Mussarri v The State of Western Australia
[2018] WASCA 46
•6 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MUSSARRI -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 46
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 7 NOVEMBER 2017
DELIVERED : 6 APRIL 2018
FILE NO/S: CACR 178 of 2016
BETWEEN: PAOLO MUSSARRI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
File Number : IND 1261 of 2014, IND 461 of 2015
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of five counts of dealing in prohibited drugs - Sentencing judge gave the appellant a discount of 5% on the head sentence for each offence pursuant to s 9AA of the Sentencing Act 1995 (WA) - Whether the sentencing judge erred in failing to give adequate reasons for his decision to reduce the head sentence for each offence by 5% - Whether the discount of 5% was manifestly inadequate - Whether the discount of 5% infringed the parity principle - Whether a miscarriage of justice occurred in the sentencing of the appellant
Legislation:
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 33(1), s 34(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on grounds 1, 2 and 3
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Dias v The State of Western Australia [2017] WASCA 49
Fenton v The State of Western Australia [2015] WASCA 255
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hoang v The State of Western Australia [2015] WASCA 130
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jardim v The State of Western Australia [2011] WASCA 83
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Kobeissi v The State of Western Australia [2016] WASCA 188
Lear v The State of Western Australia [2015] WASCA 90
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Maric v The State of Western Australia [2015] WASCA 190
Nembousse v The State of Western Australia [2015] WASCA 68
Nguyen v The State of Western Australia [2017] WASCA 35
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2016] WASCA 201
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Taudevin [1996] 2 VR 402
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Wilson [2015] WASCA 119
Truscott v The State of Western Australia [2016] WASCA 58
BUSS P:
This is an appeal against sentence.
The appellant was charged with five counts (counts 2, 4, 5, 6 and 7) in indictment 461 of 2015 and one count in indictment 1261 of 2014.
On 23 May 2016, the appellant pleaded guilty in the District Court to counts 4, 5, 6 and 7 in indictment 461 of 2015. On 30 May 2016, the State agreed to accept those pleas of guilty, in full satisfaction of the indictment, if the appellant pleaded guilty to the count in indictment 1261 of 2014.
On 9 June 2016, the appellant pleaded guilty in the District Court to the count in indictment 1261 of 2014 and the State discontinued count 2 in indictment 461 of 2015.
Counts 4, 5, 6 and 7 in indictment 461 of 2015 alleged:
(a)As to count 4, on 7 October 2014, at Bayswater, the appellant sold or supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
(b)As to count 5, on 8 October 2014, at Bayswater, the appellant and Van Dieu Phan sold or supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act.
(c)As to count 6, on 15 October 2014, at Inglewood, the appellant sold or supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act.
(d)As to count 7, on 23 October 2014, at Bayswater, the appellant, Jennifer Lee Kelly, Vinh Loc Pham, Van Dieu Phan and Tammi Francesca Mussarri (the appellant's daughter) sold or supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act.
Count 5 had originally charged Vinh Loc Pham, in addition to the appellant and Van Dieu Phan, but the indictment was amended to delete the reference in count 5 to Mr Pham pursuant to an arrangement negotiated between the State and Mr Pham, which involved Mr Pham pleading guilty to count 7 conditionally upon the charge against him in count 5 being discontinued.
The count in indictment 1261 of 2014 alleged that on 18 December 2013, at Warnbro, the appellant and Jennifer Lee Kelly, attempted to possess a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the MD Act.
On 31 October 2016, Eaton DCJ imposed on the appellant the following individual sentences of immediate imprisonment:
(a)as to the count in indictment 1261 of 2014: 5 years 8 months;
(b)as to count 4 in indictment 461 of 2015: 5 months;
(c)as to count 5 in indictment 461 of 2015: 2 years 10 months;
(d)as to count 6 in indictment 461 of 2015: 5 months; and
(e)as to count 7 in indictment 461 of 2015: 4 years 9 months.
His Honour ordered that the sentence of 4 years 9 months' imprisonment for count 7 in indictment 461 of 2015 be served cumulatively upon the sentence of 5 years 8 months' imprisonment for the count in indictment 1261 of 2014 and that the sentences for the remaining counts be served concurrently with each other and concurrently with the accumulated sentences. The total effective sentence was therefore 10 years 5 months' imprisonment. The total effective sentence was backdated to 23 October 2014. A parole eligibility order was made.
The appellant alleges in the appeal, in essence, that the sentencing judge made an error of law, alternatively a miscarriage of justice occurred, in the course of his Honour deciding that the appellant should have a 5% discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his pleas of guilty. I am satisfied that a miscarriage of justice occurred in the sentencing of the appellant. However, different sentences should not have been imposed on the appellant. The appeal must therefore be dismissed.
The facts and circumstances of the offending
The facts and circumstances of the offending were as follows.
As to the count in indictment 1261 of 2014:
(a)Prior to 18 December 2013, police officers from the Organised Crime Squad had been conducting an investigation into an interstate drug trafficking syndicate. This included the interception of telephone calls and surveillance by covert operatives.
(b)On 18 December 2013, the appellant and Ms Kelly arranged for Kim Thuy Le to attend at Ms Kelly's place of residence in Warnbro for the purpose of enabling the appellant and Ms Kelly to purchase a large quantity of heroin from Ms Le.
