a significant term of imprisonment.[47]
[47] ts 22.
After Mr Crispe completed his plea in mitigation, the State prosecutor submitted that, in view of the mandatory minimum penalty, the issue of the reduction pursuant to s 9AA of the Sentencing Act, for practical purposes, fell away.[48]
[48] ts 23.
His Honour proceeded immediately to sentence the appellant. It is unnecessary to canvass the sentencing remarks in detail. He referred to the minimum penalty of 15 years on count 3.[49] His Honour imposed a sentence of 18 months' imprisonment on count 1, 7 years 6 months' imprisonment on count 2 and 15 years' imprisonment on count 3.[50] His Honour also imposed sentences for the offences contained in the s 32 notice.[51] Having regard to totality, his Honour ordered that all terms of imprisonment be served concurrently with the term of imprisonment on count 3.[52]
[49] ts 24, 29.
[50] ts 29.
[51] ts 30.
[52] ts 30.

Ground 1 - the appellant's alleged failure to understand count 3

Ground 1 reads:[53]
The appellant did not understand the nature of the charge [count 3] of unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm that was committed in the course of conduct that constituted an aggravated home burglary, when he pleaded guilty to it, resulting in a miscarriage of justice.

Legal principles

[53] WAB 33.

The appellant's convictions were entered after he entered pleas of guilty to all of the charges brought against him.
It is well established that a court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. Indeed, it has been said that attempts to change a plea are approached by the court with caution bordering on circumspection. The rationale behind this caution is that there is a strong public interest in the finality of proceedings, and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. In any case where a person seeks to set aside a conviction based on a plea of guilty, the appellant must show that there has been a miscarriage of justice.
The circumstances which will amount to a miscarriage of justice are not closed, and cannot be exhaustively listed. However, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty:
1.the appellant did not understand the nature of the charge or intend to admit guilt;
2.upon the admitted facts, the appellant could not, in law, have been guilty of the offence; or
3.the guilty plea has been obtained by improper inducement, fraud or intimidation.
See Gibson v The State of Western Australia;[54] Topuz v The State of Western Australia;[55] Snook v The State of Western Australia [No 2];[56] Borsa v The Queen[57] and Vella v The State of Western Australia.[58]
[54] Gibson v The State of Western Australia [2017] WASCA 141 [153] ‑ [156].
[55] Topuz v The State of Western Australia [2017] WASCA 186.
[56] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104] ‑ [107].
[57] Borsa v The Queen [2003] WASCA 254 [20].
[58] Vella v The State of Western Australia [2006] WASCA 30 [25] - [26].
The general principles governing the receipt of additional evidence in an appeal against conviction were recently summarised in Gibson.[59] We adopt, without repetition, that summary.

Ground 1 - the submissions

[59] Gibson [51] ‑ [64].

Ground 1 is cast in the terms of the first of these three well‑recognised circumstances. There is room to doubt whether the appellant's submissions in respect of count 1, as set out below, if upheld, amount to a failure to understand the nature of count 3 or whether, more accurately, the appellant is seeking to invoke a miscarriage of justice of a kind different to any of the three well‑recognised circumstances.
As will become apparent, the appellant's main (but not only) contention is that Mr Crispe failed to inform him, prior to the entry of his guilty pleas on 24 November 2017, of:
(a)the State's application to substitute a new indictment which sought to amend count 3; and
(b)that if he pleaded guilty to the amended count 3, he would be liable to a mandatory minimum sentence of 15 years' imprisonment.
The appellant alleges that had he been informed that he would be liable to be sentenced to a mandatory minimum sentence of 15 years' imprisonment, he would have pleaded not guilty to the amended charge and proceeded to trial. It is in this way that he alleges he suffered a miscarriage of justice.
Because we ultimately reject the factual allegations upon which the appellant's submissions are based, it is unnecessary to decide whether the complaint of miscarriage of justice in ground 1 is correctly framed. In other words, it is not necessary to decide whether the appellant's factual contention in [49] above, if established, would mean his conviction was a miscarriage of justice.
The appellant's written submissions as to the claim that he did not understand count 3 in the indictment dated 23 November 2017 are short and may be quoted in full:[60]
Lack of understanding of the charge
13.The indictment in this case was amended on the day of the appellant's sentencing with notification of the amendment only being provided on the day prior to the sentencing hearing.
14.The appellant had [sic] not been advised of the nature of the amended charge or that the amended charge carried a mandatory 15 year sentence of imprisonment.
15.If the appellant had been aware of the nature of the charge then he would have pleaded not guilty to the charge and proceeded to trial.
16.The appellant seeks leave to adduce additional affidavit evidence concerning his understanding of the charge of [sic] offence of unlawful wounding, with intent to maim, disfigure, disable or do some grievous bodily harm that was committed in the course of conduct that constituted an aggravated home burglary.
17.Lack of understanding of a charge pleaded to is a recognised category of miscarriage of justice and in the circumstances the appellant's conviction for this offence and the charge should be sent to the District Court for trial.
[60] WAB page 36.
It appears from these written submissions and the oral submissions made on behalf of the appellant that at the heart of the appellant's claim that he did not understand the charge is an allegation that he was not advised of the nature of the amended charge or that the amended charge carried a mandatory minimum sentence of 15 years' imprisonment.
However, in oral submissions, counsel for the appellant raised for the first time another argument. He submitted that the appellant did not understand the element of intent in count 3. That is, the appellant did not understand the allegation that at the time he unlawfully wounded K, he had an intent to maim, disfigure, disable or do some grievous bodily harm to the victim. Although counsel said that he could not strongly press the point, he did not abandon it.[61]
[61] Appeal ts 60.
In support of this submission, counsel for the appellant directed the court's attention to pars 8 and 12 of the appellant's affidavit sworn on 3 August 2018 which read:
8.My lawyer did not indicate to me that there had been a change to the charges.
…
12.My lawyer did not explain the elements of the amended charge and I did not know the nature of the amended charge or that it carried a 15 year mandatory minimum sentence.
Further, counsel for the appellant pointed to two aspects of the pre‑sentence psychological and psychiatric reports that were before the sentencing judge: firstly, that the appellant denied to the authors of those reports that he intended to cause grievous bodily harm to K and, second, that the appellant gave, as counsel for the appellant put it, 'a distorted version of events … based on his mental health'.[62]
[62] Appeal ts 61.
We will now summarise the additional evidence of the appellant adduced in this appeal from the appellant and Mr Crispe.

