Riley v Smirk
[2011] WASCA 200
•26 SEPTEMBER 2011
RILEY -v- SMIRK [2011] WASCA 200
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 200 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:10/2011 | 10 AUGUST 2011 | |
| Coram: | MARTIN CJ NEWNES JA HALL J | 26/09/11 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal for ground 1 refused Ground 2 dismissed | ||
| B | |||
| PDF Version |
| Parties: | COLIN BRADLEY RILEY MICHAEL STANLEY SMIRK BERNADETTE NICHOLE McCONNACHIE |
Catchwords: | Criminal appeal Sentencing Whether trial judge gave adequate consideration to option of suspended sentence Whether totality principle correctly applied Turns on own facts |
Legislation: | Criminal Code (WA), s 428 Criminal Procedure Act 2004 (WA), s 98 Firearms Act 1973 (WA), s 19 Misuse of Drugs Act 1981 (WA), s 6 Sentencing Act 1995 (WA), s 87 Weapons Act 1999 (WA), s 7, s 8 |
Case References: | Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Moody v French [2008] WASCA 67; (2008) 36 WAR 393 Nevermann v The Queen (1989) 43 A Crim R 347 Riley v Smirk [2011] WASC 21 Riley v The State of Western Australia [2009] WASC 366 Samuels v The State of Western Australia [2004] WASCA 154 Scook v The Queen [2008] WASCA 114 The State of Western Australia v Johnson [2010] WASCA 187 The State of Western Australia v Riley [2010] WADC 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RILEY -v- SMIRK [2011] WASCA 200 CORAM : MARTIN CJ
- NEWNES JA
HALL J
- Appellant
AND
MICHAEL STANLEY SMIRK
BERNADETTE NICHOLE McCONNACHIE
Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
Citation : RILEY -v- SMIRK [2011] WASC 21
File No : SJA 1084 of 2010
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Catchwords:
Criminal appeal - Sentencing - Whether trial judge gave adequate consideration to option of suspended sentence - Whether totality principle correctly applied - Turns on own facts
Legislation:
Criminal Code (WA), s 428
Criminal Procedure Act 2004 (WA), s 98
Firearms Act 1973 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 6
Sentencing Act 1995 (WA), s 87
Weapons Act 1999 (WA), s 7, s 8
Result:
Leave to appeal for ground 1 refused
Ground 2 dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P S Ash
Respondents : Ms L Petrusa
Solicitors:
Appellant : Peter Ash & Associates
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Nevermann v The Queen (1989) 43 A Crim R 347
Riley v Smirk [2011] WASC 21
Riley v The State of Western Australia [2009] WASC 366
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Samuels v The State of Western Australia [2004] WASCA 154
Scook v The Queen [2008] WASCA 114
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Riley [2010] WADC 52
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- MARTIN CJ:
Introduction
1 Colin Bradley Riley appeals from the decision of Simmonds J (Riley v Smirk [2011] WASC 21) (Riley v Smirk) dismissing his appeal from sentences imposed in the Magistrates Court. The sentences, and the circumstances in which they were imposed, are:
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2 The aggregate effect of the sentences imposed was a term of imprisonment of 18 months, together with a fine of $1,000 and forfeiture of the ammunition and cash the subject of the charges. Mr Riley was made eligible for parole.
The circumstances of the offences
3 The sentences under appeal were imposed in respect of offences committed in the following circumstances. On 22 April 2008, the authorities intercepted a telephone conversation in which the appellant offered to sell or supply 1 g of methylamphetamine for an amount of $400. On 25 April 2008, in another telephone conversation intercepted by authorities, Mr Riley offered to sell or supply 1.75 g of methylamphetamine for an amount of $900. Charges of having sold a prohibited drug were brought against Mr Riley in respect of these matters, although in each case the charges were later amended to charges of offering to sell or supply.
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4 On 6 May 2008, police stopped and searched a vehicle being driven by Mr Riley. They found Mr Riley in possession of cash totalling $15,702.70, a silver pocket knife, a hunting style knife, a baton, three rounds of 0.22 ammunition and a small clipseal bag containing 0.2 g of methylamphetamine.