(c)The police arrested Ms Le in a taxi outside Ms Kelly's residence. Ms Le was in possession of 361 g of heroin having a purity of 75% ‑ 81%.
(d)Police then searched Ms Kelly's residence. They located $130,800 cash (being the approximate value of the heroin in the possession of Ms Le) and other indicia of drug‑dealing including digital scales, clipseal bags and tick lists.
(e)The appellant made some admissions during the search (which was video recorded), but declined to comment in a later, formal interview.
As to the counts in indictment 461 of 2015:
(a)One of the covert operatives, known as 'Vinnie', contacted the appellant, who agreed to discuss the sale of methylamphetamine to Vinnie. They exchanged telephone numbers. Subsequently, they met and quantities of the drug were sold or supplied by the appellant to Vinnie.
(b)As to count 4, on 7 October 2014, at Bayswater, the appellant supplied to Vinnie 0.37 g of methylamphetamine having a purity of 75%. The drug was supplied as a sample with a view to Vinnie purchasing a larger quantity of the drug.
(c)As to count 5, on 8 October 2014, at Bayswater, the appellant met with Vinnie and agreed to sell or supply to him 168 g of methylamphetamine. The appellant then contacted Mr Phan and ordered the drug. The agreed quantity of the drug was unable to be obtained. The appellant informed Vinnie that only 126 g of methylamphetamine was available. Mr Phan then met with Mr Pham to collect the drug. At 6.00 pm, Mr Phan arrived at the appellant's home in Bayswater. The appellant and Vinnie were waiting. The appellant went to Mr Phan's vehicle and retrieved a bag containing 126 g of methylamphetamine having a purity of 55% ‑ 62%. The appellant gave the drug to Vinnie in exchange for $45,000 cash. Vinnie departed. Shortly afterwards, Mr Phan left the appellant's home and met with Mr Pham.
(d)As to count 6, on 15 October 2014, at Inglewood, the appellant supplied to Vinnie 0.73 g of methylamphetamine having a purity of 76%. The drug was supplied as a sample with a view to Vinnie purchasing a larger quantity of the drug.
(e)As to count 7, on 23 October 2014, at Bayswater, the appellant and his co‑offenders (Ms Kelly, Mr Pham, Mr Phan and Ms Mussarri) were involved in the sale to Vinnie of 224 g of methylamphetamine having a purity of 68% ‑ 72%. On the morning of 23 October 2014, the appellant met with Vinnie to discuss the transaction. After the meeting, Mr Phan visited the appellant's home in Bayswater. The appellant and Mr Phan had a conversation. Mr Phan then departed and met with Mr Pham. An exchange of 224 g of methylamphetamine occurred. Mr Phan then returned to the appellant's home with the drugs. Later that day, Vinnie went to the appellant's home to purchase the 224 g of methylamphetamine for $80,000. At the appellant's direction, Ms Mussarri retrieved the drugs from a truck parked at the front of the appellant's home. She placed the drugs in Vinnie's car. Vinnie gave her $80,000 cash. Ms Mussarri entered the appellant's home. Shortly afterwards, police searched the appellant's home. They located the $80,000 cash. The appellant, Ms Kelly, Mr Pham, Mr Phan and Ms Mussarri were in the home when it was searched by the police.
The sentencing judge sentenced the appellant, Mr Pham, Ms Mussarri and Mr Phan
The sentencing judge sentenced the appellant, Mr Pham, Ms Mussarri and Mr Phan at the same sentencing hearing.
The sentencing judge's sentencing remarks in relation to the appellant
The sentencing judge recounted the facts and circumstances of the appellant's offending in his sentencing remarks.
His Honour then noted the appellant's personal circumstances and antecedents.
The appellant was born on 25 January 1949. He was aged 64 or 65 at the time of the offending and was 67 when sentenced. The appellant was born in Sicily and migrated to Western Australia with his family at a young age. He left school in year 8. The appellant completed an apprenticeship in sheet metal work and a structural engineering course at TAFE. He has a number of children from several relationships and maintains close contact with some of the children.
The appellant has an extensive criminal record. In particular, he has prior convictions for drug dealing offences as follows:
(a)In 1992 he was convicted of two counts of possession of heroin with intent to sell or supply. A total effective sentence of 3 years' imprisonment was imposed.
(b)In 1993 he was convicted of one count of selling or supplying morphine and was sentenced to 2 years' imprisonment.
(c)In July 2002, he was convicted of one count of selling or supplying heroin and one count of selling or supplying amphetamine and was sentenced to a total effective sentence of 8 years' imprisonment.
(d)In September 2002, he was convicted of one count of conspiracy to possess heroin with intent to sell or supply and was sentenced to 5 years' imprisonment.
(e)In November 2002, he was convicted of one count of selling or supplying amphetamine and was sentenced to 4 years 6 months' imprisonment.
The information before the sentencing judge included a letter dated 1 September 2016 from Dr Cherelle Fitzclarence, the Deputy Director of Prison Health. In her letter Dr Fitzclarence said that on 11 December 2015 the appellant came under the care of the Director of Prison Health. Dr Fitzclarence said the appellant had a history of:
(a)Dyslipidaemia (abnormal cholesterol ratios).
(b)Diabetes. By August 2015, the diabetes was well controlled.
(c)Gastritis (inflammation of the stomach lining).
(d)Haemorrhoids.
(e)Dernatofibrosarcoma. In 2014 this rare type of cancer was surgically removed from the appellant's left shoulder. A recent MRI scan showed no recurrence.