The appellant's evidence

The appellant's evidence‑in‑chief was largely comprised of his affidavits sworn 3 August 2018 (exhibit 1) and 7 February 2019 (exhibit 2).[63]
[63] Appeal ts 20.
In his affidavit sworn 3 August 2018, the appellant stated, in substance, that:
(a)Prior to his appearance in the District Court on 24 November 2017, he met with Mr Crispe's 'offsider' for a 40‑minute appointment at Hakea Prison and spoke to Mr Crispe 'on four or five occasions by telephone'.[64]
(b)On 24 November 2017:
(i)he spoke to Mr Crispe in person;[65]
(ii)Mr Crispe said, for the first time, that the appellant was 'looking at 5 to 7 and a half years [sic] imprisonment as a sentence';[66]
(iii)Mr Crispe did not indicate that there had been any amendment to the charges to which he had pleaded guilty in the Magistrates Court on 7 March 2017, nor did he see the proposed amended charge 3 on the indictment;[67]
(iv)Mr Crispe did not explain to him the elements of the amended charge, including that he was liable to a mandatory minimum sentence of 15 years' imprisonment;[68]
(v)had he known that the amended charge carried a 15‑year mandatory minimum sentence he would not have pleaded guilty to it.[69]
(vi)Mr Crispe did not consult with the appellant in the courtroom prior to informing the sentencing judge that he was happy to proceed with the sentencing after the amendment of count 3.[70]
(vii)Mr Crispe advised him that he would receive a 25% reduction in his sentence if he pleaded guilty to the charges. The appellant noted that during the sentencing proceedings Mr Crispe made a submission to this effect. This submission, the appellant claims, 'indicated that he [Mr Crispe] was not aware of the consequences of conviction on the new charge, namely that it carries a mandatory 15-year minimum sentence'.[71]
[64] Exhibit 1, par 3.
[65] Exhibit 1, par 6.
[66] Exhibit 1, par 7.
[67] Exhibit 1, pars 8, 11.
[68] Exhibit 1, par 12.
[69] Exhibit 1, par 13.
[70] Exhibit 1, pars 9, 10.
[71] Exhibit 1, par 21.
In his affidavit sworn 7 February 2019, the appellant repeated his account of the events leading up to the proceedings on 24 November 2017 and his account of the events which occurred on that day.[72] He repeated that he was not aware of the proposed amendment to count 3 and its consequences.
[72] Exhibit 2, pars 3 - 23.
The appellant deposed to his account of events concerning the offences contained in the indictment. The admissibility of this portion of the affidavit[73] was objected to by the State. In essence, he claimed that he went to Denham with the idea that he would be shot by police in front of K.[74] He denied threatening the victim with a knife or holding the knife to K's throat. He denied slashing and stabbing at the victim inside the house. The appellant accounted for K's injuries by claiming that the injury to her left arm occurred accidentally, when she put her arm up to stop him falling on top of her and that the wounds to her upper torso and cheek were not inflicted by him, but rather by 'the boys attacking me'.[75] At the hearing of the appeal, the court unanimously upheld the State's objection.[76] None of this material was relevant to the appellant's understanding of count 3 as amended, bearing in mind that the appellant's challenge was only to his understanding of the amendment to the charge. If, as he claims, he did not understand count 3 as amended, he will have demonstrated a miscarriage of justice. He would not be required to demonstrate an arguable defence to the charge.
[73] Paragraphs 24 - 62.
[74] Exhibit 2, par 39.
[75] Exhibit 2, pars 49 - 51, 56 - 57.
[76] Appeal ts 18.
In his examination‑in‑chief, the appellant testified that, on 24 November 2017, Mr Crispe visited him in the detention area at the District Court before the commencing of the sentencing proceedings and spoke to him for 'about five minutes if that'.[77] The appellant said that Mr Crispe did not mention anything about the indictment being amended. The appellant said that Mr Crispe told him that he was 'looking at somewhere between 5 to 7 years', to which the appellant responded, 'What do you mean? You said 30 months originally.' Upon Mr Crispe confirming his opinion that the appellant was looking at between 5 ‑ 7 years' imprisonment, Mr Crispe asked the appellant if he wanted to go ahead with the sentencing, to which the appellant replied 'Yes', and 'I'm stressed', and 'Yes, let's just get it over and done with'.[78] According to the appellant, Mr Crispe said 'nothing whatsoever' about a mandatory minimum sentence.[79]
[77] Appeal ts 20.
[78] Appeal ts 20.
[79] Appeal ts 21.
The appellant also testified that Mr Crispe spoke to him in the courtroom prior to the commencement of the sentencing proceedings, but said nothing to him about the amendment to the indictment or that he was facing a mandatory minimum term of 15 years' imprisonment.[80]
[80] Appeal ts 21.
In cross‑examination, the appellant denied that, on 24 November 2017, he met with Mr Crispe in the detention area at the District Court prior to his sentencing for 10 to 15 minutes. The appellant reiterated, in effect, that they spoke for five minutes, if not less.[81] The appellant also denied that, during this meeting, Mr Crispe told him that he was facing a term of 15 years' imprisonment.[82]
[81] Appeal ts 23.
[82] Appeal ts 23.
The appellant said he had been upset by the delay in being sentenced and, in particular, by the delay in the preparation of the court‑ordered reports.[83] Further, the appellant confirmed in cross‑examination that the first time Mr Crispe informed him that he was facing a sentence of between 5 and 7 years' imprisonment was on 24 November 2017.[84]
[83] Appeal ts 21 - 22.
[84] Appeal ts 22.
In response to a question from the bench, the appellant said that he did not notice that the lawyers and the sentencing judge were talking about at 15‑year minimum until 'midway through' the proceeding when the sentencing judge queried Mr Crispe's submission that the appellant should receive a 25% reduction for his pleas of guilty.[85]

Mr Crispe's evidence

[85] Appeal ts 24.