5 Mr Riley was arrested and charged with these offences in May 2008. He was granted bail. On 3 March 2009, police executed a search warrant at a house where he was living with others. As a result of items found during the search, Mr Riley was charged with a number of offences including charges of possessing a prohibited drug with intent to sell or supply, and unlawful possession of firearms and unlicensed ammunition. He was later convicted of only one of those charges, being the charge of possessing a .357 calibre Magnum revolver handgun contrary to the Firearms Act.
The circumstances of the guilty pleas
6 Mr Riley was arrested and charged with the offences to which I have referred following the search conducted on 3 March 2009. He was denied bail in respect of the new charges laid following the search, and the bail which he had been granted in respect of the charges laid in 2008 was revoked. He applied unsuccessfully to the Supreme Court for the grant of bail (see Riley v The State of Western Australia [2009] WASC 366).
7 On 20 April 2010, following a hearing conducted pursuant to s 98 of the Criminal Procedure Act 2004 (WA) in connection with the charges of possessing prohibited drugs with intent to sell or supply that had been laid in 2009, Davis DCJ ruled that a video record of interview conducted with Mr Riley by police was inadmissible because admissions made by Mr Riley in the course of that interview were not made in the exercise of a free choice to speak or remain silent (The State of Western Australia v Riley [2010] WADC 52).
8 On the day following that ruling, Mr Riley was granted bail by the Supreme Court after the State indicated that it did not oppose bail on the grounds that there was a significant possibility that the charges brought against Mr Riley in 2009 would be discontinued as a result of the ruling of Davis DCJ.
9 In fact, all but one of the charges brought against the appellant arising from the search of the house in which he was living in March 2009 were discontinued (the remaining charge being the charge relating to possession of a handgun to which I have referred). That charge and the
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- charges laid in 2008 were listed for trial commencing in the Magistrates Court on 21 June 2010. However, prior to trial, a number of other charges that had been laid in 2008 were discontinued and some of the other charges were amended.
10 On 22 June 2010, Mr Riley appeared before the magistrate and pleaded guilty to the offences which I have set out above. It seems that he had indicated an intention to plead guilty to some, but not all, of the charges some time previously (being the charges of offering to sell or supply methylamphetamine and the charge of possessing a firearm). Following entry of the pleas, the magistrate ordered a pre-sentence report and adjourned all matters for sentence on 22 July 2010. After that hearing, the magistrate reserved her decision until 9 August 2010 when the sentences were imposed. Mr Riley had been on bail until the sentences were imposed. Following the lodgement of his appeal to a single judge of this court, Mr Riley was granted bail on 23 August 2010. Mr Riley was again granted bail on the day Simmonds J delivered the decision dismissing his appeal and remained on bail until the hearing of his appeal from that decision. Bail was, however, refused following the completion of the hearing of this appeal. In summary therefore, Mr Riley was in custody between 3 March 2009 and 21 April 2010, and again between 9 August and 23 August 2010 but has otherwise been on bail up until the time at which his appeal was heard by this court.
The maximum penalties
11 The maximum penalty for each of the offences of offering to sell or supply methylamphetamine was 25 years imprisonment (MDA s 34), although a term of more than 4 years imprisonment could not have been imposed without exceeding the jurisdiction of the magistrate. The offences of possession of the revolver and of ammunition each carried a maximum penalty of 5 years imprisonment (Firearms Act s 19), although the jurisdiction of the magistrate did not extend beyond the imposition of a term of 3 years imprisonment. The maximum penalty for all the other offences of which Mr Riley was convicted was 2 years imprisonment (Weapons Act s 7, s 8).