(f)Chronic back pain.
(g)Collapse. On 14 January 2012, the appellant collapsed and required defibrillation. He had suffered a heart attack. An angiography showed severe distal right coronary artery disease. Stents were inserted. He remains on medication.
The appellant has had access within the prison system to care and attention from medical practitioners and nurses, as necessary.
As to the count in indictment 1261 of 2014, his Honour said:
(a)he adopted 'a term of 6 years as a starting point';
(b)there was 'comparatively little in the way of mitigation' apart from the appellant's plea of guilty;
(c)the State had 'noted' that the plea had been made 'at a late stage', but was nevertheless 'of some utility to the State and the community';
(d)'it would be appropriate … to apply a discount of 5%' for the plea of guilty pursuant to s 9AA of the Sentencing Act; and
(e)a sentence of 5 years 8 months' imprisonment should be imposed (ts 334 ‑ 335).
As to counts 4, 5, 6 and 7 in indictment 461 of 2015, the sentencing judge said:
(a)he proposed to impose significant terms of imprisonment with respect to counts 5 and 7 and to impose lesser concurrent terms of imprisonment with respect to counts 4 and 6;
(b)counts 5 and 7 involved significant quantities of methylamphetamine with a high degree of purity;
(c)counts 5 and 7 involved transactions at a high level in the scale of distribution;
(d)counts 5 and 7 represented 'a continuing course of conduct in the commercial distribution of [methylamphetamine]'; and
(e)after discounting each individual sentence by 5%, pursuant to s 9AA of the SentencingAct, the following sentences should be imposed:
(i)for count 4, 5 months' imprisonment;
(ii)for count 5, 2 years 10 months' imprisonment;
(iii)for count 6, 5 months' imprisonment; and
(iv)for count 7, 4 years 9 months' imprisonment (ts 335 ‑ 336).
As I have mentioned, his Honour imposed a total effective sentence of 10 years 5 months' imprisonment and made a parole eligibility order.
The discounts afforded to Mr Pham, Ms Mussarri and Mr Phan for their pleas of guilty
Mr Pham pleaded guilty to count 7 in indictment 461 of 2015. The plea was entered on 19 July 2016, about a week before the trial was due to begin (that is, about a week before 25 July 2016). Mr Pham's plea to count 7 was entered after the appellant had pleaded guilty to count 7. Mr Pham's head sentence was discounted by 10% pursuant to s 9AA of the Sentencing Act (ts 346).
Ms Mussarri pleaded guilty to count 7 in indictment 461 of 2015. The plea was entered on 4 July 2016. Ms Mussarri's plea to count 7 was entered after the appellant had pleaded guilty to count 7. Ms Mussarri's head sentence was discounted by 10% pursuant to s 9AA (ts 342).
Mr Phan pleaded guilty to counts 1, 5 and 7 in indictment 461 of 2015 on 23 June 2016. The pleas were entered after the appellant had pleaded guilty to counts 5 and 7. Mr Phan's head sentences were discounted by 5% pursuant to s 9AA (ts 349).
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges in essence that the sentencing judge erred in law by failing to give adequate reasons for his decision to reduce the head sentence for each offence by 5% pursuant to s 9AA of the Sentencing Act.
Ground 2 alleges in essence that his Honour erred in law in reducing the head sentence for each offence by 5%, pursuant to s 9AA, in that the reduction was manifestly inadequate.
Ground 3 alleges in essence that his Honour erred in law in reducing the head sentence for each offence by 5%, pursuant to s 9AA, in that the reduction infringed the parity principle.
On 26 May 2017, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The grounds of appeal: the appellant's submissions
At the hearing of the appeal, counsel for the appellant said that the three grounds of appeal sought to attack the sentencing judge's conclusion that a 5% discount, pursuant to s 9AA of the Sentencing Act, on account of each of the appellant's pleas of guilty, was appropriate (appeal ts 7). Counsel added that the appellant's 'real contention' was that there was nothing, in terms of s 9AA, to differentiate the appellant (who received a 5% discount) from two of his co-offenders (Mr Pham and Ms Mussarri) who received a 10% discount (appeal ts 7).
Counsel submitted that, in the particular circumstances of this case, the sentencing judge was under a duty to give adequate reasons for his decision to reduce the appellant's head sentences by 5% pursuant to s 9AA.
It was also submitted that his Honour failed to give adequate reasons and that the failure occasioned a miscarriage of justice in that it is not possible for the appellant (or this court) to determine why his Honour applied a 5% discount, in the case of the appellant, when his Honour applied a 10% discount, in the case of Mr Pham and Ms Mussarri, notwithstanding that Mr Pham and Ms Mussarri pleaded guilty later than the appellant.
At the hearing of the appeal, counsel for the appellant developed his submissions as follows:
(a)Counsel argued that there had been a miscarriage of justice because, in the particular circumstances of this case, his Honour was obliged (but failed) to explain why he had afforded the appellant a 5% discount while affording Mr Pham and Ms Mussarri a 10% discount. An explanation was required because the rationale for the difference was not apparent having regard to the objective facts of the offending and the offenders and to the matters mentioned in s 9AA(2) and s 9AA(3).