Mr Crispe's evidence‑in‑chief largely comprised his affidavits sworn 25 September 2018 (exhibit 3) and 21 February 2019 (exhibit 4).[86]
[86] Appeal ts 26.
In his affidavit sworn 25 September 2018, Mr Crispe stated, in substance, that:
(a)On 23 February 2017, a solicitor employed by him, Ms Catherine Crouch, attended on the appellant at Hakea Prison.[87]
(b)Prior to his appearance in the Magistrates Court on 7 March 2017, he spoke to the appellant about his pleas to the charges based on the statement of material facts that had been provided by the police. Mr Crispe said that he explained that an early plea would entitle him to a sentencing discount of up to 25%. Mr Crispe said that he was satisfied the appellant understood the nature of the charges and that he advised him only to plead guilty if he accepted he was guilty of each of the offences. On 7 March 2017, when the charges were put to him, the appellant entered pleas of guilty.[88]
(c)In preparation for the appellant's sentencing on 24 November 2017, Mr Crispe prepared, filed and served written sentencing submissions. Those submissions are dated 22 November 2017.[89]
(d)He was not aware of the proposed amendment to the charges until he attended court on the morning of 24 November 2017.[90]
(e)He met with the appellant in the detention centre at the District Court prior to the commencement of the proceedings, explained the proposed amendment and that it involved the imposition of 'a fixed term of 15 years'. He believed, at the time, that the appellant understood the significance of the amendment.[91]
(f)The appellant did not want the matter adjourned any further and wanted it to proceed so that he could 'get it over and done with'.[92]
(g)On 24 November 2017, he had a further brief conversation with the appellant while he was in the dock before the sentencing proceedings commenced and he once again explained 'how the law works in relation to this section [s 294(2) of the Code]'.[93]
(h)He acknowledged that the appellant was a person 'with some mental health issues' and that 24 November 2017 'was a stressful day for the Appellant [sic]'. Mr Crispe also noted that the appellant was 'fixated with self‑harm issues and the complainant'. He confirmed that, at the time, he believed that the appellant understood what was involved in the amendment to the indictment. However, Mr Crispe said that, in retrospect, 'It would have been more ideal if I had adjourned the matter so that the issue of the late amendment could have been further canvassed'.[94]
(i)When he prepared his sentencing submissions he was unaware that the State proposed to amend the indictment.[95]
[87] Exhibit 3, par 2.
[88] Exhibit 3, pars 4 - 7.
[89] Exhibit 3, par 13, and annexure A.
[90] Exhibit 3, par 14.
[91] Exhibit 3, par 15.
[92] Exhibit 3, par 16.
[93] Exhibit 3, par 17.
[94] Exhibit 3, pars 18 - 19.
[95] Exhibit 3, par 19.
In Mr Crispe's affidavit sworn 21 February 2019, Mr Crispe expanded on the events of 24 November 2017. He said that:
(a)He spoke to the appellant in the detention centre at the District Court for between 10 and 15 minutes, prior to 10.00 am.[96]
(b)He believed that throughout the meeting the appellant was distracted and appeared stressed. He spoke of taking his own life and made negative comments about the complainant.[97]
(c)He told the appellant 'the effect of the amendment involving a fixed term of 15 years'. However, in hindsight, he was not certain, and at the time of swearing the affidavit he had a doubt that the appellant understood what he had been told about the amendment.[98]
[96] Exhibit 4, par 2.
[97] Exhibit 4, par 5.
[98] Exhibit 4, par 6.
In his examination‑in‑chief, Mr Crispe, by reference to his firm's file, said:
(a)By reference to an entry in the file, Ms Crouch attended upon the appellant at Hakea Prison for 2 1/2 hours and then drafted a proof of evidence.[99]
(b)Prior to the appellant entering his pleas of guilty in the Magistrates Court, Mr Crispe received a 'quite detailed' statement of material facts.[100]
(c)On 3 May 2017, Mr Crispe sent the appellant a letter enclosing a copy of the prosecution brief.[101]
(d)Prior to 24 November 2017, Mr Crispe, based on his normal practice, would have advised the appellant as to the predicted range of sentences that would be imposed for the offences. Although he had no note on his file, he said he would have, at some stage, told the appellant that he might receive between 7 and 9 years' imprisonment with parole.[102]
(e)At around 6.20 pm on 23 November 2017, his office received an email from the DPP with respect to the proposed amendment to the indictment. However, Mr Crispe did not see that email and it would not have been on the file when he collected it on the morning of 24 November 2017.[103]
[99] Appeal ts 26.
[100] Appeal ts 27.
[101] Appeal ts 27.
[102] Appeal ts 28.
[103] Appeal ts 28.
Mr Crispe testified that he first learned of the amendment to count 3 when he arrived at the District Court on the morning of 24 November 2017 when he met with the DPP prosecutor.[104] Mr Crispe understood that the implication of the amendment to the indictment was to make the appellant liable to a minimum term of 15 years' imprisonment on count 3. He then went to the detention centre to discuss the matter with the appellant. Mr Crispe confirmed that he told the appellant about the amendment and its effect.[105] Mr Crispe said that his understanding of the implications of the amendment to count 3 was that the appellant was liable to 'a fixed term of 15years'.[106]
[104] Appeal ts 28 - 29.
[105] Appeal ts 29.
[106] Appeal ts 29.
In cross‑examination, Mr Crispe was taken to the psychiatric report written by Dr Steve Patchett, dated 17 October 2017, which was before the sentencing judge. Mr Crispe acknowledged that he had read the report prior to preparing the written sentencing submissions for the judge. Mr Crispe said he was aware of the appellant's 'mental health position' on 24 November 2017.[107]
[107] Appeal ts 37 - 38.
In cross‑examination, Mr Crispe was asked why he did not seek an adjournment of the appellant's sentencing. Mr Crispe said that, against the background that the appellant had been very annoyed when an earlier sentencing date had been adjourned, the appellant said he definitely wanted to proceed with the sentencing on 24 November 2017.[108] Mr Crispe said that with the benefit of hindsight he would have adjourned the proceedings.[109] Mr Crispe speculated that if the matter had been adjourned on that day, he would have discussed the matter with the appellant in a much more relaxed state and the appellant would have been in a better mental state.[110]
[108] Appeal ts 38.
[109] Appeal ts 38.
[110] Appeal ts 39.