The sentencing hearing before the magistrate
12 Before or during the sentencing hearing, a number of documents were produced to the magistrate without objection. They included the pre-sentence report which the magistrate had ordered, some medical reports and documents relating to art works which had been produced by Mr Riley. Counsel appearing on behalf of Mr Riley drew attention to the
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- medical conditions revealed by the medical reports including obesity, hepatitis C, sleep apnoea and degenerative conditions of the spine and liver. It was submitted that Mr Riley had taken steps to improve his health by obtaining and acting upon advice from a dietician and by ceasing smoking. It was further submitted that Mr Riley had endeavoured to foster his rehabilitation by producing art work.
13 It was also submitted that a significant discount should be accorded to Mr Riley because of his plea of guilty. Attention was also drawn to the delay in finalisation of the charges that had been brought in 2008 and to the period Mr Riley had spent in custody between March 2009 and April 2010. In all the circumstances, it was submitted that a suspended sentence of imprisonment was appropriate.
14 The prosecution conceded that the time spent in custody by Mr Riley should be taken into account when passing sentence, although not necessarily in a strictly arithmetical way. The prosecutor denied that there was any unreasonable delay in the prosecution of the matters brought in 2008, and drew attention to the fact that Mr Riley had changed legal representatives a number of times. Attention was also drawn to Mr Riley's prior record which included periods of imprisonment for possession of amphetamine with intent to sell or supply in 1997 and again in 2002, the latter conviction resulting in Mr Riley being declared a drug trafficker. The prosecutor submitted that in all the circumstances, only a term of imprisonment would adequately reflect the seriousness of the offences of which Mr Riley had been convicted. It is clear from the magistrate's response to that submission in the course of argument, that she took the prosecutor to be submitting that only a term of imprisonment to be served immediately would adequately reflect the seriousness of the offending conduct. The prosecutor did not demur from that characterisation of his submission.
15 In the course of debate with counsel, the magistrate expressed reservations in relation to the submission which had been made concerning Mr Riley's rehabilitation, given that the 2008 offences were committed a little over a year after he had been released from custody in respect of other offences, and the 2009 offence occurred while he was on bail for the 2008 offences. The magistrate also expressed reservations about the extent to which Mr Riley's attempts to improve his health could be regarded as rehabilitation from his offending behaviour.
16 At the conclusion of the hearing on sentence, the magistrate indicated her intention to reserve her decision and deliver sentence the
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- following day. However, due to the unavailability of counsel, the matter was adjourned until 9 August 2010.
Observations at the time of sentence
17 The magistrate commenced her observations on sentence by referring to the materials she had received and Mr Riley's prior history, including his record of dealing in illegal drugs over a lengthy period. She referred to the circumstances of the offences with which she was dealing, and the period spent by Mr Riley in custody (13 months and 18 days) following his arrest in relation to the charges laid in 2009 and the revocation of the bail that had been granted in respect of the matters with which he was charged in 2008.
18 The magistrate referred to the pre-sentence report which she had received, and expressed the view that statements made by Mr Riley to the author of the report, like the plea in mitigation put by counsel on his behalf, tended to minimise and justify his illegal conduct. Reference was also made to Mr Riley's poly-drug use over a significant period which was likely to be associated with dysfunctional aspects of his personality. In that context, the magistrate referred to the reference made by the author of the pre-sentence report to a psychological report which had been prepared for the Prisoners Review Board in 2006 in which it was noted that Mr Riley was experiencing some form of personality disorder, being most likely narcissistic and/or antisocial disorder, being conditions which are difficult to treat.
19 The magistrate referred to a number of factors specified in the Sentencing Act 1995 (WA), and in that context again referred to the period of over 13 months which Mr Riley had spent in custody.
20 The magistrate expressed the view that drug offences are very serious matters, especially when coupled with the possession of guns, weapons and money, and accepted the submission made by the prosecutor to the effect that the weapons found in Mr Riley's possession were weapons often associated with drug dealers engaged in the business of selling or supplying drugs for profit. The magistrate also drew attention to the amount of cash found in Mr Riley's possession which indicated that his drug dealing activities had been very profitable. In that context, the magistrate attributed particular seriousness to the offence of possessing a handgun committed by Mr Riley in March 2009.