(b)Counsel also argued that when the appellant's case in the context of s 9AA is compared to Mr Pham's and Ms Mussarri's cases in the context of s 9AA it should be concluded that the 5% discount given to the appellant was unreasonable or plainly unjust. Counsel could not identify an express error because of his Honour's failure to give adequate reasons for differentiating between the appellant, on the one hand, and Mr Pham and Ms Mussarri, on the other.
(c)Counsel accepted that there were 'difficulties' in asserting that the parity principle applies to a discrete component of a sentence (appeal ts 9).
(d)Counsel said that his assertion of manifest inadequacy in relation to the 5% discount involved 'taking into account, as a relevant consideration in determining that outcome … the fact that there [was] nothing to differentiate between [the appellant] and [Mr Pham and Ms Mussarri]' (appeal ts 9).
(e)Counsel conceded in effect that his assertion of manifest inadequacy in relation to the 5% discount could not be made out without taking into account, as a relevant consideration, the absence of a proper basis for distinguishing between the appellant, on the one hand, and Mr Pham and Ms Mussarri, on the other (appeal ts 9 ‑ 10).
The grounds of appeal: the State's submissions
Counsel for the State submitted that:
(a)Although concise, the sentencing judge's reasons in relation to the application of s 9AA of the Sentencing Act were adequate and no further elucidation of his Honour's reasoning process was necessary.
(b)On the basis of this court's decision in Kirby v The State of Western Australia,[1] his Honour was not required to explain why he had afforded the appellant a 5% discount while affording Mr Pham and Ms Mussarri a 10% discount.
(c)The parity principle does not apply to a discrete component of a sentence.
(d)Alternatively, if the parity principle does apply to a distinct component, the appellant may properly be considered a 'co‑offender' with Mr Pham and Ms Mussarri only in connection with count 7 in indictment 461 of 2015, and any reduction by this court in the total effective sentence consequent upon the application of the parity principle would involve 'tinkering'.
[1] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
At the hearing of the appeal, counsel for the State conceded that the State '[could not] point to any reason why [his Honour had] differentiated between [the appellant, on the one hand, and] Ms Mussarri and [Mr Pham on the other]' in relation to the s 9AA discount (appeal ts 22). Counsel accepted that there was no explanation, in the context of count 7 in indictment 461 of 2015, as to why the appellant had received 5% and Mr Pham and Ms Mussarri had received 10% (appeal ts 23).
At the hearing of the appeal, counsel for the State referred to the fact that indictment 1261 of 2014 was filed on 3 December 2014 and indictment 461 of 2015 was filed on 26 November 2015. That is, indictment 461 of 2015 was filed almost one year after the filing of indictment 1261 of 2014. It was submitted that there was a substantially greater delay in the appellant pleading guilty to the count in indictment 1261 of 2014 than in his pleading guilty to counts 4, 5, 6 and 7 in indictment 461 of 2015. In those circumstances, it was argued that it was unnecessary for the sentencing judge to explain the lower discount of 5% afforded to the appellant in relation to the count in indictment 1261 of 2014 compared to the higher discount of 10% afforded to Ms Mussarri and Mr Pham in relation to count 7 in indictment 461 of 2015 (appeal ts 18 ‑ 19).
The grounds of appeal: their merits
Section 8(2) of the Sentencing Act was repealed and s 9AA of that Act was introduced by the Sentencing Amendment Act 2012 (WA).
Section 8(2) provided:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
Section 9AA provides:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.
The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).
Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for an offence because of any mitigating factor other than a plea of guilty: s 9AA(6).
The apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA is readily discernible from the text of the provisions. It was:
(a)to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;
(b)to ensure that (although the earlier in the proceedings the plea is made, the greater the reduction in the sentence may be) the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;
(c)to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and
(d)to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.
See Abraham v The State of Western Australia.[2]
[2] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [50] (Buss JA; McLure P agreeing).
Section 9AA(2) exhaustively states the factors or criteria (apart from the timing of the guilty plea) which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins v The State of Western Australia [No 2].[3]
[3] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [54] (McLure P).
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA. See Abraham [52].
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified. See Abraham [53].
The 'benefits to the State … resulting from a plea of guilty', for the purposes of s 9AA, are those benefits which the State directly or indirectly receives or derives as a consequence of the offender entering a guilty plea. The term 'the State' in s 9AA has a broad connotation. See Abraham [56].
The strength of the State's case is a relevant factor in considering the extent of any discount to be given under s 9AA for a guilty plea. See Abraham [57] ‑ [60].
A chronology of events relevant to the timing of the appellant's pleas of guilty is as follows:
18 December 2013
The appellant and Ms Kelly committed the offence of attempted possession of heroin with intent to sell or supply, the subject of indictment 1261 of 2014.
19 December 2013
The appellant was granted bail in the Magistrates Court.
7-23 October 2014
While on bail, the appellant committed the four offences the subject of indictment 461 of 2015.
23 October 2014
The appellant was arrested in connection with those offences and remanded in custody.
December 2014 - January 2015
The appellant's solicitor indicated to the State that the appellant would plead guilty to the offences other than count 2 in indictment 461 of 2015 on the condition that the State discontinue proceedings against Ms Mussarri and Ms Kelly. The State declined to adopt that course of action.
11 December 2015
The appellant's solicitor, in an email to the District Court, indicated that the 'matter may be the subject of some further negotiation, once I have taken some further instructions from [the appellant]' (ts 220).