The appellant's counsel referred Mr Crispe to that part of his plea in mitigation on 24 November 2017 where he said that he became aware 'last night' of the effect of s 294(2) of the Code. Mr Crispe said that he did not have any recollection of being aware the night before of the State's proposed amendment and its effect. He said that, if he had been aware of it the night before, he 'probably would have factored [it] into doing it slightly different the next morning'. Mr Crispe confirmed that his recollection was that he did not know about the proposed amendment until the morning of 24 November 2017.[111]
[111] Appeal ts 42.
Counsel for the appellant asked Mr Crispe why he made a submission that the appellant should receive a 25% discount pursuant to s 9AA of the Sentencing Act for his pleas of guilty. Mr Crispe responded that he did so upon the basis of the written submissions that he had prepared.[112]
[112] Appeal ts 43.
Mr Crispe denied that he told the appellant in two telephone conversations he had with him on 22 November 2017 that he would be 'looking at 30 months [imprisonment]'.[113] Mr Crispe also denied that when he spoke to the appellant at the detention centre at the District Court he told him 'he was looking at 5 to 7 years'.[114]
[113] Appeal ts 44.
[114] Appeal ts 45.
Mr Crispe maintained in cross‑examination that he told the appellant in the detention area he was looking at a minimum of 15 years' imprisonment.[115] He said that when he told the appellant this, the appellant talked about killing himself and said he wanted the matter over and done with.[116] He accepted that the appellant gave no express indication that, if convicted of count 3, he faced a minimum of 15 years' imprisonment.[117]
[115] Appeal ts 47.
[116] ts 46.
[117] Appeal ts 47.
Mr Crispe said that he did not show the appellant the proposed amended indictment.[118]

Ground 1 - alleged misunderstanding as to element of intent in count 3

[118] Appeal ts 48.

Although the appellant's counsel, in his oral submissions, drew this court's attention to pars 8 and 12 of the appellant's affidavit of 3 August 2018, he accepted, correctly, that there was no direct evidence from the appellant that he did not understand the element of intent.[119] In circumstances where the appellant has sworn two affidavits in this appeal, that absence of direct evidence from the appellant is of some significance. A finding that the appellant did not understand the element of intent in ground 3, if it could be made, had to be inferred from the evidence before this court. In our opinion, the evidence falls well short of establishing the inference sought to be drawn.
[119] Appeal ts 61.
The element of intent as pleaded in count 3 in the indictment dated 23 November 2017 is in the same terms as count 3 in the indictment dated May 2017 and is, in substance, little different from the element of intent pleaded in the charge brought in the Magistrates Court (PE 7945 of 2017). We note that the appellant pleaded guilty to the charge in the Magistrates Court on 7 March 2017, and did not then indicate that he had any lack of understanding in respect of the element of intent.
The pre‑sentence reports referred to by the appellant, which were before the learned sentencing judge, were written by a clinical and forensic psychologist, Ms Tanina Oliveri, dated 23 April 2017, and a report written by consultant forensic psychiatrist, Dr Steve Patchett, dated 17 October 2017. These reports were part of the record of the court below, and contrary to the submissions of the respondent may, insofar as they are relevant, be considered in these proceedings pursuant to s 39(1) of the Criminal Appeals Act. The reports provide no support for the appellant's contention that he did not understand the element of intent on count 3.
While it is true that both Ms Oliveri and Dr Patchett reported that the appellant denied intentionally harming K, those denials do not logically equate with, and do not support an inference of, a lack of understanding of the element of intent in count 3.
Dr Patchett's report reveals that the appellant was under the care of a psychiatrist between 2010 and 2012 in regard to a work‑related compensation claim. He was prescribed, at that time, antidepressant medication. When the appellant was examined by Dr Patchett, he exhibited no abnormal beliefs or disorders of perception. Dr Patchett observed no disorder of the form of his thought.[120] In Dr Patchett's opinion, the appellant developed post‑traumatic stress disorder after the commission of the offences. The appellant also experiences difficulties with emotional regulation, which is a characteristic of an emotionally unstable personality disorder. Finally, according to Dr Patchett, he has a tendency to blame others for his predicaments.[121]
[120] Dr Patchett's report, page 5.
[121] Dr Patchett's report, page 6.
Ms Oliveri conducted a personality and diagnostic assessment upon the appellant, and noted that the appellant 'seems to feel unsupported, misunderstood and estranged from others and his thinking can be distorted'.[122] Later in her report, Ms Oliveri observed that the appellant displayed 'a victim mentality and distorted thinking', which was among 10 factors likely to have contributed to the offences.[123]
[122] Ms Oliveri's report, page 4.
[123] Ms Oliveri's report, page 6.
Neither Ms Oliveri nor Dr Patchett state that the appellant's mental health was such that he was unable to understand any of the charges brought against him. Only Ms Oliveri referred to the appellant as having 'distorted thinking', which manifested itself in this case by the appellant viewing himself as a victim of the offences; that is, he does not accept full responsibility for what he did.[124] Ms Oliveri does not suggest that the appellant suffers from a pervasive state of distorted thinking.
[124] Ms Oliveri's report, page 5.
Therefore, there is nothing in either of the reports of Ms Oliveri or Dr Patchett which supports an inference that the appellant did not understand the element of intent in count 3.
Finally, pars 8 and 12 of the appellant's affidavit sworn 3 August 2018 are an insufficient basis, by themselves or in combination with the other evidence referred to by the appellant's counsel, to draw the inference urged upon this court on behalf of the appellant.
There is no merit in the submission that the appellant did not understand the element of intent in count 3 in the indictment dated 23 November 2017, and we reject it.

