Morris v Lapsley
[2005] WASC 151
MORRIS -v- LAPSLEY [2005] WASC 151
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 151 | |
| Case No: | SJA:1096/2004 | 20 JUNE 2005 | |
| Coram: | SIMMONDS J | 7/07/05 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions quashed Complaints remitted for retrial | ||
| B | |||
| PDF Version |
| Parties: | MARTIN JOHN MORRIS STUART DAVID GLYDE LAPSLEY |
Catchwords: | Criminal law Appeal against conviction on plea of guilty Charges of receiving stolen property and fraud Whether state of mind pleaded in mitigation did not amount to mental element required Whether plea equivocal Criminal law Sentencing Suspended term of imprisonment imposed for traffic offences Suspended term of imprisonment activated on plea of guilty to charges of receiving and fraud Whether Chief Magistrate erred in not ordering a pre-sentence report Whether Chief Magistrate failed to consider sentencing options Whether Chief Magistrate failed to take into account change in circumstances since commencement of suspended sentence Whether Chief Magistrate failed to take into account different nature of offences |
Legislation: | Nil |
Case References: | Fowler v The Queen [2002] WASCA 296 Glover v Reyne [2001] WASCA 305 Green v The Queen [2001] WASCA 162 Lowndes v R (1999) 195 CLR 665 McWaters v Talbot, unreported; SCt of WA (Scott J); Library No 930359, 3 June 1993 Meissner v The Queen (1995) 184 CLR 132 Minear v Rudrum [2001] WASCA 10 Nevermann v The Queen (1989) 43 A Crim R 347 Ollerton (1989) 40 A Crim R 133 R v English (1993) 10 WAR 355 Sagiv v The Queen (1986) 22 A Crim R 73 Slater v Marshall [1965] WAR 222 Thomason v Martin [1964] WAR 136 Tihanyi v The Queen (1999) 21 WAR 377 Beattie v Prime [2002] WASCA 111 Lutter v Davis (1992) 7 WAR 72 Mabbott v The Queen [1990] WAR 323 Maxwell v The Queen (1996) 184 CLR 501 Price v Davies (2001) 120 A Crim R 183 R v Boag (1994) 73 A Crim R 35 R v Forde [1923] 2 KB 400 R v Roach (1990) 54 SASR 491 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STUART DAVID GLYDE LAPSLEY
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR S A HEATH CSM
File No : PE 18282 of 2004, PE 18283 of 2004
(Page 2)
Catchwords:
Criminal law - Appeal against conviction on plea of guilty - Charges of receiving stolen property and fraud - Whether state of mind pleaded in mitigation did not amount to mental element required - Whether plea equivocal
Criminal law - Sentencing - Suspended term of imprisonment imposed for traffic offences - Suspended term of imprisonment activated on plea of guilty to charges of receiving and fraud - Whether Chief Magistrate erred in not ordering a pre-sentence report - Whether Chief Magistrate failed to consider sentencing options - Whether Chief Magistrate failed to take into account change in circumstances since commencement of suspended sentence - Whether Chief Magistrate failed to take into account different nature of offences
Legislation:
Nil
Result:
Appeal allowed
Convictions quashed
Complaints remitted for retrial
Category: B
Representation:
Counsel:
Appellant : Mr J R Noble
Respondent : Ms S M De Maio
Solicitors:
Appellant : Jeremy Noble
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Fowler v The Queen [2002] WASCA 296
Glover v Reyne [2001] WASCA 305
Green v The Queen [2001] WASCA 162
Lowndes v The Queen (1999) 195 CLR 665
McWaters v Talbot, unreported; SCt of WA (Scott J); Library No 930359; 3 June 1993
Meissner v The Queen (1995) 184 CLR 132
Minear v Rudrum [2001] WASCA 10
R v English (1993) 10 WAR 355
R v Nevermann (1989) 43 A Crim R 347
R v Ollerton (1989) 40 A Crim R 133
R v Sagiv (1986) 22 A Crim R 73
Slater v Marshall [1965] WAR 222
Thomason v Martin [1964] WAR 136
Tihanyi v The Queen (1999) 21 WAR 377
Case(s) also cited:
Beattie v Prime [2002] WASCA 111
Lutter v Davis (1992) 7 WAR 72
Mabbott v The Queen [1990] WAR 323
Maxwell v The Queen (1996) 184 CLR 501
Price v Davies (2001) 120 A Crim R 183
R v Boag (1994) 73 A Crim R 35
R v Forde [1923] 2 KB 400
R v Roach (1990) 54 SASR 491
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- SIMMONDS J:
Introduction
1 This is an appeal by leave under s 184 of the Justices Act 1902 (WA) against both convictions, on pleas of guilty, and sentences arising out of two charges arising out of the discovery by police of a set of stolen car parts at the premises of, and on a car prepared for competition by, the appellant. One charge was for receipt of stolen goods. The other had to with obtaining a part, which itself was not stolen, by means of an exchange for it of one of the stolen parts. There was also an appeal by leave against the failure to relieve against the activation of imprisonment on previous traffic offences, for which the appellant had been under suspended sentences at the time.