29 February 2016
The appellant's solicitor, without having final instructions, enquired of the State as to whether it would be prepared to accept a plea to all charges except count 2 in indictment 461 of 2015. The State replied in the negative.
11 May 2016
The appellant's solicitors informed the District Court that he would plead guilty to all charges except count 2 in indictment 461 of 2015 and the count in indictment 1261 of 2014.
23 May 2016
The appellant pleaded guilty in accordance with the indication given on 11 May 2016.
27 May 2016
The appellant's solicitor indicated that the appellant would plead guilty to the charge in indictment 1261 of 2014 if the State were to discontinue the remaining count 2 in indictment 461 of 2015.
30 May 2016
The appellant's offer was accepted by the State.
9 June 2016
The appellant pleaded guilty to the charge in indictment 1261 of 2014.
The appellant did not explain, before either the sentencing judge or this court, why he did not during 2015 plead guilty or enter into serious negotiations with the State. It was not until early 2016 that enquiries of the State about plea offers were made.
At the sentencing hearing, the State asserted in its written submissions dated 2 September 2016:
Although the offenders have each pleaded guilty, their pleas were not entered at the first opportunity, nor at an early stage in the proceedings.
The pleas in the case of [the appellant] came many months after being charged with the offence[s] the subject of Indictment 1261 of 2014 and Indictment 461 of 2015. Further, a number of trial dates had been fixed before the pleas were eventually entered. Nonetheless, [the appellant's] pleas have facilitated the course of justice and are a mitigatory factor: s 6(2) of the Sentencing Act. [The appellant] should be afforded some discount for his pleas pursuant to s 9AA of the Sentencing Act [40] ‑ [41].
At the sentencing hearing, the prosecutor did not make any submissions to the effect that the discount to be afforded to the appellant pursuant to s 9AA of the Sentencing Act should be reduced on account of the strength of the State's case. The sole focus of the prosecutor's submissions on this issue was the fact that the pleas were not entered at an early stage.
At the sentencing hearing, defence counsel's submissions on the discount were confined to the timing of the pleas in relation to events on and after 11 December 2015.
The sentencing judge observed in his sentencing remarks:
In sentencing [the appellant] for this offence, I adopt a term of six years as a starting point. It is the case that you have comparatively little in the way of mitigation beyond your plea of guilty. The State notes that your pleas of guilty came at a late stage, but are nevertheless pleas of some utility to the State and the community.
The maximum discount that may be allowed for a plea of guilty at the earliest possible opportunity is 25 per cent. In my view, it would be appropriate in your case to apply a discount of five per cent (ts 334 ‑ 335).
Although part of those observations were expressed as a reference to the State's submissions, it is apparent from the context in which the observations were made that his Honour was in substance adopting the State's submissions on the point. That is, his Honour found in substance that the appellant's pleas of guilty were entered at a late stage, but were nevertheless of some utility to the State and the community.
I will now deal with ground 1.
As I have mentioned, the sentencing judge sentenced the appellant, Mr Pham, Ms Mussarri and Mr Phan. The appellant was convicted of the count in indictment 1261 of 2014 and, also, of counts 4, 5, 6 and 7 in indictment 461 of 2015. Mr Pham was convicted of count 7 in indictment 461 of 2015. Ms Mussarri was convicted of count 7 in indictment 461 of 2015. The appellant received a 5% discount under s 9AA in respect of each of the offences of which he was convicted. Each of Mr Pham and Ms Mussarri received a 10% discount under s 9AA in respect of the offence of which he or she was convicted.
It was not suggested by the prosecutor at the sentencing hearing that the benefits to the State or to any victim of or witness to the offence charged in count 7 in indictment 461 of 2015 were greater in the case of Mr Pham's and Ms Mussarri's pleas to count 7 than in the case of the appellant's plea to that count. Also, there was no basis in the material before his Honour for concluding that the benefits to the State or to any victim of or witness to the offence charged in count 7 were greater in the case of Mr Pham's and Ms Mussarri's pleas to count 7 than in the case of the appellant's plea to that count. For example, it was not suggested by the prosecutor at the sentencing hearing, and there was no basis in the material before his Honour for concluding, that the State's case against the appellant was stronger than the State's case against Mr Pham or Ms Mussarri in relation to count 7. Further, the appellant pleaded guilty to count 7 before Mr Pham and Ms Mussarri pleaded guilty or indicated that they would plead guilty to that count.
In the circumstances, the sentencing judge's decision to afford the appellant a discount of 5%, while affording Mr Pham and Ms Mussarri a discount of 10%, for the guilty pleas in relation to count 7 in indictment 461 of 2015 is incongruous. The disparity is indicative of error. In particular, the disparity indicates that his Honour must have made an error either in fixing the 5% discount for the appellant or in fixing the 10% discount for Mr Pham and Ms Mussarri; for example, by taking into account an irrelevant consideration (adverse to the appellant) in determining the appellant's discount or by taking into account an irrelevant consideration (favourable to Mr Pham and Ms Mussarri) in determining Mr Pham's and Ms Mussarri's discounts. The rationale for the disparity was not explained by his Honour in his sentencing remarks. Although the nature of his Honour's error is not discoverable, I am satisfied, upon a proper construction of s 9AA and the application of the provision, properly construed, to the relevant and uncontested facts and circumstances, that, in some way, his Honour failed properly to exercise the discretion under s 9AA, in the context of count 7, either in relation to the appellant or in relation to Mr Pham and Ms Mussarri.