21 The magistrate summarised the submissions that had been put on Mr Riley's behalf, including the submissions made in respect of his
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- medical conditions and the process of rehabilitation focused around his art work. The magistrate expressly acknowledged that Mr Riley's plea of guilty was a mitigating factor.
22 The magistrate reminded herself that a term of imprisonment was only to be imposed as a penalty of last resort, and only if the seriousness of the offence was such that only imprisonment could be justified or was required for the protection of the community. She then expressed the view that in the circumstances of the case before her, 'the appropriate sentence is, and can only be, a period of imprisonment' (ts 10). However, she stipulated that the term would take into account the period of 13 months and 18 days that Mr Riley had spent on remand in custody.
23 The magistrate expressed the view that, having regard to sentences imposed in comparable cases, she considered that the appropriate usual tariff would have been a period of 3 years imprisonment. However, taking into account the time spent in custody of 13 months and 18 days, and what she described as 'the early plea of guilty', the sentence would be reduced to the periods which she then imposed resulting in an aggregate term of 18 months imprisonment with parole eligibility. Although not expressly enunciated by the magistrate, it is a fair inference from her remarks that she reduced the sentence imposed from a period of 3 years which would otherwise have been appropriate because of the time spent by Mr Riley in custody, and because of his plea of guilty.
The appeal to Simmonds J
24 Mr Riley's appeal against sentence proceeded before Simmonds J on the following grounds:
1) The learned sentencing magistrate failed to give proper effect to the totality principle.
Particulars
- 1. The learned sentencing magistrate gave no or insufficient weight to the pleas entered by the appellant.
2. The learned sentencing magistrate gave no or insufficient weight to the delay by the prosecution in the conduct of the various prosecutions against the appellant.
3. The learned sentencing magistrate gave no or insufficient weight to the rehabilitative progress and prospects of the appellant.
- 4. The learned sentencing magistrate gave no or insufficient weight to the health conditions affecting the appellant.
5. The learned sentencing magistrate gave undue weight to the content of a psychological report dated 3 February 2006 and the pre-sentence report of the appellant.
6. The learned sentencing magistrate gave insufficient weight to the period spent by the appellant both on remand and at conditional liberty.
7. The appellant relies upon relevant matters that have occurred between the date of sentence and the date of appeal.
- 2) The sentencing discretion of the Learned Magistrate miscarried by the failure to consider the imposition of suspended sentences (Riley v Smirk [30]).
25 As I have mentioned, Simmonds J dismissed Mr Riley's appeal in reasons published on 28 January 2011: see Riley v Smirk.
The grounds of appeal
26 The grounds of appeal from the decision of Simmonds J are:
1. The Court erred in finding that the Learned Magistrate had considered and given appropriate consideration to the imposition of suspended sentences.
2. The Court erred in upholding an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
27 Leave to appeal has been granted in respect of the second ground, and the application for leave in respect of ground one was referred to the hearing of the appeal.
28 It will thus be seen that the grounds of appeal from the decision of Simmonds J are substantially the same as the grounds of appeal before him, save that no particulars have been provided in respect of the assertion that the aggregate sentence did not bear a proper relationship to the overall criminality of Mr Riley's conduct. It is, however, clear from the written and oral submissions advanced in support of that ground that some, but not all, of the matters that were particularised in the grounds of appeal to Simmonds J are relied upon in this appeal.
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Ground 1
29 On behalf of Mr Riley it is asserted that it should be inferred that the magistrate failed to give appropriate consideration to the prospect of a disposition by way of suspended sentence because she made no reference to that possibility in the course of her remarks at the time of passing sentence. However, it is appropriate to assess the reasons given by the magistrate at the time of passing sentence in the context provided by the observations made by Malcolm CJ in Nevermann v The Queen (1989) 43 A Crim R 347:
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 reasons may be stated shortly, without being developed in any detail. It does not follow… 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… It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reasons for the adoption of the sentence or other disposition he considers appropriate (350).