2 The appeal against conviction seeks to overcome the pleas of guilty entered before the sentencing Magistrate. The plea in mitigation that accompanied the pleas of guilty, it is said, should have indicated to him that on the admitted facts the appellant's pleas of guilty were equivocal and he had an arguable defence in each case.
3 The appeal against sentence on the two property offences has two aspects. One is that the sentencing Magistrate did not properly or at all consider the alternatives to imprisonment. The other aspect is that the sentencing Magistrate failed to order a pre-sentence report for the appellant.
4 The appeal against the failure to relieve against the activation of terms of immediate imprisonment for the offences the subject of the previous suspended sentences was on the basis that the Magistrate had failed to take account of the appellant's changed circumstances since the commencement of the suspended sentences, or to take account of the fact that the property offences were of a different nature from the traffic ones the subject of the suspended sentences.
5 I will first outline the background to the appeal, before listing the grounds of appeal and considering each of them.
Background
6 The appellant is aged 23 and apparently has a passion for motor sports. However, at the time of the alleged offences he lacked the funds to pursue this passion through the purchase of new or used parts from retail outlets.
(Page 5)
7 On 6 February 2004 police executed a search warrant at the appellant's home where they discovered a Torana vehicle, as well as parts on the floor in the appellant's garage. It was determined that the parts on the floor had been stolen from Bob Campbell's Racing Engines on 5 or 6 December 2003. It was also determined that other parts so stolen had been incorporated into the Torana, which had been or was being prepared as a drag car. The car also contained, the police discovered, an Edelbrock 308 performer manifold, which was not one of the stolen parts. However, it was found this manifold had, on 13 December 2003, been obtained by the appellant from automotive accessory retailer Performance Unlimited. The appellant had paid for the 308 manifold by swapping an Edelbrock Chrysler 440 manifold for it and paying a balance in cash. The Chrysler 440 manifold was part of the property stolen from Bob Campbell's Racing Engines in early December 2003.
8 The appellant was later charged for offences on two complaints. I note that, although the leave to appeal makes reference to only one of these, I gave leave at the hearing, without objection from the respondent, to add a reference to the other complaint. On one complaint he was charged, under Criminal Code s 401(2)(b), with stealing from Bob Campbell's Racing Engines, and, in the alternative, under Code s 414, with receiving mechanical parts valued at $10,420 the property of that business, then well knowing they had been stolen. On the other complaint he was charged, under Code s 409(1)(c), with obtaining a benefit, namely the credit for the Chrysler 440 manifold towards the purchase of the Edelbrock 308 manifold, with an intent to defraud by deceit, by pretending to an employee of the seller that the appellant was the rightful owner of the Chrysler 440 manifold.
9 Subsequently, there were exchanges between the appellant's then solicitor and the prosecution with a view to reducing the value of the property the subject of the charges of stealing and receiving so that the matter would proceed in the Court of Petty Sessions rather than the District Court. These exchanges eventually produced an agreement that the appellant would plead guilty, both to a charge of receiving property valued at a total of $3,500, apparently the value of the property found on the Torana, on the complaint of stealing and receiving, and to the charge of fraud, on the other complaint. The prosecution would not proceed on the charge of stealing.
10 On 18 August 2004 at the Court of Petty Sessions Perth, before Chief Stipendiary Magistrate Heath, the learned Chief Magistrate was informed of these arrangements. He put each of the resultant charges to the
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- appellant, asking him if he understood the charge, and receiving a plea of guilty. The prosecution then recited the material facts for the charges. One of the facts so recited was that in the appellant's video record of interview with police he had said he bought all of the parts in question through the publication The Quokka (Addendum to Appeal Book, 1.4, extract from transcript of hearing before the learned Magistrate).
11 The recital of the material facts was followed by a plea in mitigation for the appellant. This included an admission of the facts and the appellant's record. The plea began by stating that "the facts are admitted", and putting that the appellant maintained he had no involvement in the stealing of the parts. His counsel went on to say this (AB 16):
"Every year he enters an event called Motorvation, which is a contest for motor car sports enthusiasts. This particular year he had a personal financial crisis and he was not able to purchase parts, new parts, to put in his vehicle that he was building and so he decided to search The Quokka. He needed to build the vehicle very quickly and didn't have enough time or money to, as I say, attend new and used parts retailers.
He instructs me that he did find some of these parts in the Quokka and, admittedly, he was surprised that when he bought these parts they appeared quite new and so he ought to have realised that there was something suspicious about them but he did turn a blind eye because he was concerned about building his engine as quickly as possible and getting into the competition. Sir, he accepts his actions were foolish in not waking up to the reality of the situation he had put himself in.
In relation to the fraud, he readily admits that he attempted to exchange the manifold that he had also purchased from the Quokka."
12 The appellant's counsel also confirmed that the appellant could not recall how much he had paid for the parts, "but it certainly would have been much less" than "the new retail price". He concluded this aspect of his plea by saying:
"As I say, he's very upset about what's happened and wants to get it all over with and that is why he has cooperated with the police and pleaded guilty at the very first opportunity, subject to clarifying some of the factual issues."
