Pelemis v The State of Western Australia

[2009] WASCA 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PELEMIS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 151

CORAM:   McLURE JA

BUSS JA
MILLER JA

HEARD:   5 AUGUST 2009

DELIVERED          :   25 AUGUST 2009

FILE NO/S:   CACR 29 of 2009

BETWEEN:   RADIVOLE PELEMIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND 1255 of 2008

Catchwords:

Criminal law - Appeal against sentence - Information in pre-sentence report contested - Reliance on report without the author being called to give evidence - Whether matter could be remitted for re-sentencing

Legislation:

Criminal Appeals Act 2004 (WA), s 31
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 15, s 20, s 21, s 22

Result:

Extension of time granted
Leave to appeal on amended ground granted
Appeal allowed
Sentence set aside
Matter remitted to District Court for re-sentencing

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J Mactaggart

Solicitors:

Appellant:     Justine Fisher

Respondent:     Director of Public Prosecutions (WA)

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

'HAS' v The State of Western Australia [2005] WASCA 29

Holden v The State of Western Australia [2009] WASCA 50

Royer v The State of Western Australia [2009] WASCA 139

Teakle v The State of Western Australia (2007) 33 WAR 188

The State of Western Australia v Wickham [2009] WASCA 137

1. McLURE JA:  This is an application for an extension of time, an application for leave to appeal and an appeal against sentence. 

2. The appellant was convicted on his own fast‑track plea of guilty of one count of being in possession of MDMA with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant was in possession of 593 MDMA tablets weighing 149.18 g.

3. On 11 February 2009, the appellant was sentenced by Yeats DCJ to a term of immediate imprisonment of 3 years and 6 months.  The time for filing a notice of appeal expired on 4 March 2009.  The appeal notice is dated 2 April 2009.  There is no evidence in support of the application for an extension of time.

4. The only proposed ground of appeal reflects a lack of understanding of the relevant sentencing principles. It is said the sentencing judge erred 'when she did permit defence counsel to cross‑examine the author of a pre-sentence report such that, in all the circumstances, the sentence imposed was manifestly excessive'. This ground conflates two separate and distinct types of error, one express and the other implied. It became apparent in the course of oral submissions that the appellant's claim of manifest excess was contingent upon the court accepting that the express error was made out. However, if an express material error in the sentencing process is established, this court can without more intervene. An error is 'material' if it satisfies the requirement in s 31(4)(a) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) which is discussed below.

5. The relevant facts are that on 13 March 2008 the appellant was found by police to be in possession of 593 MDMA tablets, $1,450 in cash and a large quantity of plastic clipseal bags.  Thirty five tablets were scattered around the appellant's vehicle, two were located in his trousers and 539 were in a clipseal bag in his boxer shorts.  The trial judge found the appellant to be a mid‑level commercial dealer who used some of the profit from the sale of the drugs to support his own drug habit.

6. The appellant was aged 20 at the time of the offence and had no relevant prior record.  A refugee from Yugoslavia, he attended high school in Perth, studied at TAFE and thereafter was employed in the building industry, becoming a building contract administrator/estimator.  The appellant was variously described by his referees as astute, hardworking, honest and trustworthy.

7. In the course of the plea in mitigation, the appellant's counsel disputed the accuracy of a number of reported statements attributed to him in the pre‑sentence report (PSR).  In particular, the appellant disputed that he sold drugs for monetary gain and to contribute towards a financially comfortable social lifestyle and that after payment of all his financial commitments he had approximately $200 per week remaining for his personal use.  The defence called the appellant and his mother to give evidence.  The appellant's evidence was to the effect that he was paying an $8,000 debt to his drug supplier by dropping off to someone else the 539 tablets in the clipseal bag, which drugs belonged to his supplier; the cash in his possession was money he had saved from his salary to pay the debt and purchase drugs; his drug habit stretched the limits of his financial capabilities and he did not have $200 per week net for personal use; and he was not dealing in drugs for monetary gain but to finance his drug habit.

8. After the defence had called its evidence, the State informed the court it was not calling any evidence.  The sentencing judge then sought guidance from counsel for the State as to whether she could rely on the disputed contents of the PSR as a prior inconsistent statement without the author of the PSR being called to give evidence (ts 47, 50).  Counsel for the State said she could do so.

9. The sentencing judge acted on that submission.  She said in her sentencing remarks:

   I believe it would be inappropriate and unnecessary to require sworn evidence in cross‑examination of a professional person who prepared the pre‑sentence report.  Because she is a professional person and because much of the ‑ many of the portions of her report that are in contention are in quote marks, there is little she could say [other than] that that is what he told her.

   For this reason I rely on the pre‑sentence report as a prior inconsistent statement made by [the appellant].  I rely on it and use it to test his credit when I consider whether I believe his evidence on oath (ts 6).

10. It is clear from the sentencing judge's reasons that she had regard to and relied on the disputed contents of the PSR in rejecting the evidence of the appellant.  She concluded:

    I do not accept [the appellant's] sworn evidence about his drug use and his deliveries of drugs to others.  I'm satisfied beyond reasonable doubt that he was selling the MDMA for profit.  Because of the large amount of MDMA I was satisfied he was a mid‑level commercial dealer who used some of his profit to support his own habit (ts 7).

11. The express error relied on by the appellant is the sentencing judge's failure to permit defence counsel to cross‑examine the author of the PSR.  That implies defence counsel had unsuccessfully applied to cross‑examine the author of the PSR.  She had not.  When the false premise was drawn to the attention of counsel for the appellant, he applied to amend the ground to allege the trial judge erred in taking into account the disputed statements in the PSR.  Counsel's submissions in support of the proposed amended ground did not travel beyond assertions unsupported by principle or authority.  It was left to the court to fill the yawning gaps.