30 It must also be remembered that in this case the sentences were imposed by the magistrate a little over two weeks after she had heard lengthy submissions on the subject of sentence. The contest between the parties at that hearing was between the suggestion made on behalf of Mr Riley to the effect that a term of suspended imprisonment should be imposed, and the prosecutor's submission that a significant term of imprisonment was required. It is clear from her remarks during the course of that hearing that the magistrate regarded the stance adopted by the prosecutor as being an assertion that only a term of imprisonment to be immediately served would satisfy the criminality involved, and she stated that position expressly (ts 23). The prosecutor did not dissent from her characterisation of his position in that way. Having appreciated the fundamental difference between the respective positions of the parties during the hearing on 22 July 2010, it is extremely improbable that the magistrate would have failed to take the possibility of a suspended sentence into account at the time of passing sentence a little over two weeks later. It is clear from the remarks which she did make at the time of passing sentence that she was of the view that the criminality associated with the offences to which Mr Riley pleaded guilty was such that only a term of imprisonment to be immediately served would be appropriate.
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31 Further and in any event, failure by a sentencing judge or magistrate to refer at the time of passing sentence to a sentencing disposition which is not a realistic option can hardly be criticised, nor could it provide a basis for concluding that the sentencing discretion had miscarried (see for example, Samuels v The State of Western Australia [2004] WASCA 154 [34]). In this case, a sentence of suspended imprisonment was not a realistic option and the magistrate was correct to conclude that only a term of imprisonment to be served immediately would appropriately reflect the criminality involved. Mr Riley's prior convictions and the circumstances of the offences to which he pleaded guilty in 2008 sustain the conclusion that he was a drug dealer who had participated in his pernicious trade over many years despite being previously sentenced to terms of imprisonment, and despite being declared a drug trafficker. The offences of offering to sell or supply methylamphetamine in 2008, while not involving large amounts of drug in themselves, were only consistent with his participation in drug dealing for profit, a conclusion reinforced by the large amount of cash found in his possession, together with the weapons and ammunition. In that context, the offence of possessing a handgun in 2009 acquires a sinister connotation and must be regarded as serious. It is also significant that Mr Riley has been previously imprisoned on two separate occasions for drug dealing, and that the 2008 offences occurred 12 months or so after his release from custody, whereas the offence which he committed in 2009 was committed whilst he was on bail for the 2008 offences.
32 It has been observed in this court that a disposition by way of suspended sentence would be truly exceptional in a case involving dealing in illicit drugs (The State of Western Australia v Johnson [2010] WASCA 187 [23], [27]). The circumstances of Mr Riley's case were not at all exceptional, and did not give rise to any realistic possibility that a sentence of suspended imprisonment would have been appropriate.
33 Ground 1 is without substance. Leave to appeal on that ground should be refused.
Ground 2
34 It is significant to note that it is not asserted on behalf of Mr Riley that any of the sentences imposed by the magistrate for any of the offences was manifestly excessive. In particular, it was not suggested that any of the sentences imposed was outside the range reasonably open to the magistrate, nor was the attention of the court drawn to any other sentences imposed in comparable cases which might be used to support a conclusion that any of the individual sentences imposed was excessive.
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- Rather, the ground is put exclusively in terms of the totality principle. It is asserted that the aggregate sentence of 18 months does not bear a proper relationship to the overall criminality of Mr Riley's conduct.
35 It is to be remembered that Mr Riley's aggregate sentence of 18 months imprisonment came about as a consequence of the imposition of a term of 6 months imprisonment for the offence of possessing the Magnum handgun in 2009, cumulative upon the sentences that had been imposed in respect of the offences committed in 2008. Three separate terms of imprisonment for 12 months were imposed in respect of the offences committed in 2008 which were ordered to be served concurrently with each other and with the other lesser terms of imprisonment imposed for the other offences committed in 2008. Given that none of the individual sentences are said to be excessive, the aggregate term of 18 months imprisonment comes about because the term imposed for the offence committed in 2009 was imposed cumulatively upon the various terms imposed for the offences committed in 2008.