Ground 1 - alleged misunderstanding as to the mandatory minimum sentence for count 3

We now turn to the question of whether, at the time he pleaded guilty, the appellant understood that if he pleaded guilty to count 3, as amended, he would be liable to a mandatory minimum sentence of 15 years' imprisonment.
There is no issue that the State's application to amend by substituting the May 2017 indictment with the indictment dated 23 November 2017 was made very late in the day. While there was some issue in this court as to exactly when Mr Crispe became aware of the State's application amend the indictment, it is of little importance because the first possible time that the appellant could have become aware of the State's application to amend was when he arrived at the District Court for sentencing on 24 November 2017. Prior to 24 November 2017, neither Mr Crispe nor the appellant thought that the appellant would be liable, if he pleaded guilty to count 3 as set out in the May 2017 indictment, to any mandatory minimum sentence. Beyond this uncontroversial fact, there are some substantial conflicts in the evidence of the appellant, on the one hand, and Mr Crispe, on the other, as to the advice Mr Crispe gave to the appellant concerning the potential penalty that would be imposed upon the appellant as a consequence of his pleas of guilty. These conflicts may be summarised as follows:
(1)The appellant stated, in effect, that some time prior to 24 November 2017, he was told by Mr Crispe that he would receive a sentence of 30 months' imprisonment. Mr Crispe denied this and said that prior to 24 November 2017, he told the appellant that he might receive between 7 and 9 years' imprisonment.
(2)As to the events of 24 November 2017:
(a)The appellant stated that Mr Crispe visited him in the detention area in the District Court prior to the sentencing proceedings for 'about five minutes if that'. Mr Crispe stated that he spoke to the appellant in the detention area for between 10 and 15 minutes.
(b)The appellant stated that when Mr Crispe spoke to him in the detention area he failed to inform him about the State's application to amend the indictment or that if he pleaded guilty the appellant would be liable to a mandatory minimum sentence on count 3 of 15 years' imprisonment. Further, the appellant says that Mr Crispe told him that he was looking at a sentence of between 5 to 7 years' imprisonment or 5 to 7 1/2 years' imprisonment. Mr Crispe stated that he informed the appellant of the State's application to amend the indictment, that if he pleaded guilty to count 3 in the amended indictment he would be liable to a mandatory minimum sentence of 15 years' imprisonment. Mr Crispe denied that he told the appellant he would be sentenced to 5 to 7 years' imprisonment or 5 to 7 1/2 years' imprisonment.
(c)The appellant said that Mr Crispe did not consult with him prior to informing the sentencing judge that he was happy to proceed with the sentencing after the amendment to count 3. Mr Crispe said that he spoke to the appellant while he was in the dock for a couple of minutes before the proceedings commenced and once again explained how the law worked in respect of s 294(2) of the Code.
Where the appellant's version of events conflicts with that of Mr Crispe, we prefer the evidence of Mr Crispe. We have reached this conclusion because, in our view, the appellant's evidence in relation to the issues in dispute is highly improbable. By contrast, Mr Crispe's evidence accords, to our mind, with the probabilities.
The offences allegedly committed by the appellant were, individually and collectively, very serious. Leaving aside for the moment any question of a mandatory minimum sentence in respect of count 3, the facts and circumstances surrounding the commission of this offence were particularly serious and placed in the upper echelon of cases of its type, although not in the worst category. It is inconceivable that Mr Crispe, a very experienced criminal lawyer, told the appellant, prior to 24 November 2017, that he would receive 30 months' imprisonment. Given the seriousness of the appellant's offending, no lawyer could sensibly have thought that the sentence would be anything so short as 30 months' imprisonment. We find that the appellant was not advised by Mr Crispe that he would receive 30 months' imprisonment. Rather, prior to 24 November 2017, it is far more likely Mr Crispe advised the appellant that he might receive between 7 and 9 years' imprisonment and we so find.
As to what occurred between the appellant and Mr Crispe on 24 November 2017, prior to the appellant entering his pleas of guilty, it is highly improbable that, once Mr Crispe became aware of the proposed amendment to the indictment and appreciated the effect of the proposed amendment to count 3, he would not have informed the appellant of this development. Mr Crispe knew the effect of the foreshadowed amendment was to make the appellant liable, on a plea of guilty to count 3, to a mandatory minimum sentence of 15 years' imprisonment. It is inherently unlikely that any lawyer, much less an experienced one, would fail to inform their client of a matter of such obvious and enormous significance. Further, it is even more improbable that Mr Crispe, in the light of the foreshadowed amendment to the indictment by the State would, in effect, deliberately mislead the appellant by informing him that he was looking at a sentence of between 5 to 7 years' imprisonment or 5 to 7 1/2 years' imprisonment.
As to the events of 24 November 2017, we find as follows:
(1)Mr Crispe was told by the prosecutor, prior to the commencement of sentencing proceedings, that the State intended to apply to substitute the indictment dated May 2017 with a new indictment dated 23 November 2017, and that count 3 would be amended to the effect that the appellant would, if he pleaded guilty to the charge, be liable to a mandatory minimum sentence of 15 years' imprisonment.
(2)Mr Crispe then attended upon the detention area in the District Court where he met with the appellant and informed him of the State's foreshadowed application and of its effect. In particular, Mr Crispe told the appellant that he was subject to a mandatory minimum sentence of 15 years' imprisonment if he pleaded guilty to count 3.
(3)Mr Crispe did not, as the appellant alleges, fail to inform him of the State's foreshadowed application and, in particular, the effect of the amendment to count 3. Further, we find that Mr Crispe did not inform the appellant that he would be looking at a sentence of between 5 and 7 years' imprisonment or 5 and 7 1/2 years' imprisonment.
As to the length of time Mr Crispe met with the appellant, we prefer the evidence of Mr Crispe. Given the nature of the matters to be discussed and their importance, it is more likely that Mr Crispe spoke to the appellant for between 10 and 15 minutes in the detention area to explain the matters we have already described. We also think that it is more likely that Mr Crispe spoke to the appellant again, for a short time, while he was in the dock, immediately before the sentencing proceedings commenced, in order to ensure the appellant understood and assented to what was about to occur. Therefore we find, in accordance with Mr Crispe's evidence, that he spoke to the appellant in the detention area for between 10 and 15 minutes prior to the commencement of the proceedings on 24 November 2017 and that he also spoke to the appellant while he was in the dock in the courtroom for a short period immediately before the commencement of the sentencing proceedings.
Having found, contrary to the appellant's case, that Mr Crispe informed the appellant of the proposed amendment to the indictment and that, if he pleaded guilty, he would be subject to a mandatory minimum sentence of 15 years' imprisonment on count 3, there remains the question of whether the appellant understood the advice he had been given and, in the light of that advice, instructed Mr Crispe to proceed on 24 November 2017.
We are satisfied on the evidence before this court that the appellant understood the advice that had been given to him by Mr Crispe. We are also satisfied that he instructed Mr Crispe to proceed on 24 November 2017. We have reached these conclusions having regard to the combination of the following factors.
Firstly, there is no evidence that the appellant was mentally incapacitated in such a way that he would not understand the advice Mr Crispe gave him. In particular, there is nothing in the reports of either Ms Oliveri or Dr Patchett which could give rise to the conclusion that he suffered from any mental incapacity which could affect his ability to understand what he was told by Mr Crispe.
Second, although the appellant disputes the evidence of Mr Crispe as to what he was told in the detention centre on the morning of 24 November 2017, he does not say anywhere in his evidence that he was unable to understand what was said to him by Mr Crispe. Indeed, his position is, in effect, to the contrary. It is his position that he clearly understood what Mr Crispe was telling him. While it may be accepted that the appellant was, on the morning of 24 November 2017, stressed and in the emotional state described by Mr Crispe, the appellant did not suggest in his evidence that he was in such a condition that he could not understand the advice that he was given by Mr Crispe. His position in this court is, in effect, that he well understood what Mr Crispe told him and what he was told, in substance, misled him into pleading guilty to count 3.
In this court, Mr Crispe maintained throughout his evidence that on 24 November 2017 he told the appellant about the State's foreshadowed application to amend the indictment and that, if he pleaded guilty to count 3, he was subject to the mandatory minimum sentence of 15 years' imprisonment. Mr Crispe testified that, at the time, he believed that the appellant understood the advice he had been given and wished to proceed to sentence on that day, rather than adjourn the case to a later date. In respect of this last matter, it is significant that both Mr Crispe and the appellant testified to the effect that the appellant was anxious on 24 November 2017 to, as the appellant put it in his examination‑in‑chief, 'get it over and done with'. Mr Crispe's conduct in court on 24 November 2017 reinforces and supports his evidence that, at the time, he was satisfied that the appellant understood the advice he had given him.
We acknowledge that, in hindsight, Mr Crispe believes it would have been better to have adjourned the proceedings. Further, and again in hindsight, he was not certain and had a doubt that the appellant understood what he had been told about the proposed amendment to the indictment. In Mr Crispe's evidence, he agreed that the appellant gave no express indication that, if convicted of count 3, he faced a minimum of 15 years' imprisonment.
In the light of the proceedings brought before this court by the appellant, it is perhaps understandable that Mr Crispe, with the benefit of hindsight, believes that it would have been better for the proceedings on 24 November 2017 to have been adjourned to another date. However, at the time, that was not the appellant's wish.
Mr Crispe's belief as to the appellant's understanding of the advice he gave has changed. This is clear from both Mr Crispe's testimony and what he said and did in open court at the commencement of the proceedings on 24 November 2017. When his Honour inquired whether the State's foreshadowed application to amend the indictment took him by surprise, Mr Crispe informed his Honour that there was 'no problem with the matter proceeding'. Mr Crispe then informed the sentencing judge that he did not oppose the substitution of the indictment. After the appellant's pleas were taken, the sentencing judge confirmed with the prosecutor that the appellant was liable, on count 3, to a mandatory minimum sentence of 15 years' imprisonment and, when he began his plea of guilty, in answer to a query from his Honour whether Mr Crispe is 'happy to proceed', Mr Crispe replied that he was happy to proceed and 'there is no issue at all'.
Ultimately, it is for this court to decide the question of the appellant's understanding of the advice that he had been given by Mr Crispe based on all of the evidence. For the reasons we have articulated, we are well satisfied that the appellant understood Mr Crispe's advice and that he wished to proceed to sentencing on 24 November 2017.
In summary, we are satisfied that Mr Crispe advised the appellant of the State's proposed application to amend the indictment and its effect. Specifically, Mr Crispe told the appellant that, if he entered a guilty plea to count 3, he was liable to a mandatory minimum sentence of 15 years' imprisonment. We are satisfied that the appellant understood the advice that had been given to him and that he wished to proceed with his sentencing on the morning of 24 November 2017. As the appellant accepts,[125] those findings mean that the appellant has failed to make out the allegation of a miscarriage of justice as alleged in ground 1.
[125] Appeal ts 64.
While we would grant leave to appeal on ground 1, the ground has not been made out.