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13 The appellant's counsel then addressed the learned Chief Magistrate on the appellant's record and on the suspended sentence, as well as on the appellant's personal circumstances, concluding with a submission as to the appropriate sentence. I return to these matters below.
14 The learned Chief Magistrate, after acknowledging that the appellant had pleaded guilty at an early opportunity, said this, among other things (AB 18):
"Certainly, I should make clear that you are sentenced on the basis of the charge to which you have pleaded guilty - that is, of receiving stolen items – and not on the basis that you had anything whatsoever to do with the burglary but, of course, it involved obtaining items that you knew or ought to have known were stolen."
15 The learned Chief Magistrate sentenced the appellant to terms of immediate imprisonment, of 12 months on the receiving charge, and 7 months, concurrent, on the fraud charge. The learned Chief Magistrate also sentenced the appellant to the terms of imprisonment on the two convictions that had resulted in the suspended sentences he was under at the relevant time, one of 9 months, concurrent, and the other of 12 months, cumulative. This, as the learned Chief Magistrate recognised, produced a total of 24 months' imprisonment, for which he ordered eligibility for parole. I return below to the terms in which the learned Chief Magistrate imposed these sentences.
The grounds of appeal
16 On 29 October 2004, Roberts-Smith J (as he then was) granted leave to appeal on the following grounds:
"1.1 As to conviction
i. The Applicant was not aware that in entering a plea of guilty to counts of Receiving and Fraud that he was admitting the mental elements applicable to those counts and further he does not admit those elements and has a defence to the counts.
ii. Defence Counsel's submission to the learned Sentencing Magistrate that the Accused:
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- 'Was surprised that when he bought these parts they appeared quite new and so he ought to have realized that there was something suspicious about them but he did turn a blind eye …'
- does not amount to the knowledge required for a conviction under section 414 of the Criminal Code. This in turn ought to have led the learned Magistrate to query the basis on which the plea was being entered.
- iii. The Learned Magistrate erred in accepting that the Accused 'knew or ought to have known (that the items) were stolen' amounted to the requisite knowledge/mental element of the offences to enable a conviction.
- 1.2 As to sentence
i. The Learned Magistrate did not order a pre-sentence report or consider any other options in relation to sentencing.
ii. The Learned Magistrate did not properly take into account that Applicant's changed circumstances since in possession of the suspended term of imprisonment.
iii. The Learned Magistrate did not take into account the different nature of the offences before him as opposed to the offences for which the Appellant was placed on the suspended term of imprisonment."
Against conviction: no awareness he was admitting the mental elements of the offences to which he had a defence (ground 1.1i)
18 It was agreed before me that the mental element for the offence of receiving was, in the circumstances of this case, the same as the mental element for the offence of fraud, namely, that the appellant knew that the parts or part in question had been stolen.
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19 In relation to this ground, affidavits from the appellant, sworn 26 October 2004 and 17 March 2005, were put into evidence before me by his counsel without objection from counsel for the respondent. By way of response, an affidavit from the solicitor instructed by the appellant in relation to the charges who appeared for him before the learned Chief Magistrate, sworn 30 May 2005, was put into evidence by counsel for the respondent without objection from counsel for the appellant. I note that in cases of this kind, such evidence falls within the broad discretion conferred by Justices Act s 196 to receive further evidence to that before the Magistrate: see Glover v Reyne [2001] WASCA 305, Roberts-Smith J, who referred to evidence of that kind being admissible as (at [35]):
"Evidence going to the circumstances of the plea, the appellant's state of mind when making it, and the question whether or not there was a miscarriage of justice because of the existence of facts at the time of the plea which may have afforded the defendant a defence to the charge."
20 Counsel for both the appellant and the respondent indicated there had been discussions between them in the week before the hearing before me about having both the appellant and the solicitor called for cross-examination on their affidavits. However, neither counsel had lodged the relevant notices, until the day of the hearing before me, when a subpoena for the appellant to testify was made available to me by counsel for the respondent. Counsel for the appellant objected to permitting his client to be called without any previous opportunity to proof him or advise him on the procedure he faced, which also underlay his objection to any calling of the solicitor by counsel for the respondent without an opportunity, after such preparation and advice, to have his client testify. I asked counsel for the respondent whether she wished me to adjourn the matter to permit the appellant's concerns to be addressed, and counsel for the respondent, without abandoning her preference at least to have the solicitor called, indicated she would not wish the matter to be further delayed. In these circumstances, I determined I would not permit either the appellant or his former solicitor to be called to testify at the hearing before me.
21 In his affidavits the appellant deposed that he had never instructed his solicitor he had knowledge the mechanical parts were stolen, maintaining throughout each part had been purchased "inter alia from the Quokka Newspaper" (affidavit of 26 October 2004, par 4). He further deposed he had not understood that by pleading guilty he was admitting
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- knowledge that the parts had been stolen and that he was advised to plead guilty at the earliest opportunity, on the basis "I should have known that the parts were stolen" (affidavit of 17 March 2005, par 9).