36 It was entirely appropriate for the magistrate to structure the sentence in such a way that the term of imprisonment imposed for the offence of possessing a Magnum handgun in 2009 was cumulative upon the terms imposed in respect of the offences committed in 2008. The serious offence of possessing an unlicensed handgun was committed by Mr Riley at a time when he was on bail awaiting trial for offences of dealing in drugs, the possession of a large amount of money reasonably believed to have been unlawfully obtained, and weapons reasonably associated with his trade as a drug dealer. In those circumstances, the imposition of a term of imprisonment to be served concurrently with the terms imposed for the 2008 offences would not have reflected the separate criminality involved in the commission of the 2009 offence, and could only have been justified under the totality principle if the combined effect of the sentences would have been crushing and likely to discourage rehabilitation. However, it could not seriously be suggested that the increase in sentence from 12 to 18 months, which came about as a consequence of ordering that the penalty for the offence committed in 2009 be served cumulatively, could have had that effect.
37 Viewed in this way, ground 2, as expressed, is without substance. However, it is clear from the submissions that despite the failure to challenge any particular sentence imposed for any particular offence, ground 2 was seen as the vehicle by which it could be asserted that the magistrate made specific errors of principle which resulted in her
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- discretion miscarrying. Although not expressly encompassed within the ground, I will nevertheless deal with the alleged errors.
Pre-sentence custody
38 On behalf of Mr Riley it is submitted that inadequate account was taken of the period of 13 months and 18 days which Mr Riley spent in custody prior to being sentenced by the magistrate. In support of this proposition, attention is drawn to the practical difference between backdating a sentence and reducing a head sentence to take account of time spent in custody prior to sentence. That practical difference arises because in a case in which the sentence is backdated, time served prior to the date of sentence counts as time served for the purposes of eligibility for parole. However, in a case in which the head sentence is reduced to take account of time spent in custody prior to sentence, time spent in custody prior to sentence will not count towards the service of the minimum period prior to eligibility for parole. The force of the submission based on this distinction is, however, diminished by the acceptance on behalf of Mr Riley that it was not open to the magistrate to backdate the sentences imposed upon him. That course is only available under s 87 of the Sentencing Act which only applies where the offender has 'previously spent time in custody in respect of the offence and for no other reason'. Following his arrest in March 2009, Mr Riley was in custody because he was not granted bail in respect of the various charges that were laid against him in 2009, and also because the bail which he had been granted in respect of the charges brought against him in 2008 had been revoked. Accordingly, it could not be said that between March 2009 and April 2010, Mr Riley spent time in custody which was only referable to the offences with which the magistrate dealt. It was therefore not open to the magistrate to backdate the sentences she imposed.
39 It is, however, clear from the remarks made by the magistrate at the time of passing sentence that she took into account the time spent by Mr Riley in custody prior to sentence. She appears to have accepted the prosecutor's submission that she was not obliged to do so with exact mathematical precision. That course was plainly open to her and is not said on behalf of Mr Riley to constitute error in itself. Rather, it is put on his behalf that the time spent by Mr Riley in custody prior to sentence is one factor which, in combination with others, leads to the conclusion that the aggregate sentence of 18 months imprisonment which was imposed by the magistrate was out of proportion to the culpability of Mr Riley's conduct. However, the difficulty with that approach is that no submission was made to the effect that the starting point which the magistrate adopted
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- of an aggregate term of 3 years imprisonment was outside the range reasonably open to her, nor any comparable cases drawn to the attention of the court which would sustain any such proposition. The reduction of 18 months from that starting point clearly indicates that the magistrate made a very significant allowance for the time spent in custody by Mr Riley in the sentences which she imposed. Given the extent of the allowance made, it cannot be concluded that the sentences imposed manifest any error in principle.
40 Attention was also drawn in submissions to the period which Mr Riley spent on bail prior to sentence. While there may be cases in which it is appropriate to take account of the particular privations that might be associated with conditional liberty while on bail, there is no suggestion that the conditions of bail in this case interfered unduly with Mr Riley's liberty, and therefore no reason why the grant of bail should be considered to be a factor in mitigation of sentence.