Also, in the circumstances, there is a real risk that his Honour's error in exercising the discretion under s 9AA in relation to count 7 in indictment 461 of 2015 may have been replicated in his Honour's exercise of the discretion under s 9AA in relation to the sentencing of the appellant for the count in indictment 1261 of 2014 and for counts 4, 5 and 6 in indictment 461 of 2015. His Honour's failure, in the context of count 7, to explain the rationale for the disparity makes it impossible for this court to be satisfied that the error was not replicated.
Further, in the circumstances, the sentencing judge's decision to afford the appellant a discount of 5% for the guilty pleas in relation to counts 4, 5, 6 and 7 in indictment 461 of 2015, while also affording the appellant a discount of 5% for the guilty plea in relation to the count in indictment 1261 of 2014, even though the guilty pleas to the offences the subject of indictment 461 of 2015 were entered substantially earlier than the guilty plea to the offence the subject of indictment 1261 of 2014, is incongruous. The disparity is indicative of error. My process of reasoning at [62] ‑ [63] above in relation to the disparity and incongruity of the discounts as between the appellant, on the one hand, and Mr Pham and Ms Mussarri, on the other, in the context of count 7 in indictment 461 of 2015, applies.
It is unnecessary to attempt to explain precisely why his Honour afforded the particular discounts that he did. In any event, it would involve mere conjecture.
For the reasons I have given at [61] ‑ [66] above, a miscarriage of justice occurred in the sentencing of the appellant.
Ground 1, as developed at the hearing of the appeal, has been made out. This court's jurisdiction to intervene has been enlivened. However, I am of the opinion that different individual sentences should not have been imposed on the appellant and a different total effective sentence should not have been imposed on him. See s 31(3) read with s 31(4)(a) of the Criminal Appeals Act 2004 (WA). I will, before explaining my reasons for that conclusion, make some observations about the decision of this court in Kirby.
In Kirby, the offender appealed against terms of immediate imprisonment imposed on her for offences under the Road Traffic Act 1974 (WA). She entered pleas of guilty. The primary judge allowed a discount of 20% on the individual sentences of imprisonment pursuant to s 9AA of the Sentencing Act. The offender alleged on appeal, relevantly, that the primary judge erred in failing to afford her the maximum available discount of 25%. Counsel for the offender made three submissions. First, the primary judge misapprehended that the maximum available discount was 20% rather than 25%. Secondly, if her Honour did not misapprehend the maximum available discount, it was not open to her to afford a discount of less than 25%. Thirdly, on the assumption that her Honour exercised her discretion not to impose the maximum available discount of 25%, she failed to give adequate reasons for exercising the discretion in the manner she did.
Newnes, Mazza and Mitchell JJA rejected the first and second submissions. As to the third submission, their Honours said:
The submission assumes that a sentencing judge is obliged to state his or her reasons in the event that the maximum discount under s 9AA is not given. The basis for this assumption is unexplained and we are unable to accept it.
Section 9AA of the Sentencing Act itself is not the source of any such obligation. Section 9AA(5) only requires a sentencer to state that a reduction has been given and the extent of any reduction. There is no additional requirement to state the reasons for these decisions. There has been no case decided by this court which supports the appellant's contention. Further, there is no common law obligation which requires a sentencer to specifically give reasons for the weight that is accorded to any particular mitigating or aggravating factor.
Frequently, in this court's experience, a sentencer will explain why a discount of less than 25% has been given when an offender has pleaded guilty at the first reasonable opportunity. This is a desirable practice, but the failure to do so does not, in itself, constitute an appellable error.
In any event, in the present case, while her Honour did not express reasons for not giving a 25% discount, her reasons for doing so may be legitimately inferred from an examination of the sentencing remarks as a whole [29] ‑ [32].
The decision of this court in Kirby is not authority for the proposition that a sentencing judge is never obliged to give reasons why he or she has given an offender a discount, pursuant to s 9AA of the Sentencing Act, of less than 25% or why he or she has given an offender a particular discount under that provision. Similarly, Kirby is not authority for the proposition that a sentencing judge's failure to give reasons why a discount of less than 25% or why a particular discount has been given will never occasion a miscarriage of justice.
The objective facts and circumstances of a particular case (of which the present case is an example) may require this court to conclude that a miscarriage of justice has occurred in the sentencing of an offender if the sentencing judge affords the offender a particular discount under s 9AA which is, having regard to the objective facts and circumstances, apparently incongruous or indicative of error and the apparent incongruity or indicated error is not appropriately dispelled by the judge's sentencing remarks or reasons.
I turn now to ground 3.
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen;[4] Postiglione v The Queen;[5] R v Taudevin.[6] The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia.[7]
[4] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J).
[5] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).
[6] R v Taudevin [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).
[7] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2].[8]
[8] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).
In Green v The Queen,[9] French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
[9] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
The marked disparity to which the parity principle relates is the difference between the sentence imposed on a co‑offender, on the one hand, and the sentence imposed on another co‑offender or other co‑offenders, on the other. The parity principle applies to the ultimate sentencing outcome. It is concerned with due proportion between the sentences in question, that being a matter to be analysed by reference to the different circumstances of the co‑offenders and their different degrees of culpability. Individual sentencing factors are synthesised to produce a sentence. The parity principle does not apply to an individual sentencing factor or a discrete component of a sentence. It therefore does not apply to the discounts afforded to co‑offenders under s 9AA of the Sentencing Act where the co‑offenders have pleaded guilty. However, the manner in which a sentencing judge has treated an individual sentencing factor or a discrete component of a sentence as between co‑offenders (including any discounts afforded to co‑offenders under s 9AA) may, in a particular case, suggest or reveal error and consequently explain why, in the particular case, the ultimate sentencing outcome infringed the parity principle.