22 In his affidavit, the appellant's former solicitor deposed that, while he agreed the appellant "may not have openly admitted that he had the knowledge required", he was "secure in saying that [the appellant], knowing fully what a receiving charge entailed, elected to plead guilty to it", the solicitor having gone through with the appellant the elements of the receiving charge (affidavit of 30 May 2005, par 19 and par 23). The solicitor further deposed that he had discussed with the appellant his possession of a number of items the subject of the burglary and that, "without evidence of the Quokka advertisement and proof of purchase, there was an irresistible inference that the goods were stolen and that he ended up with them through some unlawful means" (par 20 and par 29). He indicated he recalled his client could not assist him with information about the circumstances of his purchasing the parts going to details of such matters as price and date, and he informed him this "lack of clarity" would raise a suspicion that he was involved in some sort of "illegal activity" (par 21 and par 22).
23 The solicitor's affidavit annexes a letter to his client "VE 1" in which the solicitor confirmed having been told by the prosecution that they were prepared to reduce the amount of the burglary to $10,000 on a plea of guilty, allowing the matter to be disposed of in the Court of Petty Sessions. His affidavit also annexes a letter to the prosecution, "VE 2", just over one month later, confirming his instructions from his client that his client was prepared to plead guilty to an amended charge of unlawful possession and to fraud. His affidavit deposed that subsequently the prosecution indicated it would only be prepared to proceed with a receiving charge, not an unlawful possession one, in place of the burglary charge, with a reduction in the value of the property to $10,000. The appellant agreed to plead guilty to the receiving and fraud charges if the value could be agreed at $3,500 (par 14 and par 16). This, of course, was the final arrangement.
24 I have concluded from this material that the appellant likely did have the elements of the charge of receiving explained to him by his former solicitor. While it was put to me I should not so conclude in the absence of a contemporaneous file note or other written record to that effect, and while that might well be good practice, I am not convinced that I am so disabled. I see no reason to conclude that the solicitor was not a competent practitioner.
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25 It is of course clear law that the charge of receiving under Code s 414 requires the proof of knowledge that the property in question has been obtained by means of any act constituting an indictable offence, such as by theft. It is also clear law that such proof is not made by showing only suspicion. In R v English (1993) 10 WAR 355, Murray J said this, at 362:
"The mental element involved in the completed offence of receiving, is the knowledge that the property had been so obtained. But in that context 'knowledge' will include an actual belief by the accused that the property was stolen. Provided the tribunal of fact remains focussed upon the actual knowledge or belief of the accused, from an evidentiary point of view, to wilfully shut one's eyes to the circumstances which would provide knowledge or affirmative belief may provide good evidence sufficient to satisfy that requirement of the law. But suspicion alone is not enough, and to wilfully shut one's eyes to avoid suspicion hardening into actual belief will be insufficient to satisfy this element of the completed offence: see generally R v Schipanski (1989) 17 NSWLR 618, a decision of the NSW Court of Criminal Appeal in relation to the statutory offence of receiving, defined in similar terms to the Code s 414, by the Crimes Act 1900 (NSW), s 188."
26 Of particular relevance to this case, it is clear that reasonable grounds to suspect that property was stolen are not equivalent to the knowledge element in s 414, even if those grounds may well cause the tribunal of fact to infer such knowledge (McWaters v Talbot, unreported; SCt of WA (Scott J); Library No 930359; 3 June 1993). That is, the "circumstances in which property is received may in themselves be sufficient proof that it was stolen and that the defendant knew that fact without actual direct proof with regard to the ownership of the goods or the fact that they had been stolen": R v Ollerton (1989) 40 A Crim R 133, at 135.
27 I have concluded from the affidavit material to which I have referred, for which there is in this respect a written record I will shortly reach, that the appellant's then solicitor had explained to the appellant the effect of this law on the facts of this matter, as that solicitor understood that effect and those facts. However, there was a potential for the appellant to mistake the evidentiary position for the substantive element. Indeed, the decision of the learned Chief Magistrate contained a passage, to which my attention was drawn, which is the subject of a separate ground of appeal below, and which I previously quoted, that the charge "involved obtaining
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- items that you knew or ought to have known were stolen". Such language, had it been used by his former solicitor with the appellant, might indeed have produced the confusion I have described. There is some indication that something like this language had been so used.
28 The language of the solicitor in question was that used in the plea in mitigation, which I have also previously quoted, that the appellant "was surprised that when he bought these parts they appeared quite new and so ought to have realised that there was something suspicious about them". The solicitor's affidavit refers to his "habit to read back my plea in mitigation to defendants before presenting them in court", annexing his file note, "VE 4" with respect to the plea in this matter in which he used very similar language, and adding that he could not see "any reason why I would not follow my usual practice with [the appellant]" (affidavit of 30 May 2005, par 31).