Ground 2 - alleged abuse of process

As explained by counsel for the appellant, the alleged abuse of process arises from the State's application, made one day before the scheduled sentencing hearing, seeking leave to substitute a new indictment and, in particular, to amend ground 3 so as to expose the appellant to a mandatory minimum sentence of 15 years' imprisonment.[126] The appellant submits that the State's application to 'amend ground 3 in such a way that the offence carried a mandatory minimum sentence of 15 years' imprisonment, after the appellant had entered his pleas of guilty in the Magistrates Court was an abuse of process'.[127]
[126] Appeal ts 64 - 66.
[127] Appellant's case, par 22, WAB 37.
The respondent submitted that the amendment to the indictment sought by the State did not significantly alter the charge the appellant was facing because at all times in the proceedings the appellant faced a charge contrary to s 294(1) of the Criminal Code. Further, the respondent submitted that at all stages in the proceedings it was clear that the State alleged that the offence contrary to s 294(1) of the Code was committed in the course of conduct which constituted an aggravated home burglary. The respondent submitted that the addition of the words 'and the offences were committed in the course of conduct that constituted an aggravated home burglary' to count 3 did not create a new offence and did not alter the original offence for which the appellant was charged.[128]
[128] Respondent's submissions pars 24, 25, WAB 50.
The respondent noted that although not expressly stated by the appellant, it appears that it is asserted by him that the effect of the amendment sought by the prosecution was to invoke the mandatory minimum sentencing provisions under s 294(2) and that those provisions would not have otherwise applied if the amendment had not been made.[129] The respondent submitted that regardless of the amendment, the appellant would have been liable to the mandatory minimum sentence by reason of s 294(2) of the Code. The State noted the application to amend occurred at the request of the sentencing judge.
[129] Respondent's submissions par 26, WAB 50.
The respondent submitted that the proposed amendment of the indictment did not amount to an abuse of process, irrespective of whether the State was required to plead in count 3 the circumstance of the offence was committed in the course of conduct that constituted an aggravated burglary.[130]
[130] Respondent's submissions par 37, WAB 53 - 54.