Ground 3 fails.
I turn now to ground 2.
The extent of any reduction made by a sentencing judge under s 9AA is amenable to appellate review by this court on the ground of manifest excess or manifest inadequacy. See Kobeissi v The State of Western Australia;[10] Phan v The State of Western Australia.[11]
[10] Kobeissi v The State of Western Australia [2016] WASCA 188.
[11] Phan v The State of Western Australia [2016] WASCA 201.
The well established principles relating to the inferring of error in the exercise of a discretionary power apply to a ground of appeal which alleges that a particular discount afforded under s 9AA is manifestly excessive or manifestly inadequate. That is, the appellate court infers error where the result or conclusion of the primary court is unreasonable or plainly unjust. See House v The King;[12] Rossi v The State of Western Australia.[13]
[12] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
[13] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [80] (McLure P; Mazza JA & Hall J agreeing).
Ground 2, as developed at the hearing of the appeal, alleges that the 5% discount for each offence, pursuant to s 9AA, was manifestly inadequate 'taking into account, as a relevant consideration in determining that outcome … the fact that there [was] nothing to differentiate between [the appellant] and [Mr Pham and Ms Mussarri]' (appeal ts 9).
In my opinion, ground 2, as developed at the hearing of the appeal, is premised upon or assumes that the parity principle applies to an individual sentencing factor or a discrete component of a sentence (relevantly, in the present case, the discount to be afforded under s 9AA) and not merely to the ultimate sentencing outcome. As I have explained in considering ground 3, that premise or assumption is erroneous.
Ground 2 fails.
The outcome of the appeal
At the material time, the maximum penalty for:
(a)the offence of selling or supplying methylamphetamine to another, contrary to s 6(1)(c) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both (s 34(1) of the MD Act); and
(b)the offence of attempting to possess heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both (s 33(1) read with s 34(1) of the MD Act).
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
I have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to the appellant's offending on the count in indictment 1261 of 2014 and counts 5 and 7 in indictment 461 of 2015. See The State of Western Australia v Higgins;[14] The State of Western Australia v Atherton;[15] Pham v The State of Western Australia;[16] Tanner v The State of Western Australia;[17] Nembousse v The State of Western Australia;[18] Lear v The State of Western Australia;[19] The State of Western Australia v Wilson;[20] Hoang v The State of Western Australia;[21] Sathitpittayayudh v The State of Western Australia;[22] Nguyen v The State of Western Australia;[23] and the cases reviewed in those decisions.
[14] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.
[15] The State of Western Australia v Atherton [2009] WASCA 148.
[16] Pham v The State of Western Australia [2011] WASCA 244.
[17] Tanner v The State of Western Australia [2013] WASCA 142.
[18] Nembousse v The State of Western Australia [2015] WASCA 68.
[19] Lear v The State of Western Australia [2015] WASCA 90.
[20] The State of Western Australia v Wilson [2015] WASCA 119.
[21] Hoang v The State of Western Australia [2015] WASCA 130.
[22] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152.
[23] Nguyen v The State of Western Australia [2017] WASCA 35.
I have also considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to the appellant's offending on counts 4 and 6 in indictment 461 of 2015. See Crichton v The State of Western Australia [No 2];[24] The State of Western Australia v Baldini;[25] Maric v The State of Western Australia;[26] Fenton v The State of Western Australia;[27] Truscott v The State of Western Australia;[28] Dias v The State of Western Australia;[29] and the cases reviewed in those decisions.
[24] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.
[25] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.
[26] Maric v The State of Western Australia [2015] WASCA 190.
[27]Fenton v The State of Western Australia [2015] WASCA 255.
[28] Truscott v The State of Western Australia [2016] WASCA 58.
[29] Dias v The State of Western Australia [2017] WASCA 49.
I have also considered other cases cited by the appellant.
It is unnecessary to reproduce the facts and circumstances of the prior cases I have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
I have already recounted the facts and circumstances of the appellant's offending and his personal circumstances and antecedents.
The appellant's overall offending was, no doubt, very serious having regard, in particular, to the repetitive and persistent nature of the overall offending; the quantity and purity of the prohibited drugs the subject of the count in indictment 1261 of 2014 and counts 5 and 7 in indictment 461 of 2015; and the offending the subject of indictment 461 of 2015 having occurred while the appellant was on bail for the offence charged in indictment 1261 of 2014.
The appellant was not youthful or inexperienced for sentencing purposes.
The appellant did not have the mitigation of being otherwise of good character. As I have mentioned, he had previous convictions for drug dealing. Although the prior offending and imprisonment did not aggravate the current offending, it underscored the importance of personal deterrence as a sentencing factor.
I acknowledge that the appellant was aged 64 or 65 at the time of the offending and was 67 when sentenced and that he suffers from a number of medical conditions. However, the appellant has access within the prison system to medical care and attention, as necessary.