29 It is true that the file note I have just referred to also contains the "blind eye" language used in the plea in mitigation, and that in English (supra) per Murray J at 362 indicates "to wilfully shut one's eyes to the circumstances which would provide knowledge or affirmative belief may provide good evidence" of knowledge. The appellant denies using the language of "blind eye" in his instructions to his former solicitor (affidavit, 17 March 2005, par 12). However, whether he did or not, the use of that language in the plea in mitigation as I have quoted it above would not seem to me to advance the position towards a concession of knowledge, given that the plea is put in terms of what the appellant ought to have suspected, not circumstances which would provide knowledge or affirmative belief.
30 It follows from this analysis that the appellant's plea in mitigation in terms asserted a fact, as to his state of mind at the time of the alleged offence, which if accepted would be inconsistent with the mental element required for the offence. In my view, such an assertion, in the circumstances I have described, tends to indicate the appellant did not have a full understanding of the mental element for the offences of receiving and fraud. Of course, a plea of guilty to such an offence would normally be seen to be an admission of that mental element, which would otherwise (Meissner v The Queen (1995) 184 CLR 132, per Dawson J, at 157) be involved in pleading guilty to those offences. However, in this case I do not consider that such a conclusion may safely be drawn. I particularly note in that regard the terms, previously quoted, in which the plea in mitigation concluded, on the reason why the appellant had pleaded
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- guilty, that, although that was done to expedite the process, it was "subject to clarifying some of the factual issues" (AB 16).
31 However, counsel for the respondent pressed on me the fact that the appellant had previously been convicted of the offence of unlawful possession, which apparently was the offence in Police Act 1892 (WA), s 69. That offence was also one, as I have indicated, the appellant's former solicitor had deposed the appellant had been prepared to plead guilty to on this occasion, as a substitute for the burglary and the alternative receiving charge (affidavit of 30 May 2005, "VE 2"). The unlawful possession offence in s 69 is of course in a form which casts the burden on the accused of explaining how a person came by property which might otherwise reasonably be suspected of having been stolen or unlawfully obtained. However, I do not consider this establishes or even helps to establish that the appellant clearly recognised the difference as to the mental element between that offence and the Code s 414 offence. It is at least as likely that from the appellant's standpoint the offence was being put forward in view of its lower maximum penalty (2 years' imprisonment as opposed to up to 14 years, on s 414 read with s 378).
32 Counsel for the respondent also pressed on me that the learned Chief Magistrate had put the charges of receiving and fraud to the appellant in terms of the language of the respective provisions, s 414 and s 409(1)(c), at least as to their respective mental elements (Addendum to the Appeal Book, 1.2 – 1.3). Although the transcript records, in relation to the receiving charge, the appellant's response to the question "You understand that charge?", as "…(indistinct) …", he then responds to the next question, of how he pleads, "Guilty, your Worship". Also, he responds, in relation to the corresponding question as to his understanding of the fraud charge, "Yeah", following which he is asked how he pleads, replying "Guilty, your Worship". While counsel for the appellant pressed on me that I should not conclude that there was an affirmative response where the transcript reads "indistinct", it seems to me that this sequence of questions and answers, before a very experienced Magistrate, should cause me so to conclude.
33 However, for the reasons I have already given, I do not conclude from such responses that the appellant understood the mental elements in question here. I recognise it is the case, as indicated by Roberts-Smith J (as then was) in Glover (supra) (at [63]), quoting from Thomason v Martin [1964] WAR 136, per Hale J, at 142 that (emphasis added by Roberts-Smith J):
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- "Where a man of normal faculties bears [sic hears, in the original] a charge clearly read, and then pleads guilty, there must be a strong presumption that he has understood the charge and that he is in fact guilty, but I would not readily presume that he would be aware of a special statutory defence to the charge."
34 However, Roberts Smith J indicated there was in Thomason nothing before the Magistrate "to cause him to consider the plea was in any way equivocal" (Glover at [64]), which is not case here, as I have explained.
35 For these reasons, I would uphold this ground of appeal. Whether this is sufficient to cause me to quash the convictions in this case is a matter I reach next, in relation to the next ground of appeal.
Against conviction: the state of mind pleaded in mitigation did not amount to the mental element required for a conviction under the Code, s 414 and the Chief Magistrate should have queried the basis on which the plea was being entered (ground 1.1ii)
36 Before me both counsel treated this ground as going to both the receiving offence, under Code s 414, and the fraud offence, under Code s 409(1)(c). As both offences in this case depend upon proof that the offender knew the relevant property had been stolen, as I have indicated, I so proceeded, and to the extent necessary I treat the ground of appeal as having been amended accordingly (see Justices Act s 192(b)).
37 It follows from my discussion of the previous ground that the first part of this ground has been made out.
38 That discussion also would indicate that there was a statement after a plea of guilty, in the plea in mitigation, indicating that at the very least "the accused might not in truth be guilty", in which case "it would be proper that he should be invited to withdraw his plea of guilty and instead to plead not guilty" (Slater v Marshall [1965] WAR 222, Nevile J, at 228, quoted by Roberts-Smith J in Glover at [62]). In considering, in the light of a statement like the one in the plea in mitigation in this case, whether the appellant should be invited to withdraw his plea, or indeed should be taken to be pleading not guilty (Minear v Rudrum [2001] WASCA 10, Miller J, at [9]), account should be taken of the fact that the appellant's plea was through counsel. Thomason (supra), as quoted from in Glover at [62], refers to the relevance of whether the accused was unrepresented for the purposes of a duty of the Magistrate to satisfy himself that the accused's plea was not made through mistake or ignorance. However, in
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- this case it also seems to me that the terms of counsel's plea in mitigation should have caused the learned Magistrate to raise the matter.