Ground 2 - disposition

In our opinion, there is no merit to ground 2. We reach that conclusion for two reasons. First, there was no abuse in the making of an application to amend the indictment. Secondly, as the respondent submitted,[131] the amendment was unnecessary and did not prejudice the appellant because he was liable to the minimum term stipulated in s 294(2) regardless of whether the indictment stated that the offence was committed in the course of a home burglary. We proceed now to explain those two reasons.
[131] Respondent's submissions [30] ‑ [36]; appeal ts 74 - 78; see [109] above.
The power of a court to amend a charge is found in s 132 of the CPA. Section 132(1) provides that the power to amend a charge may be exercised by a court in relation to a charge 'any time before or during a trial'. Section 132(3) of the CPA provides that a court, on the application of the prosecutor, may amend a charge. Section 132(8) of the CPA states that if a court amends an indictment and is satisfied that the amendment prejudices an accused's defence, the court must adjourn the indictment as the case requires. Rule 16(1) of the Criminal Procedure Rules 2005 (WA) states that an accused must not be required to plead to a charge in an indictment until at least 21 days after the date on which the indictment was lodged unless, on an oral application by a party, the court orders otherwise.
There is nothing in either the Code or the CPA that prohibits the State from amending a charge which has been the subject of a plea of guilty in the Magistrates Court and which is then committed for sentence to a superior court. Whether the accused may change their plea in such circumstances is governed by s 99 of the CPA, which is set out at [126] below.
Having regard to the relevant statutory provisions, it is clear that the State may apply to amend a charge at any time before or during a trial and it is for the court to decide, in its discretion, whether the charge will be so amended. If the court amends a charge, the court has the power to adjourn the proceedings. In this way, the court regulates whether to grant an application to amend and, if so, on what terms. Plainly, before doing so (and as occurred in this case) the parties will be given the opportunity to make submissions as to whether the power should be exercised and, if so, whether an adjournment of the proceedings is required. That is what occurred here. The court offered the appellant's counsel an adjournment, but counsel declined the offer.
In this light, we are unable to see how the State's application seeking leave to amend the indictment constitutes an abuse of the process of the court. The filing of an application by the State to amend an indictment did not mean that the indictment would, in fact, be amended. This was a matter for the court to decide. As it turned out, Mr Crispe did not oppose the application to amend and the amendment was allowed. His Honour, in substance, indicated that he would allow an adjournment of the proceedings if the appellant so desired. Mr Crispe did not seek an adjournment of the proceedings. The State's application to amend the indictment was not unfair to the appellant and did not abuse the processes of the court. Leave to appeal on ground 2 should be refused.
We now turn to the issue of whether it was necessary for the appellant to amend count 3 to add the words 'and the offence was committed in the course of conduct that constituted an aggravated home burglary' to permit the court to sentence the appellant to the mandatory minimum sentence of 15 years' imprisonment. As we have indicated, the respondent's position is that such an amendment is unnecessary.
Section 7(3) of the Sentencing Act 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.
In Gillespie v The State of Western Australia,[132] Martin CJ stated the effect of the subsection in these terms:
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.
[132] Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 54 WAR 207 [14]. See also [261].
When this court has had to consider the effect of s 7(3) of the Sentencing Act, it has almost always done so in the context of an offence which contains a circumstance of aggravation that renders an offender liable to a greater maximum penalty. However, s 7(3) does not expressly refer to a maximum statutory penalty nor a minimum statutory penalty.
The question of whether s 7(3) of the Sentencing Act applies to a statutory minimum penalty was noted, but not decided, by McLure P and Newnes JA in Rowsell v The State of Western Australia.[133] Their Honours observed that it was arguable that the text of s 7(3)(b) of the Sentencing Act is wide enough to extend to a mandatory minimum penalty for repeat offenders in s 401(4) of the Code, but did not need to determine whether that was so.
[133] Rowsell v The State of Western Australia [2015] WASCA 2 [31].
In The State of Western Australia v Smith,[134] this court was required to resentence an offender after a successful State appeal against sentence. In that case, the State made a concession that s 7(3) of the Sentencing Act applied to a statutory minimum penalty. In his reasons, Mitchell JA observed that the issue of whether s 7(3) applied to a statutory minimum penalty had not previously been resolved by this court. His Honour accepted the State's concession. His reasoning for doing so is as follows:
Although the position has not previously been resolved by this court, I accept the Director's concession that s 7(3) of the Sentencing Act applies to a statutory minimum penalty. It follows from the definition of 'statutory penalty' in s 4(1) of the Sentencing Act, and the manner in which s 9 of that Act deals with the effect of a statutory penalty, that the reference in s 7(3) to a 'statutory penalty for an offence' includes a statutory minimum penalty.That Constable Salt was a police officer assaulted with a weapon which caused bodily injury could be taken into account as aggravating factors under s 7(3)(b) of the Sentencing Act. However, because the relevant circumstances of aggravation were not pleaded in the indictment the respondent was not liable to any minimum penalty by virtue of the operation of s 7(3)(a) of the Sentencing Act.
[134] The State of Western Australia v Smith [2016] WASCA 153.
We note that Mitchell JA was concerned with the sentencing of an offender who had committed an offence contrary to s 318(1)(d) of the Code. As the offence was committed against a police officer and the offender was, at or immediately before or immediately after the commission of the offence, armed with a dangerous or offensive weapon, he was liable to a maximum penalty of 10 years' imprisonment (s 318(1)(l) of the Code) and a mandatory minimum penalty of at least 9 months. Section 318(4)(a) of the Code provides:
If a person is convicted of an offence against this section committed in prescribed circumstances at a time when the person had reached 18 years of age, then, notwithstanding any other written law, the court sentencing the person -
(a)if the offence is committed in the circumstances set out in subsection (1)(l) - must sentence the person to a term of imprisonment of at least 9 months[.] (emphasis added)
It may immediately be noted that the italicised words above are also used in s 294(2) of the Code. In Smith, Mitchell JA focused on whether the term 'statutory penalty' encompasses a mandatory minimum penalty. As the question had been conceded, his Honour's attention was not directed to, and he did not refer to the effect of, the italicised words. In our respectful opinion, the plain meaning of the words, 'notwithstanding any other written law', is that the provision overrides any other written law. Thus, those words have the effect that, notwithstanding s 7(3) of the Sentencing Act, an offender is liable to the mandatory minimum penalty where the offence is committed in the course of conduct that constitutes an aggravated home burglary. Therefore, in our opinion, the State is not, as a matter of law, required to plead that fact in order to make the offender liable to the mandatory minimum penalty in s 294(2) of the Code.
Nonetheless, in our opinion, as a matter of fairness to an accused, prosecutors should, and will be expected to, do what ultimately occurred in this case, that is, expressly plead any circumstance which gives rise to a mandatory minimum term of imprisonment.