In my opinion, an appropriate discount, pursuant to s 9AA of the Sentencing Act, for the appellant's plea of guilty is:
(a)5% in respect of the offence the subject of indictment 1261 of 2014; and
(b)10% in respect of each of the offences the subject of indictment 461 of 2015.
In my opinion, after taking into account:
(a)the maximum penalty for each offence;
(b)the serious nature of each offence
(c)the objective facts and circumstances of each offence;
(d)the standards of sentencing customarily observed;
(e)the appellant's personal circumstances and antecedents;
(f)the discount I would afford under s 9AA;
(g)all other mitigating factors referred to by the sentencing judge; and
(h)all other relevant sentencing considerations,
the appropriate sentence for each of the counts of which the appellant was convicted was the sentence imposed by his Honour.
I am satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, to order that the sentence for count 7 in indictment 461 of 2015 be served cumulatively upon the sentence for the count in indictment 1261 of 2014. Further, it was appropriate for the other sentences to be ordered to be served concurrently with each other and concurrently with the accumulated sentences. The total effective sentence of 10 years 5 months' imprisonment, the backdating of the total effective sentence to 23 October 2014 and the making a parole eligibility order were also appropriate.
Conclusion
I would grant leave to appeal on grounds 1, 2 and 3. However, the appeal must be dismissed.
MAZZA & BEECH JJA:
The background, the facts and circumstances of the offending, the sentencing remarks and the grounds of appeal are set out by Buss P. This appeal concerns the 5% discount applied to the appellant's sentences for his pleas of guilty. All of the grounds are founded on the apparent incongruity between the appellant's 5% discount and the 10% afforded to two of his co‑offenders. While Buss P would give effect to that incongruity in upholding ground 1, we would dismiss ground 1 and uphold ground 2. Like Buss P, we would dismiss the appeal because, in our opinion, no different sentence should be imposed.[30] Our reasons are as follows.
[30] Criminal Appeals Act2004 (WA), s 31(3), s 31(4).
Unlike other mitigating factors, the discount for an offender's plea of guilty must be quantified by the sentencing judge.[31] Consequently, it is open to an offender to challenge the exercise of the discretion under s 9AA in fixing the discount.[32] The usual principles apply to a challenge on appeal to a discretionary decision.[33]
[31] Sentencing Act 1995 (WA), s 9AA(5).
[32] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [80].
[33] House v The King [1936] HCA 40; (1936) 55 CLR 499; Rossi [80].
As the recent decision of this court in Kirby v The State of Western Australia[34] shows, while a judge may choose to say something to explain the discount that is applied, generally at least there is no obligation to do so, and the failure to do so would not be an error of law or occasion a miscarriage of justice.
[34] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
In this case, two circumstances might be thought to have given rise to a need for the sentencing judge to explain the 5% discount that he applied to each of the offences on indictment 461 of 2015 (the second indictment offences).
First, as Buss P has explained, on count 7 of the second indictment, two co‑offenders, namely Mr Pham and Ms Mussarri, entered pleas of guilty to count 7 subsequent to the appellant's plea of guilty on that count, yet the co‑offenders received discounts of 10% as compared to the appellant's discount of 5%.
Secondly, the appellant received the same discount of 5% for his plea of guilty on the count on indictment 1261 of 2014 (the first indictment offence) as he received for his pleas of guilty to the second indictment offences. The appellant's plea of guilty on the former was entered at a considerably later stage in those proceedings than the pleas in relation to the second indictment offences. By the time negotiations with the State commenced in early 2016, more than a year had passed since the appellant was charged with the first indictment offence. The appellant did not explain, before either the sentencing judge or this court, why he did not, during 2015, plead guilty or enter into serious negotiations with the State. The significantly greater delay in the plea of guilty in relation to the first indictment offence gives rise to an apparent incongruity in the decision to allow the same 5% discount on all offences.
These circumstances might be said to mean that if the judge proposed to give a 5% discount in relation to the second indictment offences, his Honour was, in a sense, obliged to explain why. However, in our respectful view, this does not mean that the failure to do so was an error of law. In other words, the circumstances did not give rise to a legal obligation to give reasons for the 5% discount. Rather, the absence of an explanation is relevant to consideration of whether error can be inferred.
In our opinion, the circumstances we have outlined support an inference that, one way or another, the discretionary decision as to the discount for the plea of guilty on the second indictment offences was infected by error. That inference is reinforced by the absence of explanation for the apparent incongruities to which we have referred. One inference, perhaps the most likely, is that, having, quite justifiably, decided that the lateness of the plea to the first indictment offence meant that 5% was the appropriate discount, his Honour then carried forward that same discount to the pleas of guilty in respect of the second indictment offences. Such an approach would be an error because s 9AA must be applied to each individual count on the indictment and because the circumstances and timing of the plea on the second indictment offences were, as we have explained, materially different. In any case, it is not necessary that the nature of the error be discoverable; it is enough that it can be inferred that the discretion is infected by error. For the reasons given, we think that inference must be drawn.
Consequently, we would uphold ground 2 of the appeal.
We agree with Buss P that ground 3 fails for the reasons he gives.
Resentencing and orders
For the reasons given by Buss P,[35] in exercising the sentencing discretion afresh we would not impose any lesser sentence for any count on the indictment and would not impose a lesser total effective sentence.
[35] [86] ‑ [100].
We would make orders to the effect set out in Buss P's reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO BUSS P6 APRIL 2018
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