Relevant legal principles

1. Section 15 of the Sentencing Act 1995 (WA) (Sentencing Act) provides:

   Court may inform itself as it thinks fit

   To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

2. The legislative history of s 15 and the various manifestations of its predecessor, s 656 of the Criminal Code (WA), are discussed by Pullin JA in Teakle v The State of Western Australia (2007) 33 WAR 188 [35] ‑ [45]. What the discussion reveals is that the repealed s 656 of the Code, which was in substantially similar terms to s 15 of the Sentencing Act, was intended to reflect the then current sentencing practice of the courts. The practice was that where there was a conflict of evidence for sentencing purposes, the court was required to resolve the conflict according to the strict rules of evidence, particularly if the conflict was to be resolved against the offender. That remains the position under s 15 of the Sentencing Act: 'HAS' v The State of Western Australia [2005] WASCA 29 [49] ‑ [55]. The court in HAS said:

   If a report is made available to a court for sentencing purposes, the court may rely upon it unless it is challenged … If it is challenged and the point would make a difference to the sentence, the issue should be resolved in the usual way, by the calling of evidence and determination by the Judge [50].

3. A pre‑sentence report is a creature of statute. If a court considers it would be assisted in sentencing an offender by a pre‑sentence report, it may order one (s 20(1) of the Sentencing Act). Unless the court otherwise orders, a pre‑sentence report is to set out matters about the offender that are, by reason of the Sentencing Act or sentencing practice, relevant to sentencing the offender (s 21(2)). A pre‑sentence report must be made by an appropriately qualified person (s 22(1)(a)). A written pre‑­sentence report must not be given to anyone other than the court and the CEO of the relevant agency but the court may make it available to the prosecutor and to the offender on such conditions as it thinks fit (s 22(4) and s 22(5)). There is nothing in the Sentencing Act which excludes a pre‑sentence report from the rule that requires prejudicial contested material to be proved in accordance with the rules of evidence: Holden v The State of Western Australia [2009] WASCA 50.

Analysis

1. The sentencing judge erred in concluding that it is inappropriate to require sworn evidence from an author of a pre‑sentence report. Further, in taking into account the disputed statements in the PSR, the sentencing judge also erred in relying on inadmissible hearsay evidence. It was necessary for the author of the pre‑sentence report to be called to give evidence of what she was told by the appellant. To the extent the disputed statements were admissions against interest, they would be admissible as evidence of their truth. To the extent they went only to credit as a prior inconsistent statement, the requirements of s 21 of the Evidence Act 1906 (WA) (Evidence Act) had to be satisfied. There is no suggestion that s 79C of the Evidence Act was an available or appropriate option.

2. The sentencing judge used the disputed statements in the PSR as a basis for rejecting the appellant's oral evidence.  However, the rejection of that evidence did not itself permit positive findings of fact to the contrary.  The sentencing judge must have relied on the truth of at least part of the disputed statements in the PSR to support her positive finding that the appellant was selling the drugs for profit, part of which he used to fund his own habit.  If the sentencing judge wanted to take into account the disputed statements in the PSR for either purpose, then in the absence of the consent of the appellant it was necessary for the author of the PSR to be called to give evidence and be available for cross‑examination.  Failing that, the only alternative was for the sentencing judge to make it clear that no reliance would be or was being placed on the disputed parts of the PSR:  HAS [51].

3. For these reasons I have concluded that the sentencing judge made an express error in sentencing the appellant. If the conflict between the disputed statements in the PSR and the appellant's evidence had been resolved in the appellant's favour, his culpability and thus his sentence would have been less. This court is clearly not in a position to re‑sentence as it does not have the necessary materials to do so. That raises the question whether this court can allow the appeal under s 31 of the Criminal Appeals Act. That section materially provides:

   Appeal against sentence etc, decision on

   (1)This section applies in the case of an appeal commenced by an offender … against ‑ 

   (a)the sentence imposed or any order made as a result of  ‑ 

   (i)a conviction on indictment;

   … 

   (3)Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

   (4)The Court of Appeal may allow the appeal if, in its opinion ‑ 

   (a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed.

4. There is no difficulty in the application of s 31(4)(a) in the usual case where this court has all the necessary material to itself determine the appropriate sentence. As Owen JA observed in Royer v The State of Western Australia [2009] WASCA 139 [114], as a matter of grammar the phrase 'a different sentence should have been imposed' suggests the appellate court has decided that the sentencing judge ought to have imposed a different sentence from the one that he or she originally pronounced. On the facts in this case the court is unable to make such a determination. The best that can be said is that if the conflict had been resolved in the appellant's favour, a different sentence should have been imposed. Further, if this court heard all the evidence on the matters in dispute and sentenced the appellant he would effectively be deprived of an appeal against that sentence. The most appropriate course to correct the miscarriage of justice in this case is to set aside the sentence and remit the matter to the District Court for re‑sentencing. Section 31(4)(a) has been construed to empower this court to allow an appeal if, in its opinion, on the facts most favourable to an appellant on a rehearing, a different sentence should have been imposed: The State of Western Australia v Wickham [2009] WASCA 137 [33] ‑ [34].

5. For these reasons, I would extend the time to appeal, grant leave to appeal on the amended ground, allow the appeal, set aside the sentence

and remit the matter to a different judge of the District Court for sentencing.

1. BUSS JA:  I agree with McLure JA.

2. MILLER JA:  I agree with McLure JA.