39 I have also determined that the appellant was labouring under a confusion between the state of mind that was required to be proved for the purposes of s 414 and s 409(1)(c) of the Code and the way in which that state of mind might be proved. In my view when combined with the equivocation in the plea of guilty this is sufficient to show that there was a miscarriage of justice. This is by reason of the appellant being denied the opportunity to have the matter of his state of mind in relation to the parts tested. It is not necessary for me to be satisfied that the position would have resulted in the offences not being made out. It is only necessary to show that such a position is "arguable" (Glover at [57]), a matter to which I will return shortly.
40 The matter of the appellant's position being "arguable" brings me to the submission of counsel for the respondent that there were circumstances showing the appellant's mental state would be determined adversely to his position that he did not know the goods were stolen.
41 Those circumstances were:
· the weaknesses in the appellant's explanations to his solicitor of how he obtained the parts, as affirmed in the solicitor's affidavit and not contradicted in the appellant's affidavits, in that he could not provide details as to the advertisement in The Quokka to which he responded and the prices paid and date of purchase;
· the purchase of the parts at a price much less than their new retail price;
· the fact that shortly after the date the parts were stolen (5 or 6 December 2003), the appellant, on 13 December 2003, had been in possession of at least one of them (the Chrysler 404 manifold) when he exchanged it and a cash balance for the 308 manifold; and
· the appellant had in his possession a number of items all stolen in the same burglary.
42 In relation to the last circumstance, counsel for the respondent also referred to the fact that the burglary occurred after the appellant had visited the premises on which it occurred to make inquiries about the
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- same items. This is a reference to facts from the first two paragraphs of the statement of material facts in relation to the complaint of stealing or in the alternative receiving. Those facts in virtually that language were stated by the prosecution to the learned Chief Magistrate. The prosecution was then told not to state the facts relating to the alleged burglary, facts which appeared in the next paragraphs of the statement of material facts, as of course that charge was not to be proceeded with (Addendum to Appeal Book, 1.3 - 1.4, transcript of hearing before the learned Chief Magistrate). The matter with which the prosecution commenced does, however, appear to have been admitted, when counsel for the appellant began the plea in mitigation by saying (AB 16):
"Thank you, sir. The facts are admitted and the record. Certainly, Mr Morris maintains he had no involvement whatsoever in the alleged burglary."
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44 This is not a case like those counsel for the respondent cited to me, R v Sagiv (1986) 22 A Crim R 73 or Tihanyi v The Queen (1999) 21 WAR 377.
45 In Sagiv the matter of the accused's knowledge, that he was importing gold rather than the cocaine the subject of the charge against him, had only faintly been raised in discussions with police, which had for the most part featured his express or implied admissions of knowledge of the cocaine. Also, until fairly late in the sentencing process, he had made an unqualified plea of guilty. In those circumstances, the refusal of the sentencing judge to allow the withdrawal of the plea of guilty was not disturbed, where the claim as to knowledge that the substance was only gold had "little to do with the reality disclosed by the evidence" (per Lee J, McInerny and Campbell JJ agreeing, at 82). The appellant here had consistently maintained his position with respect to acquiring the goods through The Quokka, and his plea at the first opportunity was qualified as I have explained.
46 In Tihanyi, which is rather less dissimilar to this case, the matter of the appellant's intent only to use personally, rather than to sell or supply, the cannabis, which with plants and associated paraphernalia were found at his house, had in fact been affirmed in his interview with the police. However, his pleas were seen to be not "in any way equivocal", and his affidavit was seen to suggest he "well knew" the intent to sell or supply was an element of the offences in question, he having made the admission as to knowledge "for the purpose of having the matter resolved as soon as possible by use of the procedure of expedited committal" (per Murray J, at 391, Malcolm CJ and Parker J agreeing). Here, the appellant's pleas were equivocal in the way I described, and his affidavit denies he understood that an element of the offence was his knowledge that the goods had been stolen. His position, that he thought it was sufficient for a determination of guilt that he ought to have suspected that he was acquiring stolen property, is one that, notwithstanding the clear terms in which the offence was put to him by the learned Magistrate, and the likely terms of his reply as I found them, is supported by the form of the plea in mitigation made on his behalf. There is nothing in the appellant's affidavit corresponding to an acknowledgement of an understanding of the tactical aspect of the plea to which the Tihanyi judgment refers.