Ground 3 - adjournment

Ground 3 as amended states:
Counsel for the appellant erred in not seeking an adjournment of the sentencing hearing in relation to counts 2 and 3 of the indictment following the amendment of the indictment resulting in a miscarriage of justice.
We are unable to see how the appellant suffered a miscarriage of justice by Mr Crispe not seeking an adjournment of the sentencing in relation to count 2. That count as pleaded in the proposed amended indictment was in the same terms as had been pleaded in the May 2017 indictment and was materially in the same terms as the charge which was originally brought in the Magistrates Court (PE 7946 of 2017). The appellant has not articulated any reason why the appellant has suffered a miscarriage of justice by the failure of defence counsel to seek an adjournment of the sentencing on that count. If the reason for seeking such an adjournment was to give the appellant the opportunity to change his plea, he would not have been permitted to do so, having regard to s 99 of the Criminal Procedure Act, which relevantly states:
99. Unconvicted accused committed for sentence, procedure on
(1)This section applies if -
(a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c)the accused is subsequently charged with the charge in an indictment.
(2)The accused must be required to plead to the charge in the indictment in the same manner as other accused.
(3)If the accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.
(4)If the accused does not plead guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must order the prosecutor to state aloud the material facts of the charge and -
(a)if it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under section 35 at the time the accused pleaded guilty to the offence charged in the lower court, must enter a plea of guilty on behalf of the accused; or
(b)if it is not so satisfied, must enter a plea of not guilty on behalf of the accused,
and deal with the accused according to law.
(5)Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(a)having considered -
(i)the material served on the accused under section 35 or 95; and
(ii)the facts stated by the prosecutor under section 129,
the court is satisfied that the accused could not have or may not have committed the offence charged; or
(b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
(6)…
(7)…
In the present case, the statement of material facts which was read to Bowden DCJ on count 2 did not materially differ from the material facts disclosed to the appellant at the time he pleaded guilty to the aggravated burglary charge in the lower court. The appellant has not argued, let alone demonstrated, having regard to the materials served upon him under s 35 or s 95 of the Criminal Procedure Act and the facts stated by the prosecutor under s 29 of the Act before Bowden DCJ, that his Honour should have been satisfied that the accused could not have, or may not have, committed the offence of aggravated burglary.[135]
[135] As to the construction of s 99 of the Criminal Procedure Act, see Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454.
In any event, in respect of both counts 2 and 3, on the facts as found earlier in these reasons, the appellant did not want the sentencing proceedings to be adjourned past 24 November 2017. As the appellant said in evidence, he had been upset by previous delays in his sentencing and he told Mr Crispe that he wanted to get the matter 'over and done with'. Further, given the findings we have made at [105], the appellant has not demonstrated that, had an adjournment been sought and obtained, he would have changed his plea to not guilty or otherwise done anything differently. In these circumstances, the appellant has suffered no miscarriage of justice as a result of his counsel failing to seek an adjournment of the sentencing proceedings.
Ground 3 has no reasonable prospect of succeeding and we would not give leave to appeal in relation to it.

Conclusion and orders

We would grant all of the applications for leave to adduce additional evidence. While we would grant leave to appeal in respect of ground 1, the ground has not been made out. We would not give leave to appeal on grounds 2 and 3. The orders of the court should be:
(1)All of the applications for leave to adduce additional evidence are granted.
(2)Leave to appeal is granted on ground 1.
(3)Leave to appeal on grounds 2 and 3 is refused.
(4)The appeal is dismissed.

ALLANSON J:

I agree that this appeal should be dismissed for the reasons given by Mazza and Beech JJA, and with the orders to be made.
I differ from their Honours with respect to one matter.
Whether the State was required to plead that the offence in count 3 was committed in the course of conduct that constituted an aggravated home burglary, in order to make the appellant liable to the mandatory minimum penalty in s 294(2) of the Code, does not need to be decided. The appellant pleaded guilty to the amended indictment. The appellant has not made out the allegation that he did not understand the indictment, as amended, or the advice given by his counsel. That is sufficient reason to refuse leave to appeal on ground 2.
Further, the issue was not fully argued on the appeal.
Comparison of s 294(2) and s 318(4)(a) of the Code, the provision considered by Mitchell JA in The State of Western Australia v Smith,[136] shows that provisions prescribing a minimum penalty can be differently expressed. I prefer to express no general view about the operation of such provisions and s 7(3) of the Sentencing Act1995 (WA), without the question having been properly argued.
[136] The State of Western Australia v Smith [2016] WASCA 153.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Mazza
15 NOVEMBER 2019