The pleas of guilty
41 It is clear that the magistrate regarded Mr Riley's pleas of guilty as factors mitigating sentence. The aggregate sentence imposed by the magistrate of 18 months imprisonment was 18 months less than the period she would have imposed but for the time spent in custody and the pleas of guilty. Given that the time spent in custody was 13 months and 18 days, it is clear that the magistrate has discounted the aggregate sentence imposed by not less than 4½ months, and probably by somewhat more, given her acceptance of the submission that it was not necessary to allow for time spent in custody with mathematical exactitude.
42 It could not be concluded that a discount of this order was indicative of error, or shows that the sentencing discretion miscarried. As this court has observed many times, the precise extent of the discount to be given for a plea of guilty is a matter of discretion to be exercised having regard to all the circumstances of the case, including the time at which the pleas are indicated, the strength of the prosecution case, and the extent to which the plea might be said to indicate genuine remorse rather than a recognition of the inevitable: see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. Although the magistrate described the pleas of guilty as 'early', that description was certainly not accurate in respect of many of the offences with which she dealt. However, accepting for the purposes of this submission that the pleas of guilty to the two charges of offering to sell or supply methylamphetamine, and the charge of possessing the handgun were indicated shortly after the charges to those
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- offences were amended following the ruling of Davis DCJ, it could not be said that the inferred discount given by the magistrate in recognition of the pleas of guilty was outside the range of a sound exercise of discretion, and therefore indicative of error: see Moody v French [2008] WASCA 67; (2008) 36 WAR 393.
Delay
43 On behalf of Mr Riley it is asserted that there was delay in bringing the charges laid in 2008 to trial which is another factor which should have resulted, in combination with others, to a reduction in the aggregate sentence below 18 months. However, delay is not, of itself, a mitigating factor (see Scook v The Queen [2008] WASCA 114). Delay caused by dilatory or neglectful conduct on the part of the prosecution authorities might in an appropriate case provide a basis for a reduction in sentence, but dilatory or neglectful conduct on the part of the prosecuting authorities has not been established in this case.
Rehabilitation
44 The magistrate plainly took into account the submissions that had been put on behalf of Mr Riley on the topic of rehabilitation. She was, however, entitled to be sceptical in relation to those submissions given Mr Riley's long history of criminal offending, including in particular dealing in drugs, and the fact that the 2009 offence was committed while he was on bail for the 2008 offences. Further and in any event, it is well established that in offences involving dealing in illegal drugs such as methylamphetamine, matters personal to the offender such as rehabilitation are of reduced significance as a consequence of the emphasis placed upon deterrence, both general and personal. In this context, there is nothing in the observations made by the magistrate which suggests that she failed to give appropriate consideration to the desirability of encouraging Mr Riley's rehabilitation or that she erred in any way in the approach which she took to that aspect of the case before her.
Reference to the psychological report and the pre-sentence report
45 On behalf of Mr Riley it is submitted that it was not appropriate for the magistrate to rely upon or refer to the psychological report referred to in the pre-sentence report. However, no objection was taken to any part of the pre-sentence report at the time of the hearing before the magistrate. If objection had been taken and the prosecutor had asserted reliance upon that aspect of the pre-sentence report in the face of objection, the matter
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- could have been resolved by the calling of evidence if necessary. However, the point was not taken on Mr Riley's behalf, and it was open to the magistrate to refer to any of the material before her, including the reference to the psychological report contained within the pre-sentence report.
46 In summary, there is no substance in any of the specific points raised within the umbrella of ground 2 whether viewed in isolation or in combination. For the reasons given, ground 2 as expressed is without substance and should be dismissed.
Conclusion
47 Ground 2 of the appeal should be dismissed. Leave to appeal should be refused in respect of ground 1.
48 NEWNES JA: I agree with Martin CJ.
49 HALL J: I agree with Martin CJ.
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