47 However, counsel for the respondent reminded me that a court must approach an appeal following a conviction with "caution bordering on circumspection" because of "the public interest in the finality of legal proceedings and because of the principle that a plea of guilty by a person
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- in possession of all of the relevant facts is normally taken to be an admission of all of the necessary legal ingredients" (Green v The Queen [2001] WASCA 162, at [100], as quoted by Roberts-Smith J in Glover at [59]). However, here the plea of guilty was in the circumstances an equivocal one, as I have indicated, and was at least in part the result of the error of the appellant as to the mental element required to convict him on the two offences. Nor in my view is there any room, given the position taken by the appellant in his video record of interview, for the suggestion that the matter of his mental state was one of "recent invention" (see Glover at [42]). In those circumstances, a miscarriage of justice is shown which overcomes the caution I have referred to (see Glover at [42] and [57]).
48 This conclusion renders it unnecessary for me to deal with the submission put to me by counsel for the appellant that, once an arguably equivocal plea is shown, then the plea is a nullity, or at least the equivocation is sufficient to show conviction on such a plea is a miscarriage of justice. It seems to me that an equivocation, in the sense of one that indicates the plea was not genuine and discloses an arguable defence, does indeed show a conviction obtained on it would involve a miscarriage of justice: see Minear (supra), Miller J, at [9] - [10]; and see Criminal Law in Western Australia, at [11,175.6].
49 It follows that I would uphold this ground of appeal, and would quash the conviction below. It also follows that I would remit the complaints for a retrial. That conclusion would make it strictly unnecessary to consider the remaining grounds of appeal. However, in view of the fact that none of them were abandoned, I will consider them.
Against conviction: error in accepting that the appellant "knew or ought to have known (that the items) were stolen" satisfied the mental element for the offences (ground 1.1iii)
50 This ground arose out of the following passage in the learned Magistrate's sentencing remarks, to a portion of which I have already made reference on two occasions, but which I now set out in full (AB 18, my emphasis):
"Certainly, I should make clear that you are sentenced on the basis of the charge to which you have pleaded guilty - that is, of receiving stolen items - and not on the basis that you had anything whatsoever to do with the burglary but, of course, it involved obtaining items that you knew or ought to have known were stolen."
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51 Although in terms this relates only to the receiving offence, it was accepted before me, as I have indicated, that the mental element is in this case the same in relation to the fraud charge. I consider the learned Chief Magistrate meant this remark to apply to both charges.
52 Considered on their face, the emphasised words in the remarks I have quoted are inconsistent with the law of the offences in question (see English (supra), Murray J, at 362). However, counsel for the respondent pointed to the context of those remarks as indicating that the learned Magistrate was in effect summarising the effect of the admitted facts, particularly in relation to the appellant's inspection of the parts on the premises shortly before they were stolen, in establishing that the appellant had the requisite knowledge. It seems to me that it is indeed possible this is what the learned Chief Magistrate, who is very experienced, meant. However, as I have previously indicated, there is a need in approaching the mental element in relation to this offence to keep separate the requisite mental element and the means of proving it, as Murray J emphasises in the passage from English to which I have referred. While this remark might not have been objectionable if there had been an unequivocal plea of guilty, in the context of an equivocal plea it raises a serious doubt as to whether the learned Chief Magistrate approached the law of the offences correctly.
53 I would accordingly uphold this ground of appeal.
Against sentence: not ordering a pre-sentence report or considering any other options in relation to sentencing (ground 1.2i)
54 The Chief Magistrate did indeed not order a pre-sentence report. Sentencing Act 1995 (WA) s 20 says the Court "may" order such a report if it considers it "would be assisted" by one, and "must" order one if it is considering imposing a pre-sentence or intensive supervision order. Before the learned Chief Magistrate the appellant's counsel made a lengthy plea in mitigation, and at no point in it asked for a pre-sentence report.
55 In Fowler v The Queen [2002] WASCA 296, Steytler J, Templeman J and Sheppard AUJ agreeing, said this (at [9]):
"In Gavin v The Queen (1991) 6 WAR 195 at 211, Seaman J (with whom Malcolm CJ was in agreement) said that it would be a rare case in which a miscarriage of justice could be demonstrated by the failure of a judge to obtain a pre-sentence
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- report upon an offender who is represented by counsel, and that the failure could never by itself constitute a ground of appeal."
56 In the written submissions of counsel for the appellant it was put that, had a pre-sentence report been ordered, it would have outlined the appellant's change of circumstance, namely, he was gainfully employed on a full-time basis. However, I note that counsel's plea in mitigation indicated the appellant worked full-time, and also indicated his employer, his hours and his weekly remuneration, adding "and he's doing this to clear his fines, to get his extraordinary licence and get his life back on track" (AB 17). The only fines showing on his criminal record dated from his conviction about three months before the traffic offences on which he received suspended terms of imprisonment, from his conviction on those offences, and from an offence about eight months later. In those circumstances, I find it difficult to conclude that the learned Chief Magistrate did not have the information before him that the submission referred to. Nor was there any suggestion of any other matter that a pre-sentence report might have addressed that which the appellant's counsel did not address in his plea in mitigation. This part of the ground of appeal must in my view fail.
57 As to the other part of the ground, having to do with the options in relation to sentencing, I note that the appellant's counsel in his plea in mitigation put to the learned Chief Magistrate that a community based order was the appropriate disposition, "alternatively" a fine, or the learned Chief Magistrate might "also consider extending as a period of suspended sentence", concluding that counsel did not believe "these particular breaches would warrant him being … sent to prison" (AB 17). I also note the following from the learned Chief Magistrate immediately following this conclusion (AB 17):
"My concern is that he's go a continuing pattern of offences of dishonesty. I mean, he received a suspended sentence in 2000 for stealing. He received another suspended sentence for fraud and stealing in 2001, an intensive supervision order in 2002 for stealing and fraud, and then these offences occur whilst he is the subject of a suspended sentence for traffic matters. That's my concern - that he seems to have had the benefit of the range of sentencing options without any real change in his offending behaviour."
58 Subsequently, in his sentencing remarks, he said this (at AB 19):
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- "I therefore feel I am faced with someone who has a continuing record of offences of dishonesty that have not abated. You have been given the benefit of the full range of sentencing options, including fines, community based orders and suspended terms of imprisonment, and you have also been given the benefit when there have been breaches of those orders. In those circumstances, and notwithstanding the persuasive arguments of counsel on your behalf, I have reached the conclusion that the only appropriate sentence today is a term of immediate imprisonment."
59 It was agreed before me that the appellant had not in fact received a community based order in the past, and that the learned Chief Magistrate was probably meaning to refer to the previous intensive supervision orders.
60 In my view, these remarks viewed in this context indicate to me that the learned Chief Magistrate did indeed consider the range of sentencing options, and only reached a term of immediate imprisonment as a last resort, particularly in view of the appellant's record in the respects he indicates.
61 I also note the frequently cited remarks from R v Nevermann (1989) 43 A Crim R 347, of Malcolm CJ at 350, where the Chief Justice said:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delay in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 ACrimR 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68 per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."
62 Therefore this other part of the ground of appeal must fail.
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Against sentence: failure to take into account the appellant's changed circumstances since the commencement of the suspended term of imprisonment (ground 1.2ii)
63 It was agreed that convictions on the receiving and fraud offences engaged Sentencing Act s 80(1), which is as follows:
"(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment."
"(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed."
65 The circumstances upon which the appellant relied for the purposes of s 80(3) were apparently those I have referred to in relation to the failure to order a pre-sentence report, together with the facts, deposed to in the
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- appellant's affidavit sworn 26 October 2004, that he was in a "stable relationship" and had "refrained from driving which had resulted in the aforementioned suspended term of imprisonment" (par 8).
66 Counsel's plea in mitigation had included that the appellant had, "in relation to the traffic matters … actually tried to do the right thing", having "made an effort to pay off his fines by arrangement", and "applied for an extraordinary [driver's] licence without success", and planned to make another application (AB 16 - AB 17), before referring to his employment, as I have indicated in relation to the ground as to a pre-sentence report. The plea also went on to refer to the appellant living with his "de facto of 3 years" (AB 17), which, however, seems to suggest that this was not a change of circumstance since the imposition of the suspended sentence.
67 There is no doubt the learned Chief Magistrate had addressed his mind to the matter of whether there were "circumstances that have arisen since the imposition of that sentence which would make it unjust for you to serve it" (AB 18). It seems to me that, given the context in which they were raised, the learned Chief Magistrate has considered the matters I have described in that light. I note again the conditions under which sentencing decisions of this sort are rendered: Nevermann (supra). In view of those features of this case, I would not uphold this ground of appeal.
Against sentence: failure for the purposes of the activation of the suspended sentences to take account of the different nature of the receiving and fraud offences from those the subject of the suspended sentences (ground 1.2iii)
68 One of the suspended sentences was for a 9 month term of imprisonment for driving without a motor driver's licence, while the other suspended sentence was for a 12 month term of imprisonment for reckless driving. The learned Chief Magistrate said, referring to the receiving and fraud offences by comparison with the traffic offences (AB 18):
"…whilst these are offences that are not of the same nature, of course, when one is placed on a suspended term of imprisonment any offence for which imprisonment is one of the options activates that sentence and you are required to serve that term unless there are circumstances that have arisen since the imposition of that sentence which would make it unjust for you to serve it."
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69 He went on to refer, as I previously indicated, to what he felt was a person "who has a continuing record of offences of dishonesty that have not abated" (AB 19). In view of the nature of the receiving and fraud offences, that seems to be a view open to him.
70 Conceding without deciding that the different nature of the offences which would engage the Sentencing Act, s 80 makes for "circumstances that have arisen … since the suspended sentence was imposed" (s 80(3)), it seems to me that the learned Chief Magistrate could properly take the view he seems to have done, that the difference did not make it "unjust" to activate the original sentences. The fact that an appeal court might exercise the discretion differently is not of itself a reason to quash a decision: Lowndes v The Queen (1999) 195 CLR 665.
71 I would thus not uphold this ground of appeal.
Conclusion and order
72 I thus uphold grounds of appeal 1.1i, 1.1ii and 1.1iii, and I would quash the convictions and remit the complaints for retrial.
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